An adversary complaint was filed September 11 by Transform Holdco LLC against Sears Holdings. The court document case number is 18023528 (RDD). Here's an excerpt of the complaint:
NATURE OF THE ACTION
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Transform brings this adversary complaint against Defendants to address a
breach of contract in contravention of the APA and this Court’s Order (I) Approving the Asset
Purchase Agreement Among Sellers and Buyer, (II) Authorizing the Sale of Certain of the Debtors’
Assets Free and Clear of Liens, Claims, Interests and Encumbrances, (III) Authorizing the
Assumption and Assignment of Certain Executory Contracts, and Leases in Connection Therewith
and (IV) Granting Related Relief, Docket No. 2507 (the “Sale Order”), authorizing the sale of
substantially all of the Defendants’ assets to Transform (the “Sale Transaction”). Specifically, the
Defendants have failed to deliver title to an owned parcel of land in Fort Lauderdale, Florida that
is related to and used in connection with an operating retail location that was assigned to
Transform.
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The Defendants’ course of conduct has violated the Court’s Sale Order and
deprived Transform of bargained-for assets. Prompt resolution of the dispute raised in this
Complaint is important not only to Transform and its ability to operate the assets it purchased, but
also to the administration of the estates as the Defendants seek to confirm a Chapter 11 plan.4
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Transform’s parent company, ESL Investments, Inc. (“ESL”), was Sears’
largest shareholder and creditor prior to these bankruptcy proceedings, in large part due to its
longstanding efforts to provide Sears with a path towards growth and success in a period of
unprecedented upheaval for the retail sector in America.
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Consistent with its more than 15-year commitment to Sears and Kmart, ESL
from the outset of these Chapter 11 proceedings was the only bidder to submit a viable going
concern bid for substantially all of the Defendants’ assets. Transform’s final winning bid of $5.2
billion represented the only going-concern bid for substantially all of Sears’ assets. Defendants
selected Transform’s bid as the highest and best, and the Court ruled that this sale was in the best
interests of all stakeholders, including the Defendants’ estates and their creditors.
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Through much effort by all the Parties, the APA was structured to balance
the Defendants’ concerns about administrative solvency and certainty of meeting Closing
conditions with Transform’s need for assurances that Sears would continue operating in the
ordinary course pending the sale and deliver a going concern with the necessary assets and
liquidity.