Arguments being made by esl at the sale hearing today from docket 2379:
In considering the ESL Bid, particularly in light of the UCC’s constant
misdirection, it is critically important that focus is maintained on what is—and what is not—at
issue in the Sale Hearing.
• Section 363 Sale; not Section 1129 Plan
o The ESL Bid is a proposal to acquire substantially all of Sears’ operating
assets pursuant to a sale under section 363 of the Bankruptcy Code.
o The ESL Bid is not a plan of reorganization under section 1129 of the
Bankruptcy Code.
• Highest/Best; not Administrative Solvency
o The Sale Hearing is about whether the ESL Bid is the highest or best bid
received by the Debtors and will provide the Debtors with more value than
any other alternative, including liquidation.
o The Sale Hearing is not about whether the Debtors will or will not be
administratively solvent after closing—even though that is highly likely.
• Adequate Assurance; not Buyer’s Viability
o The ESL Bid should be reviewed for its ability to provide adequate
assurance of future performance to contractual counterparties.
o The Sale Hearing is not a contested confirmation hearing about the
wholesale viability of Buyer or its business plan.
• Rule 9019 Settlement of Limited Claims; not Assessment of Unreleased Claims
o The ESL Bid requires the release of equitable subordination,
recharacterization, and disallowance claims against ESL to permit credit
bidding, which release is subject to the business judgment standards of
Bankruptcy Rule 9019.
o The ESL Bid specifically preserves other claims, and the Sale Hearing is
not the forum to assess any of the unsubstantiated claims in the UCC’s
Objection that attempt to poison the well for future litigation by walking
through the merits of the unreleased claims (all of which ESL vigorously
disputes).
AI
