Replies to post #16439 on Sears Holdings Corp. (fka SHLDQ)

[linda1]

I think it would have been Holdco
since a 363 Sale is free and clear of all
Claims and Interests in the Assets
- which benefits the Buyer.

Interestingly - I just again reviewed the
“ Order Approving the APA “ and noted
9 times it stated “ free and clear of “ and
in 8 times it only states
“ free and clear of all Claims “ - definitively.

There is only 1 time in which it states
“ free and clear of ..... Securities Interests ....... “
and the word “ may “ is used and which
word’s meaning is not definitive.


Here is what I mean:


PG 13 -

“ P. Satisfaction of Section 363(f) Standards.
The Debtors MAY sell the Acquired Assets
free and clear of all liens, claims (including
those that constitute a “claim” as defined in
section 101(5) of the Bankruptcy Code),
rights, liabilities, ..........security interests,...... “


The other 8 times only “ Claims “ is stated as
in this example:


PG 15

“ Q. The Buyer would not have entered into
the Asset Purchase Agreement and would
not consummate the transactions contemplated
thereby if the sale of the Acquired Assets
was not free and clear of all Claims “.


The APA defines “ Claims “ in this way:


“ Claims” shall mean all rights to payment,
whether or not such right is reduced to
judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable,
secured, or unsecured; or rights to an
equitable remedy for breach of performance
if such breach gives rise to a right to payment,
whether or not such right to an equitable
remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed,
undisputed, secured, or unsecured,
in each case, of whatever kind or description
against any Person. “.


I don’t think the APA’s definition of “ Claims “
includes Equity Interests.


Anyways - in conclusion the “ Order Approving
the APA “ is not clear and definitive on whether
SHLDQ will be included in the Sale or “ free and
clear “ of the Sale.

[linda1]

I think that the Terms of the 363 Sale are
stated in the “ Order Approving the APA “
however just not clear enough IMO.

There may be additional clarification
after the Judge approves the Sale and
the Closing Date of the Sale.

The POR should also help in understanding
the Terms.