In re Phoenix Restaurant Group, Inc.

United States Bankruptcy Court, M.D. Tennessee, Nashville DivisionFeb 3, 2005
Jointly Administered Bankruptcy Case No. 301-12036, Adv. Proc. No. 303-0722A. (Bankr. M.D. Tenn. Feb. 3, 2005)

Jointly Administered Bankruptcy Case No. 301-12036, Adv. Proc. No. 303-0722A.

February 3, 2005.

Beth A. Dunning, DUNNING LAW GROUP, PLLC, Brentwood, Tennessee, Counsel for the Consolidated Debtors acting by and through the Plan Administrator.

Robert H. Waldschmidt, HOWELL FISHER, PLLC, Nashville, TN, Counsel for Defendant.



AGREED ORDER OF SETTLEMENT AND DISMISSAL


This matter is before the Court upon the Complaint (the "Complaint") filed by Phoenix Restaurant Group, Inc. ("PRG") and the PRG affiliates (with PRG, collectively, the "Consolidated Debtors") against Robinson Dairy 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,

Capitalized terms used herein, but not defined expressly or by reference, shall have the meanings given to them in the Complaint.

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).

THE COURT FINDS, ADJUDGES AND DECREES:

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 "Filed Claims") have been asserted against 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, including, without limitation, Claim 1326, 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 $7,000.00 (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 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 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.

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.

G. In consideration of the Settlement Amount and the Claim Waiver, the Consolidated Debtors have agreed to dismiss the Complaint against the Defendant and release the Defendant from any further liability on the allegations raised in the 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 Complaint against Defendant, on the terms set forth in this Order, is appropriate under all of the circumstances.

THEREFORE, THE COURT ORDERS, ADJUDGES AND DECREES:

1. The Defendant shall immediately pay the Consolidated Debtors 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. 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 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 Debtors and/or to participate in any distribution of assets of the Consolidated Debtors.

4. The Court hereby dismisses this adversary proceeding against the Defendant, 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 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 of 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 that otherwise arise from, or are related to this Order, shall be heard by this Court unless otherwise agreed in writing by the Parties.