Opinion
Case No. 399-02649, Jointly Administered, Adv.Proc. No. 301-0359A
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 and Debtors in Possession.
Richard G. Dafoe, Esq., Vial, Hamilton, Koch Knox, LLP, Dallas, Texas, Attorneys for Defendant Frye International Corporation.
(Continuing Vendors)
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, Frye International Corporation (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 from $266,463.21 to $200,000.
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 Debtors other than the allowed $200,000 proof of claim in these bankruptcy cases 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 any such other 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 agreement to reduce its proof of claim, and of the Defendant's knowing and voluntary waiver of any and all claims against the Debtors in these bankruptcy cases for the amount of that 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 (#4810) and, the reduced claim amount of $200,000 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 other than 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.