It's do-or-die time for Sears
Posted December 31, 2018 11:59 a.m. EST
(CNN) — Will Sears survive? The world will probably know within a few weeks.
On Friday night, a hedge fund controlled by Eddie Lampert bid $4.4 billion for the company's operating assets. The deal by Sears' chairman would keep about 425 Sears and Kmart stores open for business — 260 or so fewer than the retailer had when it filed for bankruptcy on October 15.
Lampert is Sears' biggest creditor, but he's not the only one. Sears owes billions of dollars to thousands of vendors, landlords and others. Many of them believe it would be better to shut all of the remaining stores and sell off Sears' assets to raise cash to repay the debts.
The life-or-death decision will be made by US Bankruptcy Court Judge Robert Drain as soon as January.
Do-or-die holiday sales
A big part of Sears' fate rests with how much money it made over the seven weeks of holiday shopping.
The first signs aren't good.
In November, the company cut the holiday sales forecast it had made only weeks earlier by 13%. Even worse, Sears said it believed it would do little better than breakeven during the period. It originally thought it would make enough money over seven weeks to add about $400 million to its meager cash reserves. It slashed that forecast by 86%.
The company has yet to report how it did in December. If it misses its new, less optimistic targets, its chances of survival will be significantly reduced.
That's what happened with Toys "R" Us last year: Its hopes of staying in business vanished with weak holiday sales and continued losses. By March 2018, Toys "R" Us announced it would close all its stores.
A plan to keep Sears alive
At at December 18 court hearing Sears' attorneys said that multiple parties were interested in buying the company's assets. But in the end, Lampert was the only public bidder to make the deadline on Friday. He may be the only bidder.
"Our bid reflects our firm belief that there is a future for Sears as a smaller, less indebted retailer," Lampert said.
Even Lampert's offer was slightly scaled back. Earlier in the month he had said he expected to put up $4.6 billion and keep 500 stores open.
Lampert says he would offer jobs to as many as 50,000 Sears employees. The company had 68,000 workers as of October. He also said he would resume severance payments, which were halted when Sears filed for bankruptcy. Under bankruptcy law, severance payments are rarely allowed without the agreement of creditors or a labor contract.
The next question is whether Sears accepts the bid. It probably will, given that Sears has said it wants to remain in business. The real question is whether it will be accepted by Judge Drain.
If it's OK'd by Drain, Lampert's $4.4 billion offer will serve as what's known as a stalking horse bid — a starting point in an auction intended to draw other bidders. But it's very possible that no other bidder who wants to keep the business open will join.
"The question is if there is anyone but Lampert or the employees who view Sears coming out of bankruptcy — rather than liquidation — as the better outcome," said Philip Emma, senior analyst with Debtwire and an expert in retail bankruptcies.
Earlier in the day Friday, Sears announced plans to close an additional 37 Kmart stores and 43 Sears stores, another sign the company's performance is fading.
Sears has already started selling some other assets. Earlier this month, Drain gave initial approval for the $60 million sale of Sears' home improvement business to Service.com.
A plan to kill Sears
Some Sears creditors, including landlords and vendors, believe shutting the company down is the best way to retrieve the greatest portion of the money Sears owes them. They call plans to keep Sears in business "nothing more than wishful thinking" and "an unjustified and foolhardy gamble with other people's money."
And they also question the legitimacy of Lampert's bid to keep it open.
Lampert is not offering to put up much new cash. Instead, he wants the new company to borrow money, and says he has arranged financing from three major financial institutions.
He also proposes to forgive some of the debt he holds from Sears. His original plan called for forgiving about $1.8 billion in debt. The details of how much debt would be forgiven in the new bid is not yet available.
The creditors committee, a group that speaks for many of the companies and people Sears owed money other than Lampert, argues that his debt should not be recognized by the court, because Lampert loaned Sears the money when he was CEO. The creditors' attorneys question whether the terms of those loans unduly benefited Lampert and his hedge fund rather than Sears. They plan to challenge the loans.
Lampert and his hedge fund argue the loans were proper and made to keep Sears alive. He says his bid is in the best interest of both the employees and the other creditors.
But if Judge Drain rules in favor of the creditors committee, it could torpedo Lampert's bid and leave Sears without a bidder interested in keeping the stores open.
What happens if Sears lives
If Drain rules for Sears, Lampert or another buyer would acquire the assets necessary to keep the company operational: the leases or property of stores, the Kenmore appliance brand, and Sears' computer systems and warehouses. A new company would be formed with those assets, perhaps within months.
The stores that are closing — and much of the debt — would remain with the existing holding company. It could take years to dispose of those liabilities.
If the court approves the offer from Lampert or some other bidder interested in keeping the company in business, Sears is not necessarily out of the woods. The recent history of retail is full of companies, including RadioShack, that managed to come out of bankruptcy and then go out of business.
What happens if Sears dies
If Drain decides for the creditors, he will order the liquidation of Sears. The process would take months but eventually all Sears and Kmart stories would be closed.
The remaining employees would lose their jobs, probably without the benefit of any severance pay.
If the company shuts down, some executives of Sears would get bonuses if they remain with the company until the end. Drain has approved up to $25.9 million in bonuses. That full amount would be paid only if the company was able to hit financial targets, which won't happen if Sears and Kmart are forced to liquidate.