Jointly Administered Bankruptcy Case No. 301-12036, Adv. Proc. Nos. 303-0566A, 303-0567A.United States Bankruptcy Court, M.D. Tennessee, Nashville Division.
April 28, 2005.
Beth A. Dunning, DUNNING LAW GROUP, PLLC, Brentwood, Tennessee, Counsel for the Consolidated Debtors acting by and through the Plan Administrator.
Steven T. Holmes, HUNTON WILLIAMS, Energy Plaza, Dallas, TX, Counsel for the Defendants.
AGREED ORDER OF SETTLEMENT AND DISMISSAL
KEITH LUNDIN, Bankruptcy Judge
This matter is before the Court upon the Complaint (the “Complaint”)[2] filed by Phoenix Restaurant Group, Inc. (“PRG”) and the PRG affiliates (with PRG, collectively, the
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“Consolidated Debtors”)[3] against TXU Energy Retail Company LP, formerly known as TXU Electric Company, Inc. and TXU Energy Company LLC (the “Defendant”; and with the Consolidated Debtors, collectively, the “Parties”), which Complaint seeks avoidance and recovery of certain payments under sections 547 and 550 of the United States Bankruptcy Code, 11 U.S.C. §§ 101–1330
(the “Bankruptcy Code”). Based upon the agreements, acknowledgements, stipulated facts, and conclusions of the Parties set forth below, which are evidenced and acknowledged by the signatures of the Parties on this Order, the record herein, and all other circumstances, therefore,
THE COURT FINDS, ADJUDGES AND DECREES:
A. The Complaint seeks to avoid and recover the value of certain payments (the “Payments”) allegedly made to the Defendants prior to the commencement of these bankruptcy cases.
B. Certain claims (the “Filed Claims”) have been asserted against the Consolidated Debtors and their estates by or for the benefit of the Defendants, which claims are evidenced by one or more proofs of claim, including, without limitation, Claims 316, 1462 and 1571, as identified in the claims register in these bankruptcy cases.
C. The Consolidated Debtors and the Defendants have agreed to a settlement and resolution (the “Settlement”) of all factual and legal issues in this adversary proceeding.
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D. Pursuant to the Settlement and in partial consideration therefor, the Defendants has agreed to pay to the Consolidated Debtors the amount of $50,000.00 (the “Settlement Amount”).
E. Pursuant to the Settlement and in partial consideration therefor, the Defendants has expressly agreed to voluntarily waive (the “Claim Waiver”) the following claims against the Consolidated Debtors (the “Waived Claims”);
(i) the Filed Claims in their entirety;
(ii) any and all claims identified by the Consolidated Debtors on any schedules or amended schedules filed under 11 U.S.C. §§ 521(1) or 1106(a)(2) in these bankruptcy cases;
(iii) notwithstanding any rights of the Defendants under 11 U.S.C. § 502(h), any and all claims arising from the payment of the Settlement Amount; and
(iv) any and all other claims, causes of action, rights or defenses held or asserted by the Defendant against the Consolidated Debtors, whether secured, unsecured, prepetition, postpetition, administrative, priority, or otherwise against the Consolidated Debtors or their estates, and whether or not such claims have already been asserted or might be asserted in the future against the Consolidated Debtors, and whether or not such claims are evidenced by a proof of claim filed in these bankruptcy cases.
F. The Defendant expressly acknowledge and agrees that the Defendants understands the effect of the Claim Waiver and that such Claim Waiver was agreed to only after the Defendant had adequate opportunity to consult with counsel of the Defendants’ choosing regarding the Defendant’s legal rights and the effect of such Claim Waiver.
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G. In consideration of the Settlement and the Claim Waiver, the Consolidated Debtors have agreed to dismiss the Complaints against the Defendants and release each Defendant from any further liability on the allegations raised or which could be raised in either Complaint.
H. Sections 21.12 and 18.12.5 of the confirmed Plan, among others, grant the Plan Administrator discretion to resolve all claims and controversies in these bankruptcy cases on behalf of the Consolidated Debtors, without further notice, hearing or Court authority.
I. Dismissal of the Complaints against Defendants, on the terms set forth in this Order, is appropriate under all of the circumstances.
THEREFORE, THE COURT ORDERS, ADJUDGES AND DECREES:
1. Immediately upon Defendants’ approval of this Agreed Order, the Defendants shall pay the Consolidated Debtors the Settlement Amount which shall be held in trust pending finality of this Order. The effectiveness of this Order shall be and is expressly conditioned upon the receipt by the Consolidated Debtors of ecash or other legal tender of good funds transferred to the possession and control of an authorized agent of the Consolidated Debtors, in the Settlement Amount.
2. In accordance with the knowing and voluntary Claim Waiver by the Defendants, the Waived Claims shall be DISALLOWED in their entirety and the Defendants shall not have and is forever barred from asserting, liquidating, collecting on or receiving a distribution on the Waived Claims and the Consolidated Debtors are hereby released and forever discharged from the Waived Claims.
3. Notwithstanding anything in this Order, to the contrary, no waiver or release of claims granted hereunder shall be deemed to be a waiver or release of liability as against the
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Consolidated Debtors, but rather a waiver and release of any right to collect any such liability from the Consolidated Debtors, to satisfy such liability from assets of the Consolidated Debtors and/or to participate in any distribution of assets of the Consolidated Debtors.
4. The Court hereby dismisses these adversary proceeding against the Defendants, conditioned upon the Parties’ compliance with all of the terms of the Settlement, and the terms of this Order, the Parties having agreed and represented, as confirmed by the signatures of authorized representatives of the Parties below, that their assent to any particular term in the Settlement is conditioned upon and consideration for the other terms, the severance of any one of which the Parties represent would negate their agreement to the Settlement.
5. If either of the Parties breach the termns of this Order or the Settlement and/or withdraw, refuse, or stop ayment on any tender of the Settlement Amount of fril to pay the full Settlement Amount consistent with the terms of this Order, then the limitation of liability and other benefits granted to the Parties, respectively, in this Order shall be null, void and of no effect, and the non-breaching Party shall be entitled to have this Order vacated.
6. Except to the extent a particular claim is specifically allowed or disallowed by the terms of this Order, neither the agreement of the Consolidated Debtors to the Settlement nor the terms of this Order shall be deemed to be a waiver, judicial determination, res judicata or preclusive, of any rights that the Consolidated Debtors might otherwise have to object or otherwise dispute, on any grounds, any claim asserted by the Defendant.
7. Except to the extent the Court does not have subject matter jurisdiction under applicable law, any matters or disputes related to the enforcement of the terms of this Order or that otherwise arise from, or are related to this Order, shall be heard by this Court unless otherwise agreed in writing by the Parties.
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