In re: KMART CORPORATION, et al, Chapter 11, Debtors

Case No. 02-B02474, Jointly AdministeredUnited States Bankruptcy Court, N.D. Illinois
November 5, 2003

AGREED ORDER CONCERNING CURE CLAIM OF KINGSLAND DEVELOPMENT COMPANY. LP (STORE NO. 39991)
SUSAN SONDERBY, Chief Judge, Bankruptcy

Kingsland Development Company, LP (“Kingsland”) and Kmart Corporation, et al. (“Debtors”), having agreed as follows:

A. That the Debtors assumed a certain unexpired lease of non-residential real property pursuant to their confirmed plan of reorganization. The real property owned is located at 1601 Highway 40 East, Kingsland, Georgia, and is owned by Kingsland. The Kmart designation for this property is Store No. 3991,

B. That on or about June 19, 2003, Kingsland timely filed its cure claim in the total amount of $65,232.21 (the “Cure Claim”).

C. That on or about August 19, 2003, the Debtors objected to a portion of Kingsland’s Cure Claim, asserting that the appropriate value of the Cure Claim was $59,101.40.

D. That on August 22, 2003, the Debtors filed their objection (the Twelfth Omnibus Objection to Claims) to the prepetition lease claim of Kingsland, arguing that the assumption of

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the Kingsland lease and an agreement between the Debtors and Kingsland extinguish Kingsland’s prepetition claim. Kingsland timely filed a response to said objection indicating Kingsland’s agreement that the prepetition claim would be subsumed into the cure claim (upon payment of same; that Kingsland was only entitled to one satisfaction of the claimed amount; and that upon payment of the cure claim, that both Kingsland’s prepetition and cure claim claims would be fully and finally satisfied.

E. That on September 23, 2003 Kingsland appeared, by and through one of its counsel, David Newby of McCarthy Duffy, Chicago Illinois, at hearing on Debtor’s August 22, 2003 Twelfth Omnibus Objection to Claims, and at such hearing Debtor was ordered to make a good faith effort to pay undisputed portions of the Cure Claims to Landlords by October 24, 2003, Kingsland being one of those debtors who appeared at such hearing is owed the undisputed portion of its Cure Claim in the amount of $59,101,40 by October 24, 2003.

K. That the parties have decided to resolve the above-mentioned issues, that the parties have the requisite authority to enter into the foregoing stipulations and to agree to the entry of the order and hereby respectfully request that the Court enter the Agreed order as recited below.

UPON THE PARTIES’ AGREEMENT AS CONTAINED HEREIN, IT IS HEREBY ORDERED THAT:

1. The Cure Claim of Kingsland as recited above is allowed in the amount of $59,101.40.

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2. Pursuant to the provisions of the Debtors’ confirmed plan of reorganization, the Debtors shall pay or cause to be paid said Cure Claim in the amount of $59,101,40 to Kingsland within 10 business days of the entry of this order.

3. Effective upon the payment of the Cure Claim as provided in paragraphs 1 and 2 above, the prepetition claim of Kingsland is subsumed into Kingsland’s cure claim and both the prepetition claim and the Cure Claim arc deemed fully paid and satisfied upon such payment by Debtors of the Cure Claim in the amount of $59,101.40.

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