Case No. 02 B 02474 (Jointly Administered).United States Bankruptcy Court, N.D. Illinois, Eastern Division.
August 13, 2004
AGREED ORDER RE: CLAIM NOS. 45580 AND 45583 OF CONTINENTAL PROPERTIES COMPANIES, INC., ET AL.
SUSAN SONDERBY, Chief Judge, Bankruptcy
Upon consent of Kmart Corporation and certain of its subsidiaries and affiliates, former debtors and debtors-in-possession in the above-captioned cases (collectively, “Kmart”), on the one hand, and Continental Properties Companies, Inc., Continental 107 Fund Ltd. and Continental 126 Fund Ltd., successor by merger to Continental 88 Fund, Ltd. (collectively, “Continental”), on the other; and it appearing that Continental filed Claim Nos. 45580 and 45583 (collectively, the “Claims”) seeking damages based on the following two theories: (i) claims for unpaid rent and related charges arising out of the rejection of the leases (the “Leases”) subject to the Claims as limited by Section 502(b)(6) of the Bankruptcy Code (the “Section 502(b)(6) Claims”) and (ii) damages arising out of the partial construction of the premises related to the Leases (the “Construction Claims”); and this Court having entered a May 14, 2004 order (the “May Order”) partially allowing the 502(b)(6) Claims as set forth therein and reserving Kmart’s rights to both dispute the remaining portion of the Section 502(b)(6) Claims and the Construction Claims;[1] and Continental having filed a motion for leave to amend the Claims (the “Motion”) on
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May 28, 2004; and it appearing that this Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334; and it appearing that this proceeding is a core proceeding under 28 U.S.C. § 157(b)(2); and upon due consideration;
IT IS HEREBY:
ORDERED that Claim No. 45580 shall be amended to state a Section 502(b)(6) Claim for annual rent charges of (i) $181,590.72 for real estate taxes, (ii) $11,470 for property taxes, and (iii) $20,945 for common area maintenance charges, for a total claim of $642,020.16 after application of the Bankruptcy Code Section 502(b)(6) cap (and after consideration of the partial allowance provided in the May Order);
ORDERED that Claim No. 45583 shall be amended to state a Section 502(b)(6) Claim for recurring other rent annual charges of (i) $115,148 for real estate taxes and (ii) $10,591 for insurance costs, for a total claim of $377,217 after application of the Bankruptcy Code Section 502(b)(6) cap (and after consideration of the partial allowance provided in the May Order);
ORDERED that no further amendments of the Claims shall be permitted;
ORDERED that Kmart reserves all of its rights to challenge the amount, priority and validity of these amended Claims Nos. 45580 and 45583, other than with respect to the amounts partially allowed under the May Order; and
ORDERED that the Court retains exclusive jurisdiction over the interpretation and enforcement of this Order.
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