Case No. 02-B02474 (Jointly Administered)United States Bankruptcy Court, N.D. Illinois, Eastern Division
February 24, 2003
John Wm. Butler, Jr., J. Eric Ivester, Mark A. McDermott, SKADDEN, ARPS, SLATE, MEAGHER FLOM (ILLINOIS), Chicago, IL; Attorneys for Debtors and Debtors-in-Possession.
Frederick B. Adams, II, Marcus E. Hays, Sr., CRUMLEY ASSOCIATES, P.C., High Point, NC; Attorneys for Duane F. Proffitt.
AGREED ORDER BETWEEN DEBTORS AND DUANE F. PROFFITT TO MODIFY AUTOMATIC STAY
SUSAN PIERSON SONDERBY, United States Bankruptcy Judge
This Agreed Order is entered into and submitted to the Court in accordance with the agreement of Kmart Corporation (“Kmart”) and certain of its subsidiaries (the “Affiliate Debtors”), debtors and debtors-in-possession in the above-captioned cases (Kmart and the Affiliate Debtors collectively, the “Debtors”) and Duane F. Proffitt (“Proffitt”), in resolution of Proffitt’s Motion for Relief from the Automatic Stay (Docket No. 8343) (the “Motion”), as signified by the signatures of counsel below, to a modification of the automatic stay, as sat forth herein; it appearing to the Court that the relief should be granted,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:
1. Proffitt has exhausted that certain personal injury settlement procedure approved by this Court on July 17, 2002 (Docket No. 4944), as modified on August 29, 2002 (Docket No. 6190).
2. The automatic stay provision of 11 U.S.C. § 362(a), with respect to certain personal injury claims of Proffitt against Kmart that allegedly occurred on October 30, 1998, at the Kmart store located at 1403 Nath Kings Highway, Myrtle Beach, South Carolina (the “Claims”), is hereby modified in accordance with the terms set forth in this Agreed Order.
3. The automatic stay is partially lifted (i) to permit Proffitt to prosecute the Claims in the General Court of Justice, Superior Court Division, Guilford County, North Carolina and to proceed to a final judgment or settlement; and (ii) to permit Proffitt to attempt to perfect, finalize and enforce any liquidated, final judgment or settlement from any insurance coverage that is available to satisfy the Claims.
4. Notwithstanding anything in this Agreed Order to the contrary, the automatic stay remains in effect with respect to any and all actions by Proffitt to execute on any final judgment or settlement against the Debtors’ estates.
5. Nothing in this Order shall be deemed an admission of fact on the part of the Debtors with respect to the Claims or any facts alleged in the Motion.
6. This Court shall retain jurisdiction to hear any matters or disputes arising from or relating to this Agreed Order,