Opinion
Case No. 399-02649 Jointly Administered, Adv. Proc. No. 301-1226A.
April 21, 2004
Paul G. Jennings, Esq., Phillip G. Young, Esq., Bass, Berry Sims PLC, Nashville, TN, Attorneys for Debtors and Debtors in Possession.
John W. Lamb, Jr., Esq., Boult, Cummings, Conners Berry, PLC, Nashville, TN, Attorney for Alabama Power Company.
AGREED ORDER OF SETTLEMENT AND DISMISSAL
Upon the agreement of the parties that this adversary proceeding has been resolved and should be dismissed, and that the parties have agreed to the valid amounts of the pre-petition claims of the Defendant against the Debtors, 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, Alabama Power Company (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. Defendant acknowledges that any and all charges for which claims could have been made by the Defendant against bonds it may hold against the Debtors, its accounts, and/or its property have been paid in full. Accordingly, Defendant hereby consents to the release and/or discharge of any and all bonds it may hold against the Debtors, its accounts, and/or its property. In addition, and pursuant to the Settlement and in partial consideration therefor, the Defendant has agreed, as evidenced by the signature of the Defendant below, to take any and all steps necessary to release any and all deposit bonds it may hold against the Debtors, its accounts, and/or its property.
D. The Defendant has acknowledged, as evidenced by the signatures below, and is hereby found to have waived the claims as described in paragraph C. herein, 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 agreement to take any and all steps to release any and all deposit bonds it may hold against the Debtors, the Debtors have agreed to dismiss the Complaint with prejudice, each party to bear its own costs. Furthermore, the Debtors and Defendants have agreed with respect to the allowable amount of Claim No. #741 and Claim No. #1310 filed by the Defendant in SMC's bankruptcy's case as follows: Claim No. #741 shall be allowed in the amount of $10,376.46, and Claim No. #1310 shall be allowed in the amount of $2,656.03 with the balance of the request for each claim being disallowed with prejudice. By virtue of their representatives' signatures below, Debtors deem the claims to be valid in the amounts listed above and acknowledge that any past, current or future objections to said claims are hereby resolved and forever foreclosed.
NOW, THEREFORE, IT IS HEREBY ORDERED:
1. The Defendant shall not have and is forever barred from asserting any claims against bonds it may hold against Debtors, its accounts, and/or its property. In addition, the Defendant shall take any and all steps necessary to release any and all deposit bonds it may hold against the Debtors, its accounts, and/or its property.
2. The Complaint shall be and hereby is dismissed, with prejudice, each party bearing its own costs.
3. The Defendant's Claim No. #741 shall be allowed in the amount of $10,376.46, and its Claim No. #1310 shall be allowed in the amount of $2,656.03 with the balance of the request for each claim being disallowed with prejudice.
4. The Court shall retain jurisdiction to hear any matters or disputes arising from or relating to the Agreed Order of Dismissal.