Case No. 02-02474 (Jointly Administered).United States Bankruptcy Court, N.D. Illinois, Eastern Division.
December 27, 2004
Andrew Goldman, Esq., Wilmer Cutler Pickering Hale and Dorr LLP New York, New York, Attorneys for Kmart Corporation
Albertina Webb, Esq. Ginarte, O’Dwyer Winograd, LLP New York, NY, Attorney for Ruth Simmons
AGREED ORDER BETWEEN KMART AND RUTH SIMMONS
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 Ruth Simmons (“Claimant”), in resolution of Claimant’s request for reconsideration of the Twenty-First Omnibus Objection to Claims (Certain Personal Injury And Other Claims) and Motion for Relief from the Automatic Stay and for Relief from Article 12.11 of the Kmart’s First Amended Joint Plan of Reorganization (Docket No. 25543) (“Motion”); it appearing to the Court that the relief should be granted,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:
1. 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”) (the “Response”). The dollar amount of Claimant’s claim, (claim no. 6764) (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 US District Court, Southern District, Federal Court in New York, NY, captioned Ruth Simmons v. Kmart Corporation, Case No. 01 CIV 0337 (the “Litigation”).
2. 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).
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3. 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 in accordance with the terms set forth in this Agreed Order.
4. The Automatic Stay and the Plan Injunction are partially lifted to permit the Litigation to proceed and continue to a final judgment or settlement.
5. Notwithstanding anything in this Agreed Order to the contrary, the Automattic Stay and the Plan Injunction shall remain in effect with respect to any and all actions by Claimant to execute on any final judgment or settlement against Kmart, the Kmart’s estates, the reorganized debtors, or any of their property.
6. 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 challenge the validity, priority and amount of the Claim, and to pursue any other claims, causes of action or potential offsets against the Claim.
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.
5. This Court shall retain jurisdiction to hear any matters or disputes arising from or relating to this Agreed Order.