Late last week, the District Court for the Southern District of New York provided a reminder of the importance of precise drafting. In Transform Holdco LLC v. Sears Holdings Corp. et. al., CV-05782, Doc. 20, the contractual question at issue related to the purchase of substantially all of the assets (and assumption of certain of the liabilities) of Sears and its domestic and foreign subsidiaries by Transform Holdco LLC (“Transform”) in Sears’ bankruptcy case. Typical of a sale under Section 363 of the Bankruptcy Code, Transform’s purchase was largely structured as an asset sale, allowing it to acquire those assets “free and clear” of liens and encumbrances. Also typical, certain assets were excluded from the sale, including cash and cash equivalents of the US and foreign entities, defined in the purchase agreement as “Excluded Assets.” Following execution of the agreement, the parties entered into an amendment which allowed Transform some flexibility regarding its purchase of the assets of Sears’ foreign subsidiaries. Because the transfer of the foreign assets might be problematic, Transform was granted an option to instead acquire the equity of those subsidiaries. The amendment provided that, if Transform “determines (in its sole discretion)… that it is necessary or desirable to acquire all of the equity interests in any Foreign Subsidiary in lieu of the acquisition of assets and assumption of liabilities…, then the [s]ellers shall use reasonable best efforts to transfer such equity interests, which equity interests shall be deemed to be Acquired Foreign Assets.” (emphasis added). The agreements were governed by Delaware law.
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