Opinion
Case No. 399-02649, Jointly Administered, Adv. Proc. 301-0311A
February 14, 2003
Wally W. Dietz, Esq., Paul G. Jennings, Esq., Beth A. Dunning, Esq., Bass, Berry Sims PLC, Nashville, TN, and Charles F. Smith, Esq., Van C. Durrer, II, Esq., Skadden, Arps, Slate, Meagher Flom, Chicago, IL, Attorneys for Debtors and Debtors in Possession.
(Communications)
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 "Debtors"), 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, Hughes Electronics Corp f/k/a "Hughes Network Systems, Inc."
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 agreed to pay the Debtors the amount of $12,000, on or before 14 days after Defendant's receipt of this agreed order of dismissal (the "Agreed Order of Dismissal") signed by counsel for the Debtors (such payment to be immediately returned to the Defendant in the event the Agreed Order of Dismissal is not entered by the Court by December 15, 2002), and such payment was made prior to submission of the Agreed Order of Dismissal to this Court.
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 Plaintiffs in these bankruptcy cases for the amount paid by the Defendant pursuant to the Agreed Order of Dismissal and for any and all prepetition claims asserted 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 amount of $12,000, and of the Defendant's knowing and voluntary waiver of any and all claims against the Debtors in these bankruptcy cases for the amount paid by the Defendant in partial consideration for the Agreed Order of Dismissal, the Debtors have agreed, as evidenced by the signature of the Debtors' counsel below, to dismiss the Complaint with prejudice, each party to bear its own costs and fees, and to release and discharge the Defendant from any and all other claims as set forth below.
NOW, THEREFORE, IT IS HEREBY ORDERED:
1. The Defendant shall not have and is forever barred from asserting any claim against the Plaintiffs for the amount paid by the Defendant hereunder or on account of any claim arising prepetition.
2. The Debtors and their bankruptcy estates shall not have and are forever barred from asserting any claim against the Defendant or any of its parents, subsidiaries, affiliates or representatives, arising out of or relating in any way to any and all prepetition; contracts or transactions between Service Merchandise and the Defendant and any and all payments made or goods or services delivered pursuant thereto, including without limitation any and all claims under Subchapter III of Chapter 5 of the Bankruptcy Code.
3. The Complaint shall be and hereby is dismissed, with prejudice, each party bearing its own costs and fees.
4. The Court shall retain jurisdiction to hear any matters or disputes arising from or relating to the Agreed Order of Dismissal.