That time line allows Edward S. Lampert to partake in the auction, provided he ups his cash deposit by another $120 million by Wednesday afternoon, according to published reports.
Lampert, chairman of Sears and hedge fund ESL Investments and chief executive officer of ESL affiliate Transform Holdco, made a $4.4 billion bid for Sears, but was met with some roadblocks from creditor constituency groups. Essentially they didn’t think he had provided enough cash to the deal, and many objected to his $1.3 billion credit bid. There was also negativity surrounding his requirement that everyone sign off on a release that would insulate Lampert and ESL from any future legal claim. That’s because an unsecured creditors’ committee was already looking at possible conflict of interest issues surrounding some past deals between ESL and Sears. Some of those deals that they are taking a closer look at include the steps leading to the formation of Seritage Growth Properties, a real estate investment trust, and the spin-off of Lands’ End.
As for Tuesday’s reprieve from a Manhattan bankruptcy court, the hedge fund said: “ESL appreciates the encouragement from the court and the constructive engagement of the debtors as we work to formalize our going concern proposal so that it can be evaluated at the upcoming auction. As we have said before, our proposal provides substantially more value to the stakeholders than would be the case in liquidation and is the only option to save an iconic American retailer and up to 50,000 jobs. We believe in Sears and will continue to do everything we can to ensure that it has a profitable future.”
For Lampert’s bid, through Transform Holdco, to qualify for the auction round, he likely had to raise his offer. However, information on what those better terms might be wasn’t immediately available. There was talk over the weekend that Sears was leaning toward a liquidation because Lampert’s initial bid wasn’t sufficient to cover the administrative expenses in the bankruptcy. That’s more a result of Lampert using his $1.3 billion credit bid, something that could be offset by putting more cash into the deal. And liquidators who have been circling the bankruptcy had made competing bids that supposedly had a higher valuation for Sears’ different assets when compared with Lampert’s offer. Whether those liquidators will still be in the hunt is unclear. That’s because published reports noted that Sears had already selected Abacus Advisors as the “qualified” bid on the liquidation front if Sears goes that route.
When Lampert made his $4.4 billion bid, he also disclosed an option for Plan B for some of Sears’ assets in case the original going-concern bid that includes 425 stores failed to get “qualifying bid” status. Since he didn’t know which way the approval process would go, he provided a deposit sufficient for Plan B, and said in a regulatory filing with the Securities and Exchange Commission that should he get the requisite OK to move forward, he would make an additional cash deposit to hold his place at the auction for his $4.4 billion bid.
With Lampert already indicating that he’s OK with the additional deposit, even if detractors are wondering whether he’s actually secured the financing in place, there’s still a big question on how much higher would he be willing to go at auction time to keep ownership of Sears.
The incentives for Lampert are great. In addition to the releases from future litigation he’s seeking, keeping Sears in operation ensures that rent continues to be paid at the store locations within the Seritage portfolio. Seritage was formed through the transfer of real estate sites that were owned by Sears. Lampert has a significant stake in the REIT.
Sears filed its voluntary Chapter 11 petition for bankruptcy court protection on Oct. 15. While there’s been some rumblings about whether there is still a need for either a Sears or Kmart, the combined entity still does about $10 billion in annual volume.
Lampert in 2003 bailed Kmart Holding Corp. from bankruptcy proceedings, and a year later he disclosed a deal to combine Kmart and Sears, Roebuck & Co. The merger was completed in 2005, and expectations were that Sears Holdings would become a retailer with annual volume of $55 billion. But the operation saw legacy stores that were never refurbished, a focus more on financial dealings than on merchandising and a shift in consumer shopping habits toward online and away from brick-and-mortar all hurting Sears’ bottom line. And despite all that negativity, Lampert still wants one more try in bailing out the retailer.