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

Case No. 02-02474 (Jointly Administered).United States Bankruptcy Court, N.D. Illinois, Eastern Division.
September 27, 2004

Andrew Goldman, Esq., Wilmer Cutler Pickering Hale Dorr, LLP, New York, New York, Attorneys for Kmart Corporation.

Alan D. Levy, Esq., Pittsburgh, PA, Attorney for Avis Gist.

AGREED ORDER BETWEEN KMART AND AVIS GIST
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 Avis Gist(“Gist”), in resolution of the request of Gist for this Court to deem Gist’s Claim Number 55948 as being timely filed; it appearing to the Court that the relief should be granted,

IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:

1. On July 28, 2003, Gist filed an Administrative Expense Claim Request Form (the “Claim”) with the Debtors’ claims agent, Trumbull Services, LLC with respect to certain alleged personal injury claims arising from Gist’s alleged injury on August 27, 2002 at the Kmart store located at 1650 General Booth Blvd, Virginia Beach, VA, 23454. Upon consideration of Kmart’s Fourteenth Omnibus Objection to Claims (Docket No. 18473) (the “Objection”), this Objection shall be continued for a status hearing with respect to the Claim, in accordance with the Order Granting the Fourteenth Omnibus Objection (Docket No. 20727) (“Fourteenth Omnibus Order”). Kmart will be considered to have made an objection as the amount of the Claim.

2. Except as provided in paragraph 1 of this order, Kmart expressly reserves all rights to challenge the validity, priority and amount of the Claim, and to pursue any other claims, causes of action or potential offsets against the Claim.

3. Kmart reserves all of its rights set forth in the Amended Order Approving the Procedures for (a) Liquidating and Settling Post-petition Personal injury Claims through Direct

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Negotiation and/or Alternative Dispute Resolution and/or (b) Modifying the Plan Injunction to Permit Litigation with Respect to Such Claims to Proceed After Exhaustion of the Procedures (Docket No. 17525) (the “Administrative Personal Injury Procedures Order”). As set forth in the Administrative Personal Injury Procedures Order, Gist recognizes that Kmart has objected to all post-petition personal injury claims alleged to have been incurred between January 22, 2002, and May 6, 2003 (the “Administrative Personal Injury Claims”).

4. 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.

5. This Court shall retain jurisdiction to hear any matters or disputes arising from or relating to this Agreed Order.

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