In re: PHOENIX RESTAURANT GROUP, INC., et al.,[1] Chapter 11, Consolidated Debtors. PHOENIX RESTAURANT GROUP, INC., et al., Plaintiffs, v. AJILON PROFESSIONAL STAFFING, L.L.C. d/b/a AJILON FINANCE f/k/a ACCOUNTANTS ON CALL, INC., Defendant.

Jointly Administered Bankruptcy Case No. 301-12036, Adv. Proc. No. 303-0740A.United States Bankruptcy Court, M.D. Tennessee, Nashville Division.
March 4, 2005.

[1] The other debtors in these cases, which have been substantively consolidated with Phoenix Restaurant Group, Inc., are Denam, Inc., Phoenix Foods, Inc., Black-Eyed Pea U.S.A., Inc., Prufrock Restaurants of Kansas, Inc., and Texas BEP, L.P., and are referred to herein as the “PRG Affiliates.”

Samuel K. Crocker, Timothy G. Niarhos, CROCKER NIARHOS, Nashville, TN, Counsel for the Consolidated Debtors acting by and through the Plan Administrator.

David G. Thompson, NEAL HARWELL, PLC, Nashville, TN, Attorneys for Ajilon Professional Staffing LLC.

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 “Consolidated Debtors”)[3] against Ajilon Professional Staffing, L.L.C. d/b/a Ajilon finance f/k/a

Page 2

Accountants on Call, Inc. (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. §§ 1011330 (the “Bankruptcy Code”). Based upon the agreements, acknowledgements, stipulated facts, and conclusions of the Parties set forth below, which arre evidenced and acknowledged by the signatures of the Parties on this Order, the record herein, and all other circumstances, therefore.


A. The Complaint seeks to avoid and recover the value of certain payments (the “Payments”) made to the Defendant prior to the commencement of these bankruptcy cases.

B. Certain claims (the Field Claims”) have been asserted aganist the Consolidated Debtors and their estates by or for the benefit of the Defendant, which claims are evidenced by one or more proofs of claim, as identified in the claims register in these bankruptcy cases.

C. The Consolidated Debtors and the Defendant have agreed to a settlement and resolution (the “Settlement”) of all factual and legal issues in this adversary proceeding.

D. Pursuant to the Settlement and in partial consideration therefor, the Defendant has agreed to pay to the Consolidated Debtors the amount of $3,000.00 (the “Settlement Amount”).

E. Pursuant to the Settlement and in partial consideration therefor, the Defendant 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 other claims identified by the Consolidated Debtors on any schedules or amended shedules filed under 11 U.S.C. § 521(1) or 1106(a)(2) in these bankruptcy cases;

Page 3

(iii) notwithstanding any rights of the Defendant 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.
(v) Notwithstanding the foregoing, the Defendant does not waive any defenses to claims and/or causes of action that have not asserted by the Plaintiff in the Complaint.

F. The Defendant expressly acknowledges and agrees that the Defendant 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 Defendant’s choosing regarding the Defendant’s legal rights and the effect of such Claim Waiver.

Pursuant to the Settlement and in partial consideration therefore, upon full compliance by the Defendant with the terms of the Settlement and this Order, the Consolidated Debtors agree to remise, release, acquit, and forever doscjarge Defemdamt completely and fully from any and all rights, claims, demands, suits, actions, causes of action, obligations, damages, costs, losses, attorneys’ fees, expenses and liabilities, arising under 11 U.S.C. §§ 522, 544, 545, 547, 548, 549, 553 or 550 (the “Aviodance Recovery Claims”).

Page 4

H. In consideration of the Settlement Amountt and the Claim Waiver, the Consolidated Debtors have agreed to dismiss the Complaint against the Defendant with prejudice and released the Defendant from any further liability on the allegations raised in the Complaint.

I. 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.

J. Dismissal of the Complaint with prejudice against Defendant, on the terms set forth in this Order, is appropriate under all of the circumstances.


1. The Defendant shall immediately pay the Consolidated Debtors the amount of $3,000.00 (the “Settlement Amount”) and the effectiveness of this Order as a dismissal of the Complaint against the Defendant shall be and is expressly conditioned upon the receipt by the Consolidated Debtors of the Settlement Amount in cash or other legal tender of good funds transferred to the possession and control of an authorized agent of the Consolidated Debtors.

2. In accordance with the knowing and voluntary Claim Waiver by the Defendant, the Waived Claims shall be DISALLOWED in their entirety and the Defendant 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. The Defendant is hereby released and forever discharged from the Avoidance Recovery Claims.

4. The Court hereby dismisses with prejudice this adversary proceeding against the Defendant, conditioned upon the Parties’ compliance with all of the terms of the Settlement,

Page 5

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 the Defendant breaches the terms of this Order or the Settlement and/or withdraws or stops payment on any tender of the Settlement Amount or fails to immediately pay the full Settlement Amount, then the limitation of liability and other benefits granted to the Defendant in this Order shall be null, void and of no effect, and the Consolidated Debtors shall be entitled to have this Order vacated, to reinstitute this adversary proceeding and/or to otherwise fully pursue the causes of action set forth in the Complaint, as if no Settlement had occurred, along with any claims for damages suffered by the Consolidated Debtors or their estates, and in any such circumstance, the Defendant shall be barred from asserting any defense to such actions on the basis of the Settlement or any term set forth this Order.

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. Neither the Settlement nor the terms of this Order shall affect or diminish any rights the Consolidated Debtors might otherwise have against any person or entity other than the Defendant.

8. 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

Page 6

that otherwise arise from, or are related to this Order, shall be heard by this Court unless otherwise agreed in writing by the Parties.

[2] Capitalized terms used herein, but not defined expressly or by reference, shall have the meanings given to them in the Complaint.
[3] Pursuant to the Debtors’ First Amended Joint Liquidating Plan of Reorganization Dated August 2, 2002 Pursuant to Chapter 11 of the United States Bankruptcy Code (the “Plan”), as confirmed and amended by this Court’s Order entered October 23, 2002 (Docket No. 1282) (the “Confirmation Order”), the Consolidated Debtors are acting through Navigant Consulting, Inc., successor in interest to PENTA Advisory Services, a division of Navigant Consulting, Inc., which was appointed as the Plan Administrator (as defined in the Plan) to administer the Plan, with control of and authority over the Consolidated Debtors and Post-Confirmation Estate (as defined in the Plan), including, without limitation any causes of action in favor of the Consolidated Debtors. (See e.g., Plan §§ 18.1 and 18.3).