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, Attorneys for the Debtors.
Rosanne Ciambrone, John Collen, Duane Morris LLC, Chicago, Illinois, Attorneys for Claimant.
Margery Reed, Duane Morris LLC, Philadelphia, Pennsylvania, Attorney for Claimant.
STIPULATION AND AGREED ORDER TEMPORARILY ALLOWING CLAIM OF GMAC COMMERCIAL MORTGAGE CORPORATION, AS SERVICER, 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 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 GMAC Commercial Mortgage Corporation, as servicer, special servicer, and agent for the servicer, under various Pooling and Servicing Agreements and/or Trusts (“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, on February 25, 2003, the Debtors filed (Docket No. 8886) the Debtors’ Third Omnibus Objection to Claims Under 11 U.S.C. § 102(1), 105(a) and 502(b) and F.R.Bankr.P. 3007
(the “Third Omnibus Objection”), objecting to, among others, the claims filed by Claimants against the Debtors, which are listed in the table appearing as Exhibit A to this Order;
WHEREAS, pursuant to the 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”), any holder of claim against which the Debtors filed an objection to expunge or disallow such claim shall not be entitled to vote on the Plan and shall not be counted in determining whether the requirements of Section 1126(c) of the Bankruptcy Code have been meet with respect to the Plan (except to the extent and in the manner as may be set forth in the objection) (a) unless the claim has been temporarily allowed for voting purposes pursuant to Bankruptcy Rule 3018(a) and in accordance with the Solicitation Procedures Order or (b) except to the extent that, on or before April 4, 2003, the objection to such claim has been resolved in favor of the creditor asserting the claim;
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 (the “Claims”) against certain of the Debtors regarding those leases in the amounts listed in the table appearing as Exhibit A to this Order;
WHEREAS, Claimant filed Rule 3108 Motions on March 28, 2003 (Docket Nos. 9732, 9742, 9743, 9745, 9746, 9747, 9748, 9749, 9750, 9751, 9752, 9753, 9754, 9755, 9756, 9757, 9758, 9759, 9760, 9761, 9762, 9763, 9764, 9766, 9767, 9768, 9769, 9770, 9771, 9773 and 9787), seeking temporary allowance of the 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 Claims solely for the purpose of voting on the Plan; provided that ultimate allowance or disallowance of the Claims shall remain subject to the resolution of the Third Omnibus Objection as such objection relates to the Claims, as well as any further objections to the Claims.
NOW, THEREFORE, the Debtors and the Claimant, agree as follows:
1. Claimants 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 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 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.
EXHIBIT A
Claim Number Debtor Amount of Claim
41205 Kmart Corporation $662,959.58 40724 Kmart Corporation $1,351,113.25 40718 Kmart Corporation $1,597,242.87 40893 Kmart Corporation $2,530,197.87 40894 Kmart Corporation $1,167,213.39 40898 Kmart Corporation $1,640,114.30 40895 Kmart Corporation $3,343,119.20 39718 Kmart Corporation $55,464.73 41203 Kmart Corporation $1,230,901.16 41072 Kmart Corporation $553,608.00 40930 Kmart Corporation $442,488.59 39760 Kmart Corporation $1,250,802.97 40900 Kmart Corporation $1,154,510.00 39756 Kmart Corporation $3,899,088.11 40936 Kmart Corporation $476,232.54 41216 Kmart Corporation $2,480,781.60 40276 Kmart Corporation $107,179.53 41054 Kmart Corporation $167,037.87 40829 Kmart Corporation $41,426.11 40298 Kmart Corporation $68,315.88 40922 Kmart Corporation $76,702.65 40197 Kmart Corporation $21.69 40831 Kmart Corporation $305,410.10 39757 Kmart Corporation $1,557,412.52 39722 Kmart Corporation $800,293.50 40921 Kmart Corporation $4,148,096.43 40714 Kmart Corporation $2,905,019.81 40919 Kmart Corporation $1,349,372.78 39769 Kmart Corporation $1,009,653.63 39719 Kmart Corporation $2,891,639.89 40296 Kmart Corporation $934,089.23 41206 Kmart Corporation $658,598.73