SUSAN PIERSON SONDERBY, United States Bankruptcy Judge.
Upon the motion dated January 8, 2003 (the "Motion"), wherein Kmart Corporation ("Kmart") and certain of its domestic subsidiaries and affiliates, debtors and debtors in possession in the above-captioned cases (collectively, the "Debtors"), moved this Court for entry of an order under FED. R. BANKR. P. 9019 approving that certain settlement agreement between Kmart and J.W. Mitchell Company, LLC ("Landlord"), a copy of which is attached hereto as Exhibit 1 (the "Settlement Agreement") settling the dispute as to the grading and paving of certain vacant land to expand the parking lot at Kmart's leased premises located in Mira Loma, California and known as Kmart Store No. 8780 and as to certain post-petition obligations under that certain Standard industrial/Commercial Single-Tenant Lease-Net, dated September 1, 2001, by and between J.W. Mitchell Investment, predecessor-in-interest to Landlord, and Kmart; it appearing to the Court that (i) it has jurisdiction over the matters raised in the Motion pursuant to 28 U.S.C. § 157 and 1334; (ii) this is a core proceeding pursuant to 28 U.S.C. § 157 (b)(2); (iii) the relief requested in the Motion is in the best interests of the Debtors, their estates, and their creditors; (iv) proper and adequate notice of the Motion and the hearing thereon has been given and that no other or further notice is necessary; and (v) upon the record herein after due deliberation thereon, that the relief should be granted as set forth below,
1. The Debtors' decision to enter into the Settlement Agreement is reasonable under the circumstances; the Settlement Agreement is hereby approved, and the Debtors are authorized to comply with the terms of the Settlement Agreement. The Settlement Agreement is not deemed an assumption of the Lease or any other agreement.
2. The Court shall retain exclusive jurisdiction to resolve any dispute arising from or relating to the Settlement Agreement.
Exhibit 1 (Settlement Agreement) SETTLEMENT AGREEMENT
J.W. MITCHELL COMPANY, LLC, a California limited liability company (" Landlord"), and KMART CORPORATION, a Michigan corporation (" Kmart"), hereby stipulate and agree to the settlement agreement (this " Settlement Agreement") more fully set forth herein for good and valuable consideration, effective as of January 7, 2003 (the " Effective Date").
RECITALS
A. Landlord is the owner of a parcel of real property located in the County of Riverside, California, commonly known as 3100 Milliken Avenue, Mira Loma, California (the " Property"). The Property has been improved by, inter alia, a 759,260 square foot tilt-up building (the " Building"). The Property and the Building are collectively referred to herein as the " Premises".
B. In August of 2001, J.W. MITCHELL INVESTMENT ("Mitchell Investment"), Landlord's predecessor in interest, as lessor, and Kmart, as lessee, entered into that certain J.W. Mitchell Investment Standard Industrial/Commercial Single-Tenant Lease-Net (the " Lease").
C. Pursuant to the terms of the Lease, Kmart leased the Premises from Mitchell Investment for a period of fifteen (15) years.
D. Kmart filed a petition under Chapter 11 of the United States Bankruptcy Code on January 22, 2002 (the " Petition Date"), and since this date Kmart has continued to occupy the Premises as lessee.
E. Landlord alleged that, as of the Petition Date, Kmart was in default under the terms of the Lease, having failed to pay certain charges due under the Lease.
F. A part of the vacant land area within the Premises is subject to a recorded utility casement (the " Easement Agreement") in favor of Southern California Edison, a California utility ("SCE"). The area of the Premises that is subject to the easement (the " Easement Area") has not been paved, and is subject to certain restrictions as set forth in the Easement Agreement.
G. Pursuant to the terms of a letter agreement entered into by and between Landlord and SCE dated November 30, 2001 (the " SCE Agreement"), Landlord obtained the right to grade and pave the Easement Area, and also obtained the limited right to use this area. A true and correct copy of the SCE Agreement is attached hereto as Exhibit "1".
H. After the Petition Date, Kmart advised Landlord that it desired to grade and pave the Easement Area (the " Grading Work") in accordance with the Grading Plan attached hereto as Exhibit "2" (the " Grading Plan"), and to use this area as a temporary storage area for tractor trailers. In response to this proposal, Landlord proposed the parties enter into an amendment to the Lease (the " Lease Amendment") governing the performance of the Grading Work, adequately protecting Landlord from claims arising from the Grading Work, and governing the future use of the Easement Area.
I. in October of 2002, negotiations between Landlord and Kmart regarding the Lease Amendment reached an impasse, and Kmart initiated the Grading Work, contending that Landlord's consent was not necessary under the terms of the Lease.
J. In response to the initiation of the Grading Work without its consent, Landlord filed a complaint against Kmart in the United States Bankruptcy Court, initiating Adversary No. 02-A01206 (the " Adversary"). In the Adversary, Landlord sought, inter alia, a judgment declaring and confirming its rights under the Lease, granting a preliminary injunction enjoining Kmart from proceeding with the Grading Work, and directing Kmart to cure certain post-petition arrearages alleged to be due under the Lease. Concurrently with the filing of the Complaint, Landlord filed a motion seeking a temporary restraining order.
K. After the Adversary was filed the parties participated in a mediation and engaged in settlement negotiations. By and through these efforts the parties have reached a settlement that resolves all issues relating to the Grading Work and the use of the Easement Area, and that provides for the cure of certain post-petition obligations due and payable under the Lease.
SETTLEMENT AGREEMENT
1. Landlord shall withdraw, and is hereby deemed to have withdrawn, with prejudice, the Adversary on the basis of this Settlement Agreement. However, the foregoing dismissal shall not constitute a determination regarding the meaning of any provision in the Lease, or a waiver of any rights under the Lease, except as expressly provided herein. Landlord agrees that it shall not further prosecute the Adversary and that it shall promptly take all actions necessary and file documents and pleadings with the Bankruptcy Court to effectuate the dismissal, with prejudice, of the Adversary, including the filing, at the time of the submittal of the order approving this Settlement Agreement, a stipulation providing for the voluntary dismissal of the Adversary in the form attached hereto as Exhibit "3".
2. Within five (5) business days after the entry of the Bankruptcy Court order approving this Settlement Agreement, Kmart shall pay all of its costs and expenses incurred or arising in connection with the Grading Work prior to the Effective Date and shall obtain and deliver to Landlord Waiver and Release in the form(s) required pursuant to California Civil Code Section 3262 (" Waiver and Release") from its general contractor and any subcontractors performing work in connection with the Grading Work prior to the Effective Date.
3. After the Effective Date Landlord shall complete the remainder of the Grading Work in a diligent manner and in accordance with the terms and conditions set forth in the Grading Plan and the SCE Agreement (the " Final Grading Work"). The parties may mutually expand the scope of the Final Grading Work (to include such items as additional electrical, striping, landscaping, concrete dolly pads and construction of a guard house together with related utility lines) by entering into written change order(s) (each a " Change Order" and collectively, " Change Orders"). All plans and specifications with respect to each Change Order shall be subject to Landlord's review and reasonable approval; provided, however, that Landlord acknowledges that Landlord has approved the plans and specifications previously submitted by Kmart for the construction of a guard house together with related utility lines. The increased cost resulting from each Change Order payable by Kmart shall not exceed Landlords actual cost, without mark-up. Subject to any prevention, delay or stoppage due to inclement weather, strikes, lockouts, labor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes therefor, governmental restrictions, governmental regulations, governmental controls, judicial orders, enemy or hostile governmental action, terrorism, civil commotion, fire or other casualty, and other causes beyond the reasonable control of Landlord, Landlord shall use its best commercially reasonable efforts to substantially complete the Final Grading Work on or before January 31, 2003.
4. Upon completion of the Final Grading Work, Kmart may use the Easement Area for parking, as a storage area for tractor trailers and otherwise in accordance with the terms and conditions of the Lease and the SCE Agreement.
5. Kmart shall pay the cost of the Final Grading Work by depositing the sum of Two Hundred Eighty-Five Thousand Five Hundred Eight and 86/100 Dollars ($285,508.86) (the " Construction Funds") into an escrow account with an escrow agent designated by Landlord (the " Escrow Agent"), within five (5) business days after the Effective Date. These funds shall be disbursed to Landlord in accordance with this Section 5. Upon completion of construction of the Final Grading Work, Landlord shall deliver to the Escrow Agent and to Kmart a copy of (i) a written confirmation from SCE of the completion of the Final Grading Work in accordance with the terms and conditions of the SCE Agreement, (ii) a written confirmation from the general contractor of the completion of the Final Grading Work in accordance with the terms and conditions of the Grading Plan, (iii) a Waiver and Release executed by the general contractor and any subcontractors performing work in connection with the Final Grading Work, (iv) copies of invoice(s) evidencing the costs and expenses incurred by Landlord in connection with the Final Grading Work, and (v) written confirmation from the County of Riverside (the " County") evidencing the County's approval of the Final Grading Work. Upon receipt of all of the documents described in (i) through (v) above, Escrow Agent shall disburse to Landlord from the Construction Funds the amounts sufficient to cover the total amount of the invoices provided by Landlord. To the extent the Construction Funds exceed the total amount of the invoices provided by Landlord, such excess funds shall be disbursed to Kmart. Landlord agrees and acknowledges that Kmart shall have no obligation to reimburse Landlord for any costs and/or expenses incurred in connection with the construction of the Final Grading Work in excess of the Construction Funds (except as provided for in Change Orders) and that Landlord shall be solely responsible for such amounts.
6. Landlord hereby agrees and acknowledges that Landlord shall enforce the warranties and/or guaranties provided by any contractors performing work in connection with the Final Grading Work (including, without limitation, the work performed pursuant to any Change Order) upon the written request of Kmart.
7. Kmart shall remit to Landlord the sum of Sixty-Two Thousand Dollars ($62,000.00) to cure the post-petition payables (the " Post-Petition Payables") within five (5) business days after the entry of the Bankruptcy Court order approving this Settlement Agreement. The parties hereby agree and acknowledge that the Post-Petition Payables do not include any amounts for management fees, which the parties agree are not an expense that is the responsibility of Kmart under the Lease. Notwithstanding the foregoing, Kmart remains liable for its obligation to pay Landlord's consulting, engineering and/or other fees expressly provided for in the Lease, including, without limitation, those fees described in Sections 6.2(c), 6.3, 6.4, 8.7, 31 and/or 36 of the Lease; provided, however, Landlord acknowledges that, upon performance by Kmart of its obligations under this Settlement Agreement, all post-petition amounts due under any such provisions shall be deemed satisfied up to the Effective Date.
8. Kmart shall pay to Landlord the sum of Thirty-Five Thousand Dollars ($35,000.00) for the fees and costs incurred by Landlord's professionals in this matter within five (5) business days after the entry of the Bankruptcy Court order approving this Settlement Agreement.
9. Effective as of the Effective Date, Landlord and its agents, successors and assigns, shall be deemed to have released and forever discharged Kmart and its agents, attorneys, employees, successors, and assigns, from any and all claims, demands, controversies, actions, causes of action, suits, proceedings, obligations, liabilities, fines, penalties, costs, expenses, attorneys' fees, and damages of whatsoever character, nature or kind, in law or in equity, whether known or unknown, fixed or contingent, and liquidated or unliquidated that arise out of the Gradading Work and the Adversary, but excluding Krnart's obligation(s) to maintain the Final Grading Work in the same manner Kmart is obligated to maintain the Premises under the terms of the Lease as amended by this Settlement Agreement and excluding the obligations established herein. Landlord also acknowledges and agrees that (i) upon payment of the Post-Petition Payables in accordance with this Settlement Agreement, there shall be no other amounts due and owing from Kmart under the Lease through the Effective Date except for amounts which became due and owing or otherwise accrued prior to the Petition Date and (ii) upon satisfaction of its obligations under this Settlement Agreement, Kmart shall be deemed to be in compliance with all of the terms and conditions of the Lease with respect to the Grading Work and Kmart's post-petition payment obligations under the Lease up to the Effective Date, and no default shall exist under the Lease which is the result of Kmart's actions or inactions with respect to the Grading Work and/or Kmart's post-petition payment obligations under the Lease up to the Effective Date.
It is Landlord's intention that the foregoing release shall be effective as a bar to all matters released herein. In furtherance, and not in limitation of such intention, the release described herein shall remain in effect as a full and complete release, notwithstanding the discovery or existence of any additional information or different facts or claims. To further effectuate this intention, Landlord hereby waives its rights under § 1542 of the California Civil Code, and any statute, rule, or legal doctrine similar to California Civil Code § 1542. Section 1542 provides:
"A general release does extend to claims which the creditor does not know or suspect exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
In waiving the provisions of § 1542 of the California Civil Code, Landlord acknowledges that it may hereafter discover facts in addition to or different from those which it now believes to be true with respect to the matters released herein, but agrees that it has taken that possibility into account in reaching this Settlement Agreement, and that the release given here shall remain in effect as a full and complete release notwithstanding the discovery or existence of such additional or different facts, as to which Landlord expressly assumes the risk.
10. Effective as of the Effective Date, Kmart and its agents, attorneys, employees, successors, and assigns, shall be deemed to have released and forever discharged Landlord and its agents, attorneys, successors and assigns, from any and all claims, demands, controversies, actions, causes of action, suits, proceedings, obligations, liabilities, fines, penalties, costs, expenses, attorneys' fees, and damages of whatsoever character, nature or kind, in law or in equity, whether known or unknown, fixed or contingent, and liquidated or unliquidated that relate to the Grading Work or the Adversary, but excluding the obligations of Landlord established herein,
It is the intention of Kmart that the foregoing release shall be effective as a bar to all matters released herein. In furtherance, and not in limitation of such intention, the release described herein shall remain in effect as a full and complete release, notwithstanding the discovery or existence of any additional information or different facts or claims. To further effectuate their intention, Kmart hereby waives its rights under § 1542 of the California Civil Code, and any statute, rule, or legal doctrine similar to California Civil Code § 1542. Section 1542 provides:
"A general release does extend to claims which the creditor does not know or suspect exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
In waiving the provisions of § 1542 of the California Civil Code, Kmart acknowledges that Kmart may hereafter discover facts in addition to or different from those which they now believe to be true with respect to the matters released herein, but agree that Kmart has taken that possibility into account in reaching this Settlement Agreement, and that the release given here shall remain in effect as a full and complete release notwithstanding the discovery or existence of such additional or different facts, as to which Kmart expressly assumes the risk.
11. This Settlement Agreement shall inure to the benefit of and be binding upon and enforceable against the parties hereto and their successors and assigns, including, without limitation, in the case of Kmart, any subsequently appointed estate representative under any Chapter of the United States Bankruptcy Code.
12. Each of the parties hereto agrees to execute and deliver, or cause to be executed and delivered, all such instruments, and to take all such actions as the other party may reasonably request which are reasonably necessary to effectuate the intent and purposes of this Settlement Agreement, all at the sole expense of the requesting party.
13. Except as otherwise expressly provided herein, the parties to this Settlement Agreement shall bear their own expenses and costs, including but not limited to attorneys' fees and court costs. However, in the event that either party to this Settlement Agreement is required to take legal action to enforce its terms, then said party shall be entitled to recover his attorneys fees and costs, if said party is the prevailing party.
14. The parties to this Settlement Agreement, and each of them, hereby represent and warrant that they have the full authority to execute this Settlement Agreement and to fully bind the respective parties to each and all of the terms and conditions set forth herein.
15. This Settlement Agreement constitutes a single, integrated written contract, expresses the entire agreement of the parties with respect to the subject matter of this Settlement Agreement, and supersedes all negotiations, prior discussions, and preliminary agreements.
16. This Settlement Agreement was jointly prepared through negotiations of the parties, and the provisions of this Settlement Agreement are not to be strictly or liberally construed for or as against any of the parties.
17. To the extent that the terms and conditions of this Settlement Agreement conflict with the terms and conditions of the Lease, the terms and conditions of this Settlement Agreement shall control.
18. The parties agree that this Settlement Agreement shall be interpreted and construed under the laws of the State of California.
19. This Settlement Agreement maybe executed in counterparts.
20. This Settlement Agreement is subject to the approval of the Bankruptcy Court, following notice to creditors and parties in interest, under the Bankruptcy Code and the rules promulgated thereunder, all as set forth more fully in the motion filed with the Bankruptcy Court to approve this Settlement Agreement Kmart shall file a motion on or before January 20, 2002 with the Bankruptcy Court seeking approval of this Settlement Agreement.
21. Landlord agrees and acknowledges that this Settlement Agreement is not intended, nor shall it be construed, as an assumption of the Lease. Kmart reserves the right to assume or reject the Lease in accordance with applicable bankruptcy laws.
IN WITNESS WHEREOF, the parties have executed this Settlement Agreement as of the date first written above.
DATED: January 7, 2002 J.W. MITCHELL COMPANY, LLC, a California limited liability company By:____________________________ Nicholas S. Mitchell, Manager
By:____________________________ Timothy S. Mitchell, Manager
DATED: January 7, 2002 KMART CORPORATION a Michigan Corporation
By: ____________________________ Name: MICHELLE H. GLUCK Title: Vice President, Assoc. General Counsel Asst. Secretary
EXHIBIT "1" SCE AGREEMENT [ATTACHED]
SOUTHERN CALIFORNIA EDISON An EDISON INTERNATIONAL Company
Mr. J.W. Mitchell November 30, 2001 J.W. Mitchell Investment 2 Corporate Park Suite 108 Irvine, CA 92606
Subject: Request for Grading, Paving, and Fencing J. W. Mitchell Investment Lugo-Mira Loma #2#3 500kV Lines E/O Milliken Ave S/O Mission Blvd. County of Riverside C.R.E. File No.: Con0137567
Reference a letter from Genie Sanders dated October 1, 2001, a letter from Genie Sanders to Mr. N.S. Mitchell of the Michell Company dated March 12, 2001, a letter from Genie Sanders to Mr. J.W. Mitchell Jr. dated May 16, 2000 acknowledged and signed by J.W. Mitchell Investment on June 14, 2000, a Recorded Consent Agreement of September 15, 1998, Plot Plan 15799, Grading Plan, Sheet 2 of 2 received from KCT Consultants dated June 6, 2001, Plot Plan 15799, Grading Plan, Sheet 2 of 2 received front KCT Consultants dated November 21, 2000, and Plot Plan 15799, Grading Plan, Sheet C-5 of 9 received from KCT Consultants dated October 20, 1999.
Edison has reviewed the proposed improvements to the subject easement area and determined that these improvements will not adversely affect the operation and maintenance of our transmission system. All items agreed to and all conditions previously acceded regarding this property still apply and must be strictly adhered to. This request is approved subject to the following conditions:
1. At no time shall SCE's access to any pole or tower location be cut off during any temporary grading operation.
2. Existing SCE facilities shall be protected in place. Prior to starting work, Transmission Design and Right of Way shall be notified of the intended method of protection. Transmission Design and Right of Way, Rialto, can be contacted at (909) 820-5478.
3. Final plans, including but not limited to grading plans, fencing plans, parking and stripping plans, electrical plans, and landscape and irrigation plans must be submitted to Transmission Design and Right of Way for approval at least 60 days prior to the commencement of any construction.
4. The construction area must be watered down periodically to prevent dust contamination of SCE Company insulators. Any maintenance required by SCE on its facilities over and above normal, and resulting from this operation, shall be paid for by J.W. Mitchell Investment.
5. J.W. Mitchell Investment agrees that all construction equipment, when not in use, shall be parked clear of SCE's right of way and rendered immobile.
6. All slopes within or adjacent "to the subject" sight of way shall not exceed a maximum slope of 2:1.
7. Fill shall be compacted throughout their full extent to a minimum of 90 percent of maximum dry density as determined by A.S.T.M. Soil Compaction Test D-1557-78 and inspected and approved by the Geotechnical Engineer.
8. No fill shall be placed until stripping of vegetation, removal of unsuitable soils, and installation of sub drains have been inspected and approved by the Geotechnical Engineer.
9. No rock or similar material greater than 6 inches in diameter will be placed in the fill unless recommendations for such placement have been submitted by the Geotechnical Engineer and approved in advance by Transmission Design and Right of Way.
10. The following specifications shall apply to access roads installed, reconstructed, relocated, or modified:
10.1. The road gradients shall be leveled by cut and fill operations such that any sustained grade does not exceed 12%.
10.2. The minimum road width shall be 16-feet measured inside the berrns, and shall be capable of supporting 40-tons on a three-axle truck.
10.3. The maximum cross-slope for all access roads shall not exceed 2% and shall slope to the inside.
11. All public or private streets that SCE will be using for access must be capable of supporting a gross load of 40-tons on a three-axle truck.
12. Double drive gates, 16 feet wide, must be installed at locations as shown on the attached print and must be capable of interlocking with SCE locks.
13. Adequate rounding must be provided on all fencing and metallic structures.
14. Parking of vehicles, including trailers on the right of way will be permitted in approved areas only and not directly under or within 10-feet of the conductor drip lines.
15. Parking shall not be allowed if it is a requirement to satisfy local zoning or city ordinances.
16. J.W. Mitchell Investment agrees that the approved parking is a temporary consent of rights and could be canceled due to the addition, improvement, expansion or repair of SCE's Communication, Distribution, and Transmission systems.
17. SCE reserves the right to terminate this Agreement for the construction, alteration, addition to, and replacement of communication, distribution, and transmission facilities after written notice to J.W. Mitchell Investment. In the event of such termination, SCE reserves the right to claim that any use of the Right of Way Area unreasonably interferes with or burdens SCE's use of the Transmission Right of Way.
18. J.W. Mitchell Investment hereby releases and discharges SCE from all claims and demands by J.W. Mitchell Investment for loss of or damage to J.W. Mitchell Investment property, and agrees to indemnify SCE against and to save SCE harmless from all costs and expenses, including attorney's fees, end all liability, and claims and demands of others (except employees of SCE) for loss of or damage to property, or injury to or death of persons, which may result directly or indirectly from the consenting, use of termination of, or operations under. this agreement, save and except any such loss of or damage to J.W. Mitchell Investment property and any such loss of or damage to property, or injury to or death of persons, resulting from the negligence of SCE. J.W. Mitchell Investment agrees to pay SCE in full and promptly upon demand for any and all loss of or damage to SCE's property caused by the tortuous conduct of J.W. Mitchell Investment (including negligence, intentional or willful acts, and acts in which there is a liability without fault) and resulting from or growing our of any operations of J.W. Mitchell Investment hereunder or in connection herewith, save and except any such loss or damage to SCE's property resulting from the tortuous conduct of SCE, (including negligence, intentional or willful acts, and acts in which there is liability without fault).
19. Flammable materials must not be stored on the right of way.
20. Staging of equipment or materials shall not be permitted within the SCE right of way.
21. Suitable identification markers shall be installed indicating the location and depth of any underground lines and/or pipelines.
22. Any landscaping and irrigation within the easement area must be approved by Transmission Design and Right of Way in writing prior to being installed.
23. The California Code of Regulations, Title 8, Article 37, Provisions for Preventing Accidents Due to Proximity to Overhead Lines, must be adhered to at all times.
24. The SCE Company shall be held harmless from any damage on or off the right of way resulting front the work being performed as described herein, and approval of these drawings by SCE does not relieve J.W. Mitchell Investing or its engineers from any liability arising out of their design or construction of the project.
25. All costs incurred for the proposed project shall be borne by J.W. Mitchell Investment.
26. This letter should not be construed as a subordination of SCE's right title and interest in and to its easements, nor should this letter be construed as a waiver of any of the contained in said easements or a waiver of any costs of relocation of affected SCE facilities.
27. We would appreciate the estimated project complete on date inserted in the spec provided below.
PROJECT COMPLETION DATE March 20, 2002 12-10-01
28. All notices required to be given to Edison herein shall be made in writing and shall be deposited in the United States mail, first class, postage prepaid, addressed as follows:
Southern California Edison Company Corporate Real Estate 1251 Francis Street Ontario CA 91761
29. Underground facilities installed on the Edison rigbt of way shall have a Minimum cover of three (3) feet and shall be capable of withstanding a gross load of forty (40) tons on a three axle truck.
Please contact Alex Sieck at (909)820-5478 a minimum of 48-hours prior to start of construction.
This agreement is personal to J.W. Mitchell Investment and is not transferable without Edison's prior written consent.
It is necessary that the use of land within an operating high voltage transmillion line right of way be closely coordinated. For this reason, it will be necessary for SCE to assume your project has been either delayed or cancelled in the event the copy of this letter has not been signed and returned within sixty (60) days from the date of this letter. Should this occur, any consent granted or implied is voided without further notice in order to protect our rights and facilities. If the project is Subseciently reactivated, please contact SCE again prior to the start of any construction, referencing our subject RP file number. We will then work together with you to ensure the project is coordinated so as to avoid interference with SCE installations and operations.
Please have J.W. Mitchell Investment sign and date the enclosed copy of this letter, thereby indicating acceptance of the above conditions, and return the signed copy to this office, using the enclosed envelope.
Edison appreciates the opportunity to review your plans and thanks you for your cooperation in coordinating your project with our company. If you have any questions please contact me @ 909-930-8570.
Robert R. Castillo Right of Way Agent Corporate Real Estate
Accepted and Approved. Dated 12-10-2001 J.W. Mitchell Investment By________________ Title President Gen. Manager
CC: A. Sieck W. Zimmerman T. Rigdon
EXHIBIT A
EXHIBIT B DRIVEWAY AND STORM DRAIN ACCESS
EXHIBIT "2" GRADING PLAN [ATTACHED]
EXHIBIT "3" STIPULATION DISMISSING ADVERSARY PROCEEDING [ATTACHED] UNITED STATES BANKRUPTCY COURT For The Northern District of Illinois Eastern Division Case No. 02-B02474 In re KMART CORPORATION, et. al. (Jointly Administered) Debtors Chapter 11
Judge Susan Pierson Sonderby
Adversary Proceeding No. 02-A01206
STIPULATION DISMISSING ADVERSARY PROCEEDING AND J.W. Mitchell Company. LLC, ORDER THEREON a California Limited Liability Company
Plaintiff
vs.
KMart Corporation, a Michigan Corporation
Defendant
STIPULATION DISMISSING ADVERSARY PROCEEDING AND [PROPOSED] ORDER THEREON
J.W. Mitchell Company, LLC, a California limited liability company, the plaintiff in the above adversary proceeding ("Landlord"), and KMart Corporation, a Michigan corporation, the defendant in the above adversary proceeding (the "Defendant"), hereby stipulate and agree as provided herein.
I RECITALS
A. Landlord is the owner of a parcel of real property located in the County of Riverside, California, commonly known as 3100 Miliken Avenue, Mira Loma, California (the "Property").
B. The Property is leased to KMart pursuant to the terms of that certain J.W. Mitchell Investment Standard Industrial/Commercial Single-Tenant Lease-Net (the "Lease") entered into by and between Landlord's predecessor-in-interest and KMart in August of 2001.
C. KMart filed a petition under Chapter 11 of the United States Bankruptcy Code on January 22, 2002 (the "Petition Date"), and since this date KMart has continued to occupy the Property as lessee.
D. After the Petition Date certain disputes arose between Landlord and KMart. These disputes included, but were not limited to KMart's alleged failure to pay certain post-petition obligations under the Lease and KMart's efforts to grade certain parts of the Property without Landlord's prior consent (the "Grading Work").
E. in response to the initiation of the Grading Work without its consent, Landlord filed a complaint against Kmart in the United States Bankruptcy Court, initiating the above referenced adversary proceeding (the "Adversary").
F. After the Adversary was filed, the parties entered into a mutually agreeable Settlement Agreement that settles or otherwise addresses the matters raised in the Adversary.
II STIPULATION
WHEREFORE, the parties stipulate and agree to dismiss to the Adversary with prejudice, subject to and on the conditions set forth in the Settlement Agreement entered into by and between the parties and approved by the Court.
DATED: January ___, 2003 Lindenbaum, Coffmanm, Kurlander, Brisky Grippo, Ltd.
By:__________________ Whitman Brisky, attorneys for the Plaintiff, J.W. Mitchell, LLC
DATED: January ___, 2003 Skadden, Arps, Slate, Meagher Flom, LLP
By:__________________________ Mark A. McDermott, attorneys for the Defendant, KMart Corporation
ORDER
Based upon the foregoing stipulation, it is hereby ORDERED that this adversary proceeding is dismissed with prejudice on the terms set forth above.
DATED:_________________ _________________________ United States Bankruptcy Judge