Opinion
Case No. 399-02649, Jointly Administered, Adv.Proc. No. 301-0125A
February 14, 2003
Paul G. Jennings, Esq., Beth A. Dunning, Esq., Bass, Berry Sims, PLC, Nashville, TN, and Charles F. Smith, Esq., Frances P. Kao, Esq., Skadden, Arps, Slate, Meagher Flom, Chicago, IL, Attorneys for Debtors in Possession.
Wendy J. Gibson, Esq., Michael A. VanNiel, Esq., BAKER HOSTETLER, LLP, Cleveland, Ohio, Attorneys for Defendant Evansville Courier Company, Inc.
(Continuing Vendors)
AGREED ORDER OF SETTLEMENT AND DISMISSAL
Upon the agreement of the parties that this adversary 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.
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 agreed to reduce its proof of claim (No. 1827) (the "Claim") from $16,194.08 to $8097.04 (the "Claim Reduction").
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 its Claim against the Debtors in these bankruptcy cases to the extent of the Claim Reduction for the consideration provided by the Defendant pursuant to this agreed order of dismissal (the "Agreed Order of Dismissal").
E. The Defendant has acknowledged, as evidenced by the signatures below, and is hereby found to have waived its Claim, to extent of the Claim Reduction, 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 agreement to reduce its proof of claim, and of the Defendant's knowing and voluntary waiver of its Claim against the Debtors in these bankruptcy cases for the amount of the Claim Reduction in consideration for the Agreed Order of Dismissal, the Debtors have agreed to dismiss the Complaint with prejudice, each party to bear its own costs. Debtors further agree that such payment resolves Debtors' 11 U.S.C. § 502(b) and 502(d) objections asserted against Defendant's proof of claim and, the reduced claim amount of $8,097.04 is an allowed general prepetition unsecured claim of the estate.
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 by which Defendant has reduced its proof of claim hereunder.
2. The Complaint shall be and hereby is dismissed, with prejudice, each party bearing its own costs.
3. The Court shall retain jurisdiction to hear any matters or disputes arising from or relating to the Agreed Order of Dismissal.