EXHIBIT 4.8
FIRST AMENDMENT TO
KMART CREDITOR TRUST AGREEMENT
THIS FIRST AMENDMENT TO KMART CREDITOR TRUST AGREEMENT (the
"Amendment"), dated as of May __, 2003, is entered into and executed by and
among KMART CORPORATION, a Michigan corporation, debtor and debtor-in-possession
in the Chapter 11 Cases referred to below ("Kmart"), the undersigned Affiliate
Debtors (as defined in the Plan referred to below), debtors and
debtors-in-possession in such Chapter 11 Cases (together with Kmart,
collectively, the "Debtors", as hereinafter further defined), as settlors,
Xxxxxxx X. Xxxxx, as Trustee (the "Trustee"), and the undersigned Reorganized
Debtors to amend that certain Kmart Creditor Trust Agreement dated April 30,
2003 (the "Trust Agreement"). Defined terms used herein without definition have
the meanings set forth in the Trust Agreement.
RECITALS:
WHEREAS, the Trust Agreement was executed to facilitate the
implementation of (a) the Plan which provides for the establishment of the Kmart
Creditor Trust created by the Trust Agreement and the retention and preservation
of the Trust Assets (as defined in the Plan) by the Trustee, all for the benefit
of (i) certain holders of Allowed Claims (as defined in the Plan) if and to the
extent that such holders of Allowed Claims are entitled to share in Trust
Recoveries in accordance with the terms of the Plan and (ii) the holders of
Allowed Interests (as defined in the Plan) pertaining to Existing Common Stock
(as defined in the Plan) in Class 11 (as such Class is designated in the Plan)
and (b) the other Articles of the Plan that deal with the collection,
liquidation, and distribution of the Trust Assets, including the litigation of
Trust Claims (as defined in the Plan), as required by the Plan; and
WHEREAS, prior to the Effective Date (as defined in the Plan) and in
accordance with the Order Approving Joint Interests and Government
Confidentiality Agreements, Implementing Protective Order, Authorizing Rule 2004
Investigations and Granting Related Relief dated August 29, 2002 (the "Rule 2004
Order"), the Official Committee of Unsecured Creditors served certain Bankruptcy
Rule 2004 subpoenas upon certain persons or entities (collectively, the "Rule
2004 Demands"), the scope of which subpoenas are consistent with and appropriate
under the provisions the Rule 2004 Order and Bankruptcy Rule 2004; and
WHEREAS, without prejudice to the rights of the Trustee and/or the
Trust Advisory Board to enforce the Rule 2004 Demands, the parties hereto wish
to amend the Trust Agreement to reconfirm the intent of the parties that the
purpose of the Trust Agreement was for the Trustee to pursue, litigate, settle
and/or compromise the Trust Claims pursuant to and in accordance with the terms
of the Trust Agreement and not to be characterized as an investigator under the
Accounting and Stewardship Investigations (as defined in the Disclosure
Statement (as such term is defined in the Plan)).
NOW, THEREFORE, in consideration of the premises and agreements
contained herein, the parties hereto agree to amend the Trust Agreement by
replacing Section 4.1(a) of the Trust Agreement in its entirety with the
following:
SECTION 4.1 LIQUIDATION OF TRUST CLAIMS.
(a) The Trustee shall take such steps as the Trustee deems
necessary to pursue, litigate, settle and/or compromise or
abandon the Trust Claims (provided that, any such litigation,
settlement, compromise or abandonment shall be authorized by
the Trust Advisory Board, by its majority vote), to reduce the
Trust Claims to cash proceeds and to make distributions of the
cash proceeds to the Beneficiaries as required under the Plan
and this Trust Agreement and provided further that, nothing
herein is intended to or shall limit or restrict the rights of
the Trustee and/or the Trust Advisory Board, as applicable, to
enforce the Rule 2004 Demands. The Trustee's actions with
respect to disposition of the Trust Claims shall in all events
be taken in a manner so as reasonably to maximize the value of
the Trust Claims.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment or
caused this Amendment to be duly executed by their respective officers thereunto
duly authorized as of the date first above written.
KMART CORPORATION,
THE DEBTOR AFFILIATES AND
THE REORGANIZED DEBTORS
By: __________________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President/Assistant Secretary
of Kmart Corporation and authorized
signatory of each of the other
Debtors and of each of the
Reorganized Debtors.
____________________________, AS TRUSTEE
Name: Xxxxxxx X. Xxxxx
Title: Trustee
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