(Jointly Administered) Case No. 02-02474.United States Bankruptcy Court, N.D. Illinois, Eastern Division.
July 29, 2004
Andrew Goldman, Esq., Eric R. Markus, Esq., Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York. Attorneys for Kmart Corporation.
Sabrina C. Beavens, Esq., Turillo Associates, P.A., St. Petersburg, FL, Attorney for Joseph Andro.
AGREED ORDER BETWEEN KMART AND JOSEPH ANDRO
SUSAN SONDERBY, Chief Judge, Bankruptcy
This Agreed Order is entered into and submitted to the Court in accordance with the agreement of Kmart Corporation and certain of its subsidiaries, former debtors and debtors-in-possession in the above-captioned cases (collectively, “Kmart”) and Joseph Andro (“Claimant”), in resolution of Claimant’s Motion to Vacate Order of April 1, 2004 as to the Claim of Joseph Andro and to Enforce the Agreed Order of January 28, 2004 (Docket No. 25282) (the “Motion”); it appearing to the Court that the relief should be granted,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:
1. The Order Disallowing and Expunging or Otherwise Reducing or Reclassifying Certain Claims Set Forth in the Twenty-First Omnibus Objection (Certain Personal Injury and Other Claims) dated April 1, 2004 is modified as stated herein as to the claim of Joseph Andro.
2. Claimant shall be deemed to have made a timely response to the Reorganized Debtors’ Twenty-First Omnibus Objection to Claims (Certain Personal Injury And Other Claims) (Docket No. 20651) (the “Twenty-First Omnibus Objection”)
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(the “Response”). The dollar amount of Claimant’s claim, (claim no. 45747) (the “Claim), shall be as determined (a) as agreed upon by Kmart and Claimant or (b) final order in the litigation related to the Claim, currently pending in the Circuit Court, State of Florida, Docket No. 2003-11274-CIDL (the “Litigation”).
3. Claimant 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).
4. The automatic stay provision of 11 U.S.C. § 362(a) (the “Automatic Stay”) and the plan injunction, which became effective as of May 6, 2003, the effective date of the Kmart’s First Amended Joint Plan of Reorganization, pursuant to Article 12.11 thereof and 11 U.S.C. §§ 524 and 1141 (the “Plan Injunction”) with respect to the Litigation are hereby modified nunc pro tunc to July 23, 2003 in accordance with the terms set forth in this Agreed Order.
5. The Automatic Stay and the Plan Injunction are partially lifted to permit the Litigation to proceed and continue to a final judgment or settlement.
6. Notwithstanding anything in this Agreed Order to the contrary, the Automatic Stay and the Plan Injunction shall remain in effect with respect to any and all actions by Andro to execute on any final judgment or settlement against Kmart, the Kmart estates, the reorganized debtors, or any of their property.
7. Nothing in this Agreed Order shall be deemed an admission of fact on the part of Kmart with respect to the Claim or any facts alleged in the Motion or in the Litigation, nor shall anything in this Agreed Order be construed as a waiver of any of Kmart’s defenses or arguments in the Litigation. Kmart expressly reserves all rights to
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challenge the validity, priority and amount of the Claim, and to pursue any other claims, causes of action or potential offsets against the Claim.
8. The relief obtained herein shall not limit any right Claimant may have to seek payment from other parties or from any source of insurance.
9. This Court shall retain jurisdiction to hear any matters or disputes arising from or relating to this Agreed Order.