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 (Illinois), Chicago, Illinois, Attorney for the Debtors.
Scott Schreiber, Much Shelist Freed Denenberg Ament
Rubenstein, P.C., Chicago, Illinois, Attorneys for Claimant.
John C. Tishler, pro hac vice, Robert A. Guy, Jr., pro hac vice, Waller Lansden Dortch Davis, Nashville, Tennessee, Attorneys for Claimant.
STIPULATION AND AGREED ORDER TEMPORARILY ALLOWING CLAIMS OF THE BANK OF NEW YORK AND ANY TRUST COMPANY OF MISSOURI 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 The Bank of New York and BNY Trust Company of Missouri (collectively, the “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 (I) 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 or Innisfree MA on or before April 4, 2003;
WHEREAS, Claimant filed a Rule 3018 Motion on March 28, 2003 (Docket No. 9725), seeking temporary allowance of the claims filed by Claimant (the “BONY Claims”) for voting purposes only; 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 BONY Claims against the Debtors, which are listed in the table appearing asExhibit A to this Order, solely for the purpose of voting on the Plan; provided that ultimate allowance or disallowance of the BONY Claims, shall remain subject to further objections.
NOW, THEREFORE, the Debtors and the Claimant agree as follows:
1. Claimant shall be temporarily deemed to hold a claim allowable solely for he purpose of voting on the Plan, pursuant to the Solicitation Procedures Order, as a Class 5 Claimholder in the amounts and against the debtors set forth in the table appearing as Exhibit A to this Order.
2. This stipulation is being executed only for the purpose of allowing the Claimant to vote, pursuant to the Solicitation Procedures Orders, on the Plan. Nothing herein shall be deemed to be a determination of any of the BONY 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 BONY Claims, including, without limitation, as to the amount, extent, validity or priority of any the BONY Claims.
EXHIBIT A
Claim Number Debtor Amount of Claim
37886 Kmart Corporation $7,871,092.03 37891 Builders Square, Inc. $2,369,623.00 37887 Kmart Corporation $7,823,260.63 37890 Builders Square, Inc. $2,355,282.00 37888 Kmart Corporation $3,542,806.86 37892 Builders Square, Inc. $1,196,807.50 31510 Kmart Corporation $3,861,697.13 31518 Kmart Corporation $318,669.00 31519 Builders Square, Inc. $318,669.00 31524 Kmart Corporation $1,201,992.84 31516 Kmart Corporation $243,400.38 31509 Kmart Corporation $1,643,009.43 31514 Kmart Corporation $3,969,833.00 31513 Kmart Corporation $573,983.92 31523 Kmart Corporation $1,406,626.53 31508 Kmart Corporation $6,061,653.06 31511 Kmart Corporation $99,923.86