Opinion
Case No. 399-02649, Jointly Administered, Adv.Proc. No. 301-0580A
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., Patrick J. Nash, Jr. Esq., Skadden, Arps, Slate, Meagher Flom Chicago, IL, Attorneys for Debtors and Debtors in Possession.
(Debit Balance)
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 (the "Adversary Proceeding") by filing their Complaint for Damages and Related Relief (the "Complaint") against the defendant, The Vermont Castings Majestic Products Company d/b/a GEM Harris Systems (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 Debtors the principal amount of $5,000.00 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, including but not limited to proof of claim #4666 filed in the amount of $113,806.40.
D. The Defendant has acknowledged, as evidenced by the signature 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.
F. In consideration of the Defendant's payment of the principal amount $5,000.00, 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, and have agreed to release and forever discharge the Defendant from any and all claims or causes of action that the Debtors, and their successors and assigns, may have or assert against the Defendant through the date hereof.
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 that the Defendant has or may have as of the date hereof.
2. The Debtors and their successors and assigns have released and are forever barred from asserting any claims or causes of action that they, and their successors and assigns, may have or assert against the Defendant through the date hereof.
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.