IN RE SERVICE MERCHANDISE COMPANY, INC., (Bankr.M.D.Tenn. 2004)

In re: Service Merchandise Company, Inc., et al., Chapter 11, Reorganized Debtors; Service Merchandise Company, Inc., et al. Plaintiffs, vs. The Brinkman Corporation, Defendant

Case No. 399-02649, Jointly Administered, Adv. Proc. No. 301-0335A (Continuing Vendors)United States Bankruptcy Court, M.D. Tennessee
January 6, 2004

Wally W. Dietz, Esq., Paul G. Jennings, Esq., Beth A. Dunning, Esq., Bass, Berry Sims PLC, Nashville, TN, for Plaintiffs

Charles F. Smith, Esq., Patrick J. Nash, Jr. Esq., Skadden, Arps, Slate, Meagher Flom (Illinois), Chicago, IL, for Plaintiffs

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 (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, The Brinkman 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.

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C. Pursuant to the Settlement and in partial consideration therefor, the Defendant has agreed to waive and release proof of claim No. 525, previously ordered by the Court in the amount of $137,778.18.

D. Pursuant to the Settlement and in partial consideration therefor, the Plaintiffs and the Defendant have agreed to resolve the Defendant’s contested administrative claim, filed in the amount of $335,062.50, by affording the Defendant an allowed administrative claim in the above-captioned chapter 11 cases in the amount of $40,666.70.

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. Proof of claim No. 525 is hereby disallowed.

2. The Defendant shall have an allowed administrative claim in the above-captioned chapter 11 cases in the amount of $40,666.70.

3. 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

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law or principle of common law, which may have the effect of limiting the release set forth above.

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.