IS OLD SEARS (SHC) LIQUIDATING IF IT DOESN'T GET THE NOLS AND TAX CREDITS?
Under the assumption the nols and tax credits remain with lampert, the following section from page 33/1120 of Exhibit B (the asset purchase agreement) to docket 2507 which was judge drain’s order would apply.
Look at (iii) and (iv) below. This says debtor sears and those debtor subsidiaries of sears, all of whom are part of this bankruptcy, SHALL dissolve no later than the end of the third taxable year ending after the Closing Date. WTF? Pay attention to the last few words at the end of the section enclosed by the (…).
Wonder what is meant by a “non-corporate liquidating vehicle”? If the nols and tax credits stay with lampert, doesn’t this seem to say that any por filed by OLD SEARS is nothing more than a plan of liquidation?
“Distribution Requirement” shall mean the requirement that each Seller(i.e. all of the entities of OLD SEARS who are debtors in this bankruptcy filing)… (i) shall distribute the Securities Consideration received by it to Persons qualifying as holders of “securities” of such Seller for purposes of section 354 of the Code, (ii) shall distribute all of the cash received pursuant to Section 3.1(a), as well as all of its other property pursuant to the Bankruptcy Plan, (iii) shall dissolve no later than the end of the third taxable year ending after the Closing Date, and (iv) during the period between the Closing Date and its dissolution, shall limit its activities to those which are merely for the purpose of liquidating its assets (which may include maintaining a going operation for the preservation of value, pending distribution or sale), winding up its affairs, resolving and paying its debts, and distributing any remaining assets (which may include a distribution to a non-corporate liquidating vehicle).
