Opinion
Case No. 399-02649 Jointly Administered, Adv.Proc. No. 301-0394A.
April 29, 2004
Wally W. Dietz, Esq., Paul G. Jennings, Esq., Bass, Berry Sims PLC, Nashville, TN, and Charles F. Smith, Esq., Patrick J. Nash, Jr. Esq., Skadden, Arps, Slate, Meagher Flom (Illinois), Chicago, IL, Attorneys for Plaintiffs.
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 (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, Lifetime Hoan Corporation (the "Defendant").
B. The Plaintiffs and the Defendant have reached a settlement and agreed resolution (the "Settlement") of the subject matter of the Complaint and all of the legal and factual issues raised therein.
C. Pursuant to the Settlement and in consideration therefor, the Defendant has agreed to waive and release any and all claims against the Plaintiffs, including but not limited to proofs of claim No.'s 1586 and 1587.
D. Pursuant to the Settlement and in consideration therefor, the Plaintiffs have agreed to waive and release any and all claims against the Defendants, including but not limited to the alleged $23,891.46 post-petition debit balance.
E. It is each parties' intention to afford the other a general release except for the mutual undertakings, obligations and as otherwise set forth herein.
F. In consideration of the resolution of the Defendant's claims as set forth herein, the Plaintiffs have agreed to dismiss the Complaint with prejudice, each party to bear its own costs.
NOW, THEREFORE, IT IS HEREBY ORDERED:
1. Proofs of claim No.'s 1586 and 1587 shall be disallowed.
2. Except for the mutual undertakings, obligations and as otherwise set forth herein, the Plaintiffs and the Defendant do hereby waive and release the other from any and all claims, suits, causes of action, and counterclaims, known or unknown; it is the intention of the parties to extinguish all claims settled herein and consistent with such settled claims and consistent with such intentions, the parties waive their rights, to the extent permitted by law, to any benefits of the provisions of section 1542 of the California Civil Code or any other similar state law, federal law or principle of common law, which may have the effect of limiting the release set forth above.
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.