Case No. 399-02649, Jointly Administered, Adv. Proc. No. 301-1229A (Utilities)United States Bankruptcy Court, M.D. Tennessee.
December 23, 2003
Wally W. Dietz, Esq., Paul G. Jennings, Esq., Beth A. Dunning, Esq., Bass, Berry Sims PLC, Nashville, TN, for Debtors and Debtors in Possession
Charles F. Smith, Esq., Patrick J. Nash, Jr., Esq., Skadden, Arps, Slate, Meagher Flom (Illinois), Chicago, IL, for Debtors and Debtors in Possession
Lawrence F. Mazer, Progress Energy Service Compant, LLC, Raleigh, NC, Associate General Counsel
AGREED ORDER OF SETTLEMENT AND DISMISSAL
GEORGE PAINE, Chief Judge, Bankruptcy
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, Carolina Power and Light Company (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 paid the Debtors the principal amount of $2,000.00.
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D. Pursuant to the Settlement, the Debtors have agreed, as evidenced by the signature of Debtors’ counsel below, and are hereby deemed to voluntarily waive any and all claims and/or causes of action against the Defendant that were or could have been brought in these bankruptcy cases.
E. Pursuant to the Settlement and in partial consideration therefore, 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 in these bankruptcy cases for the amount paid by the Defendant pursuant to this agreed order of dismissal (the “Agreed Order of Dismissal”).
F. Pursuant to the Settlement and in partial consideration therefore, the Defendant has agreed, as evidenced by the signature of the Defendant below, and is hereby deemed to voluntarily waive any and all claims and/or causes of action that were or could have been brought against the Debtors in the Defendant’s name in these bankruptcy cases.
G. Defendant acknowledges that any and all charges for which claims could have been made by the Defendant against bonds it may hold against the Debtors, its accounts, and/or its property have been paid in full. Accordingly, Defendant hereby consents to the release and/or discharge of any and all bonds it may hold against the Debtors, its accounts, and/or its property. In addition, and pursuant to the Settlement and in partial consideration therefore, the Defendant has agreed, as evidenced by the signature of the Defendant below, to take any and all steps necessary to release any and all deposit bonds it may hold against the Debtors, its accounts, and/or its property.
H. The Defendant has acknowledged, as evidenced by the signatures below, and is hereby found to have waived any such claims, as more fully described in paragraphs E, F and G herein, having adequate opportunity to consult with counsel concerning the Defendant’s legal rights and the effect of this waiver.
I. In consideration of the Defendant’s payment of the principal amount of $2,000.00, and of the Defendant’s knowing and voluntary waiver of any and all claims and/or causes of action that were or could have been brought against the Debtors in the Defendant’s
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name in these bankruptcy cases, including claims filed in this case; and of the Defendant’s knowing and voluntary waiver of any and all claims against the Debtors in these bankruptcy cases for the amount paid by the Defendant; and of the Defendant’s agreement to take any and all steps to release any and all deposit bonds it may hold against the Debtors, in partial consideration for the Agreed Order of Dismissal, the Debtors have agreed to waive any and all claims that could have been brought against the Defendant in these bankruptcy cases and to dismiss the Complaint with prejudice, each party to bear its own costs.
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 paid by the Defendant hereunder.
2. The Defendant shall not have and is forever barred from asserting any claims and/or causes of action that were or could have been brought against the Debtors in the Defendant’s name in these bankruptcy cases.
3. The Plaintiff shall not have any cause of action against the Defendant that was or could have been brought in these cases,
4. The Complaint shall be and hereby is dismissed, with prejudice, each party bearing its own costs.
5. The Court shall retain jurisdiction to hear any matters or disputes arising from or relating to the Agreed Order of Dismissal.