Case No. 02-B02474, (Jointly Administered).United States Bankruptcy Court, N.D. Illinois, Eastern Division.
July 2, 2003.
John Wm. Butler, Jr., J. Eric Ivester, Mark A. McDermott, Skadden, Arps, Slate, Meagher Flom, Chicago, Illinois, Attorneys for the Debtors.
Peter J. Roberts, D’Ancona Pflaum LLC, Chicago, Illinois, Attorney for Claimant.
Robert B. Kaplan, Nicolas De Lancie, Jeffer, Mangels, Butler
Marmaro LLP, San Francisco, California, Attorneys for Claimant.
STIPULATION AND AGREED ORDER TEMPORARILY ALLOWING CLAIM OF WELLS FARGO BANK MINNESOTA, N.A., AS TRUSTEE, ACTING BY AND THROUGH ITS SPECIAL SERVICER ORIX CAPITAL MARKETS, LLC, SOLELY FOR THE PURPOSE OF VOTING ON THE FIRST AMENDED JOINT PLAN OF REORGANIZATION OF KMART CORPORATION AND ITS AFFILIATED DEBTORS AND DEBTORS-IN-POSSESSION
SUSAN PIERSON SONDERBY, United States Bankruptcy Judge
Kmart Corporation and certain of its domestic subsidiaries and affiliates, debtors and debtors-in-possession in the above-captioned cases (the “Debtors”) and Wells Fargo Bank Minnesota, NA., as trustee, acting by and through its special servicer Orix Capital Markets, LLC (“Claimant”), hereby agree and stipulate as follows:
WHEREAS, the Debtors filed their First Amended Joint Plan of Reorganization of Kmart Corporation and its Affiliated Debtors and Debtors-In-Possession dated February 25, 2003 (as modified, the “Plan”);
WHEREAS, the Court entered an Order Approving (1) Disclosure Statement; (II) Record Date, Voting Deadline and Procedures for Temporary Allowance of Certain Claims; (III) Procedures for Filing Objections to Plan; (IV) Solicitation Procedures for Confirmation; and (V) Hearing Date to Consider Confirmation of the Plan (Docket No. 8887) (the “Solicitation Procedures Order”) on February 25, 2003;
WHEREAS, pursuant to the Solicitation Procedures Order, eligible voters must return their ballots to Trumbull Bankruptcy Services on or before April 4, 2003;
WHEREAS, the Debtors are party to certain leases, and Claimant has asserted contingent lease rejection claims against certain of the Debtors regarding those leases, with respect to the following properties in the following amounts: (a) Store No. 4237 in Durham, North Carolina in the amount of $222,990.00 (the “Durham Claim”); (b) Store No. 4302 in Galveston, Texas in the amount of $953,170.35 (the “Galveston Claim”); (c) Store No. 4922 in West Monroe, Louisiana in the amount of $3,387,267.53 (the “Monroe Claim”); and (d) Store No. 3545 in Norcross, Virginia in the amount of $417,696.00 (the “Norcross Claim” and, together with the Durham Claim, the Galveston Claim and the Monroe Claim, the “Claims”);
WHEREAS, Claimant filed Rule 3018 Motions on March 28, 2003 (Docket Nos. 9700, 9702, 9704 and 9720), seeking temporary allowance of the Claims for voting purposes only;
WHEREAS, the Debtors filed an Omnibus Objection to the Claimant’s Rule 3018 Motions on April 9, 2003 (Docket No. 10292); and
WHEREAS, the Debtors and Claimant wish to enter into an agreement pursuant to Rule 3018 of the Federal Rules of Bankruptcy Procedure temporarily allowing the Claims solely for the purpose of voting on the Plan; provided that ultimate allowance or disallowance of the Claims shall remain subject to further objections.
NOW, THEREFORE, the Debtors and the Claimant agree as follows:
1. With respect to the Durham Claim, Claimant shall be temporarily deemed to hold a claim allowable solely for the purpose of voting on the Plan, pursuant to the Solicitation Procedures Order, as a Class 5 Claimholder in the amount of $222,990.00 against Kmart Corporation, case number 02-02474.
2. With respect to the Galveston Claim, Claimant shall be temporarily deemed to hold a claim allowable solely for the purpose of voting on the Plan, pursuant to the Solicitation Procedures Order, as a Class 5 Claimholder in the amount of $953,170.35 against Kmart of Texas LP, case number 02-02466.
3. With respect to the Monroe Claim, Claimant shall be temporarily deemed to hold a claim allowable solely for the purpose of voting on the Plan, pursuant to the Solicitation Procedures Order, as a Class 5 Claimholder in the amount of $3,381,267.53 against Kmart Corporation, case number 02-02474.
4. With respect to the Norcross Claim, Claimant shall be temporarily deemed to hold a claim allowable solely for the purpose of voting on the Plan, pursuant to the Solicitation Procedures Order, as a Class 5 Claimholder in the amount of $417,696.00 against Kmart Corporation, case number 02-02474.
5. This stipulation is being executed only for the purpose of allowing the Claimant to vote, pursuant to the Solicitation Procedures Order, on the Plan. Nothing herein shall be deemed to be a determination of any of the Claims against the Debtors, or the Debtors’ objection thereto, for any other purpose, including, without limitation, with respect to entitlement to distributions under the Plan, or an admission, release or waiver with respect to any of the Claims, including, without limitation, as to the amount, extent, validity or priority of any of the Claims.