In re Phoenix Restaurant Group, Inc.

United States Bankruptcy Court, M.D. Tennessee, Nashville DivisionJan 7, 2005
Jointly Administered Bankruptcy Case No. 301-12036, Adv. Proc. No. 303-0685A (Bankr. M.D. Tenn. Jan. 7, 2005)

Jointly Administered Bankruptcy Case No. 301-12036, Adv. Proc. No. 303-0685A.

January 7, 2005.

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

Stephen A. Metz, SHULMAN, ROGERS, GANDAL, PORDY ECKER, P.A., Rockville, Maryland, Counsel for Defendant.



AGREED ORDER OF SETTLEMENT AND DISMISSAL


KEITH LUNDIN, Bankruptcy Judge

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 Saul Holdings Limited Partnership (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 Pan 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 385, 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 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; and

(iii) 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.

E. 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.

F. 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 completely and fully remise, release, acquit, and forever discharge Defendant from any and all rights, claims, demands, suits, actions, causes of action, obligations, damages, costs, losses, expenses and liabilities, arising under 11 U.S.C. §§ 522, 544, 545, 547, 548, 549, 553 or 550 (the "Avoidance Recovery Claims").

G. In consideration of 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. 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.

2. The Defendant is hereby released and forever discharged from the Avoidance Recovery Claims.

3. 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, 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.

4. 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.

5. 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.

6. The Court shall retain jurisdiction to hear any matters or disputes arising from or relating to the Agreed Order of Dismissal.