If the filing person has
previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following
box. ☐
The information required on the remainder of this cover page shall not be
deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
|
|
|
|
|
|
|
|
|
1.
|
|
Names of
Reporting Persons.
ESL Partners, L.P.
|
|
2.
|
|
Check the Appropriate Box if a Member
of a Group (See Instructions)
(a) ☒ (b) ☐
|
|
3.
|
|
SEC Use Only
|
|
4.
|
|
Source of Funds (See Instructions)
OO
|
|
5.
|
|
Check if Disclosure of Legal
Proceedings Is Required Pursuant to Items 2(d) or 2(e) ☐
|
|
6.
|
|
Citizenship or Place of
Organization
Delaware
|
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person
With
|
|
7.
|
|
Sole Voting Power
26,801,105 (1)
|
|
|
8.
|
|
Shared Voting Power
0
|
|
|
9.
|
|
Sole Dispositive Power
26,801,105 (1)
|
|
|
10.
|
|
Shared Dispositive Power
37,572,920 (2)
|
|
11.
|
|
Aggregate Amount Beneficially Owned by Each Reporting Person
64,374,025 (1)(2)
|
|
12.
|
|
Check if the Aggregate Amount in Row
(11) Excludes Certain Shares (See Instructions) ☐
|
|
13.
|
|
Percent of Class Represented by Amount
in Row (11)
57.6
% (3)
|
|
14.
|
|
Type of Reporting Person (See
Instructions)
PN
|
|
(1)
|
Includes 4,808,465 shares of Holdings Common Stock that may be acquired by the reporting person within 60 days upon the exercise of Warrants to purchase shares of Holdings Common Stock from Holdings.
|
|
(2)
|
Includes 6,328,687 shares of Holdings Common Stock that may be acquired by a reporting person within 60 days upon the exercise of Warrants to purchase shares of Holdings Common Stock from Holdings.
|
|
(3)
|
Based upon 107,033,252 shares of Holdings Common Stock outstanding as of December 5, 2016, as disclosed in Holdings’ Quarterly Report on Form 10-Q for the quarter ended October 29, 2016, that was filed by Holdings
with the SEC on December 8, 2016, and 4,808,465 shares of Holdings Common Stock that may be acquired by the reporting person within 60 days upon the exercise of Warrants to purchase shares of Holdings Common Stock.
|
|
|
|
|
|
|
|
|
|
1.
|
|
Names of
Reporting Persons.
SPE I Partners, LP
|
|
2.
|
|
Check the Appropriate Box if a Member
of a Group (See Instructions)
(a) ☒ (b) ☐
|
|
3.
|
|
SEC Use Only
|
|
4.
|
|
Source of Funds (See Instructions)
OO
|
|
5.
|
|
Check if Disclosure of Legal
Proceedings Is Required Pursuant to Items 2(d) or 2(e) ☐
|
|
6.
|
|
Citizenship or Place of
Organization
Delaware
|
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person
With
|
|
7.
|
|
Sole Voting Power
150,124
|
|
|
8.
|
|
Shared Voting Power
0
|
|
|
9.
|
|
Sole Dispositive Power
150,124
|
|
|
10.
|
|
Shared Dispositive Power
0
|
|
11.
|
|
Aggregate Amount Beneficially Owned by Each Reporting Person
150,124
|
|
12.
|
|
Check if the Aggregate Amount in Row
(11) Excludes Certain Shares (See Instructions) ☐
|
|
13.
|
|
Percent of Class Represented by Amount
in Row (11)
0.1% (1
)
|
|
14.
|
|
Type of Reporting Person (See
Instructions)
PN
|
|
(1)
|
Based upon 107,033,252 shares of Holdings Common Stock outstanding as of December 5, 2016, as disclosed in Holdings’ Quarterly Report on Form 10-Q for the quarter ended October 29, 2016, that was filed by Holdings
with the SEC on December 8, 2016.
|
|
|
|
|
|
|
|
|
|
1.
|
|
Names of
Reporting Persons.
SPE Master I, LP
|
|
2.
|
|
Check the Appropriate Box if a Member
of a Group (See Instructions)
(a) ☒ (b) ☐
|
|
3.
|
|
SEC Use Only
|
|
4.
|
|
Source of Funds (See Instructions)
OO
|
|
5.
|
|
Check if Disclosure of Legal
Proceedings Is Required Pursuant to Items 2(d) or 2(e) ☐
|
|
6.
|
|
Citizenship or Place of
Organization
Delaware
|
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person
With
|
|
7.
|
|
Sole Voting Power
193,341
|
|
|
8.
|
|
Shared Voting Power
0
|
|
|
9.
|
|
Sole Dispositive Power
193,341
|
|
|
10.
|
|
Shared Dispositive Power
0
|
|
11.
|
|
Aggregate Amount Beneficially Owned by Each Reporting Person
193,341
|
|
12.
|
|
Check if the Aggregate Amount in Row
(11) Excludes Certain Shares (See Instructions) ☐
|
|
13.
|
|
Percent of Class Represented by Amount
in Row (11)
0.2
% (1)
|
|
14.
|
|
Type of Reporting Person (See
Instructions)
PN
|
|
(1)
|
Based upon 107,033,252 shares of Holdings Common Stock outstanding as of December 5, 2016, as disclosed in Holdings’ Quarterly Report on Form 10-Q for the quarter ended October 29, 2016, that was filed by Holdings
with the SEC on December 8, 2016.
|
|
|
|
|
|
|
|
|
|
1.
|
|
Names of
Reporting Persons.
RBS Partners, L.P.
|
|
2.
|
|
Check the Appropriate Box if a Member
of a Group (See Instructions)
(a) ☒ (b) ☐
|
|
3.
|
|
SEC Use Only
|
|
4.
|
|
Source of Funds (See Instructions)
OO
|
|
5.
|
|
Check if Disclosure of Legal
Proceedings Is Required Pursuant to Items 2(d) or 2(e) ☐
|
|
6.
|
|
Citizenship or Place of
Organization
Delaware
|
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person
With
|
|
7.
|
|
Sole Voting Power
27,144,570 (1)
|
|
|
8.
|
|
Shared Voting Power
0
|
|
|
9.
|
|
Sole Dispositive Power
27,144,570 (1)
|
|
|
10.
|
|
Shared Dispositive Power
37,572,920
(2)
|
|
11.
|
|
Aggregate Amount Beneficially Owned by Each Reporting Person
64,717,490 (1)(2)
|
|
12.
|
|
Check if the Aggregate Amount in Row
(11) Excludes Certain Shares (See Instructions) ☐
|
|
13.
|
|
Percent of Class Represented by Amount
in Row (11)
57.9
% (3)
|
|
14.
|
|
Type of Reporting Person (See
Instructions)
PN
|
|
(1)
|
Includes 4,808,465 shares of Holdings Common Stock that may be acquired by a reporting person within 60 days upon the exercise of Warrants to purchase shares of Holdings Common Stock from Holdings.
|
|
(2)
|
Includes 6,328,687 shares of Holdings Common Stock that may be acquired by a reporting person within 60 days upon the exercise of Warrants to purchase shares of Holdings Common Stock from Holdings.
|
|
(3)
|
Based upon 107,033,252 shares of Holdings Common Stock outstanding as of December 5, 2016, as disclosed in Holdings’ Quarterly Report on Form 10-Q for the quarter ended October 29, 2016, that was filed by Holdings
with the SEC on December 8, 2016, and 4,808,465 shares of Holdings Common Stock that may be acquired by a reporting person within 60 days upon the exercise of Warrants to purchase shares of Holdings Common Stock.
|
|
|
|
|
|
|
|
|
|
1.
|
|
Names of
Reporting Persons.
ESL Investments, Inc.
|
|
2.
|
|
Check the Appropriate Box if a Member
of a Group (See Instructions)
(a) ☒ (b) ☐
|
|
3.
|
|
SEC Use Only
|
|
4.
|
|
Source of Funds (See Instructions)
OO
|
|
5.
|
|
Check if Disclosure of Legal
Proceedings Is Required Pursuant to Items 2(d) or 2(e) ☐
|
|
6.
|
|
Citizenship or Place of
Organization
Delaware
|
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person
With
|
|
7.
|
|
Sole Voting Power
27,144,570 (1)
|
|
|
8.
|
|
Shared Voting Power
0
|
|
|
9.
|
|
Sole Dispositive Power
27,144,570 (1)
|
|
|
10.
|
|
Shared Dispositive Power
37,572,920
(2)
|
|
11.
|
|
Aggregate Amount Beneficially Owned by Each Reporting Person
64,717,490 (1)(2)
|
|
12.
|
|
Check if the Aggregate Amount in Row
(11) Excludes Certain Shares (See Instructions) ☐
|
|
13.
|
|
Percent of Class Represented by Amount
in Row (11)
57.9
% (3)
|
|
14.
|
|
Type of Reporting Person (See
Instructions)
CO
|
|
(1)
|
Includes 4,808,465 shares of Holdings Common Stock that may be acquired by a reporting person within 60 days upon the exercise of Warrants to purchase shares of Holdings Common Stock from Holdings.
|
|
(2)
|
Includes 6,328,687 shares of Holdings Common Stock that may be acquired by a reporting person within 60 days upon the exercise of Warrants to purchase shares of Holdings Common Stock from Holdings.
|
|
(3)
|
Based upon 107,033,252 shares of Holdings Common Stock outstanding as of December 5, 2016, as disclosed in Holdings’ Quarterly Report on Form 10-Q for the quarter ended October 29, 2016, that was filed by Holdings
with the SEC on December 8, 2016, and 4,808,465 shares of Holdings Common Stock that may be acquired by a reporting person within 60 days upon the exercise of Warrants to purchase shares of Holdings Common Stock.
|
|
|
|
|
|
|
|
|
|
1.
|
|
Names of
Reporting Persons.
Edward S. Lampert
|
|
2.
|
|
Check the Appropriate Box if a Member
of a Group (See Instructions)
(a) ☒ (b) ☐
|
|
3.
|
|
SEC Use Only
|
|
4.
|
|
Source of Funds (See Instructions)
OO; PF
|
|
5.
|
|
Check if Disclosure of Legal
Proceedings Is Required Pursuant to Items 2(d) or 2(e) ☐
|
|
6.
|
|
Citizenship or Place of
Organization
United States
|
|
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person
With
|
|
7.
|
|
Sole Voting Power
64,717,490 (1)(2)
|
|
|
8.
|
|
Shared Voting Power
0
|
|
|
9.
|
|
Sole Dispositive Power
27,144,570 (1)
|
|
|
10.
|
|
Shared Dispositive Power
37,572,920
(2)
|
|
11.
|
|
Aggregate Amount Beneficially Owned by Each Reporting Person
64,717,490 (1)(2)
|
|
12.
|
|
Check if the Aggregate Amount in Row
(11) Excludes Certain Shares (See Instructions) ☐
|
|
13.
|
|
Percent of Class Represented by Amount
in Row (11)
54.8% (3)
|
|
14.
|
|
Type of Reporting Person (See
Instructions)
IN
|
|
(1)
|
Includes 4,808,465 shares of Holdings Common Stock that may be acquired by a reporting person within 60 days upon the exercise of Warrants to purchase shares of Holdings Common Stock from Holdings.
|
|
(2)
|
Includes 6,328,687 shares of Holdings Common Stock that may be acquired by the reporting person within 60 days upon the exercise of Warrants to purchase shares of Holdings Common Stock from Holdings.
|
|
(3)
|
Based upon 107,033,252 shares of Holdings Common Stock outstanding as of December 5, 2016, as disclosed in Holdings’ Quarterly Report on Form 10-Q for the quarter ended October 29, 2016, that was filed by Holdings
with the SEC on December 8, 2016, and an aggregate of 11,137,152 shares of Holdings Common Stock that may be acquired by certain of the reporting persons within 60 days upon the exercise of Warrants to purchase shares of Holdings Common
Stock.
|
This Amendment No. 50 to Schedule 13D (this “Amendment”) relates to common shares,
par value $0.01 per share (the “Holdings Common Stock”), of Sears Holdings Corporation, a Delaware corporation (“Holdings”). This Amendment amends the Schedule 13D, as previously amended, filed with the Securities and Exchange
Commission by ESL Partners, L.P., a Delaware limited partnership (“Partners”), SPE I Partners, LP, a Delaware limited partnership (“SPE I”), SPE Master I, LP, a Delaware limited partnership (“SPE Master I”), RBS
Partners, L.P., a Delaware limited partnership (“RBS”), ESL Investments, Inc., a Delaware corporation (“ESL”), and Edward S. Lampert, a United States citizen, by furnishing the information set forth below. Except as otherwise
specified in this Amendment, all previous Items are unchanged. Capitalized terms used herein which are not defined herein have the meanings given to them in the Schedule 13D, as previously amended, filed with the Securities and Exchange Commission
(“SEC”).
Item 4. Purpose of Transaction.
Item 4 is hereby amended and supplemented as follows:
“On January 3, 2017, Holdings, through Sears, Roebuck and Co., Kmart Stores of Illinois LLC, Kmart of Washington LLC and Kmart
Corporation (collectively, “RE Loan Borrowers”), entities wholly-owned and controlled, directly or indirectly by Holdings, obtained a $500 million secured loan facility (the “Real Estate Loan Facility”) from JPP, LLC and JPP II,
LLC (collectively, the “Lenders”). Mr. Lampert, Holdings’ Chief Executive Officer and Chairman, is the sole stockholder, chief executive officer and director of ESL, which controls the Lenders. $321 million was funded under the
Real Estate Loan Facility on January 3, 2017, and, subject to the satisfaction of certain conditions, including pledging additional properties as collateral, up to an additional $179 million may be drawn by Holdings prior to July 3, 2017.
The Real Estate Loan Facility matures on July 20, 2020. Holdings expects to use the proceeds of the Real Estate Loan Facility for general corporate purposes.
The Real Estate Loan Facility has an annual base interest rate of 8%, with accrued interest payable monthly during the term of the Real Estate
Loan Facility. The RE Loan Borrowers paid an upfront commitment fee equal to 1.0% of the full principal amount of the Real Estate Loan Facility and also are required to pay a funding fee equal to 1.0% of the amounts drawn under the Real Estate Loan
Facility at the time such amounts are drawn.
The Real Estate Loan Facility is guaranteed by Holdings, is currently secured by a first
priority lien on 46 real properties owned by the RE Loan Borrowers, and is required to be secured by additional real properties if the remaining $179 million loan commitment is drawn. In certain circumstances, the Lenders and the RE Loan Borrowers
may elect to substitute one or more properties as collateral. To the extent permitted under other debt of Holdings or its affiliates, the Real Estate Loan Facility may be prepaid at any time in whole or in part, without penalty or premium. The RE
Loan Borrowers are required to apply the net proceeds of the sale of any real property collateral for the Real Estate Loan Facility to repay the loan.
The Real Estate Loan Facility includes certain representations and warranties, indemnities and covenants, including with respect to the
condition and maintenance of the real property collateral. The Real Estate Loan Facility has certain events of default, including (subject to certain materiality thresholds and grace periods) payment default, failure to comply with covenants,
material inaccuracy of representation or warranty, and bankruptcy or insolvency proceedings. If there is an event of default, the Lenders may declare all or any portion of the outstanding indebtedness to be immediately due and payable, exercise any
rights they might have under any of the Real Estate Loan Facility documents (including against the collateral), and require the RE Loan Borrowers to pay a default interest rate equal to the greater of (i) 2.5% in excess of the base interest
rate and (ii) the prime rate plus 1%.
The foregoing description of the Real Estate Loan Facility does not purport to be complete and
is qualified in its entirety by reference to that certain Loan Agreement, entered into in connection with the Real Estate Loan Facility, filed as Exhibit 99.33 and incorporated by reference herein.”
Item 5. Interest in Securities of the Issuer.
Item 5 is hereby amended and restated in its entirety as follows:
“(a)-(b) Each Reporting Person declares that neither the filing of this statement nor
anything herein shall be construed as an admission that such person is, for the purposes of Section 13(d) or 13(g) of the Act or any other purpose, the beneficial owner of any securities covered by this statement.
Each Reporting Person may be deemed to be a member of a group with respect to Holdings or securities of Holdings for the purposes of
Section 13(d) or 13(g) of the Act. Each Reporting Person declares that neither the filing of this statement nor anything herein shall be construed as an admission that such person is, for the purposes of Section 13(d) or 13(g) of the Act
or any other purpose, (i) acting (or has agreed or is agreeing to act) with any other person as a partnership, limited partnership, syndicate, or other group for the purpose of acquiring, holding, or disposing of securities of Holdings or
otherwise with respect to Holdings or any securities of Holdings or (ii) a member of any syndicate or group with respect to Holdings or any securities of Holdings.
As of January 4, 2017, the Reporting Persons may be deemed to beneficially own the shares of Holdings Common Stock set forth in the table
below.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
REPORTING
PERSON
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED
|
|
|
PERCENTAGE
OF
OUTSTANDING
SHARES
|
|
|
SOLE VOTING
POWER
|
|
|
SHARED
VOTING
POWER
|
|
|
SOLE
DISPOSITIVE
POWER
|
|
|
SHARED
DISPOSITIVE
POWER
|
|
|
ESL Partners, L.P.
|
|
|
64,374,025
|
(1)(2)
|
|
|
57.6
|
% (3)
|
|
|
26,801,105
|
(2)
|
|
|
0
|
|
|
|
26,801,105
|
(2)
|
|
|
37,572,920
|
(1)
|
|
SPE I Partners, LP
|
|
|
150,124
|
|
|
|
0.1
|
%
|
|
|
150,124
|
|
|
|
0
|
|
|
|
150,124
|
|
|
|
0
|
|
|
SPE Master I, LP
|
|
|
193,341
|
|
|
|
0.2
|
%
|
|
|
193,341
|
|
|
|
0
|
|
|
|
193,341
|
|
|
|
0
|
|
|
RBS Partners, L.P.
|
|
|
64,717,490
|
(1)(4)
|
|
|
57.9
|
% (5)
|
|
|
27,144,570
|
(4)
|
|
|
0
|
|
|
|
27,144,570
|
(4)
|
|
|
37,572,920
|
(1)
|
|
ESL Investments, Inc.
|
|
|
64,717,490
|
(1)(6)
|
|
|
57.9
|
% (7)
|
|
|
27,144,570
|
(6)
|
|
|
0
|
|
|
|
27,144,570
|
(6)
|
|
|
37,572,920
|
(1)
|
|
Edward S. Lampert
|
|
|
64,717,490
|
(1)(8)
|
|
|
54.8
|
% (9)
|
|
|
64,717,490
|
(1)(8)
|
|
|
0
|
|
|
|
27,144,570
|
(8)
|
|
|
37,572,920
|
(1)
|
|
(1)
|
This number includes 31,244,233 shares of Holdings Common Stock held by Mr. Lampert and 6,328,687 shares of Holdings Common Stock that Mr. Lampert has the right to acquire within 60 days pursuant to the
Warrants held by Mr. Lampert. Partners has entered into a Lock-Up Agreement with Mr. Lampert that restricts the purchase and sale of securities owned by Mr. Lampert. Pursuant to the Lock-Up Agreement, Partners may be deemed to have
shared dispositive power over, and to indirectly beneficially own, securities owned by Mr. Lampert. RBS, ESL and Mr. Lampert may also be deemed to have shared dispositive power over, and to indirectly beneficially own, such securities.
|
|
(2)
|
This number includes 21,992,640 shares of Holdings Common Stock held by Partners and 4,808,465 shares of Holdings Common Stock that Partners has the right to acquire within 60 days pursuant to the Warrants held by
Partners.
|
|
(3)
|
This is based upon 107,033,252 shares of Holdings Common Stock outstanding as of December 5, 2016, as disclosed in Holdings’ Quarterly Report on Form 10-Q for the quarter ended October 29, 2016, that was
filed by Holdings with the SEC on December 8, 2016, and 4,808,465 shares of Holdings Common Stock that Partners has the right to acquire within 60 days pursuant to the Warrants held by Partners.
|
|
(4)
|
This number includes 21,992,640 shares of Holdings Common Stock held by Partners, 4,808,465 shares of Holdings Common Stock that Partners has the right to acquire within 60 days pursuant to the Warrants held by
Partners, 150,124 shares of Holdings Common Stock held by SPE I and 193,341 shares of Holdings Common Stock held by SPE Master I. RBS is the general partner of, and may be deemed to indirectly beneficially own securities owned by, Partners, SPE I
and SPE Master I.
|
|
(5)
|
This is based upon 107,033,252 shares of Holdings Common Stock outstanding as of December 5, 2016, as disclosed in Holdings’ Quarterly Report on Form 10-Q for the quarter ended October 29, 2016, that was
filed by Holdings with the SEC on December 8, 2016, and 4,808,465 shares of Holdings Common Stock that Partners has the right to acquire within 60 days pursuant to the Warrants held by Partners. RBS is the general partner of, and may be deemed
to indirectly beneficially own securities owned by, Partners.
|
|
(6)
|
This number includes 21,992,640 shares of Holdings Common Stock held by Partners, 4,808,465 shares of Holdings Common Stock that Partners has the right to acquire within 60 days pursuant to the Warrants held by
Partners, 150,124 shares of Holdings Common Stock held by SPE I and 193,341 shares of Holdings Common Stock held by SPE Master I. ESL is the general partner of, and may be deemed to indirectly beneficially own securities owned by, RBS.
|
|
(7)
|
This is based upon 107,033,252 shares of Holdings Common Stock outstanding as of December 5, 2016, as disclosed in Holdings’ Quarterly Report on Form 10-Q for the quarter ended October 29, 2016, that was
filed by Holdings with the SEC on December 8, 2016, and the 4,808,465 shares of Holdings Common Stock that Partners has the right to acquire within 60 days pursuant to the Warrants held by Partners. ESL is the general partner of, and may be
deemed to indirectly beneficially own securities owned by, RBS.
|
|
(8)
|
This number includes 21,992,640 shares of Holdings Common Stock held by Partners, 4,808,465 shares of Holdings Common Stock that Partners has the right to acquire within 60 days pursuant to the Warrants held by
Partners, 150,124 shares of Holdings Common Stock held by SPE I and 193,341 shares of Holdings Common Stock held by SPE Master I. Mr. Lampert is the Chairman, Chief Executive Officer and Director of, and may be deemed to indirectly beneficially
own securities owned by, ESL.
|
|
(9)
|
This is based upon 107,033,252 shares of Holdings Common Stock outstanding as of December 5, 2016, as disclosed in Holdings’ Quarterly Report on Form 10-Q for the quarter ended October 29, 2016, that was
filed by Holdings with the SEC on December 8, 2016, the 6,328,687 shares of Holdings Common Stock that Mr. Lampert has the right to acquire within 60 days pursuant to the Warrants held by Mr. Lampert and the 4,808,465 shares of
Holdings Common Stock that Partners has the right to acquire within 60 days pursuant to the Warrants held by Partners. Mr. Lampert is the Chairman, Chief Executive Officer and Director of, and may be deemed to indirectly beneficially own
securities owned by, ESL.
|
(c) There have been no transactions in the class of securities reported on that were effected by the Reporting
Persons during the past sixty days or since the most recent filing of Schedule 13D, whichever is less.
(d) Not applicable.
(e) Not applicable.”
Item 6. Contracts,
Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
Item 6 is hereby amended and supplemented
as follows:
“The information set forth in Item 4 of this Amendment is incorporated by reference into this Item 6.”
Item 7. Material to be Filed as Exhibits.
Item 7 is hereby amended and restated in its entirety as follows:
“The following exhibits are filed as exhibits hereto:
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Exhibit
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Description of Exhibit
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99.1
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Amendment, dated March 22, 2005, to the Agreement, dated January 31, 2005, among Kmart Holding Corporation, Sears Holdings Corporation, ESL Partners, L.P., ESL Investors, L.L.C., ESL Institutional Partners, L.P. and CRK
Partners II, L.P. (incorporated herein by reference to Exhibit L to the Amendment to Schedule 13D filed on April 1, 2005).
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99.2
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Acknowledgement, dated March 24, 2005, by Sears Holdings Corporation (relating to the assumption of the Registration Rights Agreement) (incorporated herein by reference to Exhibit K to the Amendment to Schedule 13D filed on
April 1, 2005).
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99.3
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Letter Agreement, dated June 2, 2010, between ESL Partners, L.P. and Edward S. Lampert (incorporated herein by reference to Exhibit 8 to the Amendment to Schedule 13D filed on June 2, 2010).
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99.6
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Form of Letter (incorporated herein by reference to Exhibit 10.30 to Holdings’ Annual Report on Form 10-K filed on March 20, 2013).
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99.7
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Loan Agreement, dated September 15, 2014, among Sears, Roebuck and Co., Sears Development Co. and Kmart Corporation, and JPP II, LLC and JPP, LLC (incorporated herein by reference to Exhibit 99.7 to the Amendment to Schedule
13D filed on September 16, 2014).
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99.8
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Participation Agreement, dated September 22, 2014, among PYOF 2014 Loans, LLC, and JPP II, LLC and JPP, LLC (incorporated herein by reference to Exhibit 99.8 to the Amendment to Schedule 13D filed on September 24,
2014).
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99.9
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Amended and Restated Participation Agreement, dated September 30, 2014, among PYOF 2014 Loans, LLC, The Fairholme Partnership, LP, and JPP II, LLC and JPP, LLC (incorporated herein by reference to Exhibit 99.9 to the Amendment
to Schedule 13D filed on October 1, 2014).
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99.10
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Form of Subscription Rights Certificate (incorporated herein by reference to Exhibit 99.10 to the Amendment to Schedule 13D filed on October 17, 2014).
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99.11
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Rights Purchase Agreement, dated as of October 26, 2014, by and between SPE Master I, LP and ESL Partners, L.P. (incorporated herein by reference to Exhibit 99.11 to the Amendment to Schedule 13D filed on October 28,
2014).
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99.12
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Rights Purchase Agreement, dated as of October 26, 2014, by and between SPE Master I, LP and Mr. Edward S. Lampert (incorporated herein by reference to Exhibit 99.12 to the Amendment to Schedule 13D filed on October 28,
2014).
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99.13
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Rights Purchase Agreement, dated as of October 26, 2014, by and between SPE I Partners, LP and ESL Partners, L.P. (incorporated herein by reference to Exhibit 99.13 to the Amendment to Schedule 13D filed on October 28,
2014).
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99.14
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Rights Purchase Agreement, dated as of October 26, 2014, by and between SPE I Partners, LP and Mr. Edward S. Lampert (incorporated herein by reference to Exhibit 99.14 to the Amendment to Schedule 13D filed on October 28,
2014).
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99.15
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Form of Subscription Rights Certificate (incorporated herein by reference to Exhibit 99.15 to the Amendment to Schedule 13D filed on November 12, 2014).
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99.16
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Form of Note (incorporated herein by reference to Exhibit 4.3 to the Post-Effective Amendment No. 1 to Form S-3 Registration Statement, filed by Holdings with the Securities and Exchange Commission on October 30,
2014).
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99.17
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Form of Warrant Certificate (incorporated herein by reference to Exhibit 4.4 to the Post-Effective Amendment No. 1 to Form S-3 Registration Statement, filed by Holdings with the Securities and Exchange Commission on October 30,
2014).
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99.18
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Amendment to Loan Agreement, entered into on February 25, 2015 and effective as of February 28, 2015, by and between JPP II, LLC and JPP, LLC and Sears, Roebuck and Co., Sears Development Co. and Kmart Corporation
(incorporated herein by reference to Exhibit 10.1 to the Form 8-K, filed by Holdings with the Securities and Exchange Commission on February 26, 2015).
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99.19
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Form of Subscription Rights Certificate (incorporated herein by reference to Exhibit 99.19 to the Amendment to Schedule 13D filed on June 16, 2015).
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99.20
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Exchange Agreement, dated as of June 26, 2015, by and among ESL Partners, L.P. and Edward S. Lampert and Seritage Growth Properties, L.P. and Seritage Growth Properties (incorporated herein by reference to Exhibit 99.20 to the
Amendment to Schedule 13D filed on June 29, 2015).
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99.21
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Form of Purchase and Sale Agreement, dated as of July 2, 2015, by and among the Participating Limited Partner, RBS Partners, L.P. and RBS Partners, L.P., in its capacity as general partner of either SPE I Partners, LP or SPE
Master I, LP (incorporated herein by reference to Exhibit 99.21 to the Amendment to Schedule 13D filed on July 6, 2015).
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Exhibit
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Description of Exhibit
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99.22
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Rule 10b5-1(c) Plan, dated July 2, 2015, by SPE I Partners, LP and RBS Partners, L.P. (incorporated herein by reference to Exhibit 99.22 to the Amendment to Schedule 13D filed on July 6, 2015).
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99.23
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Rule 10b5-1(c) Plan, dated July 2, 2015, by SPE Master I, LP and RBS Partners, L.P. (incorporated herein by reference to Exhibit 99.23 to the Amendment to Schedule 13D filed on July 6, 2015).
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99.24
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Letter Agreement, dated January 28, 2016, by and between Holdings and Edward S. Lampert (incorporated herein by reference to Exhibit 10.1 to the Form 8-K, filed by Holdings with the Securities and Exchange Commission on
February 3, 2016).
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99.25
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Joint Filing Agreement (incorporated herein by reference to Exhibit 99.25 to the Amendment to Schedule 13D filed on February 4, 2016).
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99.26
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Loan Agreement, dated as of April 8, 2016, between Sears, Roebuck and Co., Sears Development Co., Innovel Solutions, Inc., Big Beaver of Florida Development, LLC and Kmart Corporation, and JPP, LLC, JPP II, LLC and Cascade
Investment, L.L.C. (incorporated herein by reference to Exhibit 99.26 to the Amendment to Schedule 13D filed on April 12, 2016).
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99.27
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Co-Lender Agreement, dated as of April 8, 2016, by and among JPP, LLC and JPP II, LLC, and Cascade Investment, L.L.C. and each transferee of a portion of any interest in the loan made in accordance with the Co-Lender Agreement
(incorporated herein by reference to Exhibit 99.27 to the Amendment to Schedule 13D filed on April 12, 2016).
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99.28
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Assignment and Acceptance, dated as of April 8, 2016, by and between Bank of America, N.A., as assignor, and JPP II, LLC, as assignee (incorporated herein by reference to Exhibit 99.28 to the Amendment to Schedule 13D filed on
August 26, 2016).
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99.29
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Assignment and Acceptance, dated as of April 8, 2016, by and between Bank of America, N.A., as assignor, and JPP, LLC, as assignee (incorporated herein by reference to Exhibit 99.29 to the Amendment to Schedule 13D filed on
August 26, 2016).
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99.30
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Second Lien Credit Agreement, dated as of September 1, 2016, by and among Sears Holdings Corporation, Sears Roebuck Acceptance Corp. and Kmart Corporation, and JPP, LLC and JPP II, LLC (incorporated herein by reference to
Exhibit 10.1 to the Form 8-K, filed by Holdings with the Securities and Exchange Commission on September 2, 2016).
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99.31
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Pari Passu Joinder Agreement, dated as of September 1, 2016, by JPP, LLC, as agreed to and accepted by Wilmington Trust, National Association, as collateral agent (incorporated herein by reference to Exhibit 99.31 to the
Amendment to Schedule 13D filed on September 2, 2016).
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99.32
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Letter of Credit and Reimbursement Agreement, dated as of December 28, 2016, among Sears Holdings Corporation, Sears Roebuck Acceptance Corp. and Kmart Corporation, Citibank, N.A., as administrative agent and issuing bank, and
JPP, LLC and JPP II, LLC (incorporated herein by reference to Exhibit 10.1 to the Form 8-K, filed by Holdings with the Securities and Exchange Commission on December 30, 2016).
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99.33
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Loan Agreement, dated as of January 3, 2017, among Sears Roebuck and Co., Kmart Stores of Illinois LLC, Kmart of Washington LLC and Kmart Corporation, collectively as borrower, and JPP, LLC and JPP II, LLC, collectively as
initial lender (incorporated herein by reference to Exhibit 10.1 to the Form 8-K, filed by Holdings with the Securities and Exchange Commission on January 4, 2017).”
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true,
complete and correct.
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Date: January 4, 2017
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ESL PARTNERS, L.P.
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By: RBS Partners, L.P., as its general partner
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By: ESL Investments, Inc., as its general partner
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By:
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/s/ Edward S. Lampert
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Name:
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Edward S. Lampert
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Title:
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Chief Executive Officer
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SPE I PARTNERS, LP
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By: RBS Partners, L.P., as its general partner
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By: ESL Investments, Inc., as its general partner
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By:
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/s/ Edward S. Lampert
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Name:
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Edward S. Lampert
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Title:
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Chief Executive Officer
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SPE MASTER I, LP
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By: RBS Partners, L.P., as its general partner
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By: ESL Investments, Inc., as its general partner
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By:
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/s/ Edward S. Lampert
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Name:
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Edward S. Lampert
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Title:
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Chief Executive Officer
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RBS PARTNERS, L.P.
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By: ESL Investments, Inc., as its general partner
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By:
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/s/ Edward S. Lampert
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Name:
|
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Edward S. Lampert
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Title:
|
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Chief Executive Officer
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ESL INVESTMENTS, INC.
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By:
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/s/ Edward S. Lampert
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|
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|
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Name:
|
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Edward S. Lampert
|
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|
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Title:
|
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Chief Executive Officer
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EDWARD S. LAMPERT
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By:
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/s/ Edward S. Lampert
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EXHIBIT INDEX
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Exhibit
|
|
Description of Exhibit
|
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99.1
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|
Amendment, dated March 22, 2005, to the Agreement, dated January 31, 2005, among Kmart Holding Corporation, Sears Holdings Corporation, ESL Partners, L.P., ESL Investors, L.L.C., ESL Institutional Partners, L.P. and CRK
Partners II, L.P. (incorporated herein by reference to Exhibit L to the Amendment to Schedule 13D filed on April 1, 2005).
|
|
|
|
|
99.2
|
|
Acknowledgement, dated March 24, 2005, by Sears Holdings Corporation (relating to the assumption of the Registration Rights Agreement) (incorporated herein by reference to Exhibit K to the Amendment to Schedule 13D filed on
April 1, 2005).
|
|
|
|
|
99.3
|
|
Letter Agreement, dated June 2, 2010, between ESL Partners, L.P. and Edward S. Lampert (incorporated herein by reference to Exhibit 8 to the Amendment to Schedule 13D filed on June 2, 2010).
|
|
|
|
|
99.6
|
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Form of Letter (incorporated herein by reference to Exhibit 10.30 to Holdings’ Annual Report on Form 10-K filed on March 20, 2013).
|
|
|
|
|
99.7
|
|
Loan Agreement, dated September 15, 2014, among Sears, Roebuck and Co., Sears Development Co. and Kmart Corporation, and JPP II, LLC and JPP, LLC (incorporated herein by reference to Exhibit 99.7 to the Amendment to Schedule
13D filed on September 16, 2014).
|
|
|
|
|
99.8
|
|
Participation Agreement, dated September 22, 2014, among PYOF 2014 Loans, LLC, and JPP II, LLC and JPP, LLC (incorporated herein by reference to Exhibit 99.8 to the Amendment to Schedule 13D filed on September 24,
2014).
|
|
|
|
|
99.9
|
|
Amended and Restated Participation Agreement, dated September 30, 2014, among PYOF 2014 Loans, LLC, The Fairholme Partnership, LP, and JPP II, LLC and JPP, LLC (incorporated herein by reference to Exhibit 99.9 to the Amendment
to Schedule 13D filed on October 1, 2014).
|
|
|
|
|
99.10
|
|
Form of Subscription Rights Certificate (incorporated herein by reference to Exhibit 99.10 to the Amendment to Schedule 13D filed on October 17, 2014).
|
|
|
|
|
99.11
|
|
Rights Purchase Agreement, dated as of October 26, 2014, by and between SPE Master I, LP and ESL Partners, L.P. (incorporated herein by reference to Exhibit 99.11 to the Amendment to Schedule 13D filed on October 28,
2014).
|
|
|
|
|
99.12
|
|
Rights Purchase Agreement, dated as of October 26, 2014, by and between SPE Master I, LP and Mr. Edward S. Lampert (incorporated herein by reference to Exhibit 99.12 to the Amendment to Schedule 13D filed on October 28,
2014).
|
|
|
|
|
99.13
|
|
Rights Purchase Agreement, dated as of October 26, 2014, by and between SPE I Partners, LP and ESL Partners, L.P. (incorporated herein by reference to Exhibit 99.13 to the Amendment to Schedule 13D filed on October 28,
2014).
|
|
|
|
|
99.14
|
|
Rights Purchase Agreement, dated as of October 26, 2014, by and between SPE I Partners, LP and Mr. Edward S. Lampert (incorporated herein by reference to Exhibit 99.14 to the Amendment to Schedule 13D filed on October 28,
2014).
|
|
|
|
|
99.15
|
|
Form of Subscription Rights Certificate (incorporated herein by reference to Exhibit 99.15 to the Amendment to Schedule 13D filed on November 12, 2014).
|
|
|
|
|
99.16
|
|
Form of Note (incorporated herein by reference to Exhibit 4.3 to the Post-Effective Amendment No. 1 to Form S-3 Registration Statement, filed by Holdings with the Securities and Exchange Commission on October 30,
2014).
|
|
|
|
|
99.17
|
|
Form of Warrant Certificate (incorporated herein by reference to Exhibit 4.4 to the Post-Effective Amendment No. 1 to Form S-3 Registration Statement, filed by Holdings with the Securities and Exchange Commission on October 30,
2014).
|
|
|
|
|
99.18
|
|
Amendment to Loan Agreement, entered into on February 25, 2015 and effective as of February 28, 2015, by and between JPP II, LLC and JPP, LLC and Sears, Roebuck and Co., Sears Development Co. and Kmart Corporation
(incorporated herein by reference to Exhibit 10.1 to the Form 8-K, filed by Holdings with the Securities and Exchange Commission on February 26, 2015).
|
|
|
|
|
99.19
|
|
Form of Subscription Rights Certificate (incorporated herein by reference to Exhibit 99.19 to the Amendment to Schedule 13D filed on June 16, 2015).
|
|
|
|
|
99.20
|
|
Exchange Agreement, dated as of June 26, 2015, by and among ESL Partners, L.P. and Edward S. Lampert and Seritage Growth Properties, L.P. and Seritage Growth Properties (incorporated herein by reference to Exhibit 99.20 to the
Amendment to Schedule 13D filed on June 29, 2015).
|
|
|
|
|
99.21
|
|
Form of Purchase and Sale Agreement, dated as of July 2, 2015, by and among the Participating Limited Partner, RBS Partners, L.P. and RBS Partners, L.P., in its capacity as general partner of either SPE I Partners, LP or SPE
Master I, LP (incorporated herein by reference to Exhibit 99.21 to the Amendment to Schedule 13D filed on July 6, 2015).
|
|
|
|
|
|
Exhibit
|
|
Description of Exhibit
|
|
|
|
|
99.22
|
|
Rule 10b5-1(c) Plan, dated July 2, 2015, by SPE I Partners, LP and RBS Partners, L.P. (incorporated herein by reference to Exhibit 99.22 to the Amendment to Schedule 13D filed on July 6, 2015).
|
|
|
|
|
99.23
|
|
Rule 10b5-1(c) Plan, dated July 2, 2015, by SPE Master I, LP and RBS Partners, L.P. (incorporated herein by reference to Exhibit 99.23 to the Amendment to Schedule 13D filed on July 6, 2015).
|
|
|
|
|
99.24
|
|
Letter Agreement, dated January 28, 2016, by and between Holdings and Edward S. Lampert (incorporated herein by reference to Exhibit 10.1 to the Form 8-K, filed by Holdings with the Securities and Exchange Commission on
February 3, 2016).
|
|
|
|
|
99.25
|
|
Joint Filing Agreement (incorporated herein by reference to Exhibit 99.25 to the Amendment to Schedule 13D filed on February 4, 2016).
|
|
|
|
|
99.26
|
|
Loan Agreement, dated as of April 8, 2016, between Sears, Roebuck and Co., Sears Development Co., Innovel Solutions, Inc., Big Beaver of Florida Development, LLC and Kmart Corporation, and JPP, LLC, JPP II, LLC and Cascade
Investment, L.L.C. (incorporated herein by reference to Exhibit 99.26 to the Amendment to Schedule 13D filed on April 12, 2016).
|
|
|
|
|
99.27
|
|
Co-Lender Agreement, dated as of April 8, 2016, by and among JPP, LLC and JPP II, LLC, and Cascade Investment, L.L.C. and each transferee of a portion of any interest in the loan made in accordance with the Co-Lender Agreement
(incorporated herein by reference to Exhibit 99.27 to the Amendment to Schedule 13D filed on April 12, 2016).
|
|
|
|
|
99.28
|
|
Assignment and Acceptance, dated as of April 8, 2016, by and between Bank of America, N.A., as assignor, and JPP II, LLC, as assignee (incorporated herein by reference to Exhibit 99.28 to the Amendment to Schedule 13D filed on
August 26, 2016).
|
|
|
|
|
99.29
|
|
Assignment and Acceptance, dated as of April 8, 2016, by and between Bank of America, N.A., as assignor, and JPP, LLC, as assignee (incorporated herein by reference to Exhibit 99.29 to the Amendment to Schedule 13D filed on
August 26, 2016).
|
|
|
|
|
99.30
|
|
Second Lien Credit Agreement, dated as of September 1, 2016, by and among Sears Holdings Corporation, Sears Roebuck Acceptance Corp. and Kmart Corporation, and JPP, LLC and JPP II, LLC (incorporated herein by reference to
Exhibit 10.1 to the Form 8-K, filed by Holdings with the Securities and Exchange Commission on September 2, 2016).
|
|
|
|
|
99.31
|
|
Pari Passu Joinder Agreement, dated as of September 1, 2016, by JPP, LLC, as agreed to and accepted by Wilmington Trust, National Association, as collateral agent (incorporated herein by reference to Exhibit 99.31 to the
Amendment to Schedule 13D filed on September 2, 2016).
|
|
|
|
|
99.32
|
|
Letter of Credit and Reimbursement Agreement, dated as of December 28, 2016, among Sears Holdings Corporation, Sears Roebuck Acceptance Corp. and Kmart Corporation, Citibank, N.A., as administrative agent and issuing bank, and
JPP, LLC and JPP II, LLC (incorporated herein by reference to Exhibit 10.1 to the Form 8-K, filed by Holdings with the Securities and Exchange Commission on December 30, 2016).
|
|
|
|
|
99.33
|
|
Loan Agreement, dated as of January 3, 2017, among Sears Roebuck and Co., Kmart Stores of Illinois LLC, Kmart of Washington LLC and Kmart Corporation, collectively as borrower, and JPP, LLC and JPP II, LLC, collectively as
initial lender (incorporated herein by reference to Exhibit 10.1 to the Form 8-K, filed by Holdings with the Securities and Exchange Commission on January 4, 2017).
|