linda,
ampuzzo posted an article relating to the nol's (post 17733). while it is an article filed before the bk it is nevertheless informative.
following taken from the article with my thoughts:
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Creditors who have held debt for 18 months before the filing and whose debt rose in the ordinary course of Sears’s business are "qualified creditors" who can thus avoid losing the tax assets even if there’s a shift in control towards them.
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if esl's bid is approved, certainly seems that a "shift in control" will occur. esl's credit bid was approved by shc and to do that, esl's debt had to be deemed qualified and esl had to be determined to be a qualified creditor.
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Avoiding liquidation is also crucial to keeping the tax assets. If Sears unwinds in bankruptcy, the net operating losses could disappear, Haya said.
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i believe that above comment from the article was made assuming that esl would not get its bid approved.
if esl owned more than 50% of the stock, then no other entity could which would mean if the going concern was sold to anybody else there would be a shift in control which would nullify the nol's.
seems like esl could not selectively wipe out common shares he did not own while keeping his own common shares intact.
the wrinkle for me is how a transaction in which esl exchanges shc debt for shares in holdco might impact the argument on a shift in control. since esl still has over 50% of the stock, maybe no impact at all and when all is said and done if "q" commons are exchanged for holdco commons then esl will just control even more than 50% which further cements his position and fortifies the "no shift in control" issue.
guessing if esl's bid is approved that all of this will shake out in a por.
hurry up and wait seems to be the order of the day
