UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): June 23, 2016
J. C. PENNEY COMPANY, INC.
(Exact name of registrant as specified in its charter)
Delaware | 1-15274 | 26-0037077 | ||
(State or other jurisdiction of incorporation) |
(Commission File No.) |
(IRS Employer Identification No.) |
||
6501 Legacy Drive Plano, Texas |
75024-3698 | |||
(Address of principal executive offices) | (Zip code) |
Registrants telephone number, including area code: (972) 431-1000
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 | Entry into a Material Definitive Agreement. |
On June 23, 2016, J. C. Penney Company, Inc. (the Company), J. C. Penney Corporation, Inc. (the Corporation) and certain subsidiaries of the Corporation (collectively, with the Company and the Corporation, the Credit Parties) entered into a Restatement Agreement to amend and restate the Corporations Existing Credit Agreement (as defined below) (the Existing Credit Agreement, as amended and restated pursuant to the Restatement Agreement, the Amended and Restated Credit Agreement) with the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the Administrative Agent), which Amended and Restated Credit Agreement provides for a $1,688,125,000 senior secured term loan credit facility (the Amended and Restated Term Loan Facility). Also on June 23, 2016, the Credit Parties entered into an Indenture (the Indenture) with Wilmington Trust, National Association, as trustee (the Trustee), which provides for the issuance by the Corporation of $500,000,000 aggregate principal amount of 5.875% Senior Secured Notes due 2023 (the Notes).
Amended and Restated Term Loan Facility
The Amended and Restated Credit Agreement replaces the Credit and Guaranty Agreement, dated as of May 22, 2013 (the Existing Credit Agreement). The maturity date for the Amended and Restated Term Loan Facility is June 23, 2023, provided that the maturity date may be extended with respect to the loans of lenders agreeing to extend the maturity date subject to certain terms and conditions specified in the Amended and Restated Credit Agreement.
Interest on the outstanding amount borrowed under the Amended and Restated Term Loan Facility accrues at an annual rate equal to either LIBOR or the base rate, at the Corporations election, in each case plus an applicable margin equal to 4.25% per annum with respect to loans bearing interest based on LIBOR or 3.25% per annum with respect to loans bearing interest based on the base rate. LIBOR is the per annum rate reported by Reuters as the London interbank offered rate as administered by ICE Benchmark Administration for dollar deposits with an interest period of one, two, three or six months (at the Corporations election), adjusted to account for reserves required to be maintained by member banks of the Federal Reserve System against Eurocurrency liabilities, with a minimum LIBOR floor of 1.00%. The base rate is the per annum rate equal to the greatest of (i) the prime rate in effect at the Administrative Agents principal office in New York City, (ii) the greater of (a) the federal funds effective rate and (b) the overnight bank funding rate, plus 0.50% and (iii) LIBOR with an interest period of one month plus 1.00%, with a minimum base rate floor of 2.00%. In addition, the Corporation is required to pay certain fees in connection with the Amended and Restated Term Loan Facility, including a closing fee paid to the lenders under the Amended and Restated Term Loan Facility equal to 0.50% of the stated principal amount of the Amended and Restated Term Loan Facility.
The Corporation is required to make quarterly repayments of the loans outstanding under the Amended and Restated Term Loan Facility in a principal amount equal to 2.5% per annum of the initial principal amount of the loans under the Amended and Restated Term Loan Facility, beginning September 30, 2016, with such repayments to be reduced based on the application of mandatory and optional prepayments made from time to time pursuant to the terms of the
Amended and Restated Credit Agreement. The Amended and Restated Credit Agreement contains customary mandatory prepayment provisions with respect to certain asset sales, insurance and condemnation recovery events and excess cash flow. In the event all or any portion of the loans under the Amended and Restated Term Loan Facility are repaid (or repriced or effectively refinanced through any amendment of the Amended and Restated Term Loan Facility) for any reason, other than any mandatory prepayment with respect to insurance and condemnation recovery events or excess cash flow, prior to December 23, 2016, such repayments or repricings are required to be made at 101.0% of the amount repaid or repriced. No premium is required to be paid with respect to any repayments or repricings occurring on or after December 23, 2016.
As with the Existing Credit Agreement, the Amended and Restated Credit Agreement contains customary representations and warranties, affirmative and negative covenants and events of default for a transaction of this type. As with the Existing Credit Agreement, if an event of default under the Amended and Restated Credit Agreement occurs and is continuing, the Administrative Agent, with the consent of or at the request of lenders holding more than 50% of the principal amount of the loans outstanding under the Amended and Restated Term Loan Facility may declare the loans and all other obligations under the Amended and Restated Term Loan Facility immediately due and payable in whole or in part or cause the Collateral Agent (as defined below) to enforce any and all liens and security interests securing the loans and other obligations under the Amended and Restated Term Loan Facility. In addition, if any Credit Party or any of its subsidiaries becomes the subject of certain voluntary or involuntary proceedings under any bankruptcy, insolvency or other similar debtor relief law, then the loans and other obligations under the Amended and Restated Credit Agreement will automatically become due and payable without any further action.
Indenture
The Notes were sold to qualified institutional buyers in reliance on Rule 144A under the Securities Act of 1933, as amended (the Securities Act), and outside the United States to non-U.S. persons in reliance on Regulation S under the Securities Act. The Notes have not been registered under the Securities Act or any state securities laws and, unless so registered, may not be offered or sold in the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws. The Notes will bear interest at a rate of 5.875% per year and will mature on July 1, 2023. Interest on the Notes will be payable on January 1 and July 1 of each year, commencing on January 1, 2017. The form of Note is filed herewith as Exhibit 4.1 and is incorporated herein by reference.
At any time, and from time to time, prior to July 1, 2019, the Corporation may redeem the Notes in whole or in part, at the Corporations option, at a redemption price equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the applicable treasury rate plus 50 basis points, plus, in each case, any accrued and unpaid interest to, but not including, the date of redemption. The Corporation may also redeem the Notes in whole or in part at any
time, and from time to time, on or after July 1, 2019 and prior to maturity at a redemption price equal to (i) 102.938% of the principal amount of the Notes to be redeemed if the redemption occurs on or after July 1, 2019 and before July 1, 2020, (ii) 101.469% of the principal amount of the Notes to be redeemed if the redemption occurs on or after July 1, 2020 and before July 1, 2021 or (iii) 100% of the principal amount of the Notes if the redemption occurs on or after July 1, 2021 plus, in each case, any accrued and unpaid interest to, but not including, the redemption date. In addition, at any time, and from time to time, prior to July 1, 2019, the Corporation may redeem up to 35% of the original principal amount of the Notes at a redemption price equal to 105.875% of the principal amount of the Notes to be redeemed, plus any accrued and unpaid interest to, but not including, the redemption date, with the net cash proceeds from a qualified equity offering.
The Indenture contains covenants that, among other things, limit the Corporations ability to consolidate, merge or sell all or substantially all of its properties or assets, to sell Collateral (as defined below) other than ABL Priority Collateral (as defined below) (Term Loan/Notes Exclusive Collateral), to create liens and to engage in certain sale and lease-back transactions with the Term Loan/Notes Exclusive Collateral. In the event the aggregate net cash proceeds from permitted dispositions of Term Loan/Notes Exclusive Collateral not invested pursuant to the terms of the Indenture exceed $25 million, the Corporation must offer to repurchase a portion of the Notes with such proceeds at a price equal to 100% of the principal amount (or, if such proceeds are from certain sale and lease-back transactions, 103% of the principal amount) plus any accrued and unpaid interest to, but not including, the repurchase date. Further, if a change of control occurs, the Corporation must offer to repurchase all of the Notes at a price equal to 101% of the principal amount plus any accrued and unpaid interest to, but not including, the repurchase date.
The Indenture also contains customary events of default for a transaction of this type. If an event of default under the Indenture occurs and is continuing, the Trustee or the holders of at least 25% in principal amount of the Notes outstanding under the Indenture may declare the Notes and all other obligations immediately due and payable in whole or in part. In addition, if any Credit Party becomes the subject of certain voluntary or involuntary proceedings under any bankruptcy, insolvency or other similar debtor relief law, then the obligations under the Indenture will automatically become due and payable without any further action.
Amended and Restated Security Agreement, ABL Intercreditor Agreement and Pari Passu Intercreditor Agreement
The loans and other obligations under the Amended and Restated Term Loan Facility and the Notes are guaranteed on a senior secured basis by the Company and the subsidiaries of the Corporation that are Credit Parties. The loans and other obligations under the Amended and Restated Term Loan Facility and the Notes are secured on a pari passu basis by collateral substantially similar to the collateral under the Existing Credit Agreement (the Collateral), including mortgages on certain real estate of the Credit Parties in addition to liens on substantially all personal property of the Credit Parties, subject to certain exclusions set forth in the Amended and Restated Credit Agreement, the Indenture and the related security documents, including an Amended and Restated Pledge and Security Agreement (the Amended and
Restated Security Agreement), dated as of June 23, 2016, among the Credit Parties and Wilmington Trust, National Association, as collateral agent (the Collateral Agent). The Amended and Restated Pledge and Security Agreement replaces the Pledge and Security Agreement, dated as of May 22, 2013 (the Existing Security Agreement). The Amended and Restated Security Agreement provides for (i) a grant, and confirms the prior grant pursuant to the Existing Security Agreement, of a security interest over the collateral described therein in favor of the Collateral Agent on behalf of the lenders and other secured parties under the Amended and Restated Term Loan Facility and the holders of the Notes, (ii) certain perfection requirements and (iii) customary representations and warranties, covenants and remedial provisions with respect to the collateral described therein. The liens securing the loans and other obligations under the Amended and Restated Term Loan Facility and the Notes with respect to inventory, accounts receivable, deposit accounts and certain related collateral of the Credit Parties (the ABL Priority Collateral) are junior to the liens on such collateral securing the loans and other obligations incurred under the Credit Agreement (as amended, the ABL Credit Agreement), dated as of June 20, 2014, and amended as of December 10, 2015, among the Company, the Corporation, J. C. Penney Purchasing Corporation, the lenders party thereto, Wells Fargo Bank, National Association, as administrative agent and co-collateral agent, and certain other persons party thereto, pursuant to an Intercreditor and Collateral Cooperation Agreement (the ABL Intercreditor Agreement), dated as of June 23, 2016, among Wells Fargo Bank, National Association, as representative of the lenders party to the ABL Credit Agreement, Wilmington Trust, National Association, as representative of the holders of the loans and other obligations under the Amended and Restated Term Loan Facility and the holders of the Notes, and the Credit Parties. The ABL Intercreditor Agreement replaces the Intercreditor and Collateral Cooperation Agreement, dated as of May 22, 2013. The ABL Intercreditor Agreement governs, as between the holders of the loans and other obligations under the Amended and Restated Term Loan Facility and the holders of the Notes, on one hand, and the holders of the loans and other obligations under the ABL Credit Agreement, on the other, with respect to the ABL Priority Collateral, the respective lien priorities, enforcement rights, application of proceeds and rights under insolvency proceedings. The ABL Intercreditor Agreement also provides for customary conditions on refinancing the obligations subject to the ABL Intercreditor Agreement.
The rights and remedies of the lenders and other secured parties under the Amended and Restated Term Loan Facility and the holders of the Notes with respect to the Collateral are also subject to a Pari Passu Intercreditor Agreement (the Pari Passu Intercreditor Agreement), dated as of June 23, 2016, among the Collateral Agent, JPMorgan Chase Bank, N.A., as representative of the holders of the loans and other obligations under the Amended and Restated Term Loan Facility, and Wilmington Trust, National Association, as representative of the holders of the Notes. The Pari Passu Intercreditor Agreement provides that the loans and other obligations under the Amended and Restated Term Loan Facility and the Notes are secured on a pari passu basis by the Collateral, and governs, as between the holders of the loans and other obligations under the Amended and Restated Term Loan Facility and the holders of the Notes, with respect to the Collateral, the respective claim priorities, enforcement rights, application of proceeds and rights under insolvency proceedings. The Pari Passu Intercreditor Agreement also provides for customary conditions on refinancing the obligations subject to the Pari Passu Intercreditor Agreement.
General
Proceeds of the Amended and Restated Term Loan Facility, together with the proceeds of the Notes, were used to repay the entire outstanding principal balance under the Existing Credit Agreement.
Certain of the lenders who are parties to the Restatement Agreement and certain of the initial purchasers of the Notes and their related entities provide commercial banking, investment banking, trustee and custodial services to the Company.
Copies of the Indenture, the Restatement Agreement, the Amended and Restated Security Agreement, the ABL Intercreditor Agreement and the Pari Passu Intercreditor Agreement are filed herewith as Exhibits 4.1, 10.1, 10.2, 10.3 and 10.4, respectively. The foregoing descriptions of the Indenture, the Restatement Agreement, the Amended and Restated Security Agreement, the ABL Intercreditor Agreement and the Pari Passu Intercreditor Agreement do not purport to be complete and are qualified in their entirety by reference to the full texts of the Indenture, the Restatement Agreement, the Amended and Restated Security Agreement, the ABL Intercreditor Agreement and the Pari Passu Intercreditor Agreement, respectively, which are incorporated herein by reference.
Item 2.03 | Creation of a Direct Financial Obligation or Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information set forth under Item 1.01 above regarding the Amended and Restated Credit Agreement and the Indenture is incorporated herein by reference as if fully set forth herein.
Item 9.01 | Financial Statements and Exhibits. |
(d)
Exhibit
|
Description |
|
4.1 | Indenture (including the form of Note), dated as of June 23, 2016, among J. C. Penney Company, Inc., J. C. Penney Corporation, Inc., the subsidiary guarantors party thereto and Wilmington Trust, National Association | |
10.1 | Restatement Agreement, dated as of June 23, 2016, among J. C. Penney Company, Inc., J. C. Penney Corporation, Inc., the subsidiary guarantors party thereto, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent | |
10.2 | Amended and Restated Pledge and Security Agreement, dated as of June 23, 2016, among J. C. Penney Company, Inc., J. C. Penney Corporation, Inc., the subsidiary guarantors party thereto and Wilmington Trust, National Association, as collateral agent |
10.3 |
Intercreditor and Collateral Cooperation Agreement, dated as of June 23, 2016, among Wells Fargo Bank, National Association, as representative for the ABL secured parties, Wilmington Trust, National Association, as representative for the term loan/notes secured parties, J. C. Penney Company, Inc., J. C. Penney Corporation, Inc. and the subsidiary guarantors party thereto | |
10.4 |
Pari Passu Intercreditor Agreement, dated as of June 23, 2016, among Wilmington Trust, National Association, as collateral agent, Wilmington Trust, National Association, as trustee, and JPMorgan Chase Bank, N.A., as administrative agent |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
J. C. PENNEY COMPANY, INC. | ||
By: |
/s/ Andrew S. Drexler |
|
Andrew S. Drexler | ||
Senior Vice President, Chief Accounting Officer and Controller |
Date: June 24, 2016
EXHIBIT INDEX
Exhibit
|
Description |
|
4.1 | Indenture (including the form of Note), dated as of June 23, 2016, among J. C. Penney Company, Inc., J. C. Penney Corporation, Inc., the subsidiary guarantors party thereto and Wilmington Trust, National Association | |
10.1 | Restatement Agreement, dated as of June 23, 2016, among J. C. Penney Company, Inc., J. C. Penney Corporation, Inc., the subsidiary guarantors party thereto, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent | |
10.2 | Amended and Restated Pledge and Security Agreement, dated as of June 23, 2016, among J. C. Penney Company, Inc., J. C. Penney Corporation, Inc., the subsidiary guarantors party thereto and Wilmington Trust, National Association, as collateral agent | |
10.3 | Intercreditor and Collateral Cooperation Agreement, dated as of June 23, 2016, among Wells Fargo Bank, National Association, as representative for the ABL secured parties, Wilmington Trust, National Association, as representative for the term loan/notes secured parties, J. C. Penney Company, Inc., J. C. Penney Corporation, Inc. and the subsidiary guarantors party thereto | |
10.4 | Pari Passu Intercreditor Agreement, dated as of June 23, 2016, among Wilmington Trust, National Association, as collateral agent, Wilmington Trust, National Association, as trustee, and JPMorgan Chase Bank, N.A., as administrative agent |
EXHIBIT 4.1
EXECUTION VERSION
J. C. PENNEY CORPORATION, INC.,
as Issuer,
the GUARANTORS party hereto
AND
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee
$500,000,000 5.875% Senior Secured Notes due 2023
INDENTURE
Dated as of June 23, 2016
Table of Contents
Page | ||||||
ARTICLE I | ||||||
DEFINITIONS AND INCORPORATION BY REFERENCE | ||||||
SECTION 1.1. |
Definitions |
1 | ||||
SECTION 1.2. |
Other Definitions |
21 | ||||
SECTION 1.3. |
Rules of Construction |
22 | ||||
SECTION 1.4. |
Inapplicability of the Trust Indenture Act |
23 | ||||
ARTICLE II | ||||||
THE NOTES | ||||||
SECTION 2.1. |
Form, Dating and Terms |
23 | ||||
SECTION 2.2. |
Execution and Authentication |
27 | ||||
SECTION 2.3. |
Registrar and Paying Agent |
28 | ||||
SECTION 2.4. |
Paying Agent to Hold Money in Trust |
28 | ||||
SECTION 2.5. |
Holder Lists |
28 | ||||
SECTION 2.6. |
Transfer and Exchange |
29 | ||||
SECTION 2.7. |
Mutilated, Destroyed, Lost or Stolen Notes |
32 | ||||
SECTION 2.8. |
Outstanding Notes |
32 | ||||
SECTION 2.9. |
Temporary Notes |
33 | ||||
SECTION 2.10. |
Cancellation |
33 | ||||
SECTION 2.11. |
Payment of Interest; Defaulted Interest |
33 | ||||
SECTION 2.12. |
CUSIP and ISIN Numbers |
34 | ||||
ARTICLE III | ||||||
COVENANTS | ||||||
SECTION 3.1. |
Payment of Notes |
34 | ||||
SECTION 3.2. |
Maintenance of Office or Agency |
34 | ||||
SECTION 3.3. |
Stay, Extension and Usury Laws |
35 | ||||
SECTION 3.4. |
Compliance Certificate |
35 | ||||
SECTION 3.5. |
Limitation on Asset Dispositions |
35 | ||||
SECTION 3.6. |
Limitation on Liens |
38 | ||||
SECTION 3.7. |
Limitation on Sale and Lease-Back Transactions |
38 | ||||
SECTION 3.8. |
Subsidiaries |
38 | ||||
SECTION 3.9. |
Change of Control |
38 | ||||
SECTION 3.10. |
Reports |
40 | ||||
SECTION 3.11. |
Post-Closing Collateral Matters |
40 | ||||
SECTION 3.12. |
Statement by Officers as to Default |
40 | ||||
ARTICLE IV | ||||||
CONSOLIDATION, MERGER OR SALE OF ASSETS | ||||||
SECTION 4.1. |
Consolidation, Merger or Sale of Assets |
40 | ||||
SECTION 4.2. |
Successor Corporation Substituted |
41 |
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-ii-
Page | ||||||
ARTICLE IX | ||||||
AMENDMENTS | ||||||
SECTION 9.1. |
Without Consent of Holders |
55 | ||||
SECTION 9.2. |
With Consent of Holders |
56 | ||||
SECTION 9.3. |
[Reserved] |
57 | ||||
SECTION 9.4. |
Revocation and Effect of Consents and Waivers |
57 | ||||
SECTION 9.5. |
Notation on or Exchange of Notes |
58 | ||||
SECTION 9.6. |
Trustee to Sign Amendments |
58 | ||||
ARTICLE X | ||||||
GUARANTEE | ||||||
SECTION 10.1. |
Guarantee |
58 | ||||
SECTION 10.2. |
Limitation on Liability; Termination, Release and Discharge |
60 | ||||
SECTION 10.3. |
Right of Contribution |
60 | ||||
SECTION 10.4. |
No Subrogation |
61 | ||||
ARTICLE XI | ||||||
SATISFACTION AND DISCHARGE | ||||||
SECTION 11.1. |
Satisfaction and Discharge |
61 | ||||
SECTION 11.2. |
Application of Trust Money |
62 | ||||
ARTICLE XII | ||||||
COLLATERAL | ||||||
SECTION 12.1. |
Collateral Documents |
62 | ||||
SECTION 12.2. |
Release or Subordination of Liens on the Collateral |
63 | ||||
ARTICLE XIII | ||||||
MISCELLANEOUS | ||||||
SECTION 13.1. |
Notices |
64 | ||||
SECTION 13.2. |
[Reserved] |
65 | ||||
SECTION 13.3. |
Certificate and Opinion as to Conditions Precedent. |
65 | ||||
SECTION 13.4. |
Statements Required in Certificate or Opinion |
65 | ||||
SECTION 13.5. |
When Notes Disregarded |
65 | ||||
SECTION 13.6. |
Rules by Trustee, Paying Agent and Registrar |
66 | ||||
SECTION 13.7. |
Legal Holidays |
66 | ||||
SECTION 13.8. |
Governing Law |
66 | ||||
SECTION 13.9. |
Jurisdiction |
66 | ||||
SECTION 13.10. |
Waivers of Jury Trial |
66 | ||||
SECTION 13.11. |
USA PATRIOT Act |
66 | ||||
SECTION 13.12. |
No Recourse Against Others |
66 | ||||
SECTION 13.13. |
Successors |
66 | ||||
SECTION 13.14. |
Multiple Originals |
67 | ||||
SECTION 13.15. |
Table of Contents; Headings |
67 | ||||
SECTION 13.16. |
Force Majeure |
67 | ||||
SECTION 13.17. |
Severability |
67 |
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EXHIBIT A |
Form of Global Restricted Note |
|
EXHIBIT B |
Form of Supplemental Indenture |
|
EXHIBIT C |
Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S |
-iv-
INDENTURE, dated as of June 23, 2016, among J. C. PENNEY CORPORATION, INC., a Delaware corporation (the Issuer ), the Guarantors party hereto from time to time and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, as trustee (in such capacity, the Trustee ).
W I T N E S S E T H :
WHEREAS, the Issuer and the Guarantors have duly authorized the execution and delivery of this Indenture to provide for the issuance and guarantee, respectively, of (i) the Issuers $500,000,000 5.875% Senior Secured Notes due 2023 (the Initial Notes ), as issued on the date hereof, and (ii) any additional 5.875% Senior Secured Notes due 2023 issued pursuant to this Indenture (the Additional Notes , and together with the Initial Notes, the Notes or the Securities ) from time to time after the Issue Date.
NOW, THEREFORE, in consideration of the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders, as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions .
1994 Indenture means the Indenture, dated as of April 1, 1994, between Holdings and Bank of America National Trust and Savings Association, as amended by a first supplemental indenture, dated as of January 27, 2002 between Holdings and U.S. Bank National Association, and a second supplemental indenture, dated as of July 26, 2002, by and among Holdings, the Issuer and U.S. Bank National Association, as the same may be amended, restated, supplemented, replaced or otherwise modified from time to time.
ABL Collateral Agent means the ABL Agent (as defined in the ABL Intercreditor Agreement).
ABL Credit Agreement has the meaning set forth in the ABL Intercreditor Agreement.
ABL Intercreditor Agreement means that certain Intercreditor and Collateral Cooperation Agreement, dated the Issue Date, among the ABL Collateral Agent, the Collateral Agent, the Issuer, the Guarantors party thereto and the other parties thereto from time to time.
ABL Lender means each lender from time to time party to the ABL Credit Agreement.
ABL Loan Documents has the meaning set forth in the ABL Intercreditor Agreement.
ABL Secured Obligations means the First Priority Obligations (as defined in the ABL Intercreditor Agreement).
ABL Secured Obligations Payment Date means the First Priority Obligations Payment Date (as defined in the ABL Intercreditor Agreement).
ABL Secured Parties has the meaning set forth in the ABL Intercreditor Agreement.
Additional Notes has the meaning set forth in the first recital paragraph of this Indenture.
Affiliate means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
Applicable Authorized Representative has the meaning given to such term in the Pari Passu Intercreditor Agreement.
Appraised Value of any Real Estate Asset subject to a Mortgage in favor of the Collateral Agent shall mean the appraised value (determined based on an estimated market rent valuation methodology) thereof as determined pursuant to an appraisal conducted by Cushman & Wakefield or any other appraiser of nationally recognized standing that is not an Affiliate of the Issuer that is selected by the Issuer; provided that such appraisal has been conducted within twelve months of the date of determination of the Collateral Coverage Ratio.
Asset Disposition means:
(a) the sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of (i) Term Loan/Notes Exclusive Collateral or (ii) any Issue Date Material Real Estate Asset (including by way of a Sale/Leaseback Transaction) of Holdings or any of its Subsidiaries (in each case other than Equity Interests of Holdings) (each referred to in this definition as a disposition ); or
(b) the issuance or sale of Equity Interests of any Subsidiary of Holdings, whether in a single transaction or a series of related transactions;
in each case, other than:
(1) dispositions to Holdings or any of its Subsidiaries or any of its Excluded Subsidiaries (other than dispositions of Issue Date Material Real Estate Assets to a Subsidiary that is not a Guarantor);
(2) any merger, consolidation or disposition of all or substantially all of the assets of the Issuer in a transaction governed by the provisions described under Article IV or any transaction constituting a Change of Control;
(3) dispositions of inventory and used or surplus equipment, in each case, in the ordinary course of business, and dispositions of cash, cash equivalents and other Permitted Investments;
(4) disposals of inventory pursuant to promotional or similar activities in the ordinary course of business;
(5) dispositions in the ordinary course of business of property no longer used or useful in the conduct of the business of Holdings and the Subsidiaries or property that is otherwise damaged, worn-out or no longer economically practicable to maintain, in the judgment of the Issuer (other than Issue Date Material Real Estate Assets);
(6) any issuance of Equity Interests by, or disposition of Equity Interests of, any Subsidiary that is not a Material Subsidiary, or as part of or pursuant to an equity incentive or compensation plan approved by the Board of Directors, including the issuance of directors qualifying shares;
(7) (i) any exchange of real property pursuant to or intended to qualify under Section 1031 (or any successor section) of the Internal Revenue Code; provided that the fair market value of properties sold pursuant to this clause (7)(i) for which a Mortgage in favor of the Collateral Agent has not been granted on the property received in the exchange shall not exceed $75,000,000 at any time or (ii) dispositions of equipment in the ordinary course of business to the extent that (x) such equipment is exchanged for credit against the purchase price of similar replacement equipment or (y) the proceeds of such disposition are promptly applied to the purchase price of such replacement equipment;
(8) dispositions in connection with, or the granting of, Permitted Liens or other Liens not prohibited by Section 3.6 ;
(9) bulk sales or other dispositions of inventory of Holdings or a Subsidiary not in the ordinary course of business in connection with store closings;
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(10) the licensing or sub-licensing of intellectual property or other general intangibles and licenses, sub-licenses, leases or subleases of other property (including the provision of software under an open source license), in each case, (A) in the ordinary course of business or consistent with past practice or (B) in connection with the discontinuance of the operations of any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by Holdings or any of its Subsidiaries or any of their respective predecessors or Affiliates no longer deemed by Holdings or any Subsidiary, as applicable, to be useful in the conduct of the business of Holdings or any Subsidiary, taken as a whole;
(11) foreclosure, condemnation or any similar action with respect to any property or other assets or pursuant to buy/sell arrangements under any joint venture or similar agreement or arrangement;
(12) the sale or discount (with or without recourse, and on customary or commercially reasonable terms and for credit management purposes) of accounts receivable or notes receivable arising in the ordinary course of business or consistent with past practice, or the conversion or exchange of accounts receivable for notes receivable and dispositions of accounts receivable in connection with the collection or compromise thereof;
(13) any disposition of Equity Interests of a Subsidiary of Holdings pursuant to an agreement or other obligation with or to a Person (other than Holdings or a Subsidiary of Holdings) from whom such Subsidiary was acquired, or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition;
(14) any surrender or waiver of contract rights or the settlement, release, sale, assignment or surrender of contract, tort or other claims of any kind or rights to receive payments with respect to any such claims;
(15) the unwinding of any Hedging Obligations;
(16) any voluntary termination of any (or any portion of any) real property lease, sublease or other occupancy agreement in the ordinary course of business or in connection with the discontinuance of the operations of any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by Holdings or any of its Subsidiaries or any of their respective predecessors or Affiliates no longer deemed by Holdings or any Subsidiary of Holdings, as applicable, to be useful in the conduct of the business;
(17) a disposition of the condominium within the Overland Park, Kansas store to the developer thereof for payment of nominal consideration;
(18) the lapse or abandonment or other disposition of patents, trademarks or other intellectual property that are, in the reasonable judgment of the Issuer, no longer economically practicable to maintain or useful in the conduct of the business of Holdings and its Subsidiaries taken as a whole;
(19) sales, transfers or dispositions pursuant to clause (a) of Section 3.7 ; and
(20) any other disposition involving Term Loan/Notes Exclusive Collateral or Issue Date Material Real Estate Assets with a fair market value (as determined in good faith by the Issuer) that does not exceed $5,000,000 in any Fiscal Year.
Authorized Representative has the meaning set forth in the Pari Passu Intercreditor Agreement.
Bankruptcy Code means Title 11 of the United States Code entitled Bankruptcy, as now and hereafter in effect, or any successor statute or any similar federal or state law for the relief of debtors.
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Board of Directors means (1) with respect to the Issuer or any corporation, the board of directors or managers, as applicable, of the corporation, or any duly authorized committee thereof; (2) with respect to any partnership, the board of directors or other governing body of the general partner of the partnership or any duly authorized committee thereof; and (3) with respect to any other Person, the board or any duly authorized committee of such Person serving a similar function. Whenever any provision requires any action or determination to be made by, or any approval of, a Board of Directors, such action, determination or approval shall be deemed to have been taken or made if approved by a majority of the directors on any such Board of Directors (whether or not such action or approval is taken as part of a formal board meeting or as a formal board approval).
Business Day means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York, United States or the jurisdiction of the place of payment are authorized or required by law to close.
Capital Lease Obligations of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
Change of Control means the occurrence of any of the following:
(1) any event requiring the filing of any report under or in response to Schedule 13D or 14D-1 pursuant to the Securities Exchange Act of 1934, as amended, disclosing beneficial ownership of either 50% or more of the common stock of Holdings then outstanding or 50% or more of the voting power of the voting stock of Holdings then outstanding;
(2) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of Holdings and its subsidiaries taken as a whole to one or more Persons other than Holdings or one of its Subsidiaries; or
(3) the first day on which a majority of the members (not counting vacant seats) of Holdings Board of Directors are not Continuing Directors.
Collateral means, collectively, all of the real, personal and mixed property (including Equity Interests) in which Liens are purported to be granted pursuant to the Collateral Documents as security for the Term Loan/Notes Secured Obligations.
Collateral Agent means Wilmington Trust, National Association in its capacity as Collateral Agent under the Pari Passu Intercreditor Agreement and its successors in such capacity.
Collateral Coverage Ratio means, as of any date, the ratio of (a) the aggregate Appraised Value of all Real Estate Assets that are subject to a Mortgage on such date to (b) the aggregate principal amount of the Term Loan/Notes Secured Obligations as of such date.
Collateral Documents means the Term Loan/Notes Security Documents (as defined in the Pari Passu Intercreditor Agreement).
Consolidated Adjusted EBITDA means, for any period, Consolidated Net Income for such period (disregarding any non-cash charges or credits related to any Plan, any non-qualified supplemental pension plan maintained, sponsored or contributed to by Holdings or any ERISA Affiliate, or any Multiemployer Plan) plus:
(a) without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of:
(i) consolidated interest expense for such period, plus
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(ii) consolidated financing costs associated with securitization programs for such period, plus
(iii) consolidated income tax expense for such period, plus
(iv) all amounts attributable to depreciation and amortization for such period, plus
(v) any extraordinary, unusual or non-recurring charges for such period, plus
(vi) any fees, expenses or charges related to any equity offering, permitted acquisition or other investment, Asset Disposition or other disposition, or incurrence or refinancing of (or amendment or other modification to the documents evidencing any) Indebtedness (in each case, whether or not successful or consummated) permitted to be made or incurred under this Indenture, including fees, expenses or charges relating to the Transactions, plus
(vii) any premium, make-whole or penalty payments that are required to be made in connection with any prepayment of Indebtedness, plus
(viii) any non-cash charges for such period; provided that in the event Holdings or any Subsidiary makes any cash payment in respect of any such non-cash charge, such cash payment shall be deducted from Consolidated Adjusted EBITDA in the period in which such payment is made, plus
(ix) the amount of cash restructuring charges and curtailments and modifications to pension and post-retirement employee benefit plans incurred during such period;
and minus :
(b) without duplication and to the extent included in determining such Consolidated Net Income, the sum of:
(i) any extraordinary, unusual or non-recurring gains for such period, plus
(ii) non-cash gains for such period;
all determined on a consolidated basis in accordance with GAAP.
Consolidated Net Income means, for any period, the net income or loss of Holdings and the Subsidiaries for such period determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or loss) of any Person (other than Holdings) in which any other Person (other than Holdings or any Subsidiary or any director holding qualifying shares in compliance with applicable law) owns an Equity Interest, except to the extent of the amount of dividends or other distributions actually paid to Holdings or any of the Subsidiaries during such period, and (b) the income or loss of any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with Holdings or any Subsidiary or the date that such Persons assets are acquired by Holdings or any Subsidiary.
Consolidated Total Debt means, as at any date of determination, (a) the aggregate stated balance sheet amount of all Indebtedness of Holdings and its Subsidiaries (or, if higher, the par value or stated face amount outstanding of all such Indebtedness (other than zero coupon Indebtedness)) determined on a consolidated basis in accordance with GAAP, minus (b) the aggregate stated balance sheet amount of cash and cash equivalents (in each case, free and clear of all Liens, other than Permitted Encumbrances and Permitted Liens described in clauses (a), (m) and (u) of the definition of Permitted Liens) in excess of the Operating Cash Threshold; provided that the proceeds of the Indebtedness being incurred by Holdings or any Subsidiary for which this calculation is being made
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shall not be considered cash or cash equivalents for purposes of any netting pursuant to clause (b) of this definition; provided, however, that the application of such proceeds shall be given pro forma effect as set forth in the definition of Senior Secured Leverage Ratio.
Continuing Director means, as of any date of determination, any member of the Board of Directors of Holdings who (1) was a member of such Board of Directors on the Issue Date, or (2) was nominated or approved for election or elected or appointed to such Board of Directors by such Board or Directors or a committee thereof or with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election (either by a specific vote or by approval of Holdings proxy statement in which such member was named as a nominee for election as a director, without objection to such nomination).
Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. Controlling and Controlled have meanings correlative thereto.
Controlled Foreign Corporation shall mean controlled foreign corporation as defined in Section 957 (or any successor statute thereto) of the Internal Revenue Code.
Corporate Trust Office shall mean the office of the Trustee specified in Section 13.1 or such other address as to which the Trustee may give notice to the Issuer or Holders pursuant to the procedures set forth in Section 13.11 .
Custodian means any receiver, trustee, assignee, liquidator, custodian or similar official under the Bankruptcy Code.
Default means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default; provided that any Default that results solely from the taking of an action that would have been permitted but for the continuation of a previous Default will be deemed to be cured if such previous Default is cured prior to becoming an Event of Default.
Definitive Notes means certificated Notes.
Depositary means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.3 as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture.
Designated Non-Cash Consideration means the fair market value (as determined in good faith by the Issuer) of non-cash consideration received by Holdings or any Subsidiary in connection with an Asset Disposition that is so designated as Designated Non-Cash Consideration pursuant to an Officers Certificate, less the amount of cash, Cash Equivalents or other Permitted Investments received in connection with a subsequent sale of or collection on such Designated Non-Cash Consideration.
Disqualified Equity Interests means any Equity Interest that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable, either mandatorily or at the option of the holder thereof), or upon the happening of any event or condition: (a) matures or is mandatorily Payable (other than solely for Equity Interests that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests), whether pursuant to a sinking fund obligation or otherwise, prior to the date that is 90 days after the maturity date of the Notes (measured as of the time that such Equity Interest is issued); (b) is convertible or exchangeable at the option of the holder thereof for Indebtedness or Equity Interests (other than solely for Equity Interests that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests), prior to the date that is 90 days after the maturity date of the Notes (measured as of the time that such Equity Interest is issued); or (c) is Payable or is required to be Paid (other than solely for Equity Interests that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests) by Holdings or any of its Subsidiaries, in whole or in part, at the option of the holder thereof, prior to the date that is 90 days after the maturity date of the Notes (measured as of the time that such Equity Interest is issued); provided that clauses (a) and (c) hereto (other
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than the exclusions set forth therein) shall not apply (x) to any requirement of mandatory Payment that is contingent upon (i) an asset disposition (or similar event, including condemnation or casualty), the incurrence of Indebtedness or a change of control (or similar event) if such mandatory Payment can be avoided through Payment of the Notes or through investments by Holdings or any of its Subsidiaries in assets to be used in their businesses or if such mandatory Payment is contingent upon prior payment in full of the Notes, and (ii) in addition to clause (i) above, in the case of a convertible security or a mandatorily convertible unit, a fundamental change (or similar event) or (y) if any Equity Interests would constitute Disqualified Equity Interests solely because the holders of such Equity Interests have the right to require the Issuer to repurchase such Equity Interests upon the occurrence of a change of control or an asset disposition or similar transaction if the terms of such Equity Interests provide that the Issuer may not repurchase or redeem any such Equity Interests prior to the Issuers repurchase of the Notes as required by this Indenture; provided , further , that only the portion of such Equity Interests which is required to be Paid, is so convertible or exchangeable, either mandatorily or at the option of the holder thereof, prior to the maturity date of the Notes shall constitute Disqualified Equity Interests, and provided , further , that Equity Interests issued to any employee benefit plan, or by any such plan to any employees of Holdings or any of its Subsidiaries, shall not constitute Disqualified Equity Interests solely because they may be required to be Paid in order to satisfy applicable statutory or regulatory obligations.
Dollars or $ means the lawful money of the United States of America.
Domestic Subsidiary means any Subsidiary that is not a Foreign Subsidiary.
DTC means The Depository Trust Company or any successor securities clearing agency.
Equity Interests means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing.
Equity Offering means a public or private offering or sale for cash by Holdings of its Equity Interests (other than Disqualified Equity Interests).
ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the final rules and regulations promulgated thereunder, as from time to time in effect.
ERISA Affiliate means any trade or business (whether or not incorporated) that, together with Holdings, is treated as a single employer under Section 414(b) or (c) of the Internal Revenue Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Internal Revenue Code, is treated as a single employer under Section 414 of the Internal Revenue Code.
Exchange Act means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder, as amended.
Excluded Asset has the meaning set forth in the Security Agreement (as defined in the Pari Passu Intercreditor Agreement).
Excluded Immaterial Subsidiary means, at any date of determination, any Subsidiary of Holdings that, taken together with all Excluded Immaterial Subsidiaries that are designated as Excluded Subsidiaries, did not represent more than 5% of the total Net Tangible Assets of Holdings and its Subsidiaries.
Excluded Subsidiary means, at any date, (i) any Realty Company that is not a Material Subsidiary as of such date, (ii) J. C. Penney Services India Private Limited and (iii) any other Excluded Immaterial Subsidiary designated by the Issuer in writing to the Trustee. For purposes of determining whether a Realty Company is a Material Subsidiary or such other Excluded Subsidiary is an Excluded Immaterial Subsidiary, the computations required by the definition of the terms Material Subsidiary and Excluded Immaterial Subsidiary, as applicable, shall be made including the assets of all Excluded Subsidiaries.
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Existing Notes means the Issuers 5.65% Senior Notes due 2020, 5.75% Senior Notes due 2018, 6.375% Senior Notes due 2036, 6.9% Notes due 2026, 7.125% Debentures due 2023, 7.125% Debentures due 2023, 7.4% Debentures due 2037, 7.625% Notes due 2097, 7.65% Debentures 2016, 7.95% Debentures due 2017, and 8.125% Senior Notes due 2019.
fair market value means the consideration received or paid in any transaction or series of transactions, a value that is fair and on market terms as determined by an Officer or the Board of Directors in good faith.
Fiscal Quarter means a fiscal quarter of any Fiscal Year.
Fiscal Year means the fiscal year of Holdings and its Subsidiaries ending on the Saturday closest to January 31 of each calendar year.
Fitch means Fitch Ratings, or any successor thereto.
Foreign Subsidiary means (x) any Subsidiary not organized under the laws of the United States of America, any state thereof or the District of Columbia and any Subsidiary of such Foreign Subsidiary and (y) any Foreign Subsidiary Holdco.
Foreign Subsidiary Holdco means a Domestic Subsidiary if (i) it has no material assets other than Equity Interests or obligations of one or more Foreign Subsidiaries and does not engage in any trade or business (other than acting as a holding company for such Equity Interests or obligations in Foreign Subsidiaries), or (ii) it is disregarded as separate from its owner for United States federal income tax purposes and it owns Equity Interests in one or more Foreign Subsidiaries.
Future Term Loan/Notes Indebtedness has the meaning set forth in the Pari Passu Intercreditor Agreement.
GAAP means the United States generally accepted accounting principles in effect as of the Issue Date.
Governmental Authority means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
Guarantee means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person, including any such obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise); or
(2) entered into primarily for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part);
provided , however , that the term Guarantee will not include endorsements for collection or deposit in the ordinary course of business or consistent with past practice. The term Guarantee used as a verb has a corresponding meaning.
Guarantors means Holdings and any Subsidiary that Guarantees the Notes, until such Note Guarantee is released in accordance with the terms of this Indenture.
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Hedging Obligations means, with respect to any Person, the obligations of such Person under any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign exchange contracts, currency swap agreement or similar agreement providing for the transfer or mitigation of interest rate, commodity price or currency risks either generally or under specific contingencies.
Holder means each Person in whose name the Notes are registered on the Registrars books, which shall initially be the respective nominee of DTC.
Holdings means J. C. Penney Company, Inc., a Delaware corporation and the direct parent of the Issuer.
Indebtedness of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding (i) accounts payable incurred in the ordinary course of business, (ii) any earn-out obligation contingent upon performance of an acquired business, except to the extent such obligation would be required to be reflected on a consolidated balance sheet of Holdings prepared in accordance with GAAP and (iii) accruals for payroll and other liabilities accrued in the ordinary course of business), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed ( provided that with respect to Indebtedness that is nonrecourse to the credit of that Person, such Indebtedness shall be taken into account only to the extent of the lesser of (x) the fair market value of the asset(s) subject to such Lien and (y) the amount of Indebtedness secured), (f) all guarantees by such Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in respect of bankers acceptances, (j) all Off-Balance Sheet Liabilities and (k) Disqualified Equity Interests. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Persons ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. For the avoidance of doubt, any preferred Equity Interests (other than any Disqualified Equity Interests) of any Person that are convertible into common Equity Interests (other than any Disqualified Equity Interests) of such Person shall not constitute Indebtedness of such Person. For the avoidance of doubt, obligations in respect of Swap Agreements shall not constitute Indebtedness.
Indenture means this Indenture as amended or supplemented from time to time.
Initial Appraisal means, with respect to a Real Estate Asset, the most recently performed appraisal of such Real Estate Asset prior to the Issue Date.
Initial Notes has the meaning set forth in the first recital paragraph of this Indenture.
Insolvency Proceeding means any proceeding in respect of bankruptcy, insolvency, winding up, receivership, dissolution or assignment for the benefit of creditors, in each of the foregoing events whether under the Bankruptcy Code or any similar federal, state or foreign bankruptcy, insolvency, reorganization, receivership or similar law.
Intercreditor Agreements means the Pari Passu Intercreditor Agreement, the Junior Priority Intercreditor Agreement and the ABL Intercreditor Agreement.
Internal Revenue Code means the Internal Revenue Code of 1986, as amended to the date hereof and from time to time hereafter, and any successor statute.
Issue Date means June 23, 2016.
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Issue Date Material Real Estate Asset means, as of any date of determination, any Real Property Asset that was a Material Real Estate Asset owned by the Issuer or a Guarantor on the Issue Date that continues to be owned by the Issuer or a Guarantor as of such date of determination; provided that no Specified Asset owned on the Issue Date by the Issuer or a Guarantor shall be deemed to be an Issue Date Material Real Asset unless and until such Specified Asset has not been sold or transferred to a Person (other than the Issuer or a Guarantor) prior to the date that is one year after the Issue Date.
Issuer has the meaning assigned to such term in the preamble of this Indenture.
JC Penney Properties means J. C. Penney Properties, Inc., a Delaware corporation.
JCP Parties means, collectively, the Issuer and the Guarantors.
JCP Real Estate Holdings means JCP Real Estate Holdings, Inc., a Delaware corporation.
Junior Lien Priority means a Lien that ranks junior in priority to the Liens that secure the Term Loan/Notes Secured Obligations on the terms set forth in the Junior Priority Intercreditor Agreement.
Junior Priority Collateral Agent has the meaning given such term by the Junior Priority Intercreditor Agreement.
Junior Priority Intercreditor Agreement has the meaning given to such term in the Pari Passu Intercreditor Agreement, as it may be amended or supplemented from time to time.
Junior Priority Obligations has the meaning given to such term in the Junior Priority Intercreditor Agreement.
Leasehold Property means any leasehold interest of the Issuer or any Guarantor as lessee under any lease of real property.
Lien means with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset, excluding operating leases.
Material Real Estate Asset means (a) any Real Estate Asset fee owned by the Issuer or any Subsidiary that is a Guarantor having a fair market value equal to or greater than $2,000,000 as of the Issue Date based on the Initial Appraisal or, if acquired after the Issue Date, as of the date of the acquisition thereof and (b) any ground Leasehold Property leased by the Issuer or any Subsidiary that is a Guarantor having a fair market value equal to or greater than $2,000,000 as of the Issue Date based on the Initial Appraisal or, if acquired after the Issue Date, as of the date of the acquisition thereof; in each case, other than (i) Plano Headquarters and (ii) any Real Estate Asset (A) located outside of one of the states of the United States of America or the District of Columbia, (B) owned or ground leased directly by the Issuer constituting a part of any store, warehouse or distribution center if such Real Estate Asset has a net book value above 0.25% of Stockholders Equity (as determined as of the Issue Date with respect to Real Estate Assets owned as of the Issue Date, and in all other cases as determined at the time of such acquisition in accordance with the 1994 Indenture), (C) if any mortgage, pledge and/or security interest of or in such Real Estate Asset (1) is prohibited or restricted by applicable law (with no requirement to obtain the consent of any governmental authority), (2) would require a consent, approval, or other authorization of a landlord or other third party if such consent, approval or other authorization cannot be obtained after Issuers use of commercially reasonable efforts, or (3) could result in material adverse tax consequences (other than payment of mortgage tax, transfer tax or similar taxes related to real property collateral) as determined in good faith by the Issuer and notified to the Collateral Agent, or (D) where the cost of obtaining any mortgage, pledge and/or security interest of or in such Real Estate Asset would exceed the practical benefit to the Lenders (as defined in the Term Loan Agreement) afforded thereby (as reasonably determined by the Issuer and the Term Loan Administrative Agent).
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Material Subsidiary means, at any date of determination, any Subsidiary of Holdings that had, as of the date of the most recent financial statements delivered pursuant to Section 3.10 (or prior to delivery of such financial statements, as of the end of the most recent Fiscal Quarter (or Fiscal Year) with respect to which historical financial statements have been delivered), Net Tangible Assets representing more than 3% (or in the case of JCP Realty, Inc. and its Subsidiaries, 5%) of the total Net Tangible Assets of Holdings and its Subsidiaries.
Mortgage means a mortgage, deed of trust, deed to secure debt, security deed, trust deed or spreader of lien, as it may be amended, restated supplemented or otherwise modified from time to time.
Moodys means Moodys Investors Service, Inc., or any successor thereto.
Multiemployer Plan means a multiemployer plan as defined in Section 4001(a)(3) of ERISA maintained, sponsored or contributed to by Holdings or any ERISA Affiliate.
Net Available Cash means, with respect to any Asset Disposition, an amount equal to: (i) cash payments (including any cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) received by Holdings or any of its Subsidiaries from such Asset Disposition, minus (ii) any bona fide direct costs incurred in connection with such Asset Disposition, including (a) income or gains taxes payable by the seller as a result of any gain recognized in connection with such Asset Disposition, (b) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Notes and Indebtedness that is secured by a Lien on Term Loan/Notes Exclusive Collateral on a basis that is pari passu with or junior to the Notes) that is secured by a Lien on the stock or assets in question and that is required to be repaid under the terms thereof as a result of such Asset Disposition and (c) a reasonable reserve for any indemnification payments (fixed or contingent) attributable to sellers indemnities and representations and warranties to purchaser in respect of such Asset Disposition undertaken by Holdings or any of its Subsidiaries in connection with such Asset Disposition; provided that upon release of any such reserve to Holdings or any of its Subsidiaries, the amount released shall be considered Net Available Cash.
Net Tangible Assets means the aggregate amount at which the assets of Holdings and its Subsidiaries are reflected, in accordance with GAAP as in effect on the Issue Date, on the asset side of the consolidated balance sheet of Holdings and its Subsidiaries, as of the end of the most recent as of the most recent Fiscal Quarter end for which financial statements shall at such time have been delivered pursuant to Section 3.10 or otherwise prepared (or prior to delivery of such financial statements, as of the end of the most recent Fiscal Quarter (or Fiscal Year) with respect to which historical financial statements have been delivered or otherwise prepared) (after deducting all valuation and qualifying reserves relating to such assets), except any of the following described items that may be included among such assets (a) trademarks, patents, goodwill and similar intangibles, (b) investments in and advances to Subsidiaries, and (c) capital lease property rights, after deducting from such amount current liabilities (other than deferred Tax effects) as reflected, in accordance with GAAP as in effect on the Issue Date, on such balance sheet.
Non-Guarantor means any Subsidiary of Holdings (other than the Issuer) that is not a Guarantor.
Non-U.S. Person means a Person who is not a U.S. Person (as defined in Regulation S).
Notes has the meaning set forth in the first recital paragraph of this Indenture.
Notes Custodian means the custodian with respect to the Global Notes (as appointed by the Depositary), or any successor Person thereto and shall initially be the Trustee.
Notes Documents means the Notes (including Additional Notes), the Note Guarantees, the Collateral Documents, the Intercreditor Agreements and this Indenture.
Notes Obligations means all Obligations of the Issuer and the Guarantors under this Indenture, the Notes and the Collateral Documents.
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Notes Percentage means, at any time, the percentage of the aggregate principal amount of Term Loan/Notes Secured Obligations outstanding at such time represented by the aggregate principal amount of Notes then outstanding.
Notes Secured Parties means the Trustee, the Collateral Agent and the Holders of the Notes.
Obligations means any principal, interest (including Post-Petition Interest or entitlement to fees or expenses or other charges accruing on or after the filing of any petition or application in bankruptcy or insolvency case or proceeding or for reorganization relating to the Issuer or any Guarantor whether or not a claim for Post-Petition Interest is allowed or allowable in such proceedings), penalties, fees, indemnifications, reimbursements (including, without limitation, reimbursement obligations with respect to letters of credit and bankers acceptances), damages and other liabilities payable under the documentation governing any Indebtedness.
Off-Balance Sheet Liability of a Person means (a) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person or (b) any indebtedness, liability or obligation under any so-called synthetic lease transaction entered into by such Person. For the avoidance of doubt, any preferred Equity Interests (other than any Disqualified Equity Interests) of any Person that are convertible into common Equity Interests (other than any Disqualified Equity Interests) of such Person shall not constitute an Off-Balance Sheet Liability of such Person.
Offering Memorandum means the final offering memorandum, dated June 9, 2016, relating to the offering by the Issuer of the Initial Notes.
Officer means, with respect to any Person, the Chairman of the Board, any Vice Chairman of the Board, the Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, the Treasurer or Corporate Treasurer, any Assistant Treasurer or Assistant Corporate Treasurer, the Controller or Corporate Controller, any Assistant Controller or Assistant Corporate Controller, the General Counsel, any Vice President, the Secretary or Corporate Secretary or any Assistant Secretary or Assistant Corporate Secretary of such Person.
Officers Certificate means, with respect to any Person, a certificate signed by one Officer of such Person.
Operating Cash Threshold means $750,000,000.
Opinion of Counsel means an opinion in writing (subject to customary qualifications and assumptions) signed by legal counsel, who may be an employee of or counsel to Holdings or the Issuer, or may be other counsel who is reasonably satisfactory to the Trustee that meets the requirements of Section 13.4 .
Organizational Documents means (i) with respect to any corporation or company, its certificate, memorandum or articles of incorporation, organization or association, as amended, and its by-laws, as amended, (ii) with respect to any limited partnership, its certificate or declaration of limited partnership, as amended, and its partnership agreement, as amended, (iii) with respect to any general partnership, its partnership agreement, as amended, and (iv) with respect to any limited liability company, its articles of organization, as amended, and its operating agreement, as amended. In the event any term or condition of this Indenture or any Collateral Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such Organizational Document shall only be to a document of a type customarily certified by such governmental official.
Pari Passu Intercreditor Agreement means that certain Pari Passu Intercreditor Agreement, dated as of the Issue Date, among the Term Loan Administrative Agent, as Authorized Representative under the Term Loan Agreement, the Trustee, as Authorized Representative under this Indenture, each other Authorized Representative party thereto from time to time and the Collateral Agent, as it may be amended or supplemented from time to time.
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Pay means, in respect of any Indebtedness or Equity Interest, to pay, prepay, purchase, repurchase, redeem, retire, cancel or terminate such Indebtedness or Equity Interest other than (i) in exchange for Equity Interests that are not Disqualified Equity Interests (plus cash in lieu of fractional shares of such Equity Interests) and (ii) payment of interest with respect to Indebtedness or Equity Interests and accrued dividends paid pro rata to all holders of such class or series of Equity Interests. The words Payment and Payable shall have meanings correlative to the foregoing.
Paying Agent means any Person authorized by the Issuer to pay the principal of (and premium, if any) or interest on any Note on behalf of the Issuer.
Permitted Encumbrances means:
(a) Liens imposed by law for Taxes, assessments or governmental charges or levies that, in each case, are not overdue by more than 30 days or are being contested;
(b) carriers, warehousemens, mechanics, landlords, materialmens, repairmens and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days (or, in the case of a landlords Lien, beyond any notice and cure period under the applicable real property lease) or are being contested;
(c) pledges and deposits made in the ordinary course of business in compliance with workers compensation, unemployment insurance, employers health taxes and other social security laws or regulations or similar legislation or to secure letters of credit, bank guarantees or similar instruments supporting such obligations;
(d) pledges or deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds or obligations to insurance carriers and other obligations of a like nature, in each case in the ordinary course of business or to secure letters of credit, bank guarantees or similar instruments supporting such obligations;
(e) judgment liens in respect of judgments that do not constitute an Event of Default;
(f) easements, restrictions (including zoning restrictions), rights-of-way and other encumbrances, title defects and matters of record affecting real property that do not materially detract from the value of the Collateral, taken as a whole, or interfere with the ordinary conduct of business of Holdings and its Subsidiaries, taken as a whole;
(g) the special property interest of a consignor in respect of goods subject to consignment;
(h) Liens (i) in favor of banks, other financial institutions, securities or commodities intermediaries or brokerage arising as a matter of law encumbering deposits of cash, securities, commodities and other funds maintained with such Persons (including rights of set off) and that are within the general parameters customary in such Persons industry, (ii) deemed to exist in connection with investments in repurchase agreements described in clause (d) of the definition of Permitted Investments, (iii) attaching to commodity trading accounts or other brokerage accounts in the ordinary course of business securing obligations owed to the institutions with which such accounts are maintained, (iv) that are contractual rights of setoff (x) relating to the establishment of depository relations with banks or other deposit-taking financial institutions in the ordinary course of business and not given in connection with the issuance of Indebtedness or (y) relating to pooled deposit or sweep accounts of Holdings or any of its Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business and (v) that are rights of set-off (or holdbacks or reserves established by a credit card issuer or processor) against credit balances of Holdings or any of its Subsidiaries with credit card issuers or credit card processors or amounts owing by such credit card issuers or credit card processors to Holdings or any of its Subsidiaries, or Liens on returned merchandise in favor of such issuers or processors, in each case in the ordinary course of business, but not rights of set-off against any other property or assets of Holdings or any of its Subsidiaries pursuant to agreements with credit card issuers or credit card processors to secure the obligations of Holdings or any of its Subsidiaries to credit card issuers or credit card processors as a result of fees and chargebacks;
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(i) Liens of a collecting bank under Section 4-210 of the UCC in effect in the relevant jurisdiction (or Section 4-208 in the case of the New York UCC) on items in the course of collection;
(j) Liens of sellers of goods to Holdings or a Subsidiary arising as a matter of law under Article 2 of the UCC in effect in the relevant jurisdiction or similar provisions of applicable law, in each case in the ordinary course of business;
(k) licenses of patents, trademarks and other intellectual property rights of Holdings or any of its Subsidiaries, in each case in the ordinary course of business and not materially interfering with the conduct of business by Holdings and its Subsidiaries, taken as a whole;
(l) Liens solely on any cash earnest money deposits made by Holdings or any of its Subsidiaries in connection with any letter of intent or purchase agreement entered into by it;
(m) Liens incurred in the ordinary course of business in connection with the shipping of goods on the related goods and proceeds thereof in favor of the shipper of such goods;
(n) as to any Leasehold Property, any Lien encumbering the underlying fee estate or master or primary lease in connection therewith so long as such fee estate or landlord (or similar) interest is not held by a Person that is the Issuer or a Guarantor or an Affiliate of the Issuer or a Guarantor; and
(o) any matters affirmatively insured over or exceptions noted in the final title polices issued in connection with the Mortgages;
provided that the term Permitted Encumbrances shall not include any Lien securing Indebtedness for borrowed money.
Permitted Investments means:
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency or instrumentality thereof);
(b) investments in commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a credit rating of at least A2 from S&P, P2 from Moodys or F2 from Fitch;
(c) investments in certificates of deposit, bankers acceptances and time deposits issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, (i) any domestic or offshore office of any commercial bank organized under the laws of the United States of America or any State thereof, (ii) any office located within the United States of America or in a foreign jurisdiction that has a tax treaty with the United States of America of a commercial bank organized under the laws of another country or (iii) any office located in London of any commercial bank organized under the laws of the United States of America, any Asian country or any European country, in each case which, at the time of acquisition, has a combined capital and surplus and undivided profits of not less than $500,000,000; provided , however , that investments with any bank that has a combined capital and surplus and undivided profits of less than $500,000,000 are permitted if the Issuer maintains a banking relationship with such bank;
(d) collateralized repurchase agreements with a term of not more than 365 days and entered into with a financial institution satisfying the criteria described in clause (c) above or any ABL Lender or any Affiliate of an ABL Lender (i) that has a combined capital and surplus and undivided profits of not less than $500,000,000 or (ii) whose obligations under any such agreements is guaranteed by an entity that has a combined capital and surplus and undivided profits of not less than $500,000,000; and
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(e) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940 and (ii) have portfolio assets of at least $3,000,000,000; provided , that investments in any money market fund with portfolio assets of less than $3,000,000,000 are permitted if such fund has received a rating of AAA from S&P or Aaa from Moodys.
Permitted Liens means each of the following:
(a) Liens on the Collateral in favor of Collateral Agent securing Term Loan/Notes Secured Obligations in respect of (i) the Initial Notes, (ii) the Term Loan Agreement so long as the aggregate principal amount of Indebtedness outstanding thereunder does not exceed $1,688,125,000 minus (A) the amount of any mandatory prepayment thereof from Net Available Cash from a disposition of Collateral and (B) the principal amount thereof Paid in connection with the incurrence of Indebtedness secured by Liens pursuant to clause (a)(v) below), (iii) Future Term Loan/Notes Indebtedness (and Term Loan/Notes Secured Obligations in respect thereof) so long as on a pro forma basis (as determined in compliance with the definition of Senior Secured Leverage Ratio) (A) the Senior Secured Leverage Ratio shall not exceed 2.75 to 1.00 and (B) the Consolidated Adjusted EBITDA for the period of the most recent four full consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 3.10 (or prior to delivery of such financial statements, with respect to which historical financial statements have been prepared) shall exceed $1.0 billion, (iv) Future Term Loan/Notes Indebtedness (and Term Loan/Notes Secured Obligations in respect thereof) so long as immediately after giving effect to the incurrence of such Indebtedness the Collateral Coverage Ratio shall be at least 1.20 to 1.00 and (v) refinancings, extensions, renewals and replacements of Indebtedness secured by Liens described in subclauses (i) through (iv) above that do not increase the outstanding principal amount thereof, other than in respect of any accrued interest, premium, fees, costs or expenses payable in connection with such extension, renewal or replacement;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of Holdings or any Subsidiary existing on the Issue Date (other than Liens securing the Term Loans/Notes Secured Obligations and the ABL Secured Obligations); provided that (i) such Lien shall not apply to any other property or asset of Holdings or any Subsidiary and (ii) such Lien shall secure only those obligations which it secured on the Issue Date and refinancings, extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof, other than in respect of any accrued interest, premium, fees, costs or expenses payable in connection with such extension, renewal or replacement;
(d) any Lien existing on any property or asset prior to the acquisition thereof by Holdings or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the Issue Date prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of Holdings or any Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be and refinancings, extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof, other than in respect of any accrued interest, premium, fees, costs or expenses payable in connection with such extension, renewal or replacement;
(e) Liens on fixed or capital assets (other than real property or fixtures constituting Collateral as of the Issue Date or required to become Collateral pursuant to Indenture) or on computer hardware or software or other information technology assets which are acquired, constructed or improved by Holdings or any Subsidiary; provided that (i) such security interests secure Indebtedness of Holdings or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets (other than real property or fixtures constituting (or specifically required to become) Collateral as of the Issue Date) or to finance the acquisition of computer hardware or software or other information technology assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding
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principal amount thereof (other than in respect of any accrued interest, premium, fees, costs or expenses payable in connection therewith), (ii) such security interests and the Indebtedness secured thereby are incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, (iii) the Indebtedness secured thereby does not exceed 100% of the cost of acquiring, constructing or improving such fixed or capital assets, (iv) such security interests shall not apply to any other property or assets of Holdings or any Subsidiaries and (v) the aggregate principal amount of Liens securing Indebtedness permitted by this clause (e) shall not exceed $750,000,000 at any time outstanding;
(f) Liens in respect of leases, subleases, licenses and any other occupancy rights or agreements granted to other Persons (i) in the ordinary course of business and not materially interfering with the conduct of business of Holdings and its Subsidiaries, taken as a whole or (ii) with respect to Real Estate Assets no longer deemed by Holdings or any Subsidiary, as applicable, to be useful in the conduct of the business;
(g) Liens arising out of conditional sale, title retention, consignment (including sale or return arrangements) or similar arrangements for the sale of goods entered into by the Issuer or any of its Subsidiaries in the ordinary course of business, provided that the aggregate amount of such goods shall not exceed $100,000,000 at any one time;
(h) Liens in favor of customs and revenue authorities arising as a matter of law securing payment of customs duties in connection with the importation of goods;
(i) any encumbrance or restriction (including pursuant to put and call agreements or buy/sell arrangements) with respect to the Equity Interests of any joint venture or similar arrangement pursuant to the joint venture or similar agreement with respect to such joint venture or similar arrangement;
(j) the sale or discount, in the ordinary course of business, of accounts receivable in connection with the compromise or collection thereof and not in connection with any financing or factoring arrangement;
(k) Liens (other than Liens on any Collateral) securing Indebtedness of a Subsidiary to the Issuer or a Guarantor or of a Non-Guarantor to another Subsidiary that is Non-Guarantor;
(l) Liens on property subject to sale and leaseback transactions not prohibited by Section 3.7 and general intangibles related thereto;
(m) Liens on the Collateral securing ABL Secured Obligations (i) arising under the ABL Loan Documents so long as the aggregate principal amount of loans and advances under the ABL Credit Agreement and unreimbursed obligations under letters of credit incurred under the ABL Credit Agreement shall not exceed $2,750,000,000, (ii) consisting of Hedging Obligations, (iii) Supply Chain Obligations and Treasury Services Obligations, in each case owing to any ABL Lender or Affiliate of an ABL Lender; provided that any such Liens on the Term Loan/Notes Exclusive Collateral are subordinated to the Liens securing the Term Loan/Notes Secured Obligations on terms satisfactory to the Applicable Authorized Representative in its sole discretion;
(n) Liens on insurance policies and the proceeds thereof and unearned premiums securing the financing of premiums with respect Indebtedness in respect of the financing of insurance premiums;
(o) to the extent constituting a Lien, sales or assignments of any litigation claims or rights to receive payments with respect to any such claims;
(p) to the extent constituting a Lien, sales or assignments of any right to receive rental payments permitted under Section 3.5 ;
(q) Liens on cash or cash equivalents securing Swap Agreements;
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(r) Liens on specific items of inventory or other goods and proceeds of any Person securing such Persons obligations in respect of bankers acceptances or trade letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(s) Liens securing Indebtedness on the Plano Headquarters or other property intended for use for substantially the same purpose or purposes as Plano Headquarters after consummation of a sale and leaseback transaction not prohibited by Section 3.7 with respect thereto;
(t) other Liens securing obligations that do not exceed the greater of (A) $250,000,000 and (B) 5% of Stockholders Equity determined as of a Fiscal Quarter end selected by the Issuer within 65 days of the date of incurrence of such Lien; and
(u) Liens on the Collateral securing Indebtedness constituting Junior Priority Obligations.
Person means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and Governmental Authorities.
Plan means any pension plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Internal Revenue Code or Section 302 of ERISA that is maintained, sponsored or contributed to by Holdings or any ERISA Affiliate.
Plano Headquarters means the real property located on or about 6501 Legacy Drive, Plano Texas.
Post-Petition Interest means any interest, fees, expenses or other amount that accrues or would have accrued after the commencement of any Insolvency Proceeding, whether or not allowed or allowable in any such Insolvency Proceeding.
Predecessor Note of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.7 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Note.
QIB means any qualified institutional buyer as such term is defined in Rule 144A.
Real Estate Asset means, at any time of determination, any interest (fee, leasehold or otherwise) then owned by the Issuer or any Guarantor in any real property.
Realty Company means each of JCP Realty Inc. and its Subsidiaries that is principally engaged in the business of owning real estate and/or real estate-related interests.
Refinance means, in respect of any indebtedness, to extend, refinance, renew or replace, defease or refund such indebtedness, in each case, in whole or in part and/or with the same or different lenders, agents or arrangers and including any increase in the principal amount of the loans and commitments provided thereunder. Refinanced and Refinancing shall have correlative meanings.
Regulation S means Regulation S under the Securities Act.
Regulation S-X means Regulation S-X under the Securities Act.
Restricted Notes means Initial Notes and Additional Notes bearing one of the restrictive legends described in Section 2.1(c) .
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Restricted Notes Legend means the legend set forth in Section 2.1(c).
Rule 144A means Rule 144A under the Securities Act.
S&P means S&P Global Ratings, the credit ratings business operated by S&P Global Inc. and its subsidiaries.
SEC means the Securities and Exchange Commission or any successor thereto.
Securities Act means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder, as amended.
Senior Secured Leverage Ratio means, as of any date of determination, the ratio of (i) any Consolidated Total Debt that is secured by a Lien upon any real or personal property or other assets of Holdings, the Issuer or any Subsidiary as of such date to (ii) Consolidated Adjusted EBITDA for the period of the most recent four full consecutive Fiscal Quarters (the Four Quarter Period ) ending prior to the date of such determination for which financial statements have been delivered pursuant to Section 3.10 (or prior to delivery of such financial statements, with respect to which historical financial statements have been prepared), in each case, on a pro forma basis. All such pro forma computations shall be calculated after giving effect on a pro forma basis to any incurrence of Indebtedness, investment, acquisition, disposition, dividend, purchase of Equity Interests, payment in respect of Indebtedness or other transaction occurring during the Four Quarter Period or at any time subsequent to the last day of the Four Quarter Period and on or prior to the date of determination, as if each such transaction had occurred on the first day of the applicable Four Quarter Period, and, to the extent applicable, to the historical earnings and cash flows associated with the assets acquired or disposed of and any related incurrence or reduction of Indebtedness, all in accordance with Article 11 of Regulation S-X under the Securities Act. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Swap Agreement applicable to such Indebtedness if such Swap Agreement has a remaining term in excess of 12 months).
Series has the meaning set forth in the Pari Passu Intercreditor Agreement.
Significant Subsidiary means any Subsidiary that would constitute a significant subsidiary of Holdings or the Issuer as defined in Rule 1-02(w) of Regulation S-X under the Securities Act and the Exchange Act as in effect on the Issue Date.
Specified Assets has the meaning set forth in the Term Loan Agreement as in effect on the Issue Date.
Specified Sale/Leaseback Proceeds shall mean all Net Available Cash received on or after the Issue Date in respect of all Sale/Leaseback Transactions consummated in reliance on clause (b) of Section 3.7 to the extent (and only to the extent) such Net Available Cash is in excess of the greater of (x) $500.0 million and (y) 7.5% of Net Tangible Assets.
Stated Maturity means, with respect to any security, the date specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision, but shall not include any contingent obligations to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment thereof.
Stockholders Equity means the sum, as at the close of a monthly accounting period (selected by Holdings) ending within 65 days next preceding the date of determination, of (a) the aggregate of capital, capital stock, capital surplus, capital in excess of par value of stock, reinvested earnings, earned surplus and net income retained for use in the business (however the foregoing may be designated), after deducting the cost of shares of capital stock of Holdings held in its treasury, of Holdings and its consolidated Subsidiaries, determined in accordance with generally accepted accounting practices applied on the basis used in reports from time to time to stockholders of Holdings, plus (b) the amount reflected in such determination as deferred tax effects. For purposes of this definition,
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Subsidiary means (i) any corporation of which Holdings, directly or indirectly, owns more than 50% of the outstanding stock, which at the time shall have by the terms thereof ordinary voting power to elect directors of such corporation, irrespective of whether or not at the time stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency, or (ii) any such corporation of which such percentage of shares of outstanding stock of the character described in the foregoing clause (i) shall at the time be owned, directly or indirectly, by Holdings and one or more Subsidiaries as defined in the foregoing clause (i) or by one or more such Subsidiaries.
Subsidiary means, with respect to any Person (the parent) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parents consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity of which securities or other ownership interests representing more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned or held; provided that Excluded Subsidiaries shall not be considered Subsidiaries of Holdings or the Issuer for purposes hereof. Unless the context requires otherwise, any reference to a Subsidiary contained herein shall refer to a Subsidiary of Holdings.
Supply Chain Obligations means Obligations under any letters of credit, guarantees or other credit support provided in respect of trade payables of the Issuer or any Subsidiary of the Issuer, in each case issued for the benefit of any bank, financial institution or other Person that has acquired such trade payables pursuant to supply chain or other similar financing for vendors and suppliers of the Issuer or any of its Subsidiaries, to the extent the documentation for such Obligations specifically provides that the applicable ABL Lender or Affiliate of an ABL Lender is entitled to be secured under the Collateral Agreement (as defined in the ABL Credit Agreement).
Swap Agreement means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of Holdings or the Subsidiaries shall be a Swap Agreement. For the avoidance of doubt, Swap Agreement will include a swap transaction pursuant to which the obligations of the Issuer or applicable Guarantor to make scheduled payments thereunder are deferred (including, without limitation, payment obligations that are deferred to the scheduled termination date of such transaction so that the Issuer or such Guarantor makes a single payment thereunder on such scheduled termination date).
Tax or Taxes means any present or future tax, levy, impost, duty, deduction, withholding (including backup withholding), assessment, fee or other charge imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
TBA/Vacant Parcel means each tire, battery and automotive location or vacant portion of any parcel.
Term Loan Administrative Agent means JPMorgan Chase Bank, N.A., in its capacity as administrative agent under the Term Loan Agreement, and its successors in such capacity.
Term Loan Agreement means the Amended and Restated Credit and Guaranty Agreement, dated as of the Issue Date, by and among the Issuer, the guarantors from time to time party thereto, the Term Loan Administrative Agent, and each lender from time to time party thereto, as amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or otherwise changed (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time, and any one or more agreements (and related documents) governing Indebtedness, including indentures, incurred to refinance, substitute, supplement, replace or add to (including increasing the amount available for borrowing or adding or removing any Person as a borrower, issuer or guarantor thereunder, in whole or in part), the borrowings and commitments then outstanding or permitted to be outstanding under such Term Loan Agreement or one or more successors to the Term Loan Agreement or one or more new credit agreements.
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Term Loan Documents means the collective reference to the Term Loan Agreement, any notes issued pursuant thereto and the guarantees thereof, and the collateral documents relating thereto, and any other documents, certificates, instruments or agreements executed and delivered by or on behalf of the Issuer or any Guarantor for the benefit of the Term Loan Administrative Agent or any Term Loan Secured Party in connection therewith that specifically identifies itself as a Credit Document, a Loan Document or similar term, as amended, supplemented, restated, renewed, refunded, replaced, restructured, repaid, refinanced or otherwise modified, in whole or in part, from time to time.
Term Loan/Notes Documents means the Notes Documents, the Term Loan Documents and all other documents governing Term Loan/Notes Secured Obligations.
Term Loan/Notes Exclusive Collateral has the meaning set forth in the ABL Intercreditor Agreement.
Term Loan/Notes Secured Obligations has the meaning set forth in the Pari Passu Intercreditor Agreement.
Term Loan/Notes Secured Parties has the meaning set forth in the Pari Passu Intercreditor Agreement.
Term Loan Obligations means all Obligations under the Term Loan Agreement and the other Term Loan Documents.
Transactions means (i) the issuance and sale of the Notes, (ii) the execution and delivery by the Issuer and Guarantors of the Term Loan Agreement entered into on the Issue Date, (iii) the funding of the loans under the Term Loan Credit Agreement and (iv) the repayment of Indebtedness under the Issuers existing credit and guaranty agreement dated May 22, 2013.
Treasury Services Obligations means Obligations in respect or treasury, depositary or cash management services (including purchasing cards and stored value cards) from, or any automated clearinghouse transfer of funds to, any entity that is an ABL Lender or an Affiliate of an ABL Lender.
Treasury Rate means, with respect to the Notes, as of the applicable redemption date, the yield to maturity as of such redemption date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) which has become publicly available at least two Business Days (but not more than five Business Days) prior to the date that the applicable notice of redemption is provided to the Trustee (or, if such statistical release is not so published or available, any publicly available source of similar market data selected by the Issuer in good faith)) most nearly equal to the period from the redemption date to July 1, 2019; provided , however , that if the period from such redemption date to July 1, 2019 is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, except that if the period from such redemption date to such applicable date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.
Trust Officer means, when used with respect to the Trustee, any vice president, assistant vice president, any trust officer or any other officer of the Trustee who shall have direct responsibility for the administration of this Indenture, and also means any other officer of the Trustee to whom any corporate trust matter relating to this Indenture is referred because of such persons knowledge of and familiarity with the particular subject.
Trustee has the meaning assigned to such term in the preamble of this Indenture until a successor replaces it and, thereafter, means the successor.
UCC means the Uniform Commercial Code as in effect in the State of New York or, when the laws of any other jurisdiction govern the perfection or enforcement of any security interest, the Uniform Commercial Code of such jurisdiction.
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U.S. Government Obligations means securities which are (1) direct obligations of the United States of America for the payment of which its full faith and credit is pledged, or (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, provided that the payment of such obligations is unconditionally Guaranteed as a full faith and credit obligation by the United States of America. The term U.S. Government Obligations shall also include depository receipts issued by a bank or trust company as custodian and evidencing ownership by the holders of such depository receipts of future payments of interest or principal, or both, on U.S. Government Obligations, as defined above, held by such custodian, provided that except as required by law, no deduction may be made by the custodian from the amount payable to the holder of any such depository receipt from the amount received by the custodian in respect of any such payment of interest or principal.
SECTION 1.2. Other Definitions .
Term |
Defined in
Section |
|
Additional Restricted Notes |
2.1(b) | |
Agent Members |
2.1(e)(2) | |
Asset Disposition Offer |
3.5(b) | |
Asset Disposition Payment Date |
3.5(c) | |
Authenticating Agent |
2.2 | |
Automatic Exchange |
2.6(e) | |
Automatic Exchange Date |
2.6(e) | |
Automatic Exchange Notice |
2.6(e) | |
Automatic Exchange Notice Date |
2.6(e) | |
Change of Control Offer |
3.9(a) | |
Change of Control Payment |
3.9(a) | |
Change of Control Payment Date |
3.9(a) | |
Clearstream |
2.1(a) | |
Defaulted Interest |
2.11 | |
Defeasance |
8.2 | |
Euroclear |
2.1(a) | |
Event of Default |
6.1(a) | |
Excess Proceeds |
3.5(b) | |
Global Notes |
2.1(a) | |
Guaranteed Obligations |
10.1 | |
Initial Lien |
3.6(a) | |
Issuer Order |
2.2 | |
Legal Holiday |
13.7 | |
Note Guarantees |
10.1 | |
Notes Register |
2.3 | |
protected purchaser |
2.7 |
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Term |
Defined in
Section |
|
Redemption Date |
5.1 | |
Registrar |
2.3 | |
Regulation S Global Note |
2.1(a) | |
Regulation S Notes |
2.1(a) | |
Restricted Global Note |
2.6(e) | |
Restricted Period |
2.1(a) | |
Rule 144A Global Note |
2.1(a) | |
Rule 144A Notes |
2.1(a) | |
Sale/Leaseback Transaction |
3.7 | |
Satisfaction and Discharge |
11.1 | |
Secured Indebtedness |
6.1(a)(4) | |
Special Interest Payment Date |
2.11(a) | |
Special Record Date |
2.11(a) | |
TIA |
1.4 | |
Unrestricted Global Note |
2.6(e) | |
USA PATRIOT Act |
13.11 |
SECTION 1.3. Rules of Construction . Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3) or is not exclusive;
(4) including means including without limitation;
(5) words in the singular include the plural and words in the plural include the singular;
(6) will shall be interpreted to express a command;
(7) all amounts expressed in this Indenture or in any of the Notes in terms of money refer to the lawful currency of the United States of America;
(8) the words herein, hereof and hereunder and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision of this Indenture; and
(9) references to Article, Section or other subdivision herein are references to an Article, Section or other subdivision of this Indenture.
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SECTION 1.4. Inapplicability of the Trust Indenture Act . No provisions of the Trust Indenture Act of 1939, as amended (the TIA ), are incorporated by reference in or made a part of this Indenture unless explicitly incorporated by reference. Unless specifically provided in this Indenture, no terms that are defined under the TIA have such meanings for purposes of this Indenture.
ARTICLE II
THE NOTES
SECTION 2.1. Form, Dating and Terms .
(a) The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited. The Initial Notes issued on the date hereof will be in an aggregate principal amount of $500,000,000. In addition, the Issuer may issue, from time to time in accordance with the provisions of this Indenture, Additional Notes. Furthermore, Notes may be authenticated and delivered upon registration of transfer, exchange or in lieu of other Notes pursuant to Section 2.2 , 2.6 , 2.7 , 2.9 , 5.6 or 9.5 , in connection with an Asset Disposition Offer pursuant to Section 3.5 or in connection with a Change of Control Offer pursuant to Section 3.9 .
Notwithstanding anything to the contrary contained herein, the Issuer may not issue any Additional Notes, unless such issuance is in compliance with Section 3.6 .
With respect to any Additional Notes, the Issuer shall set forth in an Officers Certificate or one or more indentures supplemental hereto, the following information:
(A) the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;
(B) the issue price and the issue date of such Additional Notes, including the date from which interest shall accrue; and
(C) whether such Additional Notes shall be Restricted Notes.
In authenticating and delivering Additional Notes, the Trustee shall be entitled to receive and shall be fully protected in relying upon the Opinion of Counsel and Officers Certificate required by Section 13.3 .
The Initial Notes and the Additional Notes shall be considered collectively as a single class for all purposes of this Indenture. Holders of the Initial Notes and the Additional Notes will vote and consent together on all matters to which such Holders are entitled to vote or consent as one class, and none of the Holders of the Initial Notes or the Additional Notes shall have the right to vote or consent as a separate class on any matter to which such Holders are entitled to vote or consent.
Initial Notes and any Additional Notes that are Restricted Notes ( Additional Restricted Notes ) offered and sold to QIBs in the United States of America in reliance on Rule 144A (the Rule 144A Notes ) shall be issued in the form of a permanent global Note substantially in the form of Exhibit A , which is hereby incorporated by reference and made a part of this Indenture, including appropriate legends as set forth in Sections 2.1(c) and (d) (the Rule 144A Global Note ), deposited with the Trustee, as custodian for DTC, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. The Rule 144A Global Note may be represented by more than one certificate, if so required by DTCs rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as Notes Custodian for DTC or its nominee, as hereinafter provided.
Initial Notes and any Additional Restricted Notes offered and sold outside the United States of America (the Regulation S Notes ) in reliance on Regulation S shall be issued in the form of a permanent global Note (the Regulation S Global Note ) in the form of Exhibit A including appropriate legends as set forth in Sections 2.1(c)
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and (d) . Each Regulation S Global Note will be deposited upon issuance with, or on behalf of, the Trustee as Notes Custodian for DTC in the manner described in this Article II for credit to the respective accounts of the purchasers (or to such other accounts as they may direct), including, but not limited to, accounts at Euroclear Bank S.A./N.V. ( Euroclear ) or Clearstream Banking, société anonyme ( Clearstream ). Prior to the 40th day after the later of the commencement of the offering of the Initial Notes and the Issue Date (such period through and including such 40th day, the Restricted Period ), interests in the Regulation S Global Note may only be transferred to non-U.S. persons pursuant to Regulation S, unless exchanged for interests in a Global Note in accordance with the transfer and certification requirements described herein.
Investors may hold their interests in the Regulation S Global Note through organizations other than Euroclear or Clearstream that are participants in DTCs system or directly through Euroclear or Clearstream, if they are participants in such systems, or indirectly through organizations which are participants in such systems. If such interests are held through Euroclear or Clearstream, Euroclear and Clearstream will hold such interests in the applicable Regulation S Global Note on behalf of their participants through customers securities accounts in their respective names on the books of their respective depositaries. Such depositaries, in turn, will hold such interests in the applicable Regulation S Global Note in customers securities accounts in the depositaries names on the books of DTC.
The Regulation S Global Note may be represented by more than one certificate, if so required by DTCs rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.
The Rule 144A Global Notes and the Regulation S Global Notes and any other global notes evidencing Notes issued under this Indenture are sometimes collectively herein referred to as the Global Notes .
The principal of, premium, if any, and interest due on the Notes shall be payable at the office or agency of the Paying Agent designated by the Issuer maintained for such purpose (which shall initially be the office of the Trustee maintained for such purpose), or at such other office or agency of the Issuer as may be maintained for such purpose pursuant to Section 2.3 ; provided , however , that, at the option of the Paying Agent, each installment of interest may be paid by (i) check mailed to addresses of the Persons entitled thereto as such addresses shall appear on the Notes Register or (ii) wire transfer to an account located in the United States maintained by the payee, subject to the last sentence of this paragraph. Payments in respect of Notes represented by a Global Note (including principal, premium, if any, and interest) will be made by wire transfer of immediately available funds to the accounts specified by the Holders thereof or otherwise in accordance with the applicable procedures of DTC. Payments in respect of Notes represented by Definitive Notes (including principal, premium, if any, and interest) held by a Holder of at least $1,000,000 aggregate principal amount of Notes represented by Definitive Notes will be made by wire transfer to a Dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than fifteen (15) days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage, in addition to those set forth on Exhibit A and in Sections 2.1(c) and (d) . The Issuer shall approve any notation, endorsement or legend on the Notes. Each Note shall be dated the date of its authentication. The terms of the Notes set forth in Exhibit A are part of the terms of this Indenture and, to the extent applicable, the Issuer, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to be bound by such terms.
(b) Denominations . The Notes shall be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
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(c) Restrictive Legends . Unless and until (i) an Initial Note or an Additional Restricted Note is sold under an effective registration statement or (ii) the Issuer and the Trustee receive an Opinion of Counsel reasonably satisfactory to the Issuer to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act, the Rule 144A Global Note and the Regulation S Global Note shall bear the following legend on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE THAT IS ONE YEAR (IN THE CASE OF THE 144A NOTES) OR 40 DAYS (IN THE CASE OF THE REGULATION S NOTES) AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THE NOTES AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT OR (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, SUBJECT TO THE ISSUERS AND THE TRUSTEES RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
(d) Global Note Legend . Each Global Note, whether or not an Initial Note, shall bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ( DTC ), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
(e) Book-Entry Provisions . (i) This Section 2.1(e) shall apply only to Global Notes deposited with the Trustee, as custodian for DTC.
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(1) Each Global Note initially shall (x) be registered in the name of DTC or the nominee of DTC, (y) be delivered to the Notes Custodian for DTC and (z) bear legends as set forth in Section 2.1(d) . Transfers of a Global Note (but not a beneficial interest therein) will be limited to transfers thereof in whole, but not in part, to DTC, its successors or its respective nominees, except as set forth in Section 2.1(e)(3) and 2.1(f) . If a beneficial interest in a Global Note is transferred or exchanged for a beneficial interest in another Global Note, the Notes Custodian will (x) record a decrease in the principal amount of the Global Note being transferred or exchanged equal to the principal amount of such transfer or exchange and (y) record a like increase in the principal amount of the other Global Note. Any beneficial interest in one Global Note that is transferred to a Person who takes delivery in the form of an interest in another Global Note, or exchanged for an interest in another Global Note, will, upon transfer or exchange, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer and exchange restrictions, if any, and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest.
(2) Members of, or participants in, DTC ( Agent Members ) shall have no rights under this Indenture with respect to any Global Note held on their behalf by DTC or by the Notes Custodian as the custodian of DTC or under such Global Note, and DTC may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by DTC or impair, as between DTC and its Agent Members, the operation of customary practices of DTC governing the exercise of the rights of a holder of a beneficial interest in any Global Note.
(3) In connection with any transfer of a portion of the beneficial interest in a Global Note pursuant to Section 2.1(f) to beneficial owners who are required to hold Definitive Notes, the Notes Custodian shall reflect on its books and records the date and a decrease in the principal amount of such Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred, and the Issuer shall execute, and the Trustee shall authenticate and make available for delivery, one or more Definitive Notes of like tenor and amount.
(4) In connection with the transfer of an entire Global Note to beneficial owners pursuant to Section 2.1(f) , such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer shall execute, and the Trustee shall authenticate and make available for delivery, to each beneficial owner identified by DTC in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations.
(5) The registered Holder of a Global Note may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
(6) Any Holder of a Global Note shall, by acceptance of such Global Note, agree that transfers of beneficial interests in such Global Note may be effected only through a book-entry system maintained by (i) the Holder of such Global Note (or its agent) or (ii) any holder of a beneficial interest in such Global Note, and that ownership of a beneficial interest in such Global Note shall be required to be reflected in a book entry.
(f) Definitive Notes . Except as provided below in this paragraph (f), owners of beneficial interests in Global Notes will not be entitled to receive Definitive Notes. Definitive Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in a Global Note if (A) DTC notifies the Issuer that it is unwilling or unable to continue to act as Depositary for the Global Note or that DTC ceases to be a clearing agency registered under the Exchange Act, and, in either case, the Issuer fails to appoint a successor depositary within 90 days after the date of such notice, or (B) there shall have occurred and be continuing an Event of Default with respect to the Notes under this Indenture and DTC shall have requested the issuance of Definitive Notes. In the event of the occurrence of any of the events specified in the second preceding sentence or in clause (A) or (B) of the preceding sentence, the Issuer shall promptly make available to the Trustee a reasonable supply of Definitive Notes. In addition, any Note transferred to an affiliate (as defined in Rule 405 under the Securities Act) of the Issuer or evidencing
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a Note that has been acquired by an affiliate in a transaction or series of transactions not involving any public offering must, until one year after the last date on which either the Issuer or any Affiliate of the Issuer was an owner of the Note, be in the form of a Definitive Note and bear the legend regarding transfer restrictions in Section 2.1(d) . If required to do so pursuant to any applicable law or regulation, beneficial owners may also obtain Definitive Notes in exchange for their beneficial interests in a Global Note upon written request in accordance with DTCs and the Registrars procedures.
(1) Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to this Section 2.1(f) shall, except as otherwise provided by Section 2.6(d) , bear the applicable legend regarding transfer restrictions applicable to the Global Note set forth in Section 2.1(c) .
(2) If a Definitive Note is transferred or exchanged for a beneficial interest in a Global Note, the Trustee will (x) cancel such Definitive Note, (y) record an increase in the principal amount of such Global Note equal to the principal amount of such transfer or exchange and (z) in the event that such transfer or exchange involves less than the entire principal amount of the canceled Definitive Note, the Issuer shall execute, and the Trustee shall authenticate and make available for delivery, to the transferring Holder a new Definitive Note representing the principal amount not so transferred.
(3) If a Definitive Note is transferred or exchanged for another Definitive Note, (x) the Trustee will cancel the Definitive Note being transferred or exchanged, (y) the Issuer shall execute, and the Trustee shall authenticate and make available for delivery, one or more new Definitive Notes in authorized denominations having an aggregate principal amount equal to the principal amount of such transfer or exchange to the transferee (in the case of a transfer) or the Holder of the canceled Definitive Note (in the case of an exchange), registered in the name of such transferee or Holder, as applicable, and (z) if such transfer or exchange involves less than the entire principal amount of the canceled Definitive Note, the Issuer shall execute, and the Trustee shall authenticate and make available for delivery to the Holder thereof, one or more Definitive Notes in authorized denominations having an aggregate principal amount equal to the untransferred or unexchanged portion of the canceled Definitive Notes, registered in the name of the Holder thereof.
SECTION 2.2. Execution and Authentication . One Officer of the Issuer shall sign the Notes for the Issuer by manual, facsimile or pdf signature. If the Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid until an authorized officer of the Trustee manually authenticates the Note. The signature of the Trustee on a Note shall be conclusive evidence that such Note has been duly and validly authenticated and issued under this Indenture. A Note shall be dated the date of its authentication.
At any time and from time to time after the execution and delivery of this Indenture, the Trustee shall authenticate and make available for delivery: (1) Initial Notes for original issue on the Issue Date in an aggregate principal amount of $500,000,000, (2) subject to Section 3.6 , Additional Notes for original issue in an unlimited principal amount and (3) under the circumstances set forth in Section 2.6(e) , Initial Notes in the form of an Unrestricted Global Note, in each case upon a written order of the Issuer signed by one Officer of the Issuer (the Issuer Order ). The Issuer Order shall specify whether the Notes will be in the form of Definitive Notes or Global Notes, the amount of the Notes to be authenticated, the date on which the original issue of Notes is to be authenticated, the Holder of the Notes and whether the Notes are to be Initial Notes or Additional Notes.
The Trustee may appoint an agent (the Authenticating Agent ) reasonably acceptable to the Issuer to authenticate the Notes. Any such appointment shall be evidenced by an instrument signed by a Trust Officer, a copy of which shall be furnished to the Issuer. Unless limited by the terms of such appointment, any such Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by the Authenticating Agent. An Authenticating Agent has the same rights as any Registrar, Paying Agent or agent for service of notices and demands.
In case the Issuer, pursuant to Article IV , shall be consolidated or merged with or into any other corporation or shall convey or transfer all or substantially all of its properties or assets to any Person, and the successor Person resulting from such consolidation, or surviving such merger, or into which the Issuer or any Guarantor shall
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have been merged, or the Person which shall have received a conveyance or transfer as aforesaid, shall have executed an indenture supplemental hereto with the Trustee pursuant to Article IV , any of the Notes authenticated or delivered prior to such consolidation, merger, conveyance or transfer may (but shall not be required), from time to time, at the request of the successor Person, be exchanged for other Notes executed in the name of the successor Person with such changes in phraseology and form as may be appropriate to reflect such successor Person, but otherwise in substance of like tenor as the Notes surrendered for such exchange and of like principal amount; and the Trustee, upon the Issuer Order of the successor Person, shall authenticate and make available for delivery Notes as specified in such order for the purpose of such exchange. If Notes shall at any time be authenticated and delivered in any new name of a successor Person pursuant to this Section 2.2 in exchange or substitution for or upon registration of transfer of any Notes, such successor Person, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes at the time outstanding for Notes authenticated and delivered in such new name.
SECTION 2.3. Registrar and Paying Agent . The Issuer shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (the Registrar ) and an office or agency where Notes may be presented for payment. The Registrar shall keep a register of the Notes and of their transfer and exchange (the Notes Register ). The Issuer may have one or more co-registrars and one or more additional paying agents. The term Paying Agent includes any additional paying agent and the term Registrar includes any co-registrar.
The Issuer shall enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Issuer shall notify the Trustee in writing of the name and address of each such agent. If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.7 . The Issuer or any Guarantor may act as Paying Agent, Registrar or transfer agent.
The Issuer initially appoints DTC to act as Depositary with respect to the Global Notes. The Issuer initially appoints the Trustee to act as the Registrar and Paying Agent for the Notes and the Issuer may remove any Registrar or Paying Agent without prior notice to the Holders, but upon written notice to such Registrar or Paying Agent and to the Trustee; provided , however , that no such removal shall become effective until (i) acceptance of any appointment by a successor as evidenced by an appropriate agreement entered into by the Issuer and such successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee and the passage of any waiting or notice periods required by DTC procedures or (ii) written notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with clause (i) above. The Registrar or Paying Agent may resign at any time upon written notice to the Issuer and the Trustee.
SECTION 2.4. Paying Agent to Hold Money in Trust . Prior to 10:00 a.m. (Eastern Time), on each date of the principal of, premium, if any, or interest on any Note is due and payable, the Issuer shall deposit with the Paying Agent a sum sufficient in immediately available funds to pay such principal, premium, if any, or interest when due. The Issuer shall require the Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal of, premium, if any, or interest on the Notes (whether such assets have been distributed to it by the Issuer or other obligors on the Notes), shall notify the Trustee in writing of any default by the Issuer or any Guarantor in making any such payment and shall during the continuance of any default by the Issuer (or any other obligor upon the Notes) or any Guarantor in the making of any payment in respect of the Notes, upon the written request of the Trustee, forthwith deliver to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Notes together with a full accounting thereof. If the Issuer or a Subsidiary of the Issuer acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Issuer at any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds or assets disbursed by such Paying Agent. Upon complying with this Section 2.4 , the Paying Agent (if other than the Issuer or a Subsidiary of the Issuer) shall have no further liability for the money delivered to the Trustee. Upon any bankruptcy, insolvency, reorganization or similar proceeding with respect to the Issuer, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.5. Holder Lists . The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Issuer, on its own behalf and on behalf of each of the Guarantors, shall furnish or cause the Registrar to furnish to
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the Trustee, in writing at least five Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders and the Issuer.
SECTION 2.6. Transfer and Exchange .
(a) A Holder may transfer a Note (or a beneficial interest therein) to another Person or exchange a Note (or a beneficial interest therein) for another Note or Notes of any authorized denomination by presenting to the Trustee a written request therefor stating the name of the proposed transferee or requesting such an exchange, accompanied by any certification, opinion or other document required by this Section 2.6 . The Trustee will promptly register any transfer or exchange that meets the requirements of this Section 2.6 by noting the same in the Notes Register maintained by the Trustee for the purpose, and no transfer or exchange will be effective until it is registered in such Notes Register. The transfer or exchange of any Note (or a beneficial interest therein) may only be made in accordance with this Section 2.6 and Sections 2.1(e) and 2.1(f) , as applicable, and, in the case of a Global Note (or a beneficial interest therein), the applicable rules and procedures of DTC, Euroclear and Clearstream. The Trustee shall refuse to register any requested transfer or exchange that does not comply with this Section 2.6(a) .
(b) Transfers of Rule 144A Notes . The following provisions shall apply with respect to any proposed registration of transfer of a Rule 144A Note prior to the date that is one year after the later of the date of its original issue and the last date on which the Issuer or any Affiliate of the Issuer was the owner of such Notes (or any predecessor thereto):
(1) a registration of transfer of a Rule 144A Note or a beneficial interest therein to a QIB shall be made upon the representation of the transferee in the form as set forth on the reverse of the Note that it is purchasing for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a qualified institutional buyer within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A; provided that no such written representation or other written certification shall be required in connection with the transfer of a beneficial interest in the Rule 144A Global Note to a transferee in the form of a beneficial interest in that Rule 144A Global Note in accordance with this Indenture and the applicable procedures of DTC; and
(2) a registration of transfer of a Rule 144A Note or a beneficial interest therein to a Non-U.S. Person shall be made upon receipt by the Issuer and the Registrar or its agent of a certificate substantially in the form set forth in Exhibit C from the proposed transferee and the delivery of an Opinion of Counsel, certification and/or other information satisfactory to the Issuer.
(c) Transfers of Regulation S Notes . The following provisions shall apply with respect to any proposed transfer of a Regulation S Note prior to the expiration of the Restricted Period:
(1) a transfer of a Regulation S Note or a beneficial interest therein to a QIB shall be made upon the representation of the transferee, in the form of assignment on the reverse of the certificate, that it is purchasing the Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a qualified institutional buyer within the meaning of Rule 144A, is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A; and
(2) a transfer of a Regulation S Note or a beneficial interest therein to a Non-U.S. Person shall be made upon receipt by the Registrar or its agent of a certificate substantially in the form set forth in Exhibit C hereof from the proposed transferee and receipt by the Issuer and Registrar or its agent of an Opinion of Counsel, certification and/or other information satisfactory to the Issuer.
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After the expiration of the Restricted Period, interests in the Regulation S Note may be transferred in accordance with applicable law without requiring the certification set forth in Exhibit C or any additional certification.
(d) Restricted Notes Legend . Upon the transfer, exchange or replacement of Notes not bearing a Restricted Notes Legend, the Registrar shall deliver Notes that do not bear a Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes bearing a Restricted Notes Legend, the Registrar shall deliver only Notes that bear a Restricted Notes Legend unless (1) an Initial Note is being transferred pursuant to an effective registration statement, (2) Initial Notes are being exchanged for Notes that do not bear the Restricted Notes Legend in accordance with Section 2.6(e) or (3) there is delivered to the Registrar an Opinion of Counsel stating that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act. Any Additional Notes sold in a registered offering shall not be required to bear the Restricted Notes Legend.
(e) Automatic Exchange from Global Note Bearing Restricted Notes Legend to Global Note Not Bearing Restricted Notes Legend . Upon the Issuers satisfaction that the Restricted Notes Legend shall no longer be required in order to maintain compliance with the Securities Act, beneficial interests in a Global Note bearing the Restricted Notes Legend (a Restricted Global Note ) may be automatically exchanged into beneficial interests in a Global Note not bearing the Restricted Notes Legend (an Unrestricted Global Note ) without any action required by or on behalf of the Holder (the Automatic Exchange ) at any time on or after the date that is the 366th calendar day after (1) with respect to the Notes issued on the Issue Date, the Issue Date or (2) with respect to Additional Restricted Notes, if any, the issue date of such Additional Restricted Notes, or, in each case, if such day is not a Business Day, on the next succeeding Business Day (the Automatic Exchange Date ). Upon the Issuers satisfaction that the Restricted Notes Legend shall no longer be required in order to maintain compliance with the Securities Act, the Issuer, upon request by any Holder, shall (i) provide written notice to DTC and the Trustee at least fifteen (15) calendar days prior to the Automatic Exchange Date, instructing DTC to exchange all of the outstanding beneficial interests in a particular Restricted Global Note to the Unrestricted Global Note, which the Issuer shall have previously otherwise made eligible for exchange with DTC, (ii) provide prior written notice (the Automatic Exchange Notice ) to each Holder at such Holders address appearing in the register of Holders at least fifteen (15) calendar days prior to the Automatic Exchange Date (the Automatic Exchange Notice Date ), which notice must include (w) the Automatic Exchange Date, (x) the section of this Indenture pursuant to which the Automatic Exchange shall occur, (y) the CUSIP number of the Restricted Global Note from which such Holders beneficial interests will be transferred and (z) the CUSIP number of the Unrestricted Global Note into which such Holders beneficial interests will be transferred, and (iii) on or prior to the Automatic Exchange Date, deliver to the Trustee for authentication one or more Unrestricted Global Notes, duly executed by the Issuer, in an aggregate principal amount equal to the aggregate principal amount of Restricted Global Notes to be exchanged into such Unrestricted Global Notes.
Notwithstanding anything to the contrary in this Section 2.6(e) , during the fifteen (15) calendar day period prior to the Automatic Exchange Date, no transfers or exchanges other than pursuant to this Section 2.6(e) shall be permitted without the prior written consent of the Issuer. As a condition to any Automatic Exchange, the Issuer shall provide, and the Trustee shall be entitled to conclusively rely upon, an Officers Certificate and Opinion of Counsel to the Issuer to the effect that the Automatic Exchange shall be effected in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Restricted Notes Legend shall no longer be required in order to maintain compliance with the Securities Act and that the aggregate principal amount of the particular Restricted Global Note is to be transferred to the particular Unrestricted Global Note by adjustment made on the records of the Trustee, as custodian for the Depositary, to reflect the Automatic Exchange. Upon such exchange of beneficial interests pursuant to this Section 2.6(e) , the aggregate principal amount of the Global Notes shall be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, to reflect the relevant increase or decrease in the principal amount of such Global Note resulting from the applicable exchange. The Restricted Global Note from which beneficial interests are transferred pursuant to an Automatic Exchange shall be canceled following the Automatic Exchange.
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(f) Retention of Written Communications . The Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.1 or this Section 2.6 . The Issuer shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable prior written notice to the Registrar.
(g) Obligations with Respect to Transfers and Exchanges of Notes . To permit registrations of transfers and exchanges, the Issuer shall, subject to the other terms and conditions of this Article II , execute and the Trustee shall authenticate Definitive Notes and Global Notes at the Issuers and Registrars written request.
No service charge shall be made to a Holder for any registration of transfer or exchange, but the Issuer may require the Holder to pay a sum sufficient to cover any transfer tax assessments or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charges payable upon exchange or transfer pursuant to Section 2.2 , 2.6 , 2.7 , 2.9 , 5.6 or 9.5 ).
The Issuer (and the Registrar) shall not be required to register the transfer of or exchange of any Note (A) for a period beginning (1) fifteen (15) calendar days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) fifteen (15) calendar days before an interest payment date and ending on such interest payment date or (B) called for redemption, except the unredeemed portion of any Note being redeemed in part.
Prior to the due presentation for registration of transfer of any Note, the Issuer, the Trustee, the Paying Agent or the Registrar may deem and treat the person in whose name a Note is registered as the owner of such Note for the purpose of receiving payment of principal of, premium, if any, and (subject to paragraph 2 of the form of Note attached hereto as Exhibit A ) interest on such Note and for all other purposes whatsoever, including without limitation the transfer or exchange of such Note, whether or not such Note is overdue, and none of the Issuer, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.
Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to Section 2.1(f) shall, except as otherwise provided by Section 2.6(d) , bear the applicable legend regarding transfer restrictions applicable to the Definitive Note set forth in Section 2.1(c) .
All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee . The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in, DTC or other Person with respect to the accuracy of the records of DTC or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than DTC) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through DTC subject to the applicable rules and procedures of DTC. The Trustee may rely and shall be fully protected in relying upon information furnished by DTC with respect to its members, participants and any beneficial owners.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among DTC participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. Neither the Trustee nor any of its agents shall have any responsibility for any actions taken or not taken by DTC.
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SECTION 2.7. Mutilated, Destroyed, Lost or Stolen Notes .
If a mutilated Note is surrendered to the Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall authenticate a replacement Note if the requirements of Section 8-405 of the UCC are met, such that the Holder (a) satisfies the Issuer and the Trustee that such Note has been lost, destroyed or wrongfully taken within a reasonable time after such Holder has notice of such loss, destruction or wrongful taking and the Registrar has not registered a transfer prior to receiving such notification, (b) makes such request to the Issuer and the Trustee prior to the Note being acquired by a protected purchaser as defined in Section 8-303 of the UCC (a protected purchaser ) and (c) satisfies any other reasonable requirements of the Trustee; provided , however , if after the delivery of such replacement Note, a protected purchaser of the Note for which such replacement Note was issued presents for payment or registration such replaced Note, the Trustee and/or the Issuer shall be entitled to recover such replacement Note from the Person to whom it was issued and delivered or any Person taking therefrom, except a protected purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuer or the Trustee in connection therewith. Such Holder shall furnish an indemnity bond sufficient in the judgment of (i) the Trustee to protect the Trustee and (ii) the Issuer to protect the Issuer, the Trustee, the Paying Agent and the Registrar, from any loss which any of them may suffer if a Note is replaced, and, in the absence of notice to the Issuer, any Guarantor or the Trustee that such Note has been acquired by a protected purchaser, the Issuer shall execute, and upon receipt of an Issuer Order, the Trustee shall authenticate and make available for delivery, in exchange for any such mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section 2.7 , the Issuer may require that such Holder pay a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of counsel and of the Trustee) in connection therewith.
Subject to the proviso in the initial paragraph of this Section 2.7 , every new Note issued pursuant to this Section 2.7 , in lieu of any mutilated, destroyed, lost or stolen Note, shall constitute an original additional contractual obligation of the Issuer, any Guarantor (if applicable) and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 2.7 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.8. Outstanding Notes . Notes outstanding at any time are all Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those paid pursuant to Section 2.7 and those described in this Section 2.8 as not outstanding. A Note does not cease to be outstanding in the event the Issuer or an Affiliate of the Issuer holds the Note; provided , however , that (i) for purposes of determining which Notes are outstanding for consent or voting purposes hereunder, the provisions of Section 13.5 shall apply and (ii) in determining whether the Trustee shall be protected in making a determination whether the Holders of the requisite principal amount of outstanding Notes are present at a meeting of Holders of Notes for quorum purposes or have consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment or modification hereunder, or relying upon any such quorum, consent or vote, only Notes which a Trust Officer of the Trustee actually knows to be held by the Issuer or an Affiliate of the Issuer shall not be considered outstanding.
If a Note is replaced pursuant to Section 2.7 (other than a mutilated Note surrendered for replacement), it ceases to be outstanding unless the Trustee and the Issuer receive proof satisfactory to them that the replaced Note is held by a protected purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replacement pursuant to Section 2.7 .
If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a Redemption Date or maturity date, money sufficient to pay all principal, premium, if any, and accrued interest payable on that date
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with respect to the Notes (or portions thereof) to be redeemed or maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture, then on and after that date such Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.
SECTION 2.9. Temporary Notes . In the event that Definitive Notes are to be issued under the terms of this Indenture, until such Definitive Notes are ready for delivery, the Issuer may prepare and the Trustee shall authenticate temporary Notes. Temporary Notes shall be substantially in the form, and shall carry all rights, of Definitive Notes but may have variations that the Issuer consider appropriate for temporary Notes. Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate Definitive Notes. After the preparation of Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the temporary Notes at any office or agency maintained by the Issuer for that purpose and such exchange shall be without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Issuer shall execute, and the Trustee shall, upon receipt of an Issuer Order, authenticate and make available for delivery in exchange therefor, one or more Definitive Notes representing an equal principal amount of Notes. Until so exchanged, the Holder of temporary Notes shall in all respects be entitled to the same benefits under this Indenture as a Holder of Definitive Notes.
SECTION 2.10. Cancellation . The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment or cancellation and dispose of such Notes in accordance with its internal policies and customary procedures (subject to the record retention requirements of the Exchange Act and the Trustee). If the Issuer or any Guarantor acquires any of the Notes, such acquisition shall not operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation pursuant to this Section 2.10 . The Issuer may not issue new Notes to replace Notes it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a transfer or exchange.
At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes, transferred, redeemed, repurchased or canceled, such Global Note shall be returned by DTC to the Trustee for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the Notes Custodian for such Global Note) with respect to such Global Note, by the Trustee or the Notes Custodian, to reflect such reduction.
SECTION 2.11. Payment of Interest; Defaulted Interest . Interest on any Note which is payable, and is punctually paid or duly provided for, on any interest payment date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the close of business on the regular record date for such payment at the office or agency of the Issuer maintained for such purpose pursuant to Section 2.3 .
Any interest on any Note which is payable, but is not paid when the same becomes due and payable and such nonpayment continues for a period of 30 days shall forthwith cease to be payable to the Holder on the regular record date, and such defaulted interest and (to the extent lawful) interest on such defaulted interest at the rate borne by the Notes (such defaulted interest and interest thereon herein collectively called Defaulted Interest ) shall be paid by the Issuer, at its election in each case, as provided in clause (a) or (b) below:
(a) The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective predecessor Notes) are registered at the close of business on a Special Record Date (as defined below) for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment (the Special Interest Payment Date ), and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Section 2.11(a) . Thereupon the Issuer shall fix a record date (the Special Record Date ) for the payment of such Defaulted Interest,
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which date shall be not more than fifteen (15) calendar days and not less than ten (10) calendar days prior to the Special Interest Payment Date and not less than ten (10) calendar days after the receipt by the Trustee of the notice of the proposed payment. The Issuer shall promptly notify the Trustee in writing of such Special Record Date, and in the name and at the expense of the Issuer, the Trustee shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor to be given in the manner provided for in Section 13.1 , not less than ten (10) calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor having been so given, such Defaulted Interest shall be paid on the Special Interest Payment Date to the Persons in whose names the Notes (or their respective predecessor Notes) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the provisions in Section 2.11(b) .
(b) The Issuer may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after written notice given by the Issuer to the Trustee of the proposed payment pursuant to this Section 2.11(b) , such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.11 , each Note delivered under this Indenture upon registration of, transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 2.12. CUSIP and ISIN Numbers . The Issuer in issuing the Notes may use CUSIP and ISIN numbers and, if so, the Trustee shall use CUSIP and ISIN numbers in notices of redemption or other notice as a convenience to Holders; provided , however , that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption or other notice and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or other notification shall not be affected by any defect in or omission of such CUSIP and ISIN numbers. The Issuer shall promptly notify the Trustee in writing of any change in the CUSIP and ISIN numbers.
ARTICLE III
COVENANTS
SECTION 3.1. Payment of Notes .
The Issuer will pay or cause to be paid the principal of, premium, if any, and interest due on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest due on the Notes will be considered paid on the date due if the Paying Agent, if other than Holdings or a Subsidiary thereof, holds as of 10:00 a.m. (Eastern Time) on the due date money deposited (or caused or directed to be deposited) by one of the JCP Parties in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due on the Notes.
The Issuer will pay interest (including post-petition interest in any proceeding under the Bankruptcy Code) on overdue principal at the then applicable interest rate on the Notes to the extent lawful; the JCP Parties will pay interest (including post-petition interest in any proceeding under the Bankruptcy Code) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.
SECTION 3.2. Maintenance of Office or Agency .
The Issuer will maintain an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served; provided, however, that nothing herein shall be construed to render the Trustee or any affiliate of the Trustee, Registrar or co-registrar as the agent of the Issuer for service of process. The Issuer will give prompt written notice to the Trustee of
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the location, and any change in the location, of such office or agency. If at any time the Issuer fails to maintain any such required office or agency or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Issuer may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission will in any manner relieve the JCP Parties of their obligation to maintain an office or agency for such purposes. The Issuer will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency
SECTION 3.3. Stay, Extension and Usury Laws . The Issuer covenants (to the extent that it may lawfully do so) that they will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenant that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.
SECTION 3.4. Compliance Certificate .
The Issuer shall deliver to the Trustee, within 120 days after the end of each Fiscal Year ended after the Issue Date, an Officers Certificate (which need not comply with Section 13.4 ) stating, as to the signer thereof (who must be the principal executive officer, principal financial officer or principal accounting officer of the Issuer) that:
(1) a review of the activities of the Issuer during such year and of its performance under this Indenture has been made under his or her supervision, and
(2) to the best of his or her knowledge, based on such review, the Issuer has fulfilled all its obligations under this Indenture throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to him or her and the nature and status thereof.
SECTION 3.5. Limitation on Asset Dispositions .
(a) The Issuer shall not, and shall not permit any of its Subsidiaries to, make any Asset Disposition unless:
(1) the Issuer or such Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at least equal to the fair market value (such fair market value to be determined on the date of contractually agreeing to such Asset Disposition), as determined in good faith by the Issuer, of the Equity Interests, property or assets subject to such Asset Disposition; or
(2) in any such Asset Disposition, or series of related Asset Dispositions, at least 75% of the consideration from such Asset Disposition (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise), received by the Issuer or such Subsidiary, as the case may be, is in the form of cash, cash equivalents or other Permitted Investments; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied within 365 days after the receipt thereof (or, if Holdings or any of its Subsidiaries enters into a binding commitment to acquire such long-term assets within 365 days of receipt of such Net Available Cash, within 540 days of receipt thereof) at the option of the Issuer:
(i) to repay, redeem, repurchase or otherwise acquire or retire: (I) the Notes; and/or (II) any other Term Loan/Notes Secured Obligations, provided that in the case of clause (II), the Issuer shall equally and ratably reduce Notes Obligations through (A) open market purchases (to
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the extent such purchases are at or above 100% of the principal amount of the Notes (or, to the extent that such Net Available Cash constitutes Specified Sale/Leaseback Proceeds, 103% of the principal amount of the Notes)), (B) as provided under Section 5.7 or (C) by making an Asset Disposition Offer; or
(ii) to make capital expenditures or to invest in or commit to invest in non-current assets that are used or useful in the business of the Issuer or a Guarantor (including assets or Equity Interests of a Person that becomes a Subsidiary and a Guarantor in connection therewith); or
(iii) any combination of the foregoing;
provided that, pending the final application of the amount of any such Net Available Cash in accordance with clause (3) of this Section 3.5(a) , Holdings and its Subsidiaries may temporarily reduce Indebtedness or otherwise use such Net Available Cash in any manner not prohibited by this Indenture.
For purposes of clause (2) above, the following shall be deemed to be cash: (i) any liabilities (as shown on Holdings or any of its Subsidiaries most recent balance sheet or in the footnotes thereto which shall at such time have been delivered pursuant to Section 3.10 or otherwise prepared (other than any liabilities that are by their terms subordinated to the Notes Obligations)) that are assumed by the transferee with respect to the applicable disposition, (ii) any notes or other obligations or other securities or assets received by Holdings or any of its Subsidiaries in the applicable disposition that are converted into cash or cash equivalents or other Permitted Investments within 180 days of the receipt thereof (to the extent of the cash or cash equivalents or other Permitted Investments received), (iii) any Designated Non-Cash Consideration received by Holdings or any of its Subsidiaries in the applicable disposition having an aggregate fair market value (as determined in good faith by the Issuer), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at the time outstanding, not to exceed, at the time of receipt of such consideration, 1.0% of Net Tangible Assets of Holdings and its Subsidiaries (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (iv) any non-current assets referred to in clause (ii) of the immediately preceding paragraph.
(b) The Notes Percentage of the amount of any Net Available Cash that is not applied or invested or committed to be applied or invested as provided in Section 3.5(a) will be deemed to constitute Excess Proceeds under this Indenture. Within 10 Business Days after the date that the aggregate amount of Excess Proceeds exceeds $25.0 million, the Issuer will be required to make an offer ( Asset Disposition Offer ) to all Holders of Notes issued under this Indenture to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price equal to 100% of the principal amount of the Notes (or, to the extent that such Excess Proceeds are from Specified Sale/Leaseback Proceeds, 103% of the principal amount of the Notes) plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in Sections 3.5(c) and (d) and in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. The Issuer may, in its sole discretion, make an Asset Disposition Offer pursuant to this Section 3.5 prior to the time that the aggregate amount of Excess Proceeds exceeds $25.0 million.
(c) Upon the commencement of an Asset Disposition Offer, the Issuer shall send, or cause to be sent, by first class mail or electronically, a notice to each Holder with a copy to the Trustee at its registered address or otherwise in accordance with the applicable procedures of DTC. The notice shall contain all instructions and materials necessary to enable such Holder to tender Notes pursuant to the Asset Disposition Offer. Any Asset Disposition Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Disposition Offer, shall state:
(1) that the Asset Disposition Offer is being made pursuant to this Section 3.5 and that, to the extent lawful, all Notes properly tendered (and not properly withdrawn) shall be accepted for payment (unless prorated);
(2) the Asset Disposition payment amount, the Asset Disposition offered price, and the date on which Notes tendered and accepted for payment shall be purchased, which date shall be at least 30 days and not later than 60 days from the date such notices is delivered (the Asset Disposition Payment Date);
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(3) that any Notes not tendered or accepted for payment shall continue to accrue interest in accordance with the terms thereof;
(4) that, unless the Issuer defaults in making such payment, any Notes accepted for payment pursuant to the Asset Disposition Offer shall cease to accrue interest on and after the Asset Disposition Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to any Asset Disposition Offer shall be required to surrender the Notes, with the form entitled Option of Holder to Elect Purchase on the reverse of the Note completed, to the Paying Agent at the address specified in the notice at least three Business Days before the Asset Disposition Payment Date;
(6) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than two (2) Business Days prior to the Asset Disposition Payment Date, a notice setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased;
(7) that if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Disposition payment amount, the Issuer shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Issuer so that only Notes in denominations of $2,000 or integral multiples of $1,000 in excess thereof shall be purchased); and
(8) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry).
If the Asset Disposition Payment Date is on or after a record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Disposition Offer.
On the Asset Disposition Payment Date, the Issuer shall, to the extent lawful:
(i) accept for purchase all Notes or portions of Notes properly tendered (and not properly withdrawn) pursuant to the Asset Disposition Offer (subject to the limitations set forth on minimum denominations and integrals and to the pro ration provisions set forth below);
(ii) deposit with the Paying Agent an amount equal to the Asset Disposition payment in respect of all Notes or portions of Notes properly tendered (and not properly withdrawn) and accepted for purchase by the Issuer; and
(iii) deliver or cause to be delivered to the Trustee the Notes accepted for purchase, together with an Officers Certificate stating the aggregate principal amount of Notes being purchased by the Issuer.
(d) To the extent that the aggregate amount of Notes so validly tendered and not properly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for any purpose not prohibited by this Indenture. If the aggregate principal amount of the Notes surrendered in any Asset Disposition Offer by Holders exceeds the amount of Excess Proceeds, the Excess Proceeds shall be allocated among the Notes to be purchased on a pro rata basis, by lot to the extent practicable or by such other method in accordance with the applicable procedures of DTC, on the basis of the aggregate principal amount of tendered Notes, provided that no Notes will be selected and purchased in an unauthorized denomination. Upon completion of any Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
(e) The Issuer will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws, rules and regulations thereunder to the extent such laws or regulations
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are applicable in connection with the repurchase of Notes pursuant to this Section 3.5 . To the extent that the provisions of any securities laws, rules or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws, rules and regulations and shall not be deemed to have breached its obligations under this Indenture by virtue thereof.
SECTION 3.6. Limitation on Liens .
(a) The Issuer and the Guarantors shall not create, incur, assume or permit to exist any Lien securing Indebtedness on or with respect to the Collateral or any Issue Date Material Real Estate Asset, in each case except for Permitted Liens. The Issuer and the Guarantors shall not, and shall not permit any Subsidiary to, create, incur, assume or permit to exist any Lien securing Indebtedness on or with respect to any property or asset now owned or hereafter acquired by it other than Collateral or any Issue Date Material Real Estate Asset, in each case except for Permitted Liens or unless the Notes are secured equally and ratably with (or prior to) the Indebtedness secured by such Lien for so long as such other Indebtedness is so secured (the Initial Lien ). Any Lien created for the benefit of the Holders pursuant to the preceding sentence shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien.
(b) For purposes of determining compliance with this Section 3.6 , a Lien securing Indebtedness need not be permitted solely by reference to the above paragraph or to one category (or portion thereof) of Permitted Liens described in the definition of Permitted Liens, but may be permitted in part under any combination thereof and (b) in the event that a Lien securing Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of Permitted Liens described in the definition of Permitted Liens or pursuant to the above paragraph, the Issuer may, in its sole discretion, classify or divide such Lien securing such Indebtedness (or any portion thereof) in any manner that complies with this Section 3.6 .
SECTION 3.7. Limitation on Sale and Lease-Back Transactions . The Issuer and the Guarantors shall not enter into any arrangement, directly or indirectly, whereby it shall sell or transfer (other than to the Issuer or a Guarantor) any Term Loan/Notes Exclusive Collateral whether now owned or hereinafter acquired, or any Issue Date Material Real Estate Asset and thereafter rent or lease such property (or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred) (each such transaction, a Sale/Leaseback Transaction ) for a period of time in excess of three years, except for any such sale of fixed or capital assets (a) that is made for cash, cash equivalents or other Permitted Investments consideration within 90 days after the Issuer or Guarantor, as applicable, acquires or completes the construction of such fixed or capital asset or (b) where the disposition is not prohibited by Section 3.5 .
SECTION 3.8. Subsidiaries . If any Domestic Subsidiary of the Issuer guarantees or becomes a borrower in respect of the obligations under the ABL Credit Agreement or the Term Loan Agreement or any other facility evidencing Term Loan/Notes Secured Obligations, Holdings and the Issuer shall, within fifteen Business Days after such Domestic Subsidiary guarantees or becomes a borrower in respect of the obligations under the ABL Credit Agreement, Term Loan Agreement or any other facility evidencing Term Loan/Notes Secured Obligations, notify the Trustee thereof and promptly cause such Domestic Subsidiary to (i) execute and deliver a supplemental indenture to the Indenture providing for a Note Guarantee by such Domestic Subsidiary, (ii) execute and deliver a supplement or joinder to the Collateral Documents or new Collateral Documents and Intercreditor Agreements, if applicable, and (iii) take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements, and certificates necessary in order to create the Liens intended to be created by the Collateral Documents and to perfect such Liens to the extent required by, and with the priority required by, the Collateral Documents.
SECTION 3.9. Change of Control .
(a) If a Change of Control occurs, except as provided in Section 3.9(c) or unless the Issuer exercised its right to redeem all the outstanding Notes pursuant to Section 5.7 , the Issuer will be required to make an offer (a Change of Control Offer ) to each Holder to repurchase all or any part (in minimum denominations of $2,000 and integral multiples of $1,000 principal amount in excess thereof) of such Holders Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased, to, but not including, the date of repurchase (the Change of Control Payment ). Within 30 days
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following the date of any Change of Control, or, at the Issuers option, prior to any Change of Control but after the public announcement of the Change of Control, the Issuer shall mail (or in the case of Holders of interests in Global Notes, transmit electronically in accordance with the applicable procedures of DTC) a notice to Holders of Notes (and shall provide a copy of such notice to the Trustee) describing the transaction or transactions that constitute the Change of Control and offering to repurchase the Notes on the date specified in the notice (the Change of Control Payment Date ), which date shall be no earlier than 30 days and no later than 60 days from the date such notice is so mailed or transmitted (subject to the next succeeding sentence), pursuant to the procedures required by this Indenture and described in such notice. The notice shall state, if so mailed or transmitted prior to the date of consummation of the Change of Control, that the offer to repurchase the Notes is conditioned on the Change of Control occurring on or prior to the Change of Control Payment Date specified in the notice; provided , that if a conditional Change of Control Offer is made, the Change of Control Payment Date may be delayed, in the Issuers discretion, until such time as such Change of Control shall have occurred, or if such Change of Control shall not have occurred by the applicable Change of Control Payment Date (whether the original Change of Control Payment Date of the Change of Control Payment Date so delayed), then such Change of Control Offer may be rescinded by the Issuer.
(b) The Issuer shall comply with the requirements of Rule 14e-l under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with this Section 3.9 , the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations under this Section 3.9 or the Notes by virtue of such conflicts and compliance with law.
(c) On the Change of Control Payment Date, the Issuer shall, to the extent lawful:
(1) accept for purchase all Notes or portions of Notes properly tendered (and not properly withdrawn) pursuant to the Change of Control Offer (subject to the limitations set forth on minimum denominations and integrals and to the pro ration provisions set forth below);
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered (and not properly withdrawn) and accepted for purchase by the Issuer; and
(3) deliver or cause to be delivered to the Trustee (if not previously delivered to the Trustee by the Holders) the Notes accepted for purchase, together with an Officers Certificate stating the aggregate principal amount of Notes being purchased by the Issuer.
(d) The Paying Agent shall promptly mail (or in the case of Holders of interests in Global Notes, transmit electronically in accordance with the applicable procedures of DTC) to each Holder of Notes properly tendered (and not properly withdrawn) and accepted for purchase by the Issuer, the Change of Control Payment for the Notes, and the Trustee, upon receipt of an authentication order, shall promptly authenticate and mail to each Holder a new Note (or in the case of interests in Global Notes cause to be transferred by book-entry an interest in the applicable Global Note) equal in principal amount to any unpurchased portion of any Notes surrendered; provided that each new Note will be in a minimum principal denomination of $2,000 or an integral multiple of $1,000 in excess thereof.
(e) Notwithstanding anything to the contrary in this Section 3.9 , the Issuer shall not be required to make a Change of Control Offer to repurchase the Notes upon a Change of Control if a third party makes an offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 3.9 and such third party purchases all Notes properly tendered (and not properly withdrawn) under its offer.
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SECTION 3.10. Reports .
(a) To the extent Holdings is required by the rules and regulations of the SEC, so long as any Notes are outstanding, Holdings will furnish to the Trustee and to the Holders:
(1) all quarterly and annual financial information that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if Holdings were required to file such Forms, including a Managements Discussion and Analysis of Financial Condition and Results of Operations that describes the financial condition and results of operations of Holdings and its consolidated Subsidiaries and, with respect to the annual information only, a report thereon by Holdings certified independent accountants; provided that no information required to be provided pursuant to Rule 3-10 or Rule 3-16 of Regulation S-X shall be required to be included therein; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if Holdings were required to file such reports, in each case, within the time periods required for filing such forms and reports as specified in the SECs rules and regulations, including any extension period under Rule 12b-25 under the Exchange Act (and during any period in which Holdings is not required to file reports with the SEC, within the time periods specified in the SECs rules and regulations applicable to a non-accelerated filer, including any extension period under Rule 12b-25 under the Exchange Act). To the extent any such information is not so filed or furnished, as applicable, within the time periods specified above and such information is subsequently filed or furnished, as applicable, the Issuer will be deemed to have satisfied its obligations with respect thereto at such time and any Default or Event of Default with respect thereto shall be deemed to have been cured. The filing by Holdings of such information and such reports with the SEC shall satisfy any requirement under this Indenture to furnish such reports to the Trustee and to Holders. In addition, to the extent not satisfied by the foregoing, Holdings will agree that, for so long as any Notes are outstanding, it will furnish to the Trustee and to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) Delivery of reports, information and documents to the Trustee is for informational purposes only and the Trustees receipt of such reports, information and documents shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuers, any Guarantors or any other Persons compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates delivered pursuant to this Indenture).
SECTION 3.11. Post-Closing Collateral Matters . The Issuer shall use its commercially reasonable efforts to comply with the requirements of Sections 5.15 and 5.16 of the Term Loan Agreement within the time periods required thereby (subject to such extensions as may be granted by the Term Loan Administrative Agent).
SECTION 3.12. Statement by Officers as to Default . The Issuer shall deliver to the Trustee, within 30 days after the occurrence thereof, written notice of any events of which it is aware that would constitute a Default or Event of Default, their status and what action the Issuer is taking or proposes to take in respect thereof.
ARTICLE IV
CONSOLIDATION, MERGER OR SALE OF ASSETS
SECTION 4.1. Consolidation, Merger or Sale of Assets .
(a) The Issuer shall not consolidate with or merge into any other corporation or convey or transfer all or substantially all of its properties or assets to any Person, unless:
(1) the corporation formed by such consolidation or into which the Issuer is merged or the Person which acquires by conveyance or transfer the Issuers properties or assets substantially as an entirety shall be a corporation organized and existing under the laws of the United States of America or any State thereof or the District of Columbia, and shall expressly assume, by supplemental indenture executed and delivered to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest, if any, on the Notes and the performance or observance of every covenant of this Indenture on the Issuers part to be performed or observed and shall pursuant to supplements to the Collateral Documents take such action as may be required to assume the obligations of the Issuer thereunder and maintain the perfection of the Liens securing the Term Loan/Notes Secured Obligations;
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(2) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have happened and be continuing; and
(3) the Issuer has delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance or transfer complies with this Article IV and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(b) Unless the Note Guarantee of a Guarantor is permitted to be released under Article X, no Guarantor shall consolidate with or merge into any other corporation or convey or transfer all or substantially all of its properties or assets to any Person unless:
(1) the other Person is the Issuer or another Guarantor, or
(2) (i) either (x) a Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person shall be a corporation, limited liability company or limited partnership organized and existing under the laws of the United States of America or any State thereof or the District of Columbia and expressly assumes all of the obligations of the Guarantor under its Guarantee of the Notes, the Indenture and the Collateral Documents and shall pursuant to supplements to the Collateral Documents take such action as may be required to assume the obligations of the Issuer thereunder and maintain the perfection of the Liens securing the Term Loan/Notes Secured Obligations and (ii) immediately after giving effect to the transaction, no Default has occurred and is continuing; or
(3) the transaction does not violate Section 3.5 .
SECTION 4.2. Successor Corporation Substituted .
Upon any consolidation or merger, or any conveyance or transfer of all or substantially all of the Issuers properties and assets in accordance with the provisions of Section 4.1 , the successor corporation formed by such consolidation or into which the Issuer is merged or to which such conveyance or transfer is made will succeed to, and be substituted for, the Issuer with the same effect as if the successor corporation had been named as the Issuer, and the predecessor shall be released from all obligations and covenants under this Indenture and the Notes. In the event of any such conveyance or transfer, the Issuer as the predecessor may be dissolved, wound up and liquidated at any time thereafter.
ARTICLE V
REDEMPTION OF SECURITIES
SECTION 5.1. Notices and Opinions to Trustee .
(a) If the Issuer elects to redeem Notes pursuant to the optional redemption provisions of Section 5.7 , it must furnish to the Trustee, at least 30 days but not more than 60 days before a date fixed for redemption (the Redemption Date ) (or such longer period permitted by Section 5.3(a) , an Officers Certificate setting forth:
(1) the clause of this Indenture pursuant to which the redemption shall occur;
(2) the Redemption Date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price; and
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If the redemption price is not known at the time such notice is to be given, the actual redemption price shall be set forth in an Officers Certificate of the Issuer delivered to the Trustee no later than two (2) Business Days prior to the redemption date.
SECTION 5.2. Selection of Notes to Be Redeemed or Purchased . If less than all of the Notes are to be redeemed at any time, the Trustee shall select the Notes for redemption in compliance with the requirements of the principal securities exchange, if any, on which such Notes are listed, as certified to the Trustee by the Issuer, and in compliance with the requirements of DTC, or if the Notes are not so listed or such exchange prescribes no method of selection and such Notes are not held through DTC or DTC prescribes no method of selection, on a pro rata basis, subject to adjustments so that no Note in an unauthorized denomination remains outstanding after such redemption; provided , however , that no Note of $2,000 in aggregate principal amount or less shall be redeemed in part.
SECTION 5.3. Notice of Redemption .
(a) At least 30 days but not more than 60 days before a Redemption Date, the Issuer shall send or cause to be sent, by electronic delivery or by first class mail postage prepaid, a notice of redemption to each Holder (with a copy to the Trustee) whose Notes are to be redeemed at the address of such Holder appearing in the security register or otherwise in accordance with the procedures of DTC, except that redemption notices may be delivered electronically or mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Article VIII or XI .
(b) The notice will identify the Notes (including the CUSIP or ISIN number) to be redeemed and will state:
(1) the Redemption Date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(6) that, unless the Issuer defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the Redemption Date;
(7) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed;
(8) that no representation is made as to the correctness or accuracy of the CUSIP or ISIN number, if any, listed in such notice or printed on the Notes; and
(9) any conditions to redemption.
(c) If any Note is to be redeemed in part only, the notice of redemption that relates to that Note shall state the portion of the principal amount thereof to be redeemed, in which case a portion of the original Note will be issued in the name of the Holder thereof upon cancellation of the original Note. In the case of a Global Note, an appropriate notation will be made on such Note to decrease the principal amount thereof to an amount equal to the unredeemed portion thereof. Subject to the terms of the applicable redemption notice (including any conditions contained therein), Notes called for redemption become due on the date fixed for redemption. On and after the Redemption Date, unless the Issuer defaults in the payment of the redemption price, interest ceases to accrue on Notes or portions of them called for redemption.
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(d) At the Issuers request, the Trustee will give the notice of redemption in the Issuers name and at their expense; provided, however , that the Issuers has delivered to the Trustee, at least five (5) Business Days (or such shorter period as may be agreed to by the Trustee) before notice of redemption is required to be sent or caused to be sent to Holders pursuant to this Section 5.3 , an Officers Certificate requesting that the Trustee give such notice, which shall include a form of the notice setting forth the information provided in the preceding paragraphs of this Section 5.3 .
SECTION 5.4. Effect of Notice of Redemption . Once notice of redemption is sent in accordance with Section 5.3 , Notes called for redemption become irrevocably due and payable on the Redemption Date at the redemption price (subject to any conditions set forth in such notice). Notice of redemption may, at the Issuers option and discretion, be subject to the satisfaction of any conditions precedent contained in such notice of redemption. Notice of any redemption of the Notes may be subject to the satisfaction (or waiver by the Issuer in the Issuers discretion) of any conditions precedent to such redemption specified in the applicable notice. If such redemption is subject to satisfaction of one or more conditions precedent, the Redemption Date may be delayed, in the Issuers discretion, until such time as any or all such conditions shall be satisfied (or waived by the Issuer in the Issuers discretion), or such redemption may not occur and the notice of redemption may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived by the Issuer in the Issuers discretion) by the applicable Redemption Date (whether the original Redemption Date or the Redemption Date so delayed).
SECTION 5.5. Deposit of Redemption Price . Prior to 10:00 a.m. (Eastern Time) on the redemption date, the Issuer will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption price of and accrued interest if any, on, all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent will promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption price of, and accrued interest if any, on, all Notes to be redeemed.
If the Issuer complies with the provisions of the preceding paragraph, on and after the redemption date, interest will cease to accrue on the Notes or the portions of Notes called for redemption. If a Note is redeemed on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption is not so paid upon surrender for redemption because of the failure of the Issuer to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes.
SECTION 5.6. Notes Redeemed in Part . Upon surrender of a Note that is redeemed in part, the Issuer will issue and, upon receipt of an Issuer Order, the Trustee will authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered; provided , that each such new Note will be in a minimum principal amount of $2,000 or integral multiple of $1,000 in excess thereof.
SECTION 5.7. Optional Redemption .
(a) At any time, and from time to time, prior to July 1, 2019, the Issuer may redeem the Notes in whole or in part, at its option, at a redemption price equal to the greater of:
(1) 100% of the principal amount of the Notes to be redeemed; and
(2) the excess of:
(i) the present value at such redemption date of (i) the redemption price of the Note at July 1, 2019 (such redemption price being set forth in the table under clause (e) below) plus (ii)
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all required interest payments due on the Note through July 1, 2019 (excluding interest paid prior to the redemption date and accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over
(ii) the principal amount of the Note,
(3) plus, in each case, any accrued and unpaid interest, if any, to, but not including, the date of redemption (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date).
In the event of any redemption pursuant to this clause (a), the Issuer shall calculate or cause the calculation of the redemption price, and the Trustee shall have no duty to calculate or verify the calculation thereof.
(b) At any time prior to July 1, 2019, the Issuer may on one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price equal to 105.875% of the principal amount plus accrued and unpaid interest, if any, to, but not including, the date of redemption (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date) in an amount of up to the amount of net cash proceeds received by or contributed to the Issuer from one or more Equity Offerings; provided that (1) at least 65% of the aggregate principal amount of Notes originally issued under this Indenture (including Additional Notes but excluding Notes held by the Issuer and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption, and (2) notice of such redemption is given within 90 days of the date of the closing of such Equity Offering. The Trustee shall select the Notes to be redeemed in the manner described under Sections 5.1 through 5.6 .
(c) [Reserved]
(d) Except pursuant to paragraphs (a) and (b) of this Section 5.7 , the Notes will not be redeemable at the Issuers option prior to July 1, 2019.
(e) On or after July 1, 2019, the Issuer may redeem all or a part of the Notes at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest, if any, on the Notes redeemed, to, but not including, the applicable date of redemption, if redeemed during the twelve-month period beginning on July 1 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date:
Year | Percentage | |||
2019 |
102.938 | % | ||
2020 |
101.469 | % | ||
2021 and thereafter |
100.000 | % |
(g) Unless the Issuer defaults in the payment of the redemption price, on and after the Redemption Date (whether the original Redemption Date or the Redemption Date so delayed), interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable Redemption Date.
(h) Any redemption pursuant to this Section 5.7 shall be made pursuant to the provisions of Sections 5.1 through 5.6 .
SECTION 5.8. Mandatory Redemption . The Issuer is not required to make mandatory redemption payments or sinking fund payments with respect to the Notes.
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ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default .
(a) Each of the following is an Event of Default :
(1) default in any payment of interest on any Note when due and payable, continued for 30 days;
(2) default in payment of principal of or premium, if any, on the Notes at maturity except any maturity occurring by reason of a call for redemption;
(3) failure to comply for 90 days after written notice by the Trustee or by the Holders of 25% in principal amount of the outstanding Notes with any agreement or obligation for the benefit of the Holders contained in this Indenture or, to the extent such failure to comply affects in any material respect the enforceability, validity, perfection or priority of the Liens on a material portion of the Collateral, the Collateral Documents;
(4) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by Holdings, the Issuer or any of its Significant Subsidiaries (or the payment of which is Guaranteed by Holdings, the Issuer or any of its Significant Subsidiaries) that is secured by a Lien on any real or personal property or assets of Holdings, the Issuer or any of its Significant Subsidiaries ( Secured Indebtedness ) other than Secured Indebtedness owed to Holdings, the Issuer or a Subsidiary whether such Indebtedness or Guarantee now exists, or is created after the date hereof, which default:
(A) is caused by a failure to pay principal of such Secured Indebtedness, at its stated final maturity (after giving effect to any applicable grace periods) provided in such Indebtedness ( payment default ); or
(B) results in the acceleration of such Secured Indebtedness prior to its stated final maturity;
and, in each case, the principal amount of any such Secured Indebtedness, together with the principal amount of any other such Secured Indebtedness for which there has been a payment default or the maturity of which has been so accelerated and, in each case, remains unpaid, aggregates $100.0 million or more;
(5) the entry of an order for relief in respect of any petition filed against any of Holdings, the Issuer or a Significant Subsidiary under any Bankruptcy Code, or the entry of a decree or order by a court having competent jurisdiction in the premises in respect of any petition filed or action taken against Holdings, the Issuer or a Significant Subsidiary looking to reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any other present or future Federal or State statute, law or regulation, resulting in the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of Holdings, the Issuer or a Significant Subsidiary or of any substantial part of its property, or resulting in the winding-up or liquidation of its affairs, all without the consent or acquiescence of Holdings, the Issuer or a Significant Subsidiary, and the continuance of any such decree or order is unstayed and in effect for a period of 60 consecutive days;
(6) the filing of a petition for relief under any Bankruptcy Code by any of Holdings, the Issuer or a Significant Subsidiary, or the consent, acquiescence or taking of any action by any of Holdings, the Issuer or a Significant Subsidiary in support of a petition filed by or against it looking to reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any other present or future Federal or State statute, law or regulation, or the appointment, with the consent of Holdings, the Issuer
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or a Significant Subsidiary, of any receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of Holdings, the Issuer or a Significant Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by Holdings, the Issuer or a Significant Subsidiary in furtherance of any such action;
(7) any Guarantee of the Notes by a Subsidiary Guarantor that is a Significant Subsidiary ceases to be in full force and effect, other than (A) in accordance with the terms of this Indenture, (B) a Subsidiary Guarantor that is a Significant Subsidiary denies or disaffirms its obligations under its Guarantee of the Notes, other than in accordance with the terms thereof or upon release of such Note Guarantee in accordance with this Indenture or (C) in connection with any bankruptcy or insolvency case or proceeding in respect of a Subsidiary Guarantor that is a Significant Subsidiary; or
(8) (i) any Lien purported to be created under any Collateral Document shall cease to be, or shall be asserted by the Issuer or any Guarantor not to be, a valid and perfected Lien on any Collateral having an aggregate fair value of $100 million or more, with the priority required by the relevant Collateral Document, in each case for any reason other than (A) by reason of express release pursuant to the terms of this Indenture or the terms of any Collateral Document or (B) as a result of the sale or other disposition of the applicable Collateral to a Person that is not the Issuer or a Guarantor in a transaction not prohibited under this Indenture, or (ii) the Issuer or any Guarantor shall contest the validity or enforceability of its obligations under any Collateral Document in writing or deny in writing that it has any further liability under any Collateral Document to which it is a party.
(b) Notwithstanding the foregoing, a default under Section 6.1(a)(3) , (4) or (8) will not constitute an Event of Default until the Trustee or the Holders of 25% in principal amount of the outstanding Notes notify the Issuer (with a copy to the Trustee, if given by the Holders) of the default and, with respect to Section 6.1(a)(3) the Issuer does not cure such default within the time specified in Section 6.1(a)(3) after receipt of such notice.
SECTION 6.2. Acceleration .
(a) If an Event of Default (other than an Event of Default described in Section 6.1(a)(5) or (6) with respect to the Issuer) occurs and is continuing, the Trustee by written notice to the Issuer or the Holders of at least 25% in principal amount of the outstanding Notes by written notice to the Issuer and the Trustee, may declare the principal of, premium, if any, and accrued and unpaid interest, on all the Notes to be due and payable. Upon such a declaration, such principal, premium, if any, and accrued and unpaid interest, if any, will be due and payable immediately.
In the event of a declaration of acceleration of the Notes because of an Event of Default described in Section 6.1(a)(4) has occurred and is continuing, the declaration of acceleration of the Notes shall be automatically annulled if the event of default or payment default triggering such Event of Default pursuant to Section 6.1(a)(4) shall be remedied or cured, or waived by the Holders of the Indebtedness, or the Indebtedness that gave rise to such Event of Default shall have been discharged in full, in each case, within 30 days after the declaration of acceleration with respect thereto and if:
(1) the annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction; and
(2) any other existing Events of Default, except nonpayment of principal, premium, if any, or interest, if any, on the Notes that became due solely because of the acceleration of the Notes, have been cured or waived.
(b) If an Event of Default described in Section 6.1(a)(5) or (6) with respect to the Issuer occurs and is continuing, the principal of, premium, if any, and accrued and unpaid interest, if any, on all the Notes will become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.
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(c) Any Default or Event of Default for the failure to comply with the time periods prescribed under Section 3.10 , or otherwise to deliver any notice or certificate pursuant to any other provision of this Indenture shall be deemed to be cured upon the filing, furnishing or delivery of any such report or document required by Section 3.10 or such notice or certificate, as applicable, even though such delivery is not within the prescribed period specified herein.
SECTION 6.3. Other Remedies . If an Event of Default with respect to the Notes occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper contractual remedy under this Indenture.
SECTION 6.4. Waiver of Past or Existing Defaults . The Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of all of the Holders, (a) waive, by their consent (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), a past or existing Default or Event of Default and its consequences under this Indenture except (i) a Default or Event of Default in the payment of the principal of, or premium, if any, or interest, if any, on a Note or (ii) a Default or Event of Default in respect of a provision that under Section 9.2 cannot be amended without the consent of each Holder affected and (b) rescind any acceleration with respect to the Notes and its consequences if (1) such rescission would not conflict with any judgment or decree of a court of competent jurisdiction, (2) all existing Events of Default have been cured or waived except nonpayment of principal, premium, if any, or interest, if any, that has become due solely because of the acceleration, (3) to the extent the payment of such interest, if any, is lawful, interest on overdue installments of interest, premium, if any, and overdue principal, if any, on any Note which has become due otherwise than by such declaration of acceleration, has been paid and (4) the Issuer has paid the Trustee its compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advances. No such rescission shall affect any subsequent Default or amend any right consequent thereto. When a Default or Event of Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or Event of Default or amend any consequent right.
SECTION 6.5. Control by Majority . Subject to certain restrictions set forth herein and the Pari Passu Intercreditor Agreement, the Holders of a majority in principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee pursuant to this Indenture or of exercising any trust or power conferred on the Trustee pursuant to this Indenture. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or the Notes or, subject to Sections 7.1 and 7.2 , that the Trustee determines is unduly prejudicial to the rights of other Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any actions are unduly prejudicial to such Holders) or would involve the Trustee in personal liability; provided , however , that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. Prior to taking any such action hereunder, the Trustee shall be entitled to indemnification satisfactory to the Trustee against all losses, liabilities and expenses that may be caused by taking or not taking such action.
SECTION 6.6. Limitation on Suits . Subject to Section 6.7 , no Holder may pursue any remedy with respect to this Indenture or the Notes unless:
(1) such Holder has previously given the Trustee written notice that an Event of Default is continuing;
(2) Holders of at least 25% in principal amount of the outstanding Notes have requested in writing the Trustee to pursue the remedy;
(3) such Holders have offered in writing the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days after the receipt of the written request and the offer of security or indemnity; and
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(5) the Holders of a majority in principal amount of the outstanding Notes have not given the Trustee a written direction that, in the opinion of the Trustee, is inconsistent with such request within such 60-day period.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).
SECTION 6.7. Rights of Holders to Receive Payment . Notwithstanding any other provision of this Indenture (including, without limitation, Section 6.6 ), the contractual right expressly set forth in this Indenture of any Holder to receive payment of principal of, premium, if any, or interest, if any, on the Notes held by such Holder, on or after the respective due dates expressed or provided for in the Notes, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be amended without the consent of such Holder.
SECTION 6.8. Collection Suit by Trustee . If an Event of Default specified in Section 6.1(a)(1) or (2) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount then due and owing (together with interest on any unpaid interest, if any, to the extent lawful) and the amounts provided for in Section 7.7 .
SECTION 6.9. Trustee May File Proofs of Claim . The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Issuer, its Subsidiaries or its or their respective creditors or properties and, unless prohibited by law or applicable regulations, may be entitled and empowered to participate as a member of any official committee of creditors appointed in such matter and may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 7.7 .
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, compromise, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities .
(a) Subject to the provisions of the Intercreditor Agreements, if the Trustee collects any money or property pursuant to this Article VI it shall pay out the money or property in the following order:
FIRST: to the Trustee and the Collateral Agent for amounts due to each of them under Section 7.7 ;
SECOND: to Holders for amounts due and unpaid on the Notes for principal of, or premium, if any, and interest if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal of, or premium, if any, and interest respectively; and
THIRD: to the Issuer, or to the extent the Trustee collects any amount for any Guarantor, to such Guarantor.
(b) The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10 . At least fifteen (15) days before such record date, the Issuer shall send or cause to be sent to each Holder and the Trustee a notice that states the record date, the payment date and amount to be paid.
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SECTION 6.11. Undertaking for Costs . In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by the Issuer, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in outstanding principal amount of the Notes.
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee .
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise as a prudent Person would exercise or use under the circumstances in the conduct of such persons own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture, the Notes, the Collateral Documents and the Intercreditor Agreements and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein). However, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this Section 7.1 ;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.5 .
(d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1 .
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability. The Trustee shall be under no obligation to exercise any of its rights and powers under this Indenture at the request or direction of any Holders of Notes, unless such Holders have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction. The Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder. The permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee.
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(f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer.
(g) Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
SECTION 7.2. Rights of Trustee . Subject to Section 7.1 :
(a) The Trustee may conclusively rely upon any document (whether in original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Notwithstanding anything to the contrary contained herein (including, without limitation, Sections 12.2(b) and (c)) , before the Trustee acts or refrains from acting, it may require an Officers Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on any Officers Certificate, Opinion of Counsel, resolution of the Board of Directors of the Issuer, or other request, notice or direction delivered to it pursuant to the terms of this Indenture. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer will be sufficient if signed by an Officer of the Issuer.
(f) The Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee an indemnity or security reasonably satisfactory to it against the losses, liabilities and expenses that might be incurred by it in compliance with such request or direction.
(g) Subject to Section 7.1 , the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and each Paying Agent, Registrar or Custodian.
(h) Subject to Section 7.1 , the Trustee shall not be deemed to have knowledge or notice of any Default or Event of Default unless a Trust Officer of the Trustee has actual knowledge thereof or unless the Issuer or Holders of not less than 25% in aggregate principal amount of the Notes then outstanding notify the Trustee thereof by written notice of such event sent to the Trustee or the Corporate Trust Office in accordance with Section 13.1 , and such notice references the Notes and this Indenture.
(i) Subject to Section 7.1(a) , the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of Indebtedness or other paper or document, but the Trustee, may, but shall not be required to, make further inquiry or investigation into such facts or matters as it may see fit.
(j) In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
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(k) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(l) The Trustee may request that the Issuer deliver an Officers Certificate setting forth the names of individuals and/or titles of officers authorized at such time to furnish the Trustee with Officers Certificates, directions, requests, and any other matters or directions pursuant to this Indenture.
(m) In no event shall the Trustee be responsible or liable for any special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit), irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
SECTION 7.3. Individual Rights of Trustee . The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the JCP Parties or any respective Affiliate of the JCP Parties with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar or Custodian may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 .
SECTION 7.4. Trustees Disclaimer . The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Issuers use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuers direction under any provision of this Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.
SECTION 7.5. Notice of Defaults . If a Default or Event of Default occurs and is continuing and if it is known to a Trust Officer of the Trustee, the Trustee shall send to Holders a notice of the Default or Event of Default within 90 days after the occurrence of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal of (or premium, if any, on) or interest, if any, on the Notes, the Trustee may withhold such notice if a committee of its Trust Officers in good faith determines that the withholding of such notice is in the interests of the Holders.
SECTION 7.6. [Reserved]
SECTION 7.7. Compensation and Indemnity .
(a) The Issuer shall pay to the Trustee and Collateral Agent from time to time reasonable compensation for its acceptance of this Indenture and services hereunder. The Trustees compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee and Collateral Agent promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. All amounts set forth in the separate fee letter entered into prior to the date hereof are deemed reasonable. Such expenses will include the reasonable compensation, disbursements and expenses of the Trustees and the Collateral Agents agents and counsel.
(b) The Issuer shall indemnify the Trustee and Collateral Agent against any and all losses, damages, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, the Collateral Documents and the Intercreditor Agreements, including the costs and expenses of enforcing this Indenture against the Issuer (including this Section 7.7 ) and defending itself against any claim (whether asserted by any JCP Party, any Holder or any other Person) or liability in connection with the exercise or performance of any of its rights, powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its negligence or bad faith. The Trustee and Collateral Agent shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Trustee and Collateral Agent to so notify the Issuer will not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee and Collateral
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Agent shall cooperate in the defense. Each of the Trustee and Collateral Agent may have separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel. The Issuer need not pay for any settlement made without their consent, which consent will not be unreasonably withheld.
(c) When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(a)(5) or (6) occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Code.
(d) The Issuers obligations set forth in this Section 7.7 shall survive the satisfaction and discharge of this Indenture and the earlier resignation or removal of the Trustee hereunder.
SECTION 7.8. Replacement of Trustee .
(a) A resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustees acceptance of appointment as provided in this Section 7.8 .
(b) The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuer. The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing. The Issuer may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 ;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Code;
(3) a custodian or public officer takes charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
(d) If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuer, or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10 , such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee will mail a notice of its succession to Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.7 . Notwithstanding replacement of the Trustee pursuant to this Section 7.8 , the Issuers obligations under Section 7.7 will continue for the benefit of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger . Any Person into which the Trustee or any successor to it in the trusts created by this Indenture shall be merged or converted, or any Person with which it or any successor to it shall be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee or any such successor to it shall be a party, or any Person to which the Trustee or any successor to it shall sell or otherwise transfer all or substantially all of the corporate trust business of the Trustee, shall be the successor Trustee
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under this Indenture without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that such Person shall be otherwise qualified and eligible under this Article. In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture, any Notes shall have been authenticated but not delivered by the Trustee then in office, any successor to such Trustee may adopt the certificate of authentication of any predecessor Trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have; provided , however , that the right to adopt the certificate of authentication of any predecessor Trustee or authenticate Notes in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
SECTION 7.10. Eligibility; Disqualification . There will at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $100.0 million as set forth in its most recent published annual report of condition.
SECTION 7.11. Collateral Documents; Intercreditor Agreements .
(a) By their acceptance of the Notes, the Holders hereby authorize and direct the Trustee to execute and deliver the Intercreditor Agreements and any Collateral Document in which the Trustee is named as a party, including any Intercreditor Agreement or Collateral Document executed after the Issue Date, and to appoint the Collateral Agent to act on behalf of the Notes Secured Parties under the Pari Passu Intercreditor Agreement, the Collateral Documents and the other Intercreditor Agreements. It is hereby expressly acknowledged and agreed that, in doing so, the Trustee is (a) expressly authorized to make the representations attributed to Holders in any such agreements and (b) not responsible for the terms or contents of such agreements, or for the validity or enforceability thereof, or the sufficiency thereof for any purpose. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under, the Intercreditor Agreements or any Collateral Document, the Trustee shall have all of the rights, immunities, indemnities and other protections granted to it under this Indenture (in addition to those that may be granted to it under the terms of such other agreement or agreements).
(b) Whenever the Trustee is required or requested to deliver any direction to the Collateral Agent under the terms of this Indenture, the Pari Passu Intercreditor Agreement, any Collateral Document or any other Intercreditor Agreement in its capacity as Authorized Representative or otherwise, the Trustee shall do so in accordance with the provisions of this Indenture and shall be vested with the rights, privileges and immunities set forth in this Indenture.
ARTICLE VIII
DEFEASANCE AND DISCHARGE PRIOR TO MATURITY
SECTION 8.1. Option to Effect Defeasance . The Issuer may, at its option and at any time, elect to have either Section 8.2 or 8.3 be applied to all outstanding Notes upon compliance with the conditions set forth in this Article VIII .
SECTION 8.2. Defeasance and Discharge . The Issuer may elect, at any time, to fully discharge all or any specified portion of the Issuers and the Guarantors obligations, and the Issuer will be deemed to have paid and discharged the entire indebtedness represented by the Notes or, at the Issuers option, any specified payment obligation and to have satisfied all other obligations under the Notes, the Note Guarantees, the Indenture and the Collateral Documents insofar as the Notes are concerned (and all Note Guarantees, and Liens on the Collateral securing the Notes and the Note Guarantees, shall be released and terminated) (and the Trustee, at the expense of the Issuer, shall execute instruments as reasonably requested by the Issuer acknowledging the same) ( Defeasance ), subject to the following which will survive until otherwise terminated or discharged under this Indenture:
(1) the rights of Holders of outstanding Notes to receive, solely from the trust fund referred to in Section 8.3 , payments in respect of all or any defeased portion of the principal of and any premium and/or interest on the Notes when payments are due;
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(2) the Issuers obligations under Sections 2.3 , 2.4 , 2.5 , 2.6 , 2.7 , 2.8 , 2.9 and 3.2 ;
(3) the rights, powers, trusts, duties and immunities of the Trustee hereunder; and
(4) this Article VIII .
Subject to compliance with this Section 8.2 , the Issuer may exercise its option under this Section 8.2 notwithstanding the prior exercise of their option under Section 8.3 .
SECTION 8.3. Conditions to Defeasance . In order to exercise Defeasance under this Section 8.3 :
(1) the Issuer shall have irrevocably deposited or caused or directed to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, in each case sufficient to pay and discharge, and which shall be applied by the Trustee to pay and discharge, all or any specific portion of the principal of and any premium and interest on the Notes on the respective interest payment date and/or stated maturities, in accordance with the terms of this Indenture and the Notes;
(2) the Issuer shall have advised the Trustee in writing of the payment or payments of the Notes to which such deposit is to be applied; and
(3) such Defeasance shall not result in the trust arising from any such deposit constituting an investment company within the meaning of the Investment Company Act of 1940 unless such trust shall be registered under the Investment Company Act of 1940 or exempt from registration thereunder.
Upon compliance with the foregoing, the Trustee shall execute instrument(s) as reasonably requested by the Issuer acknowledging the Defeasance of all of the Issuers and the Guarantors obligations under the Notes. Such Defeasance shall be effective on and after the date that the conditions set forth in clauses (1) through (3) above are satisfied.
SECTION 8.4. Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions .
The Trustee shall, subject to the provisions of the Indenture, hold in trust any money and U.S. Government Obligations deposited with the Trustee pursuant to Section 8.3 , and any money received by the Trustee as payment of principal or interest in respect of such U.S. Government Obligations, and shall apply all money, in accordance with the provisions of the Notes and the Indenture, to the payment, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such deposit (including any money to be received by the Trustee as principal or interest in respect of such U.S. Government Obligations) was made with the Trustee; provided, however, that, if the Trustee shall at any time hold in trust pursuant to this Section 8.4 , as a result of a deposit made pursuant to this Article VIII , any money in excess of the amount required to make the payments to which such deposit (including any money to be received by the Trustee as principal or interest in respect of any U.S. Government Obligations included within such deposit) was to be applied, the Trustee shall, upon the Issuers request, pay to the Issuer such excess money.
The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or U.S. Government Obligations deposited pursuant to Section 8.3 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of outstanding Notes.
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SECTION 8.5. Repayment to the Issuer . Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of (and premium, if any) or interest on any Note and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Issuer, or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note will thereafter, as an unsecured general creditor, be permitted to look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.
SECTION 8.6. Reinstatement . If the Trustee or Paying Agent is unable to apply any money in accordance with this Article VIII with respect to any Notes by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuers and the Guarantors obligations under the Indenture and the Notes from which the Issuer and the Guarantors have been discharged or released pursuant to Section 8.2 shall be revived and reinstated as though no deposit had occurred pursuant to this Article VIII with respect to such Notes, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 8.4 with respect to such Notes in accordance with this Article 8; provided, however, that if the Issuer or any Guarantor makes any payment of principal of, or any premium or interest on, any such Note following the reinstatement of their obligations, the Issuer or such Guarantor shall be subrogated to the rights (if any) of the Holders of such Notes to receive such payment from the money so held in trust by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS
SECTION 9.1. Without Consent of Holders . Notwithstanding Section 9.2 of this Indenture, the Issuer and the Trustee (together with any other party whose consent is required pursuant to the Intercreditor Agreements or the Collateral Documents) may amend, supplement or otherwise modify the Notes Documents without the consent of any Holder (and, upon request from the Issuer, the Trustee shall request that the Collateral Agent enter into any such amendment, supplement or other modification to the applicable Intercreditor Agreement or Collateral Documents) to:
(1) cure any ambiguity, omission, mistake, defect, error or inconsistency;
(2) provide for the assumption by a successor Person of the obligations of the Issuer or any Guarantor under any Notes Document;
(3) provide for uncertificated Notes in addition to or in place of certificated Notes;
(4) add to the covenants or provide for a Note Guarantee for the benefit of the Holders or surrender any right or power conferred upon Holdings, the Issuer or any Subsidiary;
(5) make any change that does not adversely affect in any material respect the rights of any Holder;
(6) at the Issuers election, comply with any requirement of the SEC in connection with the qualification of this Indenture under the TIA if such qualification is required;
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(7) make such provisions as necessary (as determined in good faith by the Issuer) for the issuance of Additional Notes;
(8) provide for any Subsidiary of Holdings or any other Person to provide a Note Guarantee, to add Note Guarantees with respect to the Notes, to add security to or for the benefit of the Notes, or to confirm and evidence the release, termination, discharge or retaking of any Guarantee or Lien with respect to or securing the Notes when such release, termination, discharge or retaking is provided for under this Indenture, the Collateral Documents or the Intercreditor Agreements, as applicable;
(9) evidence and provide for the acceptance and appointment under this Indenture of a successor Trustee or Collateral Agent pursuant to the requirements hereof or to provide for the accession by the Trustee or Collateral Agent to any Notes Document or evidence and provide for the acceptance and appointment under any Intercreditor Agreement or Collateral Document of a successor party thereto pursuant to the requirements thereof;
(10) make any amendment to the provisions of this Indenture relating to the transfer and legending of Notes as permitted by this Indenture, including to facilitate the issuance and administration of Notes; provided , however , that (i) compliance with this Indenture as so amended would not result in Notes being transferred in violation of the Securities Act or any other applicable securities law and (ii) such amendment does not adversely affect the rights of Holders to transfer Notes in any material respect;
(11) mortgage, pledge, hypothecate or grant any other Lien in favor of the Collateral Agent for its benefit and the benefit of the Trustee, the Holders of the Notes and the holders of any other Term Loan/Notes Secured Obligations, as additional security for the payment and performance of all or any portion of the Term Loan/Notes Secured Obligations, in any property or assets, including any which are required to be mortgaged, pledged or hypothecated, or in which a Lien is required to be granted to or for the benefit of the Trustee or the Collateral Agent pursuant to this Indenture, any of the Intercreditor Agreements, the Collateral Documents or otherwise;
(12) provide for the release of Collateral from the Lien, or the subordination of such Lien, pursuant to this Indenture, the Collateral Documents and the Intercreditor Agreements when permitted or required by the Collateral Documents, this Indenture or the Intercreditor Agreements;
(13) (i) secure any Future Term Loan/Notes Indebtedness, Junior Priority Obligation or Term Loan/Notes Secured Obligations to the extent permitted under this Indenture, the Collateral Documents and the Intercreditor Agreements, (ii) include any ABL Secured Obligations, Junior Priority Obligations or Term Loan/Notes Secured Obligations in any Intercreditor Agreement, (iii) enter into the Junior Priority Intercreditor Agreement, (iv) join any party to any Intercreditor Agreement to the extent permitted or required by the terms thereof or by the terms of this Indenture or any other Term Loan/Notes Document or (v) supplement any schedules to any Collateral Document to the extent permitted or required by the terms thereof or by the terms of this Indenture or any other Term Loan/Notes Document;
(14) comply with the rules of any applicable securities depositary; or
(15) conform the text of this Indenture, any Notes Guarantee, the Notes or any other Notes Document to any provision of the Description of Notes section of the Offering Memorandum.
SECTION 9.2. With Consent of Holders .
(a) Except as provided in Section 9.1 and in Section 9.2(b) , the Issuer and the Trustee may amend, supplement or otherwise modify the Notes Documents (and, in the case of any Collateral Document or Intercreditor Agreement, upon a written request from the Issuer, the Trustee shall request that the Collateral Agent enter into any such amendment, supplement or other modification), with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding and issued under this Indenture (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, such Notes) (in addition to any other consents required
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under the terms of the Intercreditor Agreements or the Collateral Documents from the parties thereto), and any Default or Event of Default thereunder or compliance with any provision of the Notes Documents may be waived with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, such Notes).
(b) Without the consent of each Holder of Notes affected, an amendment, supplement or waiver may not, with respect to any Notes held by a non-consenting Holder:
(1) reduce the principal amount of such Notes whose Holders must consent to an amendment;
(2) reduce the stated rate of or extend the stated time for payment of interest on any such Note;
(3) amend, change or modify in any material respect the obligation of the Issuer to make and consummate a Change of Control Offer after the occurrence of a Change of Control;
(4) reduce the principal of or extend the Stated Maturity of any such Note;
(5) reduce the premium payable upon the redemption of any such Note or change the time at which any such Note may be redeemed to an earlier time, in each case as set forth in Section 5.7 ;
(6) make any such Note payable in currency other than that stated in such Note;
(7) make any change in the contractual right expressly set forth in the Indenture of any Holder to receive payment of principal of and interest on such Holders Notes on or after the due dates therefor or to institute suit for the enforcement of any such payment on or with respect to such Holders Notes;
(8) waive a Default or Event of Default with respect to the nonpayment of principal, premium, if any, or interest (except pursuant to a rescission of acceleration of the Notes by the Holders of a majority in aggregate principal amount of such Notes and a waiver of the payment default that resulted from such acceleration); or
(9) make any change in the amendment or waiver provisions which require the Holders consent described in clauses (1) (8) above.
In addition, without the consent of the Holders of at least two-thirds in aggregate principal amount of the Notes then outstanding, no amendment or waiver may release all or substantially all of the Collateral from the Lien of this Indenture and the Collateral Documents with respect to the Notes (other than in accordance with the terms of the Collateral Documents and Intercreditor Agreements as in effect on the Issue Date or as otherwise provided in Section 12.2 ).
It shall not be necessary for the consent of the Holders under this Indenture to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof. A consent to any amendment, supplement or waiver under this Indenture by any Holder of the Notes given in connection with a tender or exchange of such Holders Notes will not be rendered invalid by such tender or exchange.
SECTION 9.3. [Reserved] .
SECTION 9.4. Revocation and Effect of Consents and Waivers . Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holders Note, even if notation of the consent or waiver is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent or waiver as to such Holders Note or portion of its Note if the Trustee receives written notice of revocation before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
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The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described in this Section 9.4 or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record date.
SECTION 9.5. Notation on or Exchange of Notes . The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the Trustee shall, upon receipt of an Issuer Order, authenticate new Notes that reflect the amendment, supplement or waiver. Failure to make the appropriate notation or issue a new Note will not affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.6. Trustee to Sign Amendments . Upon the request of the Issuer, and upon the filing with the Trustee of evidence of the consent of the required Holders of Notes as aforesaid in Section 9.2, if such consent of the Holders of Notes is required, and upon receipt by the Trustee of the documents described in this Section 9.6 and Section 13.3 , the Trustee shall join (or, if applicable and requested in writing by the Issuer in the case of any amendment, supplement or other modification to any Intercreditor Agreement or Collateral Document, request that the Collateral Agent join) with the Issuer and the Guarantors, if applicable, in the execution of any amended or supplemental indenture or amendment, supplement or other modification to any Notes Document unless such amended or supplemental indenture or amendment or supplement to any Notes Document adversely affects the Trustees own rights, duties or immunities under any Notes Document or otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter into such amended or supplemental indenture or amendment, supplement or other modification to any Notes Document. After an amendment or supplement under Section 9.1 or 9.2 , as applicable, becomes effective, the Issuer shall mail to Holders a notice briefly describing such amendment or supplement. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment or supplement under Section 9.1 or 9.2 , as applicable. In executing any amended or supplemental indenture, the Trustee shall receive and (subject to Sections 7.1 and 7.2 ) shall be fully protected in conclusively relying upon, in addition to the documents required by Section 13.3 , an Officers Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture and is valid, binding and enforceable against the Issuer or any Guarantor, as the case may be, in accordance with its terms. In requesting that the Collateral Agent join in executing any amendment or supplement to any Notes Document, the Trustee shall receive and (subject to Sections 7.1 and 7.2 ) shall be fully protected in conclusively relying upon, such certificates as are required by Section 2.04 of the Pari Passu Intercreditor Agreement.
ARTICLE X
GUARANTEE
SECTION 10.1. Guarantee . Subject to the provisions of this Article X , each Guarantor hereby fully, unconditionally and irrevocably guarantees (the Note Guarantees ), as primary obligor and not merely as surety, jointly and severally with each other Guarantor, to each Holder of the Notes, the Trustee and the Collateral Agent the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the Notes, fees, expenses, indemnities and all other Obligations and liabilities of the Issuer under this Indenture (including without limitation interest accruing after the filing of any petition or application in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding and the obligations under Section 7.7 ) (all the foregoing being hereinafter collectively called the Guaranteed Obligations ).
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To evidence its Note Guarantee set forth in this Section 10.1 , each Guarantor hereby agrees that this Indenture shall be executed on behalf of such Guarantor by an Officer of such Guarantor.
Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.1 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.
If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantee shall be valid nevertheless.
Each Guarantor further agrees (to the extent permitted by law) that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it will remain bound under this Article X notwithstanding any extension or renewal of any Guaranteed Obligation.
Each Guarantor waives presentation to, demand of payment from and protest to the Issuer of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations.
Each Guarantor further agrees that its Note Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
Except as set forth in Section 10.2 , the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the Guaranteed Obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) subject to Section 9.2 , any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) subject to Section 10.2(b) , the release of any security held by any Holder for the Guaranteed Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Issuer; (g) any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.
Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guaranteed Obligations or such Guarantor is released from its Note Guarantee in compliance with Section 10.2 , Article VIII or Article XI . Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest, if any, on any of the Guaranteed Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy, insolvency or reorganization of the Issuer or otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Guaranteed Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee on behalf of itself, the Holders and the Collateral Agent an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest, if any, on such Guaranteed Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition or application in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Issuer or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
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Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Guaranteed Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guaranteed Obligations, such Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of the Note Guarantee.
Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys fees and expenses) incurred by the Trustee, the Collateral Agent or the Holders in enforcing any rights under this Section 10.1 .
SECTION 10.2. Limitation on Liability; Termination, Release and Discharge .
(a) Any term or provision of this Indenture to the contrary notwithstanding, the obligations of each Guarantor under its Note Guarantee will be limited to the maximum amount that would, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Note Guarantee or pursuant to its contribution obligations under this Indenture, not render the obligations of such Guarantor under its Note Guarantee subject to avoidance under applicable law as a fraudulent conveyance, fraudulent transfer or unjust preference, including provisions of the Bankruptcy Code.
(b) Any Note Guarantee of a Subsidiary Guarantor shall be automatically and unconditionally released and discharged:
(1) upon the consummation of any transaction not prohibited by this Indenture (including by way of sale, disposition or other transfer of Equity Interests of a Guarantor or merger, consolidation, liquidation or dissolution) that results in such Subsidiary Guarantor ceasing to be a Subsidiary of Holdings;
(2) except for a Subsidiary that continues to own any Issue Date Material Real Estate Asset or that continues to Guarantee any other then outstanding Series of Term Loan/Notes Secured Obligations, in connection with any sale, disposition or other transfer of all or substantially all of the assets of such Subsidiary Guarantor (including by way of merger or consolidation), if the sale, disposition or other transfer is made in compliance with this Indenture;
(3) except in the case of a Subsidiary Guarantor that continues to own any Issue Date Material Real Estate Asset, upon the release of the Guarantee by such Subsidiary of each other then outstanding Series of Term Loan/Notes Secured Obligations of that Subsidiary Guarantor (other than in connection with a repayment in full of such other Series of Term Loan/Notes Secured Obligations);
(4) upon payment in full of the principal of, and accrued and unpaid interest and premium, if any, on, the Notes;
(5) except for a Subsidiary that continues to own any Issue Date Material Real Estate Asset or that continues to Guarantee any other Series of Term Loan/Notes Secured Obligations, if such Subsidiary Guarantor becomes an Excluded Subsidiary.
In addition to the foregoing, the Note Guarantees of all Guarantors will be released upon a Defeasance of this Indenture in accordance with Article VIII or Satisfaction and Discharge of this Indenture in accordance with Article XI .
SECTION 10.3. Right of Contribution . Each Guarantor hereby agrees that to the extent that any Guarantor shall have paid more than its proportionate share of any payment made on the obligations under its Note Guarantee, such Guarantor shall be entitled to seek and receive contribution from and against the Issuer or any other Guarantor who has not paid its proportionate share of such payment. The provisions of this Section 10.3 shall in no respect limit the obligations and liabilities of each Guarantor to the Trustee and the Holders and each Guarantor shall remain liable to the Trustee and the Holders for the full amount guaranteed by such Guarantor hereunder.
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SECTION 10.4. No Subrogation . Notwithstanding any payment or payments made by each Guarantor hereunder, no Guarantor shall be entitled to be subrogated to any of the rights of the Trustee or any Holder against the Issuer or any other Guarantor or any collateral security or guarantee or right of offset held by the Trustee or any Holder for the payment of the Guaranteed Obligations, nor shall any Guarantor seek or be entitled to seek any contribution or reimbursement from the Issuer or any other Guarantor in respect of payments made by such Guarantor hereunder, until all amounts owing to the Trustee and the Holders by the Issuer on account of the Guaranteed Obligations are paid in full. If any amount shall be paid to any Guarantor on account of such subrogation rights at any time when all of the Guaranteed Obligations shall not have been paid in full, such amount shall be held by such Guarantor in trust for the Trustee and the Holders, segregated from other funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over to the Trustee in the exact form received by such Guarantor (duly indorsed by such Guarantor to the Trustee, if required), to be applied against the Guaranteed Obligations.
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.1. Satisfaction and Discharge . The Indenture (including the Notes and the Note Guarantees) will cease to be of further effect as to the Notes (this being referred to herein as Satisfaction and Discharge ) (except as to any surviving rights of registration of transfer of Notes expressly provided for in this Indenture and any rights to receive payments of interest on the Notes and rights of the Trustee to compensation, reimbursement and indemnification and the Issuers obligations with respect thereto expressly provided for herein) and all Note Guarantees, and all Liens on the Collateral securing the Notes and the Note Guarantees, will be released and terminated, and the Trustee, on demand of and at the Issuers expense, will execute instruments as reasonably requested by the Issuer acknowledging Satisfaction and Discharge, when:
(a) either:
(1) all Notes that have been authenticated and delivered (other than (A) Notes which have been destroyed, lost or stolen and which have been replaced or paid and (B) Notes for whose payment money has been either deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust or paid to any State or the District of Columbia pursuant to its unclaimed property or similar laws) have been delivered to the Trustee for cancellation; or
(2) all Notes that have not been so delivered to the Trustee for cancellation (A) have become due and payable, (B) will become due and payable at their Stated Maturity within one year or (C) are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of the notice of redemption by the Trustee in the name, and at the expense, of the Issuer, and the Issuer has deposited or caused or directed to be deposited with the Trustee, as trust funds in trust for this purpose, (i) money in an amount, or (ii) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (iii) a combination thereof, in each case sufficient to pay and discharge, and which shall be applied by the Trustee to pay and discharge, the entire indebtedness on the Notes not delivered to the Trustee for cancellation, for principal, premium, if any, and accrued and unpaid interest, if any, to, but not including, the date of such deposit (in the case of Notes that have become due and payable) or maturity or redemption, as the case may be;
(b) the Issuer has paid or caused to be paid all other sums payable by the Issuer under this Indenture; and;
(c) the Issuer has delivered to the Trustee an Officers Certificate and an Opinion of Counsel each stating that all conditions precedent in this Indenture relating to the Satisfaction and Discharge have been complied with.
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Upon compliance with the foregoing, the Trustee shall execute such instrument(s) as reasonably requested by the Issuer acknowledging the Satisfaction and Discharge of all of the Issuers and the Guarantors obligations under the Notes, subject to such provisions that shall survive pursuant to the terms of this Indenture.
Notwithstanding the Satisfaction and Discharge, the obligations of the Issuer and the Guarantors to the Trustee and, if money has been deposited with the Trustee pursuant to Section 11.1(a)(2) , the obligations of the Trustee under Section 8.5 , this Section 11.1 and Section 11.2 shall survive.
SECTION 11.2. Application of Trust Money . Subject to the provisions of Section 8.5 , all money deposited with the Trustee pursuant to Section 11.1 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any, and interest for the payment of which such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 11.1 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuers and the Guarantors obligations under this Indenture, the Notes and the Note Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.1 until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with Section 11.1 ; provided that if the Issuer has made any payment of principal of, premium, if any, or interest on, any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE XII
COLLATERAL
SECTION 12.1. Collateral Documents . The Trustee and the Issuer hereby acknowledge and agree that the Collateral Agent holds the Collateral in trust for the benefit of the Term Loan/Notes Secured Parties and pursuant to the terms of the Collateral Documents and the Intercreditor Agreements. Each Holder, by accepting a Note, (i) consents and agrees to the terms of the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) and the Intercreditor Agreements as the same may be in effect or may be amended from time to time in accordance with their terms and this Indenture and the Intercreditor Agreements, (ii) consents to the priority of Liens and payments provided for in the Intercreditor Agreements, (iii) agrees that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreements, (iv) authorizes and directs the Trustee (in the case of the applicable Intercreditor Agreements) and the Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreements on behalf of such Holder and to bind such Holder thereby and to perform its respective obligations and exercise its rights thereunder in accordance therewith, and (v) authorizes the release or subordination of any Lien granted under any Collateral Document pursuant to Section 12.2 below and the terms of the Collateral Documents and the Intercreditor Agreements, and directs the Trustee (and directs the Trustee to direct the Collateral Agent) to execute and deliver or authorize the filing of any documents or instruments necessary or requested to effectuate or evidence such release or subordination. The Issuer and the Guarantors shall take any and all actions and make all filings (including the filing of UCC financing statements, continuation statements and amendments thereto) required under the Collateral Documents to create and maintain, as security for the Notes Obligations and the other Term Loan/Notes Secured Obligations, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor Agreements and the Collateral Documents), in favor of the Collateral Agent for the benefit of the Notes Secured Parties and the other Term Loan/Notes Secured Parties. In the event of any conflict between the terms of the Intercreditor Agreements and this Indenture or any of the other Notes Documents, the provisions of the Intercreditor Agreements shall govern and control.
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SECTION 12.2. Release or Subordination of Liens on the Collateral .
(a) Subject to Section 12.2(c) , the Liens securing the Notes Obligations will be automatically released, and, if requested by the Issuer (at any time that the Trustee is the Applicable Authorized Representative or otherwise), the Trustee (subject to its receipt of an Officers Certificate as provided below) shall instruct the Collateral Agent to execute and deliver or otherwise authorize the filing of such documents or instruments as the Issuer shall reasonably request to effectuate or evidence such release (and in the case of clause (v) below, such subdivision), the same at the Issuers sole cost and expense, under one or more of the following circumstances:
(i) in whole upon the Defeasance of this Indenture as set forth under Article VIII or upon Satisfaction and Discharge of this Indenture as set forth under Article XI;
(ii) in whole or in part, as provided in the Intercreditor Agreements;
(iii) in whole or in part, with the consent of the requisite Holders of the Notes in accordance with the provisions under Section 9.2 ;
(iv) as to any asset constituting Collateral that is sold or otherwise disposed of or transferred by the Issuer or any of the Guarantors to any Person that is not the Issuer or a Guarantor in a transaction not prohibited by this Indenture (to the extent of the interest sold or disposed of or transferred);
(v) in part as to any TBA/Vacant Parcel that the Issuer intends to subdivide from any Real Estate Asset;
(vi) as to any asset constituting Collateral, upon the release of all Liens on such Collateral securing all other then outstanding Series of Term Loan/Notes Secured Obligations (other than in connection with a repayment in full of another Series of Term Loan/Notes Secured Obligations), which release shall occur upon receipt by the Collateral Agent of a written notice from the Applicable Authorized Representative requesting such release; and
(vii) as to any asset constituting Collateral that becomes an Excluded Asset pursuant to a transaction not prohibited by the Indenture.
(b) Subject to Section 12.2(c) , the Liens securing the Notes Obligations may be subordinated, and, if requested by the Issuer (at any time that the Trustee is the Applicable Authorized Representative or otherwise), the Trustee (subject to its receipt of an Officers Certificate as provided below) shall instruct the Collateral Agent to execute and deliver or otherwise authorize the filing of such documents or instruments as the Issuer shall reasonably request to effectuate or evidence such subordination, the same at the Issuers sole cost and expense, on any property subject or to be subject to a Lien securing Indebtedness incurred to finance the acquisition, construction or improvement of any fixed or capital assets (other than Issue Date Material Real Estate Assets), including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, in each case to the extent that such Liens are Permitted Liens.
(c) Except with respect to a release of Collateral pursuant to subclause (ii) or (vi) of clause (a) above, which shall occur upon receipt by the Collateral Agent of a written notice from the Applicable Authorized Representative requesting such release, the Collateral Agent shall release or subordinate its Lien on Collateral pursuant to the other subclauses of clause (a) or pursuant to clause (b) above upon receipt of an Officers Certificate of the Issuer certifying that such release of or subordination of its Lien on Collateral is in accordance with the terms of this Indenture, and the Trustee (subject to its receipt of an Officers Certificate), if requested by the Issuer (at any time that the Trustee is the Applicable Authorized Representative or otherwise), shall instruct the Collateral Agent to release or subordinate its Lien on Collateral as set forth above.
(d) The documents and instruments requested to effectuate or evidence any release, subordination or subdivision referred to in clauses (a), (b) and (c) above may take the form of amendments and restatements of, or
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other amendments or modifications to, one or more of the Collateral Documents solely to give effect to the foregoing, which amendments, restatements or other modifications shall not require the consent of any Holder pursuant to clause (12) of Section 9.1 .
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. Notices . Any notice or communication to the JCP Parties or the Trustee shall be sufficiently given if written and (a) delivered in person or (b) mailed by first class mail (certified or registered, return receipt requested) or (c) sent by facsimile transmission or (d) sent by overnight air courier guaranteeing next-day delivery, or (e) sent by electronic transmission, in each case addressed as follows:
if to the JCP Parties:
J. C. Penney Corporation, Inc.
6501 Legacy Drive
Plano, Texas 75024
Attention: Treasurer
Facsimile No.: (972) 431-2044
Email: mporter@jcp.com
in each case, with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue
Suite 3400
Los Angeles, California 90024
Attention: Gregg Noel
Facsimile No.: (213) 621-5234
Email: gregg.noel@skadden.com
if to the Trustee, at its Corporate Trust Office, which Corporate Trust Office for purposes of this Indenture is at the date hereof located at:
Wilmington Trust, National Association
50 South Sixth Street
Suite 1290
Minneapolis, Minnesota 55402
Attention: J. C. Penney Notes Administrator
Facsimile No.: (612) 217-5651
Email: hfield@wilmingtontrust.com
The JCP Parties or the Trustee, by notice to the others, may designate additional or different addresses and/or facsimile numbers for subsequent notices or communications.
All notices and communications (other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; three Business Days after being deposited in the mail, postage prepaid, if mailed by first class mail (certified or registered, return receipt requested); upon acknowledgment of receipt, if transmitted by facsimile; the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next-day delivery; and at the time delivered if sent by electronic transmission.
Any notice or communication to a Holder shall be mailed by first class mail, certified or registered, return receipt requested, or sent by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar or, with respect to Global Notes, to the extent permitted or required by the applicable procedures of DTC, sent electronically. Failure to deliver, mail, transmit or send a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.
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If a notice or communication is delivered, mailed, transmitted or sent in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
If the JCP Parties mail or send a notice or communication to Holders, they will mail or send a copy to the Trustee and each Agent at the same time.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance on such waiver.
In case it shall be impracticable to give notice in the manner provided above, including by reason of a suspension of regular mail service, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 13.2. [Reserved] .
SECTION 13.3. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer or any of the Guarantors to the Trustee to take or refrain from taking any action under this Indenture or the Notes (except any request pursuant to Section 12.2(c) , which requirements are set forth therein), the Issuer or such Guarantor, as the case may be, shall furnish to the Trustee:
(1) an Officers Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 13.4 ) stating that, in the opinion of the signatory thereto, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied or complied with, as applicable; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 13.4 ) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied or complied with, as applicable.
SECTION 13.4. Statements Required in Certificate or Opinion . Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that each person signing such certificate or opinion has read such covenant or condition and the definitions relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied or complied with, as applicable; and
(4) a statement as to whether or not, in the opinion of each such person, such covenant or condition has been satisfied or complied with, as applicable.
In giving such Opinion of Counsel, counsel may rely as to factual matters on an Officers Certificate or on certificates of public officials.
SECTION 13.5. When Notes Disregarded . In determining whether the Holders of the required aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer, any Guarantor or any Affiliate of them shall be disregarded and deemed not to be outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which a Trust Officer of the Trustee actually knows are so owned shall be so disregarded. Also, subject to the foregoing, only Notes outstanding at the time shall be considered in any such determination.
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SECTION 13.6. Rules by Trustee, Paying Agent and Registrar . The Trustee may make reasonable rules for action by, or at meetings of, Holders. The Registrar and the Paying Agent may make reasonable rules and set reasonable requirements for their functions.
SECTION 13.7. Legal Holidays . A Legal Holiday is a Saturday, a Sunday or other day on which commercial banking institutions are authorized or required to be closed in New York, New York or the state of the place of payment. If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
SECTION 13.8. Governing Law . THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 13.9. Jurisdiction . The Issuer and the Guarantors agree that any suit, action or proceeding against the Issuer or any Guarantor brought by any Holder or the Trustee arising out of or based upon this Indenture, the Note Guarantee or the Notes may be instituted in any state or Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and each of them irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The Issuer and the Guarantors irrevocably waive, to the fullest extent permitted by law, any objection to any suit, action, or proceeding that may be brought in connection with this Indenture, the Note Guarantee or the Notes, including such actions, suits or proceedings relating to securities laws of the United States of America or any state thereof, in such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. The Issuer and the Guarantors agree that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Issuer or the Guarantors, as the case may be, and may be enforced in any court to the jurisdiction of which the Issuer or the Guarantors, as the case may be, are subject by a suit upon such judgment.
SECTION 13.10. Waivers of Jury Trial . EACH OF THE ISSUER, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE NOTE GUARANTEES AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 13.11. USA PATRIOT Act . The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the USA PATRIOT Act ), the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as each may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
SECTION 13.12. No Recourse Against Others . No director, officer, manager, employee, incorporator or direct or indirect partner, member or stockholder, past, present or future, of the Issuer, any Guarantor or any successor entity of any of them, as such, will have any liability for any of the obligations of the Issuer or any Guarantor under the Notes or the Indenture or any other Notes Document or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a note waives and releases all such liability. The waiver and release may not be effective to waive liabilities under the federal securities laws.
SECTION 13.13. Successors . All agreements of the Issuer and each Guarantor in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successors.
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SECTION 13.14. Multiple Originals . The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile, pdf or other electronic transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile, pdf or other electronic means shall be deemed to be their original signatures for all purposes.
SECTION 13.15. Table of Contents; Headings . The table of contents, cross-reference table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
SECTION 13.16. Force Majeure . In no event shall the Trustee or Collateral Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, it being understood that the Trustee and Collateral Agent shall use commercially reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
SECTION 13.17. Severability . In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
[ signatures on following pages ]
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed all as of the date and year first written above.
J. C. PENNEY CORPORATION, INC. | ||
By: |
/s/ Michael Porter |
|
Name: | Michael Porter | |
Title: | Vice President, Treasurer | |
J. C. PENNEY COMPANY, INC. | ||
By: |
/s/ Edward Record |
|
Name: | Edward Record | |
Title: | Executive Vice President and Chief Financial Officer | |
JCP REAL ESTATE HOLDINGS, INC. | ||
By: |
/s/ Gary Piper |
|
Name: | Gary Piper | |
Title: | Treasurer | |
J. C. PENNEY PROPERTIES, INC. | ||
By: |
/s/ Gary Piper |
|
Name: | Gary Piper | |
Title: | Treasurer | |
J. C. PENNEY PURCHASING CORPORATION | ||
By: |
/s/ Gary Piper |
|
Name: | Gary Piper | |
Title: | Treasurer |
[Signature Page to the Indenture]
WILMINGTON TRUST, NATIONAL ASSOCIATION, | ||
as Trustee | ||
By: |
/s/ Hallie E. Field |
|
Name: | Hallie E. Field | |
Title: | Assistant Vice President |
[Signature Page to the Indenture]
EXHIBIT A
[FORM OF FACE OF GLOBAL RESTRICTED NOTE]
[Applicable Restricted Notes Legend]
[Depository Legend, if applicable]
No. [ ] | Principal Amount $[ ] [as revised by the Schedule of Increases and Decreases in Global Note attached hereto] 1 | |||
CUSIP NO. |
J. C. PENNEY CORPORATION, INC.
J. C. Penney Corporation, Inc., a Delaware corporation, promises to pay to [Cede & Co.], or its registered assigns, the principal sum of Dollars, [as revised by the Schedule of Increases and Decreases in Global Note attached hereto], on July 1, 2023.
Interest Payment Dates: January 1 and July 1, commencing on January 1, 2017 2
Record Dates: December 15 and June 15
Additional provisions of this Note are set forth on the other side of this Note.
1 | Insert in Global Notes only. |
2 | In the case of Notes issued on the Issue Date. |
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.
J. C. PENNEY CORPORATION, INC. | ||
By: |
|
|
Name: | ||
Title: |
TRUSTEE CERTIFICATE OF AUTHENTICATION
This Note is one of the Notes referred to in the within-mentioned Indenture.
WILMINGTON TRUST, NATIONAL ASSOCIATION , as Trustee | ||
By: |
|
|
Authorized Signatory |
Dated:
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[FORM OF REVERSE SIDE OF NOTE]
J. C. PENNEY CORPORATION, INC.
5.875% Senior Secured Notes due 2023
Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Indenture.
1. | Interest |
J. C. Penney Corporation, Inc., a Delaware corporation, promises to pay interest on the principal amount of this Note at 5.875% per annum from June 23, 2016 3 until maturity. The Issuer will pay interest semi-annually in arrears every January 1 and July 1 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an Interest Payment Date ). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided , that the first Interest Payment Date shall be January 1, 2017. 4 The Issuer shall pay interest on overdue principal at the rate specified herein, and it shall pay interest (including post-petition interest in any proceeding under the Bankruptcy Code) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful. Interest on the Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months. Each interest period will end on (but not include) the relevant Interest Payment Date.
2. | Method of Payment |
By no later than 10:00 a.m. (Eastern Time) on the date on which any principal of, premium, if any, or interest, if any, on any Note is due and payable, the Issuer shall deposit with the Paying Agent a sum sufficient in immediately available funds to pay such principal, premium, if any, and interest, if any, when due. Interest on any Note which is payable, and is timely paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered at the close of business on the preceding January 1 and July 1 at the office or agency of the Issuer maintained for such purpose pursuant to Section 2.3 of the Indenture. The principal of, and premium, if any, and interest on the Notes shall be payable at the office or agency of the Paying Agent or Registrar designated by the Issuer maintained for such purpose (which shall initially be the office of the Trustee maintained for such purpose), or at such other office or agency of the Issuer as may be maintained for such purpose pursuant to Section 2.3 of the Indenture; provided , however , that, at the option of the Paying Agent, each installment of interest may be paid by (i) check mailed to addresses of the Persons entitled thereto as such addresses shall appear on the Notes Register or (ii) wire transfer to an account located in the United States maintained by the payee, subject to the last sentence of this paragraph. Payments in respect of Notes represented by a Global Note (including principal, premium, if any, and interest, if any) will be made by wire transfer of immediately available funds to the accounts specified by The Depository Trust Company or any successor depository. Payments in respect of Notes represented by Definitive Notes (including principal, premium, if any, and interest) held by a Holder of at least $1,000,000 aggregate principal amount of Notes represented by Definitive Notes will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than fifteen (15) days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion). If an Interest Payment Date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
3. | Paying Agent and Registrar |
The Issuer initially appoints Wilmington Trust, National Association (the Trustee ) to act as the Registrar and Paying Agent for the Notes. The Issuer may change any Registrar or Paying Agent without prior notice to the Holders. The Issuer or any Guarantor may act as Paying Agent, Registrar or transfer agent.
3 | In the case of Notes issued on the Issue Date. |
4 | In the case of Notes issued on the Issue Date. |
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4. | Indenture |
The Issuer issued the Notes under an Indenture, dated as of June 23, 2016 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the Indenture ), among the Issuer, the Guarantors party thereto and the Trustee. The terms of the Notes include those stated in the Indenture. The Notes are subject to all terms and provisions of the Indenture, and Holders are referred to the Indenture for a statement of those terms. In the event of a conflict between the terms of the Notes and the terms of the Indenture, the terms of the Indenture shall prevail.
5. | Guarantees |
To guarantee the due and punctual payment of the principal, premium, if any, and interest (including post-filing or post-petition interest) on the Notes and all other amounts payable by the Issuer under the Indenture and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Guarantors have guaranteed (and future guarantors, jointly and severally with the Guarantors, will fully guarantee) such obligations on a senior secured basis pursuant to the terms of the Indenture.
6. | Optional Redemption |
(a) At any time, and from time to time, prior to July 1, 2019, the Issuer may redeem the Notes in whole or in part, at its option, at a redemption price equal to the greater of.:
(1) 100% of the principal amount of such Notes redeemed; and
(2) the excess of:
(i) the present value at such redemption date of (i) the redemption price of the Note at July 1, 2019 (such redemption price being set forth in the table under clause (e) below) plus (ii) all required interest payments due on the Note through July 1, 2019 (excluding interest paid prior to the redemption date and accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over
(ii) the principal amount of the Note,
(3) plus, in each case, any accrued and unpaid interest, if any, to, but not including, the date of redemption (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date).
In the event of any redemption pursuant to this clause (a), the Issuer shall calculate or cause the calculation of the redemption price, and the Trustee shall have no duty to calculate or verify the calculation thereof.
(b) At any time prior to July 1, 2019, the Issuer may on one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price equal to 105.875% of the principal amount plus accrued and unpaid interest, if any, to, but not including, the date of redemption (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date) in an amount of up to the amount of net cash proceeds received by or contributed to the Issuer from one or more Equity Offerings; provided that (1) at least 65% of the aggregate principal amount of Notes originally issued under the Indenture (including Additional Notes but excluding Notes held by the Issuer and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption, and (2) notice of such redemption is given within 90 days of the date of the closing of such Equity Offering. The Trustee shall select the Notes to be redeemed in the manner described under Sections 5.1 through 5.6 of the Indenture.
(c) Except pursuant to clauses (a) and (b) of this paragraph 6, the Notes will not be redeemable at the Issuers option prior to July 1, 2019.
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(d) On or after July 1, 2019, the Issuer may redeem all or a part of the Notes at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest, if any, on the Notes redeemed, to, but not including, the applicable date of redemption, if redeemed during the twelve-month period beginning on July 1 of the years indicated below, subject to the rights of Holders on the relevant record date to receive interest on the relevant interest payment date:
Year | Percentage | |||
2019 |
102.938 | % | ||
2020 |
101.469 | % | ||
2021 and thereafter |
100.000 | % |
(e) Unless the Issuer defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable Redemption Date.
(f) Any redemption pursuant to this paragraph 6 shall be made pursuant to the provisions of Sections 5.1 through 5.6 of the Indenture.
The Issuer is not required to make mandatory redemption or sinking fund payments with respect to the Notes.
7. | Repurchase Provisions |
If a Change of Control occurs, except as provided in Section 3.9(c) of the Indenture or unless the Issuer exercised its right to redeem all the outstanding Notes pursuant to Section 5.7 of the Indenture, the Issuer will be required to make an offer to each Holder to repurchase all or any part (in minimum denominations of $2,000 and integral multiples of $1,000 principal amount in excess thereof) of such Holders Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased, to, but not including, the date of repurchase. Within 30 days following the date of any Change of Control, or, at the Issuers option, prior to any Change of Control but after the public announcement of the Change of Control, the Issuer shall mail (or in the case of Holders of interests in Global Notes, transmit electronically in accordance with the applicable procedures of DTC) a notice to Holders of Notes (and shall provide a copy of such notice to the Trustee) describing the transaction or transactions that constitute the Change of Control and offering to repurchase the Notes on the date specified in the notice (the Change of Control Payment Date ), which date shall be no earlier than 30 days and no later than 60 days from the date such notice is so mailed or transmitted, pursuant to the procedures required by this Indenture and described in such notice. The notice shall state, if so mailed or transmitted prior to the date of consummation of the Change of Control, that the offer to repurchase the Notes is conditioned on the Change of Control occurring on or prior to the Change of Control Payment Date specified in the notice.
Upon certain Asset Dispositions, the Issuer may be required to use the Excess Proceeds from such Asset Dispositions to offer to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount of the Notes (or, to the extent that such Excess Proceeds are from Specified Sale/Leaseback Proceeds, 103% of the principal amount of the Notes), plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in Sections 3.5(c) and (d) of the Indenture and in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. The Issuer may, in its sole discretion, make an Asset Disposition Offer pursuant to Section 3.5 of the Indenture prior to the time that the aggregate amount of Excess Proceeds exceeds $25.0 million.
8. | Denominations; Transfer; Exchange |
The Notes shall be issuable only in fully registered form in minimum denominations of principal amount of $2,000 and any integral multiple of $1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay a sum sufficient to cover any tax and fees required by law or permitted by the Indenture. The Registrar need not register the transfer of or exchange of any Note (A) for a period beginning (1)
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fifteen (15) days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) fifteen (15) days before an Interest Payment Date and ending on such Interest Payment Date or (B) called for redemption, except the unredeemed portion of any Note being redeemed in part.
9. | Persons Deemed Owners |
The registered Holder of this Note may be treated as the owner of it for all purposes.
10. | Discharge and Defeasance |
Subject to certain exceptions and conditions set forth in the Indenture, the Issuer at any time may terminate its obligations under the Notes and the Indenture if the Issuer deposits with the Trustee money or U.S. Government Obligations for the payment of principal, premium, if any, and interest, if any, on the Notes to redemption or maturity, as the case may be.
11. | Amendment, Supplement, Waiver |
Subject to certain exceptions contained in the Indenture, the Notes Documents may be amended, supplemented or otherwise modified with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding and issued under the Indenture (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, such Notes) (in addition to any other consents required under the terms of the Intercreditor Agreements or the Collateral Documents from the parties thereto), and any Default or Event of Default thereunder or compliance with any provision of any Notes Document may be waived with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, such Notes). Without the consent of any Holder (and, upon request from the Issuer, the Trustee shall request that the Collateral Agent enter into any such amendment, supplement or other modification to the applicable Intercreditor Agreement or Collateral Documents), the Issuer and the Trustee (together with any other party whose consent is required pursuant to the Intercreditor Agreements or the Collateral Documents) may amend, supplement or otherwise modify any Notes Document as provided in the Indenture.
12. | Defaults and Remedies |
If an Event of Default (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Issuer) occurs and is continuing, the Trustee by written notice to the Issuer or the Holders of at least 25% in principal amount of the outstanding Notes by written notice to the Issuer and the Trustee, may declare the principal of, premium, if any, and accrued and unpaid interest, on all the Notes to be due and payable. Upon such a declaration, such principal, premium, if any, and accrued and unpaid interest, if any, will be due and payable immediately. If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Issuer occurs and is continuing, the principal of, premium, if any, and accrued and unpaid interest, if any, on all the Notes will become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in principal amount of the outstanding Notes may waive or rescind any such acceleration with respect to the Notes and its consequences.
13. | Trustee Dealings with the Issuer |
Subject to certain limitations set forth in the Indenture, the Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the JCP Parties or any respective Affiliate of the JCP Parties with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar or Custodian may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 of the Indenture.
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14. | No Recourse Against Others |
No director, officer, manager, employee, incorporator or direct or indirect partner, member or stockholder, past, present or future, of the Issuer, any Guarantor or any successor entity of any of them, as such, will have any liability for any of the obligations of the Issuer or any Guarantor under the Notes or the Indenture or any other Notes Document or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a note waives and releases all such liability. The waiver and release may not be effective to waive liabilities under the federal securities laws.
15. | Authentication |
This Note shall not be valid until an authorized signatory of the Trustee (or an authenticating agent acting on its behalf) manually signs the certificate of authentication on the other side of this Note.
16. | Abbreviations |
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).
17. | CUSIP and ISIN Numbers |
The Issuer has caused CUSIP and ISIN numbers, if applicable, to be printed on the Notes and has directed the Trustee to use CUSIP and ISIN numbers, if applicable, in notices of redemption or other notices as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption or other notices and reliance may be placed only on the other identification numbers placed thereon.
18. | Governing Law |
This Note shall be governed by, and construed in accordance with, the laws of the State of New York.
The Issuer will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture. Requests may be made to:
J. C. Penney Corporation, Inc.
6501 Legacy Drive
Plano, Texas 75024
Attention: Treasurer
Facsimile No.: (972) 431-2044
Email: mporter@jcp.com
Attention: Michael Porter
19. | Security |
This Note will be secured by the Collateral on the terms and subject to the conditions set forth in the Indenture, the Collateral Documents and the Intercreditor Agreements.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Print or type assignees name, address and zip code)
(Insert assignees social security or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date: | Your Signature: |
|
Signature Guarantee: |
|
|
(Signature must be guaranteed) |
Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
The undersigned hereby certifies that it ¨ is / ¨ is not an Affiliate of an Issuer and that, to its knowledge, the proposed transferee ¨ is / ¨ is not an Affiliate of an Issuer.
In connection with any transfer or exchange of any of the Notes evidenced by this certificate occurring prior to the date that is one year after the later of the date of original issuance of such Notes and the last date, if any, on which such Notes were owned by an Issuer or any Affiliate of an Issuer, the undersigned confirms that such Notes are being:
CHECK ONE BOX BELOW:
(1) ¨ | acquired for the undersigneds own account, without transfer; or |
(2) ¨ | transferred to the Issuer; or |
(3) ¨ | transferred pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended (the Securities Act ); or |
(4) ¨ | transferred pursuant to an effective registration statement under the Securities Act; or |
(5) ¨ | transferred pursuant to and in compliance with Regulation S under the Securities Act; or |
(6) ¨ | transferred pursuant to another available exemption from the registration requirements of the Securities Act. |
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any person other than the registered Holder thereof; provided , however , that if box (5) or (6) is checked, the Issuer may require, prior to registering any such transfer of the Notes, in their sole discretion, such legal opinions, certifications and other information as the Issuer may reasonably request to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, such as the exemption provided by Rule 144 under such Act.
A-8
|
||||||
Signature | ||||||
Signature Guarantee: | ||||||
|
|
|||||
(Signature must be guaranteed) | Signature |
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF BOX
(1) OR (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigneds foregoing representations in order to claim the exemption from registration provided by Rule 144A.
|
Dated: |
A-9
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTES
The following increases or decreases in this Global Note have been made:
Date of Exchange |
Amount of decrease
in Principal Amount of this Global Note |
Amount of increase
in Principal Amount of this Global Note |
Principal Amount
of this Global Note following such decrease or increase |
Signature of
authorized signatory of Trustee or Notes Custodian |
||||
A-10
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Issuer pursuant to Section 3.5 or 3.9 of the Indenture, check either box:
Section 3.5 ¨ Section 3.9 ¨
If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 3.5 or 3.9 of the Indenture, state the amount in principal amount (must be in denominations of $2,000 or an integral multiple of $1,000 in excess thereof): $ and specify the denomination or denominations (which shall not be less than the minimum authorized denomination) of the Notes to be issued to the Holder for the portion of the within Note not being repurchased (in the absence of any such specification, one such Note will be issued for the portion not being repurchased): .
Date: Your Signature |
|
|||
(Sign exactly as your name appears on the other side of the Note) |
Signature Guarantee: |
|
|
(Signature must be guaranteed) |
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
A-11
EXHIBIT B
Form of Supplemental Indenture
[ ] SUPPLEMENTAL INDENTURE, (this Supplemental Indenture ) dated as of [ ], 20[ ], by and among J. C. Penney Corporation, Inc., a Delaware corporation (the Issuer ), the parties that are signatories hereto as Guarantors (each a Guaranteeing Subsidiary ) and Wilmington Trust, National Association, as Trustee under the Indenture referred to below.
W I T N E S S E T H :
WHEREAS, the Issuer, the Guarantors party thereto, and the Trustee have heretofore executed and delivered an indenture, dated as of June 23, 2016 (as amended, supplemented, waived or otherwise modified, the Indenture ), providing for the issuance of an aggregate principal amount of $500,000,000 of 5.875% Senior Secured Notes due 2023 (the Notes ) of the Issuer;
WHEREAS, the Indenture provides that each Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which each Guaranteeing Subsidiary shall unconditionally guarantee, on a joint and several basis, all of the Issuers Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the Note Guarantee ); and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Issuer, any Guaranteeing Subsidiary and the Trustee are authorized to execute and deliver this Supplemental Indenture to amend or supplement the Indenture, without the consent of any Holder.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Issuer, the Guaranteeing Subsidiar[y/ies] and the Trustee mutually covenant and agree for the benefit of the Trustee and the Holders of the Notes as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Defined Terms . As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recitals hereto are used herein as therein defined. The words herein, hereof and hereby and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
SECTION 2.1. Agreement to be Bound . Each of the Guaranteeing Subsidiaries hereby agrees to become a party to the Indenture as a Guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture.
SECTION 2.2. Guarantee . Each of the Guaranteeing Subsidiaries agrees, on a joint and several basis, to fully, unconditionally and irrevocably Guarantee to each Holder of the Notes and the Trustee the Guaranteed Obligations pursuant to Article X of the Indenture.
B-1
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Notices . All notices and other communications to each Guaranteeing Subsidiary shall be given as provided in the Indenture, at the address for the Guarantors set forth in the Indenture.
SECTION 3.2. Merger, Amalgamation and Consolidation . Each Guaranteeing Subsidiary shall not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge or amalgamate with or into, another Person (other than the Issuer or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the transaction) except in accordance with Section 4.1(b) of the Indenture.
SECTION 3.3. Release of Guarantee . The Note Guarantees hereunder may be released in accordance with Section 10.2 of the Indenture.
SECTION 3.4. Parties . Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.
SECTION 3.5. Governing Law . This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
SECTION 3.6. Severability . In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
SECTION 3.7. Benefits Acknowledged . Each Guaranteeing Subsidiarys Note Guarantee is subject to the terms and conditions set forth in the Indenture. Each Guaranteeing Subsidiary acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
SECTION 3.8. Ratification of Indenture; Supplemental Indentures Part of Indenture . Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 3.9. The Trustee . The Trustee does not make any representation or warranty as to the validity or sufficiency of this Supplemental Indenture or with respect to the recitals contained herein, all of which recitals are made solely by the other parties hereto.
SECTION 3.10. Counterparts . The parties hereto may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile, pdf or other electronic transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile, pdf or other electronic means shall be deemed to be their original signatures for all purposes.
SECTION 3.11. Execution and Delivery . Each Guaranteeing Subsidiary agrees that its Note Guarantee shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of any such Note Guarantee.
B-2
SECTION 3.12. Headings . The headings of the Articles and the Sections in this Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
[ signature pages follow ]
B-3
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
[GUARANTEEING SUBSIDIARIES], | ||
as a Guarantor | ||
By: |
|
|
Name: | ||
Title: | ||
Acknowledged by: | ||
J. C. PENNEY CORPORATION, INC. | ||
By: |
|
|
Name: | ||
Title: |
B-4
WILMINGTON TRUST, NATIONAL ASSOCIATION, | ||
as Trustee | ||
By: |
|
|
Name: | ||
Title: |
B-5
EXHIBIT C
Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S
[Date]
J. C. Penney Corporation, Inc.
6501 Legacy Drive
Plano, Texas 75024
Attention: Treasurer
Facsimile No.: (972) 431-2044
Email: mporter@jcp.com
Wilmington Trust, National Association,
as Trustee and Registrar
50 South Sixth Street
Suite 1290
Minneapolis, Minnesota 55402
Attention: J. C. Penney Notes Administrator
Facsimile No.: (612) 217-5651
Email: hfield@wilmingtontrust.com
Attention: J. C. Penney Corporation, Inc. Secured Notes Administrator
Re: | J. C. Penney Corporation, Inc. (the Issuer ) |
5.875% Senior Secured Notes due 2023 (the Notes)
Ladies and Gentlemen:
In connection with our proposed sale of $[ ] aggregate principal amount of the Notes, we confirm that such sale has been effected pursuant to and in accordance with Regulation S under the United States Securities Act of 1933, as amended (the Securities Act ), and, accordingly, we represent that:
(a) the offer of the Notes was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (ii) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the provisions of Rule 903(b)(2), Rule 903(b)(3) or Rule 904(b)(1) of Regulation S are applicable thereto, we confirm that such sale has been made in accordance with the applicable provisions of Rule 903(b)(2), Rule 903(b)(3) or Rule 904(b)(1), as the case may be.
C-1
We also hereby certify that we [are][are not] an Affiliate of an Issuer and, to our knowledge, the transferee of the Notes [is][is not] an Affiliate of an Issuer.
The Trustee and the Issuer are entitled to conclusively rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.
Very truly yours, | ||
[Name of Transferor] | ||
By: |
|
|
Authorized Signature |
C-2
EXHIBIT 10.1
Execution Version
This RESTATEMENT AGREEMENT, dated as of June 23, 2016 (this Restatement Agreement ), by and among J. C. PENNEY CORPORATION, INC., a Delaware corporation (the Borrower ), J. C. PENNEY COMPANY, INC., J. C. PENNEY PURCHASING CORPORATION, JCP REAL ESTATE HOLDINGS, INC. and J. C. PENNEY PROPERTIES, INC., as guarantors (collectively, the Guarantors ), JPMorgan Chase Bank, N.A., as administrative agent (the New Administrative Agent ), and the lenders under the Original Credit Agreement (as defined below) signatory hereto (collectively, the Lenders ), is made in reference to the Credit and Guaranty Agreement, dated as of May 22, 2013 (as amended or supplemented prior to the date hereof, the Original Credit Agreement ) by and among the Borrower, the Guarantors, the lenders party thereto, GOLDMAN SACHS BANK USA, as administrative agent (the Former Administrative Agent ) and collateral agent (the Former Collateral Agent ), and the other parties thereto.
WHEREAS, the Borrower has requested, and the Lenders have agreed, upon the terms and subject to the conditions set forth herein, that the Original Credit Agreement be amended and restated as provided herein;
WHEREAS, the Former Administrative Agent, the Former Collateral Agent, the New Administrative Agent, Wilmington Trust, National Association, as collateral agent (the New Collateral Agent ) under the Pari Passu Intercreditor Agreement (as referred to below), the Borrower and the Guarantors have entered into the Agency Transfer Agreement (as defined in the Restated Credit Agreement), which shall become effective concurrently with the effectiveness of this Restatement Agreement;
WHEREAS, the New Administrative Agent, the New Collateral Agent and the other parties thereto have entered into the Pari Passu Intercreditor Agreement (as defined in the Restated Credit Agreement), which shall become effective concurrently with the effectiveness of this Restatement Agreement; and
WHEREAS, to the extent set forth on such Lenders counterpart to this Restatement Agreement, each Lender party hereto that holds an Original Loan (as defined in the Restated Credit Agreement) has agreed to convert 100% (or such lesser amount as may be notified by the New Administrative Agent to such Lender prior to the Restatement Effective Date (as defined below) of such Lenders Original Loan into a like principal amount of Initial Loans under the Restated Credit Agreement;
NOW, THEREFORE, in consideration of the promises and mutual agreements herein contained, the Borrower, the Lenders party hereto and the New Administrative Agent hereby agree as follows:
SECTION 1. Defined Terms . Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Restated Credit Agreement (as defined below), except that the defined terms Lender and Requisite Lenders shall have the meaning given such terms by the Original Credit Agreement.
SECTION 2. Amendment and Restatement of the Original Credit Agreement . Effective as of the Restatement Effective Date (as defined below), the Original Credit Agreement is hereby amended and restated to read in its entirety as set forth in Exhibit A hereto (the Restated Credit Agreement ) and the Requisite Lenders hereby consent to the Agency Transfer Agreement and the Transactions. Each of the Lenders signatory hereto and the Borrower consent to the amendment of the Original Credit Agreement pursuant to this Restatement Agreement, the terms of the Restated Credit Agreement and the Transactions (as defined in the Restated Credit Agreement).
SECTION 3. Effectiveness . This Restatement Agreement shall become effective on the date (the Restatement Effective Date ) when (x) counterparts hereof which, when taken together, bear the signatures of each of the Credit Parties, the New Administrative Agent, each Lender with a Commitment under the Restated Credit Agreement and the Requisite Lenders shall have been received by the New Administrative Agent and the New Collateral Agent, (y) all conditions to the Restatement Effective Date set forth in Section 3.1 of the Restated Credit Agreement shall have been satisfied and (z) the New Administrative Agent shall have received from the Borrower a non-refundable fee, for the account of (i) each Converting Lender equal to 0.50% of the principal amount of Converting Loans held by such consenting Lender on the Restatement Effective Date and (ii) each Lender with a Commitment under the Restated Credit Agreement equal to 0.50% of the principal amount of the Commitment of such Lender under the Restated Credit Agreement on the Restatement Effective Date.
SECTION 4. Counterparts; Amendments . This Restatement Agreement may neither be amended nor may any provision hereof be waived except pursuant to a writing signed by each of the Credit Parties, the New Administrative Agent and Lenders constituting the Requisite Lenders. This Restatement Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Restatement Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Restatement Agreement.
SECTION 5. No Novation . The execution and delivery of this Restatement Agreement and the effectiveness hereof shall not act as a novation of the Original Credit Agreement and, except as specifically contemplated by this Restatement Agreement, shall not serve to discharge or release any Obligation or Lien under the Credit Documents. This Restatement Agreement shall be a Credit Document for all purposes of the Restated Credit Agreement.
SECTION 6. Applicable Law; Waiver of Jury Trial .
THIS RESTATEMENT AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
-2-
EACH PARTY HERETO HEREBY AGREES TO THE TERMS SET FORTH IN SECTIONS 10.15 AND 10.16 OF THE RESTATED CREDIT AGREEMENT AS IF SUCH SECTIONS WERE SET FORTH IN FULL HEREIN.
SECTION 7. Headings . The Section headings used herein are for convenience of reference only, are not part of this Restatement Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Restatement Agreement.
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Restatement Agreement to be duly executed by their respective authorized officers as of the day and year first written above.
J. C. PENNEY CORPORATION, INC., as Borrower | ||||
By: |
/s/ Michael Porter |
|||
Name: | Michael Porter | |||
Title: | Vice President, Treasurer | |||
J. C. PENNEY COMPANY, INC., as Guarantor | ||||
By: |
/s/ Edward Record |
|||
Name: | Edward Record | |||
Title: |
Executive Vice President and Chief Financial Officer |
|||
J. C. PENNEY PURCHASING CORPORATION, as Guarantor | ||||
By: |
/s/ Gary Piper |
|||
Name: | Gary Piper | |||
Title: | Treasurer | |||
JCP REAL ESTATE HOLDINGS, INC., as Guarantor | ||||
By: |
/s/ Gary Piper |
|||
Name: | Gary Piper | |||
Title: | Treasurer | |||
J. C. PENNEY PROPERTIES, INC., as Guarantor | ||||
By: |
/s/ Gary Piper |
|||
Name: | Gary Piper | |||
Title: | Treasurer |
JPMORGAN CHASE BANK, N.A., as Administrative Agent and as a Lender under the Restated Credit Agreement | ||||
By: |
/s/ Lauren M. Baker |
|||
Name: | Lauren M. Baker | |||
Title: | Vice President |
Signature Page to Restatement Agreement
The undersigned Lender under the Original Credit Agreement hereby consents to the Restatement Agreement and, to the extent set forth below, to its Original Loans being converted to Initial Loans pursuant to the Restated Credit Agreement:
|
, | |||
(Name of Institution) | ||||
By: |
|
|||
Name: | ||||
Title: | ||||
[If a second signature is necessary: | ||||
By: |
|
|||
Name: | ||||
Title:] |
Check the box to the right to request that your Original Loans be converted to Initial Loans: | ¨ |
Exhibit A
Amended and Restated Credit and Guaranty Agreement
[attached]
EXECUTION VERSION
AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
dated as of June 23, 2016
among
J. C. PENNEY CORPORATION, INC.,
as Borrower,
J. C. PENNEY COMPANY, INC., and
CERTAIN SUBSIDIARIES OF J. C. PENNEY CORPORATION, INC.,
as Guarantors,
VARIOUS LENDERS,
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
JPMORGAN CHASE BANK, N.A.,
BARCLAYS BANK PLC,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
WELLS FARGO SECURITIES, LLC, and
GOLDMAN SACHS LENDING PARTNERS LLC,
as Joint Lead Arrangers and Joint Bookrunners
CITIZENS BANK, NATIONAL ASSOCIATION,
REGIONS BANK, and
HSBC BANK USA, N.A.,
as Senior Managing Agents
$1,688,125,000 Term Loan
TABLE OF CONTENTS
Page | ||||||
SECTION 1. DEFINITIONS AND INTERPRETATION |
1 | |||||
1.1. |
Definitions |
1 | ||||
1.2. |
Accounting Terms |
37 | ||||
1.3. |
Interpretation, Etc. |
38 | ||||
1.4. |
Effect of this Agreement on the Original Credit Agreement and the Other Existing Credit Documents |
38 | ||||
SECTION 2. LOANS |
38 | |||||
2.1. |
Loans |
38 | ||||
2.2. |
[Reserved] |
39 | ||||
2.3. |
[Reserved] |
39 | ||||
2.4. |
[Reserved] |
39 | ||||
2.5. |
Pro Rata Shares; Availability of Funds |
39 | ||||
2.6. |
Use of Proceeds |
40 | ||||
2.7. |
Evidence of Debt; Register; Lenders Books and Records; Notes |
40 | ||||
2.8. |
Interest on Loans |
41 | ||||
2.9. |
Conversion/Continuation |
42 | ||||
2.10. |
Default Interest |
43 | ||||
2.11. |
Fees |
43 | ||||
2.12. |
Scheduled Payments/Commitment Reductions |
43 | ||||
2.13. |
Voluntary Prepayments |
44 | ||||
2.14. |
Mandatory Prepayments |
45 | ||||
2.15. |
Application of Prepayments |
47 | ||||
2.16. |
General Provisions Regarding Payments |
48 | ||||
2.17. |
Ratable Sharing |
49 | ||||
2.18. |
Making or Maintaining Eurodollar Rate Loans |
49 | ||||
2.19. |
Increased Costs; Capital Adequacy |
51 | ||||
2.20. |
Taxes; Withholding, Etc. |
52 | ||||
2.21. |
Obligation to Mitigate |
54 | ||||
2.22. |
Defaulting Lenders |
55 | ||||
2.23. |
Removal or Replacement of a Lender |
56 | ||||
2.24. |
Refinancing Amendments |
56 | ||||
2.25. |
Extensions of Loans |
57 | ||||
SECTION 3. CONDITIONS PRECEDENT |
60 | |||||
3.1. |
Restatement Effective Date |
60 | ||||
3.2. |
Conditions to Each Credit Extension |
62 | ||||
SECTION 4. REPRESENTATIONS AND WARRANTIES |
63 | |||||
4.1. |
Organization; Requisite Power and Authority; Qualification |
63 | ||||
4.2. |
Equity Interests and Ownership |
63 | ||||
4.3. |
[Reserved] |
63 | ||||
4.4. |
Governmental Consents; No Conflict |
63 | ||||
4.5. |
[Reserved] |
64 | ||||
4.6. |
Binding Obligation |
64 | ||||
4.7. |
Historical Financial Statements |
64 | ||||
4.8. |
[Reserved] |
64 | ||||
4.9. |
No Material Adverse Change |
64 |
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Page | ||||||
4.10. |
[Reserved] |
64 | ||||
4.11. |
Litigation |
64 | ||||
4.12. |
Payment of Taxes |
64 | ||||
4.13. |
Properties |
64 | ||||
4.14. |
Environmental Matters |
65 | ||||
4.15. |
Compliance with Laws and Agreements; No Defaults |
65 | ||||
4.16. |
[Reserved] |
65 | ||||
4.17. |
Governmental Regulation |
66 | ||||
4.18. |
Federal Reserve Regulations; Exchange Act |
66 | ||||
4.19. |
Employee Matters |
66 | ||||
4.20. |
Employee Benefit Plans |
66 | ||||
4.21. |
[Reserved] |
66 | ||||
4.22. |
Solvency |
66 | ||||
4.23. |
[Reserved] |
66 | ||||
4.24. |
[Reserved] |
66 | ||||
4.25. |
Disclosure |
66 | ||||
4.26. |
EEA Financial Institutions |
67 | ||||
4.27. |
PATRIOT Act |
67 | ||||
SECTION 5. AFFIRMATIVE COVENANTS |
67 | |||||
5.1. |
Financial Statements and Other Reports |
67 | ||||
5.2. |
Existence |
70 | ||||
5.3. |
Payment of Taxes |
70 | ||||
5.4. |
Maintenance of Properties |
70 | ||||
5.5. |
Insurance |
70 | ||||
5.6. |
Books and Records; Inspections |
71 | ||||
5.7. |
Lenders Meetings |
71 | ||||
5.8. |
Compliance with Laws |
71 | ||||
5.9. |
Environmental |
72 | ||||
5.10. |
Subsidiaries |
73 | ||||
5.11. |
Additional Material Real Estate Assets |
73 | ||||
5.12. |
[Reserved] |
74 | ||||
5.13. |
Further Assurances |
74 | ||||
5.14. |
Maintenance of Ratings |
74 | ||||
5.15. |
Post-Closing Matters |
74 | ||||
5.16. |
Post-Closing Real Estate Matters |
74 | ||||
SECTION 6. NEGATIVE COVENANTS |
76 | |||||
6.1. |
Indebtedness |
76 | ||||
6.2. |
Liens |
80 | ||||
6.3. |
Restrictive Agreements |
82 | ||||
6.4. |
Restricted Payments |
83 | ||||
6.5. |
Restrictions on Non-Material Subsidiaries |
85 | ||||
6.6. |
Investments, Loans, Advances, Guarantees and Acquisitions |
85 | ||||
6.7. |
Asset Sales |
87 | ||||
6.8. |
Fundamental Changes |
90 | ||||
6.9. |
Disposal of Subsidiary Interests |
91 | ||||
6.10. |
Sales and Leaseback Transactions |
91 | ||||
6.11. |
Transactions with Affiliates |
91 | ||||
6.12. |
Conduct of Business |
92 |
-ii-
Page | ||||||
6.13. |
Permitted Activities of Holdings |
92 | ||||
6.14. |
Certain Payments of Indebtedness |
92 | ||||
6.15. |
Amendments of Organizational Documents |
93 | ||||
6.16. |
Net Settlement of Convertible Indebtedness |
93 | ||||
SECTION 7. GUARANTY |
93 | |||||
7.1. |
Guaranty of the Obligations |
93 | ||||
7.2. |
Contribution by Guarantors |
93 | ||||
7.3. |
Payment by Guarantors |
94 | ||||
7.4. |
Liability of Guarantors Absolute |
94 | ||||
7.5. |
Waivers by Guarantors |
96 | ||||
7.6. |
Guarantors Rights of Subrogation, Contribution, Etc. |
97 | ||||
7.7. |
Subordination of Other Obligations |
97 | ||||
7.8. |
Continuing Guaranty |
97 | ||||
7.9. |
Authority of Guarantors or Borrower |
98 | ||||
7.10. |
Financial Condition of Borrower |
98 | ||||
7.11. |
Bankruptcy, Etc. |
98 | ||||
7.12. |
Discharge of Guaranty Upon Sale of Guarantor |
99 | ||||
SECTION 8. EVENTS OF DEFAULT |
99 | |||||
8.1. |
Events of Default |
99 | ||||
SECTION 9. AGENTS |
101 | |||||
9.1. |
Appointment of Agents |
101 | ||||
9.2. |
Powers and Duties |
102 | ||||
9.3. |
General Immunity |
102 | ||||
9.4. |
Agents Entitled to Act as Lender |
103 | ||||
9.5. |
Lenders Representations, Warranties and Acknowledgment |
104 | ||||
9.6. |
Right to Indemnity |
104 | ||||
9.7. |
Successor Administrative Agent |
104 | ||||
9.8. |
Collateral Documents and Guaranty |
105 | ||||
9.9. |
Withholding Taxes |
108 | ||||
9.10. |
Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim |
108 | ||||
SECTION 10. MISCELLANEOUS |
109 | |||||
10.1. |
Notices |
109 | ||||
10.2. |
Expenses |
110 | ||||
10.3. |
Indemnity |
111 | ||||
10.4. |
Set-Off |
112 | ||||
10.5. |
Amendments and Waivers |
113 | ||||
10.6. |
Successors and Assigns; Participations |
115 | ||||
10.7. |
Independence of Covenants |
120 | ||||
10.8. |
Survival of Representations, Warranties and Agreements |
120 | ||||
10.9. |
No Waiver; Remedies Cumulative |
120 | ||||
10.10. |
Marshalling; Payments Set Aside |
120 | ||||
10.11. |
Severability |
120 | ||||
10.12. |
Obligations Several; Independent Nature of Lenders Rights |
120 | ||||
10.13. |
Headings |
120 | ||||
10.14. |
APPLICABLE LAW |
121 | ||||
10.15. |
CONSENT TO JURISDICTION |
121 |
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Page | ||||||
10.16. |
WAIVER OF JURY TRIAL |
121 | ||||
10.17. |
Confidentiality |
122 | ||||
10.18. |
Usury Savings Clause |
122 | ||||
10.19. |
Effectiveness; Counterparts |
123 | ||||
10.20. |
PATRIOT Act |
123 | ||||
10.21. |
Electronic Execution of Assignments |
123 | ||||
10.22. |
No Fiduciary Duty |
123 | ||||
10.23. |
Acknowledgement and Consent to Bail-In of EEA Financial Institutions |
124 |
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APPENDICES: |
A Commitments | |||
B Notice Addresses | ||||
SCHEDULES: |
3.1(a) | Restatement Effective Date Credit Documents | ||
4.2 | Equity Interests and Ownership | |||
4.13 | Real Estate Assets | |||
4.14 | Disclosed Matters | |||
5.15 | Post-Closing Matters | |||
5.16(a)(i) | Restatement Effective Date Mortgaged Properties | |||
5.16(a)(iii) | Title Policy Properties | |||
5.16(a)(iv) | Initial Appraisal Properties | |||
6.1 | Certain Indebtedness | |||
6.2 | Certain Liens | |||
6.3 | Certain Restrictive Agreements | |||
6.6 | Certain Investments | |||
EXHIBITS: |
A-1 | Funding Notice | ||
A-2 | Conversion/Continuation Notice | |||
B | Note | |||
C | Compliance Certificate | |||
D | Assignment Agreement | |||
E | Certificate re Non-Bank Status | |||
F | Restatement Effective Date Certificate | |||
G | Counterpart Agreement | |||
H | Pledge and Security Agreement | |||
I | Modified Dutch Auction Procedures | |||
J | Pari Passu Intercreditor Agreement | |||
K | Incumbency Certificate |
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AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
This AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT , dated as of June 23, 2016, is entered into by and among J. C. PENNEY CORPORATION, INC. , a Delaware corporation ( Borrower ), J. C. PENNEY COMPANY, INC. , a Delaware corporation ( Holdings ), CERTAIN SUBSIDIARIES OF BORROWER , as Guarantors, the Lenders party hereto from time to time, and JPMORGAN CHASE BANK, N.A. ( JPMorgan ), as administrative agent (together with its permitted successors in such capacity, Administrative Agent ).
RECITALS:
WHEREAS , capitalized terms used in these Recitals shall have the respective meanings set forth for such terms in Section 1.1 hereof;
WHEREAS , Holdings, Borrower, the Lenders, Goldman Sachs Bank USA, as administrative agent and collateral agent (the Former Agent ), and other parties are party to a credit agreement dated as of May 22, 2013 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the Original Credit Agreement ), and the parties to the Restatement Agreement (as defined below) have agreed to amend and restate in its entirety the Original Credit Agreement and replace it in its entirety with this Agreement;
WHEREAS , Lenders have agreed to extend Initial Loans (or convert Converting Loans) to Borrower, in an aggregate principal amount not to exceed $1,688,125,000, the proceeds of which will be used, together with the proceeds of the 2016 Notes, to consummate the Restatement Effective Date Refinancing.
WHEREAS , Former Agent, as administrative agent and collateral agent under the Original Credit Agreement, has assigned all of its rights and obligations under the Original Credit Agreement to the Administrative Agent and all of its rights and obligations under the Collateral Documents to the Collateral Agent.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. | DEFINITIONS AND INTERPRETATION |
1.1. Definitions . The following terms used herein, including in the preamble, recitals, exhibits and schedules hereto, shall have the following meanings:
1994 Indenture means the Indenture, dated as of April 1, 1994, between Holdings and Bank of America National Trust and Savings Association, as amended by a first supplemental indenture, dated as of January 27, 2002 between Holdings and U.S. Bank National Association, and a second supplemental indenture, dated as of July 26, 2002, by and among Holdings, Borrower and U.S. Bank National Association, as the same may be amended, restated, supplemented, replaced or otherwise modified from time to time.
2014 Indenture means the Indenture, dated as of September 15, 2014 as supplemented by the First Supplemental Indenture dated as of September 15, 2014, among Holdings, Borrower and Wilmington Trust, National Association, as Trustee.
2016 Indenture means the Indenture, dated as of June 23, 2016, among Holdings, Borrower, the other guarantors party thereto and the 2016 Notes Trustee.
2016 Notes means $500,000,000 aggregate principal amount of 5.875% senior secured notes due 2023 issued by Borrower pursuant to the 2016 Indenture on the Restatement Effective Date.
2016 Notes Trustee means Wilmington Trust, National Association, as trustee under the 2016 Indenture, and its successors in such capacity.
2023 Indenture means the Indenture, dated as of October 1, 1982 as supplemented by the First Supplemental Indenture dated as of March 15, 1983, the Second Supplemental Indenture dated as of May 1, 1984, the Third Supplemental Indenture dated as of March 7, 1986, the Fourth Supplemental Indenture dated as of June 7, 1991, the Fifth Supplemental Indenture dated as of January 27, 2002 and the Sixth Supplemental Indenture dated as of May 20, 2013 between the Borrower and U.S. Bank National Association (successor to Bank of America National Trust and Savings Association), as Trustee.
ABL Credit Agreement means that certain Credit Agreement, dated as of June 20, 2014, among Holdings, Borrower, Purchasing, the ABL Lenders, Wells Fargo Bank, National Association, as Administrative Agent and Co-Collateral Agent, and certain other Persons party thereto, as amended by that certain Amendment No. 1 to Credit Agreement, dated as of December 10, 2015, among Holdings, Borrower, Purchasing, the ABL Lenders party thereto and Wells Fargo Bank, National Association, as Administrative Agent and Co-Collateral Agent, as the same may be further amended, restated, supplemented, replaced or Refinanced.
ABL Intercreditor Agreement means the Intercreditor and Collateral Cooperation Agreement, dated as of June 23, 2016, among the Credit Parties, the Collateral Agent, Wells Fargo Bank, National Association, as administrative agent under the ABL Credit Agreement, and the other parties thereto from time to time, as supplemented and amended from time to time.
ABL Lender means the lenders from time to time party to the ABL Credit Agreement.
ABL Priority Collateral means the ABL Priority Collateral as defined in the ABL Intercreditor Agreement.
Additional Lender as defined in Section 2.24.
Adjusted Eurodollar Rate means, for any Interest Rate Determination Date with respect to an Interest Period for a Eurodollar Rate Loan, the rate per annum obtained by dividing (i) the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for Dollars for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by Administrative Agent in its reasonable discretion; in each case the LIBO Screen Rate ) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period; provided , further , that if the LIBO Screen Rate shall not be available at such time for such Interest Period (an Impacted Interest Period ) then the Adjusted Eurodollar Rate shall be the Interpolated Rate comparable to such period as of approximately 11:00 a.m., London time, on such Interest Rate Determination Date, by (ii) an amount equal to (a) one minus (b) the Applicable Reserve Requirement; provided , however , that notwithstanding the foregoing, the Adjusted Eurodollar Rate shall at no time be less than 1.00% per annum .
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Administrative Agent as defined in the preamble hereto.
Affected Lender as defined in Section 2.18(b).
Affected Loans as defined in Section 2.18(b).
Affiliate means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
Agency Transfer Agreement means the Successor Agent Agreement, dated as of the Restatement Effective Date, by and among the Credit Parties, the Former Agent, the Administrative Agent and the Collateral Agent.
Agent means each of (i) Administrative Agent, (ii) Collateral Agent, (iii) each Joint Lead Arranger, (iv) each Joint Bookrunner, (v) each Senior Managing Agent and (vi) any other Person appointed under the Credit Documents to serve in an agent or similar capacity, including, without limitation, any Auction Manager.
Agent Affiliates as defined in Section 10.1(b)(iii).
Aggregate Amounts Due as defined in Section 2.17.
Aggregate Payments as defined in Section 7.2.
Agreement means this Amended and Restated Credit and Guaranty Agreement, dated as of the date hereof, as it may be amended, restated, supplemented or otherwise modified from time to time.
All-in Yield means, as to any Indebtedness, the effective interest rate with respect thereto as reasonably determined by Administrative Agent consistent with generally accepted financial practices, taking into account the interest rate, margin, original issue discount, upfront fees and eurodollar rate floors or base rate floors; provided that (i) original issue discount and upfront fees shall be equated to interest rate assuming a four-year life to maturity of such Indebtedness and (ii) (A) customary arrangement, structuring, underwriting, amendment, commitment or similar fees paid solely to the applicable arrangers or agents (or their respective affiliates) with respect to such Indebtedness, (B) fees that are not paid generally to the lenders providing such Indebtedness, and (C) fluctuations in the Adjusted Eurodollar Rate shall be excluded.
Applicable Margin means, (i) with respect to Eurodollar Rate Loans, 4.25% per annum , and (ii) with respect to Base Rate Loans, 3.25% per annum .
Applicable Reserve Requirement means, at any time, for any Eurodollar Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained by member banks of the United States Federal Reserve System (or any successor thereto) with respect thereto against Eurocurrency liabilities (as such term is defined in Regulation D) under regulations issued from time to time by the Board of Governors or other applicable banking regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to (i) any category of liabilities which includes deposits by reference to which the applicable Adjusted Eurodollar Rate is to be determined, or (ii) any category of extensions of credit or other assets which include Eurodollar Rate Loans. A Eurodollar Rate Loan shall be deemed to constitute
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Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions or offsets that may be available from time to time to the applicable Lender. The rate of interest on Eurodollar Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.
Approved Electronic Communications means any notice, demand, communication, information, document or other material that any Credit Party provides to Administrative Agent pursuant to any Credit Document or the transactions contemplated therein which is distributed to Agents or Lenders by means of electronic communications pursuant to Section 10.1(b).
Asset Sale means a sale, lease or sub-lease (as lessor or sublessor), sale and leaseback, assignment, conveyance, exclusive license (as licensor or sublicensor), transfer or other disposition to, or any exchange of property with, any Person (including the voluntary termination of a lease or other contract for consideration), in one transaction or a series of transactions, of all or any part of Holdings or any of its Subsidiaries businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including the Equity Interests of any of Holdings Subsidiaries, other than (i) inventory (or other assets) sold, leased or licensed out in the ordinary course of business (excluding any such sales, leases or licenses out by operations or divisions discontinued or to be discontinued), (ii) any disposition (as defined in Section 6.7) permitted by Section 6.7 of or with respect to assets (A) not constituting Collateral and (B) not required to become Collateral pursuant to Section 5.16, (iii) any disposition (as defined in Section 6.7) of Specified Assets prior to the date such assets are required to become Collateral pursuant to Section 5.16, (iv) any other disposition (as defined in Section 6.7) permitted by Section 6.7 other than pursuant to clauses (m), (p), (s) or (u) (with respect to any termination of a ground lease constituting Collateral or required to become Collateral pursuant to Section 5.16) thereof, and (v) sales, leases or licenses out of other assets for aggregate consideration of less than $5,000,000 in the aggregate during any Fiscal Year.
Assignment Agreement means, as applicable, (a) an Assignment and Assumption Agreement substantially in the form of Exhibit D, with such amendments or modifications as may be approved by Administrative Agent or (b) a Borrower Assignment Agreement.
Assignment Effective Date as defined in Section 10.6(b).
Auction as defined in Section 10.6(i)(i).
Auction Manager means (a) Administrative Agent, any Joint Lead Arranger or any of their respective Affiliates, as determined by the Borrower or (b) any other financial institution or advisor agreed by Borrower and Administrative Agent (whether or not an Affiliate of Administrative Agent) to act as an arranger in connection with any repurchases pursuant to Section 10.6(i).
Authorized Officer means, as applied to any Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, president, vice president (or the equivalent thereof), chief financial officer or treasurer of such Person; provided that the secretary or assistant secretary of such Person shall have delivered an incumbency certificate to Administrative Agent as to the authority of such Authorized Officer.
Bail-In Action means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
Bail-In Legislation means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
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Bankruptcy Code means Title 11 of the United States Code entitled Bankruptcy, as now and hereafter in effect, or any successor statute.
Base Rate means, for any day, a rate per annum equal to the greatest of (i) the Prime Rate in effect on such day, (ii) the NYFRB Rate in effect on such day plus 1 ⁄ 2 of 1% and (iii) the sum of (a) the Adjusted Eurodollar Rate (after giving effect to any Adjusted Eurodollar Rate floor) that would be payable on such day for a Eurodollar Rate Loan with a one-month interest period plus (b) 1.00% per annum ; provided , however , that notwithstanding the foregoing, the Base Rate shall at no time be less than 2.00% per annum . Any change in the Base Rate due to a change in the Prime Rate or the NYFRB Rate shall be effective on the effective day of such change in the Prime Rate or the NYFRB Rate, respectively.
Base Rate Loan means a Loan bearing interest at a rate determined by reference to the Base Rate.
Beneficiary means each Agent and each Lender.
Board of Governors means the Board of Governors of the United States Federal Reserve System, or any successor thereto.
Borrower as defined in the preamble hereto.
Borrower Assignment Agreement means an Assignment and Assumption Agreement substantially in the form of Annex C to Exhibit I, with such amendments or modifications as may be approved by Administrative Agent.
Business Day means (i) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close and (ii) with respect to all notices, determinations, fundings and payments in connection with the Adjusted Eurodollar Rate or any Eurodollar Rate Loans, the term Business Day means any day which is a Business Day described in clause (i) and which is also a day for trading by and between banks in Dollar deposits in the London interbank market.
Capital Lease Obligations of any Person means, subject to clause (i) of the proviso to the first sentence of Section 1.2(a), the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
Certificate re Non -Bank Status means a certificate substantially in the form of Exhibit E.
Change in Law means the occurrence, after the Restatement Effective Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer
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Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a Change in Law, regardless of the date enacted, adopted or issued.
Change of Control means, (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person other than Holdings or a wholly owned Subsidiary of Holdings of any Equity Interest in Borrower; (b) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the Restatement Effective Date) other than any retirement or savings plan for employees of Holdings and its Subsidiaries, of Equity Interests representing more than 42.5% of either the aggregate ordinary voting power or the aggregate equity value represented by the issued and outstanding Equity Interests in Holdings; (c) occupation of a majority of the seats (other than vacant seats) on the board of directors of Holdings by Persons who were neither (i) nominated or approved by the board of directors of Holdings, or a committee thereof, nor (ii) appointed by directors so nominated or approved; or (d) the occurrence of any change of control (or similar event, however denominated) under and as defined in any indenture or other agreement or instrument evidencing, governing the rights of the holders of or otherwise relating to any Material Indebtedness. Notwithstanding the foregoing, the acquisition by a financial institution of Equity Interests in Holdings acquired by such financial institution pursuant to an underwriting arrangement in the ordinary course of its business shall not constitute a Change of Control.
Class (i) with respect to Lenders, refers to whether such Lenders hold a particular Class of Loans, and (ii) with respect to Loans, refers to whether such Loans are Initial Loans, Extended Loans of a given Extension Series or Refinancing Loans of a given Refinancing Series.
Collateral means, collectively, all of the real, personal and mixed property (including Equity Interests) in which Liens are purported to be granted pursuant to the Collateral Documents as security for the Obligations.
Collateral Agent means Wilmington Trust, National Association, together with its permitted successors in such capacity pursuant to the Pari Passu Intercreditor Agreement.
Collateral Documents means the Pledge and Security Agreement, the Mortgages, the Intellectual Property Security Agreements, the Intercreditor Agreements, and all other instruments, documents and agreements delivered by or on behalf of any Credit Party pursuant to this Agreement or any of the other Credit Documents in order to grant to Collateral Agent, for the benefit of Term Loan/Notes Secured Parties, a Lien on any real, personal or mixed property of that Credit Party as security for the Obligations.
Collateral Questionnaire means a certificate in form reasonably satisfactory to Administrative Agent that provides information with respect to the personal or mixed property of each Credit Party.
Commitment means the commitment of a Lender to make or otherwise fund an Initial Loan and Commitments means such commitments of all Lenders in the aggregate. The amount of each Lenders Commitment, if any, is set forth on Appendix A or in the applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Commitments as of the Restatement Effective Date is $1,688,125,000 minus the aggregate principal amount of Converting Loans.
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Compliance Certificate means a Compliance Certificate substantially in the form of Exhibit C.
Connection Income Taxes means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
Consolidated Adjusted EBITDA means, for any period, Consolidated Net Income for such period (disregarding any non-cash charges or credits related to any Plan, any non-qualified supplemental pension plan maintained, sponsored or contributed to by Holdings or any ERISA Affiliate, or any Multiemployer Plan) plus :
(a) without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of:
(i) consolidated interest expense for such period, plus
(ii) consolidated financing costs associated with securitization programs for such period, plus
(iii) consolidated income tax expense for such period, plus
(iv) all amounts attributable to depreciation and amortization for such period, plus
(v) any extraordinary, unusual or non-recurring charges for such period, plus
(vi) any fees, expenses or charges related to any equity offering, permitted acquisition or other investment, Asset Sale or other disposition, or incurrence or refinancing of (or amendment or other modification to the documents evidencing any) Indebtedness (in each case, whether or not successful or consummated) permitted to be made or incurred hereunder, including fees, expenses or charges relating to the Transactions, plus
(vii) any premium, make-whole or penalty payments that are required to be made in connection with any prepayment of Indebtedness, plus
(viii) any non-cash charges for such period; provided that in the event Holdings or any Subsidiary makes any cash payment in respect of any such non-cash charge, such cash payment shall be deducted from Consolidated Adjusted EBITDA in the period in which such payment is made, plus
(ix) the amount of cash restructuring charges and curtailments and modifications to pension and post-retirement employee benefit plans incurred during such period;
and minus :
(b) without duplication and to the extent included in determining such Consolidated Net Income, the sum of:
(i) any extraordinary, unusual or non-recurring gains for such period, plus
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(ii) non-cash gains for such period, plus
(iii) any gains resulting from repurchases of Loans pursuant to Section 10.6(i);
all determined on a consolidated basis in accordance with GAAP.
Consolidated Capital Expenditures means, for any period, with respect to Holdings, the aggregate of all expenditures by Holdings and its consolidated Subsidiaries for the acquisition or leasing (pursuant to Capital Lease Obligations) of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) that are required to be capitalized under GAAP on a consolidated balance sheet of Holdings and its consolidated Subsidiaries; provided , however , that Consolidated Capital Expenditures for Holdings and its consolidated Subsidiaries shall not include: (a) expenditures to the extent they are made with proceeds of the issuance of Equity Interests of Holdings, (b) expenditures with proceeds of insurance settlements, condemnation awards, eminent domain and other settlements in respect of lost (including through eminent domain), destroyed, damaged or condemned assets, equipment or other property, (c) interest capitalized during such period to the extent included in Consolidated Cash Interest Expense, (d) expenditures that are accounted for as capital expenditures of Holdings or any consolidated Subsidiary and that actually are (i) paid for by a third party (excluding Holdings or any consolidated Subsidiary thereof) and for which neither Holdings nor any Subsidiary has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such third party or any other Person (whether before, during or after such period) or (ii) contractually required to be, and are, reimbursed to the Credit Parties in cash by a third party (including landlords) during such period, (e) the book value of any asset owned by Holdings or any of its consolidated Subsidiaries prior to or during such period to the extent that such book value is included as a capital expenditure during such period as a result of Holdings or such consolidated Subsidiary reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period, (f) the purchase price of equipment purchased during such period to the extent the consideration therefor consists of any combination of (i) used or surplus equipment traded in at the time of such purchase and (ii) the proceeds of a sale of used or surplus equipment made within 90 days of the time of such purchase, in each case, in the ordinary course of business, and (g) expenditures to the extent constituting any portion of the purchase price of an acquisition of, or investment in, a business or line of business permitted under Section 6.6, which, in accordance with GAAP, are or should be capitalized under GAAP.
Consolidated Cash Interest Expense means, for any period, Consolidated Interest Expense during such period (excluding interest which is payable in kind, but including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers acceptance financing and net costs under Swap Agreements entered into to hedge interest rates to the extent such net costs are allocable to such period in accordance with GAAP (for purposes of clarification, excluding fees and expenses paid in connection with the establishment of this Agreement)), all determined on a consolidated basis in accordance with GAAP.
Consolidated Current Assets means, as at any date of determination, the total assets of a Person and its Subsidiaries on a consolidated basis that may properly be classified as current assets in conformity with GAAP, excluding cash and Permitted Investments.
Consolidated Current Liabilities means, as at any date of determination, the total liabilities of a Person and its Subsidiaries on a consolidated basis that may properly be classified as current liabilities in conformity with GAAP, excluding the current portion of long term debt.
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Consolidated Excess Cash Flow means, for any period, an amount (if positive) equal to:
(a) the sum, without duplication, of the amounts for such period of
(i) Consolidated Net Income, plus ,
(ii) to the extent reducing Consolidated Net Income, the sum, without duplication, of amounts for non-cash charges, including for depreciation and amortization (excluding any such non-cash charge to the extent that it represents an accrual or reserve for potential cash charge in any future period or amortization of a prepaid cash gain that was paid in a prior period), plus
(iii) the Consolidated Working Capital Adjustment;
minus :
(b) non-cash gains increasing Consolidated Net Income for such period;
minus :
(c) the sum, without duplication and to the extent not included in the determination of Consolidated Net Income, of the amounts for such period paid from Internally Generated Cash of:
(i) scheduled repayments and mandatory prepayments of Indebtedness for borrowed money (excluding repayments or prepayments of any revolving credit facility, unless there is an equivalent permanent reduction in commitments thereunder) and scheduled repayments and mandatory prepayments of Capital Lease Obligations (excluding any interest expense portion thereof), plus
(ii) Consolidated Capital Expenditures, plus
(iii) payments in respect of long-term liabilities other than Indebtedness, plus
(iv) investments and acquisitions permitted to be made under Section 6.6, plus
(v) Restricted Payments made pursuant to clauses (i), (j), (k) or (l) of Section 6.4, plus
(vi) the aggregate amount of all other operating expenditures, plus
(vii) the aggregate amount of fees, expenses and charges related to any equity offering, permitted acquisition or other investment, Asset Sale or other disposition, or incurrence or refinancing of (or amendment or other modification to the documents evidencing any) Indebtedness (in each case, whether or not successful or consummated) permitted to be made or incurred hereunder, including fees, expenses and charges relating to the Transactions, plus
(viii) the aggregate amount of any premium, make-whole or penalty payments that are required to be made in connection with any prepayment of Indebtedness.
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Consolidated Fixed Charges means, for any period, without duplication, the sum of (a) Consolidated Cash Interest Expense for such period, (b) the aggregate amount of scheduled principal payments during such period in respect of Long-Term Indebtedness (including Capital Lease Obligation payments) of Holdings and its consolidated Subsidiaries (but excluding (i) payments made by Holdings or any Subsidiary to Holdings or a Subsidiary, (ii) payments of principal to the extent made with the proceeds of Long-Term Indebtedness or the proceeds of any issuance or sale of Equity Interests in Holdings, in each case incurred, issued or sold, as applicable, to refinance such principal and (iii) repayments of principal of the loans under the ABL Credit Agreement), (c) the aggregate amount of principal payments paid in cash during such period (other than scheduled principal payments and other than (i) payments made by Holdings or any Subsidiary to Holdings or a Subsidiary, (ii) payments of principal to the extent made with the proceeds of Long-Term Indebtedness incurred to refinance such principal and (iii) repayments of principal of the loans under the ABL Credit Agreement made during such period) in respect of Long-Term Indebtedness (including Capital Lease Obligation payments) of Holdings and the Subsidiaries, to the extent that such payments reduced any scheduled principal payments that would have become due within one year after the date of the applicable payment, and (d) regular scheduled dividends paid in cash in respect of the common stock of Holdings and scheduled mandatory Restricted Payments paid in cash.
Consolidated Interest Expense means, for any period, the interest expense (including imputed interest expense in respect of Capital Lease Obligations) of Holdings and the Subsidiaries for such period, including any interest that is capitalized rather than expensed for such period.
Consolidated Net Income means, for any period, the net income or loss of Holdings and the Subsidiaries for such period determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or loss) of any Person (other than Holdings) in which any other Person (other than Holdings or any Subsidiary or any director holding qualifying shares in compliance with applicable law) owns an Equity Interest, except to the extent of the amount of dividends or other distributions actually paid to Holdings or any of the Subsidiaries during such period, and (b) the income or loss of any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with Holdings or any Subsidiary or the date that such Persons assets are acquired by Holdings or any Subsidiary.
Consolidated Total Debt means, as at any date of determination, (a) the aggregate stated balance sheet amount of all Indebtedness of Holdings and its Subsidiaries (or, if higher, the par value or stated face amount outstanding of all such Indebtedness (other than zero coupon Indebtedness)) determined on a consolidated basis in accordance with GAAP, minus (b) the aggregate stated balance sheet amount of cash and cash equivalents (in each case, free and clear of all Liens, other than Permitted Encumbrances and Liens permitted under Section 6.2(a), 6.2(m) and 6.2(t) in excess of the Operating Cash Threshold.
Consolidated Working Capital means, as at any date of determination, the excess of Consolidated Current Assets of Holdings and its Subsidiaries over Consolidated Current Liabilities of Holdings and its Subsidiaries.
Consolidated Working Capital Adjustment means, for any period on a consolidated basis, the amount (which may be a negative number) by which Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end of such period. In calculating the Consolidated Working Capital Adjustment there shall be excluded the effect of reclassification during such period of current assets to long term assets and current liabilities to long term liabilities and the effect of any acquisition of all or substantially all of the assets of, all of the Equity Interests of, or a business line or unit or a division of any Person during such period; provided that there
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shall be included with respect to any such acquisition during such period an amount (which may be a negative number) by which the Consolidated Working Capital acquired in such acquisition as at the time of such acquisition exceeds (or is less than) Consolidated Working Capital at the end of such period.
Contractual Obligation means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
Contributing Guarantors as defined in Section 7.2.
Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. Controlling and Controlled have meanings correlative thereto.
Conversion/Continuation Date means the effective date of a continuation or conversion, as the case may be, as set forth in the applicable Conversion/Continuation Notice.
Conversion/Continuation Notice means a Conversion/Continuation Notice substantially in the form of Exhibit A-2.
Converting Lender means each Original Lender that has elected to convert its Original Loans to Loans pursuant to the Restatement Agreement.
Converting Loans means each Original Loan held by a Lender that is a Converting Lender (or, if less, the amount notified to such Converting Lender by Administrative Agent prior to the Restatement Effective Date).
Counterpart Agreement means a Counterpart Agreement substantially in the form of Exhibit G delivered by a Credit Party pursuant to Section 5.10.
Credit Date means the date of a Credit Extension.
Credit Document means any of the Restatement Agreement, this Agreement, the Notes, if any, the Collateral Documents, and any other documents, certificates, instruments or agreements executed and delivered by or on behalf of a Credit Party for the benefit of any Agent or any Lender in connection herewith on or after the date hereof that specifically identifies itself as a Credit Document.
Credit Extension means the making of a Loan.
Credit Party means Borrower and the Guarantors.
Credit Rating means, in the case of Moodys, the Corporate Family Rating (or its equivalent) assigned by Moodys to Holdings and, in the case of S&P, the Issuer Credit Rating assigned by S&P to Borrower.
Customary Mandatory Prepayment Terms means, in respect of any Indebtedness, terms requiring any obligor in respect of such Indebtedness to Pay (or offer to Pay) such Indebtedness (a) in the event of a change in control (or similar event), (b) in the event of a fundamental change (or similar event) that is customary at the time of issuance (a Fundamental Change ) and (c) in the event of an asset sale (or similar event, including condemnation or casualty), provided that such mandatory
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Payment (or offer to Pay) in the event of an asset sale (or similar event, including condemnation or casualty) (i) can be avoided pursuant to customary reinvestment rights (it being understood that the terms of such Indebtedness may include additional customary means of avoiding the applicable Payment) and (ii) shall not apply to the sale or disposition of Collateral unless the Payment (or offer to Pay) may be avoided through reinvestment or prepayment of the Obligations or other Indebtedness secured by such Collateral on a pari passu or senior basis with the Loans. Holdings or Borrower may provide a certificate of a Financial Officer to the effect that the terms of any (x) reinvestment rights or other means of avoiding the applicable Payment referred to in clause (c)(i) above or (y) Fundamental Change are customary, and such determination shall be conclusive unless Administrative Agent shall have objected to such determination within five Business Days following its receipt of such certificate and the draft documentation governing such Indebtedness.
Debtor Relief Laws means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
Default means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.
Defaulting Lender means subject to Section 2.22(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies Administrative Agent and Borrower in writing that such failure is the result of such Lenders determination that one or more conditions precedent to funding (which conditions precedent, together with the applicable default, if any, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified Borrower or Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lenders obligation to fund a Loan hereunder and states that such position is based on such Lenders determination that a condition precedent to funding (which condition precedent, together with the applicable default, if any, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by Administrative Agent or Borrower, to confirm in writing to Administrative Agent and Borrower that it will comply with its prospective funding obligations hereunder ( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and Borrower), or (d) Administrative Agent has received notification that such Lender is, or has a direct or indirect parent company that is, (i) insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors or (ii) the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its direct or indirect parent company, or such Lender or its direct or indirect parent company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment or (iii) subject to a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.
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Deposit Account means any deposit account, within the meaning of Article 9 of the UCC, of any Credit Party.
Designated Non-Cash Consideration means the fair market value (as determined in good faith by Borrower) of non-cash consideration received by Holdings, Borrower or any Subsidiary of Holdings in connection with a disposition made pursuant to clause (o), (p) or (s) of Section 6.7 that is so designated as Designated Non-Cash Consideration pursuant to a certificate of an Authorized Officer of the Borrower, less the amount of cash or cash equivalents received in connection with a subsequent sale of such Designated Non-Cash Consideration.
Disclosed Matters means the actions, suits and proceedings and the environmental matters disclosed in Schedule 4.14.
Disqualified Equity Interests means any Equity Interest that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable, either mandatorily or at the option of the holder thereof), or upon the happening of any event or condition:
(a) matures or is mandatorily Payable (other than solely for Equity Interests that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests), whether pursuant to a sinking fund obligation or otherwise, prior to the date that is 90 days after the Latest Maturity Date (measured as of the time that such Equity Interest is issued);
(b) is convertible or exchangeable at the option of the holder thereof for Indebtedness or Equity Interests (other than solely for Equity Interests that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests), prior to the date that is 90 days after the Latest Maturity Date (measured as of the time that such Equity Interest is issued); or
(c) is Payable or is required to be Paid (other than solely for Equity Interests that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests) by Holdings or any of its Affiliates, in whole or in part, at the option of the holder thereof, prior to the date that is 90 days after the Latest Maturity Date (measured as of the time that such Equity Interest is issued);
provided that clauses (a) and (c) hereto (other than the exclusions set forth therein) shall not apply to any requirement of mandatory Payment that is contingent upon (i) an asset sale (or similar event, including condemnation or casualty), the incurrence of Indebtedness or a change of control (or similar event) if such mandatory Payment can be avoided through Payment of Loans or through investments by Holdings or any of its Subsidiaries in assets to be used in their businesses or if such mandatory Payment is contingent upon prior payment in full of the Obligations and (ii) in addition to clause (i) above, in the case of a convertible security or a mandatorily convertible unit, a Fundamental Change, and provided , further , that Equity Interests issued to any employee benefit plan, or by any such plan to any employees of Holdings or any of its Subsidiaries, shall not constitute Disqualified Equity Interests solely because they may be required to be Paid in order to satisfy applicable statutory or regulatory obligations.
Disqualified Lenders means:
(a) those Persons identified by Borrower in writing to Administrative Agent prior to the Restatement Effective Date as direct competitors of Borrower or any of its Subsidiaries that is an operating company (it being understood and agreed that any bona fide debt funds of any financial investors in such operating company shall not constitute a direct competitor or Affiliate
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thereof for purposes of this clause (a)), or any of their respective Affiliates to the extent that such Affiliates (i) are clearly identifiable as such on the basis of their name or (ii) are identified in writing by the Borrower to Administrative Agent from time to time;
(b) those Persons identified by Borrower in writing to Administrative Agent from time to time after the Restatement Effective Date that are direct competitors of Borrower and its Subsidiaries after the Restatement Effective Date, and are approved by Administrative Agent and which Person is an operating company; and
(c) any other Person that has been identified in writing to Administrative Agent by Borrower prior to the Restatement Effective Date, and any Affiliates of such Person to the extent that such Affiliates (i) are clearly identifiable as such on the basis of their name or (ii) are identified in writing by the Borrower to Administrative Agent from time to time.
Any supplement to the list of Disqualified Lenders pursuant to clauses (a), (b) or (c) above shall be sent by the Borrower to JPMDQ_Contact@jpmorgan.com and such supplement shall take effect 3 Business Days after such notice is received by Administrative Agent (it being understood that no such supplement to the list of Disqualified Lenders shall operate to disqualify any Person that is already a Lender or that is party to a pending trade). Administrative Agent shall, upon request of any Lender or any prospective assignee, make available the list of Disqualified Lenders. Notwithstanding the foregoing or anything in this Agreement to the contrary, each Credit Party and the Lenders acknowledge and agree that the neither Administrative Agent nor any other Agent will have any responsibility or obligation to determine whether any Lender or potential Lender is a Disqualified Lender and neither Administrative Agent nor any other Agent will have any liability with respect to any assignment made to a Disqualified Institution.
Dollars and the sign $ mean the lawful money of the United States of America.
Domestic Subsidiary means any Subsidiary organized under the laws of the United States of America, any state thereof or the District of Columbia.
EEA Financial Institution means (a) any institution established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Eligible Assignee means any Person other than a natural Person that is (i) a Lender, an affiliate of any Lender or a Related Fund or (ii) a commercial bank, insurance company, investment or mutual fund or other entity that is an accredited investor (as defined in Regulation D under the Securities Act) and which extends credit or buys loans in the ordinary course of business; provided , no Defaulting Lender, Disqualified Lender, natural person, Credit Party or Affiliate of a Credit Party shall be an Eligible Assignee (except for purposes of assignments to Borrower pursuant to Section 10.6(i)).
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Employee Benefit Plan means any employee benefit plan as defined in Section 3(3) of ERISA which is or was sponsored, maintained or contributed to by, or required to be contributed to by, Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates.
Environment means ambient air, surface water, groundwater, drinking water, land surface, sediments, and subsurface strata & natural resources such as wetlands, flora and fauna.
Environmental Claim means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or legally enforceable directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with any actual or alleged violation of any Environmental Law; (ii) in connection with the presence, Release or threat of Release of any Hazardous Material or Hazardous Materials Activity; or (iii) in connection with any actual or alleged damage, injury, threat or harm to natural resources, the Environment, or as relates to exposure to Hazardous Materials, human health or safety.
Environmental Laws means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the Environment, preservation or reclamation of natural resources, the management, Release or threatened Release of any Hazardous Material or to health and safety matters.
Environmental Liability means any liability, contingent or otherwise (including any liability for damages, costs of environmental investigation or remediation, fines, penalties or indemnities), of Holdings or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the Environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
Equity Interests means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing.
ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the final rules and regulations promulgated thereunder, as from time to time in effect.
ERISA Affiliate means any trade or business (whether or not incorporated) that, together with Holdings, is treated as a single employer under Section 414(b) or (c) of the Internal Revenue Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Internal Revenue Code, is treated as a single employer under Section 414 of the Internal Revenue Code.
ERISA Event means (a) any reportable event, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) a failure by any Plan to satisfy the minimum funding standard (as defined in Section 412 of the Internal Revenue Code or Section 302 of ERISA) applicable to such Plan, whether or not waived; (c) the filing pursuant to Section 412(c) of the Internal Revenue Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) a determination that any Plan is, or is expected to be, in at-risk status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Internal Revenue Code); (e) the incurrence by Holdings or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (f)
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the receipt by Holdings or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans (other than a termination initiated by Holdings or an ERISA Affiliate) or to appoint a trustee to administer any Plan; (g) the incurrence by Holdings or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Multiemployer Plan or the withdrawal from a Plan subject to Section 4063 of ERISA during a plan year in which such entity was a substantial employer (as defined in Section 4001(a)(2) of ERISA); (h) the receipt by Holdings or any ERISA Affiliate from any Multiemployer Plan of any notice concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent, within the meaning of Title IV of ERISA or in endangered or critical status (within the meaning of Section 432 of the Internal Revenue Code or Section 305 of ERISA); (i) the occurrence of a non-exempt prohibited transaction (as defined in Section 4975 of the Internal Revenue Code or Section 406 of ERISA) with respect to which Holdings or any ERISA Affiliate is a disqualified person (within the meaning of Section 4975 of the Internal Revenue Code) or a party in interest (within the meaning of Section 406 of ERISA) or could otherwise be liable; or (j) the imposition of a Lien upon the assets of Holdings or any ERISA Affiliate pursuant to the Internal Revenue Code or ERISA with respect to any Plan; or (k) the disqualification by the Internal Revenue Service of any Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) under Section 401(a) of the Internal Revenue Code.
EU Bail-In Legislation Schedule means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
Eurodollar Rate Loan means a Loan bearing interest at a rate determined by reference to the Adjusted Eurodollar Rate.
Event of Default means each of the conditions or events set forth in Section 8.1.
Exchange Act means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.
Excluded Immaterial Subsidiary means, at any date of determination, any subsidiary of Holdings that, taken together with all Excluded Immaterial Subsidiaries that are designated as Excluded Subsidiaries, did not represent more than 5% of the total Net Tangible Assets of Holdings and its Subsidiaries.
Excluded Subsidiary means, at any date, any Realty Company that is not a Material Subsidiary as of such date and any Excluded Immaterial Subsidiary designated by the Borrower in writing to the Administrative Agent. For purposes of determining whether a Realty Company is a Material Subsidiary or such other Excluded Subsidiary is an Excluded Immaterial Subsidiary, the computations required by the definition of the terms Material Subsidiary and Excluded Immaterial Subsidiary, as applicable, shall be made including the assets of all Excluded Subsidiaries.
Excluded Taxes means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment
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request by the Borrower under Section 2.23) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.20, amounts with respect to such Taxes were payable either to such Lenders assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipients failure to comply with Section 2.20(c), and (d) any U.S. federal withholding Taxes imposed under FATCA.
Existing Loans as defined in Section 2.25(c)(ii).
Extended Maturity Date as defined in Section 2.25(a).
Extended Loans as defined in Section 2.25(c)(ii).
Extension as defined in Section 2.25(a).
Extension Amendments as defined in Section 2.25(f).
Extension Offer as defined in Section 2.25(a).
Extension Series means Extended Loans having the same terms and specified to constitute a single Class of Loans for purposes of this Agreement in the applicable Extension Amendment.
Facility means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by Holdings or any of its Subsidiaries or any of their respective predecessors or Affiliates.
Fair Share as defined in Section 7.2.
Fair Share Contribution Amount as defined in Section 7.2.
FATCA means Sections 1471 through 1474 of the Internal Revenue Code as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) or any intergovernmental agreement (and any related laws or legislation) implementing the foregoing.
Federal Funds Effective Rate means, for any day, the rate calculated by the NYFRB based on such days federal funds transactions by depositary institutions, as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate.
Financial Officer means the chief financial officer, principal accounting officer, vice president-chief accountant, treasurer, assistant treasurer or controller of Holdings or Borrower.
Financial Plan as defined in Section 5.1(h).
First Priority means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is subject, other than any Permitted Lien.
Fiscal Quarter means a fiscal quarter of any Fiscal Year.
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Fiscal Year means the fiscal year of Holdings and its Subsidiaries ending on the Saturday closest to January 31 of each calendar year.
Fitch means Fitch, Inc.
Fixed Charge Coverage Ratio means, for any Test Period, the ratio, determined as of the end of such Test Period, of (a) Consolidated Adjusted EBITDA for such Test Period minus (i) Consolidated Capital Expenditures paid in cash by Holdings and its consolidated Subsidiaries during such Test Period (other than those financed with Long-Term Indebtedness (other than Loans) or with the proceeds of Sale/Leaseback Transactions entered into in accordance with Section 6.10, in each case to the extent such Indebtedness or Sale/Leaseback Transaction is incurred or consummated in connection with and for the specific purpose of financing such Consolidated Capital Expenditure) and (ii) the aggregate amount of income Taxes paid in cash by Holdings and its consolidated Subsidiaries during such Test Period, to (b) Consolidated Fixed Charges for such Test Period.
Flood Hazard Property means any Real Estate Asset subject to a mortgage in favor of Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, and located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.
Flood Certificate means a Standard Flood Hazard Determination Form of the Federal Emergency Management Agency and any successor Governmental Authority performing a similar function.
Flood Program means, collectively, (i) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
Flood Zone means areas having special flood hazards as described in the Flood Program.
Foreign Subsidiary means any Subsidiary that is not a Domestic Subsidiary.
Former Agent as defined in the recitals hereto.
Fundamental Change as defined in the definition of Customary Mandatory Prepayment Terms.
Funding Guarantors as defined in Section 7.2.
Funding Notice means a notice substantially in the form of Exhibit A-1.
GAAP means, subject to the provisions of Section 1.2, United States generally accepted accounting principles in effect as of the date of determination thereof.
Governmental Authority means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
Grantor as defined in the Pledge and Security Agreement.
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guarantee of or by any Person (the guarantor ) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the primary obligor ) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided that the term guarantee shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any guarantee at any time shall be deemed to be (i) an amount equal to the stated or determinable amount at such time of the related primary obligation, or portion thereof, in respect of which such guarantee is made or (ii) if the amount of such primary obligation is not stated or determinable at such time, the amount of the guarantee shall be such guarantors maximum reasonably anticipated liability in respect thereof; provided that, if the terms of such guarantee limit the amount for which such guarantor may be liable thereunder to a maximum stated or determinable amount, the amount of such guarantee shall not in any event exceed such maximum stated or determinable amount.
Guaranteed Obligations as defined in Section 7.1.
Guarantor means each of (i) Holdings, (ii) each wholly-owned Domestic Subsidiary of Borrower that is a Material Subsidiary, (iii) each wholly-owned Domestic Subsidiary of Borrower that is a Non-Material Subsidiary and is required to satisfy the requirements of Section 5.10 in order for the Credit Parties to remain in compliance with the provisions of Section 6.5, (iv) each Subsidiary that guarantees or is a borrower with respect to the obligations under the ABL Credit Agreement, and (v) any Subsidiary of Holdings that is designated by Borrower to become a party to this Agreement and the applicable Collateral Documents for the purpose of granting a security interest in such Subsidiarys Collateral, provided that Borrower shall cause the requirements of Section 5.10(a) to be satisfied with respect to such Subsidiary immediately upon such Subsidiary becoming a Guarantor. Notwithstanding anything contained in this Agreement to the contrary, under no circumstances shall a Foreign Subsidiary, or any Domestic Subsidiary substantially all of the assets of which consist of Equity Interests in one or more Foreign Subsidiaries, be considered or required to become a Guarantor under this Agreement unless either (x) such Foreign Subsidiary or Domestic Subsidiary guarantees or is a borrower with respect to the obligations under the ABL Credit Agreement or (y) Borrower so agrees.
Guarantor Subsidiary means each Guarantor other than Holdings.
Guaranty means the guaranty of each Guarantor set forth in Section 7.
Hazardous Materials means all explosive or radioactive materials, substances or wastes and all hazardous or toxic materials, substances, wastes or other pollutants, including petroleum or petroleum distillates or by-products, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other materials, substances or wastes of any nature regulated as hazardous, toxic, a pollutant, a contaminant, or words of similar import pursuant to any Environmental Law.
Hazardous Materials Activity means any past or current activity, event or occurrence conducted by Holdings or any of its Subsidiaries involving any Hazardous Materials, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release,
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discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective action or response action with respect to any of the foregoing.
Highest Lawful Rate means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow.
Historical Financial Statements means as of the Restatement Effective Date, the audited financial statements of Holdings and its Subsidiaries, for the immediately preceding three Fiscal Years, and the unaudited financial statements of Holdings and its Subsidiaries, for each Fiscal Quarter commencing after the most recently ended Fiscal Year and ending at least 45 days prior to the Restatement Effective Date, consisting of balance sheets and the related consolidated statements of income, stockholders equity and cash flows for such Fiscal Years and Fiscal Quarters, respectively.
Holdings as defined in the preamble hereto.
Impacted Interest Period as defined in the definition of Adjusted Eurodollar Rate.
Increased-Cost Lender as defined in Section 2.23.
Indebtedness of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding (i) accounts payable incurred in the ordinary course of business, (ii) any earn-out obligation contingent upon performance of an acquired business, except to the extent such obligation would be required to be reflected on a consolidated balance sheet (without giving effect to the footnotes thereto) of Holdings prepared in accordance with GAAP and (iii) accruals for payroll and other liabilities accrued in the ordinary course of business), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed ( provided that with respect to Indebtedness that is nonrecourse to the credit of that Person, such Indebtedness shall be taken into account only to the extent of the lesser of (x) the fair market value of the asset(s) subject to such Lien and (y) the amount of Indebtedness secured), (f) all guarantees by such Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in respect of bankers acceptances, (j) all Off-Balance Sheet Liabilities and (k) Disqualified Equity Interests. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Persons ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. For the avoidance of doubt, any preferred Equity Interests (other than any Disqualified Equity Interests) of any Person that are convertible into common Equity Interests (other than any Disqualified Equity Interests) of such Person shall not constitute Indebtedness of such Person. For the avoidance of doubt, obligations in respect of Swap Agreements shall not constitute Indebtedness.
Indemnified Liabilities means, collectively, any and all liabilities, obligations, losses, damages (including natural resource damages), penalties, claims, actions, judgments, suits, costs
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(including the costs of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation or other response action necessary to remove, remediate, clean up or abate any Hazardous Materials), expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of one counsel for all Indemnitees taken as a whole and, if reasonably necessary, a single local counsel for all Indemnitees taken as a whole in each relevant material jurisdiction and, solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction to each group of affected Indemnitees similarly situated taken as a whole, in connection with any investigative, administrative or judicial proceeding or hearing commenced or threatened by any Person, whether or not any such Indemnitee shall be designated as a party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect, special or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of (i) this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby (including the Lenders agreement to make Credit Extensions, the syndication of the credit facilities provided for herein or the use or intended use of the proceeds thereof, any amendments, waivers or consents with respect to any provision of this Agreement or any of the other Credit Documents, or any enforcement of any of the Credit Documents (including any sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty)); or (ii) any Environmental Claim, and Environmental Liabilities or any Hazardous Materials Activity relating to or arising from, directly or indirectly, any past or present activity, operation, land ownership, or practice of Holdings or any of its Subsidiaries.
Indemnified Taxes means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Credit Document and (b) to the extent not otherwise described in (a), Other Taxes.
Indemnitee as defined in Section 10.3(a).
Initial Appraisal as defined in Section 5.16(a)(v).
Initial Loan means a Loan made by a Lender to Borrower pursuant to Section 2.1(a), including, for the avoidance of doubt, a Converting Loan converted to an Initial Loan.
Installment as defined in Section 2.12.
Intellectual Property as defined in the Pledge and Security Agreement.
Intellectual Property Security Agreements has the meaning assigned to that term in the Pledge and Security Agreement.
Intercreditor Agreements means the ABL Intercreditor Agreement, the Pari Passu Intercreditor Agreement and the Junior Priority Intercreditor Agreement.
Interest Payment Date means with respect to (i) any Loan that is a Base Rate Loan, the last Business Day of March, June, September and December of each year, commencing on the first such date to occur after the Restatement Effective Date and the final maturity date of such Loan; and (ii) any Loan that is a Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan; provided , in the case of each Interest Period of longer than three months Interest Payment Date shall also include each date that is three months, or an integral multiple thereof, after the commencement of such Interest Period.
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Interest Period means, in connection with a Eurodollar Rate Loan, an interest period of one, two, three or six-months, as selected by Borrower in the applicable Funding Notice or Conversion/Continuation Notice, (i) initially, commencing on the Credit Date or Conversion/Continuation Date thereof, as the case may be; and (ii) thereafter, commencing on the day on which the immediately preceding Interest Period expires; provided , (a) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding Business Day; (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (c) of this definition, end on the last Business Day of a calendar month; (c) no Interest Period with respect to any portion of any Class of Loans shall extend beyond such Classs Maturity Date; and (d) subject to the foregoing clauses (a) through (c), the initial Interest Period shall commence on the Restatement Effective Date and end on August 31, 2016.
Interest Rate Determination Date means, with respect to any Interest Period, the date that is two Business Days prior to the first day of such Interest Period.
Internal Revenue Code means the Internal Revenue Code of 1986, as amended to the date hereof and from time to time hereafter, and any successor statute.
Internally Generated Cash means, with respect to any period, any cash of Holdings or any Subsidiary generated during such period, excluding Net Asset Sale Proceeds, Net Insurance/Condemnation Proceeds and any cash that is generated from an incurrence of Indebtedness, an issuance of Equity Interests or a capital contribution.
Interpolated Rate means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period for which the LIBO Screen Rate is available that is shorter than the Impacted Interest Period; and (b) the LIBO Screen Rate for the shortest period for which that LIBO Screen Rate is available that exceeds the Impacted Interest Period, in each case, at such time.
JC Penney Properties means J. C. Penney Properties, Inc., a Delaware corporation.
JCP Real Estate Holdings means JCP Real Estate Holdings, Inc., a Delaware corporation.
Joint Bookrunners means each of JPMorgan, Barclays Bank PLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells Fargo Securities, LLC and Goldman Sachs Lending Partners LLC.
Joint Lead Arrangers means each of JPMorgan, Barclays Bank PLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells Fargo Securities, LLC and Goldman Sachs Lending Partners LLC.
JPMorgan as defined in the preamble hereto.
Junior Priority Intercreditor Agreement means an intercreditor agreement substantially in the form of Exhibit B to the Pari Passu Intercreditor Agreement.
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Latest Maturity Date means, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, in each case as extended pursuant to Section 2.24 or 2.25, as the case may be, from time to time.
Leasehold Property means any leasehold interest of any Credit Party as lessee under any lease of real property.
Lender means each financial institution listed on the signature pages to the Restatement Agreement (including each Converting Lender), any other Person that becomes a party hereto pursuant to an Assignment Agreement and any Additional Lender.
LIBO Screen Rate as defined in the definition of Adjusted Eurodollar Rate.
Lien means with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.
Loan means an Initial Loan, an Extended Loan or a Refinancing Loan.
Loan Exposure means, with respect to any Lender, as of any date of determination, the sum of (i) the outstanding principal amount of the Loans of such Lender and (ii) the outstanding principal amount of such Lenders unfunded Commitment which has not expired or terminated in accordance with the terms of this Agreement; provided , at any time prior to the making of any Loan, the Loan Exposure of any Lender shall be equal to such Lenders Commitment.
Long-Term Indebtedness means any Indebtedness that, in accordance with GAAP, constitutes (or, when incurred, constituted) a long-term liability.
Margin Stock as defined in Regulation U.
Marketing Materials means the Confidential Information Memorandum dated June 2016.
Material Adverse Effect means (a) a materially adverse effect on the business, assets, operations or condition of Holdings and its Subsidiaries, taken as a whole, (b) a material impairment of the ability of the Credit Parties to perform their payment obligations under the Credit Documents or (c) a material impairment of the rights of or benefits available to the Lenders, Administrative Agent or Collateral Agent under any Credit Document (other than any such impairment of rights or benefits that is primarily attributable to (i) action taken by one or more Lenders, Administrative Agent or Collateral Agent (excluding any action against one or more Lenders, Administrative Agent or Collateral Agent taken by Holdings, Borrower, their respective subsidiaries or their respective affiliates) or (ii) circumstances that are unrelated to Holdings, Borrower, their respective Subsidiaries or their respective Affiliates).
Material Indebtedness means Indebtedness (other than the Loans hereunder), or obligations in respect of one or more Swap Agreements, of any one or more of Holdings and its Subsidiaries in an aggregate principal amount exceeding $100,000,000. For purposes of determining Material Indebtedness, the principal amount of the obligations of Holdings or any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that Holdings or such Subsidiary would be required to pay if such Swap Agreement were terminated at such time.
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Material Real Estate Asset means (a) any Real Estate Asset fee-owned by Borrower or any Subsidiary that is a Guarantor having a fair market value equal to or greater than $2,000,000 as of the Restatement Effective Date based on the Initial Appraisal or, if acquired after the Restatement Effective Date, as of the date of the acquisition thereof, (b) any ground Leasehold Property leased by Borrower or any Subsidiary that is a Guarantor having a fair market value equal to or greater than $2,000,000 as of the Restatement Effective Date based on the Initial Appraisal or, if acquired after the Restatement Effective Date, as of the date of the acquisition thereof and (c) any other Real Estate Asset designated as a Material Real Estate Asset by the Borrower to the Administrative Agent in writing after the Restatement Effective Date; in each case with respect to clauses (a) and (b), other than (i) the real property located on or about 6501 Legacy Drive, Plano, Texas (headquarters) and (ii) any Real Estate Asset (A) located outside of one of the states of the United States of America or the District of Columbia, (B) owned or ground leased directly by Borrower constituting a part of any store, warehouse or distribution center if such Real Estate Asset has a net book value above 0.25% of Stockholders Equity (as determined as of the Restatement Effective Date with respect to Real Estate Assets owned as of the Restatement Effective Date, and in all other cases as determined at the time of such acquisition in accordance with the 1994 Indenture), (C) if any mortgage, pledge and/or security interest of or in such Real Estate Asset (1) is prohibited or restricted by applicable law (with no requirement to obtain the consent of any Governmental Authority), (2) would require a consent, approval, or other authorization of a landlord or other third party if such consent, approval or other authorization cannot be obtained after Borrowers use of commercially reasonable efforts, or (3) could result in material adverse tax consequences (other than payment of mortgage tax, transfer tax or similar taxes related to real property collateral), or (D) where the cost of obtaining any mortgage, pledge and/or security interest of or in such Real Estate Asset would exceed the practical benefit to the Lenders afforded thereby (as reasonably determined by the Borrower and Administrative Agent).
Material Subsidiary means, at any date of determination, any Subsidiary of Holdings that had, as of the date of the most recent financial statements delivered pursuant to Section 5.1 (or prior to delivery of such financial statements, as of the end of the most recent Fiscal Quarter (or Fiscal Year) with respect to which Historical Financial Statements have been delivered), Net Tangible Assets representing more than 3% (or in the case of JCP Realty, LLC and its Subsidiaries, 5%) of the total Net Tangible Assets of Holdings and its Subsidiaries.
Maturity Date means (a) with respect to any (i) Initial Loans, June 23, 2023, (ii) Extended Loans, the date specified in the applicable Extension Amendment as the Maturity Date therefor and (iii) Refinancing Loans, the date specified in the applicable Refinancing Amendment as the Maturity Date therefor and (b) the date on which all Loans shall become due and payable in full hereunder, whether by acceleration or otherwise.
Moodys means Moodys Investors Service, Inc.
Mortgage means a First Priority mortgage, deed of trust, deed to secure debt, security deed, trust deed or spreader of lien, in form and substance reasonably satisfactory to Administrative Agent (and in form satisfactory to Collateral Agent), as it may be amended, restated, supplemented or otherwise modified from time to time.
Multiemployer Plan means a multiemployer plan as defined in Section 4001(a)(3) of ERISA maintained, sponsored or contributed to by Holdings or any ERISA Affiliate.
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Net Asset Sale Proceeds means, with respect to any Asset Sale, an amount equal to: (i) cash payments (including any cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) received by Holdings or any of its Subsidiaries from such Asset Sale, minus (ii) any bona fide direct costs incurred in connection with such Asset Sale, including (a) income or gains taxes payable by the seller as a result of any gain recognized in connection with such Asset Sale, (b) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Loans and Indebtedness that is secured by a Lien on Term Loan/Notes Exclusive Collateral on a basis that is pari passu with or junior to the Loans) that is secured by a Lien on the stock or assets in question and that is required to be repaid under the terms thereof as a result of such Asset Sale and (c) a reasonable reserve for any indemnification payments (fixed or contingent) attributable to sellers indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Holdings or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve to Holdings or any of its Subsidiaries, the amount released shall be considered Net Asset Sale Proceeds.
Net Insurance/Condemnation Proceeds means an amount equal to: (i) any cash payments or proceeds received by Holdings or any of its Subsidiaries (a) under any casualty insurance policy in respect of a covered loss thereunder with respect to an asset constituting Collateral or (b) as a result of the taking of any assets of Holdings or any of its Subsidiaries constituting Collateral by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (ii) (a) any actual and reasonable costs incurred by Holdings or any of its Subsidiaries in connection with the adjustment or settlement of any claims of Holdings or such Subsidiary in respect thereof, and (b) any bona fide direct costs incurred in connection with any sale or transfer of such assets as referred to in clause (i)(b) of this definition, including income taxes payable as a result of any gain recognized in connection therewith.
Net Tangible Assets means the aggregate amount at which the assets of Holdings and its Subsidiaries are reflected, in accordance with GAAP as in effect on the Restatement Effective Date, on the asset side of the consolidated balance sheet, as of the end of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.1 (or prior to delivery of such financial statements, on the asset side of the consolidated balance sheet as of the end of the most recent Fiscal Quarter (or Fiscal Year) with respect to which Historical Financial Statements have been delivered), of Holdings and its Subsidiaries (after deducting all valuation and qualifying reserves relating to such assets), except any of the following described items that may be included among such assets (a) trademarks, patents, goodwill and similar intangibles, (b) investments in and advances to Subsidiaries, and (c) capital lease property rights, after deducting from such amount current liabilities (other than deferred Tax effects) as reflected, in accordance with GAAP as in effect on the Restatement Effective Date, on such balance sheet.
Non-Consenting Lender as defined in Section 2.23.
Non-Converting Loan means each Original Loan other than a Converting Loan.
Non-Core Business Segment means any business segment or separate department of the Credit Parties which contributed less than 5% of Consolidated Adjusted EBITDA of the Credit Parties as of the fiscal year immediately prior to the date of such calculation.
Non-Defaulting Lender means, at any time, each Lender that is not a Defaulting Lender at such time.
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Non-Material Subsidiary means, at any date of determination, any Subsidiary of Holdings that is not a Material Subsidiary.
Non-Public Information means material non-public information (within the meaning of United States federal, state or other applicable securities laws) with respect to Borrower or its Affiliates or their Securities.
Non-Public Lenders means Lenders that wish to receive Non-Public Information with respect to Holdings, its Subsidiaries or their Securities.
Non -US Lender as defined in Section 2.20(c).
Note means a promissory note in the form of Exhibit B, as it may be amended, restated, supplemented or otherwise modified from time to time.
Notice means a Funding Notice or a Conversion/Continuation Notice.
NYFRB means the Federal Reserve Bank of New York.
NYFRB Rate means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term NYFRB Rate means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received to the Administrative Agent from a Federal funds broker of recognized standing selected by it; provided, further , that if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
Obligations means all obligations of every nature of each Credit Party, including obligations from time to time owed to Secured Parties or any of them under any Credit Document, whether for principal, interest (including interest, fees and other amounts which, but for the filing of a petition in bankruptcy with respect to such Credit Party, would have accrued on any Obligation, whether or not a claim is allowed against such Credit Party for such interest, fees and other amounts in the related bankruptcy proceeding), premiums, fees, expenses, indemnification or otherwise.
Obligee Guarantor as defined in Section 7.7.
Off-Balance Sheet Liability of a Person means (a) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person or (b) any indebtedness, liability or obligation under any so-called synthetic lease transaction entered into by such Person. For the avoidance of doubt, any preferred Equity Interests (other than any Disqualified Equity Interests) of any Person that are convertible into common Equity Interests (other than any Disqualified Equity Interests) of such Person shall not constitute an Off-Balance Sheet Liability of such Person.
Operating Cash Threshold means $750,000,000.
Organizational Documents means (i) with respect to any corporation or company, its certificate, memorandum or articles of incorporation, organization or association, as amended, and its by-laws, as amended, (ii) with respect to any limited partnership, its certificate or declaration of limited partnership, as amended, and its partnership agreement, as amended, (iii) with respect to any general partnership, its partnership agreement, as amended, and (iv) with respect to any limited liability company, its articles of organization, as amended, and its operating agreement, as amended. In the event any term
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or condition of this Agreement or any other Credit Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such Organizational Document shall only be to a document of a type customarily certified by such governmental official.
Original Credit Agreement as defined in the recitals hereto.
Original Lender means a Lender that holds Original Loans immediately prior to the Restatement Effective Date.
Original Loan means each Loan as defined in the Original Credit Agreement that is outstanding immediately prior to the Restatement Effective Date.
Other Connection Taxes means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document).
Other Taxes means any and all present or future stamp or documentary Taxes or any other excise or property Taxes, charges or similar levies (and interest, fines, penalties and additions related thereto) arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Credit Document.
Overnight Bank Funding Rate means, for any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
Pari Passu Intercreditor Agreement means an intercreditor agreement substantially in the form of Exhibit J-2 by and among the Collateral Agent, the Administrative Agent, the 2016 Notes Trustee and any other parties thereto from time to time.
Participant Register as defined in Section 10.6(g)(i).
PATRIOT Act as defined in Section 3.1(l).
Pay means, in respect of any Indebtedness or Equity Interest, to pay, prepay, purchase, repurchase, redeem, retire, cancel or terminate such Indebtedness or Equity Interest other than (i) in exchange for Equity Interests that are not Disqualified Equity Interests (plus cash in lieu of fractional shares of such Equity Interests) and (ii) payment of interest with respect to Indebtedness or Equity Interests and accrued dividends paid pro rata to all holders of such class or series of Equity Interests. The words Payment and Payable shall have meanings correlative to the foregoing.
PBGC means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
Permitted Additional Debt means Indebtedness of one or more of the Credit Parties in the form of (x) debt securities that are secured on a pari passu basis with or junior lien basis to the
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Obligations or that are unsecured or (y) loans that are secured on a junior lien basis to the Obligations or that are unsecured; provided that, in each case (i) such Indebtedness is not guaranteed by any Subsidiary of Holdings that is not a Credit Party, (ii) any Liens securing such Indebtedness are limited solely to assets constituting Collateral, (iii) such Indebtedness shall have a final maturity no earlier than the Latest Maturity Date at the time such Indebtedness is issued, (iv) such Indebtedness does not have any scheduled amortization prior to the Latest Maturity Date at the time such Indebtedness is issued and (v) such Indebtedness shall not have mandatory prepayment provisions that are more favorable to the holders of such Indebtedness than the mandatory prepayment provisions applicable to the Loans or covenants and events of default that are more favorable to the holders of such Indebtedness, taken as a whole, than the covenants and Events of Default set forth in this Agreement ( provided that a certificate of Borrower as to the satisfaction of the conditions described in this clause (v) delivered at least five (5) Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of documentation relating thereto, stating that Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirements of this clause (v), shall be conclusive unless Administrative Agent notifies Borrower within such five (5) Business Day period that it disagrees with such determination (including a description of the basis upon which it disagrees)).
Permitted Encumbrances means:
(a) Liens imposed by law for Taxes, assessments or governmental charges or levies that, in each case, are not overdue by more than 30 days or are being contested in compliance with Section 5.3;
(b) carriers, warehousemens, mechanics, landlords, materialmens, repairmens and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days (or, in the case of a landlords Lien, beyond any notice and cure period under the applicable real property lease) or are being contested in compliance with Section 5.3;
(c) pledges and deposits made in the ordinary course of business in compliance with workers compensation, unemployment insurance, employers health taxes and other social security laws or regulations or similar legislation or to secure letters of credit, bank guarantees or similar instruments supporting such obligations;
(d) pledges or deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds or obligations to insurance carriers and other obligations of a like nature, in each case in the ordinary course of business or to secure letters of credit, bank guarantees or similar instruments supporting such obligations;
(e) judgment liens in respect of judgments that do not constitute an Event of Default under clause (h) of Section 8.1;
(f) easements, restrictions (including zoning restrictions), rights-of-way and other encumbrances, title defects and matters of record affecting real property that do not materially detract from the value of the Collateral, taken as a whole, or interfere with the ordinary conduct of business of Holdings and its Subsidiaries, taken as a whole;
(g) the special property interest of a consignor in respect of goods subject to consignment;
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(h) Liens (i) in favor of banks, other financial institutions, securities or commodities intermediaries or brokerage arising as a matter of law encumbering deposits of cash, securities, commodities and other funds maintained with such Persons (including rights of set off) and that are within the general parameters customary in such Persons industry, (ii) deemed to exist in connection with investments in repurchase agreements described in clause (d) of the definition of Permitted Investments, (iii) attaching to commodity trading accounts or other brokerage accounts in the ordinary course of business securing obligations owed to the institutions with which such accounts are maintained, (iv) that are contractual rights of setoff (x) relating to the establishment of depository relations with banks or other deposit-taking financial institutions in the ordinary course of business and not given in connection with the issuance of Indebtedness or (y) relating to pooled deposit or sweep accounts of Holdings or any of its Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business and (v) that are rights of set-off (or holdbacks or reserves established by a credit card issuer or processor) against credit balances of Holdings or any of its Subsidiaries with credit card issuers or credit card processors or amounts owing by such credit card issuers or credit card processors to Holdings or any of its Subsidiaries, or Liens on returned merchandise in favor of such issuers or processors, in each case in the ordinary course of business, but not rights of set-off against any other property or assets of Holdings or any of its Subsidiaries pursuant to agreements with credit card issuers or credit card processors to secure the obligations of Holdings or any of its Subsidiaries to credit card issuers or credit card processors as a result of fees and chargebacks;
(i) Liens of a collecting bank under Section 4-210 of the UCC in effect in the relevant jurisdiction (or Section 4-208 in the case of the New York UCC) on items in the course of collection;
(j) Liens of sellers of goods to Holdings or a Subsidiary arising as a matter of law under Article 2 of the UCC in effect in the relevant jurisdiction or similar provisions of applicable law, in each case in the ordinary course of business;
(k) licenses of patents, trademarks and other intellectual property rights of Holdings or any of its Subsidiaries, in each case in the ordinary course of business and not materially interfering with the conduct of business by Holdings and its Subsidiaries, taken as a whole;
(l) Liens solely on any cash earnest money deposits made by Holdings or any of its Subsidiaries in connection with any letter of intent or purchase agreement entered into by it;
(m) Liens incurred in the ordinary course of business in connection with the shipping of goods on the related goods and proceeds thereof in favor of the shipper of such goods;
(n) as to any Leasehold Property, any Lien encumbering the underlying fee estate or master or primary lease in connection therewith so long as such fee estate or landlord (or similar) interest is not held by a Person that is a Credit Party or an Affiliate of any Credit Party; and
(o) any matters affirmatively insured over or exceptions noted in the final title polices issued in connection with the Mortgages;
provided that the term Permitted Encumbrances shall not include any Lien securing Indebtedness for borrowed money.
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Permitted Indebtedness means:
(a) obligations incurred by Holdings or any Subsidiary arising from agreements providing for customary indemnification, earnouts, adjustment of purchase price, non-compete, consulting or other similar obligations, in each case arising in connection with acquisitions or dispositions of any business, assets or subsidiary of Holdings or such Subsidiary permitted hereunder;
(b) Indebtedness in respect of (i) the financing of insurance premiums or (ii) take-or-pay or minimum buy obligations contained in supply agreements, in each case incurred in the ordinary course of business;
(c) obligations in respect of deferred compensation to employees of Holdings and its Subsidiaries in the ordinary course of business;
(d) (i) obligations of Holdings or any Subsidiary incurred in the ordinary course of business in respect of performance guarantees, completion guarantees, performance bonds, bid bonds, appeal bonds, surety bonds, judgment bonds, replevin bonds and similar bonds, self-insurance and other similar obligations to the extent any such obligations constitute Indebtedness and (ii) obligations in respect of letters of credit, bank guarantees or similar instruments supporting any such obligations or obligations described in clauses (c) and (d) of the definition of Permitted Encumbrances;
(e) customer deposits and advance payments received in the ordinary course of business from customers for goods purchased in the ordinary course of business; and
(f) Indebtedness incurred in the ordinary course of business in respect of cash management; netting services; automatic clearinghouse arrangements; employee credit card, debit card, prepaid card, purchase card or other payment card programs; overdraft protections and other bank products and similar arrangements and Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument of Holdings or a Subsidiary drawn against insufficient funds in the ordinary course of business that is promptly repaid.
Permitted Investments means:
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency or instrumentality thereof);
(b) investments in commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a credit rating of at least A2 from S&P, P2 from Moodys or F2 from Fitch;
(c) investments in certificates of deposit, bankers acceptances and time deposits issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, (i) any domestic or offshore office of any commercial bank organized under the laws of the United States of America or any State thereof, (ii) any office located within the United States of America or in a foreign jurisdiction that has a tax treaty with the United States of America of a commercial bank organized under the laws of another country or (iii) any office located in London of any commercial bank organized under the laws of the United States of America, any Asian country or any European country, in each case which, at the time of acquisition, has a
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combined capital and surplus and undivided profits of not less than $500,000,000; provided , however , that investments with any bank that has a combined capital and surplus and undivided profits of less than $500,000,000 are permitted if Borrower maintains a banking relationship with such bank;
(d) collateralized repurchase agreements with a term of not more than 365 days and entered into with a financial institution satisfying the criteria described in clause (c) above or any ABL Lender or any Affiliate of an ABL Lender (i) that has a combined capital and surplus and undivided profits of not less than $500,000,000 or (ii) whose obligations under any such agreements is guaranteed by an entity that has a combined capital and surplus and undivided profits of not less than $500,000,000; and
(e) money market funds that (i) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940 and (ii) have portfolio assets of at least $3,000,000,000; provided , that investments in any money market fund with portfolio assets of less than $3,000,000,000 are permitted if such fund has received a rating of AAA from S&P or Aaa from Moodys.
Permitted Liens means each of the Liens permitted pursuant to Section 6.2.
Permitted Long-Term Indebtedness means unsecured Indebtedness for borrowed money of Holdings or Borrower (and guarantees thereof by Holdings or Borrower); provided that (a) such Indebtedness shall mature later than, and shall not be subject to any scheduled payment of principal, mandatory sinking fund requirement or similar unconditional repayment obligation prior to, 90 days following the Latest Maturity Date (measured as of the time that such Indebtedness is incurred), (b) such Indebtedness shall not be subject to any terms requiring any obligor of such Indebtedness to Pay (or offer to Pay) such Indebtedness other than (i) pursuant to scheduled payments of principal that comply with clause (a) above and (ii) pursuant to Customary Mandatory Prepayment Terms, and (c) no additional direct or contingent obligors other than Holdings or Borrower may become liable in respect of such Indebtedness at any time.
Permitted Supply Chain Financing as defined in Section 6.1(m).
Person means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and Governmental Authorities.
Plan means any pension plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA that is maintained, sponsored or contributed to by Holdings or any ERISA Affiliate.
Platform as defined in Section 5.1(m).
Pledge and Security Agreement means the Amended and Restated Pledge and Security Agreement to be executed by Borrower, each Guarantor and Collateral Agent, substantially in the form of Exhibit H, as it may be amended, restated, supplemented or otherwise modified from time to time.
Prime Rate means the rate of interest per annum determined by Administrative Agent as its prime rate in effect at its principal office in New York City and notified to Borrower, as in effect from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. Administrative Agent or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.
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Principal Office means Administrative Agents Principal Office as set forth on Appendix B, or such other office or office of a third party or sub-agent, as appropriate, as Administrative Agent may from time to time designate in writing to Borrower and each Lender.
Pro Rata Share means, with respect to all payments, computations and other matters relating to the Loan of any Lender, the percentage obtained by dividing (a) the Loan Exposure of that Lender by (b) the aggregate Loan Exposure of all Lenders. For all other purposes with respect to each Lender, Pro Rata Share means the percentage obtained by dividing (A) an amount equal to the sum of the Loan Exposure of that Lender, by (B) an amount equal to the sum of the aggregate Loan Exposure of all Lenders.
Property Companies means JC Penney Properties and JCP Real Estate Holdings, and Property Company means either of them.
Public Lenders means Lenders that do not wish to receive Non-Public Information with respect to Holdings, its Subsidiaries or their Securities.
Purchasing means J. C. Penney Purchasing Corporation, a New York corporation.
Real Estate Asset means, at any time of determination, any interest (fee, leasehold or otherwise) then owned by any Credit Party in any real property.
Realty Company means each of JCP Realty, LLC and its Subsidiaries that is principally engaged in the business of owning real estate and/or real estate-related interests.
Recipient means (a) Administrative Agent, (b) Collateral Agent and (c) any Lender, as applicable.
Record Document means, with respect to any Leasehold Property, (i) the lease evidencing such Leasehold Property or a memorandum thereof, executed and acknowledged by the owner of the affected real property, as lessor, or (ii) if such Leasehold Property was acquired or subleased from the holder of a Recorded Leasehold Interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form reasonably satisfactory to Administrative Agent.
Recorded Leasehold Interest means a Leasehold Property with respect to which a Record Document has been recorded in all places necessary or desirable, in Administrative Agents reasonable judgment, to give constructive notice of such Leasehold Property to third-party purchasers and encumbrancers of the affected real property.
Refinance means, in respect of any indebtedness, to extend, refinance, renew or replace, defease or refund such indebtedness, in each case, in whole or in part and/or with the same or different lenders, agents or arrangers and including any increase in the principal amount of the loans and commitments provided thereunder to the extent such increase is otherwise permitted hereunder. Refinanced and Refinancing shall have correlative meanings.
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Refinancing Amendment means an amendment to this Agreement executed by (a) each Credit Party, (b) Administrative Agent, (c) each Additional Refinancing Lender and (d) each Lender that agrees to provide any portion of Refinancing Loans incurred pursuant thereto, in accordance with Section 2.24.
Refinancing Commitments means one or more Classes of Commitments hereunder that are established to fund Refinancing Loans hereunder pursuant to a Refinancing Amendment.
Refinancing Debt Proceeds means the net cash proceeds received by any Credit Party from any Refinancing Loans or from any Permitted Additional Debt incurred in reliance on Section 6.1(k) after deducting therefrom all reasonable costs and expenses of the Credit Parties in connection with the issuance of such Indebtedness (including arrangement and underwriting fees, upfront fees and fees and expenses of counsel and other professionals in connection therewith).
Refinancing Loans means one or more Classes of Loans hereunder that result from a Refinancing Amendment.
Refinancing Series means Refinancing Loans having the same terms and specified to constitute a single Class of Loans for purposes of this Agreement in the applicable Refinancing Amendment.
Register as defined in Section 2.7(b).
Regulation D means Regulation D of the Board of Governors, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
Regulation T means Regulation T of the Board of Governors, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
Regulation U means Regulation U of the Board of Governors, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
Regulation X means Regulation X of the Board of Governors, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
Related Fund means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
Release means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material), including the movement of any Hazardous Material through the outdoor air, soil, surface water or groundwater.
Replacement Lender as defined in Section 2.23.
Repricing Event as defined in Section 2.13(b).
Required Prepayment Date as defined in Section 2.15(c).
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Requisite Lenders means one or more Lenders having or holding Loan Exposure and representing more than 50% of the aggregate Loan Exposure of all Lenders; provided that, with respect to any Defaulting Lender, Requisite Lenders shall be determined by disregarding the Loan Exposure of such Defaulting Lender.
Restatement Agreement means the Restatement Agreement to the Original Credit Agreement dated June 23, 2016, by and among the Borrower, the other Credit Parties, Administrative Agent, the Lenders party thereto and the other parties party thereto.
Restatement Effective Date as defined in the Restatement Agreement.
Restatement Effective Date Certificate means a Restatement Effective Date Certificate substantially in the form of Exhibit F.
Restatement Effective Date Mortgaged Property means the Material Real Estate Assets listed on Schedule 5.16(a)(i).
Restatement Effective Date Refinancing means (i) the repayment of the Non-Converting Loans and (ii) the incurrence of the Initial Loans and issuance of the 2016 Notes.
Restricted Payment means (a) any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in Holdings or any Subsidiary, (b) any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests in Holdings or any Subsidiary, (c) any payment made in connection with the conversion of any convertible Indebtedness into Equity Interests in Holdings or any Subsidiary and that constitutes a net settlement in respect of any such Equity Interests that would have been issuable upon such conversion on account of the principal of such Indebtedness, or (d) any payment made on account of a call spread, capped call or similar transaction relating to an issuance of Indebtedness or preferred Equity Interests convertible into, or by reference to, Equity Interests in Holdings or any Subsidiary; provided that a dividend, distribution or payment to the extent payable in Equity Interests (other than Disqualified Equity Interests) in Holdings shall not constitute a Restricted Payment.
S&P means Standard & Poors, a Division of The McGraw-Hill Companies, Inc.
Sale/Leaseback Transaction as defined in Section 6.10.
Secured Parties means the Agents, the Lenders and the Indemnitees.
Secured Supply Chain Obligations means the due and punctual payment and performance of all obligations of each Credit Party to an ABL Lender or an Affiliate of an ABL Lender under any Permitted Supply Chain Financing, to the extent the documentation for such obligations specifically provides that such ABL Lender or Affiliate of an ABL Lender is entitled to be secured under the Collateral Agreement (as defined in the ABL Credit Agreement).
Securities means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as securities or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.
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Securities Act means the Securities Act of 1933, as amended from time to time, and any successor statute.
Senior Indentures means the 1994 Indenture, the 2014 Indenture, the 2016 Indenture and the 2023 Indenture.
Senior Managing Agents means each of Citizens Bank, National Association, Regions Bank and HSBC Bank USA, N.A.
Senior Secured Leverage Ratio means the ratio as of the last day of any Fiscal Quarter of (i) any Consolidated Total Debt that is secured by a Lien upon any real or personal property or other assets of Holdings, Borrower or any Subsidiary as of such date to (ii) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period ending on such date.
Solvent means, with respect to any Credit Party, that as of the date of determination, (a) the sum of such Credit Partys debt (including contingent liabilities) does not exceed the present fair saleable value of such Credit Partys present assets; (b) such Credit Partys capital is not unreasonably small in relation to its business as contemplated on the Restatement Effective Date or with respect to any transaction contemplated to be undertaken after the Restatement Effective Date; and (c) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise). For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standards No. 5).
Specified Assets means the Material Real Estate Assets identified to the Administrative Agent as Specified Assets pursuant to Section 5.16(b) on or prior to the Restatement Effective Date.
Stockholders Equity means the sum, as at the close of a monthly accounting period (selected by Holdings) ending within 65 days next preceding the date of determination, of (a) the aggregate of capital, capital stock, capital surplus, capital in excess of par value of stock, reinvested earnings, earned surplus and net income retained for use in the business (however the foregoing may be designated), after deducting the cost of shares of capital stock of Holdings held in its treasury, of Holdings and its consolidated Subsidiaries, determined in accordance with generally accepted accounting practices applied on the basis used in reports from time to time to stockholders of Holdings, plus (b) the amount reflected in such determination as deferred tax effects. For purposes of this definition, Subsidiary means (i) any corporation of which Holdings, directly or indirectly, owns more than 50% of the outstanding stock, which at the time shall have by the terms thereof ordinary voting power to elect directors of such corporation, irrespective of whether or not at the time stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency, or (ii) any such corporation of which such percentage of shares of outstanding stock of the character described in the foregoing clause (i) shall at the time be owned, directly or indirectly, by Holdings and one or more Subsidiaries as defined in the foregoing clause (i) or by one or more such Subsidiaries.
Subsidiary means, with respect to any Person (the parent) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parents consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity of which securities or other ownership
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interests representing more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned or held; provided that Excluded Subsidiaries shall not be considered Subsidiaries of Holdings or Borrower for purposes hereof.
Swap Agreement means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of Holdings or the Subsidiaries shall be a Swap Agreement. For the avoidance of doubt, Swap Agreement will include a swap transaction pursuant to which the obligations of the applicable Credit Party to make scheduled payments thereunder are deferred (including, without limitation, payment obligations that are deferred to the scheduled termination date of such transaction so that such Credit Party makes a single payment thereunder on such scheduled termination date).
Tax means any present or future tax, levy, impost, duty, deduction, withholding (including backup withholding), assessment, fee or other charge imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
TBA/Vacant Parcel means each tire, battery and automotive location or vacant portion of any parcel.
Terminated Lender as defined in Section 2.23.
Term Loan/Notes Document as defined in the Pari Passu Intercreditor Agreement.
Term Loan/Notes Exclusive Collateral as defined in the ABL Intercreditor Agreement.
Term Loan/Notes Secured Obligations as defined in the Pari Passu Intercreditor Agreement.
Term Loan/Notes Secured Parties as defined in the Pari Passu Intercreditor Agreement.
Term Loan Percentage means, at any time, the principal amount of Loans then outstanding at such time, expressed as percentage of the sum of the aggregate principal amount of Loans and other Term Loan/Notes Secured Obligations then outstanding.
Test Period means, at any time, the most recent period of 12 consecutive fiscal months of Holdings ended on or prior to such time (taken as one accounting period) for which financial statements have been (or were required to be) delivered pursuant to Section 5.1(a) or (b).
Title Company means Commonwealth Land Title Company or any other national title insurance provider retained by the Borrower and reasonably acceptable to the Administrative Agent.
Title Policy as defined in Section 5.16(a)(iii).
Title Policy Property means the Material Real Estate Assets listed on Schedule 5.16(a)(iii).
Transactions means (i) the execution and delivery by each Credit Party of the Credit Documents entered into on the Restatement Effective Date to which it is or is to be a party, (ii) the funding of (and conversion to) the Initial Loans hereunder and (iii) the Restatement Effective Date Refinancing.
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Type of Loan means a Base Rate Loan or a Eurodollar Rate Loan.
UCC means the Uniform Commercial Code as in effect in the State of New York or, when the laws of any other jurisdiction govern the perfection or enforcement of any security interest, the Uniform Commercial Code of such jurisdiction.
U.S. Lender as defined in Section 2.20(c).
Unfunded Pension Liability means the excess of a Plans benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Plans assets, determined in accordance with the assumptions used for funding the Plan pursuant to Section 412 of the Code for the applicable plan year.
Waivable Mandatory Prepayment as defined in Section 2.15(c).
Withdrawal Liability means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Write-Down and Conversion Powers means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
1.2. Accounting Terms .
(a) Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that (i) for purposes of determining compliance with any provision of this Agreement, the determination of whether a lease is to be treated as an operating lease or capital lease shall be made without giving effect to any change in accounting for leases pursuant to GAAP after the date hereof and (ii) if Holdings or Borrower notifies Administrative Agent that Holdings or Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Restatement Effective Date in GAAP or in the application thereof on the operation of such provision (or if Administrative Agent notifies Holdings or Borrower that the Requisite Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. It is understood that all financial computations hereunder with respect to Holdings and the Subsidiaries (including computations of Consolidated Adjusted EBITDA and Net Tangible Assets) shall be made excluding the accounts of all Excluded Subsidiaries.
(b) All pro forma computations of the Fixed Charge Coverage Ratio required to be made hereunder giving effect to any incurrence of Indebtedness, investment, acquisition, disposition, Restricted Payment, payment in respect of Indebtedness or other transaction shall be calculated after giving pro forma effect thereto (and, in the case of any pro forma computations made hereunder to determine whether any such transaction is permitted to be consummated hereunder, to any incurrence of Indebtedness, investment, acquisition, disposition, Restricted Payment, payment in respect of
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Indebtedness or other such transaction consummated since the first day of the period covered by any component of such pro forma computation and on or prior to the date of such computation) as if each such transaction had occurred on the first day of the applicable Test Period, and, to the extent applicable, to the historical earnings and cash flows associated with the assets acquired or disposed of and any related incurrence or reduction of Indebtedness, all in accordance with Article 11 of Regulation S-X under the Securities Act. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Swap Agreement applicable to such Indebtedness if such Swap Agreement has a remaining term in excess of 12 months).
1.3. Interpretation, Etc. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. References herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the word include or including, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as without limitation or but not limited to or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. The terms lease and license shall include sub-lease and sub-license, as applicable. If any report, certificate or other information required to be furnished by Borrower or any other Credit Party is due on any day that is not a Business Day, it shall be deemed due on the next succeeding Business Day.
1.4. Effect of this Agreement on the Original Credit Agreement and the Other Existing Credit Documents . Upon satisfaction of the conditions precedent to the effectiveness of this Agreement set forth in the Restatement Agreement, this Agreement shall be binding on Borrower, the other Credit Parties, Administrative Agent, the Lenders and the other parties party hereto, and the Original Credit Agreement and the provisions thereof shall be replaced in their entirety by this Agreement and the provisions hereof; provided that for the avoidance of doubt (a) the Obligations (as defined in the Original Credit Agreement) of Borrower and the other Credit Parties under the Original Credit Agreement and the other Credit Documents that remain unpaid and outstanding as of the date of this Agreement shall continue to exist under and be evidenced by this Agreement and the other Credit Documents and (b) the Collateral and the Credit Documents shall continue to secure, guarantee, support and otherwise benefit the Obligations on the same terms as prior to the effectiveness hereof. Upon the effectiveness of this Agreement, each Credit Document (other than the Original Credit Agreement) that was in effect immediately prior to the date of this Agreement shall continue to be effective on its terms unless otherwise expressly stated herein or therein.
SECTION 2. | LOANS |
2.1. Loans .
(a) Commitments . Subject to the terms and conditions hereof, and upon the satisfaction or waiver of each of the conditions set forth in Section 3.1,
(i) Each Converting Loan of each Converting Lender shall automatically be hereby converted to a like principal amount of Initial Loans on the Restatement Effective Date. All accrued and unpaid interest on the Converting Loans to, but not including, the Restatement Effective Date shall be payable on the Restatement Effective Date, but no amounts under Section 2.18(c) of the Original Credit Agreement shall be payable in connection with such conversion; and
(ii) Each Lender severally agrees to make Initial Loans denominated in Dollars to the Borrower on the Restatement Effective Date in an aggregate amount equal to the amount of such Lenders Commitment. The Borrower shall prepay the aggregate principal amount of the Non-Converting Loans substantially concurrently with the receipt of the proceeds of the Initial Loans. All accrued and unpaid interest on the Non-Converting Loans to, but not including, the Restatement Effective Date shall be payable on the Restatement Effective Date, and Borrower will make any payments required under Section 2.18(c) of the Original Credit Agreement with respect to the Non-Converting Loans in accordance therewith. On and as of the Restatement Effective Date, upon the repayment of the Non-Converting Loans of such Original Lender, accrued and unpaid interest thereon and any other amounts due and owing thereto pursuant to the Original Credit Agreement, such Original Lender shall cease to be a Lender hereunder for all purposes.
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Any amount borrowed under this Section 2.1(a) and subsequently repaid or prepaid may not be reborrowed. Subject to Sections 2.13(a) and 2.14, all amounts owed hereunder with respect to the Loans shall be paid in full no later than the Maturity Date applicable to such Loans. Each Lenders Commitment shall terminate immediately and without further action after giving effect to the funding of such Lenders Commitment.
(b) Borrowing Mechanics for Loans .
(i) Borrower shall deliver to Administrative Agent a fully executed Funding Notice no later than (x) the requested Credit Date with respect to Base Rate Loans and (y) three days prior to the requested Credit Date with respect to Eurodollar Rate Loans (or such shorter period as may be acceptable to Administrative Agent). Promptly upon receipt by Administrative Agent of such Funding Notice, Administrative Agent shall notify each Lender of the proposed borrowing.
(ii) Each Lender shall make its Loan available to Administrative Agent not later than 12:00 p.m. (New York City time) on the requested Credit Date, by wire transfer of same day funds in Dollars, at the principal office designated by Administrative Agent. Upon satisfaction or waiver of the conditions precedent specified in Section 3 of the Restatement Agreement, Administrative Agent shall make the proceeds of such Loans available to Borrower on the requested Credit Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Loans received by Administrative Agent from Lenders to be credited to the account of Borrower at the principal office designated by Administrative Agent or to such other account as may be designated in writing to Administrative Agent by Borrower.
2.2. [Reserved] .
2.3. [Reserved] .
2.4. [Reserved] .
2.5. Pro Rata Shares; Availability of Funds .
(a) Pro Rata Shares . All Initial Loans shall be made by Lenders simultaneously and proportionately to their respective Commitments, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lenders obligation to make a Loan requested hereunder nor shall any Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lenders obligation to make a Loan requested hereunder.
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(b) Availability of Funds . Unless Administrative Agent shall have been notified by any Lender prior to the applicable Credit Date that such Lender does not intend to make available to Administrative Agent the amount of such Lenders Loan requested on such Credit Date, Administrative Agent may assume that such Lender has made such amount available to Administrative Agent on such Credit Date and Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to Borrower a corresponding amount on such Credit Date. If such corresponding amount is not in fact made available to Administrative Agent by such Lender, Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the customary rate set by Administrative Agent for the correction of errors among banks for three Business Days and thereafter at the Base Rate. In the event that (i) Administrative Agent declines to make a requested amount available to Borrower until such time as all applicable Lenders have made payment to Administrative Agent, (ii) a Lender fails to fund to Administrative Agent all or any portion of the Loans required to be funded by such Lender hereunder prior to the time specified in this Agreement and (iii) such Lenders failure results in Administrative Agent failing to make a corresponding amount available to Borrower on the Credit Date, at Administrative Agents option, such Lender shall not receive interest hereunder with respect to the requested amount of such Lenders Loans for the period commencing with the time specified in this Agreement for receipt of payment by Borrower through and including the time of Borrowers receipt of the requested amount. If such Lender does not pay such corresponding amount forthwith upon Administrative Agents demand therefor, Administrative Agent shall promptly notify Borrower and Borrower shall immediately pay such corresponding amount to Administrative Agent together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the rate payable hereunder for Base Rate Loans for such Class of Loans. Nothing in this Section 2.5(b) shall be deemed to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that Borrower may have against any Lender as a result of any default by such Lender hereunder.
2.6. Use of Proceeds . The proceeds of the Loans, together with the proceeds of the 2016 Notes, shall be used to consummate the Restatement Effective Date Refinancing.
2.7. Evidence of Debt; Register; Lenders Books and Records; Notes .
(a) Lenders Evidence of Debt . Each Lender shall maintain on its internal records an account or accounts evidencing the Obligations of Borrower to such Lender, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall be conclusive and binding on Borrower, absent manifest error; provided , that the failure to make any such recordation, or any error in such recordation, shall not affect any Lenders Commitments or Borrowers Obligations in respect of any applicable Loans; and provided further , in the event of any inconsistency between the Register and any Lenders records, the recordations in the Register shall govern.
(b) Register . Administrative Agent (or its agent or sub-agent appointed by it) shall maintain at its Principal Office a register for the recordation of the names and addresses of Lenders and the Commitments and Loans of each Lender from time to time (the Register ). The Register shall be available for inspection by Borrower or any Lender (with respect to (i) any entry relating to such Lenders Loans and (ii) the identity of the other Lenders (but not any information with respect to such other Lenders Loans)) at any reasonable time and from time to time upon reasonable prior notice. Administrative Agent shall record, or shall cause to be recorded, in the Register the Commitments and the Loans in accordance with the provisions of Section 10.6, and each repayment or prepayment in respect of the principal amount of the Loans, and any such recordation shall be conclusive and binding on Borrower and each Lender, absent manifest error; provided , failure to make any such recordation, or any error in such recordation, shall not affect any Lenders Commitments or Borrowers Obligations in respect of any
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Loan. Borrower hereby designates Administrative Agent to serve as Borrowers agent solely for purposes of maintaining the Register as provided in this Section 2.7, and Borrower hereby agrees that, to the extent Administrative Agent serves in such capacity, Administrative Agent and its officers, directors, employees, agents, sub-agents and affiliates shall constitute Indemnitees.
(c) Notes . If so requested by any Lender by written notice to Borrower (with a copy to Administrative Agent) at least two Business Days prior to the Restatement Effective Date, or at any time thereafter, Borrower shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6) on the Restatement Effective Date (or, if such notice is delivered after the second Business Day prior to the Restatement Effective Date, promptly after Borrowers receipt of such notice) a Note or Notes to evidence such Lenders Loans.
2.8. Interest on Loans .
(a) Except as otherwise set forth herein, each Class of Loan shall bear interest on the unpaid principal amount thereof from the date made through repayment (whether by acceleration or otherwise) thereof as follows:
(i) if a Base Rate Loan, at the Base Rate plus the Applicable Margin; or
(ii) if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate plus the Applicable Margin.
(b) The basis for determining the rate of interest with respect to any Loan, and the Interest Period with respect to any Eurodollar Rate Loan, shall be selected by Borrower and notified to Administrative Agent and Lenders pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as the case may be.
(c) In connection with Eurodollar Rate Loans there shall be no more than twelve (12) Interest Periods outstanding at any time. In the event Borrower fails to specify between a Base Rate Loan or a Eurodollar Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, such Loan (if outstanding as a Eurodollar Rate Loan) will be automatically converted into a Base Rate Loan on the last day of the then-current Interest Period for such Loan (or if outstanding as a Base Rate Loan will remain as, or (if not then outstanding) will be made as, a Base Rate Loan). In the event Borrower fails to specify an Interest Period for any Eurodollar Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, Borrower shall be deemed to have selected an Interest Period of one month. As soon as practicable after 10:00 a.m. (New York City time) on each Interest Rate Determination Date, Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the Eurodollar Rate Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to Borrower and each Lender.
(d) Interest payable pursuant to Section 2.8(a) shall be computed (i) in the case of Base Rate Loans on the basis of a 365-day or 366-day year, as the case may be, and (ii) in the case of Eurodollar Rate Loans, on the basis of a 360-day year, in each case for the actual number of days elapsed in the period during which it accrues. In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan, the last Interest Payment Date with respect to such Loan and, with respect to a Base Rate Loan being converted from a Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shall be
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included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan and, with respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded; provided , if a Loan is repaid on the same day on which it is made, one days interest shall be paid on that Loan.
(e) Except as otherwise set forth herein, interest on each Loan (i) shall accrue on a daily basis and shall be payable in arrears on each Interest Payment Date with respect to interest accrued on and to each such payment date; (ii) shall accrue on a daily basis and shall be payable in arrears upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iii) shall accrue on a daily basis and shall be payable in arrears at maturity of the Loans, including final maturity of the Loans; provided , however , with respect to any voluntary prepayment of a Base Rate Loan, accrued interest shall instead be payable on the applicable Interest Payment Date.
2.9. Conversion/Continuation .
(a) Subject to Section 2.18 and so long as no Event of Default shall have occurred and then be continuing, Borrower shall have the option:
(i) to convert at any time all or any part of any Loan equal to $5,000,000 and integral multiples of $1,000,000 in excess of that amount from one Type of Loan to another Type of Loan; provided , a Eurodollar Rate Loan may only be converted on the expiration of the Interest Period applicable to such Eurodollar Rate Loan unless Borrower shall pay all amounts due under Section 2.18 in connection with any such conversion; or
(ii) upon the expiration of any Interest Period applicable to any Eurodollar Rate Loan, to continue all or any portion of such Loan equal to $5,000,000 and integral multiples of $1,000,000 in excess of that amount as a Eurodollar Rate Loan.
(b) Subject to clause (c) below, Borrower shall deliver a Conversion/Continuation Notice to Administrative Agent no later than 11:00 a.m. (New York City time) on the day of the proposed conversion date (in the case of a conversion to a Base Rate Loan) and at least three Business Days in advance of the proposed conversion/continuation date (in the case of a conversion to, or a continuation of, a Eurodollar Rate Loan). Except as otherwise provided herein, a Conversion/Continuation Notice for conversion to, or continuation of, any Eurodollar Rate Loans shall be irrevocable on and after the related Interest Rate Determination Date, and Borrower shall be bound to effect a conversion or continuation in accordance therewith. If on any day a Loan is outstanding with respect to which a Funding Notice or Conversion/Continuation Notice has not been delivered to Administrative Agent in accordance with the terms hereof specifying the applicable basis for determining the rate of interest, then for that day such Loan shall be a Base Rate Loan.
(c) In lieu of delivering a Conversion/Continuation Notice, Borrower may give Administrative Agent telephonic notice by the required time of any proposed conversion/continuation; provided each such notice shall be promptly confirmed in writing by delivery of the Conversion/Continuation Notice to Administrative Agent on or before the close of business on the date that the telephonic notice is given. In the event of a discrepancy between the telephone notice and the written Conversion/Continuation Notice, the written Conversion/Continuation Notice shall govern. In the case of any Conversion/Continuation Notice that is irrevocable once given, if Borrower provides telephonic notice in lieu thereof, such telephone notice shall also be irrevocable once given. Neither Administrative Agent nor any Lender shall incur any liability to Borrower in acting upon any telephonic notice referred to above that Administrative Agent believes in good faith to have been given by a duly authorized officer or other person authorized on behalf of Borrower or for otherwise acting in good faith.
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2.10. Default Interest . Upon the occurrence and during the continuance of an Event of Default under Section 8.1(a), (f) or (g), any overdue amounts in respect of Loans (including overdue principal and, to the extent permitted by applicable law, overdue interest payments on the Loans or any fees or other amounts owed hereunder which are overdue) shall thereafter bear interest (including post-petition interest in any proceeding under Debtor Relief Laws) payable on demand at a rate that is 2% per annum in excess of the interest rate otherwise payable hereunder with respect to the applicable Loans (or, in the case of any such fees and other amounts, at a rate which is 2% per annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans); provided , in the case of Eurodollar Rate Loans, upon the expiration of the Interest Period in effect at the time any such increase in interest rate is effective such Eurodollar Rate Loans shall thereupon become Base Rate Loans and overdue amounts in respect thereof shall thereafter bear interest payable upon demand at a rate which is 2% per annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans. Payment or acceptance of the increased rates of interest provided for in this Section 2.10 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Administrative Agent or any Lender.
2.11. Fees .
(a) Borrower agrees to pay on the Restatement Effective Date to each Lender party to this Agreement as a Lender on the Restatement Effective Date, as fee compensation for the funding of such Lenders Initial Loans, a closing fee in the amount set forth in Section 3 of the Restatement Agreement, payable to such Lender on the Restatement Effective Date. Such closing fee will be in all respects fully earned, due and payable on the Restatement Effective Date and non-refundable and non-creditable thereafter.
(b) In addition to any of the foregoing fees, Borrower agrees to pay to Agents such other fees in the amounts and at the times separately agreed upon.
2.12. Scheduled Payments/Commitment Reductions . The principal amounts of the Initial Loans shall be repaid in consecutive equal quarterly installments and at final maturity (each such payment, an Installment ) in the aggregate amounts set forth below on each date set forth below:
Amortization Date |
Installments | |||
September 30, 2016 |
$ | 10,550,781.25 | ||
December 31, 2016 |
$ | 10,550,781.25 | ||
March 31, 2017 |
$ | 10,550,781.25 | ||
June 30, 2017 |
$ | 10,550,781.25 | ||
September 30, 2017 |
$ | 10,550,781.25 | ||
December 31, 2017 |
$ | 10,550,781.25 | ||
March 31, 2018 |
$ | 10,550,781.25 | ||
June 30, 2018 |
$ | 10,550,781.25 | ||
September 30, 2018 |
$ | 10,550,781.25 | ||
December 31, 2018 |
$ | 10,550,781.25 | ||
March 31, 2019 |
$ | 10,550,781.25 |
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Amortization Date |
Installments | |||
June 30, 2019 |
$ | 10,550,781.25 | ||
September 30, 2019 |
$ | 10,550,781.25 | ||
December 31, 2019 |
$ | 10,550,781.25 | ||
March 31, 2020 |
$ | 10,550,781.25 | ||
June 30, 2020 |
$ | 10,550,781.25 | ||
September 30, 2020 |
$ | 10,550,781.25 | ||
December 31, 2020 |
$ | 10,550,781.25 | ||
March 31, 2021 |
$ | 10,550,781.25 | ||
June 30, 2021 |
$ | 10,550,781.25 | ||
September 30, 2021 |
$ | 10,550,781.25 | ||
December 31, 2021 |
$ | 10,550,781.25 | ||
March 31, 2022 |
$ | 10,550,781.25 | ||
June 30, 2022 |
$ | 10,550,781.25 | ||
September 30, 2022 |
$ | 10,550,781.25 | ||
December 31, 2022 |
$ | 10,550,781.25 | ||
March 31, 2023 |
$ | 10,550,781.25 | ||
Initial Loan Maturity Date |
$ | 1,403,253,906.25 |
Notwithstanding the foregoing, (x) such Installments shall be reduced in connection with any voluntary or mandatory prepayments of the Loans in accordance with Sections 2.13, 2.14 and 2.15, as applicable; and (y) the Loans, together with all other amounts owed hereunder with respect thereto, shall, in any event, be paid in full no later than the Maturity Date applicable to such Loans.
2.13. Voluntary Prepayments .
(a) Voluntary Prepayments .
(i) Any time and from time to time:
(1) with respect to Base Rate Loans, Borrower may prepay any such Loans on any Business Day in whole or in part, in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount; and
(2) with respect to Eurodollar Rate Loans, Borrower may prepay any such Loans on any Business Day in whole or in part in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount;
(ii) All such prepayments shall be made:
(1) upon not less than one Business Days prior written or telephonic notice in the case of Base Rate Loans; and
(2) upon not less than three Business Days prior written or telephonic notice in the case of Eurodollar Rate Loans;
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in each case given to Administrative Agent by 12:00 p.m. (New York City time) on the date required and, if given by telephone, promptly confirmed by delivery of written notice thereof to Administrative Agent (and Administrative Agent will promptly transmit such original notice by telefacsimile or telephone to each Lender). Upon the giving of any such notice, the principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein; provided that such notice may state that such notice is conditioned upon the effectiveness of other credit facilities, the receipt of proceeds from the issuance of Equity Interests or other Indebtedness or the disposition of assets or the closing of a merger, acquisition or other transaction, in which case such notice may be revoked or extended by the Borrower by notice to the Administrative Agent on or prior to the prepayment date specified therein if such condition is not satisfied or delayed in effectiveness. Any such voluntary prepayment shall be applied as specified in Section 2.15(a).
(b) Soft-Call Protection . In the event that, prior to the six month anniversary of the Restatement Effective Date, all or any portion of the Initial Loans is (i) repaid, prepaid, refinanced or replaced with any term loan financing, or (ii) repriced or effectively refinanced through any waiver, consent, amendment or amendment and restatement of this Agreement, and in the case of each of (i) and (ii), above, the effect thereof is to lower the All-in Yield of the Initial Loans (or portion thereof) or new term loan financing, as applicable, from the All-in Yield of the Initial Loans (or portion thereof) so repaid, prepaid, refinanced, replaced or repriced (a Repricing Event ), Borrower shall pay to Administrative Agent for the account of Lenders with Initial Loans (A) in the case of clause (i), a prepayment premium equal to 1.00% of the aggregate principal amount of the Initial Loans so repaid, prepaid, refinanced, replaced or repriced and (B) in the case of clause (ii), a fee equal to 1.00% of the aggregate principal amount of the Initial Loans repriced or effectively refinanced through such waiver, consent, amendment or amendment and restatement; provided that no such fee shall be payable, in the case of clause (i) or (ii), if the Repricing Event is due to, or in connection with, a Change in Control. If all or any portion of the Initial Loans held by any Lender is subject to mandatory assignment pursuant to Section 2.23 as a result of, or in connection with, such Lender not agreeing or otherwise consenting to any waiver, consent or amendment referred to in clause (ii) above (or otherwise in connection with a Repricing Event) on or prior to the six month anniversary of the Restatement Effective Date, the Borrower shall pay to such Lender (and not any Person replacing such Lender pursuant to Section 2.23) its pro rata portion (as determined immediately prior to it being so replaced) of the prepayment premium under clause (ii) of the immediately preceding sentence. Such amounts shall be due and payable on the date of effectiveness of such Repricing Event.
2.14. Mandatory Prepayments .
(a) Asset Sales . No later than the fifth Business Day following the date of receipt by Holdings or any of its Subsidiaries of any Net Asset Sale Proceeds (other than the Net Asset Sale Proceeds of any sale or other disposition of ABL Priority Collateral), Borrower shall prepay or cause to be prepaid the Loans as set forth in Section 2.15(b) in an aggregate amount equal to the Term Loan Percentage of such Net Asset Sale Proceeds (and, if any Net Asset Sale Proceeds in excess of the Term Loan Percentage of such Net Asset Sale Proceeds have not been applied to repay, repurchase or redeem Term Loan/Notes Secured Obligations on or prior to the date the Borrower determines that it can no longer be contractually required to apply such excess Net Asset Sale Proceeds to repay, repurchase or redeem, or to make an offer to repay, repurchase or redeem, other Term Loan/Notes Secured Obligations then outstanding (other than pursuant to this Section 2.14(a) or any similar provision of any other Term Loan/Notes Document), the Borrower shall apply such excess amount of Net Asset Sale Proceeds, net of the pro rata portion of such Net Asset Sale Proceeds that is required to be used to repay, repurchase or redeem, or make an offer to repay, repurchase or redeem, other Term Loan/Notes Secured Obligations pursuant to any similar provision of any other Term Loan/Notes Document, to prepay Loans pursuant to this Section 2.14(a) no later than the fifth Business Day following such determination); provided so long
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as no Event of Default under Section 8.1(a), (f) or (g) shall have occurred and be continuing, Borrower shall have the option, directly or through one or more of its Subsidiaries that is a Credit Party, to invest Net Asset Sale Proceeds within three hundred sixty-five (365) days of receipt thereof (or, if a binding commitment to invest such Net Asset Sale Proceeds is entered into within such three hundred sixty-five (365) day period, within five hundred forty (540) days of receipt thereof) in long-term assets useful in the business of Borrower or any of its Subsidiaries that is a Credit Party.
(b) Insurance/Condemnation Proceeds . No later than the fifth Business Day following the date of receipt by Holdings or any of its Subsidiaries, or Administrative Agent as loss payee, of any Net Insurance/Condemnation Proceeds (other than the Net Insurance/Condemnation Proceeds of any ABL Priority Collateral), Borrower shall prepay the Loans as set forth in Section 2.15(b) in an aggregate amount equal to the Term Loan Percentage of such Net Insurance/Condemnation Proceeds (and, if any Net Insurance/Condemnation Proceeds in excess of the Term Loan Percentage of such Net Insurance/Condemnation Proceeds have not been applied to repay, repurchase or redeem Term Loan/Notes Secured Obligations on or prior to the date the Borrower determines that it can no longer be contractually required to apply such excess Net Insurance/Condemnation Proceeds to repay, repurchase or redeem, or to make an offer to repay, repurchase or redeem, other Term Loan/Notes Secured Obligations then outstanding (other than pursuant to this Section 2.14(b) or any similar provision of any other Term Loan/Notes Document), the Borrower shall apply such excess amount of Net Insurance/Condemnation Proceeds, net of the pro rata portion of such Net Insurance/Condemnation Proceeds that is required to be used to repay, repurchase or redeem, or make an offer to repay, repurchase or redeem, other Term Loan/Notes Secured Obligations pursuant to any similar provision of any other Term Loan/Notes Document, to prepay Loans pursuant to this Section 2.14(b) no later than the fifth Business Day following such determination); provided so long as no Event of Default under Section 8.1(a), (f) or (g) shall have occurred and be continuing, Borrower shall have the option, directly or through one or more of its Subsidiaries that is a Credit Party to commence and pursue the replacement of damaged or destroyed assets with such Net Insurance/Condemnation Proceeds or invest such Net Insurance/Condemnation Proceeds within three hundred and sixty-five (365) days of receipt thereof in long term assets useful in the business of Holdings or any of its Subsidiaries that is a Credit Party, which investment may include the repair, restoration or replacement of the applicable assets thereof.
(c) Consolidated Excess Cash Flow . In the event that there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending January 28, 2017), Borrower shall, no later than 90 days after the end of such Fiscal Year, prepay the Loans as set forth in Section 2.15(b) in an aggregate amount equal to (i) 50% of such Consolidated Excess Cash Flow minus (ii) voluntary repayments of the Loans made with Internally Generated Cash (excluding, for the avoidance of doubt, repurchases of Loans pursuant to Section 10.6(i) and repayments of Loans made with the cash proceeds of any refinancing indebtedness); provided , that if, as of the last day of the most recently ended Fiscal Year, the Senior Secured Leverage Ratio (determined for any such period by reference to the Compliance Certificate delivered pursuant to Section 5.1(c) calculating the Senior Secured Leverage Ratio as of the last day of such Fiscal Year) shall be (A) equal to or less than 2.50:1.00 and greater than 2.00:1.00, Borrower shall only be required to make the prepayments otherwise required by this Section 2.14(c) in an amount equal to 25% of such Consolidated Excess Cash Flow and (B) equal to or less than 2.00:1.00, Borrower shall not be required to make any prepayment pursuant to this Section 2.14(c). Notwithstanding anything herein to the contrary, no payments shall be required under this Section 2.14(c) for any Fiscal Year to the extent that, on the 90th day following the end of such Fiscal Year or on any earlier date Borrower may otherwise elect to make such payment, the sum of (x) Availability (as defined in the ABL Credit Agreement) and (y) the aggregate amount of cash and cash equivalents of the Credit Parties in excess of the Operating Cash Threshold, after giving effect to such payment, would be less than 27.5% of the Line Cap (as defined in the ABL Credit Agreement as in effect on the date hereof); provided that such payment shall be required to be made hereunder on the first day that, for the
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immediately preceding 30 consecutive days, the sum of (x) Availability (as defined in the ABL Credit Agreement) and (y) the aggregate amount of cash and cash equivalents of the Credit Parties in excess of the Operating Cash Threshold, after giving effect to such payment, is greater than or equal to 27.5% of the Line Cap (as defined in the ABL Credit Agreement as in effect on the date hereof).
(d) Prepayment Certificate . Concurrently with any prepayment of the Loans pursuant to Sections 2.14(a) through 2.14(c), Borrower shall deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the calculation of the amount of the applicable net proceeds or Consolidated Excess Cash Flow, as the case may be. In the event that Borrower shall subsequently determine that the actual amount received exceeded the amount set forth in such certificate, Borrower shall promptly make an additional prepayment of the Loans in an amount equal to such excess, and Borrower shall concurrently therewith deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the derivation of such excess.
2.15. Application of Prepayments .
(a) Application of Voluntary Prepayments . Any prepayment of any Loan pursuant to Section 2.13(a) shall be applied as specified by Borrower in the applicable notice of prepayment; provided , in the event Borrower fails to specify the Loans to which any such prepayment shall be applied, such prepayment shall be applied to prepay the Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof), and further applied on a pro rata basis to reduce the scheduled remaining Installments of principal of the Loans.
(b) Application of Mandatory Prepayments . Any amount required to be prepaid pursuant to Sections 2.14(a) through 2.14(c) shall be applied to prepay Loans of each Class on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) and further applied to scheduled amortization of each Class of Loans as specified by Borrower in the applicable prepayment notice.
(c) Waivable Mandatory Prepayment . Anything contained herein to the contrary notwithstanding, so long as any Loans are outstanding, in the event Borrower is required to make any mandatory prepayment (a Waivable Mandatory Prepayment ) of the Loans, not less than five Business Days prior to the date (the Required Prepayment Date ) on which Borrower is required to make such Waivable Mandatory Prepayment, Borrower shall notify Administrative Agent of the amount of such prepayment, and Administrative Agent will promptly thereafter notify each Lender holding an outstanding Loan of the amount of such Lenders Pro Rata Share of such Waivable Mandatory Prepayment and such Lenders option to refuse such amount. Each such Lender may exercise such option by giving written notice to Borrower and Administrative Agent of its election to do so on or before the third Business Day prior to the Required Prepayment Date (it being understood that any Lender which does not notify Borrower and Administrative Agent of its election to exercise such option on or before the third Business Day prior to the Required Prepayment Date shall be deemed to have elected, as of such date, not to exercise such option). On the Required Prepayment Date, Borrower shall pay to Administrative Agent the portion of the amount of the Waivable Mandatory Prepayment equal to that portion of the Waivable Mandatory Prepayment payable to those Lenders that have elected not to exercise such option, to prepay the Loans of such Lenders (which prepayment shall be applied to the scheduled Installments of principal of the Loans in accordance with Section 2.15(b)), and Borrower shall be entitled to retain the remainder of the Waivable Mandatory Prepayment.
(d) Application of Prepayments of Loans to Base Rate Loans and Eurodollar Rate Loans . Considering each Class of Loans being prepaid separately, any prepayment thereof shall be applied first to Base Rate Loans to the full extent thereof before application to Eurodollar Rate Loans, in each case in a manner which minimizes the amount of any payments required to be made by Borrower pursuant to Section 2.18(c).
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2.16. General Provisions Regarding Payments .
(a) All payments by Borrower of principal, interest, fees and other Obligations shall be made in Dollars in same day funds, without defense, recoupment, setoff or counterclaim, free of any restriction or condition, and delivered to Administrative Agent not later than 2:00 p.m. (New York City time) on the date due at the Principal Office of Administrative Agent for the account of Lenders; for purposes of computing interest and fees, funds received by Administrative Agent after that time on such due date shall be deemed to have been paid by Borrower on the next succeeding Business Day.
(b) All payments in respect of the principal amount of any Loan shall be accompanied by payment of accrued interest and any amounts due under Sections 2.13(b) and 2.18(c) in respect of the principal amount being repaid or prepaid, and all such payments (and, in any event, any payments in respect of any Loan on a date when interest is due and payable with respect to such Loan) shall be applied to the payment of interest then due and payable before application to principal.
(c) Administrative Agent (or its agent or sub-agent appointed by it) shall promptly distribute to each Lender at such address as such Lender shall indicate in writing, such Lenders applicable Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together with all other amounts due thereto, including all fees payable with respect thereto, to the extent received by Administrative Agent.
(d) Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any Eurodollar Rate Loans, Administrative Agent shall give effect thereto in apportioning payments received thereafter.
(e) Whenever any payment to be made hereunder with respect to any Loan shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day.
(f) Administrative Agent shall have the right, in its sole discretion, to deem any payment by or on behalf of Borrower hereunder that is not made in same day funds prior to 2:00 p.m. (New York City time) to be a non-conforming payment. Any such payment so deemed to be non-conforming shall not be deemed to have been received by Administrative Agent until the later of (i) the time such funds become available funds, and (ii) the applicable next Business Day. Administrative Agent shall give prompt telephonic notice to Borrower and each applicable Lender (confirmed in writing) if any payment is non-conforming. Any non-conforming payment may constitute or become a Default or Event of Default in accordance with the terms of Section 8.1(a). Interest shall continue to accrue on any principal as to which a non-conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day) at the rate determined pursuant to Section 2.10 from the date such amount was due and payable until the date such amount is paid in full.
(g) If an Event of Default shall have occurred and not otherwise been waived, and the maturity of the Obligations shall have been accelerated pursuant to Section 8.1 or pursuant to any sale of, any collection from, or other realization upon all or any part of the Collateral in connection with any exercise of remedies permitted hereunder, in connection with any proceeding under any Debtor Relief Law, under applicable Law or under the other Credit Documents, all payments or proceeds received by
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Agents in respect of any of the Obligations, shall, subject to the provisions of the Intercreditor Agreements, be applied in accordance with the application arrangements described in Section 9.2 of the Pledge and Security Agreement.
2.17. Ratable Sharing . Lenders hereby agree among themselves that if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of set-off or bankers lien, by counterclaim or cross action or by the enforcement of any right under the Credit Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal, interest, fees and other amounts then due and owing to such Lender hereunder or under the other Credit Documents (collectively, the Aggregate Amounts Due to such Lender) which is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify Administrative Agent and each other Lender of the receipt of such payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided , if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of Borrower or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest. Borrower expressly consents to the foregoing arrangement and agrees that any holder of a participation so purchased may exercise any and all rights of bankers lien, consolidation, set-off or counterclaim with respect to any and all monies owing by Borrower to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder. The provisions of this Section 2.17 shall not be construed to apply to (a) any payment made by Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any Lender as consideration for the assignment or sale of a participation in any of its Loans or other Obligations owed to it.
2.18 . Making or Maintaining Eurodollar Rate Loans .
(a) Inability to Determine Applicable Interest Rate . In the event that Administrative Agent shall have determined (which determination shall be final and conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any Eurodollar Rate Loans, that by reason of circumstances affecting the London interbank market adequate and fair means do not exist for ascertaining the interest rate applicable to such Loans on the basis provided for in the definition of Adjusted Eurodollar Rate, Administrative Agent shall on such date give notice (by telefacsimile or by telephone confirmed in writing) to Borrower and each Lender of such determination, whereupon (i) no Loans may be made as, or converted to, Eurodollar Rate Loans until such time as Administrative Agent notifies Borrower and Lenders that the circumstances giving rise to such notice no longer exist, and (ii) any Funding Notice or Conversion/Continuation Notice given by Borrower with respect to the Loans in respect of which such determination was made shall be deemed to be rescinded by Borrower.
(b) Illegality or Impracticability of Eurodollar Rate Loans . In the event that on any date (i) any Lender shall have determined (which determination shall be final and conclusive and binding upon all parties hereto absent manifest error) that the making, maintaining, converting to or continuation of its Eurodollar Rate Loans has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to
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comply therewith would not be unlawful), or (ii) Administrative Agent is advised by the Requisite Lenders (which determination shall be final and conclusive and binding upon all parties hereto) that the making, maintaining, converting to or continuation of its Eurodollar Rate Loans has become impracticable, as a result of contingencies occurring after the date hereof which materially and adversely affect the London interbank market or the position of the Lenders in that market, then, and in any such event, such Lenders (or in the case of the preceding clause (i), such Lender) shall be an Affected Lender and such Affected Lender shall on that day give notice (by e-mail or by telephone confirmed in writing) to Borrower and Administrative Agent of such determination (which notice Administrative Agent shall promptly transmit to each other Lender). If Administrative Agent receives a notice from (x) any Lender pursuant to clause (i) of the preceding sentence or (y) a notice from Lenders constituting Requisite Lenders pursuant to clause (ii) of the preceding sentence, then (1) the obligation of the Lenders (or, in the case of any notice pursuant to clause (i) of the preceding sentence, such Lender) to make Loans as, or to convert Loans to, Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn by each Affected Lender, (2) to the extent such determination by the Affected Lender relates to a Eurodollar Rate Loan then being requested by Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, the Lenders (or in the case of any notice pursuant to clause (i) of the preceding sentence, such Lender) shall make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a Base Rate Loan, (3) the Lenders (or in the case of any notice pursuant to clause (i) of the preceding sentence, such Lenders) obligations to maintain their respective outstanding Eurodollar Rate Loans (the Affected Loans ) shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by law, and (4) the Affected Loans shall automatically convert into Base Rate Loans on the date of such termination. Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described above relates to a Eurodollar Rate Loan then being requested by Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, Borrower shall have the option, subject to the provisions of Section 2.18(c), to rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders by giving written or telephonic notice (promptly confirmed by delivery of written notice thereof) to Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission Administrative Agent shall promptly transmit to each other Lender).
(c) Compensation for Breakage or Non -Commencement of Interest Periods . Borrower shall compensate each Lender, upon written request by such Lender (which request shall set forth the basis for requesting such amounts), for all reasonable losses, expenses and liabilities (including any interest paid or payable by such Lender to Lenders of funds borrowed by it to make or carry its Eurodollar Rate Loans and any loss, expense or liability sustained by such Lender in connection with the liquidation or re-employment of such funds but excluding loss of anticipated profits) which such Lender may sustain: (i) if for any reason (other than a default by such Lender) a borrowing of any Eurodollar Rate Loan does not occur on a date specified therefor in a Funding Notice or a telephonic request for borrowing, or a conversion to or continuation of any Eurodollar Rate Loan does not occur on a date specified therefor in a Conversion/Continuation Notice or a telephonic request for conversion or continuation; (ii) if any prepayment or other principal payment of, or any conversion of, any of its Eurodollar Rate Loans occurs on a date prior to the last day of an Interest Period applicable to that Loan; or (iii) if any prepayment of any of its Eurodollar Rate Loans is not made on any date specified in a notice of prepayment given by Borrower. With respect to any Lenders claim for compensation under this Section 2.18, Borrower shall not be required to compensate such Lender for any amount incurred more than 180 calendar days prior to the date that such Lender notifies Borrower of the event that gives rise to such claim.
(d) Booking of Eurodollar Rate Loans . Any Lender may make, carry or transfer Eurodollar Rate Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such Lender.
(e) Assumptions Concerning Funding of Eurodollar Rate Loans . Calculation of all amounts payable to a Lender under this Section 2.18 and under Section 2.19 shall be made as though such Lender had actually funded each of its relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit bearing interest at the rate obtained pursuant to clause (i) of the definition of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan and having a maturity comparable to the relevant Interest Period and through the transfer of such Eurodollar deposit from an offshore office of such Lender to a domestic office of such Lender in the United States of America; provided , however , each Lender may fund each of its Eurodollar Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this Section 2.18 and under Section 2.19.
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2.19. Increased Costs; Capital Adequacy .
(a) Compensation For Increased Costs and Taxes . If any Change in Law (i) subjects a Lender (or its applicable lending office) or any company controlling such Lender to any additional Tax (other than Indemnified Taxes, Connection Income Taxes and Taxes described in clauses (b)-(d) of the definition of Excluded Taxes) with respect to this Agreement or any of the other Credit Documents or any of its obligations hereunder or thereunder or any payments to such Lender (or its applicable lending office) of principal, interest, fees or any other amount payable hereunder; (ii) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, liquidity, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or other requirements with respect to Eurodollar Rate Loans that are reflected in the definition of Adjusted Eurodollar Rate) or any company controlling such Lender; or (iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending office) or any company controlling such Lender or such Lenders obligations hereunder or the London interbank market; and the result of any of the foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining Loans hereunder or to reduce any amount received or receivable by such Lender (or its applicable lending office) with respect thereto; then, in any such case, Borrower shall promptly pay to such Lender, upon receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or in a lump sum or otherwise as such Lender in its sole discretion shall determine) as may be necessary to compensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder. Such Lender shall deliver to Borrower (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender under this Section 2.19(a) which statement shall be conclusive and binding upon all parties hereto absent manifest error.
(b) Capital Adequacy Adjustment . In the event that any Lender shall have determined that any Change in Law, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on the capital of such Lender or any company controlling such Lender as a consequence of, or with reference to, such Lenders Loans or Commitments, or participations therein or other obligations hereunder with respect to the Loans to a level below that which such Lender or such controlling company could have achieved but for such adoption, effectiveness, phase-in, applicability, change or compliance (taking into consideration the policies of such Lender or such controlling company with regard to capital adequacy), then from time to time, within ten Business Days after receipt by Borrower from such Lender of the statement referred to in the next sentence, Borrower shall pay or cause to be paid to such Lender such additional amount or amounts as will compensate such Lender or such controlling company on an after-tax basis for such reduction. Such Lender shall deliver to Borrower (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to Lender under this Section 2.19(b), which statement shall be conclusive and binding upon all parties hereto absent manifest error.
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(c) Failure or delay on the part of any Lender to demand compensation pursuant to this Section 2.19 shall not constitute a waiver of such Lenders right to demand such compensation; provided that Borrower shall not be required to compensate a Lender pursuant to this Section 2.19 for any increased costs incurred or reductions suffered more than 9 months prior to the date that such Lender notifies Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lenders intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 9-month period referred to above shall be extended to include the period of retroactive effect thereof). Notwithstanding the foregoing, no Lender may demand compensation pursuant to this Section 2.19 unless it is then the general policy of such Lender to pursue similar compensation in similar circumstances under comparable provisions of other credit agreements.
2.20. Taxes; Withholding, Etc.
(a) Payments to Be Free and Clear . All sums payable by or on behalf of any Credit Party hereunder and under the other Credit Documents shall (except to the extent required by law) be paid free and clear of, and without any deduction or withholding on account of any Tax except as required by applicable Law.
(b) Withholding of Taxes . If any Credit Party or any other Person (acting as a withholding agent) is (in such withholding agents reasonable good faith discretion) required by law to make any deduction or withholding on account of any Indemnified Tax from any sum paid or payable by any Credit Party to Administrative Agent or any Lender under any of the Credit Documents: (i) Borrower shall notify Administrative Agent of any such requirement or any change in any such requirement as soon as Borrower becomes aware of it; (ii) Borrower shall pay, or cause to be paid, any such Indemnified Tax before the date on which penalties attach thereto, such payment to be made (if the liability to pay is imposed on any Credit Party) for its own account or (if that liability is imposed on Administrative Agent or such Lender, as the case may be) on behalf of and in the name of Administrative Agent or such Lender; (iii) unless otherwise provided in this Section 2.20, the sum payable by such Credit Party in respect of which the relevant deduction, withholding or payment is required shall be increased to the extent necessary to ensure that, after the making of that deduction, withholding or payment, Administrative Agent or such Lender, as the case may be, receives on the due date a net sum equal to what it would have received had no such deduction, withholding or payment been required or made; and (iv) within thirty days after the due date of payment of any Indemnified Tax which it is required by clause (ii) above to pay, Borrower shall deliver to Administrative Agent evidence satisfactory to the other affected parties of such deduction, withholding or payment and of the remittance thereof to the relevant taxing or other authority.
(c) Evidence of Exemption From U.S. Withholding Tax . Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for U.S. federal income tax purposes (a Non-US Lender ) shall, to the extent such Lender is legally able to do so, deliver to Administrative Agent and Borrower, on or prior to the Restatement Effective Date (in the case of each Lender listed on the signature pages of the Restatement Agreement on the Restatement Effective Date) or on or prior to the date of the Assignment Agreement pursuant to which it becomes a Lender (in the case of each other Lender), and at such other times as may be necessary in the determination of Borrower or Administrative Agent (each in the reasonable exercise of its discretion), (i) two original copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, W-8ECI, W-8EXP and/or W-8IMY (or, in each case, any successor forms), as applicable, properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably
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requested by Borrower or Administrative Agent to establish that such Lender is not subject to (or is subject to a reduced rate of) deduction or withholding of United States federal income tax with respect to any payments to such Lender of principal, interest, fees or other amounts payable under any of the Credit Documents, or (ii) if such Lender is not a bank or other Person described in Section 881(c)(3) of the Internal Revenue Code, a Certificate re Non-Bank Status together with two original copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any successor form), properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Borrower to establish that such Lender is not subject to (or is subject to a reduced rate of) deduction or withholding of United States federal income tax with respect to any payments to such Lender of interest payable under any of the Credit Documents. Each Non-US Lender shall, to the extent it is legally able to do so, deliver to Borrower and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-US Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit Borrower or Administrative Agent to determine the withholding or deduction required to be made. Each Lender that is a United States person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for United States federal income tax purposes (a U.S. Lender ) shall deliver to Administrative Agent and Borrower on or prior to the Restatement Effective Date (or, if later, on or prior to the date on which such Lender becomes a party to this Agreement) two original copies of Internal Revenue Service Form W-9 (or any successor form), properly completed and duly executed by such Lender, certifying that such U.S. Lender is entitled to an exemption from United States backup withholding tax, or otherwise prove that it is entitled to an exemption. If a payment made to a Lender under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lenders obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 2.20(c), FATCA shall include any amendments made to FATCA after the date of this Agreement. Each Lender required to deliver any forms, certificates or other evidence with respect to United States federal income tax withholding matters pursuant to this Section 2.20(c) hereby agrees to the extent such Lender is legally able, from time to time after the initial delivery by such Lender of such forms, certificates or other evidence, whenever a lapse in time or change in circumstances renders such forms, certificates or other evidence obsolete or inaccurate in any material respect, that such Lender shall promptly deliver to Administrative Agent and Borrower two new original copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, W-8ECI, W-8EXP, W-8IMY and/or W-9 (or, in each case, any successor form), as applicable, or a Certificate re Non-Bank Status and two original copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any successor form), as the case may be, properly completed and duly executed by such Lender, and such other documentation required under the Internal Revenue Code and reasonably requested by Borrower to confirm or establish that such Lender is not subject to (or is subject to a reduced rate of) deduction or withholding of United States federal income tax with respect to payments to such Lender under the Credit Documents, or notify Administrative Agent and Borrower of its inability to deliver any such forms, certificates or other evidence.
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(d) Without limiting the provisions of Section 2.20(b), Borrower shall timely pay all Other Taxes to the relevant Governmental Authorities in accordance with applicable law. Borrower shall deliver to Administrative Agent official receipts or other evidence of such payment reasonably satisfactory to Administrative Agent in respect of any Other Taxes payable hereunder promptly after payment of such Other Taxes.
(e) Borrower shall indemnify Administrative Agent and any Lender for the full amount of Indemnified Taxes for which additional amounts are required to be paid pursuant to Section 2.20(b) arising in connection with payments made under this Agreement or any other Credit Document and Other Taxes (including any such Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.20) paid by Administrative Agent or Lender or any of their respective Affiliates and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to such Credit Party shall be conclusive absent manifest error. Such payment shall be due within thirty (30) days of such Credit Partys receipt of such certificate.
(f) If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.20 (including additional amounts pursuant to this Section 2.20), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.20 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (f), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (f) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(g) Each partys obligations under this Section 2.20 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Credit Document.
(h) Solely for purposes of determining withholding Tax imposed under FATCA, from and after the Restatement Effective Date, the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Loans (including any Loans already outstanding) as not qualifying as grandfathered obligations within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
2.21. Obligation to Mitigate . Each Lender agrees that, as promptly as practicable after the officer of such Lender responsible for administering its Loans becomes aware of the occurrence of an event or the existence of a condition that would cause such Lender to become an Affected Lender or that would entitle such Lender to receive payments under Section 2.18, 2.19 or 2.20, it will, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions,
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use reasonable efforts to (a) make, issue, fund or maintain its Credit Extensions, including any Affected Loans, through another office of such Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof the circumstances which would cause such Lender to be an Affected Lender would cease to exist or the additional amounts which would otherwise be required to be paid to such Lender pursuant to Section 2.18, 2.19 or 2.20 would be materially reduced and if, as determined by such Lender in its sole discretion, the making, funding or maintaining of such Commitments or Loans through such other office or in accordance with such other measures, as the case may be, would not otherwise adversely affect such Commitments or Loans or the interests of such Lender; provided , such Lender will not be obligated to utilize such other office pursuant to this Section 2.21 unless Borrower agrees to pay all incremental expenses incurred by such Lender as a result of utilizing such other office as described above. A certificate as to the amount of any such expenses payable by Borrower pursuant to this Section 2.21 (setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender to Borrower (with a copy to Administrative Agent) shall be conclusive absent manifest error.
2.22. Defaulting Lenders .
(a) Defaulting Lender Waterfall . Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law, any payment of principal, interest, fees or other amounts received by Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 8 or otherwise) or received by Administrative Agent from a Defaulting Lender pursuant to Section 10.4 shall be applied at such time or times as may be determined by Administrative Agent as follows: first , to the payment of any amounts owing by such Defaulting Lender to Administrative Agent hereunder; second , to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lenders breach of its obligations under this Agreement; third , as Borrower may request (so long as no Default or Event of Default shall have occurred and be continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent; fourth , if so determined by Administrative Agent and Borrower, to be held in a Deposit Account and released pro rata in order to satisfy such Defaulting Lenders potential future funding obligations with respect to Loans under this Agreement; fifth , so long as no Event of Default shall have occurred and be continuing, to the payment of any amounts owing to Borrower as a result of any judgment of a court of competent jurisdiction obtained by Borrower against such Defaulting Lender as a result of such Defaulting Lenders breach of its obligations under this Agreement; and sixth , to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 3.2 were satisfied and waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held by the Lenders pro rata in accordance with the applicable Pro Rata Shares. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(b) Defaulting Lender Cure . If Borrower and Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; and provided further , that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.
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2.23. Removal or Replacement of a Lender . Anything contained herein to the contrary notwithstanding, in the event that: (a) (i) any Lender (an Increased -Cost Lender ) shall give notice to Borrower that such Lender is an Affected Lender or that such Lender is entitled to receive payments under Section 2.18, 2.19 or 2.20, (ii) the circumstances which have caused such Lender to be an Affected Lender or which entitle such Lender to receive such payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within three Business Days after Borrowers request for such withdrawal; (b) any Lender shall become and continues to be a Defaulting Lender; or (c) in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions hereof as contemplated by Section 10.5(b) or Section 2.25, the consent of Requisite Lenders shall have been obtained but the consent of one or more of such other Lenders (each a Non -Consenting Lender ) whose consent is required (or, with respect to an Extension, requested; provided that, in respect of an Extension, if Borrower elects to exercise its rights under this Section 2.23, Borrower shall require that all such Non-Consenting Lenders assign their outstanding Loans in accordance with this Section 2.23) shall not have been obtained; then, with respect to each such Increased-Cost Lender, Defaulting Lender or Non-Consenting Lender (the Terminated Lender ), Borrower may, by giving written notice to Administrative Agent and any Terminated Lender of its election to do so, elect to cause such Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its outstanding Loans and its Commitments, if any, in full to one or more Eligible Assignees (each a Replacement Lender ) in accordance with the provisions of Section 10.6 and Borrower shall pay the fees, if any, payable thereunder in connection with any such assignment from an Increased-Cost Lender, a Non-Consenting Lender or a Defaulting Lender; provided , (1) on the date of such assignment, the Replacement Lender shall pay to Terminated Lender an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the Terminated Lender; (2) on the date of such assignment, Borrower shall pay any amounts payable to such Terminated Lender pursuant to Section 2.18(c), 2.19 or 2.20 and Section 2.13(b) and (3) in the event such Terminated Lender is a Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in respect of which such Terminated Lender was a Non-Consenting Lender. Upon the prepayment of all amounts owing to any Terminated Lender, if any, such Terminated Lender shall no longer constitute a Lender for purposes hereof; provided , any rights of such Terminated Lender to indemnification hereunder shall survive as to such Terminated Lender. Each Lender agrees that if Borrower exercises its option hereunder to cause an assignment by such Lender as a Non-Consenting Lender or Terminated Lender, such Lender shall, promptly after receipt of written notice of such election, execute and deliver all documentation necessary to effectuate such assignment in accordance with Section 10.6. In the event that a Lender does not comply with the requirements of the immediately preceding sentence within one Business Day after receipt of such notice, each Lender hereby authorizes and directs Administrative Agent to execute and deliver such documentation as may be required to give effect to an assignment in accordance with Section 10.6 on behalf of a Non-Consenting Lender or Terminated Lender and any such documentation so executed by Administrative Agent shall be effective for purposes of documenting an assignment pursuant to Section 10.6. Any removal of JPMorgan or its successor as a Defaulting Lender pursuant to this Section shall also constitute the removal of JPMorgan or its successor as Administrative Agent pursuant to Section 9.7.
2.24. Refinancing Amendments .
(a) On one or more occasions after the Restatement Effective Date, the Borrower may obtain, from any Lender or any other bank, financial institution or other institutional lender or investor that agrees to provide any portion of Refinancing Loans pursuant to a Refinancing Amendment in accordance with this Section 2.24 (each, an Additional Lender ) ( provided that Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to such Lenders or Additional
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Lenders making such Refinancing Loans to the extent such consent, if any, would be required under Section 10.6(c) for an assignment of Loans to such Lender or Additional Lender), Refinancing Loans or Refinancing Commitments pursuant to a Refinancing Amendment; provided that (i) the terms of such Refinancing Loans (other than final maturity, amortization, interest rates, fees and call protection) shall be identical to the terms of the then outstanding Loans or otherwise satisfactory to Administrative Agent, (ii) the Refinancing Loans shall have a Maturity Date that is no shorter than the Maturity Date of the Loans to be refinanced with the Refinancing Debt Proceeds therefrom and shall not have greater annual amortization prior to such Maturity Date of such refinanced Loans than the annual amortization applicable to such refinanced Loans and (iii) Borrower shall apply the Refinancing Debt Proceeds therefrom on the date of receipt of such proceeds to repay outstanding Loans of any Class selected by Borrower.
(b) The effectiveness of any Refinancing Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 3.2 and, to the extent reasonably requested by Administrative Agent, receipt by Administrative Agent of (i) customary legal opinions, board resolutions and officers certificates consistent with those delivered on the Restatement Effective Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsels form of opinion reasonably satisfactory to Administrative Agent and (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by Administrative Agent in order to ensure that such Refinancing Loans are provided with the benefit of the applicable Collateral Documents.
(c) Each issuance of Refinancing Loans under Section 2.24(a) shall be in an aggregate principal amount that is not less than $25,000,000 unless another amount is agreed by Administrative Agent.
(d) Each of the parties hereto hereby agrees that this Agreement and the other Credit Documents may be amended pursuant to a Refinancing Amendment, without the consent of any other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Refinancing Commitments and Refinancing Loans incurred pursuant thereto and (ii) make such other changes to this Agreement and the other Credit Documents consistent with the provisions and intent of Section 10.5(e) and (iii) effect such other amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of Administrative Agent and Borrower, to effect the provisions of this Section 2.24, and the Requisite Lenders hereby expressly authorize Administrative Agent to enter into any such Refinancing Amendment.
(e) For the avoidance of doubt, it is understood and agreed that the provisions of Section 2.17 and Section 10.5 will not apply to Refinancing of Loans pursuant to a Refinancing Amendment made pursuant to and in accordance with the provisions of this Section 2.24, including to any payment of interest or fees in respect of any Refinancing Loans that have been extended pursuant to a Refinancing Amendment at a rate or rates different from those paid or payable in respect of Loans of any other Class, in each case as is set forth in the relevant Refinancing Amendment.
2.25. Extensions of Loans .
(a) Borrower may from time to time, pursuant to the provisions of this Section 2.25, agree with one or more Lenders holding Loans of any Class to extend the maturity date and to provide for other terms consistent with this Section 2.25 (each such modification, an Extension ) pursuant to one or more written offers (each an Extension Offer ) made from time to time by Borrower to all Lenders under any Class that is proposed to be extended under this Section 2.25, in each case on a pro rata basis (based on the relative principal amounts of the outstanding Loans of each Lender in such Class) and on the same
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terms to each such Lender, which Extension Offer may be conditioned as determined by Borrower and set forth in such offer. In connection with each Extension, Borrower will provide notification to Administrative Agent (for distribution to the Lenders of the applicable Class), no later than 30 days prior to the maturity of the applicable Class or Classes to be extended of the requested new maturity date for the extended Loans of each such Class (each an Extended Maturity Date ) and the due date for Lender responses. In connection with any Extension, each Lender of the applicable Class wishing to participate in such Extension shall, prior to such due date, provide Administrative Agent with a written notice thereof in a form reasonably satisfactory to Administrative Agent. Any Lender that does not respond to an Extension Offer by the applicable due date shall be deemed to have rejected such Extension. In connection with any Extension, Borrower shall agree to such procedures, if any, as may be reasonably established by, or acceptable to, Administrative Agent to accomplish the purposes of this Section 2.25.
(b) After giving effect to any Extension, the Loans so extended shall cease to be a part of the Class that they were a part of immediately prior to the Extension and shall be a new Class hereunder; provided that at no time shall there be more than ten different Classes of Loans.
(c) The consummation and effectiveness of each Extension shall be subject to the following:
(i) no Event of Default shall have occurred and be continuing at the time any Extension Offer is delivered to the Lenders or at the time of such Extension;
(ii) the Loans of any Lender extended pursuant to any Extension ( Extended Loans ) shall have the same terms as the Class of Loans subject to the related Extension Amendment ( Existing Loans ); except (A) the final maturity date of any Extended Loans of a Class to be extended pursuant to an Extension shall be later than the Latest Maturity Date at the time of such Extension, and the weighted average life to maturity of any Extended Loans of a Class to be extended pursuant to an Extension shall be no shorter than the weighted average life to maturity of the Class of Existing Loans subject to the Latest Maturity Date at the time of such Extension; (B) the all-in pricing (including, without limitation, margins, fees and premiums) with respect to the Extended Loans may be higher or lower than the all-in pricing (including, without limitation, margins, fees and premiums) for the Existing Loans; (C) no repayment of any Extended Loans shall be permitted unless such repayment is accompanied by an at least pro rata repayment of all earlier maturing Loans (including previously extended Loans) (or all earlier maturing Loans (including previously extended Loans) shall otherwise be or have been terminated and repaid in full); (D) the Extended Loans may contain a most favored nation provision for the benefit of Lenders holding Extended Loans; and (E) the other terms and conditions applicable to Extended Loans may be terms different than those with respect to the Existing Loans so long as such terms and conditions only apply after the Latest Maturity Date at the time of such Extension; provided further , each Extension Amendment may, without the consent of any Lender other than the applicable extending Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of Administrative Agent and Borrower, to give effect to the provisions of this Section 2.25, including any amendments necessary to treat the applicable Loans of the extending Lenders as a new Class of loans hereunder; provided however , no Extension Amendment may provide for any Class of Extended Loans to be secured by any Collateral or other assets of any Credit Party that does not also secure the Existing Loans;
(iii) all documentation in respect of such Extension shall be consistent with the foregoing, and all written communications by Borrower generally directed to the applicable Lenders under the applicable Class in connection therewith shall be in form and substance consistent with the foregoing and otherwise reasonably satisfactory to Administrative Agent;
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(iv) a minimum amount in respect of such Extension (to be determined in Borrowers discretion and specified in the relevant Extension Offer, but in no event less than $25,000,000, unless another amount is agreed to by Administrative Agent) shall be satisfied; and
(v) no Extension shall become effective unless, on the proposed effective date of such Extension, the conditions set forth in Section 3.2 shall be satisfied (with all references in such Section to a Credit Date being deemed to be references to the Extension on the applicable date of such Extension), and Administrative Agent shall have received a certificate to that effect dated the applicable date of such Extension and executed by an Authorized Officer of Borrower.
(d) For the avoidance of doubt, it is understood and agreed that the provisions of Section 2.17 and Section 10.5 will not apply to Extensions of Loans pursuant to Extension Offers made pursuant to and in accordance with the provisions of this Section 2.25, including to any payment of interest or fees in respect of any Extended Loans that have been extended pursuant to an Extension at a rate or rates different from those paid or payable in respect of Loans of any other Class, in each case as is set forth in the relevant Extension Offer.
(e) [Reserved].
(f) The Lenders hereby irrevocably authorize Administrative Agent to enter into amendments (collectively, Extension Amendments ) to this Agreement and the other Credit Documents as may be necessary in order to establish new Classes of Loans created pursuant to an Extension, in each case on terms consistent with this Section 2.25. Notwithstanding the foregoing, Administrative Agent shall have the right (but not the obligation) to seek the advice or concurrence of the Requisite Lenders with respect to any matter contemplated by this Section 2.25 and, if Administrative Agent seeks such advice or concurrence, Administrative Agent shall be permitted to enter into such amendments with Borrower in accordance with any instructions received from such Requisite Lenders and shall also be entitled to refrain from entering into such amendments with Borrower unless and until it shall have received such advice or concurrence; provided , however , that whether or not there has been a request by Administrative Agent for any such advice or concurrence, all such Extension Amendments entered into with Borrower by Administrative Agent hereunder shall be binding on the Lenders. Without limiting the foregoing, in connection with any Extension, (i) the appropriate Credit Parties shall (at their expense) amend (and Administrative Agent is hereby directed to amend) any Mortgage (or any other Credit Document that Administrative Agent reasonably requests to be amended to reflect an Extension) that has a maturity date prior to the latest Extended Maturity Date so that such maturity date is extended to the then latest Extended Maturity Date (or such later date as may be advised by local counsel to Administrative Agent) and (ii) Borrower shall deliver board resolutions, secretarys certificates, officers certificates and other documents as shall reasonably be requested by Administrative Agent in connection therewith and a legal opinion of counsel reasonably acceptable to Administrative Agent (i) as to the enforceability of such Extension Amendment, this Agreement as amended thereby, and such of the other Credit Documents (if any) as may be amended thereby and (ii) to the effect that such Extension Amendment, including without limitation, the Extended Loans provided for therein, does not conflict with or violate the terms and provisions of Section 10.5.
(g) Promptly following the consummation and effectiveness of any Extension, Borrower will furnish to Administrative Agent (who shall promptly furnish to each Lender) written notice setting forth the Extended Maturity Date and material economic terms of the Extension and the aggregate principal amount of each class of Loans and Commitments after giving effect to the Extension and attaching a copy of the fully executed Extension Amendment.
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SECTION 3. | CONDITIONS PRECEDENT |
3.1. Restatement Effective Date . The obligation of each Lender to make any Loan pursuant to Section 2.1(a) on the Restatement Effective Date is subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions on or before the Restatement Effective Date:
(a) Credit Documents . The execution and delivery by each Credit Party of the Credit Documents listed on Schedule 3.1(a) and the execution and delivery by the Collateral Agent of each such Credit Document that is a Collateral Document.
(b) Organizational Documents; Incumbency . Administrative Agent shall have received, in respect of each Credit Party, (i) sufficient copies of each Organizational Document as Administrative Agent shall request, and, to the extent applicable, certified as of the Restatement Effective Date or a recent date prior thereto by the appropriate Governmental Authority; (ii) signature and incumbency certificates of the officers of such Credit Party; (iii) resolutions of the Board of Directors or similar governing body of such Credit Party approving and authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party or by which it or its assets may be bound as of the Restatement Effective Date, certified as of the Restatement Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; (iv) a good standing certificate from the applicable Governmental Authority of such Credit Partys jurisdiction of incorporation, organization or formation, each dated the Restatement Effective Date or a recent date prior thereto; and (v) signature and incumbency certificates of one or more officers of Borrower who are authorized to execute Funding Notices delivered under this Agreement, in substantially the form of Exhibit K (with such amendments or modifications as may be approved by Administrative Agent).
(c) Consummation of Transactions .
(i) There shall not exist any Event of Default under and as defined in the ABL Credit Agreement and the Senior Indentures.
(ii) Administrative Agent shall have received reasonably satisfactory confirmation that the transactions described in clauses (i) and (iii) of the definition of Transactions shall occur substantially concurrently with or immediately after the making of (or conversion to) the Loans hereunder.
(d) Flood Determination . Administrative Agent shall have received (A) a completed Flood Certificate with respect to each Restatement Effective Date Mortgaged Property, which Flood Certificate shall (x) be addressed to the Administrative Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Restatement Effective Date Mortgaged Property is located in a Flood Zone, Borrowers written acknowledgment of receipt of written notification from the Administrative Agent (x) as to the existence of such Restatement Effective Date Mortgaged Property and (y) as to whether the community in which each Restatement Effective Date Mortgaged Property is located is participating in the Flood Program; and (C) if such Restatement Effective Date Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program.
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(e) Personal Property Collateral . Each Credit Party shall have delivered to Administrative Agent:
(i) evidence satisfactory to Administrative Agent of the compliance by each Credit Party of their obligations under the Pledge and Security Agreement and the other Collateral Documents (including their obligations to execute or authorize, as applicable, and deliver UCC financing statements, originals of securities, instruments and chattel paper as provided therein);
(ii) a completed Collateral Questionnaire dated the Restatement Effective Date and executed by an Authorized Officer of each Credit Party, together with all attachments contemplated thereby; and
(iii) evidence that all stock certificates representing the Pledged Equity Interests (as defined in the Pledge and Security Agreement) issued by each Domestic Subsidiary and instruments evidencing the Pledged Debt (as defined in the Pledge and Security Agreement), in each case required to be delivered to the Collateral Agent pursuant to the Credit Documents, together with duly executed instruments of transfer have been delivered to Collateral Agent.
(f) Evidence of Insurance . Administrative Agent shall have received a certificate from the applicable Credit Partys insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to Section 5.5 is in full force and effect, together with endorsements naming Collateral Agent, for the benefit of Term Loan/Notes Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 5.5; provided , however , that to the extent such certificate, endorsements or other evidence is not delivered on the Restatement Effective Date, the Credit Parties shall be required to satisfy such condition on a post-closing basis pursuant to Section 5.15.
(g) Opinions of Counsel to Credit Parties . Agents and Lenders and their respective counsel shall have received originally executed copies of the favorable written opinions of Skadden, Arps, Slate, Meagher & Flom LLP, special New York counsel for Credit Parties, and Janet Link, General Counsel of Holdings, as to such matters as Administrative Agent and Collateral Agent may reasonably request, dated as of the Restatement Effective Date and in form and substance reasonably satisfactory to Administrative Agent (and each Credit Party hereby instructs such counsel to deliver such opinions to Agents and Lenders).
(h) Fees . Borrower shall have paid to each Agent the reasonable and documented fees payable on or before the Restatement Effective Date referred to in Section 2.11(a) and (b) and all reasonable and documented expenses payable pursuant to Section 10.2 which have accrued to the Restatement Effective Date.
(i) Restatement Effective Date Certificate . Holdings and Borrower shall have delivered to Administrative Agent an originally executed Restatement Effective Date Certificate, together with all attachments thereto.
(j) No Litigation . There shall not exist any actions, suits or proceedings by or before any Governmental Authority enjoining the financing contemplated by this Agreement.
(k) Letter of Direction . Administrative Agent shall have received duly executed instructions from Borrower addressed to Administrative Agent, on behalf of itself and Lenders, directing the disbursement on the Restatement Effective Date of the proceeds of the Loans made on such date.
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(l) Patriot Act . At least 5 days prior to the Restatement Effective Date, the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable know-your-customer and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) the PATRIOT Act ), to the extent that such information was requested by the Lenders at least 10 days prior to the Restatement Effective Date.
(m) Agency Transfer and Intercreditor Agreements . The Administrative Agent and the Collateral Agent shall have each received (i) a copy of the Agency Transfer Agreement, executed by the Former Agent, the Administrative Agent, the Collateral Agent and the Credit Parties, (ii) a copy of the Pari Passu Intercreditor Agreement, executed by the Collateral Agent and the Administrative Agent and acknowledged by the Credit Parties and (iii) a copy of the ABL Intercreditor Agreement, executed by Wells Fargo Bank, National Association, as administrative agent under the ABL Credit Agreement, and the Collateral Agent.
3.2. Conditions to Each Credit Extension .
(a) Conditions Precedent . The obligation of each Lender to make (or convert) any Loan on any Credit Date, including the Restatement Effective Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice;
(ii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and
(iii) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default.
(b) Notices . Any Notice shall be executed by an Authorized Officer in a writing delivered to Administrative Agent. In lieu of delivering a Notice, Borrower may give Administrative Agent telephonic notice by the required time of any proposed borrowing or conversion/continuation, as the case may be; provided each such notice shall be promptly confirmed in writing by delivery of the applicable Notice to Administrative Agent on or before the close of business on the date that the telephonic notice is given. In the event of a discrepancy between the telephone notice and the written Notice, the written Notice shall govern. In the case of any Notice that is irrevocable once given, if Borrower provides telephonic notice in lieu thereof, such telephone notice shall also be irrevocable once given. Neither Administrative Agent nor any Lender shall incur any liability to Borrower in acting upon any telephonic notice referred to above that Administrative Agent believes in good faith to have been given by a duly authorized officer or other person authorized on behalf of Borrower or for otherwise acting in good faith.
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SECTION 4. | REPRESENTATIONS AND WARRANTIES |
In order to induce Agents and Lenders to enter into this Agreement and to make each Credit Extension to be made thereby, each Credit Party represents and warrants to each Agent and Lender, on the Restatement Effective Date and on each Credit Date, that the following statements are true and correct (it being understood and agreed that the representations and warranties made on the Restatement Effective Date are deemed to be made concurrently with and giving effect to the consummation of the Transactions):
4.1. Organization; Requisite Power and Authority; Qualification . Each of the Credit Parties is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, except, in each case, where the failure to do so, individually or in the aggregate, would not result in a Material Adverse Effect.
4.2. Equity Interests and Ownership . The Equity Interests of each of the Material Subsidiaries of Borrower have been duly authorized and validly issued and are fully paid and non-assessable. Except as set forth on Schedule 4.2, as of the date hereof, there is no existing option, warrant, call, right, commitment or other agreement to which any Material Subsidiary of Borrower is a party requiring, and there is no membership interest or other Equity Interests of any Material Subsidiary of Borrower outstanding which upon conversion or exchange would require, the issuance by any Material Subsidiary of Borrower of any additional membership interests or other Equity Interests of any Material Subsidiary of Borrower or other Securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase, a membership interest or other Equity Interests of any Material Subsidiary of Borrower. Schedule 4.2 correctly sets forth the ownership interest of Borrower and each of its Material Subsidiaries in their respective Material Subsidiaries as of the Restatement Effective Date.
4.3. [Reserved] .
4.4. Governmental Consents; No Conflict . The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except (i) such as have been obtained or made and are in full force and effect or as to which the failure to be made or obtained and to be in full force and effect would not result in a Material Adverse Effect, (ii) filings necessary to perfect Liens created under the Pledge and Security Agreement and the Mortgages and (iii) filings of periodic reports with the Securities and Exchange Commission, (b) will not violate any law or regulation or the charter, by-laws or other Organizational Documents of Holdings or any Subsidiary or any material order of any Governmental Authority applicable to such Person except, in each case, as would not reasonably be expected to have a Material Adverse Effect, (c) will not violate or result in a default under any material provision of any indenture, agreement or other instrument binding upon Holdings or any of its Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by Holdings or any Subsidiary, (d) will not result in the creation or imposition of, or the requirement to impose, any Lien on any asset of Holdings or any of its Subsidiaries, except Liens created under the Collateral Documents, and (e) do not require any approval of stockholders, members or partners or any approval or consent of any Person under any Contractual Obligation of Holdings or any of its Subsidiaries, except for such approvals or consents which will be obtained on or before the Restatement Effective Date and disclosed in writing to Lenders and except for any such approvals or consents the failure of which to obtain will not have a Material Adverse Effect.
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4.5. [Reserved] .
4.6. Binding Obligation . The Transactions to be entered into by each Credit Party are within such Credit Partys organizational powers and have been duly authorized by all necessary organizational and, if required, stockholder action. This Agreement and each other Credit Document has been duly executed and delivered by each Credit Party party thereto and constitutes a legal, valid and binding obligation of such Credit Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws affecting creditors rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
4.7. Historical Financial Statements . Holdings has heretofore furnished to the Lenders the Historical Financial Statements, which shall be deemed to have been furnished to the Lenders by inclusion as part of its 10-K or 10-Q filings filed on or prior to the Restatement Effective Date. The Historical Financial Statements present fairly, in all material respects, the financial position and results of operations and cash flows of Holdings and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods thereof in accordance with GAAP, subject to normal year end audit adjustments and the absence of certain footnotes in the case of any such unaudited financial statements.
4.8. [Reserved] .
4.9. No Material Adverse Change . Since January 30, 2016, except as disclosed in Holdings publicly available filings with the United States Securities and Exchange Commission on or prior to the Restatement Effective Date (excluding risk factor or other forward looking disclosure), there has not occurred any event, circumstance or change that has resulted in or could reasonably be expected to result in a material adverse change in or effect on the financial position or results of operations of Holdings and its Subsidiaries.
4.10. [Reserved] .
4.11. Litigation . There are no actions, suits or proceedings by or before any Governmental Authority enjoining the financing contemplated by this Agreement.
4.12. Payment of Taxes . Each of Holdings and its Subsidiaries has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes shown to be due and payable on such returns, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which Holdings or such Subsidiary, as applicable, has set aside on its books adequate reserves or (b) to the extent that the failure to do so would not result in a Material Adverse Effect.
4.13. Properties .
(a) Title . Each of Holdings and its Subsidiaries has good title to, or valid leasehold or other property interests in, all its real and personal property material to the business of Holdings and its Subsidiaries (taken as a whole), except for Liens permitted under Section 6.2 and minor defects in title and leases being contested, in each case, that do not materially interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes.
(b) Intellectual Property . Each of Holdings and its Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other Intellectual Property material to its business, and the use thereof by Holdings and its Subsidiaries does not infringe upon the rights of any other Person, except for any defects in ownership or licenses and any such infringements that, individually or in the aggregate, would not result in a Material Adverse Effect.
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(c) Real Estate . As of the Restatement Effective Date, Schedule 4.13 contains a true, accurate and complete list setting forth (i) the address of each of the Real Estate Assets, (ii) the type/use of such Real Estate Assets, (iii) the Credit Party that owns interests in such Real Estate Assets and (iv) the real estate interest held by such Credit Party. The ground lease or lease, as applicable, pursuant to which any Credit Party holds any interest in any Real Estate Asset is in full force and effect, and neither Holdings nor any Subsidiary of Holdings has knowledge of any default that has occurred and is continuing thereunder, and each such agreement constitutes the legally valid and binding obligation of each applicable Credit Party, enforceable against such Credit Party in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors rights generally or by equitable principles, except to the extent that any failure of any of the foregoing, individually or in the aggregate, would not result in a Material Adverse Effect.
4.14. Environmental Matters . Except for the Disclosed Matters and except with respect to any other matters that, individually or in the aggregate, would not result in a Material Adverse Effect, neither Holdings nor any of its Subsidiaries (i) is in violation of any Environmental Law or has failed to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability. Since the Restatement Effective Date, there has been no change in the status of the Disclosed Matters that, individually or in the aggregate, has resulted in, or materially increased the likelihood of, a Material Adverse Effect.
4.15. Compliance with Laws and Agreements; No Defaults . Each of Holdings and its Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority applicable to it or its property and all material agreements and other material instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate, would not result in a Material Adverse Effect. No Default or Event of Default has occurred and is continuing. No Credit Party or Subsidiary, nor to the knowledge of any Credit Party, any director, officer, agent, employee or Affiliate of any Credit Party or Subsidiary is a Person that is (i) the subject of any sanctions administered or enforced by The Office of Foreign Assets Control of the United States Treasury Department, the U.S. Department of State, or other relevant sanctions authority (collectively, Sanctions ), or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions; and Borrower will not directly or indirectly use the proceeds of the Loans or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, (A) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions, or (B) in any other manner that would result in a violation of Sanctions by any Person (including any Person participating in the Loans, whether as underwriter, advisor, investor, or otherwise). No part of the proceeds of the Loans made hereunder will be used by any Credit Party or any of their Affiliates, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.
4.16. [Reserved] .
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4.17. Governmental Regulation . No Credit Party is an investment company as defined in, or subject to regulation under, the Investment Company Act of 1940.
4.18. Federal Reserve Regulations; Exchange Act .
(a) None of Holdings, Borrower or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of buying or carrying Margin Stock.
(b) No portion of the proceeds of any Loan shall be used in any manner, whether directly or indirectly, that causes or could reasonably be expected to cause, such Loan or the application of such proceeds to violate Regulation T, Regulation U or Regulation X of the Board of Governors or any other regulation thereof or to violate the Exchange Act.
4.19. Employee Matters . Neither Holdings nor any of its Subsidiaries is engaged in any unfair labor practice that could reasonably be expected to have a Material Adverse Effect. There is (a) no unfair labor practice complaint pending against Holdings or any of its Subsidiaries, or to the best knowledge of Holdings and Borrower, threatened against any of them before the National Labor Relations Board and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement that is so pending against Holdings or any of its Subsidiaries or to the knowledge of Holdings and Borrower, threatened against any of them, (b) no strike or work stoppage in existence or, to the knowledge of Holdings and Borrower, threatened involving Holdings or any of its Subsidiaries, and (c) to the best knowledge of Holdings and Borrower, no union organization activity that is taking place with respect to the employees of Holdings or any of its Subsidiaries, except (with respect to any matter specified in clause (a), (b) or (c) above) such as is not reasonably likely, individually or in the aggregate, to have a Material Adverse Effect.
4.20. Employee Benefit Plans . No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, would result in a Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect,) as of the most recent valuation for any Plan, no Plan had any Unfunded Pension Liability, and to the best knowledge of Holdings and Borrower, there has been no change in the funding status of any Plan since the valuation date of such recent valuation that would reasonably be expected to have a Material Adverse Effect.
4.21. [Reserved] .
4.22. Solvency . As of the Restatement Effective Date, after giving effect to the Loans incurred on the Restatement Effective Date, the Borrower and its Subsidiaries are, on a consolidated basis, Solvent.
4.23. [Reserved] .
4.24. [Reserved] .
4.25. Disclosure . Neither the Marketing Materials nor any of the other reports, certificates or other written information (other than projections (the projections ) and other forward looking information and information of a general economic or industry nature) (collectively, the information ) furnished by or on behalf of any Credit Party to any Agent or any Lender in connection with the negotiation of this Agreement or any other Credit Document or delivered hereunder (as modified or supplemented by other information so furnished and taken as a whole with all such other information),
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when furnished or modified or supplemented, contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading. The projections furnished by or on behalf of any Credit Party to any Agent or any Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished and taken as a whole with all other information), have been or will be prepared in good faith based upon assumptions that are reasonable at the time made and at the time the projections are made available to any Agent or any Lender by any Credit Party (it being understood that such projections are forward looking statements which by their nature are subject to significant uncertainties and contingencies, many of which are beyond the control of the Credit Parties, and that actual results may differ, and such differences may be material, from those expressed or implied in such projections, and no assurance can be given that the projections will be realized).
4.26. EEA Financial Institutions . No Credit Party is an EEA Financial Institution.
4.27. PATRIOT Act . To the extent applicable, each Credit Party is in compliance, in all material respects, with (i) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, and (ii) the PATRIOT Act.
SECTION 5. | AFFIRMATIVE COVENANTS |
Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until payment in full of all Obligations (other than unasserted contingent obligations), each Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 5.
5.1. Financial Statements and Other Reports . Holdings will deliver to Administrative Agent for distribution to each Lender (except as otherwise expressly required below):
(a) Quarterly Financial Statements . As soon as available, and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of Holdings, its consolidated balance sheets and related statements of operations, stockholders equity and cash flows as of the end of and for such Fiscal Quarter and the then elapsed portion of the Fiscal Year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(b) Annual Financial Statements . As soon as available, and in any event within 90 days after the end of each Fiscal Year of Holdings, its audited consolidated balance sheets and related statements of operations, stockholders equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other independent public accountants of recognized national standing (without a going concern or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP;
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(c) Compliance Certificate . Together with each delivery of financial statements of Holdings and its Subsidiaries pursuant to Sections 5.1(a) and 5.1(b), a duly executed and completed Compliance Certificate of a Financial Officer of Holdings or Borrower (i) certifying as to whether a Default has occurred and is continuing on the date thereof and, if a Default has occurred and is continuing on such date, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (ii) stating whether any change in GAAP or in the application thereof has occurred since the date of the most recent audited financial statements referred to in Section 4.7 or delivered pursuant to clause (b) above and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) [Reserved];
(e) Notice of Default . Promptly upon any Financial Officer or other executive officer obtaining knowledge (i) of the occurrence of any Default or any Event of Default, or (ii) of any other development that results in, or would reasonably be expected to result in, a Material Adverse Effect, a certificate of a Financial Officer or other executive officer of Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto;
(f) Notice of Litigation . Promptly upon any Financial Officer or other executive officer obtaining knowledge of the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting Holdings, Borrower or any Subsidiary thereof that, if adversely determined, would reasonably be expected to result in a Material Adverse Effect (other than any Disclosed Matters);
(g) ERISA . Promptly upon any Financial Officer or other executive officer obtaining knowledge of the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, would result in liability of Holdings and its Subsidiaries in an aggregate amount exceeding $100,000,000;
(h) Financial Plan . Within 90 days after the end of each Fiscal Year, an annual financial forecast (in a form consistent with forecasts previously provided to or otherwise approved by Administrative Agent) for Holdings and its Subsidiaries for the subsequent Fiscal Year (including a consolidated balance sheet of Holdings and its Subsidiaries as of the end of the prior fiscal year and consolidated statements of income and cash flows of Holdings and its Subsidiaries for such Fiscal Year) (a Financial Plan );
(i) Insurance Report . Each Credit Party shall deliver to Administrative Agent a copy of a certificate of insurance evidencing the required coverage on or prior to the Restatement Effective Date and promptly following each renewal or replacement of such policies thereafter. Borrower will furnish to the Administrative Agent, upon its reasonable request, information in reasonable detail as to the insurance so maintained;
(j) Information Regarding Collateral . Borrower will furnish to Administrative Agent and Collateral Agent prompt written notice of any change (i) in the legal name of any Credit Party, (ii) in the identity or type of organization or corporate structure of any Credit Party, (iii) in the Federal Taxpayer Identification Number or other identification number of any Credit Party, or (iv) in the jurisdiction of organization of any Credit Party. Holdings and Borrower agree not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the UCC or otherwise that are required in order for Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral;
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(k) Annual Collateral Verification . Each year, at the time of delivery of annual financial statements with respect to the preceding Fiscal Year pursuant to Section 5.1(b), Borrower shall deliver to Administrative Agent (i) a certificate of its Authorized Officer (A) either confirming that there has been no change in the information set forth in sections I.A.-D., I.H., II.A.-B. and II.E.-G. of the Collateral Questionnaire delivered on the Restatement Effective Date or the date of the most recent certificate delivered pursuant to this Section 5.1 and/or identifying such changes and (B) certifying that all UCC financing statements (including fixtures filings, as applicable) and all supplemental intellectual property security agreements or other appropriate filings, recordings or registrations, have been filed of record in each governmental, municipal or other appropriate office in each jurisdiction identified pursuant to clause (A) above (or in such Collateral Questionnaire) to the extent necessary to establish a legal, valid and perfected security interest in favor of the Collateral Agent (for the benefit of the Term Loan/Notes Secured Parties) in respect of all Collateral in which a Lien may be perfected by filing, recording or registration in the United States (or any political subdivision thereof), and (ii) upon request by Administrative Agent, a copy of any certificate or other document delivered to the administrative agent or collateral agent under the ABL Credit Agreement updating the information contained in any perfection certificate or similar document with respect to the ABL Priority Collateral, or certifying that there have been no changes to such information;
(l) Other Information . (A) Promptly upon their becoming publicly available, copies (or email notice) of all periodic reports and all registration, proxy statements and prospectuses, if any, filed by any Credit Party with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, (B) promptly after any Credit Party obtains knowledge that (i) Moodys or S&P shall have announced a change in the Credit Rating established or deemed to have been established by such rating agency, written notice of such Credit Rating change, and (C) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of Holdings or any Subsidiary as Administrative Agent or Collateral Agent may reasonably request; provided that none of Holdings or any of its Subsidiaries will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that (x) constitutes non-financial trade secrets or non-financial proprietary information, (y) in respect of which disclosure to the Agent or any Lender (or their respective representatives or contractors) is prohibited by Law or any bona fide binding agreement or (z) is subject to attorney-client or similar privilege or constitutes attorney work product; and
(m) Certification of Public Information . Holdings, Borrower and each Lender acknowledge that certain of the Lenders may be Public Lenders and, if documents or notices required to be delivered pursuant to this Section 5.1 or otherwise are being distributed through IntraLinks, SyndTrak or another relevant website or other information platform (the Platform ), any document or notice that Holdings or Borrower has indicated contains Non-Public Information shall not be posted on that portion of the Platform designated for such Public Lenders. Each of Holdings and Borrower agrees to use commercially reasonable efforts to clearly designate all information provided to Administrative Agent by or on behalf of Holdings or Borrower which is suitable to make available to Public Lenders. If Holdings or Borrower has not indicated whether a document or notice delivered pursuant to this Section 5.1 contains Non-Public Information, Administrative Agent reserves the right to post such document or notice solely on that portion of the Platform designated for Lenders who wish to receive material Non-Public Information with respect to Holdings, its Subsidiaries and their Securities.
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Documents required to be delivered pursuant to Section 5.1(a), 5.1(b) or 5.1(l) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the earliest of the date (i) on which Holdings posts such documents, or provides a link thereto on Holdings website on the Internet at the website address; (ii) on which such documents are posted to the Securities and Exchange Commissions (or any Governmental Authority succeeding to any or all of the functions of said Commissions) website (including as part of any 10-K or 10-Q filing) or (iii) on which such documents are posted on Holdings behalf on any Platform to which each Lender and Administrative Agent have access (whether a commercial, third-party website or whether sponsored by Administrative Agent); provided that (A) Holdings shall have notified Administrative Agent of the posting of such documents and (B) in the case of documents required to be delivered pursuant to Section 5.1(a) or (b), Holdings shall deliver electronic copies of such documents to Administrative Agent if any Lender requests that Holdings deliver such copies until a request to cease delivering copies is given by Administrative Agent at the request of such Lender. Administrative Agent shall have no obligation to request the delivery of or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by Holdings with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
5.2. Existence . Each Credit Party will, and will cause each of its Material Subsidiaries to, (a) do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and (b) except as would not reasonably be expected to have a Material Adverse Effect, take all reasonable action to preserve, renew and keep in full force and effect its rights, licenses, permits, privileges and franchises; provided that the foregoing clauses (a) and (b) shall not prohibit any merger, consolidation, liquidation, transfer of assets or dissolution permitted under Section 6.8 and, in the case of an asset transfer, Section 6.7.
5.3. Payment of Taxes . Each of Holdings and the Borrower will, and will cause each of its Subsidiaries to, pay its Tax liabilities, that, if not paid, would result in a Material Adverse Effect before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) Holdings, the Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending such contest would not result in a Material Adverse Effect.
5.4. Maintenance of Properties . Each Credit Party will, and will cause each of its Subsidiaries to, keep and maintain all property material to the conduct of the business of Holdings and its Subsidiaries (taken as a whole) in good working order and condition, ordinary wear and tear, condemnation and casualty loss excepted, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect; provided that the foregoing shall not prohibit the disposition of any property otherwise permitted by this Agreement; provided , further , that nothing in this Section shall prevent Holdings or any Subsidiary from discontinuing the operations or maintenance of any of its properties, or terminating any leases of any of its properties, in each case no longer deemed by Holdings or such Subsidiary, as applicable, to be useful in the conduct of its business.
5.5. Insurance . Each of Holdings and the Borrower will, and will cause each of its Material Subsidiaries to, maintain, (1) with financially sound and reputable insurance companies or (2) with association or captive insurance companies or pursuant to self-insurance, (a) insurance in such amounts (with no greater risk retention) and against such risks (including physical loss or damage to the Collateral (including all inventory constituting Collateral)) as are customarily maintained by companies of established repute engaged in the same or similar businesses operating in the same or similar locations.
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Subject to the ABL Intercreditor Agreement, each such policy of insurance shall (i) name Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, as an additional insured thereunder as its interests may appear, and policies maintained with respect to any Collateral shall be endorsed or otherwise amended to include a lenders loss payable clause in favor of Collateral Agent and providing for losses thereunder to be payable to Collateral Agent or its designee, provided that, unless an Event of Default shall have occurred and be continuing, (A) Collateral Agent shall turn over to Borrower any amounts received by it as loss payee under any such policies and (B) Holdings, Borrower and/or the applicable Material Subsidiary shall have the sole right to make, settle and adjust claims in respect of such insurance. Each such policy referred to in this paragraph shall be evidenced by a certificate pursuant to which the relevant insurance broker will endeavor to provide Collateral Agent (A) at least 10 days prior written notice of any cancelation, modification or nonrenewal of any such policy by reason of nonpayment of premium (giving Collateral Agent the right to cure defaults in the payment of premiums) and (B) at least 30 days prior written notice of any cancelation, modification or nonrenewal of any such policy for any reason other than nonpayment of premium.
5.6. Books and Records; Inspections . Each of Holdings and the Borrower will, and will cause each of its Subsidiaries to, keep proper books of record and account in accordance with GAAP. Each of Holdings and the Borrower will, and will cause each of its Subsidiaries to, permit any representatives designated by Administrative Agent, upon reasonable prior notice and without disruption of the normal and ordinary conduct of the business of Holdings, the Borrower or any such Subsidiary, to visit and inspect its properties, to examine and make extracts from its books and records (but Administrative Agent may not have more than one such visit per any twelve month period except during an Event of Default), and to discuss its affairs, finances and condition with its officers and, if an executive officer or a Financial Officer of Borrower has been afforded an opportunity to be present, independent accountants (subject to such accountants customary policies and procedures), all at such reasonable times during normal business hours and as often as reasonably requested. Notwithstanding anything to the contrary in this Section 5.6, (i) none of Holdings, the Borrower nor any Subsidiary will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that (a) in respect of which disclosure to Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by law or any bona fide binding agreement or (b) is subject to attorney-client or similar privilege or constitutes attorney work product; provided that each of Holdings and the Borrower will, and will cause each of its Subsidiaries to, make available redacted versions of requested documents or, if unable to do so consistent with the preservation of such privilege, shall endeavor in good faith otherwise to disclose information responsive to the requests of Administrative Agent, any Lender or any of their respective related parties, in a manner that will protect such privilege, (ii) no such inspection of any Real Estate Asset (or any portion thereof) shall be permitted if the same would, or could reasonably be expected to, materially interfere with the use and/or operation of such Real Estate Asset and unless a Credit Party or its representatives is given the opportunity to be present and (iii) Administrative Agent shall not have the right to perform any Phase I Environmental Site Assessment or any invasive analysis or sampling of any environmental medium, including any Phase II Environmental Site Investigation or Assessment, without the written authorization of Borrower absent an Event of Default under Section 8.1(a), (f) or (g).
5.7. Lenders Meetings . Holdings and Borrower will, upon the request of Administrative Agent or Requisite Lenders, participate in a meeting of Administrative Agent and Lenders once during each Fiscal Year to be held at Borrowers corporate offices (or at such other location, or by teleconference, in each case as may be agreed to by Borrower and Administrative Agent) at such time as may be agreed to by Borrower and Administrative Agent.
5.8. Compliance with Laws . Each of Holdings and the Borrower will, and will cause each of its Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, would not result in a Material Adverse Effect.
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5.9. Environmental .
(a) Environmental Disclosure . Holdings will deliver to Administrative Agent (for distribution to the Lenders) and Collateral Agent:
(i) as soon as practicable following receipt thereof, copies of all environmental audits, investigations, analyses and reports of any kind or character, whether prepared by personnel of Holdings or any of its Subsidiaries or by independent consultants, Governmental Authorities or any other Persons, with respect to environmental matters at any Facility or with respect to any Environmental Claims or Environmental Liabilities, if such environmental matters, Environmental Claims or Environmental Liabilities are reasonably expected to result in a Material Adverse Effect;
(ii) promptly upon the occurrence thereof, written notice describing in reasonable detail (1) any Release required to be reported to any Governmental Authority under any applicable Environmental Laws that is reasonably expected to result in a Material Adverse Effect, (2) any remedial action taken by Holdings or any other Person in response to (A) any Hazardous Materials Activities the existence of which has a reasonable possibility of resulting in one or more Environmental Claims or Environmental Liabilities having, individually or in the aggregate, a Material Adverse Effect, (2) any Environmental Claims or Environmental Liabilities that, individually or in the aggregate, are reasonably expected to result in a Material Adverse Effect, and (3) Holdings or Borrowers discovery of any occurrence or condition on any real property adjoining or in the vicinity of any Real Estate Asset subject to Mortgage under this Agreement that could cause such Real Estate Asset or any part thereof to be subject to any material restrictions on the ownership, occupancy, transferability or use thereof under any Environmental Laws;
(iii) as soon as practicable following the sending or receipt thereof by Holdings or any of its Subsidiaries, a copy of any material written communications with respect to (1) any Environmental Claims or Environmental Liabilities that, individually or in the aggregate, are reasonably expected to give rise to a Material Adverse Effect, (2) any Release required to be reported to any Governmental Authority that is reasonably expected to result in a Material Adverse Effect, and (3) any request for information from any Governmental Authority that suggests such Governmental Authority is investigating whether Holdings or any of its Subsidiaries may be potentially responsible for any Hazardous Materials Activity if such investigation is reasonably expected to give rise to a Material Adverse Effect; and
(iv) with reasonable promptness, such other documents and information as from time to time may be reasonably requested by Administrative Agent or Collateral Agent in relation to any matters disclosed pursuant to this Section 5.9(a).
(b) Hazardous Materials, Etc. Each Credit Party shall promptly take, and shall cause each of its Subsidiaries promptly to take, any and all commercially reasonable actions to (i) cure any violation of applicable Environmental Laws by such Credit Party or its Subsidiaries that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and (ii) make an appropriate response to any Environmental Claim or Environmental Liabilities against such Credit Party or any of its Subsidiaries and discharge any obligations it may have to any Person thereunder where failure to do so could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
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5.10. Subsidiaries .
(a) Subject to Section 5.10(b), if any wholly owned Domestic Subsidiary of Borrower (other than any Domestic Subsidiary, substantially all of the assets of which consist of Equity Interests in one or more Foreign Subsidiaries) becomes a Material Subsidiary, guarantees or becomes a borrower in respect of the obligations under the ABL Credit Agreement, or otherwise is required to become a Guarantor after the Restatement Effective Date, Holdings and Borrower shall, within fifteen Business Days after such wholly-owned Domestic Subsidiary becomes a Material Subsidiary, guarantees or becomes a borrower in respect of the obligations under the ABL Credit Agreement, or is required to become a Guarantor (as applicable), notify Administrative Agent and the Lenders thereof and promptly (i) cause such wholly-owned Domestic Subsidiary to become a Guarantor hereunder and a Grantor under the Pledge and Security Agreement by executing and delivering to Administrative Agent and Collateral Agent a Counterpart Agreement, (ii) obtain all consents and approvals required to be obtained by it in connection with the execution and delivery of the Collateral Documents and the performance of its obligations thereunder and the granting by it of the Liens thereunder, and (iii) take all such actions and execute and deliver, or cause to be executed and delivered, all such documents, instruments, agreements, and certificates reasonably requested by Administrative Agent in order to create (A) Liens in favor of the Collateral Agent on any Material Real Estate Assets and (B) the Liens intended to be created by the Pledge and Security Agreement and to perfect such Liens to the extent required by, and with the priority required by, the Pledge and Security Agreement and the Intercreditor Agreements, in each case including those which are similar to those described in Sections 3.1(b), 3.1(d), 3.1(e), 3.1(f), 3.1(g), 5.16(a)(i), 5.16(a)(ii), 5.16(a)(v), 5.16(a)(vii), 5.16(a)(viii) and 5.16(a)(ix). In the event that any Person becomes a Foreign Subsidiary of Borrower (including any Domestic Subsidiary, substantially all of the assets of which consist of Equity Interests in one or more Foreign Subsidiaries), and the ownership interests of such Foreign Subsidiary are owned by Borrower or by any wholly owned Domestic Subsidiary thereof that is or becomes a Material Subsidiary, guarantees or becomes a borrower in respect of the obligations under the ABL Credit Agreement, or otherwise is required to become a Guarantor after the Restatement Effective Date, Borrower shall, or shall cause such wholly-owned Domestic Subsidiary to, deliver, all such documents, instruments, agreements, and certificates as are similar to those described in Section 3.1(b), and Borrower shall take, or shall cause such wholly-owned Domestic Subsidiary that is required to be a Guarantor to take, all of the actions referred to in Section 3.1(e) necessary to grant and to perfect a First Priority Lien in favor of Collateral Agent, for the benefit of Term Loan/Notes Secured Parties, under the Pledge and Security Agreement in 65% of such voting ownership interests and 100% of such non-voting ownership interests. With respect to each such wholly owned Domestic Subsidiary, Borrower shall promptly send to Administrative Agent written notice setting forth with respect to such Person (i) the date on which such Person became a Subsidiary of Borrower, and (ii) all of the data required to be set forth in Schedule 4.2 with respect to all Subsidiaries of Borrower; and such written notice shall be deemed to supplement Schedule 4.2 for all purposes hereof.
(b) Notwithstanding anything to the contrary herein, in no event shall the Collateral include (i) any Real Estate Assets which are not Material Real Estate Assets and (ii) Excluded Assets (as such term is defined in the Pledge and Security Agreement).
5.11. Additional Material Real Estate Assets . Subject to Section 5.10(b), in the event that any Credit Party acquires or designates after the Restatement Effective Date a Material Real Estate Asset and such interest in such Material Real Estate Asset is not otherwise subject to a Permitted Lien described in Section 6.2(d) that prohibits a Lien in favor of the Collateral Agent and is not otherwise excluded from the Collateral by the definition of Excluded Assets, then such Credit Party shall promptly take all such actions and execute and deliver, or cause to be executed and delivered, all such mortgages, documents, instruments, agreements, opinions and certificates, including those which are similar to those described in Sections 3.1(d), 5.16(a)(i), 5.16(a)(ii), 5.16(a)(v), 5.16(a)(vii), 5.16(a)(viii) and 5.16(a)(ix) with respect to
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each such Material Real Estate Asset that Administrative Agent shall reasonably request to create in favor of Collateral Agent, for the benefit of Term Loan/Notes Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in such Material Real Estate Assets. In addition to the foregoing, Borrower shall, at the request of Administrative Agent, deliver to Administrative Agent or cooperate as necessary for the Administrative Agent to obtain, from time to time, such appraisals as are required by law or regulation of Real Estate Assets with respect to which Collateral Agent has been granted a Lien.
5.12. [Reserved] .
5.13. Further Assurances . Each Credit Party will execute any and all further documents, financing statements, agreements and instruments, and take all such further actions, which may be required under any applicable law, or which Administrative Agent may reasonably request, to ensure that the Obligations are guaranteed by the Guarantors and are secured by substantially all of the assets of the Credit Parties and all of the outstanding Equity Interests of each Guarantor Subsidiary (subject to limitations contained in Section 5.10(b) and in the Credit Documents), all at the expense of the Credit Parties. Holdings and Borrower also agree to provide to Administrative Agent from time to time upon reasonable request, evidence reasonably satisfactory to Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Collateral Documents, including, if so requested by Administrative Agent, by entering into amendments or modifications to the Mortgages.
5.14. Maintenance of Ratings . Unless otherwise consented to by Requisite Lenders, Holdings and Borrower will use commercially reasonable efforts to maintain continuously in effect (i) a Credit Rating from each of Moodys and S&P in respect of Holdings and (ii) a credit rating of the Loans from each of Moodys and S&P.
5.15. Post-Closing Matters . Each of the Credit Parties, as applicable, shall satisfy the requirements set forth on Schedule 5.15 on or before the date specified for such requirement.
5.16. Post-Closing Real Estate Matters .
(a) Real Estate Assets . In order to create in favor of Collateral Agent, for the benefit of Term Loan/Notes Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority Lien and security interest in certain Real Estate Assets, the Borrower and each applicable Guarantor shall deliver to the Collateral Agent within 30 days of the Restatement Effective Date (subject to extension by the Administrative Agent in its sole discretion):
(i) with respect to each Restatement Effective Date Mortgaged Property, evidence satisfactory to the Administrative Agent that such Credit Party has delivered to the Title Company an executed Mortgage for recordation in the appropriate recording office, together with a written direction to record the same and funds sufficient to pay any applicable mortgage tax or other applicable recording charge;
(ii) with respect to each Restatement Effective Date Mortgaged Property, a customary opinion of (A) local counsel, in each case, opining that (i) each Mortgage is recordable in the applicable jurisdiction; (ii) upon recordation, the Mortgage will constitute a valid lien against the applicable real property; and (iii) the Mortgage is enforceable against the mortgagor party thereto and (B) outside counsel or in-house counsel, opining that, to the extent not covered in another opinion being delivered by the Credit Parties, the Mortgage has been duly authorized, executed and delivered by the applicable Credit Party, in each case in form reasonably acceptable to Administrative Agent;
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(iii) with respect to each Title Policy Property, an ALTA extended coverage lenders policies of title insurance (each, a Title Policy ) (which shall not include a general mechanics lien exception) and a new survey or an existing survey together with a no-change affidavit sufficient to cause the Title Company to remove the general survey exception from such Title Policy and issue the survey-related endorsements with respect to the Title Policy Properties;
(iv) with respect to the fee-owned and ground-leased stores of Holdings and its Subsidiaries identified on Schedule 5.16(a)(iv), Letter of value appraisals from Cushman & Wakefield Inc. (the Initial Appraisal );
(v) for each Restatement Effective Date Mortgaged Property that is not a Title Policy Property, a current title search, no-change letter or similar title product reasonably acceptable to the Administrative Agent;
(vi) with respect to each Title Policy Property, evidence that such affidavits, certificates, information (including financial data) and instruments of indemnification (including so-called gap indemnification) as shall be required to induce the Title Company to issue the Title Policies have been delivered to the Title Company;
(vii) evidence reasonably acceptable to the Administrative Agent of payment by Borrower of all Title Policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages for each Restatement Effective Date Mortgaged Property (or Specified Asset) and issuance of the Title Policies and other similar title products contemplated by Section 5.16(a)(v);
(viii) with respect to each Restatement Effective Date Mortgaged Property that is a Leasehold Property, if required pursuant to the applicable lease, a copy of the notice to the landlord thereunder providing notice of the lien created by the Mortgage; and
(ix) proper fixture filings under the Uniform Commercial Code on Form UCC-1 for filing under the Uniform Commercial Code in the appropriate jurisdiction in which the Restatement Effective Date Mortgaged Properties are located, necessary to perfect the security interests in fixtures purported to be created by the Restatement Effective Date Mortgaged Properties in favor of the Collateral Agent for the benefit of the Term Loan/Notes Secured Parties; provided, however, that to the extent local counsel opines that any Mortgage would constitute a valid and effective fixture filing in the jurisdiction in which the applicable Restatement Effective Date Mortgaged Property is located, in form and substance satisfactory to the Administrative Agent, a fixture filing on Form UCC-1 shall not be required with respect to such Restatement Effective Date Mortgaged Property.
(b) Specified Assets . Notwithstanding Section 5.16(a), with respect to any Material Real Estate Asset that is also a Specified Asset, Borrower shall not be required to comply with the requirements of Sections 3.1(d), 5.16(a)(i), 5.16(a)(ii), 5.16(a)(v), 5.16(a)(vii), 5.16(a)(viii) and 5.16(a)(ix) with respect to any Specified Asset unless it is still owned by a Credit Party on the date that is 365 days from the Restatement Effective Date, and shall comply with all such requirements within 365 days from the Restatement Effective Date with respect to Specified Assets still owned on such date.
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SECTION 6. | NEGATIVE COVENANTS |
Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until payment in full of all Obligations (other than unasserted contingent obligations), such Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 6.
6.1. Indebtedness . No Credit Party will, nor will it permit any Subsidiary to, create, incur, assume or guarantee, or otherwise be liable in respect of any Indebtedness, except:
(a) the Obligations;
(b) Indebtedness existing on the Restatement Effective Date and set forth in Schedule 6.1 and amendments, extensions, renewals, refinancings and replacements, in whole or in part, of any such Indebtedness that do not increase the outstanding principal amount thereof (other than in respect of any accrued interest, premium, fees, costs or expenses payable in connection with such extension, renewal, refinancing or replacement) or result in an earlier maturity date or decreased weighted average life thereof; provided , that (i) no additional direct or contingent obligors may become liable in respect of such Indebtedness existing on the Restatement Effective Date (or any amendments, extensions, renewals, refinancings and replacements of such Indebtedness otherwise permitted pursuant to this clause (b)), (ii) such Indebtedness (and any amendments, extensions, renewals, refinancings and replacements of such Indebtedness otherwise permitted pursuant to this clause (b)) shall not be secured by any assets other than the assets securing the Indebtedness as of the Restatement Effective Date and (iii) in the case of any such Indebtedness constituting intercompany Indebtedness of a Credit Party to a non-Credit Party, such Indebtedness (and any amendments, extensions, renewals, refinancings and replacements of such Indebtedness otherwise permitted pursuant to this clause (b)) shall be non-cash pay, non-amortizing, and without covenants or defaults other than non-payment at maturity;
(c) Indebtedness of Holdings and Borrower under the 1994 Indenture, the 2014 Indenture and the 2023 Indenture existing on the Restatement Effective Date after giving effect to the Transactions and extensions, renewals, refinancings and replacements, in whole or in part, of such Indebtedness that do not increase the outstanding principal amount thereof (other than in respect of any accrued interest, premium, fees, costs or expenses payable in connection with such extension, renewal, refinancing or replacement) or result in an earlier maturity date or decreased weighted average life thereof; provided that (i) no additional direct or contingent obligors may become liable in respect of such Indebtedness existing on the Restatement Effective Date (or any extensions, renewals, refinancings and replacements of such Indebtedness otherwise permitted pursuant to this clause (c)) and (ii) such Indebtedness (and any extensions, renewals, refinancings and replacements of such Indebtedness otherwise permitted pursuant to this clause (c)) shall not be secured by any assets of Borrower or any Subsidiary thereof;
(d) Indebtedness of Holdings or Borrower to any Subsidiary or any Excluded Subsidiary and of any Subsidiary to Holdings or any other Subsidiary; provided that any such Indebtedness owing by any Subsidiary that is not a Credit Party to any Credit Party shall be incurred in compliance with Section 6.6; provided , further that (i) all such Indebtedness owing by a non-Credit Party to a Credit Party shall be evidenced by an intercompany note that is in form and substance reasonably acceptable to the Administrative Agent and shall be subject to a First
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Priority Lien pursuant to the Pledge and Security Agreement, (ii) all such Indebtedness owed by a Credit Party to a non-Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations, (iii) any payment by any such Subsidiary that is a Guarantor Subsidiary under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such Subsidiary to Borrower or to any of its Subsidiaries for whose benefit such payment is made and (iv) in the case of any such Indebtedness owed by a Credit Party to an Excluded Subsidiary, such Indebtedness shall be unsecured, non-cash pay, non-amortizing, and without covenants or defaults other than non-payment at maturity;
(e) guarantees by Holdings or any of its Subsidiaries of Indebtedness of (i) so long as such Subsidiary also guarantees the Obligations on a pari passu basis, any Credit Party or (ii) any other Subsidiary; provided that such guarantees of Indebtedness of Subsidiaries that are not Credit Parties are incurred in compliance with Section 6.6; and provided , further that no Subsidiary of Borrower may guaranty any Indebtedness of the types described in clauses (b) (except with respect to Capital Lease Obligations identified on Schedule 6.1), (c), (i) or (o) of this Section 6.1;
(f) Permitted Indebtedness;
(g) Indebtedness of Holdings or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets (other than real property or fixtures constituting Collateral as of the Restatement Effective Date or required to become Collateral pursuant to Section 5.16) or to finance the acquisition of computer hardware or software or other information technology assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than in respect of any accrued interest, premium, fees, costs or expenses payable in connection therewith); provided that (i) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this clause (g) shall not exceed $750,000,000 at any time outstanding;
(h) Indebtedness of any Person that becomes a Subsidiary after the Restatement Effective Date and extensions, renewals, refinancings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (other than in respect of any accrued interest, premium, fees, costs or expenses payable in connection therewith); provided that (i) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary, (ii) the aggregate principal amount of Indebtedness permitted by this clause (h) shall not exceed $500,000,000 at any time outstanding and (iii) after giving effect to such Person becoming a Subsidiary and such Indebtedness, the Fixed Charge Coverage Ratio for the Test Period in effect at the time such Person becomes a Subsidiary shall not be less than 1.10 to 1.00 (determined on a pro forma basis in accordance with Section 1.2(b) as of the last day of such Test Period);
(i) Permitted Long-Term Indebtedness;
(j) Indebtedness under the ABL Credit Agreement; provided that the aggregate principal amount of loans and advances under the ABL Credit Agreement and unreimbursed obligations under letters of credit incurred under the ABL Credit Agreement shall not exceed $2,650,000,000; provided , further that such Indebtedness, if secured by the ABL Priority Collateral, constitutes permitted ABL Secured Obligations under the ABL Intercreditor Agreement;
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(k) (i) Permitted Additional Debt (A) that is issued for cash consideration (which, for the avoidance of doubt, may be issued with original issue discount) to the extent the Refinancing Debt Proceeds thereof are applied on the date of receipt to prepay Loans and (B) so long as, immediately after giving effect to the incurrence of such Permitted Additional Debt and the application of proceeds therefrom, no Event of Default has occurred and is continuing, and (ii) amendments, extensions, renewals, refinancings and replacements, in whole or in part, of any such Indebtedness described in clause (i) above that do not increase the outstanding principal amount thereof (other than in respect of any premium, fees, costs or expenses payable in connection with such extension, renewal, refinancing or replacement); provided that such amendments, extensions, renewals, refinancings and replacements, in whole or in part, of any such Indebtedness (A) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being amended, extended, renewed, refinanced or replaced, (B) shall have terms and conditions (other than pricing, rate floors, discounts, fees, call protection, premiums and optional prepayment or redemption provisions) that in the good faith determination of Borrower are not materially less favorable (when taken as a whole) to Borrower than the terms and conditions of the Indebtedness being amended, extended, renewed, refinanced or replaced (when taken as a whole) ( provided that a certificate of Borrower as to the satisfaction of the conditions described in this clause (B) delivered at least five (5) Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of documentation relating thereto, stating that Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirements of this clause (B), shall be conclusive unless Administrative Agent notifies Borrower within such five (5) Business Day period that it disagrees with such determination (including a description of the basis upon which it disagrees)), (C) is not at any time guaranteed by any Person other than Persons that are Credit Parties and (D) such Indebtedness is not secured by any property or assets of Holdings or any Subsidiary other than the Collateral and any Liens securing such Indebtedness shall not have greater priority compared to the Liens securing the Loans than the Liens securing the Indebtedness so amended, extended, renewed, refinanced or replaced;
(l) other Indebtedness in an aggregate principal amount not to exceed $500,000,000 at any time outstanding;
(m) Indebtedness consisting of letters of credit, guarantees or other credit support provided in respect of trade payables of Borrower or any Subsidiary, in each case issued for the benefit of any bank, financial institution or other Person that has acquired such trade payables pursuant to supply chain or other similar financing for vendors and suppliers of Borrower or any of its Subsidiaries, so long as (i) other than in the case of Secured Supply Chain Obligations, such Indebtedness is unsecured, (ii) the terms of such trade payables shall not have been extended in connection with the Permitted Supply Chain Financing and (iii) such Indebtedness represents amounts not in excess of those which Borrower or any of its Subsidiaries would otherwise have been obligated to pay to its vendor or supplier in respect of the applicable trade payables ( Permitted Supply Chain Financing );
(n) Indebtedness of Holdings or any of its Subsidiaries supported by a letter of credit issued pursuant to the ABL Credit Agreement, in a principal amount not in excess of the stated amount of such letter of credit;
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(o) (i) unsecured Indebtedness of Holdings or Borrower convertible into, or by reference to, common Equity Interests (other than Disqualified Equity Interests) of Holdings or Borrower, (ii) preferred Equity Interests (other than Disqualified Equity Interests) of Holdings convertible into common Equity Interests (other than Disqualified Equity Interests) of Holdings, (iii) preferred Equity Interests (other than Disqualified Equity Interests) of Holdings, (iv) any call spread, capped call or similar transactions entered into in connection with such Indebtedness or preferred Equity Interests (other than Disqualified Equity Interests) or mandatorily convertible units of Indebtedness and such Equity Interests, and (v) mandatorily convertible units of Indebtedness and Equity Interests, so long as (1) any Indebtedness portion thereof is unsecured and (2) the purchase contract constituting such Equity Interests is for common stock (other than Disqualified Equity Interests); provided that (A) any such Indebtedness is not guaranteed by any Subsidiary of Holdings (other than Borrower), (B) such Indebtedness or preferred stock does not mature or become mandatorily payable (including pursuant to a mandatory offer to purchase) prior to the 90th day after the Latest Maturity Date (measured as of the time that such Indebtedness or preferred stock is incurred or issued, as applicable) (other than pursuant to Customary Mandatory Prepayment Terms or the Indebtedness portion of any mandatorily convertible units and (C) any net settlement features of such Indebtedness shall be permitted by Section 6.16;
(p) Indebtedness pursuant to Sale/Leaseback Transactions consummated pursuant to Section 6.10(b) or (c);
(q) Indebtedness issued by Holdings or any of its Subsidiaries to future, current or former officers, directors and employees thereof, their respective estates, spouses or former spouses, in each case to finance the purchase or redemption of Equity Interests (other than Disqualified Equity Interests) held by any future, present or former employee, director or consultant of Holdings or any of its Subsidiaries pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, or any stock subscription or shareholder agreement, in each case to the extent would be permitted by Section 6.4(l) if such purchase or redemption was made as a Restricted Payment;
(r) unsecured reimbursement obligations in respect of standby letters of credit issued in the ordinary course of business for the account of Holdings, Borrower, or any other direct or indirect Subsidiary of Holdings so long as only Borrower and Holdings are obligated to reimburse the issuer thereof in the case of any drawing; and
(s) Indebtedness under the 2016 Notes, and amendments, extensions, renewals, refinancings and replacements, in whole or in part, of any such Indebtedness that do not increase the outstanding principal amount thereof (other than in respect of any premium, fees, costs or expenses payable in connection with such extension, renewal, refinancing or replacement); provided that such amendments, extensions, renewals, refinancings and replacements, in whole or in part, of any such Indebtedness (A) shall not have an earlier maturity date or shorter weighted average life than the Indebtedness being amended, extended, renewed, refinanced or replaced, (B) shall have terms and conditions (other than pricing, rate floors, discounts, fees, premiums and optional prepayment or redemption provisions) that in the good faith determination of Borrower are not materially less favorable (when taken as a whole) to Borrower than the terms and conditions of the Indebtedness being amended, extended, renewed, refinanced or replaced (when taken as a whole) (provided that a certificate of Borrower as to the satisfaction of the conditions described in this clause (B) delivered at least five (5) Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of documentation relating thereto, stating that Borrower
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has determined in good faith that such terms and conditions satisfy the foregoing requirements of this clause (B), shall be conclusive unless Administrative Agent notifies Borrower within such five (5) Business Day period that it disagrees with such determination (including a description of the basis upon which it disagrees)), (C) is not at any time guaranteed by any Person other than Persons that are Credit Parties, and (D) such Indebtedness is not secured by any property or assets of Holdings or any Subsidiary other than the Collateral and any Liens securing such Indebtedness shall not have greater priority compared to the Liens securing the Loans than the Liens securing the Indebtedness so amended, extended, renewed, refinanced or replaced.
Notwithstanding the foregoing, no Subsidiary of Borrower shall be permitted to guarantee, or otherwise become liable (whether direct or indirect) with respect to, Indebtedness otherwise permitted under clauses (b) (except with respect to Capital Lease Obligations identified on Schedule 6.1), (c), (i) or (o) of this Section 6.1.
6.2. Liens . No Credit Party will, nor will it permit any Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, except:
(a) Liens in favor of Collateral Agent pursuant to any Credit Document to secure the Obligations;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of Holdings or any Subsidiary existing on the Restatement Effective Date and set forth in Schedule 6.2; provided that (i) such Lien shall not apply to any other property or asset of Holdings or any Subsidiary and (ii) such Lien shall secure only those obligations which it secured on the Restatement Effective Date and refinancings, extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof, other than in respect of any accrued interest, premium, fees, costs or expenses payable in connection with such extension, renewal or replacement;
(d) any Lien existing on any property or asset prior to the acquisition thereof by Holdings or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the Restatement Effective Date prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of Holdings or any Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be and refinancings, extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof, other than in respect of any accrued interest, premium, fees, costs or expenses payable in connection with such extension, renewal or replacement;
(e) Liens on fixed or capital assets (other than real property or fixtures constituting Collateral as of the Restatement Effective Date or required to become Collateral pursuant to Section 5.16) or on computer hardware or software or other information technology assets which are acquired, constructed or improved by Holdings or any Subsidiary; provided that (i) such security interests secure Indebtedness permitted by clause (g) of Section 6.1, (ii) such security interests and the Indebtedness secured thereby are incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, (iii) the Indebtedness secured thereby does not exceed 100% of the cost of acquiring, constructing or improving such fixed or capital assets and (iv) such security interests shall not apply to any other property or assets of Holdings or any Subsidiaries;
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(f) Liens in respect of leases, subleases, licenses and any other occupancy rights or agreements granted to other Persons (i) in the ordinary course of business and not materially interfering with the conduct of business of Holdings and its Subsidiaries, taken as a whole or (ii) with respect to Real Estate Assets no longer deemed by Holdings or any Subsidiary, as applicable, to be useful in the conduct of the business;
(g) Liens arising out of conditional sale, title retention, consignment (including sale or return arrangements) or similar arrangements for the sale of goods entered into by Borrower or any of its Subsidiaries in the ordinary course of business, provided that the aggregate amount of such goods shall not exceed $100,000,000 at any one time;
(h) Liens in favor of customs and revenue authorities arising as a matter of law securing payment of customs duties in connection with the importation of goods;
(i) any encumbrance or restriction (including pursuant to put and call agreements or buy/sell arrangements) with respect to the Equity Interests of any joint venture or similar arrangement pursuant to the joint venture or similar agreement with respect to such joint venture or similar arrangement;
(j) the sale or discount, in the ordinary course of business, of accounts receivable in connection with the compromise or collection thereof and not in connection with any financing or factoring arrangement;
(k) Liens (other than Liens on any Collateral) securing Indebtedness of a Subsidiary to a Credit Party or of a Subsidiary that is not a Credit Party to another Subsidiary that is not a Credit Party;
(l) Liens on property subject to Sale/Leaseback Transactions permitted by Section 6.10(b) or (c), and general intangibles related thereto;
(m) Liens on the ABL Priority Collateral (without giving effect to the parenthetical in each of clauses (i) and (ii) in the definition thereof) securing (i) the Indebtedness under the ABL Credit Agreement to the extent permitted by Section 6.1(j), (ii) obligations under Swap Agreements permitted under Section 6.6(h), (iii) Secured Supply Chain Obligations, and (iv) other Obligations (as defined in the ABL Credit Agreement) of a type not otherwise described in clauses (i) through (iii), in each case solely to the extent constituting ABL Secured Obligations (as defined in the ABL Intercreditor Agreement), provided that any such Liens are subject to the ABL Intercreditor Agreement;
(n) Liens on insurance policies and the proceeds thereof and unearned premiums securing the financing of premiums with respect thereto as provided under clause (b) of the definition of Permitted Indebtedness;
(o) to the extent constituting a Lien, sales or assignments of any litigation claims or rights to receive payments with respect to any such claims;
(p) to the extent constituting a Lien, sales or assignments of any right to receive rental payments permitted under Section 6.7;
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(q) Liens on cash or cash equivalents securing Swap Agreements permitted under Section 6.6(h);
(r) Liens on specific items of inventory or other goods and proceeds of any Person securing such Persons obligations in respect of bankers acceptances or trade letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(s) other Liens securing obligations that do not exceed the greater of (A) $250,000,000 and (B) 5% of Stockholders Equity determined as of a Fiscal Quarter end selected by Borrower within 65 days of the date of incurrence of such Lien;
(t) Liens in favor of Collateral Agent securing obligations in respect of Indebtedness issued pursuant to Section 6.1(k) and (s); provided that such Liens shall rank pari passu or junior to the Liens securing the Obligations hereunder and be subject to the Pari Passu Intercreditor Agreement or the Junior Priority Intercreditor Agreement or another intercreditor agreement that is in form and substance reasonably acceptable to the Administrative Agent, as applicable, and in the case of such pari passu Indebtedness, the ABL Intercreditor Agreement; and
(u) Liens on the Collateral securing obligations in respect of Indebtedness issued pursuant to Section 6.1(l); provided that such Liens shall rank junior to the Liens securing the Obligations hereunder and be subject to the Junior Priority Intercreditor Agreement or another intercreditor agreement that is in form and substance reasonably acceptable to the Administrative Agent.
6.3. Restrictive Agreements . No Credit Party will, nor will it permit any Subsidiary to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (1) the ability of Holdings or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets to secure the Obligations (or any Indebtedness incurred to refinance or replace the Obligations) or (2) the ability of any Credit Party (other than Holdings) to pay dividends or other distributions with respect to its Equity Interests or the ability of any Credit Party to make or repay loans or advances to a Credit Party or to guarantee the Obligations (or any Indebtedness incurred to refinance or replace any of the Obligations); provided that (a) the foregoing shall not apply to any prohibitions, restrictions or conditions imposed (i) by law, rule, regulation or judicial order, or required by any regulatory authority having jurisdiction over Holdings or any Subsidiary or any of their respective businesses, (ii) the ABL Credit Agreement or the 2016 Indenture or, in each case, any Refinancing thereof containing substantially equivalent restrictions or (iii) by any Credit Document or any related documents or agreements, (b) the foregoing shall not apply to any prohibitions, restrictions or conditions existing on the Restatement Effective Date and identified on Schedule 6.3 or to any refinancing, extension or renewal, in whole or in part, of, or any amendment, supplement or modification of, any Indebtedness or other obligation or other agreement, document or instrument existing on the Restatement Effective Date and identified on Schedule 6.3 containing any such prohibition, restriction or condition (but without expanding the scope of any such prohibition, restriction or condition in any material respect), (c) the foregoing shall not apply to prohibitions, restrictions or conditions contained in agreements relating to the direct or indirect disposition of Equity Interests of any Person, property or assets, imposing restrictions with respect to such Person, Equity Interests, property or assets pending the closing of such disposition, (d) the foregoing shall not apply to prohibitions, restrictions or conditions contained in any agreement of a Person that becomes a Subsidiary after the Restatement Effective Date which existed prior to the date that such Person became a Subsidiary; provided that such prohibitions, restrictions or conditions existed at the time that such Person became a Subsidiary and were not created in contemplation of such Person becoming a Subsidiary and do not apply
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to any other Subsidiary or any assets other than those of the Subsidiary so acquired, (e) the foregoing shall not apply to restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business, (f) clause (1) of the foregoing shall not apply to prohibitions, restrictions or conditions imposed by any agreement relating to secured Indebtedness or other obligations not prohibited by this Agreement if such prohibitions, restrictions or conditions apply only to the property or assets securing such Indebtedness or obligations and any proceeds and products thereof and after-acquired property, except as may otherwise be permitted under this Section 6.3, (g) clause (1) of the foregoing shall not apply to (i) customary provisions in leases and other contracts or agreements restricting the transfer, assignment, pledge or mortgage thereof, or the subletting, assignment or transfer of any property or asset subject thereto, (ii) any reciprocal easement agreements containing customary provisions restricting dispositions of real property interests and (iii) Capital Lease Obligations, tax retention and other synthetic lease obligations and purchase money obligations that impose restrictions with respect to the property or assets so acquired, (h) clause (1) of the foregoing shall not apply to restrictions or conditions contained in any agreement or document governing any Permitted Long-Term Indebtedness, provided that such restrictions and conditions permit Liens securing the Obligations (or any Indebtedness incurred to refinance or replace any of the Obligations) on any asset or property of the type included in the Collateral, and (i) clause (2) of the foregoing shall not apply to restrictions or conditions contained in any agreement or document governing any Permitted Long-Term Indebtedness that restrict or condition dividends, distributions or loans to Holdings.
6.4. Restricted Payments . No Credit Party will, nor will it permit any Subsidiary to, declare or make, directly or indirectly, any Restricted Payment, except:
(a) any wholly-owned Subsidiary may distribute any cash, property or assets to Holdings, Borrower or any other Subsidiary that is its direct or indirect parent; provided that the Property Companies may not distribute real property, fixtures or equipment owned or leased by such Property Companies to the extent constituting Term Loan/Notes Exclusive Collateral;
(b) any Subsidiary may declare and pay dividends ratably with respect to its Equity Interests or a class or series of its Equity Interests; provided that no such dividend may be in the form of real property, fixtures or equipment owned or leased by such Property Companies to the extent constituting Term Loan/Notes Exclusive Collateral;
(c) to the extent constituting Restricted Payments, the Subsidiaries may enter into and consummate transactions permitted by Section 6.8;
(d) Holdings may pay cash in lieu of fractional Equity Interests;
(e) repurchases of Equity Interests of Holdings (i) deemed to occur on the exercise of stock options or warrants or similar rights if such Equity Interests represent the delivery of a portion of the Equity Interests subject to such options or warrants or similar rights in satisfaction of the exercise price of such stock options, warrants or similar rights (and do not involve cash consideration) or (ii) deemed to occur in the case of payment by Holdings or Borrower of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing), in connection with the exercise or vesting of stock options, restricted stock warrants or similar rights (in lieu of a portion of the shares that otherwise would be issued upon such exercise or vesting);
(f) so long as no Default shall have occurred and be continuing immediately prior to or after giving effect thereto and, at the time of declaration (in the case of a dividend) or payment
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(in all other cases) and after giving effect thereto, the Fixed Charge Coverage Ratio for the Test Period in effect at the time such Restricted Payment is to occur (determined on a pro forma basis in accordance with Section 1.2(b) as of the last day of such Test Period) is not less than 1.10 to 1.00, Holdings may make any additional Restricted Payments in cash in a maximum aggregate amount not to exceed $100,000,000 after the Restatement Effective Date during the term of this Agreement less the amount of any payments of Indebtedness made pursuant to Section 6.14(d); provided that if, at the time of such Restricted Payment and after giving effect thereto, the Fixed Charge Coverage Ratio for the Test Period in effect at the time such Restricted Payment is to occur (determined on a pro forma basis in accordance with Section 1.2(b) as of the last day of such Test Period) is equal to or greater than 2.50 to 1.00, the aggregate amount of Restricted Payments permitted pursuant to this clause (f) shall increase to $600,000,000 after the Restatement Effective Date during the term of this Agreement less the amount of any payments of Indebtedness made pursuant to Section 6.14(d);
(g) Holdings, Borrower or any Subsidiary may establish or make any payment on account of a call spread, capped call or similar transaction relating to an issuance of Indebtedness or preferred Equity Interests convertible into or by reference to Equity Interests of Holdings (or any mandatorily convertible units of Equity Interests of Holdings and Indebtedness), or any net share settlement of any warrant transaction entered into in connection with an issuance of Indebtedness or preferred Equity Interests convertible into, or by reference to, Equity Interests in Holdings or any Subsidiary;
(h) to the extent constituting Restricted Payments, transactions permitted under Section 6.1(q);
(i) the declaration and payment of dividends to, or the making of loans to, a direct or indirect parent company of the Borrower or any Subsidiary (the payor or lender, as applicable, for purposes of this Section 6.4(i)) to pay amounts required for (A) franchise Taxes and other fees, Taxes and expenses required to maintain corporate existence, and (B) so long as such payor or lender is a member of a consolidated, combined, unitary or similar group with its direct parent company for U.S. federal, state or local income tax purposes, federal, state and local income taxes incurred by such direct parent company or, if applicable, the common parent of both such payor or lender and its parent entity; provided , however , no Credit Party or Subsidiary shall be permitted to make any payments to the shareholders of Holdings pursuant to this Section 6.4(i);
(j) any Restricted Payment otherwise made to any Person with a beneficial interest in the payor, where such payment is made in order to permit the recipient to pay any Taxes levied as a result of such recipients interest in the payor (for the avoidance of doubt, this Section 6.4(j) shall include tax distributions made by a partnership to a partner or member); provided , however , no Credit Party or Subsidiary shall be permitted to make any payments to the shareholders of Holdings pursuant to this Section 6.4(j);
(k) any Restricted Payment otherwise required (A) to qualify and maintain JC Penney Properties qualification as a real estate investment trust under Sections 856 through 860 of the Internal Revenue Code or (B) to avoid the payment by JC Penney Properties of federal or state income or excise tax; and
(l) any Restricted Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Equity Interests) held by any future, present or former employee, director or consultant of Holdings or any of its Subsidiaries
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pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, or any stock subscription or shareholder agreement; provided , that the aggregate amount of Restricted Payments made under this clause (l) in any calendar year, less the amount of Indebtedness incurred under Section 6.1(q) in such calendar year, shall not exceed $5,000,000 (with unused amounts for any year being carried over to the next succeeding year).
6.5. Restrictions on Non-Material Subsidiaries . No Credit Party will permit the Non-Material Subsidiaries (other than any Foreign Subsidiary or any Subsidiary substantially all of the assets of which consist of Equity Interests in one or more Foreign Subsidiaries) that have not satisfied the requirements of Section 5.10 to have, in the aggregate, Net Tangible Assets representing in excess of 5% of the total Net Tangible Assets of Holdings and its Subsidiaries for a period of more than 15 days (or such longer period as Administrative Agent may agree) after financial statements delivered pursuant to Section 5.1 demonstrate that the Non-Material Subsidiaries (other than any Foreign Subsidiary or any Subsidiary substantially all of the assets of which consist of Equity Interests in one or more Foreign Subsidiaries) that have not satisfied such requirements of Section 5.10 have, in the aggregate, Net Tangible Assets representing in excess of 5% of the total Net Tangible Assets of Holdings and its Subsidiaries; provided that Foreign Subsidiaries and any Subsidiaries substantially all of the assets of which consist of Equity Interests in one or more Foreign Subsidiaries shall not have, in the aggregate, Net Tangible Assets representing in excess of 10% of the total Net Tangible Assets of Holdings and its Subsidiaries.
6.6. Investments, Loans, Advances, Guarantees and Acquisitions . No Credit Party will, nor will they permit any Subsidiary to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any Equity Interests, evidences of Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or hold any loans or advances to, guarantee any obligations of, or make or hold any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit (each referred to for purposes of this Section 6.6 as an investment ), except:
(a) Permitted Investments;
(b) investments existing on the Restatement Effective Date and set forth on Schedule 6.6, and any refinancing, replacement, renewal or extension of any such investment which does not increase the amount thereof except pursuant to the terms of such investment as of the Restatement Effective Date (as set forth on Schedule 6.6) or as otherwise permitted by another clause of this Section 6.6;
(c) investments by Holdings and its Subsidiaries in Equity Interests in their respective Subsidiaries;
(d) loans or advances made by Holdings to any Subsidiary and made by any Subsidiary to Holdings or any other Subsidiary; provided , further that (i) all such loans or advances owed by a non-Credit Party to a Credit Party shall be evidenced by an intercompany note that is in form and substance reasonably acceptable to the Administrative Agent and subject to a First Priority Lien pursuant to the Pledge and Security Agreement, (ii) all such loans or advances owing by a Credit Party to a non-Credit Party shall be unsecured and subordinated in right of payment to the payment in full of the Obligations, and (iii) any payment by any such Subsidiary that is a Guarantor Subsidiary under any guaranty of the Obligations shall result in a pro tanto reduction of the amount of any loans or advances owed by such Subsidiary to Borrower or to any of its Subsidiaries for whose benefit such payment is made;
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(e) guarantees, subject to the limitations of Section 6.1 in the case of Indebtedness;
(f) investments received in connection with the bankruptcy or reorganization of, or settlement or satisfaction or partial satisfaction of delinquent accounts and disputes with, customers, suppliers and other account debtors, in each case in the ordinary course of business or upon the foreclosure with respect to any secured investment;
(g) extensions of trade credit in the ordinary course of business;
(h) investments under Swap Agreements entered into in the ordinary course and not for speculative purposes, or entered into in connection with an issuance of Indebtedness or preferred Equity Interests convertible into, or by reference to, Equity Interests of Holdings or any Subsidiary (or any mandatorily convertible units of Equity Interests and Indebtedness);
(i) investments held by a Subsidiary acquired after the Restatement Effective Date or of a Person merged or consolidated with or into Borrower or a Subsidiary in accordance with this Agreement after the Restatement Effective Date to the extent that such investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(j) investments in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers;
(k) promissory notes and other non-cash consideration that is permitted to be received in connection with dispositions permitted by Section 6.7(k), 6.7(o) or 6.7(x);
(l) investments made in any Permitted Supply Chain Financing;
(m) loans and advances to employees of Holdings and its Subsidiaries made in the ordinary course of business in an aggregate principal amount not to exceed $5,000,000 at any time outstanding;
(n) other investments in an aggregate amount not to exceed $300,000,000 in the aggregate at any time outstanding; provided that, at the time of and immediately after giving effect to any such investment, (i) the Fixed Charge Coverage Ratio for the Test Period in effect at the time such investment is to occur shall be not less than 1.10 to 1.00 (determined on a pro forma basis in accordance with Section 1.2(b) as of the last day of such Test Period) and (ii) no Default shall have occurred and be continuing;
(o) without duplication of any other clauses of this Section 6.6, other investments that do not exceed $200,000,000 in the aggregate at any time outstanding, determined as of the date of such investment;
(p) investments with proceeds of the issuance of Equity Interests (other than Disqualified Equity Interests) of Holdings or Borrower made after the date hereof; and
(q) to the extent constituting investments, Restricted Payments permitted by Section 6.4 or any purchase, repurchase or other acquisition of Indebtedness permitted by Section 6.14.
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Notwithstanding the foregoing, any investments by the Credit Parties in, and loans and advances by the Credit Parties to, and guarantees by the Credit Parties of Indebtedness and other monetary obligations of, Subsidiaries that are not Credit Parties permitted pursuant to this Section 6.6 (excluding all such investments, loans, advances and guarantees existing on the Restatement Effective Date and permitted by clause (b) above) shall be subject to the conditions that (a) the aggregate amount of such investments do not exceed $200,000,000 at any time outstanding, (b) no Event of Default shall have occurred and be continuing or would result therefrom and (c) in the case of the Property Companies and the Borrower, no such investment shall be made with real property or fixtures constituting Collateral. For purposes of this Section 6.6, the amount of any investment made or outstanding at any time shall be the original cost of such investment, reduced (at Borrowers option) by any dividend, distribution, return of capital or principal repayment or received in respect of such investment.
6.7. Asset Sales . No Credit Party will, nor will it permit any Subsidiary to, sell, transfer, lease or otherwise dispose of any asset, including by way of sale leaseback, voluntary lease termination or sale, assignment or securitization of a right to receive rental payments and including any Equity Interest owned by it, nor will any Credit Party permit any Subsidiary to issue any additional Equity Interest in such Subsidiary (other than directors qualifying shares or to the extent required by applicable law) (each referred to for purposes of this section as a disposition ), except:
(a) sales of inventory, used or surplus equipment and Permitted Investments, in each case in the ordinary course of business;
(b) disposals of inventory pursuant to promotional or similar activities in the ordinary course of business;
(c) dispositions in the ordinary course of business of property no longer used or useful in the conduct of the business of Holdings and the Subsidiaries (other than real estate and fixtures constituting Collateral or required to become Collateral hereunder);
(d) dispositions to Holdings or any of its Subsidiaries; provided that that the Property Companies may not sell, transfer, assign or distribute real property, fixtures or equipment owned or leased by such Property Companies to Borrower, Holdings or, unless Administrative Agent agrees otherwise, any other Subsidiary of Holdings, to the extent such property constitutes Term Loan/Notes Exclusive Collateral;
(e) the sale or discount (with or without recourse, and on customary or commercially reasonable terms) in the ordinary course of business of accounts receivable or notes receivable arising in the ordinary course of business, or the conversion or exchange of accounts receivable for notes receivable in the ordinary course of business;
(f) (i) any exchange of real property pursuant to or intended to qualify under Section 1031 (or any successor section) of the Code; provided that in the case of real property constituting Collateral, the fair market value of properties sold pursuant to this clause (f)(i) for which a Mortgage has not been granted on the property received in the exchange shall not exceed $75,000,000 at any time or (ii) dispositions of equipment in the ordinary course of business to the extent that (x) such equipment is exchanged for credit against the purchase price of similar replacement equipment or (y) the proceeds of such disposition are promptly applied to the purchase price of such replacement equipment;
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(g) any disposition arising from condemnation or similar action with respect to any property or pursuant to buy/sell arrangements under any joint venture or similar agreement or arrangement;
(h) the lapse or abandonment or other disposition of patents, trademarks or other intellectual property that are, in the reasonable judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of Holdings and the other Subsidiaries taken as a whole;
(i) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), (A) in the ordinary course of business and which do not materially interfere with the business of Holdings and the Subsidiaries, taken as a whole, or (B) in connection with the discontinuance of the operations of any Facility no longer deemed by Holdings or any Subsidiary, as applicable, to be useful in the conduct of the business of Holdings and the Subsidiaries, taken as a whole;
(j) the unwinding of Swap Agreements;
(k) dispositions of accounts receivable in connection with the collection or compromise thereof;
(l) (i) any dividend or other Restricted Payment permitted pursuant to (or expressly not prohibited by) Section 6.4 (other than clause (c) thereof), (ii) any investment permitted pursuant to Section 6.6 and (iii) any Lien permitted by Section 6.2;
(m) sales of fixed or capital assets pursuant to Section 6.10(a);
(n) any issuance of Equity Interests by, or disposition of Equity Interests of, any Subsidiary that is not a Material Subsidiary;
(o) sales, transfers and other dispositions (including Sale/Leaseback Transactions permitted by Section 6.10, but excluding dispositions pursuant to Section 6.7(x)) of assets which do not constitute Collateral so long as (i) no Event of Default then exists or would arise therefrom, and (ii) such sale or transfer is made for fair market value and the consideration received for such sale or transfer is at least 75% cash or cash equivalents;
(p) so long as no Event of Default exists or would arise as a result of the transaction, sales of a Subsidiary or any business segment which is a Non-Core Business Segment, or any portion thereof, (i) to any Person other than a Credit Party or a Subsidiary, for fair market value and so long as the consideration received for such sale or transfer is at least 75% cash or cash equivalents, or (ii) to a Subsidiary, if such sale or transfer is for fair market value and the entire consideration received for such sale or transfer is paid in cash or cash equivalents; provided that the aggregate amount of Consolidated Adjusted EBITDA attributable to all such Non-Core Business Segments or portions thereof sold in reliance on this paragraph (p) after the Restatement Effective Date during the term of this Agreement, in each case calculated as of the fiscal year immediately prior to the date of its sale, shall not exceed $100,000,000; and provided , further that, to the extent any real property Collateral (or the Equity Interests of any Subsidiary of Holdings that owns real property Collateral) is sold in connection with any disposition of any Non-Core Business Segment, such disposition of real property or Equity Interests must otherwise be permitted by Section 6.7(s);
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(q) bulk sales or other dispositions of inventory of a Credit Party not in the ordinary course of business in connection with store closings;
(r) the issuance of Equity Interests (i) by Borrower to Holdings or (ii) by any wholly-owned Subsidiary of Borrower to Borrower or to any other wholly-owned Subsidiary of Borrower; provided that, in the case of any Property Company, any Equity Interests issued by such Property Company shall have been pledged to the Collateral Agent pursuant to the requirements of the Pledge and Security Agreement;
(s) sales, transfers and other dispositions of assets (other than Equity Interests in a Material Subsidiary) that are not permitted by any other clause of this Section, provided that (i) each such sale, transfer or disposition shall be made at fair value and at least 75% of such consideration shall be in cash or cash equivalents, (ii) at the time any such sale, transfer or other disposition is consummated and after giving effect thereto, the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance on this clause (s) after the Restatement Effective Date during the term of this Agreement (other than assets constituting ABL Priority Collateral) and the aggregate cash consideration received from Sale/Leaseback Transactions pursuant to Section 6.10(b) after the Restatement Effective Date during the term of this Agreement shall not exceed, in the aggregate, the greater of $500,000,000 and 7.5% of Net Tangible Assets as of the most recent fiscal quarter end for which financial statements shall at such time have been delivered pursuant to Section 5.1(a) or (b) (or prior to delivery of such financial statements, as of the end of the most recent Fiscal Quarter (or Fiscal Year) with respect to which Historical Financial Statements have been delivered), (iii) at the time any such sale, transfer or other disposition is consummated, no Event of Default shall have occurred and be continuing and (iv) the Net Asset Sale Proceeds arising therefrom shall be applied to prepay the Loans and other pari passu secured Indebtedness or make permitted reinvestments pursuant to Section 2.14(a);
(t) any sale or assignments of any litigation claims or rights to receive payments with respect to any such claims;
(u) any voluntary termination of any (or any portion of any) real property lease, sublease or other occupancy agreement in the ordinary course of business or in connection with the discontinuance of the operations of any Facility no longer deemed by Holdings or any Subsidiary, as applicable, to be useful in the conduct of the business;
(v) [Reserved];
(w) a disposition of the condominium within the Overland Park, Kansas store to the developer thereof for payment of nominal consideration; and
(x) consists of a sale, transfer or disposition of the real property located on or about 6501 Legacy Drive, Plano, Texas (headquarters) pursuant to a Sale/Leaseback Transaction permitted by Section 6.10; provided that such sale, transfer or disposition shall be made at fair value and at least 75% of such consideration shall be in cash or cash equivalents;
provided that (A) all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by clauses (b), (d), (h), (i), (j), (l), (u) and (w) above) shall be made for fair value, (B) no disposition of real property, fixtures or equipment owned or leased by any of the Property Companies, to the extent constituting Term Loan/Notes Exclusive Collateral, shall be made by any of the Property Companies to Holdings, Borrower or, unless Administrative Agent agrees otherwise, any Subsidiary of
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Holdings (other than the other Property Company), and (C) no sale or transfer of any Intellectual Property shall be made that would result in the loss by Holdings and the Subsidiaries of the free and unconditional use of the jcpenney name or any trade name or brand name needed for the disposition of any inventory or prevent, delay, hinder or increase the cost of Collateral Agents exercise of its rights under the license to Intellectual Property granted under the Pledge and Security Agreement (it being understood that this clause (C) is not intended to prevent the grant of any license or Lien on Intellectual Property so long as all rights necessary to enable Collateral Agent to exercise its rights in respect of the Collateral are reserved). For purposes of the 75% cash requirement set forth in clauses (o), (p) and (s) above, the following shall be deemed to be cash: (i) any liabilities (as shown on Holdings, Borrowers or such Subsidiarys most recent balance sheet provided hereunder or in the footnotes thereto (other than any liabilities that are by their terms subordinated to the Obligations) that are assumed by the transferee with respect to the applicable disposition, (ii) any notes or other obligations or other securities or assets received by Holdings, Borrower or any Subsidiary of Holdings in the applicable disposition that are converted into cash or cash equivalents within 180 days of the receipt thereof (to the extent of the cash or cash equivalents received), (iii) any Designated Non-Cash Consideration received by Holdings, Borrower or any Subsidiary of Holdings in the applicable disposition having an aggregate fair market value (as determined in good faith by Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at the time outstanding, not to exceed, at the time of receipt of such consideration, 1.0% of Net Tangible Assets as of the most recent fiscal quarter end for which financial statements shall at such time have been delivered pursuant to Section 5.1(a) or (b) (or prior to delivery of such financial statements, as of the end of the most recent Fiscal Quarter (or Fiscal Year) with respect to which Historical Financial Statements have been delivered) (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value) and (iv) any long term assets used or useful in the business of Holdings or any Subsidiary that is a Credit Party. This Section shall not be construed to prohibit transfers of cash by Holdings or any of its Subsidiaries that are not prohibited by any other provision of this Agreement.
6.8. Fundamental Changes . No Credit Party will, nor will it permit any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the assets of Borrower and its Subsidiaries, taken as a whole, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) any Person may merge with or into or consolidate with any Material Subsidiary whose outstanding Equity Interests were pledged to the Collateral Agent on or prior to the Restatement Effective Date in a transaction in which such Material Subsidiary is the surviving corporation and such Equity Interests remain so pledged, (ii) any Person may merge with or into or consolidate with the Borrower or any Subsidiary of Borrower in a transaction in which the surviving entity is the Borrower or (in the case of a transaction not involving the Borrower) becomes a Subsidiary and (if any party to such merger or consolidation is or becomes a Credit Party) is a Credit Party; provided that any such merger or consolidation involving a Person that is not a wholly owned Subsidiary immediately prior to or after giving effect to such merger or consolidation shall comply with Sections 6.6 and 6.7, as applicable, (iii) any Subsidiary (other than Holdings, Borrower or any Property Company) may liquidate or dissolve or change its legal form if Borrower determines in good faith that such liquidation or dissolution or change in legal form is in the best interests of Borrower and its subsidiaries and is not materially disadvantageous to the Lenders; provided that, in the case of a liquidation or dissolution of a Subsidiary of Borrower that is a Material Subsidiary, the Person into which such Material Subsidiary is liquidated or dissolved shall be the Borrower or a Material Subsidiary whose outstanding Equity Interests were pledged to the Collateral Agent on or prior to the Restatement Effective Date and shall succeed to or assume all obligations of such Material Subsidiary under the Credit Documents in a manner reasonably satisfactory to Administrative Agent, (iv) any merger the sole purpose and effect of
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which is to reincorporate or reorganize a Person in another jurisdiction in the United States shall be permitted; provided that, if such Person is a Credit Party, the surviving entity is a Credit Party (and, if not a Credit Party before such merger, shall assume all obligations of such Credit Party under the Credit Documents in a manner reasonably satisfactory to Administrative Agent), and (v) a merger, dissolution, liquidation, consolidation, sale, transfer or other disposition (other than by or of any Property Company) the purpose and effect of which is to effect a transaction permitted pursuant to Section 6.7. Notwithstanding anything in this Section 6.8 to the contrary, no Property Company shall be permitted to (i) merge into or consolidate with any other Person (other than the other Property Company), or permit any other Person (other than the other Property Company) to merge into or consolidate with it, (ii) sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets or (iii) liquidate or dissolve.
6.9. Disposal of Subsidiary Interests . Except for any sale of all of its interests in the Equity Interests of any of its Subsidiaries in compliance with the provisions of Section 6.7, no Credit Party shall, nor shall it permit any of its Subsidiaries to, (a) directly or indirectly sell, assign, pledge or otherwise encumber or dispose of any Equity Interests of any of its Subsidiaries, except to qualify directors if required by applicable law; or (b) permit any of its Subsidiaries directly or indirectly to sell, assign, pledge or otherwise encumber or dispose of any Equity Interests of any of its Subsidiaries, except to another Credit Party (subject to the restrictions on such disposition otherwise imposed hereunder), or to qualify directors if required by applicable law.
6.10. Sales and Leaseback Transactions . No Credit Party will, nor will it permit any Subsidiary to, enter into any arrangement, directly or indirectly, whereby it shall sell or transfer any property (real or personal) used or useful in its business, whether now owned or hereinafter acquired, and thereafter rent or lease such property for a period of time in excess of three (3) years, or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred (each such transaction, a Sale/Leaseback Transaction ), except for any such sale or transfer of fixed or capital assets that (a) is made for cash consideration in an amount not less than the cost of such fixed or capital asset and is consummated within 90 days after such Credit Party or such Subsidiary, as applicable, acquires or completes the construction of such fixed or capital asset, (b) is made for cash consideration in an amount not less than the fair value of such fixed or capital asset; provided that (i) any such sale or transfer made in reliance on this clause (b) is permitted by Section 6.7(o), Section 6.7(s) or Section 6.7(x) and (ii) the sum of the aggregate amount of all cash consideration received on or after the Restatement Effective Date in respect of all Sale/Leaseback Transactions made in reliance on this clause (b) and Section 6.7(s), plus the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance on Section 6.7(s) after the Restatement Effective Date during the term of this Agreement, shall not exceed the greater of $500,000,000 and 7.5% of Net Tangible Assets as of the most recent fiscal quarter end for which financial statements shall at such time have been delivered pursuant to Section 5.1(a) or (b) (or prior to delivery of such financial statements, as of the end of the most recent Fiscal Quarter (or Fiscal Year) with respect to which Historical Financial Statements have been delivered), and the Net Asset Sale Proceeds arising therefrom shall be applied as described in Section 6.7(s)(iv) or (c) is a sale or transfer permitted by Section 6.7(x).
6.11. Transactions with Affiliates . No Credit Party will, nor will it permit any Subsidiary to, sell, lease, license or otherwise transfer any assets to, or purchase, lease, license or otherwise acquire any assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) transactions that are at prices and on terms and conditions not less favorable in any material respect to the applicable Credit Party than could be obtained on an arms-length basis from unrelated third parties, (b) transactions between or among the Credit Parties not involving any other Affiliate, (c) transactions between or among Subsidiaries that are not Credit Parties not involving any other Affiliates, (d) any Restricted Payment permitted by Section 6.4, (e) investment transactions with captive insurance
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companies and retirement plans in the ordinary course of business, (f) compensation and indemnification of, and other employment arrangements with, directors, officers and employees of Holdings or such Subsidiary entered in the ordinary course of business, (g) any loans, advances, guarantees and other investments permitted by Section 6.6, (h) any Indebtedness permitted under Section 6.1 and (i) any disposition permitted by Section 6.7.
6.12. Conduct of Business . Holdings will not, and will not permit any of its Subsidiaries to, engage to any extent material to Holdings and its Subsidiaries (taken as a whole) in any business other than the businesses of the type conducted by Holdings and its Subsidiaries on the Restatement Effective Date and businesses reasonably related, ancillary or complementary to the business or businesses of Holdings or any Subsidiary or any reasonable extension, development or expansion thereof.
6.13. Permitted Activities of Holdings . Holdings shall not (a) incur, directly or indirectly, any Indebtedness or any other obligation or liability whatsoever other than the Indebtedness and obligations under this Agreement and the other Credit Documents, the ABL Credit Agreement, the Senior Indentures, Permitted Long-Term Indebtedness, Indebtedness permitted under Sections 6.1(d), (e), (f), (g), (k), (l), (n), (o), (q), (r) and (s) or any commitment or engagement letter with respect to any of the foregoing or obligations under or with respect to issuance of its Equity Interests and engagement letters or underwriting or securities purchase agreements with respect thereto; (b) create or suffer to exist any Lien upon any property or assets now owned or hereafter acquired, leased or licensed by it other than the Liens created under the Collateral Documents to which it is a party or permitted pursuant to Section 6.2; (c) engage in any business or activity or own any assets other than (i) holding 100% of the Equity Interests of Borrower, (ii) performing its obligations and activities incidental thereto under the Credit Documents, the ABL Credit Agreement, the Senior Indentures, Permitted Long-Term Indebtedness and Indebtedness permitted under Sections 6.1(d), (e), (g), (k), (l), (n), (o), (q), (r) and (s) or any commitment or engagement letter with respect to any of the foregoing or obligations under or with respect to issuance of its Equity Interests and engagement letters or underwriting or securities purchase agreements with respect thereto; and (iii) making Restricted Payments and investments to the extent permitted by this Agreement; (d) consolidate with or merge with or into, or convey, transfer, lease or license all or substantially all its assets to, any Person; (e) sell or otherwise dispose of any Equity Interests of any of its direct Subsidiaries; (f) create or acquire any direct Subsidiary or make or own any investment in any Person other than Borrower; or (g) fail to hold itself out to the public as a legal entity separate and distinct from all other Persons.
6.14. Certain Payments of Indebtedness . No Credit Party will, nor will it permit any Subsidiary to, pay or make, directly or indirectly, any voluntary payment or other voluntary distribution (whether in cash, securities or other property) of or in respect of principal of or interest on (x) any Long-Term Indebtedness that is also Material Indebtedness (other than, for avoidance of doubt, Indebtedness under the ABL Credit Agreement) or (y) any intercompany Indebtedness owed to a non-Credit Party set forth on Schedule 6.1 hereto, or any voluntary payment or other voluntary distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancelation or termination of any such Indebtedness, except:
(a) refinancings of any such Long-Term Indebtedness with the proceeds of other Indebtedness permitted under Section 6.1;
(b) payments upon conversion of any such Indebtedness into common stock of Holdings made solely in common stock of Holdings, together with cash payments in lieu of issuance of fractional shares and payments of accrued but unpaid interest, in each case in connection with such conversion;
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(c) other payments of or in respect of any such Indebtedness made solely with (or with the proceeds of a substantially concurrent issuance and sale of) Equity Interests (other than Disqualified Equity Interests) in Holdings or upon settlement of a forward purchase contract which is a component of a mandatorily convertible unit which also includes an amortizing note;
(d) so long as no Default shall have occurred and be continuing immediately prior to or after giving effect to such payment and, at the time of such payment and after giving effect thereto, the Fixed Charge Coverage Ratio for the Test Period in effect at the time such payment is to occur (determined on a pro forma basis in accordance with Section 1.2(b) as of the last day of such Test Period) is not less than 1.10 to 1.00, other payments of any such Indebtedness in a maximum aggregate amount not to exceed $100,000,000 after the Restatement Effective Date during the term of this Agreement less the amount of Restricted Payments made pursuant to Section 6.4(f); provided that if, at the time of such payment and after giving effect thereto, the Fixed Charge Coverage Ratio for the Test Period in effect at the time such payment is to occur (determined on a pro forma basis in accordance with Section 1.2(b) as of the last day of such Test Period) is equal to or greater than 2.50 to 1.00, the aggregate amount of other payments of any such Indebtedness permitted pursuant to this clause (d) shall increase to $600,000,000 after the Restatement Effective Date during the term of this Agreement less the amount of Restricted Payments made pursuant to Section 6.4(f); and
(e) so long as no Default shall have occurred and be continuing immediately prior to or after giving effect to such payment, other payments of any such Indebtedness in a maximum aggregate amount not to exceed $400,000,000 after the Restatement Effective Date during the term of this Agreement.
6.15. Amendments of Organizational Documents. No Credit Party will, nor will it permit any Subsidiary to, amend, modify or waive any of its rights under its certificate of incorporation, by-laws, operating, management or partnership agreement or other Organizational Documents to the extent any such amendment, modification or waiver would be materially adverse to the Lenders; for purposes of clarification, the issuance of preferred Equity Interests which are otherwise permitted to be issued under this Agreement shall not be deemed to be materially adverse to the Lenders.
6.16. Net Settlement of Convertible Indebtedness. No Credit Party will, nor will it permit any Subsidiary to, directly or indirectly, create, incur, assume, issue or permit to exist any Indebtedness or any security convertible into Equity Interests in Holdings or any Subsidiary that provides for a net settlement (other than a net settlement at the sole discretion of the issuer of such Indebtedness or security) in respect of the Equity Interests that would have been issuable upon the conversion of such Indebtedness or security on account of the principal of such Indebtedness or security.
SECTION 7. | GUARANTY |
7.1. Guaranty of the Obligations. Subject to the provisions of Section 7.2, Guarantors jointly and severally hereby irrevocably and unconditionally guaranty to Administrative Agent, for the ratable benefit of the Beneficiaries, the due and punctual payment in full of all Obligations when the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)) (collectively, the Guaranteed Obligations ).
7.2. Contribution by Guarantors. All Guarantors desire to allocate among themselves (collectively, the Contributing Guarantors ), in a fair and equitable manner, their obligations arising
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under this Guaranty. Accordingly, in the event any payment or distribution is made on any date by a Guarantor (a Funding Guarantor ) under this Guaranty such that its Aggregate Payments exceeds its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing Guarantors Aggregate Payments to equal its Fair Share as of such date. Fair Share means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (a) the ratio of (i) the Fair Share Contribution Amount with respect to such Contributing Guarantor to (ii) the aggregate of the Fair Share Contribution Amounts with respect to all Contributing Guarantors multiplied by (b) the aggregate amount paid or distributed on or before such date by all Funding Guarantors under this Guaranty in respect of the Guaranteed Obligations. Fair Share Contribution Amount means, with respect to a Contributing Guarantor as of any date of determination, the maximum aggregate amount of the obligations of such Contributing Guarantor under this Guaranty that would not render its obligations hereunder or thereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any comparable applicable provisions of state law; provided , solely for purposes of calculating the Fair Share Contribution Amount with respect to any Contributing Guarantor for purposes of this Section 7.2, any assets or liabilities of such Contributing Guarantor arising by virtue of any rights to subrogation, reimbursement or indemnification or any rights to or obligations of contribution hereunder shall not be considered as assets or liabilities of such Contributing Guarantor. Aggregate Payments means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to (1) the aggregate amount of all payments and distributions made on or before such date by such Contributing Guarantor in respect of this Guaranty (including in respect of this Section 7.2), minus (2) the aggregate amount of all payments received on or before such date by such Contributing Guarantor from the other Contributing Guarantors as contributions under this Section 7.2. The amounts payable as contributions hereunder shall be determined as of the date on which the related payment or distribution is made by the applicable Funding Guarantor. The allocation among Contributing Guarantors of their obligations as set forth in this Section 7.2 shall not be construed in any way to limit the liability of any Contributing Guarantor hereunder. Each Guarantor is a third party beneficiary to the contribution agreement set forth in this Section 7.2.
7.3. Payment by Guarantors. Subject to Section 7.2, Guarantors hereby jointly and severally agree, in furtherance of the foregoing and not in limitation of any other right which any Beneficiary may have at law or in equity against any Guarantor by virtue hereof, that upon the failure of Borrower to pay any of the Guaranteed Obligations when and as the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)), Guarantors will upon demand pay, or cause to be paid, in cash, to Administrative Agent for the ratable benefit of Beneficiaries, an amount equal to the sum of the unpaid principal amount of all Guaranteed Obligations then due as aforesaid, accrued and unpaid interest on such Guaranteed Obligations (including interest which, but for Borrowers becoming the subject of a case under the Bankruptcy Code, would have accrued on such Guaranteed Obligations, whether or not a claim is allowed against Borrower for such interest in the related bankruptcy case) and all other Guaranteed Obligations then owed to Beneficiaries as aforesaid.
7.4. Liability of Guarantors Absolute. Each Guarantor agrees that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety, in each case other than payment in full of the Obligations (other than unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations). In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees, to the fullest extent permitted by applicable law, as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
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(b) [reserved];
(c) the obligations of each Guarantor hereunder are independent of the obligations of Borrower and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions;
(d) payment by any Guarantor of a portion, but not all, of the Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantors liability for any portion of the Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantors covenant to pay a portion of the Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantors liability hereunder in respect of the Guaranteed Obligations;
(e) any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantors liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent herewith or any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any other Credit Party or any security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under the Credit Documents; and
(f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guaranteed Obligations (other than any unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations)), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce
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or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Credit Documents, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to events of default) hereof, any of the other Credit Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Credit Document or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the Credit Documents or from the proceeds of any Collateral or security for the Guaranteed Obligations, except to the extent such Collateral also serves as collateral for indebtedness other than the Guaranteed Obligations and is subject to a security interest with priority that is pari passu or senior to that of the security interest in such Collateral) to the payment of indebtedness other than the Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Beneficiarys consent to the change, reorganization or termination of the corporate structure or existence of Holdings or any of its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower may allege or assert against any Beneficiary in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed Obligations.
7.5. Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of Beneficiaries: (a) any right to require any Beneficiary, as a condition of payment or performance by such Guarantor, to (i) proceed against Borrower, any other guarantor (including any other Guarantor) of the Guaranteed Obligations or any other Person, (ii) proceed against or exhaust any security held from Borrower, any such other guarantor or any other Person, (iii) proceed against or have resort to any balance of any Deposit Account or credit on the books of any Beneficiary in favor of any Credit Party or any other Person, or (iv) pursue any other remedy in the power of any Beneficiary whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of Borrower or any other Guarantor including any defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of Borrower or any other Guarantor from any cause other than payment in full of the Guaranteed Obligations (other than any unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations); (c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (d) any defense based upon any Beneficiarys errors or omissions in the administration of the Guaranteed Obligations, except behavior which amounts to willful misconduct or bad faith; (e) (i) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms hereof and any legal or equitable discharge of such Guarantors obligations hereunder, (ii) the benefit of any statute of limitations affecting such Guarantors liability hereunder or the enforcement hereof, (iii) any rights to set-offs, recoupments and counterclaims, and (iv) promptness, diligence and any requirement that any Beneficiary protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentments, protests,
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notices of protest, notices of dishonor and notices of any action or inaction, including acceptance hereof, notices of default hereunder or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Guaranteed Obligations or any agreement related thereto, notices of any extension of credit to Borrower and notices of any of the matters referred to in Section 7.4 and any right to consent to any thereof; and (g) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms hereof.
7.6. Guarantors Rights of Subrogation, Contribution, Etc. Until the Guaranteed Obligations (other than any unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations) shall have been indefeasibly paid in full and the Commitments shall have terminated, each Guarantor hereby waives, to the fullest extent permitted by applicable law, any claim, right or remedy, direct or indirect, that such Guarantor now has or may hereafter have against Borrower or any other Guarantor or any of its assets in connection with this Guaranty or the performance by such Guarantor of its obligations hereunder, in each case whether such claim, right or remedy arises in equity, under contract, by statute, under common law or otherwise and including (a) any right of subrogation, reimbursement or indemnification that such Guarantor now has or may hereafter have against Borrower with respect to the Guaranteed Obligations, (b) any right to enforce, or to participate in, any claim, right or remedy that any Beneficiary now has or may hereafter have against Borrower, and (c) any benefit of, and any right to participate in, any collateral or security now or hereafter held by any Beneficiary. In addition, until the Guaranteed Obligations shall have been indefeasibly paid in full (other than any unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations) and the Commitments shall have terminated, each Guarantor shall withhold exercise of any right of contribution such Guarantor may have against any other guarantor (including any other Guarantor) of the Guaranteed Obligations, including any such right of contribution as contemplated by Section 7.2. Each Guarantor further agrees that, to the extent the waiver or agreement to withhold the exercise of its rights of subrogation, reimbursement, indemnification and contribution as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation, reimbursement or indemnification such Guarantor may have against Borrower or against any collateral or security, and any rights of contribution such Guarantor may have against any such other guarantor, shall be junior and subordinate to any rights any Beneficiary may have against Borrower, to all right, title and interest any Beneficiary may have in any such collateral or security, and to any right any Beneficiary may have against such other guarantor. If any amount shall be paid to any Guarantor on account of any such subrogation, reimbursement, indemnification or contribution rights at any time when all Guaranteed Obligations shall not have been finally and indefeasibly paid in full (other than any unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations), such amount shall be held in trust for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to Administrative Agent for the benefit of Beneficiaries and credited and applied against the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof.
7.7. Subordination of Other Obligations. Any Indebtedness of Borrower or any Guarantor now or hereafter held by any Guarantor (the Obligee Guarantor ) is hereby subordinated in right of payment to the Guaranteed Obligations, and any such Indebtedness collected or received by the Obligee Guarantor after an Event of Default has occurred and is continuing shall be held in trust for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to Administrative Agent for the benefit of Beneficiaries and credited and applied against the Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of the Obligee Guarantor under any other provision hereof.
7.8. Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain in effect until all of the Guaranteed Obligations (other than any unasserted indemnification, tax gross-up,
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expense reimbursement or yield protection obligations) shall have been paid in full and the Commitments shall have terminated. Each Guarantor hereby irrevocably waives any right to revoke this Guaranty as to future transactions giving rise to any Guaranteed Obligations.
7.9. Authority of Guarantors or Borrower. It is not necessary for any Beneficiary to inquire into the capacity or powers of any Guarantor or Borrower or the officers, directors or any agents acting or purporting to act on behalf of any of them.
7.10. Financial Condition of Borrower. Any Credit Extension may be made to Borrower or continued from time to time without notice to or authorization from any Guarantor regardless of the financial or other condition of Borrower at the time of any such grant or continuation. No Beneficiary shall have any obligation to disclose or discuss with any Guarantor its assessment, or any Guarantors assessment, of the financial condition of Borrower. Each Guarantor has adequate means to obtain information from Borrower on a continuing basis concerning the financial condition of Borrower and its ability to perform its obligations under the Credit Documents, and each Guarantor assumes the responsibility for being and keeping informed of the financial condition of Borrower and of all circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations. Each Guarantor hereby waives and relinquishes any duty on the part of any Beneficiary to disclose any matter, fact or thing relating to the business, operations or conditions of Borrower now known or hereafter known by any Beneficiary.
7.11. Bankruptcy, Etc.
(a) So long as any Guaranteed Obligations remain outstanding, no Guarantor shall, without the prior written consent of Administrative Agent acting pursuant to the instructions of Requisite Lenders, commence or join with any other Person in commencing any bankruptcy, reorganization or insolvency case or proceeding of or against Borrower or any other Guarantor. The obligations of Guarantors hereunder shall not be reduced, limited, impaired, discharged, deferred, suspended or terminated by any case or proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of Borrower or any other Guarantor or by any defense which Borrower or any other Guarantor may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding.
(b) Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed Obligations which accrues after the commencement of any case or proceeding referred to in clause (a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by operation of law by reason of the commencement of such case or proceeding, such interest as would have accrued on such portion of the Guaranteed Obligations if such case or proceeding had not been commenced) shall be included in the Guaranteed Obligations because it is the intention of Guarantors and Beneficiaries that the Guaranteed Obligations which are guaranteed by Guarantors pursuant hereto should be determined without regard to any rule of law or order which may relieve Borrower of any portion of such Guaranteed Obligations. Guarantors will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar Person to pay Administrative Agent, or allow the claim of Administrative Agent in respect of, any such interest accruing after the date on which such case or proceeding is commenced.
(c) In the event that all or any portion of the Guaranteed Obligations are paid by Borrower, the obligations of Guarantors hereunder shall continue and remain in full force and effect or be reinstated, as the case may be, in respect of all or any part of such payment(s) that are rescinded or recovered directly or indirectly from any Beneficiary as a preference, fraudulent transfer or otherwise, and any such payments which are so rescinded or recovered shall constitute Guaranteed Obligations for all purposes hereunder.
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7.12. Discharge of Guaranty Upon Sale of Guarantor. If all of the Equity Interests of any Guarantor or any of its successors in interest hereunder shall be sold or otherwise disposed of (including by merger or consolidation) in accordance with the terms and conditions hereof, the Guaranty of such Guarantor or such successor in interest, as the case may be, hereunder shall automatically be discharged and released without any further action by any Beneficiary or any other Person effective as of the time of such Asset Sale.
SECTION 8. | EVENTS OF DEFAULT |
8.1. Events of Default. If any one or more of the following conditions or events shall occur:
(a) Failure to Make Payments When Due . Failure by Borrower to pay (i) when due any installment of principal of or premium on any Loan, whether at stated maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise; (ii) any interest on any Loan or any fee within five Business Days after the date due; or (iii) any other amount due hereunder within 30 days after the due date thereof; or
(b) Default in Other Agreements . (i) Failure of any Credit Party or any of their respective Subsidiaries to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable (after giving effect to any applicable grace periods); or (ii) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (after giving effect to any applicable grace periods) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (ii) shall not apply to (A) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, (B) Indebtedness in respect of which the holders thereof have the unconditional right to require the issuer thereof to effect a redemption of such Indebtedness prior to the stated maturity of such Indebtedness, solely as a result of the exercise by such holders of such right, or (C) any breach of Section 6.11 of the ABL Credit Agreement unless as a result of any such breach the obligations under the ABL Credit Agreement shall have been accelerated and/or the commitments under the ABL Credit Agreement shall have been terminated; or
(c) Breach of Certain Covenants . Failure of Holdings or Borrower to observe or perform or to cause any of its Subsidiaries that is a Credit Party to observe or perform any covenant, condition or agreement contained in Section 2.6, clause (e) of Section 5.1, Section 5.2 (with respect to the existence of any Credit Party), Section 5.16(a)(i) or in Section 6; or
(d) Breach of Representations, Etc. Any representation or warranty made or deemed made by or on behalf of any Credit Party in or pursuant to any Credit Document or any amendment or modification thereof or waiver thereunder, or any material representation or warranty in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Credit Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect when made or deemed made; or
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(e) Other Defaults Under Credit Documents . Any Credit Party shall fail to observe or perform any covenant, condition or agreement contained in any Credit Document (other than those specified in clause (a) or (c) of this Section 8.1), and such failure shall continue unremedied for a period of 30 days after written notice thereof from Administrative Agent to Borrower (any such notice to be identified as a notice of default and to refer specifically to this Section 8.1(e)); or
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc. An involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of Holdings or any Subsidiary or its debts, or of a substantial part of its assets, under any Debtor Relief Law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Holdings or any Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered; or
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. (i) Holdings or any Subsidiary shall (A) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Debtor Relief Law now or hereafter in effect, (B) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (f) of this Section 8.1, (C) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Holdings or any Subsidiary or for a substantial part of its assets, (D) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (E) make a general assignment for the benefit of creditors or (F) take any action for the purpose of effecting any of the foregoing; or (ii) Holdings or any Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due; or
(h) Judgments and Attachments . One or more judgments for the payment of money in an aggregate amount in excess of $100,000,000 (to the extent not covered by independent third party insurance as to which the insurer has been notified of the potential claim and does not dispute coverage) shall be rendered against Holdings, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of Holdings or any Subsidiary to enforce any such judgment; or
(i) [Reserved]; or
(j) Employee Benefit Plans . An ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, would result in a Material Adverse Effect; or
(k) Change of Control . A Change of Control shall occur; or
(l) Guaranties, Collateral Documents and other Credit Documents . At any time, (i) any Guarantors Guaranty hereunder shall cease to be in full force and effect (other than in accordance with the terms of this Agreement, including satisfaction in full of the Obligations in accordance with the terms hereof) or shall be declared to be null and void or any Guarantor shall repudiate its obligations under its Guaranty hereunder, (ii) this Agreement ceases to be in full force and effect (other than by reason of the satisfaction in full of the Obligations in accordance
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with the terms hereof) or shall be declared null and void, or any Lien purported to be created under any Collateral Document shall cease to be, or shall be asserted by any Credit Party not to be, a valid and perfected Lien on any Collateral having an aggregate fair value of $10,000,000 or more, with the priority required by the relevant Collateral Document, in each case for any reason other than (A) the failure of Administrative Agent to file any financing statement (or amendment thereto) delivered to Administrative Agent and Collateral Agent for filing, (B) by reason of express release pursuant to Section 9.8 or the terms of any Collateral Document or (B) as a result of the sale or other disposition of the applicable Collateral to a Person that is not a Credit Party in a transaction not prohibited under the Credit Documents, or (iii) any Credit Party shall contest the validity or enforceability of any Credit Document in writing or deny in writing that it has any further liability under any Credit Document to which it is a party;
THEN , (1) in every such event (other than an event described in Section 8.1(f) or (g)), and at any time thereafter during the continuance of such event, the Administrative Agent may, with the consent of the Requisite Lenders, and shall, at the request of the Requisite Lenders, by notice to Borrower, take either or both of the following actions, at the same or different times: (A) terminate the Commitments, if any, of each Lender having such Commitments, and thereupon the Commitments shall terminate immediately; (B) declare each of the following immediately due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), in which case such amounts will become so due and payable, in each case without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by each Credit Party: (I) the unpaid principal amount of and accrued interest and premium on the Loans, and (II) all other Obligations; and (C) Administrative Agent may cause Collateral Agent to enforce any and all Liens and security interests created pursuant to Collateral Documents; and (2) in case of any event described in Section 8.1(f) or (g), the Commitments shall automatically terminate and the unpaid principal amount of and accrued interest and premium on the Loans and all other then-outstanding Obligations shall automatically become due and payable, without presentment, demand, protest or other requirements of any kind.
SECTION 9. | AGENTS |
9.1. Appointment of Agents. Each of JPMorgan, Barclays Bank PLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells Fargo Securities, LLC and Goldman Sachs Lending Partners LLC is hereby appointed as a Joint Lead Arranger and a Joint Bookrunner hereunder, and each Lender hereby authorizes them to act as a Joint Lead Arranger and a Joint Bookrunner in accordance with the terms hereof and the other Credit Documents. JPMorgan is hereby appointed Administrative Agent hereunder and under the other Credit Documents and each Lender hereby authorizes JPMorgan to act as Administrative Agent in accordance with the terms hereof and the other Credit Documents. The Administrative Agent, on behalf of itself and the Lenders, is authorized to appoint Wilmington Trust, National Association under the Pari Passu Intercreditor Agreement and under the other Collateral Documents and each Lender hereby authorizes Wilmington Trust, National Association to execute the Collateral Documents and the other Collateral Documents to which it is a party and to act as Collateral Agent in accordance with the terms of the Pari Passu Intercreditor Agreement and the other Collateral Documents. Citizens Bank, National Association, Regions Bank and HSBC Bank USA, N.A. are hereby appointed Senior Managing Agents hereunder, and each Lender hereby authorizes them to act as Senior Managing Agents in accordance with the terms hereof and the other Credit Documents. Each Agent hereby agrees to act in its capacity as such upon the express conditions contained herein and the other Credit Documents, as applicable. Other than Sections 9.8(c) through (f), in respect of which the Borrower is a third-party beneficiary, the provisions of this Section 9 are solely for the benefit of Agents and Lenders and no Credit Party shall have any rights as a third party beneficiary of any of the provisions thereof. In performing its functions and duties hereunder, each Agent shall act solely as an agent of
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Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for Holdings or any of its Subsidiaries. As of the Restatement Effective Date, each Joint Lead Arranger, Joint Bookrunner and Senior Managing Agent shall not have any obligations but shall be entitled to all benefits of this Section 9. Each Joint Lead Arranger, Joint Bookrunner, Senior Managing Agent and any Agent described in clause (ix) of the definition thereof may resign from such role at any time, with immediate effect, by giving prior written notice thereof to Administrative Agent and Borrower.
9.2. Powers and Duties. Each Lender irrevocably authorizes each Agent to take such action on such Lenders behalf and to exercise such powers, rights and remedies hereunder and under the other Credit Documents as are specifically delegated or granted to such Agent by the terms hereof and thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Each Agent shall have only those duties and responsibilities that are expressly specified in the Credit Documents to which it is party. Each Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. No Agent shall have, by reason hereof or any of the other Credit Documents, a fiduciary relationship in respect of any Lender or any other Person; and nothing herein or any of the other Credit Documents, expressed or implied, is intended to or shall be so construed as to impose upon any Agent any obligations in respect hereof or any of the other Credit Documents except as expressly set forth herein or therein.
9.3. General Immunity.
(a) No Responsibility for Certain Matters . No Agent shall be responsible to any Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability or sufficiency hereof or any other Credit Document or for any representations, warranties, recitals or statements made herein or therein or made in any written or oral statements or in any financial or other statements, instruments, reports or certificates or any other documents furnished or made by any Agent to Lenders or by or on behalf of any Credit Party to any Agent or any Lender in connection with the Credit Documents and the transactions contemplated thereby or for the financial condition or business affairs of any Credit Party or any other Person liable for the payment of any Obligations, nor shall any Agent be required to ascertain or inquire as to the performance or observance of any of the terms, conditions, provisions, covenants or agreements contained in any of the Credit Documents or as to the use of the proceeds of the Loans or as to the existence or possible existence of any Event of Default or Default or to make any disclosures with respect to the foregoing. Anything contained herein to the contrary notwithstanding, Administrative Agent shall not have any liability arising from confirmations of the amount of outstanding Loans.
(b) Exculpatory Provisions . No Agent nor any of its officers, partners, directors, employees or agents shall be liable to Lenders for any action taken or omitted by any Agent under or in connection with any of the Credit Documents except to the extent caused by such Agents gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. Each Agent shall be entitled to refrain from any act or the taking of any action (including the failure to take an action) in connection herewith or any of the other Credit Documents or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until such Agent shall have received instructions in respect thereof from Requisite Lenders (or the Administrative Agent acting with the consent of the Requisite Lenders (with respect to instructions received by the Collateral Agent) or such other Lenders as may be required to give such instructions under Section 10.5) and, upon receipt of such instructions from Requisite Lenders (or such other Lenders, as the case may be), such Agent shall be entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance with such instructions, including for the avoidance of doubt refraining from any action that, in its opinion or the opinion of its counsel, may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting
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Lender in violation of any Debtor Relief Law. Without prejudice to the generality of the foregoing, (i) each Agent shall be entitled to rely, and shall be fully protected in relying, upon any communication, instrument or document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons, and shall be entitled to rely and shall be protected in relying on opinions and judgments of attorneys (who may be attorneys for Holdings and its Subsidiaries), accountants, experts and other professional advisors selected by it; and (ii) no Lender shall have any right of action whatsoever against any Agent as a result of such Agent acting or (where so instructed) refraining from acting hereunder or any of the other Credit Documents in accordance with the instructions of Requisite Lenders (or such other Lenders as may be required to give such instructions under Section 10.5). No Agent shall be deemed to have knowledge of any Default or the event or events that give or may give rise to any Default unless and until notice describing such Default, identified as a notice of default, and such event or events is given to the Agent by the Loan Parties or any Lender (or the Administrative Agent with respect to a notice delivered to the Collateral Agent).
(c) Delegation of Duties . Administrative Agent may perform any and all of its duties and exercise its rights and powers under this Agreement or under any other Credit Document by or through any one or more sub-agents appointed by Administrative Agent. Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Affiliates. The exculpatory, indemnification and other provisions of this Section 9.3 and of Section 9.6 shall apply to any the Affiliates of Administrative Agent and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. All of the rights, benefits, and privileges (including the exculpatory and indemnification provisions) of this Section 9.3 and of Section 9.6 shall apply to any such sub-agent and to the Affiliates of any such sub-agent, and shall apply to their respective activities as sub-agent as if such sub-agent and Affiliates were named herein. Notwithstanding anything herein to the contrary, with respect to each sub-agent appointed by Administrative Agent, (i) such sub-agent shall be a third party beneficiary under this Agreement with respect to all such rights, benefits and privileges (including exculpatory rights and rights to indemnification) and shall have all of the rights and benefits of a third party beneficiary, including an independent right of action to enforce such rights, benefits and privileges (including exculpatory rights and rights to indemnification) directly, without the consent or joinder of any other Person, against any or all of Credit Parties and the Lenders, (ii) such rights, benefits and privileges (including exculpatory rights and rights to indemnification) shall not be modified or amended without the consent of such sub-agent, and (iii) such sub-agent shall only have obligations to Administrative Agent and not to any Credit Party, Lender or any other Person and no Credit Party, Lender or any other Person shall have any rights, directly or indirectly, as a third party beneficiary or otherwise, against such sub-agent.
9.4. Agents Entitled to Act as Lender. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, any Agent in its individual capacity as a Lender hereunder. With respect to its participation in the Loans, each Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same as if it were not performing the duties and functions delegated to it hereunder, and the term Lender shall, unless the context clearly otherwise indicates, include each Agent in its individual capacity. Any Agent and its Affiliates may accept deposits from, lend money to, own securities of, and generally engage in any kind of banking, trust, financial advisory or other business with Holdings or any of its Affiliates as if it were not performing the duties specified herein, and may accept fees and other consideration from Borrower for services in connection herewith and otherwise without having to account for the same to Lenders.
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9.5. Lenders Representations, Warranties and Acknowledgment.
(a) Each Lender represents and warrants that it has made its own independent investigation of the financial condition and affairs of Holdings and its Subsidiaries in connection with Credit Extensions hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of Holdings and its Subsidiaries. No Agent shall have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Lenders or to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter, and no Agent shall have any responsibility with respect to the accuracy of or the completeness of any information provided to Lenders.
(b) Each Lender, by delivering its signature page to this Agreement, the Restatement Agreement or an Assignment Agreement and funding or converting its Loan on the Restatement Effective Date or any subsequent Credit Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be approved by any Agent, Requisite Lenders or Lenders, as applicable on the Restatement Effective Date or such subsequent Credit Date. Notwithstanding anything herein to the contrary, each Lender also acknowledges that the Liens and security interests granted to the Collateral Agent pursuant to the Pledge and Security Agreement and the other Collateral Documents on Collateral and the exercise of any right or remedy by Collateral Agent under any of the foregoing with respect to the Collateral are subject to the provisions of the Intercreditor Agreements. As to any such Collateral, in the event of a conflict between the terms of the Intercreditor Agreements, this Agreement or any other Collateral Documents (on the other hand), the terms of the Intercreditor Agreements shall govern and control.
(c) Each Lender acknowledges that Borrower may purchase Loans and/or Commitments hereunder from Lenders from time to time, subject to the restrictions set forth in the definition of Eligible Assignee and Section 10.6.
9.6. Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees to indemnify each Agent, to the extent that such Agent shall not have been reimbursed by any Credit Party, for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Agent in exercising its powers, rights and remedies or performing its duties hereunder or under the other Credit Documents or otherwise in its capacity as such Agent in any way relating to or arising out of this Agreement or the other Credit Documents; provided , no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agents gross negligence, bad faith or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. If any indemnity furnished to any Agent for any purpose shall, in the opinion of such Agent, be insufficient or become impaired, such Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished; provided , in no event shall this sentence require any Lender to indemnify any Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such Lenders Pro Rata Share thereof; and provided further , this sentence shall not be deemed to require any Lender to indemnify any Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence.
9.7. Successor Administrative Agent. Administrative Agent shall have the right to resign at any time by giving prior written notice thereof to Lenders and Borrower. Administrative Agent shall
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have the right to appoint a financial institution to act as Administrative Agent hereunder, subject to the reasonable satisfaction of Borrower and the Requisite Lenders, and Administrative Agents resignation shall become effective on the earliest of (i) 30 days after delivery of the notice of resignation (regardless of whether a successor has been appointed or not), (ii) the acceptance of such successor Administrative Agent by Borrower and the Requisite Lenders or (iii) such other date, if any, agreed to by the Requisite Lenders. Upon any such notice of resignation, if a successor Administrative Agent has not already been appointed by the retiring Administrative Agent, Requisite Lenders shall have the right, upon five Business Days notice to Borrower, to appoint a successor Administrative Agent. If neither Requisite Lenders nor Administrative Agent have appointed a successor Administrative Agent, Requisite Lenders shall be deemed to have succeeded to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, that successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent and the retiring Administrative Agent shall promptly transfer to such successor Administrative Agent all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Administrative Agent under the Credit Documents, whereupon such retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After any retiring Administrative Agents resignation hereunder as Administrative Agent, the provisions of this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent hereunder.
9.8. Collateral Documents and Guaranty.
(a) Agents under Collateral Documents and Guaranty . Each Secured Party hereby further authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of and for the benefit of Secured Parties, to be the agent for and representative of Secured Parties with respect to the Guaranty, the Collateral and the Collateral Documents. Subject to Section 10.5, without further written consent or authorization from any Secured Party, Administrative Agent or, if instructed by the Administrative Agent, Collateral Agent, as applicable, may execute any documents or instruments necessary to (i) in connection with a sale or disposition of assets permitted by this Agreement to a Person that is not a Credit Party, release any Lien encumbering any item of Collateral that is the subject of such sale or other disposition of assets or to which Requisite Lenders (or such other Lenders as may be required to give such consent under Section 10.5) have otherwise consented or (ii) release any Guarantor from the Guaranty pursuant to Section 7.12 or with respect to which Requisite Lenders (or such other Lenders as may be required to give such consent under Section 10.5) have otherwise consented. In the event of any conflict between the terms of the Intercreditor Agreements and any of the Credit Documents, the provisions of the Intercreditor Agreements shall govern and control. Each Secured Party authorizes and instructs Administrative Agent and Collateral Agent to enter into the Collateral Documents and each Intercreditor Agreement on behalf of the Secured Parties in accordance with this Agreement (and consents to the terms contained therein) and to take all actions (and execute all documents) required (or deemed advisable) by it in accordance with the terms of such Intercreditor Agreement.
(b) Right to Realize on Collateral and Enforce Guaranty . Anything contained in any of the Credit Documents to the contrary notwithstanding, Borrower, Administrative Agent, Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Credit Documents may be exercised solely by Administrative Agent or Collateral Agent, as applicable, for the benefit of the Secured Parties (and, in
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the case of the Collateral Agent, the other Term Loan/Notes Secured Parties) in accordance with the terms hereof and thereof and all powers, rights and remedies under the Collateral Documents may be exercised solely by Administrative Agent and Collateral Agent, as applicable, for the benefit of the Secured Parties (and, in the case of the Collateral Agent, the other Term Loan/Notes Secured Parties) in accordance with the terms thereof and the Pari Passu Intercreditor Agreement, and (ii) in the event of a foreclosure or similar enforcement action by Collateral Agent on any of the Collateral pursuant to a public or private sale or other disposition (including, without limitation, pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), Collateral Agent or Administrative Agent (or any Lender, except with respect to a credit bid pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and Collateral Agent or Administrative Agent, as agent for and representative of Secured Parties (and, in the case of the Collateral Agent, the other Term Loan/Notes Secured Parties) (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from Requisite Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by Collateral Agent at such sale or other disposition.
(c) Release of Collateral and Guarantees, Termination of Credit Documents . Notwithstanding anything to the contrary contained herein or any other Credit Document, when all Obligations (other than any unasserted contingent obligations) have been paid in full and all Commitments have terminated or expired, upon request of Borrower, Administrative Agent and Collateral Agent, as applicable, shall (without notice to, or vote or consent of, any Lender) take such actions as shall be required to release its security interest in all Collateral solely with respect to Obligations, and to release all guarantee obligations provided for in any Credit Document. Any such release of guarantee obligations shall be deemed subject to the provision that such guarantee obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, Borrower or any Guarantor or any substantial part of its property, or otherwise, all as though such payment had not been made.
(d) Release of Collateral in Respect of Permitted Dispositions . Upon any disposition of property, including the Equity Interests of any Guarantor, permitted by this Agreement (other than to another Credit Party, but including pursuant to Section 9.8(f)), the Liens granted pursuant to the Collateral Documents in respect of such disposed property and in respect of the property of any Guarantor discharged and released from its Guaranty pursuant to Section 7.12 shall be deemed to be automatically released and such property shall automatically revert to the applicable Credit Party with no further action on the part of any Person. Upon the incurrence of any Indebtedness permitted by Section 6.1(g), the Liens granted pursuant to the Collateral Documents in respect of the property subject to such Liens may be released or subordinated, in each case promptly upon Borrowers request, to the extent such property does not constitute real property or fixtures constituting Term Loan/Notes Exclusive Collateral as of the Restatement Effective Date or required to become Term Loan/Notes Exclusive Collateral pursuant to Section 5.16 following the Restatement Effective Date. The Administrative Agent shall direct the Collateral Agent to (without notice to, or vote or consent of, any Lender), at the applicable Credit Partys expense, execute and deliver or otherwise authorize the filing of such documents as such Credit Party shall reasonably request to effectuate the release or subordination, as applicable, set forth in the two preceding sentences, in form and substance reasonable satisfactory to Administrative Agent, including financing statement amendments to evidence any release.
(e) The Agents shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Lien thereon in favor of the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, or any certificate prepared by any Credit Party in connection therewith, nor shall the Collateral Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
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(f) The Collateral Agent may conclusively rely that any instruction received by it from the Administrative Agent is in accordance with the appropriate consents from Lenders or Requisite Lenders (as applicable) pursuant to the terms hereof.
(g) Release of TBA/Vacant Parcels . Notwithstanding anything to the contrary contained herein, (1) Borrower shall have the right to subdivide any TBA/Vacant Parcel from the remaining Real Estate Asset, (2) the Administrative Agent shall direct the Collateral Agent to (without notice to, or vote or consent of, any Lender), at the applicable Credit Partys expense, execute and deliver or otherwise authorize the filing of such documents as such Credit Party shall reasonably request to effectuate the subdivision, in form and substance reasonably satisfactory to Administrative Agent and (3) following completion of such subdivision, the Lien of the Mortgage and any other Collateral Document shall be released with respect to such TBA/Vacant Parcel upon satisfaction of the following conditions:
(i) Not less than thirty (30) calendar days prior to the date of the intended release, Borrower shall deliver to the Administrative Agent a notice setting forth (i) the date of the intended release of such TBA/Vacant Parcel, and (ii) the name of the proposed transferee;
(ii) As of the date Borrower delivers to the Administrative Agent a notice of the proposed release and as of the date of the release, no Event of Default has occurred and is continuing;
(iii) Borrower delivers to the Administrative Agent a certificate of an Authorized Officer stating that (A) the release of the TBA/Vacant Parcel shall not cause a violation of any applicable zoning (including parking), building or use laws or licenses and permits as the same relate to the remainder of the Real Estate Asset, (B) there shall not be any restriction in access to the remainder of the Real Estate Asset as a result of the release, (C) to the extent required by the local authorities or municipality, the TBA/Vacant Parcel has been or will be, at the time of such release, legally subdivided from the remainder of the applicable Real Estate Asset and will be separately taxed, (D) all applicable and appropriate easements have been retained for the benefit of the remainder of the Real Estate Asset to the extent necessary for its intended use and (E) that the release is permitted under the Credit Agreement;
(iv) If the TBA/Vacant Parcel is part of a Title Policy Property, Borrower shall deliver to the Collateral Agent an endorsement to the Title Policy insuring the Mortgage for such Title Policy Property, which endorsement (i) extends the effective date of such Title Policy to the effective date of the release, (ii) confirms no change in the priority of the Mortgage on the remainder of the Real Estate Asset (exclusive of the TBA/Vacant Parcel that is released); and (iii) insures the rights and benefits granted the applicable Credit Party under any new or amended reciprocal easement agreement(s) or such other agreement(s), if any, executed and recorded in connection with the release;
(v) Borrower shall submit to the Administrative Agent, not less than ten (10) Business Days prior to the intended release date, a release of Lien for the TBA/Vacant Parcel for execution by the Collateral Agent, in form and substance satisfactory to the Administrative Agent; such release shall be in a form appropriate in the State in which the TBA/Vacant Parcel is located; and
(vi) Borrower shall have paid to the Administrative Agent and the Collateral Agent all of such Persons reasonable out-of-pocket costs and expenses in connection with the review and approval of the documents and information required to be delivered pursuant to the terms of this Section 9.8(f) and the release of the TBA/Vacant Parcel from the Lien of the Mortgage, including due diligence review costs and reasonable legal counsel fees.
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Upon satisfaction of the foregoing, the Administrative Agent shall direct the Collateral Agent to execute and deposit into escrow the release of Lien documentation provided by Borrower on or prior to the intended release date, and such documentation shall be released immediately prior to the conveyance of the applicable TBA/Vacant Parcels to an unrelated third party buyer.
9.9. Withholding Taxes . To the extent required by any applicable law, Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. If the Internal Revenue Service or any other Governmental Authority asserts a claim that Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding Tax ineffective or for any other reason, or if Administrative Agent reasonably determines that a payment was made to a Lender pursuant to this Agreement without deduction of applicable withholding tax from such payment, such Lender shall indemnify Administrative Agent fully for all amounts paid, directly or indirectly, by Administrative Agent as Tax or otherwise, including any penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred.
9.10. Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim . In case of the pendency of any proceeding under any Debtor Relief Laws relative to any Credit Party, Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Administrative Agent shall have made any demand on Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(a) to file a verified statement pursuant to rule 2019 of the Federal Rules of Bankruptcy Procedure that, in its sole opinion, complies with such rules disclosure requirements for entities representing more than one creditor;
(b) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its respective agents and counsel and all other amounts due Administrative Agent under Sections 2.11, 10.2 and 10.3) allowed in such judicial proceeding; and
(c) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to Administrative Agent and, in the event that Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts
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due Administrative Agent under Sections 2.11, 10.2 and 10.3. To the extent that the payment of any such compensation, expenses, disbursements and advances of Administrative Agent, its agents and counsel, and any other amounts due Administrative Agent under Sections 2.11, 10.2 and 10.3, out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Lenders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing contained herein shall be deemed to authorize Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
SECTION 10. | MISCELLANEOUS |
10.1. Notices .
(a) Notices Generally . Any notice or other communication herein required or permitted to be given to a Credit Party or any Agent shall be sent to such Persons address as set forth on Appendix B or in the other relevant Credit Document, and in the case of any Lender, the address as indicated to Administrative Agent in writing. Except as otherwise set forth in paragraph (b) below, each notice hereunder shall be in writing and may be personally served or sent by telefacsimile (except for any notices sent to Administrative Agent) or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, upon receipt of telefacsimile, or three Business Days after depositing it in the United States mail with postage prepaid and properly addressed; provided , no notice to any Agent shall be effective until received by such Agent; provided further , any such notice or other communication shall at the request of Administrative Agent be provided to any sub-agent appointed pursuant to Section 9.3(c) as designated by Administrative Agent from time to time.
(b) Electronic Communications .
(i) Notices and other communications to any Agent (except the Collateral Agent) and any Lender hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites, including the Platform) pursuant to procedures approved by Administrative Agent, provided that the foregoing shall not apply to notices to any Agent or any Lender pursuant to Section 2 if such Person has notified Administrative Agent that it is incapable of receiving notices under such Section by electronic communication. Notices and other communications to the Collateral Agent may be delivered or furnished pursuant to the procedures set forth in Section 5.01 of the Pari Passu Intercreditor Agreement. Administrative Agent or Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications. Unless Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the senders receipt of an acknowledgment from the intended recipient (such as by the return receipt requested function, as available, return e-mail or other written acknowledgment), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
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(ii) Each Credit Party understands that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution and agrees and assumes the risks associated with such electronic distribution, except to the extent caused by the willful misconduct or gross negligence of Administrative Agent, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
(iii) The Platform and any Approved Electronic Communications are provided as is and as available. None of the Agents or any of their respective officers, directors, employees, agents, advisors or representatives (the Agent Affiliates ) warrant the accuracy, adequacy, or completeness of the Approved Electronic Communications or the Platform and each expressly disclaims liability for errors or omissions in the Platform and the Approved Electronic Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects is made by the Agent Affiliates in connection with the Platform or the Approved Electronic Communications.
(iv) Each Credit Party, each Lender and each Agent agrees that Administrative Agent may, but shall not be obligated to, store any Approved Electronic Communications on the Platform in accordance with Administrative Agents customary document retention procedures and policies.
(v) Any notice of Default or Event of Default may be provided by telephone if confirmed promptly thereafter by delivery of written notice thereof.
(c) Private Side Information Contacts . Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the Private Side Information or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lenders compliance procedures and applicable law, including United States federal and state securities laws, to make reference to information that is not made available through the Public Side Information portion of the Platform and that may contain Non-Public Information with respect to Holdings, its Subsidiaries or their securities for purposes of United States federal or state securities laws. In the event that any Public Lender has determined for itself to not access any information disclosed through the Platform or otherwise, such Public Lender acknowledges that (i) other Lenders may have availed themselves of such information and (ii) neither Borrower nor Administrative Agent has any responsibility for such Public Lenders decision to limit the scope of the information it has obtained in connection with this Agreement and the other Credit Documents.
10.2. Expenses . Whether or not the transactions contemplated hereby shall be consummated, Borrower agrees to pay promptly (a) all documented, out-of-pocket, actual and reasonable costs and expenses incurred in connection with the negotiation, preparation and execution of the Credit Documents and any consents, amendments, waivers or other modifications thereto; (b) all the reasonable and documented costs of furnishing all opinions by counsel for Borrower and the other Credit Parties; (c) the reasonable, documented fees, expenses and disbursements of counsel to Agents (limited to one counsel for all Agents taken as a whole (plus one additional counsel for the Collateral Agent) and, if reasonably necessary, a single local counsel for all Agents taken as a whole (plus one additional counsel for the Collateral Agent) in each relevant material jurisdiction and, solely in the case of a conflict of interest, one
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additional counsel in each relevant jurisdiction to each group of affected Agents similarly situated taken as a whole) in connection with the negotiation, preparation, execution and administration of the Credit Documents and any consents, amendments, waivers or other modifications thereto and any other documents or matters requested by Borrower; (d) all documented, out-of-pocket actual costs and reasonable expenses of creating, perfecting, recording, maintaining and preserving Liens in favor of Collateral Agent, for the benefit of Term Loan/Notes Secured Parties, including filing and recording fees, expenses and taxes, stamp or documentary taxes, search fees, title insurance premiums and reasonable fees, expenses and disbursements of counsel to each Agent and of counsel providing any opinions that any Agent or Requisite Lenders may request in respect of the Collateral or the Liens created pursuant to the Collateral Documents; (e) all documented actual and reasonable costs, fees, expenses and disbursements of any auditors, accountants, consultants or appraisers; (f) all documented actual and reasonable, documented costs and expenses (including the reasonable fees, expenses and disbursements of any appraisers, consultants, advisors and agents employed or retained by Collateral Agent and its counsel) in connection with the custody or preservation of any of the Collateral; (g) all other documented, out-of-pocket, actual and reasonable costs and expenses incurred by each Agent in connection with the syndication of the Loans and Commitments and the transactions contemplated by the Credit Documents and any consents, amendments, waivers or other modifications thereto and (h) after the occurrence of a Default or an Event of Default, all documented, out-of-pocket costs and expenses, including reasonable attorneys fees (limited to one counsel for Agents and Lenders taken as a whole (plus one additional counsel for the Collateral Agent) and, if reasonably necessary, a single local counsel for all Agents and Lenders taken as a whole (plus one additional counsel for the Collateral Agent) in each relevant material jurisdiction and, solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction to each group of affected Agents and Lenders similarly situated taken as a whole) and costs of settlement, incurred by any Agent and Lenders in enforcing any Obligations of or in collecting any payments due from any Credit Party hereunder or under the other Credit Documents by reason of such Default or Event of Default (including in connection with the sale, lease or license of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty) or in connection with any refinancing or restructuring of the credit arrangements provided hereunder in the nature of a work-out or pursuant to any insolvency or bankruptcy cases or proceedings.
10.3. Indemnity .
(a) In addition to the payment of expenses pursuant to Section 10.2, whether or not the transactions contemplated hereby shall be consummated, each Credit Party agrees to defend (subject to Indemnitees selection of counsel), indemnify, pay and hold harmless, each Agent and Lender and each of their respective officers, partners, members, directors, trustees, advisors, employees, agents, sub-agents and Affiliates (each, an Indemnitee ), from and against any and all Indemnified Liabilities. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH INDEMNIFIED LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY, OR ARE CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY INDEMNITEE AND WHETHER OR NOT SUCH INDEMNIFIED LIABILITIES ARE IN CONNECTION WITH AN INVESTIGATION, LITIGATION, CLAIM OR PROCEEDING THAT IS BROUGHT BY ANY CREDIT PARTY, ANY EQUITY HOLDERS OR CREDITORS OF ANY CREDIT PARTY OR ANY OTHER INDEMNITEE AND WHETHER OR NOT SUCH INDEMNITEE IS OTHERWISE A PARTY HERETO ; provided , however , no Credit Party shall have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or their respective controlled Affiliates, directors, employees, attorneys, agents or sub-agents, in each case, as determined by a final, non-appealable judgment of a court of competent jurisdiction, (y) arises from a material breach of the obligations of such Indemnitee hereunder (other than with respect to a
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breach by the Collateral Agent), as determined by a final, non-appealable judgment of a court of competent jurisdiction or (z) arises from any dispute solely among Indemnitees other than (1) any claims against any Agent in its capacity or in fulfilling its role as an Agent or any similar role hereunder and (2) any claims arising out of any act or omission on the part of any Credit Party or any of its Affiliates, in each case as determined by a final, non-appealable judgment of a court of competent jurisdiction. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 10.3 may be unenforceable in whole or in part because they are violative of any law or public policy, the applicable Credit Party shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them.
(b) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against each Lender, each Agent and their respective Affiliates, directors, employees, attorneys, agents or sub-agents, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and Holdings and Borrower hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.
(c) Each Credit Party also agrees that no Lender, Agent nor their respective Affiliates, directors, employees, attorneys, agents or sub-agents will have any liability to any Credit Party or any person asserting claims on behalf of or in right of any Credit Party or any other person in connection with or as a result of this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, in each case, except in the case of any Credit Party to the extent that any losses, claims, damages, liabilities or expenses incurred by such Credit Party or its affiliates, shareholders, partners or other equity holders have been found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Lender, Agent or their respective Affiliates, directors, employees, attorneys, agents or sub-agents in performing its obligations under this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein; provided , however , that in no event will such Lender, Agent, or their respective Affiliates, directors, employees, attorneys, agents or sub-agents have any liability for any indirect, consequential, special or punitive damages in connection with or as a result of such Lenders, Agents or their respective Affiliates, directors, employees, attorneys, agents or sub-agents activities related to this Agreement or any Credit Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein.
10.4. Set-Off . In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence of any Event of Default each Lender is hereby authorized by each Credit Party at any time or from time to time subject to the prior written consent of Administrative Agent, without notice to any Credit Party or to any other Person (other than Administrative Agent), any such notice being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts) and any other Indebtedness at any time held or owing by such Lender to or for the credit or the account of any Credit Party against and on account of the obligations and liabilities of any Credit Party to such Lender hereunder, including all
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claims of any nature or description arising out of or connected hereto, irrespective of whether or not (a) such Lender shall have made any demand hereunder or (b) the principal of or the interest on the Loans or any other amounts due hereunder shall have become due and payable pursuant to Section 2 and although such obligations and liabilities, or any of them, may be contingent or unmatured; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to Administrative Agent for further application in accordance with the provisions of Sections 2.17 and 2.22 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender and their respective Affiliates under this Section 10.4 are in addition to other rights and remedies (including other rights of setoff) that such Lender or their respective Affiliates may have.
10.5. Amendments and Waivers .
(a) Requisite Lenders Consent . Subject to the additional requirements of Sections 10.5(b) and 10.5(c) and except as provided in Sections 10.5(e), 10.5(f) and 10.5(g), no amendment, modification, termination or waiver of any provision of the Credit Documents, or consent to any departure by any Credit Party therefrom, shall in any event be effective without the written concurrence of Requisite Lenders; provided that Administrative Agent may, with the consent of Borrower only, amend, modify or supplement this Agreement or any other Credit Document (or direct the Collateral Agent to do the same) to cure any ambiguity, omission, defect or inconsistency (as reasonably determined by Administrative Agent), so long as such amendment, modification or supplement does not adversely affect the rights of any Lender or the Lenders shall have received at least five Business Days prior written notice thereof and Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Requisite Lenders stating that the Requisite Lenders object to such amendment. Notwithstanding anything to the contrary in this Section 10.5, the Credit Parties shall be permitted to supplement or amend schedules to the Pledge and Security Agreement or Collateral Questionnaire, in each case, in accordance with Section 13 of the Pledge and Security Agreement.
(b) Affected Lenders Consent . Without the written consent of each Lender that would be directly affected thereby, no amendment, modification, termination, or consent shall be effective if the effect thereof would:
(i) extend the scheduled final maturity of any Loan or Note;
(ii) waive, reduce or postpone any scheduled repayment (but not prepayment);
(iii) reduce the rate of interest on any Loan (other than any waiver of any increase in the interest rate applicable to any Loan pursuant to Section 2.10) or any fee or any premium payable hereunder;
(iv) extend the time for payment of any such interest, fees or premium;
(v) reduce the principal amount of any Loan;
(vi) amend, modify, terminate or waive any provision of this Section 10.5(b), Section 10.5(c) or any other provision of this Agreement that expressly provides that the consent of all Lenders is required;
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(vii) amend the definition of Requisite Lenders or Pro Rata Share; provided , with the consent of Requisite Lenders, additional extensions of credit pursuant hereto may be included in the determination of Requisite Lenders or Pro Rata Share on substantially the same basis as the Commitments and the Loans are included on the Restatement Effective Date;
(viii) release all or substantially all of the Collateral or all or substantially all of the Guarantors from the Guaranty except as expressly provided in the Credit Documents and except in connection with a credit bid undertaken by the Administrative Agent at the direction of the Requisite Lenders pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code or other sale or disposition of assets in connection with an enforcement action with respect to the Collateral permitted pursuant to the Credit Documents (in which case only the consent of the Requisite Lenders will be needed for such release); or
(ix) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under any Credit Document;
provided that, for the avoidance of doubt, all Lenders shall be deemed directly affected thereby with respect to any amendment described in clauses (vii), (viii) and (ix).
(c) Other Consents . No amendment, modification, termination or waiver of any provision of the Credit Documents, or consent to any departure by any Credit Party therefrom, shall:
(i) increase any Commitment of any Lender over the amount thereof then in effect without the consent of such Lender; provided , no amendment, modification or waiver of any condition precedent, covenant, Default or Event of Default shall constitute an increase in any Commitment of any Lender;
(ii) alter the required application of any repayments or prepayments as between Classes pursuant to Section 2.15 without the consent of Lenders holding more than 50% of the aggregate Loan Exposure of all Lenders of each Class which is being allocated a lesser repayment or prepayment as a result thereof; provided , Requisite Lenders may amend, modify or waive, in whole or in part, any prepayment provision so long as the application, as between Classes, of any portion of such prepayment which is still required to be made is not altered; or
(iii) amend, modify, terminate or waive any provision of the Credit Documents as the same applies to any Agent, or any other provision hereof as the same applies to the rights or obligations of any Agent, in each case without the consent of such Agent.
(d) Execution of Amendments, Etc. Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of such Lender (or direct the Collateral Agent to do the same). Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Credit Party in any case shall entitle any Credit Party to any other or further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.5 shall, upon delivery to Administrative Agent, be binding upon each Lender at the time outstanding, each future Lender and, if signed by a Credit Party, on such Credit Party.
(e) Extension Amendments and Refinancing Amendments . Nothing in this Section 10.5 shall be deemed to limit any Credit Party or Administrative Agent from entering into any Refinancing Amendments or Extension Amendments (including, without limitation, to amend the definition of
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Maturity Date to reflect any such Refinancing or Extension) to effectuate the Refinancing or Extensions contemplated by Section 2.24 or 2.25 hereof, respectively, and the Lenders hereby irrevocably authorize Administrative Agent to enter into such amendments on their behalf.
(f) Credit Agreement Refinancing Indebtedness . Notwithstanding the foregoing, no Lender consent is required to effect any amendment or supplement to any ABL Intercreditor Agreement, any Pari Passu Intercreditor Agreement, other intercreditor agreement or arrangement or any other Collateral Document permitted under this Agreement in connection with an incurrence of Indebtedness or Liens permitted under this Agreement (including, without limitation, the joinder of holders thereof), as expressly contemplated by the terms of such ABL Intercreditor Agreement, such Pari Passu Intercreditor Agreement, such other intercreditor agreement or arrangement or such other Collateral Document permitted under this Agreement, as applicable (it being understood that any such amendment or supplement may make such other changes to the applicable intercreditor agreement or Collateral Document as, in the good faith determination of Administrative Agent, are required to effectuate the foregoing and provided that such other changes are not adverse, in any material respect, to the interests of the Lenders); provided , further , that no such agreement shall amend, modify or otherwise affect the rights or duties of Administrative Agent or Collateral Agent hereunder or under any other Credit Document without the prior written consent of the Administrative Agent or Collateral Agent, as applicable.
(g) Amendments for the Purpose of Granting New Liens or Adding Collateral . Notwithstanding the foregoing, any Collateral Document may be amended or otherwise modified without the consent of any Lender solely to grant a new Lien for the benefit of the Term Loan/Notes Secured Parties or to extend an existing Lien in any Collateral Document over additional assets. The Collateral Agent shall execute and deliver to the Administrative Agent any documents reasonably requested in connection with the foregoing.
10.6. Successors and Assigns; Participations .
(a) Generally . This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and the successors and assigns of Lenders. No Credit Partys rights or obligations hereunder nor any interest therein may be assigned or delegated by any Credit Party without the prior written consent of all Lenders. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, Affiliates of each of the Agents and Lenders and other Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Register . Borrower, Administrative Agent and Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the corresponding Commitments and Loans listed therein for all purposes hereof, and no assignment or transfer of any such Commitment or Loan shall be effective, in each case, unless and until recorded in the Register following receipt of a fully executed Assignment Agreement effecting the assignment or transfer thereof, together with the required forms and certificates regarding tax matters and any fees payable in connection with such assignment, in each case, as provided in Section 10.6(d). Each assignment shall be recorded in the Register promptly following receipt by Administrative Agent of the fully executed Assignment Agreement and all other necessary documents and approvals, prompt notice thereof shall be provided to Borrower and a copy of such Assignment Agreement shall be maintained, as applicable. The date of such recordation of a transfer shall be referred to herein as the Assignment Effective Date. Any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Commitments or Loans.
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(c) Right to Assign . Each Lender shall have the right at any time to sell, assign or transfer all or a portion of its rights and obligations under this Agreement, including all or a portion of its Commitment or Loans owing to it or other Obligations ( provided , however , that pro rata assignments shall not be required and each assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any applicable Loan and any related Commitments):
(i) to any Person meeting the criteria of clause (i) of the definition of the term Eligible Assignee upon the giving of notice to Administrative Agent;
(ii) to any Person meeting the criteria of clause (ii) of the definition of the term Eligible Assignee upon giving of notice to Borrower, Administrative Agent and to any such Person (except in the case of assignments made by or to JPMorgan), consented to by each of Borrower and Administrative Agent (such consent not to be (x) unreasonably withheld or delayed or, (y) in the case of Borrower, required at any time an Event of Default shall have occurred and then be continuing); provided further that (A) Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to Administrative Agent within 10 Business Days after having received notice thereof and (B) each such assignment pursuant to this Section 10.6(c)(ii) shall be in an aggregate amount of not less than (w) $1,000,000, (x) such lesser amount as agreed to by Borrower and Administrative Agent, (y) the aggregate amount of the Loans of the assigning Lender with respect to the Class being assigned or (z) the amount assigned by an assigning Lender to an Affiliate or Related Fund of such Lender; and
(iii) to any Persons the identities and allocations of which were approved by the Borrower prior to the Restatement Effective Date (and any Affiliates thereof) in connection with the primary syndication of the Loans.
(d) Mechanics .
(i) Assignments and assumptions of Loans and Commitments by Lenders shall be effected by manual execution and delivery to Administrative Agent of an Assignment Agreement. Assignments made pursuant to the foregoing provision shall be effective as of the Assignment Effective Date. In connection with all assignments there shall be delivered to Administrative Agent such forms, certificates or other evidence, if any, with respect to United States federal income tax withholding matters as the assignee under such Assignment Agreement may be required to deliver pursuant to Section 2.20(c), together with payment to Administrative Agent of a registration and processing fee of $3,500.
(ii) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate, to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to Administrative Agent and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full Pro Rata Share of all Loans. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(e) Representations and Warranties of Assignee . Each Lender, upon execution and delivery hereof or upon succeeding to an interest in the Commitments and Loans, as the case may be, represents
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and warrants as of the Restatement Effective Date or as of the Assignment Effective Date that (i) it is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in commitments or loans such as the applicable Commitments or Loans, as the case may be; and (iii) it will make or invest in, as the case may be, its Commitments or Loans for its own account in the ordinary course and without a view to distribution of such Commitments or Loans within the meaning of the Securities Act or the Exchange Act or other federal securities laws (it being understood that, subject to the provisions of this Section 10.6, the disposition of such Commitments or Loans or any interests therein shall at all times remain within its exclusive control).
(f) Effect of Assignment . Subject to the terms and conditions of this Section 10.6, as of the Assignment Effective Date (i) the assignee thereunder shall have the rights and obligations of a Lender hereunder to the extent of its interest in the Loans and Commitments as reflected in the Register and shall thereafter be a party hereto and a Lender for all purposes hereof; (ii) the assigning Lender thereunder shall, to the extent that rights and obligations hereunder have been assigned to the assignee, relinquish its rights (other than any rights which survive the termination hereof under Section 10.8) and be released from its obligations hereunder (and, in the case of an assignment covering all or the remaining portion of an assigning Lenders rights and obligations hereunder, such Lender shall cease to be a party hereto on the Assignment Effective Date; provided , anything contained in any of the Credit Documents to the contrary notwithstanding, such assigning Lender shall continue to be entitled to the benefit of all indemnities hereunder as specified herein with respect to matters arising out of the prior involvement of such assigning Lender as a Lender hereunder); (iii) the Commitments shall be modified to reflect any Commitment of such assignee and any Commitment of such assigning Lender, if any; and (iv) if any such assignment occurs after the issuance of any Note hereunder, the assigning Lender shall, upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender its applicable Notes to Administrative Agent for cancellation, and thereupon Borrower shall issue and deliver new Notes, if so requested by the assignee and/or assigning Lender, to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the outstanding Loans of the assignee and/or the assigning Lender.
(g) Participations .
(i) Each Lender shall have the right at any time to sell one or more participations to any Person (other than Holdings, any of its Subsidiaries or any of its Affiliates) in all or any part of its Commitments, Loans or in any other Obligation. Each Lender that sells a participation pursuant to this Section 10.6(g) shall, acting solely for U.S. federal income tax purposes as an agent of Borrower, maintain a register on which it records the name and address of each participant and the principal amounts of each participants participation interest with respect to the Loan (each, a Participant Register ); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participants interest in any Commitments, Loans or its other obligations under this Agreement) except to the extent that the relevant parties, acting reasonably and in good faith, determine that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. Unless otherwise required by the Internal Revenue Service, any disclosure required by the foregoing sentence shall be made by the relevant Lender directly and solely to the Internal Revenue Service. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of a participation with respect to the Loan for all purposes under this Agreement, notwithstanding any notice to the contrary.
(ii) The holder of any such participation, other than an Affiliate of the Lender granting such participation, shall not be entitled to require such Lender to take or omit to take any
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action hereunder except with respect to any amendment, modification or waiver that would (A) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the participants participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Commitment shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participants participation is not increased as a result thereof), (B) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral under the Collateral Documents or all or substantially all of the Guarantors from the Guaranty (in each case, except as expressly provided in the Credit Documents) supporting the Loans hereunder in which such participant is participating.
(iii) Borrower agrees that each participant shall be entitled to the benefits of Sections 2.18(c), 2.19 and 2.20 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (c) of this Section; provided , (x) a participant shall not be entitled to receive any greater payment under Section 2.19 or 2.20 than the applicable Lender would have been entitled to receive with respect to the participation sold to such participant, and (y) a participant shall not be entitled to the benefits of Section 2.20 unless Borrower is notified of the participation sold to such participant and such participant agrees, for the benefit of Borrower, to comply with Section 2.20 as though it were a Lender; provided further that, except as specifically set forth in clauses (x) and (y) of this sentence, nothing herein shall require any notice to Borrower or any other Person in connection with the sale of any participation. To the extent permitted by law, each participant also shall be entitled to the benefits of Section 10.4 as though it were a Lender, provided such participant agrees to be subject to Section 2.17 as though it were a Lender.
(h) Certain Other Assignments and Participations . In addition to any other assignment or participation permitted pursuant to this Section 10.6 any Lender may assign, pledge and/or grant a security interest in all or any portion of its Loans, the other Obligations owed by or to such Lender, and its Notes, if any, to secure obligations of such Lender including any Federal Reserve Bank as collateral security pursuant to Regulation A of the Board of Governors and any operating circular issued by such Federal Reserve Bank; provided , that no Lender, as between Borrower and such Lender, shall be relieved of any of its obligations hereunder as a result of any such assignment and pledge, and provided further , that in no event shall the applicable Federal Reserve Bank, pledgee or trustee, be considered to be a Lender or be entitled to require the assigning Lender to take or omit to take any action hereunder.
(i) Assignments to Borrower . Notwithstanding anything to the contrary contained in this Section 10.6 or any other provision of this Agreement, so long as no Event of Default has occurred and is continuing or would result therefrom, each Lender shall have the right at any time to sell, assign or transfer all or a portion of its Commitment or Loans owing to it ( provided , however , that each assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any applicable Loan and any related Commitments) to Borrower on a non pro rata basis through (x) one or more modified Dutch auctions (each, an Auction ) ( provided that, (A) notice of the Auction shall be made to all Lenders and (B) the Auction shall be conducted pursuant to such procedures as the Auction Manager may establish which are consistent with the Auction Procedures set forth on Exhibit I and are otherwise reasonably acceptable to Borrower, the Auction Manager and Administrative Agent)) or (y) open market purchases, in each case subject to the following additional limitations:
(i) With respect to all repurchases made by Borrower pursuant to any Auction, (A) Borrower shall deliver to the Auction Manager a certificate of an Authorized Officer stating that (1) no Event of Default has occurred and is continuing or would result from such repurchase and (2) as of the launch date of the related Auction and the effective date of any Borrower Assignment Agreement, it is not in possession of any information regarding Borrower or its Subsidiaries, or their assets, Borrowers ability to perform its Obligations or any other matter that may be material to a decision by any Lender to participate in any Auction or enter into any Borrower Assignment Agreement or any of the transactions contemplated thereby that has not previously been disclosed to the Auction Manager, Administrative Agent and the Non-Public Lenders and (B) the assigning Lender and Borrower shall execute and deliver to the Auction Manager a Borrower Assignment Agreement;
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(ii) With respect to all open market purchases made by Borrower, (A) the aggregate principal amount of Loans purchased by assignment pursuant to this Section 10.6(i)(ii) may not exceed $250,000,000 after the Restatement Effective Date during the term of this Agreement, and (B) the assigning Lender and the Borrower shall execute and deliver to the Administrative Agent a Borrower Assignment Agreement and (C) either (1) Borrower shall represent in the relevant Borrower Assignment Agreement that it is not in possession of any information regarding Borrower or its Subsidiaries, or their assets, Borrowers ability to perform its Obligations or any other matter that may be material to a decision by any Lender to enter into any Borrower Assignment Agreement or any of the transactions contemplated thereby that has not previously been disclosed to the assigning Lender or (2) each Lender shall agree in the relevant Borrower Assignment Agreement that (v) in connection with any such open market purchase, Borrower then may have, and later may come into possession of, information regarding the Loans or the Credit Parties hereunder that is not known to such Lender and that may be material to a decision by such Lender to enter into an assignment of such Loans hereunder ( Excluded Information ), (w) such Lender has independently and without reliance on Borrower or any of its Subsidiaries or Affiliates made such Lenders own analysis and determined to enter into an assignment of such Loans and to consummate the transactions contemplated thereby notwithstanding such Lenders lack of knowledge of the Excluded Information, (x) Holdings and its Subsidiaries shall have no liability to such Lender, and such Lender hereby waives and releases, to the extent permitted by law, any claims such Lender may have against Holdings and its Subsidiaries, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information, (y) the Excluded Information may not be available to Administrative Agent or the other Lenders hereunder and (z) to the extent such Lender assigns (or does not assign) Loans pursuant to this Section 10.6(i), it agrees to the provisions set forth in this clause (ii), and agrees that such provisions shall control, notwithstanding any inconsistent provision hereof or in any Borrower Assignment Agreement; and
(iii) Following any repurchase by Borrower pursuant to this Section 10.6(i), the Loans so repurchased shall, without further action by any Person, be deemed cancelled for all purposes and no longer outstanding (and may not be resold by Borrower), for all purposes of this Agreement and all other Credit Documents, including, but not limited to (A) the making of, or the application of, any payments to the Lenders under this Agreement or any other Credit Document, (B) the making of any request, demand, authorization, direction, notice, consent or waiver under this Agreement or any other Credit Document or (C) the determination of Requisite Lenders, or for any similar or related purpose, under this Agreement or any other Credit Document. In connection with any Loans repurchased and cancelled pursuant to this Section 10.6(i), Administrative Agent is authorized to make appropriate entries in the Register to reflect any such cancellation.
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10.7. Independence of Covenants . All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.
10.8. Survival of Representations, Warranties and Agreements . All representations, warranties and agreements made herein shall survive the execution and delivery hereof and the making of any Credit Extension. Notwithstanding anything herein or implied by law to the contrary, the agreements of each Credit Party set forth in Sections 2.18(c), 2.19, 2.20, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth in Sections 2.17, 9.3(b) and 9.6 shall survive the payment of the Loans and the termination hereof.
10.9. No Waiver; Remedies Cumulative . No failure or delay on the part of any Agent or any Lender in the exercise of any power, right or privilege hereunder or under any other Credit Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other power, right or privilege. The rights, powers and remedies given to each Agent and each Lender hereby are cumulative and shall be in addition to and independent of all rights, powers and remedies existing by virtue of any statute or rule of law or in any of the other Credit Documents. Any forbearance or failure to exercise, and any delay in exercising, any right, power or remedy hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof, nor shall it preclude the further exercise of any such right, power or remedy.
10.10. Marshalling; Payments Set Aside . Neither any Agent nor any Lender shall be under any obligation to marshal any assets in favor of any Credit Party or any other Person or against or in payment of any or all of the Obligations. To the extent that any Credit Party makes a payment or payments to Administrative Agent or Lenders (or to Administrative Agent, on behalf of Lenders), or any Agent or Lender enforces any security interests or exercises any right of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state or federal law, common law or any equitable cause, then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or setoff had not occurred.
10.11. Severability . In case any provision in or obligation hereunder or under any other Credit Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
10.12. Obligations Several; Independent Nature of Lenders Rights . The obligations of Lenders hereunder are several and no Lender shall be responsible for the obligations or Commitment of any other Lender hereunder. Nothing contained herein or in any other Credit Document, and no action taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a partnership, an association, a joint venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose.
1 0.13. Headings . Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.
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10.14. APPLICABLE LAW . THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
10.15. CONSENT TO JURISDICTION . SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENTS, OR ANY OF THE OBLIGATIONS, SHALL BE BROUGHT IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS (OTHER THAN WITH RESPECT TO ACTIONS BY ANY AGENT IN RESPECT OF RIGHTS UNDER ANY COLLATERAL DOCUMENTS GOVERNED BY LAWS OTHER THAN THE LAWS OF THE STATE OF NEW YORK OR WITH RESPECT TO ANY COLLATERAL SUBJECT THERETO); (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY COLLATERAL DOCUMENT OR THE ENFORCEMENT OF ANY JUDGMENT.
10.16. WAIVER OF JURY TRIAL . EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND
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THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
10.17. Confidentiality . Each Agent and each Lender shall hold all non-public information regarding Holdings, Borrower and their respective Subsidiaries, Affiliates and their businesses identified as such by Borrower and obtained by such Agent or such Lender pursuant to the requirements hereof in accordance with such Agents and such Lenders customary procedures for handling confidential information of such nature, it being understood and agreed by Borrower that, in any event, Administrative Agent may disclose such information to the Lenders and each Agent and each Lender and each Agent may make (i) disclosures of such information to Affiliates of such Lender or Agent and to their respective officers, directors, partners, members, employees, legal counsel, independent auditors and other advisors, experts or agents who need to know such information and on a confidential basis (and to other Persons authorized by a Lender or Agent to organize, present or disseminate such information in connection with disclosures otherwise made in accordance with this Section 10.17), (ii) disclosures of such information reasonably required by any potential or prospective assignee, transferee or participant in connection with the contemplated assignment, transfer or participation of any Loans or any participations therein or by any direct or indirect contractual counterparties (or the professional advisors thereto) to any swap or derivative transaction relating to Borrower and its obligations ( provided , such assignees, transferees, participants, counterparties and advisors are advised of and agree to be bound by either the provisions of this Section 10.17 or other provisions at least as restrictive as this Section 10.17), (iii) disclosure to any rating agency when required by it, provided that, prior to any disclosure, such rating agency shall undertake in writing to preserve the confidentiality of any confidential information relating to Credit Parties received by it from any Agent or any Lender, (iv) disclosure on a confidential basis to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans, (v) disclosures in connection with the exercise of any remedies hereunder or under any other Credit Document, (vi) disclosures made pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding, or otherwise as required by applicable law or compulsory legal process (in which case such Person agrees to inform Borrower promptly thereof to the extent not prohibited by law) and (vii) disclosures made upon the request or demand of any regulatory or quasi-regulatory authority purporting to have jurisdiction over such Person or any of its Affiliates. In addition, each Agent and each Lender may disclose the existence of this Agreement and the information about this Agreement to market data collectors, similar services providers to the lending industry, and service providers to the Agents and the Lenders in connection with the administration and management of this Agreement and the other Credit Documents.
10.18. Usury Savings Clause . Notwithstanding any other provision herein, the aggregate interest rate charged with respect to any of the Obligations, including all charges or fees in connection therewith deemed in the nature of interest under applicable law shall not exceed the Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence) under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of interest due hereunder equals the amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect. In addition, if when the Loans made hereunder are repaid in full the total
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interest due hereunder (taking into account the increase provided for above) is less than the total amount of interest which would have been due hereunder if the stated rates of interest set forth in this Agreement had at all times been in effect, then to the extent permitted by law, Borrower shall pay to Administrative Agent an amount equal to the difference between the amount of interest paid and the amount of interest which would have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding the foregoing, it is the intention of Lenders and Borrower to conform strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled automatically and, if previously paid, shall at such Lenders option be applied to the outstanding amount of the Loans made hereunder or be refunded to Borrower.
10.19. Effectiveness; Counterparts . This Agreement shall become effective upon the execution of a counterpart hereof by each of the parties hereto and receipt by Borrower and Administrative Agent of written notification of such execution and authorization of delivery thereof. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic format (i.e., pdf or tif shall be effective as delivery of a manually executed counterpart of this Agreement.
10.20. PATRIOT Act . Each Lender and Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each Credit Party that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record information that identifies each Credit Party, which information includes the name and address of each Credit Party and other information that will allow such Lender or Administrative Agent, as applicable, to identify such Credit Party in accordance with the PATRIOT Act.
10.21. Electronic Execution of Assignments . The words execution, signed, signature, and words of like import in any Assignment Agreement shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
10.22. No Fiduciary Duty . Each Agent, each Lender and their Affiliates (collectively, solely for purposes of this paragraph, the Lenders ), may have economic interests that conflict with those of the Credit Parties, their stockholders and/or their affiliates. Each Credit Party agrees that nothing in the Credit Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and such Credit Party, its stockholders or its affiliates, on the other. The Credit Parties acknowledge and agree that (i) the transactions contemplated by the Credit Documents (including the exercise of rights and remedies hereunder and thereunder) are arms-length commercial transactions between the Lenders, on the one hand, and the Credit Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any Credit Party, its stockholders or its affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Credit Party, its stockholders or its affiliates on other matters) or any other obligation to any Credit Party except the obligations expressly set forth in the Credit Documents and (y) each Lender is acting solely as principal and not as the agent or fiduciary of any Credit Party, its management, stockholders, creditors or any other Person. Each Credit Party acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed
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appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. Each Credit Party agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Credit Party, in connection with such transaction or the process leading thereto.
10.23. Acknowledgement and Consent to Bail-In of EEA Financial Institutions . Notwithstanding anything to the contrary in any Credit Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Credit Document may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(i) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(ii) the effects of any Bail-In Action on any such liability, including, if applicable:
(a) reduction in full or in part or cancellation of any such liability;
(b) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Credit Document; or
(c) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
[Remainder of page intentionally left blank]
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APPENDIX A
TO CREDIT AND GUARANTY AGREEMENT
Commitments 1
Lender |
Commitment |
Pro
Rata Share |
||||||
JPMorgan Chase Bank, N.A. |
$ | 957,929,233.21 | 100 | % | ||||
|
|
|
|
|||||
Total |
$ | 957,929,233.21 | 100 | % | ||||
|
|
|
|
1 | In addition to Initial Loans funded pursuant to the Commitments reflected in this Appendix A, Converting Loans in an aggregate principal amount of $730,195,766.79 shall automatically be converted to a like principal amount of Initial Loans on the Restatement Effective Date. |
APPENDIX A-1
APPENDIX B
TO CREDIT AND GUARANTY AGREEMENT
Notice Addresses
J. C. PENNEY CORPORATION, INC.
6501 Legacy Drive, Mail Code 1304
Plano, TX 75024
Attention: Treasurer
Facsimile: (972) 431-2044
All other Credit Parties:
c/o J. C. Penney Corporation, Inc.
6501 Legacy Drive, Mail Code 1304
Plano, TX 75024
Attention: Treasurer
Facsimile: (972) 431-2044
in each case, with a copy to:
6501 Legacy Drive, Mail Code 1101
Plano, TX 75024
Attention: General Counsel
Facsimile: (972) 531-1916
APPENDIX B-1
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
Administrative Agents Principal Office:
500 Stanton Christiana Road
Ops Building 2, 3 rd Floor
Newark, DE 19713-2107
Telephone: (302) 634-1678
APPENDIX B-2
Schedule 3.1(a)
Restatement Agreement
Pledge and Security Agreement
Amended and Restated Trademark Security Agreement, among J. C. Penney Corporation, Inc., J. C. Penney Purchasing Corporation and Wilmington Trust, National Association as Collateral Agent, dated as of June 23, 2016
Patent Security Agreement, among J. C. Penney Corporation, Inc., J. C. Penney Purchasing Corporation and Wilmington Trust, National Association as Collateral Agent, dated as of June 23, 2016
Amended and Restated Copyright Security Agreement, among J. C. Penney Corporation, Inc., J. C. Penney Company, Inc., J. C. Penney Purchasing Corporation and Wilmington Trust, National Association as Collateral Agent, dated as of June 23, 2016
ABL Intercreditor Agreement
Pari Passu Intercreditor Agreement
Agency Transfer Agreement
Collateral Questionnaire
Schedule 4.2
Equity Interests and Ownership
Credit Party |
Owned by |
Total Ownership | Percent Owned | |||||||
J. C. Penney Corporation, Inc. | J. C. Penney Company, Inc. | 100.000 | 100.000 | |||||||
JCP Real Estate Holdings, Inc. | J. C. Penney Corporation, Inc. | 10.000 | 100.000 | |||||||
J. C. Penney Purchasing Corporation | J. C. Penney Corporation, Inc. | 300.000 | 100.000 | |||||||
J. C. Penney Properties, Inc. | JCP Real Estate Holdings, Inc. | 100.000 | 100.000 | 1 |
1 | J. C. Penney Properties, Inc. has issued 112 Shares of Series A Preferred Stock to third party equityholders in accordance with the requirement that Real Estate Investment Trusts have in excess of 100 shareholders. |
Schedule 4.13
Real Estate Assets
(see attached)
Store
Number |
Type/Use |
Address |
City |
State |
Real Estate Interest Held
|
Credit Party Holding Real
|
||||||
00001 |
MAIN STORE | PO BOX 110 | KEMMERER | WY | Fee | J.C. Penney Properties, Inc. | ||||||
00001 |
MAIN STORE | PO BOX 110 | KEMMERER | WY | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00004 |
MAIN STORE | 990 22ND AVE S | BROOKINGS | SD | Lease | J.C. Penney Corporation, Inc. | ||||||
00005 |
MAIN STORE | 9501 Arlington Expy | Jacksonville | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
00005 |
TIRE/BATTERY/AUTO | 9501 Arlington Expy | Jacksonville | FL | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00007 |
MAIN STORE | PO BOX 7126 | AUBURN | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
00012 |
MAIN STORE | 78 E MAIN ST | PRICE | UT | Lease | J.C. Penney Corporation, Inc. | ||||||
00016 |
MAIN STORE | 1170 CENTRAL AVE | DUNKIRK | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
00017 |
MAIN STORE | 1425 S SANTA FE AVE | CHANUTE | KS | Lease | J.C. Penney Corporation, Inc. | ||||||
00026 |
MAIN STORE | 124 S MAIN ST | PENDLETON | OR | Lease | J.C. Penney Corporation, Inc. | ||||||
00027 |
MAIN STORE | 12300 SE 82ND AVE | PORTLAND | OR | Fee | J.C. Penney Properties, Inc. | ||||||
00027 |
MAIN STORE | 12300 SE 82ND AVE | PORTLAND | OR | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00030 |
MAIN STORE | 14301 BURNHAVEN DR | BURNSVILLE | MN | Fee | J.C. Penney Properties, Inc. | ||||||
00030 |
MAIN STORE | 14301 BURNHAVEN DR | BURNSVILLE | MN | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00043 |
MAIN STORE | 621 MAIN ST | ALAMOSA | CO | Fee | J.C. Penney Properties, Inc. | ||||||
00043 |
OUTSIDE STOCKROOM | 621 MAIN ST | ALAMOSA | CO | Lease | J.C. Penney Corporation, Inc. | ||||||
00044 |
MAIN STORE | 3542 S MARYLAND PKWY | LAS VEGAS | NV | Lease | J.C. Penney Corporation, Inc. | ||||||
00044 |
TIRE/BATTERY/AUTO | 3542 S MARYLAND PKWY | LAS VEGAS | NV | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00046 |
MAIN STORE | 701 RICHMOND RD | RICHMOND HEIGHTS | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
00046 |
TIRE/BATTERY/AUTO | 701 RICHMOND RD | RICHMOND HEIGHTS | OH | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00052 |
MAIN STORE | 321 MAIN ST | FORT MORGAN | CO | Lease | J.C. Penney Corporation, Inc. | ||||||
00055 |
MAIN STORE | 4600 S MEDFORD DR STE 2000 | LUFKIN | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
00056 |
MAIN STORE | 413 DAKOTA AVE | WAHPETON | ND | Lease | J.C. Penney Corporation, Inc. | ||||||
00058 |
MAIN STORE | 2050 PONCE BY PASS STE 200 | PONCE | Puerto Rico | Lease | J.C. Penney Corporation, Inc. | ||||||
00063 |
MAIN STORE | 212 E 2ND ST | THE DALLES | OR | Lease | J.C. Penney Corporation, Inc. | ||||||
00065 |
MAIN STORE | 1309 ADAMS AVE | LA GRANDE | OR | Lease | J.C. Penney Corporation, Inc. | ||||||
00067 |
MAIN STORE | 500 LEHIGH VALLEY MALL | WHITEHALL | PA | Fee | J.C. Penney Properties, Inc. | ||||||
00067 |
MAIN STORE | 500 LEHIGH VALLEY MALL | WHITEHALL | PA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00089 |
MAIN STORE | 2321 DAVE LYLE BLVD | ROCK HILL | SC | Lease | J.C. Penney Corporation, Inc. | ||||||
00090 |
HOME STORE | 4861 NORTH STONE | TUCSON | AZ | Lease | J.C. Penney Corporation, Inc. | ||||||
00090 |
MAIN STORE | 4530 N ORACLE RD | TUCSON | AZ | Ground Lease | J.C. Penney Properties, Inc. | ||||||
00090 |
MAIN STORE | 4530 N ORACLE RD | TUCSON | AZ | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00099 |
MAIN STORE | 300 CROSS CREEK MALL | FAYETTEVILLE | NC | Fee | J.C. Penney Properties, Inc. | ||||||
00099 |
MAIN STORE | 300 CROSS CREEK MALL | FAYETTEVILLE | NC | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00102 |
MAIN STORE | 9801 CORTANA PL | BATON ROUGE | LA | Fee | J.C. Penney Properties, Inc. | ||||||
00102 |
MAIN STORE | 9801 CORTANA PL | BATON ROUGE | LA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00104 |
MAIN STORE | 201-209 WEST C ST | MCCOOK | NE | Lease | J.C. Penney Corporation, Inc. | ||||||
00106 |
MAIN STORE | 401 NE NORTHGATE WAY STE 475 | SEATTLE | WA | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
00109 |
ADDITIONAL SPACE | 1343 COMMERCIAL ST | ASTORIA | OR | Lease | J.C. Penney Corporation, Inc. | ||||||
00109 |
MAIN STORE | 1343 COMMERCIAL ST | ASTORIA | OR | Fee | J.C. Penney Properties, Inc. | ||||||
00113 |
MAIN STORE | PO BOX 668 | WILLISTON | ND | Lease | J.C. Penney Corporation, Inc. | ||||||
00116 |
MAIN STORE | 81 ROCKINGHAM PARK BLVD | SALEM | NH | Fee | J.C. Penney Properties, Inc. | ||||||
00116 |
MAIN STORE | 81 ROCKINGHAM PARK BLVD | SALEM | NH | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00120 |
MAIN STORE | 301 WYOMING BLVD SE | CASPER | WY | Lease | J.C. Penney Corporation, Inc. | ||||||
00129 |
MAIN STORE | 600 S CARPENTER AVE | KINGSFORD | MI | Lease | J.C. Penney Corporation, Inc. | ||||||
00130 |
MAIN STORE | 601-635 HARRY L DR STE 99 | JOHNSON CITY | NY | Ground Lease | J.C. Penney Properties, Inc. | ||||||
00130 |
MAIN STORE | 601-635 HARRY L DR STE 99 | JOHNSON CITY | NY | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00133 |
MAIN STORE | 25 LILAC MALL (RT 125) | ROCHESTER | NH | Lease | J.C. Penney Corporation, Inc. | ||||||
00135 |
MAIN STORE | 344 V BUCKLAND HLS DR STE 7000 | MANCHESTER | CT | Fee | J.C. Penney Properties, Inc. | ||||||
00135 |
MAIN STORE | 344 V BUCKLAND HLS DR STE 7000 | MANCHESTER | CT | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00141 |
MAIN STORE | 1207 N COMMERCE | ARDMORE | OK | Fee | J.C. Penney Properties, Inc. | ||||||
00141 |
MAIN STORE | 1207 N COMMERCE | ARDMORE | OK | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00152 |
MAIN STORE | 4835 PROMENADE PKWY | BESSEMER | AL | Ground Lease | J.C. Penney Properties, Inc. | ||||||
00152 |
MAIN STORE | 4835 PROMENADE PKWY | BESSEMER | AL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00157 |
MAIN STORE | 2180 S GILBERT RD | CHANDLER | AZ | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
00161 |
MAIN STORE | 5043 JIMMY LEE SMITH PKWY | HIRAM | GA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
00161 |
MAIN STORE | 5043 JIMMY LEE SMITH PKWY | HIRAM | GA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00162 |
MAIN STORE | 90 E LOCUST ST | CANTON | IL | Lease | J.C. Penney Corporation, Inc. | ||||||
00163 |
MAIN STORE | 800 FOXCROFT AVE STE 800 | MARTINSBURG | WV | Lease | J.C. Penney Corporation, Inc. | ||||||
00168 |
MAIN STORE | 300 MONTGOMERY MALL | NORTH WALES | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
00168 |
TIRE/BATTERY/AUTO | 300 MONTGOMERY MALL | NORTH WALES | PA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00170 |
MAIN STORE | 720 N 12TH ST (US 641) | MURRAY | KY | Lease | J.C. Penney Corporation, Inc. | ||||||
00171 |
MAIN STORE | 10225 77TH ST | PLEASANT PRAIRIE | WI | Ground Lease | J.C. Penney Properties, Inc. | ||||||
00171 |
MAIN STORE | 10225 77TH ST | PLEASANT PRAIRIE | WI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00174 |
LICENSE AGREEMENT | 100 W 33RD ST | NEW YORK | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
00174 |
MAIN STORE | 100 W 33RD ST | NEW YORK | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
00178 |
MAIN STORE | 333 MAIN ST STE 200 | OAK RIDGE | TN | Lease | J.C. Penney Corporation, Inc. | ||||||
00179 |
MAIN STORE | 6051 SKILLMAN ST | DALLAS | TX | Ground Lease | J.C. Penney Properties, Inc. | ||||||
00179 |
MAIN STORE | 6051 SKILLMAN ST | DALLAS | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00182 |
MAIN STORE | 1800 DAISY ST EXT STE 2 | CLEARFIELD | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
00183 |
MAIN STORE | 2100 HAMILTON PLACE BLVD | CHATTANOOGA | TN | Fee | J.C. Penney Properties, Inc. | ||||||
00183 |
MAIN STORE | 2100 HAMILTON PLACE BLVD | CHATTANOOGA | TN | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00184 |
MAIN STORE | 990 NW Blue Pkwy | Lees Summit | MO | Fee | J.C. Penney Properties, Inc. | ||||||
00185 |
MAIN STORE | 1150 W CARL SANDBURG DR | GALESBURG | IL | Lease | J.C. Penney Corporation, Inc. |
00185 |
MAIN STORE | 1150 W CARL SANDBURG DR | GALESBURG | IL | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00192 |
MAIN STORE | 11801 FAIR OAKS MALL | FAIRFAX | VA | Fee | J.C. Penney Properties, Inc. | ||||||
00192 |
MAIN STORE | 11801 FAIR OAKS MALL | FAIRFAX | VA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00194 |
MAIN STORE | 9100 MCHUGH DR STE 576 | LANHAM | MD | Lease | J.C. Penney Corporation, Inc. | ||||||
00195 |
MAIN STORE | 63 SERRAMONTE CTR | DALY CITY | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
00196 |
MAIN STORE | 222 S STATE ST | FAIRMONT | MN | Lease | J.C. Penney Corporation, Inc. | ||||||
00197 |
MAIN STORE | 360 GATEWAY DR | BROOKLYN | NY | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
00197 |
SIGN AGREEMENT | 360 GATEWAY DR | BROOKLYN | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
00199 |
MAIN STORE | 500 MONROEVILLE MALL | MONROEVILLE | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
00200 |
MAIN STORE | 1419 3rd Ave | SEATTLE | WA | Lease | J.C. Penney Corporation, Inc. | ||||||
00200 |
MAIN STORE | 1419 3rd Ave | SEATTLE | WA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00201 |
MAIN STORE | 10101 E INDEPENDENCE BLVD | MATTHEWS | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
00202 |
MAIN STORE | 1754 FRANKLIN MILLS CIR | PHILADELPHIA | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
00204 |
MAIN STORE | 2700 POTOMAC MILLS CIR | WOODBRIDGE | VA | Lease | J.C. Penney Corporation, Inc. | ||||||
00207 |
MAIN STORE | 2500 W MORELAND RD | WILLOW GROVE | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
00209 |
MAIN STORE | 3411 MERCHANT BLVD | ABINGDON | MD | Ground Lease | J.C. Penney Properties, Inc. | ||||||
00209 |
MAIN STORE | 3411 MERCHANT BLVD | ABINGDON | MD | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00211 |
MAIN STORE | 3200 W EMPIRE MALL | SIOUX FALLS | SD | Lease | J.C. Penney Corporation, Inc. | ||||||
00214 |
MAIN STORE | 200 WESTERN AVE NW STE A | FARIBAULT | MN | Lease | J.C. Penney Corporation, Inc. | ||||||
00217 |
MAIN STORE | 14370 BEAR VALLEY RD | VICTORVILLE | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
00218 |
MAIN STORE | 6020 E 82ND ST STE 700 | INDIANAPOLIS | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
00218 |
TIRE/BATTERY/AUTO | 6020 E 82ND ST STE 700 | INDIANAPOLIS | IN | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00219 |
MAIN STORE | 3400 BELL AIR MALL | MOBILE | AL | Lease | J.C. Penney Corporation, Inc. | ||||||
00219 |
TIRE/BATTERY/AUTO | 3400 BELL AIR MALL | MOBILE | AL | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00220 |
MAIN STORE | 1500 E WASHINGTON AVE | UNION GAP | WA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
00220 |
MAIN STORE | 1500 E WASHINGTON AVE | UNION GAP | WA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00221 |
MAIN STORE | 1155 CARLISLE ST | HANOVER | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
00224 |
MAIN STORE | San Bernardino | CA | Lease | J.C. Penney Corporation, Inc. | |||||||
00225 |
MAIN STORE | 2005 VETERANS BLVD | DUBLIN | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
00226 |
MAIN STORE | 2200 S 10TH ST | MCALLEN | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
00231 |
MAIN STORE | 10450 S STATE ST STE 2106 | SANDY | UT | Lease | J.C. Penney Corporation, Inc. | ||||||
00232 |
MAIN STORE | 4502 S STEELE STE 200 | TACOMA | WA | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
00232 |
TIRE/BATTERY/AUTO | 4502 S STEELE STE 200 | TACOMA | WA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00237 |
MAIN STORE | 3 ORLAND SQ DR | ORLAND PARK | IL | Fee | J.C. Penney Properties, Inc. | ||||||
00237 |
MAIN STORE | 3 ORLAND SQ DR | ORLAND PARK | IL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00241 |
MAIN STORE | 2000 RT 38 STE 1000 | CHERRY HILL | NJ | Fee | J.C. Penney Properties, Inc. | ||||||
00241 |
MAIN STORE | 2000 RT 38 STE 1000 | CHERRY HILL | NJ | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00246 |
MAIN STORE | 20700 AVALON BLVD STE 500 | CARSON | CA | Fee | J.C. Penney Properties, Inc. | ||||||
00246 |
MAIN STORE | 20700 AVALON BLVD STE 500 | CARSON | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00246 |
TIRE/BATTERY/AUTO | 20700 AVALON BLVD STE 500 | CARSON | CA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00249 |
MAIN STORE | 901 W MORTON | JACKSONVILLE | IL | Lease | J.C. Penney Corporation, Inc. | ||||||
00250 |
MAIN STORE | 67 LAKEWOOD CTR MALL | LAKEWOOD | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
00251 |
HOME STORE | 8235 WEST BELL ROAD | PEORIA | AZ | Lease | J.C. Penney Corporation, Inc. | ||||||
00251 |
MAIN STORE | 7750 W ARROWHEAD TOWNE CENTER | GLENDALE | AZ | Fee | J.C. Penney Properties, Inc. | ||||||
00253 |
MAIN STORE | 3501 GRANVILLE AVE | MUNCIE | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
00258 |
MAIN STORE | 734 MARKET ST | FARMINGTON | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
00258 |
SIGN AGREEMENT | 734 MARKET ST | FARMINGTON | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
00259 |
MAIN STORE | 3111 S 31ST ST STE 3301 | TEMPLE | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
00260 |
MAIN STORE | 950 DANA DR | REDDING | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
00268 |
MAIN STORE | 2500 MEADOWBROOK MALL | BRIDGEPORT | WV | Lease | J.C. Penney Corporation, Inc. | ||||||
00270 |
MAIN STORE | 854 STATE RTE 13 | CORTLAND | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
00273 |
MAIN STORE | 701 RUSSELL AVE | GAITHERSBURG | MD | Fee | J.C. Penney Properties, Inc. | ||||||
00273 |
MAIN STORE | 701 RUSSELL AVE | GAITHERSBURG | MD | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00278 |
MAIN STORE | 1501 LAFAYETTE PKY STE E1 | LAGRANGE | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
00283 |
MAIN STORE | 1057 BROAD ST | SUMTER | SC | Lease | J.C. Penney Corporation, Inc. | ||||||
00286 |
MAIN STORE | 4500 PEORIA ST (US 51) | PERU | IL | Lease | J.C. Penney Corporation, Inc. | ||||||
00287 |
MAIN STORE | 901 US 27 N STE 150 | SEBRING | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
00288 |
MAIN STORE | 9500 SW WASHINGTON SQ RD | PORTLAND | OR | Lease | J.C. Penney Corporation, Inc. | ||||||
00304 |
MAIN STORE | 3550 MCCANN RD | LONGVIEW | TX | Fee | J.C. Penney Properties, Inc. | ||||||
00304 |
MAIN STORE | 3550 MCCANN RD | LONGVIEW | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00306 |
MAIN STORE | 225 MAIN AVE N | THIEF RIVER FALLS | MN | Lease | J.C. Penney Corporation, Inc. | ||||||
00309 |
MAIN STORE | 640 NIBLACK BLVD | VINCENNES | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
00311 |
MAIN STORE | 1980 N JEFFERSON ST | HUNTINGTON | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
00318 |
MAIN STORE | 1323 Apache Dr SW | Rochester | MN | Lease | J.C. Penney Corporation, Inc. | ||||||
00318 |
TIRE/BATTERY/AUTO | 1323 Apache Dr SW | Rochester | MN | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00321 |
MAIN STORE | 451 E ALTAMONTE DR STE 1301 | ALTAMONTE SPRINGS | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
00322 |
MAIN STORE | 400 DUBOIS RD | COOKEVILLE | TN | Lease | J.C. Penney Corporation, Inc. | ||||||
00324 |
MAIN STORE | 870 W MARKET ST | TIFFIN | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
00327 |
MAIN STORE | 87 VILLAGE SQUARE MALL | EFFINGHAM | IL | Lease | J.C. Penney Corporation, Inc. | ||||||
00334 |
MAIN STORE | 1330 TRAVIS BLVD | FAIRFIELD | CA | Fee | J.C. Penney Properties, Inc. | ||||||
00345 |
MAIN STORE | 2200 W FLORIDA AVE | HEMET | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
00351 |
MAIN STORE | 3057 E MAIN | RUSSELLVILLE | AR | Lease | J.C. Penney Corporation, Inc. | ||||||
00355 |
HOME STORE | 1251 US 31 N. | GREENWOOD | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
00355 |
MAIN STORE | 1251 US 31 N | GREENWOOD | IN | Fee | J.C. Penney Properties, Inc. | ||||||
00355 |
MAIN STORE | 1251 US 31 N | GREENWOOD | IN | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00365 |
MAIN STORE | 214 BORGER S/C | BORGER | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
00367 |
MAIN STORE | 400 BALD HILL RD | WARWICK | RI | Ground Lease | J.C. Penney Properties, Inc. | ||||||
00367 |
MAIN STORE | 400 BALD HILL RD | WARWICK | RI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00370 |
MAIN STORE | 1000 HILLTOP MALL | RICHMOND | CA | Fee | J.C. Penney Properties, Inc. |
00370 |
MAIN STORE | 1000 HILLTOP MALL | RICHMOND | CA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
00370 |
MAIN STORE | 1000 HILLTOP MALL | RICHMOND | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00370 |
MAIN STORE | 1000 HILLTOP MALL | RICHMOND | CA | Sale Leaseback | J.C. Penney Properties, Inc. | ||||||
00370 |
TIRE/BATTERY/AUTO | 1000 HILLTOP MALL | RICHMOND | CA | Sublease to Third party | J.C. Penney Properties, Inc. | ||||||
00373 |
MAIN STORE | 1262 VOCKE RD STE 300 | LA VALE | MD | Lease | J.C. Penney Corporation, Inc. | ||||||
00384 |
MAIN STORE | 2901 N GRAND AVE | AMES | IA | Lease | J.C. Penney Corporation, Inc. | ||||||
00389 |
HOME STORE | 5532 SPRINGDALE AVENUE | PLEASANTON | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
00389 |
MAIN STORE | 1500 STONERIDGE MALL RD | PLEASANTON | CA | Fee | J.C. Penney Properties, Inc. | ||||||
00389 |
MAIN STORE | 1500 STONERIDGE MALL RD | PLEASANTON | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00395 |
MAIN STORE | 3405 E STATE ST | HERMITAGE | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
00395 |
TIRE/BATTERY/AUTO | 3405 E STATE ST | HERMITAGE | PA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00400 |
MAIN STORE | 125 S MICHIGAN AVE | BIG RAPIDS | MI | Lease | J.C. Penney Corporation, Inc. | ||||||
00403 |
MAIN STORE | 5953 W PARK AVE STE 3000 | HOUMA | LA | Lease | J.C. Penney Corporation, Inc. | ||||||
00406 |
MAIN STORE | 1100 N MAIN ST | ALTUS | OK | Lease | J.C. Penney Corporation, Inc. | ||||||
00419 |
MAIN STORE | 2021 N HIGHLAND AVE STE 15 | JACKSON | TN | Lease | J.C. Penney Corporation, Inc. | ||||||
00419 |
TIRE/BATTERY/AUTO | 2021 N HIGHLAND AVE STE 15 | JACKSON | TN | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00424 |
MAIN STORE | 7171 N DAVIS HWY STE 8220 | PENSACOLA | FL | Fee | J.C. Penney Properties, Inc. | ||||||
00426 |
MAIN STORE | 251 HIGH ST | TORRINGTON | CT | Lease | J.C. Penney Corporation, Inc. | ||||||
00439 |
MAIN STORE | 600 EASTVIEW MALL | VICTOR | NY | Fee | J.C. Penney Properties, Inc. | ||||||
00439 |
MAIN STORE | 600 EASTVIEW MALL | VICTOR | NY | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00450 |
MAIN STORE | 1302 W I-40 FRONTAGE RD | GALLUP | NM | Lease | J.C. Penney Corporation, Inc. | ||||||
00456 |
MAIN STORE | 3404 W 13TH ST | GRAND ISLAND | NE | Lease | J.C. Penney Corporation, Inc. | ||||||
00457 |
MAIN STORE | 101 W WATER ST | DECORAH | IA | Lease | J.C. Penney Corporation, Inc. | ||||||
00465 |
MAIN STORE | 24140 MAGIC MOUNTAIN PKY | SANTA CLARITA | CA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
00465 |
MAIN STORE | 24140 MAGIC MOUNTAIN PKY | SANTA CLARITA | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00466 |
MAIN STORE | 150 HOMER ADAMS PKWY | ALTON | IL | Fee | J.C. Penney Properties, Inc. | ||||||
00466 |
MAIN STORE | 150 HOMER ADAMS PKWY | ALTON | IL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00478 |
MAIN STORE | 5200 MEADOWOOD MALL CIR | RENO | NV | Fee | J.C. Penney Properties, Inc. | ||||||
00478 |
MAIN STORE | 5200 MEADOWOOD MALL CIR | RENO | NV | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00479 |
MAIN STORE | 6481 NEWBERRY RD | GAINESVILLE | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
00481 |
MAIN STORE | 4201 YELLOWSTONE AVE | POCATELLO | ID | Lease | J.C. Penney Corporation, Inc. | ||||||
00483 |
MAIN STORE | 3936 E MARKET ST | LOGANSPORT | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
00485 |
MAIN STORE | 4310 BUFFALO GAP RD | ABILENE | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
00487 |
MAIN STORE | 3401 S US 41 | TERRE HAUTE | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
00494 |
MAIN STORE | 600 MERCED MALL | MERCED | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
00495 |
MAIN STORE | 1300 9TH AVE SE STE 3 | WATERTOWN | SD | Lease | J.C. Penney Corporation, Inc. | ||||||
00496 |
MAIN STORE | 1700 W COUNTY RD B-2 | ROSEVILLE | MN | Fee | J.C. Penney Properties, Inc. | ||||||
00496 |
MAIN STORE | 1700 W COUNTY RD B-2 | ROSEVILLE | MN | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00497 |
MAIN STORE | 305 MOUNT HOPE AVE | ROCKAWAY | NJ | Fee | J.C. Penney Properties, Inc. | ||||||
00497 |
MAIN STORE | 305 MOUNT HOPE AVE | ROCKAWAY | NJ | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00514 |
MAIN STORE | 830 MAIN ST UNIT 3 | PRESQUE ISLE | ME | Lease | J.C. Penney Corporation, Inc. | ||||||
00528 |
MAIN STORE | 1680 WRIGHT AVE | ALMA | MI | Lease | J.C. Penney Corporation, Inc. | ||||||
00529 |
MAIN STORE | 17301 VALLEY MALL RD STE 400 | HAGERSTOWN | MD | Lease | J.C. Penney Corporation, Inc. | ||||||
00529 |
TIRE/BATTERY/AUTO | 17301 VALLEY MALL RD STE 400 | HAGERSTOWN | MD | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00530 |
MAIN STORE | 155 DORSET ST | SOUTH BURLINGTON | VT | Lease | J.C. Penney Corporation, Inc. | ||||||
00536 |
MAIN STORE | 300 EARLY BLVD | EARLY | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
00539 |
MAIN STORE | RT 104 E | OSWEGO | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
00549 |
MAIN STORE | 3301 VETERANS MEMORIAL BLVD | METAIRIE | LA | Lease | J.C. Penney Corporation, Inc. | ||||||
00557 |
MAIN STORE | 15740 WHITTWOOD LANE | WHITTIER | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
00559 |
MAIN STORE | 2424 US 6TH AND 50TH | GRAND JUNCTION | CO | Fee | J.C. Penney Properties, Inc. | ||||||
00559 |
MAIN STORE | 2424 US 6TH AND 50TH | GRAND JUNCTION | CO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00562 |
MAIN STORE | 1701 SUNRISE HWY | BAYSHORE L I | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
00566 |
MAIN STORE | 2555 EL CAMINO REAL | CARLSBAD | CA | Fee | J.C. Penney Properties, Inc. | ||||||
00566 |
MAIN STORE | 2555 EL CAMINO REAL | CARLSBAD | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00568 |
MAIN STORE | 300 S MAIN ST | MCALLEN | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
00578 |
MAIN STORE | PO BOX 10010 | HOLYOKE | MA | Lease | J.C. Penney Corporation, Inc. | ||||||
00579 |
MAIN STORE | 4101 E 42ND ST | ODESSA | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
00581 |
MAIN STORE | 800 S JAMES CAMPBELL BLVD | COLUMBIA | TN | Lease | J.C. Penney Corporation, Inc. | ||||||
00582 |
MAIN STORE | 5001 MONROE ST | TOLEDO | OH | Fee | J.C. Penney Properties, Inc. | ||||||
00582 |
PARKING | 5001 MONROE ST | TOLEDO | OH | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
00588 |
MAIN STORE | 300 HWY 78 E | JASPER | AL | Lease | J.C. Penney Corporation, Inc. | ||||||
00601 |
ADDITIONAL SPACE | 3700 S MERIDIAN ST | PUYALLUP | WA | Lease | J.C. Penney Corporation, Inc. | ||||||
00601 |
MAIN STORE | 3700 S MERIDIAN ST | PUYALLUP | WA | Lease | J.C. Penney Corporation, Inc. | ||||||
00607 |
MAIN STORE | 1100 S DEWEY ST | NORTH PLATTE | NE | Lease | J.C. Penney Corporation, Inc. | ||||||
00608 |
MAIN STORE | 814 US HWY 62-65 N STE 27 | HARRISON | AR | Lease | J.C. Penney Corporation, Inc. | ||||||
00611 |
MAIN STORE | 6002 SLIDE RD-PO BOX 68611 | LUBBOCK | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
00611 |
TIRE/BATTERY/AUTO | 6002 SLIDE RD-PO BOX 68611 | LUBBOCK | TX | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00620 |
MAIN STORE | 1700 W INTL SPEEDWAY BLVD | DAYTONA BEACH | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
00620 |
TIRE/BATTERY/AUTO | 1700 W INTL SPEEDWAY BLVD | DAYTONA BEACH | FL | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00631 |
MAIN STORE | 6301 NW LOOP 410 | SAN ANTONIO | TX | Fee | J.C. Penney Properties, Inc. | ||||||
00631 |
MAIN STORE | 6301 NW LOOP 410 | SAN ANTONIO | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00634 |
MAIN STORE | 3040 PLAZA BONITA RD | NATIONAL CITY | CA | Fee | J.C. Penney Properties, Inc. | ||||||
00634 |
MAIN STORE | 3040 PLAZA BONITA RD | NATIONAL CITY | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00643 |
MAIN STORE | 4600 BAY RD | SAGINAW | MI | Lease | J.C. Penney Corporation, Inc. | ||||||
00643 |
TIRE/BATTERY/AUTO | 4600 BAY RD | SAGINAW | MI | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00644 |
MAIN STORE | 3301 DILLON DR | PUEBLO | CO | Lease | J.C. Penney Corporation, Inc. | ||||||
00647 |
MAIN STORE | 3315 N RIDGE RD E STE 100 | ASHTABULA | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
00651 |
MAIN STORE | PR RD 2 KM 81.9 CARRIZALES | HATILLO | Puerto Rico | Lease | J.C. Penney Corporation, Inc. |
00652 |
MAIN STORE | 2200 W WAR MEMORIAL DR STE 997 | PEORIA | IL | Fee | J.C. Penney Properties, Inc. | ||||||
00652 |
MAIN STORE | 2200 W WAR MEMORIAL DR STE 997 | PEORIA | IL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00652 |
TIRE/BATTERY/AUTO | 2200 W WAR MEMORIAL DR STE 997 | PEORIA | IL | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00654 |
MAIN STORE | 3541 MASONIC DR | ALEXANDRIA | LA | Lease | J.C. Penney Corporation, Inc. | ||||||
00656 |
MAIN STORE | 1200 10TH AVE S | GREAT FALLS | MT | Lease | J.C. Penney Corporation, Inc. | ||||||
00658 |
MAIN STORE | 5300 SAN DARIO | LAREDO | TX | Fee | J.C. Penney Properties, Inc. | ||||||
00658 |
MAIN STORE | 5300 SAN DARIO | LAREDO | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00663 |
MAIN STORE | 3929 MCCAIN BLVD STE 500 | NORTH LITTLE ROCK | AR | Lease | J.C. Penney Corporation, Inc. | ||||||
00663 |
TIRE/BATTERY/AUTO | 3929 MCCAIN BLVD STE 500 | NORTH LITTLE ROCK | AR | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00666 |
MAIN STORE | 2005 N 14TH ST STE 141 | PONCA CITY | OK | Lease | J.C. Penney Corporation, Inc. | ||||||
00671 |
MAIN STORE | 3199 N WHITE SANDS | ALAMOGORDO | NM | Lease | J.C. Penney Corporation, Inc. | ||||||
00680 |
MAIN STORE | 51027 HWY 6 | GLENWOOD SPRINGS | CO | Lease | J.C. Penney Corporation, Inc. | ||||||
00681 |
MAIN STORE | 2101 FT HENRY DR | KINGSPORT | TN | Lease | J.C. Penney Corporation, Inc. | ||||||
00687 |
MAIN STORE | 3700 ATLANTA HWY | ATHENS | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
00688 |
MAIN STORE | 2600 BEACH BLVD | BILOXI | MS | Lease | J.C. Penney Corporation, Inc. | ||||||
00689 |
MAIN STORE | 2427 US HWY 90 W STE 10 | LAKE CITY | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
00691 |
HOME STORE | 685 CONTRA COSTA BLVD. | PLEASANT HILL | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
00691 |
MAIN STORE | 484 SUN VALLEY MALL | CONCORD | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
00691 |
TIRE/BATTERY/AUTO | 484 SUN VALLEY MALL | CONCORD | CA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00695 |
MAIN STORE | 700 HAYWOOD RD | GREENVILLE | SC | Ground Lease | J.C. Penney Properties, Inc. | ||||||
00695 |
MAIN STORE | 700 HAYWOOD RD | GREENVILLE | SC | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00696 |
ADDITIONAL SPACE | 1249 SOUTHCENTER MALL | TUKWILA | WA | Lease | J.C. Penney Corporation, Inc. | ||||||
00696 |
MAIN STORE | 1249 SOUTHCENTER MALL | TUKWILA | WA | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
00696 |
TIRE/BATTERY/AUTO | 1249 SOUTHCENTER MALL | TUKWILA | WA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00699 |
MAIN STORE | 1169 GLENDALE GALLERIA | GLENDALE | CA | Fee | J.C. Penney Properties, Inc. | ||||||
00699 |
MAIN STORE | 1169 GLENDALE GALLERIA | GLENDALE | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00700 |
MAIN STORE | 500 QUAKER BRIDGE MALL | TRENTON | NJ | Fee | J.C. Penney Properties, Inc. | ||||||
00700 |
MAIN STORE | 500 QUAKER BRIDGE MALL | TRENTON | NJ | Sale Leaseback | J.C. Penney Properties, Inc. | ||||||
00700 |
TIRE/BATTERY/AUTO | 500 QUAKER BRIDGE MALL | TRENTON | NJ | Sublease to Third party | J.C. Penney Properties, Inc. | ||||||
00702 |
MAIN STORE | 8401 GATEWAY BLVD W | EL PASO | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
00703 |
LAND | 408 MITCHELL ST | PETOSKEY | MI | Lease | J.C. Penney Corporation, Inc. | ||||||
00703 |
MAIN STORE | 408 MITCHELL ST | PETOSKEY | MI | Fee | J.C. Penney Properties, Inc. | ||||||
00704 |
MAIN STORE | 4651 27TH ST | MOLINE | IL | Lease | J.C. Penney Corporation, Inc. | ||||||
00708 |
MAIN STORE | 1800 PIPESTONE RD | BENTON HARBOR | MI | Lease | J.C. Penney Corporation, Inc. | ||||||
00709 |
MAIN STORE | 3115 E COLONIAL DR | ORLANDO | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
00712 |
MAIN STORE | 3111 MIDWESTERN PKWY | WICHITA FALLS | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
00718 |
MAIN STORE | 310 TOWNE CTR CIR | SANFORD | FL | Fee | J.C. Penney Properties, Inc. | ||||||
00731 |
MAIN STORE | 3202 OAKVIEW DR | OMAHA | NE | Fee | J.C. Penney Properties, Inc. | ||||||
00731 |
MAIN STORE | 3202 OAKVIEW DR | OMAHA | NE | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00733 |
MAIN STORE | 800 S CAMINO DEL RIO | DURANGO | CO | Lease | J.C. Penney Corporation, Inc. | ||||||
00738 |
MAIN STORE | 925 WASHINGTON AVE | DETROIT LAKES | MN | Lease | J.C. Penney Corporation, Inc. | ||||||
00739 |
MAIN STORE | 2150 NORTHWOODS BLVD UNIT E100 | N CHARLESTON | SC | Lease | J.C. Penney Corporation, Inc. | ||||||
00744 |
MAIN STORE | 300 VALLEY RIVER CTR | EUGENE | OR | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
00744 |
TIRE/BATTERY/AUTO | 300 VALLEY RIVER CTR | EUGENE | OR | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00766 |
MAIN STORE | 331 BRANDON TOWN CENTER MALL | BRANDON | FL | Fee | J.C. Penney Properties, Inc. | ||||||
00767 |
MAIN STORE | 4316 MILAN RD | SANDUSKY | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
00768 |
MAIN STORE | 3300 CHAMBERS RD STE 5090 | HORSEHEADS | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
00768 |
TIRE/BATTERY/AUTO | 3300 CHAMBERS RD STE 5090 | HORSEHEADS | NY | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00769 |
MAIN STORE | 2190 IDAHO ST | ELKO | NV | Lease | J.C. Penney Corporation, Inc. | ||||||
00778 |
MAIN STORE | 1408 N PARHAM RD | RICHMOND | VA | Fee | J.C. Penney Properties, Inc. | ||||||
00778 |
MAIN STORE | 1408 N PARHAM RD | RICHMOND | VA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00779 |
MAIN STORE | 6000 FLORENCE MALL | FLORENCE | KY | Fee | J.C. Penney Properties, Inc. | ||||||
00779 |
MAIN STORE | 6000 FLORENCE MALL | FLORENCE | KY | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00780 |
MAIN STORE | 1718 E BLVD | KOKOMO | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
00781 |
MAIN STORE | 4101 S YALE AVE | TULSA | OK | Lease | J.C. Penney Corporation, Inc. | ||||||
00781 |
TIRE/BATTERY/AUTO | 4101 S YALE AVE | TULSA | OK | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00784 |
MAIN STORE | 3649 ERIE BLVD E STE 2 | DE WITT | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
00786 |
MAIN STORE | 7900 Governor Ritchie Hwy | Glen Burnie | MD | Ground Lease | J.C. Penney Properties, Inc. | ||||||
00786 |
MAIN STORE | 7900 Governor Ritchie Hwy | Glen Burnie | MD | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00794 |
MAIN STORE | 3500 OLEANDER DR | WILMINGTON | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
00797 |
MAIN STORE | 816 WALNUT SQUARE BLVD STE D | DALTON | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
00808 |
MAIN STORE | 3187 N MAIN ST | ANDERSON | SC | Lease | J.C. Penney Corporation, Inc. | ||||||
00808 |
TIRE/BATTERY/AUTO | 3187 N MAIN ST | ANDERSON | SC | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00814 |
MAIN STORE | 625 BLACK LAKE BLVD | OLYMPIA | WA | Lease | J.C. Penney Corporation, Inc. | ||||||
00816 |
MAIN STORE | 606 CHRISTIANA MALL | NEWARK | DE | Fee | J.C. Penney Properties, Inc. | ||||||
00816 |
MAIN STORE | 606 CHRISTIANA MALL | NEWARK | DE | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00819 |
MAIN STORE | 500 BRIARWOOD CIR | ANN ARBOR | MI | Fee | J.C. Penney Properties, Inc. | ||||||
00819 |
MAIN STORE | 500 BRIARWOOD CIR | ANN ARBOR | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00819 |
MAIN STORE | 500 BRIARWOOD CIR | ANN ARBOR | MI | Sale Leaseback | J.C. Penney Properties, Inc. | ||||||
00819 |
TIRE/BATTERY/AUTO | 500 BRIARWOOD CIR | ANN ARBOR | MI | Sublease to Third party | J.C. Penney Properties, Inc. | ||||||
00830 |
MAIN STORE | PO BOX 2008 | LAUREL | MS | Lease | J.C. Penney Corporation, Inc. | ||||||
00834 |
MAIN STORE | 2000 N POINT CIR | ALPHARETTA | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
00835 |
MAIN STORE | 117-19 E MAIN ST | SIDNEY | MT | Lease | J.C. Penney Corporation, Inc. | ||||||
00838 |
MAIN STORE | 810 W PARK AVE | GREENWOOD | MS | Lease | J.C. Penney Corporation, Inc. | ||||||
00852 |
MAIN STORE | 701 LYNN HAVEN PKWY | VIRGINIA BEACH | VA | Lease | J.C. Penney Corporation, Inc. | ||||||
00863 |
MAIN STORE | 680 CITADEL DR E | COLORADO SPRINGS | CO | Fee | J.C. Penney Properties, Inc. | ||||||
00863 |
MAIN STORE | 680 CITADEL DR E | COLORADO SPRINGS | CO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00864 |
MAIN STORE | 3661 EISENHOWER PKWY STE 6 | MACON | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
00864 |
TIRE/BATTERY/AUTO | 3661 EISENHOWER PKWY STE 6 | MACON | GA | Sublease to Third party | J.C. Penney Corporation, Inc. |
00870 |
MAIN STORE | 730 MEYERLAND PLAZA MALL | HOUSTON | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
00881 |
MAIN STORE | 7700 E KELLOGG DR | WICHITA | KS | Lease | J.C. Penney Corporation, Inc. | ||||||
00881 |
TIRE/BATTERY/AUTO | 7700 E KELLOGG DR | WICHITA | KS | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00882 |
MAIN STORE | 2415 SAGAMORE PKWY S 52 | LAFAYETTE | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
00882 |
TIRE/BATTERY/AUTO | 2415 SAGAMORE PKWY S 52 | LAFAYETTE | IN | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00890 |
MAIN STORE | 194 MAIN ST | STURBRIDGE | MA | Lease | J.C. Penney Corporation, Inc. | ||||||
00891 |
LAND | 135 E TOWNE MALL | MADISON | WI | Sublease to Third party | J.C. Penney Properties, Inc. | ||||||
00891 |
MAIN STORE | 135 E TOWNE MALL | MADISON | WI | Fee | J.C. Penney Properties, Inc. | ||||||
00895 |
MAIN STORE | 150 PEARL NIX PKWY | GAINESVILLE | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
00895 |
TIRE/BATTERY/AUTO | 150 PEARL NIX PKWY | GAINESVILLE | GA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00899 |
MAIN STORE | 639 STILLWATER AVE | BANGOR | ME | Lease | J.C. Penney Corporation, Inc. | ||||||
00902 |
MAIN STORE | 1201 HOOPER AVE STE B | TOMS RIVER | NJ | Lease | J.C. Penney Corporation, Inc. | ||||||
00907 |
MAIN STORE | 8201 S TAMIAMI TRAIL | SARASOTA | FL | Fee | J.C. Penney Properties, Inc. | ||||||
00909 |
MAIN STORE | 1620 E 10TH ST STE 100 | ROANOKE RAPIDS | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
00910 |
MAIN STORE | 4129 E WILDER RD | BAY CITY | MI | Fee | J.C. Penney Properties, Inc. | ||||||
00910 |
MAIN STORE | 4129 E WILDER RD | BAY CITY | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00911 |
MAIN STORE | 800 N 98TH ST | OMAHA | NE | Fee | J.C. Penney Properties, Inc. | ||||||
00914 |
MAIN STORE | 1170 INDIANA AVE | SAINT MARYS | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
00916 |
MAIN STORE | PO BOX 8709 | CAROLINA | Puerto Rico | Lease | J.C. Penney Corporation, Inc. | ||||||
00920 |
MAIN STORE | 200 W PARK MALL | CAPE GIRARDEAU | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
00921 |
MAIN STORE | 2231 S MISSION RD | MT PLEASANT | MI | Lease | J.C. Penney Corporation, Inc. | ||||||
00924 |
MAIN STORE | 160 N GULPH RD STE 5000 | KING OF PRUSSIA | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
00933 |
MAIN STORE | 300 WESTFARMS MALL | FARMINGTON | CT | Ground Lease | J.C. Penney Properties, Inc. | ||||||
00933 |
MAIN STORE | 300 WESTFARMS MALL | FARMINGTON | CT | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00951 |
MAIN STORE | 1365 N DUPONT HWY STE 5000 | DOVER | DE | Fee | J.C. Penney Properties, Inc. | ||||||
00951 |
MAIN STORE | 1365 N DUPONT HWY STE 5000 | DOVER | DE | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00952 |
MAIN STORE | 630 OLD COUNTRY RD UNIT A2 | GARDEN CITY | NY | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
00952 |
MAIN STORE | 630 OLD COUNTRY RD UNIT A2 | GARDEN CITY | NY | Sale Leaseback | J.C. Penney Corporation, Inc. | ||||||
00952 |
TIRE/BATTERY/AUTO | 630 OLD COUNTRY RD UNIT A2 | GARDEN CITY | NY | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00952 |
TRASH COMPACTOR | 630 OLD COUNTRY RD UNIT A2 | GARDEN CITY | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
00954 |
MAIN STORE | 234 N MAIN ST | SHERIDAN | WY | Lease | J.C. Penney Corporation, Inc. | ||||||
00954 |
OUTSIDE STOCKROOM | 234 N MAIN ST | SHERIDAN | WY | Lease | J.C. Penney Corporation, Inc. | ||||||
00955 |
MAIN STORE | 6420 S PACIFIC BLVD | HUNTINGTON PARK | CA | Fee | J.C. Penney Properties, Inc. | ||||||
00965 |
MAIN STORE | 1845 N WEST AVE | EL DORADO | AR | Lease | J.C. Penney Corporation, Inc. | ||||||
00972 |
MAIN STORE | 220 GOLF MILL CTR | NILES | IL | Lease | J.C. Penney Corporation, Inc. | ||||||
00982 |
MAIN STORE | 7777 EASTPOINT MALL | BALTIMORE | MD | Ground Lease | J.C. Penney Properties, Inc. | ||||||
00982 |
MAIN STORE | 7777 EASTPOINT MALL | BALTIMORE | MD | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
00993 |
MAIN STORE | 2418 SW MILITARY DR | SAN ANTONIO | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
00993 |
TIRE/BATTERY/AUTO | 2418 SW MILITARY DR | SAN ANTONIO | TX | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
00995 |
MAIN STORE | MERCER MALL BOX 7106 | BLUEFIELD | WV | Lease | J.C. Penney Corporation, Inc. | ||||||
00996 |
MAIN STORE | 4401 S BROADWAY | TYLER | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
00996 |
TIRE/BATTERY/AUTO | 4401 S BROADWAY | TYLER | TX | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01002 |
MAIN STORE | 4348 ELECTRIC RD | ROANOKE | VA | Lease | J.C. Penney Corporation, Inc. | ||||||
01002 |
TIRE/BATTERY/AUTO | 4348 ELECTRIC RD | ROANOKE | VA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01012 |
MAIN STORE | 75 MAVERICK ST RT 1A | ROCKLAND | ME | Lease | J.C. Penney Corporation, Inc. | ||||||
01020 |
MAIN STORE | 1671 W LACEY BLVD | HANFORD | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
01024 |
MAIN STORE | 236 E 5TH ST N | BURLEY | ID | Lease | J.C. Penney Corporation, Inc. | ||||||
01028 |
MAIN STORE | 315 E SECOND ST | CALEXICO | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
01031 |
MAIN STORE | 220 ENNIS LN | TOWANDA | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
01033 |
MAIN STORE | 3000 DUNN AVE UNIT 25 | JACKSONVILLE | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
01037 |
MAIN STORE | 3401 DALE RD | MODESTO | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
01046 |
MAIN STORE | 2201 S INTERSTATE 35 E STE D | DENTON | TX | Fee | J.C. Penney Properties, Inc. | ||||||
01046 |
MAIN STORE | 2201 S INTERSTATE 35 E STE D | DENTON | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01048 |
MAIN STORE | 200 SIDNEY BAKER ST S (HWY 16) | KERRVILLE | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
01049 |
MAIN STORE | 4 FOX VALLEY CTR | AURORA | IL | Fee | J.C. Penney Properties, Inc. | ||||||
01049 |
MAIN STORE | 4 FOX VALLEY CTR | AURORA | IL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01052 |
MAIN STORE | 220 W MARIPOSA RD | NOGALES | AZ | Lease | J.C. Penney Corporation, Inc. | ||||||
01056 |
MAIN STORE | 3701 S MAIN ST (US 33) | ELKHART | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
01058 |
MAIN STORE | 1386 E COURT ST | SEGUIN | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
01064 |
ADDITIONAL SPACE | 324 E SAN ANTONIO ST | EL PASO | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
01064 |
MAIN STORE | 324 E SAN ANTONIO ST | EL PASO | TX | Fee | J.C. Penney Properties, Inc. | ||||||
01067 |
MAIN STORE | 1904 E 9TH ST | WINFIELD | KS | Lease | J.C. Penney Corporation, Inc. | ||||||
01068 |
MAIN STORE | 202 E CENTENNIAL DR | PITTSBURG | KS | Lease | J.C. Penney Corporation, Inc. | ||||||
01071 |
MAIN STORE | 2000 BRITTAIN RD STE 600 | AKRON | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
01071 |
TIRE/BATTERY/AUTO | 2000 BRITTAIN RD STE 600 | AKRON | OH | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01076 |
MAIN STORE | 1060 HWY 15 S | HUTCHINSON | MN | Lease | J.C. Penney Corporation, Inc. | ||||||
01081 |
MAIN STORE | 1780 GALLERIA BLVD | FRANKLIN | TN | Fee | J.C. Penney Properties, Inc. | ||||||
01081 |
MAIN STORE | 1780 GALLERIA BLVD | FRANKLIN | TN | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01086 |
MAIN STORE | 619 N PERKINS RD | STILLWATER | OK | Lease | J.C. Penney Corporation, Inc. | ||||||
01091 |
MAIN STORE | 1401 PAUL BUNYAN DR NW STE 2 | BEMIDJI | MN | Lease | J.C. Penney Corporation, Inc. | ||||||
01101 |
MAIN STORE | 715 E EXPRESSWAY 83 | WESLACO | TX | Ground Lease | J.C. Penney Properties, Inc. | ||||||
01101 |
MAIN STORE | 715 E EXPRESSWAY 83 | WESLACO | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01106 |
MAIN STORE | 1950 PRAIRIE CENTER PKWY | BRIGHTON | CO | Fee | J.C. Penney Properties, Inc. | ||||||
01106 |
MAIN STORE | 1950 PRAIRIE CENTER PKWY | BRIGHTON | CO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01116 |
MAIN STORE | 1744 E CARL ALBERT PKWY | MCALESTER | OK | Lease | J.C. Penney Corporation, Inc. | ||||||
01117 |
TIRE/BATTERY/AUTO | NORTH NEW HOPE ROAD | GASTONIA | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
01117 |
TIRE/BATTERY/AUTO | NORTH NEW HOPE ROAD | GASTONIA | NC | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01122 |
MAIN STORE | 2501 W MEMORIAL RD | OKLAHOMA CITY | OK | Fee | J.C. Penney Properties, Inc. | ||||||
01122 |
MAIN STORE | 2501 W MEMORIAL RD | OKLAHOMA CITY | OK | Lease (Intercompany) | J.C. Penney Corporation, Inc. |
01128 |
MAIN STORE | 2520 GULF FWY S | LEAGUE CITY | TX | Ground Lease | J.C. Penney Properties, Inc. | ||||||
01128 |
MAIN STORE | 2520 GULF FWY S | LEAGUE CITY | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01130 |
MAIN STORE | 3501 E BROADWAY | TUCSON | AZ | Lease | J.C. Penney Corporation, Inc. | ||||||
01130 |
TIRE/BATTERY/AUTO | 3501 E BROADWAY | TUCSON | AZ | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01134 |
MAIN STORE | 80 VIEWMONT MALL | SCRANTON | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
01135 |
MAIN STORE | 3409 CANDLERS MOUNTAIN RD | LYNCHBURG | VA | Fee | J.C. Penney Properties, Inc. | ||||||
01135 |
MAIN STORE | 3409 CANDLERS MOUNTAIN RD | LYNCHBURG | VA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01140 |
MAIN STORE | 4541 S LABURNUM AVE | RICHMOND | VA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
01140 |
MAIN STORE | 4541 S LABURNUM AVE | RICHMOND | VA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01141 |
MAIN STORE | 1651 STATE HWY 1 S | GREENVILLE | MS | Lease | J.C. Penney Corporation, Inc. | ||||||
01142 |
MAIN STORE | 951 W PACHECO BLVD | LOS BANOS | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
01143 |
MAIN STORE | 428 N STATE HWY 19 | PALATKA | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
01148 |
MAIN STORE | 300 MARY ESTHER BLVD | MARY ESTHER | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
01150 |
MAIN STORE | STATE HWY 35 AND 36 | EATONTOWN | NJ | Fee | J.C. Penney Properties, Inc. | ||||||
01150 |
MAIN STORE | STATE HWY 35 AND 36 | EATONTOWN | NJ | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01153 |
MAIN STORE | 2601 CENTRAL AVE | DODGE CITY | KS | Lease | J.C. Penney Corporation, Inc. | ||||||
01155 |
MAIN STORE | 1300 E PINECREST DR | MARSHALL | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
01156 |
MAIN STORE | 4915 CLAREMONT AVE | STOCKTON | CA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
01156 |
MAIN STORE | 4915 CLAREMONT AVE | STOCKTON | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01156 |
TIRE/BATTERY/AUTO | 4915 CLAREMONT AVE | STOCKTON | CA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01159 |
MAIN STORE | 350 JOHN R JUNKIN DR | NATCHEZ | MS | Lease | J.C. Penney Corporation, Inc. | ||||||
01161 |
MAIN STORE | 5256 ROUTE 30 | GREENSBURG | PA | Fee | J.C. Penney Properties, Inc. | ||||||
01161 |
MAIN STORE | 5256 ROUTE 30 | GREENSBURG | PA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01163 |
MAIN STORE | 1375 US 127 S | FRANKFORT | KY | Lease | J.C. Penney Corporation, Inc. | ||||||
01164 |
MAIN STORE | 2800 S COLUMBIA RD | GRAND FORKS | ND | Lease | J.C. Penney Corporation, Inc. | ||||||
01165 |
MAIN STORE | 1826-19TH AVE | LEWISTON | ID | Lease | J.C. Penney Corporation, Inc. | ||||||
01166 |
MAIN STORE | 18900 MICHIGAN AVE (US 12) | DEARBORN | MI | Fee | J.C. Penney Properties, Inc. | ||||||
01166 |
MAIN STORE | 18900 MICHIGAN AVE (US 12) | DEARBORN | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01166 |
TIRE/BATTERY/AUTO | 18900 MICHIGAN AVE (US 12) | DEARBORN | MI | Sublease to Third party | J.C. Penney Properties, Inc. | ||||||
01166 |
TIRE/BATTERY/AUTO | 18900 MICHIGAN AVE (US 12) | DEARBORN | MI | Sublease to Third party | J.C. Penney Properties, Inc. | ||||||
01168 |
MAIN STORE | 14200 E ALAMEDA AVE | AURORA | CO | Fee | J.C. Penney Properties, Inc. | ||||||
01168 |
MAIN STORE | 14200 E ALAMEDA AVE | AURORA | CO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01170 |
MAIN STORE | 700 QUINTARD DR STE 100 | OXFORD | AL | Lease | J.C. Penney Corporation, Inc. | ||||||
01170 |
TIRE/BATTERY/AUTO | 700 QUINTARD DR STE 100 | OXFORD | AL | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01180 |
MAIN STORE | 260 WAYNE TOWNE CTR | WAYNE | NJ | Ground Lease | J.C. Penney Properties, Inc. | ||||||
01180 |
MAIN STORE | 260 WAYNE TOWNE CTR | WAYNE | NJ | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01188 |
HOME STORE | 3402 SOUTH GLENSTONE AVENUE | SPRINGFIELD | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
01188 |
MAIN STORE | 2825 S GLENSTONE AVE STE 200 | SPRINGFIELD | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
01188 |
TIRE/BATTERY/AUTO | 2825 S GLENSTONE AVE STE 200 | SPRINGFIELD | MO | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01190 |
MAIN STORE | 175 YORKTOWN S/C | LOMBARD | IL | Fee | J.C. Penney Properties, Inc. | ||||||
01192 |
MAIN STORE | 600 SUNRISE MALL | MASSAPEQUA L I | NY | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
01195 |
MAIN STORE | 95 N MOORLAND RD | BROOKFIELD | WI | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
01195 |
TIRE/BATTERY/AUTO | 95 N MOORLAND RD | BROOKFIELD | WI | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01198 |
MAIN STORE | 1500 KANSAS AVE | GREAT BEND | KS | Lease | J.C. Penney Corporation, Inc. | ||||||
01203 |
FOUNDRY | 1101 MELBOURNE RD SUITE 3077 | HURST | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
01206 |
MAIN STORE | 6100 SUNRISE BLVD | CITRUS HTS | CA | Fee | J.C. Penney Properties, Inc. | ||||||
01206 |
MAIN STORE | 6100 SUNRISE BLVD | CITRUS HTS | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01206 |
TIRE/BATTERY/AUTO | 6100 SUNRISE BLVD | CITRUS HTS | CA | Sublease to Third party | J.C. Penney Properties, Inc. | ||||||
01207 |
FOUNDRY | 11745 W 95TH ST | OVERLAND PARK | KS | Lease | J.C. Penney Corporation, Inc. | ||||||
01208 |
MAIN STORE | 1122 N UNIVERSITY DR | NACOGDOCHES | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
01210 |
MAIN STORE | 3700 STATE RD 16 | LA CROSSE | WI | Lease | J.C. Penney Corporation, Inc. | ||||||
01212 |
MAIN STORE | 3075 CLAIRTON RD STE 100 | WEST MIFFLIN | PA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
01212 |
MAIN STORE | 3075 CLAIRTON RD STE 100 | WEST MIFFLIN | PA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01216 |
FOUNDRY | 18801 E 39TH ST S | INDEPENDENCE | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
01217 |
MAIN STORE | 23 WEST TOWNE MALL | MADISON | WI | Fee | J.C. Penney Properties, Inc. | ||||||
01217 |
MAIN STORE | 23 WEST TOWNE MALL | MADISON | WI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01223 |
MAIN STORE | 24200 LAGUNA HILLS MALL | LAGUNA HILLS | CA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
01223 |
MAIN STORE | 24200 LAGUNA HILLS MALL | LAGUNA HILLS | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01223 |
TIRE/BATTERY/AUTO | 24200 LAGUNA HILLS MALL | LAGUNA HILLS | CA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01226 |
MAIN STORE | 400 PARK CITY S/C | LANCASTER | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
01226 |
TIRE/BATTERY/AUTO | 400 PARK CITY S/C | LANCASTER | PA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01228 |
MAIN STORE | 2500 S CENTER ST | MARSHALLTOWN | IA | Lease | J.C. Penney Corporation, Inc. | ||||||
01229 |
MAIN STORE | 280 HILLCREST DR W | THOUSAND OAKS | CA | Fee | J.C. Penney Properties, Inc. | ||||||
01229 |
MAIN STORE | 280 HILLCREST DR W | THOUSAND OAKS | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01240 |
MAIN STORE | 504 N ADAMS ST | CARROLL | IA | Lease | J.C. Penney Corporation, Inc. | ||||||
01241 |
MAIN STORE | 100 NORTHRIDGE MALL | SALINAS | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
01241 |
MAIN STORE | 100 NORTHRIDGE MALL | SALINAS | CA | Sale Leaseback | J.C. Penney Corporation, Inc. | ||||||
01241 |
TIRE/BATTERY/AUTO | 100 NORTHRIDGE MALL | SALINAS | CA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01248 |
MAIN STORE | 4150 S HWY 27 | SOMERSET | KY | Lease | J.C. Penney Corporation, Inc. | ||||||
01250 |
MAIN STORE | 757 E LEWIS & CLRK PKY STE 701 | CLARKSVILLE | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
01256 |
MAIN STORE | 1321 N COLUMBIA CTR BLVD # 100 | KENNEWICK | WA | Fee | J.C. Penney Properties, Inc. | ||||||
01256 |
MAIN STORE | 1321 N COLUMBIA CTR BLVD # 100 | KENNEWICK | WA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01262 |
MAIN STORE | 50 HAMPTON VILLAGE PLAZA | SAINT LOUIS | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
01270 |
MAIN STORE | 3939 S CARSON ST | CARSON CITY | NV | Fee | J.C. Penney Properties, Inc. | ||||||
01270 |
MAIN STORE | 3939 S CARSON ST | CARSON CITY | NV | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01274 |
MAIN STORE | 591 BROADWAY | CHULA VISTA | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
01288 |
MAIN STORE | 2200 N MAPLE AVE | RAPID CITY | SD | Lease | J.C. Penney Corporation, Inc. |
01296 |
MAIN STORE | 2918 VINE ST STE 2001 | HAYS | KS | Lease | J.C. Penney Corporation, Inc. | ||||||
01296 |
TIRE/BATTERY/AUTO | 2918 VINE ST STE 2001 | HAYS | KS | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01306 |
MAIN STORE | 35000 W WARREN RD | WESTLAND | MI | Ground Lease | J.C. Penney Properties, Inc. | ||||||
01306 |
MAIN STORE | 35000 W WARREN RD | WESTLAND | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01308 |
MAIN STORE | 5000 SHELBYVILLE RD | LOUISVILLE | KY | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
01313 |
MAIN STORE | 100 HWY 332 W STE 1260 | LAKE JACKSON | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
01315 |
MAIN STORE | 325 NORTHSIDE DR E STE 25 | STATESBORO | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
01319 |
MAIN STORE | 1530 COSHOCTON AVE | MT VERNON | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
01320 |
MAIN STORE | 3320 SILAS CREEK PKWY STE 460 | WINSTON-SALEM | NC | Fee | J.C. Penney Properties, Inc. | ||||||
01320 |
MAIN STORE | 3320 SILAS CREEK PKWY STE 460 | WINSTON-SALEM | NC | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01321 |
MAIN STORE | 777 E MERRITT ISL CSWY STE 210 | MERRITT ISLAND | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
01321 |
TIRE/BATTERY/AUTO | 777 E MERRITT ISL CSWY STE 210 | MERRITT ISLAND | FL | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01322 |
MAIN STORE | 1560 HOUSTONVILLE RD STE 301 | DANVILLE | KY | Lease | J.C. Penney Corporation, Inc. | ||||||
01323 |
MAIN STORE | 5100 GREAT NORTHERN MALL | N OLMSTED | OH | Ground Lease | J.C. Penney Properties, Inc. | ||||||
01323 |
MAIN STORE | 5100 GREAT NORTHERN MALL | N OLMSTED | OH | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01324 |
MAIN STORE | 1118 JAMES AVE | BEDFORD | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
01327 |
MAIN STORE | 100 FOUR SEASONS TOWN CTR | GREENSBORO | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
01330 |
MAIN STORE | 5488 S PADRE ISLAND DR STE4000 | CORPUS CHRISTI | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
01330 |
TIRE/BATTERY/AUTO | 5488 S PADRE ISLAND DR STE4000 | CORPUS CHRISTI | TX | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01337 |
MAIN STORE | 100 STONEWOOD ST | DOWNEY | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
01337 |
TIRE/BATTERY/AUTO | 100 STONEWOOD ST | DOWNEY | CA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01339 |
MAIN STORE | 101 RANGE LINE STE 250A | JOPLIN | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
01339 |
TIRE/BATTERY/AUTO | 101 RANGE LINE STE 250A | JOPLIN | MO | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01348 |
MAIN STORE | 3560 LAMAR AVE HWY 82 | PARIS | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
01351 |
MAIN STORE | 3100 SW COLLEGE RD | OCALA | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
01352 |
MAIN STORE | 700 W 14 MILE RD | TROY | MI | Fee | J.C. Penney Properties, Inc. | ||||||
01352 |
MAIN STORE | 700 W 14 MILE RD | TROY | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01360 |
HOME STORE | 8881 SOUTHWEST 107TH AVENUE | MIAMI | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
01360 |
MAIN STORE | 7201 N KENDALL DR | MIAMI | FL | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
01360 |
TIRE/BATTERY/AUTO | 7201 N KENDALL DR | MIAMI | FL | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01362 |
MAIN STORE | 1600 A MILLER TRUNK HWY | DULUTH | MN | Lease | J.C. Penney Corporation, Inc. | ||||||
01362 |
TIRE/BATTERY/AUTO | 1600 A MILLER TRUNK HWY | DULUTH | MN | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01368 |
MAIN STORE | 7507 W CERMAK RD | NORTH RIVERSIDE | IL | Fee | J.C. Penney Properties, Inc. | ||||||
01368 |
MAIN STORE | 7507 W CERMAK RD | NORTH RIVERSIDE | IL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01373 |
HOME STORE | 6933 LINDBERGH BOULEVARD | ST LOUIS | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
01373 |
MAIN STORE | 100 S COUNTY CENTER WAY | SAINT LOUIS | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
01377 |
MAIN STORE | 607 N BERKELEY BLVD | GOLDSBORO | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
01377 |
TIRE/BATTERY/AUTO | 607 N BERKELEY BLVD | GOLDSBORO | NC | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01385 |
MAIN STORE | 201 S MAIN ST | BISHOP | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
01388 |
MAIN STORE | 205 N ORCHARD AVE | UKIAH | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
01389 |
MAIN STORE | 11801 W 95TH ST | OVERLAND PARK | KS | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
01389 |
MAIN STORE | 11801 W 95TH ST | OVERLAND PARK | KS | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01392 |
MAIN STORE | 250 PLAINFIELD RD UNIT 202 | WEST LEBANON | NH | Lease | J.C. Penney Corporation, Inc. | ||||||
01393 |
MAIN STORE | 4257 N MAYO TRAIL | PIKEVILLE | KY | Lease | J.C. Penney Corporation, Inc. | ||||||
01398 |
MAIN STORE | 23000 EUREKA RD STE A3 | TAYLOR | MI | Ground Lease | J.C. Penney Properties, Inc. | ||||||
01398 |
MAIN STORE | 23000 EUREKA RD STE A3 | TAYLOR | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01399 |
MAIN STORE | 1700 MARKET LANE | NORFOLK | NE | Lease | J.C. Penney Corporation, Inc. | ||||||
01405 |
MAIN STORE | 12421 WAYZATA BLVD | MINNETONKA | MN | Fee | J.C. Penney Properties, Inc. | ||||||
01405 |
MAIN STORE | 12421 WAYZATA BLVD | MINNETONKA | MN | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01413 |
MAIN STORE | 3601 S 2700 W | SALT LAKE CITY | UT | Lease | J.C. Penney Corporation, Inc. | ||||||
01413 |
TIRE/BATTERY/AUTO | 3601 S 2700 W | SALT LAKE CITY | UT | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01417 |
MAIN STORE | 400 S BALDWIN AVE | ARCADIA | CA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
01417 |
MAIN STORE | 400 S BALDWIN AVE | ARCADIA | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01419 |
MAIN STORE | 1900 GREEN OAKS RD | FORT WORTH | TX | Fee | J.C. Penney Properties, Inc. | ||||||
01419 |
MAIN STORE | 1900 GREEN OAKS RD | FORT WORTH | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01419 |
TIRE/BATTERY/AUTO | 1900 GREEN OAKS RD | FORT WORTH | TX | Sublease to Third party | J.C. Penney Properties, Inc. | ||||||
01431 |
MAIN STORE | 2101 BROADWAY | YANKTON | SD | Lease | J.C. Penney Corporation, Inc. | ||||||
01432 |
MAIN STORE | 14300 LAKESIDE CIR | STERLING HTS | MI | Fee | J.C. Penney Properties, Inc. | ||||||
01432 |
MAIN STORE | 14300 LAKESIDE CIR | STERLING HTS | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01433 |
MAIN STORE | 1890 SOUTHLAKE MALL | MERRILLVILLE | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
01433 |
OUTSIDE STOCKROOM | 1890 SOUTHLAKE MALL | MERRILLVILLE | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
01433 |
TIRE/BATTERY/AUTO | 1890 SOUTHLAKE MALL | MERRILLVILLE | IN | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01443 |
MAIN STORE | 245 SAINT CLAIR SQ | FAIRVIEW HTS | IL | Ground Lease | J.C. Penney Properties, Inc. | ||||||
01443 |
MAIN STORE | 245 SAINT CLAIR SQ | FAIRVIEW HTS | IL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01443 |
TIRE/BATTERY/AUTO | 245 SAINT CLAIR SQ | FAIRVIEW HTS | IL | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01445 |
MAIN STORE | 1 SANGERTOWN SQ STE 55 | NEW HARTFORD | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
01451 |
MAIN STORE | 3340 MALL LOOP DR SPACE 2 | JOLIET | IL | Fee | J.C. Penney Properties, Inc. | ||||||
01451 |
MAIN STORE | 3340 MALL LOOP DR SPACE 2 | JOLIET | IL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01455 |
MAIN STORE | 1850 APPLE BLOSSOM DR | WINCHESTER | VA | Lease | J.C. Penney Corporation, Inc. | ||||||
01462 |
MAIN STORE | 6699 SPRINGFIELD MALL | SPRINGFIELD | VA | Fee | J.C. Penney Properties, Inc. | ||||||
01462 |
MAIN STORE | 6699 SPRINGFIELD MALL | SPRINGFIELD | VA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01462 |
TIRE/BATTERY/AUTO | 6699 SPRINGFIELD MALL | SPRINGFIELD | VA | Sublease to Third party | J.C. Penney Properties, Inc. | ||||||
01467 |
MAIN STORE | 5500 BUCKEYSTOWN PIKE | FREDERICK | MD | Lease | J.C. Penney Corporation, Inc. | ||||||
01475 |
MAIN STORE | 27001 US HWY 19 N | CLEARWATER | FL | Fee | J.C. Penney Properties, Inc. | ||||||
01475 |
MAIN STORE | 27001 US HWY 19 N | CLEARWATER | FL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01480 |
MAIN STORE | 4510 E CACTUS RD | PHOENIX | AZ | Fee | J.C. Penney Properties, Inc. | ||||||
01480 |
MAIN STORE | 4510 E CACTUS RD | PHOENIX | AZ | Lease (Intercompany) | J.C. Penney Corporation, Inc. |
01481 |
MAIN STORE | 201 WESTSHORE PLAZA | TAMPA | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
01481 |
TIRE/BATTERY/AUTO | 201 WESTSHORE PLAZA | TAMPA | FL | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01487 |
MAIN STORE | 1129 N BALDWIN AVE STE 200 | MARION | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
01489 |
MAIN STORE | 5522 SHAFFER RD STE 09 | DU BOIS | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
01493 |
MAIN STORE | 100 FRANKLIN ST UNIT F | WESTERLY | RI | Lease | J.C. Penney Corporation, Inc. | ||||||
01503 |
MAIN STORE | 1925 E MARKET ST | HARRISONBURG | VA | Lease | J.C. Penney Corporation, Inc. | ||||||
01505 |
MAIN STORE | 1203 PLAZA DR | WEST COVINA | CA | Fee | J.C. Penney Properties, Inc. | ||||||
01505 |
MAIN STORE | 1203 PLAZA DR | WEST COVINA | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01509 |
MAIN STORE | 800 CODDINGTOWN CTR | SANTA ROSA | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
01509 |
TIRE/BATTERY/AUTO | 800 CODDINGTOWN CTR | SANTA ROSA | CA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01510 |
MAIN STORE | 1303 NIAGARA FALLS BLVD | AMHERST | NY | Fee | J.C. Penney Properties, Inc. | ||||||
01510 |
MAIN STORE | 1303 NIAGARA FALLS BLVD | AMHERST | NY | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01512 |
MAIN STORE | 1228 MAIN ST | DELANO | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
01514 |
MAIN STORE | 303 301 BLVD W STE 701 | BRADENTON | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
01514 |
TIRE/BATTERY/AUTO | 303 301 BLVD W STE 701 | BRADENTON | FL | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01529 |
MAIN STORE | 755 STATE RT 18 STE 600 | E BRUNSWICK | NJ | Fee | J.C. Penney Properties, Inc. | ||||||
01529 |
MAIN STORE | 755 STATE RT 18 STE 600 | E BRUNSWICK | NJ | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01531 |
MAIN STORE | 2300 E LINCOLN HWY | LANGHORNE | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
01531 |
TIRE/BATTERY/AUTO | 2300 E LINCOLN HWY | LANGHORNE | PA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01535 |
MAIN STORE | 101 CLEARVIEW CIRCLE | BUTLER | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
01539 |
MAIN STORE | 555 W GRAND AVE STE M-1 | WISCONSIN RAPIDS | WI | Lease | J.C. Penney Corporation, Inc. | ||||||
01542 |
MAIN STORE | 7601 S CICERO AVE | CHICAGO | IL | Lease | J.C. Penney Corporation, Inc. | ||||||
01559 |
MAIN STORE | 2400 EDGEWOOD RD SW | CEDAR RAPIDS | IA | Lease | J.C. Penney Corporation, Inc. | ||||||
01572 |
MAIN STORE | 6000 S HANNUM AVE | CULVER CITY | CA | Fee | J.C. Penney Properties, Inc. | ||||||
01572 |
MAIN STORE | 6000 S HANNUM AVE | CULVER CITY | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01580 |
MAIN STORE | 3225 28TH ST SE | GRAND RAPIDS | MI | Fee | J.C. Penney Properties, Inc. | ||||||
01580 |
MAIN STORE | 3225 28TH ST SE | GRAND RAPIDS | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01587 |
MAIN STORE | 550 S GEAR AVE | W BURLINGTON | IA | Lease | J.C. Penney Corporation, Inc. | ||||||
01587 |
TIRE/BATTERY/AUTO | 550 S GEAR AVE | W BURLINGTON | IA | Lease | J.C. Penney Corporation, Inc. | ||||||
01589 |
MAIN STORE | 3575 MAPLE AVE | ZANESVILLE | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
01590 |
MAIN STORE | 4600 W KELLOGG RD | WICHITA | KS | Fee | J.C. Penney Properties, Inc. | ||||||
01590 |
MAIN STORE | 4600 W KELLOGG RD | WICHITA | KS | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01591 |
MAIN STORE | 22 CLIFTON COUNTRY RD STE 2 | CLIFTON PARK | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
01603 |
MAIN STORE | 4217 SIX FORKS RD STE 100 | RALEIGH | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
01603 |
TIRE/BATTERY/AUTO | 4217 SIX FORKS RD STE 100 | RALEIGH | NC | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01612 |
HOME STORE | 10201 UNIVERSITY AVENUE | CLIVE | IA | Lease | J.C. Penney Corporation, Inc. | ||||||
01612 |
MAIN STORE | 1551 VALLEY WEST DR | W DES MOINES | IA | Lease | J.C. Penney Corporation, Inc. | ||||||
01614 |
MAIN STORE | 5100 MONTCLAIR PLAZA LANE | MONTCLAIR | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
01618 |
MAIN STORE | 25 MIRACLE MILE DR | ROCHESTER | NY | Ground Lease | J.C. Penney Properties, Inc. | ||||||
01618 |
MAIN STORE | 25 MIRACLE MILE DR | ROCHESTER | NY | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01623 |
MAIN STORE | 27150 NOVI RD | NOVI | MI | Fee | J.C. Penney Properties, Inc. | ||||||
01623 |
MAIN STORE | 27150 NOVI RD | NOVI | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01628 |
MAIN STORE | 1607 3RD AVE W | DICKINSON | ND | Lease | J.C. Penney Corporation, Inc. | ||||||
01635 |
MAIN STORE | 1826 S MAIN ST | MARYVILLE | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
01650 |
MAIN STORE | 301 COX CREEK PKWY (RT 133) | FLORENCE | AL | Lease | J.C. Penney Corporation, Inc. | ||||||
01674 |
MAIN STORE | PO BOX 4220 | BARBOURSVILLE | WV | Fee | J.C. Penney Properties, Inc. | ||||||
01674 |
MAIN STORE | PO BOX 4220 | BARBOURSVILLE | WV | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01693 |
MAIN STORE | 1400 N TURNER ST | HOBBS | NM | Lease | J.C. Penney Corporation, Inc. | ||||||
01698 |
MAIN STORE | 5000 FREDERICA ST | OWENSBORO | KY | Lease | J.C. Penney Corporation, Inc. | ||||||
01704 |
MAIN STORE | 4803 OUTER LOOP RD | LOUISVILLE | KY | Fee | J.C. Penney Properties, Inc. | ||||||
01704 |
MAIN STORE | 4803 OUTER LOOP RD | LOUISVILLE | KY | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01717 |
MAIN STORE | 115 TIMES SQ MALL | MT VERNON | IL | Lease | J.C. Penney Corporation, Inc. | ||||||
01722 |
MAIN STORE | 840 MILL CREEK MALL | ERIE | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
01722 |
TIRE/BATTERY/AUTO | 840 MILL CREEK MALL | ERIE | PA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01738 |
MAIN STORE | 1051 GREEN ACRES MALL | VALLEY STREAM L I | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
01749 |
MAIN STORE | 2400 RICHMOND RD STE 61 | TEXARKANA | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
01751 |
MAIN STORE | 205 W BLACKSTOCK RD STE 8 | SPARTANBURG | SC | Lease | J.C. Penney Corporation, Inc. | ||||||
01761 |
MAIN STORE | 502 GARDEN STATE PLAZA | PARAMUS | NJ | Lease | J.C. Penney Corporation, Inc. | ||||||
01775 |
MAIN STORE | 850 KIRKWOOD MALL | BISMARCK | ND | Lease | J.C. Penney Corporation, Inc. | ||||||
01778 |
MAIN STORE | 2200 N TUSTIN ST | ORANGE | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
01779 |
MAIN STORE | 300 STROUD MALL | STROUDSBURG | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
01781 |
MAIN STORE | 2115 W ROOSEVELT BLVD | MONROE | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
01783 |
MAIN STORE | 1224 E TIPTON ST | SEYMOUR | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
01786 |
MAIN STORE | 1701 MACFARLAND BLVD E | TUSCALOOSA | AL | Fee | J.C. Penney Properties, Inc. | ||||||
01786 |
MAIN STORE | 1701 MACFARLAND BLVD E | TUSCALOOSA | AL | Ground Lease | J.C. Penney Properties, Inc. | ||||||
01786 |
MAIN STORE | 1701 MACFARLAND BLVD E | TUSCALOOSA | AL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01787 |
MAIN STORE | 1500 CANTON RD | AKRON | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
01794 |
HOME STORE | 910 S. RAINBOW BOULEVARD | LAS VEGAS | NV | Lease | J.C. Penney Corporation, Inc. | ||||||
01794 |
MAIN STORE | 4400 MEADOWS LANE | LAS VEGAS | NV | Fee | J.C. Penney Properties, Inc. | ||||||
01794 |
MAIN STORE | 4400 MEADOWS LANE | LAS VEGAS | NV | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01800 |
MAIN STORE | 265 PINE AVE | SNOHOMISH | WA | Lease | J.C. Penney Corporation, Inc. | ||||||
01811 |
MAIN STORE | 21840 S HAWTHORNE BLVD | TORRANCE | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
01816 |
MAIN STORE | 7850 MENTOR AVE STE 930 | MENTOR | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
01823 |
MAIN STORE | 8900 NE VANCOUVER MALL DR | VANCOUVER | WA | Fee | J.C. Penney Properties, Inc. | ||||||
01823 |
MAIN STORE | 8900 NE VANCOUVER MALL DR | VANCOUVER | WA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01829 |
MAIN STORE | 1442 US HWY 45 N | COLUMBUS | MS | Lease | J.C. Penney Corporation, Inc. | ||||||
01831 |
MAIN STORE | 3202 ARTIC BLVD | ANCHORAGE | AK | Fee | J.C. Penney Properties, Inc. | ||||||
01831 |
MAIN STORE | 3202 ARTIC BLVD | ANCHORAGE | AK | Fee | J.C. Penney Properties, Inc. |
01831 |
MAIN STORE | 3202 ARTIC BLVD | ANCHORAGE | AK | Sublease to Third party | J.C. Penney Properties, Inc. | ||||||
01831 |
MAIN STORE | 3202 ARTIC BLVD | ANCHORAGE | AK | Sublease to Third party | J.C. Penney Properties, Inc. | ||||||
01832 |
MAIN STORE | 3236 KIRKWOOD HWY | WILMINGTON | DE | Lease | J.C. Penney Corporation, Inc. | ||||||
01832 |
TIRE/BATTERY/AUTO | 3236 KIRKWOOD HWY | WILMINGTON | DE | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01842 |
MAIN STORE | 2115 S MOONEY BLVD | VISALIA | CA | Sale Leaseback | J.C. Penney Corporation, Inc. | ||||||
01844 |
MAIN STORE | 340 SOUTHLAND MALL | HAYWARD | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
01844 |
TIRE/BATTERY/AUTO | 340 SOUTHLAND MALL | HAYWARD | CA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01845 |
MAIN STORE | 305 LIBERTY ST NE | SALEM | OR | Lease | J.C. Penney Corporation, Inc. | ||||||
01847 |
MAIN STORE | 1200 E BROAD AVE | ROCKINGHAM | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
01853 |
MAIN STORE | 4300 TUSCARAWAS ST W | CANTON | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
01853 |
TIRE/BATTERY/AUTO | 4300 TUSCARAWAS ST W | CANTON | OH | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01858 |
MAIN STORE | 1075 N BRIDGE ST | CHILLICOTHE | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
01859 |
MAIN STORE | 2400 ELIDA RD | LIMA | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
01859 |
TIRE/BATTERY/AUTO | 2400 ELIDA RD | LIMA | OH | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01860 |
MAIN STORE | 4199 NATIONAL RD E | RICHMOND | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
01862 |
MAIN STORE | 4125 CLEVELAND AVE STE 903 | FORT MYERS | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
01862 |
TIRE/BATTERY/AUTO | 4125 CLEVELAND AVE STE 903 | FORT MYERS | FL | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01867 |
MAIN STORE | 117 S 25TH ST STE 1 | FORT DODGE | IA | Lease | J.C. Penney Corporation, Inc. | ||||||
01868 |
MAIN STORE | 420 HUCK FINN S/C | HANNIBAL | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
01869 |
MAIN STORE | 8200 PERRY HALL BLVD | BALTIMORE | MD | Fee | J.C. Penney Properties, Inc. | ||||||
01869 |
MAIN STORE | 8200 PERRY HALL BLVD | BALTIMORE | MD | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01870 |
MAIN STORE | 3702 FREDERICK AVE STE 7 | SAINT JOSEPH | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
01870 |
TIRE/BATTERY/AUTO | 3702 FREDERICK AVE STE 7 | SAINT JOSEPH | MO | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01871 |
MAIN STORE | 1321 S BROADWAY | SANTA MARIA | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
01874 |
MAIN STORE | 4101 W DIVISION ST | SAINT CLOUD | MN | Lease | J.C. Penney Corporation, Inc. | ||||||
01876 |
MAIN STORE | 1603 E EMPIRE ST | BLOOMINGTON | IL | Lease | J.C. Penney Corporation, Inc. | ||||||
01880 |
MAIN STORE | 1050 E 23RD ST | FREMONT | NE | Lease | J.C. Penney Corporation, Inc. | ||||||
01886 |
MAIN STORE | 1300 N MILLER ST | WENATCHEE | WA | Lease | J.C. Penney Corporation, Inc. | ||||||
01891 |
MAIN STORE | 3015 HWY 29 S | ALEXANDRIA | MN | Lease | J.C. Penney Corporation, Inc. | ||||||
01899 |
MAIN STORE | 4621 EASTGATE BLVD | CINCINNATI | OH | Fee | J.C. Penney Properties, Inc. | ||||||
01899 |
MAIN STORE | 4621 EASTGATE BLVD | CINCINNATI | OH | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01900 |
MAIN STORE | 714 GREENVILLE BLVD | GREENVILLE | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
01900 |
TIRE/BATTERY/AUTO | 714 GREENVILLE BLVD | GREENVILLE | NC | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01902 |
MAIN STORE | 4500 MIDWAY MALL | ELYRIA | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
01902 |
TIRE/BATTERY/AUTO | 4500 MIDWAY MALL | ELYRIA | OH | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01908 |
MAIN STORE | 2910 N ELM ST | LUMBERTON | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
01911 |
MAIN STORE | 90 LEE JACKSON HWY STE 1268 | STAUNTON | VA | Lease | J.C. Penney Corporation, Inc. | ||||||
01917 |
TIRE/BATTERY/AUTO | 880 N MILITARY HWY | NORFOLK | VA | Sublease to Third party | J.C. Penney Properties, Inc. | ||||||
01919 |
MAIN STORE | 3100 M L KING JR BLVD STE 29 | NEW BERN | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
01923 |
MAIN STORE | 2230 EASTRIDGE LOOP | SAN JOSE | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
01924 |
MAIN STORE | 900 EASTWOOD MALL | NILES | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
01927 |
MAIN STORE | PO BOX 6002 | VIENNA | WV | Lease | J.C. Penney Corporation, Inc. | ||||||
01928 |
MAIN STORE | 4000 FT CAMPBELL BLVD | HOPKINSVILLE | KY | Lease | J.C. Penney Corporation, Inc. | ||||||
01928 |
TIRE/BATTERY/AUTO | 4000 FT CAMPBELL BLVD | HOPKINSVILLE | KY | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01930 |
MAIN STORE | 2400 ROOSEVELT RD | MARINETTE | WI | Lease | J.C. Penney Corporation, Inc. | ||||||
01932 |
HOME STORE | 7490 N Blackstone Ave | Fresno | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
01932 |
MAIN STORE | 555 E SHAW AVE | FRESNO | CA | Sale Leaseback | J.C. Penney Corporation, Inc. | ||||||
01934 |
MAIN STORE | 1350 N MAIN ST | LOGAN | UT | Lease | J.C. Penney Corporation, Inc. | ||||||
01935 |
MAIN STORE | 2825 W MAIN ST STE C | BOZEMAN | MT | Lease | J.C. Penney Corporation, Inc. | ||||||
01936 |
MAIN STORE | 7401 MARKET ST | BOARDMAN | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
01936 |
TIRE/BATTERY/AUTO | 7401 MARKET ST | BOARDMAN | OH | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01937 |
MAIN STORE | 990 W 41ST ST | HIBBING | MN | Lease | J.C. Penney Corporation, Inc. | ||||||
01939 |
MAIN STORE | 7000 TYRONE SQ | SAINT PETERSBURG | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
01939 |
TIRE/BATTERY/AUTO | 7000 TYRONE SQ | SAINT PETERSBURG | FL | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01940 |
MAIN STORE | 5350 S 76TH ST | GREENDALE | WI | Fee | J.C. Penney Properties, Inc. | ||||||
01940 |
MAIN STORE | 5350 S 76TH ST | GREENDALE | WI | Sublease to Third party | J.C. Penney Properties, Inc. | ||||||
01940 |
TIRE/BATTERY/AUTO | 5350 S 76TH ST | GREENDALE | WI | Sublease to Third party | J.C. Penney Properties, Inc. | ||||||
01942 |
MAIN STORE | 90 W COUNTY CTR | DES PERES | MO | Fee | J.C. Penney Properties, Inc. | ||||||
01943 |
MAIN STORE | 1105 MELBOURNE DR | HURST | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
01943 |
TIRE/BATTERY/AUTO | 1105 MELBOURNE DR | HURST | TX | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01944 |
MAIN STORE | 700 BROADWAY AVE E STE 1 | MATTOON | IL | Lease | J.C. Penney Corporation, Inc. | ||||||
01945 |
MAIN STORE | 2625 SCOTTSVILLE RD STE 40 | BOWLING GREEN | KY | Lease | J.C. Penney Corporation, Inc. | ||||||
01948 |
MAIN STORE | 3 WOODFIELD MALL | SCHAUMBURG | IL | Fee | J.C. Penney Properties, Inc. | ||||||
01950 |
MAIN STORE | 6987 FRIARS RD | SAN DIEGO | CA | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
01950 |
TIRE/BATTERY/AUTO | 6987 FRIARS RD | SAN DIEGO | CA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01951 |
MAIN STORE | 3401 DONNELL DR | FORESTVILLE | MD | Fee | J.C. Penney Properties, Inc. | ||||||
01951 |
MAIN STORE | 3401 DONNELL DR | FORESTVILLE | MD | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01953 |
MAIN STORE | 1655 W 49TH ST STE 1200 | HIALEAH | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
01953 |
TIRE/BATTERY/AUTO | 1655 W 49TH ST STE 1200 | HIALEAH | FL | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01956 |
MAIN STORE | 8000 W BROWARD BLVD STE 900 | PLANTATION | FL | Fee | J.C. Penney Properties, Inc. | ||||||
01957 |
MAIN STORE | 200 SOUTHDALE CTR | EDINA | MN | Fee | J.C. Penney Properties, Inc. | ||||||
01958 |
LAND | 6455 EASTEX FRWY | BEAUMONT | TX | Sublease to Third party | J.C. Penney Properties, Inc. | ||||||
01958 |
MAIN STORE | 6455 EASTEX FRWY | BEAUMONT | TX | Fee | J.C. Penney Properties, Inc. | ||||||
01958 |
MAIN STORE | 6455 EASTEX FRWY | BEAUMONT | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01958 |
TIRE/BATTERY/AUTO | 6455 EASTEX FRWY | BEAUMONT | TX | Sublease to Third party | J.C. Penney Properties, Inc. | ||||||
01959 |
MAIN STORE | 1122 EL CAMINO REAL | SAN BRUNO | CA | Fee | J.C. Penney Properties, Inc. | ||||||
01960 |
MAIN STORE | 3605 GALLERIA AT TYLER | RIVERSIDE | CA | Fee | J.C. Penney Properties, Inc. | ||||||
01960 |
MAIN STORE | 3605 GALLERIA AT TYLER | RIVERSIDE | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01961 |
MAIN STORE | 5111 ROGERS AVE | FORT SMITH | AR | Lease | J.C. Penney Corporation, Inc. | ||||||
01961 |
TIRE/BATTERY/AUTO | 5111 ROGERS AVE | FORT SMITH | AR | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01962 |
MAIN STORE | 4840 BRIARCLIFF RD NE | ATLANTA | GA | Sale Leaseback | J.C. Penney Corporation, Inc. |
01963 |
MAIN STORE | 320 W KIMBERLY RD STE 409 | DAVENPORT | IA | Fee | J.C. Penney Properties, Inc. | ||||||
01963 |
MAIN STORE | 320 W KIMBERLY RD STE 409 | DAVENPORT | IA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01965 |
MAIN STORE | 1000 RIVERGATE PKWY STE 3 | GOODLETTSVILLE | TN | Fee | J.C. Penney Properties, Inc. | ||||||
01968 |
MAIN STORE | 34 WYOMING VALLEY MALL | WILKES BARRE | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
01968 |
TIRE/BATTERY/AUTO | 34 WYOMING VALLEY MALL | WILKES BARRE | PA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01970 |
MAIN STORE | 1475 UPPER VALLEY PIKE | SPRINGFIELD | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
01970 |
TIRE/BATTERY/AUTO | 1475 UPPER VALLEY PIKE | SPRINGFIELD | OH | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01971 |
MAIN STORE | 4545 TRANSIT RD | WILLIAMSVILLE | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
01971 |
TIRE/BATTERY/AUTO | 4545 TRANSIT RD | WILLIAMSVILLE | NY | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01972 |
MAIN STORE | 4201 COLDWATER RD | FORT WAYNE | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
01972 |
TIRE/BATTERY/AUTO | 4201 COLDWATER RD | FORT WAYNE | IN | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01975 |
MAIN STORE | 301 NORTHGATE MALL | CHATTANOOGA | TN | Sale Leaseback | J.C. Penney Corporation, Inc. | ||||||
01975 |
TIRE/BATTERY/AUTO | 301 NORTHGATE MALL | CHATTANOOGA | TN | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
01976 |
MAIN STORE | 2400 10TH ST SW | MINOT | ND | Lease | J.C. Penney Corporation, Inc. | ||||||
01977 |
MAIN STORE | 1500 APALACHEE PKWY | TALLAHASSEE | FL | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
01979 |
MAIN STORE | 3535 S LINDEN RD | FLINT | MI | Fee | J.C. Penney Properties, Inc. | ||||||
01979 |
MAIN STORE | 3535 S LINDEN RD | FLINT | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01980 |
HOME STORE | 7207 GRAPE ROAD | MISHAWAKA | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
01980 |
MAIN STORE | 6501 N GRAPE RD | MISHAWAKA | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
01981 |
MAIN STORE | 2901 BROOKS ST | MISSOULA | MT | Fee | J.C. Penney Properties, Inc. | ||||||
01981 |
MAIN STORE | 2901 BROOKS ST | MISSOULA | MT | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01982 |
MAIN STORE | 6580 S WESTNEDGE AVE | PORTAGE | MI | Fee | J.C. Penney Properties, Inc. | ||||||
01982 |
MAIN STORE | 6580 S WESTNEDGE AVE | PORTAGE | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01983 |
MAIN STORE | 428 WOODBRIDGE CTR DR | WOODBRIDGE | NJ | Fee | J.C. Penney Properties, Inc. | ||||||
01983 |
MAIN STORE | 428 WOODBRIDGE CTR DR | WOODBRIDGE | NJ | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01985 |
MAIN STORE | 550 CENTER ST | AUBURN | ME | Lease | J.C. Penney Corporation, Inc. | ||||||
01987 |
MAIN STORE | 2400 N COLUMBIA ST (US 441N) | MILLEDGEVILLE | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
01989 |
MAIN STORE | 6000 SUNSET MALL | SAN ANGELO | TX | Fee | J.C. Penney Properties, Inc. | ||||||
01989 |
MAIN STORE | 6000 SUNSET MALL | SAN ANGELO | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
01991 |
MAIN STORE | 99 BENNINGTON SQ | BENNINGTON | VT | Lease | J.C. Penney Corporation, Inc. | ||||||
01992 |
MAIN STORE | 320 BYPASS 72 NW STE A | GREENWOOD | SC | Lease | J.C. Penney Corporation, Inc. | ||||||
01993 |
MAIN STORE | 2011 N ROAN ST | JOHNSON CITY | TN | Lease | J.C. Penney Corporation, Inc. | ||||||
01994 |
MAIN STORE | 3902 13TH AVE SW STE 200 | FARGO | ND | Lease | J.C. Penney Corporation, Inc. | ||||||
01995 |
MAIN STORE | 503 E IVES ST STE 200 | MARSHFIELD | WI | Lease | J.C. Penney Corporation, Inc. | ||||||
01997 |
MAIN STORE | 40 BATAVIA CITY CTR | BATAVIA | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
01998 |
MAIN STORE | 4600 N US HWY 89 | FLAGSTAFF | AZ | Lease | J.C. Penney Corporation, Inc. | ||||||
02006 |
MAIN STORE |
3600 COUNTRY CLUB DR STOP 4 |
JEFFERSON CITY | MO | Fee | J.C. Penney Properties, Inc. | ||||||
02006 |
MAIN STORE |
3600 COUNTRY CLUB DR STOP 4 |
JEFFERSON CITY | MO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02008 |
MAIN STORE | 2 FREEDOM MALL | ROME | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02010 |
MAIN STORE | 7900 DAY DR | PARMA | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
02011 |
MAIN STORE | 18601 33RD AVE W | LYNNWOOD | WA | Fee | J.C. Penney Properties, Inc. | ||||||
02011 |
MAIN STORE | 18601 33RD AVE W | LYNNWOOD | WA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02015 |
MAIN STORE | 626 BOLL WEEVIL CIR | ENTERPRISE | AL | Lease | J.C. Penney Corporation, Inc. | ||||||
02018 |
MAIN STORE | 200 SW C AVE | LAWTON | OK | Lease | J.C. Penney Corporation, Inc. | ||||||
02020 |
MAIN STORE | 1930 S LOOP 256 | PALESTINE | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
02021 |
MAIN STORE | 6001 W WACO DR | WACO | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
02022 |
MAIN STORE | 367 RUSSELL ST STE A | HADLEY | MA | Lease | J.C. Penney Corporation, Inc. | ||||||
02024 |
MAIN STORE | 1639 E RIO RD | CHARLOTTESVILLE | VA | Fee | J.C. Penney Properties, Inc. | ||||||
02024 |
MAIN STORE | 1639 E RIO RD | CHARLOTTESVILLE | VA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02025 |
HOME STORE | MORGAN AVE (HWY 62) & GREEN RI | EVANSVILLE | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
02025 |
MAIN STORE | 800 N GREEN RIVER RD | EVANSVILLE | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
02034 |
MAIN STORE | 105 CROSSROADS MALL | MT HOPE | WV | Lease | J.C. Penney Corporation, Inc. | ||||||
02036 |
MAIN STORE | 4511 N MIDKIFF RD | MIDLAND | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02036 |
MAIN STORE | 4511 N MIDKIFF RD | MIDLAND | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02038 |
MAIN STORE | 1180 BLOWING ROCK RD | BOONE | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
02039 |
MAIN STORE | 1410 SPARTA ST | MCMINNVILLE | TN | Lease | J.C. Penney Corporation, Inc. | ||||||
02040 |
MAIN STORE | 2901 S CAPITOL OF TEXAS HWY | AUSTIN | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02040 |
MAIN STORE | 2901 S CAPITOL OF TEXAS HWY | AUSTIN | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02042 |
MAIN STORE | 400 SPOTSYLVANIA MALL | FREDERICKSBURG | VA | Lease | J.C. Penney Corporation, Inc. | ||||||
02043 |
MAIN STORE | STATE HWY M-26 | HOUGHTON | MI | Lease | J.C. Penney Corporation, Inc. | ||||||
02044 |
MAIN STORE | 2334 OAKLAND AVE STE 8 | INDIANA | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
02045 |
MAIN STORE | 2400 8TH AVE SW STE A1 | JAMESTOWN | ND | Lease | J.C. Penney Corporation, Inc. | ||||||
02046 |
MAIN STORE | 1615 N HARRISON AVE | PIERRE | SD | Lease | J.C. Penney Corporation, Inc. | ||||||
02047 |
MAIN STORE | 2121 US HWY 1 S STE A | SAINT AUGUSTINE | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
02048 |
MAIN STORE | 901 11TH AVE SW STE 34 | SPENCER | IA | Lease | J.C. Penney Corporation, Inc. | ||||||
02049 |
MAIN STORE | 126 JACKSON ST | STERLING | CO | Lease | J.C. Penney Corporation, Inc. | ||||||
02051 |
MAIN STORE | 120 WASHINGTON AVE EXT STE 40 | ALBANY | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02052 |
MAIN STORE | 22631 RT 68 STE 10 | CLARION | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
02055 |
MAIN STORE | 821 N CENTRAL EXPWY | PLANO | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02055 |
MAIN STORE | 821 N CENTRAL EXPWY | PLANO | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02058 |
MAIN STORE | 1400 DELL RANGE BLVD | CHEYENNE | WY | Lease | J.C. Penney Corporation, Inc. | ||||||
02059 |
MAIN STORE | 5801 BECKLEY RD | BATTLE CREEK | MI | Fee | J.C. Penney Properties, Inc. | ||||||
02059 |
MAIN STORE | 5801 BECKLEY RD | BATTLE CREEK | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02060 |
MAIN STORE | 7804 ABERCORN ST | SAVANNAH | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
02063 |
MAIN STORE | RT 23 (RD 2) | ONEONTA | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02064 |
MAIN STORE | 4501 CENTRAL AVE STE 103 | HOT SPRINGS NAT PK | AR | Lease | J.C. Penney Corporation, Inc. | ||||||
02065 |
MAIN STORE | 5304 W SAGINAW ST | LANSING | MI | Lease | J.C. Penney Corporation, Inc. | ||||||
02066 |
MAIN STORE | 1982 W GRAND RIVER AVE STE 135 | OKEMOS | MI | Lease | J.C. Penney Corporation, Inc. |
02067 |
MAIN STORE | 1860 W MICHIGAN AVE | JACKSON | MI | Lease | J.C. Penney Corporation, Inc. | ||||||
02068 |
MAIN STORE | 1800 FOUR SEASONS BLVD | HENDERSONVILLE | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
02069 |
MAIN STORE | 8001 S ORANGE BLOSSOM STE 700 | ORLANDO | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
02071 |
MAIN STORE | 19525 BISCAYNE BLVD | AVENTURA | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
02074 |
MAIN STORE | 1910 WELLS RD | ORANGE PARK | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
02076 |
MAIN STORE | 2338 US 23 S | ALPENA | MI | Lease | J.C. Penney Corporation, Inc. | ||||||
02079 |
MAIN STORE | 325 PIEDMONT DR | DANVILLE | VA | Lease | J.C. Penney Corporation, Inc. | ||||||
02080 |
MAIN STORE | 4601 E MAIN ST | FARMINGTON | NM | Lease | J.C. Penney Corporation, Inc. | ||||||
02083 |
MAIN STORE | 401 LEE ST E | CHARLESTON | WV | Fee | J.C. Penney Properties, Inc. | ||||||
02083 |
MAIN STORE | 401 LEE ST E | CHARLESTON | WV | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02085 |
MAIN STORE | 1500 N RIVERSIDE AVE | MEDFORD | OR | Lease | J.C. Penney Corporation, Inc. | ||||||
02086 |
MAIN STORE | 5101 HINKLEVILLE RD STE 800 | PADUCAH | KY | Lease | J.C. Penney Corporation, Inc. | ||||||
02089 |
MAIN STORE | 905 N 12TH ST STE 10 | MIDDLESBORO | KY | Lease | J.C. Penney Corporation, Inc. | ||||||
02091 |
MAIN STORE | 700 MAINE MALL RD | SOUTH PORTLAND | ME | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02091 |
MAIN STORE | 700 MAINE MALL RD | SOUTH PORTLAND | ME | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02092 |
MAIN STORE | 1700 W NEW HAVEN AVE | MELBOURNE | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
02093 |
MAIN STORE | 700 TELSHOR BLVD STE 2000 | LAS CRUCES | NM | Lease | J.C. Penney Corporation, Inc. | ||||||
02096 |
MAIN STORE | 72900 HWY 111 | PALM DESERT | CA | Fee | J.C. Penney Properties, Inc. | ||||||
02096 |
MAIN STORE | 72900 HWY 111 | PALM DESERT | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02098 |
MAIN STORE | 101 FOOTHILLS MALL | MARYVILLE | TN | Lease | J.C. Penney Corporation, Inc. | ||||||
02099 |
MAIN STORE | 2320 E 17TH ST | IDAHO FALLS | ID | Lease | J.C. Penney Corporation, Inc. | ||||||
02100 |
MAIN STORE | 1111 JACKSON AVE W | OXFORD | MS | Lease | J.C. Penney Corporation, Inc. | ||||||
02101 |
MAIN STORE | 1300 ULSTER AVE MALL STE 210 | KINGSTON | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02102 |
MAIN STORE | 1695 ANNAPOLIS MALL | ANNAPOLIS | MD | Fee | J.C. Penney Properties, Inc. | ||||||
02102 |
MAIN STORE | 1695 ANNAPOLIS MALL | ANNAPOLIS | MD | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02103 |
MAIN STORE | 455 S BIBB ST | EAGLE PASS | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
02104 |
MAIN STORE | 7925 FM 1960 RD STE 7000 | HOUSTON | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02104 |
MAIN STORE | 7925 FM 1960 RD STE 7000 | HOUSTON | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02105 |
MAIN STORE | 6834 WESLEY ST STE C | GREENVILLE | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
02108 |
MAIN STORE | 2000 SAN JACINTO MALL | BAYTOWN | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02108 |
MAIN STORE | 2000 SAN JACINTO MALL | BAYTOWN | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02110 |
MAIN STORE | 2100 S W S YOUNG DR STE 2000 | KILLEEN | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02110 |
MAIN STORE | 2100 S W S YOUNG DR STE 2000 | KILLEEN | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02115 |
MAIN STORE | 2000 MARTIN LUTHER KING JR BLV | PANAMA CITY | FL | Fee | J.C. Penney Properties, Inc. | ||||||
02119 |
MAIN STORE | 922 RIVER FALLS ST | ANDALUSIA | AL | Lease | J.C. Penney Corporation, Inc. | ||||||
02121 |
MAIN STORE | 4125 W OWEN K GARRIOTT RD | ENID | OK | Lease | J.C. Penney Corporation, Inc. | ||||||
02122 |
MAIN STORE | 2500 W STATE ST STE 118 | ALLIANCE | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
02123 |
ADDITIONAL SPACE | 2950 E TEXAS AVE | BOSSIER CITY | LA | Lease | J.C. Penney Corporation, Inc. | ||||||
02123 |
MAIN STORE | 2950 E TEXAS AVE | BOSSIER CITY | LA | Fee | J.C. Penney Properties, Inc. | ||||||
02124 |
MAIN STORE | 3035 KNOXVILLE CENTER DR STE O | KNOXVILLE | TN | Lease | J.C. Penney Corporation, Inc. | ||||||
02130 |
MAIN STORE | 10177 N KINGS HWY | MYRTLE BEACH | SC | Lease | J.C. Penney Corporation, Inc. | ||||||
02131 |
MAIN STORE | 5901 UNIVERSITY DR | HUNTSVILLE | AL | Lease | J.C. Penney Corporation, Inc. | ||||||
02132 |
MAIN STORE | 2076 9TH ST N | NAPLES | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
02135 |
MAIN STORE | 4501 N MAIN ST STE 9 | ROSWELL | NM | Lease | J.C. Penney Corporation, Inc. | ||||||
02136 |
MAIN STORE | 1600 11TH AVE | HELENA | MT | Lease | J.C. Penney Corporation, Inc. | ||||||
02137 |
MAIN STORE | 3100 HWY 365 | PORT ARTHUR | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
02138 |
MAIN STORE | 850 HARTFORD PIKE UNIT C | WATERFORD | CT | Lease | J.C. Penney Corporation, Inc. | ||||||
02139 |
MAIN STORE | 9303 W ATLANTIC BLVD | CORAL SPRINGS | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
02140 |
MAIN STORE | 2006 S EXPY 83 | HARLINGEN | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02140 |
MAIN STORE | 2006 S EXPY 83 | HARLINGEN | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02144 |
MAIN STORE | 555 JOHN F KENNEDY RD | DUBUQUE | IA | Lease | J.C. Penney Corporation, Inc. | ||||||
02147 |
MAIN STORE | 1605 SOUTH FIRST STREET | WILLMAR | MN | Lease | J.C. Penney Corporation, Inc. | ||||||
02152 |
MAIN STORE | 2390 CHESTNUT ST | ORANGEBURG | SC | Lease | J.C. Penney Corporation, Inc. | ||||||
02153 |
MAIN STORE | 1041 SPRING LANE | SANFORD | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
02157 |
MAIN STORE | 100 S FEDERAL AVE STE 118A | MASON CITY | IA | Lease | J.C. Penney Corporation, Inc. | ||||||
02158 |
MAIN STORE | 810 S CASS ST | CORINTH | MS | Lease | J.C. Penney Corporation, Inc. | ||||||
02159 |
MAIN STORE | 801 N CONGRESS AVE | BOYNTON BEACH | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
02160 |
MAIN STORE | 5453 W 88TH AVE | WESTMINSTER | CO | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02160 |
MAIN STORE | 5453 W 88TH AVE | WESTMINSTER | CO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02163 |
MAIN STORE | 200 RIVER OAKS DR | CALUMET CITY | IL | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02163 |
MAIN STORE | 200 RIVER OAKS DR | CALUMET CITY | IL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02165 |
MAIN STORE | 120 N DARTMOUTH MALL | NORTH DARTMOUTH | MA | Lease | J.C. Penney Corporation, Inc. | ||||||
02166 |
MAIN STORE | 1810 FORT JONES RD | YREKA | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
02168 |
MAIN STORE | 1200 E COUNTY LINE RD | RIDGELAND | MS | Fee | J.C. Penney Properties, Inc. | ||||||
02168 |
MAIN STORE | 1200 E COUNTY LINE RD | RIDGELAND | MS | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02169 |
MAIN STORE | 7701 W I-40 STE 600 | AMARILLO | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02169 |
MAIN STORE | 7701 W I-40 STE 600 | AMARILLO | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02171 |
MAIN STORE | 290 E VIA RANCHO PKWY | ESCONDIDO | CA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02171 |
MAIN STORE | 290 E VIA RANCHO PKWY | ESCONDIDO | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02172 |
MAIN STORE | 1600 TOWN CENTER DR | MONTEBELLO | CA | Fee | J.C. Penney Properties, Inc. | ||||||
02172 |
MAIN STORE | 1600 TOWN CENTER DR | MONTEBELLO | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02173 |
MAIN STORE | ONE MALL BLVD | BRUNSWICK | GA | Fee | J.C. Penney Properties, Inc. | ||||||
02173 |
MAIN STORE | ONE MALL BLVD | BRUNSWICK | GA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02175 |
MAIN STORE | 4761 PECANLAND MALL DR | MONROE | LA | Fee | J.C. Penney Properties, Inc. | ||||||
02175 |
MAIN STORE | 4761 PECANLAND MALL DR | MONROE | LA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02176 |
MAIN STORE | 101 MANHATTAN CTR | MANHATTAN | KS | Lease | J.C. Penney Corporation, Inc. | ||||||
02177 |
MAIN STORE | 4832 VALLEY VIEW BLVD NW | ROANOKE | VA | Fee | J.C. Penney Properties, Inc. |
02177 |
MAIN STORE | 4832 VALLEY VIEW BLVD NW | ROANOKE | VA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02178 |
MAIN STORE | 8106 N NAVARRO ST | VICTORIA | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02178 |
MAIN STORE | 8106 N NAVARRO ST | VICTORIA | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02183 |
MAIN STORE | 12335 JAMES ST | HOLLAND | MI | Lease | J.C. Penney Corporation, Inc. | ||||||
02184 |
MAIN STORE | 1500 HARVEY RD | COLLEGE STATION | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02184 |
MAIN STORE | 1500 HARVEY RD | COLLEGE STATION | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02185 |
MAIN STORE | 4301 W WISCONSIN AVE | APPLETON | WI | Fee | J.C. Penney Properties, Inc. | ||||||
02185 |
MAIN STORE | 4301 W WISCONSIN AVE | APPLETON | WI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02188 |
MAIN STORE | 60 ELM PLAZA | WATERVILLE | ME | Lease | J.C. Penney Corporation, Inc. | ||||||
02189 |
MAIN STORE | 300 A AVE W | OSKALOOSA | IA | Lease | J.C. Penney Corporation, Inc. | ||||||
02190 |
MAIN STORE | 224 N LOGAN BLVD | BURNHAM | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
02192 |
MAIN STORE | 1500 E 11TH ST STE 1000 | HUTCHINSON | KS | Lease | J.C. Penney Corporation, Inc. | ||||||
02196 |
MAIN STORE | 201 S WASHINGTON ST | OWOSSO | MI | Lease | J.C. Penney Corporation, Inc. | ||||||
02197 |
MAIN STORE | 2302 E KANSAS AVE | GARDEN CITY | KS | Lease | J.C. Penney Corporation, Inc. | ||||||
02198 |
MAIN STORE | 2206 S BALTIMORE ST | KIRKSVILLE | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
02203 |
MAIN STORE | 1700 NORMAN DR | VALDOSTA | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
02204 |
MAIN STORE | 1704 N DIXIE HWY | ELIZABETHTOWN | KY | Lease | J.C. Penney Corporation, Inc. | ||||||
02207 |
MAIN STORE | 2813 N PRINCE ST | CLOVIS | NM | Lease | J.C. Penney Corporation, Inc. | ||||||
02209 |
MAIN STORE | 2501 MING AVE | BAKERSFIELD | CA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02209 |
MAIN STORE | 2501 MING AVE | BAKERSFIELD | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02210 |
MAIN STORE | 1600 INDUSTRIAL RD | EMPORIA | KS | Lease | J.C. Penney Corporation, Inc. | ||||||
02211 |
MAIN STORE | 2350 SE WASHINGTON BLVD | BARTLESVILLE | OK | Lease | J.C. Penney Corporation, Inc. | ||||||
02213 |
MAIN STORE | 301 N POPLAR | SEARCY | AR | Lease | J.C. Penney Corporation, Inc. | ||||||
02217 |
MAIN STORE | 3140 VIRGINIA AVE | CONNERSVILLE | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
02218 |
MAIN STORE | 2300 RIVERCHASE GALLERIA | HOOVER | AL | Fee | J.C. Penney Properties, Inc. | ||||||
02218 |
MAIN STORE | 2300 RIVERCHASE GALLERIA | HOOVER | AL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02219 |
MAIN STORE | 150 NORTHSHORE BLVD | SLIDELL | LA | Lease | J.C. Penney Corporation, Inc. | ||||||
02220 |
MAIN STORE | 2700 LAKE RD | DYERSBURG | TN | Lease | J.C. Penney Corporation, Inc. | ||||||
02223 |
MAIN STORE | 1801 N MAIN ST STE 14 | MITCHELL | SD | Lease | J.C. Penney Corporation, Inc. | ||||||
02224 |
MAIN STORE | 2 FINANCIAL PLAZA STE 100 | HUNTSVILLE | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
02225 |
MAIN STORE | 1500 N CLINTON ST | DEFIANCE | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
02229 |
MAIN STORE | PO BOX 29526 | SANTA FE | NM | Fee | J.C. Penney Properties, Inc. | ||||||
02229 |
MAIN STORE | PO BOX 29526 | SANTA FE | NM | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02231 |
MAIN STORE | 311 JACKSONVILLE MALL | JACKSONVILLE | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
02232 |
MAIN STORE | 5065 MAIN ST | TRUMBULL | CT | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02232 |
MAIN STORE | 5065 MAIN ST | TRUMBULL | CT | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02237 |
MAIN STORE | 6931 S MEMORIAL DR | TULSA | OK | Fee | J.C. Penney Properties, Inc. | ||||||
02238 |
MAIN STORE | 1513 N KANSAS AVE | LIBERAL | KS | Lease | J.C. Penney Corporation, Inc. | ||||||
02239 |
MAIN STORE | 2259 S 9TH ST | SALINA | KS | Lease | J.C. Penney Corporation, Inc. | ||||||
02240 |
MAIN STORE | 201 SKYLINE DR STE 7 | CONWAY | AR | Lease | J.C. Penney Corporation, Inc. | ||||||
02241 |
MAIN STORE | 20 N MAIN ST | KALISPELL | MT | Lease | J.C. Penney Corporation, Inc. | ||||||
02243 |
MAIN STORE | 300 BONNER MALL WAY STE 60 | PONDERAY | ID | Lease | J.C. Penney Corporation, Inc. | ||||||
02244 |
MAIN STORE | 1019 S WASHINGTON ST | NORTH ATTLEBORO | MA | Lease | J.C. Penney Corporation, Inc. | ||||||
02246 |
MAIN STORE | 2001 SOUTH RD (RT 9) | POUGHKEEPSIE | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02247 |
HOME STORE | 292 DANIEL WEBSTER HWY | NASHUA | NH | Lease | J.C. Penney Corporation, Inc. | ||||||
02247 |
MAIN STORE | 310 DANIEL WEBSTER HWY STE 103 | NASHUA | NH | Fee | J.C. Penney Properties, Inc. | ||||||
02247 |
MAIN STORE | 310 DANIEL WEBSTER HWY STE 103 | NASHUA | NH | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02250 |
MAIN STORE | 50 FOX RUN RD STE 35 | NEWINGTON | NH | Fee | J.C. Penney Properties, Inc. | ||||||
02250 |
MAIN STORE | 50 FOX RUN RD STE 35 | NEWINGTON | NH | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02256 |
MAIN STORE | 7 BACKUS AVE | DANBURY | CT | Fee | J.C. Penney Properties, Inc. | ||||||
02256 |
MAIN STORE | 7 BACKUS AVE | DANBURY | CT | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02257 |
MAIN STORE | 2701 DAVID H MCLEOD BLVD | FLORENCE | SC | Lease | J.C. Penney Corporation, Inc. | ||||||
02258 |
MAIN STORE | 3450 WRIGHTSBORO RD | AUGUSTA | GA | Fee | J.C. Penney Properties, Inc. | ||||||
02258 |
MAIN STORE | 3450 WRIGHTSBORO RD | AUGUSTA | GA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02259 |
MAIN STORE | 1100 WESLEYAN BLVD | ROCKY MOUNT | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
02262 |
MAIN STORE | 301 N LINCOLN RD STE 100 | ESCANABA | MI | Lease | J.C. Penney Corporation, Inc. | ||||||
02263 |
MAIN STORE | 1006 ROSS PARK MALL DR | PITTSBURGH | PA | Fee | J.C. Penney Properties, Inc. | ||||||
02263 |
MAIN STORE | 1006 ROSS PARK MALL DR | PITTSBURGH | PA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02265 |
MAIN STORE | 2901 PINES MALL DR STE A | PINE BLUFF | AR | Fee | J.C. Penney Properties, Inc. | ||||||
02265 |
MAIN STORE | 2901 PINES MALL DR STE A | PINE BLUFF | AR | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02266 |
MAIN STORE | 2080 GREELEY MALL | GREELEY | CO | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02266 |
MAIN STORE | 2080 GREELEY MALL | GREELEY | CO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02270 |
MAIN STORE | 771 S 30TH ST | HEATH | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
02272 |
MAIN STORE | 160 TYLER RD | RED WING | MN | Lease | J.C. Penney Corporation, Inc. | ||||||
02274 |
MAIN STORE | 2801 GUTHRIE HWY STE 500 | CLARKSVILLE | TN | Lease | J.C. Penney Corporation, Inc. | ||||||
02275 |
MAIN STORE | 1615 POLE LINE RD E | TWIN FALLS | ID | Lease | J.C. Penney Corporation, Inc. | ||||||
02276 |
MAIN STORE | 1260 GIBSON RD | WOODLAND | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
02279 |
MAIN STORE | 4901 N KICKAPOO AVE STE 4000 | SHAWNEE | OK | Fee | J.C. Penney Properties, Inc. | ||||||
02279 |
MAIN STORE | 4901 N KICKAPOO AVE STE 4000 | SHAWNEE | OK | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02281 |
MAIN STORE | 1724 VETERANS BLVD | MCCOMB | MS | Lease | J.C. Penney Corporation, Inc. | ||||||
02282 |
MAIN STORE | 1600 RIVER VALLEY CIR N | LANCASTER | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
02284 |
MAIN STORE | 2301 W WORLEY | COLUMBIA | MO | Fee | J.C. Penney Properties, Inc. | ||||||
02284 |
MAIN STORE | 2301 W WORLEY | COLUMBIA | MO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02286 |
MAIN STORE | 21017 SALMON RUN MALL LOOP E | WATERTOWN | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02287 |
MAIN STORE | 4405 BLACK HORSE PIKE | MAYS LANDING | NJ | Fee | J.C. Penney Properties, Inc. | ||||||
02287 |
MAIN STORE | 4405 BLACK HORSE PIKE | MAYS LANDING | NJ | Lease (Intercompany) | J.C. Penney Corporation, Inc. |
02288 |
MAIN STORE | 501 N MAIN ST STE 118 | MUSKOGEE | OK | Lease | J.C. Penney Corporation, Inc. | ||||||
02290 |
HOME STORE | 6 SOUTHPARK MALL | COLONIAL HEIGHTS | VA | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02290 |
HOME STORE | 6 Southpark Cir | Colonial Heights | VA | Lease | J.C. Penney Corporation, Inc. | ||||||
02290 |
MAIN STORE | 6 SOUTHPARK MALL | COLONIAL HTS | VA | Fee | J.C. Penney Properties, Inc. | ||||||
02290 |
MAIN STORE | 6 SOUTHPARK MALL | COLONIAL HTS | VA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02294 |
MAIN STORE | 1480 CONCORD PKWY N | CONCORD | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
02296 |
MAIN STORE | 814 NC 24 27 BYP E | ALBEMARLE | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
02297 |
MAIN STORE | 10 MALL DR W | JERSEY CITY | NJ | Fee | J.C. Penney Properties, Inc. | ||||||
02297 |
MAIN STORE | 10 MALL DR W | JERSEY CITY | NJ | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02298 |
MAIN STORE | 311 THREE RIVERS DR | KELSO | WA | Lease | J.C. Penney Corporation, Inc. | ||||||
02300 |
MAIN STORE | 415 NEW RIVER RD | CHRISTIANSBURG | VA | Lease | J.C. Penney Corporation, Inc. | ||||||
02303 |
MAIN STORE | 1970 US HWY 70 SE | HICKORY | NC | Fee | J.C. Penney Properties, Inc. | ||||||
02303 |
MAIN STORE | 1970 US HWY 70 SE | HICKORY | NC | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02304 |
MAIN STORE | 1821 SW WANAMAKER RD | TOPEKA | KS | Fee | J.C. Penney Properties, Inc. | ||||||
02304 |
MAIN STORE | 1821 SW WANAMAKER RD | TOPEKA | KS | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02309 |
MAIN STORE | 3382 NW FEDERAL HWY | JENSEN BEACH | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
02311 |
MAIN STORE | 1600 N Jackson St | Tullahoma | TN | Lease | J.C. Penney Corporation, Inc. | ||||||
02312 |
MAIN STORE | 300 N MILWAUKEE ST | BOISE | ID | Fee | J.C. Penney Properties, Inc. | ||||||
02312 |
MAIN STORE | 300 N MILWAUKEE ST | BOISE | ID | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02313 |
MAIN STORE | 60 SMITHFIELD BLVD | PLATTSBURGH | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02316 |
MAIN STORE | 2601 DAWSON RD | ALBANY | GA | Fee | J.C. Penney Properties, Inc. | ||||||
02316 |
MAIN STORE | 2601 DAWSON RD | ALBANY | GA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02317 |
MAIN STORE | 400 MILL AVE SE STE C2 | NEW PHILADELPHIA | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
02320 |
MAIN STORE | 8501 W BOWLES AVE | LITTLETON | CO | Fee | J.C. Penney Properties, Inc. | ||||||
02322 |
MAIN STORE | 1858 Service Dr | Winona | MN | Sale Leaseback | J.C. Penney Corporation, Inc. | ||||||
02322 |
MAIN STORE | 1858 Service Dr | Winona | MN | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
02322 |
MAIN STORE | 1858 Service Dr | Winona | MN | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
02324 |
MAIN STORE | 435 E CLIFTY DR | MADISON | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
02326 |
MAIN STORE | 732 FREEMAN LANE | GRASS VALLEY | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
02327 |
MAIN STORE | 10 BELLIS FAIR PKWY | BELLINGHAM | WA | Fee | J.C. Penney Properties, Inc. | ||||||
02327 |
MAIN STORE | 10 BELLIS FAIR PKWY | BELLINGHAM | WA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02331 |
MAIN STORE | 1800 TIFFIN AVE | FINDLAY | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
02332 |
MAIN STORE | 655 CHESHIRE RD | LANESBOROUGH | MA | Lease | J.C. Penney Corporation, Inc. | ||||||
02333 |
MAIN STORE | 225 COLUMBIA MALL DR | BLOOMSBURG | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
02338 |
MAIN STORE | 6000 TOWN EAST MALL | MESQUITE | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02339 |
MAIN STORE | 1015 W WILL ROGERS | CLAREMORE | OK | Lease | J.C. Penney Corporation, Inc. | ||||||
02341 |
MAIN STORE | 63455 N HWY 97 STE 93 | BEND | OR | Lease | J.C. Penney Corporation, Inc. | ||||||
02342 |
MAIN STORE | 282 BERLIN MALL RD UNIT 19 | BERLIN | VT | Lease | J.C. Penney Corporation, Inc. | ||||||
02343 |
MAIN STORE | 987 E ASH ST | PIQUA | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
02344 |
MAIN STORE | 1007 N PINE ST | DERIDDER | LA | Lease | J.C. Penney Corporation, Inc. | ||||||
02345 |
MAIN STORE | 480 MAYBERRY MALL | MOUNT AIRY | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
02346 |
MAIN STORE | 3 S TUNNEL RD | ASHEVILLE | NC | Fee | J.C. Penney Properties, Inc. | ||||||
02346 |
MAIN STORE | 3 S TUNNEL RD | ASHEVILLE | NC | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02347 |
MAIN STORE | 1441 TAMIAMI TRAIL | PORT CHARLOTTE | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
02348 |
MAIN STORE | 2252 25TH ST | COLUMBUS | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
02349 |
MAIN STORE | 3300 S AIRPORT RD W | TRAVERSE CITY | MI | Fee | J.C. Penney Properties, Inc. | ||||||
02349 |
MAIN STORE | 3300 S AIRPORT RD W | TRAVERSE CITY | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02353 |
MAIN STORE | PO BOX 1070 | SILVERDALE | WA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02353 |
MAIN STORE | PO BOX 1070 | SILVERDALE | WA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02354 |
MAIN STORE |
2010 YAKIMA VALLEY HWY J-1 |
SUNNYSIDE | WA | Lease | J.C. Penney Corporation, Inc. | ||||||
02356 |
MAIN STORE | 1414 SOUTHERN HILLS CTR | WEST PLAINS | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
02357 |
MAIN STORE | 1350 PILGRIM LN | PLYMOUTH | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
02358 |
MAIN STORE | 1810 S WEST AVE | FREEPORT | IL | Lease | J.C. Penney Corporation, Inc. | ||||||
02364 |
MAIN STORE | 3 WALDEN GALLERIA DR | CHEEKTOWAGA | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02367 |
MAIN STORE | 6000 MAHONING AVE | YOUNGSTOWN | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
02368 |
MAIN STORE | 200 W HANLEY AVE | COEUR D ALENE | ID | Lease | J.C. Penney Corporation, Inc. | ||||||
02369 |
MAIN STORE | 3501 W MAIN ST | NORMAN | OK | Lease | J.C. Penney Corporation, Inc. | ||||||
02370 |
MAIN STORE | 4200 PORTSMOUTH BLVD | CHESAPEAKE | VA | Lease | J.C. Penney Corporation, Inc. | ||||||
02372 |
MAIN STORE | 328 ROBERT SMALLS PKWY | BEAUFORT | SC | Lease | J.C. Penney Corporation, Inc. | ||||||
02373 |
MAIN STORE | 1752 W REELFOOT AVE | UNION CITY | TN | Lease | J.C. Penney Corporation, Inc. | ||||||
02374 |
MAIN STORE | 1750 E RED CLIFFS DR | SAINT GEORGE | UT | Lease | J.C. Penney Corporation, Inc. | ||||||
02375 |
MAIN STORE | 150 RICHLAND SQ | RICHLAND CENTER | WI | Lease | J.C. Penney Corporation, Inc. | ||||||
02376 |
MAIN STORE | 2 STRATFORD SQ MALL | BLOOMINGDALE | IL | Lease | J.C. Penney Corporation, Inc. | ||||||
02381 |
MAIN STORE | 300 GREENVILLE W DR STE 1 | GREENVILLE | MI | Lease | J.C. Penney Corporation, Inc. | ||||||
02382 |
MAIN STORE | 1550 N MITCHELL ST | CADILLAC | MI | Lease | J.C. Penney Corporation, Inc. | ||||||
02385 |
MAIN STORE | 1199 COLUSA AVE | YUBA CITY | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
02386 |
MAIN STORE | 9560 MALL RD | MORGANTOWN | WV | Lease | J.C. Penney Corporation, Inc. | ||||||
02388 |
MAIN STORE | 1131 W RANCHO VISTA BLVD | PALMDALE | CA | Fee | J.C. Penney Properties, Inc. | ||||||
02388 |
MAIN STORE | 1131 W RANCHO VISTA BLVD | PALMDALE | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02390 |
MAIN STORE | 1353 TUSCULUM BLVD | GREENEVILLE | TN | Lease | J.C. Penney Corporation, Inc. | ||||||
02391 |
MAIN STORE | 300 CASCADE MALL DR | BURLINGTON | WA | Lease | J.C. Penney Corporation, Inc. | ||||||
02392 |
MAIN STORE | 1600 N STATE RT 50 | BOURBONNAIS | IL | Fee | J.C. Penney Properties, Inc. | ||||||
02392 |
MAIN STORE | 1600 N STATE RT 50 | BOURBONNAIS | IL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02396 |
MAIN STORE | 3225 STATE RT 364 STE 165 | CANANDAIGUA | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02398 |
MAIN STORE | 900 COMMONS DR STE 900 | DOTHAN | AL | Fee | J.C. Penney Properties, Inc. | ||||||
02398 |
MAIN STORE | 900 COMMONS DR STE 900 | DOTHAN | AL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02399 |
MAIN STORE | 975 AVE HOSTOS STE 320 | MAYAGUEZ | Puerto Rico | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02400 |
MAIN STORE | 1001 BARNES CROSSING RD STE300 | TUPELO | MS | Lease | J.C. Penney Corporation, Inc. |
02410 |
MAIN STORE | 2401 S STEMMONS FWY STE 4000 | LEWISVILLE | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02410 |
MAIN STORE | 2401 S STEMMONS FWY STE 4000 | LEWISVILLE | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02411 |
MAIN STORE | 2350 MIRACLE MILE RD #270 | BULLHEAD CITY | AZ | Lease | J.C. Penney Corporation, Inc. | ||||||
02414 |
MAIN STORE | 355 FLETCHER PKWY | EL CAJON | CA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02414 |
MAIN STORE | 355 FLETCHER PKWY | EL CAJON | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02415 |
MAIN STORE | 15083 US 19 S | THOMASVILLE | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
02416 |
MAIN STORE | 270 LOUDON RD | CONCORD | NH | Lease | J.C. Penney Corporation, Inc. | ||||||
02417 |
MAIN STORE | 1105 WALNUT ST | CARY | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
02418 |
MAIN STORE | 3800 US HWY 98 N STE 200 | LAKELAND | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
02419 |
HOME STORE | 6555 E. SOUTHERN AVE., STE 200 | MESA | AZ | Lease | J.C. Penney Corporation, Inc. | ||||||
02419 |
MAIN STORE | 6525 E SOUTHERN AVE | MESA | AZ | Fee | J.C. Penney Properties, Inc. | ||||||
02423 |
MAIN STORE | 780 NW GARDEN VLY BLVD STE 160 | ROSEBURG | OR | Lease | J.C. Penney Corporation, Inc. | ||||||
02425 |
MAIN STORE | 2900 W WASHINGTON ST STE 92 | STEPHENVILLE | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
02427 |
MAIN STORE | 278 BLACK GOLD BLVD | HAZARD | KY | Lease | J.C. Penney Corporation, Inc. | ||||||
02428 |
MAIN STORE | 4400 24TH AVE | FORT GRATIOT | MI | Fee | J.C. Penney Properties, Inc. | ||||||
02428 |
MAIN STORE | 4400 24TH AVE | FORT GRATIOT | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02430 |
MAIN STORE | 10308 SOUTHSIDE BLVD | JACKSONVILLE | FL | Fee | J.C. Penney Properties, Inc. | ||||||
02431 |
MAIN STORE | 1100-B HWY 260 | COTTONWOOD | AZ | Lease | J.C. Penney Corporation, Inc. | ||||||
02433 |
MAIN STORE | 11017 CAROLINA PLACE PKWY | PINEVILLE | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
02434 |
HOME STORE | 6600 MENAUL BLVD., N.E. | ALBUQUERQUE | NM | Lease | J.C. Penney Corporation, Inc. | ||||||
02434 |
MAIN STORE | 6600 MENAUL BLVD NE STE 600 | ALBUQUERQUE | NM | Fee | J.C. Penney Properties, Inc. | ||||||
02436 |
MAIN STORE | 475 S ST LOUIS ST | BATESVILLE | AR | Lease | J.C. Penney Corporation, Inc. | ||||||
02438 |
MAIN STORE | 1110 N QUINCY AVE | OTTUMWA | IA | Lease | J.C. Penney Corporation, Inc. | ||||||
02439 |
MAIN STORE | 1000 MALL RUN RD | UNIONTOWN | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
02440 |
MAIN STORE | 300 LYCOMING MALL CIR STE 2043 | PENNSDALE | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
02442 |
MAIN STORE | 4481 S WHITE MOUNTAIN RD STE 5 | SHOW LOW | AZ | Lease | J.C. Penney Corporation, Inc. | ||||||
02443 |
MAIN STORE | PO BOX 6110 | WALDORF | MD | Fee | J.C. Penney Properties, Inc. | ||||||
02443 |
MAIN STORE | PO BOX 6110 | WALDORF | MD | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02445 |
MAIN STORE | 6840 EASTMAN AVE | MIDLAND | MI | Fee | J.C. Penney Properties, Inc. | ||||||
02445 |
MAIN STORE | 6840 EASTMAN AVE | MIDLAND | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02447 |
MAIN STORE | 864 HWY 12 W | STARKVILLE | MS | Lease | J.C. Penney Corporation, Inc. | ||||||
02449 |
MAIN STORE | 399 CAMPBELLSVILLE BYPASS | CAMPBELLSVILLE | KY | Lease | J.C. Penney Corporation, Inc. | ||||||
02452 |
MAIN STORE | 300 MOUNT BERRY SQ NE | ROME | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
02453 |
MAIN STORE | 6 MCKINLEY MALL | BLASDELL | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02456 |
MAIN STORE | 11401 PINES BLVD | PEMBROKE PINES | FL | Fee | J.C. Penney Properties, Inc. | ||||||
02457 |
MAIN STORE | 9559 DESTINY USA DR | SYRACUSE | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02458 |
MAIN STORE | 1601 S BROAD | SCOTTSBORO | AL | Lease | J.C. Penney Corporation, Inc. | ||||||
02460 |
MAIN STORE | STATE RT 37-ST LAWRENCE CENTRE | MASSENA | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02463 |
MAIN STORE | 140 MARSH AVE | STATEN ISLAND | NY | Fee | J.C. Penney Properties, Inc. | ||||||
02464 |
MAIN STORE | 1201 BOSTON POST RD | MILFORD | CT | Lease | J.C. Penney Corporation, Inc. | ||||||
02467 |
MAIN STORE | 1695 ARDEN WAY | SACRAMENTO | CA | Fee | J.C. Penney Properties, Inc. | ||||||
02467 |
MAIN STORE | 1695 ARDEN WAY | SACRAMENTO | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02470 |
MAIN STORE | 413 MARKET SQ DR | MAYSVILLE | KY | Lease | J.C. Penney Corporation, Inc. | ||||||
02472 |
MAIN STORE | 839 3RD AVE | JASPER | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
02474 |
MAIN STORE | 510 GATE CITY HWY SPACE 360 | BRISTOL | VA | Lease | J.C. Penney Corporation, Inc. | ||||||
02477 |
MAIN STORE | 3710 HWY 9 | FREEHOLD | NJ | Fee | J.C. Penney Properties, Inc. | ||||||
02477 |
MAIN STORE | 3710 HWY 9 | FREEHOLD | NJ | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02478 |
MAIN STORE | 1603 NW 107TH AVE | MIAMI | FL | Fee | J.C. Penney Properties, Inc. | ||||||
02480 |
MAIN STORE | 22450 TOWN CIR | MORENO VALLEY | CA | Fee | J.C. Penney Properties, Inc. | ||||||
02480 |
MAIN STORE | 22450 TOWN CIR | MORENO VALLEY | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02482 |
MAIN STORE | 5725 JOHNSTON ST | LAFAYETTE | LA | Fee | J.C. Penney Properties, Inc. | ||||||
02482 |
MAIN STORE | 5725 JOHNSTON ST | LAFAYETTE | LA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02484 |
MAIN STORE | 4730 N DIVISION ST | SPOKANE | WA | Lease | J.C. Penney Corporation, Inc. | ||||||
02485 |
MAIN STORE | 560 GALLERIA DR | JOHNSTOWN | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
02486 |
MAIN STORE | 5580 GOODS LN STE 2031 | ALTOONA | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
02488 |
MAIN STORE | ONE N GALLERIA DR | MIDDLETOWN | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02490 |
MAIN STORE | 231 GREECE RIDGE CTR DR | GREECE | NY | Fee | J.C. Penney Properties, Inc. | ||||||
02491 |
MAIN STORE | 6 GALLERIA MALL DR | TAUNTON | MA | Lease | J.C. Penney Corporation, Inc. | ||||||
02494 |
MAIN STORE | 200 PAUL HUFF PKWY NW STE 44 | CLEVELAND | TN | Lease | J.C. Penney Corporation, Inc. | ||||||
02495 |
MAIN STORE | 1850 ADAMS ST STE 2 | MANKATO | MN | Fee | J.C. Penney Properties, Inc. | ||||||
02495 |
MAIN STORE | 1850 ADAMS ST STE 2 | MANKATO | MN | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02496 |
MAIN STORE | 500 NEWPARK MALL | NEWARK | CA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02496 |
MAIN STORE | 500 NEWPARK MALL | NEWARK | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02498 |
MAIN STORE | 2727 FAIRFIELD COMMONS BLVD | DAYTON | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
02503 |
MAIN STORE | 1201 E MAIN | CARBONDALE | IL | Lease | J.C. Penney Corporation, Inc. | ||||||
02505 |
LAND | 1201 S DIRKSEN PKWY | SPRINGFIELD | IL | Sublease to Third party | J.C. Penney Properties, Inc. | ||||||
02505 |
MAIN STORE | 1201 S DIRKSEN PKWY | SPRINGFIELD | IL | Fee | J.C. Penney Properties, Inc. | ||||||
02505 |
MAIN STORE | 1201 S DIRKSEN PKWY | SPRINGFIELD | IL | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
02506 |
MAIN STORE | 2900 E LINCOLN WAY | STERLING | IL | Lease | J.C. Penney Corporation, Inc. | ||||||
02506 |
TIRE/BATTERY/AUTO | 2900 E LINCOLN WAY | STERLING | IL | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
02507 |
MAIN STORE | 312 W PRIEN LAKE RD | LAKE CHARLES | LA | Fee | J.C. Penney Properties, Inc. | ||||||
02507 |
MAIN STORE | 312 W PRIEN LAKE RD | LAKE CHARLES | LA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02507 |
MAIN STORE | 312 W PRIEN LAKE RD | LAKE CHARLES | LA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02507 |
MAIN STORE | 312 W PRIEN LAKE RD | LAKE CHARLES | LA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
02521 |
MAIN STORE | 9100 N SKYVIEW AVE | KANSAS CITY | MO | Fee | J.C. Penney Properties, Inc. | ||||||
02521 |
MAIN STORE | 9100 N SKYVIEW AVE | KANSAS CITY | MO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02522 |
MAIN STORE | 9056 N 121ST EAST AVE | OWASSO | OK | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02522 |
MAIN STORE | 9056 N 121ST EAST AVE | OWASSO | OK | Lease (Intercompany) | J.C. Penney Corporation, Inc. |
02523 |
MAIN STORE | 215 CREEKSIDE WAY | NEW BRAUNFELS | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02523 |
MAIN STORE | 215 CREEKSIDE WAY | NEW BRAUNFELS | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02524 |
MAIN STORE | 2421 CRANBERRY HWY STE 290 | WAREHAM | MA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02524 |
MAIN STORE | 2421 CRANBERRY HWY STE 290 | WAREHAM | MA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02526 |
MAIN STORE | 7352 GLORY RD | BAXTER | MN | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02526 |
MAIN STORE | 7352 GLORY RD | BAXTER | MN | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02527 |
MAIN STORE | 500 WINCHESTER AVE | ASHLAND | KY | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02527 |
MAIN STORE | 500 WINCHESTER AVE | ASHLAND | KY | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02529 |
MAIN STORE | 11534 PARKSIDE DR | FARRAGUT | TN | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02529 |
MAIN STORE | 11534 PARKSIDE DR | FARRAGUT | TN | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02530 |
MAIN STORE | 1301 CENTER RD | AVON | OH | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02530 |
MAIN STORE | 1301 CENTER RD | AVON | OH | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02534 |
MAIN STORE | 501 C M FAGAN DR | HAMMOND | LA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02534 |
MAIN STORE | 501 C M FAGAN DR | HAMMOND | LA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02613 |
MAIN STORE | 1932 E 20TH ST | CHICO | CA | Fee | J.C. Penney Properties, Inc. | ||||||
02613 |
MAIN STORE | 1932 E 20TH ST | CHICO | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02614 |
MAIN STORE | 1710 S MAIN ST | BELLEFONTAINE | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
02616 |
MAIN STORE | 2940 WATSON BLVD | CENTERVILLE | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
02617 |
MAIN STORE | 7600 KINGSTON PIKE STE 900 | KNOXVILLE | TN | Fee | J.C. Penney Properties, Inc. | ||||||
02617 |
MAIN STORE | 7600 KINGSTON PIKE STE 900 | KNOXVILLE | TN | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02619 |
MAIN STORE | 10101 BROOK RD STE 800 | GLEN ALLEN | VA | Fee | J.C. Penney Properties, Inc. | ||||||
02619 |
MAIN STORE | 10101 BROOK RD STE 800 | GLEN ALLEN | VA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02620 |
MAIN STORE | 515 S WESTWOOD | POPLAR BLUFF | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
02622 |
MAIN STORE | 2301 DEL PRADO BLVD STE 700 | CAPE CORAL | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
02624 |
MAIN STORE | 3401 NICHOLASVILLE RD STE 116 | LEXINGTON | KY | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02625 |
MAIN STORE | 4370 I-75 BUSINESS SPUR | SAULT STE MARIE | MI | Lease | J.C. Penney Corporation, Inc. | ||||||
02626 |
MAIN STORE | 1312 W SUNSET RD | HENDERSON | NV | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02626 |
MAIN STORE | 1312 W SUNSET RD | HENDERSON | NV | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02629 |
MAIN STORE | 1050 S BISHOP AVE | ROLLA | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
02631 |
MAIN STORE | 58000 TWENTY-NINE PALMS HWY | YUCCA VALLEY | CA | Fee | J.C. Penney Properties, Inc. | ||||||
02631 |
MAIN STORE | 58000 TWENTY-NINE PALMS HWY | YUCCA VALLEY | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02632 |
MAIN STORE | 4 MID RIVERS MALL | SAINT PETERS | MO | Fee | J.C. Penney Properties, Inc. | ||||||
02632 |
MAIN STORE | 4 MID RIVERS MALL | SAINT PETERS | MO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02633 |
MAIN STORE | 3507 MANCHESTER EXPWY STE E | COLUMBUS | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
02647 |
MAIN STORE | 210 ANDOVER ST | PEABODY | MA | Fee | J.C. Penney Properties, Inc. | ||||||
02647 |
MAIN STORE | 210 ANDOVER ST | PEABODY | MA | Lease | J.C. Penney Corporation, Inc. | ||||||
02648 |
MAIN STORE | 400 BREA MALL | BREA | CA | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02649 |
HOME STORE | 510 WESTMINSTER MALL | WESTMINSTER | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
02649 |
MAIN STORE | 400 WESTMINSTER MALL | WESTMINSTER | CA | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02650 |
MAIN STORE | 1050 LAYTON HILLS MALL | LAYTON | UT | Lease | J.C. Penney Corporation, Inc. | ||||||
02651 |
MAIN STORE | 68 GATEWAY MALL | LINCOLN | NE | Fee | J.C. Penney Properties, Inc. | ||||||
02651 |
MAIN STORE | 68 GATEWAY MALL | LINCOLN | NE | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02653 |
MAIN STORE | 4770 GOLF RD | EAU CLAIRE | WI | Fee | J.C. Penney Properties, Inc. | ||||||
02653 |
MAIN STORE | 4770 GOLF RD | EAU CLAIRE | WI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02654 |
MAIN STORE | 100 COMMERCIAL RD UNIT 180 | LEOMINSTER | MA | Lease | J.C. Penney Corporation, Inc. | ||||||
02655 |
MAIN STORE | 90 W 5TH ST | DOUGLAS | AZ | Fee | J.C. Penney Properties, Inc. | ||||||
02657 |
MAIN STORE | 939 NE D ST | GRANTS PASS | OR | Lease | J.C. Penney Corporation, Inc. | ||||||
02660 |
MAIN STORE | 20505 S DIXIE HWY | MIAMI | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
02661 |
MAIN STORE | 4 Hawthorn Center | Vernon Hills | IL | Fee | J.C. Penney Properties, Inc. | ||||||
02661 |
MAIN STORE | 4 Hawthorn Center | Vernon Hills | IL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02662 |
MAIN STORE | 578 AVIATION RD STE 3 | QUEENSBURY | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02663 |
MAIN STORE | 377 S MILLS RD | VENTURA | CA | Fee | J.C. Penney Properties, Inc. | ||||||
02663 |
MAIN STORE | 377 S MILLS RD | VENTURA | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02671 |
MAIN STORE | 2180 NE HWY 99 W | MCMINNVILLE | OR | Lease | J.C. Penney Corporation, Inc. | ||||||
02672 |
MAIN STORE | 380 N COOPER DR | HENDERSON | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
02676 |
MAIN STORE | 1215 S MAIN ST | SIKESTON | MO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02677 |
MAIN STORE | 9301 TAMPA AVE | NORTHRIDGE | CA | Fee | J.C. Penney Properties, Inc. | ||||||
02678 |
MAIN STORE | 658 RICHLAND MALL | MANSFIELD | OH | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02678 |
MAIN STORE | 658 RICHLAND MALL | MANSFIELD | OH | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02679 |
MAIN STORE | 525 UNION ST | WATERBURY | CT | Lease | J.C. Penney Corporation, Inc. | ||||||
02682 |
MAIN STORE | 1901 NW EXPWY STE 1200 | OKLAHOMA CITY | OK | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02682 |
MAIN STORE | 1901 NW EXPWY STE 1200 | OKLAHOMA CITY | OK | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02683 |
MAIN STORE | 17177 ROYALTON RD BOX 3 | STRONGSVILLE | OH | Fee | J.C. Penney Properties, Inc. | ||||||
02683 |
MAIN STORE | 17177 ROYALTON RD BOX 3 | STRONGSVILLE | OH | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02685 |
MAIN STORE | 3851 S COOPER ST | ARLINGTON | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02685 |
MAIN STORE | 3851 S COOPER ST | ARLINGTON | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02687 |
MAIN STORE | 651 W WASHINGTON | SEQUIM | WA | Lease | J.C. Penney Corporation, Inc. | ||||||
02689 |
MAIN STORE | 2700 MIAMISBURG-CENTERVILLE RD | CENTERVILLE | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
02690 |
MAIN STORE | 1000 TURTLE CREEK DR | HATTIESBURG | MS | Fee | J.C. Penney Properties, Inc. | ||||||
02690 |
MAIN STORE | 1000 TURTLE CREEK DR | HATTIESBURG | MS | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02692 |
MAIN STORE | 2422 W KETTLEMAN LANE | LODI | CA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02692 |
MAIN STORE | 2422 W KETTLEMAN LANE | LODI | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02693 |
MAIN STORE | 3127 STOCKTON HILL RD | KINGMAN | AZ | Lease | J.C. Penney Corporation, Inc. | ||||||
02695 |
MAIN STORE | 16280 DRESDEN AVE SPACE M | E LIVERPOOL | OH | Lease | J.C. Penney Corporation, Inc. |
02696 |
MAIN STORE | 11200 LAKELINE MALL DR | CEDAR PARK | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02696 |
MAIN STORE | 11200 LAKELINE MALL DR | CEDAR PARK | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02697 |
MAIN STORE | 16529 SOUTHWEST FRWY | SUGARLAND | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02697 |
MAIN STORE | 16529 SOUTHWEST FRWY | SUGARLAND | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02698 |
MAIN STORE | 3100 NAGLEE RD | TRACY | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
02700 |
MAIN STORE | 5083 TUTTLE CROSSING BLVD | DUBLIN | OH | Fee | J.C. Penney Properties, Inc. | ||||||
02700 |
MAIN STORE | 5083 TUTTLE CROSSING BLVD | DUBLIN | OH | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02702 |
MAIN STORE | 197 WESTBANK EXPY STE 2 | GRETNA | LA | Fee | J.C. Penney Properties, Inc. | ||||||
02703 |
MAIN STORE | 2756 N GERMANTOWN PKWY | MEMPHIS | TN | Fee | J.C. Penney Properties, Inc. | ||||||
02703 |
MAIN STORE | 2756 N GERMANTOWN PKWY | MEMPHIS | TN | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02704 |
MAIN STORE | 10000 COORS BYPASS NW | ALBUQUERQUE | NM | Fee | J.C. Penney Properties, Inc. | ||||||
02704 |
MAIN STORE | 10000 COORS BYPASS NW | ALBUQUERQUE | NM | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02705 |
MAIN STORE | 501 EAGLE RIDGE DR | LAKE WALES | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
02706 |
MAIN STORE | 458 N VIRGINIA AVE | TIFTON | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
02707 |
MAIN STORE | 2175 S KOELLER ST | OSHKOSH | WI | Lease | J.C. Penney Corporation, Inc. | ||||||
02708 |
MAIN STORE | 573 DONALD LYNCH BLVD | MARLBOROUGH | MA | Fee | J.C. Penney Properties, Inc. | ||||||
02708 |
MAIN STORE | 573 DONALD LYNCH BLVD | MARLBOROUGH | MA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02709 |
MAIN STORE | 4201 N SHILOH DR | FAYETTEVILLE | AR | Lease | J.C. Penney Corporation, Inc. | ||||||
02712 |
MAIN STORE | 3501 CAPITAL CITY MALL | CAMP HILL | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
02715 |
MAIN STORE | 14659 N US HWY 25 E STE 22 | CORBIN | KY | Lease | J.C. Penney Corporation, Inc. | ||||||
02716 |
MAIN STORE | 2215 MEMORIAL DR | WAYCROSS | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
02718 |
MAIN STORE | 100 BAYCHESTER AVE | BRONX | NY | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02718 |
MAIN STORE | 100 BAYCHESTER AVE | BRONX | NY | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
02719 |
MAIN STORE | 715 OMACHE DR | OMAK | WA | Lease | J.C. Penney Corporation, Inc. | ||||||
02720 |
MAIN STORE | 200 BEAVER VALLEY MALL | MONACA | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
02721 |
MAIN STORE | 3159 W BROADWAY | SEDALIA | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
02722 |
MAIN STORE | 9409 W COLONIAL DR | OCOEE | FL | Fee | J.C. Penney Properties, Inc. | ||||||
02725 |
MAIN STORE | 3350 E FLORAL AVE | SELMA | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
02726 |
MAIN STORE | 1481 WAGNER AVE | GREENVILLE | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
02728 |
MAIN STORE | 1111 E TYLER ST STE 127 | ATHENS | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
02729 |
MAIN STORE | 3311 IOWA ST | LAWRENCE | KS | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02729 |
MAIN STORE | 3311 IOWA ST | LAWRENCE | KS | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02730 |
MAIN STORE | 6200 20TH ST STE 700 | VERO BEACH | FL | Fee | J.C. Penney Properties, Inc. | ||||||
02731 |
MAIN STORE | 1409 EHRINGHAUS ST | ELIZABETH CITY | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
02732 |
MAIN STORE | 10300 LITTLE PATUXENT PKWY | COLUMBIA | MD | Fee | J.C. Penney Properties, Inc. | ||||||
02736 |
MAIN STORE | 3500 EAST WEST HWY STE 1000 | HYATTSVILLE | MD | Lease | J.C. Penney Corporation, Inc. | ||||||
02738 |
MAIN STORE | 11160 VEIRS MILL RD | WHEATON | MD | Lease | J.C. Penney Corporation, Inc. | ||||||
02739 |
MAIN STORE | 20131 HWY 59N STE 3000 | HUMBLE | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02739 |
MAIN STORE | 20131 HWY 59N STE 3000 | HUMBLE | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02740 |
MAIN STORE | 151 MARYSVILLE TOWNE CTR | MARYSVILLE | WA | Lease | J.C. Penney Corporation, Inc. | ||||||
02741 |
MAIN STORE | 318 E FAIRMOUNT AVE | LAKEWOOD | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02742 |
MAIN STORE | 1840 COUNTRYSIDE DR | TURLOCK | CA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02742 |
MAIN STORE | 1840 COUNTRYSIDE DR | TURLOCK | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02743 |
MAIN STORE | 1000 BONITA LAKE CIRCLE | MERIDIAN | MS | Lease | J.C. Penney Corporation, Inc. | ||||||
02744 |
MAIN STORE | 14730 E INDIANA AVE | SPOKANE | WA | Lease | J.C. Penney Corporation, Inc. | ||||||
02749 |
MAIN STORE | 21030 DULLES TOWN CIR | STERLING | VA | Fee | J.C. Penney Properties, Inc. | ||||||
02749 |
MAIN STORE | 21030 DULLES TOWN CIR | STERLING | VA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02750 |
MAIN STORE | PO BOX 5147 | GASTONIA | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
02751 |
MAIN STORE | PLAZA LAS AMERICAS S/C | SAN JUAN | Puerto Rico | Lease | J.C. Penney Corporation, Inc. | ||||||
02752 |
MAIN STORE | 1403 PALISADES CTR DR | WEST NYACK | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02753 |
MAIN STORE | 6201 BLUEBONNET BLVD | BATON ROUGE | LA | Fee | J.C. Penney Properties, Inc. | ||||||
02753 |
MAIN STORE | 6201 BLUEBONNET BLVD | BATON ROUGE | LA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02754 |
MAIN STORE | 3055 BLACK GAP RD | CHAMBERSBURG | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
02755 |
MAIN STORE | 120 NIBLICK RD | PASO ROBLES | CA | Fee | J.C. Penney Properties, Inc. | ||||||
02755 |
MAIN STORE | 120 NIBLICK RD | PASO ROBLES | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02756 |
HOME STORE | 3147 MIDDLE COUNTY ROAD | LAKE GROVE | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02756 |
MAIN STORE | 9 SMITH HAVEN MALL | LAKE GROVE L I | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02756 |
OUTSIDE STOCKROOM | 9 SMITH HAVEN MALL | LAKE GROVE L I | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02757 |
MAIN STORE | 8417 S PARK MEADOWS CTR DR | LONE TREE | CO | Fee | J.C. Penney Properties, Inc. | ||||||
02757 |
MAIN STORE | 8417 S PARK MEADOWS CTR DR | LONE TREE | CO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02758 |
MAIN STORE | 1471 CORAL RIDGE AVE | CORALVILLE | IA | Fee | J.C. Penney Properties, Inc. | ||||||
02758 |
MAIN STORE | 1471 CORAL RIDGE AVE | CORALVILLE | IA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02760 |
MAIN STORE | 23415 THREE NOTCH RD STE 2016 | CALIFORNIA | MD | Lease | J.C. Penney Corporation, Inc. | ||||||
02761 |
MAIN STORE | 11500 MIDLOTHIAN TPKE | RICHMOND | VA | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02762 |
MAIN STORE | 8102 CITRUS PARK TOWN CTR | TAMPA | FL | Fee | J.C. Penney Properties, Inc. | ||||||
02763 |
MAIN STORE | 1201 LAKE WOODLANDS DR STE 500 | THE WOODLANDS | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02763 |
MAIN STORE | 1201 LAKE WOODLANDS DR STE 500 | THE WOODLANDS | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02765 |
MAIN STORE | 219 MARLBORO AVE STE 21 | EASTON | MD | Lease | J.C. Penney Corporation, Inc. | ||||||
02767 |
MAIN STORE | 1500 S WILLOW ST | MANCHESTER | NH | Fee | J.C. Penney Properties, Inc. | ||||||
02767 |
MAIN STORE | 1500 S WILLOW ST | MANCHESTER | NH | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02768 |
MAIN STORE | 1500 RT 47 STE 21B | RIO GRANDE | NJ | Lease | J.C. Penney Corporation, Inc. | ||||||
02769 |
MAIN STORE | 1512 MILITARY RD | BENTON | AR | Lease | J.C. Penney Corporation, Inc. | ||||||
02770 |
MAIN STORE | 1200 TOWNE CENTRE BLVD STE B | PROVO | UT | Lease | J.C. Penney Corporation, Inc. | ||||||
02773 |
ADDITIONAL SPACE | 400 ERNEST W BARRETT PKWY NW | KENNESAW | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
02773 |
HOME STORE | 667 ERNEST BARRETT PARKWAY | KENNESAW | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
02773 |
MAIN STORE | 400 ERNEST W BARRETT PKWY NW | KENNESAW | GA | Fee | J.C. Penney Properties, Inc. | ||||||
02775 |
MAIN STORE | 1750 DEPTFORD CENTER RD STE D | DEPTFORD | NJ | Fee | J.C. Penney Properties, Inc. |
02776 |
MAIN STORE | 3333 BUFORD DR | BUFORD | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
02777 |
MAIN STORE | 381 WEST ST | KEENE | NH | Lease | J.C. Penney Corporation, Inc. | ||||||
02779 |
MAIN STORE | PLAZA PALMA REAL S/C | HUMACAO | Puerto Rico | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02780 |
MAIN STORE | 200 AVE RAFAEL CORDERO STE 111 | CAGUAS | Puerto Rico | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02782 |
MAIN STORE | 5055 2ND AVE STE 28 | KEARNEY | NE | Lease | J.C. Penney Corporation, Inc. | ||||||
02783 |
MAIN STORE | 40640 WINCHESTER RD | TEMECULA | CA | Fee | J.C. Penney Properties, Inc. | ||||||
02783 |
MAIN STORE | 40640 WINCHESTER RD | TEMECULA | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02784 |
MAIN STORE | 6101 CALHOUN MEMOR HWY STE A | EASLEY | SC | Lease | J.C. Penney Corporation, Inc. | ||||||
02785 |
MAIN STORE | 3774 RIVERTOWN PRKWY SW | GRANDVILLE | MI | Fee | J.C. Penney Properties, Inc. | ||||||
02785 |
MAIN STORE | 3774 RIVERTOWN PRKWY SW | GRANDVILLE | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02788 |
MAIN STORE | 259 INDIAN MOUND DR | MT STERLING | KY | Lease | J.C. Penney Corporation, Inc. | ||||||
02789 |
MAIN STORE | 10308 W FOREST HILL BLVD | WELLINGTON | FL | Fee | J.C. Penney Properties, Inc. | ||||||
02795 |
MAIN STORE | 2607 PRESTON RD | FRISCO | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02795 |
MAIN STORE | 2607 PRESTON RD | FRISCO | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02796 |
MAIN STORE | 1125 GALLERIA BLVD | ROSEVILLE | CA | Fee | J.C. Penney Properties, Inc. | ||||||
02796 |
MAIN STORE | 1125 GALLERIA BLVD | ROSEVILLE | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02797 |
MAIN STORE | 100 MALL DR UNIT B | STEUBENVILLE | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
02799 |
MAIN STORE | 1611 VIRGINIA AVE STE 605 | NORTH BEND | OR | Lease | J.C. Penney Corporation, Inc. | ||||||
02801 |
MAIN STORE | 1450 POLARIS PKWY | COLUMBUS | OH | Fee | J.C. Penney Properties, Inc. | ||||||
02801 |
MAIN STORE | 1450 POLARIS PKWY | COLUMBUS | OH | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02802 |
MAIN STORE | 2000 ROBINSON TOWN CTR | PITTSBURGH | PA | Fee | J.C. Penney Properties, Inc. | ||||||
02802 |
MAIN STORE | 2000 ROBINSON TOWN CTR | PITTSBURGH | PA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02803 |
MAIN STORE | 2304 E JACKSON ST | MACOMB | IL | Lease | J.C. Penney Corporation, Inc. | ||||||
02804 |
MAIN STORE | 8040 MALL PKWY | LITHONIA | GA | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02805 |
MAIN STORE | 6910 FAYETTEVILLE RD STE 600 | DURHAM | NC | Fee | J.C. Penney Properties, Inc. | ||||||
02806 |
MAIN STORE | 2370 N EXPWY STE 2000 | BROWNSVILLE | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02806 |
MAIN STORE | 2370 N EXPWY STE 2000 | BROWNSVILLE | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02807 |
MAIN STORE | 5690 HARVEY ST | MUSKEGON | MI | Fee | J.C. Penney Properties, Inc. | ||||||
02807 |
MAIN STORE | 5690 HARVEY ST | MUSKEGON | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02808 |
MAIN STORE | 301A S SERVICE RD | BLYTHEVILLE | AR | Lease | J.C. Penney Corporation, Inc. | ||||||
02809 |
MAIN STORE | 12300 JEFFERSON AVE STE 500 | NEWPORT NEWS | VA | Lease | J.C. Penney Corporation, Inc. | ||||||
02810 |
MAIN STORE | 140 S 24TH ST W | BILLINGS | MT | Lease | J.C. Penney Corporation, Inc. | ||||||
02812 |
MAIN STORE | 202 E 24TH ST | COLUMBUS | NE | Lease | J.C. Penney Corporation, Inc. | ||||||
02814 |
MAIN STORE | 92-59 59TH AVE | ELMHURST | NY | Fee | J.C. Penney Properties, Inc. | ||||||
02815 |
MAIN STORE | 3200 GATEWAY BLVD | PRESCOTT | AZ | Fee | J.C. Penney Properties, Inc. | ||||||
02815 |
MAIN STORE | 3200 GATEWAY BLVD | PRESCOTT | AZ | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02816 |
MAIN STORE | 3351 S DOGWOOD | EL CENTRO | CA | Fee | J.C. Penney Properties, Inc. | ||||||
02816 |
MAIN STORE | 3351 S DOGWOOD | EL CENTRO | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02817 |
MAIN STORE | 2540 SYCAMORE RD | DE KALB | IL | Lease | J.C. Penney Corporation, Inc. | ||||||
02819 |
MAIN STORE | 1627 OPELIKA RD STE 69 | AUBURN | AL | Lease | J.C. Penney Corporation, Inc. | ||||||
02820 |
MAIN STORE | 6650 DOUGLAS BLVD | DOUGLASVILLE | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
02820 |
STYLING SALON | 6650 DOUGLAS BLVD | DOUGLASVILLE | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
02821 |
MAIN STORE | 4340 SERGEANT RD | SIOUX CITY | IA | Fee | J.C. Penney Properties, Inc. | ||||||
02822 |
MAIN STORE | 1600 NE 23RD ST | POMPANO BEACH | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
02823 |
MAIN STORE | 12399 S MAINSTREET | RANCHO CUCAMONGA | CA | Fee | J.C. Penney Properties, Inc. | ||||||
02824 |
MAIN STORE | 6620 TOWNE CENTER LOOP STE E | SOUTHAVEN | MS | Fee | J.C. Penney Properties, Inc. | ||||||
02824 |
MAIN STORE | 6620 TOWNE CENTER LOOP STE E | SOUTHAVEN | MS | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02825 |
MAIN STORE | 12550 RIVERDALE BLVD | COON RAPIDS | MN | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02826 |
MAIN STORE | 333 N HWY 67 | CEDAR HILL | TX | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02827 |
MAIN STORE | 2611 E MAIN ST | PLAINFIELD | IN | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02828 |
MAIN STORE | 2000 N NEIL ST | CHAMPAIGN | IL | Lease | J.C. Penney Corporation, Inc. | ||||||
02829 |
MAIN STORE | 13701 GROVE DR | MAPLE GROVE | MN | Lease | J.C. Penney Corporation, Inc. | ||||||
02829 |
SIGN AGREEMENT | 13701 GROVE DR | MAPLE GROVE | MN | Lease | J.C. Penney Corporation, Inc. | ||||||
02830 |
MAIN STORE | 7200 E HARRISON AVE | ROCKFORD | IL | Fee | J.C. Penney Properties, Inc. | ||||||
02830 |
MAIN STORE | 7200 E HARRISON AVE | ROCKFORD | IL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02832 |
MAIN STORE | 1401 GREENBRIER PKWY STE 3000 | CHESAPEAKE | VA | Lease | J.C. Penney Corporation, Inc. | ||||||
02833 |
MAIN STORE | 6909 N LOOP 1604 E | SAN ANTONIO | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02833 |
MAIN STORE | 6909 N LOOP 1604 E | SAN ANTONIO | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02834 |
MAIN STORE | 69340 HWY 21 | COVINGTON | LA | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02834 |
MAIN STORE | 69340 HWY 21 | COVINGTON | LA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02835 |
MAIN STORE | 3000 E HIGHLAND DR STE 516 | JONESBORO | AR | Fee | J.C. Penney Properties, Inc. | ||||||
02835 |
MAIN STORE | 3000 E HIGHLAND DR STE 516 | JONESBORO | AR | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02837 |
MAIN STORE | 1375 S YUMA PALMS PKWY | YUMA | AZ | Fee | J.C. Penney Properties, Inc. | ||||||
02837 |
MAIN STORE | 1375 S YUMA PALMS PKWY | YUMA | AZ | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02838 |
MAIN STORE | 877 NE ALSBURY BLVD | BURLESON | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
02839 |
MAIN STORE | 31510 Gratiot Ave | Roseville | MI | Lease | J.C. Penney Corporation, Inc. | ||||||
02839 |
MAIN STORE | 31510 Gratiot Ave | Roseville | MI | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
02840 |
MAIN STORE | 1236 EASTDALE MALL | MONTGOMERY | AL | Fee | J.C. Penney Properties, Inc. | ||||||
02840 |
MAIN STORE | 1236 EASTDALE MALL | MONTGOMERY | AL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02841 |
MAIN STORE | 2209 VETERANS BLVD | DEL RIO | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
02842 |
MAIN STORE | 13333 W MCDOWELL RD | GOODYEAR | AZ | Fee | J.C. Penney Properties, Inc. | ||||||
02843 |
MAIN STORE | 10083 GULF CENTER DR | FORT MYERS | FL | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02844 |
MAIN STORE | 100 BAYBROOK MALL | FRIENDSWOOD | TX | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02844 |
MAIN STORE | 100 BAYBROOK MALL | FRIENDSWOOD | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02845 |
MAIN STORE | 3742 BROOKWALL DR STE 10 | AKRON | OH | Lease | J.C. Penney Corporation, Inc. |
02846 |
MAIN STORE | 5050 E RAY RD | PHOENIX | AZ | Lease | J.C. Penney Corporation, Inc. | ||||||
02847 |
MAIN STORE | 167 PITTSBURGH MILL CIR | TARENTUM | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
02848 |
MAIN STORE | 4485 S GRAND CANYON DR | LAS VEGAS | NV | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02848 |
MAIN STORE | 4485 S GRAND CANYON DR | LAS VEGAS | NV | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02849 |
MAIN STORE | 10000 ALABAMA ST | REDLANDS | CA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02849 |
MAIN STORE | 10000 ALABAMA ST | REDLANDS | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02850 |
MAIN STORE | 28151 STATE RD 56 | WESLEY CHAPEL | FL | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02862 |
MAIN STORE | 3459 PRINCETON RD | HAMILTON | OH | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02862 |
MAIN STORE | 3459 PRINCETON RD | HAMILTON | OH | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02863 |
MAIN STORE | 23523 GRAND CIRCLE BLVD | KATY | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02863 |
MAIN STORE | 23523 GRAND CIRCLE BLVD | KATY | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02864 |
MAIN STORE | 3001 WHITE BEAR AVE | MAPLEWOOD | MN | Fee | J.C. Penney Properties, Inc. | ||||||
02864 |
MAIN STORE | 3001 WHITE BEAR AVE | MAPLEWOOD | MN | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02865 |
MAIN STORE | 8348 TAMARACK VILLAGE | WOODBURY | MN | Fee | J.C. Penney Properties, Inc. | ||||||
02865 |
MAIN STORE | 8348 TAMARACK VILLAGE | WOODBURY | MN | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02866 |
MAIN STORE | 800 WILLARD DR | ASHWAUBENON | WI | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02866 |
MAIN STORE | 800 WILLARD DR | ASHWAUBENON | WI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02868 |
MAIN STORE | 401 S MT JULIET RD STE 630 | MT JULIET | TN | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02868 |
MAIN STORE | 401 S MT JULIET RD STE 630 | MT JULIET | TN | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02869 |
MAIN STORE | 5060 PINNACLE SQ | BIRMINGHAM | AL | Fee | J.C. Penney Properties, Inc. | ||||||
02869 |
MAIN STORE | 5060 PINNACLE SQ | BIRMINGHAM | AL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02870 |
MAIN STORE | 17610 E 39TH ST S | INDEPENDENCE | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
02871 |
MAIN STORE | 240 BANKS CROSSING | FAYETTEVILLE | GA | Lease | J.C. Penney Corporation, Inc. | ||||||
02872 |
MAIN STORE | 1380 HWY 20 W | MCDONOUGH | GA | Fee | J.C. Penney Properties, Inc. | ||||||
02872 |
MAIN STORE | 1380 HWY 20 W | MCDONOUGH | GA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02873 |
MAIN STORE | 304 FORUM DR | COLUMBIA | SC | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02873 |
MAIN STORE | 304 FORUM DR | COLUMBIA | SC | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02874 |
MAIN STORE | 341 NEWNAN CROSSING BYP | NEWNAN | GA | Fee | J.C. Penney Properties, Inc. | ||||||
02874 |
MAIN STORE | 341 NEWNAN CROSSING BYP | NEWNAN | GA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02875 |
MAIN STORE | 22500 TOWN CENTER AVE | SPANISH FORT | AL | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02875 |
MAIN STORE | 22500 TOWN CENTER AVE | SPANISH FORT | AL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02876 |
MAIN STORE | 14658 DELAWARE ST | WESTMINSTER | CO | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02876 |
MAIN STORE | 14658 DELAWARE ST | WESTMINSTER | CO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02877 |
MAIN STORE | 17710 LA CANTERA PKWY | SAN ANTONIO | TX | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02877 |
MAIN STORE | 17710 LA CANTERA PKWY | SAN ANTONIO | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02878 |
MAIN STORE | 4680 HIGH POINTE BLVD | HARRISBURG | PA | Fee | J.C. Penney Properties, Inc. | ||||||
02878 |
MAIN STORE | 4680 HIGH POINTE BLVD | HARRISBURG | PA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02879 |
MAIN STORE | 2202 BELLVIEW RD | ROGERS | AR | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02879 |
MAIN STORE | 2202 BELLVIEW RD | ROGERS | AR | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02880 |
MAIN STORE | STATE HWY 16 & RT 302 | NORTH CONWAY | NH | Lease | J.C. Penney Corporation, Inc. | ||||||
02881 |
MAIN STORE | 300 MEMORIAL CITY WAY | HOUSTON | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02881 |
MAIN STORE | 300 MEMORIAL CITY WAY | HOUSTON | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02883 |
MAIN STORE | 2500 SMITH RANCH RD | PEARLAND | TX | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02883 |
MAIN STORE | 2500 SMITH RANCH RD | PEARLAND | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02884 |
MAIN STORE | 12351 N IH-35 | AUSTIN | TX | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02884 |
MAIN STORE | 12351 N IH-35 | AUSTIN | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02885 |
MAIN STORE | 5120 FAIRMONT PKWY | PASADENA | TX | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02885 |
MAIN STORE | 5120 FAIRMONT PKWY | PASADENA | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02889 |
MAIN STORE | 1727 W BETHANY HOME RD | PHOENIX | AZ | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02901 |
MAIN STORE | 8752 MICHIGAN RD | INDIANAPOLIS | IN | Lease | J.C. Penney Corporation, Inc. | ||||||
02902 |
MAIN STORE | 1900 E RIO SALADO PKWY STE 140 | TEMPE | AZ | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02903 |
MAIN STORE | 3141 WATERMILL DR | BURLINGTON | NC | Fee | J.C. Penney Properties, Inc. | ||||||
02903 |
MAIN STORE | 3141 WATERMILL DR | BURLINGTON | NC | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02904 |
MAIN STORE | 9500 S IH-35 STE H | AUSTIN | TX | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02904 |
MAIN STORE | 9500 S IH-35 STE H | AUSTIN | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02905 |
MAIN STORE | 3001 TEXAS SAGE TRL | FORT WORTH | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02906 |
MAIN STORE | 1720 OLD FORT PKWY | MURFREESBORO | TN | Fee | J.C. Penney Properties, Inc. | ||||||
02906 |
MAIN STORE | 1720 OLD FORT PKWY | MURFREESBORO | TN | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02907 |
MAIN STORE | 6302 S CENTRAL ST | AURORA | CO | Fee | J.C. Penney Properties, Inc. | ||||||
02907 |
MAIN STORE | 6302 S CENTRAL ST | AURORA | CO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02908 |
MAIN STORE | 100 COLUMBIANA CIR #102 | COLUMBIA | SC | Lease | J.C. Penney Corporation, Inc. | ||||||
02909 |
MAIN STORE | 7939 HWY N | DARDENNE PRAIRIE | MO | Fee | J.C. Penney Properties, Inc. | ||||||
02909 |
MAIN STORE | 7939 HWY N | DARDENNE PRAIRIE | MO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02910 |
MAIN STORE | 7751 TOWNE CENTER PKWY | PAPILLION | NE | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02910 |
MAIN STORE | 7751 TOWNE CENTER PKWY | PAPILLION | NE | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02911 |
MAIN STORE | 11552 S DISTRICT DR | SOUTH JORDAN | UT | Fee | J.C. Penney Properties, Inc. | ||||||
02911 |
MAIN STORE | 11552 S DISTRICT DR | SOUTH JORDAN | UT | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02912 |
MAIN STORE | 10904 STADIUM PKWY | KANSAS CITY | KS | Fee | J.C. Penney Properties, Inc. | ||||||
02913 |
MAIN STORE | 5265 S CALLE SANTA CRUZ | TUCSON | AZ | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02914 |
MAIN STORE | 2600 S SHACKLEFORD RD | LITTLE ROCK | AR | Fee | J.C. Penney Properties, Inc. | ||||||
02914 |
MAIN STORE | 2600 S SHACKLEFORD RD | LITTLE ROCK | AR | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02915 |
MAIN STORE | 135 BOCKMAN DR | FORT COLLINS | CO | Lease | J.C. Penney Corporation, Inc. |
02916 |
MAIN STORE | 400 N UNION ST | OLEAN | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
02917 |
MAIN STORE | 955 S HOVER ST | LONGMONT | CO | Lease | J.C. Penney Corporation, Inc. | ||||||
02918 |
MAIN STORE | 340 S COLONIAL DR | ALABASTER | AL | Fee | J.C. Penney Properties, Inc. | ||||||
02918 |
MAIN STORE | 340 S COLONIAL DR | ALABASTER | AL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02919 |
MAIN STORE | 2890 N MAIN ST | SANTA ANA | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
02920 |
MAIN STORE | 9480 VILLAGE PLACE BLVD | BRIGHTON | MI | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02920 |
MAIN STORE | 9480 VILLAGE PLACE BLVD | BRIGHTON | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02921 |
MAIN STORE | 5751 LONG PRAIRIE RD | FLOWER MOUND | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02922 |
MAIN STORE | 13900 HOARD DR | NOBLESVILLE | IN | Fee | J.C. Penney Properties, Inc. | ||||||
02922 |
MAIN STORE | 13900 HOARD DR | NOBLESVILLE | IN | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02924 |
MAIN STORE | 7400 WOODWARD AVE | WOODRIDGE | IL | Lease | J.C. Penney Corporation, Inc. | ||||||
02925 |
MAIN STORE | 8201 FLYING CLOUD DR | EDEN PRAIRIE | MN | Lease | J.C. Penney Corporation, Inc. | ||||||
02926 |
MAIN STORE | 7451 YOUREE DR | SHREVEPORT | LA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02926 |
MAIN STORE | 7451 YOUREE DR | SHREVEPORT | LA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02927 |
MAIN STORE | 410 PORTERS VALE BLVD | VALPARAISO | IN | Fee | J.C. Penney Properties, Inc. | ||||||
02927 |
MAIN STORE | 410 PORTERS VALE BLVD | VALPARAISO | IN | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02928 |
MAIN STORE | 1100 OGDEN AVE | MONTGOMERY | IL | Fee | J.C. Penney Properties, Inc. | ||||||
02928 |
MAIN STORE | 1100 OGDEN AVE | MONTGOMERY | IL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02930 |
MAIN STORE | 1600 ORCHARD GATEWAY BLVD | NORTH AURORA | IL | Fee | J.C. Penney Properties, Inc. | ||||||
02930 |
MAIN STORE | 1600 ORCHARD GATEWAY BLVD | NORTH AURORA | IL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02931 |
MAIN STORE | 3100 MAIN ST STE 1000 | MAUMEE | OH | Fee | J.C. Penney Properties, Inc. | ||||||
02931 |
MAIN STORE | 3100 MAIN ST STE 1000 | MAUMEE | OH | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02932 |
MAIN STORE | 3400 RIO GRANDE AVE | MONTROSE | CO | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02932 |
MAIN STORE | 3400 RIO GRANDE AVE | MONTROSE | CO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02933 |
MAIN STORE | 1200 N HAPPY VALLEY RD | NAMPA | ID | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02933 |
MAIN STORE | 1200 N HAPPY VALLEY RD | NAMPA | ID | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02934 |
MAIN STORE | 151 UNIVERSITY OAKS | ROUND ROCK | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02934 |
MAIN STORE | 151 UNIVERSITY OAKS | ROUND ROCK | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02935 |
MAIN STORE | 2071 COLISEUM DR | HAMPTON | VA | Fee | J.C. Penney Properties, Inc. | ||||||
02935 |
MAIN STORE | 2071 COLISEUM DR | HAMPTON | VA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02936 |
MAIN STORE | 1041 N PROMENADE PKWY | CASA GRANDE | AZ | Fee | J.C. Penney Properties, Inc. | ||||||
02937 |
MAIN STORE | 14659 RAMONA AVE | CHINO | CA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02937 |
MAIN STORE | 14659 RAMONA AVE | CHINO | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02939 |
MAIN STORE | 7400 SAN PEDRO AVE | SAN ANTONIO | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
02940 |
MAIN STORE | 5651 HWY 95 N | LAKE HAVASU CITY | AZ | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02941 |
MAIN STORE | 2400 S SERVICE RD | MOORE | OK | Fee | J.C. Penney Properties, Inc. | ||||||
02941 |
MAIN STORE | 2400 S SERVICE RD | MOORE | OK | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02942 |
MAIN STORE | 7271 SE 29TH ST | MIDWEST CITY | OK | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02942 |
MAIN STORE | 7271 SE 29TH ST | MIDWEST CITY | OK | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02943 |
MAIN STORE | 3675 STONE CREEK BLVD | COLERAIN TOWNSHIP | OH | Fee | J.C. Penney Properties, Inc. | ||||||
02943 |
MAIN STORE | 3675 STONE CREEK BLVD | COLERAIN TOWNSHIP | OH | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02944 |
MAIN STORE | 25646 HWY 290 | CYPRESS | TX | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02944 |
MAIN STORE | 25646 HWY 290 | CYPRESS | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02944 |
SIGN AGREEMENT | 25646 HWY 290 | CYPRESS | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
02945 |
MAIN STORE | 2001 W OSCEOLA PKWY | KISSIMMEE | FL | Fee | J.C. Penney Properties, Inc. | ||||||
02946 |
MAIN STORE | 1015 E I 30 | ROCKWALL | TX | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02946 |
MAIN STORE | 1015 E I 30 | ROCKWALL | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02948 |
MAIN STORE | 3065 RT 50 | SARATOGA SPRINGS | NY | Fee | J.C. Penney Properties, Inc. | ||||||
02949 |
MAIN STORE | 1441 N HWY 77 | WAXAHACHIE | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02949 |
MAIN STORE | 1441 N HWY 77 | WAXAHACHIE | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02950 |
MAIN STORE | 800 S RANDALL RD | ALGONQUIN | IL | Fee | J.C. Penney Properties, Inc. | ||||||
02950 |
MAIN STORE | 800 S RANDALL RD | ALGONQUIN | IL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02951 |
MAIN STORE | 2940 COMMERCE DR | JOHNSBURG | IL | Fee | J.C. Penney Properties, Inc. | ||||||
02951 |
MAIN STORE | 2940 COMMERCE DR | JOHNSBURG | IL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02952 |
MAIN STORE | 4451 PROMENADE WAY | MATTESON | IL | Fee | J.C. Penney Properties, Inc. | ||||||
02952 |
MAIN STORE | 4451 PROMENADE WAY | MATTESON | IL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02953 |
MAIN STORE | 8100 N FLINTLOCK RD | KANSAS CITY | MO | Fee | J.C. Penney Properties, Inc. | ||||||
02953 |
MAIN STORE | 8100 N FLINTLOCK RD | KANSAS CITY | MO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02954 |
MAIN STORE | N96W18515 COUNTY LINE RD | MENOMONEE FALLS | WI | Lease | J.C. Penney Corporation, Inc. | ||||||
02955 |
MAIN STORE | 4951 SLATTEN RANCH RD | ANTIOCH | CA | Fee | J.C. Penney Properties, Inc. | ||||||
02956 |
MAIN STORE | 550 PINNACLE PL | PRATTVILLE | AL | Fee | J.C. Penney Properties, Inc. | ||||||
02956 |
MAIN STORE | 550 PINNACLE PL | PRATTVILLE | AL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02957 |
MAIN STORE | 4185 RIVERDALE RD | RIVERDALE | UT | Fee | J.C. Penney Properties, Inc. | ||||||
02957 |
MAIN STORE | 4185 RIVERDALE RD | RIVERDALE | UT | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02959 |
MAIN STORE | 419 E TRENTON RD | EDINBURG | TX | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02959 |
MAIN STORE | 419 E TRENTON RD | EDINBURG | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02960 |
MAIN STORE | 1950 JOE BATTLE BLVD | EL PASO | TX | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02960 |
MAIN STORE | 1950 JOE BATTLE BLVD | EL PASO | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02961 |
MAIN STORE | 3125 LOUISIANA AVE | LAFAYETTE | LA | Fee | J.C. Penney Properties, Inc. | ||||||
02961 |
MAIN STORE | 3125 LOUISIANA AVE | LAFAYETTE | LA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02962 |
MAIN STORE | 725 ADAMS DR | WEATHERFORD | TX | Fee | J.C. Penney Properties, Inc. |
02963 |
MAIN STORE | 1996 MEMORIAL DR STE 1 | SAINT JOHNSBURY | VT | Lease | J.C. Penney Corporation, Inc. | ||||||
02964 |
MAIN STORE | 2060 SAM RITTENBERG BLVD | CHARLESTON | SC | Fee | J.C. Penney Properties, Inc. | ||||||
02964 |
MAIN STORE | 2060 SAM RITTENBERG BLVD | CHARLESTON | SC | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02965 |
MAIN STORE | 3650 NEW CENTER PT | COLORADO SPRINGS | CO | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02965 |
MAIN STORE | 3650 NEW CENTER PT | COLORADO SPRINGS | CO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02966 |
MAIN STORE | 8568 E 49TH AVE | DENVER | CO | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02966 |
MAIN STORE | 8568 E 49TH AVE | DENVER | CO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02967 |
MAIN STORE | 50753 WATERSIDE DR | CHESTERFIELD TOWNSHP | MI | Fee | J.C. Penney Properties, Inc. | ||||||
02967 |
MAIN STORE | 50753 WATERSIDE DR | CHESTERFIELD TOWNSHP | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02968 |
MAIN STORE | 24201 BRAZOS TOWN CROSSING | ROSENBERG | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02968 |
SIGN AGREEMENT | 24201 BRAZOS TOWN CROSSING | ROSENBERG | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
02969 |
MAIN STORE | 610 GRAHAM DR | SHERMAN | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02970 |
MAIN STORE | 5181 PEPPER ST | SPRING HILL | FL | Fee | J.C. Penney Properties, Inc. | ||||||
02971 |
MAIN STORE | 300 TOWN CENTER BLVD | WHITE LAKE TOWNSHIP | MI | Fee | J.C. Penney Properties, Inc. | ||||||
02971 |
MAIN STORE | 300 TOWN CENTER BLVD | WHITE LAKE TOWNSHIP | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02972 |
MAIN STORE | 43690 FORD RD | CANTON | MI | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02972 |
MAIN STORE | 43690 FORD RD | CANTON | MI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02973 |
MAIN STORE | 11325 W LINCOLN HWY | MOKENA | IL | Fee | J.C. Penney Properties, Inc. | ||||||
02973 |
MAIN STORE | 11325 W LINCOLN HWY | MOKENA | IL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02975 |
MAIN STORE | 3333 MARKET PLACE DR | COUNCIL BLUFFS | IA | Fee | J.C. Penney Properties, Inc. | ||||||
02975 |
MAIN STORE | 3333 MARKET PLACE DR | COUNCIL BLUFFS | IA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02976 |
MAIN STORE | 515 CABELA DR | TRIADELPHIA | WV | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02976 |
MAIN STORE | 515 CABELA DR | TRIADELPHIA | WV | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02977 |
MAIN STORE | 5886 HIGHWAY 100 | WASHINGTON | MO | ATM License to Third Party | J.C. Penney Properties, Inc. | ||||||
02977 |
MAIN STORE | 5886 HIGHWAY 100 | WASHINGTON | MO | Fee | J.C. Penney Properties, Inc. | ||||||
02977 |
MAIN STORE | 5886 HIGHWAY 100 | WASHINGTON | MO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02978 |
MAIN STORE | 9365 FIELDS ERTEL RD | CINCINNATI | OH | Lease | J.C. Penney Corporation, Inc. | ||||||
02979 |
MAIN STORE | 2345 S HWY 27 | CLERMONT | FL | Fee | J.C. Penney Properties, Inc. | ||||||
02980 |
MAIN STORE | 3165 INTERSTATE 45 N | CONROE | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02980 |
MAIN STORE | 3165 INTERSTATE 45 N | CONROE | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02982 |
MAIN STORE | 301 STACY RD | FAIRVIEW | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02982 |
MAIN STORE | 301 STACY RD | FAIRVIEW | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02983 |
MAIN STORE | 800 BARNES ST | SAN MARCOS | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02983 |
MAIN STORE | 800 BARNES ST | SAN MARCOS | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02984 |
MAIN STORE | 2037 LANTERN RIDGE DR | RICHMOND | KY | Fee | J.C. Penney Properties, Inc. | ||||||
02985 |
MAIN STORE | 6200 GRANDVIEW PKWY | DAVENPORT | FL | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
02986 |
MAIN STORE | 200 MARKET ST | FLOWOOD | MS | Fee | J.C. Penney Properties, Inc. | ||||||
02986 |
MAIN STORE | 200 MARKET ST | FLOWOOD | MS | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02987 |
MAIN STORE | 1001 RAINBOW DR | GADSDEN | AL | Lease | J.C. Penney Corporation, Inc. | ||||||
02988 |
MAIN STORE | 7700 POLO GROUNDS BLVD | MEMPHIS | TN | Fee | J.C. Penney Properties, Inc. | ||||||
02988 |
MAIN STORE | 7700 POLO GROUNDS BLVD | MEMPHIS | TN | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02989 |
MAIN STORE | 1800 COASTAL GRAND CIR | MYRTLE BEACH | SC | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02989 |
MAIN STORE | 1800 COASTAL GRAND CIR | MYRTLE BEACH | SC | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02990 |
MAIN STORE | 6901 W 135TH ST | OVERLAND PARK | KS | Fee | J.C. Penney Corporation, Inc. | ||||||
02990 |
MAIN STORE | 6901 W 135TH ST | OVERLAND PARK | KS | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02991 |
MAIN STORE | 5335 W LOOP 1604 N | SAN ANTONIO | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02991 |
MAIN STORE | 5335 W LOOP 1604 N | SAN ANTONIO | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02992 |
MAIN STORE | 4190 E COURT ST STE 500 | BURTON | MI | Lease | J.C. Penney Corporation, Inc. | ||||||
02993 |
MAIN STORE | 798 GRAVOIS BLUFFS BLVD | FENTON | MO | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02993 |
SIGN AGREEMENT | 798 GRAVOIS BLUFFS BLVD | FENTON | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
02993 |
SIGN AGREEMENT | 798 GRAVOIS BLUFFS BLVD | FENTON | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
02993 |
SIGN AGREEMENT | 798 GRAVOIS BLUFFS BLVD | FENTON | MO | Lease | J.C. Penney Corporation, Inc. | ||||||
02994 |
MAIN STORE | 3363 LOWERY PKWY | FULTONDALE | AL | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02994 |
MAIN STORE | 3363 LOWERY PKWY | FULTONDALE | AL | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02995 |
MAIN STORE | 5858 E SAM HOUSTON PKWY N | HOUSTON | TX | Fee | J.C. Penney Properties, Inc. | ||||||
02995 |
SIGN AGREEMENT | 5858 E SAM HOUSTON PKWY N | HOUSTON | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
02997 |
MAIN STORE | 206 BLUEFISH DR | PANAMA CITY BEACH | FL | Fee | J.C. Penney Properties, Inc. | ||||||
02998 |
MAIN STORE | 19005 SE MILL PLAIN BLVD | VANCOUVER | WA | Ground Lease | J.C. Penney Properties, Inc. | ||||||
02998 |
MAIN STORE | 19005 SE MILL PLAIN BLVD | VANCOUVER | WA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
02999 |
MAIN STORE | 1060 PERIMETER DR | MANTECA | CA | Fee | J.C. Penney Properties, Inc. | ||||||
02999 |
MAIN STORE | 1060 PERIMETER DR | MANTECA | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
03040 |
CATALOG OUTLET30 | 3430 PRESTON HWY | LOUISVILLE | KY | Lease | J.C. Penney Corporation, Inc. | ||||||
03900 |
AIR BRIDGE | 406 W. 5TH AVENUE | ANCHORAGE | AK | Lease | J.C. Penney Corporation, Inc. | ||||||
03900 |
HOME STORE | 406 W. 5TH AVENUE | ANCHORAGE | AK | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
03900 |
PARKING LOT | 406 W. 5TH AVENUE | ANCHORAGE | AK | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
04306 |
TELEMARKETING | 1001 COMMERCE DRIVE | HARMARVILLE | PA | Lease | J.C. Penney Corporation, Inc. | ||||||
04306 |
TELEMARKETING | 1001 COMMERCE DRIVE | HARMARVILLE | PA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
04534 |
CUSTOM DECORATING | 4741 & 4801 URBANI AVENUE | MCCLELLAN | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
04534 |
CUSTOM DECORATING | 4741 & 4801 URBANI AVENUE | MCCLELLAN | CA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
05071 |
TREASURY | GOLF ROAD & MILWAUKEE AVE. | NILES | IL | Ground Lease | J.C. Penney Corporation, Inc. | ||||||
05071 |
TREASURY | GOLF ROAD & MILWAUKEE AVE. | NILES | IL | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
09005 |
LOGISTIC CENTER | 1634 SALISBURY ROAD | STATESVILLE | NC | Fee | J.C. Penney Properties, Inc. | ||||||
09005 |
LOGISTIC CENTER | 1634 SALISBURY ROAD | STATESVILLE | NC | Lease | J.C. Penney Corporation, Inc. |
09005 |
PARKING | 1634 SALISBURY ROAD | STATESVILLE | NC | Lease | J.C. Penney Corporation, Inc. | ||||||
09005 |
PARKING | 1634 SALISBURY ROAD | STATESVILLE | NC | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
9010 |
INTERCOMPANY LEASE | 6800 VALLEY VIEW AVENUE | BUENA PARK | CA | Lease (Intercompany) | J.C.PENNEY CORPORATION,INC. | ||||||
9010 |
LOGISTIC CENTER | 6800 VALLEY VIEW AVENUE | BUENA PARK | CA | Fee | J.C.PENNEY PROPERTIES,INC. | ||||||
09041 |
OFFICES | 3801 PARKWOOD BLVD SUITE D-100 | FRISCO | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
09041 |
OFFICES | 3801 PARKWOOD BLVD SUITE D-100 | FRISCO | TX | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
09100 |
ACCOUNTING OFFICE | 310 SOUTH MAIN ST. | SALT LAKE CITY | UT | Lease | J.C. Penney Corporation, Inc. | ||||||
09100 |
ACCOUNTING OFFICE | 310 SOUTH MAIN ST. | SALT LAKE CITY | UT | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
09100 |
PARKING | 310 SOUTH MAIN ST. | SALT LAKE CITY | UT | Lease | J.C. Penney Corporation, Inc. | ||||||
09113 |
ECKERD DRUGCVS | 3821 ELLISON DRIVE NW | ALBUQUERQUE | NM | Lease | J.C. Penney Corporation, Inc. | ||||||
09113 |
ECKERD DRUGCVS | 3821 ELLISON DRIVE NW | ALBUQUERQUE | NM | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
09131 |
LOGISTIC CENTER | 11800 W. BURLEIGH ROAD | WAUWATOSA | WI | Fee | J.C. Penney Properties Inc. | ||||||
09131 |
LOGISTIC CENTER | 11800 W. BURLEIGH ROAD | WAUWATOSA | WI | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
09132 |
LOGISTIC CENTER | 10500 LACKMAN ROAD | LENEXA | KS | Fee | J.C. Penney Properties Inc. | ||||||
09132 |
LOGISTIC CENTER | 10500 LACKMAN ROAD | LENEXA | KS | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
09224 |
LAND | 501 DARCY PARKWAY | LATHROP | CA | Fee | J.C. Penney Properties, Inc. | ||||||
09224 |
LAND | 501 DARCY PARKWAY | LATHROP | CA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
09224 |
LOGISTIC CENTER | 700 DARCY PARKWAY | LATHROP | CA | Lease | J.C. Penney Corporation, Inc. | ||||||
09275 |
ADDITIONAL SPACE | 124 ROSE LANE | FRISCO | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
09316 |
LAND | 11111 STEAD BLVD. | RENO | NV | Sublease to Third party | J.C. Penney Properties Inc. | ||||||
09316 |
LOGISTIC CENTER | 11111 STEAD BLVD. | RENO | NV | Fee | J.C. Penney Properties Inc. | ||||||
09316 |
LOGISTIC CENTER | 11111 STEAD BLVD. | RENO | NV | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
09317 |
LOGISTIC CENTER | 1339 TOLLAND TPK | MANCHESTER | CT | Fee | J.C. Penney Propert ies Inc. | ||||||
09317 |
LOGISTIC CENTER | 1339 TOLLAND TPK | MANCHESTER | CT | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
09435 |
LOGISTIC CENTER | 1701 INTERMODAL PARKWAY | HASLET | TX | Fee | J.C. Penney Properties Inc. | ||||||
09435 |
LOGISTIC CENTER | 1701 INTERMODAL PARKWAY | HASLET | TX | Fee | J.C. Penney Properties, Inc. | ||||||
09435 |
LOGISTIC CENTER | 1701 INTERMODAL PARKWAY | HASLET | TX | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
09435 |
LOGISTIC CENTER | 1701 INTERMODAL PARKWAY | HASLET | TX | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
09442 |
STORE SUPPORT CENTER | 1650 S HWY 67 | CEDAR HILL | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
09450 |
STORE SUPPORT CENTER | 6800 STATE ROAD 33 | LAKELAND | FL | Lease | J.C. Penney Corporation, Inc. | ||||||
09454 |
STORE SUPPORT CENTER | 400 HIGHWAY 6 | SPANISH FORK | UT | Lease | J.C. Penney Corporation, Inc. | ||||||
09474 |
OFFICES | 200 LAFAYETTE STREET | NEW YORK | NY | Lease | J.C. Penney Corporation, Inc. | ||||||
09486 |
LAND | 5500 SOUTH EXPRESSWAY | ATLANTA | GA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
09486 |
LOGISTIC CENTER | 5500 SOUTH EXPRESSWAY | ATLANTA | GA | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
09486 |
LOGISTIC CENTER | 5500 SOUTH EXPRESSWAY | ATLANTA | GA | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
09900 |
HANGER FOR CORP AIRCRAFT | 8111 LEMON AVE, STE 150 | DALLAS | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
09900 |
LAND | 6501 LEGACY DRIVE | PLANO | TX | Lease | J.C. Penney Corporation, Inc. | ||||||
09900 |
LAND | 6501 LEGACY DRIVE | PLANO | TX | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
09900 |
OFFICES | 6501 LEGACY DRIVE | PLANO | TX | Fee | J.C. Penney Corporation, Inc. | ||||||
09900 |
OFFICES | 328 BARRY AVENUE | WAYZATA | MN | Lease | J.C. Penney Corporation, Inc. | ||||||
09900 |
OFFICES | 601 PENNSYLVANIA AVE. NW | WASHINGTON | DC | Lease | J.C. Penney Corporation, Inc. | ||||||
09900 |
OFFICES | 328 BARRY AVENUE | WAYZATA | MN | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
09900 |
OFFICES | 6501 LEGACY DRIVE | PLANO | TX | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
09900 |
OFFICES | 6501 LEGACY DRIVE | PLANO | TX | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
09900 |
OFFICES | 6501 LEGACY DRIVE | PLANO | TX | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
09900 |
OFFICES | 6501 LEGACY DRIVE | PLANO | TX | Sublease to Third party | J.C. Penney Corporation, Inc. | ||||||
09900 |
OFFICES | 6501 LEGACY DRIVE | PLANO | TX | J.C. Penney Corporation, Inc. | |||||||
09130/3009 |
LOGISTIC CENTER | 5555 SCARBOROUGH BLVD. | COLUMBUS | OH | Fee | J. C. Penney Properties, Inc. | ||||||
09130 /3009 |
LOGISTIC CENTER | 5555 SCARBOROUGH BLVD. | COLUMBUS | OH | Lease (Intercompany) | J.C. Penney Corporation, Inc. | ||||||
09486 /9129 |
LOGISTIC CENTER | 5500 SOUTH EXPRESSWAY | ATLANTA | GA | Fee | J.C. Penney Properties, Inc. |
Schedule 4.14
Disclosed Matters
None.
Schedule 5.15
Post-Closing Matters
None.
Schedule 5.16(a)(i)
Restatement Effective Date Mortgaged Properties
1786 | 1701 MACFARLAND BLVD E | TUSCALOOSA | AL | |||
2218 | 2300 RIVERCHASE GALLERIA | HOOVER | AL | |||
2398 | 900 COMMONS DR STE 900 | DOTHAN | AL | |||
2840 | 1236 EASTDALE MALL | MONTGOMERY | AL | |||
2869 | 5060 PINNACLE SQ | TRUSSVILLE | AL | |||
2875 | 22500 TOWN CENTER AVE | SPANISH FORT | AL | |||
2918 | 340 S COLONIAL DR | ALABASTER | AL | |||
2956 | 550 PINNACLE PL | PRATTVILLE | AL | |||
2835 | 3000 E HIGHLAND DR STE 516 | JONESBORO | AR | |||
2879 | 2202 BELLVIEW RD | ROGERS | AR | |||
2914 | 2600 S SHACKLEFORD RD | LITTLE ROCK | AR | |||
90 | 4530 N ORACLE RD | TUCSON | AZ | |||
1480 | 4510 E CACTUS RD | PHOENIX | AZ | |||
2815 | 3200 GATEWAY BLVD | PRESCOTT | AZ | |||
2837 | 1375 S YUMA PALMS PKWY | YUMA | AZ | |||
246 | 20700 AVALON BLVD | CARSON | CA | |||
334 | 1330 TRAVIS BLVD | FAIRFIELD | CA | |||
389 | 1500 STONERIDGE MALL RD | PLEASANTON | CA | |||
465 | 24140 MAGIC MOUNTAIN PKY | SANTA CLARITA | CA | |||
566 | 2555 EL CAMINO REAL | CARLSBAD | CA | |||
634 | 3040 PLAZA BONITA RD | NATIONAL CITY | CA | |||
699 | 1169 GLENDALE GALLERIA | GLENDALE | CA | |||
1156 | 4915 CLAREMONT AVE | STOCKTON | CA | |||
1223 | 24200 LAGUNA HILLS MALL | LAGUNA HILLS | CA | |||
1229 | 280 HILLCREST DR W | THOUSAND OAKS | CA | |||
1505 | 1203 PLAZA DR | WEST COVINA | CA | |||
1572 | 6000 S HANNUM AVE | CULVER CITY | CA | |||
1960 | 3605 GALLERIA AT TYLER | RIVERSIDE | CA | |||
2096 | 72900 HWY 111 | PALM DESERT | CA | |||
2171 | 290 E VIA RANCHO PKWY | ESCONDIDO | CA | |||
2172 | 1600 TOWN CENTER DR | MONTEBELLO | CA | |||
2209 | 2501 MING AVE | BAKERSFIELD | CA | |||
2388 | 1131 W RANCHO VISTA BLVD | PALMDALE | CA | |||
2414 | 355 FLETCHER PKWY | EL CAJON | CA | |||
2467 | 1695 ARDEN WAY | SACRAMENTO | CA | |||
2480 | 22450 TOWN CIR | MORENO VALLEY | CA | |||
2496 | 500 NEWPARK MALL | NEWARK | CA | |||
2613 | 1932 E 20TH ST | CHICO | CA | |||
2631 | 58000 TWENTY-NINE PALMS HWY | YUCCA VALLEY | CA | |||
2663 | 377 S MILLS RD | VENTURA | CA | |||
2783 | 40640 WINCHESTER RD | TEMECULA | CA | |||
2796 | 1125 GALLERIA BLVD | ROSEVILLE | CA | |||
2816 | 3351 S DOGWOOD | EL CENTRO | CA | |||
2849 | 10000 ALABAMA ST | REDLANDS | CA |
2999 |
1060 PERIMETER DR |
MANTECA |
CA |
|||
9010 |
6800 VALLEY VIEW AVE STE 202 |
BUENA PARK |
CA |
|||
559 |
2424 US 6TH AND 50TH |
GRAND JUNCTION |
CO |
|||
863 |
680 CITADEL DR E |
COLORADO SPRINGS |
CO |
|||
1106 |
1950 PRAIRIE CENTER PKWY |
BRIGHTON |
CO |
|||
1168 |
14200 E ALAMEDA AVE |
AURORA |
CO |
|||
2160 |
5453 W 88TH AVE |
WESTMINSTER |
CO |
|||
2757 |
8417 S PARK MEADOWS CTR DR |
LONE TREE |
CO |
|||
2876 |
14658 DELAWARE ST |
WESTMINSTER |
CO |
|||
2907 |
6302 S CENTRAL ST |
AURORA |
CO |
|||
135 |
344 V BUCKLAND HLS DR STE 7000 |
MANCHESTER |
CT |
|||
933 |
300 WESTFARMS MALL |
FARMINGTON |
CT |
|||
2232 |
5065 MAIN ST |
TRUMBULL |
CT |
|||
2256 |
7 BACKUS AVE |
DANBURY |
CT |
|||
9317 |
1339 TOLLAND TPK |
MANCHESTER |
CT |
|||
816 |
606 CHRISTIANA MALL |
NEWARK |
DE |
|||
951 |
1365 N DUPONT HWY STE 5000 |
DOVER |
DE |
|||
1475 |
27001 US HWY 19 N |
CLEARWATER |
FL |
|||
2115 |
2000 MARTIN LUTHER KING JR BLV |
PANAMA CITY |
FL |
|||
2258 |
3450 WRIGHTSBORO RD |
AUGUSTA |
GA |
|||
2316 |
2601 DAWSON RD |
ALBANY |
GA |
|||
2872 |
1380 HWY 20 W |
MCDONOUGH |
GA |
|||
2874 |
341 NEWNAN CROSSING BYP |
NEWNAN |
GA |
|||
9486/9129 |
120 PENNEY RD/5500 FRONTAGE ROAD |
ATLANTA/FOREST PARK |
GA |
|||
1963 |
320 W KIMBERLY RD STE 409 |
DAVENPORT |
IA |
|||
2758 |
1471 CORAL RIDGE AVE |
CORALVILLE |
IA |
|||
2975 |
3333 MARKET PLACE DR |
COUNCIL BLUFFS |
IA |
|||
2312 |
300 N MILWAUKEE ST |
BOISE |
ID |
|||
2933 |
1200 N HAPPY VALLEY RD |
NAMPA |
ID |
|||
237 |
3 ORLAND SQ DR |
ORLAND PARK |
IL |
|||
466 |
150 HOMER ADAMS PKWY |
ALTON |
IL |
|||
652 |
2200 W WAR MEMORIAL DR STE 997 |
PEORIA |
IL |
|||
1049 |
4 FOX VALLEY CTR |
AURORA |
IL |
|||
1443 |
245 ST CLAIR SQ |
FAIRVIEW HGTS |
IL |
|||
1451 |
3340 MALL LOOP DR SPACE 2 |
JOLIET |
IL |
|||
2661 |
RT 60 & HWY 21 |
VERNON HILLS |
IL |
|||
2830 |
7200 E HARRISON AVE |
ROCKFORD |
IL |
|||
2928 |
1100 OGDEN AVE |
MONTGOMERY |
IL |
|||
2930 |
1600 ORCHARD GATEWAY BLVD |
NORTH AURORA |
IL |
|||
2950 |
800 S RANDALL RD |
ALGONQUIN |
IL |
|||
2951 |
2940 COMMERCE DR |
JOHNSBURG |
IL |
|||
2952 |
4451 PROMENADE WAY |
MATTESON |
IL |
|||
2973 |
11325 W LINCOLN HWY |
MOKENA |
IL |
|||
355 |
1251 US 31 N |
GREENWOOD |
IN |
|||
2922 |
13900 HOARD DR |
NOBLESVILLE |
IN |
2927 |
410 PORTERS VALE BLVD |
VALPARAISO |
IN |
|||
1389 |
11801 W 95TH ST |
OVERLAND PARK |
KS |
|||
1590 |
4600 W KELLOGG RD |
WICHITA |
KS |
|||
2304 |
1821 SW WANAMAKER RD |
TOPEKA |
KS |
|||
2729 |
3311 IOWA ST |
LAWRENCE |
KS |
|||
2990 |
6901 W 135TH ST |
OVERLAND PARK |
KS |
|||
9132 |
16000 W 107TH ST |
LENEXA |
KS |
|||
779 |
6000 FLORENCE MALL |
FLORENCE |
KY |
|||
1704 |
4803 OUTER LOOP RD |
LOUISVILLE |
KY |
|||
2527 |
500 WINCHESTER AVE |
ASHLAND |
KY |
|||
102 |
9801 CORTANA PL |
BATON ROUGE |
LA |
|||
2123 |
2950 E TEXAS AVE |
BOSSIER CITY |
LA |
|||
2175 |
4761 PECANLAND MALL DR |
MONROE |
LA |
|||
2482 |
5725 JOHNSTON ST |
LAFAYETTE |
LA |
|||
2507 |
312 W PRIEN LAKE RD |
LAKE CHARLES |
LA |
|||
2753 |
6201 BLUEBONNET BLVD |
BATON ROUGE |
LA |
|||
2961 |
3125 LOUISIANA AVE |
LAFAYETTE |
LA |
|||
2247 |
310 DANIEL WEBSTER HWY STE 103 |
TYNGSBOROUGH/ NASHUA |
MA/NH |
|||
2524 |
2421 CRANBERRY HWY STE 290 |
WAREHAM |
MA |
|||
2708 |
573 DONALD LYNCH BLVD |
MARLBOROUGH |
MA |
|||
273 |
701 RUSSELL AVE |
GAITHERSBURG |
MD |
|||
786 |
7900 GOVERNOR RITCHIE HWY |
GLEN BURNIE |
MD |
|||
982 |
7777 EASTPOINT MALL |
BALTIMORE |
MD |
|||
1869 |
8200 PERRY HALL BLVD |
BALTIMORE |
MD |
|||
1951 |
3401 DONNELL DR |
FORESTVILLE |
MD |
|||
2102 |
1695 ANNAPOLIS MALL |
ANNAPOLIS |
MD |
|||
2443 |
11130 MALL CIR |
WALDORF |
MD |
|||
2091 |
700 MAINE MALL RD |
SOUTH PORTLAND |
ME |
|||
910 |
4129 E WILDER RD |
BAY CITY |
MI |
|||
1306 |
35000 W WARREN RD |
WESTLAND |
MI |
|||
1352 |
700 W 14 MILE RD |
TROY |
MI |
|||
1398 |
23000 EUREKA RD STE A3 |
TAYLOR |
MI |
|||
1432 |
14300 LAKESIDE CIR |
STERLING HTS |
MI |
|||
1580 |
3225 28TH ST SE |
GRAND RAPIDS |
MI |
|||
1623 |
27150 NOVI RD |
NOVI |
MI |
|||
1979 |
3535 S LINDEN RD |
FLINT |
MI |
|||
1982 |
6580 S WESTNEDGE AVE |
PORTAGE |
MI |
|||
2059 |
5801 BECKLEY RD |
BATTLE CREEK |
MI |
|||
2349 |
3300 S AIRPORT RD W |
TRAVERSE CITY |
MI |
|||
2428 |
4400 24TH AVE |
FORT GRATIOT |
MI |
|||
2785 |
3774 RIVERTOWN PRKWY SW |
GRANDVILLE |
MI |
|||
2807 |
5690 HARVEY ST |
MUSKEGON |
MI |
|||
2920 |
9480 VILLAGE PLACE BLVD |
BRIGHTON |
MI |
|||
2967 |
50753 WATERSIDE DR |
CHESTERFIELD TOWNSHP |
MI |
2971 |
300 TOWN CENTER BLVD |
WHITE LAKE TOWNSHIP |
MI |
|||
2972 |
43690 FORD RD |
CANTON |
MI |
|||
30 |
14301 BURNHAVEN DR |
BURNSVILLE |
MN |
|||
496 |
1700 W COUNTY RD B-2 |
ROSEVILLE |
MN |
|||
1405 |
12421 WAYZATA BLVD |
MINNETONKA |
MN |
|||
2495 |
1850 ADAMS ST STE 2 |
MANKATO |
MN |
|||
2864 |
3001 WHITE BEAR AVE |
MAPLEWOOD |
MN |
|||
2865 |
8348 TAMARACK VILLAGE |
WOODBURY |
MN |
|||
2006 |
3600 COUNTRY CLUB DR STOP 4 |
JEFFERSON CITY |
MO |
|||
2284 |
2301 W WORLEY |
COLUMBIA |
MO |
|||
2521 |
9100 N SKYVIEW AVE |
KANSAS CITY |
MO |
|||
2632 |
4 MID RIVERS MALL |
ST PETERS |
MO |
|||
2909 |
7939 HWY N |
DARDENNE PRAIRIE |
MO |
|||
2953 |
8100 N FLINTLOCK RD |
KANSAS CITY |
MO |
|||
2977 |
5886 HIGHWAY 100 |
WASHINGTON |
MO |
|||
2993 |
798 GRAVOIS BLUFFS BLVD |
FENTON |
MO |
|||
2168 |
1200 E COUNTY LINE RD |
RIDGELAND |
MS |
|||
2690 |
1000 TURTLE CREEK DR |
HATTIESBURG |
MS |
|||
2824 |
6620 TOWNE CENTER LOOP STE E |
SOUTHAVEN |
MS |
|||
2986 |
200 MARKET ST |
FLOWOOD |
MS |
|||
99 |
300 CROSS CREEK MALL |
FAYETTEVILLE |
NC |
|||
2303 |
1970 US HWY 70 SE |
HICKORY |
NC |
|||
2346 |
3 S TUNNEL RD |
ASHEVILLE |
NC |
|||
2903 |
3141 WATERMILL DR |
BURLINGTON |
NC |
|||
9005 |
1634 SALISBURY RD |
STATESVILLE |
NC |
|||
731 |
3202 OAKVIEW DR |
OMAHA |
NE |
|||
2651 |
68 GATEWAY MALL |
LINCOLN |
NE |
|||
2910 |
7751 TOWNE CENTER PKWY |
PAPILLION |
NE |
|||
116 |
81 ROCKINGHAM PARK BLVD |
SALEM |
NH |
|||
2250 |
50 FOX RUN RD STE 35 |
NEWINGTON |
NH |
|||
2767 |
1500 S WILLOW ST |
MANCHESTER |
NH |
|||
241 |
2000 RT 38 STE 1000 |
CHERRY HILL |
NJ |
|||
497 |
305 MOUNT HOPE AVE |
ROCKAWAY |
NJ |
|||
1150 |
STATE HWY 35 AND 36 |
EATONTOWN |
NJ |
|||
1180 |
260 WAYNE TOWNE CTR |
WAYNE |
NJ |
|||
1529 |
755 STATE RT 18 STE 600 |
E BRUNSWICK |
NJ |
|||
1983 |
428 WOODBRIDGE CTR DR |
WOODBRIDGE |
NJ |
|||
2287 |
4405 BLACK HORSE PIKE |
MAYS LANDING |
NJ |
|||
2297 |
10 MALL DR W |
JERSEY CITY |
NJ |
|||
2477 |
3710 HWY 9 |
FREEHOLD |
NJ |
|||
2229 |
4250 CERRILLOS RD |
SANTA FE |
NM |
|||
2704 |
10000 COORS BYPASS NW |
ALBUQUERQUE |
NM |
|||
478 |
5200 MEADOWOOD MALL CIR |
RENO |
NV |
|||
1270 |
3939 S CARSON ST |
CARSON CITY |
NV |
|||
1794 |
4400 MEADOWS LANE |
LAS VEGAS |
NV |
2626 |
1312 W SUNSET RD |
HENDERSON |
NV |
|||
9316 |
11111 STEAD BLVD |
RENO |
NV |
|||
130 |
601-635 HARRY L DR STE 99 |
JOHNSON CITY |
NY |
|||
197 |
360 GATEWAY DR |
BROOKLYN |
NY |
|||
439 |
600 EASTVIEW MALL |
VICTOR |
NY |
|||
1192 |
600 SUNRISE MALL |
MASSAPEQUA L I |
NY |
|||
1510 |
1303 NIAGARA FALLS BLVD |
AMHERST |
NY |
|||
1618 |
25 MIRACLE MILE DR |
ROCHESTER |
NY |
|||
2490 |
231 GREECE RIDGE CTR DR |
GREECE |
NY |
|||
1323 |
5100 GREAT NORTHERN MALL |
N OLMSTED |
OH |
|||
1899 |
4621 EASTGATE BLVD |
CINCINNATI |
OH |
|||
2530 |
1301 CENTER RD |
AVON |
OH |
|||
2683 |
17177 ROYALTON RD |
STRONGSVILLE |
OH |
|||
2700 |
5083 TUTTLE CROSSING BLVD |
DUBLIN |
OH |
|||
2801 |
1450 POLARIS PKWY |
COLUMBUS |
OH |
|||
2862 |
3459 PRINCETON RD |
HAMILTON |
OH |
|||
2931 |
3100 MAIN ST STE 1000 |
MAUMEE |
OH |
|||
2943 |
3675 STONE CREEK BLVD |
COLERAIN TOWNSHIP |
OH |
|||
9130 |
2525 PARK CRESCENT DR |
COLUMBUS |
OH |
|||
1122 |
2501 W MEMORIAL RD |
OKLAHOMA CITY |
OK |
|||
2522 |
9056 N 121ST EAST AVE |
OWASSO |
OK |
|||
2682 |
1901 NW EXPWY STE 1200 |
OKLAHOMA CITY |
OK |
|||
2941 |
2400 S SERVICE RD |
MOORE |
OK |
|||
27 |
12300 SE 82ND AVE |
PORTLAND |
OR |
|||
67 |
500 LEHIGH VALLEY MALL |
WHITEHALL |
PA |
|||
1161 |
5256 ROUTE 30 |
GREENSBURG |
PA |
|||
1212 |
3075 CLAIRTON RD STE 100 |
WEST MIFFLIN |
PA |
|||
2263 |
1006 ROSS PARK MALL DR |
PITTSBURGH |
PA |
|||
2802 |
2000 ROBINSON TOWN CTR |
PITTSBURGH |
PA |
|||
2878 |
4680 HIGH POINTE BLVD |
HARRISBURG |
PA |
|||
367 |
400 BALD HILL RD |
WARWICK |
RI |
|||
695 |
700 HAYWOOD RD |
GREENVILLE |
SC |
|||
2873 |
304 FORUM DR |
COLUMBIA |
SC |
|||
2964 |
2060 SAM RITTENBERG BLVD |
CHARLESTON |
SC |
|||
2989 |
1800 COASTAL GRAND CIR |
MYRTLE BEACH |
SC |
|||
183 |
2100 HAMILTON PLACE BLVD |
CHATTANOOGA |
TN |
|||
1081 |
1780 GALLERIA BLVD |
FRANKLIN |
TN |
|||
2617 |
7600 KINGSTON PIKE |
KNOXVILLE |
TN |
|||
2703 |
2756 N GERMANTOWN PKWY |
MEMPHIS |
TN |
|||
2868 |
401 S MT JULIET RD STE 630 |
MT JULIET |
TN |
|||
2906 |
1720 OLD FORT PKWY |
MURFREESBORO |
TN |
|||
2988 |
7700 POLO GROUNDS BLVD |
MEMPHIS |
TN |
|||
9435 |
1701 INTERMODAL PKWY |
HASLET |
TX |
|||
304 |
3550 MCCANN RD |
LONGVIEW |
TX |
|||
631 |
6301 NW LOOP 410 |
SAN ANTONIO |
TX |
|||
658 |
5300 SAN DARIO |
LAREDO |
TX |
1046 |
2201 S INTERSTATE 35 E STE D |
DENTON |
TX |
|||
1101 |
715 E EXPRESSWAY 83 |
WESLACO |
TX |
|||
1128 |
2520 GULF FWY S |
LEAGUE CITY |
TX |
|||
1419 |
1900 GREEN OAKS RD |
FORT WORTH |
TX |
|||
1958 |
6455 EASTEX FRWY |
BEAUMONT |
TX |
|||
1989 |
6000 SUNSET MALL |
SAN ANGELO |
TX |
|||
2036 |
4511 N MIDKIFF RD |
MIDLAND |
TX |
|||
2040 |
2901 S CAPITOL OF TEXAS HWY |
AUSTIN |
TX |
|||
2055 |
821 N CENTRAL EXPWY |
PLANO |
TX |
|||
2104 |
7925 FM 1960 RD STE 7000 |
HOUSTON |
TX |
|||
2108 |
2000 SAN JACINTO MALL |
BAYTOWN |
TX |
|||
2110 |
2100 S W S YOUNG DR STE 2000 |
KILLEEN |
TX |
|||
2140 |
2006 S EXPY 83 |
HARLINGEN |
TX |
|||
2169 |
7701 W I-40 STE 600 |
AMARILLO |
TX |
|||
2178 |
8106 N NAVARRO ST |
VICTORIA |
TX |
|||
2184 |
1500 HARVEY RD |
COLLEGE STATION |
TX |
|||
2410 |
2401 S STEMMONS FWY STE 4000 |
LEWISVILLE |
TX |
|||
2523 |
215 CREEKSIDE WAY |
NEW BRAUNFELS |
TX |
|||
2685 |
3851 S COOPER ST |
ARLINGTON |
TX |
|||
2696 |
11200 LAKELINE MALL DR |
CEDAR PARK |
TX |
|||
2697 |
16529 SOUTHWEST FRWY |
SUGARLAND |
TX |
|||
2739 |
20131 HWY 59N STE 3000 |
HUMBLE |
TX |
|||
2763 |
1201 LAKE WOODLANDS DR STE 500 |
THE WOODLANDS |
TX |
|||
2795 |
2607 PRESTON RD |
FRISCO |
TX |
|||
2806 |
2370 N EXPWY STE 2000 |
BROWNSVILLE |
TX |
|||
2833 |
6909 N LOOP 1604 E |
SAN ANTONIO |
TX |
|||
2844 |
100 BAYBROOK MALL |
FRIENDSWOOD |
TX |
|||
2863 |
23523 GRAND CIRCLE BLVD |
KATY |
TX |
|||
2877 |
17710 LA CANTERA PKWY |
SAN ANTONIO |
TX |
|||
2881 |
300 MEMORIAL CITY WAY |
HOUSTON |
TX |
|||
2883 |
2500 SMITH RANCH RD |
PEARLAND |
TX |
|||
2884 |
12351 N IH-35 |
AUSTIN |
TX |
|||
2885 |
5120 FAIRMONT PKWY |
PASADENA |
TX |
|||
2904 |
9500 S IH-35 STE H |
AUSTIN |
TX |
|||
2934 |
151 UNIVERSITY OAKS |
ROUND ROCK |
TX |
|||
2944 |
25646 HWY 290 |
CYPRESS |
TX |
|||
2946 |
1015 E I 30 |
ROCKWALL |
TX |
|||
2949 |
1441 N HWY 77 |
WAXAHACHIE |
TX |
|||
2959 |
419 E TRENTON RD |
EDINBURG |
TX |
|||
2960 |
1950 JOE BATTLE BLVD |
EL PASO |
TX |
|||
2980 |
3165 INTERSTATE 45 N |
CONROE |
TX |
|||
2982 |
301 STACY RD |
FAIRVIEW |
TX |
|||
2983 |
800 BARNES ST |
SAN MARCOS |
TX |
|||
2991 |
5335 W LOOP 1604 N |
SAN ANTONIO |
TX |
|||
2911 |
11552 S DISTRICT DR |
SOUTH JORDAN |
UT |
|||
2957 |
4185 RIVERDALE RD |
RIVERDALE |
UT |
192 |
11801 FAIR OAKS MALL |
FAIRFAX |
VA |
|||
778 |
1408 N PARHAM RD |
RICHMOND |
VA |
|||
1135 |
3409 CANDLERS MOUNTAIN RD |
LYNCHBURG |
VA |
|||
1462 |
6699 SPRINGFIELD MALL |
SPRINGFIELD |
VA |
|||
2024 |
1639 E RIO RD |
CHARLOTTESVILLE |
VA |
|||
2177 |
4832 VALLEY VIEW BLVD NW |
ROANOKE |
VA |
|||
2290 |
6 SOUTHPARK MALL |
COLONIAL HTS |
VA |
|||
2619 |
10101 BROOK RD STE 800 |
GLEN ALLEN |
VA |
|||
2749 |
21030 DULLES TOWN CIR |
STERLING |
VA |
|||
2935 |
2071 COLISEUM DR |
HAMPTON |
VA |
|||
1256 |
1321 N COLUMBIA CTR BLVD # 100 |
KENNEWICK |
WA |
|||
1823 |
8900 NE VANCOUVER MALL DR |
VANCOUVER |
WA |
|||
2011 |
18601 33RD AVE W |
LYNNWOOD |
WA |
|||
2327 |
10 BELLIS FAIR PKWY |
BELLINGHAM |
WA |
|||
2353 |
10315 SILVERDALE WAY NW |
SILVERDALE |
WA |
|||
9131 |
11810 W BURLEIGH ST |
WAUWATOSA |
WI |
|||
171 |
10225 77TH ST |
PLEASANT PRAIRIE |
WI |
|||
1217 |
23 WEST TOWNE MALL |
MADISON |
WI |
|||
2185 |
4301 W WISCONSIN AVE |
APPLETON |
WI |
|||
2653 |
4770 GOLF RD |
EAU CLAIRE |
WI |
|||
2866 |
800 WILLARD DR |
ASHWAUBENON |
WI |
|||
1674 |
800 MALL RD |
BARBOURSVILLE |
WV |
|||
2083 |
401 LEE ST E |
CHARLESTON |
WV |
|||
2976 |
515 CABELA DR |
TRIADELPHIA |
WV |
Schedule 5.16(a)(iii)
Title Policy Properties
Store No. | Address | City | State | |||
67 |
500 LEHIGH VALLEY MALL |
WHITEHALL |
PA |
|||
192 |
11801 FAIR OAKS MALL |
FAIRFAX |
VA |
|||
197 |
360 GATEWAY DR |
BROOKLYN |
NY |
|||
237 |
3 ORLAND SQ DR |
ORLAND PARK |
IL |
|||
241 |
2000 RT 38 STE 1000 |
CHERRY HILL |
NJ |
|||
389 |
1500 STONERIDGE MALL RD |
PLEASANTON |
CA |
|||
634 |
3040 PLAZA BONITA RD |
NATIONAL CITY |
CA |
|||
699 |
1169 GLENDALE GALLERIA |
GLENDALE |
CA |
|||
816 |
606 CHRISTIANA MALL |
NEWARK |
DE |
|||
933 |
300 WESTFARMS MALL |
FARMINGTON |
CT |
|||
1229 |
280 HILLCREST DR W |
THOUSAND OAKS |
CA |
|||
1405 |
12421 WAYZATA BLVD |
MINNETONKA |
MN |
|||
1462 |
6699 SPRINGFIELD MALL |
SPRINGFIELD |
VA |
|||
1505 |
1203 PLAZA DR |
WEST COVINA |
CA |
|||
1572 |
6000 S HANNUM AVE |
CULVER CITY |
CA |
|||
1623 |
27150 NOVI RD |
NOVI |
MI |
|||
2011 |
18601 33RD AVE W |
LYNNWOOD |
WA |
|||
2172 |
1600 TOWN CENTER DR |
MONTEBELLO |
CA |
|||
2256 |
7 BACKUS AVE |
DANBURY |
CT |
|||
2297 |
10 MALL DR W |
JERSEY CITY |
NJ |
|||
2795 |
2607 PRESTON RD |
FRISCO |
TX |
|||
9005 |
1634 SALISBURY RD |
STATESVILLE |
NC |
|||
9010 |
6800 VALLEY VIEW AVE STE 202 |
BUENA PARK |
CA |
|||
9130 |
2525 PARK CRESCENT DR |
COLUMBUS |
OH |
|||
9131 |
11810 W BURLEIGH ST |
WAUWATOSA |
WI |
|||
9132 |
16000 W 107TH ST |
LENEXA |
KS |
|||
9316 |
11111 STEAD BLVD |
RENO |
NV |
|||
9317 |
1339 TOLLAND TPK |
MANCHESTER |
CT |
|||
9435 |
1701 INTERMODAL PKWY |
HASLET |
TX |
|||
9486/9129 |
120 PENNEY RD |
ATLANTA |
GA |
Schedule 5.16(a)(iv)
Initial Appraisal Properties
Store # |
Address |
City |
ST |
|||
1 |
722 J C PENNEY DR | KEMMERER | WY | |||
27 |
12300 SE 82ND AVE | PORTLAND | OR | |||
30 |
14301 BURNHAVEN DR | BURNSVILLE | MN | |||
43 |
621 MAIN ST | ALAMOSA | CO | |||
67 |
500 LEHIGH VALLEY MALL | WHITEHALL | PA | |||
90 |
4530 N ORACLE RD | TUCSON | AZ | |||
99 |
300 CROSS CREEK MALL | FAYETTEVILLE | NC | |||
102 |
9801 CORTANA PL | BATON ROUGE | LA | |||
109 |
1343 COMMERCIAL ST | ASTORIA | OR | |||
116 |
81 ROCKINGHAM PARK BLVD | SALEM | NH | |||
130 |
601-635 HARRY L DR STE 99 | JOHNSON CITY | NY | |||
135 |
344 V BUCKLAND HLS DR STE 7000 | MANCHESTER | CT | |||
141 |
1207 N COMMERCE | ARDMORE | OK | |||
152 |
4835 PROMENADE PKWY | BESSEMER | AL | |||
161 |
5043 JIMMY LEE SMITH PKWY | HIRAM | GA | |||
171 |
10225 77TH ST | PLEASANT PRAIRIE | WI | |||
179 |
6051 SKILLMAN ST | DALLAS | TX | |||
183 |
2100 HAMILTON PLACE BLVD | CHATTANOOGA | TN | |||
192 |
11801 FAIR OAKS MALL | FAIRFAX | VA | |||
197 |
360 GATEWAY DR | BROOKLYN | NY | |||
209 |
3411 MERCHANT BLVD | ABINGDON | MD | |||
220 |
1500 E WASHINGTON AVE | UNION GAP | WA | |||
237 |
3 ORLAND SQ DR | ORLAND PARK | IL | |||
241 |
2000 RT 38 STE 1000 | CHERRY HILL | NJ | |||
246 |
20700 AVALON BLVD | CARSON | CA | |||
273 |
701 RUSSELL AVE | GAITHERSBURG | MD | |||
304 |
3550 MCCANN RD | LONGVIEW | TX | |||
334 |
1330 TRAVIS BLVD | FAIRFIELD | CA | |||
355 |
1251 US 31 N | GREENWOOD | IN | |||
367 |
400 BALD HILL RD | WARWICK | RI | |||
389 |
1500 STONERIDGE MALL RD | PLEASANTON | CA | |||
439 |
600 EASTVIEW MALL | VICTOR | NY | |||
465 |
24140 MAGIC MOUNTAIN PKY | SANTA CLARITA | CA | |||
466 |
150 HOMER ADAMS PKWY | ALTON | IL | |||
478 |
5200 MEADOWOOD MALL CIR | RENO | NV | |||
496 |
1700 W COUNTY RD B-2 | ROSEVILLE | MN | |||
497 |
305 MOUNT HOPE AVE | ROCKAWAY | NJ | |||
559 |
2424 US 6TH AND 50TH | GRAND JUNCTION | CO | |||
566 |
2555 EL CAMINO REAL | CARLSBAD | CA | |||
631 |
6301 NW LOOP 410 | SAN ANTONIO | TX | |||
634 |
3040 PLAZA BONITA RD | NATIONAL CITY | CA | |||
652 |
2200 W WAR MEMORIAL DR STE 997 | PEORIA | IL | |||
658 |
5300 SAN DARIO | LAREDO | TX | |||
695 |
700 HAYWOOD RD | GREENVILLE | SC |
Store # |
Address |
City |
ST |
|||
699 |
1169 GLENDALE GALLERIA | GLENDALE | CA | |||
7034770703 |
408 MITCHELL ST | PETOSKEY | MI | |||
731 |
3202 OAKVIEW DR | OMAHA | NE | |||
778 |
1408 N PARHAM RD | RICHMOND | VA | |||
779 |
6000 FLORENCE MALL | FLORENCE | KY | |||
786 |
7900 GOVERNOR RITCHIE HWY | GLEN BURNIE | MD | |||
816 |
606 CHRISTIANA MALL | NEWARK | DE | |||
863 |
680 CITADEL DR E | COLORADO SPRINGS | CO | |||
910 |
4129 E WILDER RD | BAY CITY | MI | |||
933 |
300 WESTFARMS MALL | FARMINGTON | CT | |||
951 |
1365 N DUPONT HWY STE 5000 | DOVER | DE | |||
982 |
7777 EASTPOINT MALL | BALTIMORE | MD | |||
1046 |
2201 S INTERSTATE 35 E STE D | DENTON | TX | |||
1049 |
4 FOX VALLEY CTR | AURORA | IL | |||
1064 |
324 E SAN ANTONIO ST | EL PASO | TX | |||
1081 |
1780 GALLERIA BLVD | FRANKLIN | TN | |||
1101 |
715 E EXPRESSWAY 83 | WESLACO | TX | |||
1106 |
1950 PRAIRIE CENTER PKWY | BRIGHTON | CO | |||
1122 |
2501 W MEMORIAL RD | OKLAHOMA CITY | OK | |||
1128 |
2520 GULF FWY S | LEAGUE CITY | TX | |||
1135 |
3409 CANDLERS MOUNTAIN RD | LYNCHBURG | VA | |||
1140 |
4541 S LABURNUM AVE | RICHMOND | VA | |||
1150 |
STATE HWY 35 AND 36 | EATONTOWN | NJ | |||
1156 |
4915 CLAREMONT AVE | STOCKTON | CA | |||
1161 |
5256 ROUTE 30 | GREENSBURG | PA | |||
1168 |
14200 E ALAMEDA AVE | AURORA | CO | |||
1180 |
260 WAYNE TOWNE CTR | WAYNE | NJ | |||
1192 |
600 SUNRISE MALL | MASSAPEQUA L I | NY | |||
1212 |
3075 CLAIRTON RD STE 100 | WEST MIFFLIN | PA | |||
1217 |
23 WEST TOWNE MALL | MADISON | WI | |||
1223 |
24200 LAGUNA HILLS MALL | LAGUNA HILLS | CA | |||
1229 |
280 HILLCREST DR W | THOUSAND OAKS | CA | |||
1256 |
1321 N COLUMBIA CTR BLVD # 100 | KENNEWICK | WA | |||
1270 |
3939 S CARSON ST | CARSON CITY | NV | |||
1306 |
35000 W WARREN RD | WESTLAND | MI | |||
1323 |
5100 GREAT NORTHERN MALL | N OLMSTED | OH | |||
1352 |
700 W 14 MILE RD | TROY | MI | |||
1389 |
11801 W 95TH ST | OVERLAND PARK | KS | |||
1398 |
23000 EUREKA RD STE A3 | TAYLOR | MI | |||
1405 |
12421 WAYZATA BLVD | MINNETONKA | MN | |||
1419 |
1900 GREEN OAKS RD | FORT WORTH | TX | |||
1432 |
14300 LAKESIDE CIR | STERLING HTS | MI | |||
1443 |
245 ST CLAIR SQ | FAIRVIEW HGTS | IL | |||
1451 |
3340 MALL LOOP DR SPACE 2 | JOLIET | IL | |||
1462 |
6699 SPRINGFIELD MALL | SPRINGFIELD | VA | |||
1475 |
27001 US HWY 19 N | CLEARWATER | FL | |||
1480 |
4510 E CACTUS RD | PHOENIX | AZ |
Store # |
Address |
City |
ST |
|||
1505 |
1203 PLAZA DR | WEST COVINA | CA | |||
1510 |
1303 NIAGARA FALLS BLVD | AMHERST | NY | |||
1529 |
755 STATE RT 18 STE 600 | E BRUNSWICK | NJ | |||
1572 |
6000 S HANNUM AVE | CULVER CITY | CA | |||
1580 |
3225 28TH ST SE | GRAND RAPIDS | MI | |||
1590 |
4600 W KELLOGG RD | WICHITA | KS | |||
1618 |
25 MIRACLE MILE DR | ROCHESTER | NY | |||
1623 |
27150 NOVI RD | NOVI | MI | |||
1674 |
800 MALL RD | BARBOURSVILLE | WV | |||
1704 |
4803 OUTER LOOP RD | LOUISVILLE | KY | |||
1786 |
1701 MACFARLAND BLVD E | TUSCALOOSA | AL | |||
1794 |
4400 MEADOWS LANE | LAS VEGAS | NV | |||
1823 |
8900 NE VANCOUVER MALL DR | VANCOUVER | WA | |||
1869 |
8200 PERRY HALL BLVD | BALTIMORE | MD | |||
1899 |
4621 EASTGATE BLVD | CINCINNATI | OH | |||
1951 |
3401 DONNELL DR | FORESTVILLE | MD | |||
1958 |
6455 EASTEX FRWY | BEAUMONT | TX | |||
1960 |
3605 GALLERIA AT TYLER | RIVERSIDE | CA | |||
1963 |
320 W KIMBERLY RD STE 409 | DAVENPORT | IA | |||
1979 |
3535 S LINDEN RD | FLINT | MI | |||
1981 |
2901 BROOKS ST | MISSOULA | MT | |||
1982 |
6580 S WESTNEDGE AVE | PORTAGE | MI | |||
1983 |
428 WOODBRIDGE CTR DR | WOODBRIDGE | NJ | |||
1989 |
6000 SUNSET MALL | SAN ANGELO | TX | |||
2006 |
3600 COUNTRY CLUB DR STOP 4 | JEFFERSON CITY | MO | |||
2011 |
18601 33RD AVE W | LYNNWOOD | WA | |||
2024 |
1639 E RIO RD | CHARLOTTESVILLE | VA | |||
2036 |
4511 N MIDKIFF RD | MIDLAND | TX | |||
2040 |
2901 S CAPITOL OF TEXAS HWY | AUSTIN | TX | |||
2055 |
821 N CENTRAL EXPWY | PLANO | TX | |||
2059 |
5801 BECKLEY RD | BATTLE CREEK | MI | |||
2083 |
401 LEE ST E | CHARLESTON | WV | |||
2091 |
700 MAINE MALL RD | SOUTH PORTLAND | ME | |||
2096 |
72900 HWY 111 | PALM DESERT | CA | |||
2102 |
1695 ANNAPOLIS MALL | ANNAPOLIS | MD | |||
2104 |
7925 FM 1960 RD STE 7000 | HOUSTON | TX | |||
2108 |
2000 SAN JACINTO MALL | BAYTOWN | TX | |||
2110 |
2100 S W S YOUNG DR STE 2000 | KILLEEN | TX | |||
2115 |
2000 MARTIN LUTHER KING JR BLV | PANAMA CITY | FL | |||
2123 |
2950 E TEXAS AVE | BOSSIER CITY | LA | |||
2140 |
2006 S EXPY 83 | HARLINGEN | TX | |||
2160 |
5453 W 88TH AVE | WESTMINSTER | CO | |||
2163 |
200 RIVER OAKS DR | CALUMET CITY | IL | |||
2168 |
1200 E COUNTY LINE RD | RIDGELAND | MS | |||
2169 |
7701 W I-40 STE 600 | AMARILLO | TX | |||
2171 |
290 E VIA RANCHO PKWY | ESCONDIDO | CA | |||
2172 |
1600 TOWN CENTER DR | MONTEBELLO | CA |
Store # |
Address |
City |
ST |
|||
2173 |
ONE MALL BLVD | BRUNSWICK | GA | |||
2175 |
4761 PECANLAND MALL DR | MONROE | LA | |||
2177 |
4832 VALLEY VIEW BLVD NW | ROANOKE | VA | |||
2178 |
8106 N NAVARRO ST | VICTORIA | TX | |||
2184 |
1500 HARVEY RD | COLLEGE STATION | TX | |||
2185 |
4301 W WISCONSIN AVE | APPLETON | WI | |||
2209 |
2501 MING AVE | BAKERSFIELD | CA | |||
2218 |
2300 RIVERCHASE GALLERIA | HOOVER | AL | |||
2229 |
4250 CERRILLOS RD | SANTA FE | NM | |||
2232 |
5065 MAIN ST | TRUMBULL | CT | |||
2247 |
310 DANIEL WEBSTER HWY STE 103 | NASHUA | NH | |||
2250 |
50 FOX RUN RD STE 35 | NEWINGTON | NH | |||
2256 |
7 BACKUS AVE | DANBURY | CT | |||
2258 |
3450 WRIGHTSBORO RD | AUGUSTA | GA | |||
2263 |
1006 ROSS PARK MALL DR | PITTSBURGH | PA | |||
2265 |
2901 PINES MALL DR STE A | PINE BLUFF | AR | |||
2266 |
2080 GREELEY MALL | GREELEY | CO | |||
2279 |
4901 N KICKAPOO AVE STE 4000 | SHAWNEE | OK | |||
2284 |
2301 W WORLEY | COLUMBIA | MO | |||
2287 |
4405 BLACK HORSE PIKE | MAYS LANDING | NJ | |||
2290 |
6 SOUTHPARK MALL | COLONIAL HTS | VA | |||
2297 |
10 MALL DR W | JERSEY CITY | NJ | |||
2303 |
1970 US HWY 70 SE | HICKORY | NC | |||
2304 |
1821 SW WANAMAKER RD | TOPEKA | KS | |||
2312 |
300 N MILWAUKEE ST | BOISE | ID | |||
2316 |
2601 DAWSON RD | ALBANY | GA | |||
2327 |
10 BELLIS FAIR PKWY | BELLINGHAM | WA | |||
2346 |
3 S TUNNEL RD | ASHEVILLE | NC | |||
2349 |
3300 S AIRPORT RD W | TRAVERSE CITY | MI | |||
2353 |
10315 SILVERDALE WAY NW | SILVERDALE | WA | |||
2388 |
1131 W RANCHO VISTA BLVD | PALMDALE | CA | |||
2392 |
1600 N STATE RT 50 | BOURBONNAIS | IL | |||
2398 |
900 COMMONS DR STE 900 | DOTHAN | AL | |||
2410 |
2401 S STEMMONS FWY STE 4000 | LEWISVILLE | TX | |||
2414 |
355 FLETCHER PKWY | EL CAJON | CA | |||
2428 |
4400 24TH AVE | FORT GRATIOT | MI | |||
2443 |
11130 MALL CIR | WALDORF | MD | |||
2445 |
6840 EASTMAN AVE | MIDLAND | MI | |||
2467 |
1695 ARDEN WAY | SACRAMENTO | CA | |||
2477 |
3710 HWY 9 | FREEHOLD | NJ | |||
2480 |
22450 TOWN CIR | MORENO VALLEY | CA | |||
2482 |
5725 JOHNSTON ST | LAFAYETTE | LA | |||
2490 |
231 GREECE RIDGE CTR DR | GREECE | NY | |||
2495 |
1850 ADAMS ST STE 2 | MANKATO | MN | |||
2496 |
500 NEWPARK MALL | NEWARK | CA | |||
2507 |
312 W PRIEN LAKE RD | LAKE CHARLES | LA | |||
2521 |
9100 N SKYVIEW AVE | KANSAS CITY | MO |
Store # |
Address |
City |
ST |
|||
2522 |
9056 N 121ST EAST AVE | OWASSO | OK | |||
2523 |
215 CREEKSIDE WAY | NEW BRAUNFELS | TX | |||
2524 |
2421 CRANBERRY HWY STE 290 | WAREHAM | MA | |||
2526 |
7352 GLORY RD | BAXTER | MN | |||
2527 |
500 WINCHESTER AVE | ASHLAND | KY | |||
2529 |
11534 PARKSIDE DR | FARRAGUT | TN | |||
2530 |
1301 CENTER RD | AVON | OH | |||
2534 |
501 C M FAGAN DR | HAMMOND | LA | |||
2613 |
1932 E 20TH ST | CHICO | CA | |||
2617 |
7600 KINGSTON PIKE | KNOXVILLE | TN | |||
2619 |
10101 BROOK RD STE 800 | GLEN ALLEN | VA | |||
2626 |
1312 W SUNSET RD | HENDERSON | NV | |||
2631 |
58000 TWENTY-NINE PALMS HWY | YUCCA VALLEY | CA | |||
2632 |
4 MID RIVERS MALL | ST PETERS | MO | |||
2651 |
68 GATEWAY MALL | LINCOLN | NE | |||
2653 |
4770 GOLF RD | EAU CLAIRE | WI | |||
2655 |
90 W 5TH ST | DOUGLAS | AZ | |||
2661 |
RT 60 & HWY 21 | VERNON HILLS | IL | |||
2663 |
377 S MILLS RD | VENTURA | CA | |||
2676 |
1215 S MAIN ST | SIKESTON | MO | |||
2678 |
658 RICHLAND MALL | MANSFIELD | OH | |||
2682 |
1901 NW EXPWY STE 1200 | OKLAHOMA CITY | OK | |||
2683 |
17177 ROYALTON RD | STRONGSVILLE | OH | |||
2685 |
3851 S COOPER ST | ARLINGTON | TX | |||
2690 |
1000 TURTLE CREEK DR | HATTIESBURG | MS | |||
2692 |
2422 W KETTLEMAN LANE | LODI | CA | |||
2696 |
11200 LAKELINE MALL DR | CEDAR PARK | TX | |||
2697 |
16529 SOUTHWEST FRWY | SUGARLAND | TX | |||
2700 |
5083 TUTTLE CROSSING BLVD | DUBLIN | OH | |||
2703 |
2756 N GERMANTOWN PKWY | MEMPHIS | TN | |||
2704 |
10000 COORS BYPASS NW | ALBUQUERQUE | NM | |||
2708 |
573 DONALD LYNCH BLVD | MARLBOROUGH | MA | |||
2729 |
3311 IOWA ST | LAWRENCE | KS | |||
2739 |
20131 HWY 59N STE 3000 | HUMBLE | TX | |||
2742 |
1840 COUNTRYSIDE DR | TURLOCK | CA | |||
2749 |
21030 DULLES TOWN CIR | STERLING | VA | |||
2753 |
6201 BLUEBONNET BLVD | BATON ROUGE | LA | |||
2755 |
120 NIBLICK RD | PASO ROBLES | CA | |||
2757 |
8417 S PARK MEADOWS CTR DR | LONE TREE | CO | |||
2758 |
1471 CORAL RIDGE AVE | CORALVILLE | IA | |||
2763 |
1201 LAKE WOODLANDS DR STE 500 | THE WOODLANDS | TX | |||
2767 |
1500 S WILLOW ST | MANCHESTER | NH | |||
2783 |
40640 WINCHESTER RD | TEMECULA | CA | |||
2785 |
3774 RIVERTOWN PRKWY SW | GRANDVILLE | MI | |||
2795 |
2607 PRESTON RD | FRISCO | TX | |||
2796 |
1125 GALLERIA BLVD | ROSEVILLE | CA | |||
2801 |
1450 POLARIS PKWY | COLUMBUS | OH |
Store # |
Address |
City |
ST |
|||
2802 |
2000 ROBINSON TOWN CTR | PITTSBURGH | PA | |||
2806 |
2370 N EXPWY STE 2000 | BROWNSVILLE | TX | |||
2807 |
5690 HARVEY ST | MUSKEGON | MI | |||
2815 |
3200 GATEWAY BLVD | PRESCOTT | AZ | |||
2816 |
3351 S DOGWOOD | EL CENTRO | CA | |||
2824 |
6620 TOWNE CENTER LOOP STE E | SOUTHAVEN | MS | |||
2830 |
7200 E HARRISON AVE | ROCKFORD | IL | |||
2833 |
6909 N LOOP 1604 E | SAN ANTONIO | TX | |||
2834 |
69340 HWY 21 | COVINGTON | LA | |||
2835 |
3000 E HIGHLAND DR STE 516 | JONESBORO | AR | |||
2837 |
1375 S YUMA PALMS PKWY | YUMA | AZ | |||
2840 |
1236 EASTDALE MALL | MONTGOMERY | AL | |||
2844 |
100 BAYBROOK MALL | FRIENDSWOOD | TX | |||
2848 |
4485 S GRAND CANYON DR | LAS VEGAS | NV | |||
2849 |
10000 ALABAMA ST | REDLANDS | CA | |||
2862 |
3459 PRINCETON RD | HAMILTON | OH | |||
2863 |
23523 GRAND CIRCLE BLVD | KATY | TX | |||
2864 |
3001 WHITE BEAR AVE | MAPLEWOOD | MN | |||
2865 |
8348 TAMARACK VILLAGE | WOODBURY | MN | |||
2866 |
800 WILLARD DR | ASHWAUBENON | WI | |||
2868 |
401 S MT JULIET RD STE 630 | MT JULIET | TN | |||
2869 |
5060 PINNACLE SQ | TRUSSVILLE | AL | |||
2872 |
1380 HWY 20 W | MCDONOUGH | GA | |||
2873 |
304 FORUM DR | COLUMBIA | SC | |||
2874 |
341 NEWNAN CROSSING BYP | NEWNAN | GA | |||
2875 |
22500 TOWN CENTER AVE | SPANISH FORT | AL | |||
2876 |
14658 DELAWARE ST | WESTMINSTER | CO | |||
2877 |
17710 LA CANTERA PKWY | SAN ANTONIO | TX | |||
2878 |
4680 HIGH POINTE BLVD | HARRISBURG | PA | |||
2879 |
2202 BELLVIEW RD | ROGERS | AR | |||
2881 |
300 MEMORIAL CITY WAY | HOUSTON | TX | |||
2883 |
2500 SMITH RANCH RD | PEARLAND | TX | |||
2884 |
12351 N IH-35 | AUSTIN | TX | |||
2885 |
5120 FAIRMONT PKWY | PASADENA | TX | |||
2903 |
3141 WATERMILL DR | BURLINGTON | NC | |||
2904 |
9500 S IH-35 STE H | AUSTIN | TX | |||
2906 |
1720 OLD FORT PKWY | MURFREESBORO | TN | |||
2907 |
6302 S CENTRAL ST | AURORA | CO | |||
2909 |
7939 HWY N | DARDENNE PRAIRIE | MO | |||
2910 |
7751 TOWNE CENTER PKWY | PAPILLION | NE | |||
2911 |
11552 S DISTRICT DR | SOUTH JORDAN | UT | |||
2914 |
2600 S SHACKLEFORD RD | LITTLE ROCK | AR | |||
2918 |
340 S COLONIAL DR | ALABASTER | AL | |||
2920 |
9480 VILLAGE PLACE BLVD | BRIGHTON | MI | |||
2922 |
13900 HOARD DR | NOBLESVILLE | IN | |||
2926 |
7451 YOUREE DR | SHREVEPORT | LA | |||
2927 |
410 PORTERS VALE BLVD | VALPARAISO | IN |
Store # |
Address |
City |
ST |
|||
2928 |
1100 OGDEN AVE | MONTGOMERY | IL | |||
2930 |
1600 ORCHARD GATEWAY BLVD | NORTH AURORA | IL | |||
2931 |
3100 MAIN ST STE 1000 | MAUMEE | OH | |||
2932 |
3400 RIO GRANDE AVE | MONTROSE | CO | |||
2933 |
1200 N HAPPY VALLEY RD | NAMPA | ID | |||
2934 |
151 UNIVERSITY OAKS | ROUND ROCK | TX | |||
2935 |
2071 COLISEUM DR | HAMPTON | VA | |||
2937 |
14659 RAMONA AVE | CHINO | CA | |||
2941 |
2400 S SERVICE RD | MOORE | OK | |||
2942 |
7271 SE 29TH ST | MIDWEST CITY | OK | |||
2943 |
3675 STONE CREEK BLVD | COLERAIN TOWNSHIP | OH | |||
2944 |
25646 HWY 290 | CYPRESS | TX | |||
2946 |
1015 E I 30 | ROCKWALL | TX | |||
2949 |
1441 N HWY 77 | WAXAHACHIE | TX | |||
2950 |
800 S RANDALL RD | ALGONQUIN | IL | |||
2951 |
2940 COMMERCE DR | JOHNSBURG | IL | |||
2952 |
4451 PROMENADE WAY | MATTESON | IL | |||
2953 |
8100 N FLINTLOCK RD | KANSAS CITY | MO | |||
2956 |
550 PINNACLE PL | PRATTVILLE | AL | |||
2957 |
4185 RIVERDALE RD | RIVERDALE | UT | |||
2959 |
419 E TRENTON RD | EDINBURG | TX | |||
2960 |
1950 JOE BATTLE BLVD | EL PASO | TX | |||
2961 |
3125 LOUISIANA AVE | LAFAYETTE | LA | |||
2964 |
2060 SAM RITTENBERG BLVD | CHARLESTON | SC | |||
2965 |
3650 NEW CENTER PT | COLORADO SPRINGS | CO | |||
2966 |
8568 E 49TH AVE | DENVER | CO | |||
2967 |
50753 WATERSIDE DR | CHESTERFIELD TOWNSHP | MI | |||
2971 |
300 TOWN CENTER BLVD | WHITE LAKE TOWNSHIP | MI | |||
2972 |
43690 FORD RD | CANTON | MI | |||
2973 |
11325 W LINCOLN HWY | MOKENA | IL | |||
2975 |
3333 MARKET PLACE DR | COUNCIL BLUFFS | IA | |||
2976 |
515 CABELA DR | TRIADELPHIA | WV | |||
2977 |
5886 HIGHWAY 100 | WASHINGTON | MO | |||
2980 |
3165 INTERSTATE 45 N | CONROE | TX | |||
2982 |
301 STACY RD | FAIRVIEW | TX | |||
2983 |
800 BARNES ST | SAN MARCOS | TX | |||
2986 |
200 MARKET ST | FLOWOOD | MS | |||
2988 |
7700 POLO GROUNDS BLVD | MEMPHIS | TN | |||
2989 |
1800 COASTAL GRAND CIR | MYRTLE BEACH | SC | |||
2990 |
6901 W 135TH ST | OVERLAND PARK | KS | |||
2991 |
5335 W LOOP 1604 N | SAN ANTONIO | TX | |||
2993 |
798 GRAVOIS BLUFFS BLVD | FENTON | MO | |||
2994 |
3363 LOWERY PKWY | FULTONDALE | AL | |||
2998 |
19005 SE MILL PLAIN BLVD | VANCOUVER | WA | |||
2999 |
1060 PERIMETER DR | MANTECA | CA | |||
9005 |
1634 SALISBURY RD | STATESVILLE | NC | |||
9010 |
6800 VALLEY VIEW AVE STE 202 | BUENA PARK | CA |
Store # |
Address |
City |
ST |
|||
9130 |
2525 PARK CRESCENT DR | COLUMBUS | OH | |||
9131 |
11810 W BURLEIGH ST | WAUWATOSA | WI | |||
9132 |
16000 W 107TH ST | LENEXA | KS | |||
9316 |
11111 STEAD BLVD | RENO | NV | |||
9317 |
1339 TOLLAND TPK | MANCHESTER | CT | |||
9435 |
1701 INTERMODAL PKWY | HASLET | TX | |||
9486/9129 |
120 PENNEY RD | ATLANTA | GA |
Schedule 6.1
Certain Indebtedness
Capital lease obligations as set forth on Annex A hereto |
Amount as of
4/30/2016: $24,651,224.32 |
|
Promissory Note dated March 2, 2016 in the amount of $3,500,000 executed by J. C. Penney Services India Private Limited payable to J. C. Penney Corporation, Inc. |
Annex A
Capital Lease Obligations
(see attached)
J. C. Penney Company, Inc.
Schedule of Capital Leases
As of April 30, 2016
|
|
|||||||||
Total Capital Leases | 24,651,224.32 | |||||||||
|
|
|||||||||
Store Capital Leases |
||||||||||
Store Number |
Description |
End Date |
Total Ending
Obligation |
|||||||
00370 |
Richmond CA | 05/31/2021 | 857,101.06 | |||||||
00700 |
Trenton NJ | 04/30/2021 | 742,783.54 | |||||||
00819 |
Ann Arbor MI | 03/31/2019 | 383,788.93 | |||||||
|
|
|||||||||
1,983,673.53 | ||||||||||
|
|
|||||||||
Other Real Estate Leases |
||||||||||
Store Number |
Description |
End Date |
Total Ending
Obligation |
|||||||
02894 |
Lithonia GA | 11/15/2021 | 169,620.00 | |||||||
|
|
|||||||||
169,620.00 | ||||||||||
|
|
|||||||||
Printer Leases |
||||||||||
Lease Number |
Description |
End Date |
Total Ending
Obligation |
|||||||
Cannon Printer-30 |
HO Print Shop | 09/11/2018 | 625,120.36 | |||||||
Entouch |
Energy Mgmt System | 06/30/2017 | 159,218.21 | |||||||
|
|
|||||||||
784,338.57 | ||||||||||
|
|
|||||||||
IT Capital Leases |
||||||||||
Lease Number |
Description |
End Date |
Total Ending
Obligation |
|||||||
Cisco-10 |
3rd Party Hardware-SC007-0-Network Refresh | 07/31/2017 | 259,548.53 | |||||||
Cisco-11 |
3rd Party hardware-SC008-0-Network Refresh | 07/31/2017 | 198,234.17 | |||||||
Cisco-12 |
3rd Party Hardware-SC009-0-network refresh | 07/31/2017 | 196,375.01 | |||||||
Cisco-13 |
Cisco Hardware-011-000-Network Refresh | 07/31/2017 | 2,091,254.69 | |||||||
Cisco-15 |
Cisco-012-000-Network Refresh P1203565 | 08/31/2017 | 828,836.47 | |||||||
Cisco-16 |
Cisco-013-000-Network Refresh-P1203565 | 08/31/2017 | 1,043,093.81 | |||||||
Cisco-17 |
Network Refresh - 018-000 | 10/31/2017 | 322,988.48 | |||||||
Cisco-31 |
019-000 Network Refresh P108420 | 05/31/2018 | 140,195.06 | |||||||
Cisco-5 |
Cisco hardware 001-000 Network Refresh | 07/31/2017 | 395,232.58 | |||||||
Cisco-6 |
Cisco hardware-002-000-Network Refresh | 07/31/2017 | 6,782,156.41 | |||||||
Cisco-7 |
3rd Party-SC003-0-Network Refresh Hardware | 07/31/2017 | 386,882.50 | |||||||
Cisco-8 |
3rd Party Hardware-SC004-0-Network Refresh | 07/31/2017 | 259,549.21 | |||||||
Cisco-9 |
Cisco Hardware-SC005-0-Networ Refresh | 07/31/2017 | 1,334,396.25 | |||||||
EMC-3 |
Lenexa VMAX - ADW Refresh | 06/30/2016 | 65,050.37 | |||||||
HPFS-27 |
100017000095-P1203565-Network Refresh | 12/31/2017 | 205,769.28 | |||||||
HPFS-28 |
100017000096-P1203565-Network Refresh | 12/31/2017 | 829,245.32 | |||||||
HPFS-29 |
100017000098-3rd Party Services - Network Refresh | 02/28/2018 | 495,894.32 | |||||||
HPFS-30 |
100017000099-3rd Party Services-Network Refresh | 03/31/2018 | 345,486.30 | |||||||
IBM-1 |
Columbus HX5 Blades - network refresh | 06/30/2016 | 3,848.51 | |||||||
IBM-14 |
IBM-D00H24350 - Network Refresh-P1203566 | 07/31/2017 | 14,942.69 | |||||||
IBM-18 |
Alcatel Upgrade - D00H25218 - P1203565 | 07/31/2017 | 107,411.16 | |||||||
IBM-19 |
D00H26156 - P1203565 - Network Refresh | 08/31/2017 | 461,588.94 | |||||||
IBM-2 |
Lenexa HX5 Blades - Network Refresh | 06/30/2016 | 3,610.92 |
IT Capital Leases (continued) |
||||||||||
Lease Number |
Description |
End Date |
Total Ending
Obligation |
|||||||
IBM-20 |
D00H27425-P1203565-Network Refresh | 08/31/2017 | 156,722.31 | |||||||
IBM-21 |
D00H30101 - P1203565 - Network Refresh | 10/31/2017 | 86,021.16 | |||||||
IBM-22 |
D00H30404-P1203565 - Network Refresh | 11/30/2017 | 70,755.21 | |||||||
IBM-23 |
D00H32051 - P1203565 - Network Refresh | 11/30/2017 | 1,131,792.14 | |||||||
IBM-24 |
D00H31180 - P1203565 - Network Refresh | 11/30/2017 | 769,268.73 | |||||||
IBM-25 |
D00H32409 - P1203565 - Network Refresh | 11/30/2017 | 1,165,997.56 | |||||||
IBM-26 |
D00H34254-P1203565-Network Refresh | 12/31/2017 | 15,862.95 | |||||||
IGF-4 |
jTime Hardware - jTime Upgrade | 06/30/2016 | 4,737.43 | |||||||
|
|
|||||||||
20,172,748.47 | ||||||||||
|
|
|||||||||
Vehicle Leases |
||||||||||
Lease Number |
Description |
End Date |
Total Ending
Obligation |
|||||||
1053SL1 |
FREDERICKSBURG, VA | 07/13/2016 | 637.06 | |||||||
1054SL1 |
MADISON, WI | 07/25/2016 | 805.18 | |||||||
1055SL1 |
SPRINGFIELD, IL | 07/12/2016 | 618.85 | |||||||
1221SL1 |
Tukwilla, WA | 10/31/2017 | 7,713.93 | |||||||
1222SL1 |
Tukwila, WA | 10/31/2017 | 7,713.93 | |||||||
1223SL1 |
MICHIGAN CITY, IN | 10/31/2017 | 7,755.83 | |||||||
1224SL1 |
SPRINGFIELD, IL | 10/31/2017 | 7,727.34 | |||||||
1225SL1 |
RALEIGH, NC | 10/31/2017 | 7,715.61 | |||||||
1226 SL1 |
WILLIAMSVILLE, NY | 10/31/2017 | 7,705.22 | |||||||
1227SL1 |
BALTIMORE, MD | 10/31/2017 | 7,730.69 | |||||||
1228SL1 |
CHERRY HILL, NJ | 10/31/2017 | 7,712.26 | |||||||
1229SL1 |
BAY CITY, MI | 10/31/2017 | 7,705.89 | |||||||
1230SL1 |
DEARBORN, MI | 10/31/2017 | 7,713.43 | |||||||
1231SL1 |
RICHMOND HEIGHTS, OH | 10/31/2017 | 7,725.83 | |||||||
1232SL1 |
CINCINNATI, OH | 10/31/2017 | 7,721.81 | |||||||
1233SL1 |
BUENA PARK, CA | 10/31/2017 | 7,714.10 | |||||||
1234SL1 |
BUENA PARK, CA | 10/31/2017 | 7,714.10 | |||||||
1235SL1 |
HOUSTON, TX | 10/31/2017 | 7,700.36 | |||||||
1236SL1 |
HOUSTON, TX | 10/31/2017 | 7,700.36 | |||||||
1237SL1 |
GOODLETTSVILLE, TN | 10/31/2017 | 7,702.20 | |||||||
1238SL1 |
ALTAMONTE SPRINGS, FL | 10/31/2017 | 7,702.20 | |||||||
1239SL1 |
Dearborn, MI | 09/04/2018 | 12,579.95 | |||||||
1240SL1 |
Greenwood, IN | 08/20/2018 | 12,105.74 | |||||||
1241SL1 |
Raleigh, NC | 09/22/2018 | 12,597.19 | |||||||
1242SL1 |
Coral Springs, FL | 09/12/2018 | 12,583.51 | |||||||
1243SL1 |
St. Petersburg, FL | 09/17/2018 | 12,602.66 | |||||||
1244SL1 |
Altamonte Springs, FL | 09/22/2018 | 12,608.13 | |||||||
1245SL1 |
Baton Rouge, LA | 09/17/2018 | 12,608.13 | |||||||
1246SL1 |
Fort Worth, TX | 09/16/2018 | 12,588.98 | |||||||
1247SL1 |
Fort Worth, TX | 09/14/2018 | 12,588.98 | |||||||
1248SL1 |
Aurora, CO | 09/10/2018 | 12,635.49 | |||||||
1249SL1 |
Salt Lake City, UT | 09/09/2018 | 12,594.45 | |||||||
1250SL1 |
St. Louis, MO | 09/17/2018 | 12,572.57 | |||||||
1251SL1 |
Vancouver, WA | 09/11/2018 | 12,649.17 |
Vehicle Leases (continued) |
||||||||||
Lease Number |
Description |
End Date |
Total Ending
Obligation |
|||||||
1252SL1 |
Plano, TX | 01/05/2019 | 17,830.38 | |||||||
1253SL1 |
Plano, TX | 01/05/2019 | 16,427.82 | |||||||
1254SL1 |
345655 - Chevy G2500 EXT - 2013 | 05/03/2018 | 13,753.54 | |||||||
1255SL1 |
345656 - Chevy G2500 EXT - 2013 | 05/03/2018 | 13,753.54 | |||||||
1256SL1 |
441515 - JEEP Compass - 2014 | 06/30/2018 | 10,380.31 | |||||||
1257SL1 |
441851 - JEEP Compass FWD - 2014 | 06/30/2018 | 10,131.06 | |||||||
1258SL1 |
443369 - Toyota Tacoma REG - 2014 | 06/30/2018 | 9,932.15 | |||||||
1259SL1 |
443912 - Ford Escape S - 2014 | 05/08/2017 | 7,942.90 | |||||||
1260SL1 |
444288 - Ford Escape SE - 2014 | 06/26/2017 | 10,275.84 | |||||||
1261SL1 |
ATLANTA, GA | 02/12/2020 | 29,450.24 | |||||||
1262SL1 |
444704 - Ford Escape SE - 2014 | 08/28/2017 | 7,804.39 | |||||||
1263SL1 |
RICHMOND, CA | 02/16/2020 | 29,496.66 | |||||||
1264SL1 |
RICHMOND, CA | 02/16/2020 | 29,496.66 | |||||||
1265SL1 |
LOMBARD, IL | 03/24/2020 | 6,043.38 | |||||||
1266SL1 |
LOMBARD, IL | 02/23/2020 | 29,520.95 | |||||||
1267SL1 |
FORT WORTH, TX | 02/12/2020 | 29,371.29 | |||||||
1268SL1 |
LAKEWOOD, CA | 02/26/2020 | 29,389.50 | |||||||
1269SL1 |
LAKEWOOD, CA | 02/26/2020 | 29,389.50 | |||||||
1270SL1 |
MEDIA, PA | 02/18/2020 | 29,371.72 | |||||||
1271SL1 |
MEDIA, PA | 02/18/2020 | 29,371.72 | |||||||
1272SL1 |
FORT MYERS, FL | 02/15/2020 | 29,415.10 | |||||||
1273SL1 |
SAINT PETERSBURG, FL | 02/15/2020 | 29,409.03 | |||||||
1274SL1 |
FORT MYERS, FL | 02/11/2020 | 29,368.68 | |||||||
1275SL1 |
ALTAMONTE SPRINGS, FL | 02/09/2020 | 29,422.47 | |||||||
1276SL1 |
MANCHESTER, CT | 02/03/2020 | 25,074.43 | |||||||
1277SL1 |
2015 FORD TRANSIT - 545128 | 09/01/2019 | 21,742.98 | |||||||
1278SL1 |
2015 FORD TRANSIT -545129 | 11/07/2019 | 24,162.56 | |||||||
1279SL1 |
2015 FORD TRANIST - 545130 | 09/14/2019 | 21,739.54 | |||||||
1280SL1 |
2015 FORD TRANSIT - 545131 | 09/07/2019 | 21,761.80 | |||||||
1281SL1 |
2015 FORD TRANSIT - 545132 | 08/31/2019 | 20,603.23 | |||||||
1282SL1 |
2015 FORD TRANSIT - 546851 | 01/09/2020 | 25,966.61 | |||||||
1283SL1 |
2015 FORD TRANSIT - 548326 | 12/25/2019 | 27,421.14 | |||||||
1284SL1 |
2016 FORD TRANSIT -641144 | 02/01/2020 | 29,495.85 | |||||||
1285SL1 |
2016 FORD TRANSIT - 611445 | 01/31/2020 | 28,867.31 | |||||||
1286SL1 |
2016 FORD TRANSIT - 641146 | 01/31/2020 | 28,811.95 | |||||||
1287SL1 |
2016 FORD TRANSIT - 641147 | 01/22/2020 | 28,775.83 | |||||||
1288SL1 |
2016 FORD TRANSIT - 641149 | 02/03/2020 | 29,542.68 | |||||||
1289SL1 |
2016 FORD TRANSIT - 641153 | 01/31/2020 | 28,773.26 | |||||||
1290SL1 |
2016 - FORD TRANSIT - 641154 | 02/06/2020 | 29,495.85 | |||||||
1291SL1 |
2016 - FORD TRANSIT - 641155 | 01/26/2020 | 28,779.28 | |||||||
1292SL1 |
2016 - FORD TRANSIT - 641156 | 02/10/2020 | 29,506.97 | |||||||
1293SL1 |
2016 - FORD TRANSIT - 641148 | 03/15/2020 | 29,335.86 | |||||||
1294SL1 |
2016 - FORD TRANSIT - 641152 | 03/25/2020 | 28,728.40 | |||||||
1295SL1 |
2016 - FORD TRANSIT - 643407 | 05/17/2020 | 27,784.60 | |||||||
1296SL1 |
2016 - FORD TRANSIT - 643408 | 04/30/2020 | 27,135.49 | |||||||
1297SL1 |
2016 - FORD TRANSIT - 643409 | 05/24/2020 | 27,599.94 | |||||||
1298SL1 |
2016 - FORD TRANSIT - 643410 | 05/24/2020 | 27,646.11 |
Vehicle Leases (continued) |
||||||||||
Lease Number |
Description |
End Date |
Total Ending
Obligation |
|||||||
1299SL1 |
2016 - FORD TRANSIT - 643411 | 05/22/2020 | 27,623.03 | |||||||
1300SL1 |
2016 - FORD TRANSIT - 643412 | 05/16/2020 | 27,599.94 | |||||||
1301SL1 |
2016 - FORD TRANSIT - 643413 | 05/03/2020 | 27,599.94 | |||||||
1302SL1 |
2016 - FORD TRANSIT - 643415 | 06/04/2020 | 28,269.21 | |||||||
|
|
|||||||||
1,540,843.75 | ||||||||||
|
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Schedule 6.2
Certain Liens
Liens securing the Capital Lease Obligations listed on Schedule 6.1 on the assets subject to such leases.
Schedule 6.3
Certain Restrictive Agreements
1. | Restrictions which appear in (a) that certain Indenture, dated as of October 1, 1982, as supplemented by the First Supplemental Indenture, dated as of March 15, 1983, as further supplemented by the Second Supplemental Indenture, dated as of May 1, 1984, as further supplemented by the Third Supplemental Indenture, dated as of March 7, 1986, as further supplemented by the Fourth Supplemental Indenture, dated as of June 7, 1991, as further supplemented by the Fifth Supplemental Indenture, dated as of January 27, 2002, and as further supplemented by the Sixth Supplemental Indenture, dated as of May 20, 2013, among the Borrower (formerly known as J. C. Penney Company, Inc.), as issuer, Holdings, as co-obligor, and Wilmington Trust, National Association, as trustee, (b) that certain Indenture, dated as of April 1, 1994, as supplemented by the First Supplemental Indenture, dated as of January 27, 2002, and as further supplemented by the Second Supplemental Indenture, dated as of July 26, 2002, among the Borrower (formerly known as J. C. Penney Company, Inc.), as issuer, Holdings, as co-obligor, and Wilmington Trust, National Association, as trustee, and (c) that certain Indenture, dated as of September 15, 2014, as supplemented by the First Supplemental Indenture, dated as of September 15, 2014, among the Borrower, as issuer, Holdings, as co-obligor, and Wilmington Trust, National Association. |
2. | Restrictions which appear in JCPenney leases which prevent the use of that leasehold interest itself as security for any obligation. |
3. | Restrictions which appear in the Consumer Credit Card Program Agreement by and between the Borrower and GE Money Bank, originally dated as of December 6, 1999 and Amended and Restated as of November 5, 2009, and as further amended (the GE Agreement ), which restricts the Borrower from pledging a security interest in any interest of the Borrower in any Bank Property (as defined in the GE Agreement). |
Schedule 6.6
Certain Investments
JCP Realty, LLC | 100% of the 10 shares of its common stock | |
J. C. Penney Services India Private Limited | 8,242 equity shares | |
SWC Tollway & 121 LLC | 60% of membership interests |
EXHIBIT A-1 TO
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
FUNDING NOTICE
Reference is made to the Amended and Restated Credit and Guaranty Agreement, dated as of June 23, 2016 (as it may be amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement ; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among J. C. PENNEY CORPORATION, INC. , a Delaware corporation ( Borrower ), J. C. PENNEY COMPANY, INC. , a Delaware corporation, certain Subsidiaries of Borrower, as Guarantors, the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. ( JPMorgan ), as Administrative Agent, and the other financial institutions party thereto.
Pursuant to Section 2.1 of the Credit Agreement, Borrower desires that Lenders make the following Loans to Borrower in accordance with the applicable terms and conditions of the Credit Agreement on [ ], 20[ ] (the Credit Date ):
¨ | Base Rate Loans: | $ | [ , , | ] | ||
¨ | Eurodollar Rate Loans, with an initial Interest Period of month(s): | $ | [ , , | ] |
Borrower hereby certifies that:
(i) as of the Credit Date, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of such Credit Date to the same extent as though made on and as of such date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties are true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and
(ii) as of the Credit Date, no event has occurred and is continuing or would result from the consummation of the borrowing contemplated hereby that would constitute an Event of Default or a Default.
EXHIBIT A-1-1
The account of Borrower to which the proceeds of the Loans requested on the Credit Date are to be made available by Administrative Agent to the Borrower is as follows:
Bank Name: |
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Bank Address: |
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ABA Number: |
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Account Number: |
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Attention: |
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Reference: |
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This Funding Notice is a Credit Document under and as defined in the Credit Agreement.
Date: [ ] |
J. C. PENNEY CORPORATION, INC. | |||||
By: |
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Name: | ||||||
Title: |
EXHIBIT A-1-2
EXHIBIT A-2 TO
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
CONVERSION/CONTINUATION NOTICE
Reference is made to the Amended and Restated Credit and Guaranty Agreement, dated as of June 23, 2016 (as it may be amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement ; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among J. C. PENNEY CORPORATION, INC. , a Delaware corporation ( Borrower ), J. C. PENNEY COMPANY, INC. , a Delaware corporation, certain Subsidiaries of Borrower, as Guarantors, the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. ( JPMorgan ), as Administrative Agent, and the other financial institutions party thereto.
Pursuant to Section 2.9 of the Credit Agreement, Borrower desires to convert or to continue the following Loans, each such conversion and/or continuation to be effective as of [ ], 20[ ]:
$[ , , ] |
Eurodollar Rate Loans to be continued with an Interest Period of [ ] month(s) | |
$ [ , , ] |
Base Rate Loans to be converted to Eurodollar Rate Loans with an Interest Period of [ ] month(s) | |
$ [ , , ] |
Eurodollar Rate Loans to be converted to Base Rate Loans |
Borrower hereby certifies that as of the date hereof, no event has occurred and is continuing or would result from the consummation of the conversion and/or continuation contemplated hereby that would constitute an Event of Default. This Conversion/Continuation Notice is a Credit Document under and as defined in the Credit Agreement.
Date: [ ], 20[ ] |
J. C. PENNEY CORPORATION, INC. | |||||
By: |
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Name: | ||||||
Title: |
EXHIBIT A-2-1
EXHIBIT B TO
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
NOTE
$[ , , ] |
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[ ], 20[ ] |
New York, New York |
FOR VALUE RECEIVED , J. C. PENNEY CORPORATION, INC. , a Delaware corporation ( Borrower ), promises to pay [NAME OF LENDER] ( Payee ) or its registered assigns the principal amount of [ ] DOLLARS ($ [ , , ] ) in the installments referred to below.
Borrower also promises to pay interest on the unpaid principal amount hereof, from the date hereof until paid in full, at the rates and at the times which shall be determined in accordance with the provisions of that certain Amended and Restated Credit and Guaranty Agreement, dated as of June 23, 2016 (as it may be amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement ; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Borrower, J. C. PENNEY COMPANY, INC. , a Delaware corporation, certain Subsidiaries of Borrower, as Guarantors, the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. ( JPMorgan ), as Administrative Agent, and the other financial institutions party thereto.
Borrower shall make scheduled principal payments on this Note as set forth in Section 2.12 of the Credit Agreement.
This Note is one of the Notes (as defined in the Credit Agreement) and is issued pursuant to and entitled to the benefits of the Credit Agreement, to which reference is hereby made for a more complete statement of the terms and conditions under which the Loan evidenced hereby was made and is to be repaid.
All payments of principal and interest in respect of this Note shall be made in lawful money of the United States of America in same day funds at the Principal Office of Administrative Agent or at such other place as shall be designated in writing for such purpose in accordance with the terms of the Credit Agreement. Unless and until an Assignment Agreement effecting the assignment or transfer of the obligations evidenced hereby shall have been accepted by Administrative Agent and recorded in the Register, Borrower, each Agent and Lenders shall be entitled to deem and treat Payee as the owner and holder of this Note and the obligations evidenced hereby. Payee hereby agrees, by its acceptance hereof, that before disposing of this Note or any part hereof it will make a notation hereon of all principal payments previously made hereunder and of the date to which interest hereon has been paid; provided, the failure to make a notation of any payment made on this Note shall not limit or otherwise affect the obligations of Borrower hereunder with respect to payments of principal of or interest on this Note.
This Note is subject to mandatory prepayment and to prepayment at the option of Borrower, each as provided in the Credit Agreement.
EXHIBIT B-1
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF BORROWER AND PAYEE HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
Upon the occurrence of an Event of Default, the unpaid balance of the principal amount of this Note, together with all accrued and unpaid interest thereon, may become, or may be declared to be, due and payable in the manner, upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner provided in the Credit Agreement.
Borrower promises to pay all costs and expenses, including reasonable attorneys fees, all as provided in the Credit Agreement, incurred in the collection and enforcement of this Note. Borrower and any endorsers of this Note hereby consent to renewals and extensions of time at or after the maturity hereof, without notice, and hereby waive diligence, presentment, protest, demand notice of every kind and, to the full extent permitted by law, the right to plead any statute of limitations as a defense to any demand hereunder.
[Remainder of page intentionally left blank]
EXHIBIT B-2
IN WITNESS WHEREOF , Borrower has caused this Note to be duly executed and delivered by its officer thereunto duly authorized as of the date and at the place first written above.
J. C. PENNEY CORPORATION, INC. |
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By: |
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Name: |
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Title: |
EXHIBIT B-3
EXHIBIT C TO
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
COMPLIANCE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFIES AS FOLLOWS:
1. I am the [ ] 1 of [ J. C. PENNEY COMPANY, INC. , a Delaware corporation] [ J. C. PENNEY CORPORATION, INC. , a Delaware corporation].
2. I have reviewed the terms of that certain Amended and Restated Credit and Guaranty Agreement, dated as of June 23, 2016 (as it may be amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement ; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among J. C. PENNEY CORPORATION, INC. , a Delaware corporation ( Borrower ), J. C. PENNEY COMPANY, INC. , a Delaware corporation ( Holdings ), certain Subsidiaries of Borrower, as Guarantors, the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. ( JPMorgan ), as Administrative Agent, and the other financial institutions party thereto, and I have made, or have caused to be made under my supervision, a review in reasonable detail of the transactions and condition of Holdings and its Subsidiaries during the accounting period covered by the attached financial statements.
3. The examination described in paragraph 2 above did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes an Event of Default or Default that has occurred and is continuing as of the date of this Certificate, except as set forth in a separate attachment, if any, to this Certificate, describing in detail, the nature of the condition or event, the period during which it has existed and the action which Borrower has taken, is taking, or proposes to take with respect to each such condition or event.
4. [A] [No] change in GAAP or in the application thereof has occurred since the date of the most recent audited financial statements referred to in Section 4.7 of the Credit Agreement or delivered pursuant to Section 5.1(b) of the Credit Agreement, as applicable[, and the effect of such change on the financial statements accompanying this Certificate are specified in a separate attachment to this Certificate].
This Compliance Certificate is a Credit Document under and as defined in the Credit Agreement.
[Remainder of page intentionally left blank]
1 | Insert title of Financial Officer. |
EXHIBIT C-1
The foregoing certifications, together with the financial statements delivered with this Certificate and the statements set forth in any attachments hereto, are made and delivered [ ], 20[ ] pursuant to Section 5.1(c) of the Credit Agreement.
[J. C. PENNEY COMPANY, INC.] |
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[J. C. PENNEY CORPORATION, INC.] |
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By: |
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Name: |
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Title: |
EXHIBIT C-2
EXHIBIT D TO
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this Assignment ) is dated as of the Effective Date set forth below and is entered into by and between [ Insert name of Assignor ] (the Assignor ) and [ Insert name of Assignee ] (the Assignee ). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as it may be amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement ), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below, (i) all of the Assignors rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of the Assignors outstanding rights and obligations thereunder, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as the Assigned Interest ). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment, without representation or warranty by the Assignor.
1. |
Assignor: | |||
2. |
Assignee: |
______________________ [ and is an Affiliate/Related Fund 1 of [ identify Lender ]] [ Assignor is not a Defaulting Lender ]
Markit Entity Identifier (if any): ______________________ |
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3. |
Borrower: | J. C. PENNEY CORPORATION, INC., a Delaware corporation | ||
4. |
Administrative Agent: | JPMORGAN CHASE BANK, N.A., as the administrative agent under the Credit Agreement | ||
5. |
Credit Agreement: | The Amended and Restated Credit and Guaranty Agreement dated as of June 23, 2016, among Borrower, J. C. PENNEY COMPANY, INC., a Delaware corporation, certain Subsidiaries of Borrower, as Guarantors, the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. (JPMorgan), as Administrative Agent, and the other financial institutions party thereto | ||
6. |
Assigned Interest [ s ] : |
1 | Select as applicable |
EXHIBIT D-1
Aggregate Amount of Commitment/Loans for all Lenders |
Amount of Commitment/Loans Assigned |
Percentage Assigned of Commitment/Loans 2 |
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$______________ | $______________ | ____________% | ||
$______________ | $______________ | ____________% | ||
$______________ | $______________ | ____________% |
Effective Date: , 20 [ TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR. ]
7. | Notice and Wire Instructions: |
[NAME OF ASSIGNOR] |
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Notices : |
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Attention: |
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Telecopier: |
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with a copy to: |
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Attention: |
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Telecopier: |
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Wire Instructions : |
[NAME OF ASSIGNEE] |
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Notices : |
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Attention: |
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Telecopier: |
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with a copy to: |
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Attention: |
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Telecopier: |
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Wire Instructions : |
2 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. |
EXHIBIT D-2
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR |
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[NAME OF ASSIGNOR] |
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By: |
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Title: |
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ASSIGNEE |
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[NAME OF ASSIGNEE] |
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By: |
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Name: |
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Title: |
[Consented to and] 3 Accepted: |
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[JPMORGAN CHASE BANK, N.A.], as Administrative Agent |
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By: |
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Name: |
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Title: |
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[Consented to:] 4 |
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[J. C. PENNEY CORPORATION, INC.] |
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By: |
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Name: |
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Title: |
3 | To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. |
4 | To be added only if the consent of Borrower is required by the terms of the Credit Agreement. |
EXHIBIT D-3
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT
AND ASSUMPTION AGREEMENT
1. | Representations and Warranties . |
1.1 | Assignor . The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby and (iv) it is not a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with any Credit Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other instrument or document delivered pursuant thereto, other than this Assignment (herein collectively the Credit Documents ), or any collateral thereunder, (iii) the financial condition of Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Credit Document or (iv) the performance or observance by Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Credit Document. |
1.2 | Assignee . The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.1 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and to purchase the Assigned Interest, (vi) it has, independently and without reliance upon Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and to purchase the Assigned Interest, and (vii) if it is a Non-US Lender, attached to this Assignment is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Credit Documents are required to be performed by it as a Lender. |
2. | Payments . All payments with respect to the Assigned Interests shall be made on the Effective Date as follows: |
2.1 | From and after the Effective Date, Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing, Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to the Assignee. |
EXHIBIT D-4
3. | General Provisions . This Assignment shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment is a Credit Document under and as defined in the Credit Agreement. This Assignment may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment. This Assignment shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to conflict of laws principles thereof. |
[Remainder of page intentionally left blank ]
EXHIBIT D-5
EXHIBIT E TO
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
CERTIFICATE RE NON-BANK STATUS
Reference is made to the Amended and Restated Credit and Guaranty Agreement, dated as of June 23, 2016 (as it may be amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement ; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among J. C. PENNEY CORPORATION, INC. , a Delaware corporation ( Borrower ), J. C. PENNEY COMPANY, INC. , a Delaware corporation, certain Subsidiaries of Borrower, as Guarantors, the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. ( JPMorgan ), as Administrative Agent, and the other financial institutions party thereto. Pursuant to Section 2.20(c) of the Credit Agreement, the undersigned hereby certifies that it is not a bank or other Person described in Section 881(c)(3) of the Internal Revenue Code of 1986, as amended.
[NAME OF LENDER] | ||
By: | ||
Name: | ||
Title: |
EXHIBIT E-1
EXHIBIT F TO
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
RESTATEMENT EFFECTIVE DATE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFY AS FOLLOWS:
1. I am the chief financial officer of J. C. PENNEY COMPANY, INC. , a Delaware corporation ( Holdings ) and J. C. PENNEY CORPORATION, INC. , a Delaware corporation ( Borrower ).
2. I have reviewed the terms and conditions of the Amended and Restated Credit and Guaranty Agreement, dated as of June 23, 2016 (as it may be amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement ; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Borrower, Holdings, certain Subsidiaries of Borrower, as Guarantors, the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. ( JPMorgan ), as Administrative Agent, and the other financial institutions party thereto, and the definitions and provisions contained in such Credit Agreement relating thereto, and in my opinion I have made, or have caused to be made under my supervision, such examination or investigation as is necessary to enable me to express an informed opinion as to the matters referred to herein.
3. Based upon my review and examination described in paragraph 2 above, I certify, on behalf of Holdings and Borrower, solely in my capacity as chief financial officer and not in any individual capacity, that as of the date hereof:
(i) the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the Restatement Effective Date to the same extent as though made on and as of such date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties are true and correct in all respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof;
(ii) there are no actions, suits or proceedings by or before any Governmental Authority enjoining the financing contemplated by the Credit Agreement; and
(iii) no event has occurred and is continuing or would result from the consummation of the borrowing contemplated hereby that would constitute an Event of Default or a Default.
4. As of the date hereof: both before and after giving effect to the Credit Agreement and the initial borrowings thereunder, there does not exist any Event of Default under and as defined in the ABL Credit Agreement or the Senior Indentures.
5. This Restatement Effective Date Certificate is a Credit Document under and as defined in the Credit Agreement.
EXHIBIT F-1
The foregoing certifications are made and delivered as of June 23, 2016.
J. C. PENNEY COMPANY, INC. J. C. PENNEY CORPORATION, INC. |
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By: | ||
Name: |
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Title: | Chief Financial Officer |
EXHIBIT F-2
EXHIBIT G TO
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
COUNTERPART AGREEMENT
This COUNTERPART AGREEMENT , dated [ ], [ ] (this Counterpart Agreement ) is delivered pursuant to that certain Amended and Restated Credit and Guaranty Agreement, dated as of June 23, 2016 (as it may be amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement ; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among J. C. PENNEY CORPORATION, INC. , a Delaware corporation ( Borrower ), J. C. PENNEY COMPANY, INC. , a Delaware corporation, certain Subsidiaries of Borrower, as Guarantors, the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. ( JPMorgan ), as Administrative Agent, and the other financial institutions party thereto.
Section 1 . Pursuant to Section 5.10 of the Credit Agreement, the undersigned hereby:
(a) agrees that this Counterpart Agreement may be attached to the Credit Agreement and that by the execution and delivery hereof, the undersigned becomes a Guarantor under the Credit Agreement and agrees to be bound by all of the terms thereof;
(b) represents and warrants that each of the representations and warranties set forth in the Credit Agreement and each other Credit Document and applicable to the undersigned is true and correct on and as of the date of this Counterpart Agreement, except to the extent that any such representation and warranty relates solely to any earlier date, in which case such representation and warranty is true and correct as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof;
(c) no event has occurred or is continuing as of the date hereof, or will result from the transactions contemplated hereby on the date hereof, that would constitute an Event of Default or a Default;
(d) agrees to irrevocably and unconditionally guaranty the due and punctual payment in full of all Obligations when the same shall become due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)) and in accordance with Section 7 of the Credit Agreement; and
(e) the undersigned hereby (i) agrees that this counterpart may be attached to the Pledge and Security Agreement, (ii) agrees that the undersigned will comply with all the terms and conditions of the Pledge and Security Agreement as if it were an original signatory thereto, (iii) grants to Collateral Agent a security interest in and continuing lien on all of the undersigneds right, title and interest in, to and under all Collateral (as such term is defined in the Pledge and Security Agreement) of the undersigned, in each case whether now or hereafter existing or in which the undersigned now has or hereafter
EXHIBIT G-1
acquires an interest and wherever the same may be located and (iv) delivers to Collateral Agent supplements to all schedules attached to the Pledge and Security Agreement with respect to the assets of the undersigned. All such Collateral shall be deemed to be part of the Collateral and hereafter subject to each of the terms and conditions of the Pledge and Security Agreement.
Section 2 . The undersigned agrees from time to time, upon request of Administrative Agent or the Collateral Agent, to take such additional actions and to execute and deliver such additional documents and instruments as the Administrative Agent or Collateral Agent may reasonably request to effect the transactions contemplated by, and to carry out the intent of, this Counterpart Agreement. Neither this Counterpart Agreement nor any term hereof may be changed, waived, discharged or terminated, except by an instrument in writing signed by the undersigned, Administrative Agent and the Collateral Agent. Any notice or other communication herein required or permitted to be given shall be given pursuant to Section 10.1 of the Credit Agreement, and all for purposes thereof, the notice address of the undersigned shall be the address as set forth on the signature page hereof. In case any provision in or obligation under this Counterpart Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. This Counterpart Agreement is a Credit Document under and as defined in the Credit Agreement.
THIS COUNTERPART AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
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EXHIBIT G-2
IN WITNESS WHEREOF , the undersigned has caused this Counterpart Agreement to be duly executed and delivered by its duly authorized officer as of the date above first written.
[NAME OF SUBSIDIARY] | ||
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with a copy to: |
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Attention: |
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Telecopier: |
ACKNOWLEDGED AND ACCEPTED, as of the date above first written: |
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JPMORGAN CHASE BANK, N.A., as Administrative Agent |
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By: |
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WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent |
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EXHIBIT G-3
EXHIBIT H TO
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
[Attached.]
EXHIBIT H-1
EXECUTION VERSION
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
dated as of June 23, 2016
among
J. C. PENNEY CORPORATION, INC.,
J. C. PENNEY COMPANY, INC.,
EACH OF THE OTHER GRANTORS PARTY HERETO
and
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Collateral Agent
TABLE OF CONTENTS
PAGE | ||||||
SECTION 1. DEFINITIONS; GRANT OF SECURITY |
2 | |||||
1.1 |
General Definitions | 2 | ||||
1.2 |
Definitions; Interpretation | 8 | ||||
SECTION 2. GRANT OF SECURITY |
8 | |||||
2.1 |
Grant of Security | 8 | ||||
2.2 |
Certain Limited Exclusions | 9 | ||||
SECTION 3. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE |
10 | |||||
3.1 |
Security for Obligations | 10 | ||||
3.2 |
Continuing Liability Under Collateral | 11 | ||||
SECTION 4. CERTAIN PERFECTION REQUIREMENTS |
11 | |||||
4.1 |
Delivery Requirements | 11 | ||||
4.2 |
Control Requirements | 11 | ||||
4.3 |
Intellectual Property Recording Requirements | 11 | ||||
4.4 |
Other Actions | 12 | ||||
4.5 |
Timing and Notice | 12 | ||||
SECTION 5. REPRESENTATIONS AND WARRANTIES |
13 | |||||
5.1 |
[Reserved.] | 13 | ||||
5.2 |
Collateral Identification, Special Collateral | 13 | ||||
5.3 |
Ownership of Collateral and Absence of Other Liens | 13 | ||||
5.4 |
Status of Security Interest | 13 | ||||
5.5 |
Goods | 14 | ||||
5.6 |
Pledged Equity Interests, Investment Related Property | 14 | ||||
5.7 |
Intellectual Property | 15 | ||||
SECTION 6. COVENANTS AND AGREEMENTS |
16 | |||||
6.1 |
Grantor Information and Status | 16 | ||||
6.2 |
Commercial Tort Claims | 16 | ||||
6.3 |
Ownership of Collateral and Absence of Other Liens | 16 | ||||
6.4 |
Status of Security Interest | 17 | ||||
6.5 |
Goods and Receivables | 17 | ||||
6.6 |
Pledged Equity Interests, Investment Related Property | 17 | ||||
6.7 |
Intellectual Property | 18 | ||||
6.8 |
Insurance | 19 | ||||
SECTION 7. FURTHER ASSURANCES; ADDITIONAL GRANTORS |
19 | |||||
7.1 |
Further Assurances | 19 | ||||
7.2 |
Additional Grantors | 20 |
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PAGE | ||||||
SECTION 8. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT | 20 | |||||
8.1 |
Power of Attorney | 20 | ||||
8.2 |
No Duty on the Part of Collateral Agent or Secured Parties | 22 | ||||
8.3 |
Appointment Pursuant to the Pari Passu Intercreditor Agreement | 22 | ||||
SECTION 9. REMEDIES | 22 | |||||
9.1 |
Generally | 22 | ||||
9.2 |
Application of Proceeds | 24 | ||||
9.3 |
Sales on Credit | 24 | ||||
9.4 |
Investment Related Property | 24 | ||||
9.5 |
Grant of Intellectual Property License | 24 | ||||
9.6 |
Intellectual Property | 25 | ||||
9.7 |
Deposit Accounts | 26 | ||||
SECTION 10. COLLATERAL AGENT | 26 | |||||
SECTION 11. CONTINUING SECURITY INTEREST | 27 | |||||
SECTION 12. STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM | 27 | |||||
SECTION 13. MISCELLANEOUS | 28 |
SCHEDULE 5.2 | | COLLATERAL IDENTIFICATION | ||
SCHEDULE 5.4 | | FINANCING STATEMENTS | ||
SCHEDULE 5.5 | | LOCATION OF EQUIPMENT AND INVENTORY | ||
EXHIBIT A | | PLEDGE SUPPLEMENT | ||
EXHIBIT B | | AMENDED AND RESTATED TRADEMARK SECURITY AGREEMENT | ||
EXHIBIT C | | PATENT SECURITY AGREEMENT | ||
EXHIBIT D | | AMENDED AND RESTATED COPYRIGHT SECURITY AGREEMENT |
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This AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT , dated as of June 23, 2016 (as it may be amended, restated, supplemented or otherwise modified from time to time, this Agreement ), between J. C. PENNEY COMPANY, INC. , a Delaware corporation ( Holdings ), J. C. PENNEY CORPORATION, INC. , a Delaware corporation (the Company or the Borrower ), and each of the subsidiaries of Holdings or the Borrower party hereto from time to time, whether as an original signatory hereto or as an Additional Grantor (as herein defined) (other than the Collateral Agent, each, a Grantor ), and WILMINGTON TRUST, NATIONAL ASSOCIATION , as collateral agent for the Term Loan/Notes Secured Parties (as herein defined) (in such capacity as collateral agent, together with its successors and permitted assigns, the Collateral Agent ).
RECITALS:
WHEREAS , each of the Grantors party hereto previously entered into that certain Pledge and Security Agreement, dated as of May 22, 2013 (the Existing Security Agreement ), by and among each of the Grantors party thereto and Goldman Sachs Bank USA, as collateral agent (the Former Agent );
WHEREAS , the Existing Security Agreement secures the Grantors obligations under that certain Credit and Guaranty Agreement, dated as of May 22, 2013, among the Borrower, Holdings, as a guarantor, certain subsidiaries of Borrower, as guarantors, the lenders party thereto from time to time, Former Agent and the other parties thereto (as amended, restated, supplemented or otherwise modified prior to the date hereof, the Original Term Loan Credit Agreement );
WHEREAS , the Original Term Loan Credit Agreement has been amended and restated by that certain Amended and Restated Credit and Guaranty Agreement, dated as of the date hereof (the ARCA ; the Original Term Loan Credit Agreement, as amended and restated by the ARCA, as the same may be further amended, restated, supplemented or otherwise modified from time to time, the Term Loan Credit Agreement ), by and among the Borrower, the guarantors party thereto, the lenders party thereto from time to time, JPMorgan Chase Bank, N.A., a national banking association ( JPM ), as administrative agent (in such capacity, the Term Loan Administrative Agent ), and the other parties thereto;
WHEREAS , pursuant to the Resignation and Successor Agent Agreement, dated as of the date hereof, the Former Agent has assigned all of its rights and obligations under the Security Documents to the Collateral Agent;
WHEREAS , pursuant to the terms, conditions and provisions of (a) that certain Indenture, dated as of June 23, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the Indenture ), among the Company, Holdings and the other guarantors party thereto and Wilmington Trust, National Association, as trustee (in such capacity, together with its successors and permitted assigns, the Trustee ), and (b) that certain Purchase Agreement, dated as of June 9, 2016, among the Company, Holdings, the other guarantors under the Indenture, and J.P. Morgan Securities LLC, as representative of the several parties named in Schedule I thereto, the Company issued $500,000,000 aggregate principal amount of its 5.875% Senior Secured Notes due 2023, which are guaranteed on a senior secured basis by the guarantors party thereto;
WHEREAS , in connection with the execution of this Agreement, the Collateral Agent, the Term Loan Administrative Agent and the Trustee are entering into that certain Pari Passu Intercreditor Agreement, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the Pari Passu Intercreditor Agreement );
WHEREAS , pursuant to the Term Loan Credit Agreement, the Indenture and the Pari Passu Intercreditor Agreement, the Trustee and the Term Loan Administrative Agent have appointed and authorized the Collateral Agent to act as agent on their behalf and on behalf of the Term Loan/Notes Secured Parties represented by the Trustee and the Term Loan Administrative Agent, respectively, and the Collateral Agent has accepted such appointment; and
WHEREAS , one or more of the Grantors may incur Future Term Loan/Notes Indebtedness after the date hereof, and in connection therewith, the Authorized Representative for the holders of such Future Term Loan/Notes Indebtedness will become a party to the Pari Passu Intercreditor Agreement in order to appoint and authorize the Collateral Agent to act as agent on behalf of such Authorized Representative and on behalf of the Term Loan/Notes Secured Parties represented by such Authorized Representative;
NOW, THEREFORE , in consideration of the premises and the agreements, provisions and covenants herein contained, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, each Grantor and the Collateral Agent agree to amend and restate the Existing Security Agreement as follows:
SECTION 1. DEFINITIONS; GRANT OF SECURITY.
1.1 General Definitions. In this Agreement, the following terms shall have the following meanings:
1994 Indenture shall have the meaning set forth in the Term Loan Credit Agreement.
ABL Agent shall have the meaning set forth in the ABL Intercreditor Agreement.
ABL Credit Agreement shall have the meaning set forth in the Term Loan Credit Agreement.
ABL Intercreditor Agreement shall have the meaning set forth in the Pari Passu Intercreditor Agreement.
Additional Grantor shall have the meaning assigned in Section 7.2.
Agreement shall have the meaning set forth in the preamble.
Applicable Authorized Representative shall have the meaning set forth in the Pari Passu Intercreditor Agreement.
Authorized Representative shall have the meaning set forth in the Pari Passu Intercreditor Agreement.
Bankruptcy Code shall mean Title 11 of the United States Code entitled Bankruptcy, as now and hereafter in effect, or any successor statute.
Borrower shall have the meaning set forth in the recitals.
Collateral shall have the meaning assigned in Section 2.1 and, for the avoidance of doubt, shall exclude all Excluded Assets.
Collateral Agent shall have the meaning set forth in the preamble.
Collateral Records shall mean books, records, ledger cards, files, correspondence, customer lists, supplier lists, blueprints, technical specifications, manuals, computer software and related documentation, computer printouts, tapes, disks and other electronic storage media and related data processing software and similar items that at any time evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon.
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Collateral Support shall mean all property (real or personal) securing any Collateral and shall include any security agreement or other agreement granting a lien or security interest in such real or personal property.
Company shall have the meaning set forth in the recitals.
Control shall mean: (1) with respect to any Deposit Accounts, control within the meaning of Section 9-104 of the UCC, (2) with respect to any Securities Accounts, control within the meaning of Section 9-106 of the UCC, (3) with respect to any Uncertificated Securities, control within the meaning of Section 8-106(c) of the UCC, and (4) with respect to any Certificated Security, control within the meaning of Section 8-106(a) or (b) of the UCC.
Control Account means any Deposit Account or Securities Account that is a Control Account (as defined in the ABL Credit Agreement) or otherwise is or required to be subject to the Control of the ABL Agent.
Control Agreement shall mean an agreement, duly executed and delivered by the applicable Grantor, Collateral Agent, the ABL Agent and the depositary bank or the securities intermediary, as the case may be, with which any Deposit Account or Securities Account is maintained, in form and substance reasonably satisfactory to the Collateral Agent.
Controlled Foreign Corporation shall mean controlled foreign corporation as defined in Section 957 (or any successor statute thereto) of the Internal Revenue Code, as well as any Domestic Subsidiary, substantially all of the assets of which consist of Equity Interests of one or more Controlled Foreign Corporations.
Copyright Licenses shall mean, to the extent not constituting an Excluded Asset, any and all license agreements and covenants not to sue with respect to any Copyright (whether such Grantor is licensee or licensor thereunder) including, without limitation, each agreement required to be listed in Schedule 5.2(I) under the heading Copyright Licenses (as such schedule may be amended or supplemented from time to time).
Copyrights shall mean, to the extent not constituting an Excluded Asset, all United States and foreign copyrights and all Mask Works (as defined under 17 U.S.C. 901 of the U.S. Copyright Act), whether registered or unregistered and, with respect to any and all of the foregoing: (i) all registrations and applications therefor including, without limitation, the registrations and applications required to be listed in Schedule 5.2(I) under the heading Copyrights (as such schedule may be amended or supplemented from time to time), (ii) all extensions and renewals thereof, (iii) the right to sue or otherwise recover for any past, present and future infringement or other violation thereof, (iv) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages and proceeds of suit now or hereafter due and/or payable with respect thereto, and (v) all other rights corresponding thereto throughout the world.
Equity Interests shall mean any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing.
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Event of Default shall mean an Event of Default under, and as defined in, the Term Loan Credit Agreement, the Indenture or any Future Term Loan/Notes Agreement.
Excluded Asset shall mean any asset of any Grantor excluded from the security interest hereunder by virtue of Section 2.2 hereof but only to the extent, and for so long as, so excluded thereunder.
Future Term Loan/Notes Agreement shall have the meaning set forth in the Pari Passu Intercreditor Agreement.
Future Term Loan/Notes Indebtedness shall have the meaning set forth in the Pari Passu Intercreditor Agreement.
Future Term Loan/Notes Secured Obligations shall have the meaning set forth in the Pari Passu Intercreditor Agreement.
GE Agreement shall mean that certain Amended and Restated Consumer Credit Card Program Agreement dated November 5, 2009, by and between Borrower and GE Money Bank, as in effect on the date hereof.
Governmental Authority shall mean the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
Grantors shall have the meaning set forth in the preamble.
Indenture shall have the meaning set forth in the recitals.
Insurance shall mean (i) all insurance policies covering any or all of the Collateral (regardless of whether the Collateral Agent is the loss payee thereof) and (ii) any key man life insurance policies.
Intellectual Property shall mean, to the extent not constituting an Excluded Asset, all intellectual property, whether arising under the United States, multinational or foreign laws or otherwise, including without limitation, Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks, Trademark Licenses, Trade Secrets, and Trade Secret Licenses, and the right to sue or otherwise recover for any past, present and future infringement, dilution, misappropriation, or other violation thereof, including the right to receive all Proceeds therefrom, including without limitation license fees, royalties, income, payments, claims, damages and proceeds of suit, now or hereafter due and/or payable with respect thereto.
Intellectual Property Security Agreement shall mean each intellectual property security agreement executed and delivered by the applicable Grantors, substantially in the form set forth in Exhibit B, Exhibit C and Exhibit D, as applicable.
Internal Revenue Code shall mean the Internal Revenue Code of 1986, as amended.
Investment Accounts shall mean the Securities Accounts, Commodity Accounts and Deposit Accounts.
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Investment Related Property shall mean, to the extent not constituting an Excluded Asset: (i) all investment property (as such term is defined in Article 9 of the UCC) and (ii) all of the following (regardless of whether classified as investment property under the UCC): all Pledged Equity Interests, Pledged Debt, and certificates of deposit.
Margin Stock shall have the meaning set forth in Regulation U of the Board of Governors, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
Material Intellectual Property shall mean any Intellectual Property included in the Collateral that is material to the business of any Grantor or is otherwise of material value to any Grantor.
Organizational Documents shall mean (i) with respect to any corporation or company, its certificate, memorandum or articles of incorporation, organization or association, as amended, and its bylaws, as amended, (ii) with respect to any limited partnership, its certificate or declaration of limited partnership, as amended, and its partnership agreement, as amended, (iii) with respect to any general partnership, its partnership agreement, as amended, and (iv) with respect to any limited liability company, its articles of organization, as amended, and its operating agreement, as amended.
Pari Passu Intercreditor Agreement shall have the meaning set forth in the recitals.
Patent Licenses shall mean, to the extent not constituting an Excluded Asset, all license agreements or covenants not to sue with respect to any Patent (whether such Grantor is licensee or licensor thereunder) including, without limitation, each agreement required to be listed in Schedule 5.2(I) under the heading Patent Licenses (as such schedule may be amended or supplemented from time to time).
Patents shall mean, to the extent not constituting an Excluded Asset, all United States and foreign patents and certificates of invention, or industrial property designs, and applications for any of the foregoing, including, without limitation: (i) each patent and patent application required to be listed in Schedule 5.2(I) under the heading Patents (as such schedule may be amended or supplemented from time to time), (ii) all reissues, divisions, continuations, continuations-in-part and extensions thereof, (iii) all patentable inventions described and claimed therein, (iv) the right to sue or otherwise recover for any past, present and future infringement or other violation thereof, (v) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect thereto, and (vi) all other rights corresponding thereto throughout the world.
Permitted Liens means Liens that are permitted under Section 6.2 of the Term Loan Credit Agreement, Section 3.6 of the Indenture and the applicable section of each Future Term Loan/Notes Agreement.
Pledge Supplement shall mean any supplement to this Agreement in substantially the form of Exhibit A.
Pledged Debt shall mean, to the extent not constituting an Excluded Asset, all indebtedness for borrowed money owed to any Grantor (other than to Holdings by Borrower), whether or not evidenced by any Instrument, issued by the obligors named therein, the instruments, if any, evidencing any of the foregoing, and all interest, cash, instruments and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the foregoing.
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Pledged Equity Interests shall mean, to the extent not constituting an Excluded Asset and to the extent owned by any Grantor, all Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests and any other participation or interests in any equity or profits of any business entity including, without limitation, any trust and all management rights relating to any entity whose equity interests are included as Pledged Equity Interests.
Pledged LLC Interests shall mean, to the extent not constituting an Excluded Asset, all interests owned by any Grantor in any limited liability company and each series thereof and the certificates, if any, representing such limited liability company interests and any interest owned by any Grantor on the books and records of such limited liability company or on the books and records of any securities intermediary pertaining to such interest and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such limited liability company interests and all rights as a member of the related limited liability company.
Pledged Partnership Interests shall mean, to the extent not constituting an Excluded Asset, all interests owned by any Grantor in any general partnership, limited partnership, limited liability partnership or other partnership and the certificates, if any, representing such partnership interests and any interest owned by any Grantor on the books and records of such partnership or on the books and records of any securities intermediary pertaining to such interest and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such partnership interests and all rights as a partner of the related partnership.
Pledged Stock shall mean, to the extent not constituting an Excluded Asset, all shares of capital stock owned by any Grantor (other than shares of capital stock of the Borrower owned by Holdings), and the certificates, if any, representing such shares and any interest of such Grantor in the entries on the books of the issuer of such shares or on the books of any securities intermediary pertaining to such shares, and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such shares.
Receivables shall mean, to the extent not constituting an Excluded Asset, all rights of any Grantor to payment, whether or not earned by performance, for goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services rendered or to be rendered, including, without limitation all such rights constituting or evidenced by any Account, Chattel Paper, Instrument, General Intangible or Investment Related Property.
Receivables Records shall mean (i) all original copies of all documents, instruments or other writings or electronic records or other Records evidencing the Receivables, (ii) all books, correspondence, credit or other files, Records, ledger sheets or cards, invoices, and other papers relating to Receivables, including, without limitation, all tapes, cards, computer tapes, computer discs, computer runs, record keeping systems and other papers and documents relating to the Receivables, whether in the possession or under the control of Grantor or any computer bureau or agent from time to time acting for Grantor or otherwise, (iii) all evidences of the filing of financing statements and the registration of other instruments in connection therewith, and amendments, supplements or other modifications thereto, notices to other creditors, secured parties or agents thereof, and certificates, acknowledgments, or other writings, including, without limitation, lien search reports, from filing or other registration officers, (iv) all credit information, reports and memoranda relating thereto and (v) all other written or non-written forms of information related in any way to the foregoing or any Receivable.
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Restatement Effective Date means June 23, 2016.
Stockholders Equity shall have the meaning set forth in the Term Loan Credit Agreement.
Term Loan Credit Agreement shall have the meaning set forth in the recitals.
Term Loan/Notes Documents shall have the meaning set forth in the Pari Passu Intercreditor Agreement.
Term Loan/Notes Secured Obligations shall have the meaning set forth in the Pari Passu Intercreditor Agreement.
Term Loan/Notes Secured Parties shall have the meaning set forth in the Pari Passu Intercreditor Agreement.
Trademark Licenses shall mean, to the extent not constituting an Excluded Asset, any and all license agreements or covenants not to sue with respect to any Trademark or permitting co-existence with respect to a Trademark (whether such Grantor is licensee or licensor thereunder) including, without limitation, each agreement required to be listed in Schedule 5.2(I) under the heading Trademark Licenses (as such schedule may be amended or supplemented from time to time).
Trademarks shall mean, to the extent not constituting an Excluded Asset, all United States, and foreign trademarks, trade names, trade dress, Internet domain names, service marks, certification marks, logos, and other source identifiers, whether or not registered, and with respect to any and all of the foregoing: (i) all registrations and applications therefor including, without limitation, the registrations and applications required to be listed in Schedule 5.2(I) under the heading Trademarks(as such schedule may be amended or supplemented from time to time), (ii) all extensions or renewals of any of the foregoing, (iii) all of the goodwill of the business connected with the use of and symbolized by any of the foregoing, (iv) the right to sue or otherwise recover for any past, present and future infringement, dilution or other violation of any of the foregoing, (v) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect thereto, and (vi) all other rights corresponding thereto throughout the world.
Trade Secret Licenses shall mean, to the extent not constituting an Excluded Asset, any and all license agreements or covenants not to sue with respect to any Trade Secret (whether such Grantor is licensee or licensor thereunder) including, without limitation, each agreement required to be listed in Schedule 5.2(I) under the heading Trade Secret Licenses (as such schedule may be amended or supplemented from time to time).
Trade Secrets shall mean, to the extent not constituting an Excluded Asset, all trade secrets and all other confidential or proprietary information and know-how, and with respect to any and all of the foregoing: (i) the right to sue or otherwise recover for any past, present and future misappropriation or other violation thereof, (ii) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect thereto; and (iii) all other rights corresponding thereto throughout the world.
UCC shall mean the Uniform Commercial Code as in effect from time to time in the State of New York or, when the laws of any other jurisdiction govern the perfection of, priority of, or remedies with respect to any Collateral, the Uniform Commercial Code of such jurisdiction.
United States shall mean the United States of America.
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1.2 Definitions; Interpretation.
(a) In this Agreement, the following capitalized terms shall have the meaning given to them in the UCC (and, if defined in more than one Article of the UCC, shall have the meaning given in Article 9 thereof): Account, Account Debtor, As-Extracted Collateral, Bank, Certificated Security, Chattel Paper, Commercial Tort Claims, Commodity Account, Commodity Contract, Commodity Intermediary, Consignee, Consignment, Consignor, Deposit Account, Document, Entitlement Order, Electronic Chattel Paper, Equipment, Farm Products, Fixtures, General Intangibles, Goods, Health-Care-Insurance Receivable, Instrument, Inventory, Letter of Credit Right, Manufactured Home, Money, Payment Intangible, Proceeds, Record, Securities Account, Securities Intermediary, Security Certificate, Security Entitlement, Supporting Obligations, Tangible Chattel Paper and Uncertificated Security.
(b) All other capitalized terms used herein (including the preamble and recitals hereto) and not otherwise defined herein shall have the meanings ascribed thereto in the Pari Passu Intercreditor Agreement or, if not defined therein, the Term Loan Credit Agreement or the Indenture, as context indicates. The incorporation by reference of terms defined in the Term Loan Credit Agreement or the Indenture shall survive any termination of the Term Loan Credit Agreement or Indenture, as applicable, until this Agreement is terminated as provided in Section 11 hereof. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. References herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the word include or including, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as without limitation or but not limited to or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. The terms lease and license shall include sub-lease and sub-license, as applicable. If any conflict or inconsistency exists between this Agreement (other than Section 2 hereof) and the Pari Passu Intercreditor Agreement, the Pari Passu Intercreditor Agreement shall govern. All references herein to provisions of the UCC shall include all successor provisions under any subsequent version or amendment to any Article of the UCC.
SECTION 2. GRANT OF SECURITY.
2.1 Grant of Security . Each Grantor hereby grants (and hereby confirms its prior grant of) to the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, a security interest in and continuing lien on all of such Grantors right, title and interest in, to and under all personal property and fixtures of such Grantor including, but not limited to the following, in each case whether now or hereafter existing or in which any Grantor now has or hereafter acquires an interest and wherever the same may be located (all of which being hereinafter collectively referred to as the Collateral ):
(a) Accounts;
(b) Chattel Paper;
(c) Documents;
(d) General Intangibles;
(e) Goods (including, without limitation, Inventory and Equipment);
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(f) Instruments;
(g) Insurance;
(h) Intellectual Property;
(i) Investment Related Property and Investment Accounts;
(j) Letter of Credit Rights;
(k) Money;
(l) Receivables and Receivables Records;
(m) Commercial Tort Claims now or hereafter described on Schedule 5.2;
(n) to the extent not otherwise included above, all other personal property of any kind and all Collateral Records, Collateral Support and Supporting Obligations relating to any of the foregoing; and
(o) to the extent not otherwise included above, all Proceeds, products, accessions, rents and profits of or in respect of any of the foregoing.
2.2 Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract or agreement to which any Grantor is a party (other than contracts between or among Holdings and its subsidiaries), and any of its rights or interest thereunder, if and to the extent that a security interest is prohibited by or in violation of (i) any law, rule or regulation applicable to such Grantor or any asset or property of any Grantor (with no requirement to obtain the consent of any Governmental Authority, including without limitation, no requirement to comply with the Federal Assignment of Claims Act or any similar statute), or (ii) a term, provision or condition of any such lease, license, contract or agreement (unless such law, rule, regulation, term, provision or condition would be rendered ineffective with respect to the creation of the security interest hereunder pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity); provided however that the Collateral shall include (and such security interest shall attach) immediately at such time as the contractual or legal prohibition shall no longer be applicable and to the extent severable, shall attach immediately to any portion of such lease, license, contract or agreement not subject to the prohibitions specified in (i) or (ii) above; provided further that the exclusions referred to in clause (a) of this Section 2.2 shall not include any Proceeds of any such lease, license, contract or agreement unless such Proceeds also constitute Excluded Assets; (b) any assets the pledge of or granting a security interest in which would (i) violate any law, rule or regulation applicable to such Grantor (with no requirement to obtain the consent of any Governmental Authority) or (ii) require a consent, approval, or other authorization of a landlord or other third party, in the case of this subclause (ii) only, if such consent, approval or other authorization cannot be obtained after the use of commercially reasonable efforts by the Grantors (provided that there shall be no requirement to obtain the consent of any Governmental Authority); (c) Margin Stock and Equity Interests owned by any Grantor in any Person other than wholly-owned Subsidiaries to the extent not permitted by the terms of such Persons Organizational Documents or the terms governing any joint ventures to which such Grantor is a party; (d) any assets of any Grantor to the extent a security interest in such assets could result in material adverse tax consequences to such Grantor (other than payment of mortgage tax, transfer tax or similar taxes related to real property
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collateral); (e) the Equity Interests in (and assets of) captive insurance companies, in each case owned by any Grantor; (f) any assets subject to a Lien securing Indebtedness to finance the acquisition, construction or improvement of such assets, including capital lease obligations and any Indebtedness assumed in connection with the acquisition of such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness, in each case to the extent such Lien and such Indebtedness are permitted under the Term Loan/Notes Documents and to the extent a security interest in favor of the Collateral Agent on such assets is prohibited by the documentation governing such Indebtedness; (g) any of the outstanding Equity Interests of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; (h) any intent-to-use application for registration of a trademark or service mark filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to the filing of a Statement of Use pursuant to Section 1(d) of the Lanham Act or an Amendment to Allege Use pursuant to Section 1(c) of the Lanham Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law; (i) any interest of a Grantor in any Bank Property (as defined in the GE Agreement); (j) any Equity Interests of the Borrower owned or held by Holdings or instruments evidencing Indebtedness made by the Borrower in favor of or held by Holdings; (k) (i) aircraft, aircraft engines and parts, (ii) all appurtenances, accessions, appliances, instruments, avionics, accessories or other parts related to aircraft, aircraft engines and parts and (iii) all log books, records and documents maintained with respect to the property described in clauses (i) and (ii) above; (l) (x) rolling stock and (y) motor vehicles and other assets subject to certificates of title to the extent a lien therein cannot be perfected by the filing of a UCC financing statement (or analogous procedures under applicable law in the relevant jurisdiction); (m) any Deposit Accounts specifically and exclusively used (1) for payroll, payroll taxes, workers compensation or unemployment compensation, pension benefits and other similar expenses to or for the benefit of any Grantors employees and accrued and unpaid employee compensation (including salaries, wages, benefits and expense reimbursements), (2) as zero balance deposit accounts, (3) for trust or fiduciary purposes in the ordinary course of business and (4) for all taxes required to be collected or withheld (including, without limitation, federal and state withholding taxes (including the employers share thereof), taxes owing to any governmental unit thereof, sales, use and excise taxes, customs duties, import duties and independent customs brokers charges) for which any Grantor may become liable; or (n) any tangible personal property owned by the Borrower constituting a part of any store, warehouse or distribution center located within one of the 50 states of the United States or the District of Columbia (exclusive of motor vehicles, mobile materials-handling equipment and other rolling stock, cash registers and other point of sale recording devices and related equipment, and data processing and other office equipment), if the net book value of such tangible personal property and the real property (including leasehold improvements) constituting a part of such store, warehouse or distribution center exceeds 0.25% of Stockholders Equity (as determined in accordance with the 1994 Indenture).
SECTION 3. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE.
3.1 Security for Obligations. This Agreement secures, and the Collateral is collateral security for, the prompt and complete payment or performance in full when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §362(a) (and any successor provision thereof)), of all Term Loan/Notes Secured Obligations.
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3.2 Continuing Liability Under Collateral. Notwithstanding anything herein to the contrary, (i) each Grantor shall remain liable for all obligations under the Collateral to the same extent as if this Agreement had not been executed and nothing contained herein is intended or shall be a delegation of duties to the Collateral Agent or any other Term Loan/Notes Secured Party, (ii) each Grantor shall remain liable under each of the agreements included in the Collateral, including, without limitation, any agreements relating to Pledged Partnership Interests or Pledged LLC Interests, to perform all of the obligations undertaken by it thereunder all in accordance with and pursuant to the terms and provisions thereof to the same extent as if this Agreement had not been executed and neither the Collateral Agent nor any Term Loan/Notes Secured Party shall have any obligation or liability under any of such agreements by reason of or arising out of this Agreement or any other document related thereto nor shall the Collateral Agent nor any Term Loan/Notes Secured Party have any obligation to make any inquiry as to the nature or sufficiency of any payment received by it or have any obligation to take any action to collect or enforce any rights under any agreement included in the Collateral, including, without limitation, any agreements relating to Pledged Partnership Interests or Pledged LLC Interests, and (iii) the exercise by the Collateral Agent of any of its rights hereunder shall not release any Grantor from any of its duties or obligations under the contracts and agreements included in the Collateral.
SECTION 4. CERTAIN PERFECTION REQUIREMENTS
4.1 Delivery Requirements.
(a) Subject to Sections 4.5 and 6.4(b), with respect to any Certificated Securities included in the Collateral, each Grantor shall deliver to the Collateral Agent the Security Certificates evidencing such Certificated Securities duly indorsed by an effective indorsement (within the meaning of Section 8-107 of the UCC), or accompanied by share transfer powers or other instruments of transfer duly endorsed by such an effective endorsement, in each case, to the Collateral Agent or in blank. In addition, each Grantor shall cause any certificates evidencing any Pledged Equity Interests, including, without limitation, any Pledged Partnership Interests or Pledged LLC Interests, to be similarly delivered to the Collateral Agent regardless of whether such Pledged Equity Interests constitute Certificated Securities.
(b) Subject to Sections 4.5 and 6.4(b), with respect to any Instruments or Tangible Chattel Paper included in the Collateral, each Grantor shall deliver all such Instruments or Tangible Chattel Paper to the Collateral Agent duly indorsed in blank; provided , however , that such delivery requirement shall not apply to any Instruments or Tangible Chattel Paper having a face amount of less than $5,000,000 individually or $15,000,000 in the aggregate.
4.2 Control Requirements. Subject to Section 4.5, with respect to Deposit Accounts and Securities Accounts included in the Collateral and constituting ABL Priority Collateral, each Grantor shall use commercially reasonable efforts to enter into a Control Agreement with the Collateral Agent and each bank where such Grantor maintains or hereafter establishes any such Deposit Account or any such Securities Account, in each case that is a Control Account or, as applicable, amend the Control Agreements entered into by the Former Agent to reflect the assignment of the security interest under the Existing Security Agreement to the Collateral Agent.
4.3 Intellectual Property Recording Requirements.
(a) Subject to Sections 4.5 and 6.4(b)(iv), in the case of any Collateral (whether now owned or hereafter acquired) consisting of issued U.S. Patents and applications therefor, each Grantor shall execute and deliver to the Collateral Agent a Patent Security Agreement in substantially the form of Exhibit C hereto (or a supplement thereto) covering all such Patents in appropriate form for recordation with the U.S. Patent and Trademark Office with respect to the security interest of the Collateral Agent and arrange for filing such agreement with the United States Patent and Trademark Office.
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(b) Subject to Sections 4.5 and 6.4(b)(iv), in the case of any Collateral (whether now owned or hereafter acquired) consisting of registered U.S. Trademarks and applications therefor, each Grantor shall execute and deliver to the Collateral Agent a Trademark Security Agreement in substantially the form of Exhibit B hereto (or a supplement thereto) covering all such Trademarks in appropriate form for recordation with the U.S. Patent and Trademark Office with respect to the security interest of the Collateral Agent and arrange for filing such agreement with the United States Patent and Trademark Office.
(c) Subject to Sections 4.5 and 6.4(b)(iv), in the case of any Collateral (whether now owned or hereafter acquired) consisting of registered U.S. Copyrights and exclusive Copyright Licenses in respect of registered U.S. Copyrights for which any Grantor is the licensee and which are included in the Material Intellectual Property, each Grantor shall execute and deliver to the Collateral Agent a Copyright Security Agreement in substantially the form of Exhibit D hereto (or a supplement thereto) covering all such Copyrights and Copyright Licenses in appropriate form for recordation with the U.S. Copyright Office with respect to the security interest of the Collateral Agent and arrange for filing such agreement with the United States Copyright Office.
4.4 Other Actions. Subject to Sections 4.5 and 6.4(b), with respect to any Pledged Partnership Interests and Pledged LLC Interests included in the Collateral, if the Grantors own less than 100% of the equity interests in any issuer of such Pledged Partnership Interests or Pledged LLC Interests, upon the request of the Collateral Agent or the Applicable Authorized Representative, Grantors shall use their commercially reasonable efforts to obtain the consent of each other holder of partnership interest or limited liability company interests in such issuer to the security interest of the Collateral Agent hereunder and following an Event of Default and the exercise of remedies by the Collateral Agent in respect thereof, the transfer of such Pledged Partnership Interests and Pledged LLC Interests to the Collateral Agent or its designee, and to the substitution of the Collateral Agent or its designee as a partner or member with all the rights and powers related thereto. Each Grantor consents to the grant by each other Grantor of a Lien in all of its Investment Related Property to the Collateral Agent and without limiting the generality of the foregoing consents to the transfer of any Pledged Partnership Interest and any Pledged LLC Interest to the Collateral Agent or its designee following an Event of Default and the exercise of remedies by the Collateral Agent in respect thereof and to the substitution of the Collateral Agent or its designee as a partner in any partnership or as a member in any limited liability company with all the rights and powers related thereto.
4.5 Timing and Notice. With respect to any Collateral in existence on the Restatement Effective Date in which a security interest in favor of the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, is not perfected or delivered on the Restatement Effective Date (to the extent perfection or delivery is required under this Agreement) after the Grantors use of commercially reasonable efforts to do so, the Grantors shall comply with the requirements of Section 4 within ninety (90) days of the Restatement Effective Date (unless such date is extended with the consent of the Applicable Authorized Representative), and with respect to any Collateral hereafter owned or acquired by any Grantor, such Grantor shall comply with such requirements within forty-five (45) days of such Grantor acquiring rights therein (unless such date is extended with the consent of the Applicable Authorized Representative). Each year, at the time of delivery of annual financial statements with respect to the preceding Fiscal Year pursuant to Section 5.1(b) of the Term Loan Credit Agreement or, if the Term Loan Credit Agreement is no longer outstanding, the corresponding provisions of the Indenture or any Future Term Loan/Notes Agreement, each Grantor shall inform the Collateral Agent and the Applicable Authorized Representative of its acquisition of any Collateral for which any action is required by Section 4 hereof (including, for the avoidance of doubt, the filing of any applications for, or the issuance or registration of, any U.S. Patents, Copyrights or Trademarks).
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SECTION 5. REPRESENTATIONS AND WARRANTIES.
Each Grantor hereby represents and warrants, on the Restatement Effective Date, that:
5.1 [Reserved.]
5.2 Collateral Identification, Special Collateral. No material portion of the Collateral constitutes, or is the Proceeds of, (1) Farm Products, (2) As-Extracted Collateral, (3) Manufactured Homes, (4) Health-Care-Insurance Receivables; (5) timber to be cut, or (6) satellites, ships or railroad rolling stock.
5.3 Ownership of Collateral and Absence of Other Liens.
(a) it has good and valid rights in and title to the Collateral in which it has purported to grant a security interest in favor of the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, subject to Permitted Liens, and has full power and authority to grant to the Collateral Agent such security interest in such Collateral pursuant hereto and to execute, deliver and perform its obligations in accordance with the terms of this Agreement, without the consent or approval of any other Person other than any consent or approval that has been obtained;
(b) the Collateral is owned by the Grantors free and clear of any Lien, other than Permitted Liens. None of the Grantors has filed or consented to the filing of (i) any financing statement or analogous document under the UCC or any other applicable laws covering any Collateral except any such filings made pursuant to any documentation governing Permitted Liens, or (ii) any assignment in which any Grantor assigns any Collateral or any security agreement or similar instrument covering any Collateral with any foreign governmental, municipal or other office, which financing statement or analogous document, assignment, security agreement or similar instrument is still in effect, except, in each case, in respect of Permitted Liens; and
(c) other than (w) the Collateral Agent, (x) the ABL Agent to the extent permitted under the ABL Intercreditor Agreement, (y) any control in favor of a Bank, Securities Intermediary or Commodity Intermediary maintaining a Deposit Account, Securities Account or Commodity Contract, or (z) any other holder of a Permitted Lien, no Person other than a Grantor is in Control of any Collateral.
5.4 Status of Security Interest.
(a) the Collateral Questionnaire delivered on the Restatement Effective Date has been duly prepared, completed and executed and the information set forth therein, including the exact legal name of each Grantor, is correct and complete as of the Restatement Effective Date. Subject to Section 4.5, the UCC financing statements or other appropriate filings, recordings or registrations containing a description of the Collateral that have been prepared based upon the information specified in the Collateral Questionnaire for filing in each governmental, municipal or other office set forth opposite such Grantors name (i) on the Collateral Questionnaire or (ii) as specified by notice from Borrower to the Applicable Authorized Representative and the Collateral Agent, as applicable, after the Restatement Effective Date in the case of filings, recordings or registrations required by Sections 6.1, 7.1 or 7.2, are all the filings, recordings and registrations that are necessary to establish legal, valid and perfected security interests in favor of the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, having priority over all other Liens except for any Permitted Liens with respect to all Collateral in which such security interest may be perfected by filing, recording or registration in the United States (or any political subdivision thereof) and, except in respect of certain after-acquired Collateral, no further or subsequent filing, refiling, recording, rerecording, registration or reregistration is necessary in any such jurisdiction, except as provided under applicable law with respect to the filing of continuation statements;
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(b) the security interests granted hereunder in favor of the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, constitute (i) legal and valid security interests in all the Collateral securing the payment and performance of the Term Loan/Notes Secured Obligations and (ii) subject to the filings described in Section 5.4(a) and to Section 4.5, a perfected security interest in all Collateral in which a security interest may be perfected by filing, recording or registering a financing statement or other instrument in the central filing office of any state of the United States (or any political subdivision thereof), with the United States Patent and Trademark Office or with the United States Copyright Office, in each case pursuant to the UCC or other applicable law in the United States (or any political subdivision thereof); provided that additional actions may be required in respect of certain after-acquired Collateral. The security interest granted hereunder in favor of the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, has priority over all other Liens except for any Permitted Liens;
(c) to the extent perfection or priority of the security interest therein is not subject to Article 9 of the UCC, upon recordation of the security interests granted hereunder in U.S. Patents, Trademarks and Copyrights and exclusive Copyright Licenses (in respect of registered U.S. Copyrights for which any Grantor is the licensee and which are included within the Material Intellectual Property) in the United States Patent and Trademark Office and the United States Copyright Office, the security interests granted to the Collateral Agent hereunder over such Intellectual Property shall constitute valid, perfected Liens having priority over all other Liens except for Permitted Liens;
(d) no authorization, consent, approval or other action by, and no notice to or filing with, any Governmental Authority is required for either (i) the pledge or grant by any Grantor of the Liens purported to be created in favor of the Collateral Agent hereunder or (ii) the exercise by Collateral Agent of any rights or remedies in respect of any Collateral (whether specifically granted or created hereunder or created or provided for by applicable law), except (A) such as have been obtained or made and are in full force and effect, (B) the filings contemplated by clause (a) above and (C) as may be required, in connection with the disposition of any Investment Related Property, by laws generally affecting the offering and sale of Securities;
(e) each Grantor is in compliance with its obligations under Section 4 hereof; and
(f) notwithstanding the foregoing, the representations and warranties set forth in this Section 5.4 as to perfection and priority of the security interests granted hereunder to the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, in Proceeds are limited to the extent provided in Section 9-315 of the Uniform Commercial Code.
5.5 Goods.
(a) other than any Inventory or Equipment in transit, being repaired, or having a value of less than $200,000.00 in the aggregate, all of the Equipment and Inventory included in the Collateral is located only at the locations specified in Schedule 5.5.
5.6 Pledged Equity Interests, Investment Related Property.
(a) it is the record and beneficial owner of the Pledged Equity Interests free of all Liens of other Persons other than Permitted Liens, and there are no outstanding warrants, options or other rights to purchase, or shareholder, voting trust or similar agreements outstanding with respect to, or property that is convertible into, or that requires the issuance or sale of, any Pledged Equity Interests; and
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(b) no consent of any Person including any other general or limited partner, any other member of a limited liability company, any other shareholder or any other trust beneficiary is necessary in connection with the creation, perfection or first priority status of the security interest of the Collateral Agent in any Pledged Equity Interests or the exercise by the Collateral Agent of the voting or other rights provided for in this Agreement or the exercise of remedies in respect thereof except such as have been obtained.
5.7 Intellectual Property. Except as could not reasonably be expected to have a Material Adverse Effect:
(a) it is the sole and exclusive owner of the entire right, title, and interest in and to all Intellectual Property listed on Schedule 5.2(I), and, to such Grantors knowledge, owns or has the valid right to use all other Intellectual Property used in or necessary to conduct its business, free and clear of all Liens, claims and licenses, except for Permitted Liens and the licenses set forth on Schedule 5.2(I);
(b) all applications and registrations for Material Intellectual Property of such Grantor are subsisting, in full force and effect, and have not been adjudged invalid or unenforceable and such Grantor has performed all acts and has paid all renewal, maintenance, and other fees and taxes required to maintain each and every registration and application of Copyrights, Patents and Trademarks of such Grantor constituting Material Intellectual Property in full force and effect;
(c) no holding, decision, ruling, or judgment has been rendered in any action or proceeding before any court or administrative authority prohibiting such Grantors right to register, own or use any Material Intellectual Property of such Grantor, and no action or proceeding challenging the validity or enforceability of, or such Grantors right to register, own, or use, any Material Intellectual Property of such Grantor is pending or, to such Grantors knowledge, threatened;
(d) all registrations and applications for Copyrights, Patents and Trademarks of such Grantor are standing in the name of such Grantor, and none of the Trademarks, Patents, Copyrights or Trade Secrets owned by such Grantor has been licensed by such Grantor to any Affiliate or third party, except as disclosed in Schedule 5.2(I) and pursuant to other licenses that are not material to the business of any Grantor and are not otherwise of material value to any Grantor;
(e) such Grantor has not made a commitment constituting a present or future sale or transfer or similar arrangement of any Material Intellectual Property that has not been terminated or released;
(f) [reserved];
(g) such Grantor uses consistent standards of quality in the manufacture, distribution and sale of products sold and in the provision of services rendered under or in connection with all Trademarks included in the Collateral;
(h) to such Grantors knowledge, the conduct of such Grantors business does not infringe, misappropriate, dilute or otherwise violate any intellectual property rights of any other Person; no claim has been made in writing, in the past three (3) years (or earlier, if presently unresolved), that the use of any Material Intellectual Property owned or used by such Grantor (or any of its respective licensees) infringes, misappropriates, dilutes or otherwise violates the asserted rights of any other Person; and
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(i) to such Grantors knowledge, no Person is infringing, misappropriating, diluting or otherwise violating any rights in any Material Intellectual Property owned, licensed or used by such Grantor.
SECTION 6. COVENANTS AND AGREEMENTS.
Each Grantor hereby covenants and agrees that:
6.1 Grantor Information and Status. The Grantors will furnish to the Collateral Agent and the Applicable Authorized Representative prompt written notice of any change (i) in the legal name of any Grantor, (ii) in the identity or type of organization or corporate structure of any Grantor or (iii) in the jurisdiction of organization of any Grantor. Each Grantor agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the UCC or otherwise that are required in order for Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral. In connection with any such notice, upon the reasonable request by the Collateral Agent or the Applicable Authorized Representative, the Grantors shall execute and deliver to the Collateral Agent a completed Pledge Supplement together with all Supplements to Schedules thereto.
6.2 Commercial Tort Claims. In the event that it hereafter acquires or has any Commercial Tort Claim having a value reasonably believed by such Grantor to be in excess of $5,000,000 individually or $15,000,000 in the aggregate for which a complaint in a court of competent jurisdiction has been filed, it shall deliver to the Collateral Agent and the Applicable Authorized Representative a completed Pledge Supplement together with all Supplements to Schedules thereto, identifying such new Commercial Tort Claims.
6.3 Ownership of Collateral and Absence of Other Liens.
(a) except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, other than Permitted Liens, and such Grantor shall, at its own expense, take any and all commercially reasonable actions to defend title to the Collateral against all Persons and to defend the security interests granted hereunder in favor of the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, in the Collateral and the priority thereof against any Lien other than Permitted Liens; and
(b) at such time or times as the Collateral Agent or the Applicable Authorized Representative may reasonably request, promptly to prepare and deliver to the Applicable Authorized Representative and the Collateral Agent a duly certified schedule or schedules in form and detail reasonably satisfactory to the Collateral Agent and/or the Applicable Authorized Representative showing the identity, amount and location of any and all Equipment and Inventory constituting Collateral; provided that, unless an Event of Default shall have occurred and be continuing, such schedules shall only be delivered, to the extent reasonably requested by the Collateral Agent or the Applicable Authorized Representative, at the time of delivery of annual financial statements with respect to the preceding Fiscal Year pursuant to Section 5.1(b) of the Term Loan Credit Agreement or, if the Term Loan Credit Agreement is no longer outstanding, Section 3.10(a) of the Indenture or the corresponding provisions of any Future Term Loan/Notes Agreement.
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6.4 Status of Security Interest.
(a) Subject to the limitations set forth in subsection (b) of this Section 6.4, each Grantor shall maintain the security interest of the Collateral Agent hereunder in all Collateral as valid, perfected Liens having priority over all other Liens except for Permitted Liens.
(b) Notwithstanding anything to the contrary herein, no Grantor shall be required to take any action to perfect the security interests granted hereunder on (i) any Collateral that can only be perfected by (A) Control (other than to the extent required by Section 4.1 and Section 4.2), (B) foreign filings with respect to Intellectual Property, or (C) filings with registrars of motor vehicles or similar governmental authorities with respect to goods covered by a certificate of title, in each case except as and to the extent specified in Section 4 hereof, (ii) any assets of any Grantor located outside the United States or assets of any Grantor that require action under the laws of any jurisdiction other than the United States or any state or county thereof to perfect a security interest in such assets, including any Intellectual Property registered in any jurisdiction other than the United States, (iii) Letter of Credit rights (other than Supporting Obligations) and (iv) any assets of any Grantor in which the cost of perfecting a security interest therein exceeds the practical benefit to the Term Loan/Notes Secured Parties afforded thereby (as reasonably determined by the Borrower and the Applicable Authorized Representative).
6.5 Goods and Receivables.
(a) it shall not deliver any negotiable Document evidencing any Equipment to any Person other than the issuer of such negotiable Document to claim the Goods evidenced therefor or the Collateral Agent;
(b) it shall maintain, at its own cost and expense, such complete and accurate records with respect to all Receivables as is in accordance with such prudent and standard practices used in industries that are the same as or similar to those in which such Grantor is engaged, but in any event to include accounting records indicating all payments and proceeds received with respect to the Receivables; and
(c) upon the occurrence and during the continuance of any Event of Default, each of the Grantors will collect and enforce, in accordance with past practices and in the ordinary course of business, all amounts due to such Grantor under the Receivables owned by it. Such Grantor will deliver to the Collateral Agent promptly upon its reasonable request or the reasonable request of the Applicable Authorized Representative after the occurrence and during the continuance of an Event of Default duplicate invoices with respect to each Receivable owned by it, bearing such language of assignment as the Collateral Agent and/or the Applicable Authorized Representative shall reasonably specify in connection with its exercise of remedies hereunder.
6.6 Pledged Equity Interests, Investment Related Property.
(a) except as provided in the next sentence, in the event such Grantor receives any dividends, interest or distributions on any Pledged Equity Interest or other Investment Related Property, upon the merger, consolidation, liquidation or dissolution of any issuer of any Pledged Equity Interest or Investment Related Property, then (a) such dividends, interest or distributions and securities or other property shall be included in the definition of Collateral without further action and (b) such Grantor shall promptly take all steps, if any, necessary to ensure the validity, perfection, priority and, if applicable, control of the Collateral Agent over such Investment Related Property (including, without limitation, delivery thereof to the Collateral Agent to the extent certificated and to the extent that a security interest therein may be perfected by possession) and pending any such action such Grantor shall be deemed to
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hold such dividends, interest, distributions, securities or other property in trust for the benefit of the Collateral Agent and shall segregate such dividends, distributions, Securities or other property from all other property of such Grantor. Notwithstanding the foregoing, so long as no Event of Default shall have occurred and be continuing, the Collateral Agent authorizes each Grantor to retain all dividends and distributions and all payments of interest;
(b) Voting .
(i) So long as no Event of Default shall have occurred and be continuing, except as otherwise provided under the covenants and agreements relating to Investment Related Property in this Agreement or elsewhere herein or in the Term Loan/Notes Documents, each Grantor shall be entitled to exercise or refrain from exercising any and all voting and other consensual rights pertaining to the Investment Related Property or any part thereof; and
(ii) Upon the occurrence and during the continuation of an Event of Default and upon two (2) Business Days prior written notice from the Collateral Agent to such Grantor of the Collateral Agents intention to exercise such rights:
(1) all rights of each Grantor to exercise or refrain from exercising the voting and other consensual rights which it would otherwise be entitled to exercise pursuant hereto shall cease and all such rights shall thereupon become vested in the Collateral Agent who shall thereupon have the sole right to exercise such voting and other consensual rights; and
(2) in order to permit the Collateral Agent to exercise the voting and other consensual rights which it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions which it may be entitled to receive hereunder: (1) each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Collateral Agent all proxies, dividend payment orders and other instruments as the Collateral Agent may from time to time reasonably request and (2) each Grantor acknowledges that the Collateral Agent may utilize the power of attorney set forth in Section 8.1.
6.7 Intellectual Property.
(a) it shall not do any act or omit to do any act whereby any of the Material Intellectual Property may lapse, or become abandoned or cancelled, or dedicated to the public, in each case, except as shall be consistent with commercially reasonable business judgment and except as could not reasonably be expected to result in a Material Adverse Effect;
(b) it shall not, with respect to any Trademarks constituting Material Intellectual Property, fail to maintain the level of the quality of products sold and services rendered under any such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and such Grantor shall adequately control the quality of goods and services offered by any licensee of its Trademarks to maintain such standards, in each case except as could not reasonably be expected to have a Material Adverse Effect; and
(c) it shall promptly notify the Collateral Agent and the Applicable Authorized Representative if it knows or becomes aware that any item of Material Intellectual Property may become subject to any judicial or administrative adverse determination regarding such Grantors right to own, register or use or the validity or enforceability of such item of Intellectual Property (including the institution of any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office, any state registry, any foreign counterpart of the foregoing, or any court), in each case except as could not reasonably be expected to have a Material Adverse Effect.
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6.8 Insurance. The Grantors, at their own expense, shall maintain or cause to be maintained insurance covering physical loss or damage to the Collateral in accordance with the requirements set forth in Section 5.5 of the Term Loan Credit Agreement, Section 3.13 of the Indenture and the requirements of any other Term Loan/Notes Documents. In the event that any Grantor at any time or times shall fail to obtain or maintain any of the policies of insurance required hereby or to pay any premium in whole or part relating thereto, the Collateral Agent may (but shall not be obligated to), without waiving or releasing any obligation or liability of the Grantors hereunder or any Event of Default, in its sole discretion, obtain and maintain such policies of insurance and pay such premium and take any other actions with respect thereto as the Collateral Agent reasonably deems advisable or as directed by the Applicable Authorized Representative (acting in its reasonable discretion). All sums disbursed by the Collateral Agent in connection with this paragraph, including reasonable attorneys fees, court costs, expenses and other charges relating thereto, shall be payable, upon demand, by the Grantors to the Collateral Agent and shall be additional Term Loan/Notes Secured Obligations secured hereby.
SECTION 7. FURTHER ASSURANCES; ADDITIONAL GRANTORS.
7.1 Further Assurances.
(a) Each Grantor agrees that from time to time, at the expense of such Grantor, that it shall promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary under applicable law, or that the Collateral Agent or the Applicable Authorized Representative may reasonably request, in order to create and/or maintain the validity, perfection or priority of and protect any security interest granted or purported to be granted hereby or to enable the Collateral Agent to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Without limiting the generality of the foregoing, each Grantor shall:
(i) file such financing or continuation statements, or amendments thereto, record security interests in Intellectual Property (other than any Intellectual Property in a foreign jurisdiction) and execute and deliver such other agreements, instruments, endorsements, powers of attorney or notices, as may be necessary, or as the Collateral Agent or the Applicable Authorized Representative may reasonably request, in order to effect, reflect, perfect and preserve the security interests granted or purported to be granted hereby;
(ii) take all actions necessary to ensure the recordation of appropriate evidence of the liens and security interest granted hereunder in any U.S. Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, and the various Secretaries of State, if applicable;
(iii) at any time following the occurrence and during the continuance of an Event of Default, upon request by the Collateral Agent or the Applicable Authorized Representative, assemble the Collateral and allow inspection of the Collateral by the Collateral Agent and the Applicable Authorized Representative, or persons designated by the Collateral Agent or the Applicable Authorized Representative; provided that no Grantor shall be required to permit the inspection of any document, information or other matter (x) in respect of which disclosure to the Applicable Authorized Representative, the Collateral Agent or any Term Loan/Notes Secured Party (or their respective representatives or contractors) is prohibited by law or any bona fide binding agreement or (y) is subject to attorney-client or similar privilege or constitutes attorney
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work product; provided that each Grantor will make available redacted versions of requested documents or, if unable to do so consistent with the preservation of such privilege, endeavor in good faith otherwise to disclose information responsive to the requests of Collateral Agent or the Applicable Authorized Representative in a manner that will protect such privilege;
(iv) at the Collateral Agents or the Applicable Authorized Representatives request, appear in and defend any action or proceeding that may affect such Grantors title to or the Collateral Agents security interest in all or any part of the Collateral; and
(v) furnish the Collateral Agent and the Applicable Authorized Representative with such information regarding the Collateral, including, without limitation, the location thereof, as the Collateral Agent or the Applicable Authorized Representative may reasonably request from time to time.
(b) Without limiting the effect of Section 7.1(a)(i), each Grantor hereby authorizes the Collateral Agent to file a Record or Records, including, without limitation, financing or continuation statements, Intellectual Property Security Agreements and amendments and supplements to any of the foregoing, in any jurisdictions and with any filing offices as the Collateral Agent or the Applicable Authorized Representative may determine, in its sole discretion, are necessary or advisable to perfect or otherwise protect the security interest granted to the Collateral Agent herein; provided that the Grantors shall not have any obligation to perfect any security interest or lien, or record any notice thereof, in any Intellectual Property in any jurisdiction other than the U.S. Such financing statements may describe the Collateral in the same manner as described herein or may contain an indication or description of collateral that describes such property in any other manner as the Collateral Agent or the Applicable Authorized Representative may determine, in its sole discretion, is necessary, advisable or prudent to ensure the perfection of the security interest in the Collateral granted to the Collateral Agent herein, including, without limitation, describing such property as all assets, whether now owned or hereafter acquired, developed or created or words of similar effect.
7.2 Additional Grantors . From time to time subsequent to the date hereof, and to the extent required or permitted pursuant to the terms of the Term Loan Credit Agreement, the Indenture and any Future Term Loan/Notes Agreement, additional Persons may become parties hereto as additional Grantors (each, an Additional Grantor ), by executing a Pledge Supplement. Upon delivery of any such Pledge Supplement to the Collateral Agent, notice of which is hereby waived by Grantors, each Additional Grantor shall be a Grantor and shall be as fully a party hereto as if Additional Grantor were an original signatory hereto. Each Grantor expressly agrees that its obligations arising hereunder shall not be affected or diminished by the addition or release of any other Grantor hereunder, nor by any election of Collateral Agent not to cause any Subsidiary of Borrower to become an Additional Grantor hereunder. This Agreement shall be fully effective as to any Grantor that is or becomes a party hereto regardless of whether any other Person becomes or fails to become or ceases to be a Grantor hereunder.
SECTION 8. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT.
8.1 Power of Attorney. Each Grantor hereby irrevocably appoints the Collateral Agent (such appointment being coupled with an interest) as such Grantors attorney-in-fact, with full authority in the place and stead of such Grantor and in the name of such Grantor, the Collateral Agent or otherwise, from time to time in the Collateral Agents discretion to take any action and to execute any instrument that the Collateral Agent or the Applicable Authorized Representative may deem reasonably necessary to accomplish the purposes of this Agreement, including, without limitation, the following:
(a) upon the occurrence and during the continuance of any Event of Default, to obtain and adjust insurance required to be maintained by such Grantor or paid to the Collateral Agent pursuant to the Term Loan/Notes Documents;
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(b) upon the occurrence and during the continuance of any Event of Default, to ask for, demand, collect, sue for, recover, compound, receive and give acquittance and receipts for moneys due and to become due under or in respect of any of the Collateral;
(c) upon the occurrence and during the continuance of any Event of Default, to receive, endorse and collect any drafts or other instruments, documents and chattel paper in connection with clause (b) above;
(d) upon the occurrence and during the continuance of any Event of Default, to file any claims or take any action or institute any proceedings that the Collateral Agent may deem necessary or desirable for the collection of any of the Collateral or otherwise to enforce the rights of the Collateral Agent with respect to any of the Collateral;
(e) to prepare and file any UCC financing statements against such Grantor as debtor;
(f) to prepare, sign, and file for recordation in any intellectual property registry, appropriate evidence of the lien and security interest granted herein in any Intellectual Property in the name of such Grantor as debtor; provided that the Grantors shall not have any obligation to perfect any security interest or lien, or record any notice thereof, in any Intellectual Property in any jurisdiction other than the U.S.;
(g) upon the occurrence and during the continuance of any Event of Default, to take or cause to be taken all actions necessary to perform or comply or cause performance or compliance with the terms of this Agreement, including, without limitation, access to pay or discharge past due taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the Collateral that are not Permitted Liens, and may pay for the maintenance and preservation of the Collateral to the extent any Grantor fails to do so as required by the Term Loan Credit Agreement, the Indenture, any Future Term Loan/Notes Agreement or this Agreement, and each Grantor jointly and severally agrees to reimburse the Collateral Agent on demand for any payment reasonably made or any expense reasonably incurred by the Collateral Agent pursuant to the foregoing authorization; provided that nothing in this paragraph (g) shall be interpreted as excusing any Grantor from the performance of, or imposing any obligation on the Collateral Agent or any Term Loan/Notes Secured Party to cure or perform, any covenants or other promises of any Grantor with respect to taxes, assessments, charges, fees, Liens, security interests or other encumbrances and maintenance as set forth herein, or in the other Term Loan/Notes Documents. The Collateral Agent will give notice to Borrower of any exercise of the Collateral Agents rights or powers pursuant to this paragraph (g); provided that any failure to give or delay in giving such notice shall not operate as a waiver of, or preclude any other or further exercise of, such rights or powers or the exercise of any other right or power pursuant to this Agreement; and
(h) upon the occurrence and during the continuance of any Event of Default, generally to sell, transfer, lease, license, pledge, make any agreement with respect to or otherwise deal, subject, in each case, to the terms of any applicable agreements, with any of the Collateral as fully and completely as though the Collateral Agent were the absolute owner thereof for all purposes, and to do, at the Collateral Agents option and such Grantors expense, at any time or from time to time, all acts and things that the Collateral Agent deems reasonably necessary to protect, preserve or realize upon the Collateral and the Collateral Agents security interest therein in order to effect the intent of this Agreement, all as fully and effectively as such Grantor might do.
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8.2 No Duty on the Part of Collateral Agent or Secured Parties. The powers conferred on the Collateral Agent hereunder are solely to protect the interests of the Term Loan/Notes Secured Parties in the Collateral and shall not impose any duty upon the Collateral Agent or any other Term Loan/Notes Secured Party to exercise any such powers. The Collateral Agent and the other Term Loan/Notes Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their officers, directors, employees or agents shall be responsible to any Grantor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct. Each Grantor shall remain liable to observe and perform all the conditions and obligations to be observed and performed by it under each contract, agreement or instrument relating to the Collateral, all in accordance with the terms and conditions thereof, to the same extent as if the security interests granted hereunder had not been granted to the Collateral Agent in the Collateral.
8.3 Appointment Pursuant to the Pari Passu Intercreditor Agreement. The Collateral Agent has been appointed as collateral agent pursuant to the Pari Passu Intercreditor Agreement. The rights, duties, privileges, immunities and indemnities of the Collateral Agent hereunder are subject to the provisions of the Pari Passu Intercreditor Agreement.
8.4 Determinations by the Collateral Agent and Applicable Authorized Representative . Wherever in this Agreement the Collateral Agent is to make any determination or take any discretionary action, the Collateral Agent shall do so in accordance with the terms of the Pari Passu Intercreditor Agreement. When, under the terms of the Pari Passu Intercreditor Agreement, the Trustee is the Applicable Authorized Representative and under the terms of this Agreement, the Applicable Authorized Representative is to make any determination, take any discretionary action or direct the Collateral Agent, the Trustee shall make such determinations, take such actions or give such instructions all in accordance with the terms of the Indenture.
SECTION 9. REMEDIES.
9.1 Generally.
(a) If any Event of Default shall have occurred and be continuing, the Collateral Agent may (but shall not be obligated to) exercise in respect of the Collateral, in addition to all other rights and remedies provided for herein or otherwise available to it at law or in equity, all the rights and remedies of the Collateral Agent on default under the UCC (whether or not the UCC applies to the affected Collateral) to collect, enforce or satisfy any Term Loan/Notes Secured Obligations then owing, whether by acceleration or otherwise, and also may pursue any of the following separately, successively or simultaneously:
(i) require any Grantor to, and each Grantor hereby agrees that it shall at its expense and promptly upon request of the Collateral Agent forthwith, assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place to be designated by the Collateral Agent that is reasonably convenient to both parties; provided that no Grantor shall be required to permit the inspection of any document or information (x) in respect of which disclosure to the Applicable Authorized Representative, the Collateral Agent or any Term Loan/Notes Secured Party (or their respective representatives or contractors) is prohibited by law or any bona fide binding agreement or (y) is subject to attorney-client or similar privilege or constitutes attorney work product; provided that each Grantor will make available redacted versions of requested documents or, if unable to do so consistent with the preservation of such privilege, endeavor in good faith otherwise to disclose information responsive to the requests of Collateral Agent in a manner that will protect such privilege;
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(ii) enter onto the property where any Collateral is located and take possession thereof with or without judicial process;
(iii) prior to the disposition of the Collateral, store, process, repair or recondition the Collateral or otherwise prepare the Collateral for disposition in any manner to the extent the Collateral Agent reasonably deems appropriate; and
(iv) without notice except as specified below or under the UCC, sell, assign, lease, license (on an exclusive or nonexclusive basis) or otherwise dispose, subject, in each case, to the terms of any applicable agreements, of the Collateral or any part thereof in one or more parcels at public or private sale, at any of the Collateral Agents offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Collateral Agent may deem commercially reasonable.
(b) The Collateral Agent or any other Term Loan/Notes Secured Party may be the purchaser of any or all of the Collateral at any public or private (to the extent the portion of the Collateral being privately sold is of a kind that is customarily sold on a recognized market or the subject of widely distributed standard price quotations) sale in accordance with the UCC and the Collateral Agent, as collateral agent for and representative of the Term Loan/Notes Secured Parties, shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale made in accordance with the UCC, to use and apply any of the Term Loan/Notes Secured Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. For the avoidance of doubt, each of the Grantors and each of the Term Loan/Notes Secured Parties, by their acceptance of the benefits of this Agreement, agree, to the fullest extent permitted by applicable law, that the Collateral Agent shall have the right to credit bid any or all of the Term Loan/Notes Secured Obligations in connection with any sale or foreclosure proceeding in respect of the Collateral, including without limitation, sales occurring pursuant to Section 363 of the Bankruptcy Code or included as part of any plan subject to confirmation under Section 1129(b)(2)(A)(iii) of the Bankruptcy Code. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that routinely provide for the auction of assets of the types included in the Collateral or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the Collateral Agent arising by reason of the fact that the price at which any Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. If the proceeds of any sale or other disposition of the Collateral are insufficient to pay all the Term Loan/Notes Secured Obligations, Grantors shall be liable for the deficiency and the reasonable fees of any attorneys employed by the Collateral Agent to collect such deficiency. Each Grantor further agrees that a breach of any of the covenants contained in this Section will cause irreparable injury to the Collateral Agent, that the Collateral Agent has no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section shall be specifically enforceable against such Grantor, and such Grantor hereby waives and agrees
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not to assert any defenses against an action for specific performance of such covenants except for a defense that no default has occurred giving rise to the Term Loan/Notes Secured Obligations becoming due and payable prior to their stated maturities. Nothing in this Section shall in any way limit the rights of the Collateral Agent hereunder.
(c) The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral.
(d) The Collateral Agent shall have no obligation to marshal any of the Collateral.
9.2 Application of Proceeds. Subject to the ABL Intercreditor Agreement, all proceeds of Collateral shall be applied by the Collateral Agent in the order of priority set forth in Section 2.01 of the Pari Passu Intercreditor Agreement.
9.3 Sales on Credit. If Collateral Agent sells any of the Collateral upon credit, Grantor will be credited only with payments actually made by purchaser and received by Collateral Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, Collateral Agent may resell the Collateral and Grantor shall be credited with proceeds of the sale.
9.4 Investment Related Property. Each Grantor recognizes that, by reason of certain prohibitions contained in the Securities Act and applicable state securities laws, the Collateral Agent may be compelled, with respect to any sale of all or any part of the Investment Related Property conducted without prior registration or qualification of such Investment Related Property under the Securities Act and/or such state securities laws, to limit purchasers to those who will agree, among other things, to acquire the Investment Related Property for their own account, for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges that any such private sale may be at prices and on terms less favorable than those obtainable through a public sale without such restrictions (including a public offering made pursuant to a registration statement under the Securities Act) and, notwithstanding such circumstances, each Grantor agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Collateral Agent shall have no obligation to engage in public sales and no obligation to delay the sale of any Investment Related Property for the period of time necessary to permit the issuer thereof to register it for a form of public sale requiring registration under the Securities Act or under applicable state securities laws, even if such issuer would, or should, agree to so register it. If the Collateral Agent determines to exercise its right to sell any or all of the Investment Related Property, upon written request, each Grantor shall and shall cause each issuer of any Pledged Stock to be sold hereunder, each partnership and each limited liability company from time to time to furnish to the Collateral Agent all such information as the Collateral Agent may request in order to determine the number and nature of interest, shares or other instruments included in the Investment Related Property which may be sold by the Collateral Agent in exempt transactions under the Securities Act and the rules and regulations of the Securities and Exchange Commission thereunder, as the same are from time to time in effect.
9.5 Grant of Intellectual Property License. For the purpose of enabling the Collateral Agent, during the continuance of an Event of Default, to exercise rights and remedies under Section 9 hereof at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, and for no other purpose, each Grantor hereby grants to the Collateral Agent, to the extent assignable, a non-exclusive license (exercisable without payment of royalty or other compensation to such Grantor), subject, in the case of trademarks and service marks, to sufficient rights to quality control and inspection in favor of such Grantor to avoid the risk of invalidation of such trademarks and service marks, to use,
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license or sublicense, to the extent permitted under the licenses granting such Grantor rights therein, any intellectual property now owned or licensed or hereafter acquired, developed or created by such Grantor, wherever the same may be located; provided that (i) such license shall be subject to the rights of any licensee under any exclusive license granted prior to such Event of Default, to the extent such license is a Permitted Lien, and (ii) to the extent the foregoing license is a sublicense of such Grantors rights as licensee under any third party license, the license to the Collateral Agent shall be in accordance with any limitations in such third party license.
9.6 Intellectual Property.
(a) Anything contained herein to the contrary notwithstanding, in addition to the other rights and remedies provided herein, upon the occurrence and during the continuation of an Event of Default:
(i) the Collateral Agent shall have the right (but not the obligation) to bring suit or otherwise commence any action or proceeding in the name of any Grantor, the Collateral Agent or otherwise, in the Collateral Agents sole discretion, to enforce any Intellectual Property rights of such Grantor, in which event such Grantor shall, at the request of the Collateral Agent, do any and all lawful acts and execute any and all documents required by the Collateral Agent in aid of such enforcement, and such Grantor shall promptly, upon demand, reimburse and indemnify the Collateral Agent as provided in Section 12 hereof in connection with the exercise of its rights under this Section 9.6, and, to the extent that the Collateral Agent shall elect not to bring suit to enforce any Intellectual Property rights as provided in this Section 9.6, each Grantor agrees, at the Collateral Agents request, to use all reasonable measures, whether by action, suit, proceeding or otherwise, to prevent the infringement, misappropriation, dilution or other violation of any of such Grantors rights in the Intellectual Property by others and for that purpose agrees to diligently maintain any action, suit or proceeding against any Person so infringing, misappropriating, diluting or otherwise violating as shall be necessary to prevent such infringement, misappropriation, dilution or other violation;
(ii) upon written demand from the Collateral Agent, each Grantor shall grant, assign, convey or otherwise transfer to the Collateral Agent or such Collateral Agents designee all of such Grantors right, title and interest in and to any Intellectual Property included in the Collateral and shall execute and deliver to the Collateral Agent such documents as are necessary or appropriate to carry out the intent and purposes of this Agreement;
(iii) each Grantor agrees that such an assignment and/or recording shall be applied to reduce the Term Loan/Notes Secured Obligations outstanding only to the extent that the Collateral Agent (or any other Term Loan/Notes Secured Party) receives cash proceeds in respect of the sale of, or other realization upon, any such Intellectual Property;
(iv) within five (5) Business Days after written notice from the Collateral Agent, each Grantor shall make available to the Collateral Agent, to the extent within such Grantors power and authority, such personnel in such Grantors employ on the date of such Event of Default as the Collateral Agent may reasonably designate, by name, title or job responsibility, to permit such Grantor to continue, directly or indirectly, to produce, advertise and sell the products and services sold or delivered by such Grantor under or in connection with any Trademarks or Trademark Licenses, such persons to be available to perform their prior functions on the Collateral Agents behalf and to be compensated by the Collateral Agent at such Grantors expense on a per diem, pro-rata basis consistent with the salary and benefit structure applicable to each as of the date of such Event of Default; and
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(v) the Collateral Agent shall have the right (but not the obligation) to notify, or require each Grantor to notify, any obligors with respect to amounts due or to become due to such Grantor in respect of any Intellectual Property of such Grantor, of the existence of the security interest created herein, to direct such obligors to make payment of all such amounts directly to the Collateral Agent, and, upon such notification and at the expense of such Grantor, to enforce collection of any such amounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done;
(1) all amounts and proceeds (including checks and other instruments) received by Grantor in respect of amounts due to such Grantor in respect of the Collateral or any portion thereof shall be received in trust for the benefit of the Collateral Agent hereunder, shall be segregated from other funds of such Grantor and shall be forthwith paid over or delivered to the Collateral Agent in the same form as so received (with any necessary endorsement) to be held as cash Collateral and applied as provided by Section 9.7 hereof; and
(2) Grantor shall not adjust, settle or compromise the amount or payment of any such amount or release wholly or partly any obligor with respect thereto or allow any credit or discount thereon.
(b) If (i) an Event of Default shall have occurred and, by reason of cure, waiver, modification, amendment or otherwise, no longer be continuing, (ii) no other Event of Default shall have occurred and be continuing, (iii) an assignment or other transfer to the Collateral Agent of any rights, title and interests in and to any Intellectual Property of such Grantor shall have been previously made and shall have become absolute and effective, and (iv) the Term Loan/Notes Secured Obligations shall not have become immediately due and payable, upon the written request of any Grantor, the Collateral Agent shall promptly execute and deliver to such Grantor, at such Grantors sole cost and expense, such assignments or other transfer as may be necessary to reassign to such Grantor any such rights, title and interests as may have been assigned to the Collateral Agent as aforesaid, subject to any disposition thereof that may have been made by the Collateral Agent; provided, after giving effect to such reassignment, the Collateral Agents security interest granted pursuant hereto, as well as all other rights and remedies of the Collateral Agent granted hereunder, shall continue to be in full force and effect; and provided further, the rights, title and interests so reassigned shall be free and clear of any other Liens granted by or on behalf of the Collateral Agent and the Term Loan/Notes Secured Parties.
9.7 Deposit Accounts. Subject to the ABL Intercreditor Agreement and the Pari Passu Intercreditor Agreement, if any Event of Default shall have occurred and be continuing, the Collateral Agent may give any notice of exclusive control or similar notice for any Control Account and apply the balance from any Control Account, or instruct the bank at which any Control Account is maintained to pay the balance of any Control Account, to or for the benefit of the Collateral Agent to be applied in accordance with the terms of this Agreement and the Pari Passu Intercreditor Agreement.
SECTION 10. COLLATERAL AGENT.
The Collateral Agent has been appointed to act as Collateral Agent hereunder by the Term Loan/Notes Secured Parties or their Authorized Representatives pursuant to the Pari Passu Intercreditor Agreement. The Collateral Agent shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement, the Pari Passu Intercreditor Agreement, the ABL Intercreditor Agreement and the other Term Loan/Notes Documents. In furtherance of the foregoing provisions of this
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Section, each Term Loan/Notes Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Term Loan/Notes Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Term Loan/Notes Secured Parties in accordance with the terms of this Section. The provisions of the Pari Passu Intercreditor Agreement, the Term Loan Credit Agreement, the Indenture and each other Term Loan/Notes Document relating to the Collateral Agent including, without limitation, the provisions relating to resignation or removal of the Collateral Agent and the rights, privileges and immunities of the Collateral Agent are incorporated herein by this reference and shall survive any termination of such agreements.
SECTION 11. CONTINUING SECURITY INTEREST.
This Agreement shall create a continuing security interest in the Collateral, shall remain in full force and effect until the payment in full of all Term Loan/Notes Secured Obligations (other than unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations) and the cancellation or termination of the Commitments under the Term Loan Credit Agreement and the commitments under any Future Term Loan/Notes Agreement, and shall be binding upon each Grantor, its successors and assigns, and inure, together with the rights and remedies of the Collateral Agent hereunder, to the benefit of the Collateral Agent and its successors, transferees and assigns. Without limiting the generality of the foregoing, but subject to the terms of the applicable Term Loan/Notes Documents, any Term Loan/Notes Secured Party may assign or otherwise transfer any Loans or Notes, as the case may be, held by it to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Term Loan/Notes Secured Party herein or otherwise. Upon the payment in full of all Term Loan/Notes Secured Obligations (other than unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations) and the cancellation or termination of the Commitments and the commitments under any Future Term Loan/Notes Agreement, the security interest granted hereby shall automatically terminate hereunder and of record and all rights to the Collateral shall revert to the Grantors. Upon any such termination the Collateral Agent shall, at the Grantors expense, execute and deliver to the Grantors or otherwise authorize the filing of such documents as the Grantors shall reasonably request, including financing statement amendments and/or releases and/or reassignments of Intellectual Property included in the Collateral in the form appropriate for recording in the U.S. Patent and Trademark Office, U.S. Copyright Office, and other applicable Intellectual Property registry where the Collateral Agents security interest may have been recorded, to evidence such termination. Upon any disposition of property (other than a disposition to another Grantor) or other release of such property from the Collateral, in each case, permitted by each Term Loan/Notes Document, the Liens granted herein shall be deemed to be automatically released and such property shall automatically revert to the applicable Grantor with no further action on the part of any Person. In addition, the Liens granted herein on any Collateral shall be released or subordinated as provided in Section 2.04 of the Pari Passu Intercreditor Agreement. The Collateral Agent shall, at the applicable Grantors expense, execute and deliver or otherwise authorize the filing of such documents as such Grantor shall reasonably request, in form and substance reasonably satisfactory to the Collateral Agent, including financing statement amendments to evidence such release.
SECTION 12. STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM.
The powers conferred on the Collateral Agent hereunder are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the exercise of reasonable care in the custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder, the Collateral Agent shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation
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of Collateral in its possession if such Collateral is accorded treatment substantially equal to that which the Collateral Agent accords its own property. Neither the Collateral Agent nor any of its directors, officers, employees or agents shall be liable for failure to demand, collect or realize upon all or any part of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or otherwise. If any Grantor fails to perform any agreement contained herein, the Collateral Agent may itself perform, or cause performance of, such agreement, and the expenses of the Collateral Agent incurred in connection therewith shall be payable by each Grantor under Section 10.2 of the Credit Agreement, Section 7.7 of the Indenture and the applicable section of each Future Term Loan/Notes Agreement.
SECTION 13. MISCELLANEOUS.
Any notice required or permitted to be given under this Agreement shall be given in accordance with Section 10.1 of the Term Loan Credit Agreement, Section 13.1 of the Indenture, the applicable section of each Future Term Loan/Notes Agreement and Section 5.01 of the Pari Passu Intercreditor Agreement. None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except in accordance with Section 10.5 of the Term Loan Credit Agreement, Article IX of the Indenture and the corresponding provisions of any Future Term Loan/Notes Agreement; provided, however , that (i) schedules to this Agreement may be supplemented or amended at any time by any Grantor through Pledge Supplements (but no other existing provisions of this Agreement may be modified and no Collateral may be released (except as provided in Section 11 hereof), in each case solely through Pledge Supplements) and (ii) schedules to the Collateral Questionnaire may be supplemented or amended at any time by any Grantor by written notice thereof to the Collateral Agent and the Applicable Authorized Representative. No failure or delay on the part of the Collateral Agent in the exercise of any power, right or privilege hereunder or under any other Term Loan/Notes Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other power, right or privilege. All rights and remedies existing under this Agreement and the other Term Loan/Notes Documents are cumulative to, and not exclusive of, any rights or remedies otherwise available. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists. This Agreement shall be binding upon and inure to the benefit of the Collateral Agent and the Grantors and their respective successors and assigns. No Grantor shall, without the prior written consent of the Collateral Agent given in accordance with the Term Loan/Notes Documents, assign any right, duty or obligation hereunder. This Agreement and the other Term Loan/Notes Documents embody the entire agreement and understanding between the Grantors and the Collateral Agent and supersede all prior agreements and understandings between such parties relating to the subject matter hereof and thereof. Accordingly, the Term Loan/Notes Documents may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties. This Agreement may be executed in one or more counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document; delivery of an executed signature page to this Agreement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
-28-
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK (OTHER THAN ANY MANDATORY PROVISIONS OF THE UCC RELATING TO THE LAW GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OF THE SECURITY INTEREST).
THE PROVISIONS OF THE PARI PASSU INTERCREDITOR AGREEMENT UNDER THE HEADINGS GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS, SUBMISSION TO JURISDICTION WAIVERS AND WAIVER OF JURY TRIAL ARE INCORPORATED HEREIN BY THIS REFERENCE AND SUCH INCORPORATION SHALL SURVIVE ANY TERMINATION OF THE PARI PASSU INTERCREDITOR AGREEMENT.
Notwithstanding anything herein to the contrary, the liens and security interests granted to the Collateral Agent pursuant to this Agreement and the exercise of any right or remedy by the Collateral Agent hereunder, in each case, with respect to the ABL Priority Collateral are subject to the limitations and provisions of the ABL Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2) and the terms and conditions of the ABL Intercreditor Agreement, the terms and conditions of the ABL Intercreditor Agreement shall control. Notwithstanding anything herein to the contrary, the liens and security interests granted to the Collateral Agent pursuant to this Agreement and the exercise of any right or remedy by the Collateral Agent hereunder are subject to the limitations and provisions of the Pari Passu Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2) and the terms and conditions of the Pari Passu Intercreditor Agreement, the terms and conditions of the Pari Passu Intercreditor Agreement shall control.
[Remainder of page intentionally left blank]
-29-
IN WITNESS WHEREOF , each Grantor and the Collateral Agent have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
J. C. PENNEY COMPANY, INC. , as Grantor |
||
By: |
|
|
Name: | ||
Title: | ||
J. C. PENNEY CORPORATION, INC. , as Grantor |
||
By: |
|
|
Name: | ||
Title: | ||
J. C. PENNEY PURCHASING CORPORATION , as Grantor |
||
By: |
|
|
Name: | ||
Title: | ||
JCP REAL ESTATE HOLDINGS, INC. , as Grantor |
||
By: |
|
|
Name: | ||
Title: | ||
J. C. PENNEY PROPERTIES, INC. , as Grantor |
||
By: |
|
|
Name: | ||
Title: |
WILMINGTON TRUST, NATIONAL ASSOCIATION , as Collateral Agent |
||
By: |
|
|
Name: | ||
Title: |
SCHEDULE 5.2
TO AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
COLLATERAL IDENTIFICATION
I. | INTELLECTUAL PROPERTY |
(A) | Copyrights |
Owner |
Title |
Copyright Serial No. (CSN) Serial Publication Year |
Registration No. |
(B) | Copyrights Licenses |
None.
(C) | Patents |
None.
(D) | Patent Licenses |
None.
(E) | Trademarks |
U.S. and State Trademarks:
Trademark |
Jurisdiction |
Application No. Application Date |
Registration No. Registration Date |
Owner Name |
(F) | Trademark Licenses |
Licensor |
Licensee |
Marks Licensed |
Type of License |
(G) | Trade Secret Licenses |
II. | COMMERCIAL TORT CLAIMS |
III. | RESERVED |
SCHEDULE 5.4
TO AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
FINANCING STATEMENTS
Grantor |
Filing Jurisdiction |
SCHEDULE 5.5
TO AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
Equipment Locations
Store Number |
Type/Use |
Address |
City |
State |
Inventory Locations
Store Number |
Street |
City |
State |
Zip |
EXHIBIT A
TO AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
PLEDGE SUPPLEMENT
This PLEDGE SUPPLEMENT , dated [ ], 20[ ], is delivered by [ NAME OF GRANTOR ] a [ NAME OF STATE OF INCORPORATION ] [Corporation] (the Grantor ) pursuant to the Amended and Restated Pledge and Security Agreement, dated as of June 23, 2016 (as it may be from time to time amended, restated, modified or supplemented, the Security Agreement ), among J. C. PENNEY CORPORATION, INC. , the other Grantors named therein, and WILMINGTON TRUST, NATIONAL ASSOCIATION , as the Collateral Agent. Capitalized terms used herein not otherwise defined herein shall have the meanings ascribed thereto in the Security Agreement.
Grantor hereby confirms the grant to the Collateral Agent set forth in the Security Agreement of, and does hereby grant to the Collateral Agent, a security interest in all of Grantors right, title and interest in, to and under all Collateral to secure the Term Loan/Notes Secured Obligations, in each case whether now or hereafter existing or in which Grantor now has or hereafter acquires an interest and wherever the same may be located. Grantor represents and warrants that the attached Annex A and Supplements to Schedules accurately and completely set forth all additional information required to be provided pursuant to the Security Agreement and hereby agrees that such Annex A and Supplements to Schedules shall constitute part of the Schedules to the Security Agreement.
THIS PLEDGE SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK (OTHER THAN ANY MANDATORY PROVISIONS OF THE UCC RELATING TO THE LAW GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OF THE SECURITY INTEREST).
IN WITNESS WHEREOF , Grantor has caused this Pledge Supplement to be duly executed and delivered by its duly authorized officer as of [ ], 20[ ].
[NAME OF GRANTOR] , | ||
By: |
|
|
Name: | ||
Title: |
EXHIBIT A-1
ANNEX A
TO PLEDGE SUPPLEMENT
Additional Information:
GENERAL INFORMATION
(A) | Full Legal Name, Type of Organization, Jurisdiction of Organization, Chief Executive Office/Sole Place of Business (or Residence if Grantor is a Natural Person) and Organizational Identification Number of each Grantor: |
Full Legal Name |
Type of
|
Jurisdiction of
|
Chief Executive
Office/Sole Place
|
Organization I.D.# |
(B) | Other Names (including any Trade Name or Fictitious Business Name) under which each Grantor currently conducts business: |
Full Legal Name |
Trade Name or Fictitious Business Name |
(C) | Changes in Name, Jurisdiction of Organization, Chief Executive Office or Sole Place of Business (or Principal Residence if Grantor is a Natural Person) and Corporate Structure within past five (5) years: |
Grantor |
Date of Change |
Description of Change |
(D) | Agreements pursuant to which any Grantor is bound as debtor within past five (5) years: |
Grantor |
Description of Agreement |
EXHIBIT A-2
SUPPLEMENT TO SCHEDULE 5.2
TO AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
COLLATERAL IDENTIFICATION
I. | INTELLECTUAL PROPERTY |
(A) | Copyrights |
Grantor |
Jurisdiction |
Title of Work |
Registration Number (if any) |
Registration Date
|
(B) | Copyrights Licenses |
Grantor |
Description of
|
Registration Number (if any)
|
Name of Licensor |
(C) | Patents |
Grantor |
Jurisdiction |
Title of Patent |
Patent Number
|
Issue Date
|
(D) | Patent Licenses |
Grantor |
Description of
|
Patent Number
|
Name of Licensor |
(E) | Trademarks |
Grantor |
Jurisdiction |
Trademark |
Registration Number (Serial Number) |
Registration Date
|
EXHIBIT A-3
(F) | Trademark Licenses |
Grantor |
Description of
|
Registration Number
|
Name of Licensor |
(G) | Trade Secret Licenses |
II. COMMERCIAL TORT CLAIMS
Grantor |
Commercial Tort Claims |
III. WAREHOUSEMEN, BAILEES AND OTHER THIRD PARTIES IN POSSESSION OF COLLATERAL
Grantor |
Description of Property |
Name and Address of Third Party |
EXHIBIT A-4
SUPPLEMENT TO SCHEDULE 5.4
TO AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
Financing Statements:
Grantor |
Filing Jurisdiction(s) |
EXHIBIT A-5
SUPPLEMENT TO SCHEDULE 5.5
TO AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
Additional Information:
Name of Grantor |
Location of Equipment and Inventory |
EXHIBIT A-6
EXHIBIT B
TO AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
FORM OF AMENDED AND RESTATED TRADEMARK SECURITY AGREEMENT
This AMENDED AND RESTATED TRADEMARK SECURITY AGREEMENT , dated as of [ ], 20[ ] (as it may be amended, restated, supplemented or otherwise modified from time to time, this Agreement ), is made by the entities identified as grantors on the signature pages hereto (collectively, the Grantors ) in favor of Wilmington Trust, National Association, as collateral agent for the Term Loan/Notes Secured Parties (in such capacity, together with its successors and permitted assigns, the Collateral Agent ).
WHEREAS , the Grantors are party to an Amended and Restated Pledge and Security Agreement dated as of June 23, 2016 (as it may be amended, restated, supplemented or otherwise modified from time to time, the Pledge and Security Agreement ) between each of the Grantors and the other grantors party thereto and the Collateral Agent pursuant to which the Grantors granted a security interest to the Collateral Agent in the Trademark Collateral (as defined below) and are required to execute and deliver this Agreement.
NOW, THEREFORE , in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Grantors hereby agree with the Collateral Agent as follows:
SECTION 1. Defined Terms
Unless otherwise defined herein, terms defined in the Pledge and Security Agreement and used herein have the meaning given to them in the Pledge and Security Agreement.
SECTION 2. Grant of Security Interest in Trademark Collateral
SECTION 2.1 Grant of Security Interest. Each Grantor hereby grants to the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, a security interest in and continuing lien on all of such Grantors right, title and interest in, to and under the following, in each case whether now or hereafter existing or in which such Grantor now has or hereafter acquires an interest and wherever the same may be located (collectively, the Trademark Collateral ):
(a) all United States, and foreign trademarks, trade names, trade dress, Internet domain names, service marks, certification marks, logos, and other source identifiers, whether or not registered;
(b) all registrations and applications therefor including, without limitation, the registrations and applications listed on Schedule A attached hereto;
(c) all extensions or renewals of any of the foregoing;
(d) all of the goodwill of the business connected with the use of and symbolized by any of the foregoing;
(e) the right to sue or otherwise recover for any past, present and future infringement, dilution or other violation of any of the foregoing;
EXHIBIT B-1
(f) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect thereto; and
(g) all other rights corresponding thereto throughout the world.
SECTION 2.2 Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Trademark Collateral include or the security interest granted under Section 2.1 hereof attach to any Excluded Asset, including, without limitation, any intent-to-use application for registration of a trademark or service mark filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to the filing of a Statement of Use pursuant to Section 1(d) of the Lanham Act or an Amendment to Allege Use pursuant to Section 1(c) of the Lanham Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law.
SECTION 3. Security Agreement
The security interest granted pursuant to this Agreement is granted in conjunction with the security interest granted to the Collateral Agent for the Term Loan/Notes Secured Parties pursuant to the Pledge and Security Agreement, and the Grantors hereby acknowledge and affirm that the rights and remedies of the Collateral Agent with respect to the security interest in the Trademark Collateral made and granted hereby are more fully set forth in the Pledge and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Agreement is deemed to conflict with the Pledge and Security Agreement, the provisions of the Pledge and Security Agreement shall control.
SECTION 4. Termination
Upon the payment in full of all Term Loan/Notes Secured Obligations (other than unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations) and the cancellation or termination of the Commitments and commitments under any Future Term Loan/Notes Agreement, the security interest granted hereby shall automatically terminate hereunder and of record and all rights to the Trademark Collateral shall revert to the Grantors. Upon any such termination the Collateral Agent shall, at the Grantors expense, execute and deliver to the Grantors or otherwise authorize the filing of such documents as the Grantors shall reasonably request, including financing statement amendments and/or releases and/or reassignments of the Trademark Collateral in the form appropriate for recording in the U.S. Patent and Trademark Office or other applicable Intellectual Property registry where the Collateral Agents security interest may have been recorded, to evidence such termination.
SECTION 5. Governing Law
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK (OTHER THAN ANY MANDATORY PROVISIONS OF THE UCC RELATING TO THE LAW GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OF THE SECURITY INTEREST).
EXHIBIT B-2
SECTION 6. Intercreditor Agreement
Notwithstanding anything herein to the contrary, the liens and security interests granted to the Collateral Agent pursuant to this Agreement in respect of the Trademark Collateral and the exercise of any right or remedy by the Collateral Agent hereunder in respect of the Trademark Collateral, in each case, with respect to such Trademark Collateral are subject to the limitations and provisions of the ABL Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2) and the terms and conditions of the ABL Intercreditor Agreement, the terms and conditions of the ABL Intercreditor Agreement shall control. In addition, notwithstanding anything herein to the contrary, the liens and security interests granted to the Collateral Agent pursuant to this Agreement in respect of the Trademark Collateral and the exercise of any right or remedy by the Collateral Agent hereunder in respect of the Trademark Collateral, in each case, with respect to such Trademark Collateral are subject to the limitations and provisions of the Pari Passu Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2) and the terms and conditions of the Pari Passu Intercreditor Agreement, the terms and conditions of the Pari Passu Intercreditor Agreement shall control.
SECTION 7. Counterparts
This Agreement may be executed in one or more counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed signature page to this Agreement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
SECTION 8. Concerning the Collateral Agent
Wilmington Trust, National Association is entering into this Agreement solely in its capacity as Collateral Agent pursuant to the Pari Passu Intercreditor Agreement, and shall be entitled to all of the rights, privileges and immunities provided to the Collateral Agent thereunder in acting as Collateral Agent pursuant hereto.
[Remainder of page intentionally left blank ]
EXHIBIT B-3
IN WITNESS WHEREOF , each Grantor has caused this Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.
[NAME OF GRANTOR] , | ||
By: |
|
|
Name: | ||
Title: |
STATE OF ) | ||||
) ss. | ||||
COUNTY OF ) |
On this day of , before me personally appeared , proved to me on the basis of satisfactory evidence to be the person who executed the foregoing instrument on behalf of , who being by me duly sworn did depose and say that he/she is an authorized officer of said corporation, that the said instrument was signed on behalf of said corporation as authorized by its Board of Directors and that he/she acknowledged said instrument to be the free act and deed of said corporation.
Notary Public | ||
[NAME OF GRANTOR] , | ||
By: |
|
|
Name: | ||
Title: |
STATE OF ) | ||||
) ss. | ||||
COUNTY OF ) |
On this day of , before me personally appeared , proved to me on the basis of satisfactory evidence to be the person who executed the foregoing instrument on behalf of , who being by me duly sworn did depose and say that he/she is an authorized officer of said corporation, that the said instrument was signed on behalf of said corporation as authorized by its Board of Directors and that he/she acknowledged said instrument to be the free act and deed of said corporation.
[ADD SIGNATURE BLOCKS AND NOTARY BLOCKS FOR ANY OTHER GRANTORS]
EXHIBIT B-4
Accepted and Agreed: | ||
WILMINGTON TRUST, NATIONAL ASSOCIATION , as Collateral Agent |
By: |
|
|||
Name: | ||||
Title: |
EXHIBIT B-5
SCHEDULE A
to
TRADEMARK SECURITY AGREEMENT
TRADEMARK REGISTRATIONS AND APPLICATIONS
Mark |
Serial No. |
Filing Date |
Registration No. |
Registration Date |
EXHIBIT B-6
EXHIBIT C
TO AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
FORM OF PATENT SECURITY AGREEMENT
This PATENT SECURITY AGREEMENT , dated as of [ ], 20[ ] (as it may be amended, restated, supplemented or otherwise modified from time to time, this Agreement ), is made by the entities identified as grantors on the signature pages hereto (collectively, the Grantors ) in favor of Wilmington Trust, National Association, as collateral agent for the Term Loan/Notes Secured Parties (in such capacity, together with its successors and permitted assigns, the Collateral Agent ).
WHEREAS , the Grantors are party to an Amended and Restated Pledge and Security Agreement dated as of June 23, 2016 (as it may be amended, restated, supplemented or otherwise modified from time to time, the Pledge and Security Agreement ) between each of the Grantors and the other grantors party thereto and the Collateral Agent pursuant to which the Grantors granted a security interest to the Collateral Agent in the Patent Collateral (as defined below) and are required to execute and deliver this Agreement.
NOW, THEREFORE , in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Grantors hereby agree with the Collateral Agent as follows:
SECTION 1. Defined Terms
Unless otherwise defined herein, terms defined in the Pledge and Security Agreement and used herein have the meaning given to them in the Pledge and Security Agreement.
SECTION 2. Grant of Security Interest in Patent Collateral
SECTION 2.1. Grant of Security Interest. Each Grantor hereby grants to the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, a security interest in and continuing lien on all of such Grantors right, title and interest in, to and under the following, in each case whether now or hereafter existing or in which such Grantor now has or hereafter acquires an interest and wherever the same may be located (collectively, the Patent Collateral ):
(a) all United States and foreign patents and certificates of invention, or industrial property designs, and applications for any of the foregoing, including, without limitation, each patent and patent application listed on Schedule A attached hereto;
(b) all reissues, divisions, continuations, continuations-in-part and extensions thereof;
(c) all patentable inventions described and claimed therein;
(d) the right to sue or otherwise recover for any past, present and future infringement or other violation thereof;
(e) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect thereto; and
(f) all other rights corresponding thereto throughout the world.
EXHIBIT C-1
SECTION 2.2 Certain Limited Exclusions. Notwithstanding anything to the contrary, in no event shall the Patent Collateral include or the security interest granted under Section 2.1 hereof attach to any Excluded Assets.
SECTION 3. Security Agreement
The security interest granted pursuant to this Agreement is granted in conjunction with the security interest granted to the Collateral Agent for the Term Loan/Notes Secured Parties pursuant to the Pledge and Security Agreement, and the Grantors hereby acknowledge and affirm that the rights and remedies of the Collateral Agent with respect to the security interest in the Patent Collateral made and granted hereby are more fully set forth in the Pledge and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Agreement is deemed to conflict with the Pledge and Security Agreement, the provisions of the Pledge and Security Agreement shall control.
SECTION 4. Termination
Upon the payment in full of all Term Loan/Notes Secured Obligations (other than unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations) and the cancellation or termination of the Commitments and commitments under any Future Term Loan/Notes Agreement, the security interest granted hereby shall automatically terminate hereunder and of record and all rights to the Patent Collateral shall revert to the Grantors. Upon any such termination the Collateral Agent shall, at the Grantors expense, execute and deliver to the Grantors or otherwise authorize the filing of such documents as the Grantors shall reasonably request, including financing statement amendments and/or releases and/or reassignments of the Patent Collateral in the form appropriate for recording in the U.S. Patent and Trademark Office or other applicable Intellectual Property registry where the Collateral Agents security interest may have been recorded, to evidence such termination.
SECTION 5. Governing Law
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK (OTHER THAN ANY MANDATORY PROVISIONS OF THE UCC RELATING TO THE LAW GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OF THE SECURITY INTEREST).
SECTION 6. Intercreditor Agreement
Notwithstanding anything herein to the contrary, the liens and security interests granted to the Collateral Agent pursuant to this Agreement in respect of the Patent Collateral and the exercise of any right or remedy by the Collateral Agent hereunder in respect of the Patent Collateral, in each case, with respect to such Patent Collateral are subject to the limitations and provisions of the ABL Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2) and the terms and conditions of the ABL Intercreditor Agreement, the terms and conditions of the ABL Intercreditor Agreement shall control. In addition, notwithstanding anything
EXHIBIT C-2
herein to the contrary, the liens and security interests granted to the Collateral Agent pursuant to this Agreement in respect of the Patent Collateral and the exercise of any right or remedy by the Collateral Agent hereunder in respect of the Patent Collateral, in each case, with respect to such Patent Collateral are subject to the limitations and provisions of the Pari Passu Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2) and the terms and conditions of the Pari Passu Intercreditor Agreement, the terms and conditions of the Pari Passu Intercreditor Agreement shall control.
SECTION 7. Counterparts
This Agreement may be executed in one or more counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed signature page to this Agreement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
SECTION 8. Concerning the Collateral Agent
Wilmington Trust, National Association is entering into this Agreement solely in its capacity as Collateral Agent pursuant to the Pari Passu Intercreditor Agreement, and shall be entitled to all of the rights, privileges and immunities provided to the Collateral Agent thereunder in acting as Collateral Agent pursuant hereto.
[Remainder of page intentionally left blank ]
EXHIBIT C-3
IN WITNESS WHEREOF , each Grantor has caused this Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.
[NAME OF GRANTOR] , | ||
By: | ||
Name: Title: |
STATE OF | ) | |||
) | ss. | |||
COUNTY OF | ) |
On this day of , before me personally appeared , proved to me on the basis of satisfactory evidence to be the person who executed the foregoing instrument on behalf of , who being by me duly sworn did depose and say that he/she is an authorized officer of said corporation, that the said instrument was signed on behalf of said corporation as authorized by its Board of Directors and that he/she acknowledged said instrument to be the free act and deed of said corporation.
Notary Public | ||
[NAME OF GRANTOR] , | ||
By: | ||
Name: Title: |
STATE OF | ) | |||
) | ss. | |||
COUNTY OF | ) |
On this day of , before me personally appeared , proved to me on the basis of satisfactory evidence to be the person who executed the foregoing instrument on behalf of , who being by me duly sworn did depose and say that he/she is an authorized officer of said corporation, that the said instrument was signed on behalf of said corporation as authorized by its Board of Directors and that he/she acknowledged said instrument to be the free act and deed of said corporation.
[ADD SIGNATURE BLOCKS AND NOTARY BLOCKS FOR ANY OTHER GRANTORS]
EXHIBIT C-4
Accepted and Agreed: | ||
WILMINGTON TRUST, NATIONAL ASSOCIATION , as Collateral Agent |
By: |
|
|||
Name: Title: |
EXHIBIT C-5
SCHEDULE A
to
PATENT SECURITY AGREEMENT
PATENTS AND PATENT APPLICATIONS
Title |
Application No. |
Filing Date |
Patent No. |
Issue Date |
EXHIBIT C-6
EXHIBIT D
TO PLEDGE AND SECURITY AGREEMENT
FORM OF AMENDED AND RESTATED COPYRIGHT SECURITY AGREEMENT
This AMENDED AND RESTATED COPYRIGHT SECURITY AGREEMENT , dated as of [ ], 20[ ] (as it may be amended, restated, supplemented or otherwise modified from time to time, this Agreement ), is made by the entities identified as grantors on the signature pages hereto (collectively, the Grantors ) in favor of Wilmington Trust, National Association, as collateral agent for the Term Loan/Notes Secured Parties (in such capacity, together with its successors and permitted assigns, the Collateral Agent ).
WHEREAS , the Grantors are party to an Amended and Restated Pledge and Security Agreement dated as of June 23, 2016 (as it may be amended, restated, supplemented or otherwise modified from time to time, the Pledge and Security Agreement ) between each of the Grantors and the other grantors party thereto and the Collateral Agent pursuant to which the Grantors granted a security interest to the Collateral Agent in the Copyright Collateral (as defined below) and are required to execute and deliver this Agreement.
NOW, THEREFORE , in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Grantors hereby agree with the Collateral Agent as follows:
SECTION 1. Defined Terms
Unless otherwise defined herein, terms defined in the Pledge and Security Agreement and used herein have the meaning given to them in the Pledge and Security Agreement.
SECTION 2. Grant of Security Interest in Copyright Collateral
SECTION 2.1 Grant of Security Interest. Each Grantor hereby grants to the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, a security interest in and continuing lien on all of such Grantors right, title and interest in, to and under the following, in each case whether now or hereafter existing or in which such Grantor now has or hereafter acquires an interest and wherever the same may be located (collectively, the Copyright Collateral ):
(a) all United States and foreign copyrights and all Mask Works (as defined under 17 U.S.C. 901 of the U.S. Copyright Act), whether registered or unregistered;
(b) all registrations and applications therefor including, without limitation, the registrations and applications listed on Schedule A attached hereto;
(c) all extensions and renewals thereof;
(d) the right to sue or otherwise recover for any past, present and future infringement or other violation of any of the foregoing;
(e) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages and proceeds of suit now or hereafter due and/or payable with respect thereto;
EXHIBIT D-1
(f) all other rights corresponding thereto throughout the world; and
(g) all exclusive Copyright Licenses in respect of registered U.S. copyrights for which such Grantor is the licensee and which are included in the Material Intellectual Property.
SECTION 2.2 Certain Limited Exclusions. Notwithstanding anything to the contrary, in no event shall the Copyright Collateral include or the security interest granted under Section 2.1 hereof attach to any Excluded Asset.
SECTION 3. Security Agreement
The security interest granted pursuant to this Agreement is granted in conjunction with the security interest granted to the Collateral Agent for the Term Loan/Notes Secured Parties pursuant to the Pledge and Security Agreement, and the Grantors hereby acknowledge and affirm that the rights and remedies of the Collateral Agent with respect to the security interest in the Copyright Collateral made and granted hereby are more fully set forth in the Pledge and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Agreement is deemed to conflict with the Pledge and Security Agreement, the provisions of the Pledge and Security Agreement shall control.
SECTION 4. Termination
Upon the payment in full of all Term Loan/Notes Secured Obligations (other than unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations) and the cancellation or termination of the Commitments and commitments under any Future Term Loan/Notes Agreement, the security interest granted hereby shall automatically terminate hereunder and of record and all rights to the Copyright Collateral shall revert to the Grantors. Upon any such termination the Collateral Agent shall, at the Grantors expense, execute and deliver to the Grantors or otherwise authorize the filing of such documents as the Grantors shall reasonably request, including financing statement amendments and/or releases and/or reassignments of Copyright Collateral in the form appropriate for recording in the U.S. Copyright Office or other applicable Intellectual Property registry where the Collateral Agents security interest may have been recorded, to evidence such termination.
SECTION 5. Governing Law
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK (OTHER THAN ANY MANDATORY PROVISIONS OF THE UCC RELATING TO THE LAW GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OF THE SECURITY INTEREST).
SECTION 6. Intercreditor Agreement
Notwithstanding anything herein to the contrary, the liens and security interests granted to the Collateral Agent pursuant to this Agreement in respect of the Copyright Collateral and the exercise of any right or remedy by the Collateral Agent hereunder in respect of the Copyright Collateral, in each case, with respect to such Copyright Collateral are subject to the limitations and provisions of the ABL
EXHIBIT D-2
Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2) and the terms and conditions of the ABL Intercreditor Agreement, the terms and conditions of the ABL Intercreditor Agreement shall control. In addition, notwithstanding anything herein to the contrary, the liens and security interests granted to the Collateral Agent pursuant to this Agreement in respect of the Copyright Collateral and the exercise of any right or remedy by the Collateral Agent hereunder in respect of the Copyright Collateral, in each case, with respect to such Copyright Collateral are subject to the limitations and provisions of the Pari Passu Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2) and the terms and conditions of the Pari Passu Intercreditor Agreement, the terms and conditions of the Pari Passu Intercreditor Agreement shall control.
SECTION 7. Counterparts
This Agreement may be executed in one or more counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed signature page to this Agreement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
SECTION 8. Concerning the Collateral Agent
Wilmington Trust, National Association is entering into this Agreement solely in its capacity as Collateral Agent pursuant to the Pari Passu Intercreditor Agreement, and shall be entitled to all of the rights, privileges and immunities provided to the Collateral Agent thereunder in acting as Collateral Agent pursuant hereto.
[Remainder of page intentionally left blank ]
EXHIBIT D-3
IN WITNESS WHEREOF , each Grantor has caused this Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.
[NAME OF GRANTOR] , | ||
By: |
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Name: | ||
Title: |
STATE OF ) | ||||
) ss. | ||||
COUNTY OF ) |
On this day of , before me personally appeared , proved to me on the basis of satisfactory evidence to be the person who executed the foregoing instrument on behalf of , who being by me duly sworn did depose and say that he/she is an authorized officer of said corporation, that the said instrument was signed on behalf of said corporation as authorized by its Board of Directors and that he/she acknowledged said instrument to be the free act and deed of said corporation.
Notary Public | ||
[NAME OF GRANTOR] , | ||
By: |
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Name: | ||
Title: |
STATE OF ) | ||||
) ss. | ||||
COUNTY OF ) |
On this day of , before me personally appeared , proved to me on the basis of satisfactory evidence to be the person who executed the foregoing instrument on behalf of , who being by me duly sworn did depose and say that he/she is an authorized officer of said corporation, that the said instrument was signed on behalf of said corporation as authorized by its Board of Directors and that he/she acknowledged said instrument to be the free act and deed of said corporation.
[ADD SIGNATURE BLOCKS AND NOTARY BLOCKS FOR ANY OTHER GRANTORS]
EXHIBIT D-4
Accepted and Agreed: | ||
WILMINGTON TRUST, NATIONAL ASSOCIATION , as Collateral Agent |
By: |
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Name: | ||||
Title: |
EXHIBIT D-5
SCHEDULE A
to
COPYRIGHT SECURITY AGREEMENT
COPYRIGHT REGISTRATIONS AND APPLICATIONS
Title |
Application No. |
Filing Date |
Registration No. |
Registration Date |
EXCLUSIVE COPYRIGHT LICENSES
Description of Copyright License |
Name of Licensor |
Registration Number of
|
EXHIBIT D-6
EXHIBIT I TO
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
MODIFIED DUTCH AUCTION PROCEDURES
This Outline is intended to summarize certain basic terms of the modified Dutch auction procedures pursuant to and in accordance with the terms and conditions of Sections 10.6(i) of that certain Amended and Restated Credit and Guaranty Agreement, dated as of June 23, 2016 (the Credit Agreement ) by and among J. C. Penney Corporation, Inc., a Delaware corporation (the Borrower ), J. C. Penney Company, Inc., a Delaware corporation ( Holdings ), certain subsidiaries of Borrower, as Guarantors (collectively with Borrower and Holdings, the Credit Parties ), the Lenders party thereto from time to time, and JPMorgan Chase Bank, N.A., as Administrative Agent, and the other financial institutions party thereto, of which this Exhibit I is a part (the Auction Procedures ). It is not intended to be a definitive statement of all of the terms and conditions of a modified Dutch auction, the definitive terms and conditions for which shall be set forth in the applicable auction procedures set for each Auction (the Offer Documents ). None of the Administrative Agent, the Auction Manager and any other Agent, or any of their respective Affiliates, makes any recommendation pursuant to the Offer Documents as to whether or not any Lender should sell its Loans to Borrower (the Purchaser ) pursuant to the Offer Documents, nor shall the decision by the Administrative Agent, the Auction Manager or any other Agent (or any of their Affiliates) in its capacity as a Lender be deemed to constitute such a recommendation. Each Lender should make its own decision on whether to sell any of its Loans and, if it decides to do so, the principal amount of and price to be sought for such Loans. In addition, each Lender should consult its own attorney, business advisor or tax advisor as to legal, business, tax and related matters concerning this Auction and the Offer Documents. Capitalized terms not otherwise defined in this Exhibit have the meanings assigned to them in the Credit Agreement.
Summary. The Purchaser may conduct one or more modified Dutch auctions in order to purchase Loans (each, an Auction ) pursuant to the procedures described herein.
Notice Procedures. In connection with each Auction, the Purchaser will provide notification to the Auction Manager (for distribution to the Lenders) of the Loans substantially in the form of Annex A to this Exhibit I that will be the subject of the Auction (an Auction Notice ). Each Auction Notice shall contain (i) the maximum principal amount of Loans that the Purchaser is willing to purchase in the Auction (the Auction Amount ); (ii) the range of discounts to par (the Discount Range ), expressed as a range of prices per $1,000 (in increments of $5), at which the Purchaser would be willing to purchase Loans in the Auction; and (iii) the date on which the Auction will conclude, on which date Return Bids (as defined below) will be due by 1:00 p.m. New York time, as such date and time may be extended (such time, the Expiration Time ) for a period not exceeding three Business Days upon notice by the Purchaser to the Auction Manager received not less than 24 hours before the original Expiration Time; provided , however , that only one extension per offer shall be permitted. An Auction shall be regarded as a Failed Auction in the event that either (x) Purchaser withdraws such Auction in accordance with the terms hereof or (y) the Expiration Time occurs with no Qualifying Bids having been received. In the event of a Failed Auction, Purchaser shall not be permitted to deliver a new Auction Notice prior to the date occurring three (3) Business Days after such withdrawal or Expiration Time, as the case may be.
EXHIBIT I-1
Reply Procedures . In connection with any Auction, each Lender holding Loans wishing to participate in such Auction shall, prior to the Expiration Time, provide the Auction Manager with a notice of participation substantially in the form of Annex B to this Exhibit I (the Return Bid ) which shall specify (i) a discount to par expressed as a price per $1,000 (in increments of $5) of Loans (the Reply Price ) within the Discount Range and (ii) the principal amount of Loans, in an amount not less than $1,000,000 or an integral multiple in excess thereof, that such Lender is willing to offer for sale at its Reply Price (the Reply Amount ); provided , that Lender may submit a Reply Amount that is less than the minimum amount and/or incremental amount requirements described above only if the Reply Amount comprises the entire amount of Loans held by such Lender. Lenders may only submit one Return Bid per Auction but each Return Bid may contain up to three component bids, each of which may result in a separate Qualifying Bid (as defined below) and each of which will not be contingent on any other component bid submitted by such Lender resulting in a Qualifying Bid. In addition to the Return Bid, the participating Lender must execute and deliver, to be held by the Auction Manager, a Borrower Assignment Agreement. The Purchaser will not purchase any Loans at a price that is outside of the applicable Discount Range, nor will any Return Bids (including any component bids specified therein) submitted at a price that is outside such applicable Discount Range be considered in any calculation of the Applicable Threshold Price (as defined below).
Acceptance Procedures. Based on the Reply Prices and Reply Amounts received by the Auction Manager, the Auction Manager, in consultation with the Purchaser, will calculate the lowest purchase price (the Applicable Threshold Price ) for the Auction within the Discount Range for the Auction that will allow the Purchaser to complete the Auction by purchasing the full Auction Amount (or such lesser amount of Loans for which the Purchaser has received Qualifying Bids (as defined below)). The Purchaser shall purchase Loans from each Lender whose Return Bid is within the Discount Range and contains a Reply Price that is equal to or less than the Applicable Threshold Price (each, a Qualifying Bid ). All Loans included in Qualifying Bids (including multiple component Qualifying Bids contained in a single Return Bid) received at a Reply Price lower than the Applicable Threshold Price will be purchased at the applicable Reply Price and shall not be subject to proration.
Proration Procedures. All Loans offered in Return Bids (or, if applicable, any component bid thereof) constituting Qualifying Bids at the Applicable Threshold Price will be purchased at the Applicable Threshold Price; provided that if the aggregate principal amount of all Loans for which Qualifying Bids have been submitted in any given Auction at the Applicable Threshold Price would exceed the remaining portion of the Auction Amount (after deducting all Loans to be purchased below the Applicable Threshold Price), the Purchaser shall purchase the Loans for which the Qualifying Bids submitted were at the Applicable Threshold Price ratably based on the respective principal amounts offered and in an aggregate amount equal to the amount necessary to complete the purchase of the Auction Amount. No Return Bids (or any component thereof) will be accepted above the Applicable Threshold Price.
EXHIBIT I-2
Notification Procedures. Auction Manager will calculate the Applicable Threshold Price and post the Applicable Threshold Price and proration factor onto an internet site (including an IntraLinks, SyndTrak or other electronic workspace) in accordance with the Auction Managers standard dissemination practices by 4:00 p.m. New York time on the same Business Day as the date the Return Bids were due. The Auction Manager will insert the principal amount of Loans to be assigned and the applicable settlement date into each applicable Borrower Assignment Agreement received in connection with a Qualifying Bid. Upon request of the submitting Lender, the Auction Manager will promptly return any Borrower Assignment Agreement received in connection with a Return Bid that is not a Qualifying Bid (as defined below).
Additional Procedures. Once initiated by an Auction Notice, the Purchaser may withdraw an Auction only in the event that, as of such time, no Qualifying Bid has been received by the Auction Manager. Furthermore, in connection with any Auction, upon submission by a Lender of a Return Bid, such Lender will not have any withdrawal rights. Any Return Bid (including any component bid thereof) delivered to the Auction Manager may not be modified, revoked, terminated or cancelled by a Lender. However, an Auction may become void if the conditions to the purchase of Loans by the Purchaser required by the terms and conditions of Section 10.6(i)(i) of the Credit Agreement are not met. The purchase price for each purchase of Loans shall be paid by the Purchaser directly to the respective assigning Lender on a settlement date as determined by the Auction Manager in consultation with the Purchaser (which shall be no later than ten (10) Business Days after the date Return Bids are due). The Purchaser shall execute each applicable Borrower Assignment Agreement received in connection with a Qualifying Bid.
All questions as to the form of documents and validity and eligibility of Loans that are the subject of an Auction will be determined by the Auction Manager, in consultation with the Purchaser, which determination will be final and binding. The Auction Managers interpretation of the terms and conditions of the Offer Document, in consultation with the Purchaser, will be final and binding.
None of the Administrative Agent, the Auction Manager, any other Agent or any of their respective Affiliates assumes any responsibility for the accuracy or completeness of the information concerning the Purchaser, the Credit Parties, or any of their Affiliates (whether contained in the Offer Documents or otherwise) or for any failure to disclose events that may have occurred and may affect the significance or accuracy of such information.
This Exhibit I shall not require the Purchaser to initiate any Auction.
EXHIBIT I-3
ANNEX A
AUCTION NOTICE
[ Borrower Letterhead ]
JPMorgan Chase Bank, N.A., as Auction Manager
500 Stanton Christiana Road
Ops Building 2, 3 rd Floor
Newark, DE 19713-2107
Phone No.: (302) 634-1678
Email: Deal.Management.Team@jpmchase.com
Re: Loan Auction
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit and Guaranty Agreement, dated as of June 23, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement ), by and among J. C. PENNEY CORPORATION, INC. , a Delaware corporation ( Borrower ), J. C. PENNEY COMPANY, INC. , a Delaware corporation, certain Subsidiaries of Borrower, as guarantors, the lenders party thereto from time to time (the Lenders ), JPMORGAN CHASE BANK, N.A. ( JPMorgan ), as Administrative Agent, and the other financial institutions party thereto. Capitalized terms used but not defined herein have the meanings given to such terms in the Credit Agreement.
J. C. Penney Corporation, Inc. (the Purchaser ) hereby gives notice to the Lenders that it desires to conduct the following Auction:
| Auction Amount: $ [ ] in principal amount of Loans 1 |
| Discount Range: Not less than $ [ ] nor greater than $ [ ] per $1,000 principal amount of Loans. |
The Purchaser acknowledges that this Auction Notice may not be withdrawn other than in accordance with the Auction Procedures. The Auction shall be consummated in accordance with the Auction Procedures with all Return Bids due no later than [ 1:00 ] p.m. (New York time) on [ ] , 20[ ].
The Purchaser hereby represents and warrants that (i) it is not in possession of any information regarding Borrower or its Subsidiaries, or their assets, Borrowers ability to perform its Obligations or any other matter that may be material to a decision by any Lender to participate in any Auction or enter into any Borrower Assignment Agreement or any of the transactions contemplated thereby that has not previously been disclosed to the Auction Manager, Administrative Agent and the Non-Public Lenders, and (ii) no Event of Default has occurred and is continuing or would result from such repurchase.
Very truly yours, | ||
J. C. PENNEY CORPORATION, INC. |
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By: |
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Name: |
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Title: |
1 | Modify, as appropriate, to: $[ ] maximum cash value to be paid for all tendered Loans |
EXHIBIT I-A-1
ANNEX B
RETURN BID
JPMorgan Chase Bank, N.A., as Auction Manager
500 Stanton Christiana Road
Ops Building 2, 3 rd Floor
Newark, DE 19713-2107
Phone No.: (302) 634-1678
Email: Deal.Management.Team@jpmchase.com
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit and Guaranty Agreement, dated as of June 23, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement ), by and among J. C. PENNEY CORPORATION, INC. , a Delaware corporation ( Borrower ), J. C. PENNEY COMPANY, INC. , a Delaware corporation, certain Subsidiaries of Borrower, as guarantors, the lenders party thereto from time to time (the Lenders ), JPMORGAN CHASE BANK, N.A. ( JPMorgan ), as Administrative Agent, and the other financial institutions party thereto. Capitalized terms used but not defined herein have the meanings given to such terms in the Credit Agreement.
The undersigned Lender hereby gives notice of its participation in the Auction by submitting the following Return Bid 1 :
Reply Price (price per $1,000) |
Reply Amount
(principal amount of Loans) |
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US$ |
US$ | |||
US$ |
US$ | |||
US$ |
US$ |
The undersigned Lender acknowledges that the submission of this Return Bid along with an executed Borrower Assignment Agreement, to be held in escrow by the Auction Manager, obligates the Lender to sell the entirety or its pro rata portion of the Reply Amount in accordance with the Auction Procedures, as applicable.
Very truly yours, | ||
[Name of Lender] | ||
By: | ||
Name: |
||
Title: |
1 | Lender may submit up to [ three ] component bids but need not submit more than one. The sum of Lenders bid(s) may not exceed the aggregate principal face amount of Loans held by it as lender of record on the date of submission of its Return Bid. |
EXHIBIT I-B-1
ANNEX C
BORROWER ASSIGNMENT AND ASSUMPTION AGREEMENT
This Borrower Assignment and Assumption Agreement (this Assignment ) is dated as of the Borrower Assignment Effective Date set forth below and is entered into by and between [ Insert name of Assignor ] (the Assignor ) and J. C. PENNEY CORPORATION, INC. (the Assignee ). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as it may be amended, restated, supplemented or otherwise modified from time to time, the Credit Agreement ), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto (the Standard Terms and Conditions ) are hereby agreed to and incorporated herein by reference and made a part of this Assignment as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Borrower Assignment Effective Date [ in the case of an Auction : inserted by the Auction Manager as contemplated in the Auction Procedures ] , (i) all of the Assignors rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of the Assignors outstanding rights and obligations thereunder, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as the Assigned Interest ). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and the Credit Agreement, without representation or warranty by the Assignor.
1. |
Assignor: | |||
2. |
Assignee: | J. C. PENNEY CORPORATION, INC., a Delaware corporation | ||
3. |
Borrower: | J. C. PENNEY CORPORATION, INC., a Delaware corporation | ||
4. |
Administrative Agent: | JPMORGAN CHASE BANK, N.A., as the administrative agent under the Credit Agreement | ||
5. |
Credit Agreement: | The Amended and Restated Credit and Guaranty Agreement dated as of June 23, 2016, among Borrower, J. C. PENNEY COMPANY, INC., a Delaware corporation, certain Subsidiaries of Borrower, as Guarantors, the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. (JPMorgan), as Administrative Agent, and the other financial institutions party thereto |
EXHIBIT I-C-1
6. | Assignors Interest under the Credit Agreement: |
Aggregate Principal Face Amount of
|
Percentage of Loans
of Assignor 1 |
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$ |
% |
7. | Assigned Interest: |
List below the Loans to be assigned by Assignor to Assignee [ in the case of an Auction: , which shall be subject to the terms and conditions of the Auction, including, without limitation, the pro rata reduction procedures set forth in the Auction Procedures ] .
[ in the case of an Auction:
Reply Price with respect to
principal amount) 2 |
Reply Amount
(principal face amount of Loans to be Assigned to Assignee at relevant Reply Price) (subject to pro rata reduction) 3 |
Pro Rated Principal
Face Amount of Loans Assigned 4 |
Percentage Assigned
of Loans 5 |
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$ |
$ | $ | % | |||||||||
$ |
$ | $ | % | |||||||||
$ |
$ | $ | % |
1 | Set forth, to at least 9 decimals, as a percentage of the Loans of all Lenders thereunder. To be completed by Assignor. |
2 | To be completed by Assignor. |
3 | To be completed by Assignor. [ In the case of an Auction: The sum of Lenders Reply Amount(s) may not exceed the aggregate principal face amount of Loans held by it as lender of record on the date of submission of its Return Bid. ] |
4 | [ In the case of an Auction: To be completed by the Auction Manager, if necessary, based on the proration procedures set forth in the Auction Procedures. ] |
5 | [ In the case of an Auction: To be completed by the Auction Manager to at least 9 decimals as a percentage of the Loans of all Lenders thereunder. ] |
EXHIBIT I-C-2
[ in the case of an open market purchase:
Aggregate Amount of Commitment/Loans for all Lenders |
Amount of Commitment /
Loans Assigned |
Percentage Assigned of
Commitment/Loans 6 |
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$ |
$ | % | ||||||
$ |
$ | % | ||||||
$ |
$ | % |
8. | Borrower Assignment Effective Date: , 20 [ in the case of an Auction: TO BE INSERTED BY AUCTION MANAGER AND WHICH SHALL BE THE BORROWER ASSIGNMENT EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR. ] |
6 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. |
EXHIBIT I-C-3
9. | Notice and Wire Instructions: |
ASSIGNOR: | ASSIGNEE: | |||
[NAME OF ASSIGNOR] | J. C. PENNEY CORPORATION, INC. |
Notices: | Notices: | |||||||
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Attention: |
Attention: | |||||||
Telecopier: |
Telecopier: |
with a copy to: | with a copy to: | |||||||
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Attention: |
Attention: | |||||||
Telecopier: |
Telecopier: |
Wire Instructions: |
[ In the case of an assignment via Dutch Auction only: The Assignor acknowledges and agrees that (i) submission of a Return Bid in respect of the Loans will constitute a binding agreement between the Assignor and the Assignee in accordance with the terms and conditions of the Auction Procedures and the Credit Agreement; (ii) Loans will be deemed to have been accepted by the Assignee to the extent such Loans are validly offered by Assignor to Assignee in accordance with the terms and conditions of the Auction Procedures and the Credit Agreement upon notification by the Auction Manager to the Assignor that such Loans are part of a Qualifying Bid (subject to applicable proration in accordance with the terms and conditions of the Auction); and (iii) it does not have any withdrawal rights with respect to any offer to assign of its Loans.
Subject to and effective upon the acceptance by the Assignee for purchase of the principal amount of the Loans to be assigned by the Assignor to the Assignee, the Assignor hereby irrevocably constitutes and appoints the Auction Manager as the true and lawful agent and attorney-in-fact of the Assignor with respect to such Loans, with full powers of substitution and revocation (such power of attorney being deemed to be an irrevocable power coupled with an interest) to complete or fill-in the blanks in this Assignment and deliver the completed Assignment to the Assignee and the Assignor.
The Assignor acknowledges and agrees that its offer to assign Loans pursuant to the Auction Procedures constitute the Assignors acceptance of the terms and conditions (including the proration procedures) contained in the Auction Procedures, the Credit Agreement and this Assignment.]
[Signature page follows]
EXHIBIT I-C-4
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR | ||
[NAME OF ASSIGNOR] | ||
By: |
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Name: | ||
Title: | ||
ASSIGNEE | ||
J. C. PENNEY CORPORATION, INC. | ||
By: |
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Name: | ||
Title: |
Accepted: | ||
JPMORGAN CHASE BANK, N.A., as Administrative Agent and Auction Manager |
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By: |
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Authorized Signatory |
EXHIBIT I-C-5
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
BORROWER ASSIGNMENT AND ACCEPTANCE
1. | Representations and Warranties . |
1.1 | Assignor . The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is, and on the applicable Borrower Assignment Effective Date will be, free and clear of any lien, encumbrance or other adverse claim; (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby; (iv) it has received a copy of the Credit Agreement and such other documents and information as it has deemed appropriate to make its own decision to enter into this Assignment and to sell and assign the Assigned Interest on the basis of which it has made such decision; and (iv) it is not a Defaulting Lender, (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with any Credit Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other instrument or document delivered pursuant thereto, other than this Assignment (herein collectively the Credit Documents ), or any collateral thereunder, (iii) the financial condition of Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Credit Document or (iv) the performance or observance by Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Credit Document, and (c) agrees that [ in the case of an Auction: it has read and agrees to all of the terms and conditions (including the pro ration procedures) of the Auction Procedures set forth in the Offer Documents ] [ in the case of an open market purchase, and if the bracketed language for Section 1.2(a)(viii) below is not inserted: (i) the Assignee may have, and later may come into possession of, information regarding the Loans or the Credit Parties that is not known to the Assignor and that may be material to a decision by the Assignor to enter into an assignment of the Assigned Interest (such information, the Excluded Information ), (ii) the Assignor has independently and without reliance on the Assignee or any of its Subsidiaries or Affiliates made its own analysis and determined to enter into an assignment of the Assigned Interest and to consummate the transactions contemplated by this Assignment notwithstanding the Assignors lack of knowledge of the Excluded Information, (iii) Holdings and its Subsidiaries shall have no liability to the Assignor, and the Assignor hereby waives and releases, to the extent permitted by law, any claims the Assignor may have against Holdings and its Subsidiaries, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information, (iv) the Excluded Information may not be available to Administrative Agent or the other Lenders and (v) the Assignor agrees to the provisions set forth in this clause (c), and agrees that such provisions shall control, notwithstanding any inconsistent provision in the Credit Agreement or in any Borrower Assignment Agreement]. The Assignor will, upon request, execute and deliver any additional documents deemed by Administrative Agent or the Assignee to be necessary or desirable to complete the sale, assignment and transfer of the Assigned Interest. In the event that the Assignor has determined for itself to not access any information disclosed by Assignee in connection with the Auction or this Assignment, the Assignor acknowledges that (i) other Lenders may have availed themselves of such information and (ii) none of Borrower, [the Auction Manager,] and Administrative Agent has any responsibility for the Assignors decision to limit the scope of the information it has obtained in connection with its evaluation of the Auction or its decision to enter into this Assignment. |
EXHIBIT I-C-6
1.2 | Assignee . The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement until such time as the Loans are automatically cancelled without further action by any Person on the Borrower Assignment Effective Date, (ii) it has transmitted same day funds to the Assignor on the Borrower Assignment Effective Date, and (iii) [ in the case of an Auction: it is not in possession of any information regarding Borrower or its Subsidiaries, or their assets, Borrowers ability to perform its Obligations or any other matter that may be material to a decision by any Lender (including the Assignor) to participate in any Auction, if applicable, or enter into this Assignment or any of the transactions contemplated hereby that has not previously been disclosed to the Auction Manager, Administrative Agent and the Non-Public Lenders] [ in the case of an open market purchase, and if the bracketed language for Section 1.1(c) above with respect to an open market purchase is not inserted: it is not in possession of any information regarding the Assignee, its Subsidiaries or its Affiliates, or their assets, the Assignees ability to perform its Obligations or any other matter that may be material to a decision by any Lender (including the Assignor) to enter into this Assignment or any of the transactions contemplated hereby that has not previously been disclosed to the Assignor]; and (b) agrees that the Assigned Interest shall, from and after the Borrower Assignment Effective Date, and without further action by any Person, be deemed cancelled for all purposes and no longer outstanding and that the Assignee shall have no ability to vote or receive payments in respect of the Assigned Interest . |
1.3 | No Violation of Laws . Each of the Assignor and Assignee acknowledges that it has not violated any applicable laws relating to this Assignment or the transactions contemplated herein. |
2. | Payments . Payment to the Assignor by the Assignee in respect of the settlement of the assignment of the Assigned Interest shall be paid by Assignee directly to the Assignor and shall include all unpaid interest that has accrued in respect of the Assigned Interest through the Borrower Assignment Effective Date. No interest shall accrue with respect to the Assigned Interest from and after the Borrower Assignment Effective Date and such Assigned Interest shall, from and after the Borrower Assignment Effective Date, and without further action by any Person, be deemed cancelled for all purposes and no longer outstanding. |
3. | No Event of Default . On the Borrower Assignment Effective Date, no Event of Default has occurred and is continuing or would result from this Assignment. |
4. | General Provisions . This Assignment shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment is a Credit Document under and as defined in the Credit Agreement. This Assignment may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment. This Assignment shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to conflict of laws principles thereof that would require the application of laws other than those of the State of New York. |
EXHIBIT I-C-7
EXHIBIT J TO
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
PARI PASSU INTERCREDITOR AGREEMENT
[Attached.]
EXHIBIT J-1
EXECUTION VERSION
PARI PASSU INTERCREDITOR AGREEMENT
dated as of
June 23, 2016
among
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Collateral Agent,
JPMORGAN CHASE BANK, N.A.,
as Term Loan Authorized Representative for the Term Loan Secured Parties,
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Notes Authorized Representative for the Notes Secured Parties
and
each additional Authorized Representative from time to time party hereto
Notwithstanding anything herein to the contrary, any liens and security interests granted to the Collateral Agent pursuant to this Pari Passu Intercreditor Agreement and the exercise of any right or remedy by the Collateral Agent hereunder are subject to the limitations and provisions of the Intercreditor and Collateral Cooperation Agreement, dated as of June 23, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the ABL Intercreditor Agreement ), among Wells Fargo Bank, National Association, as representative for the First Priority Secured Parties (as defined therein), Wilmington Trust, National Association, as representative for the Term Loan/Notes Secured Parties, and certain other persons party or that may become party thereto from time to time, and consented to by J. C. Penney Corporation and the grantors identified therein. In the event of any conflict between the terms of the ABL Intercreditor Agreement and the terms of this Pari Passu Intercreditor Agreement, the terms of the ABL Intercreditor Agreement shall govern and control. This paragraph forms part of the Pari Passu Intercreditor Agreement.
PARI PASSU INTERCREDITOR AGREEMENT (as amended or supplemented from time to time, this Agreement ) dated as of June 23, 2016, among WILMINGTON TRUST, NATIONAL ASSOCIATION, as collateral agent for the Term Loan/Notes Secured Parties (as defined below) (in such capacity and together with its successors in such capacity, the Collateral Agent ), JPMORGAN CHASE BANK, N.A., as Authorized Representative for the Term Loan Secured Parties (in such capacity, the Term Loan Authorized Representative ), WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee under the Indenture, as Authorized Representative for the Notes Secured Parties (in such capacity, the Notes Authorized Representative ), and each additional Authorized Representative from time to time party hereto for the Future Term Loan/Notes Secured Parties of the Series with respect to which it is acting in such capacity.
In consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Collateral Agent, the Term Loan Authorized Representative (for itself and on behalf of the Term Loan Secured Parties), the Notes Authorized Representative (for itself and on behalf of the Notes Secured Parties) and each additional Authorized Representative (for itself and on behalf of the Future Term Loan/Notes Secured Parties of the applicable Series) agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Construction; Certain Defined Terms.
(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words include, includes and including shall be deemed to be followed by the phrase without limitation. The word will shall be construed to have the same meaning and effect as the word shall. Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument, other document, statute or regulation herein shall be construed as referring to such agreement, instrument, other document, statute or regulation as from time to time amended, supplemented or otherwise modified, (ii) any reference herein to any Person shall be construed to include such Persons successors and assigns, but shall not be deemed to include the subsidiaries of such Person unless express reference is made to such subsidiaries, (iii) the words herein, hereof and hereunder, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (iv) all references herein to Articles, Sections and Annexes shall be construed to refer to Articles, Sections and Annexes of this Agreement, (v) unless otherwise expressly qualified herein, the words asset and property shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights and (vi) the term or is not exclusive.
(b) It is the intention of the Term Loan/Notes Secured Parties of each Series that the holders of Term Loan/Notes Secured Obligations of such Series (and not the Term Loan/Notes Secured Parties of any other Series) bear the risk of (i) any determination by a court of competent jurisdiction that (x) any of the Term Loan/Notes Secured Obligations of such Series are unenforceable under applicable law or are subordinated to any other obligations (other than another Series of Term Loan/Notes Secured Obligations), (y) any of the Term Loan/Notes Secured Obligations of such Series do not have an enforceable security interest in any of the Collateral securing any other Series of Term Loan/Notes Secured Obligations and/or (z) any intervening security interest exists securing any other obligations (other than another Series of Term Loan/Notes Secured Obligations) on a basis ranking prior to the security interest of such Series of Term Loan/Notes Secured Obligations but junior to the security interest of any other Series of Term Loan/Notes Secured Obligations or (ii) the existence of any Collateral for any other Series of Term Loan/Notes Secured Obligations that is not Shared Collateral (any such condition referred to in the foregoing clauses (i) or (ii) with respect to any Series of Term Loan/Notes Secured Obligations, an Impairment of such Series); provided , that the existence of a maximum claim with respect to real properties subject to a Mortgage which applies to all Series of Term Loan/Notes Secured Obligations shall not be deemed to be an Impairment of any Series of Term Loan/Notes Secured Obligations. In the event of any Impairment with respect to any Series of Term Loan/Notes Secured Obligations, the results of such Impairment shall be borne solely by the holders of such Series of Term Loan/Notes Secured Obligations, and the rights of the holders of such Series of Term Loan/Notes Secured Obligations (including, without limitation, the right to receive distributions in respect of such Series of Term Loan/Notes Secured Obligations pursuant to Section 2.01) set forth herein shall be modified to the extent necessary so that the effects of such Impairment are borne solely by the holders of the Series of such Term Loan/Notes Secured Obligations subject to such Impairment. Additionally, in the event the Term Loan/Notes Secured Obligations of any Series are modified pursuant to applicable law (including, without limitation, pursuant to Section 1129 of the Bankruptcy Code), any reference to such Term Loan/Notes Secured Obligations or the Term Loan/Notes Documents governing such Term Loan/Notes Secured Obligations shall refer to such obligations or such documents as so modified.
(c) As used in this Agreement, the following terms have the meanings specified below:
ABL Intercreditor Agreement has the meaning set forth on the cover page of this Agreement.
Affiliate has the meaning set forth in the Term Loan Agreement on the date hereof.
Agreement shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
Applicable Authorized Representative means, with respect to any Shared Collateral, (i) until the earlier of (x) the Discharge of Term Loan Obligations and (y) the Non-Applicable Authorized Representative Enforcement Date, the Term Loan Authorized Representative and (ii) from and after the earlier of (x) the Discharge of Term Loan Obligations and (y) the Non-Applicable Authorized Representative Enforcement Date, the Major Non-Applicable Authorized Representative.
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Authorized Representative means (i) in the case of any Term Loan Obligations or the Term Loan Secured Parties, the Term Loan Authorized Representative, (ii) in the case of the Notes Obligations or the Notes Secured Parties, the Notes Authorized Representative and (iii) in the case of any Series of Future Term Loan/Notes Secured Obligations or Future Term Loan/Notes Secured Parties that become subject to this Agreement after the date hereof, the Authorized Representative named for such Series in the applicable Joinder Agreement.
Bankruptcy Case shall have the meaning assigned to such term in Section 2.05(b).
Bankruptcy Code shall mean Title 11 of the United States Code, as amended.
Bankruptcy Law shall mean the Bankruptcy Code and any similar Federal, state or foreign law for the relief of debtors.
Collateral means all assets and properties subject to Liens created pursuant to any Term Loan/Notes Security Document to secure one or more Series of Term Loan/Notes Secured Obligations.
Collateral Agent shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
Company means J. C. Penney Corporation, a Delaware corporation.
Controlling Secured Parties means, with respect to any Shared Collateral, the Series of Term Loan/Notes Secured Parties whose Authorized Representative is the Applicable Authorized Representative for such Shared Collateral.
DIP Financing shall have the meaning assigned to such term in Section 2.05(b).
DIP Financing Liens shall have the meaning assigned to such term in Section 2.05(b).
DIP Lenders shall have the meaning assigned to such term in Section 2.05(b).
Discharge means, with respect to any Shared Collateral and any Series of Term Loan/Notes Secured Obligations, the date on which such Series of Term Loan/Notes Secured Obligations is no longer secured by such Shared Collateral. The term Discharged shall have a corresponding meaning.
Discharge of Term Loan Obligations means, with respect to any Shared Collateral, the Discharge of the Term Loan Obligations with respect to such Shared Collateral; provided that the Discharge of Term Loan Obligations shall be deemed not to have occurred in connection with a Refinancing of such Term Loan Obligations with additional Term Loan/Notes Secured Obligations secured by such Shared Collateral under a Future Term Loan/Notes Agreement which has been designated as the Term Loan Agreement in the Joinder Agreement with respect thereto and which Joinder Agreement has been executed by the Term Loan Authorized Representative (under the Term Loan Agreement so Refinanced).
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Event of Default shall mean an Event of Default under and as defined in the Term Loan Agreement, the Indenture or any other Future Term Loan/Notes Agreement.
Future Term Loan/Notes Agreement shall mean any indenture, credit agreement or other agreement pursuant to which any Grantor will incur Future Term Loan/Notes Indebtedness.
Future Term Loan/Notes Indebtedness means Indebtedness that has been designated as Future Term Loan/Notes Secured Obligations pursuant to Section 5.02(c).
Future Term Loan/Notes Secured Obligations shall mean all advances to, and debts, liabilities, obligations, covenants and duties of, any Grantor arising under any Future Term Loan/Notes Agreement (and any Term Loan/Notes Documents entered into in connection therewith) including, without limitation, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Grantor or any Affiliate thereof of any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
Future Term Loan/Notes Secured Party means the holders of any Future Term Loan/Notes Secured Obligations, the Collateral Agent and any Authorized Representative with respect thereto.
Grantors means Holdings, the Company and each other subsidiary or direct or indirect parent company of the Company which has granted a security interest pursuant to any Term Loan/Notes Security Document to secure any Series of Term Loan/Notes Secured Obligations.
Holdings means J. C. Penney Company, Inc., a Delaware corporation.
Impairment shall have the meaning assigned to such term in Section 1.01(b).
Indebtedness shall have the meaning set forth in the Term Loan Agreement as in effect on the date hereof.
Indenture means that certain Indenture dated as of June 23, 2016, among the Company, the guarantors identified therein and the Notes Authorized Representative, as trustee.
Insolvency or Liquidation Proceeding means:
(1) any case commenced by or against the Company or any other Grantor under any Bankruptcy Law, any other proceeding for the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of the Company or any other Grantor, any receivership or assignment for the benefit of creditors relating to the Company or any other Grantor or any similar case or proceeding relative to the Company or any other Grantor or its creditors, as such, in each case whether or not voluntary;
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(2) any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to the Company or any other Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or
(3) any other proceeding of any type or nature in which substantially all claims of creditors of the Company or any other Grantor are determined and any payment or distribution is or may be made on account of such claims.
Intellectual Property Security Agreement shall have the meaning assigned to such term in the Security Agreement.
Intervening Creditor shall have the meaning assigned to such term in Section 2.01(a) hereof.
Joinder Agreement means a Future Term Loan/Notes Secured Party Consent substantially in the form attached as Exhibit A hereto.
Junior Priority Intercreditor Agreement means a Junior Priority Intercreditor Agreement, substantially in the form of Exhibit B hereto with such changes thereto as are agreed to by the Applicable Authorized Representative.
Lien means with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.
Major Non-Applicable Authorized Representative means, with respect to any Shared Collateral, the Authorized Representative of the Series of Term Loan/Notes Secured Obligations that constitutes the largest outstanding principal amount of any then outstanding Series of Term Loan/Notes Secured Obligations (other than the Term Loan Obligations) with respect to such Shared Collateral but solely to the extent that such Series of Term Loan/Notes Secured Obligations has a larger aggregate outstanding principal amount than the Term Loan Obligations then outstanding.
Mortgage shall mean any mortgage, deed of trust, deed to secure debt, security deed, trust deed or spreader of lien, in favor of the Collateral Agent to secure any Term Loan/Notes Secured Obligations.
New York UCC shall mean the Uniform Commercial Code as from time to time in effect in the State of New York.
Non-Applicable Authorized Representative means, at any time with respect to any Shared Collateral, any Authorized Representative that is not the Applicable Authorized Representative at such time with respect to such Shared Collateral.
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Non-Applicable Authorized Representative Enforcement Date means, with respect to any Non-Applicable Authorized Representative, the date that is 90 days (throughout which 90-day period such Non-Applicable Authorized Representative was the Major Non-Applicable Authorized Representative) after the occurrence of both (i) an Event of Default (under and as defined in the Indenture or Future Term Loan/Notes Agreement under which such Non-Applicable Authorized Representative is the Authorized Representative) and (ii) the Collateral Agents and each other Authorized Representatives receipt of written notice from such Non-Applicable Authorized Representative certifying that (x) such Non-Applicable Authorized Representative is the Major Non-Applicable Authorized Representative and that an Event of Default (under and as defined in the Indenture or Future Term Loan/Notes Agreement under which such Non-Applicable Authorized Representative is the Authorized Representative) has occurred and is continuing and (y) the Term Loan/Notes Secured Obligations of the Series with respect to which such Non-Applicable Authorized Representative is the Authorized Representative are currently due and payable in full (whether as a result of acceleration thereof or otherwise) in accordance with the terms of the applicable Future Term Loan/Notes Agreement; provided that the Non-Applicable Authorized Representative Enforcement Date shall be stayed and shall not occur and shall be deemed not to have occurred with respect to any Shared Collateral (1) at any time the Collateral Agent has been instructed by the Applicable Authorized Representative to commence and diligently pursue and has commenced and is diligently pursuing any enforcement action with respect to such Shared Collateral, (2) at any time the Grantor which has granted a security interest in such Shared Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding or (3) at any time the Collateral Agent is stayed pursuant to the ABL Intercreditor Agreement from exercising enforcement actions with respect to a material portion of Shared Collateral.
Non-Controlling Secured Parties means, with respect to any Shared Collateral, the Term Loan/Notes Secured Parties which are not Controlling Secured Parties with respect to such Shared Collateral.
Notes Authorized Representative shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
Notes Obligations means the Notes Obligations (as defined in the Indenture).
Notes Secured Parties shall mean the Notes Secured Parties as defined in the Indenture.
Other Intercreditor Agreements shall mean, collectively, the ABL Intercreditor Agreement and, if executed, the Junior Priority Intercreditor Agreement.
Possessory Collateral means any Shared Collateral in the possession of the Collateral Agent (or its agents or bailees), to the extent that possession thereof perfects a Lien thereon under the Uniform Commercial Code of any jurisdiction. Possessory Collateral includes, without limitation, any Certificated Securities, Promissory Notes, Instruments, and Chattel Paper, in each case, delivered to or in the possession of the Collateral Agent under the terms of the Term Loan/Notes Security Documents. All capitalized terms used in this definition and not defined elsewhere in this Agreement have the meanings assigned to them in the New York UCC.
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Post-Petition Interest means any interest or entitlement to fees or expenses or other charges that accrue after the commencement of any bankruptcy or insolvency proceeding, whether or not allowed or allowable as a claim in any such bankruptcy or insolvency proceeding.
Proceeds shall have the meaning assigned to such term in Section 2.01(a) hereof.
Refinance means, in respect of any indebtedness, to refinance, extend, renew, defease, amend, increase, modify, supplement, restructure, refund, replace or repay, or to issue other indebtedness or enter alternative financing arrangements, in exchange or replacement for such indebtedness (in whole or in part), including by adding or replacing lenders, creditors, agents, borrowers and/or guarantors, and including in each case, but not limited to, after the original instrument giving rise to such indebtedness has been terminated and including, in each case, through any credit agreement, indenture or other agreement. Refinanced and Refinancing have correlative meanings.
Security Agreement means the Amended and Restated Pledge and Security Agreement, dated as of June 23, 2016, by and among the Grantors and the Collateral Agent, as the same may be further amended, restated or modified from time to time.
Series means (a) with respect to the Term Loan/Notes Secured Parties, each of (i) the Term Loan Secured Parties (in their capacities as such), (ii) the Notes Secured Parties (in their capacities as such) and (iii) each additional Series of Future Term Loan/Notes Secured Parties that are represented by a common Authorized Representative, in its capacity as such for such Future Term Loan/Notes Secured Parties (in their capacities as such) and (b) with respect to any Term Loan/Notes Secured Obligations, each of (i) the Term Loan Obligations, (ii) the Notes Obligations and (iii) the Future Term Loan/Notes Secured Obligations incurred pursuant to any Future Term Loan/Notes Agreement, which pursuant to any Joinder Agreement, are to be represented hereunder by a common Authorized Representative (in its capacity as such for such Future Term Loan/Notes Secured Obligations).
Shared Collateral means, at any time, Collateral in which the Collateral Agent holds, for the benefit of two or more Series of Term Loan/Notes Secured Obligations, a valid and perfected security interest at such time. If more than two Series of Term Loan/Notes Secured Obligations are outstanding at any time and the Collateral Agent holds a valid and perfected security interest in any Collateral at such time for less than all Series of Term Loan/Notes Secured Obligations, then such Collateral shall constitute Shared Collateral for those Series of Term Loan/Notes Secured Obligations that benefit from a valid security interest in such Collateral at such time and shall not constitute Shared Collateral for any Series which does not benefit from a valid and perfected security interest in such Collateral at such time. Unless the Collateral Agent has received notice from the Authorized Representative for any Series of Term Loan/Notes Secured Obligations that any item of Collateral is not Shared Collateral for such Series or a court of competent jurisdiction has made a determination that any item of Collateral is not Shared Collateral for any Series of Term Loan/Notes Secured Obligations, the Collateral Agent shall be fully protected in assuming that all Collateral is Shared Collateral for each Series of Term Loan/Notes Secured Obligations.
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Term Loan Agreement means that certain Amended and Restated Credit and Guaranty Agreement, dated as of June 23, 2016, among the Company, the guarantors party thereto, the lending institutions from time to time parties thereto, the Term Loan Authorized Representative, as administrative agent, and the other parties thereto.
Term Loan Authorized Representative shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
Term Loan/Notes Document means (i) the Term Loan Agreement and the Credit Documents (as defined in the Term Loan Agreement), (ii) the Indenture and the Notes Documents (as defined in the Indenture) and (iii) each Future Term Loan/Notes Agreement (and any documents designated therein as Credit Documents, Notes Documents or any equivalent term).
Term Loan/Notes Secured Obligations means, collectively, (i) the Term Loan Obligations, (ii) the Notes Obligations and (iii) each Series of Future Term Loan/Notes Secured Obligations.
Term Loan/Notes Secured Parties means (i) the Term Loan Secured Parties, (ii) the Notes Secured Parties and (iii) the Future Term Loan/Notes Secured Parties with respect to each Series of Future Term Loan/Notes Secured Obligations.
Term Loan/Notes Security Documents means the Security Agreement, each Mortgage, each Intellectual Property Security Agreement and each other agreement entered into in favor of the Collateral Agent for purposes of securing any Series of Term Loan/Notes Secured Obligations.
Term Loan Obligations means the Obligations as defined in the Term Loan Agreement.
Term Loan Secured Parties means the Secured Parties as defined in the Term Loan Agreement.
ARTICLE II
Priorities and Agreements with Respect to Shared Collateral
SECTION 2.01 Priority of Claims.
(a) Anything contained herein or in any of the Term Loan/Notes Documents to the contrary notwithstanding (but subject to Section 1.01(b)), if an Event of Default has occurred and is continuing, and the Collateral Agent is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of any Grantor or any Term Loan/Notes Secured Party receives any payment pursuant to any Other Intercreditor Agreement with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by the Collateral Agent pursuant to any Other Intercreditor Agreement and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the
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Term Loan/Notes Secured Obligations are entitled under any Other Intercreditor Agreement (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as Proceeds ), shall, subject to the terms of the ABL Intercreditor Agreement with respect to the ABL Priority Collateral, be applied (i) FIRST, to the payment of all amounts owing to the Collateral Agent (in its capacity as such) pursuant to the terms of this Agreement and any other Term Loan/Notes Document and (ii) SECOND, subject to Section 1.01(b), to the payment in full of the Term Loan/Notes Secured Obligations of each Series on a ratable basis in accordance with the terms of the applicable Term Loan/Notes Documents. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a Term Loan/Notes Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of Term Loan/Notes Secured Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of Term Loan/Notes Secured Obligations (such third party an Intervening Creditor ), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of Term Loan/Notes Secured Obligations with respect to which such Impairment exists; provided, further, that following commencement of any Insolvency or Liquidation Proceeding with respect to any Grantor, solely for purposes of this Section 2.01(a) and not any other Term Loan/Notes Document, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the Term Loan/Notes Secured Obligations to be allowed under Sections 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other bankruptcy law in such Insolvency or Liquidation Proceeding, the amount of Term Loan/Notes Secured Obligations of each Series of Term Loan/Notes Secured Obligations shall include only the maximum amount of Post-Petition Interest allowable under Sections 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other bankruptcy law in such Insolvency or Liquidation Proceeding.
(b) It is acknowledged that the Term Loan/Notes Secured Obligations of any Series may, subject to the limitations set forth in the then extant Term Loan/Notes Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the Term Loan/Notes Secured Parties of any Series.
(c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Term Loan/Notes Secured Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Term Loan/Notes Documents or any defect or deficiencies in the Liens securing the Term Loan/Notes Secured Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.01(b)), each Term Loan/Notes Secured Party hereby agrees that the Liens securing each Series of Term Loan/Notes Secured Obligations on any Shared Collateral shall be of equal priority.
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SECTION 2.02 Actions With Respect to Shared Collateral; Prohibition on Contesting Liens.
(a) With respect to any Shared Collateral, (i) only the Collateral Agent shall act or refrain from acting with respect to the Shared Collateral (including with respect to any Other Intercreditor Agreement), and then only on the instructions of the Applicable Authorized Representative, (ii) the Collateral Agent shall not follow any instructions with respect to such Shared Collateral (including with respect to any Other Intercreditor Agreement) from any Non-Applicable Authorized Representative (or any other Term Loan/Notes Secured Party other than the Applicable Authorized Representative) and (iii) no Non-Applicable Authorized Representative or other Term Loan/Notes Secured Party (other than the Applicable Authorized Representative) shall or shall instruct the Collateral Agent to, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest in or realize upon, or take any other action available to it in respect of, any Shared Collateral (including with respect to any intercreditor agreement with respect to any Shared Collateral), whether under any Term Loan/Notes Security Document, applicable law or otherwise, it being agreed that only the Collateral Agent, acting on the instructions of the Applicable Authorized Representative, shall be entitled to take any such actions or exercise any such remedies with respect to Shared Collateral. Notwithstanding the equal priority of the Liens, in exercising its rights under this Agreement, as between the Applicable Authorized Representative and the Controlling Secured Parties, on the one hand, and the Non-Controlling Authorized Representatives and the Non-Controlling Secured Parties, on the other, the Applicable Authorized Representative and the Controlling Secured Parties may exercise their rights under this Agreement, without regard to the existence of any Non-Controlling Authorized Representatives or Non-Controlling Secured Parties and shall owe no duties to such Persons. No Non-Applicable Authorized Representative or Non-Controlling Secured Party will contest, protest or object to any foreclosure proceeding or action brought by the Collateral Agent, the Applicable Authorized Representative or any Controlling Secured Party or any other exercise by the Collateral Agent, the Applicable Authorized Representative or any Controlling Secured Party of any rights and remedies relating to the Shared Collateral, or to cause the Collateral Agent to do so. The foregoing shall not be construed to limit the rights and priorities of any Term Loan/Notes Secured Party, Collateral Agent or Authorized Representative with respect to any Collateral not constituting Shared Collateral.
(b) Each of the Authorized Representatives agrees that it will not accept any Lien on any Collateral for the benefit of any Series of Term Loan/Notes Secured Obligations (other than funds deposited for the discharge or defeasance of any Series of Term Loan/Notes Secured Obligations) other than pursuant to the Term Loan/Notes Security Documents, and by executing this Agreement (or a Joinder Agreement), each Authorized Representative and the Series of Term Loan/Notes Secured Parties for which it is acting hereunder agrees to be bound by the provisions of this Agreement and the other Term Loan/Notes Security Documents applicable to it.
(c) Each of the Term Loan/Notes Secured Parties agrees that it will not (and hereby waives any right to) contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the perfection, priority, validity, attachment or enforceability of a Lien held by or on behalf of any of the Term Loan/Notes Secured Parties in all or any part of the Shared Collateral, or the provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any of the Collateral Agent or any Authorized Representative to enforce this Agreement.
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SECTION 2.03 No Interference; Payment Over.
(a) Each Term Loan/Notes Secured Party agrees that (i) it will not challenge or question in any proceeding the validity or enforceability of any Term Loan/Notes Secured Obligations of any Series or any Term Loan/Notes Security Document or the validity, attachment, perfection or priority of any Lien under any Term Loan/Notes Security Document or the validity or enforceability of the priorities, rights or duties established by or other provisions of this Agreement; (ii) it will not take or cause to be taken any action the purpose or intent of which is, or could be, to interfere, hinder or delay, in any manner, whether by judicial proceedings or otherwise, any sale, transfer or other disposition of the Shared Collateral by the Collateral Agent, (iii) except as provided in Section 2.02, it shall have no right to (A) direct the Collateral Agent or any other Term Loan/Notes Secured Party to exercise any right, remedy or power with respect to any Shared Collateral (including pursuant to any intercreditor agreement) or (B) consent to the exercise by the Collateral Agent or any other Term Loan/Notes Secured Party of any right, remedy or power with respect to any Shared Collateral, (iv) it will not institute any suit or assert in any suit, bankruptcy, insolvency or other proceeding any claim against the Collateral Agent, the Applicable Authorized Representative or any other Term Loan/Notes Secured Party represented by the Applicable Authorized Representative seeking damages from or other relief by way of specific performance, instructions or otherwise with respect to any Shared Collateral, and none of the Collateral Agent, any Applicable Authorized Representative or any other Term Loan/Notes Secured Party represented by any Applicable Authorized Representative shall be liable for any action taken or omitted to be taken by the Collateral Agent, such Applicable Authorized Representative or such Term Loan/Notes Secured Party with respect to any Shared Collateral in accordance with the provisions of this Agreement, (v) it will not seek, and hereby waives any right, to have any Shared Collateral or any part thereof marshaled upon any foreclosure or other disposition of such Collateral and (vi) it will not attempt, directly or indirectly, whether by judicial proceedings or otherwise, to challenge the enforceability of any provision of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of the Collateral Agent or any other Term Loan/Notes Secured Party to enforce this Agreement.
(b) Each Term Loan/Notes Secured Party hereby agrees that if it shall obtain possession of any Shared Collateral or shall realize any proceeds or payment in respect of any such Shared Collateral, pursuant to any Term Loan/Notes Security Document or by the exercise of any rights available to it under applicable law or in any Insolvency or Liquidation Proceeding or through any other exercise of remedies (including pursuant to any intercreditor agreement), at any time prior to the Discharge of each other Series of the Term Loan/Notes Secured Obligations with respect to such Shared Collateral, then it shall hold such Shared Collateral, proceeds or payment in trust for the other Term Loan/Notes Secured Parties and promptly transfer such Shared Collateral, proceeds or payment, as the case may be, to the Collateral Agent, to be distributed in accordance with the provisions of Section 2.01 hereof.
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SECTION 2.04 Automatic Release of Liens; Amendments to Term Loan/Notes Security Documents.
(a) If, at any time the Collateral Agent forecloses upon or otherwise exercises remedies against any Shared Collateral, then (whether or not any Insolvency or Liquidation Proceeding is pending at the time) the Liens in favor of the Collateral Agent for the benefit of each Series of Term Loan/Notes Secured Parties upon such Shared Collateral will automatically be released and discharged; provided that any proceeds of any Shared Collateral realized therefrom shall be applied pursuant to Section 2.01 hereof.
(b) Each Term Loan/Notes Secured Party agrees that the Collateral Agent may enter into any amendment (and, upon request by the Collateral Agent, each Authorized Representative shall sign a consent to such amendment) to any Term Loan/Notes Security Document or Other Intercreditor Agreement, so long as the Collateral Agent receives a certificate of the Company stating that such amendment is permitted by the terms of each then extant Term Loan/Notes Document; provided, however, that any amendment to any Term Loan/Notes Document or Other Intercreditor Agreement solely for the purpose of effectuating a release or subordination of any Lien or any subdivision of a Real Estate Asset pursuant to the last sentence of Section 4.08 shall not require such certificate and shall instead be governed by the requirements of Section 4.08. Additionally, each Term Loan/Notes Secured Party agrees that the Collateral Agent may enter into any amendment (and, upon request by the Collateral Agent, each Authorized Representative shall sign a consent to such amendment) to any Term Loan/Notes Security Document or Other Intercreditor Agreement solely as such Term Loan/Notes Security Document or Other Intercreditor Agreement relates to a particular Series of Term Loan/Notes Secured Obligations so long as (x) such amendment is in accordance with the Term Loan/Notes Document pursuant to which such Series of Term Loan/Notes Secured Obligations was incurred and (y) such amendment does not adversely affect the Term Loan/Notes Secured Parties of any other Series (and the Collateral Agent shall be fully protected in relying on a certificate of the Company certifying as to each of (x) and (y)).
(c) Additionally, if the Applicable Authorized Representative with respect to any Shared Collateral, other than in connection with the repayment in full of any Series of Term Loan/Notes Secured Obligations, delivers a certificate to the Collateral Agent requesting that (i) all or any portion of such Shared Collateral be released from the Liens of the Term Loan/Notes Security Documents with respect to all Series of then outstanding Term Loan/Notes Secured Obligations, (ii) the Liens of the Collateral Agent on all or any portion of the Shared Collateral for all then outstanding Series of Term Loan/Notes Secured Obligations be subordinated to any other Liens on such Shared Collateral or (iii) the Collateral Agent enter into the Junior Priority Intercreditor Agreement or any supplement to any Other Intercreditor Agreement or any amendment or supplement to any Term Loan/Notes Security Document relating to such Shared Collateral, the Collateral Agent shall execute such Junior Priority Intercreditor Agreement amendments and supplements as may be requested by the Applicable Authorized Representative to effectuate such request.
(d) Each Authorized Representative agrees to execute and deliver (at the sole cost and expense of the Grantors) all such authorizations and other instruments as shall reasonably be requested by the Collateral Agent to evidence and confirm any release of Shared Collateral or amendment to any Term Loan/Notes Security Document provided for in this Section.
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SECTION 2.05 Certain Agreements With Respect to Bankruptcy or Insolvency Proceedings.
(a) This Agreement shall continue in full force and effect notwithstanding the commencement of any proceeding under the Bankruptcy Code or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law by or against the Company or any of its subsidiaries.
(b) If any Grantor shall commence or become subject to a case (a Bankruptcy Case ) under the Bankruptcy Code and shall, as debtor(s)-in-possession, move for approval of financing to be provided by one or more lenders (the DIP Lenders ) under Section 364 of the Bankruptcy Code ( DIP Financing ) and/or the use of cash collateral under Section 363 of the Bankruptcy Code (in each case, or under any equivalent provision of any other applicable bankruptcy law), each Term Loan/Notes Secured Party agrees that it will raise no objection to any such financing or to the Liens on the Shared Collateral securing the same ( DIP Financing Liens ) and/or to any use of cash collateral that constitutes Shared Collateral, unless the Applicable Authorized Representative with respect to such Shared Collateral shall then oppose or object to such DIP Financing or such DIP Financing Liens and/or use of cash collateral (and (i) to the extent that such DIP Financing Liens are senior to the Liens on any such Shared Collateral for the benefit of the Controlling Secured Parties, each Non-Controlling Secured Party hereby authorizes and instructs the Collateral Agent to subordinate the Liens with respect to such Shared Collateral for the benefit of the Non-Controlling Secured Parties on the same terms as the Liens for the benefit of the Controlling Secured Parties (other than any Liens of any Term Loan/Notes Secured Parties constituting DIP Financing Liens) are subordinated thereto, and (ii) to the extent that such DIP Financing Liens rank pari passu with the Liens on any such Shared Collateral granted to secure the Term Loan/Notes Secured Obligations of the Controlling Secured Parties, each Non-Controlling Secured Party will confirm the priorities with respect to such Shared Collateral as set forth herein), in each case so long as (A) the Term Loan/Notes Secured Parties of each Series (or the Collateral Agent or other representative for the benefit of such Term Loan/Notes Secured Parties) retain the benefit of their Liens, including Liens on proceeds of Shared Collateral arising after the commencement of such bankruptcy proceedings, on all such Shared Collateral pledged to the DIP Lenders, with the same priority vis-a-vis all the other Term Loan/Notes Secured Parties (other than any Liens of any Term Loan/Notes Secured Parties constituting DIP Financing Liens) as existed prior to the commencement of the Bankruptcy Case, (B) the Term Loan/Notes Secured Parties of each Series (or the Collateral Agent or other representative for the benefit of such Term Loan/Notes Secured Parties) are granted Liens on any additional collateral pledged to any Term Loan/Notes Secured Parties (or the Collateral Agent or other representative for the benefit of such Term Loan/Notes Secured Parties) as adequate protection or otherwise in connection with such DIP Financing and/or use of cash collateral, with the same priority vis-a-vis the Term Loan/Notes Secured Parties as set forth in this Agreement, (C) if any amount of such DIP Financing and/or cash collateral is applied to repay any of the Term Loan/Notes Secured Obligations, such amount is applied pursuant to Section 2.01 of this Agreement, and (D) if any Term Loan/Notes Secured Parties are granted adequate protection, including in the form of periodic payments, in connection with such DIP Financing and/or use of cash collateral, the proceeds of such adequate protection are applied pursuant to Section 2.01 of this Agreement; provided that the Term Loan/Notes Secured Parties of each Series shall have a right to object to the grant of a Lien to
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secure the DIP Financing over any Collateral subject to Liens in favor of the Term Loan/Notes Secured Parties of such Series or its Authorized Representative that shall not constitute Shared Collateral; and provided , further , that the Term Loan/Notes Secured Parties receiving adequate protection shall not object to any other Term Loan/Notes Secured Party receiving adequate protection comparable to any adequate protection granted to such Term Loan/Notes Secured Parties in connection with a DIP Financing and/or use of cash collateral.
SECTION 2.06 Reinstatement. In the event that any of the Term Loan/Notes Secured Obligations shall be paid in full and such payment or any part thereof shall subsequently, for whatever reason (including an order or judgment for disgorgement of a preference under Title 11 of the United Stated Code, or any similar law, or the settlement of any claim in respect thereof), be required to be returned or repaid, the terms and conditions of this Article II shall be fully applicable thereto until all such Term Loan/Notes Secured Obligations shall again have been paid in full in cash.
SECTION 2.07 Insurance. As between the Term Loan/Notes Secured Parties, the Collateral Agent, acting at the direction of the Applicable Authorized Representative, shall have the right to adjust or settle any insurance policy or claim covering or constituting Shared Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding affecting the Shared Collateral.
SECTION 2.08 Refinancings. The Term Loan/Notes Secured Obligations of any Series may be Refinanced, in whole or in part, in each case, without notice to, or the consent (except to the extent a consent is otherwise required to permit the refinancing transaction under any Term Loan/Notes Document) of any Term Loan/Notes Secured Party of any other Series, all without affecting the priorities provided for herein or the other provisions hereof; provided that the Authorized Representative of the holders of any such Refinancing indebtedness shall have executed a Joinder Agreement on behalf of the holders of such Refinancing indebtedness.
SECTION 2.09 Possessory Collateral Agent as Gratuitous Bailee for Perfection.
(a) The Collateral Agent agrees to hold any Shared Collateral constituting Possessory Collateral that is part of the Collateral in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee for the benefit of each other Term Loan/Notes Secured Party and any assignee solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable Term Loan/Notes Security Documents, in each case, subject to the terms and conditions of this Section 2.09. Pending delivery to the Collateral Agent, each Authorized Representative agrees to hold any Shared Collateral constituting Possessory Collateral, from time to time in its possession, as gratuitous bailee for the benefit of each other Term Loan/Notes Secured Party and any assignee, solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable Term Loan/Notes Security Documents, in each case, subject to the terms and conditions of this Section 2.09.
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(b) The duties or responsibilities of the Collateral Agent and each Authorized Representative under this Section 2.09 shall be limited solely to holding any Shared Collateral constituting Possessory Collateral as gratuitous bailee for the benefit of each other Term Loan/Notes Secured Party for purposes of perfecting the Lien held by such Term Loan/Notes Secured Parties therein.
ARTICLE III
Existence and Amounts of Liens and Obligations
Whenever the Collateral Agent or any Authorized Representative shall be required, in connection with the exercise of its rights or the performance of its obligations hereunder, to determine the existence or amount of any Term Loan/Notes Secured Obligations of any Series, or the Shared Collateral subject to any Lien securing the Term Loan/Notes Secured Obligations of any Series, it may request that such information be furnished to it in writing by the Authorized Representative for the applicable Series and shall be entitled to make such determination on the basis of the information so furnished; provided , however , that if an Authorized Representative shall fail or refuse reasonably promptly to provide the requested information, the requesting Collateral Agent or Authorized Representative shall be entitled to make any such determination by such method as it may, in the exercise of its good faith judgment, determine, including by reliance upon a certificate of the Company. The Collateral Agent and each Authorized Representative may rely conclusively, and shall be fully protected in so relying, on any determination made by it in accordance with the provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to any Grantor, any Term Loan/Notes Secured Party or any other person as a result of such determination.
ARTICLE IV
The Collateral Agent
SECTION 4.01 Appointment and Authority.
(a) Each Authorized Representative, on behalf of the Term Loan/Notes Secured Parties of the applicable Series, hereby irrevocably appoints Wilmington Trust, National Association (and any successor as contemplated hereby) to act as the Collateral Agent for the current and future Term Loan/Notes Secured Parties hereunder and under each of the Term Loan/Notes Security Documents and Other Intercreditor Agreements and authorizes the Collateral Agent to take such actions on its behalf and on behalf of such Term Loan/Notes Secured Parties and to exercise such powers as are delegated to the Collateral Agent by the terms hereof or thereof, including for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any Grantor to secure the Term Loan/Notes Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Collateral Agent and any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Agent pursuant to Section 4.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under any of the Term Loan/Notes Security Documents, or for exercising any rights and remedies thereunder at the direction of the Applicable Authorized Representative or for exercising any rights under any of the Other Intercreditor Agreements, shall be entitled to the benefits of all provisions of this Article IV.
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(b) Each Non-Controlling Secured Party acknowledges and agrees that the Collateral Agent shall be entitled, for the benefit of the Term Loan/Notes Secured Parties, to sell, transfer or otherwise dispose of or deal with any Shared Collateral as provided herein and in the Term Loan/Notes Security Documents and Other Intercreditor Agreements, without regard to any rights to which the Non-Controlling Secured Parties would otherwise be entitled. Without limiting the foregoing, each Non-Controlling Secured Party agrees that none of the Collateral Agent, the Applicable Authorized Representative or any other Term Loan/Notes Secured Party shall have any duty or obligation first to marshal or realize upon any type of Shared Collateral (or any other Collateral securing any of the Term Loan/Notes Secured Obligations), or to sell, dispose of or otherwise liquidate all or any portion of such Shared Collateral (or any other Collateral securing any Term Loan/Notes Secured Obligations) or otherwise to exercise any of its rights under this Agreement, in any manner that would maximize the return to the Non-Controlling Secured Parties, notwithstanding that the order and timing of any such realization, sale, disposition or liquidation may affect the amount of proceeds actually received by the Non-Controlling Secured Parties from such realization, sale, disposition or liquidation. Each of the Term Loan/Notes Secured Parties waives any claim it may now or hereafter have against the Collateral Agent or the Authorized Representative of any other Series of Term Loan/Notes Secured Obligations or any other Term Loan/Notes Secured Party of any other Series arising out of (i) any actions which the Collateral Agent, any Authorized Representative or any Term Loan/Notes Secured Party takes or omits to take (including, actions with respect to the creation, perfection or continuation of Liens on any Collateral, actions with respect to the foreclosure upon, sale, release or depreciation of, or failure to realize upon, any of the Collateral and actions with respect to the collection of any claim for all or any part of the Term Loan/Notes Secured Obligations from any account debtor, guarantor or any other party) in accordance with this Agreement or the Term Loan/Notes Security Documents or any other agreement related thereto or to the collection of the Term Loan/Notes Secured Obligations or the valuation, use, protection or release of any security for the Term Loan/Notes Secured Obligations, (ii) any election by any Applicable Authorized Representative or any holders of Term Loan/Notes Secured Obligations, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b) of the Bankruptcy Code or (iii) subject to Section 2.05, any borrowing by, or grant of a security interest or administrative expense priority under Section 364 of the Bankruptcy Code by, the Company or any of its subsidiaries, as debtor-in-possession. Notwithstanding any other provision of this Agreement, the Collateral Agent shall not accept any Shared Collateral in full or partial satisfaction of any Term Loan/Notes Secured Obligations pursuant to Section 9-620 of the Uniform Commercial Code of any jurisdiction, without the consent of each Authorized Representative representing holders of Term Loan/Notes Secured Obligations for whom such Collateral constitutes Shared Collateral.
(c) Each party hereto acknowledges and agrees that the Collateral Agent, any Authorized Representative or any other Term Loan/Notes Secured Party may be a lender or agent under the ABL Credit Agreement (as defined in the ABL Intercreditor Agreement) or other Indebtedness of any Grantor that does not constitute Term Loan/Notes Secured Obligations or may have other arrangements or agreements with any other Grantor and each party hereto waives any claim against the Collateral Agent or any other Term Loan/Notes Secured Party based on any conflict or alleged conflict of interest as a result thereof.
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SECTION 4.02 Rights as a Term Loan/Notes Secured Party.
The Person serving as the Collateral Agent hereunder shall have the same rights and powers in its capacity as a Term Loan/Notes Secured Party under any Series of Term Loan/Notes Secured Obligations that it holds as any other Term Loan/Notes Secured Party of such Series and may exercise the same as though it were not the Collateral Agent and if the Collateral Agent holds any Term Loan/Notes Obligations, the term Term Loan/Notes Secured Party or Term Loan/Notes Secured Parties or (as applicable) Term Loan Secured Party, Term Loan Secured Parties, Notes Secured Party, Notes Secured Parties, Future Term Loan/Notes Secured Party or Future Term Loan/Notes Secured Parties shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Collateral Agent hereunder in its individual capacity. The Person acting as Collateral Agent and its Affiliates and each Person acting as an Authorized Representative or any other Term Loan/Notes Secured Party may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Grantor or other Affiliate thereof as if such Person were not the Collateral Agent, an Authorized Representative or a Term Loan/Notes Secured Party hereunder and without any duty to account therefor to any other Term Loan/Notes Secured Party.
SECTION 4.03 Exculpatory Provisions.
(a) The Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the other Term Loan/Notes Security Documents. Without limiting the generality of the foregoing and notwithstanding any contrary position in any Term Loan/Notes Security Document, the Collateral Agent:
(i) | shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing; |
(ii) | shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Term Loan/Notes Security Documents or by the Other Intercreditor Agreements that the Collateral Agent is required to exercise as directed in writing by the Applicable Authorized Representative; provided that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to unindemnified individual liability or that is contrary to applicable law; |
(iii) | shall not, except as expressly set forth herein, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Affiliates that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity; |
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(iv) | shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Applicable Authorized Representative or (ii) in the absence of its own gross negligence or willful misconduct as determined by a final order of a court of competent jurisdiction or (iii) in reliance on a certificate of the Company stating that such action is permitted by the terms of this Agreement. The Collateral Agent shall be deemed not to have knowledge of any Event of Default under any Series of Term Loan/Notes Secured Obligations unless and until written notice describing such Event of Default and stating that it is a notice of default, is given to the Collateral Agent in accordance with Section 5.01 by the Authorized Representative of such Series of Term Loan/Notes Secured Obligations or the Company; |
(v) | shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, any other Term Loan/Notes Security Document or any Other Intercreditor Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Term Loan/Notes Security Document, any Other Intercreditor Agreement or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Term Loan/Notes Security Documents, (v) the value or the sufficiency of any Collateral for any Series of Term Loan/Notes Secured Obligations, or (vi) the satisfaction of any condition set forth in any Term Loan/Notes Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; |
(vi) | shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Company (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law); |
(vii) | shall not be liable for any indirect, special, punitive, incidental or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action; and |
(viii) |
shall not be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be created by the Term Loan/Notes Security Documents (including without limitation the filing or continuation of any UCC financing or continuation statements or similar documents or instruments), nor shall the Collateral Agent be responsible |
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for, and the Collateral Agent makes no representation regarding, the validity, effectiveness or priority of any of the Term Loan/Notes Security Documents or the security interests or Liens intended to be created thereby. |
SECTION 4.04 Reliance by Collateral Agent.
The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message or other distribution) believed by it in good faith to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to have been made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
SECTION 4.05 Delegation of Duties.
The Collateral Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Term Loan/Notes Security Document or Other Intercreditor Agreement by or through any one or more sub-agents appointed by the Collateral Agent. The Collateral Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Affiliates. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Affiliates of the Collateral Agent and any such sub-agent. The Collateral Agent shall not be liable for the negligence or misconduct of any sub-agents appointed with due care.
SECTION 4.06 Resignation of Collateral Agent.
The Collateral Agent may at any time give notice of its resignation as Collateral Agent under this Agreement and the other Term Loan/Notes Security Documents to each Authorized Representative and the Company. Upon receipt of any such notice of resignation, the Applicable Authorized Representative shall have the right, in consultation with the Company, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Applicable Authorized Representative and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Term Loan/Notes Secured Parties, appoint a successor Collateral Agent meeting the qualifications set forth above; provided that if the Collateral Agent shall notify the Company and each Authorized Representative that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Term Loan/Notes Security Documents and the Other Intercreditor Agreements (except that in the case of any collateral security held by the Collateral Agent on behalf of the Term Loan/Notes Secured
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Parties under any of the Term Loan/Notes Security Documents, the retiring Collateral Agent shall continue to hold such collateral security solely for purposes of maintaining the perfection of the security interests of the Term Loan/Notes Secured Parties therein until such time as a successor Collateral Agent is appointed but with no obligation to take any further action at the request of the Applicable Authorized Representative or any other Term Loan/Notes Secured Parties) and (b) all payments, communications and determinations provided to be made by, to or through the Collateral Agent shall instead be made by or to each Authorized Representative directly, until such time as the Applicable Authorized Representative appoints a successor Collateral Agent as provided for above in this Section. Upon the acceptance of a successors appointment as Collateral Agent hereunder and under the Term Loan/Notes Security Documents, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Collateral Agent, and the retiring Collateral Agent shall be discharged from all of its duties and obligations hereunder or under the other Term Loan/Notes Security Documents and Other Intercreditor Agreements (if not already discharged therefrom as provided above in this Section). After the retiring Collateral Agents resignation hereunder and under the other Term Loan/Notes Security Documents, the provisions of this Article shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective related parties in respect of any actions taken or omitted to be taken by any of them while the retiring Collateral Agent was acting as Collateral Agent. Upon any notice of resignation of the Collateral Agent hereunder and under the other Term Loan/Notes Security Documents, the Company agrees to use commercially reasonable efforts to transfer (and maintain the validity and priority of) the Liens in favor of the retiring Collateral Agent under the Term Loan/Notes Security Documents to the successor Collateral Agent. The Collateral Agent shall execute and deliver or otherwise authorize the filing of such documents as the Company or the Applicable Authorized Representative shall reasonably request, in form and substance reasonably satisfactory to the Collateral Agent, to transfer (and maintain the validity and priority of) the Liens in favor of the retiring Collateral Agent under the Term Loan/Notes Security Documents to the successor Collateral Agent.
SECTION 4.07 Non-Reliance on Collateral Agent and other Term Loan/Notes Secured Parties.
Each Term Loan/Notes Secured Party acknowledges that it has, independently and without reliance upon the Collateral Agent, any Authorized Representative or any other Term Loan/Notes Secured Party or any of their Affiliates and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and the other Term Loan/Notes Documents. Each Term Loan/Notes Secured Party also acknowledges that it will, independently and without reliance upon the Collateral Agent, any Authorized Representative or any other Term Loan/Notes Secured Party or any of their Affiliates and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Term Loan/Notes Document or any related agreement or any document furnished hereunder or thereunder.
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SECTION 4.08 Collateral and Guaranty Matters.
Each of the Term Loan/Notes Secured Parties irrevocably authorizes the Collateral Agent to, and the Collateral Agent shall:
(a) release or subordinate any Lien on any property granted to or held by the Collateral Agent under any Term Loan/Notes Security Document in accordance with Section 2.04 or upon receipt of a written request by the Collateral Agent and each Applicable Authorized Representative from the Company stating that the release or subordination of such Lien is permitted by the terms of each then extant Term Loan/Notes Document;
(b) execute and deliver or otherwise authorize the filing of documents in connection with a subdivision of Collateral subject to a Mortgage upon receipt by the Collateral Agent and each Applicable Authorized Representative of a written request from the Company stating that such subdivision is permitted by the terms of each then extant Term Loan/Notes Document; and
(c) release any Grantor from its obligations under the Term Loan/Notes Security Documents upon receipt by the Collateral Agent and each Applicable Authorized Representative of a written request from the Company stating that such release is permitted by the terms of each then extant Term Loan/Notes Document.
The Collateral Agent shall execute and deliver or otherwise authorize the filing of such documents as the Company or any other Grantor shall reasonably request, in form and substance reasonably satisfactory to the Collateral Agent, including financing statement amendments to evidence such release, subordination or subdivision to give effect to any such release or subordination. Such documents may take the form of amendments and restatements of, or other amendments or modifications to, one or more Term Loan/Notes Security Documents solely to give effect to the foregoing.
SECTION 4.09 Other Intercreditor Agreements.
Each of the Term Loan/Notes Secured Parties by accepting the benefits of this Agreement, irrevocably authorizes the Collateral Agent (x) to enter into and perform its obligations under the ABL Intercreditor Agreement and, if requested by the Applicable Authorized Representative, the Junior Priority Intercreditor Agreement and agrees to be bound by the terms of each such Other Intercreditor Agreement applicable to such Term Loan/Notes Secured Party and (y) to enter into and perform its obligations under the Term Loan/Notes Security Documents to which it is a party.
SECTION 4.10 Fees, Expenses and Indemnities.
The Company shall pay to the Collateral Agent such compensation, reimburse the Collateral Agent for expenses and indemnify the Collateral Agent all as set forth in Sections 2.11(b), 10.2 and 10.3 of the Term Loan Agreement, Section 7.7 of the Indenture and the applicable provisions of any Future Term Loan/Notes Agreement.
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ARTICLE V
Miscellaneous
SECTION 5.01 Notices. All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Collateral Agent, to it at Wilmington Trust, National Association, Global Capital Markets, 50 South Sixth Street, Suite 1290, Minneapolis, Minnesota 55402, Attention of J. C. Penney Collateral Agency Administrator (Telecopy No. 612-217-5651 and Electronic Mail: hfield@wilmingtontrust.com);
(b) if to the Term Loan Authorized Representative, to it at JPMorgan Chase Bank, N.A., as Administrative Agent, 500 Stanton Christiana Road, Ops Building 2, 3 rd Floor, Newark, DE 19713-2107(Telephone: (302) 634-1678);
(c) if to the Notes Authorized Representative, to it at Wilmington Trust, National Association, Global Capital Markets, 50 South Sixth Street, Suite 1290, Minneapolis, Minnesota 55402, Attention of J. C. Penney Notes Administrator (Telecopy No. 612-217-5651 and Electronic Mail: hfield@wilmingtontrust.com);
(d) if to any other additional Authorized Representative, to it at the address set forth in the applicable Joinder Agreement.
Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt (if a Business Day) and on the next Business Day thereafter (in all other cases) if delivered by hand or overnight courier service or sent by telecopy or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 5.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 5.01. As agreed to in writing among the Collateral Agent and each Authorized Representative from time to time, notices and other communications may also be delivered by e-mail to the e-mail address of a representative of the applicable person provided from time to time by such person.
SECTION 5.02 Waivers; Amendment; Joinder Agreements.
(a) No failure or delay on the part of any party hereto in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any party therefrom shall in any event be effective
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unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be terminated, waived, amended or modified (other than pursuant to any Joinder Agreement) except pursuant to an agreement or agreements in writing entered into by each Authorized Representative and the Collateral Agent and, in the case of waivers, amendments or modifications that could reasonably be expected to affect the rights, duties or interests of any Grantor (including, without limitation, any waiver, amendment or modification of Sections 2.04(c), 2.05, 2.08, 2.09, 4.08 and 5.03 and this Section 5.02), the Company.
(c) On or after the date hereof and so long as permitted by the Term Loan Agreement, the Indenture and any Future Term Loan/Notes Agreement then outstanding (but subject to Section 4.04 above), the Company may from time to time designate Indebtedness at the time of incurrence to be Future Term Loan/Notes Secured Indebtedness by delivering to the Collateral Agent and each Authorized Representative (a) a certificate signed by an Authorized Officer of the Company (i) identifying the obligations so designated and the initial aggregate principal amount or face amount thereof, (ii) stating that such obligations are designated as Future Term Loan/Notes Secured Obligations for purposes hereof, (iii) representing that such designation of such obligations as Future Term Loan/Notes Secured Indebtedness complies with the terms of the Term Loan Agreement, the Indenture and any Future Term Loan/Notes Agreement then outstanding and (iv) specifying the name and address of the Authorized Representative for such Future Term Loan/Notes Secured Indebtedness and (b) a Joinder Agreement executed by the Grantors and the Authorized Representative for such Future Term Loan/Notes Secured Indebtedness (and if such Future Term Loan/Notes Secured Indebtedness is being designated as the Term Loan Agreement, the then extant Term Loan Authorized Representative). Each Authorized Representative agrees that upon the satisfaction of all conditions set forth in the preceding sentence, the Collateral Agent shall execute such Joinder Agreement and act as agent under and subject to the terms of this Agreement for the benefit of all Term Loan/Notes Secured Parties, including without limitation, any Term Loan/Notes Secured Parties that hold any such Future Term Loan/Notes Secured Obligations, and each Authorized Representative agrees to the appointment, and acceptance of the appointment, of the Collateral Agent as agent for the holders of such Future Term Loan/Notes Secured Obligations as set forth in each Joinder Agreement and agrees, on behalf of itself and each Term Loan/Notes Secured Party it represents, to be bound by this Agreement. In addition, the Collateral Agent shall execute, at the Companys expense, any reaffirmations, amendments, amendments and restatements or other modifications to any Term Loan/Notes Security Document in connection with such Joinder Agreement as the Company or the Applicable Authorized Representative shall request for purposes of giving effect thereto.
SECTION 5.03 Parties in Interest. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, as well as the other Term Loan/Notes Secured Parties, all of whom are intended to be bound by, and to be third party beneficiaries of, this Agreement. In addition, the Grantors shall be third party beneficiaries of Sections 2.04, 2.05, 2.08, 2.09, 4.08 and 5.02 and this Section 5.03.
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SECTION 5.04 Survival of Agreement. All covenants, agreements, representations and warranties made by any party in this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.
SECTION 5.05 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
SECTION 5.06 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 5.07 Governing Law.
This Agreement shall be construed in accordance with and governed by the law of the State of New York.
SECTION 5.08 Submission To Jurisdiction Waivers. The Collateral Agent and each Authorized Representative, on behalf of itself and the Term Loan/Notes Secured Parties of the Series for whom it is acting, irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the Term Loan/Notes Security Documents, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Person (or its Authorized Representative) at the address referred to in 5.01;
(d) agrees that nothing herein shall affect the right of any other party hereto (or any Term Loan/Notes Secured Party) to effect service of process in any other manner permitted by law; and
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(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section 5.08 any special, exemplary, punitive or consequential damages.
SECTION 5.09 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 5.10 Headings. Article, Section and Annex headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 5.11 Conflicts. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of any of the other Term Loan/Notes Documents or Term Loan/Notes Security Documents (other than the ABL Intercreditor Agreement), the provisions of this Agreement shall control.
SECTION 5.12 Provisions Solely to Define Relative Rights. The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the Term Loan/Notes Secured Parties in relation to one another. None of the Company, any other Grantor or any other creditor thereof shall have any rights or obligations hereunder, except as expressly provided in this Agreement ( provided that nothing in this Agreement (other than Section 2.04, 2.05, 2.08, 2.09 or 4.08 or Article V) is intended to or will amend, waive or otherwise modify the provisions of the Term Loan Agreement, the Indenture or any Future Term Loan/Notes Agreements), and none of the Company or any other Grantor may rely on the terms hereof (other than Sections 2.04, 2.05, 2.08, 2.09 and 4.08 and Article V). Nothing in this Agreement is intended to or shall impair the obligations of any Grantor, which are absolute and unconditional, to pay the Term Loan/Notes Secured Obligations as and when the same shall become due and payable in accordance with their terms.
SECTION 5.13 Integration; Effectiveness. This Agreement together with the other Term Loan/Notes Documents and the Term Loan/Notes Security Documents represents the agreement of each of the Grantors and the Term Loan/Notes Secured Parties with respect to the subject matter hereof and there are no promises, undertakings, representations or warranties by any Grantor, the Collateral Agent, any or any other Term Loan/Notes Secured Party relative to the subject matter hereof not expressly set forth or referred to herein or in the other Term Loan/Notes Documents or the Term Loan/Notes Security Documents. This Agreement shall continue to be effective until all Liens securing Term Loan/Notes Secured Obligations have been released in accordance with the provisions of this Agreement and shall survive the repayment of any Series of Term Loan/Notes Secured Obligations.
SECTION 5.14 Concerning the Notes Authorized Representative. The Notes Authorized Representative is acting in this Agreement in its capacity as Trustee under the Indenture, and shall be entitled to all of the rights, privileges and immunities of the Trustee set forth in the Indenture as if such rights, privileges and immunities were set forth herein. Whenever the Notes Authorized Representative makes any determination, gives any direction or instruction or request to the Collateral Agent or exercises any discretion, it shall do so pursuant to the provisions of and in compliance with the Indenture.
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SECTION 5.15 Termination. This Agreement shall terminate and be of no further force and effect, (i) with respect to the Notes Secured Parties and the Notes Obligations, upon the Discharge of the Notes Obligations; (ii) with respect to the Term Loan Secured Parties and the Term Loan Obligations, upon the Discharge of Term Loan Obligations and (iii) in the case of any Series of Future Term Loan/Notes Secured Obligations or Future Term Loan/Notes Secured Parties that become subject to this Agreement after the date hereof, upon the Discharge of such Future Term Loan Notes/Secured Obligations, in each case, subject to Section 2.08; provided, however, that such termination shall not relieve any such party of its obligations incurred hereunder prior to the date of such termination; provided, further that, notwithstanding the foregoing, the provisions of Section 4.06 shall govern the resignation of the Collateral Agent and the provisions of Section 4.10 relating to the indemnity of the Collateral Agent shall survive such termination or the earlier resignation or removal of the Collateral Agent .
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
WILMINGTON TRUST, NATIONAL ASSOCIATION, | ||
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JPMORGAN CHASE BANK, N.A., as Term Loan Authorized Representative |
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WILMINGTON TRUST, NATIONAL ASSOCIATION, as Notes Authorized Representative |
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[Pari Passu Intercreditor Agreement]
CONSENT OF GRANTORS
Dated: June 23, 2016
Reference is made to the Pari Passu Intercreditor Agreement dated as of the date hereof by and among WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent, JPMORGAN CHASE BANK, N.A., as Term Loan Authorized Representative, and WILMINGTON TRUST, NATIONAL ASSOCIATION, as Notes Authorized Representative, as the same may be amended, restated, supplemented, waived, or otherwise modified from time to time (the Pari Passu Intercreditor Agreement ). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Pari Passu Intercreditor Agreement.
Each of the undersigned Grantors has read the foregoing Pari Passu Intercreditor Agreement and consents thereto and agrees to indemnify and hold harmless the Collateral Agent on the terms set forth therein. Each of the undersigned Grantors agrees not to take any action that would be contrary to the express provisions of the Pari Passu Intercreditor Agreement, agrees to abide by the requirements expressly applicable to it under the Pari Passu Intercreditor Agreement and agrees that, except as otherwise provided therein, no Term Loan/Notes Secured Party shall have any liability to any Grantor for acting in accordance with the provisions of the Pari Passu Intercreditor Agreement. Each Grantor understands that the Pari Passu Intercreditor Agreement is for the sole benefit of the Term Loan/Notes Secured Parties and their respective successors and assigns, and that such Grantor is not an intended beneficiary or third party beneficiary thereof except to the extent otherwise expressly provided therein.
Without limitation to the foregoing, each Grantor agrees to take such further action and to execute and deliver such additional documents and instruments (in recordable form, if requested) as the Collateral Agent may reasonably request to effectuate the terms of and the lien priorities contemplated by Pari Passu Intercreditor Agreement.
This Consent shall be governed and construed in accordance with the laws of the State of New York. Notices delivered to any Grantor pursuant to this Consent shall be delivered in accordance with the notice provisions set forth in the Pari Passu Intercreditor Agreement, at the address set forth on Appendix B attached to the Term Loan Agreement or such other address as the Company may notify the Collateral Agent and the Authorized Representatives in writing.
IN WITNESS HEREOF, this Consent is hereby executed by each of the Grantors as of the date first written above.
J. C. PENNEY CORPORATION, INC. |
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J. C. PENNEY COMPANY, INC. |
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J. C. PENNEY PURCHASING CORPORATION | ||
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J. C. PENNEY REAL ESTATE HOLDINGS, INC. | ||
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J. C. PENNEY PROPERTIES, INC. |
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EXHIBIT A
[Form of]
ADDITIONAL TERM LOAN/NOTES SECURED PARTY CONSENT
[Name of Future Term Loan/Notes Secured Party]
[Address of Future Term Loan/Notes Secured Party]
[Date]
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The undersigned is the Authorized Representative for Persons wishing to become Term Loan/Notes Secured Parties (the New Secured Parties ) under that certain Pari Passu Intercreditor Agreement (the Pari Passu Intercreditor Agreement ), dated as of June 23, 2016, among Wilmington Trust, National Association, as Collateral Agent, JPMorgan Chase Bank, N.A., as the Term Loan Authorized Representative and Wilmington Trust, National Association, as the Notes Authorized Representative, and acknowledged by J. C. Penney Corporation and the other grantors party thereto (the Grantors ). Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Pari Passu Intercreditor Agreement.
In consideration of the foregoing, the undersigned hereby:
(i) represents that the Authorized Representative has been duly authorized by the New Secured Parties to become a party to the Pari Passu Intercreditor Agreement on behalf of the New Secured Parties under that [DESCRIBE OPERATIVE AGREEMENT] (the New Secured Obligation ) and to act as the Authorized Representative for the New Secured Parties;
(ii) acknowledges that the New Secured Parties have received a copy of the Pari Passu Intercreditor Agreement [and the ABL Intercreditor Agreement/Junior Priority Intercreditor Agreement] 1 ;
(iii) appoints and authorizes the Collateral Agent to take such action as agent on its behalf and on behalf of all other Term Loan/Notes Secured Parties and to exercise such powers under the Pari Passu Intercreditor Agreement, the Other Intercreditor Agreements and the Term Loan/Notes Security Documents as are delegated to the Collateral Agent by the terms thereof, together with all such powers as are reasonably incidental thereto;
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Include references to each Other Intercreditor Agreement then in effect. |
(iv) accepts and acknowledges the terms of the Pari Passu Intercreditor Agreement applicable to it and the New Secured Parties and agrees to serve as Authorized Representative for the New Secured Parties with respect to the New Secured Obligation and agrees on its own behalf and on behalf of the New Secured Parties to be bound by the terms thereof applicable to holders of Future Term Loan/Notes Secured Obligations, with all the rights and obligations of a Term Loan/Notes Secured Party thereunder and bound by all the provisions thereof as fully as if it had been a Term Loan/Notes Secured Party on the effective date of the Pari Passu Intercreditor Agreement and agrees that its address for receiving notices pursuant to the Pari Passu Intercreditor Agreement shall be as follows:
[Address]
(v) accepts and acknowledges the terms of each Other Intercreditor Agreement applicable to it and the New Secured Parties, confirms the authority of the Collateral Agent to enter into such agreements on its behalf and on behalf of the New Secured Parties and agrees on its own behalf and on behalf of the New Secured Parties to be bound by the terms thereof applicable to it and the New Secured Parties as fully as if it had been a party to each such agreement.
[The New Secured Obligation is hereby designated as the Term Loan Agreement for purposes of the Pari Passu Intercreditor Agreement.]
The Collateral Agent, by acknowledging and agreeing to this Future Term Loan/Notes Secured Party Consent, accepts the appointment set forth in clause (iii) above.
Each Grantor hereby grants (and hereby confirms its prior grant of) to the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, a security interest in and continuing lien on all of such Grantors right, title and interest in, to and under all Collateral of such Grantor, including the Collateral as defined in the Security Agreement, in each case whether now or hereafter existing or in which any Grantor now has or hereafter acquires an interest and wherever the same may be located. Each Grantor hereby authorizes the Collateral Agent to file financing statements in any jurisdiction and with any filing offices as the Collateral Agent or the Applicable Authorized Representative may determine are necessary or advisable to perfect or otherwise protect the security interest granted to the Collateral Agent herein. Such financing statements may describe the Collateral in the same manner as described in the applicable Term Loan/Notes Security Document or may contain an indication or description of collateral that describes such property in any other manner as the Collateral Agent or the Applicable Authorized Representative may determine is necessary, advisable or prudent to ensure the perfection of the security interest in the Collateral granted to the Collateral Agent herein, including, without limitation, describing such property as all assets, whether now owned or hereafter acquired, developed or created or words of similar effect.
THIS ADDITIONAL TERM LOAN/NOTES SECURED PARTY CONSENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Future Term Loan/Notes Secured Party Consent to be duly executed by its authorized officer as of the day of 20 .
[NAME OF AUTHORIZED REPRESENTATIVE] |
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Acknowledged and Agreed
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Collateral Agent
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[Acknowledged and Agreed |
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as former Term Loan Authorized Agent |
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Title:] 2 |
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2 To be included if the New Secured Obligation is being designated as the Term Loan Agreement for purposes of the Pari Passu Intercreditor Agreement.
EXHIBIT B
[FORM OF]
JUNIOR PRIORITY INTERCREDITOR AGREEMENT
JUNIOR PRIORITY INTERCREDITOR AGREEMENT, dated as of [ ] [ ], 20[ ], among WILMINGTON TRUST, NATIONAL ASSOCIATION in its capacity as Collateral Agent under the First Lien Pari Passu Intercreditor Agreement (as defined below) (together with its successors as Collateral Agent, the First Lien Representative ), as Representative for the First Lien Secured Parties (as defined below), and [ ] (together with its successors as Collateral Agent under the Second Lien Pari Passu Intercreditor Agreement, the Junior Lien Representative ), as Representative for the Junior Lien Secured Parties (as defined below). Capitalized terms used herein but not otherwise defined herein have the meanings set forth in Section 1 below.
A. J. C. PENNEY CORPORATION, INC., a Delaware corporation (the Company ), is party to the Amended and Restated Credit and Guaranty Agreement, dated as of June 23, 2016 (as amended, restated, supplemented, waived, Refinanced or otherwise modified from time to time including without limitation to add new loans thereunder or increase the amount of commitments thereunder, the Term Loan Agreement ), among the Company, the guarantors party thereto, the lenders party thereto from time to time and JPMorgan Chase Bank, N.A., as administrative agent (together with its successors in such capacity under the Term Loan Agreement, the Term Loan Agent ).
B. The Company is party to the Indenture dated as of June 23, 2016 among the Company, the guarantors identified therein and Wilmington Trust, National Association, as First Lien Trustee (as amended, restated, supplemented, waived, Refinanced or otherwise modified from time to time, the First Lien Indenture ) pursuant to which the Company has issued its 5.875% Senior Secured Notes due 2023.
C. [Describe document governing initial Junior Lien Obligations] 1
D. Pursuant to the First Lien Pari Passu Intercreditor Agreement, the Term Loan Agent and the First Lien Trustee have appointed, and, if any additional Series of First Lien Obligations have been or are hereinafter established, one or more additional First Lien Authorized Representatives for the holders of additional Series of First Lien Obligations will appoint, the First Lien Representative to hold Liens for the benefit of the First Lien Secured Parties under the First Lien Documents and to bind such First Lien Secured Parties by the terms of this Agreement;
E. Pursuant to the Junior Lien Pari Passu Intercreditor Agreement, [ ] [and [ ] 2 ] [has] [have] appointed, and, if any additional Series (as defined in the Junior Lien Pari Passu Intercreditor Agreement) of Junior Lien Obligations are established following the date hereof, one or more additional Junior Lien Authorized Representatives for the holders of additional Series of Junior Lien Obligations will appoint, the Junior Lien Representative to hold Liens for the benefit of the Junior Lien Secured Parties under the Junior Lien Documents and to bind such Junior Lien Secured Parties by the terms of this Agreement.
1 | To be updated as appropriate. |
2 | Insert if applicable. |
Accordingly, in consideration of the foregoing, the mutual covenants and obligations herein set forth and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. Definitions .
1.1. Defined Terms . As used in this Agreement, the following terms have the meanings specified below:
ABL Intercreditor Agreement shall mean that certain Intercreditor and Collateral Cooperation Agreement, dated as of June 23, 2016, among Wells Fargo Bank, National Association, as representative for the First Priority Secured Parties (as defined therein), the First Lien Representative, as representative for the First Lien Secured Parties and the Junior Lien Representative, as representative for the Junior Lien Secured Parties, and certain other persons party or that may become party thereto from time to time, and consented to by the Company and the grantors identified therein, as amended, restated, supplemented or otherwise modified from time to time.
ABL Priority Collateral shall have the meaning given such term in the ABL Intercreditor Agreement.
Agreement shall mean this Junior Priority Intercreditor Agreement, as amended, renewed, extended, supplemented or otherwise modified from time to time in accordance with the terms hereof.
Bankruptcy Code means Title 11 of the United States Code, as amended.
Bankruptcy Law shall mean the Bankruptcy Code and any similar Federal, state or foreign law for the relief of debtors.
Business Day means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York, United States or the jurisdiction of the place of payment are authorized or required by law to close.
Collateral shall mean all of the assets of any Grantor, whether real, personal or mixed, constituting both First Lien Collateral and Junior Lien Collateral including, without limitation, any assets on which the First Lien Representative is automatically deemed to have a Lien pursuant to the provisions of Section 2.3 .
Company shall have the meaning set forth in the recitals.
Comparable Junior Lien Security Document shall mean, in relation to any Collateral subject to any Lien created under any First Lien Document, each Junior Lien Security Document that creates a Lien on the same Collateral, granted by the same Grantor.
Controlled Accounts shall have the meaning set forth in Section 5.5(b) .
DIP Financing shall have the meaning set forth in Section 6.1 .
Discharge of First Lien Obligations shall mean, except to the extent otherwise provided in Section 5.7 , payment in full in cash (except for contingent indemnities and cost and reimbursement obligations to the extent no claim has been made) of all First Lien Obligations and, with respect to
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letters of credit or letter of credit guaranties outstanding under the First Lien Documents, delivery of cash collateral or backstop letters of credit in respect thereof in a manner consistent with the applicable First Lien Documents and otherwise reasonably satisfactory to the First Lien Representative, in each case after or concurrently with the termination of all commitments to extend credit thereunder and the termination of all commitments of the First Lien Secured Parties under the First Lien Documents; provided that the Discharge of First Lien Obligations shall not be deemed to have occurred if such payments are made with the proceeds of other First Lien Obligations that constitute an exchange or replacement for or a Refinancing of such Obligations or First Lien Obligations.
First Lien Authorized Representatives means the Term Loan Agent, the First Lien Trustee and each other Authorized Representative (as defined in the First Lien Pari Passu Intercreditor Agreement) that becomes a party to the First Lien Pari Passu Intercreditor Agreement following the date hereof.
First Lien Collateral shall mean all of the assets of any Grantor, whether real, personal or mixed, with respect to which a Lien is granted or purported to be granted as security for any First Lien Obligations pursuant to a First Lien Security Document.
First Lien Documents shall have the meaning given to the term Term Loan/Notes Documents by the First Lien Pari Passu Intercreditor Agreement.
First Lien Indenture shall have the meaning set forth in the recitals.
First Lien Obligations shall have the meaning given to the term Term Loan/Notes Secured Obligations in the First Lien Pari Passu Intercreditor Agreement.
First Lien Pari Passu Intercreditor Agreement shall mean the Pari Passu Intercreditor Agreement, dated as of June 23, 2016 and as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, by and among the Grantors, the First Lien Representative, the Term Loan Agent, the First Lien Trustee and each other First Lien Authorized Representative from time to time party thereto.
First Lien Representative has the meaning set forth in the introductory paragraph of this Agreement.
First Lien Secured Parties shall mean the First Lien Representative, the First Lien Authorized Representatives and the holders from time to time of the First Lien Obligations.
First Lien Security Documents shall have the meaning given to the term Term Loan/Notes Security Documents by the First Lien Pari Passu Intercreditor Agreement.
First Lien Trustee shall mean Wilmington Trust, National Association, in its capacity as trustee under the First Lien Indenture, and its permitted successors.
First Priority Liens shall mean Liens securing the First Lien Obligations, which Liens are superior and prior in priority to the Liens securing the Junior Lien Obligations.
Grantor Joinder Agreement means a supplement to this Agreement substantially in the form of Annex I, appropriately completed.
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Grantors shall mean Holdings, the Company and each other Subsidiary or direct or indirect parent company of the Company which has granted a security interest pursuant to any First Lien Security Document to secure any Series of First Lien Obligations.
Holdings shall mean J. C. Penney Company, Inc., a Delaware corporation.
Insolvency or Liquidation Proceeding shall mean:
(1) any case commenced by or against the Company or any other Grantor under any Bankruptcy Law, any other proceeding for the reorganization, receivership, recapitalization or adjustment or marshalling of the assets or liabilities of the Company or any other Grantor or its assets, any receivership or assignment for the benefit of creditors relating to the Company or any other Grantor or its assets or any similar case or proceeding relative to the Company or any other Grantor or its creditors or its assets, as such, in each case whether or not voluntary;
(2) any liquidation, dissolution, marshalling of assets or liabilities, assignment for the benefit of creditors or other winding up of or relating to the Company or any other Grantor or its assets, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency and whether or not in a court supervised proceeding; or
(3) any other proceeding of any type or nature in which substantially all claims of creditors of the Company or any other Grantor are determined and any payment or distribution is or may be made on account of such claims.
Junior Lien Authorized Representative means each Authorized Representative as defined in the Junior Lien Pari Passu Intercreditor Agreement.
Junior Lien Collateral shall mean all of the assets of any Grantor, whether real, personal or mixed, with respect to which a Lien is granted or purported to be granted as security for any Junior Lien Obligations pursuant to a Junior Lien Security Document.
Junior Lien Documents shall have the meaning given to such term by the Junior Lien Pari Passu Intercreditor Agreement.
Junior Lien Obligations shall have the meaning given to the term Junior Priority Secured Obligations in the Junior Lien Pari Passu Intercreditor Agreement.
Junior Lien Pari Passu Intercreditor Agreement means the pari passu intercreditor agreement, dated as of the date hereof, entered into by and among the Junior Lien Representative and one or more Junior Lien Authorized Representatives pursuant to which, among other things, the Junior Lien Secured Parties (or one or more Junior Lien Authorized Representatives on behalf of such Junior Lien Secured Parties) have authorized and directed the Junior Lien Representative to enter into this Agreement on behalf of the Junior Lien Secured Parties and to bind them hereby.
Junior Lien Representative has the meaning set forth in the introductory paragraph of this Agreement .
Junior Lien Secured Parties shall mean the Junior Lien Representative, the Junior Lien Authorized Representatives and the holders from time to time of the Junior Lien Obligations.
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Junior Lien Security Documents shall have the meaning given to the term Junior Priority Security Documents (or like term) in the Junior Lien Pari Passu Intercreditor Agreement.
Junior Liens shall mean the Liens securing the Junior Lien Obligations.
Lien shall mean, with respect to any asset, any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset.
Non-Conforming Plan of Reorganization shall mean any Plan of Reorganization which grants the Junior Lien Representative or any Junior Lien Secured Party any right or benefit, directly or indirectly, which right or benefit is inconsistent with the terms of this Agreement or prohibited at such time by the provisions of this Agreement.
Obligations shall mean any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, federal or foreign law), premium, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and bankers acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any indebtedness.
Payment Discharge shall have the meaning set forth in Section 5.1(a) .
Person shall mean any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, entity or other party, including any government and any political subdivision, agency or instrumentality thereof.
Plan of Reorganization shall mean any plan of reorganization, plan of liquidation, agreement for composition, or other type of plan of arrangement proposed in or in connection with any Insolvency or Liquidation Proceeding.
Pledged Collateral shall mean the Collateral in the possession or control of the First Lien Representative (or its agents or bailees), in accordance with the terms of the First Lien Pari Passu Intercreditor Agreement, to the extent that possession or control thereof perfects a Lien thereon under the UCC.
Recovery shall have the meaning set forth in Section 6.3 .
Refinance shall mean, in respect of any indebtedness, to refinance, extend, renew, defease, amend, increase, modify, supplement, restructure, refund, replace or repay, or to issue other indebtedness or enter alternative financing arrangements, in exchange for or replacement of such indebtedness, including by adding or replacing lenders, creditors, agents, borrowers and/or guarantors, and including in each case, but not limited to, after the original instrument giving rise to such indebtedness has been terminated. Refinanced and Refinancing shall have correlative meanings.
Representative shall mean each of the First Lien Representative and the Junior Lien Representative.
Series shall have the meaning given to such term by the First Lien Pari Passu Intercreditor Agreement.
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Subsidiary shall mean any Subsidiary of the Company as defined in the First Lien Indenture.
Term Loan Agent shall have the meaning set forth in the recitals.
Term Loan Agreement shall have the meaning set forth in the recitals.
UCC shall mean the Uniform Commercial Code as from time to time in effect in the State of New York.
1.2. Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words include, includes and including shall be deemed to be followed by the phrase without limitation. The word will shall be construed to have the same meaning and effect as the word shall. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified in accordance with this Agreement, (b) any reference herein to any Person shall be construed to include such Persons successors and assigns, (c) the words herein, hereof and hereunder, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Sections shall be construed to refer to Sections of this Agreement and (e) the words asset and property shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
SECTION 2. Lien Priorities .
2.1. Subordination of Liens . Notwithstanding (i) the date, time, method, manner or order of filing or recordation of any document or instrument or grant, attachment or perfection of any Liens granted to the Junior Lien Representative or any Junior Lien Secured Party on the Collateral or of any Liens granted to the First Lien Representative or any First Lien Secured Party on the Collateral (or any actual or alleged defect or deficiency in any of the foregoing or any avoidance, invalidation or subordination by any third party or court of competent jurisdiction of any or all of the security interests in the Collateral), (ii) any provision of the UCC, the Bankruptcy Code, any applicable law, any Junior Lien Documents or the First Lien Documents, (iii) whether the First Lien Representative, either directly or through agents, holds possession of, or has control over, all or any part of the Collateral, (iv) the fact that any such Liens may be subordinated, voided, avoided, invalidated or lapsed or (v) any other circumstance of any kind or nature whatsoever, the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party under its Junior Lien Documents, hereby agrees that: (a) any Lien on the Collateral securing any First Lien Obligations now or hereafter held by or on behalf of the First Lien Representative or any First Lien Secured Parties or any agent or trustee therefor regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects and prior to any Lien on the Collateral securing any Junior Lien Obligations and (b) any Lien on the Collateral securing any Junior Lien Obligations now or hereafter held by or on behalf of the Junior Lien Representative or any Junior Lien Secured Party or any agent or trustee therefor regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Collateral securing any First Lien Obligations. All Liens on the Collateral securing any First Lien Obligations shall be and remain senior in all respects and prior to all Liens on the Collateral securing any Junior Lien Obligations for all purposes, whether or not such Liens securing any First Lien Obligations are subordinated to any Lien securing any other obligation of the Company, any other Grantor or any other Person. The Junior Lien Representative, for itself and on behalf
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of the Junior Lien Secured Parties, expressly agrees that any Lien purported to be granted on any Collateral as security for the First Lien Obligations shall be deemed to be, and shall be deemed to remain, senior in all respects and prior to all Liens on the Collateral securing any Junior Lien Obligations for all purposes regardless of whether any Lien purported to be granted is found to be improperly granted, improperly perfected, preferential, a fraudulent conveyance or fraudulent transfer or legally or otherwise deficient in any manner.
2.2. Prohibition on Contesting Liens . The Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, agrees that (a) it shall not (and hereby waives any right to) take any action to contest, or support any other Person in contesting, directly or indirectly, in any proceeding (including any Insolvency or Liquidation Proceeding), the validity, extent, perfection, priority or enforceability of a Lien securing, or the allowability of any claim asserted with respect to, any First Lien Obligations held (or purported to be held) by or on behalf of the First Lien Representative or any of the First Lien Secured Parties or any agent or trustee therefor in any First Lien Collateral or Collateral and (b) none of them will oppose or otherwise contest (or support any Person contesting) any other request for judicial relief made in any court by the First Lien Representative or any First Lien Secured Party relating to the lawful enforcement of any First Priority Lien on Collateral or First Lien Collateral. The First Lien Representative, for itself and on behalf of each First Lien Secured Party, agrees that it shall not (and hereby waives any right to) take any action to contest, or support any other Person in contesting, directly or indirectly, in any proceeding (including any Insolvency or Liquidation Proceeding), the validity, extent, perfection, priority or enforceability of a Lien securing, or the allowability of any claim asserted with respect to, any Junior Lien Obligations held (or purported to be held) by or on behalf of the Junior Lien Representative or any Junior Lien Secured Party on the Collateral; provided , however , that nothing in this Agreement shall be construed to prevent or impair the rights of the First Lien Representative or any First Lien Secured Parties to enforce this Agreement (including the priority of the Liens securing the First Lien Obligations as provided in Section 2.1 ) or any of the First Lien Documents.
2.3. No New Liens . So long as the Discharge of First Lien Obligations has not occurred, the parties hereto agree that, after the date hereof, none of Holdings, the Company or any other Subsidiary shall grant or permit any additional Liens on any asset or property of such Person to secure any Junior Lien Obligations unless it has granted, or concurrently therewith grants, a Lien on such asset or property to secure the First Lien Obligations. If the Junior Lien Representative or any Junior Lien Secured Party shall (nonetheless and in breach hereof) acquire or hold any Lien on any assets or property of Holdings, the Company or any other Subsidiary securing the Junior Lien Obligations that is not also subject to the First Priority Lien in respect of the First Lien Obligations under the First Lien Documents, then the Junior Lien Representative or such Junior Lien Secured Party, without the need for any further consent of any party and notwithstanding anything to the contrary in any other agreement, document or instrument, (i) shall notify the First Lien Representative promptly upon becoming aware thereof and, unless Holdings, the Company or any other Subsidiary, as applicable, shall promptly grant a similar Lien on such assets or property to the First Lien Representative as security for the First Lien Obligations, and must assign such Lien to the First Lien Representative as security for the First Lien Obligations (but may retain a junior lien on such assets or property subject to the terms of this Agreement) and (ii) until such assignment or such grant of a similar Lien to the First Lien Representative, will be deemed to hold and have held such Lien for the benefit of the First Lien Representative as security for the First Lien Obligations. Any amounts received or distributed to the Junior Lien Representative pursuant to or as a result of any Lien granted in contravention of this Section 2.3 shall be subject to the provisions of Section 4.2 .
2.4. Perfection of Liens . Except as expressly set forth in Section 5.5 hereof, neither the First Lien Representative nor any First Lien Secured Party shall be responsible for perfecting and maintaining the perfection of Liens with respect to the Collateral for the benefit of the Junior Lien Representative or any Junior Lien Secured Parties. Neither the Junior Lien Representative nor any Junior Lien
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Secured Party shall be responsible for perfecting and maintaining the perfection of Liens with respect to the Collateral for the benefit of the First Lien Representative or any First Lien Secured Parties. The provisions of this Agreement are intended to govern the respective Lien priorities as between the First Lien Secured Parties and the Junior Lien Secured Parties and shall not impose on the First Lien Representative, the Junior Lien Representative, the Junior Lien Secured Parties or the First Lien Secured Parties or any agent or trustee therefor any obligations in respect of the disposition of proceeds of any Collateral which would conflict with prior perfected claims therein in favor of any other Person or any order or decree of any court or governmental authority or any applicable law.
SECTION 3. Enforcement .
3.1. Exercise of Remedies, Etc .
(a) So long as the Discharge of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) neither the Junior Lien Representative nor any Junior Lien Secured Party will (x) exercise or enforce or seek to exercise or enforce any rights or remedies (including setoff, recoupment and the right to credit bid debt (except as set forth in Section 3.1(f) below)) with respect to any Collateral securing both the First Lien Obligations and any Junior Lien Obligations in respect of any applicable Junior Lien Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or otherwise object to any foreclosure or enforcement proceeding or action brought with respect to the Collateral or any other collateral by the First Lien Representative or any First Lien Secured Party in respect of the First Lien Obligations, the exercise of any right by the First Lien Representative or any First Lien Secured Party (or any agent or sub-agent on their behalf) in respect of the First Lien Obligations under any lockbox agreement, control agreement, landlord waiver or bailees letter or similar agreement or arrangement to which the First Lien Representative or any First Lien Secured Party either is a party or may have rights as a third-party beneficiary, the Junior Lien Representative or any Junior Lien Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party of any rights and remedies as a secured party relating to the Collateral or any other collateral under the First Lien Documents or otherwise in respect of First Lien Obligations, or (z) object to any waiver or forbearance by the First Lien Secured Parties from or in respect of bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral or any other collateral in respect of First Lien Obligations and (ii) as between the First Lien Representative or First Lien Secured Parties, on one hand, and the Junior Lien Representative or any Junior Lien Secured Party, on the other hand, the First Lien Representative (or any person authorized by it) and the First Lien Secured Parties shall have the sole and exclusive right to enforce rights, exercise remedies (including setoff, recoupment and the right to credit bid their debt), marshal, process and make determinations regarding the release, disposition or restrictions, or waiver or forbearance of rights or remedies with respect to the Collateral and will also have the exclusive right to determine and direct the time, method and place for exercising such right or remedies or conducting any proceeding with respect thereto, in each case, without any consultation with or the consent of the Junior Lien Representative or any Junior Lien Secured Party; provided , however , that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, the Junior Lien Representative or any Junior Lien Secured Party may file a claim, proof of claim or statement of interest with respect to the Junior Lien Obligations, (B) the Junior Lien Representative or any Junior Lien Secured Party may take any action (not adverse to the prior Liens on the Collateral securing the First Lien Obligations or the rights of the First Lien Representative or the First Lien Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Collateral, (C) to the extent not otherwise inconsistent with or prohibited by the this Agreement, the Junior Lien Representative or the Junior Lien Secured Parties may exercise their rights and remedies as unsecured creditors, solely to the extent provided, and as limited,
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herein, (D) the Junior Lien Representative or the Junior Lien Secured Parties may exercise the rights and remedies provided for in this Agreement with respect to seeking adequate protection in an Insolvency or Liquidation Proceeding, and (E) the Junior Lien Representative or the Junior Lien Secured Parties may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Junior Lien Representative or the Junior Lien Secured Parties, including any claims secured by the Collateral, in each case (A) through (E) above to the extent such action is not prohibited by, inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement. In exercising rights and remedies with respect to the First Lien Collateral or Collateral, the First Lien Representative and the First Lien Secured Parties may enforce the provisions of the First Lien Documents and exercise any one or more of its or their rights and remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(b) So long as the Discharge of First Lien Obligations has not occurred, the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy or otherwise in an Insolvency or Liquidation Proceeding (including set off, recoupment or the right to credit bid debt (except as set forth in Section 3.1(f) below)) with respect to any Collateral in respect of the applicable Junior Lien Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a) , the sole right of the Junior Lien Representative and the Junior Lien Secured Parties with respect to the Collateral is to hold a Lien on the Collateral in respect of the applicable Junior Lien Obligations pursuant to the Junior Lien Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of First Lien Obligations has occurred.
(c) Subject to the proviso in clause (ii) of Section 3.1(a) , (i) the Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, agrees that neither the Junior Lien Representative nor any Junior Lien Secured Party will take any action that would hinder any exercise of remedies undertaken by the First Lien Representative or the First Lien Secured Parties with respect to the Collateral, the First Lien Collateral or any other collateral under the First Lien Documents, including any sale, lease, exchange, transfer or other disposition of the Collateral, the First Lien Collateral or such other collateral, whether by foreclosure or otherwise, and (ii) the Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, hereby waives any and all rights it or any Junior Lien Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Representative or any First Lien Secured Party seeks to enforce or collect the First Lien Obligations or the Liens granted in any of the First Lien Collateral or Collateral, regardless of whether any action or failure to act by or on behalf of the First Lien Representative or First Lien Secured Party is adverse to the interests of the Junior Lien Secured Parties.
(d) The Junior Lien Representative and each Junior Lien Secured Party hereby acknowledge and agree that no covenant, agreement or restriction contained in any applicable Junior Lien Document shall be deemed to restrict in any way the rights and remedies of the First Lien Representative or any First Lien Secured Parties with respect to the First Lien Collateral or Collateral as set forth in this Agreement and the First Lien Documents.
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(e) So long as the Discharge of First Lien Obligations has not occurred, neither the Junior Lien Representative nor any other Junior Lien Secured Party may assert or enforce any right of marshalling accorded to a junior lienholder, as against the First Lien Representative or any First Lien Secured Party (in their capacity as priority lienholders).
(f) Section 3.1 hereof shall not be construed to in any way limit or impair the right of any Junior Lien Secured Party from exercising a credit bid with respect to the Junior Lien Obligations in a sale or other disposition of Collateral under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, provided that in connection with and immediately after giving effect to such sale and credit bid there occurs a Discharge of First Lien Obligations.
3.2. Cooperation . Subject to the proviso in clause (ii) of Section 3.1(a) , the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that, unless and until the Discharge of First Lien Obligations has occurred, it will not commence, or join with any Person (other than the First Lien Secured Parties and the First Lien Representative upon the request thereof) in commencing, any enforcement, collection, execution, levy or foreclosure action or proceeding with respect to any Lien held by it in the Collateral or any other collateral under any of the applicable Junior Lien Documents or otherwise in respect of the applicable Junior Lien Obligations.
SECTION 4. Payments .
4.1. Application of Proceeds . Subject to the terms of the First Lien Pari Passu Intercreditor Agreement and the ABL Intercreditor Agreement, so long as the Discharge of First Lien Obligations has not occurred, the Collateral or proceeds thereof received in connection with the sale or other disposition of, or collection on, such Collateral upon the exercise of rights or remedies or any transfer or disposition in lieu thereof as a secured party, shall be applied by the First Lien Representative to the First Lien Obligations prior to application to any Junior Lien Obligations, in such order as specified in the First Lien Pari Passu Intercreditor Agreement and in the relevant First Lien Documents until the Discharge of First Lien Obligations has occurred. Upon the Discharge of First Lien Obligations, subject to the proviso of Section 5.1(a)(y) and subject to Section 5.7 hereof, the First Lien Representative shall deliver promptly to the Junior Lien Representative any Collateral or proceeds thereof held by it in the same form as received, with any endorsements reasonably requested by the Junior Lien Representative or as a court of competent jurisdiction may otherwise direct.
4.2. Payments Over . Any Collateral or First Lien Collateral or proceeds thereof received by the Junior Lien Representative or any Junior Lien Secured Party in connection with the exercise of any right or remedy (including set off, recoupment or credit bid) or in any Insolvency or Liquidation Proceeding relating to the Collateral not expressly permitted by this Agreement or prior to the Discharge of First Lien Obligations shall be segregated and held in trust for the benefit of and forthwith paid over to the First Lien Representative in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct. The First Lien Representative is hereby authorized to make any such endorsements as agent for the Junior Lien Representative or any such Junior Lien Secured Party. This authorization is coupled with an interest and is irrevocable.
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SECTION 5. Other Agreements .
5.1. Releases .
(a) (x) If at any time any Grantor or any First Lien Secured Party delivers notice to the Junior Lien Representative with respect to any specified Collateral (including for such purpose, in the case of the sale or other disposition of all or substantially all of the equity interests in any Subsidiary, any Collateral held by such Subsidiary or any direct or indirect Subsidiary thereof) that:
(A) such specified Collateral has been or is being sold, leased, exchanged, transferred or otherwise disposed of by the owner of such Collateral in a transaction permitted under the First Lien Documents and the Junior Lien Documents; or
(B) the First Priority Liens thereon have been or are being released in connection with the release of a Subsidiary from its guarantee under all of the First Lien Documents or
(C) the First Priority Liens thereon have been or are being otherwise released as permitted by the First Lien Documents or by the First Lien Representative on behalf of the First Lien Secured Parties (unless, in the case of clause (B) or (C) of this Section 5.1(a)(x) , such release occurs in connection with, and after giving effect to, a Discharge of First Lien Obligations, which discharge is not in connection with a foreclosure of, or other exercise of remedies with respect to, Collateral by the First Lien Secured Parties (such discharge not in connection with any such foreclosure or exercise of remedies, a Payment Discharge )),
then the Junior Liens upon such Collateral will automatically be released and discharged as and when, but only to the extent, such Liens on such Collateral securing First Lien Obligations are released and discharged ( provided that in the case of any release of Collateral not pursuant to a Payment Discharge, the Liens on any Collateral disposed of in connection with the satisfaction in whole or in part of First Lien Obligations shall be automatically released but any proceeds thereof not used for purposes of the Discharge of First Lien Obligations or otherwise in accordance with the First Lien Documents shall be subject to Junior Liens and shall be applied pursuant to Section 4.1 ). Upon delivery to the Junior Lien Representative of a notice from the First Lien Representative stating that any such release of Liens securing or supporting the First Lien Obligations has become effective (or shall become effective upon the Junior Lien Representatives release), the Junior Lien Representative will promptly, at the Companys expense, execute and deliver such instruments, releases, termination statements or other documents confirming such release on customary terms, which instruments, releases and termination statements shall be substantially identical to the comparable instruments, releases and termination statements executed by the First Lien Representative in connection with such release. In the case of the sale of capital stock of a Subsidiary or any other transaction resulting in the release of such Subsidiarys guarantee under the First Lien Documents in accordance with the First Lien Documents, the guarantee in favor of the Junior Lien Secured Parties, if any, made by such Subsidiary will automatically be released and discharged as and when, but only to the extent, the guarantee by such Subsidiary of all First Lien Obligations is released and discharged.
(y) In the event of a Payment Discharge, the Junior Liens on Collateral owned by the Company or a Grantor immediately after giving effect to such Payment Discharge shall become first-priority security interests (subject to the ABL Intercreditor Agreement and any intercreditor agreements or arrangements among Junior Lien Secured Parties pursuant to Section 8.21 and subject to Liens permitted by the Junior Lien Documents); provided that if the Company or the Grantors incur at any time thereafter any new or replacement First Lien Obligations permitted under the Junior Lien Documents, then the provisions of Section 5.7 shall apply as if a Refinancing of First Lien Obligations had occurred.
(b) The Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, hereby irrevocably constitutes and appoints the First Lien Representative and any officer or agent of the First Lien Representative, with full power of substitution, as its true and lawful attorneys-in-fact with full irrevocable power and authority in the place and stead of the Junior Lien Representative or such holder or in the First Lien Representatives own name, from time to time in the First Lien Representatives
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discretion, for the purpose of carrying out the terms of this Section 5.1 , to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of this Section 5.1 , including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of First Lien Obligations has occurred, the Junior Lien Representative for itself and on behalf of each Junior Lien Secured Party, hereby consents to the application, whether prior to or after a default, of proceeds of Collateral or other collateral to the repayment of First Lien Obligations pursuant to the First Lien Documents (but subject to the First Lien Pari Passu Intercreditor Agreement and the ABL Intercreditor Agreement).
5.2. Insurance . Unless and until the Discharge of First Lien Obligations has occurred, as between the First Lien Representative or any First Lien Secured Party, on one hand, and the Junior Lien Representative or any Junior Lien Secured Party, on the other hand, the First Lien Representative and the First Lien Secured Parties shall have the sole and exclusive right, to the extent permitted by the First Lien Documents and subject to the rights of the Grantors thereunder, to adjust settlement for any insurance policy covering the Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding affecting the Collateral. Subject to the First Lien Pari Passu Intercreditor Agreement and the ABL Intercreditor Agreement, unless and until the Discharge of First Lien Obligations has occurred, all proceeds of any such policy and any such award if in respect of the Collateral shall be paid (a) first, until the occurrence of the Discharge of First Lien Obligations, to the First Lien Representative for the benefit of the First Lien Secured Parties pursuant to the terms of the First Lien Documents, (b) second, after the occurrence of the Discharge of First Lien Obligations, to the Junior Lien Representative for the benefit of the Junior Lien Secured Parties pursuant to the terms of the applicable Junior Lien Documents and (c) third, if no Junior Lien Obligations are outstanding, to the owner of the subject property, such other person as may be entitled thereto or as a court of competent jurisdiction may otherwise direct. If the Junior Lien Representative or any Junior Lien Secured Party shall, at any time prior to the Discharge of First Lien Obligations, receive any proceeds of any such insurance policy or any such award in contravention of this Agreement, such proceeds shall be segregated and held in trust for the benefit of the First Lien Representative and it shall forthwith pay such proceeds over to the First Lien Representative in accordance with the terms of Section 4.2 .
5.3. Amendments to Junior Lien Security Documents .
(a) So long as the Discharge of First Lien Obligations has not occurred, without the prior written consent of the First Lien Representative, no Junior Lien Security Document may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification, or the terms of any new Junior Lien Security Document, would be prohibited by or inconsistent with any of the terms of this Agreement. The Junior Lien Representative agrees that each applicable Junior Lien Security Document shall include the following language (or language to similar effect approved by the First Lien Representative):
Notwithstanding anything herein to the contrary, the liens and security interests granted to [the Junior Lien Representative] pursuant to this Agreement and the exercise of any right or remedy by [the Junior Lien Representative] hereunder are subject to the limitations and provisions of the Junior Priority Intercreditor Agreement, dated as of [ ] [ ], 20[ ] (as amended, restated, supplemented or otherwise modified from time to time, the Intercreditor Agreement ) among Wilmington Trust, National Association, as Representative for the First Lien Secured Parties, and [ ], as Representative for the Junior Lien Secured Parties, and certain other persons party or that may become party thereto from time to time, and consented to by J. C. Penney Corporation, Inc. and the other Grantors identified therein. In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Agreement, the terms of the Intercreditor Agreement shall govern and control.
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In addition, the Junior Lien Representative, on behalf of the Junior Lien Secured Parties, agrees that each mortgage covering any Collateral shall contain such other language as the First Lien Representative may reasonably request to reflect the subordination of such mortgage to the First Lien Document covering such Collateral.
(b) In the event that the First Lien Representative or any First Lien Secured Party enters into any amendment, waiver or consent in respect of or replaces any of the First Lien Security Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First Lien Security Document or changing in any manner the rights of the First Lien Representative, the First Lien Secured Parties, the Company or any other Grantor thereunder (including the release of any Liens in Collateral in accordance with Section 5.1 ), then such amendment, waiver or consent shall apply automatically to any comparable provision of each Comparable Junior Lien Security Document without the consent of the Junior Lien Representative or any Junior Lien Secured Party and without any action by the Junior Lien Representative, the Company or any other Grantor; provided that such amendment, waiver or consent does not materially adversely affect the rights of the Junior Lien Secured Parties or the interests of the Junior Lien Secured Parties in the Collateral in a manner materially different from that affecting the rights of the First Lien Secured Parties thereunder or therein. The First Lien Representative shall give written notice of such amendment, waiver or consent (along with a copy thereof) to the Junior Lien Representative; provided that the failure to give such notice shall not affect the effectiveness of such amendment with respect to the provisions of any Junior Lien Security Document as set forth in this Section 5.3(b) .
5.4. Rights as Unsecured Creditors . The Junior Lien Representative and the Junior Lien Secured Parties may exercise rights and remedies as an unsecured creditor against the Company or any Subsidiary that has guaranteed the Junior Lien Obligations in accordance with the terms of the applicable Junior Lien Documents and applicable law and to the extent not inconsistent with, or prohibited by, the terms of this Agreement. Nothing in this Agreement shall prohibit the receipt by the Junior Lien Representative or any Junior Lien Secured Party of required payments of interest and principal so long as such receipt is not the direct or indirect result of the exercise by the Junior Lien Representative or any Junior Lien Secured Party of rights or remedies as a secured creditor in respect of Collateral or other collateral or enforcement in contravention of this Agreement of any Lien in respect of Junior Lien Obligations held by any of them or in any Insolvency or Liquidation Proceeding. In the event the Junior Lien Representative or any Junior Lien Secured Party becomes a judgment lien creditor or other secured creditor in respect of Collateral, First Lien Collateral or other collateral as a result of its enforcement of its rights as an unsecured creditor in respect of Junior Lien Obligations or otherwise, such judgment or other lien shall be subordinated to the Liens securing the First Lien Obligations on the same basis as the other Liens securing the Junior Lien Obligations are so subordinated to the First Priority Liens securing First Lien Obligations under this Agreement. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the First Lien Representative or the First Lien Secured Parties may have with respect to the First Lien Collateral.
5.5. First Lien Representative as Gratuitous Bailee for Perfection .
(a) The First Lien Representative agrees to hold the Pledged Collateral that is part of the Collateral in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee for the benefit and on behalf of the Junior Lien Representative and each Junior Lien Secured Party and any assignee thereof solely for the purpose of perfecting the security interest granted in such Pledged Collateral pursuant to the Junior Lien Security Documents, subject to the terms and conditions of this Section 5.5 .
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(b) The Junior Lien Representative, on behalf of the Junior Lien Secured Parties, hereby appoints the First Lien Representative to act as its collateral agent under each control agreement to which it is a party for the purpose of perfecting the security interest granted in the deposit accounts, securities accounts and other accounts subject to such control agreements that constitute Collateral (collectively, the Controlled Accounts ) pursuant to the Junior Lien Security Documents, and the First Lien Representative accepts such appointment. In furtherance of the foregoing, each Grantor hereby grants a security interest in the Pledged Collateral consisting of Controlled Accounts to the First Lien Representative for the benefit of the Junior Lien Representative and the Junior Lien Secured Parties.
(c) The First Lien Representative shall have no obligation whatsoever to the Junior Lien Representative or any Junior Lien Secured Party to assure that the Pledged Collateral is genuine or owned by the Grantors or to protect or preserve rights or benefits of any Person or any rights pertaining to the Collateral except as expressly set forth in this Section 5.5 . The duties or responsibilities of the First Lien Representative under this Section 5.5 shall be limited solely to holding the Pledged Collateral as gratuitous bailee for the benefit and on behalf of the Junior Lien Representative and each Junior Lien Secured Party for purposes of perfecting the Liens held by the Junior Lien Secured Parties.
(d) The First Lien Representative shall not have by reason of the Junior Lien Documents or this Agreement or any other document a fiduciary relationship in respect of the Junior Lien Representative or any Junior Lien Secured Party, and each of the Junior Lien Representative and the Junior Lien Secured Parties hereby waives and releases the First Lien Representative from all claims and liabilities arising pursuant to the First Lien Representatives role under this Section 5.5 , as agent and gratuitous bailee with respect to the Collateral.
(e) Upon the Discharge of First Lien Obligations, the First Lien Representative shall (x) deliver to the Junior Lien Representative written notice of the occurrence thereof (which notice may state that such Discharge of First Lien Obligations is subject to the provisions of this Agreement, including, without limitation, Sections 5.1(a)(y) , 5.7 and 6.3 hereof) (it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of the Discharge of First Lien Obligations or required to take any actions based on such Discharge of First Lien Obligations) and (y) deliver to the Junior Lien Representative, to the extent that it is legally permitted to do so, the remaining Pledged Collateral (if any) together with any endorsements reasonably requested by the Junior Lien Representative (or otherwise allow the Junior Lien Representative to obtain control of such Pledged Collateral) or as a court of competent jurisdiction may otherwise direct. The Company and each Grantor shall take such further action as is required to effectuate the transfer contemplated hereby and shall indemnify the First Lien Representative for loss or damage suffered by the First Lien Representative as a result of such transfer except for loss or damage suffered by the First Lien Representative as a result of its own willful misconduct, gross negligence or bad faith. The First Lien Representative has no obligation to follow instructions from the Junior Lien Representative or any Junior Lien Secured Party in contravention of this Agreement.
(f) Neither the First Lien Representative nor any of the First Lien Secured Parties shall be required to marshal any present or future collateral security for the Companys or its Subsidiaries obligations to the First Lien Representative or the First Lien Secured Parties under the First Lien Documents or any assurance of payment in respect thereof or to resort to such collateral security or other assurances of payment in any particular order, and all of their rights in respect of such collateral security or any assurance of payment in respect thereof shall be cumulative and in addition to all other rights, however existing or arising.
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5.6. [ Reserved ].
5.7. No Release if Event of Reinstatement . If at any time in connection with or after the Discharge of First Lien Obligations the Company either in connection therewith or thereafter enters into any Refinancing of any First Lien Document evidencing a First Lien Obligation, then such Discharge of First Lien Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement, the First Lien Documents and the Junior Lien Documents, and the obligations under such Refinancing shall automatically be treated as First Lien Obligations for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, and the related documents shall be treated as First Lien Documents for all purposes of this Agreement. Upon receipt of a notice stating that the Company has entered into a new First Lien Document, the Junior Lien Representative shall promptly (at the expense of the Company) (a) enter into such documents and agreements (including amendments or supplements to this Agreement) as the Company or the First Lien Representative shall reasonably request in order to confirm to the First Lien Representative the rights contemplated hereby, in each case consistent in all material respects with the terms of this Agreement and (b) deliver to the First Lien Representative the Pledged Collateral together with any necessary endorsements (or otherwise allow the First Lien Representative to obtain possession or control of such Pledged Collateral).
SECTION 6. Insolvency or Liquidation Proceedings .
6.1. Financing and Sale Issues . The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if the First Lien Representative or any First Lien Secured Party shall desire to permit (or not object to) the use of cash collateral and/or to permit the Company or any other Grantor to obtain financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in any Bankruptcy Law ( DIP Financing ), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Lien Obligations, then the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that it will raise no objection to, and will not support any objection to, and will not otherwise contest such use of cash collateral or DIP Financing and will not request adequate protection or any other relief in connection therewith (except to the extent permitted by Section 6.2 ) and, to the extent the Liens securing the First Lien Obligations are subordinated to or pari passu with such DIP Financing, will subordinate its Liens in the Collateral and any other collateral to such DIP Financing (and all Obligations relating thereto), any adequate protection liens granted to the First Lien Secured Parties, and any carve out for professional and United States Trustee fees agreed to by the First Lien Representative, on the same basis as the other Liens securing the Junior Lien Obligations are so subordinated to the First Priority Liens securing the applicable First Lien Obligations;
(b) none of them will object to, or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Obligations made by the First Lien Representative or any First Lien Secured Party;
(c) none of them will object to, or otherwise contest (or support any other Person contesting), any order relating to a sale of assets of the Company or any Grantor for which the First Lien Representative has consented that provides, to the extent that sale is to be free and clear of Liens, that the Liens securing the First Lien Obligations and the Junior Lien Obligations will attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
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(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representatives or such First Lien Secured Partys claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereof.
6.2. Adequate Protection . The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees in an Insolvency or Liquidation Proceeding that none of them shall object to or contest (a) any request by the First Lien Representative or any First Lien Secured Party for adequate protection in any form, (b) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action, or proceeding based on the First Lien Representatives or any First Lien Secured Partys claiming a lack of adequate protection, or (c) the allowance and payment of interest, fees, expenses, or other amounts of the First Lien Representative or any First Lien Secured Party as adequate protection or otherwise under Section 506(b) or (c) of the Bankruptcy Code or any similar provision of any Bankruptcy Law. If the First Lien Secured Parties (or any subset thereof) are granted adequate protection in the form of a Lien on additional or replacement collateral and/or a superpriority administrative expense claim in connection with any DIP Financing and/or use of cash collateral under Section 363 or 364 of the Bankruptcy Code or any similar provision of any Bankruptcy Law, then the Junior Lien Representative, for itself and on behalf of the Junior Lien Secured Parties, may seek or request adequate protection in the form of (as applicable) a Lien on such additional or replacement collateral and/or a superpriority administrative expense claim, which Lien and/or superpriority administrative expense claim (as applicable) will be subordinated to the Liens securing or granted as adequate protection
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for, and claims with respect to, the First Lien Obligations and such DIP Financing (and all obligations relating thereto) and/or use of cash collateral on the same basis as the other Liens securing and claims with respect to the Junior Lien Obligations are so subordinated to the Liens securing and claims with respect to the First Lien Obligations under this Agreement and (ii) in the event any Junior Lien Secured Party seeks or requests adequate protection, and such adequate protection is granted in the form of (as applicable) a Lien on additional or replacement collateral and/or a superpriority administrative expense claim, then the Junior Lien Secured Parties agree that the First Lien Representative shall also be granted (as applicable) a senior Lien on such additional or replacement collateral as security and adequate protection for the First Lien Obligations and/or a senior superpriority administrative expense claim, and that any Lien on such additional or replacement Collateral securing or providing adequate protection for the Junior Lien Obligations and/or superpriority administrative expense claim shall be subordinated to the Liens on such Collateral securing and claims with respect to the First Lien Obligations and any such DIP Financing (and all obligations relating thereto) and any other Liens and claims granted to the First Lien Secured Parties as adequate protection on the same basis as the other Liens securing and claims with respect to the Junior Lien Obligations are so subordinated to such Liens securing and claims with respect to First Lien Obligations under this Agreement. To the extent that the First Lien Secured Parties are granted adequate protection in the form of payments in the amount of current post-petition fees and expenses and/or other cash payments, then the Junior Lien Secured Parties shall not be prohibited from seeking adequate protection in the form of payments in the amount of current post-petition incurred fees and expenses, and/or other cash payments (as applicable), subject to the right of the First Lien Secured Parties to object to the allowance and reasonableness of the amounts of fees and expenses or other cash payments so sought by the Junior Lien Secured Parties.
6.3. Preference Issues . If any First Lien Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of the Company or any other Grantor (or any trustee, receiver or similar person therefor) or to or for the benefit of its creditors, because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reason, any amount (a Recovery ), whether received as proceeds of security, enforcement of any right of setoff, recoupment or otherwise, then as among the parties hereto, the First Lien Obligations shall be deemed to be reinstated to the extent of such Recovery and to be outstanding as if such payment had not occurred, and such First Lien Secured Party shall be entitled to a future Discharge of First Lien Obligations with respect to all such recovered amounts and shall have all rights hereunder with respect thereto. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. Any Collateral or First Lien Collateral or proceeds thereof received by any Junior Lien Secured Party prior to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations and subject to the provisions of Section 4.2 and the other terms of this Agreement. The First Lien Representative shall use commercially reasonable efforts to give written notice to the Junior Lien Representative of the occurrence of any such Recovery ( provided that the failure to give such notice shall not affect the First Lien Representatives rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of this Agreement, whether by preference or otherwise, it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the provisions of Section 4.1 and the other terms of this Agreement.
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6.4. Application . The parties hereto agree that this Agreement constitutes a subordinated agreement under Section 510(a) of the Bankruptcy Code or any similar provision under any Bankruptcy Law, and this Agreement shall be applicable prior to and after the commencement of any Insolvency or Liquidation Proceeding. All references herein to any Grantor shall apply to any trustee for such Person and such Person as debtor in possession. The relative rights as to the Collateral and other collateral and proceeds thereof shall continue after the filing thereof on the same basis as prior to the date of the petition, subject to any court order approving the financing of, or use of cash collateral by, any Grantor.
6.5. Reorganization Securities . If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed, pursuant to a Plan of Reorganization or similar dispositive restructuring plan, both on account of First Lien Obligations and on account of Junior Lien Obligations, then, to the extent the debt obligations distributed on account of the First Lien Obligations and on account of the Junior Lien Obligations are secured by Liens upon the same property, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the Liens securing such debt obligations.
6.6. Post-Petition Interest .
(a) The Junior Lien Representative, on behalf of the Junior Lien Secured Parties, hereby acknowledges and agrees that neither the Junior Lien Representative nor any Junior Lien Secured Party shall oppose or seek to challenge any claim by the First Lien Representative or any First Lien Secured Party for allowance in any Insolvency or Liquidation Proceeding of First Lien Obligations consisting of post-petition interest, fees or expenses.
(b) Neither the First Lien Representative nor any First Lien Secured Party shall oppose or seek to challenge any claim by the Junior Lien Representative or any Junior Lien Secured Party for allowance in any Insolvency or Liquidation Proceeding of Junior Lien Obligations consisting of post-petition interest, fees or expenses to the extent of the value of the Liens in favor of the Junior Lien Secured Parties on the Collateral (after taking into account the Liens in favor of the First Lien Secured Parties).
6.7. Nature of Obligations; Separate Classification . The Junior Lien Representative, on behalf of the Junior Lien Secured Parties, hereby acknowledges and agrees that (i) the Junior Lien Secured Parties claims against the Company and/or any Grantor in respect of the Collateral constitute junior claims separate and apart (and of a different class) from the senior claims of the First Lien Secured Parties against the Company and the Grantor in respect of the Collateral and (ii) the First Lien Obligations include all interest that accrues after the commencement of any Insolvency or Liquidation Proceeding of the Company or any Grantor at the rate provided for in the applicable First Lien Documents governing the same, whether or not a claim for post-petition interest is allowed or allowable in any such Insolvency or Liquidation Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the claims against the Company or any Grantor in respect of the Collateral constitute only one secured claim (rather than separate classes of senior and junior claims) under a Plan of Reorganization or other dispositive restructuring plan, then the Junior Lien Representative, for itself and on behalf of the Junior Lien Secured Parties, hereby acknowledge and agree that all distributions pursuant to Section 4.1 or otherwise shall be made as if there were separate classes of senior and junior secured claims against the Company and the Grantors in respect of the Collateral (with the effect
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being that, to the extent that the aggregate value of the Collateral is sufficient (for this purpose ignoring all claims held by the Junior Lien Representative on behalf of the Junior Lien Secured Parties), the First Lien Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of principal, fees and expenses, pre-petition interest and other claims, all amounts owing in respect of post-petition interest at the relevant contract rate (even though such claims may or may not be allowed or allowable in whole or in part in the respective Insolvency or Liquidation Proceeding) before any distribution is made in respect of the claims held by the Junior Lien Representative, for itself and on behalf of the Junior Lien Secured Parties, with the Junior Lien Representative, for itself and on behalf of the Junior Lien Secured Parties, hereby acknowledging and agreeing to turn over to the holders of the First Lien Obligations all amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence even if such turnover of amounts has the effect of reducing the amount of the claim of the Junior Lien Secured Parties).
6.8. Proofs of Claim . Subject to the limitations set forth in this Agreement, the First Lien Representative may file proofs of claim and other pleadings and motions with respect to any First Lien Obligations, any Junior Lien Obligations or the Collateral in any Insolvency or Liquidation Proceeding. If a proper proof of claim has not been filed in the form required in such Insolvency or Liquidation Proceeding at least ten (10) days prior to the expiration of the time for filing thereof, the First Lien Representative shall have the right (but not the duty) to file an appropriate claim for and on behalf of the Junior Lien Secured Parties with respect to any of the Junior Lien Obligations or any of the Collateral. In furtherance of the foregoing, the Junior Lien Representative hereby appoints the First Lien Representative as its attorneys-in-fact, with full authority in the place and stead of the Junior Lien Representative and full power of substitution and in the name of the Junior Lien Secured Parties or otherwise, to execute and deliver any document or instrument that the First Lien Representative is required or permitted to deliver pursuant to this Section 6.8 , such appointment being coupled with an interest and irrevocable.
6.9. Plan of Reorganization . No Junior Lien Secured Party (whether in the capacity as a secured or unsecured creditor) may support or vote in favor of any Non-Conforming Plan of Reorganization (and each shall be deemed to have voted to reject any such Non-Conforming Plan of Reorganization). Without limiting the generality of any provisions of this Agreement, any vote to accept, and any other act to support the confirmation or approval of, any Non-Conforming Plan of Reorganization shall be inconsistent with and accordingly, a violation of the terms of this Agreement, and the First Lien Representative shall be entitled to have any such vote to accept a Non-Conforming Plan of Reorganization dismissed and any such support of any Non-Conforming Plan of Reorganization withdrawn. Without limiting the generality of the foregoing, no Junior Lien Secured Party (whether in the capacity as a secured or unsecured creditor) may support or vote in favor of any Plan of Reorganization unless such Plan of Reorganization (a) pays off, in cash in full, all First Lien Obligations or (b) is accepted by the class of holders of First Lien Obligations voting thereon in accordance with Section 1126(c) of the Bankruptcy Code.
SECTION 7. Reliance; Waivers; etc .
7.1. Reliance . The consent by the First Lien Secured Parties to the execution and delivery of the Junior Lien Documents to which the First Lien Secured Parties have consented and all loans and other extensions of credit made or deemed made on and after the date hereof by the First Lien Secured Parties to the Company or any Subsidiary shall be deemed to have been given and made in reliance upon this Agreement. The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, acknowledges that it and the Junior Lien Secured Parties have, independently and without reliance on the First Lien Representative or any First Lien Secured Parties, and based on documents and information deemed by them appropriate, made their own credit analysis and decision to enter into the applicable Junior Lien Document, this Agreement and the transactions contemplated hereby and thereby and they will continue to make their own credit decision in taking or not taking any action under the applicable Junior Lien Document or this Agreement.
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7.2. No Warranties or Liability . The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, acknowledges and agrees that neither the First Lien Representative nor any of the First Lien Secured Parties has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectibility or enforceability of any of the First Lien Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon. The First Lien Secured Parties will be entitled to manage and supervise their respective loans and extensions of credit under the First Lien Documents in accordance with law and as they, in their sole discretion, may otherwise deem appropriate, and the First Lien Secured Parties may manage their loans and extensions of credit without regard to any rights or interests that the Junior Lien Representative or any of the Junior Lien Secured Parties have in the Collateral or otherwise, except as otherwise provided in this Agreement. Neither the First Lien Representative nor any First Lien Secured Parties shall have any duty to the Junior Lien Representative or any Junior Lien Secured Party to act or refrain from acting in a manner that allows, or results in, the occurrence or continuance of an event of default or default under any agreements with the Company or any Subsidiary thereof (including the Junior Lien Documents), regardless of any knowledge thereof that they may have or be charged with. The First Lien Representative, the First Lien Secured Parties, the Junior Lien Representative and the Junior Lien Secured Parties have not otherwise made to each other, nor do they hereby make to each other, any warranties, express or implied, nor do they assume any liability to each other with respect to (a) the enforceability, validity, value or collectibility of any of the Junior Lien Obligations, the First Lien Obligations or any guarantee or security which may have been granted to any of them in connection therewith, (b) the Companys title to or right to transfer any of the Collateral or (c) any other matter except as expressly set forth in this Agreement.
7.3. Obligations Unconditional . All rights, interests, agreements and obligations of the First Lien Representative and the First Lien Secured Parties, and the Junior Lien Representative and the Junior Lien Secured Parties, respectively, hereunder shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any First Lien Documents or any Junior Lien Documents; or any lack of or other matter relating to the validity, enforceability, perfection or priority of any lien creating or existing or purported to be creating or existing thereunder;
(b) any change in the time, manner or place of payment of, or in any other terms of, all or any of the First Lien Obligations or Junior Lien Obligations, or any amendment or waiver or other modification, including any increase in the amount thereof, whether by course of conduct or otherwise, of the terms of any First Lien Document or of the terms of any Junior Lien Document;
(c) any exchange of any security interest in any Collateral or any other collateral, or any amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of all or any of the First Lien Obligations or Junior Lien Obligations or any guarantee thereof;
(d) the commencement of any Insolvency or Liquidation Proceeding in respect of the Company or any other Grantor; or
(e) any other circumstances that otherwise might constitute a defense available to, or a discharge of, the Company or any other Grantor in respect of the First Lien Obligations or the Junior Lien Obligations in respect of this Agreement.
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SECTION 8. Miscellaneous .
8.1. Conflicts . Subject to Section 8.19 , in the event of any conflict between the provisions of this Agreement and the provisions of any First Lien Document or any Junior Lien Document, the provisions of this Agreement shall govern; provided, however, solely as it relates to matters between the ABL Agent and the ABL Secured Parties (as each term is defined in the ABL Intercreditor Agreement) on the one hand and the First Lien Secured Parties and the Junior Lien Secured Parties on the other hand, in the event of any conflict between the provisions of this Agreement and the provisions of the ABL Intercreditor Agreement, the provisions of the ABL Intercreditor Agreement shall govern.
8.2. Continuing Nature of This Agreement; Severability . Subject to Section 5.1(a)(y) , Section 5.7 and Section 6.3 , this Agreement shall continue to be effective until the Discharge of First Lien Obligations shall have occurred or such later time as all of the Junior Lien Obligations shall have been paid in full. This is a continuing agreement of lien subordination, and the First Lien Secured Parties may continue, at any time and without notice to the Junior Lien Representative or any Junior Lien Secured Party, to extend credit and other financial accommodations and lend monies to or for the benefit of the Company or any other Grantor constituting First Lien Obligations in reliance hereon. The terms of this Agreement shall survive, and shall continue in full force and effect, in any Insolvency or Liquidation Proceeding. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
8.3. Amendments; Waivers . No amendment, modification or waiver of any of the provisions of this Agreement by the Junior Lien Representative or the First Lien Representative shall be deemed to be made except as contemplated by the First Lien Documents and the Junior Lien Documents and then pursuant to an agreement or agreements in writing signed by or on behalf of the First Lien Representative and the Junior Lien Representative or their respective authorized agents, and consented to in writing by the Company, and each waiver, if any, shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of the parties making such waiver or the obligations of the other parties to such party in any other respect or at any other time; provided that no such agreement shall by its terms amend, modify or otherwise affect the rights or obligations of any Grantor without the Companys prior written consent. Notwithstanding anything in this Section 8.3 to the contrary, this Agreement may be amended from time to time at the request of the Company, at the Companys expense, and with the consent of First Lien Representative and the Junior Lien Representative but without the consent of any other First Lien Secured Party or Junior Lien Secured Party to (i) secure additional extensions of credit or add other parties holding First Lien Obligations or Junior Lien Obligations to the extent such indebtedness does not expressly violate the First Lien Documents or the Junior Lien Documents and (ii) in the case of such additional Junior Lien Obligations, (a) establish that the Liens on the Collateral securing such Junior Lien Obligations shall be junior and subordinate in all respects to all Liens on the Collateral securing any First Lien Obligations (at least to the same extent as the Liens on the Collateral in favor of the Junior Lien Secured Parties are junior and subordinate to the Liens on the Collateral in favor of the First Lien Secured Parties pursuant to this Agreement immediately prior to the incurrence of such additional Junior Lien Obligations) and (b) provide to the holders of such Junior Lien Obligations (or any agent or trustee thereof) the comparable rights and benefits (including any improved rights and benefits that have been consented to by the First Lien Representative) as are provided to the Junior Lien Secured Parties under this Agreement.
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8.4. Information Concerning Financial Condition of Holdings, the Company and the Subsidiaries . The First Lien Representative, the First Lien Secured Parties, the Representative and the Junior Lien Secured Parties shall each be responsible for keeping themselves informed of (a) the financial condition of Holdings, the Company and the Subsidiaries and all endorsers and/or guarantors of the First Lien Obligations or the Junior Lien Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the First Lien Obligations or the Junior Lien Obligations; provided, however, that nothing in this Agreement shall impose a duty on the First Lien Representative to keep itself informed of the financial condition of Holdings, the Company and the Subsidiaries or of other circumstances bearing upon the risk of nonpayment of the First Lien Obligations or any Junior Lien Obligations beyond that which is required pursuant to the Second Lien Documents. The First Lien Representative, the First Lien Secured Parties, the Junior Lien Representative and the Junior Lien Secured Parties shall have no duty to advise any other party hereunder of information known to it or them regarding such condition or any such circumstances or otherwise. In the event that the First Lien Representative, any First Lien Secured Party, the Junior Lien Representative or any Junior Lien Secured Party, in its or their sole discretion, undertakes at any time or from time to time to provide any such information to any other party, it or they shall be under no obligation (w) to make, and the First Lien Representative, the First Lien Secured Parties, the Junior Lien Representative and the Junior Lien Secured Parties shall not make, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of any such information so provided, (x) to provide any additional information or to provide any such information on any subsequent occasion, (y) to undertake any investigation or (z) to disclose any information that, pursuant to accepted or reasonable commercial finance practices, such party wishes to maintain confidential or is otherwise required to maintain confidential.
8.5. Subrogation . The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, hereby waives any rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of First Lien Obligations has occurred.
8.6. Application of Payments . Except as otherwise provided herein or in the ABL Intercreditor Agreement, all payments received by the First Lien Secured Parties may be applied, reversed and reapplied, in whole or in part, to such part of the First Lien Obligations by the First Lien Secured Parties in a manner consistent with the terms of the First Lien Documents, The First Lien Pari Passu Intercreditor Agreement and the ABL Intercreditor Agreement. Except as otherwise provided herein, the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, assents to any such extension or postponement of the time of payment of the First Lien Obligations or any part thereof and to any other indulgence with respect thereto, to any substitution, exchange or release of any security that may at any time secure any part of the First Lien Obligations and to the addition or release of any other Person primarily or secondarily liable therefor.
8.7. Consent to Jurisdiction; Waivers . The parties hereto consent to the jurisdiction of any state or federal court located in New York, New York, and consent that all service of process may be made by registered mail directed to such party as provided in Section 8.8 for such party. Service so made shall be deemed to be completed three days after the same shall be posted as aforesaid. The parties hereto waive any objection to any action instituted hereunder in any such court based on forum non conveniens, and any objection to the venue of any action instituted hereunder in any such court. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR ACTION OF ANY PARTY HERETO IN CONNECTION WITH THE SUBJECT MATTER HEREOF.
8.8. Notices . Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy or electronic mail, as follows:
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(i) if to a Grantor, to it c/o J. C. Penney Corporation, Inc., 6501 Legacy Drive, Mail Code 1304, Plano, TX 75024, Attention of the Treasurer (Telecopy No. (972) 431-2044), with a copy to the General Counsel;
(ii) if to the First Lien Representative, to Wilmington Trust, National Association, Global Capital Markets, 50 South Sixth Street, Suite 1290, Minneapolis, Minnesota 55402, Attention J.C. Penney Collateral Agency Administrator;
(iii) if to the Second Lien Representative, to [ ]; or
(iv) with respect to any party hereto, to such other address as may be designated by such party in a written notice to each other party hereto
Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given shall be in writing and may be personally served, telecopied, electronically mailed or sent by courier service or U.S. mail and shall be deemed to have been given when delivered in person or by courier service, upon receipt of a telecopy or electronic mail or upon receipt via U.S. mail (registered or certified, with postage prepaid and properly addressed). For the purposes hereof, the addresses of the parties hereto shall be as set forth below each partys name on the signature pages hereto, or, as to each party, at such other address as may be designated by such party in a written notice to all of the other parties.
8.9. Further Assurances . Each Grantor and the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that each of them shall take such further action and shall execute and deliver to the First Lien Representative such additional documents and instruments (in recordable form, if requested) as are necessary or that the First Lien Representative may reasonably request to effectuate the terms of and the lien priorities contemplated by this Agreement.
8.10. Governing Law . This Agreement has been delivered and accepted at and shall be deemed to have been made at New York, New York and shall be interpreted, and the rights and liabilities of the parties bound hereby determined, in accordance with the laws of the State of New York.
8.11. Binding on Successors and Assigns . This Agreement shall be binding upon the First Lien Representative, the First Lien Secured Parties, the Junior Lien Representative, the Junior Lien Secured Parties, the Company, the Grantors consenting hereto and their respective permitted successors and assigns.
8.12. Specific Performance . The First Lien Representative may demand specific performance of this Agreement. The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, hereby irrevocably waives any defense based on the adequacy of a remedy at law and any other defense that might be asserted to bar the remedy of specific performance in any action that may be brought by the First Lien Representative.
8.13. Section Titles . The section titles contained in this Agreement are and shall be without substantive meaning or content of any kind whatsoever and are not a part of this Agreement.
8.14. Counterparts . This Agreement may be executed in one or more counterparts, including by means of facsimile or pdf file thereof, each of which shall be an original and all of which shall together constitute one and the same document.
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8.15. Authorization . By its signature, each party hereto represents and warrants to the other parties hereto that the Person executing this Agreement on behalf of such party is duly authorized to execute this Agreement. The First Lien Representative represents and warrants that this Agreement is binding upon the First Lien Secured Parties. The Junior Lien Representative represents and warrants that this Agreement is binding upon the Junior Lien Secured Parties.
8.16. No Third Party Beneficiaries; Successors and Assigns . This Agreement and the rights and benefits hereof shall inure to the benefit of, and be binding upon, each of the parties hereto and their respective successors and assigns and shall inure to the benefit of each of, and be binding upon, the holders of First Lien Obligations and Junior Lien Obligations. No other Person shall have or be entitled to assert rights or benefits hereunder.
8.17. Effectiveness . This Agreement shall become effective when executed and delivered by the parties hereto. This Agreement shall be effective both before and after the commencement of any Insolvency or Liquidation Proceeding. All references to the Company or any other Grantor shall include the Company or any other Grantor as debtor and debtor-in-possession and any receiver or trustee for the Company or any other Grantor (as the case may be) in any Insolvency or Liquidation Proceeding.
8.18. [Reserved] .
8.19. Relative Rights . Notwithstanding anything in this Agreement to the contrary (except to the extent contemplated by Section 5.3(b) ), nothing in this Agreement is intended to or will (a) amend, waive or otherwise modify the provisions of any First Lien Document or any Junior Lien Document, or permit the Company or any other Grantor to take any action, or fail to take any action, to the extent such action or failure would otherwise constitute a breach of, or default under, any First Lien Document or any Junior Lien Document, (b) change the relative priorities of the First Lien Obligations or the Liens granted under the First Lien Documents on the Collateral (or any other assets) as among the First Lien Secured Parties, (c) otherwise change the relative rights of the First Lien Secured Parties in respect of the Collateral as among such First Lien Secured Parties or (d) obligate the Company or any Subsidiary to take any action, or fail to take any action, if taking or failing to take such action, as the case may be, would otherwise constitute a breach of, or default under, any First Lien Document or any Junior Lien Document.
8.20. References . Notwithstanding anything to the contrary in this Agreement, any references contained herein to any Section, clause, paragraph, definition or other provision of any First Lien Document or Junior Lien Document (including any definition contained therein) shall be deemed to be a reference to such Section, clause, paragraph, definition or other provision as in effect on the date of this Agreement; provided that any reference to any such Section, clause, paragraph or other provision shall refer to such Section, clause, paragraph or other provision of the applicable First Lien Document or Junior Lien Document, as applicable (including any definition contained therein), as amended or modified from time to time if such amendment or modification has been made in accordance with the applicable First Lien Document or Junior Lien Document.
8.21. Intercreditor Agreements . Notwithstanding anything to the contrary contained in this Agreement, each party hereto agrees that (i) the Junior Lien Secured Parties (as among themselves) may enter into intercreditor agreements (including the Junior Lien Pari Passu Intercreditor Agreement) or
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similar arrangements governing the rights, benefits and privileges as among the Junior Lien Secured Parties in respect of the Collateral, this Agreement and the other Junior Lien Documents, including as to application of proceeds of the Collateral, voting rights, control of the Collateral and waivers with respect to the Collateral and (ii) the First Lien Secured Parties (as among themselves) may enter into intercreditor agreements (including the Junior Lien Pari Passu Intercreditor Agreement) or similar arrangements governing the rights, benefits and privileges as among the First Lien Secured Parties in respect of the Collateral, this Agreement and the other First Lien Documents, including as to application of proceeds of the Collateral, voting rights, control of the Collateral and waivers with respect to the Collateral. In any event, if a respective intercreditor agreement (or similar arrangement) exists, the provisions thereof shall not be (or be construed to be) an amendment, modification or other change to this Agreement or any other First Lien Security Document or Junior Lien Security Document, and the provisions of this Agreement and the other First Lien Security Documents and Junior Lien Security Documents shall remain in full force and effect in accordance with the terms hereof and thereof (as such provisions may be amended, modified or otherwise supplemented from time to time in accordance with the terms hereof and thereof, including to give effect to any intercreditor agreement (or similar arrangement)). The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the First Lien Secured Parties on the one hand and the Junior Lien Secured Parties on the other hand. None of the Company, any Grantor or any Subsidiary of the Company or any other creditor thereof shall have any rights hereunder. Nothing in this Agreement is intended to or shall impair the obligations of the Company or any other Grantor to pay the First Lien Obligations and the Junior Lien Obligations as and when the same shall become due and payable in accordance with their terms.
8.22. Concerning the First Lien Representative . The First Lien Representative is acting in this Agreement solely in its capacity as Collateral Agent under the First Lien Pari Passu Intercreditor Agreement, and shall be entitled to all of the rights, privileges and immunities of the Collateral Agent set forth therein and in the First Lien Documents, as if such rights, privileges and immunities were set forth herein.
8.23. Additional Grantors . The Company and each other Grantor on the date of this Agreement will constitute the original Grantors party hereto. The original Grantors will cause each Person that becomes a Grantor after the date hereof to contemporaneously become a party hereto (as a Grantor) by executing and delivering a Grantor Joinder Agreement to each Representative. The parties hereto agree that, notwithstanding any failure to take the actions required by the immediately preceding sentence, each Person that becomes a Grantor at any time (and any security granted by any such Person) will be subject to the provisions hereof as fully as if it constituted a Grantor party hereto and had complied with the requirements of the immediately preceding sentence.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as Collateral Agent, as First Lien Representative | ||
By: |
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Name: Title: |
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[ ], as Junior Lien Representative | ||
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Name: Title: Address: |
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CONSENT OF COMPANY AND GRANTORS-
Dated: [ ] [ ], 20[ ]
Reference is made to the Junior Priority Intercreditor Agreement dated as of the date hereof among WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as Collateral Agent, as Representative for the First Lien Secured Parties, and [ ], as Representative for the Junior Lien Secured Parties, as the same may be amended, restated, supplemented, waived, or otherwise modified from time to time (the Intercreditor Agreement ). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Intercreditor Agreement.
Each of the undersigned Grantors has read the foregoing Intercreditor Agreement and consents thereto. Each of the undersigned Grantors agrees not to take any action that would be contrary to the express provisions of the foregoing Intercreditor Agreement, agrees to abide by the requirements expressly applicable to it under the foregoing Intercreditor Agreement and agrees that, except as otherwise provided therein, no First Lien Secured Party or Junior Lien Secured Party shall have any liability to any Grantor for acting in accordance with the provisions of the foregoing Intercreditor Agreement, the First Lien Documents or the Junior Lien Documents. Each Grantor understands that the foregoing Intercreditor Agreement is for the sole benefit of the First Lien Secured Parties and the Junior Lien Secured Parties and their respective successors and assigns, and that such Grantor is not an intended beneficiary or third party beneficiary thereof except to the extent otherwise expressly provided therein.
Without limitation to the foregoing, each Grantor agrees to take such further action and to execute and deliver such additional documents and instruments (in recordable form, if requested) as the First Lien Representative or the Junior Lien Representative (or any of their respective agents or representatives) may reasonably request to effectuate the terms of and the lien priorities contemplated by the Intercreditor Agreement.
This Consent shall be governed and construed in accordance with the laws of the State of New York. Notices delivered to any Grantor pursuant to this Consent shall be delivered in accordance with the notice provisions set forth in the Term Loan Agreement.
[Signature page follows]
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IN WITNESS HEREOF, this Consent is hereby executed by each of the Grantors as of the date first written above.
J. C. PENNEY CORPORATION, INC. | ||
By: |
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Name: Title: |
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J.C.PENNEY COMPANY, INC. | ||
By: |
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Name: Title: |
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[OTHER GRANTORS] | ||
By: |
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Name: Title: |
Annex I
[FORM OF] GRANTOR JOINDER AGREEMENT NO. [_] dated as of [ ], 201[ ] (the Grantor Joinder Agreement ) to the JUNIOR PRIORITY INTERCREDITOR AGREEMENT dated as of [ ], 20[ ] (the Intercreditor Agreement ), among WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as Collateral Agent, as Representative for the First Lien Secured Parties, and [ ], as Representative for the Junior Lien Secured Parties, each other Representative from time to time party thereto, and consented to by J.C. PENNEY CORPORATION, INC. (the Company ) and each of the other Grantors party thereto.
A. Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Intercreditor Agreement.
B. [ ], a Subsidiary of the Company (the Additional Grantor ), has granted a Lien on all or a portion of its assets to secure [First] [Junior] Lien Obligations and such Additional Grantor is not a party to the Intercreditor Agreement.
C. The Additional Grantor wishes to become a party to the Intercreditor Agreement and to acquire and undertake the rights and obligations of a Grantor thereunder. The Additional Grantor is entering into this Grantor Joinder Agreement in accordance with the provisions of the Intercreditor Agreement in order to become a Grantor thereunder.
Accordingly, the Additional Grantor agrees as follows, for the benefit of the Representatives, the Company and each other party to the Intercreditor Agreement:
Section 1. Accession to the Intercreditor Agreement . The Additional Grantor (a) hereby accedes and becomes a party to the Intercreditor Agreement as a Grantor with the same force and effect as if originally named therein as a Grantor, (b) agrees to all the terms and provisions of the Intercreditor Agreement and (c) shall have all the rights and obligations of a Grantor under the Intercreditor Agreement.
Section 2. Representations, Warranties and Acknowledgment of the Additional Grantor . The Additional Grantor represents and warrants to each Representative, the First Lien Secured Parties and the Junior Lien Secured Parties that this Grantor Joinder Agreement has been duly authorized, executed and delivered by such Additional Grantor and constitutes the legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
Section 3. Counterparts . This Grantor Joinder Agreement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Grantor Joinder Agreement shall become effective when each other Representative shall have received a counterpart of this Grantor Joinder Agreement that bears the signature of the Additional Grantor. Delivery of an executed counterpart of a signature page to this Grantor Joinder Agreement by telecopy or electronic image scan transmission (such as a pdf file) shall be effective as delivery of a manually signed counterpart of this Grantor Joinder Agreement.
Section 4. Benefit of Agreement . The agreements set forth herein or undertaken pursuant hereto are for the benefit of, and may be enforced by, any party to the Intercreditor Agreement.
Section 5. Governing Law . THIS GRANTOR JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND (TO THE EXTENT APPLICABLE) THE BANKRUPTCY CODE.
Section 6. Severability . In the event any one or more of the provisions contained in this Grantor Joinder Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
Section 7. Notices . All communications and notices hereunder shall be in writing and given as provided in Section 8.8 of the Intercreditor Agreement.
Section 8. The Additional Grantor agrees to reimburse each Representative for its reasonable out-of-pocket expenses in connection with this Grantor Joinder Agreement, including the reasonable fees, other charges and disbursements of counsel for each Representative.
[ Signature Pages Follow ]
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IN WITNESS WHEREOF, the Additional Grantor has duly executed this Grantor Joinder Agreement to the Intercreditor Agreement as of the day and year first above written.
[NAME OF SUBSIDIARY] | ||
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Title: |
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Acknowledged by: | ||
[EACH REPRESENTATIVE], as Representative with respect to [the [ ] Agreement] |
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Title: |
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EXHIBIT K TO
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
INCUMBENCY CERTIFICATE
Reference is made to the Amended and Restated Credit and Guaranty Agreement, dated as of June 23, 2016, the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among J. C. PENNEY CORPORATION, INC. , a Delaware corporation ( Borrower ), J. C. PENNEY COMPANY, INC. , a Delaware corporation, certain Subsidiaries of Borrower, as Guarantors, the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. ( JPMorgan ), as Administrative Agent, and the other financial institutions party thereto.
The following persons are now duly elected and qualified officers of Borrower, each holding the respective office or offices indicated next to his or her name below, and the signature set forth opposite his or her name below is the true and genuine signature of such officer, and such officer is duly authorized to execute and deliver, on behalf of Borrower, the Funding Notice:
Name | Office | Signature | ||
[Remainder of page intentionally left blank]
EXHIBIT K-1
IN WITNESS WHEREOF , I have caused this Incumbency Certificate to be duly executed and delivered as of the date and at the place first written above.
By: | ||
Name: |
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Title: Secretary |
EXHIBIT K-2
EXHIBIT 10.2
EXECUTION VERSION
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
dated as of June 23, 2016
among
J. C. PENNEY CORPORATION, INC.,
J. C. PENNEY COMPANY, INC.,
EACH OF THE OTHER GRANTORS PARTY HERETO
and
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Collateral Agent
TABLE OF CONTENTS
PAGE | ||||||
SECTION 1. DEFINITIONS; GRANT OF SECURITY. |
2 | |||||
1.1 |
General Definitions |
2 | ||||
1.2 |
Definitions; Interpretation |
8 | ||||
SECTION 2. GRANT OF SECURITY. |
8 | |||||
2.1 |
Grant of Security |
8 | ||||
2.2 |
Certain Limited Exclusions |
9 | ||||
SECTION 3. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE. |
10 | |||||
3.1 |
Security for Obligations |
10 | ||||
3.2 |
Continuing Liability Under Collateral |
10 | ||||
SECTION 4. CERTAIN PERFECTION REQUIREMENTS |
11 | |||||
4.1 |
Delivery Requirements |
11 | ||||
4.2 |
Control Requirements |
11 | ||||
4.3 |
Intellectual Property Recording Requirements |
11 | ||||
4.4 |
Other Actions |
12 | ||||
4.5 |
Timing and Notice |
12 | ||||
SECTION 5. REPRESENTATIONS AND WARRANTIES. |
13 | |||||
5.1 |
[Reserved.] |
13 | ||||
5.2 |
Collateral Identification, Special Collateral |
13 | ||||
5.3 |
Ownership of Collateral and Absence of Other Liens |
13 | ||||
5.4 |
Status of Security Interest |
13 | ||||
5.5 |
Goods |
14 | ||||
5.6 |
Pledged Equity Interests, Investment Related Property |
14 | ||||
5.7 |
Intellectual Property |
15 | ||||
SECTION 6. COVENANTS AND AGREEMENTS. |
16 | |||||
6.1 |
Grantor Information and Status |
16 | ||||
6.2 |
Commercial Tort Claims |
16 | ||||
6.3 |
Ownership of Collateral and Absence of Other Liens |
16 | ||||
6.4 |
Status of Security Interest |
17 | ||||
6.5 |
Goods and Receivables |
17 | ||||
6.6 |
Pledged Equity Interests, Investment Related Property |
17 | ||||
6.7 |
Intellectual Property |
18 | ||||
6.8 |
Insurance |
19 | ||||
SECTION 7. FURTHER ASSURANCES; ADDITIONAL GRANTORS. |
19 | |||||
7.1 |
Further Assurances |
19 | ||||
7.2 |
Additional Grantors |
20 |
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SECTION 8. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT. |
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8.1 |
Power of Attorney |
20 | ||||
8.2 |
No Duty on the Part of Collateral Agent or Secured Parties |
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8.3 |
Appointment Pursuant to the Pari Passu Intercreditor Agreement |
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SECTION 9. REMEDIES. |
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9.1 |
Generally |
22 | ||||
9.2 |
Application of Proceeds |
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9.3 |
Sales on Credit |
24 | ||||
9.4 |
Investment Related Property |
24 | ||||
9.5 |
Grant of Intellectual Property License |
24 | ||||
9.6 |
Intellectual Property |
25 | ||||
9.7 |
Deposit Accounts |
26 | ||||
SECTION 10. COLLATERAL AGENT. |
26 | |||||
SECTION 11. CONTINUING SECURITY INTEREST. |
27 | |||||
SECTION 12. STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM. |
27 | |||||
SECTION 13. MISCELLANEOUS. |
28 |
SCHEDULE 5.2 |
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COLLATERAL IDENTIFICATION |
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SCHEDULE 5.4 |
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FINANCING STATEMENTS |
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SCHEDULE 5.5 |
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LOCATION OF EQUIPMENT AND INVENTORY |
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EXHIBIT A |
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PLEDGE SUPPLEMENT |
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EXHIBIT B |
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AMENDED AND RESTATED TRADEMARK SECURITY AGREEMENT |
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EXHIBIT C |
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PATENT SECURITY AGREEMENT |
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EXHIBIT D |
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AMENDED AND RESTATED COPYRIGHT SECURITY AGREEMENT |
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This AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT , dated as of June 23, 2016 (as it may be amended, restated, supplemented or otherwise modified from time to time, this Agreement ), between J. C. PENNEY COMPANY, INC. , a Delaware corporation ( Holdings ), J. C. PENNEY CORPORATION, INC. , a Delaware corporation (the Company or the Borrower ), and each of the subsidiaries of Holdings or the Borrower party hereto from time to time, whether as an original signatory hereto or as an Additional Grantor (as herein defined) (other than the Collateral Agent, each, a Grantor ), and WILMINGTON TRUST, NATIONAL ASSOCIATION , as collateral agent for the Term Loan/Notes Secured Parties (as herein defined) (in such capacity as collateral agent, together with its successors and permitted assigns, the Collateral Agent ).
RECITALS:
WHEREAS , each of the Grantors party hereto previously entered into that certain Pledge and Security Agreement, dated as of May 22, 2013 (the Existing Security Agreement ), by and among each of the Grantors party thereto and Goldman Sachs Bank USA, as collateral agent (the Former Agent );
WHEREAS , the Existing Security Agreement secures the Grantors obligations under that certain Credit and Guaranty Agreement, dated as of May 22, 2013, among the Borrower, Holdings, as a guarantor, certain subsidiaries of Borrower, as guarantors, the lenders party thereto from time to time, Former Agent and the other parties thereto (as amended, restated, supplemented or otherwise modified prior to the date hereof, the Original Term Loan Credit Agreement );
WHEREAS , the Original Term Loan Credit Agreement has been amended and restated by that certain Amended and Restated Credit and Guaranty Agreement, dated as of the date hereof (the ARCA ; the Original Term Loan Credit Agreement, as amended and restated by the ARCA, as the same may be further amended, restated, supplemented or otherwise modified from time to time, the Term Loan Credit Agreement ), by and among the Borrower, the guarantors party thereto, the lenders party thereto from time to time, JPMorgan Chase Bank, N.A., a national banking association ( JPM ), as administrative agent (in such capacity, the Term Loan Administrative Agent ), and the other parties thereto;
WHEREAS , pursuant to the Resignation and Successor Agent Agreement, dated as of the date hereof, the Former Agent has assigned all of its rights and obligations under the Security Documents to the Collateral Agent;
WHEREAS , pursuant to the terms, conditions and provisions of (a) that certain Indenture, dated as of June 23, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the Indenture ), among the Company, Holdings and the other guarantors party thereto and Wilmington Trust, National Association, as trustee (in such capacity, together with its successors and permitted assigns, the Trustee ), and (b) that certain Purchase Agreement, dated as of June 9, 2016, among the Company, Holdings, the other guarantors under the Indenture, and J.P. Morgan Securities LLC, as representative of the several parties named in Schedule I thereto, the Company issued $500,000,000 aggregate principal amount of its 5.875% Senior Secured Notes due 2023, which are guaranteed on a senior secured basis by the guarantors party thereto;
WHEREAS , in connection with the execution of this Agreement, the Collateral Agent, the Term Loan Administrative Agent and the Trustee are entering into that certain Pari Passu Intercreditor Agreement, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the Pari Passu Intercreditor Agreement );
WHEREAS , pursuant to the Term Loan Credit Agreement, the Indenture and the Pari Passu Intercreditor Agreement, the Trustee and the Term Loan Administrative Agent have appointed and
authorized the Collateral Agent to act as agent on their behalf and on behalf of the Term Loan/Notes Secured Parties represented by the Trustee and the Term Loan Administrative Agent, respectively, and the Collateral Agent has accepted such appointment; and
WHEREAS , one or more of the Grantors may incur Future Term Loan/Notes Indebtedness after the date hereof, and in connection therewith, the Authorized Representative for the holders of such Future Term Loan/Notes Indebtedness will become a party to the Pari Passu Intercreditor Agreement in order to appoint and authorize the Collateral Agent to act as agent on behalf of such Authorized Representative and on behalf of the Term Loan/Notes Secured Parties represented by such Authorized Representative;
NOW, THEREFORE , in consideration of the premises and the agreements, provisions and covenants herein contained, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, each Grantor and the Collateral Agent agree to amend and restate the Existing Security Agreement as follows:
SECTION 1. DEFINITIONS; GRANT OF SECURITY.
1.1 General Definitions . In this Agreement, the following terms shall have the following meanings:
1994 Indenture shall have the meaning set forth in the Term Loan Credit Agreement.
ABL Agent shall have the meaning set forth in the ABL Intercreditor Agreement.
ABL Credit Agreement shall have the meaning set forth in the Term Loan Credit Agreement.
ABL Intercreditor Agreement shall have the meaning set forth in the Pari Passu Intercreditor Agreement.
Additional Grantor shall have the meaning assigned in Section 7.2.
Agreement shall have the meaning set forth in the preamble.
Applicable Authorized Representative shall have the meaning set forth in the Pari Passu Intercreditor Agreement.
Authorized Representative shall have the meaning set forth in the Pari Passu Intercreditor Agreement.
Bankruptcy Code shall mean Title 11 of the United States Code entitled Bankruptcy, as now and hereafter in effect, or any successor statute.
Borrower shall have the meaning set forth in the recitals.
Collateral shall have the meaning assigned in Section 2.1 and, for the avoidance of doubt, shall exclude all Excluded Assets.
Collateral Agent shall have the meaning set forth in the preamble.
Collateral Records shall mean books, records, ledger cards, files, correspondence, customer lists, supplier lists, blueprints, technical specifications, manuals, computer software and related documentation, computer printouts, tapes, disks and other electronic storage media and related data processing software and similar items that at any time evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon.
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Collateral Support shall mean all property (real or personal) securing any Collateral and shall include any security agreement or other agreement granting a lien or security interest in such real or personal property.
Company shall have the meaning set forth in the recitals.
Control shall mean: (1) with respect to any Deposit Accounts, control within the meaning of Section 9-104 of the UCC, (2) with respect to any Securities Accounts, control within the meaning of Section 9-106 of the UCC, (3) with respect to any Uncertificated Securities, control within the meaning of Section 8-106(c) of the UCC, and (4) with respect to any Certificated Security, control within the meaning of Section 8-106(a) or (b) of the UCC.
Control Account means any Deposit Account or Securities Account that is a Control Account (as defined in the ABL Credit Agreement) or otherwise is or required to be subject to the Control of the ABL Agent.
Control Agreement shall mean an agreement, duly executed and delivered by the applicable Grantor, Collateral Agent, the ABL Agent and the depositary bank or the securities intermediary, as the case may be, with which any Deposit Account or Securities Account is maintained, in form and substance reasonably satisfactory to the Collateral Agent.
Controlled Foreign Corporation shall mean controlled foreign corporation as defined in Section 957 (or any successor statute thereto) of the Internal Revenue Code, as well as any Domestic Subsidiary, substantially all of the assets of which consist of Equity Interests of one or more Controlled Foreign Corporations.
Copyright Licenses shall mean, to the extent not constituting an Excluded Asset, any and all license agreements and covenants not to sue with respect to any Copyright (whether such Grantor is licensee or licensor thereunder) including, without limitation, each agreement required to be listed in Schedule 5.2(I) under the heading Copyright Licenses (as such schedule may be amended or supplemented from time to time).
Copyrights shall mean, to the extent not constituting an Excluded Asset, all United States and foreign copyrights and all Mask Works (as defined under 17 U.S.C. 901 of the U.S. Copyright Act), whether registered or unregistered and, with respect to any and all of the foregoing: (i) all registrations and applications therefor including, without limitation, the registrations and applications required to be listed in Schedule 5.2(I) under the heading Copyrights (as such schedule may be amended or supplemented from time to time), (ii) all extensions and renewals thereof, (iii) the right to sue or otherwise recover for any past, present and future infringement or other violation thereof, (iv) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages and proceeds of suit now or hereafter due and/or payable with respect thereto, and (v) all other rights corresponding thereto throughout the world.
Equity Interests shall mean any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing.
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Event of Default shall mean an Event of Default under, and as defined in, the Term Loan Credit Agreement, the Indenture or any Future Term Loan/Notes Agreement.
Excluded Asset shall mean any asset of any Grantor excluded from the security interest hereunder by virtue of Section 2.2 hereof but only to the extent, and for so long as, so excluded thereunder.
Future Term Loan/Notes Agreement shall have the meaning set forth in the Pari Passu Intercreditor Agreement.
Future Term Loan/Notes Indebtedness shall have the meaning set forth in the Pari Passu Intercreditor Agreement.
Future Term Loan/Notes Secured Obligations shall have the meaning set forth in the Pari Passu Intercreditor Agreement.
GE Agreement shall mean that certain Amended and Restated Consumer Credit Card Program Agreement dated November 5, 2009, by and between Borrower and GE Money Bank, as in effect on the date hereof.
Governmental Authority shall mean the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
Grantors shall have the meaning set forth in the preamble.
Indenture shall have the meaning set forth in the recitals.
Insurance shall mean (i) all insurance policies covering any or all of the Collateral (regardless of whether the Collateral Agent is the loss payee thereof) and (ii) any key man life insurance policies.
Intellectual Property shall mean, to the extent not constituting an Excluded Asset, all intellectual property, whether arising under the United States, multinational or foreign laws or otherwise, including without limitation, Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks, Trademark Licenses, Trade Secrets, and Trade Secret Licenses, and the right to sue or otherwise recover for any past, present and future infringement, dilution, misappropriation, or other violation thereof, including the right to receive all Proceeds therefrom, including without limitation license fees, royalties, income, payments, claims, damages and proceeds of suit, now or hereafter due and/or payable with respect thereto.
Intellectual Property Security Agreement shall mean each intellectual property security agreement executed and delivered by the applicable Grantors, substantially in the form set forth in Exhibit B, Exhibit C and Exhibit D, as applicable.
Internal Revenue Code shall mean the Internal Revenue Code of 1986, as amended.
Investment Accounts shall mean the Securities Accounts, Commodity Accounts and Deposit Accounts.
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Investment Related Property shall mean, to the extent not constituting an Excluded Asset: (i) all investment property (as such term is defined in Article 9 of the UCC) and (ii) all of the following (regardless of whether classified as investment property under the UCC): all Pledged Equity Interests, Pledged Debt, and certificates of deposit.
Margin Stock shall have the meaning set forth in Regulation U of the Board of Governors, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
Material Intellectual Property shall mean any Intellectual Property included in the Collateral that is material to the business of any Grantor or is otherwise of material value to any Grantor.
Organizational Documents shall mean (i) with respect to any corporation or company, its certificate, memorandum or articles of incorporation, organization or association, as amended, and its bylaws, as amended, (ii) with respect to any limited partnership, its certificate or declaration of limited partnership, as amended, and its partnership agreement, as amended, (iii) with respect to any general partnership, its partnership agreement, as amended, and (iv) with respect to any limited liability company, its articles of organization, as amended, and its operating agreement, as amended.
Pari Passu Intercreditor Agreement shall have the meaning set forth in the recitals.
Patent Licenses shall mean, to the extent not constituting an Excluded Asset, all license agreements or covenants not to sue with respect to any Patent (whether such Grantor is licensee or licensor thereunder) including, without limitation, each agreement required to be listed in Schedule 5.2(I) under the heading Patent Licenses (as such schedule may be amended or supplemented from time to time).
Patents shall mean, to the extent not constituting an Excluded Asset, all United States and foreign patents and certificates of invention, or industrial property designs, and applications for any of the foregoing, including, without limitation: (i) each patent and patent application required to be listed in Schedule 5.2(I) under the heading Patents (as such schedule may be amended or supplemented from time to time), (ii) all reissues, divisions, continuations, continuations-in-part and extensions thereof, (iii) all patentable inventions described and claimed therein, (iv) the right to sue or otherwise recover for any past, present and future infringement or other violation thereof, (v) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect thereto, and (vi) all other rights corresponding thereto throughout the world.
Permitted Liens means Liens that are permitted under Section 6.2 of the Term Loan Credit Agreement, Section 3.6 of the Indenture and the applicable section of each Future Term Loan/Notes Agreement.
Pledge Supplement shall mean any supplement to this Agreement in substantially the form of Exhibit A.
Pledged Debt shall mean, to the extent not constituting an Excluded Asset, all indebtedness for borrowed money owed to any Grantor (other than to Holdings by Borrower), whether or not evidenced by any Instrument, issued by the obligors named therein, the instruments, if any, evidencing any of the foregoing, and all interest, cash, instruments and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the foregoing.
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Pledged Equity Interests shall mean, to the extent not constituting an Excluded Asset and to the extent owned by any Grantor, all Pledged Stock, Pledged LLC Interests, Pledged Partnership Interests and any other participation or interests in any equity or profits of any business entity including, without limitation, any trust and all management rights relating to any entity whose equity interests are included as Pledged Equity Interests.
Pledged LLC Interests shall mean, to the extent not constituting an Excluded Asset, all interests owned by any Grantor in any limited liability company and each series thereof and the certificates, if any, representing such limited liability company interests and any interest owned by any Grantor on the books and records of such limited liability company or on the books and records of any securities intermediary pertaining to such interest and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such limited liability company interests and all rights as a member of the related limited liability company.
Pledged Partnership Interests shall mean, to the extent not constituting an Excluded Asset, all interests owned by any Grantor in any general partnership, limited partnership, limited liability partnership or other partnership and the certificates, if any, representing such partnership interests and any interest owned by any Grantor on the books and records of such partnership or on the books and records of any securities intermediary pertaining to such interest and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such partnership interests and all rights as a partner of the related partnership.
Pledged Stock shall mean, to the extent not constituting an Excluded Asset, all shares of capital stock owned by any Grantor (other than shares of capital stock of the Borrower owned by Holdings), and the certificates, if any, representing such shares and any interest of such Grantor in the entries on the books of the issuer of such shares or on the books of any securities intermediary pertaining to such shares, and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such shares.
Receivables shall mean, to the extent not constituting an Excluded Asset, all rights of any Grantor to payment, whether or not earned by performance, for goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services rendered or to be rendered, including, without limitation all such rights constituting or evidenced by any Account, Chattel Paper, Instrument, General Intangible or Investment Related Property.
Receivables Records shall mean (i) all original copies of all documents, instruments or other writings or electronic records or other Records evidencing the Receivables, (ii) all books, correspondence, credit or other files, Records, ledger sheets or cards, invoices, and other papers relating to Receivables, including, without limitation, all tapes, cards, computer tapes, computer discs, computer runs, record keeping systems and other papers and documents relating to the Receivables, whether in the possession or under the control of Grantor or any computer bureau or agent from time to time acting for Grantor or otherwise, (iii) all evidences of the filing of financing statements and the registration of other instruments in connection therewith, and amendments, supplements or other modifications thereto, notices to other creditors, secured parties or agents thereof, and certificates, acknowledgments, or other writings, including, without limitation, lien search reports, from filing or other registration officers, (iv) all credit information, reports and memoranda relating thereto and (v) all other written or non-written forms of information related in any way to the foregoing or any Receivable.
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Restatement Effective Date means June 23, 2016.
Stockholders Equity shall have the meaning set forth in the Term Loan Credit Agreement.
Term Loan Credit Agreement shall have the meaning set forth in the recitals.
Term Loan/Notes Documents shall have the meaning set forth in the Pari Passu Intercreditor Agreement.
Term Loan/Notes Secured Obligations shall have the meaning set forth in the Pari Passu Intercreditor Agreement.
Term Loan/Notes Secured Parties shall have the meaning set forth in the Pari Passu Intercreditor Agreement.
Trademark Licenses shall mean, to the extent not constituting an Excluded Asset, any and all license agreements or covenants not to sue with respect to any Trademark or permitting co-existence with respect to a Trademark (whether such Grantor is licensee or licensor thereunder) including, without limitation, each agreement required to be listed in Schedule 5.2(I) under the heading Trademark Licenses (as such schedule may be amended or supplemented from time to time).
Trademarks shall mean, to the extent not constituting an Excluded Asset, all United States, and foreign trademarks, trade names, trade dress, Internet domain names, service marks, certification marks, logos, and other source identifiers, whether or not registered, and with respect to any and all of the foregoing: (i) all registrations and applications therefor including, without limitation, the registrations and applications required to be listed in Schedule 5.2(I) under the heading Trademarks(as such schedule may be amended or supplemented from time to time), (ii) all extensions or renewals of any of the foregoing, (iii) all of the goodwill of the business connected with the use of and symbolized by any of the foregoing, (iv) the right to sue or otherwise recover for any past, present and future infringement, dilution or other violation of any of the foregoing, (v) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect thereto, and (vi) all other rights corresponding thereto throughout the world.
Trade Secret Licenses shall mean, to the extent not constituting an Excluded Asset, any and all license agreements or covenants not to sue with respect to any Trade Secret (whether such Grantor is licensee or licensor thereunder) including, without limitation, each agreement required to be listed in Schedule 5.2(I) under the heading Trade Secret Licenses (as such schedule may be amended or supplemented from time to time).
Trade Secrets shall mean, to the extent not constituting an Excluded Asset, all trade secrets and all other confidential or proprietary information and know-how, and with respect to any and all of the foregoing: (i) the right to sue or otherwise recover for any past, present and future misappropriation or other violation thereof, (ii) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect thereto; and (iii) all other rights corresponding thereto throughout the world.
UCC shall mean the Uniform Commercial Code as in effect from time to time in the State of New York or, when the laws of any other jurisdiction govern the perfection of, priority of, or remedies with respect to any Collateral, the Uniform Commercial Code of such jurisdiction.
United States shall mean the United States of America.
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1.2 Definitions; Interpretation .
(a) In this Agreement, the following capitalized terms shall have the meaning given to them in the UCC (and, if defined in more than one Article of the UCC, shall have the meaning given in Article 9 thereof): Account, Account Debtor, As-Extracted Collateral, Bank, Certificated Security, Chattel Paper, Commercial Tort Claims, Commodity Account, Commodity Contract, Commodity Intermediary, Consignee, Consignment, Consignor, Deposit Account, Document, Entitlement Order, Electronic Chattel Paper, Equipment, Farm Products, Fixtures, General Intangibles, Goods, Health-Care-Insurance Receivable, Instrument, Inventory, Letter of Credit Right, Manufactured Home, Money, Payment Intangible, Proceeds, Record, Securities Account, Securities Intermediary, Security Certificate, Security Entitlement, Supporting Obligations, Tangible Chattel Paper and Uncertificated Security.
(b) All other capitalized terms used herein (including the preamble and recitals hereto) and not otherwise defined herein shall have the meanings ascribed thereto in the Pari Passu Intercreditor Agreement or, if not defined therein, the Term Loan Credit Agreement or the Indenture, as context indicates. The incorporation by reference of terms defined in the Term Loan Credit Agreement or the Indenture shall survive any termination of the Term Loan Credit Agreement or Indenture, as applicable, until this Agreement is terminated as provided in Section 11 hereof. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. References herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the word include or including, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as without limitation or but not limited to or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. The terms lease and license shall include sub-lease and sub-license, as applicable. If any conflict or inconsistency exists between this Agreement (other than Section 2 hereof) and the Pari Passu Intercreditor Agreement, the Pari Passu Intercreditor Agreement shall govern. All references herein to provisions of the UCC shall include all successor provisions under any subsequent version or amendment to any Article of the UCC.
SECTION 2. GRANT OF SECURITY.
2.1 Grant of Security . Each Grantor hereby grants (and hereby confirms its prior grant of) to the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, a security interest in and continuing lien on all of such Grantors right, title and interest in, to and under all personal property and fixtures of such Grantor including, but not limited to the following, in each case whether now or hereafter existing or in which any Grantor now has or hereafter acquires an interest and wherever the same may be located (all of which being hereinafter collectively referred to as the Collateral ):
(a) Accounts;
(b) Chattel Paper;
(c) Documents;
(d) General Intangibles;
(e) Goods (including, without limitation, Inventory and Equipment);
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(f) Instruments;
(g) Insurance;
(h) Intellectual Property;
(i) Investment Related Property and Investment Accounts;
(j) Letter of Credit Rights;
(k) Money;
(l) Receivables and Receivables Records;
(m) Commercial Tort Claims now or hereafter described on Schedule 5.2;
(n) to the extent not otherwise included above, all other personal property of any kind and all Collateral Records, Collateral Support and Supporting Obligations relating to any of the foregoing; and
(o) to the extent not otherwise included above, all Proceeds, products, accessions, rents and profits of or in respect of any of the foregoing.
2.2 Certain Limited Exclusions . Notwithstanding anything herein to the contrary, in no event shall the Collateral include or the security interest granted under Section 2.1 hereof attach to (a) any lease, license, contract or agreement to which any Grantor is a party (other than contracts between or among Holdings and its subsidiaries), and any of its rights or interest thereunder, if and to the extent that a security interest is prohibited by or in violation of (i) any law, rule or regulation applicable to such Grantor or any asset or property of any Grantor (with no requirement to obtain the consent of any Governmental Authority, including without limitation, no requirement to comply with the Federal Assignment of Claims Act or any similar statute), or (ii) a term, provision or condition of any such lease, license, contract or agreement (unless such law, rule, regulation, term, provision or condition would be rendered ineffective with respect to the creation of the security interest hereunder pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity); provided however that the Collateral shall include (and such security interest shall attach) immediately at such time as the contractual or legal prohibition shall no longer be applicable and to the extent severable, shall attach immediately to any portion of such lease, license, contract or agreement not subject to the prohibitions specified in (i) or (ii) above; provided further that the exclusions referred to in clause (a) of this Section 2.2 shall not include any Proceeds of any such lease, license, contract or agreement unless such Proceeds also constitute Excluded Assets; (b) any assets the pledge of or granting a security interest in which would (i) violate any law, rule or regulation applicable to such Grantor (with no requirement to obtain the consent of any Governmental Authority) or (ii) require a consent, approval, or other authorization of a landlord or other third party, in the case of this subclause (ii) only, if such consent, approval or other authorization cannot be obtained after the use of commercially reasonable efforts by the Grantors (provided that there shall be no requirement to obtain the consent of any Governmental Authority); (c) Margin Stock and Equity Interests owned by any Grantor in any Person other than wholly-owned Subsidiaries to the extent not permitted by the terms of such Persons Organizational Documents or the terms governing any joint ventures to which such Grantor is a party; (d) any assets of any Grantor to the extent a security interest in such assets could result in material adverse tax consequences to such Grantor (other than payment of mortgage tax, transfer tax or similar taxes related to real property
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collateral); (e) the Equity Interests in (and assets of) captive insurance companies, in each case owned by any Grantor; (f) any assets subject to a Lien securing Indebtedness to finance the acquisition, construction or improvement of such assets, including capital lease obligations and any Indebtedness assumed in connection with the acquisition of such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals, refinancings and replacements of any such Indebtedness, in each case to the extent such Lien and such Indebtedness are permitted under the Term Loan/Notes Documents and to the extent a security interest in favor of the Collateral Agent on such assets is prohibited by the documentation governing such Indebtedness; (g) any of the outstanding Equity Interests of a Controlled Foreign Corporation in excess of 65% of the voting power of all classes of capital stock of such Controlled Foreign Corporation entitled to vote; (h) any intent-to-use application for registration of a trademark or service mark filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to the filing of a Statement of Use pursuant to Section 1(d) of the Lanham Act or an Amendment to Allege Use pursuant to Section 1(c) of the Lanham Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law; (i) any interest of a Grantor in any Bank Property (as defined in the GE Agreement); (j) any Equity Interests of the Borrower owned or held by Holdings or instruments evidencing Indebtedness made by the Borrower in favor of or held by Holdings; (k) (i) aircraft, aircraft engines and parts, (ii) all appurtenances, accessions, appliances, instruments, avionics, accessories or other parts related to aircraft, aircraft engines and parts and (iii) all log books, records and documents maintained with respect to the property described in clauses (i) and (ii) above; (l) (x) rolling stock and (y) motor vehicles and other assets subject to certificates of title to the extent a lien therein cannot be perfected by the filing of a UCC financing statement (or analogous procedures under applicable law in the relevant jurisdiction); (m) any Deposit Accounts specifically and exclusively used (1) for payroll, payroll taxes, workers compensation or unemployment compensation, pension benefits and other similar expenses to or for the benefit of any Grantors employees and accrued and unpaid employee compensation (including salaries, wages, benefits and expense reimbursements), (2) as zero balance deposit accounts, (3) for trust or fiduciary purposes in the ordinary course of business and (4) for all taxes required to be collected or withheld (including, without limitation, federal and state withholding taxes (including the employers share thereof), taxes owing to any governmental unit thereof, sales, use and excise taxes, customs duties, import duties and independent customs brokers charges) for which any Grantor may become liable; or (n) any tangible personal property owned by the Borrower constituting a part of any store, warehouse or distribution center located within one of the 50 states of the United States or the District of Columbia (exclusive of motor vehicles, mobile materials-handling equipment and other rolling stock, cash registers and other point of sale recording devices and related equipment, and data processing and other office equipment), if the net book value of such tangible personal property and the real property (including leasehold improvements) constituting a part of such store, warehouse or distribution center exceeds 0.25% of Stockholders Equity (as determined in accordance with the 1994 Indenture).
SECTION 3. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE.
3.1 Security for Obligations . This Agreement secures, and the Collateral is collateral security for, the prompt and complete payment or performance in full when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §362(a) (and any successor provision thereof)), of all Term Loan/Notes Secured Obligations.
3.2 Continuing Liability Under Collateral . Notwithstanding anything herein to the contrary, (i) each Grantor shall remain liable for all obligations under the Collateral to the same extent as
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if this Agreement had not been executed and nothing contained herein is intended or shall be a delegation of duties to the Collateral Agent or any other Term Loan/Notes Secured Party, (ii) each Grantor shall remain liable under each of the agreements included in the Collateral, including, without limitation, any agreements relating to Pledged Partnership Interests or Pledged LLC Interests, to perform all of the obligations undertaken by it thereunder all in accordance with and pursuant to the terms and provisions thereof to the same extent as if this Agreement had not been executed and neither the Collateral Agent nor any Term Loan/Notes Secured Party shall have any obligation or liability under any of such agreements by reason of or arising out of this Agreement or any other document related thereto nor shall the Collateral Agent nor any Term Loan/Notes Secured Party have any obligation to make any inquiry as to the nature or sufficiency of any payment received by it or have any obligation to take any action to collect or enforce any rights under any agreement included in the Collateral, including, without limitation, any agreements relating to Pledged Partnership Interests or Pledged LLC Interests, and (iii) the exercise by the Collateral Agent of any of its rights hereunder shall not release any Grantor from any of its duties or obligations under the contracts and agreements included in the Collateral.
SECTION 4. CERTAIN PERFECTION REQUIREMENTS
4.1 Delivery Requirements .
(a) Subject to Sections 4.5 and 6.4(b), with respect to any Certificated Securities included in the Collateral, each Grantor shall deliver to the Collateral Agent the Security Certificates evidencing such Certificated Securities duly indorsed by an effective indorsement (within the meaning of Section 8-107 of the UCC), or accompanied by share transfer powers or other instruments of transfer duly endorsed by such an effective endorsement, in each case, to the Collateral Agent or in blank. In addition, each Grantor shall cause any certificates evidencing any Pledged Equity Interests, including, without limitation, any Pledged Partnership Interests or Pledged LLC Interests, to be similarly delivered to the Collateral Agent regardless of whether such Pledged Equity Interests constitute Certificated Securities.
(b) Subject to Sections 4.5 and 6.4(b), with respect to any Instruments or Tangible Chattel Paper included in the Collateral, each Grantor shall deliver all such Instruments or Tangible Chattel Paper to the Collateral Agent duly indorsed in blank; provided, however , that such delivery requirement shall not apply to any Instruments or Tangible Chattel Paper having a face amount of less than $5,000,000 individually or $15,000,000 in the aggregate.
4.2 Control Requirements . Subject to Section 4.5, with respect to Deposit Accounts and Securities Accounts included in the Collateral and constituting ABL Priority Collateral, each Grantor shall use commercially reasonable efforts to enter into a Control Agreement with the Collateral Agent and each bank where such Grantor maintains or hereafter establishes any such Deposit Account or any such Securities Account, in each case that is a Control Account or, as applicable, amend the Control Agreements entered into by the Former Agent to reflect the assignment of the security interest under the Existing Security Agreement to the Collateral Agent.
4.3 Intellectual Property Recording Requirements .
(a) Subject to Sections 4.5 and 6.4(b)(iv), in the case of any Collateral (whether now owned or hereafter acquired) consisting of issued U.S. Patents and applications therefor, each Grantor shall execute and deliver to the Collateral Agent a Patent Security Agreement in substantially the form of Exhibit C hereto (or a supplement thereto) covering all such Patents in appropriate form for recordation with the U.S. Patent and Trademark Office with respect to the security interest of the Collateral Agent and arrange for filing such agreement with the United States Patent and Trademark Office.
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(b) Subject to Sections 4.5 and 6.4(b)(iv), in the case of any Collateral (whether now owned or hereafter acquired) consisting of registered U.S. Trademarks and applications therefor, each Grantor shall execute and deliver to the Collateral Agent a Trademark Security Agreement in substantially the form of Exhibit B hereto (or a supplement thereto) covering all such Trademarks in appropriate form for recordation with the U.S. Patent and Trademark Office with respect to the security interest of the Collateral Agent and arrange for filing such agreement with the United States Patent and Trademark Office.
(c) Subject to Sections 4.5 and 6.4(b)(iv), in the case of any Collateral (whether now owned or hereafter acquired) consisting of registered U.S. Copyrights and exclusive Copyright Licenses in respect of registered U.S. Copyrights for which any Grantor is the licensee and which are included in the Material Intellectual Property, each Grantor shall execute and deliver to the Collateral Agent a Copyright Security Agreement in substantially the form of Exhibit D hereto (or a supplement thereto) covering all such Copyrights and Copyright Licenses in appropriate form for recordation with the U.S. Copyright Office with respect to the security interest of the Collateral Agent and arrange for filing such agreement with the United States Copyright Office.
4.4 Other Actions . Subject to Sections 4.5 and 6.4(b), with respect to any Pledged Partnership Interests and Pledged LLC Interests included in the Collateral, if the Grantors own less than 100% of the equity interests in any issuer of such Pledged Partnership Interests or Pledged LLC Interests, upon the request of the Collateral Agent or the Applicable Authorized Representative, Grantors shall use their commercially reasonable efforts to obtain the consent of each other holder of partnership interest or limited liability company interests in such issuer to the security interest of the Collateral Agent hereunder and following an Event of Default and the exercise of remedies by the Collateral Agent in respect thereof, the transfer of such Pledged Partnership Interests and Pledged LLC Interests to the Collateral Agent or its designee, and to the substitution of the Collateral Agent or its designee as a partner or member with all the rights and powers related thereto. Each Grantor consents to the grant by each other Grantor of a Lien in all of its Investment Related Property to the Collateral Agent and without limiting the generality of the foregoing consents to the transfer of any Pledged Partnership Interest and any Pledged LLC Interest to the Collateral Agent or its designee following an Event of Default and the exercise of remedies by the Collateral Agent in respect thereof and to the substitution of the Collateral Agent or its designee as a partner in any partnership or as a member in any limited liability company with all the rights and powers related thereto.
4.5 Timing and Notice . With respect to any Collateral in existence on the Restatement Effective Date in which a security interest in favor of the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, is not perfected or delivered on the Restatement Effective Date (to the extent perfection or delivery is required under this Agreement) after the Grantors use of commercially reasonable efforts to do so, the Grantors shall comply with the requirements of Section 4 within ninety (90) days of the Restatement Effective Date (unless such date is extended with the consent of the Applicable Authorized Representative), and with respect to any Collateral hereafter owned or acquired by any Grantor, such Grantor shall comply with such requirements within forty-five (45) days of such Grantor acquiring rights therein (unless such date is extended with the consent of the Applicable Authorized Representative). Each year, at the time of delivery of annual financial statements with respect to the preceding Fiscal Year pursuant to Section 5.1(b) of the Term Loan Credit Agreement or, if the Term Loan Credit Agreement is no longer outstanding, the corresponding provisions of the Indenture or any Future Term Loan/Notes Agreement, each Grantor shall inform the Collateral Agent and the Applicable Authorized Representative of its acquisition of any Collateral for which any action is required by Section 4 hereof (including, for the avoidance of doubt, the filing of any applications for, or the issuance or registration of, any U.S. Patents, Copyrights or Trademarks).
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SECTION 5. REPRESENTATIONS AND WARRANTIES.
Each Grantor hereby represents and warrants, on the Restatement Effective Date, that:
5.1 [Reserved.]
5.2 Collateral Identification, Special Collateral . No material portion of the Collateral constitutes, or is the Proceeds of, (1) Farm Products, (2) As-Extracted Collateral, (3) Manufactured Homes, (4) Health-Care-Insurance Receivables; (5) timber to be cut, or (6) satellites, ships or railroad rolling stock.
5.3 Ownership of Collateral and Absence of Other Liens .
(a) it has good and valid rights in and title to the Collateral in which it has purported to grant a security interest in favor of the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, subject to Permitted Liens, and has full power and authority to grant to the Collateral Agent such security interest in such Collateral pursuant hereto and to execute, deliver and perform its obligations in accordance with the terms of this Agreement, without the consent or approval of any other Person other than any consent or approval that has been obtained;
(b) the Collateral is owned by the Grantors free and clear of any Lien, other than Permitted Liens. None of the Grantors has filed or consented to the filing of (i) any financing statement or analogous document under the UCC or any other applicable laws covering any Collateral except any such filings made pursuant to any documentation governing Permitted Liens, or (ii) any assignment in which any Grantor assigns any Collateral or any security agreement or similar instrument covering any Collateral with any foreign governmental, municipal or other office, which financing statement or analogous document, assignment, security agreement or similar instrument is still in effect, except, in each case, in respect of Permitted Liens; and
(c) other than (w) the Collateral Agent, (x) the ABL Agent to the extent permitted under the ABL Intercreditor Agreement, (y) any control in favor of a Bank, Securities Intermediary or Commodity Intermediary maintaining a Deposit Account, Securities Account or Commodity Contract, or (z) any other holder of a Permitted Lien, no Person other than a Grantor is in Control of any Collateral.
5.4 Status of Security Interest .
(a) the Collateral Questionnaire delivered on the Restatement Effective Date has been duly prepared, completed and executed and the information set forth therein, including the exact legal name of each Grantor, is correct and complete as of the Restatement Effective Date. Subject to Section 4.5, the UCC financing statements or other appropriate filings, recordings or registrations containing a description of the Collateral that have been prepared based upon the information specified in the Collateral Questionnaire for filing in each governmental, municipal or other office set forth opposite such Grantors name (i) on the Collateral Questionnaire or (ii) as specified by notice from Borrower to the Applicable Authorized Representative and the Collateral Agent, as applicable, after the Restatement Effective Date in the case of filings, recordings or registrations required by Sections 6.1, 7.1 or 7.2, are all the filings, recordings and registrations that are necessary to establish legal, valid and perfected security interests in favor of the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, having priority over all other Liens except for any Permitted Liens with respect to all Collateral in which such security interest may be perfected by filing, recording or registration in the United States (or any political subdivision thereof) and, except in respect of certain after-acquired Collateral, no further or subsequent filing, refiling, recording, rerecording, registration or reregistration is necessary in any such jurisdiction, except as provided under applicable law with respect to the filing of continuation statements;
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(b) the security interests granted hereunder in favor of the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, constitute (i) legal and valid security interests in all the Collateral securing the payment and performance of the Term Loan/Notes Secured Obligations and (ii) subject to the filings described in Section 5.4(a) and to Section 4.5, a perfected security interest in all Collateral in which a security interest may be perfected by filing, recording or registering a financing statement or other instrument in the central filing office of any state of the United States (or any political subdivision thereof), with the United States Patent and Trademark Office or with the United States Copyright Office, in each case pursuant to the UCC or other applicable law in the United States (or any political subdivision thereof); provided that additional actions may be required in respect of certain after-acquired Collateral. The security interest granted hereunder in favor of the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, has priority over all other Liens except for any Permitted Liens;
(c) to the extent perfection or priority of the security interest therein is not subject to Article 9 of the UCC, upon recordation of the security interests granted hereunder in U.S. Patents, Trademarks and Copyrights and exclusive Copyright Licenses (in respect of registered U.S. Copyrights for which any Grantor is the licensee and which are included within the Material Intellectual Property) in the United States Patent and Trademark Office and the United States Copyright Office, the security interests granted to the Collateral Agent hereunder over such Intellectual Property shall constitute valid, perfected Liens having priority over all other Liens except for Permitted Liens;
(d) no authorization, consent, approval or other action by, and no notice to or filing with, any Governmental Authority is required for either (i) the pledge or grant by any Grantor of the Liens purported to be created in favor of the Collateral Agent hereunder or (ii) the exercise by Collateral Agent of any rights or remedies in respect of any Collateral (whether specifically granted or created hereunder or created or provided for by applicable law), except (A) such as have been obtained or made and are in full force and effect, (B) the filings contemplated by clause (a) above and (C) as may be required, in connection with the disposition of any Investment Related Property, by laws generally affecting the offering and sale of Securities;
(e) each Grantor is in compliance with its obligations under Section 4 hereof; and
(f) notwithstanding the foregoing, the representations and warranties set forth in this Section 5.4 as to perfection and priority of the security interests granted hereunder to the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, in Proceeds are limited to the extent provided in Section 9-315 of the Uniform Commercial Code.
5.5 Goods .
(a) other than any Inventory or Equipment in transit, being repaired, or having a value of less than $200,000.00 in the aggregate, all of the Equipment and Inventory included in the Collateral is located only at the locations specified in Schedule 5.5.
5.6 Pledged Equity Interests, Investment Related Property .
(a) it is the record and beneficial owner of the Pledged Equity Interests free of all Liens of other Persons other than Permitted Liens, and there are no outstanding warrants, options or other rights to purchase, or shareholder, voting trust or similar agreements outstanding with respect to, or property that is convertible into, or that requires the issuance or sale of, any Pledged Equity Interests; and
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(b) no consent of any Person including any other general or limited partner, any other member of a limited liability company, any other shareholder or any other trust beneficiary is necessary in connection with the creation, perfection or first priority status of the security interest of the Collateral Agent in any Pledged Equity Interests or the exercise by the Collateral Agent of the voting or other rights provided for in this Agreement or the exercise of remedies in respect thereof except such as have been obtained.
5.7 Intellectual Property . Except as could not reasonably be expected to have a Material Adverse Effect:
(a) it is the sole and exclusive owner of the entire right, title, and interest in and to all Intellectual Property listed on Schedule 5.2(I), and, to such Grantors knowledge, owns or has the valid right to use all other Intellectual Property used in or necessary to conduct its business, free and clear of all Liens, claims and licenses, except for Permitted Liens and the licenses set forth on Schedule 5.2(I);
(b) all applications and registrations for Material Intellectual Property of such Grantor are subsisting, in full force and effect, and have not been adjudged invalid or unenforceable and such Grantor has performed all acts and has paid all renewal, maintenance, and other fees and taxes required to maintain each and every registration and application of Copyrights, Patents and Trademarks of such Grantor constituting Material Intellectual Property in full force and effect;
(c) no holding, decision, ruling, or judgment has been rendered in any action or proceeding before any court or administrative authority prohibiting such Grantors right to register, own or use any Material Intellectual Property of such Grantor, and no action or proceeding challenging the validity or enforceability of, or such Grantors right to register, own, or use, any Material Intellectual Property of such Grantor is pending or, to such Grantors knowledge, threatened;
(d) all registrations and applications for Copyrights, Patents and Trademarks of such Grantor are standing in the name of such Grantor, and none of the Trademarks, Patents, Copyrights or Trade Secrets owned by such Grantor has been licensed by such Grantor to any Affiliate or third party, except as disclosed in Schedule 5.2(I) and pursuant to other licenses that are not material to the business of any Grantor and are not otherwise of material value to any Grantor;
(e) such Grantor has not made a commitment constituting a present or future sale or transfer or similar arrangement of any Material Intellectual Property that has not been terminated or released;
(f) [reserved];
(g) such Grantor uses consistent standards of quality in the manufacture, distribution and sale of products sold and in the provision of services rendered under or in connection with all Trademarks included in the Collateral;
(h) to such Grantors knowledge, the conduct of such Grantors business does not infringe, misappropriate, dilute or otherwise violate any intellectual property rights of any other Person; no claim has been made in writing, in the past three (3) years (or earlier, if presently unresolved), that the use of any Material Intellectual Property owned or used by such Grantor (or any of its respective licensees) infringes, misappropriates, dilutes or otherwise violates the asserted rights of any other Person; and
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(i) to such Grantors knowledge, no Person is infringing, misappropriating, diluting or otherwise violating any rights in any Material Intellectual Property owned, licensed or used by such Grantor.
SECTION 6. COVENANTS AND AGREEMENTS.
Each Grantor hereby covenants and agrees that:
6.1 Grantor Information and Status . The Grantors will furnish to the Collateral Agent and the Applicable Authorized Representative prompt written notice of any change (i) in the legal name of any Grantor, (ii) in the identity or type of organization or corporate structure of any Grantor or (iii) in the jurisdiction of organization of any Grantor. Each Grantor agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the UCC or otherwise that are required in order for Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral. In connection with any such notice, upon the reasonable request by the Collateral Agent or the Applicable Authorized Representative, the Grantors shall execute and deliver to the Collateral Agent a completed Pledge Supplement together with all Supplements to Schedules thereto.
6.2 Commercial Tort Claims . In the event that it hereafter acquires or has any Commercial Tort Claim having a value reasonably believed by such Grantor to be in excess of $5,000,000 individually or $15,000,000 in the aggregate for which a complaint in a court of competent jurisdiction has been filed, it shall deliver to the Collateral Agent and the Applicable Authorized Representative a completed Pledge Supplement together with all Supplements to Schedules thereto, identifying such new Commercial Tort Claims.
6.3 Ownership of Collateral and Absence of Other Liens .
(a) except for the security interest created by this Agreement, it shall not create or suffer to exist any Lien upon or with respect to any of the Collateral, other than Permitted Liens, and such Grantor shall, at its own expense, take any and all commercially reasonable actions to defend title to the Collateral against all Persons and to defend the security interests granted hereunder in favor of the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, in the Collateral and the priority thereof against any Lien other than Permitted Liens; and
(b) at such time or times as the Collateral Agent or the Applicable Authorized Representative may reasonably request, promptly to prepare and deliver to the Applicable Authorized Representative and the Collateral Agent a duly certified schedule or schedules in form and detail reasonably satisfactory to the Collateral Agent and/or the Applicable Authorized Representative showing the identity, amount and location of any and all Equipment and Inventory constituting Collateral; provided that, unless an Event of Default shall have occurred and be continuing, such schedules shall only be delivered, to the extent reasonably requested by the Collateral Agent or the Applicable Authorized Representative, at the time of delivery of annual financial statements with respect to the preceding Fiscal Year pursuant to Section 5.1(b) of the Term Loan Credit Agreement or, if the Term Loan Credit Agreement is no longer outstanding, Section 3.10(a) of the Indenture or the corresponding provisions of any Future Term Loan/Notes Agreement.
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6.4 Status of Security Interest .
(a) Subject to the limitations set forth in subsection (b) of this Section 6.4, each Grantor shall maintain the security interest of the Collateral Agent hereunder in all Collateral as valid, perfected Liens having priority over all other Liens except for Permitted Liens.
(b) Notwithstanding anything to the contrary herein, no Grantor shall be required to take any action to perfect the security interests granted hereunder on (i) any Collateral that can only be perfected by (A) Control (other than to the extent required by Section 4.1 and Section 4.2), (B) foreign filings with respect to Intellectual Property, or (C) filings with registrars of motor vehicles or similar governmental authorities with respect to goods covered by a certificate of title, in each case except as and to the extent specified in Section 4 hereof, (ii) any assets of any Grantor located outside the United States or assets of any Grantor that require action under the laws of any jurisdiction other than the United States or any state or county thereof to perfect a security interest in such assets, including any Intellectual Property registered in any jurisdiction other than the United States, (iii) Letter of Credit rights (other than Supporting Obligations) and (iv) any assets of any Grantor in which the cost of perfecting a security interest therein exceeds the practical benefit to the Term Loan/Notes Secured Parties afforded thereby (as reasonably determined by the Borrower and the Applicable Authorized Representative).
6.5 Goods and Receivables .
(a) it shall not deliver any negotiable Document evidencing any Equipment to any Person other than the issuer of such negotiable Document to claim the Goods evidenced therefor or the Collateral Agent;
(b) it shall maintain, at its own cost and expense, such complete and accurate records with respect to all Receivables as is in accordance with such prudent and standard practices used in industries that are the same as or similar to those in which such Grantor is engaged, but in any event to include accounting records indicating all payments and proceeds received with respect to the Receivables; and
(c) upon the occurrence and during the continuance of any Event of Default, each of the Grantors will collect and enforce, in accordance with past practices and in the ordinary course of business, all amounts due to such Grantor under the Receivables owned by it. Such Grantor will deliver to the Collateral Agent promptly upon its reasonable request or the reasonable request of the Applicable Authorized Representative after the occurrence and during the continuance of an Event of Default duplicate invoices with respect to each Receivable owned by it, bearing such language of assignment as the Collateral Agent and/or the Applicable Authorized Representative shall reasonably specify in connection with its exercise of remedies hereunder.
6.6 Pledged Equity Interests, Investment Related Property .
(a) except as provided in the next sentence, in the event such Grantor receives any dividends, interest or distributions on any Pledged Equity Interest or other Investment Related Property, upon the merger, consolidation, liquidation or dissolution of any issuer of any Pledged Equity Interest or Investment Related Property, then (a) such dividends, interest or distributions and securities or other property shall be included in the definition of Collateral without further action and (b) such Grantor shall promptly take all steps, if any, necessary to ensure the validity, perfection, priority and, if applicable, control of the Collateral Agent over such Investment Related Property (including, without limitation, delivery thereof to the Collateral Agent to the extent certificated and to the extent that a security interest therein may be perfected by possession) and pending any such action such Grantor shall be deemed to
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hold such dividends, interest, distributions, securities or other property in trust for the benefit of the Collateral Agent and shall segregate such dividends, distributions, Securities or other property from all other property of such Grantor. Notwithstanding the foregoing, so long as no Event of Default shall have occurred and be continuing, the Collateral Agent authorizes each Grantor to retain all dividends and distributions and all payments of interest;
(b) Voting .
(i) So long as no Event of Default shall have occurred and be continuing, except as otherwise provided under the covenants and agreements relating to Investment Related Property in this Agreement or elsewhere herein or in the Term Loan/Notes Documents, each Grantor shall be entitled to exercise or refrain from exercising any and all voting and other consensual rights pertaining to the Investment Related Property or any part thereof; and
(ii) Upon the occurrence and during the continuation of an Event of Default and upon two (2) Business Days prior written notice from the Collateral Agent to such Grantor of the Collateral Agents intention to exercise such rights:
(1) all rights of each Grantor to exercise or refrain from exercising the voting and other consensual rights which it would otherwise be entitled to exercise pursuant hereto shall cease and all such rights shall thereupon become vested in the Collateral Agent who shall thereupon have the sole right to exercise such voting and other consensual rights; and
(2) in order to permit the Collateral Agent to exercise the voting and other consensual rights which it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions which it may be entitled to receive hereunder: (1) each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Collateral Agent all proxies, dividend payment orders and other instruments as the Collateral Agent may from time to time reasonably request and (2) each Grantor acknowledges that the Collateral Agent may utilize the power of attorney set forth in Section 8.1.
6.7 Intellectual Property .
(a) it shall not do any act or omit to do any act whereby any of the Material Intellectual Property may lapse, or become abandoned or cancelled, or dedicated to the public, in each case, except as shall be consistent with commercially reasonable business judgment and except as could not reasonably be expected to result in a Material Adverse Effect;
(b) it shall not, with respect to any Trademarks constituting Material Intellectual Property, fail to maintain the level of the quality of products sold and services rendered under any such Trademark at a level at least substantially consistent with the quality of such products and services as of the date hereof, and such Grantor shall adequately control the quality of goods and services offered by any licensee of its Trademarks to maintain such standards, in each case except as could not reasonably be expected to have a Material Adverse Effect; and
(c) it shall promptly notify the Collateral Agent and the Applicable Authorized Representative if it knows or becomes aware that any item of Material Intellectual Property may become subject to any judicial or administrative adverse determination regarding such Grantors right to own, register or use or the validity or enforceability of such item of Intellectual Property (including the
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institution of any action or proceeding in the United States Patent and Trademark Office, the United States Copyright Office, any state registry, any foreign counterpart of the foregoing, or any court), in each case except as could not reasonably be expected to have a Material Adverse Effect.
6.8 Insurance . The Grantors, at their own expense, shall maintain or cause to be maintained insurance covering physical loss or damage to the Collateral in accordance with the requirements set forth in Section 5.5 of the Term Loan Credit Agreement, Section 3.13 of the Indenture and the requirements of any other Term Loan/Notes Documents. In the event that any Grantor at any time or times shall fail to obtain or maintain any of the policies of insurance required hereby or to pay any premium in whole or part relating thereto, the Collateral Agent may (but shall not be obligated to), without waiving or releasing any obligation or liability of the Grantors hereunder or any Event of Default, in its sole discretion, obtain and maintain such policies of insurance and pay such premium and take any other actions with respect thereto as the Collateral Agent reasonably deems advisable or as directed by the Applicable Authorized Representative (acting in its reasonable discretion). All sums disbursed by the Collateral Agent in connection with this paragraph, including reasonable attorneys fees, court costs, expenses and other charges relating thereto, shall be payable, upon demand, by the Grantors to the Collateral Agent and shall be additional Term Loan/Notes Secured Obligations secured hereby.
SECTION 7. FURTHER ASSURANCES; ADDITIONAL GRANTORS.
7.1 Further Assurances .
(a) Each Grantor agrees that from time to time, at the expense of such Grantor, that it shall promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary under applicable law, or that the Collateral Agent or the Applicable Authorized Representative may reasonably request, in order to create and/or maintain the validity, perfection or priority of and protect any security interest granted or purported to be granted hereby or to enable the Collateral Agent to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Without limiting the generality of the foregoing, each Grantor shall:
(i) file such financing or continuation statements, or amendments thereto, record security interests in Intellectual Property (other than any Intellectual Property in a foreign jurisdiction) and execute and deliver such other agreements, instruments, endorsements, powers of attorney or notices, as may be necessary, or as the Collateral Agent or the Applicable Authorized Representative may reasonably request, in order to effect, reflect, perfect and preserve the security interests granted or purported to be granted hereby;
(ii) take all actions necessary to ensure the recordation of appropriate evidence of the liens and security interest granted hereunder in any U.S. Intellectual Property with the United States Patent and Trademark Office, the United States Copyright Office, and the various Secretaries of State, if applicable;
(iii) at any time following the occurrence and during the continuance of an Event of Default, upon request by the Collateral Agent or the Applicable Authorized Representative, assemble the Collateral and allow inspection of the Collateral by the Collateral Agent and the Applicable Authorized Representative, or persons designated by the Collateral Agent or the Applicable Authorized Representative; provided that no Grantor shall be required to permit the inspection of any document, information or other matter (x) in respect of which disclosure to the Applicable Authorized Representative, the Collateral Agent or any Term Loan/Notes Secured Party (or their respective representatives or contractors) is prohibited by law or any bona fide binding agreement or (y) is subject to attorney-client or similar privilege or constitutes attorney
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work product; provided that each Grantor will make available redacted versions of requested documents or, if unable to do so consistent with the preservation of such privilege, endeavor in good faith otherwise to disclose information responsive to the requests of Collateral Agent or the Applicable Authorized Representative in a manner that will protect such privilege;
(iv) at the Collateral Agents or the Applicable Authorized Representatives request, appear in and defend any action or proceeding that may affect such Grantors title to or the Collateral Agents security interest in all or any part of the Collateral; and
(v) furnish the Collateral Agent and the Applicable Authorized Representative with such information regarding the Collateral, including, without limitation, the location thereof, as the Collateral Agent or the Applicable Authorized Representative may reasonably request from time to time.
(b) Without limiting the effect of Section 7.1(a)(i), each Grantor hereby authorizes the Collateral Agent to file a Record or Records, including, without limitation, financing or continuation statements, Intellectual Property Security Agreements and amendments and supplements to any of the foregoing, in any jurisdictions and with any filing offices as the Collateral Agent or the Applicable Authorized Representative may determine, in its sole discretion, are necessary or advisable to perfect or otherwise protect the security interest granted to the Collateral Agent herein; provided that the Grantors shall not have any obligation to perfect any security interest or lien, or record any notice thereof, in any Intellectual Property in any jurisdiction other than the U.S. Such financing statements may describe the Collateral in the same manner as described herein or may contain an indication or description of collateral that describes such property in any other manner as the Collateral Agent or the Applicable Authorized Representative may determine, in its sole discretion, is necessary, advisable or prudent to ensure the perfection of the security interest in the Collateral granted to the Collateral Agent herein, including, without limitation, describing such property as all assets, whether now owned or hereafter acquired, developed or created or words of similar effect.
7.2 Additional Grantors . From time to time subsequent to the date hereof, and to the extent required or permitted pursuant to the terms of the Term Loan Credit Agreement, the Indenture and any Future Term Loan/Notes Agreement, additional Persons may become parties hereto as additional Grantors (each, an Additional Grantor ), by executing a Pledge Supplement. Upon delivery of any such Pledge Supplement to the Collateral Agent, notice of which is hereby waived by Grantors, each Additional Grantor shall be a Grantor and shall be as fully a party hereto as if Additional Grantor were an original signatory hereto. Each Grantor expressly agrees that its obligations arising hereunder shall not be affected or diminished by the addition or release of any other Grantor hereunder, nor by any election of Collateral Agent not to cause any Subsidiary of Borrower to become an Additional Grantor hereunder. This Agreement shall be fully effective as to any Grantor that is or becomes a party hereto regardless of whether any other Person becomes or fails to become or ceases to be a Grantor hereunder.
SECTION 8. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT.
8.1 Power of Attorney . Each Grantor hereby irrevocably appoints the Collateral Agent (such appointment being coupled with an interest) as such Grantors attorney-in-fact, with full authority in the place and stead of such Grantor and in the name of such Grantor, the Collateral Agent or otherwise, from time to time in the Collateral Agents discretion to take any action and to execute any instrument that the Collateral Agent or the Applicable Authorized Representative may deem reasonably necessary to accomplish the purposes of this Agreement, including, without limitation, the following:
(a) upon the occurrence and during the continuance of any Event of Default, to obtain and adjust insurance required to be maintained by such Grantor or paid to the Collateral Agent pursuant to the Term Loan/Notes Documents;
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(b) upon the occurrence and during the continuance of any Event of Default, to ask for, demand, collect, sue for, recover, compound, receive and give acquittance and receipts for moneys due and to become due under or in respect of any of the Collateral;
(c) upon the occurrence and during the continuance of any Event of Default, to receive, endorse and collect any drafts or other instruments, documents and chattel paper in connection with clause (b) above;
(d) upon the occurrence and during the continuance of any Event of Default, to file any claims or take any action or institute any proceedings that the Collateral Agent may deem necessary or desirable for the collection of any of the Collateral or otherwise to enforce the rights of the Collateral Agent with respect to any of the Collateral;
(e) to prepare and file any UCC financing statements against such Grantor as debtor;
(f) to prepare, sign, and file for recordation in any intellectual property registry, appropriate evidence of the lien and security interest granted herein in any Intellectual Property in the name of such Grantor as debtor; provided that the Grantors shall not have any obligation to perfect any security interest or lien, or record any notice thereof, in any Intellectual Property in any jurisdiction other than the U.S.;
(g) upon the occurrence and during the continuance of any Event of Default, to take or cause to be taken all actions necessary to perform or comply or cause performance or compliance with the terms of this Agreement, including, without limitation, access to pay or discharge past due taxes, assessments, charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the Collateral that are not Permitted Liens, and may pay for the maintenance and preservation of the Collateral to the extent any Grantor fails to do so as required by the Term Loan Credit Agreement, the Indenture, any Future Term Loan/Notes Agreement or this Agreement, and each Grantor jointly and severally agrees to reimburse the Collateral Agent on demand for any payment reasonably made or any expense reasonably incurred by the Collateral Agent pursuant to the foregoing authorization; provided that nothing in this paragraph (g) shall be interpreted as excusing any Grantor from the performance of, or imposing any obligation on the Collateral Agent or any Term Loan/Notes Secured Party to cure or perform, any covenants or other promises of any Grantor with respect to taxes, assessments, charges, fees, Liens, security interests or other encumbrances and maintenance as set forth herein, or in the other Term Loan/Notes Documents. The Collateral Agent will give notice to Borrower of any exercise of the Collateral Agents rights or powers pursuant to this paragraph (g); provided that any failure to give or delay in giving such notice shall not operate as a waiver of, or preclude any other or further exercise of, such rights or powers or the exercise of any other right or power pursuant to this Agreement; and
(h) upon the occurrence and during the continuance of any Event of Default, generally to sell, transfer, lease, license, pledge, make any agreement with respect to or otherwise deal, subject, in each case, to the terms of any applicable agreements, with any of the Collateral as fully and completely as though the Collateral Agent were the absolute owner thereof for all purposes, and to do, at the Collateral Agents option and such Grantors expense, at any time or from time to time, all acts and things that the Collateral Agent deems reasonably necessary to protect, preserve or realize upon the Collateral and the Collateral Agents security interest therein in order to effect the intent of this Agreement, all as fully and effectively as such Grantor might do.
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8.2 No Duty on the Part of Collateral Agent or Secured Parties . The powers conferred on the Collateral Agent hereunder are solely to protect the interests of the Term Loan/Notes Secured Parties in the Collateral and shall not impose any duty upon the Collateral Agent or any other Term Loan/Notes Secured Party to exercise any such powers. The Collateral Agent and the other Term Loan/Notes Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their officers, directors, employees or agents shall be responsible to any Grantor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct. Each Grantor shall remain liable to observe and perform all the conditions and obligations to be observed and performed by it under each contract, agreement or instrument relating to the Collateral, all in accordance with the terms and conditions thereof, to the same extent as if the security interests granted hereunder had not been granted to the Collateral Agent in the Collateral.
8.3 Appointment Pursuant to the Pari Passu Intercreditor Agreement . The Collateral Agent has been appointed as collateral agent pursuant to the Pari Passu Intercreditor Agreement. The rights, duties, privileges, immunities and indemnities of the Collateral Agent hereunder are subject to the provisions of the Pari Passu Intercreditor Agreement.
8.4 Determinations by the Collateral Agent and Applicable Authorized Representative . Wherever in this Agreement the Collateral Agent is to make any determination or take any discretionary action, the Collateral Agent shall do so in accordance with the terms of the Pari Passu Intercreditor Agreement. When, under the terms of the Pari Passu Intercreditor Agreement, the Trustee is the Applicable Authorized Representative and under the terms of this Agreement, the Applicable Authorized Representative is to make any determination, take any discretionary action or direct the Collateral Agent, the Trustee shall make such determinations, take such actions or give such instructions all in accordance with the terms of the Indenture.
SECTION 9. REMEDIES.
9.1 Generally .
(a) If any Event of Default shall have occurred and be continuing, the Collateral Agent may (but shall not be obligated to) exercise in respect of the Collateral, in addition to all other rights and remedies provided for herein or otherwise available to it at law or in equity, all the rights and remedies of the Collateral Agent on default under the UCC (whether or not the UCC applies to the affected Collateral) to collect, enforce or satisfy any Term Loan/Notes Secured Obligations then owing, whether by acceleration or otherwise, and also may pursue any of the following separately, successively or simultaneously:
(i) require any Grantor to, and each Grantor hereby agrees that it shall at its expense and promptly upon request of the Collateral Agent forthwith, assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place to be designated by the Collateral Agent that is reasonably convenient to both parties; provided that no Grantor shall be required to permit the inspection of any document or information (x) in respect of which disclosure to the Applicable Authorized Representative, the Collateral Agent or any Term Loan/Notes Secured Party (or their respective representatives or contractors) is prohibited by law or any bona fide binding agreement or (y) is subject to attorney-client or similar privilege or constitutes attorney work product; provided that each Grantor will make available redacted versions of requested documents or, if unable to do so consistent with the preservation of such privilege, endeavor in good faith otherwise to disclose information responsive to the requests of Collateral Agent in a manner that will protect such privilege;
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(ii) enter onto the property where any Collateral is located and take possession thereof with or without judicial process;
(iii) prior to the disposition of the Collateral, store, process, repair or recondition the Collateral or otherwise prepare the Collateral for disposition in any manner to the extent the Collateral Agent reasonably deems appropriate; and
(iv) without notice except as specified below or under the UCC, sell, assign, lease, license (on an exclusive or nonexclusive basis) or otherwise dispose, subject, in each case, to the terms of any applicable agreements, of the Collateral or any part thereof in one or more parcels at public or private sale, at any of the Collateral Agents offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Collateral Agent may deem commercially reasonable.
(b) The Collateral Agent or any other Term Loan/Notes Secured Party may be the purchaser of any or all of the Collateral at any public or private (to the extent the portion of the Collateral being privately sold is of a kind that is customarily sold on a recognized market or the subject of widely distributed standard price quotations) sale in accordance with the UCC and the Collateral Agent, as collateral agent for and representative of the Term Loan/Notes Secured Parties, shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale made in accordance with the UCC, to use and apply any of the Term Loan/Notes Secured Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale. For the avoidance of doubt, each of the Grantors and each of the Term Loan/Notes Secured Parties, by their acceptance of the benefits of this Agreement, agree, to the fullest extent permitted by applicable law, that the Collateral Agent shall have the right to credit bid any or all of the Term Loan/Notes Secured Obligations in connection with any sale or foreclosure proceeding in respect of the Collateral, including without limitation, sales occurring pursuant to Section 363 of the Bankruptcy Code or included as part of any plan subject to confirmation under Section 1129(b)(2)(A)(iii) of the Bankruptcy Code. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Grantor agrees that it would not be commercially unreasonable for the Collateral Agent to dispose of the Collateral or any portion thereof by using Internet sites that routinely provide for the auction of assets of the types included in the Collateral or that match buyers and sellers of assets. Each Grantor hereby waives any claims against the Collateral Agent arising by reason of the fact that the price at which any Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree. If the proceeds of any sale or other disposition of the Collateral are insufficient to pay all the Term Loan/Notes Secured Obligations, Grantors shall be liable for the deficiency and the reasonable fees of any attorneys employed by the Collateral Agent to collect such deficiency. Each Grantor further agrees that a breach of any of the covenants contained in this Section will cause irreparable injury to the Collateral Agent, that the Collateral Agent has no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section shall be specifically enforceable against such Grantor, and such Grantor hereby waives and agrees
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not to assert any defenses against an action for specific performance of such covenants except for a defense that no default has occurred giving rise to the Term Loan/Notes Secured Obligations becoming due and payable prior to their stated maturities. Nothing in this Section shall in any way limit the rights of the Collateral Agent hereunder.
(c) The Collateral Agent may sell the Collateral without giving any warranties as to the Collateral. The Collateral Agent may specifically disclaim or modify any warranties of title or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral.
(d) The Collateral Agent shall have no obligation to marshal any of the Collateral.
9.2 Application of Proceeds . Subject to the ABL Intercreditor Agreement, all proceeds of Collateral shall be applied by the Collateral Agent in the order of priority set forth in Section 2.01 of the Pari Passu Intercreditor Agreement.
9.3 Sales on Credit . If Collateral Agent sells any of the Collateral upon credit, Grantor will be credited only with payments actually made by purchaser and received by Collateral Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, Collateral Agent may resell the Collateral and Grantor shall be credited with proceeds of the sale.
9.4 Investment Related Property . Each Grantor recognizes that, by reason of certain prohibitions contained in the Securities Act and applicable state securities laws, the Collateral Agent may be compelled, with respect to any sale of all or any part of the Investment Related Property conducted without prior registration or qualification of such Investment Related Property under the Securities Act and/or such state securities laws, to limit purchasers to those who will agree, among other things, to acquire the Investment Related Property for their own account, for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges that any such private sale may be at prices and on terms less favorable than those obtainable through a public sale without such restrictions (including a public offering made pursuant to a registration statement under the Securities Act) and, notwithstanding such circumstances, each Grantor agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Collateral Agent shall have no obligation to engage in public sales and no obligation to delay the sale of any Investment Related Property for the period of time necessary to permit the issuer thereof to register it for a form of public sale requiring registration under the Securities Act or under applicable state securities laws, even if such issuer would, or should, agree to so register it. If the Collateral Agent determines to exercise its right to sell any or all of the Investment Related Property, upon written request, each Grantor shall and shall cause each issuer of any Pledged Stock to be sold hereunder, each partnership and each limited liability company from time to time to furnish to the Collateral Agent all such information as the Collateral Agent may request in order to determine the number and nature of interest, shares or other instruments included in the Investment Related Property which may be sold by the Collateral Agent in exempt transactions under the Securities Act and the rules and regulations of the Securities and Exchange Commission thereunder, as the same are from time to time in effect.
9.5 Grant of Intellectual Property License . For the purpose of enabling the Collateral Agent, during the continuance of an Event of Default, to exercise rights and remedies under Section 9 hereof at such time as the Collateral Agent shall be lawfully entitled to exercise such rights and remedies, and for no other purpose, each Grantor hereby grants to the Collateral Agent, to the extent assignable, a non-exclusive license (exercisable without payment of royalty or other compensation to such Grantor), subject, in the case of trademarks and service marks, to sufficient rights to quality control and inspection in favor of such Grantor to avoid the risk of invalidation of such trademarks and service marks, to use,
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license or sublicense, to the extent permitted under the licenses granting such Grantor rights therein, any intellectual property now owned or licensed or hereafter acquired, developed or created by such Grantor, wherever the same may be located; provided that (i) such license shall be subject to the rights of any licensee under any exclusive license granted prior to such Event of Default, to the extent such license is a Permitted Lien, and (ii) to the extent the foregoing license is a sublicense of such Grantors rights as licensee under any third party license, the license to the Collateral Agent shall be in accordance with any limitations in such third party license.
9.6 Intellectual Property .
(a) Anything contained herein to the contrary notwithstanding, in addition to the other rights and remedies provided herein, upon the occurrence and during the continuation of an Event of Default:
(i) the Collateral Agent shall have the right (but not the obligation) to bring suit or otherwise commence any action or proceeding in the name of any Grantor, the Collateral Agent or otherwise, in the Collateral Agents sole discretion, to enforce any Intellectual Property rights of such Grantor, in which event such Grantor shall, at the request of the Collateral Agent, do any and all lawful acts and execute any and all documents required by the Collateral Agent in aid of such enforcement, and such Grantor shall promptly, upon demand, reimburse and indemnify the Collateral Agent as provided in Section 12 hereof in connection with the exercise of its rights under this Section 9.6, and, to the extent that the Collateral Agent shall elect not to bring suit to enforce any Intellectual Property rights as provided in this Section 9.6, each Grantor agrees, at the Collateral Agents request, to use all reasonable measures, whether by action, suit, proceeding or otherwise, to prevent the infringement, misappropriation, dilution or other violation of any of such Grantors rights in the Intellectual Property by others and for that purpose agrees to diligently maintain any action, suit or proceeding against any Person so infringing, misappropriating, diluting or otherwise violating as shall be necessary to prevent such infringement, misappropriation, dilution or other violation;
(ii) upon written demand from the Collateral Agent, each Grantor shall grant, assign, convey or otherwise transfer to the Collateral Agent or such Collateral Agents designee all of such Grantors right, title and interest in and to any Intellectual Property included in the Collateral and shall execute and deliver to the Collateral Agent such documents as are necessary or appropriate to carry out the intent and purposes of this Agreement;
(iii) each Grantor agrees that such an assignment and/or recording shall be applied to reduce the Term Loan/Notes Secured Obligations outstanding only to the extent that the Collateral Agent (or any other Term Loan/Notes Secured Party) receives cash proceeds in respect of the sale of, or other realization upon, any such Intellectual Property;
(iv) within five (5) Business Days after written notice from the Collateral Agent, each Grantor shall make available to the Collateral Agent, to the extent within such Grantors power and authority, such personnel in such Grantors employ on the date of such Event of Default as the Collateral Agent may reasonably designate, by name, title or job responsibility, to permit such Grantor to continue, directly or indirectly, to produce, advertise and sell the products and services sold or delivered by such Grantor under or in connection with any Trademarks or Trademark Licenses, such persons to be available to perform their prior functions on the Collateral Agents behalf and to be compensated by the Collateral Agent at such Grantors expense on a per diem, pro-rata basis consistent with the salary and benefit structure applicable to each as of the date of such Event of Default; and
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(v) the Collateral Agent shall have the right (but not the obligation) to notify, or require each Grantor to notify, any obligors with respect to amounts due or to become due to such Grantor in respect of any Intellectual Property of such Grantor, of the existence of the security interest created herein, to direct such obligors to make payment of all such amounts directly to the Collateral Agent, and, upon such notification and at the expense of such Grantor, to enforce collection of any such amounts and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Grantor might have done;
(1) all amounts and proceeds (including checks and other instruments) received by Grantor in respect of amounts due to such Grantor in respect of the Collateral or any portion thereof shall be received in trust for the benefit of the Collateral Agent hereunder, shall be segregated from other funds of such Grantor and shall be forthwith paid over or delivered to the Collateral Agent in the same form as so received (with any necessary endorsement) to be held as cash Collateral and applied as provided by Section 9.7 hereof; and
(2) Grantor shall not adjust, settle or compromise the amount or payment of any such amount or release wholly or partly any obligor with respect thereto or allow any credit or discount thereon.
(b) If (i) an Event of Default shall have occurred and, by reason of cure, waiver, modification, amendment or otherwise, no longer be continuing, (ii) no other Event of Default shall have occurred and be continuing, (iii) an assignment or other transfer to the Collateral Agent of any rights, title and interests in and to any Intellectual Property of such Grantor shall have been previously made and shall have become absolute and effective, and (iv) the Term Loan/Notes Secured Obligations shall not have become immediately due and payable, upon the written request of any Grantor, the Collateral Agent shall promptly execute and deliver to such Grantor, at such Grantors sole cost and expense, such assignments or other transfer as may be necessary to reassign to such Grantor any such rights, title and interests as may have been assigned to the Collateral Agent as aforesaid, subject to any disposition thereof that may have been made by the Collateral Agent; provided, after giving effect to such reassignment, the Collateral Agents security interest granted pursuant hereto, as well as all other rights and remedies of the Collateral Agent granted hereunder, shall continue to be in full force and effect; and provided further, the rights, title and interests so reassigned shall be free and clear of any other Liens granted by or on behalf of the Collateral Agent and the Term Loan/Notes Secured Parties.
9.7 Deposit Accounts . Subject to the ABL Intercreditor Agreement and the Pari Passu Intercreditor Agreement, if any Event of Default shall have occurred and be continuing, the Collateral Agent may give any notice of exclusive control or similar notice for any Control Account and apply the balance from any Control Account, or instruct the bank at which any Control Account is maintained to pay the balance of any Control Account, to or for the benefit of the Collateral Agent to be applied in accordance with the terms of this Agreement and the Pari Passu Intercreditor Agreement.
SECTION 10. COLLATERAL AGENT.
The Collateral Agent has been appointed to act as Collateral Agent hereunder by the Term Loan/Notes Secured Parties or their Authorized Representatives pursuant to the Pari Passu Intercreditor Agreement. The Collateral Agent shall be obligated, and shall have the right hereunder, to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement, the Pari Passu Intercreditor Agreement, the ABL Intercreditor Agreement and the other Term Loan/Notes Documents. In furtherance of the foregoing provisions of this
-26-
Section, each Term Loan/Notes Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Term Loan/Notes Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Term Loan/Notes Secured Parties in accordance with the terms of this Section. The provisions of the Pari Passu Intercreditor Agreement, the Term Loan Credit Agreement, the Indenture and each other Term Loan/Notes Document relating to the Collateral Agent including, without limitation, the provisions relating to resignation or removal of the Collateral Agent and the rights, privileges and immunities of the Collateral Agent are incorporated herein by this reference and shall survive any termination of such agreements.
SECTION 11. CONTINUING SECURITY INTEREST.
This Agreement shall create a continuing security interest in the Collateral, shall remain in full force and effect until the payment in full of all Term Loan/Notes Secured Obligations (other than unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations) and the cancellation or termination of the Commitments under the Term Loan Credit Agreement and the commitments under any Future Term Loan/Notes Agreement, and shall be binding upon each Grantor, its successors and assigns, and inure, together with the rights and remedies of the Collateral Agent hereunder, to the benefit of the Collateral Agent and its successors, transferees and assigns. Without limiting the generality of the foregoing, but subject to the terms of the applicable Term Loan/Notes Documents, any Term Loan/Notes Secured Party may assign or otherwise transfer any Loans or Notes, as the case may be, held by it to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Term Loan/Notes Secured Party herein or otherwise. Upon the payment in full of all Term Loan/Notes Secured Obligations (other than unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations) and the cancellation or termination of the Commitments and the commitments under any Future Term Loan/Notes Agreement, the security interest granted hereby shall automatically terminate hereunder and of record and all rights to the Collateral shall revert to the Grantors. Upon any such termination the Collateral Agent shall, at the Grantors expense, execute and deliver to the Grantors or otherwise authorize the filing of such documents as the Grantors shall reasonably request, including financing statement amendments and/or releases and/or reassignments of Intellectual Property included in the Collateral in the form appropriate for recording in the U.S. Patent and Trademark Office, U.S. Copyright Office, and other applicable Intellectual Property registry where the Collateral Agents security interest may have been recorded, to evidence such termination. Upon any disposition of property (other than a disposition to another Grantor) or other release of such property from the Collateral, in each case, permitted by each Term Loan/Notes Document, the Liens granted herein shall be deemed to be automatically released and such property shall automatically revert to the applicable Grantor with no further action on the part of any Person. In addition, the Liens granted herein on any Collateral shall be released or subordinated as provided in Section 2.04 of the Pari Passu Intercreditor Agreement. The Collateral Agent shall, at the applicable Grantors expense, execute and deliver or otherwise authorize the filing of such documents as such Grantor shall reasonably request, in form and substance reasonably satisfactory to the Collateral Agent, including financing statement amendments to evidence such release.
SECTION 12. STANDARD OF CARE; COLLATERAL AGENT MAY PERFORM.
The powers conferred on the Collateral Agent hereunder are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the exercise of reasonable care in the custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder, the Collateral Agent shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation
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of Collateral in its possession if such Collateral is accorded treatment substantially equal to that which the Collateral Agent accords its own property. Neither the Collateral Agent nor any of its directors, officers, employees or agents shall be liable for failure to demand, collect or realize upon all or any part of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or otherwise. If any Grantor fails to perform any agreement contained herein, the Collateral Agent may itself perform, or cause performance of, such agreement, and the expenses of the Collateral Agent incurred in connection therewith shall be payable by each Grantor under Section 10.2 of the Credit Agreement, Section 7.7 of the Indenture and the applicable section of each Future Term Loan/Notes Agreement.
SECTION 13. MISCELLANEOUS.
Any notice required or permitted to be given under this Agreement shall be given in accordance with Section 10.1 of the Term Loan Credit Agreement, Section 13.1 of the Indenture, the applicable section of each Future Term Loan/Notes Agreement and Section 5.01 of the Pari Passu Intercreditor Agreement. None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except in accordance with Section 10.5 of the Term Loan Credit Agreement, Article IX of the Indenture and the corresponding provisions of any Future Term Loan/Notes Agreement; provided, however , that (i) schedules to this Agreement may be supplemented or amended at any time by any Grantor through Pledge Supplements (but no other existing provisions of this Agreement may be modified and no Collateral may be released (except as provided in Section 11 hereof), in each case solely through Pledge Supplements) and (ii) schedules to the Collateral Questionnaire may be supplemented or amended at any time by any Grantor by written notice thereof to the Collateral Agent and the Applicable Authorized Representative. No failure or delay on the part of the Collateral Agent in the exercise of any power, right or privilege hereunder or under any other Term Loan/Notes Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other power, right or privilege. All rights and remedies existing under this Agreement and the other Term Loan/Notes Documents are cumulative to, and not exclusive of, any rights or remedies otherwise available. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists. This Agreement shall be binding upon and inure to the benefit of the Collateral Agent and the Grantors and their respective successors and assigns. No Grantor shall, without the prior written consent of the Collateral Agent given in accordance with the Term Loan/Notes Documents, assign any right, duty or obligation hereunder. This Agreement and the other Term Loan/Notes Documents embody the entire agreement and understanding between the Grantors and the Collateral Agent and supersede all prior agreements and understandings between such parties relating to the subject matter hereof and thereof. Accordingly, the Term Loan/Notes Documents may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties. This Agreement may be executed in one or more counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document; delivery of an executed signature page to this Agreement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
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THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK (OTHER THAN ANY MANDATORY PROVISIONS OF THE UCC RELATING TO THE LAW GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OF THE SECURITY INTEREST).
THE PROVISIONS OF THE PARI PASSU INTERCREDITOR AGREEMENT UNDER THE HEADINGS GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS, SUBMISSION TO JURISDICTION WAIVERS AND WAIVER OF JURY TRIAL ARE INCORPORATED HEREIN BY THIS REFERENCE AND SUCH INCORPORATION SHALL SURVIVE ANY TERMINATION OF THE PARI PASSU INTERCREDITOR AGREEMENT.
Notwithstanding anything herein to the contrary, the liens and security interests granted to the Collateral Agent pursuant to this Agreement and the exercise of any right or remedy by the Collateral Agent hereunder, in each case, with respect to the ABL Priority Collateral are subject to the limitations and provisions of the ABL Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2) and the terms and conditions of the ABL Intercreditor Agreement, the terms and conditions of the ABL Intercreditor Agreement shall control. Notwithstanding anything herein to the contrary, the liens and security interests granted to the Collateral Agent pursuant to this Agreement and the exercise of any right or remedy by the Collateral Agent hereunder are subject to the limitations and provisions of the Pari Passu Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2) and the terms and conditions of the Pari Passu Intercreditor Agreement, the terms and conditions of the Pari Passu Intercreditor Agreement shall control.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF , each Grantor and the Collateral Agent have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
J. C. PENNEY COMPANY, INC. , | ||
as Grantor | ||
By: |
/s/ Edward Record |
|
Name: | Edward Record | |
Title: | Executive Vice President and Chief Financial Officer | |
J. C. PENNEY CORPORATION, INC. , as Grantor |
||
By: |
/s/ Michael Porter |
|
Name: | Michael Porter | |
Title: | Vice President, Treasurer | |
J. C. PENNEY PURCHASING CORPORATION , as Grantor |
||
By: |
/s/ Gary Piper |
|
Name: | Gary Piper | |
Title: | Treasurer | |
JCP REAL ESTATE HOLDINGS, INC. , as Grantor |
||
By: |
/s/ Gary Piper |
|
Name: | Gary Piper | |
Title: | Treasurer | |
J. C. PENNEY PROPERTIES, INC. , as Grantor |
||
By: |
/s/ Gary Piper |
|
Name: | Gary Piper | |
Title: | Treasurer |
WILMINGTON TRUST, NATIONAL ASSOCIATION , | ||
as Collateral Agent | ||
By: |
/s/ Hallie E. Field |
|
Name: | Hallie E. Field | |
Title: | Assistant Vice President |
SCHEDULE 5.2
TO AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
COLLATERAL IDENTIFICATION
I. INTELLECTUAL PROPERTY
(A) | United States Registered Copyrights |
Owner |
Title |
Copyright Serial No. (CSN) Serial Publication Year |
Registration No. |
|||
J. C. Penney Company, Inc. |
JC Penney today. |
CSN0079730 1988 |
TX0002435333 | |||
The Forum Corporation of North America & J. C. Penney |
Customer focused selling programJ C Penney : J C Penney face-to-face. |
TX0001754461 1985 |
||||
J. C. Penney & Riddle Manufacturing, Inc. |
Alaska : no. AK0003. |
VA0000671037 1994 |
||||
J. C. Penney Company, Inc. |
Penney News / editor-in-chief, Robert M. Fisher ... [et al.]. |
CSN0005887 1978 |
TX0000050687 TX0000109454 TX0000089924 TX0000092886 TX0000094856 TX0000091394 TX0000119494 TX0000140920 |
|||
J. C. Penney Company, Inc. |
Penney News / editor-in-chief, Robert M. Fisher ... [et al.]. |
CSN0005887 1977 |
TX0000045393 | |||
J. C. Penney Company, Inc. |
Penney News / editor-in-chief, Robert M. Fisher ... [et al.]. |
CSN0005888 1978 |
TX0000063293 TX0000109453 TX0000089925 TX0000096126 TX0000094855 TX0000091393 TX0000119496 TX0000140919 |
|||
J. C. Penney Company, Inc. |
Penney News / editor-in-chief, Robert M. Fisher ... [et al.]. |
CSN0005888 1977 |
TX0000045394 TX0000045392 |
|||
J. C. Penney Company, Inc. |
Penney News / regional editor (Southeastern), Lawrence J. Gavrich ... [et al.]. |
CSN0005889 1978 |
TX0000063294 | |||
J. C. Penney Company, Inc. |
Penney News / regional editor (Southeastern), Lawrence J. Gavrich ... [et al.]. |
CSN0005889 1977 |
TX0000045395 TX0000045391 |
|||
J. C. Penney Company |
Financial services report : a publication for J C Penney financial services management associates. |
CSN0049824 1983 |
TX0001135652 | |||
J. C. Penney Company, Inc. |
JC Penney management report : a monthly newsletter to keep all Penney management associates informed of current developments. |
CSN0003921 1997 |
TX0004492394 TX0004492392 TX0004492391 TX0004492393 |
Owner |
Title |
Copyright Serial No. (CSN) Serial Publication Year |
Registration No. |
|||
J. C. Penney Company, Inc. |
JC Penney management report : a monthly newsletter to keep all Penney management associates informed of current developments. |
CSN0003921 1982 |
TX0000856581 TX0000898569 TX0000928379 TX0000942307 TX0000963522 TX0000999790 TX0000999791 TX0000995089 TX0001012728 TX0001029488 TX0001056289 |
|||
J. C. Penney Company, Inc. |
JC Penney management report : a monthly newsletter to keep all Penney management associates informed of current developments. |
CSN0003921 1981 |
TX0000708278 | |||
J. C. Penney Company, Inc. |
JC Penney management report : a monthly newsletter to keep all Penney management associates informed of current developments. |
CSN0003921 1980 |
TX0000415866 TX0000463002 TX0000525370 TX0000541400 TX0000731302 TX0000595966 |
|||
J. C. Penney Company, Inc. |
JC Penney management report : a monthly newsletter to keep all Penney management associates informed of current developments. |
CSN0003921 1979 |
TX0000189229 TX0000194240 TX0000223414 TX0000240274 TX0000267587 TX0000306430 TX0000323105 TX0000337145 TX0000363388 |
|||
J. C. Penney Company, Inc. |
JC Penney management report : a monthly newsletter to keep all Penney management associates informed of current developments. |
CSN0003921 1978 |
TX0000063664 TX0000090829 TX0000089308 TX0000095743 TX0000129914 TX0000059548 TX0000087983 TX0000117829 TX0000133927 TX0000149392 TX0000165203 |
|||
J. C. Penney Company, Inc. |
JC Penney management report : a monthly newsletter to keep all Penney management associates informed of current developments. |
CSN0003921 1977 |
TX0000040488 | |||
J. C. Penney Company, Inc. |
JC Penney financial services : a quarterly newsletter / Robert M. Fisher, editor]. |
CSN0011561 1980 |
||||
J. C. Penney Company, Inc. |
JC Penney financial services : a quarterly newsletter / Robert M. Fisher, editor]. |
CSN0011561 1979 |
TX0000225136 TX0000389100 |
|||
J. C. Penney Company, Inc. |
JC Penney financial services : a quarterly newsletter / Robert M. Fisher, editor]. |
CSN0011561 1978 |
TX0000095714 TX0000153612 |
|||
J. C. Penney Company, Inc. |
JC Penney today. |
CSN0011562 1978 |
TX0000153614 TX0000176284 |
Owner |
Title |
Copyright Serial No. (CSN) Serial Publication Year |
Registration No. |
|||
J. C. Penney, Inc. |
Focus databases. |
TX0002847951 1990 |
||||
J. C. Penney, Inc. |
Introduction to virtual machine (VM) and conversational monitor system (CMS) |
TX0002847952 1990 |
||||
J. C. Penney, Inc. |
J. C. Penney microcomputer user guide. |
TX0002847953 1990 |
||||
J. C. Penney, Inc. |
Beginning focus report generation DSS user support. |
TX0002847954 1990 |
||||
J. C. Penney, Inc. |
PC DOS-advanced : student handbook. |
TX0002847955 1990 |
||||
J. C. Penney Purchasing Corporation. |
Earring & 496 other titles. |
See titles and registration numbers on Appendix A Assignment of Copyrights at V3608 D709 recorded 11/10/2011 |
||||
J. C. Penney Company, Inc., |
A Celebration of children / produced for J. C. Penney, Consumer Education Department, by Stan Goldberg Associates, Inc. ; in cooperation with The First All Childrens Theatre |
PA0000032003 1979 |
||||
J. C. Penney Company, Inc. |
JC Penney management report : a monthly newsletter to keep all Penney management associates informed of current developments. |
CSN0003921 1991 |
TX0003046738 TX0003035624 TX0003035625 TX0003068331 TX0003068330 TX0003232791 TX0003232790 TX0003232789 TX0003232788 TX0003245602 |
|||
J. C. Penney Company, Inc. |
JC Penney management report : a monthly newsletter to keep all Penney management associates informed of current developments. |
CSN0003921 1990 |
TX0002793117 TX0002911103 TX0002793116 TX0002872759 TX0002945046 TX0003186166 TX0002945045 TX0003046737 |
|||
J. C. Penney Company, Inc. |
JC Penney management report : a monthly newsletter to keep all Penney management associates informed of current developments. |
CSN0003921 1989 |
TX0002501888 TX0002708214 TX0002708215 TX0002708216 TX0002708217 TX0002708218 TX0002708219 TX0002708220 TX0002708221 TX0002708222 TX0002793119 TX0002793118 |
|||
J. C. Penney Company, Inc. |
JC Penney management report : a monthly newsletter to keep all Penney management associates informed of current developments. |
CSN0003921 1988 |
TX0002264536 TX0002371744 TX0002362543 TX0002501887 TX0002399581 TX0002435326 TX0002501889 |
(B) | Copyright Licenses |
None.
(C) | United States Issued Patents and Patent Applications |
Patent |
Application No. Filing Date |
Registration No. Issue Date |
Owner Name |
|||
HIGH EFFICIENCY OVEN AND METHOD OF USE |
13366357 02/06/2012 |
8929724 01/06/2015 |
J. C. Penney Purchasing Corporation | |||
SMART FIXTURE |
29359811 04/15/2010 |
D637594 05/10/2011 |
J. C. Penney Corporation, Inc. | |||
QUICK-DRY TEXTURED TOWEL |
13172108 06/29/2011 |
8156967 04/17/2012 |
J. C. Penney Purchasing Corporation (as successor to J. C. Penney Private Brands, Inc.) 1 |
(D) | Patent Licenses |
None.
(E) | United States Registered Trademarks and Trademark Applications |
Trademark |
Application No. Application Date |
Registration No. Registration Date |
Owner Name |
|||
BOUTIQUE+ |
87001334 4/14/2016 (Pending ITU) |
J. C. Penney Purchasing Corporation | ||||
BOUTIQUE PLUS |
86857525 12/22/2015 (Pending ITU) |
J. C. Penney Purchasing Corporation | ||||
PENNEY LANE |
87001291 4/14/2016 (Pending ITU) |
J. C. Penney Corporation, Inc. | ||||
BELLE + SKY |
86606302 4/22/2015 (Pending ITU) |
J. C. Penney Purchasing Corporation |
1 | Record ownership to be updated to reflect merger of J. C. Penney Private Brands, Inc. into J. C. Penney Purchasing Corporation. |
Trademark |
Application No. Application Date |
Registration No. Registration Date |
Owner Name |
|||
86606602 4/22/2015 (Pending ITU) |
J. C. Penney Purchasing Corporation | |||||
STYLUS |
86510380 1/21/2015 |
4833716 10/13/2015 |
J. C. Penney Purchasing Corporation | |||
SLEEP CHIC |
86315616 6/20/2014 |
4832934 10/13/2015 |
J. C. Penney Purchasing Corporation | |||
JCPENNEY HOME |
86511366 1/22/2015 |
4807704 9/8/2015 |
J. C. Penney Purchasing Corporation | |||
TOTAL GIRL |
86575793 3/25/2015 |
4804215 9/1/2015 |
J. C. Penney Purchasing Corporation | |||
86511393 1/22/2015 |
4803616 9/1/2015 |
J. C. Penney Purchasing Corporation | ||||
XERSION |
86510885 1/22/2015 |
4803586 9/1/15 |
J. C. Penney Purchasing Corporation | |||
86510856 1/22/2015 |
4803584 9/1/2015 |
J. C. Penney Purchasing Corporation | ||||
HOME EXPRESSIONS |
86510824 1/22/2015 |
4803581 9/1/2015 |
J. C. Penney Purchasing Corporation | |||
MIXIT |
86510777 1/22/2015 |
4803576 9/1/2015 |
J. C. Penney Purchasing Corporation | |||
86510399 1/21/2015 |
4803543 9/1/2015 |
J. C. Penney Purchasing Corporation | ||||
FINDMORE |
77925900 2/2/2010 |
3895342 12/21/2010 |
J. C. Penney Corporation, Inc. | |||
JCP |
86714515 8/4/2015 |
4913488 3/8/2016 |
J. C. Penney Corporation, Inc. | |||
JOY OF GIVING |
77847707 10/13/2009 |
3795765 6/1/2010 |
J. C. Penney Corporation, Inc. | |||
77894678 12/16/2009 |
4013113 8/16/2011 |
J. C. Penney Purchasing Corporation | ||||
MONET |
73300467 3/9/1981 |
1209655 9/21/1982 |
J. C. Penney Purchasing Corporation | |||
85171312 11/8/2010 |
4158540 6/12/2012 |
J. C. Penney Corporation, Inc. | ||||
THE FOUNDRY BIG & TALL SUPPLY CO. |
85171274 11/8/2010 |
4158539 6/12/2012 |
J. C. Penney Corporation, Inc. | |||
86714672 8/4/2015 |
4950072 5/3/2016 |
J. C. Penney Corporation, Inc. | ||||
JC PENNEY |
86714595 8/4/2015 |
4950072 5/3/2016 |
J. C. Penney Corporation, Inc. |
Trademark |
Application No. Application Date |
Registration No. Registration Date |
Owner Name |
|||
MONET |
72109807 12/7/1960 |
0719979 8/15/1961 |
J. C. Penney Purchasing Corporation | |||
STAFFORD |
73631706 11/21/1986 |
1502274 8/30/1988 |
J. C. Penney Purchasing Corporation | |||
I SAID YES |
85105315 8/11/2010 |
4053862 11/8/2011 |
J. C. Penney Purchasing Corporation | |||
85105452 8/11/2010 |
4053863 11/8/2011 |
J. C. Penney Purchasing Corporation | ||||
UPROAR |
77963573 3/19/2010 |
4003383 7/26/2011 |
J. C. Penney Purchasing Corporation | |||
ONE KISS |
77916638 1/21/2010 |
3986591 6/28/2011 |
J. C. Penney Purchasing Corporation | |||
ARTICLE 365 |
77904203 1/4/2010 |
3901866 1/4/2011 |
J. C. Penney Purchasing Corporation | |||
77904216 1/4/2010 |
3901867 1/4/2011 |
J. C. Penney Purchasing Corporation | ||||
SHE SAID |
77622498 11/26/2008 |
3854400 9/28/2010 |
J. C. Penney Purchasing Corporation | |||
TOWNCRAFT |
72210343 1/21/1965 |
0797853 10/19/1965 |
J. C. Penney Purchasing Corporation | |||
AMBRIELLE |
86575893 3/25/2015 |
4845282 11/3/2015 |
J. C. Penney Purchasing Corporation. | |||
77153785 4/11/2007 |
3868960 11/2/2010 |
J. C. Penney Purchasing Corporation | ||||
FLIRTITUDE |
86575821 3/25/2015 |
4808596 9/8/2015 |
J. C. Penney Purchasing Corporation | |||
A.N.A A NEW APPROACH |
86575868 3/25/2015 |
4845279 11/3/2015 |
J. C. Penney Purchasing Corporation | |||
STAFFORD |
73701325 12/16/1987 |
1510969 11/1/1988 |
J. C. Penney Purchasing Corporation | |||
ST. JOHNS BAY |
73636097 12/18/1986 |
1455438 9/1/1987 |
J. C. Penney Purchasing Corporation | |||
THE JCPENNEY TOWEL |
73600741 5/27/1986 |
1421983 12/23/1986 |
J. C. Penney Purchasing Corporation | |||
STJOHNSBAY |
73706932 1/22/1988 |
1503930 9/13/1988 |
J. C. Penney Purchasing Corporation | |||
CITY STREETS |
73462812 1/27/1984 |
1319486 2/12/1985 |
J. C. Penney Purchasing Corporation | |||
OKIE-DOKIE |
73541031 6/3/1985 |
1402245 7/22/1986 |
J. C. Penney Purchasing Corporation | |||
TOWNCRAFT |
71247084 4/7/1927 |
0231906 8/30/1927 |
J. C. Penney Purchasing Corporation | |||
THE ORIGINAL ARIZONA JEAN COMPANY |
74681437 5/30/1995 |
1978252 6/4/1996 |
J. C. Penney Purchasing Corporation | |||
PRO-TEC-SUN |
77861171 10/30/2009 |
3998879 7/19/2011 |
J. C. Penney Purchasing Corporation | |||
LISETTE |
75323165 7/11/1997 |
2197706 10/20/1998 |
J. C. Penney Purchasing Corporation |
Trademark |
Application No. Application Date |
Registration No. Registration Date |
Owner Name |
|||
BRIGHT FUTURE |
75320236 7/7/1997 |
2195308 13-Oct-1998 |
J. C. Penney Purchasing Corporation | |||
WORTHINGTON |
73646168 2/24/1987 |
1486179 4/26/1988 |
J. C. Penney Purchasing Corporation | |||
UNDERSCORE |
73632087 11/24/1986 |
1449840 7/28/1987 |
J. C. Penney Purchasing Corporation | |||
OKIE-DOKIE |
75327048 7/18/1997 |
2195381 10/13/1998 |
J. C. Penney Purchasing Corporation | |||
GREAT CONNECTIONS |
73449355 10/24/1983 |
1298926 10/2/1984 |
J. C. Penney Purchasing Corporation | |||
BIG MAC |
72243012 4/8/1966 |
0824962 2/28/1967 |
J. C. Penney Purchasing Corporation | |||
77768259 6/25/2009 |
3786962 5/11/2010 |
J. C. Penney Purchasing Corporation | ||||
77767901 6/25/2009 |
3783673 5/4/2010 |
J. C. Penney Purchasing Corporation | ||||
77768833 6/26/2009 |
3786966 5/11/2010 |
J. C. Penney Purchasing Corporation | ||||
77506527 6/24/2008 |
3758460 3/9/2010 |
J. C. Penney Purchasing Corporation | ||||
LIZ CLAIBORNE NEW YORK |
77981858 8/19/2008 |
3999161 7/19/2011 |
J. C. Penney Purchasing Corporation | |||
CLAIBORNE |
73600946 5/27/1986 |
1480350 3/15/1988 |
J. C. Penney Purchasing Corporation | |||
CLAIBORNE |
73771324 12/23/1988 |
1554507 9/5/1989 |
J. C. Penney Purchasing Corporation | |||
CLAIBORNE |
74062991 5/29/1990 |
1653728 8/13/1991 |
J. C. Penney Purchasing Corporation | |||
CLAIBORNE Bottle Design |
73837071 11/1/1989 |
1611814 9/4/1990 |
J. C. Penney Purchasing Corporation | |||
CLAIBORNE SPORT |
75234374 1/31/1997 |
2191453 9/22/1998 |
J. C. Penney Purchasing Corporation | |||
Cosmetic Triangle Logo (Red, Blue and Yellow) |
73607982 7/7/1986 |
1450271 8/4/1987 |
J. C. Penney Purchasing Corporation | |||
ELISABETH |
75035736 12/22/1995 |
2128086 1/13/1998 |
J. C. Penney Purchasing Corporation | |||
LC Square Logo |
77910237 1/12/2010 |
4080583 1/3/2012 |
J. C. Penney Purchasing Corporation | |||
LC Square Logo |
77910210 1/12/2010 |
4080582 1/3/2012 |
J. C. Penney Purchasing Corporation | |||
LC Square Logo |
77910193 1/12/2010 |
4080581 1/3/2012 |
J. C. Penney Purchasing Corporation | |||
LIZ CLAIBORNE |
73574821 12/23/1985 |
1422446 12/30/1986 |
J. C. Penney Purchasing Corporation | |||
LIZ CLAIBORNE |
73241762 12/6/1979 |
1167434 9/1/1981 |
J. C. Penney Purchasing Corporation |
Trademark |
Application No. Application Date |
Registration No. Registration Date |
Owner Name |
|||
LIZ CLAIBORNE |
75298341 5/27/1997 |
2202253 11/3/1998 |
J. C. Penney Purchasing Corporation | |||
LIZ CLAIBORNE |
73741678 7/22/1988 |
1529086 3/7/1989 |
J. C. Penney Purchasing Corporation | |||
LIZ CLAIBORNE |
74471255 12/20/1993 |
2010455 10/22/1996 |
J. C. Penney Purchasing Corporation | |||
LIZ CLAIBORNE |
75975430 11/15/1993 |
2131395 1/20/1998 |
J. C. Penney Purchasing Corporation | |||
LIZ CLAIBORNE |
73588531 3/17/1986 |
1442825 6/16/1987 |
J. C. Penney Purchasing Corporation | |||
LIZGOLF |
75256491 5/13/1997 |
2132747 1/27/1998 |
J. C. Penney Purchasing Corporation | |||
LIZWEAR |
78419600 5/17/2004 |
3059604 2/14/2006 |
J. C. Penney Purchasing Corporation | |||
Triangular Bottle Design |
73707097 1/22/1988 |
1507695 10/11/1988 |
J. C. Penney Purchasing Corporation | |||
GET YOUR PENNEYS WORTH |
86804119 10/29/2015 (Pending ITU) |
J. C. Penney Corporation, Inc. | ||||
DISCOVER THE REAL SECRET |
85104972 8/11/2010 |
4037300 10/11/2011 |
J. C. Penney Corporation, Inc. | |||
NEW LOOK. NEW DAY. WHO KNEW. |
77942685 2/23/2010 |
3895410 12/21/2010 |
J. C. Penney Corporation, Inc. | |||
TOWNCRAFT |
73573635 12/16/1985 |
1404163 8/5/1986 |
J. C. Penney Purchasing Corporation | |||
LIZ CLAIBORNE |
73461219 1/16/1984 |
1317038 1/29/1985 |
J. C. Penney Purchasing Corporation | |||
LIZ CLAIBORNE |
85341825 6/9/2011 |
4063464 11/29/2011 |
J. C. Penney Purchasing Corporation | |||
LIZWEAR |
73505162 10/22/1984 |
1346383 7/2/1985 |
J. C. Penney Purchasing Corporation | |||
LIZ SPORT |
73530271 4/2/1985 |
1371423 11/19/1985 |
J. C. Penney Purchasing Corporation | |||
Triangular Bottle Design |
73707096 1/22/1988 |
1533845 4/11/1989 |
J. C. Penney Purchasing Corporation |
(F) | Trademark Licenses |
Licensor |
Licensee |
Marks Licensed |
Type of License |
|||
Liz Claiborne, Inc., Liz Claiborne Cosmetics, Inc., L.C. Licensing, Inc., Juicy Couture, Inc. and Lucky Brand Dungarees, Inc. (collectively, | Elizabeth Arden, Inc. (Licensee) | The term Licensed Marks means LIZ CLAIBORNE, LIZ CLAIBORNE NEW YORK, CLAIBORNE, and LIZ (Liz Stand-Alone Marks), Liz Combination Marks (Marks incorporating a Liz Stand-Alone Mark with a Non-Liz Mark (e.g. CURVE, BORA BORA, MAMBO etc.) and |
Licensor grants to Licensee an exclusive, royalty-bearing license to use the Licensed Marks to manufacture, market, advertise, promote, sell and distribute the licensed products to all accounts where prestige fragrance products are sold worldwide.
Notwithstanding anything to the contrary Licensor grants to Licensee an exclusive, |
Licensor |
Licensee |
Marks Licensed |
Type of License |
|||
Licensor)* | Juicy Couture, Kate Spade and other marks not involved in the contemplated transaction | fully-paid, royalty-free license to use the Liz Combination Marks to manufacture, market, advertise, promote, sell and distribute Licensed Products bearing the Liz Combination Marks (but not Licensed Marks without the Non-Liz Marks) to all accounts where prestige fragrances are sold worldwide. | ||||
L.C. Licensing, Inc.* | The Levy Group |
(1) Liz Claiborne (2) Elisabeth (3) Claiborne (each of (1), (2), and (3) in a certain type style and typeface) (4) Crazy Horse (5) First Issue (6) Liz Sport (7) Liz Claiborne Woman (8) Composites for Claiborne (9) Axcess (10) Sudio by Liz Claiborne (11) Liz Claiborne Lizwear (12) Studio A Claiborne Company (13) Composites by Liz Claiborne (14) Composites A Claiborne Company (15) Classics by Liz Claiborne (16) Classics A Claiborne Company |
Exclusive license to use each licensed mark (other than Elisabeth and Liz Claiborne Woman) as a trademark in connection with the manufacture, advertising, merchandising, promotion, sale and distribution to the trade. | |||
Liz Claiborne, Inc. (Company)* | QVC | LIZ CLAIBORNE NEW YORK (the Mark) | Company grants to QVC during the term, both exclusive and non-exclusive licenses in various territories to promote certain identified products using the Mark | |||
J. C. Penney Purchasing Corporation | Safilo, USA |
Liz Claiborne Claiborne |
Exclusive license to use each licensed mark in the territory as trademarks in connection with the manufacture, advertising, merchandising, promotion, sale and distribution of approved LC merchandise to approved customers | |||
J. C. Penney Corporation, Inc. (Purchaser) | Liz Claiborne, Inc. (Seller) |
Liz Claiborne New York LCNY |
Purchaser grants to Seller a royalty free reverse license with respect to certain acquired trademarks, as part of the acquisition. |
* | J. C. Penney Corporation acquired the Trademarks referred to herein subject to the Trademark licenses referred to herein, which are continuing pursuant to the terms of the underlying license agreements. |
(G) | Trade Secret Licenses |
None.
APPENDIX A
001 | Earring. Style no 9920. VA000063448. |
002 | Optimal earring: no 05005. VA0000234622. |
003 | Optimal necklace: no 08050. VA0000234621. |
004 | Harp pin with rhinestones: no 47686-G/CRY. VA0000757611. |
005 | Christmas tree pin: no 47412. VA0000825387. |
006 | Christmas tree pin with rhinestones: 47412-GCRY. VA0000764458. |
007 | Flower swirl pin with rhinestones in center: 47418-G/CRY. VA0000757612. |
008 | Snowflake pin with rhinestones: no 47414-G/CRY. VA0000757610. |
009 | 14K earwire: no 38046. VA0000825395. |
010 | 14K gold filled earwires: no 45370. VA0000867887. |
011 | 14K gold filled earwires: no 45651. VA0000867888. |
012 | 14K gold filled earwires: no 92839. VA0000867894. |
013 | 14K gold filled earwires: no 93658. VA0000867896. |
014 | 14K gold posts: no 65844. VA0000858780. |
015 | 34882. VA0000825327. |
016 | 36697. VA0000825321. |
017 | 36766. VA0000825322. |
018 | 37191. VA0000825363. |
019 | 45165. VA0000867947. |
020 | 45360. VA0000867923. |
021 | 45409PE. VA0000878073. |
022 | 45840. VA0000878071. |
023 | 45843. VA0000878070. |
024 | 45854. VA0000867585. |
025 | 45855. VA0000867906. |
026 | 45856. VA0000867587. |
027 | 45857. VA0000867586. |
028 | 45860. VA0000867865. |
029 | 45861. VA0000867956. |
030 | 45862. VA0000867588. |
031 | 45866. VA0000867922. |
032 | 45869. VA0000867907. |
033 | 45882. VA0000867898. |
034 | 45886. VA0000867867. |
035 | 45892. VA0000867921. |
036 | 45893. VA0000867948. |
037 | 45894. VA0000867869. |
038 | 45897. VA0000867920. |
039 | 45898. VA0000867955. |
040 | 45902. VA0000878083. |
041 | 45905. VA0000867895. |
042 | 46165. VA0000878077. |
043 | 46242. VA0000878072. |
044 | 49386. VA0000878084. |
045 | Bracelet: no 36186. VA0000842970. |
046 | Bracelet: no 37179. VA0000842919. |
047 | Bracelet: no 37578. VA0000843077. |
048 | Bracelet: no 39944. VA0000858778. |
049 | Bracelet: no 44273. VA0000842981. |
050 | Bracelet: no 44761. VA0000858785. |
051 | Bracelet: no 45393. VA0000842987. |
052 | Bracelet: no 45394. VA0000843107. |
053 | Bracelet: no 45580. VA0000842855. |
054 | Bracelet: no 45596. VA0000842853. |
055 | Bracelet: no 65064. VA0000842980. |
056 | Bracelet: no 65183. VA0000843101. |
057 | Bracelet: no 65259. VA0000842969. |
058 | Bracelet: no 65260. VA0000842893. |
059 | Bracelet: no 65261. VA0000842922. |
060 | Bracelet: no 65395. VA0000858763. |
061 | Bracelet: no 66258. VA0000843096. |
062 | Bracelet: no 92626. VA0000843085. |
063 | Bracelet: no 92632. VA0000843076. |
064 | Bracelet: style no 37562. VA0000842996. |
065 | Bracelet: style no 65196. VA0000843084. |
066 | Charm: style no 45863. VA0000867910. |
067 | Charms: style no 45852. VA0000867957. |
068 | Charms: style no 45858. VA0000867945. |
069 | Charms: style no 45879. VA0000867946. |
070 | Charms: style no 45895. VA0000867584. |
071 | Charms: style no 45896. VA0000867583. |
072 | Charms: style no 45904. VA0000867873. |
073 | Clip earring: no 41599. VA0000825388. |
074 | Clip earring: no 41655. VA0000843087. |
075 | Clip earring: no 41919. VA0000842844. |
076 | Clip earring: no 45379. VA0000842858. |
077 | Clip earring: no 45381. VA0000842907. |
078 | Clip earring: no 45415. VA0000842912. |
079 | Clip earring: no 45416. VA0000842983. |
080 | Clip earring: no 45635. VA0000842918. |
081 | Clip earring: no 45658. VA0000842854. |
082 | Clip earring: no 45724. VA0000842992. |
083 | Clip earring: no 65284. VA0000842917. |
084 | Clip earring: no 66279. VA0000842840. |
085 | Clip earring: no 66280. VA0000842998. |
086 | Clip earring: style no 45401. VA0000843090. |
087 | Clip earring: style no 45402. VA0000842847. |
088 | Clip earring: style no 45411. VA0000842900. |
089 | Clip earring: style no 45412. VA0000842904. |
090 | Clip earring: style no 46395. VA0000878092. |
091 | Clip earring: style no 45633. VA0000842994. |
092 | Clips: no 92675. VA0000867952. |
093 | Clips: no 93385. VA0000867893. |
094 | Clips: no 93692. VA0000867897. |
095 | Comfort clips: no 64340. VA0000867890. |
096 | Earwires: no 44768. VA0000843089. |
097 | Earwires: no 45371. VA0000842841. |
098 | Earwires: no 41917. VA0000842843. |
099 | Earwires: no 45404. VA0000842903. |
100 | Earwires: no 45406. VA0000842842. |
101 | Earwires: no 65070. VA0000843088. |
102 | Earwires: no 65073. VA0000843073. |
103 | Luxury clips: no 45673. VA0000867954. |
104 | Luxury clips: no 45677. VA0000867915. |
105 | Monet 96 holiday box. VA0000880959. |
106 | Monet clip earrings. VA0000825362. |
107 | Necklace: no 37142. VA0000842891. |
108 | Necklace: no 37148. VA0000842964. |
109 | Necklace: no 39919. VA0000858790. |
110 | Necklace: no 44242. VA0000842978. |
111 | Necklace: no 44754. VA0000843104. |
112 | Necklace: no 45345. VA0000842927. |
113 | Necklace: no 45346. VA0000843093. |
114 | Necklace: no 45348. VA0000842995. |
115 | Necklace: no 45349. VA0000842908. |
116 | Necklace: no 45351. VA0000842859. |
117 | Necklace: no 45353. VA0000842846. |
118 | Necklace: no 45356. VA0000842857. |
119 | Necklace: no 45357. VA0000842860. |
120 | Necklace: no 45382. VA0000843852. |
121 | Necklace: no 45383. VA0000842845. |
122 | Necklace: no 45383. VA0000842861. |
123 | Necklace: no 45384. VA0000842979. |
124 | Necklace: no 45392. VA0000842967. |
125 | Necklace: no 45616. VA0000843098. |
126 | Necklace: no 45618. VA0000842856. |
127 | Necklace: no 45638. VA0000842993. |
128 | Necklace: no 45639. VA0000842988. |
129 | Necklace: no 48048. VA0000907477. |
130 | Necklace: no 48104. VA0000907476. |
131 | Necklace: no 48123. VA0000907479. |
132 | Necklace: no 48181. VA0000907478. |
133 | Necklace: no 65052. VA0000842982. |
134 | Necklace: no 65055. VA0000842925. |
135 | Necklace: no 65058. VA0000842924. |
136 | Necklace: no 65250. VA0000842911. |
137 | Necklace: no 65258. VA0000843106. |
138 | Necklace: no 66249. VA0000842895. |
139 | Necklace: no 66250. VA0000843086. |
140 | Necklace: no 66251. VA0000842894. |
141 | Necklace: no 66252. VA0000843079. |
142 | Necklace: no 92500. VA0000842973. |
143 | Necklace: no 92600. VA0000842984. |
144 | Necklace: no 92606. VA0000842921. |
145 | Necklace: no 92612. VA0000842928. |
146 | Necklace: style no 44755. VA0000878088. |
147 | Necklace: style no 45385. VA0000842848. |
148 | Necklace: style no 45389. VA0000842965. |
149 | Necklace: style no 45619. VA0000842961. |
150 | Necklace: style no 45621. VA0000842976. |
151 | No 34367. VA0000825326. |
152 | No 34758. VA0000825354. |
153 | No 34889. VA0000825355. |
154 | No 35631. VA0000825324. |
155 | No 35635. VA0000825369. |
156 | No 35642. VA0000825325. |
157 | No 36180. VA0000825366. |
158 | No 36193. VA0000825353. |
159 | No 36531. VA0000825337. |
160 | No 36538. VA0000825329. |
161 | No 36642. VA0000825336. |
162 | No 36660. VA0000825323. |
163 | No 36679. VA0000825367. |
164 | No 36694. VA0000825365. |
165 | No 36694. VA0000825317. |
166 | No 36696. VA0000825340. |
167 | No 36703. VA0000825314. |
168 | No 36704. VA0000825319. |
169 | No 36708. VA0000825318. |
170 | No 36710. VA0000825338. |
171 | No 36747. VA0000825315. |
172 | No 36762. VA0000825313. |
173 | No 36773. VA0000825316. |
174 | No 36777. VA0000825320. |
175 | No 37141. VA0000825364. |
176 | No 37146. VA0000825368. |
177 | No 37561. VA0000825345. |
178 | No 37574. VA0000825335. |
179 | No 37579. VA0000825346. |
180 | No 37964. VA0000825374. |
181 | No 37965. VA0000825349. |
182 | No 37967. VA0000825356. |
183 | No 37968. VA0000825351. |
184 | No 37969. VA0000825373. |
185 | No 37973. VA0000825376. |
186 | No 37975. VA0000825352. |
187 | No 38007. VA0000825375. |
188 | No 38045. VA0000825359. |
189 | No 38048. VA0000825361. |
190 | No 38053. VA0000825360. |
191 | No 38434. VA0000825378. |
192 | No 38434. VA0000825378. |
193 | No 39527. VA0000825384. |
194 | No 39600. VA0000858779. |
195 | No 39602. VA0000858809. |
196 | No 39603. VA0000858827. |
197 | No 39604. VA0000858839. |
198 | No 39606. VA0000825380. |
199 | No 39920. VA0000858757. |
200 | No 39925. VA0000858765. |
201 | No 39927. VA0000858801. |
202 | No 39936. VA0000858833. |
203 | No 39938. VA0000858755. |
204 | No 39954. VA0000858811. |
205 | No 39999. VA0000825382. |
206 | No 41577. VA0000825377. |
207 | No 41600. VA0000858840. |
208 | No 41648. VA0000825383. |
209 | No 41745. VA0000858802. |
210 | No 41826. VA0000858804. |
211 | No 41916. VA0000825381. |
212 | No 44246. VA0000858775. |
213 | No 44247. VA0000858805. |
214 | No 44292. VA0000858813. |
215 | No 44338. VA0000858808. |
216 | No 44340. VA0000858756. |
217 | No 44360. VA0000858814. |
218 | No 44376. VA0000858803. |
219 | No 44424. VA0000858760. |
220 | No 44629. VA0000825312. |
221 | No 44689. VA0000825344. |
222 | No 44700. VA0000825342. |
223 | No 44705. VA0000825358. |
224 | No 44748. VA0000858838. |
225 | No 44752. VA0000825370. |
226 | No 44754. VA0000858752. |
227 | No 44759. VA0000858841. |
228 | No 44763. VA0000858789. |
229 | No 44764. VA0000858842. |
230 | No 44771. VA0000858843. |
231 | No 44778. VA0000858754. |
232 | No 44784. VA0000858835. |
233 | No 44785. VA0000858831. |
234 | No 44835. VA0000867908. |
235 | No 44844. VA0000858819. |
236 | No 44845. VA0000858847. |
237 | No 44847. VA0000858786. |
238 | No 44848. VA0000858766. |
239 | No 45215. VA0000858788. |
240 | No 45283. VA0000858753. |
241 | No 45305. VA0000825343. |
242 | No 45344. VA0000858816. |
243 | No 45358. VA0000867918. |
244 | No 45359. VA0000867881. |
245 | No 45361. VA0000867837. |
246 | No 45362. VA0000867879. |
247 | No 45363. VA0000867592. |
248 | No 45364. VA0000867591. |
249 | No 45365. VA0000867878. |
250 | No 45366. VA0000867868. |
251 | No 45367. VA0000867839. |
252 | No 45369. VA0000867875. |
253 | No 45374. VA0000867582. |
254 | No 45375. VA0000867880. |
255 | No 45376. VA0000867876. |
256 | No 45377. VA0000867838. |
257 | No 45378. VA0000867593. |
258 | No 45380. VA0000867874. |
259 | No 45418. VA0000867849. |
260 | No 45422. VA0000867886. |
261 | No 45423. VA0000867848. |
262 | No 45427. VA0000867850. |
263 | No 45428. VA0000867843. |
264 | No 45435. VA0000867842. |
265 | No 45433. VA0000867913. |
266 | No 45434. VA0000867844. |
267 | No 45437. VA0000867589. |
268 | No 45579. VA0000867903. |
269 | No 45590. VA0000867914. |
270 | No 45624. VA0000848334. |
271 | No 45652. VA0000867851. |
272 | No 45670. VA0000867949. |
273 | No 45674. VA0000867950. |
274 | No 45867. VA0000867863. |
275 | No 45903. VA0000867861. |
276 | No 46167. VA0000867862. |
277 | No 64794. VA0000825331. |
278 | No 64798. VA0000825328. |
279 | No 64800. VA0000825333. |
280 | No 64801. VA0000825347. |
281 | No 64802. VA0000825332. |
282 | No 64803. VA0000825330. |
283 | No 64804. VA0000858758. |
284 | No 64808. VA0000825334. |
285 | No 65062. VA0000848333. |
286 | No 65197. VA0000825341. |
287 | No 65251. VA0000825357. |
288 | No 65380. VA0000858782. |
289 | No 65381. VA0000858821. |
290 | No 65388. VA0000858815. |
291 | No 65396. VA0000858849. |
292 | No 65400. VA0000858787. |
293 | No 65408. VA0000858825. |
294 | No 65414. VA0000858846. |
295 | No 65414. VA0000858823. |
296 | No 65448. VA0000858768. |
297 | No 65450. VA0000858783. |
298 | No 65452. VA0000858818. |
299 | No 65681. VA0000858824. |
300 | No 65753. VA0000858777. |
301 | No 65754. VA0000858806. |
302 | No 65755. VA0000858817. |
303 | No 65760. VA0000858836. |
304 | No 65762. VA0000858751. |
305 | No 65772. VA0000858812. |
306 | No 65773. VA0000858764. |
307 | No 65774. VA0000858851. |
308 | No 65776. VA0001018786. |
309 | No 65778. VA0000858769. |
310 | No 65779. VA0000858810. |
311 | No 65780. VA0000858822. |
312 | No 65782. VA0000858781. |
313 | No 65785. VA0000858807. |
314 | No 65787. VA0000858770. |
315 | No 65788. VA0000858776. |
316 | No 65789. VA0000858830. |
317 | No 65790. VA0000858837. |
318 | No 65830. VA0000858828. |
319 | No 65846. VA0000858829. |
320 | No 65847. VA0000858850. |
321 | No 65873. VA0000858784. |
322 | No 65874. VA0000867859. |
323 | No 65878. VA0000858845. |
324 | No 65879. VA0000858820. |
325 | No 65913. VA0000825372. |
326 | No 65914. VA0000825371. |
327 | No 66021. VA0000858852. |
328 | No 66026. VA0000858774. |
329 | No 66027. VA0000858826. |
330 | No 66028. VA0000858848. |
331 | No 66030. VA0000867912. |
332 | No 66031. VA0000858773. |
333 | No 66032. VA0000858844. |
334 | No 66033. VA0000858834. |
335 | No 66034. VA0000867872. |
336 | No 66045. VA0000858771. |
337 | No 66067. VA0000867866. |
338 | No 66069. VA0000867889. |
339 | No 66072. VA0000867961. |
340 | No 66073. VA0000867902. |
341 | No 92120. VA0000825385. |
342 | No 92130. VA0000825386. |
343 | No 92598. VA0000867835. |
344 | No 92604. VA0000867856. |
345 | No 92614. VA0000867857. |
346 | No 92616. VA0000867884. |
347 | No 92647. VA0000867882. |
348 | No 92649. VA0000867594. |
349 | No 92659. VA0000867845. |
350 | No 92677. VA0000867951. |
351 | No 92679. VA0000867891. |
352 | No 92691. VA0000867841. |
353 | No 92697. VA0000867871. |
354 | No 92705. VA0000867870. |
355 | No 92707. VA0000867853. |
356 | No 92709. VA0000867883. |
357 | No 92713. VA0000867858. |
358 | No 92717. VA0000867840. |
359 | No 92829. VA0000867846. |
360 | No 92835. VA0000867924. |
361 | No 92849. VA0000867854. |
362 | No 92851. VA0000867855. |
363 | No 92855. VA0000867860. |
364 | No 92865. VA0000867885. |
365 | No 93113. VA0000867836. |
366 | No 93141. VA0000867917. |
367 | No 93173. VA0000867909. |
368 | No 93253. VA0000867959. |
369 | No 93263. VA0000867579. |
370 | No 93281. VA0000867577. |
371 | No 93285. VA0000867578. |
372 | No 93289. VA0000867899. |
373 | No 93327. VA0000867580. |
374 | No 93331. VA0000867892. |
375 | No 93652. VA0000867864. |
376 | No 93678. VA0000867852. |
377 | No 93811. VA0000867847. |
378 | Pierced earring: no 34365. VA0000842991. |
379 | Pierced earring: no 37193. VA0000843069. |
380 | Pierced earring: no 41578. VA0000843082. |
381 | Pierced earring: no 41635. VA0000843105. |
382 | Pierced earring: no 41696. VA0000842986. |
383 | Pierced earring: no 41744. VA0000825393. |
384 | Pierced earring: no 45350. VA0000843081. |
385 | Pierced earring: no 45372. VA0000842906. |
386 | Pierced earring: no 45407. VA0000842959. |
387 | Pierced earring: no 45408. VA0000842901. |
388 | Pierced earring: no 45630. VA0000842909. |
389 | Pierced earring: no 45654. VA0000842905. |
390 | Pierced earring: no 45684. VA0000842997. |
391 | Pierced earring: no 48209. VA0000907475. |
392 | Pierced earring: no 49026. VA0000907480. |
393 | Pierced earring: no 65074. VA0000842914. |
394 | Pierced earring: no 65274. VA0000843074. |
395 | Pierced earring: no 92524. VA0000842916. |
396 | Pierced earring: no 92671. VA0000843094. |
397 | Pierced earring: no 93381. VA0000843071. |
398 | Pierced earring: no 93855. VA0000842926. |
399 | Pierced earring: style no 45399. VA0000842962. |
400 | Pierced earring: style no 45400. VA0000842897. |
401 | Pierced earring: style no 45403. VA0000842898. |
402 | Pierced earring: style no 45405. VA0000842902. |
403 | Pierced earring: style no 45413. VA0000842896. |
404 | Pierced earring: style no 45414. VA0000842899. |
405 | Pierced earring: style no 45628. VA0000842966. |
406 | Pierced earring: style no 45629. VA0000842989. |
407 | Pierced earring: style no 45632. VA0000842977. |
408 | Pierced earring: style no 45688. VA0000842985. |
409 | Pierced earring: style no 45692. VA0000842971. |
410 | Pierced earring: style no 66263. VA0000842849. |
411 | Pierced earring: style no 66275. VA0000842892. |
412 | Pin: no 34790. VA0000842850. |
413 | Pin: no 37184. VA0000842972. |
414 | Pin: no 37966. VA0000825392. |
415 | Pin: no 38008. VA0000825394. |
416 | Pin: no 39987. VA0000943103. |
417 | Pin: no 39988. VA0000858761. |
418 | Pin: no 39995. VA0000843083. |
419 | Pin: no 39998. VA0000858762. |
420 | Pin: no 45329. VA0000867916. |
421 | Pin: no 45396. VA0000843108. |
422 | Pin: no 45419. VA0000867904. |
423 | Pin: no 45420. VA0000867911. |
424 | Pin: no 45426. VA0000867901. |
425 | Pin: no 45429. VA0000867905. |
426 | Pin: no 45435. VA0000867900. |
427 | Pin: no 64799. VA0000842839. |
428 | Pin: no 65067. VA0000842923. |
429 | Pin: no 65068. VA0000842960. |
430 | Pin: no 65262. VA0000842963. |
431 | Pin: no 65263. VA0000842851. |
432 | Pin: no 65264. VA0000842968. |
433 | Pin: no 65399. VA0000842975. |
434 | Pin: no 65680. VA0000843070. |
435 | Pin: no 65777. VA0000843075. |
436 | Pin: no 65783. VA0000842929. |
437 | Pin: no 66260. VA0000843099. |
438 | Pin: no 66262. VA0000843078. |
439 | Pin: no 92638. VA0000842920. |
440 | Pin: no 92640. VA0000842910. |
441 | Pin: no 92642. VA0000843102. |
442 | Pin: no 92687. VA0000843100. |
443 | Pin: no 92693. VA0000842930. |
444 | Pin: no 92699. VA0000843080. |
445 | Pin: no 92711. VA0000842913. |
446 | Pin: no 93175. VA0000842974. |
447 | Pin: no 93287. VA0000867590. |
448 | Pin: no 93624. VA0000867919. |
449 | Pin: style no 34793. VA0000843072. |
450 | Pin: style no 45388. VA0000842915. |
451 | Pin: style no 45397. VA0000842990. |
452 | Pin: style no 45398. VA0000843091. |
453 | Pin: style no 45425. VA0000843092. |
454 | Pin: style no 45625. VA0000843095. |
455 | Pin: style no 92719. VA0000843097. |
456 | Sterling silver bracelet: style no 36671. VA0000825391. |
457 | Sterling silver clip earring: no 36765. VA0000825390. |
458 | Sterling silver pierced earring: no 36776. VA0000825389. |
459 | Style no 46241. VA0000878086. |
460 | Surgical steel earwires: no 41905. VA0000858767. |
461 | Surgical steel earwires: no 41907. VA0000858759. |
462 | Surgical steel earwires: no 41915. VA0000858772. |
463 | Surgical steel earwires: no 93293. VA0000867960. |
464 | Surgical steel eyewires: no 44726. VA0000825379. |
465 | Surgical steel posts: no 44773. VA0000858832. |
466 | Surgical steel posts: no 45368. VA0000867958. |
467 | Surgical steel posts: no 92644. VA0000867953. |
468 | Surgical steel posts: no 93301. VA0000867576. |
469 | Surgical steel posts: no 93305. VA0000867581. |
470 | Surgical steel posts: no 93674. VA0000867877. |
471 | 47166. VA0000878082. |
472 | 47253. vA0000878076. |
473 | 47977BRAC. VA0000878075. |
474 | 48320PE. VA0000878078. |
475 | 49391. VA0000878069. |
476 | 49393. VA0000878074. |
477 | 49405. VA0000878081. |
478 | 49414. VA0000878079. |
479 | 49460, 14KPE. VA0000878080. |
480 | 49465, 14KPE. va0000878085. |
481 | Charm: no 46166. VA0000878093. |
482 | Clip earring: style no 46403. VA0000878091. |
483 | Clip earring: style no 49368. VA0000878094. |
484 | Monet 96 Mothers Day box. VA0000880961. |
485 | Monet 97 national box. VA0000880957. |
486 | Necklace: style no 46390. VA0000878089. |
487 | Necklace: style no 48187. VA0000878087. |
488 | Necklace: style no 49534. |
489 | Pierced earring: style no 46409. VA0000878090. |
490 | Pin: style no 49403. VA0000878095. |
491 | 23798. VA0001011016. |
492 | 29141. VA0001011017. |
493 | 29142. VA0001011016. |
494 | 29143. VA0001011019. |
495 | 29144. VA0001011020. |
496 | 29145. VA0001011021. |
497 | 29146. VA0001011022. |
II. COMMERCIAL TORT CLAIMS
Description of Commercial Tort Claim
Claim of J. C. Penney Properties, Inc. against Hiram, LLC, the property owner, a professional engineering firm and the general contractors, in an amount between $1,000,000 and $2,000,000 for professional negligence that resulted in a store flood. The claim amount will represent the uninsured loss that is J. C. Penney Properties, Inc.s deductible under their insurance.
III. RESERVED.
SCHEDULE 5.4 TO AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT |
FINANCING STATEMENTS: |
Grantor |
Filing Jurisdiction(s) |
|||
J. C. Penney Company, Inc. | Delaware | |||
J. C. Penney Corporation, Inc. | Delaware | |||
J. C. Penney Purchasing Corporation | New York | |||
JCP Real Estate Holdings, Inc. | Delaware | |||
J. C. Penney Properties, Inc. | Delaware |
SCHEDULE 5.5 TO AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT |
(see attached)
Equipment
Locations
Store Number |
Type/Use |
Address |
City |
State |
||||
1 | MAIN STORE | 722 J.C. PENNEY DRIVE | KEMMERER | WY | ||||
4 | MAIN STORE | 990 22ND AVE S | BROOKINGS | SD | ||||
5 | MAIN STORE | 9501 ARLINGTON EXPY STE 105 | JACKSONVILLE | FL | ||||
7 | MAIN STORE | PO BOX 7126 | AUBURN | NY | ||||
12 | MAIN STORE | 78 E MAIN ST | PRICE | UT | ||||
16 | MAIN STORE | 1170 CENTRAL AVE | DUNKIRK | NY | ||||
17 | MAIN STORE | 1425 S SANTA FE AVE | CHANUTE | KS | ||||
26 | MAIN STORE | 124 S MAIN ST | PENDLETON | OR | ||||
27 | MAIN STORE | 12300 SE 82ND AVE | PORTLAND | OR | ||||
30 | MAIN STORE | 14301 BURNHAVEN DR | BURNSVILLE | MN | ||||
43 | MAIN STORE | 621 MAIN ST | ALAMOSA | CO | ||||
44 | MAIN STORE | 3542 S MARYLAND PKWY | LAS VEGAS | NV | ||||
46 | MAIN STORE | 701 RICHMOND RD | RICHMOND HEIGHTS | OH | ||||
52 | MAIN STORE | 321 MAIN ST | FORT MORGAN | CO | ||||
55 | MAIN STORE | 4600 S MEDFORD DR STE 2000 | LUFKIN | TX | ||||
56 | MAIN STORE | 413 DAKOTA AVE | WAHPETON | ND | ||||
58 | MAIN STORE | 2050 PONCE BY PASS STE 200 | PONCE | PR | ||||
63 | MAIN STORE | 212 E 2ND ST | THE DALLES | OR | ||||
65 | MAIN STORE | 1309 ADAMS AVE | LA GRANDE | OR | ||||
67 | MAIN STORE | 500 LEHIGH VALLEY MALL | WHITEHALL | PA | ||||
89 | MAIN STORE | 2321 DAVE LYLE BLVD | ROCK HILL | SC | ||||
90 | HOME STORE | 4861 NORTH STONE | TUCSON | AZ | ||||
90 | MAIN STORE | 4530 N ORACLE RD | TUCSON | AZ | ||||
99 | MAIN STORE | 300 CROSS CREEK MALL MORGANTOWN RD AND 401 BY-PASS | FAYETTEVILLE | NC | ||||
102 | MAIN STORE | 9801 CORTANA PL | BATON ROUGE | LA | ||||
104 | MAIN STORE | 201-209 WEST C ST | MCCOOK | NE | ||||
106 | MAIN STORE | 401 NE NORTHGATE WAY STE 475 | SEATTLE | WA | ||||
109 | ADDITIONAL SPACE | 1330 DUANE STREET | ASTORIA | OR | ||||
109 | MAIN STORE | 1343 COMMERCIAL ST | ASTORIA | OR | ||||
113 | MAIN STORE | PO BOX 668 | WILLISTON | ND | ||||
116 | MAIN STORE | 81 ROCKINGHAM PARK BLVD | SALEM | NH | ||||
120 | MAIN STORE | 301 WYOMING BLVD SE | CASPER | WY | ||||
129 | MAIN STORE | 600 S CARPENTER AVE | KINGSFORD | MI | ||||
130 | MAIN STORE | 601-635 HARRY L DR STE 99 | JOHNSON CITY | NY | ||||
133 | MAIN STORE | 25 LILAC MALL (RT 125) | ROCHESTER | NH | ||||
135 | MAIN STORE | 344 V BUCKLAND HLS DR STE 7000 | MANCHESTER | CT | ||||
141 | MAIN STORE | 1207 N COMMERCE | ARDMORE | OK | ||||
152 | MAIN STORE | 4835 PROMENADE PKWY | BESSEMER | AL | ||||
157 | MAIN STORE | 2180 S GILBERT RD | CHANDLER | AZ | ||||
161 | MAIN STORE | 5043 JIMMY LEE SMITH PKWY | HIRAM | GA | ||||
162 | MAIN STORE | 90 E LOCUST ST | CANTON | IL | ||||
163 | MAIN STORE | 800 FOXCROFT AVE STE 800 | MARTINSBURG | WV | ||||
168 | MAIN STORE | 300 MONTGOMERY MALL | NORTH WALES | PA | ||||
170 | MAIN STORE | 720 N 12TH ST (US 641) | MURRAY | KY | ||||
171 | MAIN STORE | 10225 77TH ST | PLEASANT PRAIRIE | WI | ||||
174 | LICENSE AGREEMENT | 901 AVE OF THE AMERICAS STE137 | NEW YORK | NY | ||||
174 | MAIN STORE | 100 W 33RD ST | NEW YORK | NY | ||||
178 | MAIN STORE | 333 MAIN ST STE 200 | OAK RIDGE | TN | ||||
179 | MAIN STORE | 6051 SKILLMAN ST | DALLAS | TX | ||||
182 | MAIN STORE | 1800 DAISY ST EXT STE 2 | CLEARFIELD | PA | ||||
183 | MAIN STORE | 2100 HAMILTON PLACE BLVD | CHATTANOOGA | TN | ||||
184 | MAIN STORE | 990 NW BLUE PKWY | LEES SUMMIT | MO |
Store Number |
Type/Use |
Address |
City |
State |
||||
185 | MAIN STORE | 1150 W CARL SANDBURG DR | GALESBURG | IL | ||||
192 | MAIN STORE | 11801 FAIR OAKS MALL | FAIRFAX | VA | ||||
194 | MAIN STORE | 9100 MCHUGH DR STE 576 | LANHAM | MD | ||||
195 | MAIN STORE | 63 SERRAMONTE CTR | DALY CITY | CA | ||||
196 | MAIN STORE | 222 S STATE ST | FAIRMONT | MN | ||||
197 | MAIN STORE | SEND TO SL SHARED SERVICES CTR | BROOKLYN | NY | ||||
198 | MAIN STORE | SEND TO SL SHARED SERVICES CTR | MONROE | NC | ||||
199 | MAIN STORE | 500 MONROEVILLE MALL | MONROEVILLE | PA | ||||
200 | MAIN STORE | SEND TO SL SHARED SERVICES CTR | SEATTLE | WA | ||||
201 | MAIN STORE | 10101 E INDEPENDENCE BLVD | MATTHEWS | NC | ||||
202 | MAIN STORE | 1754 FRANKLIN MILLS CIR | PHILADELPHIA | PA | ||||
204 | MAIN STORE | 2700 POTOMAC MILLS CIR | WOODBRIDGE | VA | ||||
207 | MAIN STORE | 2500 W MORELAND RD | WILLOW GROVE | PA | ||||
209 | MAIN STORE | 3411 MERCHANT BLVD | ABINGDON | MD | ||||
211 | MAIN STORE | 3200 W EMPIRE MALL | SIOUX FALLS | SD | ||||
214 | MAIN STORE | 200 WESTERN AVE NW STE A | FARIBAULT | MN | ||||
217 | MAIN STORE | 14370 BEAR VALLEY RD | VICTORVILLE | CA | ||||
218 | MAIN STORE | 6020 E 82ND ST STE 700 | INDIANAPOLIS | IN | ||||
219 | MAIN STORE | 3400 BELL AIR MALL | MOBILE | AL | ||||
220 | MAIN STORE | 1500 E WASHINGTON AVE | UNION GAP | WA | ||||
221 | MAIN STORE | 1155 CARLISLE ST | HANOVER | PA | ||||
224 | MAIN STORE | 787 INLAND CENTER DRIVE | SAN BERNARDINO | Lease | ||||
225 | MAIN STORE | 2005 VETERANS BLVD | DUBLIN | GA | ||||
226 | MAIN STORE | 2200 S 10TH ST | MCALLEN | TX | ||||
231 | MAIN STORE | 10450 S STATE ST STE 2106 | SANDY | UT | ||||
232 | ADDITIONAL SPACE | 4502 S STEELE | TACOMA | WA | ||||
232 | MAIN STORE | 4502 S STEELE STE 200 | TACOMA | WA | ||||
237 | MAIN STORE | 3 ORLAND SQ DR | ORLAND PARK | IL | ||||
241 | MAIN STORE | 2000 RT 38 STE 1000 | CHERRY HILL | NJ | ||||
244 | MAIN STORE | 1391 E HIGHLAND AVE STE 101 | SELMA | AL | ||||
246 | MAIN STORE | 20700 AVALON BLVD STE 500 | CARSON | CA | ||||
249 | MAIN STORE | 901 W MORTON | JACKSONVILLE | IL | ||||
250 | MAIN STORE | 67 LAKEWOOD CTR MALL | LAKEWOOD | CA | ||||
251 | HOME STORE | 8235 WEST BELL ROAD | PEORIA | AZ | ||||
251 | MAIN STORE | 7750 W ARROWHEAD TOWNE CENTER | GLENDALE | AZ | ||||
253 | MAIN STORE | 3501 GRANVILLE AVE | MUNCIE | IN | ||||
258 | MAIN STORE | 734 MARKET ST | FARMINGTON | MO | ||||
258 | SIGN AGREEMENT | 734 MARKET ST | FARMINGTON | MO | ||||
259 | MAIN STORE | 3111 S 31ST ST STE 3301 | TEMPLE | TX | ||||
260 | MAIN STORE | 950 DANA DR | REDDING | CA | ||||
268 | MAIN STORE | 2500 MEADOWBROOK MALL | BRIDGEPORT | WV | ||||
270 | MAIN STORE | 854 STATE RTE 13 | CORTLAND | NY | ||||
273 | MAIN STORE | 701 RUSSELL AVE | GAITHERSBURG | MD | ||||
278 | MAIN STORE | 1501 LAFAYETTE PKY STE E1 | LAGRANGE | GA | ||||
283 | MAIN STORE | 1057 BROAD ST | SUMTER | SC | ||||
286 | MAIN STORE | 4500 PEORIA ST (US 51) | PERU | IL | ||||
287 | MAIN STORE | 901 US 27 N STE 150 | SEBRING | FL | ||||
288 | MAIN STORE | 9500 SW WASHINGTON SQ RD | PORTLAND | OR | ||||
304 | MAIN STORE | 3550 MCCANN RD | LONGVIEW | TX | ||||
306 | MAIN STORE | 225 MAIN AVE N | THIEF RIVER FALLS | MN | ||||
309 | MAIN STORE | 640 NIBLACK BLVD | VINCENNES | IN | ||||
311 | MAIN STORE | 1980 N JEFFERSON ST | HUNTINGTON | IN |
Store Number |
Type/Use |
Address |
City |
State |
||||
318 | MAIN STORE | 101 APACHE MALL | ROCHESTER | MN | ||||
321 | MAIN STORE | 451 E ALTAMONTE DR STE 1301 | ALTAMONTE SPRINGS | FL | ||||
322 | MAIN STORE | 400 DUBOIS RD | COOKEVILLE | TN | ||||
324 | MAIN STORE | 870 W MARKET ST | TIFFIN | OH | ||||
327 | MAIN STORE | 87 VILLAGE SQUARE MALL | EFFINGHAM | IL | ||||
334 | MAIN STORE | 1330 TRAVIS BLVD | FAIRFIELD | CA | ||||
345 | MAIN STORE | 2200 W FLORIDA AVE | HEMET | CA | ||||
351 | MAIN STORE | 3057 E MAIN | RUSSELLVILLE | AR | ||||
355 | HOME STORE | 1251 US 31 N. | GREENWOOD | IN | ||||
355 | MAIN STORE | 1251 US 31 N | GREENWOOD | IN | ||||
365 | MAIN STORE | 214 BORGER S/C | BORGER | TX | ||||
367 | MAIN STORE | 400 BALD HILL RD | WARWICK | RI | ||||
370 | MAIN STORE | 1000 HILLTOP MALL | RICHMOND | CA | ||||
373 | MAIN STORE | 1262 VOCKE RD STE 300 | LA VALE | MD | ||||
384 | MAIN STORE | 2901 N GRAND AVE | AMES | IA | ||||
389 | HOME STORE | 5532 SPRINGDALE AVENUE | PLEASANTON | CA | ||||
389 | MAIN STORE | 1500 STONERIDGE MALL RD | PLEASANTON | CA | ||||
395 | MAIN STORE | 3405 E STATE ST | HERMITAGE | PA | ||||
400 | MAIN STORE | 125 S MICHIGAN AVE | BIG RAPIDS | MI | ||||
403 | MAIN STORE | 5953 W PARK AVE STE 3000 | HOUMA | LA | ||||
406 | MAIN STORE | 1100 N MAIN ST | ALTUS | OK | ||||
419 | MAIN STORE | 2021 N HIGHLAND AVE STE 15 | JACKSON | TN | ||||
424 | MAIN STORE | 7171 N DAVIS HWY STE 8220 | PENSACOLA | FL | ||||
426 | MAIN STORE | 251 HIGH ST | TORRINGTON | CT | ||||
439 | MAIN STORE | 600 EASTVIEW MALL | VICTOR | NY | ||||
450 | MAIN STORE | 1302 W I-40 FRONTAGE RD | GALLUP | NM | ||||
451 | MAIN STORE | 1140 SAN FERNANDO RD | SAN FERNANDO | CA | ||||
456 | MAIN STORE | 3404 W 13TH ST | GRAND ISLAND | NE | ||||
457 | MAIN STORE | 101 W WATER ST | DECORAH | IA | ||||
465 | MAIN STORE | 24140 MAGIC MOUNTAIN PKY | SANTA CLARITA | CA | ||||
466 | MAIN STORE | 150 HOMER ADAMS PKWY | ALTON | IL | ||||
478 | HOME STORE | 5685 SOUTH VIRGINIA STREET | RENO | NV | ||||
478 | MAIN STORE | 5200 MEADOWOOD MALL CIR | RENO | NV | ||||
479 | MAIN STORE | 6481 NEWBERRY RD | GAINESVILLE | FL | ||||
481 | MAIN STORE | 4201 YELLOWSTONE AVE | POCATELLO | ID | ||||
483 | MAIN STORE | 3936 E MARKET ST | LOGANSPORT | IN | ||||
485 | MAIN STORE | 4310 BUFFALO GAP RD | ABILENE | TX | ||||
487 | MAIN STORE | 3401 S US 41 | TERRE HAUTE | IN | ||||
494 | MAIN STORE | 600 MERCED MALL | MERCED | CA | ||||
495 | MAIN STORE | 1300 9TH AVE SE STE 3 | WATERTOWN | SD | ||||
496 | MAIN STORE | 1700 W COUNTY RD B-2 | ROSEVILLE | MN | ||||
497 | MAIN STORE | 305 MOUNT HOPE AVE | ROCKAWAY | NJ | ||||
514 | MAIN STORE | 830 MAIN ST UNIT 3 | PRESQUE ISLE | ME | ||||
528 | MAIN STORE | 1680 WRIGHT AVE | ALMA | MI | ||||
529 | MAIN STORE | 17301 VALLEY MALL RD STE 400 | HAGERSTOWN | MD | ||||
530 | MAIN STORE | 155 DORSET ST | SOUTH BURLINGTON | VT | ||||
536 | MAIN STORE | 300 EARLY BLVD | EARLY | TX | ||||
539 | MAIN STORE | RT 104 E | OSWEGO | NY | ||||
549 | MAIN STORE | 3301 VETERANS MEMORIAL BLVD | METAIRIE | LA | ||||
557 | MAIN STORE | 15740 WHITTWOOD LANE | WHITTIER | CA | ||||
559 | MAIN STORE | 2424 US 6TH AND 50TH | GRAND JUNCTION | CO | ||||
562 | MAIN STORE | 1701 SUNRISE HWY | BAYSHORE L I | NY | ||||
566 | MAIN STORE | 2555 EL CAMINO REAL | CARLSBAD | CA | ||||
568 | MAIN STORE | 300 S MAIN ST | MCALLEN | TX | ||||
578 | MAIN STORE | PO BOX 10010 | HOLYOKE | MA | ||||
579 | MAIN STORE | 4101 E 42ND ST | ODESSA | TX | ||||
581 | MAIN STORE | 800 S JAMES CAMPBELL BLVD | COLUMBIA | TN |
Store Number |
Type/Use |
Address |
City |
State |
||||
582 | MAIN STORE | 5001 MONROE ST | TOLEDO | OH | ||||
582 | PARKING | 5001 MONROE ST - 0.68 ACRE FOR | TOLEDO | OH | ||||
588 | MAIN STORE | 300 HWY 78 E | JASPER | AL | ||||
601 | ADDITIONAL SPACE | 3700 SOUTH MERIDIAN ST | PUYALLUP | WA | ||||
601 | MAIN STORE | 3700 S MERIDIAN ST | PUYALLUP | WA | ||||
607 | MAIN STORE | 1100 S DEWEY ST | NORTH PLATTE | NE | ||||
608 | MAIN STORE | 814 US HWY 62-65 N STE 27 | HARRISON | AR | ||||
611 | MAIN STORE | 6002 SLIDE RD-PO BOX 68611 | LUBBOCK | TX | ||||
620 | MAIN STORE | 1700 W INTL SPEEDWAY BLVD | DAYTONA BEACH | FL | ||||
631 | HOME STORE | 6065 NORTHWEST LOOP 410 | SAN ANTONIO | TX | ||||
631 | MAIN STORE | 6301 NW LOOP 410 | SAN ANTONIO | TX | ||||
634 | MAIN STORE | 3040 PLAZA BONITA RD | NATIONAL CITY | CA | ||||
643 | MAIN STORE | 4600 BAY RD | SAGINAW | MI | ||||
644 | MAIN STORE | 3301 DILLON DR | PUEBLO | CO | ||||
647 | MAIN STORE | 3315 N RIDGE RD E STE 100 | ASHTABULA | OH | ||||
651 | MAIN STORE | PR RD 2 KM 81.9 CARRIZALES | HATILLO | PR | ||||
652 | MAIN STORE | 2200 W WAR MEMORIAL DR STE 997 | PEORIA | IL | ||||
654 | MAIN STORE | 3541 MASONIC DR | ALEXANDRIA | LA | ||||
656 | MAIN STORE | 1200 10TH AVE S | GREAT FALLS | MT | ||||
658 | MAIN STORE | 5300 SAN DARIO | LAREDO | TX | ||||
663 | MAIN STORE | 3929 MCCAIN BLVD STE 500 | NORTH LITTLE ROCK | AR | ||||
666 | MAIN STORE | 2005 N 14TH ST STE 141 | PONCA CITY | OK | ||||
671 | MAIN STORE | 3199 N WHITE SANDS | ALAMOGORDO | NM | ||||
680 | MAIN STORE | 51027 HWY 6 | GLENWOOD SPRINGS | CO | ||||
681 | MAIN STORE | 2101 FT HENRY DR | KINGSPORT | TN | ||||
687 | MAIN STORE | 3700 ATLANTA HWY | ATHENS | GA | ||||
688 | MAIN STORE | 2600 BEACH BLVD | BILOXI | MS | ||||
689 | MAIN STORE | 2427 US HWY 90 W STE 10 | LAKE CITY | FL | ||||
691 | HOME STORE | 685 CONTRA COSTA BLVD. | PLEASANT HILL | CA | ||||
691 | MAIN STORE | 484 SUN VALLEY MALL | CONCORD | CA | ||||
695 | MAIN STORE | 700 HAYWOOD RD | GREENVILLE | SC | ||||
696 | ADDITIONAL SPACE | 1200 SOUTHCENTER S/C | SEATTLE | WA | ||||
696 | MAIN STORE | 1249 SOUTHCENTER MALL | TUKWILA | WA | ||||
699 | MAIN STORE | 1169 GLENDALE GALLERIA | GLENDALE | CA | ||||
699 | OUTSIDE STOCKROOM | 10888 LA TUNA CANYON RD. # H | GLENDALE | CA | ||||
700 | MAIN STORE | 500 QUAKER BRIDGE MALL | TRENTON | NJ | ||||
702 | MAIN STORE | 8401 GATEWAY BLVD W | EL PASO | TX | ||||
703 | LAND | 408 MITCHELL ST | PETOSKEY | MI | ||||
703 | MAIN STORE | 408 MITCHELL ST | PETOSKEY | MI | ||||
704 | MAIN STORE | 4651 27TH ST | MOLINE | IL | ||||
708 | MAIN STORE | 1800 PIPESTONE RD | BENTON HARBOR | MI | ||||
709 | MAIN STORE | 3115 E COLONIAL DR | ORLANDO | FL | ||||
712 | MAIN STORE | 3111 MIDWESTERN PKWY | WICHITA FALLS | TX | ||||
718 | MAIN STORE | 310 TOWNE CTR CIR | SANFORD | FL | ||||
731 | MAIN STORE | 3202 OAKVIEW DR | OMAHA | NE | ||||
733 | MAIN STORE | 800 S CAMINO DEL RIO | DURANGO | CO | ||||
738 | MAIN STORE | 925 WASHINGTON AVE | DETROIT LAKES | MN | ||||
739 | MAIN STORE | 2150 NORTHWOODS BLVD UNIT E100 | N CHARLESTON | SC | ||||
744 | MAIN STORE | 300 VALLEY RIVER CTR | EUGENE | OR | ||||
766 | MAIN STORE | 331 BRANDON TOWN CENTER MALL | BRANDON | FL | ||||
767 | MAIN STORE | 4316 MILAN RD | SANDUSKY | OH | ||||
768 | MAIN STORE | 3300 CHAMBERS RD STE 5090 | HORSEHEADS | NY | ||||
769 | MAIN STORE | 2190 IDAHO ST | ELKO | NV | ||||
778 | MAIN STORE | 1408 N PARHAM RD | RICHMOND | VA | ||||
779 | MAIN STORE | 6000 FLORENCE MALL | FLORENCE | KY | ||||
780 | MAIN STORE | 1718 E BLVD | KOKOMO | IN |
Store Number |
Type/Use |
Address |
City |
State |
||||
781 | MAIN STORE | 4101 S YALE AVE | TULSA | OK | ||||
784 | MAIN STORE | 3649 ERIE BLVD E STE 2 | DE WITT | NY | ||||
786 | MAIN STORE | 7900 GOVERNOR RITCHIE HWY | GLEN BURNIE | MD | ||||
794 | MAIN STORE | 3500 OLEANDER DR | WILMINGTON | NC | ||||
797 | MAIN STORE | 816 WALNUT SQUARE BLVD STE D | DALTON | GA | ||||
808 | MAIN STORE | 3187 N MAIN ST | ANDERSON | SC | ||||
814 | MAIN STORE | 625 BLACK LAKE BLVD | OLYMPIA | WA | ||||
816 | MAIN STORE | 606 CHRISTIANA MALL | NEWARK | DE | ||||
819 | MAIN STORE | 500 BRIARWOOD CIR | ANN ARBOR | MI | ||||
830 | MAIN STORE | PO BOX 2008 | LAUREL | MS | ||||
834 | MAIN STORE | 2000 N POINT CIR | ALPHARETTA | GA | ||||
835 | MAIN STORE | 117-19 E MAIN ST | SIDNEY | MT | ||||
838 | MAIN STORE | 810 W PARK AVE | GREENWOOD | MS | ||||
852 | MAIN STORE | 701 LYNN HAVEN PKWY | VIRGINIA BEACH | VA | ||||
863 | MAIN STORE | 680 CITADEL DR E | COLORADO SPRINGS | CO | ||||
864 | MAIN STORE | 3661 EISENHOWER PKWY STE 6 | MACON | GA | ||||
870 | MAIN STORE | 730 MEYERLAND PLAZA MALL | HOUSTON | TX | ||||
880 | MAIN STORE | 2471 FOOTHILL BLVD | ROCK SPRINGS | WY | ||||
881 | MAIN STORE | 7700 E KELLOGG DR | WICHITA | KS | ||||
882 | MAIN STORE | 2415 SAGAMORE PKWY S 52 | LAFAYETTE | IN | ||||
890 | MAIN STORE | 194 MAIN ST | STURBRIDGE | MA | ||||
891 | MAIN STORE | 135 E TOWNE MALL | MADISON | WI | ||||
895 | MAIN STORE | 150 PEARL NIX PKWY | GAINESVILLE | GA | ||||
899 | MAIN STORE | 639 STILLWATER AVE | BANGOR | ME | ||||
902 | MAIN STORE | 1201 HOOPER AVE STE B | TOMS RIVER | NJ | ||||
907 | MAIN STORE | 8201 S TAMIAMI TRAIL | SARASOTA | FL | ||||
909 | MAIN STORE | 1620 E 10TH ST STE 100 | ROANOKE RAPIDS | NC | ||||
910 | MAIN STORE | 4129 E WILDER RD | BAY CITY | MI | ||||
911 | MAIN STORE | 800 N 98TH ST | OMAHA | NE | ||||
914 | MAIN STORE | 1170 INDIANA AVE | ST MARYS | OH | ||||
916 | MAIN STORE | PO BOX 8709 | CAROLINA | PR | ||||
920 | MAIN STORE | 200 W PARK MALL | CAPE GIRARDEAU | MO | ||||
921 | MAIN STORE | 2231 S MISSION RD | MT PLEASANT | MI | ||||
924 | MAIN STORE | 160 N GULPH RD STE 5000 | KING OF PRUSSIA | PA | ||||
933 | MAIN STORE | 300 WESTFARMS MALL | FARMINGTON | CT | ||||
951 | MAIN STORE | 1365 N DUPONT HWY STE 5000 | DOVER | DE | ||||
952 | MAIN STORE |
630 OLD COUNTRY RD UNIT A2 630 OLD COUNTRY ROAD |
GARDEN CITY | NY | ||||
952 | TRASH COMPACTOR | 250 DUFFY AVE | HICKSVILLE | NY | ||||
954 | MAIN STORE | 234 N MAIN ST | SHERIDAN | WY | ||||
955 | MAIN STORE | 6420 S PACIFIC BLVD | HUNTINGTON PARK | CA | ||||
965 | MAIN STORE | 1845 N WEST AVE | EL DORADO | AR | ||||
972 | MAIN STORE | 220 GOLF MILL CTR | NILES | IL | ||||
982 | MAIN STORE | 7777 EASTPOINT MALL | BALTIMORE | MD | ||||
993 | MAIN STORE | 2418 SW MILITARY DR | SAN ANTONIO | TX | ||||
995 | MAIN STORE | MERCER MALL BOX 7106 | BLUEFIELD | WV | ||||
996 | MAIN STORE | 4401 S BROADWAY | TYLER | TX | ||||
1002 | MAIN STORE | 4348 ELECTRIC RD | ROANOKE | VA | ||||
1012 | MAIN STORE | 75 MAVERICK ST RT 1A | ROCKLAND | ME | ||||
1020 | MAIN STORE | 1671 W LACEY BLVD | HANFORD | CA | ||||
1024 | MAIN STORE | 236 E 5TH ST N | BURLEY | ID | ||||
1028 | MAIN STORE | 315 E SECOND ST | CALEXICO | CA | ||||
1031 | MAIN STORE | 220 ENNIS LN | TOWANDA | PA | ||||
1033 | MAIN STORE | 3000 DUNN AVE UNIT 25 | JACKSONVILLE | FL | ||||
1037 | MAIN STORE | 3401 DALE RD | MODESTO | CA | ||||
1046 | MAIN STORE | 2201 S INTERSTATE 35 E STE D | DENTON | TX | ||||
1048 | MAIN STORE | 200 SIDNEY BAKER ST S (HWY 16) | KERRVILLE | TX |
Store Number |
Type/Use |
Address |
City |
State |
||||
1049 | MAIN STORE | 4 FOX VALLEY CTR | AURORA | IL | ||||
1052 | MAIN STORE | 220 W MARIPOSA RD | NOGALES | AZ | ||||
1056 | MAIN STORE | 3701 S MAIN ST (US 33) | ELKHART | IN | ||||
1058 | MAIN STORE | 1386 E COURT ST | SEGUIN | TX | ||||
1064 | ADDITIONAL SPACE |
311 EAST OVERLAND STREET 109-111 SOUTH STATION STREET |
EL PASO | TX | ||||
1064 | ADDITIONAL SPACE | 315 E OVERLAND ST | EL PASO | TX | ||||
1064 | MAIN STORE | 324 E SAN ANTONIO ST | EL PASO | TX | ||||
1067 | MAIN STORE | 1904 E 9TH ST | WINFIELD | KS | ||||
1068 | MAIN STORE | 202 E CENTENNIAL DR | PITTSBURG | KS | ||||
1071 | MAIN STORE | 2000 BRITTAIN RD STE 600 | AKRON | OH | ||||
1076 | MAIN STORE | 1060 HWY 15 S | HUTCHINSON | MN | ||||
1081 | MAIN STORE | 1780 GALLERIA BLVD | FRANKLIN | TN | ||||
1086 | MAIN STORE | 619 N PERKINS RD | STILLWATER | OK | ||||
1091 | MAIN STORE | 1401 PAUL BUNYAN DR NW STE 2 | BEMIDJI | MN | ||||
1101 | MAIN STORE | 715 E EXPRESSWAY 83 | WESLACO | TX | ||||
1106 | MAIN STORE | 1950 PRAIRIE CENTER PKWY | BRIGHTON | CO | ||||
1116 | MAIN STORE | 1744 E CARL ALBERT PKWY | MCALESTER | OK | ||||
1117 | TBA | NORTH NEW HOPE ROAD | GASTONIA | NC | ||||
1122 | MAIN STORE | 2501 W MEMORIAL RD | OKLAHOMA CITY | OK | ||||
1128 | MAIN STORE | 2520 GULF FWY S | LEAGUE CITY | TX | ||||
1130 | MAIN STORE | 3501 E BROADWAY | TUCSON | AZ | ||||
1134 | MAIN STORE | 80 VIEWMONT MALL | SCRANTON | PA | ||||
1135 | MAIN STORE | 3409 CANDLERS MOUNTAIN RD | LYNCHBURG | VA | ||||
1140 | MAIN STORE | 4541 S LABURNUM AVE | RICHMOND | VA | ||||
1141 | MAIN STORE | 1651 STATE HWY 1 S | GREENVILLE | MS | ||||
1142 | MAIN STORE | 951 W PACHECO BLVD | LOS BANOS | CA | ||||
1143 | MAIN STORE | 428 N STATE HWY 19 | PALATKA | FL | ||||
1148 | MAIN STORE | 300 MARY ESTHER BLVD | MARY ESTHER | FL | ||||
1150 | MAIN STORE | STATE HWY 35 AND 36 | EATONTOWN | NJ | ||||
1153 | MAIN STORE | 2601 CENTRAL AVE | DODGE CITY | KS | ||||
1155 | MAIN STORE | 1300 E PINECREST DR | MARSHALL | TX | ||||
1156 | MAIN STORE | 4915 CLAREMONT AVE | STOCKTON | CA | ||||
1158 | MAIN STORE | 1501 E MAIN | ALICE | TX | ||||
1159 | MAIN STORE | 350 JOHN R JUNKIN DR | NATCHEZ | MS | ||||
1161 | MAIN STORE | 5256 ROUTE 30 | GREENSBURG | PA | ||||
1163 | MAIN STORE | 1375 US 127 S | FRANKFORT | KY | ||||
1164 | MAIN STORE | 2800 S COLUMBIA RD | GRAND FORKS | ND | ||||
1165 | MAIN STORE | 1826-19TH AVE | LEWISTON | ID | ||||
1166 | MAIN STORE | 18900 MICHIGAN AVE (US 12) | DEARBORN | MI | ||||
1168 | MAIN STORE | 14200 E ALAMEDA AVE | AURORA | CO | ||||
1170 | MAIN STORE | 700 QUINTARD DR STE 100 | OXFORD | AL | ||||
1180 | MAIN STORE | 260 WAYNE TOWNE CTR | WAYNE | NJ | ||||
1188 | HOME STORE | 3402 SOUTH GLENSTONE AVENUE | SPRINGFIELD | MO | ||||
1188 | MAIN STORE | 2825 S GLENSTONE AVE STE 200 | SPRINGFIELD | MO | ||||
1190 | MAIN STORE | 175 YORKTOWN S/C | LOMBARD | IL | ||||
1192 | MAIN STORE | 600 SUNRISE MALL | MASSAPEQUA L I | NY | ||||
1195 | MAIN STORE | 95 N MOORLAND RD | BROOKFIELD | WI | ||||
1198 | MAIN STORE | 1500 KANSAS AVE | GREAT BEND | KS | ||||
1200 | FOUNDRY | 190 E STACY RD STE 310 | ALLEN | TX | ||||
1201 | FOUNDRY | 3211 PRESTON ROAD, SUITE 12 | FRISCO | TX | ||||
1203 | FOUNDRY | 1101 MELBOURNE RD SUITE 3077 | HURST | TX | ||||
1206 | MAIN STORE | 6100 SUNRISE BLVD | CITRUS HTS | CA | ||||
1207 | FOUNDRY | 11745 W 95TH ST | OVERLAND PARK | KS | ||||
1208 | MAIN STORE | 1122 N UNIVERSITY DR | NACOGDOCHES | TX | ||||
1210 | MAIN STORE | 3700 STATE RD 16 | LA CROSSE | WI | ||||
1212 | MAIN STORE | 3075 CLAIRTON RD STE 100 | WEST MIFFLIN | PA |
Store Number |
Type/Use |
Address |
City |
State |
||||
1216 | FOUNDRY | 18801 E 39TH ST S | INDEPENDENCE | MO | ||||
1217 | MAIN STORE | 23 WEST TOWNE MALL | MADISON | WI | ||||
1223 | MAIN STORE | 24200 LAGUNA HILLS MALL | LAGUNA HILLS | CA | ||||
1226 | MAIN STORE | 400 PARK CITY S/C | LANCASTER | PA | ||||
1228 | MAIN STORE | 2500 S CENTER ST | MARSHALLTOWN | IA | ||||
1229 | MAIN STORE | 280 HILLCREST DR W | THOUSAND OAKS | CA | ||||
1240 | MAIN STORE | 504 N ADAMS ST | CARROLL | IA | ||||
1241 | MAIN STORE | 100 NORTHRIDGE MALL | SALINAS | CA | ||||
1248 | MAIN STORE | 4150 S HWY 27 | SOMERSET | KY | ||||
1250 | MAIN STORE | 757 E LEWIS & CLRK PKY STE 701 | CLARKSVILLE | IN | ||||
1256 | MAIN STORE | 1321 N COLUMBIA CTR BLVD # 100 | KENNEWICK | WA | ||||
1262 | MAIN STORE | 50 HAMPTON VILLAGE PLAZA | ST LOUIS | MO | ||||
1270 | MAIN STORE | 3939 S CARSON ST | CARSON CITY | NV | ||||
1274 | MAIN STORE | 591 BROADWAY | CHULA VISTA | CA | ||||
1274 | OUTSIDE STOCKROOM | 775 ANITA STREET, STE A | CHULA VISTA | CA | ||||
1288 | MAIN STORE | 2200 N MAPLE AVE | RAPID CITY | SD | ||||
1296 | MAIN STORE | 2918 VINE ST STE 2001 | HAYS | KS | ||||
1302 | TBA | MONROEVILLE | PA | |||||
1306 | MAIN STORE | 35000 W WARREN RD | WESTLAND | MI | ||||
1308 | MAIN STORE | 5000 SHELBYVILLE RD | LOUISVILLE | KY | ||||
1313 | MAIN STORE | 100 HWY 332 W STE 1260 | LAKE JACKSON | TX | ||||
1315 | MAIN STORE | 718 NORTHSIDE DR E STE 25 | STATESBORO | GA | ||||
1319 | MAIN STORE | 1530 COSHOCTON AVE | MT VERNON | OH | ||||
1320 | MAIN STORE | 3320 SILAS CREEK PKWY STE 460 | WINSTON-SALEM | NC | ||||
1321 | MAIN STORE | 777 E MERRITT ISL CSWY STE 210 | MERRITT ISLAND | FL | ||||
1322 | MAIN STORE | 1560 HOUSTONVILLE RD STE 301 | DANVILLE | KY | ||||
1323 | MAIN STORE | 5100 GREAT NORTHERN MALL | N OLMSTED | OH | ||||
1324 | MAIN STORE | 1118 JAMES AVE | BEDFORD | IN | ||||
1327 | MAIN STORE | 100 FOUR SEASONS TOWN CTR | GREENSBORO | NC | ||||
1330 | MAIN STORE | 5488 S PADRE ISLAND DR STE4000 | CORPUS CHRISTI | TX | ||||
1337 | MAIN STORE | 100 STONEWOOD ST | DOWNEY | CA | ||||
1339 | MAIN STORE | 101 RANGE LINE STE 250A | JOPLIN | MO | ||||
1348 | MAIN STORE | 3560 LAMAR AVE HWY 82 | PARIS | TX | ||||
1351 | MAIN STORE | 3100 SW COLLEGE RD | OCALA | FL | ||||
1352 | MAIN STORE | 700 W 14 MILE RD | TROY | MI | ||||
1360 | HOME STORE | 8881 SOUTHWEST 107TH AVENUE | MIAMI | FL | ||||
1360 | MAIN STORE | 7201 N KENDALL DR | MIAMI | FL | ||||
1362 | MAIN STORE | 1600 A MILLER TRUNK HWY | DULUTH | MN | ||||
1368 | MAIN STORE | 7507 W CERMAK RD | NORTH RIVERSIDE | IL | ||||
1373 | HOME STORE | 6933 LINDBERGH BOULEVARD | ST LOUIS | MO | ||||
1373 | MAIN STORE | 100 S COUNTY CENTER WAY | ST LOUIS | MO | ||||
1377 | MAIN STORE | 607 N BERKELEY BLVD | GOLDSBORO | NC | ||||
1385 | MAIN STORE | 201 S MAIN ST | BISHOP | CA | ||||
1388 | MAIN STORE | 205 N ORCHARD AVE | UKIAH | CA | ||||
1389 | MAIN STORE | 11801 W 95TH ST | OVERLAND PARK | KS | ||||
1389 | OUTSIDE STOCKROOM | 10602 LACKMAN RD., BLDG. B | LENEXA | KS | ||||
1392 | MAIN STORE | 250 PLAINFIELD RD UNIT 202 | WEST LEBANON | NH | ||||
1393 | MAIN STORE | 4257 N MAYO TRAIL | PIKEVILLE | KY | ||||
1398 | MAIN STORE | 23000 EUREKA RD STE A3 | TAYLOR | MI | ||||
1399 | MAIN STORE | 1700 MARKET LANE | NORFOLK | NE | ||||
1405 | MAIN STORE | 12421 WAYZATA BLVD | MINNETONKA | MN | ||||
1413 | MAIN STORE | 3601 S 2700 W | SALT LAKE CITY | UT | ||||
1417 | MAIN STORE | 400 S BALDWIN AVE | ARCADIA | CA | ||||
1419 | MAIN STORE | 1900 GREEN OAKS RD | FORT WORTH | TX | ||||
1431 | MAIN STORE | 2101 BROADWAY | YANKTON | SD | ||||
1432 | MAIN STORE | 14300 LAKESIDE CIR | STERLING HTS | MI | ||||
1433 | MAIN STORE | 1890 SOUTHLAKE MALL | MERRILLVILLE | IN |
Store Number |
Type/Use |
Address |
City |
State |
||||
1433 | OUTSIDE STOCKROOM | 3803 EAST LINCOLN HIGHWAY | MERRILLVILLE | IN | ||||
1443 | MAIN STORE | 245 ST CLAIR SQ | FAIRVIEW HGTS | IL | ||||
1445 | MAIN STORE | 1 SANGERTOWN SQ STE 55 | NEW HARTFORD | NY | ||||
1451 | MAIN STORE | 3340 MALL LOOP DR SPACE 2 | JOLIET | IL | ||||
1455 | MAIN STORE | 1850 APPLE BLOSSOM DR | WINCHESTER | VA | ||||
1462 | MAIN STORE | 6699 SPRINGFIELD MALL | SPRINGFIELD | VA | ||||
1467 | MAIN STORE | 5500 BUCKEYSTOWN PIKE | FREDERICK | MD | ||||
1475 | MAIN STORE | 27001 US HWY 19 N | CLEARWATER | FL | ||||
1480 | MAIN STORE | 4510 E CACTUS RD | PHOENIX | AZ | ||||
1481 | MAIN STORE | 201 WESTSHORE PLAZA | TAMPA | FL | ||||
1487 | MAIN STORE | 1129 N BALDWIN AVE STE 200 | MARION | IN | ||||
1489 | MAIN STORE | 5522 SHAFFER RD STE 09 | DU BOIS | PA | ||||
1493 | MAIN STORE | 100 FRANKLIN ST UNIT F | WESTERLY | RI | ||||
1503 | MAIN STORE | 1925 E MARKET ST | HARRISONBURG | VA | ||||
1505 | MAIN STORE | 1203 PLAZA DR | WEST COVINA | CA | ||||
1509 | MAIN STORE | 800 CODDINGTOWN CTR | SANTA ROSA | CA | ||||
1510 | MAIN STORE | 1303 NIAGARA FALLS BLVD | AMHERST | NY | ||||
1512 | MAIN STORE | 1228 MAIN ST | DELANO | CA | ||||
1514 | MAIN STORE | 303 301 BLVD W STE 701 | BRADENTON | FL | ||||
1529 | MAIN STORE | 755 STATE RT 18 STE 600 | E BRUNSWICK | NJ | ||||
1531 | MAIN STORE | 2300 E LINCOLN HWY | LANGHORNE | PA | ||||
1535 | MAIN STORE | 101 CLEARVIEW CIRCLE | BUTLER | PA | ||||
1539 | MAIN STORE | 555 W GRAND AVE STE M-1 | WISCONSIN RAPIDS | WI | ||||
1542 | MAIN STORE | 7601 S CICERO AVE | CHICAGO | IL | ||||
1559 | MAIN STORE | 2400 EDGEWOOD RD SW | CEDAR RAPIDS | IA | ||||
1572 | MAIN STORE | 6000 S HANNUM AVE | CULVER CITY | CA | ||||
1580 | MAIN STORE | 3225 28TH ST SE | GRAND RAPIDS | MI | ||||
1587 | MAIN STORE | 550 S GEAR AVE | W BURLINGTON | IA | ||||
1589 | MAIN STORE | 3575 MAPLE AVE | ZANESVILLE | OH | ||||
1590 | MAIN STORE | 4600 W KELLOGG RD | WICHITA | KS | ||||
1591 | MAIN STORE | 22 CLIFTON COUNTRY RD STE 2 | CLIFTON PARK | NY | ||||
1603 | MAIN STORE | 4217 SIX FORKS RD STE 100 | RALEIGH | NC | ||||
1612 | HOME STORE | 10201 UNIVERSITY AVENUE | CLIVE | IA | ||||
1612 | MAIN STORE | 1551 VALLEY WEST DR | W DES MOINES | IA | ||||
1614 | MAIN STORE | 5100 MONTCLAIR PLAZA LANE | MONTCLAIR | CA | ||||
1618 | MAIN STORE | 25 MIRACLE MILE DR | ROCHESTER | NY | ||||
1623 | MAIN STORE | 27150 NOVI RD | NOVI | MI | ||||
1628 | MAIN STORE | 1607 3RD AVE W | DICKINSON | ND | ||||
1635 | MAIN STORE | 1826 S MAIN ST | MARYVILLE | MO | ||||
1650 | MAIN STORE | 301 COX CREEK PKWY (RT 133) | FLORENCE | AL | ||||
1674 | MAIN STORE | 800 MALL DRIVE | BARBOURSVILLE | WV | ||||
1693 | MAIN STORE | 1400 N TURNER ST | HOBBS | NM | ||||
1698 | MAIN STORE | 5000 FREDERICA ST | OWENSBORO | KY | ||||
1704 | MAIN STORE | 4803 OUTER LOOP RD | LOUISVILLE | KY | ||||
1717 | MAIN STORE | 115 TIMES SQ MALL | MT VERNON | IL | ||||
1722 | MAIN STORE | 840 MILL CREEK MALL | ERIE | PA | ||||
1738 | MAIN STORE | 1051 GREEN ACRES MALL | VALLEY STREAM L I | NY | ||||
1749 | MAIN STORE | 2400 RICHMOND RD STE 61 | TEXARKANA | TX | ||||
1751 | MAIN STORE | 205 W BLACKSTOCK RD STE 8 | SPARTANBURG | SC | ||||
1761 | MAIN STORE | 502 GARDEN STATE PLAZA | PARAMUS | NJ | ||||
1775 | MAIN STORE | 850 KIRKWOOD MALL | BISMARCK | ND | ||||
1778 | MAIN STORE | 2200 N TUSTIN ST | ORANGE | CA | ||||
1779 | MAIN STORE | 300 STROUD MALL | STROUDSBURG | PA | ||||
1781 | MAIN STORE | 2115 W ROOSEVELT BLVD | MONROE | NC | ||||
1783 | MAIN STORE | 1224 E TIPTON ST | SEYMOUR | IN | ||||
1786 | MAIN STORE | 1701 MACFARLAND BLVD E | TUSCALOOSA | AL | ||||
1787 | MAIN STORE | 1500 CANTON RD | AKRON | OH |
Store Number |
Type/Use |
Address |
City |
State |
||||
1794 | HOME STORE | 910 S. RAINBOW BOULEVARD | LAS VEGAS | NV | ||||
1794 | MAIN STORE | 4400 MEADOWS LANE | LAS VEGAS | NV | ||||
1800 | ADDITIONAL SPACE | 203 CYPRESS | SNOHOMISH | WA | ||||
1800 | MAIN STORE | 265 PINE AVE | SNOHOMISH | WA | ||||
1811 | MAIN STORE | 21840 S HAWTHORNE BLVD | TORRANCE | CA | ||||
1816 | MAIN STORE | 7850 MENTOR AVE STE 930 | MENTOR | OH | ||||
1823 | MAIN STORE | 8900 NE VANCOUVER MALL DR | VANCOUVER | WA | ||||
1829 | MAIN STORE | 1442 US HWY 45 N | COLUMBUS | MS | ||||
1831 | FURNITURE OUTLET | 3202 ARCTIC BLVD. | ANCHORAGE | AK | ||||
1831 | MAIN STORE | 3202 ARTIC BLVD | ANCHORAGE | AK | ||||
1832 | MAIN STORE | 3236 KIRKWOOD HWY | WILMINGTON | DE | ||||
1842 | MAIN STORE | 2115 S MOONEY BLVD | VISALIA | CA | ||||
1844 | MAIN STORE | 340 SOUTHLAND MALL | HAYWARD | CA | ||||
1845 | MAIN STORE | 305 LIBERTY ST NE | SALEM | OR | ||||
1847 | MAIN STORE | 1200 E BROAD AVE | ROCKINGHAM | NC | ||||
1853 | MAIN STORE | 4300 TUSCARAWAS ST W | CANTON | OH | ||||
1858 | MAIN STORE | 1075 N BRIDGE ST | CHILLICOTHE | OH | ||||
1859 | MAIN STORE | 2400 ELIDA RD | LIMA | OH | ||||
1860 | MAIN STORE | 4199 NATIONAL RD E | RICHMOND | IN | ||||
1862 | MAIN STORE | 4125 CLEVELAND AVE STE 903 | FORT MYERS | FL | ||||
1867 | MAIN STORE | 117 S 25TH ST STE 1 | FORT DODGE | IA | ||||
1868 | MAIN STORE | 420 HUCK FINN S/C | HANNIBAL | MO | ||||
1869 | MAIN STORE | 8200 PERRY HALL BLVD | BALTIMORE | MD | ||||
1870 | MAIN STORE | 3702 FREDERICK AVE STE 7 | ST JOSEPH | MO | ||||
1871 | MAIN STORE | 1321 S BROADWAY | SANTA MARIA | CA | ||||
1874 | MAIN STORE | 4101 W DIVISION ST | ST CLOUD | MN | ||||
1876 | MAIN STORE | 1603 E EMPIRE ST | BLOOMINGTON | IL | ||||
1879 | MAIN STORE | 301 OAK SPRING RD | WASHINGTON | PA | ||||
1880 | MAIN STORE | 1050 E 23RD ST | FREMONT | NE | ||||
1886 | MAIN STORE | 1300 N MILLER ST | WENATCHEE | WA | ||||
1891 | MAIN STORE | 3015 HWY 29 S | ALEXANDRIA | MN | ||||
1899 | MAIN STORE | 4621 EASTGATE BLVD | CINCINNATI | OH | ||||
1900 | MAIN STORE | 714 GREENVILLE BLVD | GREENVILLE | NC | ||||
1902 | MAIN STORE | 4500 MIDWAY MALL | ELYRIA | OH | ||||
1908 | MAIN STORE | 2910 N ELM ST | LUMBERTON | NC | ||||
1909 | MAIN STORE | 1801 PALM BCH LKES BLVD STE300 | WEST PALM BEACH | FL | ||||
1911 | MAIN STORE | 90 LEE JACKSON HWY STE 1268 | STAUNTON | VA | ||||
1919 | MAIN STORE | 3100 M L KING JR BLVD STE 29 | NEW BERN | NC | ||||
1923 | MAIN STORE | 2230 EASTRIDGE LOOP | SAN JOSE | CA | ||||
1924 | MAIN STORE | 900 EASTWOOD MALL | NILES | OH | ||||
1927 | MAIN STORE | PO BOX 6002 | VIENNA | WV | ||||
1928 | MAIN STORE | 4000 FT CAMPBELL BLVD | HOPKINSVILLE | KY | ||||
1930 | MAIN STORE | 2400 ROOSEVELT RD | MARINETTE | WI | ||||
1932 | HOME STORE | 7490 N. BLACKSTONE AVE. | FRESNO | CA | ||||
1932 | MAIN STORE | 555 E SHAW AVE | FRESNO | CA | ||||
1934 | MAIN STORE | 1350 N MAIN ST | LOGAN | UT | ||||
1935 | MAIN STORE | 2825 W MAIN ST STE C | BOZEMAN | MT | ||||
1936 | MAIN STORE | 7401 MARKET ST | BOARDMAN | OH | ||||
1937 | MAIN STORE | 990 W 41ST ST | HIBBING | MN | ||||
1939 | MAIN STORE | 7000 TYRONE SQ | ST PETERSBURG | FL | ||||
1940 | MAIN STORE | 5350 S 76TH ST | GREENDALE | WI | ||||
1942 | MAIN STORE | 90 W COUNTY CTR | DES PERES | MO | ||||
1943 | MAIN STORE | 1105 MELBOURNE DR | HURST | TX | ||||
1944 | MAIN STORE | 700 BROADWAY AVE E STE 1 | MATTOON | IL | ||||
1945 | MAIN STORE | 2625 SCOTTSVILLE RD STE 40 | BOWLING GREEN | KY | ||||
1948 | MAIN STORE | 3 WOODFIELD MALL | SCHAUMBURG | IL | ||||
1950 | MAIN STORE | 6987 FRIARS RD | SAN DIEGO | CA |
Store Number |
Type/Use |
Address |
City |
State |
||||
1951 | MAIN STORE | 3401 DONNELL DR | FORESTVILLE | MD | ||||
1953 | MAIN STORE | 1655 W 49TH ST STE 1200 | HIALEAH | FL | ||||
1956 | MAIN STORE | 8000 W BROWARD BLVD STE 900 | PLANTATION | FL | ||||
1957 | MAIN STORE | 200 SOUTHDALE CTR | EDINA | MN | ||||
1958 | MAIN STORE | 6455 EASTEX FRWY | BEAUMONT | TX | ||||
1959 | MAIN STORE | 1122 EL CAMINO REAL | SAN BRUNO | CA | ||||
1960 | MAIN STORE | 3605 GALLERIA AT TYLER | RIVERSIDE | CA | ||||
1961 | MAIN STORE | 5111 ROGERS AVE | FORT SMITH | AR | ||||
1962 | MAIN STORE | 4840 BRIARCLIFF RD NE | ATLANTA | GA | ||||
1963 | MAIN STORE | 320 W KIMBERLY RD STE 409 | DAVENPORT | IA | ||||
1965 | MAIN STORE | 1000 RIVERGATE PKWY STE 3 | GOODLETTSVILLE | TN | ||||
1968 | MAIN STORE | 34 WYOMING VALLEY MALL | WILKES BARRE | PA | ||||
1970 | MAIN STORE | 1475 UPPER VALLEY PIKE | SPRINGFIELD | OH | ||||
1971 | MAIN STORE | 4545 TRANSIT RD | WILLIAMSVILLE | NY | ||||
1972 | MAIN STORE | 4201 COLDWATER RD | FORT WAYNE | IN | ||||
1975 | MAIN STORE | 301 NORTHGATE MALL | CHATTANOOGA | TN | ||||
1976 | MAIN STORE | 2400 10TH ST SW | MINOT | ND | ||||
1977 | MAIN STORE | 1500 APALACHEE PKWY | TALLAHASSEE | FL | ||||
1979 | MAIN STORE | 3535 S LINDEN RD | FLINT | MI | ||||
1980 | HOME STORE | 7207 GRAPE ROAD | MISHAWAKA | IN | ||||
1980 | MAIN STORE | 6501 N GRAPE RD | MISHAWAKA | IN | ||||
1981 | MAIN STORE | 2901 BROOKS ST | MISSOULA | MT | ||||
1982 | MAIN STORE | 6580 S WESTNEDGE AVE | PORTAGE | MI | ||||
1983 | MAIN STORE | 428 WOODBRIDGE CTR DR | WOODBRIDGE | NJ | ||||
1985 | MAIN STORE | 550 CENTER ST | AUBURN | ME | ||||
1987 | MAIN STORE | 2400 N COLUMBIA ST (US 441N) | MILLEDGEVILLE | GA | ||||
1989 | MAIN STORE | 6000 SUNSET MALL | SAN ANGELO | TX | ||||
1991 | MAIN STORE | 99 BENNINGTON SQ | BENNINGTON | VT | ||||
1992 | MAIN STORE | 320 BYPASS 72 NW STE A | GREENWOOD | SC | ||||
1993 | MAIN STORE | 2011 N ROAN ST | JOHNSON CITY | TN | ||||
1994 | MAIN STORE | 3902 13TH AVE SW STE 200 | FARGO | ND | ||||
1995 | MAIN STORE | 503 E IVES ST STE 200 | MARSHFIELD | WI | ||||
1997 | MAIN STORE | 40 BATAVIA CITY CTR | BATAVIA | NY | ||||
1998 | MAIN STORE | 4600 N US HWY 89 | FLAGSTAFF | AZ | ||||
2006 | ADDITIONAL SPACE | 3600 COUNTRY CLUB DRIVE | JEFFERSON CITY | MO | ||||
2006 | MAIN STORE | 3600 COUNTRY CLUB DR STOP 4 | JEFFERSON CITY | MO | ||||
2008 | MAIN STORE | 2 FREEDOM MALL | ROME | NY | ||||
2010 | MAIN STORE | 7900 DAY DR | PARMA | OH | ||||
2011 | MAIN STORE | 18601 33RD AVE W | LYNNWOOD | WA | ||||
2015 | MAIN STORE | 626 BOLL WEEVIL CIR | ENTERPRISE | AL | ||||
2018 | MAIN STORE | 200 SW C AVE | LAWTON | OK | ||||
2020 | MAIN STORE | 1930 S LOOP 256 | PALESTINE | TX | ||||
2021 | MAIN STORE | 6001 W WACO DR | WACO | TX | ||||
2022 | MAIN STORE | 367 RUSSELL ST STE A | HADLEY | MA | ||||
2024 | MAIN STORE | 1639 E RIO RD | CHARLOTTESVILLE | VA | ||||
2025 | HOME STORE |
MORGAN AVE (HWY 62) & GREEN RIVER RD |
EVANSVILLE | IN | ||||
2025 | MAIN STORE | 800 N GREEN RIVER RD | EVANSVILLE | IN | ||||
2034 | MAIN STORE | 105 CROSSROADS MALL | MT HOPE | WV | ||||
2036 | MAIN STORE | 4511 N MIDKIFF RD | MIDLAND | TX | ||||
2038 | MAIN STORE | 1180 BLOWING ROCK RD | BOONE | NC | ||||
2039 | MAIN STORE | 1410 SPARTA ST | MCMINNVILLE | TN | ||||
2040 | MAIN STORE | 2901 S CAPITOL OF TEXAS HWY | AUSTIN | TX | ||||
2042 | MAIN STORE | 400 SPOTSYLVANIA MALL | FREDERICKSBURG | VA | ||||
2043 | MAIN STORE | STATE HWY M-26 | HOUGHTON | MI | ||||
2044 | MAIN STORE | 2334 OAKLAND AVE STE 8 | INDIANA | PA | ||||
2045 | MAIN STORE | 2400 8TH AVE SW STE A1 | JAMESTOWN | ND |
Store Number |
Type/Use |
Address |
City |
State |
||||
2046 | MAIN STORE | 1615 N HARRISON AVE | PIERRE | SD | ||||
2047 | MAIN STORE | 2121 US HWY 1 S STE A | ST AUGUSTINE | FL | ||||
2048 | MAIN STORE | 901 11TH AVE SW STE 34 | SPENCER | IA | ||||
2049 | MAIN STORE | 126 JACKSON ST | STERLING | CO | ||||
2051 | MAIN STORE | 120 WASHINGTON AVE EXT STE 40 | ALBANY | NY | ||||
2052 | MAIN STORE | 22631 RT 68 STE 10 | CLARION | PA | ||||
2055 | MAIN STORE | 821 N CENTRAL EXPWY | PLANO | TX | ||||
2058 | MAIN STORE | 1400 DELL RANGE BLVD | CHEYENNE | WY | ||||
2059 | MAIN STORE | 5801 BECKLEY RD | BATTLE CREEK | MI | ||||
2060 | MAIN STORE | 7804 ABERCORN ST | SAVANNAH | GA | ||||
2063 | MAIN STORE | RT 23 (RD 2) | ONEONTA | NY | ||||
2064 | MAIN STORE | 4501 CENTRAL AVE STE 103 | HOT SPRINGS NAT PK | AR | ||||
2065 | MAIN STORE | 5304 W SAGINAW ST | LANSING | MI | ||||
2066 | MAIN STORE | 1982 W GRAND RIVER AVE STE 135 | OKEMOS | MI | ||||
2067 | MAIN STORE | 1860 W MICHIGAN AVE | JACKSON | MI | ||||
2068 | MAIN STORE | 1800 FOUR SEASONS BLVD | HENDERSONVILLE | NC | ||||
2069 | MAIN STORE | 8001 S ORANGE BLOSSOM STE 700 | ORLANDO | FL | ||||
2071 | MAIN STORE | 19525 BISCAYNE BLVD | AVENTURA | FL | ||||
2074 | MAIN STORE | 1910 WELLS RD | ORANGE PARK | FL | ||||
2076 | MAIN STORE | 2338 US 23 S | ALPENA | MI | ||||
2079 | MAIN STORE | 325 PIEDMONT DR | DANVILLE | VA | ||||
2080 | MAIN STORE | 4601 E MAIN ST | FARMINGTON | NM | ||||
2083 | MAIN STORE | 401 LEE ST E | CHARLESTON | WV | ||||
2085 | MAIN STORE | 1500 N RIVERSIDE AVE | MEDFORD | OR | ||||
2086 | MAIN STORE | 5101 HINKLEVILLE RD STE 800 | PADUCAH | KY | ||||
2089 | MAIN STORE | 905 N 12TH ST STE 10 | MIDDLESBORO | KY | ||||
2091 | MAIN STORE | 700 MAINE MALL RD | SOUTH PORTLAND | ME | ||||
2092 | MAIN STORE | 1700 W NEW HAVEN AVE | MELBOURNE | FL | ||||
2093 | MAIN STORE | 700 TELSHOR BLVD STE 2000 | LAS CRUCES | NM | ||||
2096 | MAIN STORE | 72900 HWY 111 | PALM DESERT | CA | ||||
2098 | MAIN STORE | 101 FOOTHILLS MALL | MARYVILLE | TN | ||||
2099 | MAIN STORE | 2320 E 17TH ST | IDAHO FALLS | ID | ||||
2100 | MAIN STORE | 1111 JACKSON AVE W | OXFORD | MS | ||||
2101 | MAIN STORE | 1300 ULSTER AVE MALL STE 210 | KINGSTON | NY | ||||
2102 | MAIN STORE | 1695 ANNAPOLIS MALL | ANNAPOLIS | MD | ||||
2103 | MAIN STORE | 455 S BIBB ST | EAGLE PASS | TX | ||||
2104 | MAIN STORE | 7925 FM 1960 RD STE 7000 | HOUSTON | TX | ||||
2105 | MAIN STORE | 6834 WESLEY ST STE C | GREENVILLE | TX | ||||
2108 | MAIN STORE | 2000 SAN JACINTO MALL | BAYTOWN | TX | ||||
2110 | MAIN STORE | 2100 S W S YOUNG DR STE 2000 | KILLEEN | TX | ||||
2115 | MAIN STORE | 2000 MARTIN LUTHER KING JR BLV | PANAMA CITY | FL | ||||
2119 | MAIN STORE | 922 RIVER FALLS ST | ANDALUSIA | AL | ||||
2121 | MAIN STORE | 4125 W OWEN K GARRIOTT RD | ENID | OK | ||||
2122 | MAIN STORE | 2500 W STATE ST STE 118 | ALLIANCE | OH | ||||
2123 | ADDITIONAL SPACE | 2950 EAST TEXAS AVENUE | BOSSIER CITY | LA | ||||
2123 | MAIN STORE | 2950 E TEXAS AVE | BOSSIER CITY | LA | ||||
2124 | MAIN STORE | 3035 KNOXVILLE CENTER DR STE O | KNOXVILLE | TN | ||||
2125 | MAIN STORE | 3505 PEMBERTON SQ BLVD STE B | VICKSBURG | MS | ||||
2130 | MAIN STORE | 10177 N KINGS HWY | MYRTLE BEACH | SC | ||||
2131 | MAIN STORE | 5901 UNIVERSITY DR | HUNTSVILLE | AL | ||||
2132 | MAIN STORE | 2076 9TH ST N | NAPLES | FL | ||||
2135 | MAIN STORE | 4501 N MAIN ST STE 9 | ROSWELL | NM | ||||
2136 | MAIN STORE | 1600 11TH AVE | HELENA | MT | ||||
2137 | MAIN STORE | 3100 HWY 365 | PORT ARTHUR | TX | ||||
2138 | MAIN STORE | 850 HARTFORD PIKE UNIT C | WATERFORD | CT | ||||
2139 | MAIN STORE | 9303 W ATLANTIC BLVD | CORAL SPRINGS | FL | ||||
2140 | MAIN STORE | 2006 S EXPY 83 | HARLINGEN | TX |
Store Number |
Type/Use |
Address |
City |
State |
||||
2144 | MAIN STORE | 555 JOHN F KENNEDY RD | DUBUQUE | IA | ||||
2147 | MAIN STORE | 1605 SOUTH FIRST STREET | WILLMAR | MN | ||||
2152 | MAIN STORE | 2390 CHESTNUT ST | ORANGEBURG | SC | ||||
2153 | MAIN STORE | 1041 SPRING LANE | SANFORD | NC | ||||
2157 | MAIN STORE | 100 S FEDERAL AVE STE 118A | MASON CITY | IA | ||||
2158 | MAIN STORE | 810 S CASS ST | CORINTH | MS | ||||
2159 | MAIN STORE | 801 N CONGRESS AVE | BOYNTON BEACH | FL | ||||
2160 | MAIN STORE | 5453 W 88TH AVE | WESTMINSTER | CO | ||||
2163 | MAIN STORE | 200 RIVER OAKS DR | CALUMET CITY | IL | ||||
2165 | MAIN STORE | 120 N DARTMOUTH MALL | NORTH DARTMOUTH | MA | ||||
2166 | MAIN STORE | 1810 FORT JONES RD | YREKA | CA | ||||
2168 | MAIN STORE | 1200 E COUNTY LINE RD, SUITE 500 | RIDGELAND | MS | ||||
2169 | MAIN STORE | 7701 W I-40 STE 600 | AMARILLO | TX | ||||
2171 | MAIN STORE | 290 E VIA RANCHO PKWY | ESCONDIDO | CA | ||||
2172 | MAIN STORE | 1600 TOWN CENTER DR | MONTEBELLO | CA | ||||
2173 | MAIN STORE | ONE MALL BLVD | BRUNSWICK | GA | ||||
2175 | MAIN STORE | 4761 PECANLAND MALL DR | MONROE | LA | ||||
2176 | MAIN STORE | 101 MANHATTAN CTR | MANHATTAN | KS | ||||
2177 | MAIN STORE | 4832 VALLEY VIEW BLVD NW | ROANOKE | VA | ||||
2178 | MAIN STORE | 8106 N NAVARRO ST | VICTORIA | TX | ||||
2183 | MAIN STORE | 12335 JAMES ST | HOLLAND | MI | ||||
2184 | MAIN STORE | 1500 HARVEY RD | COLLEGE STATION | TX | ||||
2185 | MAIN STORE | 4301 W WISCONSIN AVE | APPLETON | WI | ||||
2188 | MAIN STORE | 60 ELM PLAZA | WATERVILLE | ME | ||||
2189 | MAIN STORE | 300 A AVE W | OSKALOOSA | IA | ||||
2190 | MAIN STORE | 224 N LOGAN BLVD | BURNHAM | PA | ||||
2192 | MAIN STORE | 1500 E 11TH ST STE 1000 | HUTCHINSON | KS | ||||
2196 | MAIN STORE | 201 S WASHINGTON ST | OWOSSO | MI | ||||
2197 | MAIN STORE | 2302 E KANSAS AVE | GARDEN CITY | KS | ||||
2198 | MAIN STORE | 2206 S BALTIMORE ST | KIRKSVILLE | MO | ||||
2203 | MAIN STORE | 1700 NORMAN DR | VALDOSTA | GA | ||||
2204 | MAIN STORE | 1704 N DIXIE HWY | ELIZABETHTOWN | KY | ||||
2207 | MAIN STORE | 2813 N PRINCE ST | CLOVIS | NM | ||||
2209 | MAIN STORE | 2501 MING AVE | BAKERSFIELD | CA | ||||
2210 | MAIN STORE | 1600 INDUSTRIAL RD | EMPORIA | KS | ||||
2211 | MAIN STORE | 2350 SE WASHINGTON BLVD | BARTLESVILLE | OK | ||||
2213 | MAIN STORE | 301 N POPLAR | SEARCY | AR | ||||
2217 | MAIN STORE | 3140 VIRGINIA AVE | CONNERSVILLE | IN | ||||
2218 | MAIN STORE | 2300 RIVERCHASE GALLERIA | HOOVER | AL | ||||
2219 | MAIN STORE | 150 NORTHSHORE BLVD | SLIDELL | LA | ||||
2220 | MAIN STORE | 2700 LAKE RD | DYERSBURG | TN | ||||
2223 | MAIN STORE | 1801 N MAIN ST STE 14 | MITCHELL | SD | ||||
2224 | MAIN STORE | 2 FINANCIAL PLAZA STE 100 | HUNTSVILLE | TX | ||||
2225 | MAIN STORE | 1500 N CLINTON ST | DEFIANCE | OH | ||||
2229 | MAIN STORE | PO BOX 29526 | SANTA FE | NM | ||||
2231 | MAIN STORE | 311 JACKSONVILLE MALL | JACKSONVILLE | NC | ||||
2232 | MAIN STORE | 5065 MAIN ST | TRUMBULL | CT | ||||
2233 | MAIN STORE | 6945 US 322 | CRANBERRY | PA | ||||
2237 | MAIN STORE | 6931 S MEMORIAL DR | TULSA | OK | ||||
2238 | MAIN STORE | 1513 N KANSAS AVE | LIBERAL | KS | ||||
2239 | MAIN STORE | 2259 S 9TH ST | SALINA | KS | ||||
2240 | MAIN STORE | 201 SKYLINE DR STE 7 | CONWAY | AR | ||||
2241 | MAIN STORE | 20 N MAIN ST | KALISPELL | MT | ||||
2243 | MAIN STORE | 300 BONNER MALL WAY STE 60 | PONDERAY | ID | ||||
2244 | MAIN STORE | 1019 S WASHINGTON ST | NORTH ATTLEBORO | MA | ||||
2246 | MAIN STORE | 2001 SOUTH RD (RT 9) | POUGHKEEPSIE | NY | ||||
2247 | HOME STORE | 292 DANIEL WEBSTER HWY | NASHUA | NH |
Store Number |
Type/Use |
Address |
City |
State |
||||
2247 |
MAIN STORE | 310 DANIEL WEBSTER HWY STE 103 | NASHUA | NH | ||||
2247 |
OUTSIDE STOCKROOM | 14 CELINA AVENUE | NASHUA | NH | ||||
2250 |
MAIN STORE | 50 FOX RUN RD STE 35 | NEWINGTON | NH | ||||
2256 |
MAIN STORE | 7 BACKUS AVE | DANBURY | CT | ||||
2257 |
MAIN STORE | 2701 DAVID H MCLEOD BLVD | FLORENCE | SC | ||||
2258 |
MAIN STORE | 3450 WRIGHTSBORO RD | AUGUSTA | GA | ||||
2259 |
MAIN STORE | 1100 WESLEYAN BLVD | ROCKY MOUNT | NC | ||||
2262 |
MAIN STORE | 301 N LINCOLN RD STE 100 | ESCANABA | MI | ||||
2263 |
MAIN STORE | 1006 ROSS PARK MALL DR | PITTSBURGH | PA | ||||
2265 |
MAIN STORE | 2901 PINES MALL DR STE A | PINE BLUFF | AR | ||||
2266 |
MAIN STORE | 2080 GREELEY MALL | GREELEY | CO | ||||
2270 |
MAIN STORE | 771 S 30TH ST | HEATH | OH | ||||
2272 |
MAIN STORE | 160 TYLER RD | RED WING | MN | ||||
2274 |
MAIN STORE | 2801 GUTHRIE HWY STE 500 | CLARKSVILLE | TN | ||||
2275 |
MAIN STORE | 1615 POLE LINE RD E | TWIN FALLS | ID | ||||
2276 |
MAIN STORE | 1260 GIBSON RD | WOODLAND | CA | ||||
2279 |
MAIN STORE | 4901 N KICKAPOO AVE STE 4000 | SHAWNEE | OK | ||||
2281 |
MAIN STORE | 1724 VETERANS BLVD | MCCOMB | MS | ||||
2282 |
MAIN STORE | 1600 RIVER VALLEY CIR N | LANCASTER | OH | ||||
2284 |
MAIN STORE | 2301 W WORLEY | COLUMBIA | MO | ||||
2286 |
MAIN STORE | 21017 SALMON RUN MALL LOOP E | WATERTOWN | NY | ||||
2287 |
MAIN STORE | 4405 BLACK HORSE PIKE | MAYS LANDING | NJ | ||||
2288 |
MAIN STORE | 501 N MAIN ST STE 118 | MUSKOGEE | OK | ||||
2290 |
HOME STORE | 6 SOUTHPARK MALL | COLONIAL HEIGHTS | VA | ||||
2290 |
HOME STORE | 6 SOUTHPARK MALL | COLONIAL HEIGHTS | VA | ||||
2290 |
MAIN STORE | 6 SOUTHPARK MALL | COLONIAL HTS | VA | ||||
2294 |
MAIN STORE | 1480 CONCORD PKWY N | CONCORD | NC | ||||
2296 |
MAIN STORE | 814 NC 24 27 BYP E | ALBEMARLE | NC | ||||
2297 |
MAIN STORE | 10 MALL DR W | JERSEY CITY | NJ | ||||
2298 |
MAIN STORE | 311 THREE RIVERS DR | KELSO | WA | ||||
2300 |
MAIN STORE | 415 NEW RIVER RD | CHRISTIANSBURG | VA | ||||
2303 |
MAIN STORE | 1970 US HWY 70 SE | HICKORY | NC | ||||
2304 |
MAIN STORE | 1821 SW WANAMAKER RD | TOPEKA | KS | ||||
2305 |
MAIN STORE | 2550 E MORRIS BLVD | MORRISTOWN | TN | ||||
2307 |
MAIN STORE | 2302 FRONTAGE RD STE 89 | SCOTTSBLUFF | NE | ||||
2309 |
MAIN STORE | 3382 NW FEDERAL HWY | JENSEN BEACH | FL | ||||
2311 |
MAIN STORE | 1600 N JACKSON ST | TULLAHOMA | TN | ||||
2312 |
MAIN STORE | 300 N MILWAUKEE ST | BOISE | ID | ||||
2313 |
MAIN STORE | 60 SMITHFIELD BLVD | PLATTSBURGH | NY | ||||
2316 |
MAIN STORE | 2601 DAWSON RD | ALBANY | GA | ||||
2317 |
MAIN STORE | 400 MILL AVE SE STE C2 | NEW PHILADELPHIA | OH | ||||
2320 |
MAIN STORE | 8501 W BOWLES AVE | LITTLETON | CO | ||||
2324 |
MAIN STORE | 435 E CLIFTY DR | MADISON | IN | ||||
2326 |
MAIN STORE | 732 FREEMAN LANE | GRASS VALLEY | CA | ||||
2327 |
MAIN STORE | 10 BELLIS FAIR PKWY | BELLINGHAM | WA | ||||
2329 |
MAIN STORE | 800-50 NEW LOUDON RD | LATHAM | NY | ||||
2331 |
MAIN STORE | 1800 TIFFIN AVE | FINDLAY | OH | ||||
2332 |
MAIN STORE | 655 CHESHIRE RD | LANESBOROUGH | MA | ||||
2333 |
MAIN STORE | 225 COLUMBIA MALL DR | BLOOMSBURG | PA | ||||
2338 |
MAIN STORE | 6000 TOWN EAST MALL | MESQUITE | TX | ||||
2339 |
MAIN STORE | 1015 W WILL ROGERS | CLAREMORE | OK | ||||
2341 |
MAIN STORE | 63455 N HWY 97 STE 93 | BEND | OR | ||||
2342 |
MAIN STORE | 282 BERLIN MALL RD UNIT 19 | BERLIN | VT | ||||
2343 |
MAIN STORE | 987 E ASH ST | PIQUA | OH | ||||
2344 |
MAIN STORE | 1007 N PINE ST | DERIDDER | LA | ||||
2345 |
MAIN STORE | 480 MAYBERRY MALL | MOUNT AIRY | NC | ||||
2346 |
MAIN STORE | 3 S TUNNEL RD | ASHEVILLE | NC |
Store Number |
Type/Use |
Address |
City |
State |
||||
2347 | MAIN STORE | 1441 TAMIAMI TRAIL | PORT CHARLOTTE | FL | ||||
2348 | MAIN STORE | 2252 25TH ST | COLUMBUS | IN | ||||
2349 | MAIN STORE | 3300 S AIRPORT RD W | TRAVERSE CITY | MI | ||||
2353 | MAIN STORE | 10315 SILVERDALE WAY NW. | SILVERDALE | WA | ||||
2354 | MAIN STORE | 2010 YAKIMA VALLEY HWY J-1 | SUNNYSIDE | WA | ||||
2356 | MAIN STORE | 1414 SOUTHERN HILLS CTR | WEST PLAINS | MO | ||||
2357 | MAIN STORE | 1350 PILGRIM LN | PLYMOUTH | IN | ||||
2358 | MAIN STORE | 1810 S WEST AVE | FREEPORT | IL | ||||
2364 | MAIN STORE | 3 WALDEN GALLERIA DR | CHEEKTOWAGA | NY | ||||
2367 | MAIN STORE | 6000 MAHONING AVE | YOUNGSTOWN | OH | ||||
2368 | MAIN STORE | 200 W HANLEY AVE | COEUR D ALENE | ID | ||||
2369 | MAIN STORE | 3501 W MAIN ST | NORMAN | OK | ||||
2370 | MAIN STORE | 4200 PORTSMOUTH BLVD | CHESAPEAKE | VA | ||||
2372 | MAIN STORE | 328 ROBERT SMALLS PKWY | BEAUFORT | SC | ||||
2373 | MAIN STORE | 1752 W REELFOOT AVE | UNION CITY | TN | ||||
2374 | MAIN STORE | 1750 E RED CLIFFS DR | ST GEORGE | UT | ||||
2375 | MAIN STORE | 150 RICHLAND SQ | RICHLAND CENTER | WI | ||||
2376 | MAIN STORE | 2 STRATFORD SQ MALL | BLOOMINGDALE | IL | ||||
2381 | MAIN STORE | 300 GREENVILLE W DR STE 1 | GREENVILLE | MI | ||||
2382 | MAIN STORE | 1550 N MITCHELL ST | CADILLAC | MI | ||||
2385 | MAIN STORE | 1199 COLUSA AVE | YUBA CITY | CA | ||||
2386 | MAIN STORE | 9560 MALL RD | MORGANTOWN | WV | ||||
2388 | MAIN STORE | 1131 W RANCHO VISTA BLVD | PALMDALE | CA | ||||
2390 | MAIN STORE | 1353 TUSCULUM BLVD | GREENEVILLE | TN | ||||
2391 | MAIN STORE | 300 CASCADE MALL DR | BURLINGTON | WA | ||||
2392 | MAIN STORE | 1600 N STATE RT 50 | BOURBONNAIS | IL | ||||
2396 | MAIN STORE | 3225 STATE RT 364 STE 165 | CANANDAIGUA | NY | ||||
2398 | MAIN STORE | 900 COMMONS DR STE 900 | DOTHAN | AL | ||||
2400 | MAIN STORE | 1001 BARNES CROSSING RD STE300 | TUPELO | MS | ||||
2410 | MAIN STORE | 2401 S STEMMONS FWY STE 4000 | LEWISVILLE | TX | ||||
2411 | MAIN STORE | 2350 MIRACLE MILE RD #270 | BULLHEAD CITY | AZ | ||||
2414 | MAIN STORE | 355 FLETCHER PKWY | EL CAJON | CA | ||||
2415 | MAIN STORE | 15083 US 19 S | THOMASVILLE | GA | ||||
2416 | MAIN STORE | 270 LOUDON RD | CONCORD | NH | ||||
2417 | MAIN STORE | 1105 WALNUT ST | CARY | NC | ||||
2418 | MAIN STORE | 3800 US HWY 98 N STE 200 | LAKELAND | FL | ||||
2419 | HOME STORE | 6555 E. SOUTHERN AVE., STE 200 | MESA | AZ | ||||
2419 | MAIN STORE | 6525 E SOUTHERN AVE | MESA | AZ | ||||
2423 | MAIN STORE | 780 NW GARDEN VLY BLVD STE 160 | ROSEBURG | OR | ||||
2425 | MAIN STORE | 2900 W WASHINGTON ST STE 92 | STEPHENVILLE | TX | ||||
2427 | MAIN STORE | 278 BLACK GOLD BLVD | HAZARD | KY | ||||
2428 | MAIN STORE | 4400 24TH AVE | FORT GRATIOT | MI | ||||
2430 | MAIN STORE | 10308 SOUTHSIDE BLVD | JACKSONVILLE | FL | ||||
2431 | MAIN STORE | 1100-B HWY 260 | COTTONWOOD | AZ | ||||
2433 | MAIN STORE | 11017 CAROLINA PLACE PKWY | PINEVILLE | NC | ||||
2434 | HOME STORE | 6600 MENAUL BLVD., N.E. | ALBUQUERQUE | NM | ||||
2434 | MAIN STORE | 6600 MENAUL BLVD NE STE 600 | ALBUQUERQUE | NM | ||||
2436 | MAIN STORE | 475 S ST LOUIS ST | BATESVILLE | AR | ||||
2438 | MAIN STORE | 1110 N QUINCY AVE | OTTUMWA | IA | ||||
2439 | MAIN STORE | 1000 MALL RUN RD | UNIONTOWN | PA | ||||
2440 | MAIN STORE | 300 LYCOMING MALL CIR STE 2043 | PENNSDALE | PA | ||||
2442 | MAIN STORE | 4481 S WHITE MOUNTAIN RD STE 5 | SHOW LOW | AZ | ||||
2443 | MAIN STORE | 11130 MALL CIRCLE | WALDORF | MD | ||||
2445 | MAIN STORE | 6840 EASTMAN AVE | MIDLAND | MI | ||||
2447 | MAIN STORE | 864 HWY 12 W | STARKVILLE | MS | ||||
2449 | MAIN STORE | 399 CAMPBELLSVILLE BYPASS | CAMPBELLSVILLE | KY | ||||
2452 | MAIN STORE | 300 MOUNT BERRY SQ NE | ROME | GA |
Store Number |
Type/Use |
Address |
City |
State |
||||
2453 | MAIN STORE | 6 MCKINLEY MALL | BLASDELL | NY | ||||
2456 | HOME STORE | SW CORNER PINES BLVD. & SW 136TH STREET | PEMBROKE PINES | FL | ||||
2456 | MAIN STORE | 11401 PINES BLVD | PEMBROKE PINES | FL | ||||
2457 | MAIN STORE | 9559 DESTINY USA DR | SYRACUSE | NY | ||||
2458 | MAIN STORE | 1601 S BROAD | SCOTTSBORO | AL | ||||
2460 | MAIN STORE | STATE RT 37-ST LAWRENCE CENTRE | MASSENA | NY | ||||
2463 | MAIN STORE | 140 MARSH AVE | STATEN ISLAND | NY | ||||
2464 | MAIN STORE | 1201 BOSTON POST RD | MILFORD | CT | ||||
2467 | MAIN STORE | 1695 ARDEN WAY | SACRAMENTO | CA | ||||
2470 | MAIN STORE | 413 MARKET SQ DR | MAYSVILLE | KY | ||||
2472 | MAIN STORE | 839 3RD AVE | JASPER | IN | ||||
2474 | MAIN STORE | 510 GATE CITY HWY SPACE 360 | BRISTOL | VA | ||||
2477 | MAIN STORE | 3710 HWY 9 | FREEHOLD | NJ | ||||
2478 | MAIN STORE | 1603 NW 107TH AVE | MIAMI | FL | ||||
2480 | MAIN STORE | 22450 TOWN CIR | MORENO VALLEY | CA | ||||
2482 | MAIN STORE | 5725 JOHNSTON ST | LAFAYETTE | LA | ||||
2484 | MAIN STORE | 4730 N DIVISION ST | SPOKANE | WA | ||||
2485 | MAIN STORE | 560 GALLERIA DR | JOHNSTOWN | PA | ||||
2486 | MAIN STORE | 5580 GOODS LN STE 2031 | ALTOONA | PA | ||||
2488 | MAIN STORE | ONE N GALLERIA DR | MIDDLETOWN | NY | ||||
2490 | MAIN STORE | 231 GREECE RIDGE CTR DR | GREECE | NY | ||||
2491 | MAIN STORE | 6 GALLERIA MALL DR | TAUNTON | MA | ||||
2494 | MAIN STORE | 200 PAUL HUFF PKWY NW STE 44 | CLEVELAND | TN | ||||
2495 | MAIN STORE | 1850 ADAMS ST STE 2 | MANKATO | MN | ||||
2496 | MAIN STORE | 500 NEWPARK MALL | NEWARK | CA | ||||
2498 | MAIN STORE | 2727 FAIRFIELD COMMONS BLVD | DAYTON | OH | ||||
2503 | MAIN STORE | 1201 E MAIN | CARBONDALE | IL | ||||
2505 | MAIN STORE | 1201 S DIRKSEN PKWY | SPRINGFIELD | IL | ||||
2506 | MAIN STORE | 2900 E LINCOLN WAY | STERLING | IL | ||||
2507 | MAIN STORE | 312 W PRIEN LAKE RD | LAKE CHARLES | LA | ||||
2521 | MAIN STORE | 9100 N SKYVIEW AVE | KANSAS CITY | MO | ||||
2522 | MAIN STORE | 9056 N 121ST EAST AVE | OWASSO | OK | ||||
2523 | MAIN STORE | 215 CREEKSIDE WAY | NEW BRAUNFELS | TX | ||||
2524 | MAIN STORE | 2421 CRANBERRY HWY STE 290 | WAREHAM | MA | ||||
2526 | MAIN STORE | 7352 GLORY RD | BAXTER | MN | ||||
2527 | MAIN STORE | 500 WINCHESTER AVE | ASHLAND | KY | ||||
2529 | MAIN STORE | 11534 PARKSIDE DR | FARRAGUT | TN | ||||
2530 | MAIN STORE | 1301 CENTER RD | AVON | OH | ||||
2534 | MAIN STORE | 501 C M FAGAN DR | HAMMOND | LA | ||||
2535 | MAIN STORE | SEND TO SL SHARED SERVICES CTR | QUEEN CREEK | AZ | ||||
2613 | MAIN STORE | 1932 E 20TH ST | CHICO | CA | ||||
2614 | MAIN STORE | 1710 S MAIN ST | BELLEFONTAINE | OH | ||||
2616 | MAIN STORE | 2940 WATSON BLVD | CENTERVILLE | GA | ||||
2617 | MAIN STORE | 7600 KINGSTON PIKE STE 900 | KNOXVILLE | TN | ||||
2619 | MAIN STORE | 10101 BROOK RD STE 800 | GLEN ALLEN | VA | ||||
2620 | MAIN STORE | 515 S WESTWOOD | POPLAR BLUFF | MO | ||||
2622 | MAIN STORE | 2301 DEL PRADO BLVD STE 700 | CAPE CORAL | FL | ||||
2624 | MAIN STORE | 3401 NICHOLASVILLE RD STE 116 | LEXINGTON | KY | ||||
2625 | MAIN STORE | 4370 I-75 BUSINESS SPUR | SAULT STE MARIE | MI | ||||
2626 | MAIN STORE | 1312 W SUNSET RD | HENDERSON | NV | ||||
2629 | MAIN STORE | 1050 S BISHOP AVE | ROLLA | MO | ||||
2631 | MAIN STORE | 58000 TWENTY-NINE PALMS HWY | YUCCA VALLEY | CA | ||||
2632 | MAIN STORE | 4 MID RIVERS MALL | ST PETERS | MO | ||||
2633 | MAIN STORE | 3507 MANCHESTER EXPWY STE E | COLUMBUS | GA |
Store Number |
Type/Use |
Address |
City |
State |
||||
2646 | MAIN STORE | 4021 BURBANK RD | WOOSTER | OH | ||||
2647 | MAIN STORE | 210 ANDOVER ST | PEABODY | MA | ||||
2648 | MAIN STORE | 400 BREA MALL | BREA | CA | ||||
2649 | HOME STORE | 510 WESTMINSTER MALL | WESTMINSTER | CA | ||||
2649 | MAIN STORE | 400 WESTMINSTER MALL | WESTMINSTER | CA | ||||
2650 | MAIN STORE | 1050 LAYTON HILLS MALL | LAYTON | UT | ||||
2651 | MAIN STORE | 68 GATEWAY MALL | LINCOLN | NE | ||||
2653 | MAIN STORE | 4770 GOLF RD | EAU CLAIRE | WI | ||||
2654 | MAIN STORE | 100 COMMERCIAL RD UNIT 180 | LEOMINSTER | MA | ||||
2655 | MAIN STORE | 90 W 5TH ST | DOUGLAS | AZ | ||||
2657 | MAIN STORE | 939 NE D ST | GRANTS PASS | OR | ||||
2660 | MAIN STORE | 20505 S DIXIE HWY | MIAMI | FL | ||||
2661 | MAIN STORE | 4 HAWTHORN CTR | VERNON HILLS | IL | ||||
2662 | MAIN STORE | 578 AVIATION RD STE 3 | QUEENSBURY | NY | ||||
2663 | MAIN STORE | 377 S MILLS RD | VENTURA | CA | ||||
2671 | MAIN STORE | 2180 NE HWY 99 W | MCMINNVILLE | OR | ||||
2672 | MAIN STORE | 380 N COOPER DR | HENDERSON | NC | ||||
2676 | MAIN STORE | 1215 S MAIN ST | SIKESTON | MO | ||||
2677 | MAIN STORE | 9301 TAMPA AVE | NORTHRIDGE | CA | ||||
2678 | MAIN STORE | 658 RICHLAND MALL | MANSFIELD | OH | ||||
2679 | MAIN STORE | 525 UNION ST | WATERBURY | CT | ||||
2682 | MAIN STORE | 1901 NW EXPWY STE 1200 | OKLAHOMA CITY | OK | ||||
2683 | MAIN STORE | 17177 ROYALTON RD BOX 3 | STRONGSVILLE | OH | ||||
2685 | MAIN STORE | 3851 S COOPER ST | ARLINGTON | TX | ||||
2687 | MAIN STORE | 651 W WASHINGTON | SEQUIM | WA | ||||
2689 | MAIN STORE | 2700 MIAMISBURG-CENTERVILLE RD | CENTERVILLE | OH | ||||
2690 | MAIN STORE | 1000 TURTLE CREEK DR | HATTIESBURG | MS | ||||
2692 | MAIN STORE | 2422 W KETTLEMAN LANE | LODI | CA | ||||
2693 | MAIN STORE | 3127 STOCKTON HILL RD | KINGMAN | AZ | ||||
2695 | MAIN STORE | 16280 DRESDEN AVE SPACE M | E LIVERPOOL | OH | ||||
2696 | MAIN STORE | 11200 LAKELINE MALL DR | CEDAR PARK | TX | ||||
2697 | MAIN STORE | 16529 SOUTHWEST FRWY | SUGARLAND | TX | ||||
2698 | MAIN STORE | 3100 NAGLEE RD | TRACY | CA | ||||
2700 | MAIN STORE | 5083 TUTTLE CROSSING BLVD | DUBLIN | OH | ||||
2702 | MAIN STORE | 197 WESTBANK EXPY STE 2 | GRETNA | LA | ||||
2703 | MAIN STORE | 2756 N GERMANTOWN PKWY | MEMPHIS | TN | ||||
2704 | MAIN STORE | 10000 COORS BYPASS NW | ALBUQUERQUE | NM | ||||
2705 | MAIN STORE | 501 EAGLE RIDGE DR | LAKE WALES | FL | ||||
2706 | MAIN STORE | 458 N VIRGINIA AVE | TIFTON | GA | ||||
2707 | MAIN STORE | 2175 S KOELLER ST | OSHKOSH | WI | ||||
2708 | MAIN STORE | 573 DONALD LYNCH BLVD | MARLBOROUGH | MA | ||||
2709 | MAIN STORE | 4201 N SHILOH DR | FAYETTEVILLE | AR | ||||
2712 | MAIN STORE | 3501 CAPITAL CITY MALL | CAMP HILL | PA | ||||
2713 | MAIN STORE | 95 STORRS RD | WILLIMANTIC | CT | ||||
2715 | MAIN STORE | 14659 N US HWY 25 E STE 22 | CORBIN | KY | ||||
2716 | MAIN STORE | 2215 MEMORIAL DR | WAYCROSS | GA | ||||
2718 | MAIN STORE | 100 BAYCHESTER AVE | BRONX | NY | ||||
2719 | MAIN STORE | 715 OMACHE DR | OMAK | WA | ||||
2720 | MAIN STORE | 200 BEAVER VALLEY MALL | MONACA | PA | ||||
2721 | MAIN STORE | 3159 W BROADWAY | SEDALIA | MO | ||||
2722 | MAIN STORE | 9409 W COLONIAL DR | OCOEE | FL | ||||
2725 | MAIN STORE | 3350 E FLORAL AVE | SELMA | CA | ||||
2726 | MAIN STORE | 1481 WAGNER AVE | GREENVILLE | OH | ||||
2728 | MAIN STORE | 1111 E TYLER ST STE 127 | ATHENS | TX | ||||
2729 | MAIN STORE | 3311 IOWA ST | LAWRENCE | KS | ||||
2730 | MAIN STORE | 6200 20TH ST STE 700 | VERO BEACH | FL | ||||
2731 | MAIN STORE | 1409 EHRINGHAUS ST | ELIZABETH CITY | NC |
Store Number |
Type/Use |
Address |
City |
State |
||||
2732 | MAIN STORE | 10300 LITTLE PATUXENT PKWY | COLUMBIA | MD | ||||
2736 | MAIN STORE | 3500 EAST WEST HWY STE 1000 | HYATTSVILLE | MD | ||||
2738 | MAIN STORE | 11160 VEIRS MILL RD | WHEATON | MD | ||||
2739 | MAIN STORE | 20131 HWY 59N STE 3000 | HUMBLE | TX | ||||
2740 | MAIN STORE | 151 MARYSVILLE TOWNE CTR | MARYSVILLE | WA | ||||
2741 | MAIN STORE | 318 E FAIRMOUNT AVE | LAKEWOOD | NY | ||||
2742 | MAIN STORE | 1840 COUNTRYSIDE DR | TURLOCK | CA | ||||
2743 | MAIN STORE | 1000 BONITA LAKE CIRCLE | MERIDIAN | MS | ||||
2744 | MAIN STORE | 14730 E INDIANA AVE | SPOKANE | WA | ||||
2748 | MAIN STORE | 10400 MILL RUN CIR | OWINGS MILLS | MD | ||||
2749 | MAIN STORE | 21030 DULLES TOWN CIR | STERLING | VA | ||||
2750 | MAIN STORE | PO BOX 5147 | GASTONIA | NC | ||||
2751 | MAIN STORE | PLAZA LAS AMERICAS S/C | SAN JUAN | PR | ||||
2752 | MAIN STORE | 1403 PALISADES CTR DR | WEST NYACK | NY | ||||
2753 | MAIN STORE | 6201 BLUEBONNET BLVD | BATON ROUGE | LA | ||||
2754 | MAIN STORE | 3055 BLACK GAP RD | CHAMBERSBURG | PA | ||||
2755 | MAIN STORE | 120 NIBLICK RD | PASO ROBLES | CA | ||||
2756 | HOME STORE | 3147 MIDDLE COUNTY ROAD LAKE GROVE SHOPPING CENTER | LAKE GROVE | NY | ||||
2756 | MAIN STORE | 9 SMITH HAVEN MALL | LAKE GROVE L I | NY | ||||
2756 | OUTSIDE STOCKROOM | 390 OSER AVENUE | HAPPAUGE | NY | ||||
2756 | OUTSIDE STOCKROOM | 313 SMITH HAVEN MALL | LAKE GROVE | NY | ||||
2757 | MAIN STORE | 8417 S PARK MEADOWS CTR DR | LONE TREE | CO | ||||
2758 | MAIN STORE | 1471 CORAL RIDGE AVE | CORALVILLE | IA | ||||
2760 | MAIN STORE | 23415 THREE NOTCH RD STE 2016 | CALIFORNIA | MD | ||||
2761 | MAIN STORE | 11500 MIDLOTHIAN TPKE | RICHMOND | VA | ||||
2762 | MAIN STORE | 8102 CITRUS PARK TOWN CTR | TAMPA | FL | ||||
2763 | MAIN STORE | 1201 LAKE WOODLANDS DR STE 500 | THE WOODLANDS | TX | ||||
2765 | MAIN STORE | 219 MARLBORO AVE STE 21 | EASTON | MD | ||||
2766 | MAIN STORE | 2001 COTTMAN AVE | PHILADELPHIA | PA | ||||
2767 | MAIN STORE | 1500 S WILLOW ST | MANCHESTER | NH | ||||
2768 | MAIN STORE | 1500 RT 47 STE 21B | RIO GRANDE | NJ | ||||
2769 | MAIN STORE | 1512 MILITARY RD | BENTON | AR | ||||
2770 | MAIN STORE | 1200 TOWNE CENTRE BLVD STE B | PROVO | UT | ||||
2773 | ADDITIONAL SPACE | 400 ERNEST W BARRETT PKWY NW | KENNESAW | GA | ||||
2773 | HOME STORE | 667 ERNEST BARRETT PARKWAY, SUITE 300 | KENNESAW | GA | ||||
2773 | MAIN STORE | 400 ERNEST W BARRETT PKWY NW | KENNESAW | GA | ||||
2775 | MAIN STORE | 1750 DEPTFORD CENTER RD STE D | DEPTFORD | NJ | ||||
2775 | OUTSIDE STOCKROOM | 165 NINTH AVE, UNIT D BOROUGH OF RUNNEMEDE | DEPTFORD | NJ | ||||
2776 | MAIN STORE | 3333 BUFORD DR | BUFORD | GA | ||||
2777 | MAIN STORE | 381 WEST ST | KEENE | NH | ||||
2782 | MAIN STORE | 5055 2ND AVE STE 28 | KEARNEY | NE | ||||
2783 | MAIN STORE | 40640 WINCHESTER RD | TEMECULA | CA | ||||
2784 | MAIN STORE | 6101 CALHOUN MEMOR HWY STE A | EASLEY | SC | ||||
2785 | MAIN STORE | 3774 RIVERTOWN PRKWY SW | GRANDVILLE | MI | ||||
2788 | MAIN STORE | 259 INDIAN MOUND DR | MT STERLING | KY | ||||
2789 | MAIN STORE | 10308 W FOREST HILL BLVD | WELLINGTON | FL | ||||
2795 | MAIN STORE | 2607 PRESTON RD | FRISCO | TX | ||||
2796 | MAIN STORE | 1125 GALLERIA BLVD | ROSEVILLE | CA | ||||
2797 | MAIN STORE | 100 MALL DR UNIT B | STEUBENVILLE | OH | ||||
2799 | MAIN STORE | 1611 VIRGINIA AVE STE 605 | NORTH BEND | OR | ||||
2801 | MAIN STORE | 1450 POLARIS PKWY | COLUMBUS | OH | ||||
2802 | MAIN STORE | 2000 ROBINSON TOWN CTR | PITTSBURGH | PA | ||||
2803 | MAIN STORE | 2304 E JACKSON ST | MACOMB | IL |
Store Number |
Type/Use |
Address |
City |
State |
||||
2804 | MAIN STORE | 8040 MALL PKWY | LITHONIA | GA | ||||
2805 | MAIN STORE | 6910 FAYETTEVILLE RD STE 600 | DURHAM | NC | ||||
2806 | MAIN STORE | 2370 N EXPWY STE 2000 | BROWNSVILLE | TX | ||||
2807 | MAIN STORE | 5690 HARVEY ST | MUSKEGON | MI | ||||
2808 | MAIN STORE | 301A S SERVICE RD | BLYTHEVILLE | AR | ||||
2809 | MAIN STORE | 12300 JEFFERSON AVE STE 500 | NEWPORT NEWS | VA | ||||
2810 | MAIN STORE | 140 S 24TH ST W | BILLINGS | MT | ||||
2812 | MAIN STORE | 202 E 24TH ST | COLUMBUS | NE | ||||
2813 | MAIN STORE | 1909 US HWY 421 N | WILKESBORO | NC | ||||
2814 | MAIN STORE | 92-59 59TH AVE | ELMHURST | NY | ||||
2815 | MAIN STORE | 3200 GATEWAY BLVD | PRESCOTT | AZ | ||||
2816 | MAIN STORE | 3351 S DOGWOOD | EL CENTRO | CA | ||||
2817 | MAIN STORE | 2540 SYCAMORE RD | DE KALB | IL | ||||
2819 | MAIN STORE | 1627 OPELIKA RD STE 69 | AUBURN | AL | ||||
2820 | MAIN STORE | 6650 DOUGLAS BLVD | DOUGLASVILLE | GA | ||||
2820 | STYLING SALON | 6650 DOUGLAS BLVD. | DOUGLASVILLE | GA | ||||
2821 | MAIN STORE | 4340 SERGEANT RD | SIOUX CITY | IA | ||||
2822 | MAIN STORE | 1600 NE 23RD ST | POMPANO BEACH | FL | ||||
2823 | MAIN STORE | 12399 S MAINSTREET | RANCHO CUCAMONGA | CA | ||||
2824 | MAIN STORE | 6620 TOWNE CENTER LOOP STE E | SOUTHAVEN | MS | ||||
2825 | MAIN STORE | 12550 RIVERDALE BLVD | COON RAPIDS | MN | ||||
2826 | MAIN STORE | 333 N HWY 67 | CEDAR HILL | TX | ||||
2827 | MAIN STORE | 2611 E MAIN ST | PLAINFIELD | IN | ||||
2828 | MAIN STORE | 2000 N NEIL ST | CHAMPAIGN | IL | ||||
2829 | MAIN STORE | 13701 GROVE DR | MAPLE GROVE | MN | ||||
2829 | SIGN AGREEMENT | 13701 GROVE DR | MAPLE GROVE | MN | ||||
2830 | MAIN STORE | 7200 E HARRISON AVE | ROCKFORD | IL | ||||
2832 | MAIN STORE | 1401 GREENBRIER PKWY STE 3000 | CHESAPEAKE | VA | ||||
2833 | MAIN STORE | 6909 N LOOP 1604 E | SAN ANTONIO | TX | ||||
2834 | MAIN STORE | 69340 HWY 21 | COVINGTON | LA | ||||
2835 | MAIN STORE | 3000 E HIGHLAND DR STE 516 | JONESBORO | AR | ||||
2838 | MAIN STORE | 877 NE ALSBURY BLVD | BURLESON | TX | ||||
2839 | MAIN STORE | 31510 GRATIOT AVE | ROSEVILLE | MI | ||||
2840 | MAIN STORE | 1236 EASTDALE MALL | MONTGOMERY | AL | ||||
2841 | MAIN STORE | 2209 VETERANS BLVD | DEL RIO | TX | ||||
2842 | MAIN STORE | 13333 W MCDOWELL RD | GOODYEAR | AZ | ||||
2843 | MAIN STORE | 10083 GULF CENTER DR | FORT MYERS | FL | ||||
2844 | MAIN STORE | 100 BAYBROOK MALL | FRIENDSWOOD | TX | ||||
2845 | MAIN STORE | 3742 BROOKWALL DR STE 10 | AKRON | OH | ||||
2846 | MAIN STORE | 5050 E RAY RD | PHOENIX | AZ | ||||
2847 | MAIN STORE | 167 PITTSBURGH MILL CIR | TARENTUM | PA | ||||
2848 | MAIN STORE | 4485 S GRAND CANYON DR | LAS VEGAS | NV | ||||
2849 | MAIN STORE | 10000 ALABAMA ST | REDLANDS | CA | ||||
2850 | MAIN STORE | 28151 STATE RD 56 | WESLEY CHAPEL | FL | ||||
2862 | MAIN STORE | 3459 PRINCETON RD | HAMILTON | OH | ||||
2863 | MAIN STORE | 23523 GRAND CIRCLE BLVD | KATY | TX | ||||
2864 | MAIN STORE | 3001 WHITE BEAR AVE | MAPLEWOOD | MN | ||||
2865 | MAIN STORE | 8348 TAMARACK VILLAGE | WOODBURY | MN | ||||
2866 | MAIN STORE | 800 WILLARD DR | ASHWAUBENON | WI | ||||
2867 | MAIN STORE | 301 OAK SPRING RD | WASHINGTON | PA | ||||
2868 | MAIN STORE | 401 S MT JULIET RD STE 630 | MT JULIET | TN | ||||
2869 | MAIN STORE | 5060 PINNACLE SQ | BIRMINGHAM | AL | ||||
2870 | MAIN STORE | 17610 E 39TH ST S | INDEPENDENCE | MO | ||||
2871 | MAIN STORE | 240 BANKS CROSSING | FAYETTEVILLE | GA | ||||
2872 | MAIN STORE | 1380 HWY 20 W | MCDONOUGH | GA | ||||
2873 | MAIN STORE | 304 FORUM DR | COLUMBIA | SC | ||||
2874 | MAIN STORE | 341 NEWNAN CROSSING BYP | NEWNAN | GA |
Store Number |
Type/Use |
Address |
City |
State |
||||
2875 | MAIN STORE | 22500 TOWN CENTER AVE | SPANISH FORT | AL | ||||
2876 | MAIN STORE | 14658 DELAWARE ST | WESTMINSTER | CO | ||||
2877 | MAIN STORE | 17710 LA CANTERA PKWY | SAN ANTONIO | TX | ||||
2878 | MAIN STORE | 4680 HIGH POINTE BLVD | HARRISBURG | PA | ||||
2879 | MAIN STORE | 2202 BELLVIEW RD | ROGERS | AR | ||||
2880 | MAIN STORE | STATE HWY 16 & RT 302 | NORTH CONWAY | NH | ||||
2881 | MAIN STORE | 300 MEMORIAL CITY WAY | HOUSTON | TX | ||||
2883 | MAIN STORE | 2500 SMITH RANCH RD | PEARLAND | TX | ||||
2884 | MAIN STORE | 12351 N IH-35 | AUSTIN | TX | ||||
2885 | MAIN STORE | 5120 FAIRMONT PKWY | PASADENA | TX | ||||
2888 | MAIN STORE | 2100 PLEASANT HILL RD | DULUTH | GA | ||||
2889 | MAIN STORE | 1727 W BETHANY HOME RD | PHOENIX | AZ | ||||
2901 | MAIN STORE | 8752 MICHIGAN RD | INDIANAPOLIS | IN | ||||
2902 | MAIN STORE | 1900 E RIO SALADO PKWY STE 140 | TEMPE | AZ | ||||
2903 | MAIN STORE | 3141 WATERMILL DR | BURLINGTON | NC | ||||
2904 | MAIN STORE | 9500 S IH-35 STE H | AUSTIN | TX | ||||
2905 | MAIN STORE | 3001 TEXAS SAGE TRL | FORT WORTH | TX | ||||
2905 | SIGN AGREEMENT | 3001 TEXAS SAGE TRAIL | FORT WORTH | TX | ||||
2906 | MAIN STORE | 1720 OLD FORT PKWY | MURFREESBORO | TN | ||||
2907 | MAIN STORE | 6302 S CENTRAL ST | AURORA | CO | ||||
2908 | MAIN STORE | 100 COLUMBIANA CIR #102 | COLUMBIA | SC | ||||
2909 | MAIN STORE | 7939 HWY N | DARDENNE PRAIRIE | MO | ||||
2910 | MAIN STORE | 7751 TOWNE CENTER PKWY | PAPILLION | NE | ||||
2911 | MAIN STORE | 11552 S DISTRICT DR | SOUTH JORDAN | UT | ||||
2912 | MAIN STORE | 10904 STADIUM PKWY | KANSAS CITY | KS | ||||
2913 | MAIN STORE | 5265 S CALLE SANTA CRUZ | TUCSON | AZ | ||||
2914 | MAIN STORE | 2600 S SHACKLEFORD RD | LITTLE ROCK | AR | ||||
2915 | MAIN STORE | 135 BOCKMAN DR | FORT COLLINS | CO | ||||
2916 | MAIN STORE | 400 N UNION ST | OLEAN | NY | ||||
2917 | MAIN STORE | 955 S HOVER ST | LONGMONT | CO | ||||
2918 | MAIN STORE | 340 S COLONIAL DR | ALABASTER | AL | ||||
2919 | MAIN STORE | 2890 N MAIN ST | SANTA ANA | CA | ||||
2920 | MAIN STORE | 9480 VILLAGE PLACE BLVD | BRIGHTON | MI | ||||
2921 | MAIN STORE | 5751 LONG PRAIRIE RD | FLOWER MOUND | TX | ||||
2922 | MAIN STORE | 13900 HOARD DR | NOBLESVILLE | IN | ||||
2924 | MAIN STORE | 7400 WOODWARD AVE | WOODRIDGE | IL | ||||
2925 | MAIN STORE | 8201 FLYING CLOUD DR | EDEN PRAIRIE | MN | ||||
2926 | MAIN STORE | 7451 YOUREE DR | SHREVEPORT | LA | ||||
2927 | MAIN STORE | 410 PORTERS VALE BLVD | VALPARAISO | IN | ||||
2928 | MAIN STORE | 1100 OGDEN AVE | MONTGOMERY | IL | ||||
2929 | MAIN STORE | SEND TO SL SHARED SERVICES CTR | CRYSTAL LAKE | IL | ||||
2930 | MAIN STORE | 1600 ORCHARD GATEWAY BLVD | NORTH AURORA | IL | ||||
2931 | MAIN STORE | 3100 MAIN ST STE 1000 | MAUMEE | OH | ||||
2932 | MAIN STORE | 3400 RIO GRANDE AVE | MONTROSE | CO | ||||
2933 | MAIN STORE | 1200 N HAPPY VALLEY RD | NAMPA | ID | ||||
2934 | MAIN STORE | 151 UNIVERSITY OAKS | ROUND ROCK | TX | ||||
2934 | SIGN AGREEMENT | 151 UNIVERSITY OAKS | ROUND ROCK | TX | ||||
2935 | MAIN STORE | 2071 COLISEUM DR | HAMPTON | VA | ||||
2936 | MAIN STORE | 1041 N PROMENADE PKWY | CASA GRANDE | AZ | ||||
2937 | MAIN STORE | 14659 RAMONA AVE | CHINO | CA | ||||
2939 | MAIN STORE | 7400 SAN PEDRO AVE | SAN ANTONIO | TX | ||||
2940 | MAIN STORE | 5651 HWY 95 N | LAKE HAVASU CITY | AZ | ||||
2941 | MAIN STORE | 2400 S SERVICE RD | MOORE | OK | ||||
2942 | MAIN STORE | 7271 SE 29TH ST | MIDWEST CITY | OK | ||||
2943 | MAIN STORE | 3675 STONE CREEK BLVD | COLERAIN TOWNSHIP | OH | ||||
2944 | MAIN STORE | 25646 HWY 290 | CYPRESS | TX |
Store Number |
Type/Use |
Address |
City |
State |
||||
2944 | SIGN AGREEMENT | 25646 HWY 290 | CYPRESS | TX | ||||
2945 | MAIN STORE | 2001 W OSCEOLA PKWY | KISSIMMEE | FL | ||||
2946 | MAIN STORE | 1015 E I 30 | ROCKWALL | TX | ||||
2948 | MAIN STORE | 3065 RT 50 | SARATOGA SPRINGS | NY | ||||
2949 | MAIN STORE | 1441 N HWY 77 | WAXAHACHIE | TX | ||||
2950 | MAIN STORE | 800 S RANDALL RD | ALGONQUIN | IL | ||||
2951 | MAIN STORE | 2940 COMMERCE DR | JOHNSBURG | IL | ||||
2952 | MAIN STORE | 4451 PROMENADE WAY | MATTESON | IL | ||||
2952 | SIGN AGREEMENT | 4451 PROMENADE WAY | MATTESON | IL | ||||
2953 | MAIN STORE | 8100 N FLINTLOCK RD | KANSAS CITY | MO | ||||
2954 | MAIN STORE | N96W18515 COUNTY LINE RD | MENOMONEE FALLS | WI | ||||
2955 | MAIN STORE | 4951 SLATTEN RANCH RD | ANTIOCH | CA | ||||
2955 | SIGN AGREEMENT | 4951 SLATTEN RANCH RD | ANTIOCH | CA | ||||
2956 | MAIN STORE | 550 PINNACLE PL | PRATTVILLE | AL | ||||
2957 | MAIN STORE | 4185 RIVERDALE RD | RIVERDALE | UT | ||||
2959 | MAIN STORE | 419 E TRENTON RD | EDINBURG | TX | ||||
2960 | MAIN STORE | 1950 JOE BATTLE BLVD | EL PASO | TX | ||||
2961 | MAIN STORE | 3125 LOUISIANA AVE | LAFAYETTE | LA | ||||
2962 | MAIN STORE | 725 ADAMS DR | WEATHERFORD | TX | ||||
2963 | MAIN STORE | 1996 MEMORIAL DR STE 1 | ST JOHNSBURY | VT | ||||
2964 | MAIN STORE | 2060 SAM RITTENBERG BLVD | CHARLESTON | SC | ||||
2965 | MAIN STORE | 3650 NEW CENTER PT | COLORADO SPRINGS | CO | ||||
2966 | MAIN STORE | 8568 E 49TH AVE | DENVER | CO | ||||
2967 | MAIN STORE | 50753 WATERSIDE DR | CHESTERFIELD TOWNSHP | MI | ||||
2968 | MAIN STORE | 24201 BRAZOS TOWN CROSSING | ROSENBERG | TX | ||||
2968 | SIGN AGREEMENT | 24201 BRAZOS TOWN CROSSING | ROSENBERG | TX | ||||
2969 | MAIN STORE | 610 GRAHAM DR | SHERMAN | TX | ||||
2970 | MAIN STORE | 5181 PEPPER ST | SPRING HILL | FL | ||||
2971 | MAIN STORE | 300 TOWN CENTER BLVD | WHITE LAKE TOWNSHIP | MI | ||||
2972 | MAIN STORE | 43690 FORD RD | CANTON | MI | ||||
2973 | MAIN STORE | 11325 W LINCOLN HWY | MOKENA | IL | ||||
2975 | MAIN STORE | 3333 MARKET PLACE DR | COUNCIL BLUFFS | IA | ||||
2976 | MAIN STORE | 515 CABELA DR | TRIADELPHIA | WV | ||||
2977 | MAIN STORE | 5886 HIGHWAY 100 | WASHINGTON | MO | ||||
2978 | MAIN STORE | 9365 FIELDS ERTEL RD | CINCINNATI | OH | ||||
2979 | MAIN STORE | 2345 S HWY 27 | CLERMONT | FL | ||||
2980 | MAIN STORE | 3165 INTERSTATE 45 N | CONROE | TX | ||||
2980 | SIGN AGREEMENT | 3165 INTERSTATE 45 N | CONROE | TX | ||||
2982 | MAIN STORE | 301 STACY RD | FAIRVIEW | TX | ||||
2983 | MAIN STORE | 800 BARNES ST | SAN MARCOS | TX | ||||
2984 | MAIN STORE | 2037 LANTERN RIDGE DR | RICHMOND | KY | ||||
2985 | MAIN STORE | 6200 GRANDVIEW PKWY | DAVENPORT | FL | ||||
2986 | MAIN STORE | 200 MARKET ST | FLOWOOD | MS | ||||
2987 | MAIN STORE | 1001 RAINBOW DR | GADSDEN | AL | ||||
2988 | MAIN STORE | 7700 POLO GROUNDS BLVD | MEMPHIS | TN | ||||
2989 | MAIN STORE | 1800 COASTAL GRAND CIR | MYRTLE BEACH | SC | ||||
2990 | MAIN STORE | 6901 W 135TH ST | OVERLAND PARK | KS | ||||
2991 | MAIN STORE | 5335 W LOOP 1604 N | SAN ANTONIO | TX | ||||
2991 | SIGN AGREEMENT | 5335 W LOOP 1604 N | SAN ANTONIO | TX | ||||
2992 | MAIN STORE | 4190 E COURT ST STE 500 | BURTON | MI | ||||
2992 | SIGN AGREEMENT | 4190 E COURT ST STE 500 | BURTON | MI | ||||
2993 | MAIN STORE | 798 GRAVOIS BLUFFS BLVD | FENTON | MO | ||||
2993 | SIGN AGREEMENT | BELLEFONTAINE | FENTON | MO | ||||
2993 | SIGN AGREEMENT | 798 GRAVOIS BLUFFS BLVD | FENTON | MO | ||||
2993 | SIGN AGREEMENT | LOT 8A | FENTON | MO | ||||
2994 | MAIN STORE | 3363 LOWERY PKWY | FULTONDALE | AL |
Store Number |
Type/Use |
Address |
City |
State |
||||
2995 | MAIN STORE | 5858 E SAM HOUSTON PKWY N | HOUSTON | TX | ||||
2995 | SIGN AGREEMENT | 5858 E SAM HOUSTON PKWY N | HOUSTON | TX | ||||
2997 | MAIN STORE | 206 BLUEFISH DR | PANAMA CITY BEACH | FL | ||||
2998 | MAIN STORE | 19005 SE MILL PLAIN BLVD | VANCOUVER | WA | ||||
2999 | MAIN STORE | 1060 PERIMETER DR | MANTECA | CA | ||||
3003 | CATALOG OUTLET - 30 | 8702 N 2ND ST | MACHESNEY PARK | IL | ||||
3010 | CATALOG OUTLET - 30 | 240 COMMONWEALTH BLVD W STE145 | MARTINSVILLE | VA | ||||
3013 | CATALOG OUTLET - 30 | 9495 W 75TH ST | OVERLAND PARK | KS | ||||
3014 | CATALOG OUTLET - 30 | 190 E GLENDALE AVE | SPARKS | NV | ||||
3029 | CATALOG OUTLET - 30 | 4410 MILLS CIR | ONTARIO | CA | ||||
3034 | CATALOG OUTLET - 30 | 2442 ROMIG RD | AKRON | OH | ||||
3036 | CATALOG OUTLET - 30 | 246 JAMESTOWN MALL | FLORISSANT | MO | ||||
3037 | CATALOG OUTLET - 30 | 3050 N 5TH ST | READING | PA | ||||
3040 | CATALOG OUTLET - 30 | 3430 PRESTON HWY | LOUISVILLE | KY | ||||
3900 | AIR BRIDGE | 406 W. 5TH AVENUE | ANCHORAGE | AK | ||||
3900 | PARKING | 406 W. 5TH AVENUE | ANCHORAGE | AK | ||||
4306 | TELEMARKETING | 1001 COMMERCE DRIVE | HARMARVILLE | PA | ||||
4534 | CUSTOM DECORATING | 4741 & 4801 URBANI AVENUE | MCCLELLAN | CA | ||||
4573 | CUSTOM DECORATING | 4455-4497 SOUTH 134TH PL. BUILDING B, SUITE 4475 | TUKWILA | WA | ||||
4573 | CUSTOM DECORATING | 331 SOUTH RIVER DRIVE, STE 4 | TEMPE | AZ | ||||
5071 | TREASURY | GOLF ROAD & MILWAUKEE AVE. | NILES | IL | ||||
9005 | LOGISTIC CENTER | 1634 SALISBURY ROAD | STATESVILLE | NC | ||||
9005 | PARKING | 1634 SALISBURY ROAD | STATESVILLE | NC | ||||
9005 | PARKING | 1211 BARKLEY ROAD | STATESVILLE | NC | ||||
9005 | PARKING | STATESVILLE | NC | |||||
9010 | LOGISTIC CENTER | 6800 VALLEY VIEW AVENUE | BUENA PARK | CA | ||||
9041 | OFFICES | 3801 PARKWOOD BLVD SUITE D-100 | FRISCO | TX | ||||
9100 | ACCOUNTING OFFICE | 310 SOUTH MAIN ST. | SALT LAKE CITY | UT | ||||
9100 | PARKING | 45 EAST BROADWAY | SALT LAKE CITY | UT | ||||
9113 | ECKERD DRUG - CVS | 3821 ELLISON DRIVE NW | ALBUQUERQUE | NM | ||||
9130 | LOGISTIC CENTER | 5555 SCARBOROUGH BLVD. | COLUMBUS | OH | ||||
9131 | LOGISTIC CENTER | 11800 W. BURLEIGH ROAD | WAUWATOSA | WI | ||||
9132 | LOGISTIC CENTER | 10500 LACKMAN ROAD | LENEXA | KS | ||||
9224 | LAND | 501 DARCY PARKWAY | LATHROP | CA | ||||
9224 | LOGISTIC CENTER | 700 DARCY PARKWAY | LATHROP | CA | ||||
9275 | ADDITIONAL SPACE | 124 ROSE LANE, SUITE 106 | FRISCO | TX | ||||
9316 | LOGISTIC CENTER | 11111 STEAD BLVD. | RENO | NV | ||||
9317 | LOGISTIC CENTER | 1339 TOLLAND TPK | MANCHESTER | CT | ||||
9435 | LOGISTIC CENTER | 1701 INTERMODAL PARKWAY; ALLIANCE AIRPORT | HASLET | TX | ||||
9442 | STORE SUPPORT CENTER | 1650 S HWY 67 | CEDAR HILL | TX | ||||
9450 | STORE SUPPORT CENTER | 6800 STATE ROAD 33 | LAKELAND | FL | ||||
9451 | PARKING | 1302 PUYALLUP STREET | SUMNER | WA | ||||
9451 | STORE SUPPORT CENTER | 2932 142ND AVENUE EAST | SUMNER | WA | ||||
9454 | STORE SUPPORT CENTER | 400 HIGHWAY 6 | SPANISH FORK | UT | ||||
9486 | LOGISTIC CENTER | 5500 SOUTH EXPRESSWAY/120 PENNEY RD/5500 FRONTAGE ROAD | ATLANTA/FOREST PARK | GA | ||||
9707 | STORE SUPPORT CENTER | 1200 NORTHBROOK PARKWAY, SUITE 180 | SUWANEE | GA | ||||
9900 | OFFICES | 560 SOUTH WINCHESTER BLVD. | SAN JOSE | CA | ||||
9900 | OFFICES | 601 PENNSYLVANIA AVE NW | WASHINGTON | DC | ||||
9900 | ACCOUNTING OFFICE | 6501 LEGACY DRIVE | PLANO | TX | ||||
9900 | HANGER FOR CORP AIRCRAFT | 8111 LEMON AVE, STE 150 | DALLAS | TX | ||||
9900 | OFFICES | 3600 SOUTH HARBOR BLVD | OXNARD | CA |
Store Number |
Type/Use |
Address |
City |
State |
||||
9900 | OFFICES | 300 SOUTH EL CAMINO ROAD, SUITE 201 | SAN CLEMENTE | CA | ||||
9900 | OFFICES | 649 MISSION STREET | SAN FRANCISCO | CA | ||||
9900 | OFFICES | 328 BARRY AVENUE | WAYZATA | MN | ||||
9900 | OFFICES | TWO CITY PLACE DRIVE, 2ND FL | ST LOUIS | MO | ||||
9900 | OFFICES | 1501 BROADWAY, 12TH FLOOR | NEW YORK | NY | ||||
9900 | OFFICES | 256 WEST 36TH STREET, 7TH FLOOR | NEW YORK | NY | ||||
9900 | OFFICES | 411 LAFAYETTE ST, 6TH FL | NEW YORK | NY | ||||
9900 | QUALITY ASSURANCE | 1625 CRESCENT CIRCLE, SUITES 115 AND 112 | CARROLLTON | TX |
Inventory Locations
Store Number | Street | City | State | Zip | ||||||
4 | 990 22ND AVE S | BROOKINGS | SD | 57006 | ||||||
5 | 9501 ARLINGTON EXPY STE 105 | JACKSONVILLE | FL | 32225 | ||||||
7 | 1579 CLARK STREET RD | AUBURN | NY | 13021 | ||||||
16 | 1170 CENTRAL AVE | DUNKIRK | NY | 14048 | ||||||
17 | 1425 S SANTA FE AVE | CHANUTE | KS | 66720 | ||||||
26 | 124 S MAIN ST | PENDLETON | OR | 97801 | ||||||
27 | 12300 SE 82ND AVE | PORTLAND | OR | 97086 | ||||||
30 | 14301 BURNHAVEN DR | BURNSVILLE | MN | 55306 | ||||||
43 | 621 MAIN ST | ALAMOSA | CO | 81101 | ||||||
44 | 3542 S MARYLAND PKWY | LAS VEGAS | NV | 89169 | ||||||
46 | 701 RICHMOND RD | RICHMOND HEIGHTS | OH | 44143 | ||||||
52 | 321 MAIN ST | FORT MORGAN | CO | 80701 | ||||||
55 | 4600 S MEDFORD DR STE 2000 | LUFKIN | TX | 75901 | ||||||
56 | 413 DAKOTA AVE | WAHPETON | ND | 58075 | ||||||
58 | 2050 PONCE BY PASS STE 200 | PONCE | PR | 717 | ||||||
63 | 212 E 2ND ST | THE DALLES | OR | 97058 | ||||||
65 | 1309 ADAMS AVE | LA GRANDE | OR | 97850 | ||||||
67 | 500 LEHIGH VALLEY MALL | WHITEHALL | PA | 18052 | ||||||
89 | 2321 DAVE LYLE BLVD | ROCK HILL | SC | 29730 | ||||||
90 | 4530 N ORACLE RD | TUCSON | AZ | 85705 | ||||||
99 | 300 CROSS CREEK MALL | FAYETTEVILLE | NC | 28303 | ||||||
102 | 9801 CORTANA PL | BATON ROUGE | LA | 70815 | ||||||
104 | 201-209 WEST C ST | MCCOOK | NE | 69001 | ||||||
106 | 401 NE NORTHGATE WAY STE 475 | SEATTLE | WA | 98125 | ||||||
109 | 1343 COMMERCIAL ST | ASTORIA | OR | 97103 | ||||||
113 | 403 MAIN ST | WILLISTON | ND | 58801 | ||||||
116 | 81 ROCKINGHAM PARK BLVD | SALEM | NH | 3079 | ||||||
120 | 301 WYOMING BLVD SE | CASPER | WY | 82609 | ||||||
129 | 600 S CARPENTER AVE | KINGSFORD | MI | 49802 | ||||||
130 | 601-635 HARRY L DR STE 99 | JOHNSON CITY | NY | 13790 | ||||||
133 | 25 LILAC MALL (RT 125) | ROCHESTER | NH | 3867 | ||||||
135 | 344 V BUCKLAND HLS DR STE 7000 | MANCHESTER | CT | 6042 | ||||||
141 | 1207 N COMMERCE | ARDMORE | OK | 73401 | ||||||
152 | 4835 PROMENADE PKWY | BESSEMER | AL | 35022 | ||||||
157 | 2180 S GILBERT RD | CHANDLER | AZ | 85286 | ||||||
161 | 5043 JIMMY LEE SMITH PKWY | HIRAM | GA | 30141 | ||||||
162 | 90 E LOCUST ST | CANTON | IL | 61520 | ||||||
163 | 800 FOXCROFT AVE STE 800 | MARTINSBURG | WV | 25401 | ||||||
168 | 300 MONTGOMERY MALL | NORTH WALES | PA | 19454 | ||||||
170 | 720 N 12TH ST (US 641) | MURRAY | KY | 42071 | ||||||
171 | 10225 77TH ST | PLEASANT PRAIRIE | WI | 53158 | ||||||
174 | 100 W 32ND ST | NEW YORK | NY | 10001 | ||||||
178 | 333 MAIN ST STE 200 | OAK RIDGE | TN | 37830 | ||||||
179 | 6051 SKILLMAN ST | DALLAS | TX | 75231 | ||||||
182 | 1800 DAISY ST EXT STE 2 | CLEARFIELD | PA | 16830 | ||||||
183 | 2100 HAMILTON PLACE BLVD | CHATTANOOGA | TN | 37421 | ||||||
184 | 990 NW BLUE PKWY | LEES SUMMIT | MO | 64086 | ||||||
185 | 1150 W CARL SANDBURG DR | GALESBURG | IL | 61401 | ||||||
192 | 11801 FAIR OAKS MALL | FAIRFAX | VA | 22033 | ||||||
194 | 9100 MCHUGH DR STE 576 | LANHAM | MD | 20706 | ||||||
195 | 63 SERRAMONTE CTR | DALY CITY | CA | 94015 |
Store Number | Street | City | State | Zip | ||||||
196 | 222 S STATE ST | FAIRMONT | MN | 56031 | ||||||
197 | 360 GATEWAY DR | BROOKLYN | NY | 11239 | ||||||
199 | 500 MONROEVILLE MALL | MONROEVILLE | PA | 15146 | ||||||
201 | 10101 E INDEPENDENCE BLVD | MATTHEWS | NC | 28105 | ||||||
202 | 1754 FRANKLIN MILLS CIR | PHILADELPHIA | PA | 19154 | ||||||
204 | 2700 POTOMAC MILLS CIR | WOODBRIDGE | VA | 22192 | ||||||
207 | 2500 W MORELAND RD | WILLOW GROVE | PA | 19090 | ||||||
209 | 3411 MERCHANT BLVD | ABINGDON | MD | 21009 | ||||||
211 | 3200 W EMPIRE MALL | SIOUX FALLS | SD | 57106 | ||||||
214 | 200 WESTERN AVE NW STE A | FARIBAULT | MN | 55021 | ||||||
217 | 14370 BEAR VALLEY RD | VICTORVILLE | CA | 92392 | ||||||
218 | 6020 E 82ND ST STE 700 | INDIANAPOLIS | IN | 46250 | ||||||
219 | 3400 BELL AIR MALL | MOBILE | AL | 36606 | ||||||
220 | 1500 E WASHINGTON AVE | UNION GAP | WA | 98903 | ||||||
221 | 1155 CARLISLE ST | HANOVER | PA | 17331 | ||||||
225 | 2005 VETERANS BLVD | DUBLIN | GA | 31021 | ||||||
226 | 2200 S 10TH ST | MCALLEN | TX | 78503 | ||||||
231 | 10450 S STATE ST STE 2106 | SANDY | UT | 84070 | ||||||
232 | 4502 S STEELE STE 200 | TACOMA | WA | 98409 | ||||||
237 | 3 ORLAND SQ DR | ORLAND PARK | IL | 60462 | ||||||
241 | 2000 RT 38 STE 1000 | CHERRY HILL | NJ | 8002 | ||||||
246 | 20700 AVALON BLVD | CARSON | CA | 90746 | ||||||
249 | 901 W MORTON | JACKSONVILLE | IL | 62650 | ||||||
250 | 67 LAKEWOOD CTR MALL | LAKEWOOD | CA | 90712 | ||||||
251 | 7750 W ARROWHEAD TOWNE CENTER | GLENDALE | AZ | 85308 | ||||||
253 | 3501 GRANVILLE AVE | MUNCIE | IN | 47303 | ||||||
258 | 734 MARKET ST | FARMINGTON | MO | 63640 | ||||||
259 | 3111 S 31ST ST STE 3301 | TEMPLE | TX | 76502 | ||||||
260 | 950 DANA DR | REDDING | CA | 96003 | ||||||
268 | 2500 MEADOWBROOK MALL | BRIDGEPORT | WV | 26330 | ||||||
270 | 854 STATE RTE 13 | CORTLAND | NY | 13045 | ||||||
273 | 701 RUSSELL AVE | GAITHERSBURG | MD | 20877 | ||||||
283 | 1057 BROAD ST | SUMTER | SC | 29150 | ||||||
286 | 4500 PEORIA ST (US 51) | PERU | IL | 61354 | ||||||
287 | 901 US 27 N STE 150 | SEBRING | FL | 33870 | ||||||
288 | 9500 SW WASHINGTON SQ RD | PORTLAND | OR | 97223 | ||||||
304 | 3550 MCCANN RD | LONGVIEW | TX | 75605 | ||||||
306 | 225 MAIN AVE N | THIEF RIVER FALLS | MN | 56701 | ||||||
309 | 640 NIBLACK BLVD | VINCENNES | IN | 47591 | ||||||
311 | 1980 N JEFFERSON ST | HUNTINGTON | IN | 46750 | ||||||
318 | 101 APACHE MALL | ROCHESTER | MN | 55902 | ||||||
321 | 451 E ALTAMONTE DR STE 1301 | ALTAMONTE SPRINGS | FL | 32701 | ||||||
322 | 400 DUBOIS RD | COOKEVILLE | TN | 38501 | ||||||
324 | 870 W MARKET ST | TIFFIN | OH | 44883 | ||||||
327 | 87 VILLAGE SQUARE MALL | EFFINGHAM | IL | 62401 | ||||||
334 | 1330 TRAVIS BLVD | FAIRFIELD | CA | 94533 | ||||||
345 | 2200 W FLORIDA AVE | HEMET | CA | 92545 | ||||||
351 | 3057 E MAIN | RUSSELLVILLE | AR | 72802 | ||||||
355 | 1251 US 31 N | GREENWOOD | IN | 46142 | ||||||
365 | 214 BORGER S/C | BORGER | TX | 79007 | ||||||
367 | 400 BALD HILL RD | WARWICK | RI | 2886 | ||||||
370 | 1000 HILLTOP MALL | RICHMOND | CA | 94806 | ||||||
373 | 1262 VOCKE RD STE 300 | LA VALE | MD | 21502 | ||||||
384 | 2901 N GRAND AVE | AMES | IA | 50010 |
Store Number | Street | City | State | Zip | ||||||
389 | 1500 STONERIDGE MALL RD | PLEASANTON | CA | 94588 | ||||||
395 | 3405 E STATE ST | HERMITAGE | PA | 16148 | ||||||
400 | 125 S MICHIGAN AVE | BIG RAPIDS | MI | 49307 | ||||||
403 | 5953 W PARK AVE STE 3000 | HOUMA | LA | 70364 | ||||||
406 | 1100 N MAIN ST | ALTUS | OK | 73521 | ||||||
419 | 2021 N HIGHLAND AVE STE 15 | JACKSON | TN | 38305 | ||||||
424 | 7171 N DAVIS HWY AND RT 10 | PENSACOLA | FL | 32504 | ||||||
426 | 251 HIGH ST | TORRINGTON | CT | 6790 | ||||||
439 | 600 EASTVIEW MALL | VICTOR | NY | 14564 | ||||||
450 | 1300 W MALONEY AVE STE A | GALLUP | NM | 87301 | ||||||
456 | 3404 W 13TH ST | GRAND ISLAND | NE | 68803 | ||||||
457 | 101 W WATER ST | DECORAH | IA | 52101 | ||||||
465 | 24140 MAGIC MOUNTAIN PKY | SANTA CLARITA | CA | 91355 | ||||||
466 | 150 HOMER ADAMS PKWY | ALTON | IL | 62002 | ||||||
478 | 5200 MEADOWOOD MALL CIR | RENO | NV | 89502 | ||||||
479 | 6481 NEWBERRY RD | GAINESVILLE | FL | 32605 | ||||||
481 | 4201 YELLOWSTONE AVE | POCATELLO | ID | 83202 | ||||||
483 | 3936 E MARKET ST | LOGANSPORT | IN | 46947 | ||||||
485 | 4310 BUFFALO GAP RD | ABILENE | TX | 79606 | ||||||
487 | 3401 S US 41 | TERRE HAUTE | IN | 47802 | ||||||
494 | 600 MERCED MALL | MERCED | CA | 95348 | ||||||
495 | 1300 9TH AVE SE STE 3 | WATERTOWN | SD | 57201 | ||||||
496 | 1700 W COUNTY RD B-2 | ROSEVILLE | MN | 55113 | ||||||
497 | 305 MOUNT HOPE AVE | ROCKAWAY | NJ | 7866 | ||||||
514 | 830 MAIN ST | PRESQUE ISLE | ME | 4769 | ||||||
528 | 1680 WRIGHT AVE | ALMA | MI | 48801 | ||||||
529 | 17301 VALLEY MALL RD STE 400 | HAGERSTOWN | MD | 21740 | ||||||
530 | 155 DORSET ST | SOUTH BURLINGTON | VT | 5403 | ||||||
536 | 300 EARLY BLVD | EARLY | TX | 76802 | ||||||
539 | 140 STATE ROUTE 104 STE A | OSWEGO | NY | 13126 | ||||||
549 | 3301 VETERANS MEMORIAL BLVD | METAIRIE | LA | 70002 | ||||||
557 | 15740 WHITTWOOD LANE | WHITTIER | CA | 90603 | ||||||
559 | 2424 US 6TH AND 50TH | GRAND JUNCTION | CO | 81505 | ||||||
562 | 1701 SUNRISE HWY | BAY SHORE | NY | 11706 | ||||||
566 | 2555 EL CAMINO REAL | CARLSBAD | CA | 92008 | ||||||
568 | 300 S MAIN ST | MCALLEN | TX | 78501 | ||||||
578 | 50 HOLYOKE ST | HOLYOKE | MA | 1040 | ||||||
579 | 4101 E 42ND ST | ODESSA | TX | 79762 | ||||||
581 | 800 S JAMES CAMPBELL BLVD | COLUMBIA | TN | 38401 | ||||||
582 | 5001 MONROE ST | TOLEDO | OH | 43623 | ||||||
588 | 300 HWY 78 E | JASPER | AL | 35501 | ||||||
601 | 3700 S MERIDIAN ST | PUYALLUP | WA | 98373 | ||||||
607 | 1100 S DEWEY ST | NORTH PLATTE | NE | 69101 | ||||||
608 | 814 US HWY 62-65 N | HARRISON | AR | 72601 | ||||||
611 | 6002 SLIDE RD-BLDG A | LUBBOCK | TX | 79414 | ||||||
620 | 1700 W INTL SPEEDWAY BLVD | DAYTONA BEACH | FL | 32114 | ||||||
631 | 6301 NW LOOP 410 | SAN ANTONIO | TX | 78238 | ||||||
634 | 3040 PLAZA BONITA RD | NATIONAL CITY | CA | 91950 | ||||||
643 | 4600 BAY RD | SAGINAW | MI | 48604 | ||||||
644 | 3301 DILLON DR | PUEBLO | CO | 81008 | ||||||
647 | 3315 N RIDGE RD E STE 100 | ASHTABULA | OH | 44004 | ||||||
651 | PR RD 2 KM 81.9 CARRIZALES | HATILLO | PR | 659 | ||||||
652 | 2200 W WAR MEMORIAL DR STE 997 | PEORIA | IL | 61613 | ||||||
654 | 3541 MASONIC DR | ALEXANDRIA | LA | 71301 |
Store Number | Street | City | State | Zip | ||||||
656 |
1200 10TH AVE S | GREAT FALLS | MT | 59405 | ||||||
658 |
5300 SAN DARIO | LAREDO | TX | 78041 | ||||||
663 |
3929 MCCAIN BLVD STE 500 | NORTH LITTLE ROCK | AR | 72116 | ||||||
666 |
2005 N 14TH ST STE 141 | PONCA CITY | OK | 74601 | ||||||
671 |
3199 N WHITE SANDS | ALAMOGORDO | NM | 88310 | ||||||
680 |
51027 HWY 6 | GLENWOOD SPRINGS | CO | 81601 | ||||||
681 |
2101 FT HENRY DR | KINGSPORT | TN | 37664 | ||||||
687 |
3700 ATLANTA HWY | ATHENS | GA | 30606 | ||||||
688 |
2600 BEACH BLVD | BILOXI | MS | 39531 | ||||||
689 |
2427 US HWY 90 W STE 10 | LAKE CITY | FL | 32055 | ||||||
691 |
484 SUN VALLEY MALL | CONCORD | CA | 94520 | ||||||
695 |
700 HAYWOOD RD | GREENVILLE | SC | 29607 | ||||||
696 |
1249 SOUTHCENTER MALL | TUKWILA | WA | 98188 | ||||||
699 |
1169 GLENDALE GALLERIA | GLENDALE | CA | 91210 | ||||||
700 |
500 QUAKER BRIDGE MALL | TRENTON | NJ | 8648 | ||||||
702 |
8401 GATEWAY BLVD W | EL PASO | TX | 79925 | ||||||
703 |
408 MITCHELL ST | PETOSKEY | MI | 49770 | ||||||
704 |
4651 27TH ST | MOLINE | IL | 61265 | ||||||
708 |
1800 PIPESTONE RD | BENTON HARBOR | MI | 49022 | ||||||
709 |
3115 E COLONIAL DR | ORLANDO | FL | 32803 | ||||||
712 |
3111 MIDWESTERN PKWY | WICHITA FALLS | TX | 76308 | ||||||
718 |
310 TOWNE CTR CIR | SANFORD | FL | 32771 | ||||||
731 |
3202 OAKVIEW DR | OMAHA | NE | 68144 | ||||||
733 |
800 S CAMINO DEL RIO | DURANGO | CO | 81301 | ||||||
738 |
925 WASHINGTON AVE | DETROIT LAKES | MN | 56501 | ||||||
739 |
2150 NORTHWOODS BLVD UNIT E100 | N CHARLESTON | SC | 29406 | ||||||
744 |
300 VALLEY RIVER CTR | EUGENE | OR | 97401 | ||||||
766 |
331 BRANDON TOWN CENTER MALL | BRANDON | FL | 33511 | ||||||
767 |
4316 MILAN RD | SANDUSKY | OH | 44870 | ||||||
768 |
3300 CHAMBERS RD STE 5090 | HORSEHEADS | NY | 14845 | ||||||
769 |
2190 IDAHO ST | ELKO | NV | 89801 | ||||||
778 |
1408 N PARHAM RD | RICHMOND | VA | 23229 | ||||||
779 |
6000 FLORENCE MALL | FLORENCE | KY | 41042 | ||||||
780 |
1718 E BLVD | KOKOMO | IN | 46902 | ||||||
781 |
4101 S YALE AVE | TULSA | OK | 74135 | ||||||
786 |
7900 GOVERNOR RITCHIE HWY | GLEN BURNIE | MD | 21061 | ||||||
794 |
3500 OLEANDER DR | WILMINGTON | NC | 28403 | ||||||
808 |
3187 N MAIN ST | ANDERSON | SC | 29621 | ||||||
814 |
625 BLACK LAKE BLVD | OLYMPIA | WA | 98502 | ||||||
816 |
606 CHRISTIANA MALL | NEWARK | DE | 19702 | ||||||
819 |
500 BRIARWOOD CIR | ANN ARBOR | MI | 48108 | ||||||
830 |
910 SAWMILL RD | LAUREL | MS | 39440 | ||||||
834 |
2000 N POINT CIR | ALPHARETTA | GA | 30022 | ||||||
835 |
117-19 E MAIN ST | SIDNEY | MT | 59270 | ||||||
838 |
810 W PARK AVE | GREENWOOD | MS | 38930 | ||||||
852 |
701 LYNN HAVEN PKWY | VIRGINIA BEACH | VA | 23452 | ||||||
863 |
680 CITADEL DR E | COLORADO SPRINGS | CO | 80909 | ||||||
864 |
3661 EISENHOWER PKY | MACON | GA | 31206 | ||||||
870 |
730 MEYERLAND PLAZA MALL | HOUSTON | TX | 77096 | ||||||
881 |
7700 E KELLOGG DR | WICHITA | KS | 67207 | ||||||
882 |
2415 SAGAMORE PKWY S 52 | LAFAYETTE | IN | 47905 | ||||||
890 |
194 MAIN ST | STURBRIDGE | MA | 1566 | ||||||
891 |
135 E TOWNE MALL | MADISON | WI | 53704 | ||||||
895 |
150 PEARL NIX PKWY | GAINESVILLE | GA | 30501 |
Store Number | Street | City | State | Zip | ||||||
899 | 639 STILLWATER AVE | BANGOR | ME | 4401 | ||||||
902 | 1201 HOOPER AVE STE B | TOMS RIVER | NJ | 8753 | ||||||
907 | 8201 S TAMIAMI TRAIL | SARASOTA | FL | 34238 | ||||||
909 | 1620 E 10TH ST STE 100 | ROANOKE RAPIDS | NC | 27870 | ||||||
910 | 4129 E WILDER RD | BAY CITY | MI | 48706 | ||||||
911 | 800 N 98TH ST | OMAHA | NE | 68114 | ||||||
914 | 1170 INDIANA AVE | SAINT MARYS | OH | 45885 | ||||||
916 | JESUS FRAGOSO AVE-EXP O LOIZA | CAROLINA | PR | 983 | ||||||
920 | 200 W PARK MALL | CAPE GIRARDEAU | MO | 63703 | ||||||
921 | 2231 S MISSION RD | MT PLEASANT | MI | 48858 | ||||||
924 | 160 N GULPH RD STE 5000 | KING OF PRUSSIA | PA | 19406 | ||||||
933 | 300 WESTFARMS MALL | FARMINGTON | CT | 6032 | ||||||
951 | 1365 N DUPONT HWY STE 5000 | DOVER | DE | 19901 | ||||||
952 | 630 OLD COUNTRY RD UNIT A2 | GARDEN CITY | NY | 11530 | ||||||
954 | 234 N MAIN ST | SHERIDAN | WY | 82801 | ||||||
955 | 6420 S PACIFIC BLVD | HUNTINGTON PARK | CA | 90255 | ||||||
965 | 1845 N WEST AVE | EL DORADO | AR | 71730 | ||||||
972 | 220 GOLF MILL CTR | NILES | IL | 60714 | ||||||
982 | 7777 EASTPOINT MALL | BALTIMORE | MD | 21224 | ||||||
993 | 2418 SW MILITARY DR | SAN ANTONIO | TX | 78224 | ||||||
995 | 261 MERCER MALL RD | BLUEFIELD | WV | 24701 | ||||||
996 | 4401 S BROADWAY | TYLER | TX | 75703 | ||||||
1002 | 4348 ELECTRIC RD | ROANOKE | VA | 24018 | ||||||
1012 | 75 MAVERICK ST RT 1A | ROCKLAND | ME | 4841 | ||||||
1020 | 1671 W LACEY BLVD | HANFORD | CA | 93230 | ||||||
1024 | 236 E 5TH ST N | BURLEY | ID | 83318 | ||||||
1028 | 315 E SECOND ST | CALEXICO | CA | 92231 | ||||||
1031 | 220 ENNIS LN | TOWANDA | PA | 18848 | ||||||
1033 | 3000 DUNN AVE UNIT 25 | JACKSONVILLE | FL | 32218 | ||||||
1037 | 3401 DALE RD | MODESTO | CA | 95356 | ||||||
1046 | 2201 S INTERSTATE 35 E STE D | DENTON | TX | 76205 | ||||||
1048 | 200 SIDNEY BAKER ST S (HWY 16) | KERRVILLE | TX | 78028 | ||||||
1049 | 4 FOX VALLEY CTR | AURORA | IL | 60504 | ||||||
1052 | 220 W MARIPOSA RD | NOGALES | AZ | 85621 | ||||||
1056 | 3701 S MAIN ST (US 33) | ELKHART | IN | 46517 | ||||||
1058 | 1386 E COURT ST | SEGUIN | TX | 78155 | ||||||
1064 | 324 E SAN ANTONIO ST | EL PASO | TX | 79901 | ||||||
1067 | 1904 E 9TH ST | WINFIELD | KS | 67156 | ||||||
1068 | 202 E CENTENNIAL DR | PITTSBURG | KS | 66762 | ||||||
1071 | 2000 BRITTAIN RD STE 600 | AKRON | OH | 44310 | ||||||
1076 | 1060 HWY 15 S | HUTCHINSON | MN | 55350 | ||||||
1081 | 1780 GALLERIA BLVD | FRANKLIN | TN | 37067 | ||||||
1086 | 619 N PERKINS RD | STILLWATER | OK | 74075 | ||||||
1091 | 1401 PAUL BUNYAN DR NW STE 2 | BEMIDJI | MN | 56601 | ||||||
1101 | 715 E EXPRESSWAY 83 | WESLACO | TX | 78596 | ||||||
1106 | 1950 PRAIRIE CENTER PKWY | BRIGHTON | CO | 80601 | ||||||
1116 | 1744 E CARL ALBERT PKWY | MCALESTER | OK | 74501 | ||||||
1122 | 2501 W MEMORIAL RD | OKLAHOMA CITY | OK | 73134 | ||||||
1128 | 2520 GULF FWY S | LEAGUE CITY | TX | 77573 | ||||||
1130 | 3501 E BROADWAY | TUCSON | AZ | 85716 | ||||||
1134 | 80 VIEWMONT MALL | SCRANTON | PA | 18508 | ||||||
1135 | 3409 CANDLERS MOUNTAIN RD | LYNCHBURG | VA | 24502 | ||||||
1140 | 4541 S LABURNUM AVE | RICHMOND | VA | 23231 | ||||||
1141 | 1651 STATE HWY 1 S | GREENVILLE | MS | 38701 |
Store Number | Street | City | State | Zip | ||||||
1142 | 951 W PACHECO BLVD | LOS BANOS | CA | 93635 | ||||||
1143 | 428 N STATE HWY 19 | PALATKA | FL | 32177 | ||||||
1148 | 300 MARY ESTHER BLVD | MARY ESTHER | FL | 32569 | ||||||
1150 | 180 STATE ROUTE 35 | EATONTOWN | NJ | 7724 | ||||||
1153 | 2601 CENTRAL AVE | DODGE CITY | KS | 67801 | ||||||
1155 | 1300 E PINECREST DR | MARSHALL | TX | 75670 | ||||||
1156 | 4915 CLAREMONT AVE | STOCKTON | CA | 95207 | ||||||
1161 | 5256 ROUTE 30 | GREENSBURG | PA | 15601 | ||||||
1163 | 1375 US 127 S | FRANKFORT | KY | 40601 | ||||||
1164 | 2800 S COLUMBIA RD | GRAND FORKS | ND | 58201 | ||||||
1165 | 1826 19TH AVE | LEWISTON | ID | 83501 | ||||||
1166 | 18900 MICHIGAN AVE (US 12) | DEARBORN | MI | 48126 | ||||||
1168 | 14200 E ALAMEDA AVE | AURORA | CO | 80012 | ||||||
1170 | 700 QUINTARD DR STE 100 | OXFORD | AL | 36203 | ||||||
1180 | 260 WAYNE TOWNE CTR | WAYNE | NJ | 7470 | ||||||
1188 | 2825 S GLENSTONE AVE STE 200 | SPRINGFIELD | MO | 65804 | ||||||
1190 | 175 YORKTOWN S/C | LOMBARD | IL | 60148 | ||||||
1192 | 600 SUNRISE MALL | MASSAPEQUA | NY | 11758 | ||||||
1195 | 95 N MOORLAND RD | BROOKFIELD | WI | 53005 | ||||||
1198 | 1500 KANSAS AVE | GREAT BEND | KS | 67530 | ||||||
1206 | 6100 SUNRISE BLVD | CITRUS HEIGHTS | CA | 95610 | ||||||
1208 | 1122 N UNIVERSITY DR | NACOGDOCHES | TX | 75961 | ||||||
1210 | 3700 STATE RD 16 | LA CROSSE | WI | 54601 | ||||||
1212 | 3075 CLAIRTON RD STE 100 | WEST MIFFLIN | PA | 15123 | ||||||
1217 | 23 WEST TOWNE MALL | MADISON | WI | 53719 | ||||||
1223 | 24200 LAGUNA HILLS MALL | LAGUNA HILLS | CA | 92653 | ||||||
1226 | 400 PARK CITY S/C | LANCASTER | PA | 17601 | ||||||
1228 | 2500 S CENTER ST | MARSHALLTOWN | IA | 50158 | ||||||
1229 | 280 HILLCREST DR W | THOUSAND OAKS | CA | 91360 | ||||||
1240 | 504 N ADAMS ST | CARROLL | IA | 51401 | ||||||
1241 | 100 NORTHRIDGE MALL | SALINAS | CA | 93906 | ||||||
1248 | 4150 S HWY 27 | SOMERSET | KY | 42501 | ||||||
1250 | 757 E LEWIS & CLRK PKY STE 701 | CLARKSVILLE | IN | 47129 | ||||||
1256 | 1321 N COLUMBIA CTR BLVD # 100 | KENNEWICK | WA | 99336 | ||||||
1262 | 50 HAMPTON VILLAGE PLAZA | SAINT LOUIS | MO | 63109 | ||||||
1270 | 3939 S CARSON ST | CARSON CITY | NV | 89701 | ||||||
1274 | 591 BROADWAY | CHULA VISTA | CA | 91910 | ||||||
1288 | 2200 N MAPLE AVE STE 2204 | RAPID CITY | SD | 57701 | ||||||
1296 | 2918 VINE ST STE 2001 | HAYS | KS | 67601 | ||||||
1306 | 35000 W WARREN RD | WESTLAND | MI | 48185 | ||||||
1308 | 5000 SHELBYVILLE RD | LOUISVILLE | KY | 40207 | ||||||
1313 | 100 HWY 332 W STE 1260 | LAKE JACKSON | TX | 77566 | ||||||
1315 | 325 NORTHSIDE DR E STE 25 | STATESBORO | GA | 30458 | ||||||
1319 | 1530 COSHOCTON AVE | MOUNT VERNON | OH | 43050 | ||||||
1320 | 3320 SILAS CREEK PKWY STE 460 | WINSTON SALEM | NC | 27103 | ||||||
1321 | 777 E MERRITT ISL CSWY STE 210 | MERRITT ISLAND | FL | 32952 | ||||||
1322 | 1560 HOUSTONVILLE RD STE 301 | DANVILLE | KY | 40422 | ||||||
1323 | 5100 GREAT NORTHERN MALL | NORTH OLMSTED | OH | 44070 | ||||||
1324 | 1118 JAMES AVE | BEDFORD | IN | 47421 | ||||||
1327 | 100 FOUR SEASONS TOWN CTR | GREENSBORO | NC | 27407 | ||||||
1330 | 5488 S PADRE ISLAND DR STE4000 | CORPUS CHRISTI | TX | 78411 | ||||||
1337 | 100 STONEWOOD ST | DOWNEY | CA | 90241 | ||||||
1339 | 101 RANGE LINE STE 250A | JOPLIN | MO | 64801 | ||||||
1348 | 3560 LAMAR AVE HWY 82 | PARIS | TX | 75460 |
Store Number | Street | City | State | Zip | ||||||
1351 | 3100 SW COLLEGE RD | OCALA | FL | 34474 | ||||||
1352 | 700 W 14 MILE RD | TROY | MI | 48083 | ||||||
1360 | 7201 N KENDALL DR | MIAMI | FL | 33156 | ||||||
1362 | 1600 MILLER TRUNK HWY STE 4 | DULUTH | MN | 55811 | ||||||
1368 | 7507 W CERMAK RD | NORTH RIVERSIDE | IL | 60546 | ||||||
1373 | 100 S COUNTY CENTER WAY | SAINT LOUIS | MO | 63129 | ||||||
1377 | 607 N BERKELEY BLVD | GOLDSBORO | NC | 27534 | ||||||
1385 | 201 S MAIN ST | BISHOP | CA | 93514 | ||||||
1388 | 205 N ORCHARD AVE | UKIAH | CA | 95482 | ||||||
1389 | 11801 W 95TH ST | OVERLAND PARK | KS | 66214 | ||||||
1392 | 250 PLAINFIELD RD UNIT 202 | WEST LEBANON | NH | 3784 | ||||||
1393 | 4257 N MAYO TRAIL | PIKEVILLE | KY | 41501 | ||||||
1398 | 23000 EUREKA RD STE A3 | TAYLOR | MI | 48180 | ||||||
1399 | 1700 MARKET LANE | NORFOLK | NE | 68701 | ||||||
1405 | 12421 WAYZATA BLVD | MINNETONKA | MN | 55305 | ||||||
1413 | 3601 S 2700 W | SALT LAKE CITY | UT | 84119 | ||||||
1417 | 400 S BALDWIN AVE | ARCADIA | CA | 91007 | ||||||
1419 | 1900 GREEN OAKS RD | FORT WORTH | TX | 76116 | ||||||
1431 | 2101 BROADWAY | YANKTON | SD | 57078 | ||||||
1432 | 14300 LAKESIDE CIR | STERLING HEIGHTS | MI | 48313 | ||||||
1433 | 1890 SOUTHLAKE MALL | MERRILLVILLE | IN | 46410 | ||||||
1443 | 245 SAINT CLAIR SQ | FAIRVIEW HEIGHTS | IL | 62208 | ||||||
1445 | 1 SANGERTOWN SQ STE 55 | NEW HARTFORD | NY | 13413 | ||||||
1451 | 3340 MALL LOOP DR SPACE 2 | JOLIET | IL | 60431 | ||||||
1455 | 1850 APPLE BLOSSOM DR | WINCHESTER | VA | 22601 | ||||||
1462 | 6699 SPRINGFIELD MALL | SPRINGFIELD | VA | 22150 | ||||||
1467 | 5500 BUCKEYSTOWN PIKE | FREDERICK | MD | 21703 | ||||||
1475 | 27001 US HWY 19 N | CLEARWATER | FL | 33761 | ||||||
1480 | 4510 E CACTUS RD | PHOENIX | AZ | 85032 | ||||||
1481 | 201 WESTSHORE PLAZA | TAMPA | FL | 33609 | ||||||
1489 | 5522 SHAFFER RD STE 09 | DU BOIS | PA | 15801 | ||||||
1493 | 100 FRANKLIN ST UNIT F | WESTERLY | RI | 2891 | ||||||
1503 | 1925 E MARKET ST | HARRISONBURG | VA | 22801 | ||||||
1505 | 1203 PLAZA DR | WEST COVINA | CA | 91790 | ||||||
1509 | 800 CODDINGTOWN CTR | SANTA ROSA | CA | 95401 | ||||||
1510 | 1303 NIAGARA FALLS BLVD | AMHERST | NY | 14226 | ||||||
1512 | 1228 MAIN ST | DELANO | CA | 93215 | ||||||
1514 | 303 301 BLVD W STE 701 | BRADENTON | FL | 34205 | ||||||
1529 | 755 STATE RT 18 STE 600 | E BRUNSWICK | NJ | 8816 | ||||||
1531 | 2300 E LINCOLN HWY | LANGHORNE | PA | 19047 | ||||||
1535 | 101 CLEARVIEW CIRCLE | BUTLER | PA | 16001 | ||||||
1539 | 555 W GRAND AVE STE M-1 | WISCONSIN RAPIDS | WI | 54495 | ||||||
1542 | 7601 S CICERO AVE | CHICAGO | IL | 60652 | ||||||
1559 | 2400 EDGEWOOD RD SW | CEDAR RAPIDS | IA | 52404 | ||||||
1572 | 6000 S HANNUM AVE | CULVER CITY | CA | 90230 | ||||||
1580 | 3225 28TH ST SE | GRAND RAPIDS | MI | 49512 | ||||||
1589 | 3575 MAPLE AVE | ZANESVILLE | OH | 43701 | ||||||
1590 | 4600 W KELLOGG RD | WICHITA | KS | 67209 | ||||||
1591 | 22 CLIFTON COUNTRY RD STE 2 | CLIFTON PARK | NY | 12065 | ||||||
1603 | 4217 SIX FORKS RD STE 100 | RALEIGH | NC | 27609 | ||||||
1612 | 1551 VALLEY WEST DR | WEST DES MOINES | IA | 50266 | ||||||
1614 | 5100 MONTCLAIR PLAZA LANE | MONTCLAIR | CA | 91763 | ||||||
1618 | 25 MIRACLE MILE DR | ROCHESTER | NY | 14623 | ||||||
1623 | 27150 NOVI RD | NOVI | MI | 48377 |
Store Number | Street | City | State | Zip | ||||||
1628 | 1607 3RD AVE W | DICKINSON | ND | 58601 | ||||||
1635 | 1826 S MAIN ST | MARYVILLE | MO | 64468 | ||||||
1650 | 301 COX CREEK PKWY (RT 133) | FLORENCE | AL | 35630 | ||||||
1674 | 800 MALL RD | BARBOURSVILLE | WV | 25504 | ||||||
1693 | 1400 N TURNER ST | HOBBS | NM | 88240 | ||||||
1698 | 5000 FREDERICA ST | OWENSBORO | KY | 42301 | ||||||
1704 | 4803 OUTER LOOP RD | LOUISVILLE | KY | 40219 | ||||||
1717 | 115 TIMES SQ MALL | MT VERNON | IL | 62864 | ||||||
1722 | 840 MILL CREEK MALL | ERIE | PA | 16565 | ||||||
1738 | 1051 GREEN ACRES MALL | VALLEY STREAM | NY | 11581 | ||||||
1749 | 2400 RICHMOND RD STE 61 | TEXARKANA | TX | 75503 | ||||||
1751 | 205 W BLACKSTOCK RD STE 8 | SPARTANBURG | SC | 29301 | ||||||
1761 | 502 GARDEN STATE PLAZA | PARAMUS | NJ | 7652 | ||||||
1775 | 850 KIRKWOOD MALL | BISMARCK | ND | 58504 | ||||||
1778 | 2200 N TUSTIN ST | ORANGE | CA | 92865 | ||||||
1779 | 300 STROUD MALL | STROUDSBURG | PA | 18360 | ||||||
1781 | 2115 W ROOSEVELT BLVD | MONROE | NC | 28110 | ||||||
1783 | 1224 E TIPTON ST | SEYMOUR | IN | 47274 | ||||||
1786 | 1701 MACFARLAND BLVD E | TUSCALOOSA | AL | 35404 | ||||||
1787 | 1500 CANTON RD | AKRON | OH | 44312 | ||||||
1794 | 4400 MEADOWS LANE | LAS VEGAS | NV | 89107 | ||||||
1800 | 265 PINE AVE | SNOHOMISH | WA | 98290 | ||||||
1811 | 21840 S HAWTHORNE BLVD | TORRANCE | CA | 90503 | ||||||
1816 | 7850 MENTOR AVE STE 930 | MENTOR | OH | 44060 | ||||||
1823 | 8900 NE VANCOUVER MALL DR | VANCOUVER | WA | 98662 | ||||||
1829 | 1442 US HWY 45 N | COLUMBUS | MS | 39705 | ||||||
1831 | 406 W 5TH AVE | ANCHORAGE | AK | 99501 | ||||||
1832 | 3236 KIRKWOOD HWY | WILMINGTON | DE | 19808 | ||||||
1842 | 2115 S MOONEY BLVD | VISALIA | CA | 93277 | ||||||
1844 | 340 SOUTHLAND MALL | HAYWARD | CA | 94545 | ||||||
1845 | 305 LIBERTY ST NE | SALEM | OR | 97301 | ||||||
1847 | 1200 E BROAD AVE | ROCKINGHAM | NC | 28379 | ||||||
1853 | 4300 TUSCARAWAS ST W | CANTON | OH | 44708 | ||||||
1858 | 1075 N BRIDGE ST | CHILLICOTHE | OH | 45601 | ||||||
1859 | 2400 ELIDA RD | LIMA | OH | 45805 | ||||||
1860 | 4199 NATIONAL RD E | RICHMOND | IN | 47374 | ||||||
1862 | 4125 CLEVELAND AVE STE 903 | FORT MYERS | FL | 33901 | ||||||
1867 | 117 S 25TH ST STE 1 | FORT DODGE | IA | 50501 | ||||||
1868 | 420 HUCK FINN S/C | HANNIBAL | MO | 63401 | ||||||
1869 | 8200 PERRY HALL BLVD | BALTIMORE | MD | 21236 | ||||||
1870 | 3702 FREDERICK AVE STE 7 | SAINT JOSEPH | MO | 64506 | ||||||
1871 | 1321 S BROADWAY | SANTA MARIA | CA | 93454 | ||||||
1874 | 4101 W DIVISION ST | SAINT CLOUD | MN | 56301 | ||||||
1876 | 1603 E EMPIRE ST | BLOOMINGTON | IL | 61701 | ||||||
1880 | 1050 E 23RD ST | FREMONT | NE | 68025 | ||||||
1886 | 1300 N MILLER ST | WENATCHEE | WA | 98801 | ||||||
1891 | 3015 HWY 29 S | ALEXANDRIA | MN | 56308 | ||||||
1899 | 4621 EASTGATE BLVD | CINCINNATI | OH | 45245 | ||||||
1900 | 714 GREENVILLE BLVD | GREENVILLE | NC | 27858 | ||||||
1902 | 4500 MIDWAY MALL | ELYRIA | OH | 44035 | ||||||
1908 | 2910 N ELM ST | LUMBERTON | NC | 28358 | ||||||
1911 | 90 LEE JACKSON HWY STE 1268 | STAUNTON | VA | 24401 | ||||||
1919 | 3100 M L KING JR BLVD | NEW BERN | NC | 28562 | ||||||
1923 | 2230 EASTRIDGE LOOP | SAN JOSE | CA | 95122 |
Store Number | Street | City | State | Zip | ||||||
1924 | 5555 YOUNGSTOWN-WARREN RD | NILES | OH | 44446 | ||||||
1927 | 200 GRAND CENTRAL MALL | VIENNA | WV | 26105 | ||||||
1928 | 4000 FT CAMPBELL BLVD | HOPKINSVILLE | KY | 42240 | ||||||
1930 | 2400 ROOSEVELT RD | MARINETTE | WI | 54143 | ||||||
1932 | 555 E SHAW AVE | FRESNO | CA | 93710 | ||||||
1934 | 1350 N MAIN ST | LOGAN | UT | 84341 | ||||||
1935 | 2825 W MAIN ST STE C | BOZEMAN | MT | 59718 | ||||||
1936 | 7401 MARKET ST | YOUNGSTOWN | OH | 44512 | ||||||
1937 | 990 W 41ST ST | HIBBING | MN | 55746 | ||||||
1939 | 7000 TYRONE SQ | SAINT PETERSBURG | FL | 33710 | ||||||
1940 | 5350 S 76TH ST | GREENDALE | WI | 53129 | ||||||
1942 | 90 W COUNTY CTR | DES PERES | MO | 63131 | ||||||
1943 | 1105 MELBOURNE DR | HURST | TX | 76053 | ||||||
1944 | 700 BROADWAY AVE E STE 1 | MATTOON | IL | 61938 | ||||||
1945 | 2625 SCOTTSVILLE RD STE 40 | BOWLING GREEN | KY | 42104 | ||||||
1948 | 3 WOODFIELD MALL | SCHAUMBURG | IL | 60173 | ||||||
1950 | 6987 FRIARS RD | SAN DIEGO | CA | 92108 | ||||||
1951 | 3401 DONNELL DR | FORESTVILLE | MD | 20747 | ||||||
1953 | 1655 W 49TH ST STE 1200 | HIALEAH | FL | 33012 | ||||||
1956 | 8000 W BROWARD BLVD STE 900 | PLANTATION | FL | 33388 | ||||||
1957 | 200 SOUTHDALE CTR | EDINA | MN | 55435 | ||||||
1958 | 6455 EASTEX FRWY | BEAUMONT | TX | 77706 | ||||||
1959 | 1122 EL CAMINO REAL | SAN BRUNO | CA | 94066 | ||||||
1960 | 3605 GALLERIA AT TYLER | RIVERSIDE | CA | 92503 | ||||||
1961 | 5111 ROGERS AVE | FORT SMITH | AR | 72903 | ||||||
1962 | 4840 BRIARCLIFF RD NE | ATLANTA | GA | 30345 | ||||||
1963 | 320 W KIMBERLY RD STE 409 | DAVENPORT | IA | 52806 | ||||||
1965 | 1000 RIVERGATE PKWY STE 3 | GOODLETTSVILLE | TN | 37072 | ||||||
1968 | 34 WYOMING VALLEY MALL | WILKES BARRE | PA | 18702 | ||||||
1971 | 4545 TRANSIT RD | WILLIAMSVILLE | NY | 14221 | ||||||
1972 | 4201 COLDWATER RD | FORT WAYNE | IN | 46805 | ||||||
1976 | 2400 10TH ST SW | MINOT | ND | 58701 | ||||||
1977 | 1500 APALACHEE PKWY | TALLAHASSEE | FL | 32301 | ||||||
1979 | 3535 S LINDEN RD | FLINT | MI | 48507 | ||||||
1980 | 6501 N GRAPE RD | MISHAWAKA | IN | 46545 | ||||||
1981 | 2901 BROOKS ST | MISSOULA | MT | 59801 | ||||||
1982 | 6580 S WESTNEDGE AVE | PORTAGE | MI | 49024 | ||||||
1983 | 428 WOODBRIDGE CTR DR | WOODBRIDGE | NJ | 7095 | ||||||
1985 | 550 CENTER ST | AUBURN | ME | 4210 | ||||||
1987 | 2400 N COLUMBIA ST (US 441N) | MILLEDGEVILLE | GA | 31061 | ||||||
1989 | 6000 SUNSET MALL | SAN ANGELO | TX | 76904 | ||||||
1991 | 99 BENNINGTON SQ | BENNINGTON | VT | 5201 | ||||||
1992 | 320 BYPASS 72 NW STE A | GREENWOOD | SC | 29649 | ||||||
1993 | 2011 N ROAN ST | JOHNSON CITY | TN | 37601 | ||||||
1994 | 3902 13TH AVE SW STE 200 | FARGO | ND | 58103 | ||||||
1995 | 503 E IVES ST STE 200 | MARSHFIELD | WI | 54449 | ||||||
1997 | 40 BATAVIA CITY CTR | BATAVIA | NY | 14020 | ||||||
1998 | 4600 N US HWY 89 | FLAGSTAFF | AZ | 86004 | ||||||
2006 | 3600 COUNTRY CLUB DR STOP 4 | JEFFERSON CITY | MO | 65109 | ||||||
2008 | 205 ERIE BLVD W | ROME | NY | 13440 | ||||||
2010 | 7900 DAY DR | PARMA | OH | 44129 | ||||||
2011 | 18601 33RD AVE W | LYNNWOOD | WA | 98037 | ||||||
2015 | 626 BOLL WEEVIL CIR | ENTERPRISE | AL | 36330 | ||||||
2018 | 200 SW C AVE | LAWTON | OK | 73501 |
Store Number | Street | City | State | Zip | ||||||
2020 | 1930 S LOOP 256 | PALESTINE | TX | 75801 | ||||||
2021 | 6001 W WACO DR | WACO | TX | 76710 | ||||||
2022 | 367 RUSSELL ST STE A | HADLEY | MA | 1035 | ||||||
2024 | 1639 E RIO RD | CHARLOTTESVILLE | VA | 22901 | ||||||
2025 | 800 N GREEN RIVER RD | EVANSVILLE | IN | 47715 | ||||||
2034 | 105 CROSSROADS MALL | MOUNT HOPE | WV | 25880 | ||||||
2036 | 4511 N MIDKIFF RD | MIDLAND | TX | 79705 | ||||||
2038 | 1180 BLOWING ROCK RD | BOONE | NC | 28607 | ||||||
2039 | 1410 SPARTA ST | MCMINNVILLE | TN | 37110 | ||||||
2040 | 2901 S CAPITOL OF TEXAS HWY | AUSTIN | TX | 78746 | ||||||
2042 | 400 SPOTSYLVANIA MALL | FREDERICKSBURG | VA | 22407 | ||||||
2043 | STATE HWY M-26 | HOUGHTON | MI | 49931 | ||||||
2044 | 2334 OAKLAND AVE | INDIANA | PA | 15701 | ||||||
2045 | 2400 8TH AVE SW STE A1 | JAMESTOWN | ND | 58401 | ||||||
2046 | 1615 N HARRISON AVE | PIERRE | SD | 57501 | ||||||
2047 | 2121 US HWY 1 S STE A | SAINT AUGUSTINE | FL | 32086 | ||||||
2048 | 901 11TH AVE SW STE 34 | SPENCER | IA | 51301 | ||||||
2049 | 126 JACKSON ST | STERLING | CO | 80751 | ||||||
2051 | 120 WASHINGTON AVE EXT STE 40 | ALBANY | NY | 12203 | ||||||
2052 | 22631 RT 68 STE 10 | CLARION | PA | 16214 | ||||||
2055 | 821 N CENTRAL EXPWY | PLANO | TX | 75075 | ||||||
2058 | 1400 DELL RANGE BLVD | CHEYENNE | WY | 82009 | ||||||
2059 | 5801 BECKLEY RD | BATTLE CREEK | MI | 49015 | ||||||
2060 | 7804 ABERCORN ST | SAVANNAH | GA | 31406 | ||||||
2063 | 5006 STATE HIGHWAY 23 | ONEONTA | NY | 13820 | ||||||
2064 | 4501 CENTRAL AVE STE 103 | HOT SPRINGS NAT PK | AR | 71913 | ||||||
2065 | 5304 W SAGINAW ST | LANSING | MI | 48917 | ||||||
2066 | 1982 W GRAND RIVER AVE STE 135 | OKEMOS | MI | 48864 | ||||||
2067 | 1860 W MICHIGAN AVE | JACKSON | MI | 49202 | ||||||
2068 | 1800 FOUR SEASONS BLVD | HENDERSONVILLE | NC | 28792 | ||||||
2069 | 8001 S ORANGE BLOSSOM STE 700 | ORLANDO | FL | 32809 | ||||||
2071 | 19525 BISCAYNE BLVD | AVENTURA | FL | 33180 | ||||||
2074 | 1910 WELLS RD | ORANGE PARK | FL | 32073 | ||||||
2076 | 2338 US 23 S | ALPENA | MI | 49707 | ||||||
2079 | 325 PIEDMONT DR | DANVILLE | VA | 24540 | ||||||
2080 | 4601 E MAIN ST | FARMINGTON | NM | 87402 | ||||||
2083 | 401 LEE ST E | CHARLESTON | WV | 25301 | ||||||
2085 | 1500 N RIVERSIDE AVE | MEDFORD | OR | 97501 | ||||||
2086 | 5101 HINKLEVILLE RD STE 800 | PADUCAH | KY | 42001 | ||||||
2089 | 905 N 12TH ST STE 10 | MIDDLESBORO | KY | 40965 | ||||||
2091 | 700 MAINE MALL RD | SOUTH PORTLAND | ME | 4106 | ||||||
2092 | 1700 W NEW HAVEN AVE | MELBOURNE | FL | 32904 | ||||||
2093 | 700 TELSHOR BLVD STE 2000 | LAS CRUCES | NM | 88011 | ||||||
2096 | 72900 HWY 111 | PALM DESERT | CA | 92260 | ||||||
2098 | 101 FOOTHILLS MALL | MARYVILLE | TN | 37801 | ||||||
2099 | 2320 E 17TH ST | IDAHO FALLS | ID | 83404 | ||||||
2100 | 1111 JACKSON AVE W | OXFORD | MS | 38655 | ||||||
2102 | 1695 ANNAPOLIS MALL | ANNAPOLIS | MD | 21401 | ||||||
2103 | 455 S BIBB ST | EAGLE PASS | TX | 78852 | ||||||
2104 | 7925 FM 1960 RD STE 7000 | HOUSTON | TX | 77070 | ||||||
2105 | 6834 WESLEY ST STE C | GREENVILLE | TX | 75402 | ||||||
2108 | 2000 SAN JACINTO MALL | BAYTOWN | TX | 77521 | ||||||
2110 | 2100 S W S YOUNG DR STE 2000 | KILLEEN | TX | 76543 | ||||||
2115 | 2000 MARTIN LUTHER KING JR BLV | PANAMA CITY | FL | 32405 |
Store Number | Street | City | State | Zip | ||||||
2119 | 922 RIVER FALLS ST | ANDALUSIA | AL | 36420 | ||||||
2121 | 4125 W OWEN K GARRIOTT RD | ENID | OK | 73703 | ||||||
2122 | 2500 W STATE ST STE 118 | ALLIANCE | OH | 44601 | ||||||
2123 | 2950 E TEXAS ST | BOSSIER CITY | LA | 71111 | ||||||
2124 | 3035 KNOXVILLE CENTER DR STE O | KNOXVILLE | TN | 37924 | ||||||
2130 | 10177 N KINGS HWY | MYRTLE BEACH | SC | 29572 | ||||||
2131 | 5901 UNIVERSITY DR | HUNTSVILLE | AL | 35806 | ||||||
2132 | 2076 9TH ST N | NAPLES | FL | 34102 | ||||||
2135 | 4501 N MAIN ST STE 9 | ROSWELL | NM | 88201 | ||||||
2136 | 1600 11TH AVE | HELENA | MT | 59601 | ||||||
2137 | 3100 HWY 365 | PORT ARTHUR | TX | 77642 | ||||||
2138 | 850 HARTFORD PIKE UNIT C | WATERFORD | CT | 6385 | ||||||
2139 | 9303 W ATLANTIC BLVD | CORAL SPRINGS | FL | 33071 | ||||||
2140 | 2006 S EXPY 83 | HARLINGEN | TX | 78552 | ||||||
2144 | 555 JOHN F KENNEDY RD | DUBUQUE | IA | 52002 | ||||||
2147 | 1605 SOUTH FIRST STREET | WILLMAR | MN | 56201 | ||||||
2152 | 2390 CHESTNUT ST | ORANGEBURG | SC | 29115 | ||||||
2153 | 1041 SPRING LANE | SANFORD | NC | 27330 | ||||||
2158 | 810 S CASS ST | CORINTH | MS | 38834 | ||||||
2159 | 801 N CONGRESS AVE | BOYNTON BEACH | FL | 33426 | ||||||
2160 | 5453 W 88TH AVE | WESTMINSTER | CO | 80031 | ||||||
2163 | 200 RIVER OAKS CENTER DR | CALUMET CITY | IL | 60409 | ||||||
2165 | 120 N DARTMOUTH MALL | NORTH DARTMOUTH | MA | 2747 | ||||||
2166 | 1810 FORT JONES RD | YREKA | CA | 96097 | ||||||
2168 | 1200 E COUNTY LINE RD | RIDGELAND | MS | 39157 | ||||||
2169 | 7701 W I-40 STE 600 | AMARILLO | TX | 79121 | ||||||
2171 | 290 E VIA RANCHO PKWY | ESCONDIDO | CA | 92025 | ||||||
2172 | 1600 TOWN CENTER DR | MONTEBELLO | CA | 90640 | ||||||
2173 | ONE MALL BLVD | BRUNSWICK | GA | 31525 | ||||||
2175 | 4761 PECANLAND MALL DR | MONROE | LA | 71203 | ||||||
2176 | 101 MANHATTAN TOWN CTR | MANHATTAN | KS | 66502 | ||||||
2177 | 4832 VALLEY VIEW BLVD NW | ROANOKE | VA | 24012 | ||||||
2178 | 8106 N NAVARRO ST | VICTORIA | TX | 77904 | ||||||
2183 | 12335 JAMES ST | HOLLAND | MI | 49424 | ||||||
2184 | 1500 HARVEY RD | COLLEGE STATION | TX | 77840 | ||||||
2185 | 4301 W WISCONSIN AVE | APPLETON | WI | 54913 | ||||||
2188 | 60 ELM PLAZA | WATERVILLE | ME | 4901 | ||||||
2189 | 300 A AVE W | OSKALOOSA | IA | 52577 | ||||||
2190 | 224 N LOGAN BLVD | BURNHAM | PA | 17009 | ||||||
2192 | 1500 E 11TH ST STE 1000 | HUTCHINSON | KS | 67501 | ||||||
2196 | 201 S WASHINGTON ST | OWOSSO | MI | 48867 | ||||||
2197 | 2302 E KANSAS AVE | GARDEN CITY | KS | 67846 | ||||||
2198 | 2206 S BALTIMORE ST | KIRKSVILLE | MO | 63501 | ||||||
2203 | 1700 NORMAN DR | VALDOSTA | GA | 31601 | ||||||
2204 | 1704 N DIXIE HWY | ELIZABETHTOWN | KY | 42701 | ||||||
2207 | 2813 N PRINCE ST | CLOVIS | NM | 88101 | ||||||
2209 | 2501 MING AVE | BAKERSFIELD | CA | 93304 | ||||||
2210 | 1600 INDUSTRIAL RD | EMPORIA | KS | 66801 | ||||||
2211 | 2350 SE WASHINGTON BLVD | BARTLESVILLE | OK | 74006 | ||||||
2213 | 301 N POPLAR | SEARCY | AR | 72143 | ||||||
2217 | 3140 VIRGINIA AVE | CONNERSVILLE | IN | 47331 | ||||||
2218 | 2300 RIVERCHASE GALLERIA | HOOVER | AL | 35244 | ||||||
2219 | 150 NORTHSHORE BLVD | SLIDELL | LA | 70460 | ||||||
2220 | 2700 LAKE RD | DYERSBURG | TN | 38024 |
Store Number | Street | City | State | Zip | ||||||
2223 | 1801 N MAIN ST STE 14 | MITCHELL | SD | 57301 | ||||||
2224 | 1600 FINANCIAL PLAZA | HUNTSVILLE | TX | 77340 | ||||||
2225 | 1500 N CLINTON ST | DEFIANCE | OH | 43512 | ||||||
2229 | 4250 CERRILLOS RD | SANTA FE | NM | 87507 | ||||||
2231 | 311 JACKSONVILLE MALL | JACKSONVILLE | NC | 28546 | ||||||
2232 | 5065 MAIN ST | TRUMBULL | CT | 6611 | ||||||
2237 | 6931 S MEMORIAL DR | TULSA | OK | 74133 | ||||||
2238 | 1513 N KANSAS AVE | LIBERAL | KS | 67901 | ||||||
2239 | 2259 S 9TH ST | SALINA | KS | 67401 | ||||||
2240 | 201 SKYLINE DR STE 7 | CONWAY | AR | 72032 | ||||||
2241 | 20 N MAIN ST | KALISPELL | MT | 59901 | ||||||
2243 | 300 BONNER MALL WAY STE 60 | PONDERAY | ID | 83852 | ||||||
2244 | 1019 S WASHINGTON ST | NORTH ATTLEBORO | MA | 2760 | ||||||
2246 | 2001 SOUTH RD (RT 9) | POUGHKEEPSIE | NY | 12601 | ||||||
2247 | 310 DANIEL WEBSTER HWY STE 103 | NASHUA | NH | 3060 | ||||||
2250 | 50 FOX RUN RD STE 35 | NEWINGTON | NH | 3801 | ||||||
2256 | 7 BACKUS AVE | DANBURY | CT | 6810 | ||||||
2257 | 2701 DAVID H MCLEOD BLVD | FLORENCE | SC | 29501 | ||||||
2258 | 3450 WRIGHTSBORO RD | AUGUSTA | GA | 30909 | ||||||
2259 | 1100 WESLEYAN BLVD | ROCKY MOUNT | NC | 27804 | ||||||
2262 | 301 N LINCOLN RD STE 100 | ESCANABA | MI | 49829 | ||||||
2263 | 1006 ROSS PARK MALL DR | PITTSBURGH | PA | 15237 | ||||||
2265 | 2901 PINES MALL DR STE A | PINE BLUFF | AR | 71601 | ||||||
2266 | 2080 GREELEY MALL | GREELEY | CO | 80631 | ||||||
2270 | 771 S 30TH ST | HEATH | OH | 43056 | ||||||
2272 | 160 TYLER RD | RED WING | MN | 55066 | ||||||
2274 | 2801 GUTHRIE HWY STE 500 | CLARKSVILLE | TN | 37040 | ||||||
2275 | 1615 POLE LINE RD E | TWIN FALLS | ID | 83301 | ||||||
2276 | 1260 GIBSON RD | WOODLAND | CA | 95776 | ||||||
2279 | 4901 N KICKAPOO AVE STE 4000 | SHAWNEE | OK | 74804 | ||||||
2281 | 1724 VETERANS BLVD | MCCOMB | MS | 39648 | ||||||
2282 | 1600 RIVER VALLEY CIR N | LANCASTER | OH | 43130 | ||||||
2284 | 2301 W WORLEY | COLUMBIA | MO | 65203 | ||||||
2286 | 21017 SALMON RUN MALL LOOP E | WATERTOWN | NY | 13601 | ||||||
2287 | 4405 BLACK HORSE PIKE | MAYS LANDING | NJ | 8330 | ||||||
2288 | 501 N MAIN ST STE 118 | MUSKOGEE | OK | 74401 | ||||||
2290 | 6 SOUTHPARK MALL | COLONIAL HEIGHTS | VA | 23834 | ||||||
2294 | 1480 CONCORD PKWY N | CONCORD | NC | 28025 | ||||||
2296 | 814 NC 24 27 BYP E | ALBEMARLE | NC | 28001 | ||||||
2297 | 10 MALL DR W | JERSEY CITY | NJ | 7310 | ||||||
2298 | 311 THREE RIVERS DR | KELSO | WA | 98626 | ||||||
2300 | 415 NEW RIVER RD | CHRISTIANSBURG | VA | 24073 | ||||||
2303 | 1970 US HWY 70 SE | HICKORY | NC | 28602 | ||||||
2304 | 1821 SW WANAMAKER RD | TOPEKA | KS | 66604 | ||||||
2309 | 3382 NW FEDERAL HWY | JENSEN BEACH | FL | 34957 | ||||||
2311 | 1600 N JACKSON ST | TULLAHOMA | TN | 37388 | ||||||
2312 | 300 N MILWAUKEE ST | BOISE | ID | 83704 | ||||||
2313 | 60 SMITHFIELD BLVD | PLATTSBURGH | NY | 12901 | ||||||
2316 | 2601 DAWSON RD | ALBANY | GA | 31707 | ||||||
2317 | 400 MILL AVE SE STE C2 | NEW PHILADELPHIA | OH | 44663 | ||||||
2320 | 8501 W BOWLES AVE | LITTLETON | CO | 80123 | ||||||
2322 | 1858 SERVICE DR | WINONA | MN | 55987 | ||||||
2324 | 435 E CLIFTY DR | MADISON | IN | 47250 | ||||||
2326 | 732 FREEMAN LANE | GRASS VALLEY | CA | 95949 |
Store Number | Street | City | State | Zip | ||||||
2327 | 10 BELLIS FAIR PKWY | BELLINGHAM | WA | 98226 | ||||||
2331 | 1800 TIFFIN AVE | FINDLAY | OH | 45840 | ||||||
2332 | 655 CHESHIRE RD | LANESBOROUGH | MA | 1237 | ||||||
2333 | 225 COLUMBIA MALL DR | BLOOMSBURG | PA | 17815 | ||||||
2338 | 6000 TOWN EAST MALL | MESQUITE | TX | 75150 | ||||||
2339 | 1015 W WILL ROGERS | CLAREMORE | OK | 74017 | ||||||
2341 | 63455 N HWY 97 STE 93 | BEND | OR | 97701 | ||||||
2342 | 282 BERLIN MALL RD UNIT 19 | BERLIN | VT | 5602 | ||||||
2343 | 987 E ASH ST | PIQUA | OH | 45356 | ||||||
2344 | 1007 N PINE ST | DERIDDER | LA | 70634 | ||||||
2345 | HWY 52 N & FREDERICK ST | MOUNT AIRY | NC | 27030 | ||||||
2346 | 3 S TUNNEL RD | ASHEVILLE | NC | 28805 | ||||||
2347 | 1441 TAMIAMI TRAIL | PORT CHARLOTTE | FL | 33948 | ||||||
2348 | 2252 25TH ST | COLUMBUS | IN | 47201 | ||||||
2349 | 3300 S AIRPORT RD W | TRAVERSE CITY | MI | 49684 | ||||||
2353 | 10315 SILVERDALE WAY NW | SILVERDALE | WA | 98383 | ||||||
2354 | 2010 YAKIMA VALLEY HWY J-1 | SUNNYSIDE | WA | 98944 | ||||||
2356 | 1414 SOUTHERN HILLS CTR | WEST PLAINS | MO | 65775 | ||||||
2357 | 1350 PILGRIM LN | PLYMOUTH | IN | 46563 | ||||||
2358 | 1810 S WEST AVE | FREEPORT | IL | 61032 | ||||||
2364 | 3 WALDEN GALLERIA DR | CHEEKTOWAGA | NY | 14225 | ||||||
2367 | 6000 MAHONING AVE | YOUNGSTOWN | OH | 44515 | ||||||
2368 | 200 W HANLEY AVE | COEUR D ALENE | ID | 83815 | ||||||
2369 | 3501 W MAIN ST | NORMAN | OK | 73072 | ||||||
2370 | 4200 PORTSMOUTH BLVD | CHESAPEAKE | VA | 23321 | ||||||
2372 | 328 ROBERT SMALLS PKWY | BEAUFORT | SC | 29906 | ||||||
2373 | 1752 W REELFOOT AVE | UNION CITY | TN | 38261 | ||||||
2374 | 1750 E RED CLIFFS DR | SAINT GEORGE | UT | 84790 | ||||||
2375 | 150 RICHLAND SQ | RICHLAND CENTER | WI | 53581 | ||||||
2381 | 300 GREENVILLE W DR STE 1 | GREENVILLE | MI | 48838 | ||||||
2382 | 1550 N MITCHELL ST | CADILLAC | MI | 49601 | ||||||
2385 | 1199 COLUSA AVE | YUBA CITY | CA | 95991 | ||||||
2386 | 9560 MALL RD | MORGANTOWN | WV | 26501 | ||||||
2388 | 1131 W RANCHO VISTA BLVD | PALMDALE | CA | 93551 | ||||||
2390 | 1353 TUSCULUM BLVD | GREENEVILLE | TN | 37745 | ||||||
2391 | 300 CASCADE MALL DR | BURLINGTON | WA | 98233 | ||||||
2392 | 1600 N STATE RT 50 | BOURBONNAIS | IL | 60914 | ||||||
2396 | 3225 STATE RT 364 STE 165 | CANANDAIGUA | NY | 14424 | ||||||
2398 | 900 COMMONS DR STE 900 | DOTHAN | AL | 36303 | ||||||
2399 | 975 AVE HOSTOS STE 320 | MAYAGUEZ | PR | 680 | ||||||
2400 | 1001 BARNES CROSSING RD STE300 | TUPELO | MS | 38804 | ||||||
2410 | 2401 S STEMMONS FWY STE 4000 | LEWISVILLE | TX | 75067 | ||||||
2411 | 2350 MIRACLE MILE RD #270 | BULLHEAD CITY | AZ | 86442 | ||||||
2414 | 355 FLETCHER PKWY | EL CAJON | CA | 92020 | ||||||
2415 | 15083 US 19 S | THOMASVILLE | GA | 31792 | ||||||
2416 | 270 LOUDON RD | CONCORD | NH | 3301 | ||||||
2417 | 1105 WALNUT ST | CARY | NC | 27511 | ||||||
2418 | 3800 US HWY 98 N STE 200 | LAKELAND | FL | 33809 | ||||||
2419 | 6525 E SOUTHERN AVE | MESA | AZ | 85206 | ||||||
2423 | 780 NW GARDEN VLY BLVD STE 160 | ROSEBURG | OR | 97471 | ||||||
2425 | 2900 W WASHINGTON ST STE 92 | STEPHENVILLE | TX | 76401 | ||||||
2427 | 278 BLACK GOLD BLVD | HAZARD | KY | 41701 | ||||||
2428 | 4400 24TH AVE | FORT GRATIOT | MI | 48059 | ||||||
2430 | 10308 SOUTHSIDE BLVD | JACKSONVILLE | FL | 32256 |
Store Number | Street | City | State | Zip | ||||||
2431 | 1100-B HWY 260 | COTTONWOOD | AZ | 86326 | ||||||
2433 | 11017 CAROLINA PLACE PKWY | PINEVILLE | NC | 28134 | ||||||
2434 | 6600 MENAUL BLVD NE STE 600 | ALBUQUERQUE | NM | 87110 | ||||||
2436 | 475 S ST LOUIS ST | BATESVILLE | AR | 72501 | ||||||
2438 | 1110 N QUINCY AVE | OTTUMWA | IA | 52501 | ||||||
2439 | 1000 MALL RUN RD | UNIONTOWN | PA | 15401 | ||||||
2440 | 300 LYCOMING MALL CIR STE 2043 | PENNSDALE | PA | 17756 | ||||||
2442 | 4481 S WHITE MOUNTAIN RD STE 5 | SHOW LOW | AZ | 85901 | ||||||
2443 | 11130 MALL CIR | WALDORF | MD | 20603 | ||||||
2445 | 6840 EASTMAN AVE | MIDLAND | MI | 48642 | ||||||
2447 | 864 HWY 12 W | STARKVILLE | MS | 39759 | ||||||
2449 | 399 CAMPBELLSVILLE BYPASS | CAMPBELLSVILLE | KY | 42718 | ||||||
2452 | 300 MOUNT BERRY SQ NE | ROME | GA | 30165 | ||||||
2453 | 6 MCKINLEY MALL | BLASDELL | NY | 14219 | ||||||
2456 | 11401 PINES BLVD | PEMBROKE PINES | FL | 33026 | ||||||
2457 | 9559 DESTINY USA DR | SYRACUSE | NY | 13290 | ||||||
2458 | 1601 S BROAD | SCOTTSBORO | AL | 35768 | ||||||
2460 | STATE RT 37-ST LAWRENCE CENTRE | MASSENA | NY | 13662 | ||||||
2463 | 140 MARSH AVE | STATEN ISLAND | NY | 10314 | ||||||
2464 | 1201 BOSTON POST RD | MILFORD | CT | 6460 | ||||||
2467 | 1695 ARDEN WAY | SACRAMENTO | CA | 95815 | ||||||
2470 | US 68 S AND AA HWY | MAYSVILLE | KY | 41056 | ||||||
2472 | 839 3RD AVE | JASPER | IN | 47546 | ||||||
2477 | 3710 HWY 9 | FREEHOLD | NJ | 7728 | ||||||
2478 | 1603 NW 107TH AVE | MIAMI | FL | 33172 | ||||||
2480 | 22450 TOWN CIR | MORENO VALLEY | CA | 92553 | ||||||
2482 | 5725 JOHNSTON ST | LAFAYETTE | LA | 70503 | ||||||
2484 | 4730 N DIVISION ST | SPOKANE | WA | 99207 | ||||||
2485 | 560 GALLERIA DR | JOHNSTOWN | PA | 15904 | ||||||
2486 | 5580 GOODS LN STE 2031 | ALTOONA | PA | 16602 | ||||||
2488 | ONE N GALLERIA DR | MIDDLETOWN | NY | 10941 | ||||||
2490 | 231 GREECE RIDGE CTR DR | GREECE | NY | 14626 | ||||||
2494 | 200 PAUL HUFF PKWY NW STE 44 | CLEVELAND | TN | 37312 | ||||||
2495 | 1850 ADAMS ST STE 2 | MANKATO | MN | 56001 | ||||||
2496 | 500 NEWPARK MALL | NEWARK | CA | 94560 | ||||||
2498 | 2727 FAIRFIELD COMMONS BLVD | DAYTON | OH | 45431 | ||||||
2503 | 1201 E MAIN | CARBONDALE | IL | 62901 | ||||||
2505 | 1201 S DIRKSEN PKWY | SPRINGFIELD | IL | 62703 | ||||||
2506 | 2900 E LINCOLN WAY | STERLING | IL | 61081 | ||||||
2507 | 312 W PRIEN LAKE RD | LAKE CHARLES | LA | 70601 | ||||||
2521 | 9100 N SKYVIEW AVE | KANSAS CITY | MO | 64154 | ||||||
2522 | 9056 N 121ST EAST AVE | OWASSO | OK | 74055 | ||||||
2523 | 215 CREEKSIDE WAY | NEW BRAUNFELS | TX | 78130 | ||||||
2524 | 2421 CRANBERRY HWY STE 290 | WAREHAM | MA | 2571 | ||||||
2526 | 7352 GLORY RD | BAXTER | MN | 56425 | ||||||
2527 | 500 WINCHESTER AVE | ASHLAND | KY | 41101 | ||||||
2529 | 11534 PARKSIDE DR | FARRAGUT | TN | 37934 | ||||||
2530 | 1301 CENTER RD | AVON | OH | 44011 | ||||||
2534 | 501 C M FAGAN DR | HAMMOND | LA | 70403 | ||||||
2613 | 1932 E 20TH ST | CHICO | CA | 95928 | ||||||
2614 | 1710 S MAIN ST | BELLEFONTAINE | OH | 43311 | ||||||
2616 | 2940 WATSON BLVD | CENTERVILLE | GA | 31028 | ||||||
2617 | 7600 KINGSTON PIKE | KNOXVILLE | TN | 37919 | ||||||
2619 | 10101 BROOK RD STE 800 | GLEN ALLEN | VA | 23059 |
Store Number | Street | City | State | Zip | ||||||
2620 | 515 S WESTWOOD | POPLAR BLUFF | MO | 63901 | ||||||
2622 | 2301 DEL PRADO BLVD STE 700 | CAPE CORAL | FL | 33990 | ||||||
2624 | 3401 NICHOLASVILLE RD STE 116 | LEXINGTON | KY | 40503 | ||||||
2625 | 4370 I-75 BUSINESS SPUR | SAULT S MARIE | MI | 49783 | ||||||
2626 | 1312 W SUNSET RD | HENDERSON | NV | 89014 | ||||||
2629 | 1050 S BISHOP AVE | ROLLA | MO | 65401 | ||||||
2631 | 58000 TWENTY-NINE PALMS HWY | YUCCA VALLEY | CA | 92284 | ||||||
2632 | 4 MID RIVERS MALL | SAINT PETERS | MO | 63376 | ||||||
2633 | 3507 MANCHESTER EXPWY STE E | COLUMBUS | GA | 31909 | ||||||
2647 | 210 ANDOVER ST | PEABODY | MA | 1960 | ||||||
2648 | 400 BREA MALL | BREA | CA | 92821 | ||||||
2649 | 400 WESTMINSTER MALL | WESTMINSTER | CA | 92683 | ||||||
2650 | 1201 N HILL FIELD RD STE 1050 | LAYTON | UT | 84041 | ||||||
2651 | 68 GATEWAY MALL | LINCOLN | NE | 68505 | ||||||
2653 | 4770 GOLF RD | EAU CLAIRE | WI | 54701 | ||||||
2654 | 100 COMMERCIAL RD UNIT 180 | LEOMINSTER | MA | 1453 | ||||||
2655 | 90 W 5TH ST | DOUGLAS | AZ | 85607 | ||||||
2657 | 939 NE D ST | GRANTS PASS | OR | 97526 | ||||||
2660 | 20505 S DIXIE HWY | MIAMI | FL | 33189 | ||||||
2661 | RT 60 & HWY 21 | VERNON HILLS | IL | 60061 | ||||||
2662 | 578 AVIATION RD STE 3 | QUEENSBURY | NY | 12804 | ||||||
2663 | 377 S MILLS RD | VENTURA | CA | 93003 | ||||||
2671 | 2180 NE HWY 99 W | MCMINNVILLE | OR | 97128 | ||||||
2672 | 380 N COOPER DR | HENDERSON | NC | 27536 | ||||||
2676 | 1215 S MAIN ST | SIKESTON | MO | 63801 | ||||||
2677 | 9301 TAMPA AVE | NORTHRIDGE | CA | 91324 | ||||||
2678 | 658 RICHLAND MALL | MANSFIELD | OH | 44906 | ||||||
2679 | 525 UNION ST | WATERBURY | CT | 6706 | ||||||
2682 | 1901 NW EXPWY STE 1200 | OKLAHOMA CITY | OK | 73118 | ||||||
2683 | 17177 ROYALTON RD | STRONGSVILLE | OH | 44136 | ||||||
2685 | 3851 S COOPER ST | ARLINGTON | TX | 76015 | ||||||
2687 | 651 W WASHINGTON | SEQUIM | WA | 98382 | ||||||
2689 | 2700 MIAMISBURG-CENTERVILLE RD | CENTERVILLE | OH | 45459 | ||||||
2690 | 1000 TURTLE CREEK DR | HATTIESBURG | MS | 39402 | ||||||
2692 | 2422 W KETTLEMAN LANE | LODI | CA | 95242 | ||||||
2693 | 3127 STOCKTON HILL RD | KINGMAN | AZ | 86401 | ||||||
2695 | 16280 DRESDEN AVE SPACE M | E LIVERPOOL | OH | 43920 | ||||||
2696 | 11200 LAKELINE MALL DR | CEDAR PARK | TX | 78613 | ||||||
2697 | 16529 SOUTHWEST FRWY | SUGAR LAND | TX | 77479 | ||||||
2698 | 3100 NAGLEE RD | TRACY | CA | 95304 | ||||||
2700 | 5083 TUTTLE CROSSING BLVD | DUBLIN | OH | 43016 | ||||||
2702 | 197 WESTBANK EXPY STE 2 | GRETNA | LA | 70053 | ||||||
2703 | 2756 N GERMANTOWN PKWY | MEMPHIS | TN | 38133 | ||||||
2704 | 10000 COORS BYPASS NW | ALBUQUERQUE | NM | 87114 | ||||||
2705 | 501 EAGLE RIDGE DR | LAKE WALES | FL | 33859 | ||||||
2706 | 458 N VIRGINIA AVE | TIFTON | GA | 31794 | ||||||
2708 | 573 DONALD LYNCH BLVD | MARLBOROUGH | MA | 1752 | ||||||
2709 | 4201 N SHILOH DR | FAYETTEVILLE | AR | 72703 | ||||||
2712 | 3501 CAPITAL CITY MALL | CAMP HILL | PA | 17011 | ||||||
2715 | 14659 N US HWY 25 E | CORBIN | KY | 40701 | ||||||
2716 | 2215 MEMORIAL DR | WAYCROSS | GA | 31501 | ||||||
2718 | 100 BAYCHESTER AVE | BRONX | NY | 10475 | ||||||
2719 | 715 OMACHE DR | OMAK | WA | 98841 | ||||||
2720 | 200 BEAVER VALLEY MALL | MONACA | PA | 15061 |
Store Number | Street | City | State | Zip | ||||||
2721 | 3159 W BROADWAY | SEDALIA | MO | 65301 | ||||||
2722 | 9409 W COLONIAL DR | OCOEE | FL | 34761 | ||||||
2725 | 3350 E FLORAL AVE | SELMA | CA | 93662 | ||||||
2728 | 1111 E TYLER ST STE 127 | ATHENS | TX | 75751 | ||||||
2729 | 3311 IOWA ST | LAWRENCE | KS | 66046 | ||||||
2730 | 6200 20TH ST STE 700 | VERO BEACH | FL | 32966 | ||||||
2732 | 10300 LITTLE PATUXENT PKWY | COLUMBIA | MD | 21044 | ||||||
2736 | 3500 EAST WEST HWY STE 1000 | HYATTSVILLE | MD | 20782 | ||||||
2738 | 11160 VEIRS MILL RD | WHEATON | MD | 20902 | ||||||
2739 | 20131 HWY 59N STE 3000 | HUMBLE | TX | 77338 | ||||||
2740 | 151 MARYSVILLE TOWNE CTR | MARYSVILLE | WA | 98270 | ||||||
2741 | 318 E FAIRMOUNT AVE | LAKEWOOD | NY | 14750 | ||||||
2742 | 1840 COUNTRYSIDE DR | TURLOCK | CA | 95380 | ||||||
2743 | 1000 BONITA LAKE CIRCLE | MERIDIAN | MS | 39301 | ||||||
2744 | 14730 E INDIANA AVE | SPOKANE | WA | 99216 | ||||||
2749 | 21030 DULLES TOWN CIR | STERLING | VA | 20166 | ||||||
2750 | 246 N NEW HOPE RD | GASTONIA | NC | 28054 | ||||||
2751 | PLAZA LAS AMERICAS S/C | SAN JUAN | PR | 918 | ||||||
2752 | 1403 PALISADES CTR DR | WEST NYACK | NY | 10994 | ||||||
2753 | 6201 BLUEBONNET BLVD | BATON ROUGE | LA | 70836 | ||||||
2755 | 120 NIBLICK RD | PASO ROBLES | CA | 93446 | ||||||
2756 | RT 25 & 347 | LAKE GROVE | NY | 11755 | ||||||
2757 | 8417 S PARK MEADOWS CTR DR | LONE TREE | CO | 80124 | ||||||
2758 | 1471 CORAL RIDGE AVE | CORALVILLE | IA | 52241 | ||||||
2760 | 23415 THREE NOTCH RD STE 2016 | CALIFORNIA | MD | 20619 | ||||||
2761 | 11500 MIDLOTHIAN TPKE | RICHMOND | VA | 23235 | ||||||
2762 | 8102 CITRUS PARK TOWN CTR | TAMPA | FL | 33625 | ||||||
2763 | 1201 LAKE WOODLANDS DR STE 500 | THE WOODLANDS | TX | 77380 | ||||||
2765 | 219 MARLBORO AVE STE 21 | EASTON | MD | 21601 | ||||||
2767 | 1500 S WILLOW ST | MANCHESTER | NH | 3103 | ||||||
2768 | 1500 RT 47 STE 21B | RIO GRANDE | NJ | 8242 | ||||||
2769 | 1512 MILITARY RD | BENTON | AR | 72015 | ||||||
2770 | 1200 TOWNE CENTRE BLVD STE B | PROVO | UT | 84601 | ||||||
2773 | 400 ERNEST W BARRETT PKWY NW | KENNESAW | GA | 30144 | ||||||
2775 | 1750 DEPTFORD CENTER RD STE D | DEPTFORD | NJ | 8096 | ||||||
2776 | 3333 BUFORD DR | BUFORD | GA | 30519 | ||||||
2777 | 381 WEST ST | KEENE | NH | 3431 | ||||||
2779 | STATE RD #3 KM 78.2 | HUMACAO | PR | 791 | ||||||
2780 | 200 AVE RAFAEL CORDERO STE 111 | CAGUAS | PR | 725 | ||||||
2782 | 5055 2ND AVE STE 28 | KEARNEY | NE | 68847 | ||||||
2783 | 40640 WINCHESTER RD | TEMECULA | CA | 92591 | ||||||
2784 | 6101 CALHOUN MEMOR HWY STE A | EASLEY | SC | 29640 | ||||||
2785 | 3774 RIVERTOWN PRKWY SW | GRANDVILLE | MI | 49418 | ||||||
2788 | 259 INDIAN MOUND DR | MT STERLING | KY | 40353 | ||||||
2789 | 10308 W FOREST HILL BLVD | WELLINGTON | FL | 33414 | ||||||
2795 | 2607 PRESTON RD | FRISCO | TX | 75034 | ||||||
2796 | 1125 GALLERIA BLVD | ROSEVILLE | CA | 95678 | ||||||
2797 | 100 MALL DR UNIT B | STEUBENVILLE | OH | 43952 | ||||||
2801 | 1450 POLARIS PKWY | COLUMBUS | OH | 43240 | ||||||
2802 | 2000 ROBINSON TOWN CTR | PITTSBURGH | PA | 15205 | ||||||
2803 | 2304 E JACKSON ST | MACOMB | IL | 61455 | ||||||
2804 | 8040 MALL PKWY | LITHONIA | GA | 30038 | ||||||
2805 | 6910 FAYETTEVILLE RD STE 600 | DURHAM | NC | 27713 | ||||||
2806 | 2370 N EXPWY STE 2000 | BROWNSVILLE | TX | 78526 |
Store Number | Street | City | State | Zip | ||||||
2807 | 5690 HARVEY ST | MUSKEGON | MI | 49444 | ||||||
2808 | 301A S SERVICE RD | BLYTHEVILLE | AR | 72315 | ||||||
2809 | 12300 JEFFERSON AVE STE 500 | NEWPORT NEWS | VA | 23602 | ||||||
2810 | 140 S 24TH ST W | BILLINGS | MT | 59102 | ||||||
2812 | 202 E 24TH ST | COLUMBUS | NE | 68601 | ||||||
2814 | 92-59 59TH AVE | ELMHURST | NY | 11373 | ||||||
2815 | 3200 GATEWAY BLVD | PRESCOTT | AZ | 86303 | ||||||
2816 | 3351 S DOGWOOD | EL CENTRO | CA | 92243 | ||||||
2819 | 1627 OPELIKA RD STE 69 | AUBURN | AL | 36830 | ||||||
2820 | 6650 DOUGLAS BLVD | DOUGLASVILLE | GA | 30135 | ||||||
2821 | 4340 SERGEANT RD | SIOUX CITY | IA | 51106 | ||||||
2822 | 1600 NE 23RD ST | POMPANO BEACH | FL | 33062 | ||||||
2823 | 12399 S MAINSTREET | RANCHO CUCAMONGA | CA | 91739 | ||||||
2824 | 6620 TOWNE CENTER LOOP STE E | SOUTHAVEN | MS | 38671 | ||||||
2825 | 12550 RIVERDALE BLVD | COON RAPIDS | MN | 55448 | ||||||
2826 | 333 N HWY 67 | CEDAR HILL | TX | 75104 | ||||||
2827 | 2611 E MAIN ST | PLAINFIELD | IN | 46168 | ||||||
2828 | 2000 N NEIL ST | CHAMPAIGN | IL | 61820 | ||||||
2829 | 13701 GROVE DR | MAPLE GROVE | MN | 55311 | ||||||
2830 | 7200 E HARRISON AVE | ROCKFORD | IL | 61112 | ||||||
2832 | 1401 GREENBRIER PKWY STE 3000 | CHESAPEAKE | VA | 23320 | ||||||
2833 | 6909 N LOOP 1604 E | SAN ANTONIO | TX | 78247 | ||||||
2834 | 69340 HWY 21 | COVINGTON | LA | 70433 | ||||||
2835 | 3000 E HIGHLAND DR STE 516 | JONESBORO | AR | 72401 | ||||||
2837 | 1375 S YUMA PALMS PKWY | YUMA | AZ | 85365 | ||||||
2838 | 877 NE ALSBURY BLVD | BURLESON | TX | 76028 | ||||||
2839 | 31510 GRATIOT AVE | ROSEVILLE | MI | 48066 | ||||||
2840 | 1236 EASTDALE MALL | MONTGOMERY | AL | 36117 | ||||||
2841 | 2209 VETERANS BLVD | DEL RIO | TX | 78840 | ||||||
2842 | 13333 W MCDOWELL RD | GOODYEAR | AZ | 85395 | ||||||
2843 | 10083 GULF CENTER DR | FORT MYERS | FL | 33913 | ||||||
2844 | 100 BAYBROOK MALL | FRIENDSWOOD | TX | 77546 | ||||||
2845 | 3742 BROOKWALL DR STE 10 | AKRON | OH | 44333 | ||||||
2846 | 5050 E RAY RD | PHOENIX | AZ | 85044 | ||||||
2847 | 167 PITTSBURGH MILL CIR | TARENTUM | PA | 15084 | ||||||
2848 | 4485 S GRAND CANYON DR | LAS VEGAS | NV | 89147 | ||||||
2849 | 10000 ALABAMA ST | REDLANDS | CA | 92374 | ||||||
2850 | 28151 STATE RD 56 | WESLEY CHAPEL | FL | 33543 | ||||||
2852 | 11800 W BURLEIGH ST | WAUWATOSA | WI | 53222 | ||||||
2857 | 120 PENNEY RD | FOREST PARK | GA | 30297 | ||||||
2858 | 6141 ORANGETHORPE AVE | BUENA PARK | CA | 90620 | ||||||
2862 | 3459 PRINCETON RD | HAMILTON | OH | 45011 | ||||||
2863 | 23523 GRAND CIRCLE BLVD | KATY | TX | 77449 | ||||||
2864 | 3001 WHITE BEAR AVE | MAPLEWOOD | MN | 55109 | ||||||
2865 | 8348 TAMARACK VILLAGE | WOODBURY | MN | 55125 | ||||||
2866 | 800 WILLARD DR | ASHWAUBENON | WI | 54304 | ||||||
2868 | 401 S MOUNT JULIET RD STE 630 | MT JULIET | TN | 37122 | ||||||
2869 | 5060 PINNACLE SQ | TRUSSVILLE | AL | 35173 | ||||||
2870 | 17610 E 39TH ST S | INDEPENDENCE | MO | 64055 | ||||||
2871 | 240 BANKS CROSSING | FAYETTEVILLE | GA | 30214 | ||||||
2872 | 1380 HWY 20 W | MCDONOUGH | GA | 30253 | ||||||
2873 | 304 FORUM DR | COLUMBIA | SC | 29229 | ||||||
2874 | 341 NEWNAN CROSSING BYP | NEWNAN | GA | 30265 | ||||||
2875 | 22500 TOWN CENTER AVE | SPANISH FORT | AL | 36527 |
Store Number | Street | City | State | Zip | ||||||
2876 | 14658 DELAWARE ST | WESTMINSTER | CO | 80023 | ||||||
2877 | 17710 LA CANTERA PKWY | SAN ANTONIO | TX | 78257 | ||||||
2878 | 4680 HIGH POINTE BLVD | HARRISBURG | PA | 17111 | ||||||
2879 | 2202 BELLVIEW RD | ROGERS | AR | 72758 | ||||||
2880 | STATE HWY 16 & RT 302 | NORTH CONWAY | NH | 3860 | ||||||
2881 | 300 MEMORIAL CITY WAY | HOUSTON | TX | 77024 | ||||||
2883 | 2500 SMITH RANCH RD | PEARLAND | TX | 77584 | ||||||
2884 | 12351 N IH-35 | AUSTIN | TX | 78753 | ||||||
2885 | 5120 FAIRMONT PKWY | PASADENA | TX | 77505 | ||||||
2889 | 1727 W BETHANY HOME RD | PHOENIX | AZ | 85015 | ||||||
2901 | 8752 MICHIGAN RD | INDIANAPOLIS | IN | 46268 | ||||||
2902 | 1900 E RIO SALADO PKWY STE 140 | TEMPE | AZ | 85281 | ||||||
2903 | 3141 WATERMILL DR | BURLINGTON | NC | 27215 | ||||||
2904 | 9500 S IH-35 STE H | AUSTIN | TX | 78748 | ||||||
2905 | 3001 TEXAS SAGE TRL | FORT WORTH | TX | 76177 | ||||||
2906 | 1720 OLD FORT PKWY | MURFREESBORO | TN | 37129 | ||||||
2907 | 6302 S CENTRAL ST | AURORA | CO | 80016 | ||||||
2908 | 100 COLUMBIANA CIR #102 | COLUMBIA | SC | 29212 | ||||||
2909 | 7939 HWY N | DARDENNE PRAIRIE | MO | 63368 | ||||||
2910 | 7751 TOWNE CENTER PKWY | PAPILLION | NE | 68046 | ||||||
2911 | 11552 S DISTRICT DR | SOUTH JORDAN | UT | 84095 | ||||||
2912 | 10904 STADIUM PKWY | KANSAS CITY | KS | 66111 | ||||||
2913 | 5265 S CALLE SANTA CRUZ | TUCSON | AZ | 85706 | ||||||
2914 | 2600 S SHACKLEFORD RD | LITTLE ROCK | AR | 72205 | ||||||
2915 | 135 BOCKMAN DR | FORT COLLINS | CO | 80525 | ||||||
2916 | 400 N UNION ST | OLEAN | NY | 14760 | ||||||
2917 | 955 S HOVER ST | LONGMONT | CO | 80501 | ||||||
2918 | 340 S COLONIAL DR | ALABASTER | AL | 35007 | ||||||
2919 | 2890 N MAIN ST | SANTA ANA | CA | 92705 | ||||||
2920 | 9480 VILLAGE PLACE BLVD | BRIGHTON | MI | 48116 | ||||||
2921 | 5751 LONG PRAIRIE RD | FLOWER MOUND | TX | 75028 | ||||||
2922 | 13900 HOARD DR | NOBLESVILLE | IN | 46060 | ||||||
2924 | 7400 WOODWARD AVE | WOODRIDGE | IL | 60517 | ||||||
2925 | 8201 FLYING CLOUD DR | EDEN PRAIRIE | MN | 55344 | ||||||
2926 | 7451 YOUREE DR | SHREVEPORT | LA | 71105 | ||||||
2927 | 410 PORTERS VALE BLVD | VALPARAISO | IN | 46383 | ||||||
2928 | 1100 OGDEN AVE | MONTGOMERY | IL | 60538 | ||||||
2930 | 1600 ORCHARD GATEWAY BLVD | NORTH AURORA | IL | 60542 | ||||||
2931 | 3100 MAIN ST STE 1000 | MAUMEE | OH | 43537 | ||||||
2932 | 3400 RIO GRANDE AVE | MONTROSE | CO | 81401 | ||||||
2933 | 1200 N HAPPY VALLEY RD | NAMPA | ID | 83687 | ||||||
2934 | 151 UNIVERSITY OAKS | ROUND ROCK | TX | 78665 | ||||||
2935 | 2071 COLISEUM DR | HAMPTON | VA | 23666 | ||||||
2936 | 1041 N PROMENADE PKWY | CASA GRANDE | AZ | 85194 | ||||||
2937 | 14659 RAMONA AVE | CHINO | CA | 91710 | ||||||
2939 | 7400 SAN PEDRO AVE | SAN ANTONIO | TX | 78216 | ||||||
2940 | 5651 HWY 95 N | LAKE HAVASU CITY | AZ | 86404 | ||||||
2941 | 2400 S SERVICE RD | MOORE | OK | 73160 | ||||||
2942 | 7271 SE 29TH ST | MIDWEST CITY | OK | 73110 | ||||||
2943 | 3675 STONE CREEK BLVD | COLERAIN TOWNSHIP | OH | 45251 | ||||||
2944 | 25646 HWY 290 | CYPRESS | TX | 77429 | ||||||
2945 | 2001 W OSCEOLA PKWY | KISSIMMEE | FL | 34741 | ||||||
2946 | 1015 E I 30 | ROCKWALL | TX | 75087 | ||||||
2948 | 3065 RT 50 | SARATOGA SPRINGS | NY | 12866 |
Store Number | Street | City | State | Zip | ||||||
2949 | 1441 N HWY 77 | WAXAHACHIE | TX | 75165 | ||||||
2950 | 800 S RANDALL RD | ALGONQUIN | IL | 60102 | ||||||
2951 | 2940 COMMERCE DR | JOHNSBURG | IL | 60051 | ||||||
2952 | 4451 PROMENADE WAY | MATTESON | IL | 60443 | ||||||
2953 | 8100 N FLINTLOCK RD | KANSAS CITY | MO | 64158 | ||||||
2954 | N96W18515 COUNTY LINE RD | MENOMONEE FALLS | WI | 53051 | ||||||
2955 | 4951 SLATTEN RANCH RD | ANTIOCH | CA | 94531 | ||||||
2956 | 550 PINNACLE PL | PRATTVILLE | AL | 36066 | ||||||
2957 | 4185 RIVERDALE RD | RIVERDALE | UT | 84405 | ||||||
2959 | 419 E TRENTON RD | EDINBURG | TX | 78539 | ||||||
2960 | 1950 JOE BATTLE BLVD | EL PASO | TX | 79938 | ||||||
2961 | 3125 LOUISIANA AVE | LAFAYETTE | LA | 70501 | ||||||
2962 | 725 ADAMS DR | WEATHERFORD | TX | 76086 | ||||||
2963 | 1996 MEMORIAL DR STE 1 | SAINT JOHNSBURY | VT | 5819 | ||||||
2964 | 2060 SAM RITTENBERG BLVD | CHARLESTON | SC | 29407 | ||||||
2965 | 3650 NEW CENTER PT | COLORADO SPRINGS | CO | 80922 | ||||||
2966 | 8568 E 49TH AVE | DENVER | CO | 80238 | ||||||
2967 | 50753 WATERSIDE DR | CHESTERFIELD TOWNSHP | MI | 48051 | ||||||
2968 | 24201 BRAZOS TOWN CROSSING | ROSENBERG | TX | 77471 | ||||||
2969 | 610 GRAHAM DR | SHERMAN | TX | 75092 | ||||||
2970 | 5181 PEPPER ST | SPRING HILL | FL | 34607 | ||||||
2971 | 300 TOWN CENTER BLVD | WHITE LAKE | MI | 48386 | ||||||
2972 | 43690 FORD RD | CANTON | MI | 48187 | ||||||
2973 | 11325 W LINCOLN HWY | MOKENA | IL | 60448 | ||||||
2975 | 3333 MARKET PLACE DR | COUNCIL BLUFFS | IA | 51501 | ||||||
2976 | 515 CABELA DR | TRIADELPHIA | WV | 26059 | ||||||
2977 | 5886 HIGHWAY 100 | WASHINGTON | MO | 63090 | ||||||
2978 | 9365 FIELDS ERTEL RD | CINCINNATI | OH | 45249 | ||||||
2979 | 2345 S HWY 27 | CLERMONT | FL | 34711 | ||||||
2980 | 3165 INTERSTATE 45 N | CONROE | TX | 77304 | ||||||
2982 | 301 STACY RD | FAIRVIEW | TX | 75069 | ||||||
2983 | 800 BARNES ST | SAN MARCOS | TX | 78666 | ||||||
2984 | 2037 LANTERN RIDGE DR | RICHMOND | KY | 40475 | ||||||
2985 | 6200 GRANDVIEW PKWY | DAVENPORT | FL | 33837 | ||||||
2986 | 200 MARKET ST | FLOWOOD | MS | 39232 | ||||||
2987 | 1001 RAINBOW DR | GADSDEN | AL | 35901 | ||||||
2988 | 7700 POLO GROUNDS BLVD | MEMPHIS | TN | 38125 | ||||||
2989 | 1800 COASTAL GRAND CIR | MYRTLE BEACH | SC | 29577 | ||||||
2990 | 6901 W 135TH ST | OVERLAND PARK | KS | 66223 | ||||||
2991 | 5335 W LOOP 1604 N | SAN ANTONIO | TX | 78253 | ||||||
2992 | 4190 E COURT ST STE 500 | BURTON | MI | 48509 | ||||||
2993 | 798 GRAVOIS BLUFFS BLVD | FENTON | MO | 63026 | ||||||
2994 | 3363 LOWERY PKWY | FULTONDALE | AL | 35068 | ||||||
2995 | 5858 E SAM HOUSTON PKWY N | HOUSTON | TX | 77049 | ||||||
2997 | 206 BLUEFISH DR | PANAMA CITY BEACH | FL | 32413 | ||||||
2998 | 19005 SE MILL PLAIN BLVD | VANCOUVER | WA | 98683 | ||||||
2999 | 1060 PERIMETER DR | MANTECA | CA | 95337 | ||||||
4505 | 701 RICHMOND RD STE A | CLEVELAND | OH | 44143 | ||||||
4507 | 1400 CUMBERLAND MALL SE | ATLANTA | GA | 30339 | ||||||
4508 | 2401 FAIRVIEW AVE N STE A | ROSEVILLE | MN | 55113 | ||||||
4519 | 1634 SALISBURY RD STE A | STATESVILLE | NC | 28677 | ||||||
9010 | 6800 VALLEY VIEW AVE | BUENA PARK | CA | 90620 | ||||||
9130 | 5555 SCARBOROUGH BLVD | COLUMBUS | OH | 43232 | ||||||
9132 | 10500 LACKMAN RD | LENEXA | KS | 66250 |
Store Number | Street | City | State | Zip | ||||||
9143 | 1701 INTERMODAL PKWY | HASLET | TX | 76052 | ||||||
9264 | 700 DARCY PKWY | LATHROP | CA | 95330 | ||||||
9273 | 1701 INTERMODAL PKWY | HASLET | TX | 76052 | ||||||
9316 | 11111 STEAD BLVD | RENO | NV | 89506 | ||||||
9363 | 1701 INTERMODAL PKWY STE 126 | HASLET | TX | 76052 | ||||||
9397 | 1701 INTERMODAL PKWY STE 101 | HASLET | TX | 76052 | ||||||
9440 | 1634 SALISBURY RD | STATESVILLE | NC | 28677 | ||||||
9441 | 6800 VALLEY VIEW AVE STE 202 | BUENA PARK | CA | 90620 | ||||||
9442 | 1650 S HWY 67 | CEDAR HILL | TX | 75104 | ||||||
9444 | 16000 W 107TH ST | LENEXA | KS | 66250 | ||||||
9445 | 2525 PARK CRESCENT DR | COLUMBUS | OH | 43232 | ||||||
9446 | 120 PENNEY RD | FOREST PARK | GA | 30297 | ||||||
9449 | 1361 TOLLAND TPK | MANCHESTER | CT | 6041 | ||||||
9450 | 6800 STATE RD 33 N | LAKELAND | FL | 33805 | ||||||
9452 | 11810 W BURLEIGH ST | WAUWATOSA | WI | 53222 | ||||||
9454 | 4000 E HWY 6 | SPANISH FORK | UT | 84660 | ||||||
9465 | 700 DARCY PKWY | LATHROP | CA | 95330 | ||||||
9466 | 6800 VALLEY VIEW AVE | BUENA PARK | CA | 90620 | ||||||
9467 | 1701 INTERMODAL PKWY | HASLET | TX | 76052 | ||||||
9468 | 120 PENNEY RD | FOREST PARK | GA | 30297 | ||||||
9481 | 120 PENNEY RD | FOREST PARK | GA | 30297 | ||||||
9484 | 120 PENNEY RD | FOREST PARK | GA | 30297 | ||||||
9503 | 6800 VALLEY VIEW AVE | BUENA PARK | CA | 90620 | ||||||
9553 | 120 PENNEY RD | FOREST PARK | GA | 30297 | ||||||
9554 | 1339 TOLLAND TPK | MANCHESTER | CT | 6041 | ||||||
9559 | 11800 W BURLEIGH ST | WAUWATOSA | WI | 53222 | ||||||
9597 | 11111 STEAD BLVD STE 111 | RENO | NV | 89506 | ||||||
9774 | 1634 SALISBURY RD | STATESVILLE | NC | 28677 |
EXHIBIT A
TO AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
PLEDGE SUPPLEMENT
This PLEDGE SUPPLEMENT , dated [ ], 20[ ], is delivered by [ NAME OF GRANTOR ] a [ NAME OF STATE OF INCORPORATION ] [Corporation] (the Grantor ) pursuant to the Amended and Restated Pledge and Security Agreement, dated as of June 23, 2016 (as it may be from time to time amended, restated, modified or supplemented, the Security Agreement ), among J. C. PENNEY CORPORATION, INC. , the other Grantors named therein, and WILMINGTON TRUST, NATIONAL ASSOCIATION , as the Collateral Agent. Capitalized terms used herein not otherwise defined herein shall have the meanings ascribed thereto in the Security Agreement.
Grantor hereby confirms the grant to the Collateral Agent set forth in the Security Agreement of, and does hereby grant to the Collateral Agent, a security interest in all of Grantors right, title and interest in, to and under all Collateral to secure the Term Loan/Notes Secured Obligations, in each case whether now or hereafter existing or in which Grantor now has or hereafter acquires an interest and wherever the same may be located. Grantor represents and warrants that the attached Annex A and Supplements to Schedules accurately and completely set forth all additional information required to be provided pursuant to the Security Agreement and hereby agrees that such Annex A and Supplements to Schedules shall constitute part of the Schedules to the Security Agreement.
THIS PLEDGE SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK (OTHER THAN ANY MANDATORY PROVISIONS OF THE UCC RELATING TO THE LAW GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OF THE SECURITY INTEREST).
IN WITNESS WHEREOF , Grantor has caused this Pledge Supplement to be duly executed and delivered by its duly authorized officer as of [ ], 20[ ].
[NAME OF GRANTOR] , | ||
By: |
|
|
Name: | ||
Title: |
EXHIBIT A-1
ANNEX A
TO PLEDGE SUPPLEMENT
Additional Information:
GENERAL INFORMATION
(A) | Full Legal Name, Type of Organization, Jurisdiction of Organization, Chief Executive Office/Sole Place of Business (or Residence if Grantor is a Natural Person) and Organizational Identification Number of each Grantor: |
Full Legal Name |
Type of Organization |
Jurisdiction of Organization |
Chief Executive Office/Sole Place of Business (or Residence if Grantor is a Natural Person) |
Organization I.D.# |
||||
(B) | Other Names (including any Trade Name or Fictitious Business Name) under which each Grantor currently conducts business: |
Full Legal Name |
Trade Name or Fictitious Business Name |
|
(C) | Changes in Name, Jurisdiction of Organization, Chief Executive Office or Sole Place of Business (or Principal Residence if Grantor is a Natural Person) and Corporate Structure within past five (5) years: |
Grantor |
Date of Change |
Description of Change |
||
(D) | Agreements pursuant to which any Grantor is bound as debtor within past five (5) years: |
Grantor |
Description of Agreement |
|
EXHIBIT A-2
SUPPLEMENT TO SCHEDULE 5.2
TO AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
COLLATERAL IDENTIFICATION
I. | INTELLECTUAL PROPERTY |
(A) | Copyrights |
Grantor |
Jurisdiction |
Title of Work |
Registration Number (if any) |
Registration Date (if any) |
||||
(B) | Copyrights Licenses |
Grantor |
Description of Copyright License |
Registration Number (if any) of underlying Copyright |
Name of Licensor |
|||
(C) | Patents |
Grantor |
Jurisdiction |
Title of Patent |
Patent Number (Application Number) |
Issue Date (Filing Date) |
||||
(D) | Patent Licenses |
Grantor |
Description of Patent License |
Patent Number of underlying Patent |
Name of Licensor |
|||
(E) | Trademarks |
Grantor |
Jurisdiction |
Trademark |
Registration Number (Serial Number) |
Registration Date (Filing Date) |
||||
EXHIBIT A-3
(F) | Trademark Licenses |
Grantor |
Description of Trademark License |
Registration Number of underlying Trademark |
Name of Licensor |
|||
(G) | Trade Secret Licenses |
II. | COMMERCIAL TORT CLAIMS |
Grantor |
Commercial Tort Claims |
III. | WAREHOUSEMEN, BAILEES AND OTHER THIRD PARTIES IN POSSESSION OF COLLATERAL |
Grantor |
Description of Property |
Name and Address of Third Party |
||
EXHIBIT A-4
SUPPLEMENT TO SCHEDULE 5.4
TO AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
Financing Statements:
Grantor |
Filing Jurisdiction(s) |
|
EXHIBIT A-5
SUPPLEMENT TO SCHEDULE 5.5
TO AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
Additional Information:
Name of Grantor |
Location of Equipment and Inventory |
|
EXHIBIT A-6
EXHIBIT B
TO AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
FORM OF AMENDED AND RESTATED TRADEMARK SECURITY AGREEMENT
This AMENDED AND RESTATED TRADEMARK SECURITY AGREEMENT , dated as of [ ], 20[ ] (as it may be amended, restated, supplemented or otherwise modified from time to time, this Agreement ), is made by the entities identified as grantors on the signature pages hereto (collectively, the Grantors ) in favor of Wilmington Trust, National Association, as collateral agent for the Term Loan/Notes Secured Parties (in such capacity, together with its successors and permitted assigns, the Collateral Agent ).
WHEREAS , the Grantors are party to an Amended and Restated Pledge and Security Agreement dated as of June 23, 2016 (as it may be amended, restated, supplemented or otherwise modified from time to time, the Pledge and Security Agreement ) between each of the Grantors and the other grantors party thereto and the Collateral Agent pursuant to which the Grantors granted a security interest to the Collateral Agent in the Trademark Collateral (as defined below) and are required to execute and deliver this Agreement.
NOW, THEREFORE , in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Grantors hereby agree with the Collateral Agent as follows:
SECTION 1. Defined Terms
Unless otherwise defined herein, terms defined in the Pledge and Security Agreement and used herein have the meaning given to them in the Pledge and Security Agreement.
SECTION 2. Grant of Security Interest in Trademark Collateral
SECTION 2.1 Grant of Security Interest. Each Grantor hereby grants to the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, a security interest in and continuing lien on all of such Grantors right, title and interest in, to and under the following, in each case whether now or hereafter existing or in which such Grantor now has or hereafter acquires an interest and wherever the same may be located (collectively, the Trademark Collateral ):
(a) all United States, and foreign trademarks, trade names, trade dress, Internet domain names, service marks, certification marks, logos, and other source identifiers, whether or not registered;
(b) all registrations and applications therefor including, without limitation, the registrations and applications listed on Schedule A attached hereto;
(c) all extensions or renewals of any of the foregoing;
(d) all of the goodwill of the business connected with the use of and symbolized by any of the foregoing;
(e) the right to sue or otherwise recover for any past, present and future infringement, dilution or other violation of any of the foregoing;
EXHIBIT B-1
(f) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect thereto; and
(g) all other rights corresponding thereto throughout the world.
SECTION 2.2 Certain Limited Exclusions. Notwithstanding anything herein to the contrary, in no event shall the Trademark Collateral include or the security interest granted under Section 2.1 hereof attach to any Excluded Asset, including, without limitation, any intent-to-use application for registration of a trademark or service mark filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to the filing of a Statement of Use pursuant to Section 1(d) of the Lanham Act or an Amendment to Allege Use pursuant to Section 1(c) of the Lanham Act with respect thereto, solely to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law.
SECTION 3. Security Agreement
The security interest granted pursuant to this Agreement is granted in conjunction with the security interest granted to the Collateral Agent for the Term Loan/Notes Secured Parties pursuant to the Pledge and Security Agreement, and the Grantors hereby acknowledge and affirm that the rights and remedies of the Collateral Agent with respect to the security interest in the Trademark Collateral made and granted hereby are more fully set forth in the Pledge and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Agreement is deemed to conflict with the Pledge and Security Agreement, the provisions of the Pledge and Security Agreement shall control.
SECTION 4. Termination
Upon the payment in full of all Term Loan/Notes Secured Obligations (other than unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations) and the cancellation or termination of the Commitments and commitments under any Future Term Loan/Notes Agreement, the security interest granted hereby shall automatically terminate hereunder and of record and all rights to the Trademark Collateral shall revert to the Grantors. Upon any such termination the Collateral Agent shall, at the Grantors expense, execute and deliver to the Grantors or otherwise authorize the filing of such documents as the Grantors shall reasonably request, including financing statement amendments and/or releases and/or reassignments of the Trademark Collateral in the form appropriate for recording in the U.S. Patent and Trademark Office or other applicable Intellectual Property registry where the Collateral Agents security interest may have been recorded, to evidence such termination.
SECTION 5. Governing Law
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK (OTHER THAN ANY MANDATORY PROVISIONS OF THE UCC RELATING TO THE LAW GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OF THE SECURITY INTEREST).
EXHIBIT B-2
SECTION 6. Intercreditor Agreement
Notwithstanding anything herein to the contrary, the liens and security interests granted to the Collateral Agent pursuant to this Agreement in respect of the Trademark Collateral and the exercise of any right or remedy by the Collateral Agent hereunder in respect of the Trademark Collateral, in each case, with respect to such Trademark Collateral are subject to the limitations and provisions of the ABL Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2) and the terms and conditions of the ABL Intercreditor Agreement, the terms and conditions of the ABL Intercreditor Agreement shall control. In addition, notwithstanding anything herein to the contrary, the liens and security interests granted to the Collateral Agent pursuant to this Agreement in respect of the Trademark Collateral and the exercise of any right or remedy by the Collateral Agent hereunder in respect of the Trademark Collateral, in each case, with respect to such Trademark Collateral are subject to the limitations and provisions of the Pari Passu Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2) and the terms and conditions of the Pari Passu Intercreditor Agreement, the terms and conditions of the Pari Passu Intercreditor Agreement shall control.
SECTION 7. Counterparts
This Agreement may be executed in one or more counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed signature page to this Agreement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
SECTION 8. Concerning the Collateral Agent
Wilmington Trust, National Association is entering into this Agreement solely in its capacity as Collateral Agent pursuant to the Pari Passu Intercreditor Agreement, and shall be entitled to all of the rights, privileges and immunities provided to the Collateral Agent thereunder in acting as Collateral Agent pursuant hereto.
[Remainder of page intentionally left blank]
EXHIBIT B-3
IN WITNESS WHEREOF , each Grantor has caused this Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.
[NAME OF GRANTOR] , | ||
By: |
|
|
Name: | ||
Title: |
STATE OF | ) | |
) ss. | ||
COUNTY OF | ) |
On this day of , before me personally appeared , proved to me on the basis of satisfactory evidence to be the person who executed the foregoing instrument on behalf of , who being by me duly sworn did depose and say that he/she is an authorized officer of said corporation, that the said instrument was signed on behalf of said corporation as authorized by its Board of Directors and that he/she acknowledged said instrument to be the free act and deed of said corporation.
Notary Public | ||
[NAME OF GRANTOR] , | ||
By: |
|
|
Name: | ||
Title: |
STATE OF | ) | |
) ss. | ||
COUNTY OF | ) |
On this day of , before me personally appeared , proved to me on the basis of satisfactory evidence to be the person who executed the foregoing instrument on behalf of , who being by me duly sworn did depose and say that he/she is an authorized officer of said corporation, that the said instrument was signed on behalf of said corporation as authorized by its Board of Directors and that he/she acknowledged said instrument to be the free act and deed of said corporation.
[ADD SIGNATURE BLOCKS AND NOTARY BLOCKS FOR ANY OTHER GRANTORS]
EXHIBIT B-4
Accepted and Agreed:
WILMINGTON TRUST, NATIONAL ASSOCIATION ,
as Collateral Agent
By: |
|
|
Name: | ||
Title: |
EXHIBIT B-5
SCHEDULE A
to
TRADEMARK SECURITY AGREEMENT
TRADEMARK REGISTRATIONS AND APPLICATIONS
Mark |
Serial No. |
Filing Date |
Registration No. |
Registration Date |
||||
EXHIBIT B-6
EXHIBIT C
TO AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
FORM OF PATENT SECURITY AGREEMENT
This PATENT SECURITY AGREEMENT , dated as of [ ], 20[ ] (as it may be amended, restated, supplemented or otherwise modified from time to time, this Agreement ), is made by the entities identified as grantors on the signature pages hereto (collectively, the Grantors ) in favor of Wilmington Trust, National Association, as collateral agent for the Term Loan/Notes Secured Parties (in such capacity, together with its successors and permitted assigns, the Collateral Agent ).
WHEREAS , the Grantors are party to an Amended and Restated Pledge and Security Agreement dated as of June 23, 2016 (as it may be amended, restated, supplemented or otherwise modified from time to time, the Pledge and Security Agreement ) between each of the Grantors and the other grantors party thereto and the Collateral Agent pursuant to which the Grantors granted a security interest to the Collateral Agent in the Patent Collateral (as defined below) and are required to execute and deliver this Agreement.
NOW, THEREFORE , in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Grantors hereby agree with the Collateral Agent as follows:
SECTION 1. Defined Terms
Unless otherwise defined herein, terms defined in the Pledge and Security Agreement and used herein have the meaning given to them in the Pledge and Security Agreement.
SECTION 2. Grant of Security Interest in Patent Collateral
SECTION 2.1. Grant of Security Interest. Each Grantor hereby grants to the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, a security interest in and continuing lien on all of such Grantors right, title and interest in, to and under the following, in each case whether now or hereafter existing or in which such Grantor now has or hereafter acquires an interest and wherever the same may be located (collectively, the Patent Collateral ):
(a) all United States and foreign patents and certificates of invention, or industrial property designs, and applications for any of the foregoing, including, without limitation, each patent and patent application listed on Schedule A attached hereto;
(b) all reissues, divisions, continuations, continuations-in-part and extensions thereof;
(c) all patentable inventions described and claimed therein;
(d) the right to sue or otherwise recover for any past, present and future infringement or other violation thereof;
(e) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages, and proceeds of suit now or hereafter due and/or payable with respect thereto; and
EXHIBIT C-1
(f) all other rights corresponding thereto throughout the world.
SECTION 2.2 Certain Limited Exclusions. Notwithstanding anything to the contrary, in no event shall the Patent Collateral include or the security interest granted under Section 2.1 hereof attach to any Excluded Assets.
SECTION 3. Security Agreement
The security interest granted pursuant to this Agreement is granted in conjunction with the security interest granted to the Collateral Agent for the Term Loan/Notes Secured Parties pursuant to the Pledge and Security Agreement, and the Grantors hereby acknowledge and affirm that the rights and remedies of the Collateral Agent with respect to the security interest in the Patent Collateral made and granted hereby are more fully set forth in the Pledge and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Agreement is deemed to conflict with the Pledge and Security Agreement, the provisions of the Pledge and Security Agreement shall control.
SECTION 4. Termination
Upon the payment in full of all Term Loan/Notes Secured Obligations (other than unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations) and the cancellation or termination of the Commitments and commitments under any Future Term Loan/Notes Agreement, the security interest granted hereby shall automatically terminate hereunder and of record and all rights to the Patent Collateral shall revert to the Grantors. Upon any such termination the Collateral Agent shall, at the Grantors expense, execute and deliver to the Grantors or otherwise authorize the filing of such documents as the Grantors shall reasonably request, including financing statement amendments and/or releases and/or reassignments of the Patent Collateral in the form appropriate for recording in the U.S. Patent and Trademark Office or other applicable Intellectual Property registry where the Collateral Agents security interest may have been recorded, to evidence such termination.
SECTION 5. Governing Law
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK (OTHER THAN ANY MANDATORY PROVISIONS OF THE UCC RELATING TO THE LAW GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OF THE SECURITY INTEREST).
SECTION 6. Intercreditor Agreement
Notwithstanding anything herein to the contrary, the liens and security interests granted to the Collateral Agent pursuant to this Agreement in respect of the Patent Collateral and the exercise of any right or remedy by the Collateral Agent hereunder in respect of the Patent Collateral, in each case, with respect to such Patent Collateral are subject to the limitations and provisions of the ABL Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2) and the terms and conditions of the ABL Intercreditor Agreement, the terms and conditions of the ABL Intercreditor Agreement shall control. In addition, notwithstanding anything
EXHIBIT C-2
herein to the contrary, the liens and security interests granted to the Collateral Agent pursuant to this Agreement in respect of the Patent Collateral and the exercise of any right or remedy by the Collateral Agent hereunder in respect of the Patent Collateral, in each case, with respect to such Patent Collateral are subject to the limitations and provisions of the Pari Passu Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2) and the terms and conditions of the Pari Passu Intercreditor Agreement, the terms and conditions of the Pari Passu Intercreditor Agreement shall control.
SECTION 7. Counterparts
This Agreement may be executed in one or more counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed signature page to this Agreement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
SECTION 8. Concerning the Collateral Agent
Wilmington Trust, National Association is entering into this Agreement solely in its capacity as Collateral Agent pursuant to the Pari Passu Intercreditor Agreement, and shall be entitled to all of the rights, privileges and immunities provided to the Collateral Agent thereunder in acting as Collateral Agent pursuant hereto.
[Remainder of page intentionally left blank]
EXHIBIT C-3
IN WITNESS WHEREOF , each Grantor has caused this Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.
[NAME OF GRANTOR] , | ||
By: |
|
|
Name: | ||
Title: |
STATE OF | ) | |
) ss. | ||
COUNTY OF | ) |
On this day of , before me personally appeared , proved to me on the basis of satisfactory evidence to be the person who executed the foregoing instrument on behalf of , who being by me duly sworn did depose and say that he/she is an authorized officer of said corporation, that the said instrument was signed on behalf of said corporation as authorized by its Board of Directors and that he/she acknowledged said instrument to be the free act and deed of said corporation.
Notary Public | ||
[NAME OF GRANTOR] , | ||
By: |
|
|
Name: | ||
Title: |
STATE OF | ) | |
) ss. | ||
COUNTY OF | ) |
On this day of , before me personally appeared , proved to me on the basis of satisfactory evidence to be the person who executed the foregoing instrument on behalf of , who being by me duly sworn did depose and say that he/she is an authorized officer of said corporation, that the said instrument was signed on behalf of said corporation as authorized by its Board of Directors and that he/she acknowledged said instrument to be the free act and deed of said corporation.
[ADD SIGNATURE BLOCKS AND NOTARY BLOCKS FOR ANY OTHER GRANTORS]
EXHIBIT C-4
Accepted and Agreed:
WILMINGTON TRUST, NATIONAL ASSOCIATION , | ||
as Collateral Agent | ||
By: |
|
|
Name: | ||
Title: |
EXHIBIT C-5
SCHEDULE A
to
PATENT SECURITY AGREEMENT
PATENTS AND PATENT APPLICATIONS
Title |
Application No. |
Filing Date |
Patent No. |
Issue Date |
||||
EXHIBIT C-6
EXHIBIT D
TO PLEDGE AND SECURITY AGREEMENT
FORM OF AMENDED AND RESTATED COPYRIGHT SECURITY AGREEMENT
This AMENDED AND RESTATED COPYRIGHT SECURITY AGREEMENT , dated as of [ ], 20[ ] (as it may be amended, restated, supplemented or otherwise modified from time to time, this Agreement ), is made by the entities identified as grantors on the signature pages hereto (collectively, the Grantors ) in favor of Wilmington Trust, National Association, as collateral agent for the Term Loan/Notes Secured Parties (in such capacity, together with its successors and permitted assigns, the Collateral Agent ).
WHEREAS , the Grantors are party to an Amended and Restated Pledge and Security Agreement dated as of June 23, 2016 (as it may be amended, restated, supplemented or otherwise modified from time to time, the Pledge and Security Agreement ) between each of the Grantors and the other grantors party thereto and the Collateral Agent pursuant to which the Grantors granted a security interest to the Collateral Agent in the Copyright Collateral (as defined below) and are required to execute and deliver this Agreement.
NOW, THEREFORE , in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Grantors hereby agree with the Collateral Agent as follows:
SECTION 1. Defined Terms
Unless otherwise defined herein, terms defined in the Pledge and Security Agreement and used herein have the meaning given to them in the Pledge and Security Agreement.
SECTION 2. Grant of Security Interest in Copyright Collateral
SECTION 2.1 Grant of Security Interest. Each Grantor hereby grants to the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, a security interest in and continuing lien on all of such Grantors right, title and interest in, to and under the following, in each case whether now or hereafter existing or in which such Grantor now has or hereafter acquires an interest and wherever the same may be located (collectively, the Copyright Collateral ):
(a) all United States and foreign copyrights and all Mask Works (as defined under 17 U.S.C. 901 of the U.S. Copyright Act), whether registered or unregistered;
(b) all registrations and applications therefor including, without limitation, the registrations and applications listed on Schedule A attached hereto;
(c) all extensions and renewals thereof;
(d) the right to sue or otherwise recover for any past, present and future infringement or other violation of any of the foregoing;
(e) all Proceeds of the foregoing, including, without limitation, license fees, royalties, income, payments, claims, damages and proceeds of suit now or hereafter due and/or payable with respect thereto;
EXHIBIT D-1
(f) all other rights corresponding thereto throughout the world; and
(g) all exclusive Copyright Licenses in respect of registered U.S. copyrights for which such Grantor is the licensee and which are included in the Material Intellectual Property.
SECTION 2.2 Certain Limited Exclusions. Notwithstanding anything to the contrary, in no event shall the Copyright Collateral include or the security interest granted under Section 2.1 hereof attach to any Excluded Asset.
SECTION 3. Security Agreement
The security interest granted pursuant to this Agreement is granted in conjunction with the security interest granted to the Collateral Agent for the Term Loan/Notes Secured Parties pursuant to the Pledge and Security Agreement, and the Grantors hereby acknowledge and affirm that the rights and remedies of the Collateral Agent with respect to the security interest in the Copyright Collateral made and granted hereby are more fully set forth in the Pledge and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Agreement is deemed to conflict with the Pledge and Security Agreement, the provisions of the Pledge and Security Agreement shall control.
SECTION 4. Termination
Upon the payment in full of all Term Loan/Notes Secured Obligations (other than unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations) and the cancellation or termination of the Commitments and commitments under any Future Term Loan/Notes Agreement, the security interest granted hereby shall automatically terminate hereunder and of record and all rights to the Copyright Collateral shall revert to the Grantors. Upon any such termination the Collateral Agent shall, at the Grantors expense, execute and deliver to the Grantors or otherwise authorize the filing of such documents as the Grantors shall reasonably request, including financing statement amendments and/or releases and/or reassignments of Copyright Collateral in the form appropriate for recording in the U.S. Copyright Office or other applicable Intellectual Property registry where the Collateral Agents security interest may have been recorded, to evidence such termination.
SECTION 5. Governing Law
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK (OTHER THAN ANY MANDATORY PROVISIONS OF THE UCC RELATING TO THE LAW GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OF THE SECURITY INTEREST).
SECTION 6. Intercreditor Agreement
Notwithstanding anything herein to the contrary, the liens and security interests granted to the Collateral Agent pursuant to this Agreement in respect of the Copyright Collateral and the exercise of any right or remedy by the Collateral Agent hereunder in respect of the Copyright Collateral, in each case, with respect to such Copyright Collateral are subject to the limitations and provisions of the ABL
EXHIBIT D-2
Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2) and the terms and conditions of the ABL Intercreditor Agreement, the terms and conditions of the ABL Intercreditor Agreement shall control. In addition, notwithstanding anything herein to the contrary, the liens and security interests granted to the Collateral Agent pursuant to this Agreement in respect of the Copyright Collateral and the exercise of any right or remedy by the Collateral Agent hereunder in respect of the Copyright Collateral, in each case, with respect to such Copyright Collateral are subject to the limitations and provisions of the Pari Passu Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2) and the terms and conditions of the Pari Passu Intercreditor Agreement, the terms and conditions of the Pari Passu Intercreditor Agreement shall control.
SECTION 7. Counterparts
This Agreement may be executed in one or more counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed signature page to this Agreement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
SECTION 8. Concerning the Collateral Agent
Wilmington Trust, National Association is entering into this Agreement solely in its capacity as Collateral Agent pursuant to the Pari Passu Intercreditor Agreement, and shall be entitled to all of the rights, privileges and immunities provided to the Collateral Agent thereunder in acting as Collateral Agent pursuant hereto.
[Remainder of page intentionally left blank]
EXHIBIT D-3
IN WITNESS WHEREOF , each Grantor has caused this Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.
[NAME OF GRANTOR] , | ||
By: |
|
|
Name: | ||
Title: |
STATE OF | ) | |
) ss. | ||
COUNTY OF | ) |
On this day of , before me personally appeared , proved to me on the basis of satisfactory evidence to be the person who executed the foregoing instrument on behalf of , who being by me duly sworn did depose and say that he/she is an authorized officer of said corporation, that the said instrument was signed on behalf of said corporation as authorized by its Board of Directors and that he/she acknowledged said instrument to be the free act and deed of said corporation.
Notary Public | ||
[NAME OF GRANTOR] , | ||
By: |
|
|
Name: | ||
Title: |
STATE OF | ) | |
) ss. | ||
COUNTY OF | ) |
On this day of , before me personally appeared , proved to me on the basis of satisfactory evidence to be the person who executed the foregoing instrument on behalf of , who being by me duly sworn did depose and say that he/she is an authorized officer of said corporation, that the said instrument was signed on behalf of said corporation as authorized by its Board of Directors and that he/she acknowledged said instrument to be the free act and deed of said corporation.
[ADD SIGNATURE BLOCKS AND NOTARY BLOCKS FOR ANY OTHER GRANTORS]
EXHIBIT D-4
Accepted and Agreed:
WILMINGTON TRUST, NATIONAL ASSOCIATION , | ||
as Collateral Agent | ||
By: |
|
|
Name: | ||
Title: |
EXHIBIT D-5
SCHEDULE A
to
COPYRIGHT SECURITY AGREEMENT
COPYRIGHT REGISTRATIONS AND APPLICATIONS
Title |
Application No. |
Filing Date |
Registration No. |
Registration Date |
||||
EXCLUSIVE COPYRIGHT LICENSES
Description of Copyright License |
Name of Licensor |
Registration Number of underlying Copyright |
EXHIBIT D-6
EXHIBIT 10.3
INTERCREDITOR AND COLLATERAL COOPERATION AGREEMENT
Dated as of
June 23, 2016
Among
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Representative for the First Priority Secured Parties,
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Representative for the Term Loan/Notes Secured Parties,
EACH OTHER REPRESENTATIVE FROM TIME TO TIME PARTY HERETO,
J.C. PENNEY CORPORATION, INC.
and
THE OTHER GRANTORS PARTY HERETO
TABLE OF CONTENTS
Page | ||||||
SECTION 1. |
Definitions; Other Interpretive Provisions. |
2 | ||||
1.1 |
Definitions |
2 | ||||
SECTION 2. |
Lien Priorities. |
10 | ||||
2.1 |
Subordination of Liens |
10 | ||||
2.2 |
Nature of Obligations |
10 | ||||
2.3 |
Agreements Regarding Actions to Perfect Liens |
10 | ||||
2.4 |
No New Liens |
11 | ||||
SECTION 3. |
Enforcement Rights. |
12 | ||||
3.1 |
Exclusive Enforcement |
12 | ||||
3.2 |
Standstill and Waivers |
13 | ||||
3.3 |
Judgment Creditors |
14 | ||||
3.4 |
Cooperation |
15 | ||||
3.5 |
No Additional Rights for the Grantors Hereunder |
15 | ||||
3.6 |
Actions Upon Breach |
15 | ||||
SECTION 4. |
Application of Proceeds of ABL Priority Collateral; Dispositions and Releases of ABL Priority Collateral; Inspection and Insurance. |
15 | ||||
4.1 |
Application of Proceeds; Turnover Provisions |
15 | ||||
4.2 |
Releases of Lien |
16 | ||||
4.3 |
Inspection Rights and Insurance. |
16 | ||||
4.4 |
Tracing and Allocation of Proceeds |
17 | ||||
SECTION 5. |
Insolvency Proceedings. |
17 | ||||
5.1 |
Filing of Motions |
17 | ||||
5.2 |
Financing Matters |
17 | ||||
5.3 |
Relief From the Automatic Stay |
18 | ||||
5.4 |
Adequate Protection |
19 | ||||
5.5 |
Avoidance Issues |
20 | ||||
5.6 |
Asset Dispositions in an Insolvency Proceeding |
20 | ||||
5.7 |
Separate Grants of Security and Separate Classification |
21 | ||||
5.8 |
Plans of Reorganization |
21 | ||||
5.9 |
No Waiver of Rights of First Priority Secured Parties |
21 | ||||
5.10 |
Effectiveness in Insolvency Proceedings |
22 | ||||
SECTION 6. |
Matters Relating to Loan Documents. |
22 | ||||
6.1 |
General |
22 | ||||
SECTION 7. |
Cooperation with Respect to ABL Priority Collateral. |
23 | ||||
7.1 |
Consent to License to Use Intellectual Property |
23 | ||||
7.2 |
Access to Information |
23 | ||||
7.3 |
Access to Property to Process and Sell Inventory |
23 | ||||
7.4 |
Grantor Consent |
25 |
i
TABLE OF CONTENTS
(continued)
Page | ||||||
SECTION 8. |
Reliance; Waivers; etc. |
26 | ||||
8.1 |
Reliance |
26 | ||||
8.2 |
No Warranties or Liability |
26 | ||||
8.3 |
No Waivers |
26 | ||||
SECTION 9. |
Obligations Unconditional. |
26 | ||||
SECTION 10. |
Joinder of Representative for Replacement ABL Credit Agreement and Representative for Junior Priority Secured Obligations. |
27 | ||||
SECTION 11. |
Miscellaneous. |
27 | ||||
11.1 |
Conflicts; Agreement Solely to Define Relative Rights |
27 | ||||
11.2 |
Continuing Nature of Provisions |
27 | ||||
11.3 |
Amendments; Waivers |
28 | ||||
11.4 |
Information Concerning Financial Condition of the Borrower and the other Grantors |
28 | ||||
11.5 |
Applicable Law |
28 | ||||
11.6 |
Jurisdiction; Consent to Service of Process; Process Agent |
28 | ||||
11.7 |
Notices |
29 | ||||
11.8 |
Successors and Assigns |
29 | ||||
11.9 |
Headings |
29 | ||||
11.10 |
Severability |
30 | ||||
11.11 |
Counterparts; Integration; Effectiveness |
30 | ||||
11.12 |
Waiver of Jury Trial |
30 | ||||
11.13 |
Additional Grantors |
30 |
ii
INTERCREDITOR AND COLLATERAL COOPERATION AGREEMENT
INTERCREDITOR AND COLLATERAL COOPERATION AGREEMENT (this Agreement ), dated as of June 23, 2016, among WELLS FARGO BANK, NATIONAL ASSOCIATION. ( Wells Fargo ), as Representative for the First Priority Secured Parties, WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent (together with its successors as Collateral Agent under the Term Loan/Notes Pari Passu Intercreditor Agreement (as defined below), the Term Loan/Notes Representative ), as Representative for the Term Loan/Notes Secured Parties, any other Representative (as defined herein) that becomes a party hereto after the date hereof pursuant to Section 10, as Representative for the applicable Secured Parties, J.C. PENNEY CORPORATION, INC. (the Borrower ), and each of the other Grantors party hereto.
WHEREAS, J.C. Penney Company, Inc. ( Holdings ), the Borrower, certain subsidiaries of the Borrower, Wells Fargo, as administrative agent (together with its successors in such capacity under the ABL Credit Agreement, the ABL Agent ), the lenders party thereto and the other parties thereto are parties to that certain Credit Agreement, dated as of June 20, 2014 (as amended on December 10, 2015, the ABL Credit Agreement ), pursuant to which such lenders have made and have agreed to make loans and extend other financial accommodations to the Borrower;
WHEREAS, Holdings, the Borrower, certain subsidiaries of the Borrower, JPMorgan Chase Bank, N.A., as administrative agent (together with its successors in such capacity under the Term Loan Agreement, the Term Loan Agent ), and the lenders party thereto are parties to that certain Amended and Restated Credit and Guaranty Agreement, dated as of the date hereof (the Term Loan Agreement ), pursuant to which such lenders have agreed to make loans to the Borrower;
WHEREAS, Holdings, the Borrower, certain subsidiaries of the Borrower and Wilmington Trust, National Association, as trustee (together with its successors in such capacity under the Indenture, the Trustee ) are parties to that certain Indenture, dated as of the date hereof (the Indenture ), pursuant to which the Borrower has issued its 5.875% senior secured notes due 2023;
WHEREAS, the Grantors and the ABL Agent are parties to that certain Collateral Agreement, dated as of June 20, 2014 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified, the ABL Security Agreement ), pursuant to which such Grantors have granted Liens to the ABL Agent for the benefit of the ABL Secured Parties on certain of their assets to secure the ABL Secured Obligations;
WHEREAS, pursuant to the Term Loan/Notes Pari Passu Intercreditor Agreement, the Term Loan Agent and the Trustee have appointed, and, if any additional Series (as defined in the Term Loan/Notes Pari Passu Intercreditor Agreement) of Term Loan/Notes Secured Obligations are established following the date hereof, one or more additional Term Loan/Notes Authorized Representatives for the holders of additional Series of Term Loan/Notes Secured Obligations will appoint, the Term Loan/Notes Representative to hold Liens for the benefit of the Term Loan/Notes Secured Parties under the Term Loan/Notes Security Agreement and the other Term Loan/Notes Documents and to bind such Term Loan/Notes Secured Parties by the terms of this Agreement;
WHEREAS, the Grantors and Term Loan/Notes Representative are parties to that certain Amended and Restated Pledge and Security Agreement, dated as of the date hereof (as the same may be amended, restated, amended and restated, supplemented or otherwise modified, the Term Loan/Notes Security Agreement ), pursuant to which such Grantors and certain of their Subsidiaries have granted Liens on certain of their assets securing the Term Loan/Notes Secured Obligations;
WHEREAS, if any Junior Priority Secured Obligations are issued following the date hereof, then pursuant to the Junior Priority Pari Passu Intercreditor Agreement, one or more Junior Priority Authorized Representatives for the holders of Junior Priority Secured Obligations will appoint, the Junior Priority Representative to hold the Liens for the benefit of the Junior Priority Secured Parties under the Junior Priority Documents;
WHEREAS, the Second Priority Obligations, Liens and related rights are required, pursuant to the ABL Credit Agreement, to be subject to this Agreement; and
NOW THEREFORE, in consideration of the foregoing and the mutual covenants herein contained and other good and valuable consideration, the existence and sufficiency of which is expressly recognized by all of the parties hereto, the parties agree as follows:
SECTION 1. Definitions; Other Interpretive Provisions .
1.1 Definitions .
The following terms, as used herein (including the foregoing recitals), have the following meanings:
ABL Agent has the meaning set forth in the first WHEREAS clause of this Agreement; provided that the term ABL Agent shall also include any Representative for the holders of any indebtedness outstanding under any Replacement ABL Credit Agreement then extant.
ABL Credit Agreement has the meaning set forth in the first WHEREAS clause of this Agreement; provided that the term ABL Credit Agreement shall also include any Replacement ABL Credit Agreement, in each case as any such agreement may be amended, supplemented or otherwise modified in accordance with the terms hereof and thereof.
ABL Loan Documents means (i) the Loan Documents as defined in the ABL Credit Agreement and (ii) the Loan Documents (or comparable term) as defined in any Replacement ABL Credit Agreement, as the case may be.
ABL Priority Collateral means any and all present and future right, title and interest of the Grantors in and to the following, whether now owned or hereafter acquired, existing or arising, and wherever located: (i) all Accounts (other than Accounts that are the identifiable proceeds of the sale or other disposition of Term Loan/Notes Exclusive Collateral); (ii) all Deposit Accounts and all cash credited thereto, including, without limitation, the Concentration Account and the Control Accounts and all cash credited thereto (other than any Deposit Account that contains solely the identifiable cash proceeds of property that was Term Loan/Notes Exclusive Collateral when such cash proceeds arose); (iii) all Inventory; (iv) all Payment Intangibles; (v) all Securities Accounts and all cash, securities and other financial assets credited thereto on which Liens are granted (or purported to be granted) to secure the ABL Secured Obligations to the extent required by Section 5.16 of the ABL Credit Agreement (or any substantially equivalent provision under any Replacement ABL Credit Agreement) (other than any Securities Account that contains solely the identifiable proceeds of property that was Term Loan/Notes Exclusive Collateral when such proceeds arose); (vi) all books and records pertaining to any and/or all of the items set forth in clauses (i) (v) above and (vii) below; and (vii) to the extent not otherwise included, all Proceeds and products of any and all of the foregoing and all supporting obligations given by any Person with respect to the foregoing. Terms used in the foregoing definition which are defined in the Uniform Commercial Code and not otherwise defined in this Agreement have the meanings specified in the Uniform Commercial Code.
2
ABL Priority Collateral Enforcement Actions has the meaning specified in Section 7.3(a) .
ABL Priority Collateral Processing and Sale Period has the meaning specified in Section 7.3(a) .
ABL Priority DIP Financing has the meaning specified in Section 5.2(a).
ABL Secured Obligations means all Obligations (or comparable term) as defined in the ABL Credit Agreement (including, for the avoidance of doubt, in any Replacement ABL Credit Agreement).
ABL Secured Parties means holders from time to time of the ABL Secured Obligations.
ABL Security Agreement has the meaning set forth in the fourth WHEREAS clause of this Agreement; provided that if a Replacement ABL Credit Agreement is in effect, ABL Security Agreement shall be deemed to be a reference to each agreement pursuant to which Liens have been granted to secure obligations under such Replacement ABL Credit Agreement, in each case as any such agreement may be amended, supplemented or otherwise modified in accordance with the terms hereof and thereof.
Adequate Protection Liens means any Liens granted in any Insolvency Proceeding to any Secured Party as adequate protection of the Secured Obligations held by such Secured Party.
Bankruptcy Code means the United States Bankruptcy Code (11 U.S.C. §101 et seq.), as amended from time to time.
Borrower has the meaning set forth in the preamble of this Agreement.
Class means, in relation to any Secured Obligations, whether such Secured Obligations are First Priority Obligations or Second Priority Obligations.
Comparable Second Priority Security Document means, in relation to any ABL Priority Collateral subject to any First Priority Security Document, each Second Priority Security Document that creates a security interest in the same ABL Priority Collateral, granted by the same Grantor, as applicable.
Concentration Account has the meaning set forth in the ABL Credit Agreement as in effect on the date hereof and shall include any substantially similar account pursuant to any Replacement ABL Credit Agreement.
Control Accounts has the meaning set forth in the ABL Credit Agreement as in effect on the date hereof and shall include any substantially similar accounts pursuant to any Replacement ABL Credit Agreement.
Copyright License means any agreement now or hereafter in existence granting to any Person, or pursuant to which any Person grants to any other Person, any right to use any Copyright.
Copyrights means, with respect to any Person, all of the following now owned or hereafter acquired by such Person: (a) all copyright rights in any work subject to the copyright laws of the United States of America or any other country or group of countries or any political subdivision thereof, whether as author, assignee, transferee or otherwise, and (b) all registrations and applications for registration of any such copyright in the United States of America or any other country, including registrations, recordings, supplemental registrations and pending applications for registration in the United States Copyright Office (or any similar office in any other country).
3
Deposit Account means any deposit account, within the meaning of Article 9 of the Uniform Commercial Code as in effect on the date hereof.
DIP Financing has the meaning specified in Section 5.2.
Enforcement Action means, with respect to any Class of Secured Obligations, the exercise of any rights and remedies with respect to any ABL Priority Collateral securing such obligations or the commencement or prosecution of enforcement of any of the rights and remedies under the Loan Documents governing such Class, or applicable law, including without limitation the right to repossess, remove and otherwise deal with such ABL Priority Collateral, the right to advertise and conduct public auctions or private sales of such ABL Priority Collateral, in each case without notice (other than any notice required by law), the exercise of any rights of set-off, recoupment or credit bidding, and the exercise of any rights or remedies of a secured creditor under the Uniform Commercial Code, the Bankruptcy Code (including credit bidding rights) or other similar creditors rights, bankruptcy, insolvency, reorganization or similar laws of any applicable jurisdiction (including, without limitation, consenting to a going out of business or similar sale by any Grantor) (including, without limitation, a store closing sale, going out of business sale or other disposition by any Grantor of any ABL Priority Collateral conducted at the direction of the ABL Agent after the occurrence of an event of default under the ABL Loan Documents).
Equity Interests has the meaning specified in Section 4.4.
First Priority Documents means the ABL Loan Documents.
First Priority Lien means any Lien on any ABL Priority Collateral securing any First Priority Obligations.
First Priority Obligations means the ABL Secured Obligations. To the extent any payment with respect to any First Priority Obligation (whether by or on behalf of any Grantor, as proceeds of security, enforcement of any right of setoff or otherwise) is declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor in possession, any Second Priority Secured Party, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall, for the purposes of this Agreement and the rights and obligations of the First Priority Secured Parties and the Second Priority Secured Parties, be deemed to be reinstated and outstanding as if such payment had not occurred.
First Priority Obligations Payment Date means, the first date on which (i) the First Priority Obligations (other than those that constitute Unasserted Contingent Obligations) have been paid in cash in full (or, if applicable, cash collateralized or defeased in accordance with the terms of the applicable First Priority Documents), (ii) all commitments to extend credit under the First Priority Documents have been terminated, (iii) there are no outstanding letters of credit or similar instruments issued under the First Priority Documents (other than such as have been cash collateralized or defeased or otherwise provided for in accordance with the terms of the applicable First Priority Documents) and (iv) the First Priority Representative has delivered a written notice to the Second Priority Representative stating that the events described in clauses (i), (ii) and (iii) above have occurred to the satisfaction of the First Priority Secured Parties. For avoidance of doubt, a Refinancing of First Priority Obligations that is permitted hereby shall not give rise to the First Priority Obligations Payment Date unless the terms thereof expressly so provide with reference to this Agreement.
First Priority Representative means the ABL Agent.
4
First Priority Secured Parties means the First Priority Representative and the holders of the First Priority Obligations.
First Priority Security Documents means each agreement or document granting or purporting to grant a Lien on any ABL Priority Collateral to secure First Priority Obligations, including the ABL Security Agreement.
Grantor Joinder Agreement means a supplement to this Agreement substantially in the form of Annex III, appropriately completed.
Grantors means Holdings, the Borrower and each Subsidiary of the Borrower that has at any time granted a Lien on any assets that constitute ABL Priority Collateral to secure any First Priority Obligations.
Holdings has the meaning set forth in the first WHEREAS clause of this Agreement.
Insolvency Proceeding means any proceeding in respect of bankruptcy, insolvency, winding up, receivership, dissolution or assignment for the benefit of creditors, in each of the foregoing events whether under the Bankruptcy Code or any similar federal, state or foreign bankruptcy, insolvency, reorganization, receivership or similar law.
Intellectual Property means all Copyrights, Patents, Trademarks, Copyright Licenses, Patent Licenses and Trademark Licenses.
Inventory means any inventory, within the meaning of Article 9 of the Uniform Commercial Code as in effect on the date hereof.
Junior Priority Authorized Representatives means each Authorized Representative as defined in the Junior Priority Pari Passu Intercreditor Agreement.
Junior Priority Documents has the meaning given such term by the Junior Priority Pari Passu Intercreditor Agreement.
Junior Priority Pari Passu Intercreditor Agreement means a pari passu intercreditor agreement entered into by and among the Junior Priority Representative and one or more Junior Priority Authorized Representatives pursuant to which, among other things, the Junior Priority Secured Parties (or one or more Junior Priority Authorized Representatives on behalf of such Junior Priority Secured Parties) authorize and direct the Junior Priority Representative to enter into this Agreement on their behalf of such Junior Priority Secured Parties and to bind them hereby.
Junior Priority Representative means the Collateral Agent as defined in the Junior Priority Pari Passu Intercreditor Agreement.
Junior Priority Secured Obligations has the meaning set forth in the Junior Priority Pari Passu Intercreditor Agreement.
Junior Priority Secured Parties means the holders from time to time of the Junior Priority Secured Obligations.
Letter of Credit has the meaning set forth in the ABL Credit Agreement and shall include any substantially equivalent term in any Replacement ABL Credit Agreement.
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Lien means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.
Loan Document means any of the First Priority Documents or the Second Priority Documents.
Patent License means any agreement now or hereafter in existence granting to any Person, or pursuant to which any Person grants to any other Person, any right with respect to any Patent or any invention now or hereafter in existence, whether patentable or not, whether a patent or application for patent is in existence on such invention or not, and whether a patent or application for patent on such invention may come into existence or not.
Patents means, with respect to any Person, all of the following now owned or hereafter acquired by such Person: (a) all letters patent of the United States of America or the equivalent thereof in any other country or group of countries or any political subdivision thereof,, all registrations and recordings thereof, and all applications for letters patent of the United States of America or the equivalent thereof in any other country, including registrations, recordings and pending applications in the United States Patent and Trademark Office or any similar offices in any other country, and (b) all reissues, continuations, divisions, continuations-in-part, renewals or extensions thereof.
Payment Intangibles has the meaning set forth in the ABL Credit Agreement as in effect on the date hereof.
Person means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture, limited or unlimited liability company or other entity, or a government or any political subdivision or agency thereof.
Post-Petition Interest means any interest, fees, expenses or other amount that accrues or would have accrued after the commencement of any Insolvency Proceeding, whether or not allowed or allowable in any such Insolvency Proceeding.
Refinance means, in respect of any indebtedness, to extend, refinance, renew or replace, defease or refund such indebtedness, in each case, in whole or in part and/or with the same or different lenders, agents or arrangers and including any increase in the principal amount of the loans and commitments provided thereunder. Refinanced and Refinancing shall have correlative meanings.
Reorganization Plan means a plan of reorganization pursuant to Chapter 11 of the Bankruptcy Code.
Replacement ABL Credit Agreement means (i) any replacement or additional credit agreement entered into by the Grantors (or any of them) to Refinance the indebtedness outstanding under the then-extant ABL Credit Agreement or to incur new indebtedness that is intended to constitute First Priority Obligations or (ii) in the event that the First Priority Obligations Payment Date has occurred (other than as a result of an Enforcement Action), any replacement credit agreement entered into by the Grantors (or any of them), so long as, in the case of each of clauses (i) and (ii), any such agreement is permitted by any then-extant ABL Credit Agreement; provided that (w) the incurrence of such indebtedness and the Liens securing such indebtedness is permitted by (1) the then-extant Second Priority Documents and (2) this Agreement and (x) the Borrower shall have complied with Section 10 with respect thereto.
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Representative means the ABL Agent, the Term Loan/Notes Representative and the Junior Priority Representative.
Representative Joinder Agreement means a supplement to this Agreement substantially in the form of Annex II, appropriately completed.
Responsible Officer means the chief executive officer, president, chief financial officer, secretary, assistant secretary, treasurer, assistant treasurer or controller of a Grantor.
Second Priority Documents means the Term Loan/Notes Documents and the Junior Priority Documents.
Second Priority Intercreditor Agreement means any intercreditor agreement (other than this Agreement) entered into among the Term Loan/Notes Representative, the Junior Priority Representative and any other parties thereto and delivered to the Representatives in accordance with Section 10 hereof.
Second Priority Lien means any Lien on any ABL Priority Collateral securing the Second Priority Obligations.
Second Priority Obligations means the Term Loan/Notes Secured Obligations and the Junior Priority Secured Obligations. To the extent any payment with respect to any Second Priority Obligation (whether by or on behalf of any Grantor, as proceeds of security, enforcement of any right of setoff or otherwise) is declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor in possession, any First Priority Secured Party, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall, for the purposes of this Agreement and the rights and obligations of the First Priority Secured Parties and the Second Priority Secured Parties, be deemed to be reinstated and outstanding as if such payment had not occurred.
Second Priority Permitted Actions means the actions permitted to be taken by the Second Priority Secured Parties pursuant to Section 3.1(b) and/or Section 3.1(c).
Second Priority Representatives means the Term Loan/Notes Representative and the Junior Priority Representative.
Second Priority Secured Parties means each Second Priority Representative and the holders of the Second Priority Obligations.
Second Priority Security Documents means each agreement or document granting or purporting to grant a Lien on any ABL Priority Collateral to secure Second Priority Obligations, including the Term Loan/Notes Security Agreement.
Second Priority Standstill Period has the meaning specified in Section 3.1(b).
Secured Obligations means, collectively, the First Priority Obligations and the Second Priority Obligations.
Secured Parties means, collectively, the First Priority Secured Parties and the Second Priority Secured Parties.
Secured Supply Chain Obligations has the meaning set forth in the ABL Credit Agreement and shall include any substantially equivalent term in any Replacement ABL Credit Agreement.
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Secured Swap Obligations has the meaning set forth in the ABL Credit Agreement and shall include any substantially equivalent term in any Replacement ABL Credit Agreement.
Secured Treasury Services Obligations has the meaning set forth in the ABL Credit Agreement and shall include any substantially equivalent term in any Replacement ABL Credit Agreement.
Security Documents means, collectively, (i) the Security Documents (or like term) as defined in the ABL Credit Agreement, (ii) the Term Loan/Notes Security Documents (or like term) as defined in the Term Loan/Notes Pari Passu Intercreditor Agreement and (iii) the Junior Priority Security Documents (or like term) as defined in the Junior Priority Pari Passu Intercreditor Agreement.
Specified Term Loan/Notes Collateral has the meaning specified in the definition of Term Loan/Notes Exclusive Collateral.
Subsidiary means, with respect to any Person (the parent) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parents consolidated financial statements if such financial statements were prepared in accordance with generally accepted accounting principles in the United States of America as of such date, as well as any other corporation, limited liability company, partnership, association or other entity of which securities or other ownership interests representing more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned or held.
Term Loan Agent has the meaning set forth in the second WHEREAS clause of this Agreement.
Term Loan Agreement has the meaning set forth in the second WHEREAS clause of this Agreement.
Term Loan/Notes Authorized Representatives means the Term Loan Agent, the Trustee and each other Authorized Representative (as defined in the Term Loan/Notes Pari Passu Intercreditor Agreement) that becomes a party to the Term Loan/Notes Pari Passu Intercreditor Agreement following the date hereof.
Term Loan/Notes Documents has the meaning given such term by the Term Loan/Notes Pari Passu Intercreditor Agreement.
Term Loan/Notes Exclusive Collateral means (i) all Equipment, real estate (including leasehold interests therein), Intellectual Property, equity interests and intercompany indebtedness of the Grantors and their subsidiaries, Deposit Accounts (other than the Concentration Account and the Control Accounts) that contain solely the identifiable cash proceeds of property that was Term Loan/Notes Exclusive Collateral when such cash proceeds arose, Accounts that are the identifiable proceeds of the sale or other disposition of Term Loan/Notes Exclusive Collateral (collectively, Specified Term Loan/Notes Collateral ), and (ii) all other property or assets of the Grantors and their Subsidiaries, in each case under (i) or (ii), (x) on which Liens have been granted (or purported to be granted) to secure the Term Loan/Notes Secured Obligations, and (y) other than property or assets constituting ABL Priority Collateral. Terms used in the foregoing definition (or components of any such definition) which are defined in the Uniform Commercial Code and not otherwise defined in this Agreement have the meanings specified in the Uniform Commercial Code.
Term Loan/Notes Pari Passu Intercreditor Agreement means the Pari Passu Intercreditor
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Agreement, dated as of the date hereof and as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, by and among the Grantors, the Term Loan/Notes Representative, as Collateral Agent, JPMorgan Chase Bank, N.A., as Authorized Representative for the Term Loan Secured Parties (as defined therein), the Trustee, as Authorized Representative for the Notes Secured Parties (as defined therein) and each other Term Loan/Notes Authorized Representative from time to time party thereto.
Term Loan/Notes Representative has the meaning set forth in the first paragraph of this Agreement.
Term Loan/Notes Secured Obligations has the meaning set forth in the Term Loan/Notes Pari Passu Intercreditor Agreement.
Term Loan/Notes Secured Parties means the holders from time to time of the Term Loan/Notes Secured Obligations.
Term Loan/Notes Security Agreement has the meaning set forth in the sixth WHEREAS clause of this Agreement.
Trademark License means any agreement now or hereafter in existence granting to any Person, or pursuant to which any Person grants to any other Person, any right to use any Trademark.
Trademarks means, with respect to any Person, all of the following now owned or hereafter acquired by such Person: (a) all trademarks, service marks, trade names, trade dress, logos and other similar source or business identifiers, all registrations and recordings thereof, and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States: Patent and Trademark Office or any similar offices in any State of the United States of America or any other country or group of countries or any political subdivision thereof, and all extensions or renewals thereof and (b) all goodwill connected with the use thereof or symbolized thereby.
Trustee has the meaning set forth in the third WHEREAS clause of this Agreement.
Unasserted Contingent Obligations means, at any time, with respect to any Class of Secured Obligations, Secured Obligations of such Class for taxes, costs, indemnifications, reimbursements, damages and other liabilities (excluding (i) the principal of, and interest and premium (if any) on, and fees and expenses relating to, any Secured Obligation of such Class and (ii) contingent reimbursement obligations in respect of amounts that may be drawn under outstanding letters of credit) in respect of which no assertion of liability (whether oral or written) and no claim or demand for payment (whether oral or written) has been made (and, in the case of Secured Obligations of such Class for indemnification, no notice for indemnification has been issued by the indemnitee) at such time.
Uniform Commercial Code means the Uniform Commercial Code as in effect from time to time in the State of New York.
United States means the United States of America.
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SECTION 2. Lien Priorities.
2.1 Subordination of Liens .
(a) Any and all Second Priority Liens now existing or hereafter created or arising, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, are expressly junior in priority, operation and effect to any and all First Priority Liens now existing or hereafter created or arising, notwithstanding (i) anything to the contrary contained in any agreement or filing to which any Second Priority Secured Party may now or hereafter be a party, and regardless of the time, order or method of grant, attachment, recording or perfection of any financing statements or other security interests, assignments, pledges, deeds, mortgages and other liens, charges or encumbrances or any defect or deficiency or alleged defect or deficiency in any of the foregoing, (ii) any provision of the Uniform Commercial Code or any applicable law or any First Priority Document or Second Priority Document or any other circumstance whatsoever and (iii) the fact that any such First Priority Liens are (x) subordinated to any Lien securing any obligation of any Grantor other than the Second Priority Obligations or (y) otherwise subordinated, voided, avoided, invalidated or lapsed.
(b) No Secured Party shall object to or contest, or support any other Person in contesting or objecting to, in any proceeding (including without limitation, any Insolvency Proceeding), the validity, extent, perfection, priority or enforceability of any security interest in the ABL Priority Collateral granted to any other Secured Party. No Second Priority Secured Party shall take, or cause to be taken, any action the purpose of which is to make any Second Priority Lien, as applicable, pari passu with or senior to the First Priority Lien. It is understood that nothing in this Section 2.1(b) is intended to prohibit any Second Priority Secured Party from exercising any rights expressly granted to it under this Agreement.
(c) Notwithstanding any failure by any Secured Party to perfect any or all of its security interests in the ABL Priority Collateral or any avoidance, invalidation or subordination by any third party or court of competent jurisdiction of any or all of the security interests in the ABL Priority Collateral granted to such Secured Party, the priority and rights as among the Secured Parties with respect to the ABL Priority Collateral shall be as set forth herein.
2.2 Nature of Obligations . Each Secured Party acknowledges that certain of the Secured Obligations are revolving in nature and that the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed, and that the terms of such Secured Obligations may be modified, extended or amended from time to time, and that the aggregate amount of the Secured Obligations may be increased, replaced or Refinanced, in each event, without notice to or consent by the Secured Parties (except to the extent required under Section 6) and without affecting the provisions hereof. The lien priorities provided in Section 2.1 shall not be altered or otherwise affected by any such amendment, modification, supplement, extension, repayment, reborrowing, increase, replacement, renewal, restatement or Refinancing of or waiver, consent or accommodation with respect to any Secured Obligations, or any portion thereof.
2.3 Agreements Regarding Actions to Perfect Liens .
(a) Each Second Priority Representative agrees, on behalf of itself and the other Second Priority Secured Parties, that UCC-1 financing statements, filed or recorded by or on behalf of such Second Priority Representative or any other Second Priority Secured Party (or any agent or other representative thereof) in respect of ABL Priority Collateral shall be in form reasonably satisfactory to the First Priority Representative.
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(b) The First Priority Representative hereby acknowledges that, to the extent that it holds, or a third party holds on its behalf, physical possession of or control (as defined in the Uniform Commercial Code) over any ABL Priority Collateral pursuant to the First Priority Documents, such possession or control is also for the benefit of each Second Priority Representative and the other Second Priority Secured Parties, but solely as gratuitous bailee to the extent required to perfect their security interest in such ABL Priority Collateral. Nothing in the preceding sentence shall be construed to impose any duty on the First Priority Representative (or any third party acting on its behalf) or provide any Second Priority Representative or any other Second Priority Secured Party with any rights with respect to such ABL Priority Collateral beyond those specified in this Agreement and the Second Priority Documents; provided that subsequent to the occurrence of the First Priority Obligations Payment Date in each case at the Borrowers sole cost and expense, (i) the First Priority Representative shall (x) deliver to the Term Loan/Notes Representative (or, if no Term Loan/Notes Secured Obligations are then outstanding, the Junior Priority Representative), and each Grantor hereby directs such First Priority Representative to so deliver, any stock certificates or promissory notes evidencing or constituting ABL Priority Collateral in its possession or control together with any necessary endorsements to the extent required by the Second Priority Documents or (y) direct and deliver the ABL Priority Collateral as a court of competent jurisdiction otherwise directs and (ii) in the case of any ABL Priority Collateral consisting of deposit accounts or securities accounts as to which the First Priority Representative has control pursuant to an account control agreement, the First Priority Representative and the applicable Grantor shall take such actions, if any, as are required to cause control over such ABL Priority Collateral to become vested in the Term Loan/Notes Representative (or, if no Term Loan/Notes Secured Obligations are then outstanding, the Junior Priority Representative); provided further that the provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Priority Secured Parties, and the Second Priority Secured Parties and shall not impose on the First Priority Secured Parties any obligations in respect of the disposition of any ABL Priority Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party.
(c) Other than as set forth in the first proviso to the second sentence of the immediately preceding paragraph, any First Priority Secured Party with physical possession of or control over ABL Priority Collateral shall not have any duty or liability to protect or preserve any rights pertaining to any of such ABL Priority Collateral and, except for gross negligence or willful misconduct as determined pursuant to a final non-appealable order of a court of competent jurisdiction, each Second Priority Secured Party hereby waives and releases such Person from all claims and liabilities arising pursuant to such Persons role as gratuitous bailee with respect to such ABL Priority Collateral.
2.4 No New Liens . (a) The parties hereto agree that there shall be no Lien, and no Grantor shall have any right to create any Lien, on any asset of such Grantor consisting of or constituting ABL Priority Collateral securing any Secured Obligation of such Grantor if such asset is not also subject to a Lien securing each other Secured Obligation of such Grantor, except that (x) nothing contained in this Section 2.4 shall preclude (i) the First Priority Secured Parties from being granted Adequate Protection Liens on ABL Priority Collateral regardless of whether any Adequate Protection Liens thereon are granted to the Second Priority Secured Parties or (ii) the Second Priority Secured Parties from being granted Adequate Protection Liens in accordance with Section 5.4 and (y) this Section 2.4 shall be inapplicable to any Lien securing Secured Supply Chain Obligations, Secured Swap Obligations, Secured Treasury Services Obligations and/or Letters of Credit (including the cash collateralization thereof), and not any other Secured Obligations. If any Secured Party shall (nonetheless and in breach hereof) acquire or hold any Lien on any assets of any Grantor constituting ABL Priority Collateral securing any Secured Obligations, which assets are not also subject to a Lien securing the other Secured Obligations of such Grantor as required by the first sentence of this Section 2.4, then such Secured Party shall, without the need for any further consent of any other Secured Party, and notwithstanding anything to the contrary in
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any Loan Document, be deemed to hold and have held such Lien for the benefit of the Secured Parties holding Secured Obligations that are required to have a Lien on such assets by the first sentence of this Section 2.4 (and each such Lien so deemed to have been held shall be subject in all respects to the provisions of this Agreement, including without limitation the lien subordination provisions set forth in Section 2.1).
(b) Subject to Section 5.4(b), the ABL Secured Parties agree that they will not take or accept any Lien on any Term Loan/Notes Exclusive Collateral unless either (x) this Agreement is first amended in form and substance reasonably satisfactory to the Second Priority Representatives to provide the Second Priority Secured Parties with customary protections with respect to the Term Loan/Notes Exclusive Collateral reflecting the senior nature of the Second Priority Representatives Liens in the Term Loan/Notes Exclusive Collateral relative to the ABL Agents Liens in the Term Loan/Notes Exclusive Collateral or (y) the parties hereto otherwise enter into an intercreditor agreement in form and substance reasonably satisfactory to the Second Priority Representatives to provide the Second Priority Secured Parties with customary protections with respect to the Term Loan/Notes Exclusive Collateral reflecting the senior nature of the Second Priority Representatives Liens in the Term Loan/Notes Exclusive Collateral relative to the ABL Agents Liens in the Term Loan/Notes Exclusive Collateral.
SECTION 3. Enforcement Rights .
3.1 Exclusive Enforcement .
(a) Until the First Priority Obligations Payment Date, whether or not an Insolvency Proceeding has been commenced by or against any Grantor, the First Priority Secured Parties shall have the exclusive right to take and continue (or refrain from taking or continuing) any Enforcement Action with respect to the ABL Priority Collateral, without any consultation with or consent of any Second Priority Secured Party. Upon the occurrence and during the continuance of an event of default under the First Priority Documents (and subject to the provisions of the First Priority Documents), the First Priority Representative and the other First Priority Secured Parties may take and continue any Enforcement Action with respect to the applicable First Priority Obligations and the ABL Priority Collateral in such order and manner as they may determine in their sole discretion.
(b) Notwithstanding Section 3.1(a), the Term Loan/Notes Representative and the other Term Loan Notes Secured Parties (or, if no Term Loan/Notes Secured Obligations are then outstanding, the Junior Priority Representative and the other Junior Priority Secured Parties) may enforce any of their rights and exercise any of their remedies with respect to the ABL Priority Collateral after a period of 180 days has elapsed since the date on which the Term Loan/Notes Representative (or, if no Term Loan/Notes Secured Obligations are then outstanding, the Junior Priority Representative) has delivered to the First Priority Representative written notice of the acceleration or non-payment at maturity of the indebtedness then outstanding under any Term Loan/Notes Document (or, if no Term Loan/Notes Secured Obligations are then outstanding, the Junior Priority Documents) (the Second Priority Standstill Period ); provided, that notwithstanding the expiration of the Second Priority Standstill Period or anything to the contrary herein in no event shall any Second Priority Representatives or any other Second Priority Secured Party enforce or exercise any rights or remedies with respect to the ABL Priority Collateral if the First Priority Representative or any other First Priority Secured Party shall have commenced, and shall be diligently pursuing the enforcement or exercise of any rights or remedies with respect to the ABL Priority Collateral; provided further that the Second Priority Standstill Period shall be stayed, tolled and deemed not to have expired during the pendency of any Insolvency Proceeding or during any period of time for which any stay or other order prohibiting the exercise of remedies with respect to any ABL Priority Collateral has been entered by a court of competent jurisdiction and is in effect.
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(c) It is understood that Sections 3.1(a) and 3.1(b) do not restrict the following:
(i) in any Insolvency Proceeding commenced by or against any Grantor, any Second Priority Secured Party may file a proof of claim or statement of interest with respect to the ABL Priority Collateral;
(ii) the Second Priority Secured Parties may take any action (solely to the extent not adverse to the prior Liens securing the First Priority Obligations or the rights of the First Priority Representative or the First Priority Secured Parties to exercise remedies in respect thereof) in order to preserve, perfect or protect (but not enforce) the Second Priority Liens;
(iii) the Second Priority Secured Parties shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of the Second Priority Secured Parties, if any, in each case in accordance with the terms of this Agreement;
(iv) the Second Priority Secured Parties shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors or secured creditors of the Grantors with respect to the Term Loan/Notes Exclusive Collateral arising under either any bankruptcy, insolvency or similar law or applicable non-bankruptcy law, in each case in accordance with the terms of this Agreement;
(v) the Second Priority Secured Parties shall be entitled to exercise any of their rights or remedies (A) under the Second Priority Documents other than with respect to the ABL Priority Collateral subject to the other provisions of this Agreement and (B) with respect to any of the ABL Priority Collateral, after the termination of the Second Priority Standstill Period to the extent permitted by Section 3.1(b); and
(vi) the Second Priority Secured Parties may make a bid on all or any portion of the ABL Priority Collateral in any bankruptcy or non-bankruptcy auction or foreclosure proceeding or action; provided that the cash portion of any such bid is sufficient to result in a First Priority Obligations Payment Date.
3.2 Standstill and Waivers .
(a) Each Second Priority Representative, on behalf of itself and the other applicable Second Priority Secured Parties, agrees, for the benefit of the First Priority Representative and each other First Priority Secured Party, that until the First Priority Obligations Payment Date, subject to Section 3.1(c) and except in connection with the taking of any Second Priority Permitted Actions, it will not oppose, object to, interfere with, hinder or delay, in any manner, whether by judicial proceedings (including without limitation the filing of an Insolvency Proceeding) or otherwise, any foreclosure, sale, lease, exchange, transfer or other disposition of the ABL Priority Collateral pursuant to an Enforcement Action (or pursuant to a sale, lease, exchange or transfer as a result of which the Second Priority Lien is automatically released pursuant to Section 4.2(a)) or any other Enforcement Action taken by or on behalf of the First Priority Representative or any other First Priority Secured Party;
(b) Each Second Priority Representative, on behalf of itself and the other applicable Second Priority Secured Parties, agrees, for the benefit of the First Priority Representative and each other First Priority Secured Party, that until the First Priority Obligations Payment Date, it has no right
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to (x) direct the First Priority Representative or any other First Priority Secured Party to take any Enforcement Action with respect to the ABL Priority Collateral or (y) subject to Section 3.1(c) and except in connection with the taking of any Second Priority Permitted Actions, consent or object to the taking by the First Priority Representative or any other First Priority Secured Party of any Enforcement Action with respect to such ABL Priority Collateral or to the timing or manner thereof (or, to the extent it may have any such right described in this Section 3.2(b) as a junior lien creditor, they hereby irrevocably waive such right);
(c) Each Second Priority Representative, on behalf of itself and the other applicable Second Priority Secured Parties, agrees, for the benefit of the First Priority Representative and each other First Priority Secured Party, that until the First Priority Obligations Payment Date, it will not institute any suit or other proceeding or assert in any suit, Insolvency Proceeding or other proceeding any claim against the First Priority Representative or any other First Priority Secured Party seeking damages from or other relief by way of specific performance, instructions or otherwise, with respect to, and none of the First Priority Representative nor any other First Priority Secured Party shall be liable for, any action taken or omitted to be taken by the First Priority Representative or any First Priority Secured Party with respect to the ABL Priority Collateral or pursuant to the First Priority Documents;
(d) Each Second Priority Representative, on behalf of itself and the other applicable Second Priority Secured Parties, agrees, for the benefit of the First Priority Representative and each other First Priority Secured Party, that until the First Priority Obligations Payment Date, it will not take any Enforcement Action with respect to such ABL Priority Collateral, except as otherwise permitted under Section 3.1(b);
(e) Each Second Priority Representative, on behalf of itself and the other applicable Second Priority Secured Parties, agrees, for the benefit of the First Priority Representative and each other First Priority Secured Party, that until the First Priority Obligations Payment Date, it will not commence judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce their interest in or realize upon, the ABL Priority Collateral, in each case, except as otherwise permitted under Section 3.1(b); and
(f) Each Second Priority Representative, on behalf of itself and the other applicable Second Priority Secured Parties, agrees, for the benefit of the First Priority Representative and each other First Priority Secured Party, that until the First Priority Obligations Payment Date, it will not seek, and hereby waive any right, to have the ABL Priority Collateral or any part thereof marshaled upon any foreclosure or other disposition of the ABL Priority Collateral, except as otherwise permitted under Section 3.1(b).
3.3 Judgment Creditors . In the event that any Second Priority Secured Party becomes a judgment lien creditor as a result of its enforcement of its rights as an unsecured creditor in respect of its Second Priority Obligations (it being understood that any such party may exercise its rights and remedies as an unsecured creditor or secured creditor with respect to the Term Loan/Notes Exclusive Collateral against the relevant Grantors in accordance with applicable law; provided that with respect to such rights as an unsecured creditor such exercise of rights or remedies is not a violation of this Agreement), such judgment lien shall be subject to the terms of this Agreement for all purposes (including in relation to the First Priority Liens and the First Priority Obligations) to the same extent as all other Second Priority Liens (created pursuant to the Second Priority Documents) subject to this Agreement. Nothing in this Section 3.3 shall limit the rights, remedies and actions of the Term Loan/Notes Secured Parties with respect to Term Loan/Notes Exclusive Collateral.
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3.4 Cooperation . Each Second Priority Representative, on behalf of itself and the other applicable Second Priority Secured Parties, agrees it shall take such actions with respect to the ABL Priority Collateral as the First Priority Representative shall reasonably request in connection with an Enforcement Action by any First Priority Secured Party or the exercise by the First Priority Secured Parties of their rights set forth herein.
3.5 No Additional Rights for the Grantors Hereunder . Except as provided in Section 3.6, if any Secured Party shall enforce its rights or remedies in violation of the terms of this Agreement, no Grantor shall be entitled to use such violation as a defense to any action by any Secured Party, nor to assert such violation as a counterclaim or basis for set off or recoupment against any Secured Party.
3.6 Actions Upon Breach .
(a) If any Second Priority Secured Party commences or participates in any action or proceeding against any Grantor in respect of the ABL Priority Collateral contrary to this Agreement, such Grantor, with the prior written consent of the First Priority Representative, may interpose as a defense or dilatory plea the making of this Agreement, and any First Priority Secured Party may intervene and interpose such defense or plea in its or their name or in the name of such Grantor.
(b) If any Second Priority Secured Party (or any agent or other representative thereof) in any way takes, attempts to take or threatens to take any action with respect to the ABL Priority Collateral (including, without limitation, any attempt to enforce any remedy on the ABL Priority Collateral) in violation of this Agreement, or fails to take any action required by this Agreement, any First Priority Secured Party (in its or their own name or in the name of any Grantor) may obtain relief against such Second Priority Secured Party (or agent or other representative thereof) by injunction, specific performance and/or other appropriate equitable relief, it being understood and agreed by each Second Priority Representative on behalf of each other Second Priority Secured Party that (i) the damages of the First Priority Secured Parties from its actions may at that time be difficult to ascertain and may be irreparable and (ii) each Second Priority Secured Party waives any defense that any Grantor and/or the First Priority Secured Parties cannot demonstrate damage and/or can be made whole by the awarding of damages.
SECTION 4. Application of Proceeds of ABL Priority Collateral; Dispositions and Releases of ABL Priority Collateral; Inspection and Insurance.
4.1 Application of Proceeds; Turnover Provisions .
(a) All proceeds of ABL Priority Collateral (including any interest earned thereon) resulting from any Enforcement Action, and whether or not pursuant to an Insolvency Proceeding, shall be distributed as follows:
first , to the First Priority Representative to be applied in accordance with the then-extant First Priority Documents until the First Priority Obligations Payment Date has occurred;
second , to the Term Loan/Notes Representative (or, if no Term Loan/Notes Secured Obligations are then outstanding, to the Junior Priority Representative) to be applied in accordance with the then-extant Second Priority Documents until the Second Priority Obligations are indefeasibly paid in full; and
finally , to the relevant Grantor, or as a court of competent jurisdiction may direct.
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(b) Until the occurrence of the First Priority Obligations Payment Date, no Second Priority Secured Party may accept any ABL Priority Collateral, including any ABL Priority Collateral constituting proceeds (but excluding any Specified Term Loan/Notes Collateral in existence on the date hereof in which, as of the date hereof, the First Priority Lien thereon shall not have been perfected), in satisfaction, in whole or in part, of the Second Priority Secured Obligations in violation of Sections 4.1(a). Any ABL Priority Collateral, including any ABL Priority Collateral constituting proceeds, received by a Second Priority Secured Party that is not permitted to be received pursuant to the preceding sentence shall be segregated and held in trust and promptly turned over to the First Priority Representative to be applied in accordance with Section 4.1(a) in the same form as received, with any endorsements reasonably requested by the First Priority Representative, and each Second Priority Secured Party hereby authorizes the First Priority Representative to make any such endorsements as agent for the Second Priority Representatives (which authorization, being coupled with an interest, is irrevocable). Upon the turnover of such ABL Priority Collateral as contemplated by the immediately preceding sentence, the Second Priority Obligations purported to be satisfied by the payment of such ABL Priority Collateral shall be immediately reinstated in full as though such payment had never occurred.
4.2 Releases of Lien .
(a) Upon any release, sale or disposition of any ABL Priority Collateral that results in the release of the First Priority Lien on such ABL Priority Collateral and that is (i) permitted pursuant to the terms of the First Priority Documents or (ii) effected pursuant to an Enforcement Action, the Second Priority Lien on such ABL Priority Collateral (but not on any proceeds of such ABL Priority Collateral not required to be paid to the First Priority Secured Parties) shall be automatically and unconditionally released.
(b) Until the First Priority Obligations Payment Date, each Second Priority Representative shall promptly execute and deliver such release documents and instruments and shall take such further actions as the First Priority Representative shall reasonably request to evidence any release of the Second Priority Liens described in Section 4.2(a). Each Second Priority Representative hereby appoints the First Priority Representative and any officer or duly authorized person of the First Priority Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of such Second Priority Representative and in the name of such Second Priority Representative or in the First Priority Representatives own name; provided that such power of attorney must be exercised in the First Priority Representatives reasonable discretion, solely for the purposes of carrying out the terms of Section 4.2(a), to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be necessary to accomplish the purposes of Section 4.2(a), including the filing and recording by the First Priority Representative of any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable).
4.3 Inspection Rights and Insurance.
(a) Until the First Priority Obligations Payment Date, any First Priority Secured Party and its representatives and invitees may, to the extent expressly permitted by the First Priority Documents, inspect any ABL Priority Collateral.
(b) Until the First Priority Obligations Payment Date, the First Priority Representative will have the sole and exclusive right, subject to the rights of the Grantors under the applicable First Priority Documents, (i) to be named as additional insured and loss payee under any insurance policies
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maintained from time to time by any Grantor with respect to ABL Priority Collateral (except that, if the applicable insurer permits, any Second Priority Representative shall have the right to be named as an additional insured so long as its second lien status is identified in a manner reasonably satisfactory to the First Priority Representative); (ii) to adjust or settle any insurance policy or claim covering ABL Priority Collateral in the event of any loss thereunder; and (iii) to approve any award granted in any condemnation or similar proceeding affecting ABL Priority Collateral.
4.4 Tracing and Allocation of Proceeds . In the event that Proceeds of ABL Priority Collateral are received by any Secured Party in connection with a sale, transfer or other disposition of Collateral that directly or indirectly involves some or all of the ABL Priority Collateral and some or all of the Term Loan/Notes Exclusive Collateral (including, without limitation, by virtue of the sale or other disposition of a division or line of business or any capital stock, partnership, limited liability company interests or other equity interests of any Grantor (collectively, Equity Interests)) (it being understood and agreed that if a Grantor or a Subsidiary of a Grantor is sold or otherwise disposed of and such sale or other disposition is structured as a sale of Equity Interests, for purposes of this Agreement, such sale shall be treated as a sale of assets and the Proceeds shall be allocated as set forth in this SECTION 4.4), the portion of such Proceeds that shall be allocated as (x) proceeds of Accounts shall be an amount equal to the face amount of such Accounts and (y) proceeds of Inventory shall be an amount equal to the greater of the book value of such Inventory and the most recent appraised value thereof. For all purposes of this Agreement, ABL Priority Collateral and Term Loan/Notes Exclusive Collateral shall include the proceeds thereof received directly from such ABL Priority Collateral or Term Loan/Notes Exclusive Collateral including the sale or other disposition thereof; provided that any property or asset purchased by any Grantor (whether purchased with proceeds of ABL Priority Collateral or Term Loan/Notes Exclusive Collateral), shall not be traced and any such property or assets will either be ABL Priority Collateral or Term Loan/Notes Exclusive Collateral based on the nature of such collateral and not the source of funds or other proceeds used to purchase such property or asset; provided further that the foregoing shall not apply to (i) any property or asset purchased by any Grantor after the earlier of a Default (as defined in the ABL Credit Agreement) or a Default (as defined in the Term Loan Agreement or Indenture) or (ii) Accounts that are the identifiable proceeds of the sale or other disposition of Term Loan/Notes Exclusive Collateral or cash constituting identifiable proceeds of property that was Term Loan/Notes Exclusive Collateral when such cash proceeds arose held in Deposit Accounts (other than the Concentration Account and the Control Accounts) that contain solely such cash proceeds. The relative priorities of the First Priority Secured Parties and the Second Priority Secured Parties shall be determined in accordance with the preceding sentence.
SECTION 5. Insolvency Proceedings .
5.1 Filing of Motions . No Secured Party shall, in or in connection with any Insolvency Proceeding or otherwise, file any pleadings or motions, take any position at any hearing or proceeding of any nature, or otherwise take any action whatsoever, in each case to challenge, contest or otherwise object to the scope, validity, enforceability, perfection or priority of any Liens held by any other Secured Party and no Secured Party shall support any other Person doing any of the foregoing. No Second Priority Secured Party shall file any motion, take any position in any proceeding, or take any other action in respect of the ABL Priority Collateral except as explicitly permitted under this Agreement.
5.2 Financing Matters .
(a) If any Grantor becomes subject to any Insolvency Proceeding, and if the First Priority Representative consents (or does not object) to the use of ABL Priority Collateral (for the avoidance of doubt, including but not limited to the use of any ABL Priority Collateral that is cash collateral) by any Grantor during any Insolvency Proceeding or provides financing to any Grantor under the Bankruptcy
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Code ( DIP Financing ) secured by ABL Priority Collateral or consents (or does not object) to the provision of DIP Financing to any Grantor by any third party (any such DIP Financing, whether provided by the First Priority Secured Parties (or any of them) or any third party, being referred to herein as an ABL Priority DIP Financing ), then, so long as any Liens on the ABL Priority Collateral securing the DIP Financing are senior to or pari passu with the Liens securing the ABL Secured Obligations (or such DIP Financing refinances the ABL Secured Obligations), each Second Priority Representative agrees, on behalf of itself and the other applicable Second Priority Secured Parties, that each such Second Priority Secured Party (a) will be deemed to have consented to, will raise no objection to, and will not support any other Person objecting to, the use of ABL Priority Collateral or to such ABL Priority DIP Financing, (b) shall only request or accept adequate protection in connection with the use of ABL Priority Collateral or such ABL Priority DIP Financing as permitted by Section 5.4(a) below, (c) will subordinate (and will be deemed hereunder to have subordinated) the Second Priority Liens and any Adequate Protection Liens provided in respect thereof (i) to the Liens on ABL Priority Collateral securing such ABL Priority DIP Financing on the same terms and conditions as the First Priority Liens on ABL Priority Collateral are subordinated to such Liens on ABL Priority Collateral securing such ABL Priority DIP Financing (and such subordination will not alter in any manner the terms of this Agreement), (ii) to any adequate protection with respect to the ABL Priority Collateral provided to the First Priority Secured Parties, including, without limitation, Adequate Protection Liens on the ABL Priority Collateral provided to the First Priority Secured Parties and (iii) to any carve-out with respect to the ABL Priority Collateral for professional and United States Trustee fees agreed to by the First Priority Representative or the other First Priority Secured Parties and (d) agrees that any notice of such events found to be adequate by the bankruptcy court shall be adequate notice; provided that each Second Priority Representative and each Second Priority Secured Party reserves the right to object to any ABL Priority DIP Financing to the extent that such ABL Priority DIP Financing (x) seeks a Lien on Term Loan/Notes Exclusive Collateral that is senior to, or pari passu with, any Liens of the Second Priority Secured Parties on such Term Loan/Notes Exclusive Collateral or (y) compels any Grantor to seek confirmation of a specific Reorganization Plan that impairs the Term Loan/Notes Secured Obligations under Section 1124 of the Bankruptcy Code.
(b) If any Grantor becomes subject to any Insolvency Proceeding, then any Second Priority Representative or any other Second Priority Secured Parties may propose DIP Financing to such Grantor (i) secured by assets constituting ABL Priority Collateral so long as (A) the First Priority Representative has not proposed to provide DIP Financing to any Grantor secured by ABL Priority Collateral and has not consented (or objects) to the provision of DIP Financing to any Grantor by any third party and (B) the Liens securing such DIP Financing (or any Adequate Protection Liens granted in connection therewith) on ABL Priority Collateral are junior and subordinate to the First Priority Liens (and any Adequate Protection Liens granted to any First Priority Secured Parties) or (ii) secured by assets not constituting ABL Priority Collateral.
5.3 Relief From the Automatic Stay . Each Second Priority Representative agrees, on behalf of itself and the other applicable Second Priority Secured Parties, that until the First Priority Obligations Payment Date it will not (i) seek relief from the automatic stay or from any other stay in any Insolvency Proceeding or take any action in violation thereof, or support any other Person seeking such relief or taking such action, in each case in respect of the ABL Priority Collateral, without the prior written consent of the First Priority Representative or (ii) object to, contest, or support any other Person objecting to or contesting, any relief from the automatic stay or from any other stay in any Insolvency Proceeding requested by any First Priority Secured Party.
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5.4 Adequate Protection .
(a) Each Second Priority Representative, on behalf of itself and the other applicable Second Priority Secured Parties, agrees that none of them shall object to, contest, or support any other Person objecting to or contesting, (i) any request by the First Priority Representative or any other First Priority Secured Party for adequate protection with respect to the ABL Priority Collateral, including, without limitation, in the form of Adequate Protection Liens, superpriority claims, interest, fees, expenses or other amounts or (ii) any request by the First Priority Representative or any other First Priority Secured Party for adequate protection in the form of Adequate Protection Liens on Term Loan/Notes Exclusive Collateral that are junior and subordinate to the Liens of the Second Priority Secured Parties secured by such Term Loan/Notes Exclusive Collateral on terms substantially identical to the terms on which the Liens of the Second Priority Secured Parties are junior and subordinate to the Liens of the First Priority Secured Parties hereunder, (iii) any objection by the First Priority Representative or any other First Priority Secured Party to any motion, relief, action or proceeding based on a claim of a lack of adequate protection to the First Priority Secured Parties with respect to the ABL Priority Collateral or (iv) the payment of interest, fees, expenses or other amounts to the First Priority Representative or any other First Priority Secured Party under section 506(b) or 506(c) of the Bankruptcy Code or otherwise with respect to the ABL Priority Collateral. Solely to the extent that the First Priority Representative, on behalf of the First Priority Secured Parties, receives Adequate Protection Liens secured by ABL Priority Collateral, each Second Priority Representative shall be entitled to seek Adequate Protection Liens on such ABL Priority Collateral; provided that such Second Priority Representatives Adequate Protection Liens shall be junior and subordinate to the Adequate Protection Liens granted to the First Priority Representative on the same terms and conditions as are provided herein.
(b) Notwithstanding anything to the contrary in Section 5.4(a), (1) in any Insolvency Proceeding, the Second Priority Representatives and the other Second Priority Secured Parties may seek, support, accept or retain adequate protection in respect of assets of the Grantors or their Subsidiaries that do not constitute either ABL Priority Collateral or Term Loan/Notes Exclusive Collateral solely in the form of (x) an Adequate Protection Lien on such assets, subordinated to the First Priority Liens (including any Adequate Protection Liens in favor of any First Priority Secured Parties) on such assets and the Liens securing any DIP Financing provided by, or consented to by (including via non-objection), the First Priority Secured Parties on the same basis as the other Second Priority Liens are so subordinated to the First Priority Liens under this Agreement and (y) non-monetary adequate protection that is customarily provided in an Insolvency Proceeding, including, without limitation, the provision of information and the ability to monitor such collateral; (2) in the event any Second Priority Secured Party receives adequate protection in the form of Adequate Protection Liens on assets of the Grantors other than the Term Loan/Notes Exclusive Collateral, then each Second Priority Representative, on behalf of itself and the other applicable Second Priority Secured Parties, (i) consents to the First Priority Representative having a senior Adequate Protection Lien on such collateral as security for the First Priority Obligations and that any Adequate Protection Liens granted to the Second Priority Secured Parties, on any such additional collateral shall be subordinated to the Liens on such collateral securing the First Priority Obligations and any DIP Financing provided by, or consented to by (including via non-objection), the First Priority Secured Parties with respect to such collateral (and all obligations relating thereto) and any Adequate Protection Liens granted to the First Priority Secured Parties, with such subordination to be on the same terms that the other Second Priority Liens are subordinated to such First Priority Liens under this Agreement and (ii) agrees that, if the bankruptcy court does not grant the First Priority Secured Parties a senior Adequate Protection Lien on such additional collateral, then the Second Priority Secured Parties shall be deemed to hold and have held their Adequate Protection Lien on such additional collateral for the benefit of the First Priority Secured Parties (and each such Lien so deemed to have been held shall be
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subject in all respects to the provisions of this Agreement, including without limitation the lien subordination provisions set forth in Section 2.1(a)) and, until the First Priority Obligations Payment Date, any distributions in respect of such additional collateral received by the Second Priority Secured Parties shall be segregated and held in trust and promptly turned over to the First Priority Representative to repay the First Priority Obligations; and (3) in any Insolvency Proceeding and notwithstanding anything to the contrary in Section 2.4, the First Priority Representative and the other First Priority Secured Parties may seek, support, accept or retain adequate protection in respect of Term Loan/Notes Exclusive Collateral solely in the form of (x) an Adequate Protection Lien on such assets, subordinated to the Liens of the Second Priority Secured Parties (including any Adequate Protection Liens in favor of any Second Priority Secured Parties) on such assets and the Liens securing any DIP Financing provided by, or consented to by (including via non-objection), the Second Priority Secured Parties on terms substantially identical to the terms on which the Second Priority Liens are subordinated to the First Priority Liens under this Agreement and (y) non-monetary adequate protection that is customarily provided in an Insolvency Proceeding, including, without limitation, the provision of information and the ability to monitor such collateral. Upon the turnover of such distributions as contemplated by clause (2)(ii) of the immediately preceding sentence, the Second Priority Obligations purported to be satisfied by such distributions shall be immediately reinstated in full as though such payment had never occurred.
(c) No Second Priority Secured Party will assert or enforce any claim made under section 506(c) of the Bankruptcy Code with respect to ABL Priority Collateral
5.5 Avoidance Issues .
(a) If any First Priority Secured Party is required in any Insolvency Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of any Grantor, because such amount was avoided or ordered to be paid or disgorged for any reason, including without limitation because it was found to be a fraudulent or preferential transfer, any amount (a Recovery ), whether received as proceeds of security, enforcement of any right of set-off or otherwise, then the First Priority Obligations shall be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred, and the First Priority Obligations Payment Date shall be deemed not to have occurred. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. The Second Priority Secured Parties agree that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation with respect to the ABL Priority Collateral made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement.
5.6 Asset Dispositions in an Insolvency Proceeding .
(a) Each Second Priority Representative, on behalf of itself and the other applicable Second Priority Secured Parties, agrees that (i) it shall not, in an Insolvency Proceeding, oppose any sale or disposition of any ABL Priority Collateral that is supported by the First Priority Secured Parties, and (ii) it will be deemed, in its capacity as a holder of a Lien on such ABL Priority Collateral, to have consented under Section 363 of the Bankruptcy Code (and otherwise) to any such sale supported by the First Priority Secured Parties and to have released their Liens in the ABL Priority Collateral (but not on any proceeds of such ABL Priority Collateral not required to be paid to the First Priority Secured Parties, which Liens on such proceeds, if any, shall remain subject to the provisions of this Agreement); provided that notwithstanding the deemed consent of the Second Priority Secured
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Parties (or the Second Priority Representatives on their behalf) to such sale or disposition of such assets, any Second Priority Representative or the Second Priority Secured Parties, may assert any objection or opposition that could be asserted by an unsecured creditor or as a secured creditor with a Lien solely on the Term Loan/Notes Exclusive Collateral in any such Insolvency Proceeding.
5.7 Separate Grants of Security and Separate Classification . Each of the ABL Agent, on behalf of itself and the ABL Secured Parties and each Second Priority Representative, on behalf of itself and the applicable Second Priority Secured Parties, acknowledges and agrees that (i) the grant of Liens on the ABL Priority Collateral securing the ABL Secured Obligations constitutes a separate and distinct grant of Liens from the grant of Liens on the ABL Priority Collateral securing the Second Priority Secured Obligations, (ii) because of, among other things, their differing rights in the ABL Priority Collateral, each of the ABL Secured Obligations, and the Second Priority Secured Obligations is fundamentally different and must be separately classified in any plan of reorganization proposed or confirmed in an Insolvency Proceeding and (iii) it will object to, and not vote in favor of, any plan of reorganization that does not separately classify the ABL Secured Obligations and the Second Priority Secured Obligations. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if a court of competent jurisdiction holds that the claims of the First Priority Secured Parties and the claims held by any Second Priority Secured Parties in respect of the ABL Priority Collateral constitute only one secured claim (rather than separate classes of senior and one or more junior priority secured claims), then the Second Priority Secured Parties hereby acknowledge and agree that all distributions in respect of ABL Priority Collateral shall be made as if there were separate classes of senior and junior secured claims against the relevant Grantors in respect of the ABL Priority Collateral (with the effect being that, to the extent that the aggregate value of the ABL Priority Collateral is sufficient (for this purpose ignoring all claims held by the Second Priority Secured Parties), the First Priority Secured Parties shall be entitled to receive, in addition to distributions to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of Post-Petition Interest (at the applicable non-default rate) before any distribution in respect of ABL Priority Collateral is made in respect of the claims held by the Second Priority Secured Parties), with the Second Priority Secured Parties hereby acknowledging and agreeing to turn over to the First Priority Secured Parties distributions otherwise received or receivable by them in respect of the ABL Priority Collateral to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of the Second Priority Secured Parties with respect to the ABL Priority Collateral.
5.8 Plans of Reorganization .
(a) Notwithstanding any other provision of this Agreement, but subject to Section 5.7, no Second Priority Secured Party or First Priority Secured Party shall be prevented from exercising its rights to vote in favor of or against, or object to or contest, any plan of reorganization in any Insolvency Proceeding of any Grantor.
(b) If, in any Insolvency Proceeding, debt obligations of the reorganized debtor secured by Liens upon the ABL Priority Collateral are distributed, pursuant to a plan of reorganization or similar dispositive restructuring plan, on account of ABL Secured Obligations and on account of Second Priority Secured Obligations, then, to the extent the debt obligations distributed on account of the ABL Secured Obligations and on account of the Second Priority Secured Obligations are secured by Liens upon the same ABL Priority Collateral, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the Liens securing such debt obligations.
5.9 No Waiver of Rights of First Priority Secured Parties . Nothing contained herein shall prohibit or in any way limit the First Priority Representative or any other First Priority Secured Party from objecting in any Insolvency Proceeding or otherwise to any action taken by any Second Priority Secured Party other than any action taken by such Second Priority Secured Party that is not prohibited by this Agreement.
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5.10 Effectiveness in Insolvency Proceedings .
(a) This Agreement, which the parties hereto expressly acknowledge is a subordination agreement under Section 510(a) of the Bankruptcy Code, shall be effective before, during and after the commencement of an Insolvency Proceeding. All references in this Agreement to any Grantor shall include such Grantor as a debtor-in-possession and any receiver or trustee for such Grantor in any Insolvency Proceeding, and the rights and obligations hereunder of the First Priority Secured Parties and the Second Priority Secured Parties shall be fully enforceable as between such parties regardless of the pendency of Insolvency Proceedings or any related limitations on the enforcement of this Agreement against any Grantor.
SECTION 6. Matters Relating to Loan Documents .
6.1 General .
(a) Each of the ABL Agent, on behalf of itself and the ABL Secured Parties and each Second Priority Representative, on behalf of itself and the applicable Second Priority Secured Parties, and each Grantor agrees that it shall not at any time execute or deliver any amendment or other modification to any of the First Priority Documents or the Second Priority Documents in violation of this Agreement.
(b) Until the First Priority Obligations Payment Date, in the event the First Priority Representative enters into any amendment, waiver or consent in respect of any of the First Priority Security Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First Priority Security Document or changing in any manner the rights of any parties thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Comparable Second Priority Security Document relating to the ABL Priority Collateral without the consent of or action by any Second Priority Secured Party (with each First Priority Security Document as so amended, and each Second Priority Security Document as so amended, continuing to be subject to the terms hereof); provided that (i) no such amendment, waiver or consent shall have the effect of removing assets subject to the Lien of any Second Priority Security Document, except to the extent that a release of such Lien is permitted by Section 4.2, (ii) any such amendment, waiver or consent that materially and adversely affects the rights of the Second Priority Secured Parties and does not affect the First Priority Secured Parties in a like or similar manner shall not apply to the Second Priority Security Documents without the consent of the applicable Second Priority Representative and (iii) notice of such amendment, waiver or consent shall be given to each Second Priority Representative by the First Priority Representative no later than 30 days after its effectiveness, provided that the failure to give such notice shall not affect the effectiveness and validity thereof or cause a default by any Grantor under the Loan Documents. Each of the Grantors and the Representatives agrees that each Second Priority Security Document shall contain the applicable provisions set forth on Annex I hereto, or similar provisions approved by the Representatives, which approval shall not be unreasonably withheld or delayed.
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SECTION 7. Cooperation with Respect to ABL Priority Collateral .
7.1 Consent to License to Use Intellectual Property . Each Second Priority Representative (and any purchaser, assignee or transferee of assets as provided in Section 7.3 (a) consents (without any representation, warranty or obligation whatsoever) to the grant by any Grantor to the ABL Agent of a non-exclusive, royalty-free license to use during the ABL Priority Collateral Processing and Sale Period any Patents, Patent Licenses, Trademarks, Trademark Licenses or proprietary information of such Grantor that is Term Loan/Notes Exclusive Collateral (or any Patent, Patent License, Trademark, Trademark License or proprietary information acquired by such purchaser, assignee or transferee from any Grantor, as the case may be) and (b) grants, in its capacity as a secured party (or as a purchaser, assignee or transferee, as the case may be), to the ABL Agent a non-exclusive royalty-free license to use during the ABL Priority Collateral Processing and Sale Period, any Patent, Patent License, Trademark, Trademark License or proprietary information that is Term Loan/Notes Exclusive Collateral (or subject to such purchase, assignment or transfer, as the case may be), in each case in connection with the enforcement of any Lien held by the ABL Agent upon any inventory or other ABL Priority Collateral of any Grantor and to the extent the use of such Patent, Patent License, Trademark, Trademark License or proprietary information is necessary or appropriate, in the good faith opinion of the ABL Agent, to process, ship, produce, store, complete, supply, lease, sell or otherwise dispose of any such inventory in any lawful manner.
7.2 Access to Information .
(a) If any Second Priority Representative takes actual possession of any documentation that is the property of a Grantor (whether such documentation is in the form of a writing or is stored in any data equipment or data record in the physical possession of a Second Priority Representative), then upon request of the ABL Agent and reasonable advance notice, such Second Priority Representative will permit the ABL Agent or its representative to inspect and copy such documentation if and to the extent the ABL Agent certifies to such Second Priority Representative that:
(i) such documentation contains or may contain information necessary or appropriate, in the good faith opinion of the ABL Agent, to the enforcement of the ABL Agents Liens upon any ABL Priority Collateral; and
(ii) the ABL Agent and the ABL Secured Parties are entitled to receive and use such information under applicable law and, in doing so, will comply with all obligations imposed by law or contract in respect of the disclosure or use of such information.
7.3 Access to Property to Process and Sell Inventory .
(a) (i) If the ABL Agent commences any action or proceeding with respect to any of its rights or remedies (including, but not limited to, any action of foreclosure), enforcement, collection or execution with respect to the ABL Priority Collateral ( ABL Priority Collateral Enforcement Actions ) or if any Second Priority Representative commences any action or proceeding with respect to any of its rights or remedies (including, but not limited to, any action of foreclosure), enforcement, collection or execution with respect to the Term Loan/Notes Exclusive Collateral (or a purchaser at a foreclosure sale conducted in foreclosure of Term Loan/Notes Exclusive Collateral takes actual or constructive possession of the Term Loan/Notes Exclusive Collateral of any Grantor) ( Term Loan/Notes Collateral Enforcement Actions ), then each Second Priority Representative, and the Second Priority Secured Parties (subject to, in the case of any Term Loan/Notes Collateral Enforcement Action, a prior written request by the ABL
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Agent to such Second Priority Representative (the Term Loan/Notes Collateral Enforcement Action Notice )) shall (x) cooperate with the ABL Agent (and with its officers, employees, representatives and agents) at the cost and expense of the ABL Secured Parties (subject to the Grantors reimbursement and indemnity obligations with respect thereto under the Loan Documents) in its efforts to conduct ABL Priority Collateral Enforcement Actions in the ABL Priority Collateral and to finish any work-in-process and process, ship, produce, store, complete, supply, lease, sell or otherwise handle, deal with, assemble or dispose of, in any lawful manner, the ABL Priority Collateral, (y) not hinder or restrict in any respect the ABL Agent from conducting ABL Priority Collateral Enforcement Actions in the ABL Priority Collateral or from finishing any work-in-process or processing, shipping, producing, storing, completing, supplying, leasing, selling or otherwise handling, dealing with, assembling or disposing of, in any lawful manner, the ABL Priority Collateral, and (z) to the extent within the power or control of such Second Priority Secured Party to do so, permit the ABL Agent, its employees, agents, advisers and representatives, at the cost and expense of the ABL Secured Parties (subject to the Grantors reimbursement and indemnity obligations with respect thereto under the Loan Documents), to enter upon and use the Term Loan/Notes Exclusive Collateral (including, without limitation, equipment, processors, computers and other machinery related to the storage or processing of records, documents or files and intellectual property), for a period (I) commencing on the earlier of the date of the initial ABL Priority Collateral Enforcement Action or the date of delivery of the Term Loan/Notes Collateral Enforcement Action Notice, as the case may be, and (II) ending on the earlier of (A) the date occurring 180 days thereafter, (B) the date on which all of the ABL Priority Collateral (other than an immaterial amount thereof (as reasonably determined by the ABL Agent)) located on such premises is sold, assigned, collected or transferred by the ABL Agent and (C) the First Priority Obligations Payment Date (such period, as the same may be extended with the written consent of the Term Loan/Notes Representative (or, if no Term Loan/Notes Secured Obligations are then outstanding, to the Junior Priority Representative) as contemplated by the final sentence of this Section 7.3(a), the ABL Priority Collateral Processing and Sale Period ), for purposes of: assembling and storing the ABL Priority Collateral and completing the processing of and turning into finished goods any ABL Priority Collateral consisting of work-in-process;
(A) | selling any or all of the ABL Priority Collateral located in or on such Term Loan/Notes Exclusive Collateral, whether in bulk, in lots or to customers in the ordinary course of business or otherwise; |
(B) | removing and transporting any or all of the ABL Priority Collateral located in or on such Term Loan/Notes Exclusive Collateral; |
(C) | otherwise processing, shipping, producing, storing, completing, supplying, leasing, selling or otherwise handling, dealing with, assembling or disposing of, in any lawful manner, the ABL Priority Collateral; and/or |
(D) | taking reasonable actions to protect, secure, and otherwise enforce the rights or remedies of the ABL Secured Parties and/or the ABL Agent (including with respect to any ABL Priority Collateral Enforcement Actions) in and to the ABL Priority Collateral; |
provided, however , that nothing contained in this Agreement shall restrict the rights of any Second Priority Representative from selling, assigning or otherwise transferring any Term Loan/Notes Exclusive Collateral prior to the expiration of such ABL Priority Collateral Processing and Sale Period if the
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purchaser, assignee or transferee thereof agrees in writing (for the benefit of the ABL Agent and the ABL Secured Parties) to be bound by the provisions of this Section 7.3 and Section 7.1. If any stay or other order prohibiting the exercise of remedies with respect to the ABL Priority Collateral has been entered by a court of competent jurisdiction, such ABL Priority Collateral Processing and Sale Period shall be tolled during the pendency of any such stay or other order. The Term Loan/Notes Representative (or, if no Term Loan/Notes Secured Obligations are then outstanding, to the Junior Priority Representative), upon request by the ABL Agent, may in its sole discretion extend the ABL Priority Collateral Processing and Sale Period for an additional period of time.
(ii) During the period of actual occupation, use and/or control by the ABL Secured Parties and/or the ABL Agent (or their respective employees, agents, advisers and representatives) of any Term Loan/Notes Exclusive Collateral, the ABL Secured Parties and the ABL Agent shall (i) be responsible for the ordinary course third-party expenses related thereto, including costs with respect to heat, light, electricity, water and real property taxes with respect to that portion of any premises so used or occupied and (ii) be obligated to repair at their expense any physical damage to such Term Loan/Notes Exclusive Collateral resulting from such occupancy, use or control or removal of ABL Priority Collateral, and to leave such Term Loan/Notes Exclusive Collateral in substantially the same condition as it was at the commencement of such occupancy, use or control, ordinary wear and tear excepted. Notwithstanding the foregoing, in no event shall the ABL Secured Parties or the ABL Agent have any liability to any Second Priority Representative or to any other Second Priority Secured Party with respect to the Term Loan/Notes Exclusive Collateral pursuant to this Section 7.3(a) as a result of any condition (including any environmental condition, claim or liability) on or with respect to the Term Loan/Notes Exclusive Collateral existing prior to the date of the exercise by the ABL Secured Parties (or the ABL Agent, as the case may be) of their rights under this Section 7.3(a) and the ABL Secured Parties shall have no duty or liability to maintain the Term Loan/Notes Exclusive Collateral in a condition or manner better than that in which it was maintained prior to the use thereof by the ABL Secured Parties, or for any diminution in the value of the Term Loan/Notes Exclusive Collateral that results from ordinary wear and tear resulting from the use of the Term Loan/Notes Exclusive Collateral by the ABL Secured Parties in the manner and for the time periods specified under this Section 7.3(a). Without limiting the rights granted in this Section 7.3(a), the ABL Secured Parties and the ABL Agent shall cooperate with the Term Loan/Notes Representative, and the other Term Loan/Notes Secured Parties (or, if no Term Loan/Notes Secured Obligations are then outstanding, the Junior Priority Representative and the other Junior Priority Secured Parties) in connection with any efforts made by such Second Priority Secured Parties to sell the Term Loan/Notes Exclusive Collateral.
7.4 Grantor Consent . The Borrower and the other Grantors consent to the performance by each Second Priority Secured Party of the obligations set forth in this Section 7 and acknowledge and agree that neither any Second Priority Representative nor any other Second Priority Secured Party shall ever be accountable or liable (except to the extent resulting from such partys gross negligence or willful misconduct) for any action taken or omitted by the ABL Agent or any ABL Secured Party or its or any of their officers, employees, agents successors or assigns in connection therewith or incidental thereto or in consequence thereof by the ABL Agent or any ABL Secured Party or its or any of their officers, employees, agents, successors or assigns or any other damage to or misuse or loss of any property of the Grantors as a result of any action taken or omitted by the ABL Agent or its officers, employees, agents, successors or assigns.
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SECTION 8. Reliance; Waivers; etc.
8.1 Reliance. The Second Priority Documents are deemed to have been executed and delivered, and all extensions of credit thereunder and under the First Priority Documents are deemed to have been made or incurred, in reliance upon this Agreement. Each Second Priority Representative, on behalf of itself and the other applicable Second Priority Secured Parties, expressly waives all notice of the acceptance of and reliance on this Agreement by the other Secured Parties.
8.2 No Warranties or Liability . Each of the First Priority Representative and each Second Priority Representative acknowledges and agrees that neither of them has made any representation or warranty with respect to the execution, validity, legality, completeness, collectibility or enforceability of any First Priority Document or any Second Priority Document. Except as otherwise provided in this Agreement, each of the First Priority Representative and the Second Priority Representatives will be entitled to manage and supervise their respective extensions of credit to any Grantor (if any) in accordance with the First Priority Documents and the Second Priority documents, respectively, law and their usual practices, modified from time to time as they deem appropriate.
8.3 No Waivers . No right or benefit of any party hereunder shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of such party or any other party hereto or by any noncompliance by any Grantor with the terms and conditions of any of the First Priority Documents or any of the Second Priority Documents.
SECTION 9. Obligations Unconditional .
All rights, agreements and obligations of the First Priority Representative and First Priority Secured Parties and each Second Priority Representative and the Second Priority Secured Parties, in each case with respect to the ABL Priority Collateral, and the Grantors hereunder, to the extent applicable, shall remain in full force and effect irrespective of:
(i) any lack of validity or enforceability of any First Priority Document or Second Priority Document;
(ii) any change in the time, place or manner of payment of, or in any other term of, all or any portion of the First Priority Obligations or Second Priority Obligations, or any amendment, waiver or other modification, whether by course of conduct or otherwise, or any Refinancing, replacement, refunding or restatement of any First Priority Document or Second Priority Document;
(iii) any exchange, release, voiding, avoidance or non-perfection of any security interest in any ABL Priority Collateral or any other collateral, or any release, amendment, waiver or other modification, whether by course of conduct or otherwise, or any Refinancing, replacement, refunding or restatement of all or any portion of the First Priority Obligation or Second Priority Obligations or any guarantee or guaranty thereof; or
(iv) any other circumstances that otherwise might constitute a defense available to, or a discharge of, any Grantor in respect of (a) the First Priority Obligations (other than a defense that the First Priority Obligations have been paid in full) or (b) the Second Priority Obligations (other than a defense that the Second Priority Obligations have been paid in full) or of any of the First Priority Representative, the Second Priority Representatives or any Grantor, to the extent applicable, in respect of this Agreement.
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SECTION 10. Joinder of Representative for Replacement ABL Credit Agreement and Representative for Junior Priority Secured Obligations .
(a) The Borrower may from time to time, subject to any limitations contained in the ABL Loan Documents and the Second Priority Documents in effect at such time, provide for a Replacement ABL Credit Agreement and the Liens securing such Replacement ABL Credit Agreement to become subject to this Agreement or for a Junior Priority Representative and the Liens on the ABL Priority Collateral of such Junior Priority Representative to become subject to this Agreement by delivering to each Representative party hereto at such time a certificate of a Responsible Officer of the Borrower:
(i) describing the agreement being designated as a Replacement ABL Credit Agreement and the obligations in connection with such agreement being designated as First Priority Obligations or the indebtedness and obligations being designated as Junior Priority Secured Obligations that will initially constitute such hereunder (as the case may be);
(ii) certifying that the designation of such Replacement ABL Credit Agreement or Junior Priority Secured Obligations (as the case may be), the creation of the Liens securing the First Lien Obligations under such Replacement ABL Credit Agreement or such Junior Priority Secured Obligations (as the case may be) do not violate or result in a default under any provision of any Loan Document in effect at such time; and
(iii) attaching a fully completed Representative Joinder Agreement executed and delivered by the Representative with respect to such Replacement ABL Credit Agreement or Junior Priority Secured Obligations (as the case may be) and, in the case of the joinder of a Junior Priority Representative, attaching a copy of the Junior Priority Pari Passu Intercreditor Agreement and any Second Priority Intercreditor Agreement.
Upon the delivery of such certificate and the related attachments as provided above, (i) in the case of a Replacement ABL Credit Agreement, such Replacement ABL Credit Agreement will become a Replacement ABL Credit Agreement for all purposes of this Agreement and the obligations in connection with such Agreement shall become First Lien Obligations and (ii) in the case of a joinder of a Junior Priority Representative, such Junior Priority Representative will become the Junior Priority Representative for all purposes of this Agreement.
SECTION 11. Miscellaneous .
11.1 Conflicts; Agreement Solely to Define Relative Rights . Except as otherwise provided herein, in the event of any conflict between the provisions of this Agreement and the provisions of any First Priority Document or any Second Priority Document, the provisions of this Agreement shall govern. This Agreement is entered into solely for purposes of defining the relative rights of the First Lien Secured Parties, on the one hand, and the Second Lien Secured Parties, on the other. The relative rights of the Term Loan/Notes Secured Parties, on the one hand, and the Junior Priority Secured Parties, on the other hand, shall also be subject to the terms of the Second Priority Intercreditor Agreement. For purposes of determining whether any Term Loan/Notes Secured Obligations are outstanding for any purposes of this Agreement, the First Priority Representative shall be fully protected in assuming that Term Loan/Notes Secured Obligations are outstanding until such time as it receives a certificate signed by the Term Loan/Notes Representative stating that no Term Loan/Notes Secured Obligations are then outstanding.
11.2 Continuing Nature of Provisions . This Agreement shall continue to be effective, and shall not be revocable by any party hereto, until the First Priority Obligations Payment Date shall have occurred. This is a continuing agreement and the First Priority Secured Parties and the Second Priority
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Secured Parties may continue, at any time and without notice to the other parties hereto, to extend credit and other financial accommodations, lend monies and provide indebtedness to, or for the benefit of, any Grantor on the faith hereof.
11.3 Amendments; Waivers .
No amendment or modification of any of the provisions of this Agreement (other than pursuant to a Representative Joinder Agreement or a Grantor Joinder Agreement) shall be effective unless the same shall be in writing and signed by the First Priority Representative and each Second Priority Representative and, in the case of amendments or modifications that could reasonably be expected to affect the rights, duties or interests of any Grantor, the Borrower.
11.4 Information Concerning Financial Condition of the Borrower and the other Grantors . The First Priority Representative, on behalf of itself and the other First Priority Secured Parties and each Second Priority Representative, on behalf of itself and the other applicable Second Priority Secured Parties, hereby agree that each Secured Party assumes responsibility for keeping itself informed of the financial condition of the relevant Grantors and all other circumstances bearing upon the risk of nonpayment of the First Priority Obligations or the Second Priority Obligations. The First Priority Representative, on behalf of itself and the other First Priority Secured Parties and each Second Priority Representative, on behalf of itself and the other applicable Second Priority Secured Parties, hereby agree that no party shall have any duty to advise any other party of information known to it regarding such condition or any such circumstances. In the event any Secured Party, in its sole discretion, undertakes at any time or from time to time to provide any information to any other Secured Party, it shall be under no obligation (a) to provide any such information to such other party or any other party on any subsequent occasion, (b) to undertake any investigation not a part of its regular business routine, or (c) to disclose any other information. Further, nothing in this Agreement shall impose a duty on the Term/Loan Notes Representative to keep itself informed of the financial condition of the Grantors or of other circumstances bearing upon the risk of nonpayment of the First Priority Obligations, Second Priority Obligations or any Junior Priority Secured Obligations beyond what is required pursuant to the Second Priority Documents.
11.5 Applicable Law . THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
11.6 Jurisdiction; Consent to Service of Process; Process Agent .
(a) EACH PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN THE BOROUGH OF MANHATTAN AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
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(b) EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(c) EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.7. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
11.7 Notices .
Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to a Grantor, to it c/o J. C. Penney Corporation, Inc., 6501 Legacy Drive, Mail Code 1304, Plano, TX 75024, Attention of the Treasurer (Telecopy No. (972) 431-2044), with a copy to the General Counsel;
(ii) if to the ABL Agent under the ABL Credit Agreement in effect on the date hereof, to Wells Fargo Bank, National Association, One Boston Place, 19th Floor, Boston, Massachusetts 02108, Attention of Portfolio Manager-JC Penney (Telecopy No. (877) 353-3045);
(iii) if to the Term Loan/Notes Representative, to Wilmington Trust, National Association, Global Capital Markets, 50 South Sixth Street, Suite 1290, Minneapolis, Minnesota 55402, Attention: J.C. Penney Collateral Agency Administrator;
(iv) if to any other Representative, to the address designated for notices to such Representative in the applicable Representative Joinder Agreement pursuant to which such Representative shall have become a party hereto, or
(v) with respect to any party hereto, to such other address as may be designated by such party in a written notice to each other party hereto.
11.8 Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and each of the First Priority Secured Parties and the Second Priority Secured Parties and their respective successors and assigns, and nothing herein is intended, or shall be construed to give, any other Person any right, remedy or claim under, to or in respect of this Agreement or any ABL Priority Collateral. All references to any Grantor shall include any Grantor as debtor-in-possession and any receiver or trustee for such Grantor in any Insolvency Proceeding.
11.9 Headings . Section headings used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
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11.10 Severability . In the event any one or more of the provisions contained in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
11.11 Counterparts; Integration; Effectiveness . This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page to this Agreement by telecopy or electronic image scan transmission (such as a pdf file) shall be effective as delivery of a manually executed counterpart of this Agreement. This Agreement shall become effective when it shall have been executed by each party hereto. For the avoidance of doubt, upon the effectiveness of this Agreement, the Intercreditor and Collateral Cooperation Agreement, dated as of May 22, 2013, by and among Wells Fargo Bank, National Association (as successor to JPMorgan Chase Bank, N.A.) and Wilmington Trust, National Association (as successor to Goldman Sachs Bank USA) will be of no further force and effect.
11.12 Waiver of Jury Trial . EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.13 Additional Grantors . The Borrower and each other Grantor on the date of this Agreement will constitute the original Grantors party hereto. The original Grantors will cause each Person that becomes a Grantor after the date hereof to contemporaneously become a party hereto (as a Grantor) by executing and delivering a Grantor Joinder Agreement to each Representative. The parties hereto agree that, notwithstanding any failure to take the actions required by the immediately preceding sentence, each Person that becomes a Grantor at any time (and any security granted by any such Person) will be subject to the provisions hereof as fully as if it constituted a Grantor party hereto and had complied with the requirements of the immediately preceding sentence.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Representative with respect to the ABL Credit Agreement | ||
By: |
/s/ Danielle Baldinelli |
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Name: | Danielle Baldinelli | |
Title: | Director |
WILMINGTON TRUST, NATIONAL ASSOCIATION , in its capacity as Collateral Agent, as Term Loan/Notes Representative | ||
By: |
/s/ Hallie E. Field |
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Name: | Hallie E. Field | |
Title: | Assistant Vice President |
J. C. PENNEY CORPORATION, INC. | ||
By: |
/s/ Michael Porter |
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Name: | Michael Porter | |
Title: | Vice President, Treasurer | |
J. C. PENNEY COMPANY, INC. | ||
By: |
/s/ Edward Record |
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Name: | Edward Record | |
Title: | Executive Vice President and Chief Financial Officer | |
J. C. PENNEY PURCHASING CORPORATION | ||
By: |
/s/ Gary Piper |
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Name: | Gary Piper | |
Title: | Treasurer | |
JCP REAL ESTATE HOLDINGS, INC. | ||
By: |
/s/ Gary Piper |
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Name: | Gary Piper | |
Title: | Treasurer | |
J. C. PENNEY PROPERTIES, INC. | ||
By: |
/s/ Gary Piper |
|
Name: | Gary Piper | |
Title: | Treasurer |
Annex I
Provision for each Second Priority Security Document
Reference is made to the Intercreditor Agreement, dated as of June 23, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the ABL Intercreditor Agreement), among J.C. Penney Corporation, Inc., the other Grantors party thereto, Wells Fargo Bank, National Association, as Representative with respect to the ABL Credit Agreement (as defined therein), and Wilmington Trust, National Association, as Term Loan/Notes Representative and each other Representative from time to time party thereto. Notwithstanding anything herein to the contrary, the liens and security interests granted to the Collateral Agent pursuant to this Agreement and the exercise of any right or remedy by the Collateral Agent hereunder, in each case, with respect to the ABL Priority Collateral (as defined therein) are subject to the limitations and provisions of the ABL Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement and the terms and conditions of the ABL Intercreditor Agreement, the terms and conditions of the ABL Intercreditor Agreement shall control.
Annex II
[FORM OF] REPRESENTATIVE JOINDER AGREEMENT NO. [ ] dated as of [ ], 20[ ] (the Representative Joinder Agreement ) to the INTERCREDITOR AND COLLATERAL COOPERATION AGREEMENT dated as of June 23, 2016 (the Intercreditor Agreement ), among WELLS FARGO BANK, NATIONAL ASSOCIATION ( Wells Fargo ), as Representative with respect to the ABL Credit Agreement, Wilmington Trust, National Association ( Wilmington ), in its capacity as Collateral Agent (as defined in the Term Loan/Notes Pari Passu Intercreditor Agreement), as Term Loan/Notes Representative, each other Representative from time to time party thereto, J.C. PENNEY CORPORATION, INC. (the Borrower ) and each of the other Grantors party thereto.
A. Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Intercreditor Agreement.
B. The Borrower and/or one or more of the other Grantors proposes to issue or incur a [Replacement ABL Credit Agreement] [Junior Priority Secured Obligations] and the Person identified in the signature pages hereto as the Representative (the Additional Representative ) will serve as the collateral agent for the holders of such [Replacement ABL Credit Agreement] [Junior Priority Secured Obligations]. The [Replacement ABL Credit Agreement][Junior Priority Representative] is being designated as such by the Borrower in accordance with Section 10 of the Intercreditor Agreement.
C. Accordingly, the Additional Representative and the Borrower agree as follows, for the benefit of the Additional Representative, the Borrower and each other party to the Intercreditor Agreement:
Section 1. Accession to the Intercreditor Agreement . The Additional Representative (a) hereby accedes and becomes a party to the Intercreditor Agreement as a Representative for the holders of the [First Priority Obligations under the Replacement ABL Credit Agreement] [Junior Priority Secured Obligations] (the Additional Secured Parties ), (b) agrees, for itself and on behalf of the Additional Secured Parties from time to time in respect of the [Replacement ABL Credit Agreement] [Junior Priority Secured Obligations], to all the terms and provisions of the Intercreditor Agreement and (c) shall have all the rights and obligations of [the ABL Agent][Junior Priority Representative] under the Intercreditor Agreement.
Section 2. Representations, Warranties and Acknowledgement of the Additional Representative . The Additional Representative represents and warrants to each other Representative and to the Secured Parties that (a) it has full power and authority to enter into this Representative Joinder Agreement, in its capacity as the Representative with respect to the [Replacement ABL Credit Agreement] [Junior Priority Secured Obligations], (b) this Representative Joinder Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with the terms of this Representative Joinder Agreement and (c) the [Replacement ABL Credit Agreement] [Junior Priority Pari Passu Intercreditor Agreement] provide that, upon the Additional Representatives entry into this Representative Joinder Agreement, the secured parties in respect of such [Replacement ABL Credit Agreement] [Junior Priority Secured Obligations] will be subject to and bound by the provisions of the Intercreditor Agreement.
Section 3. Counterparts . This Representative Joinder Agreement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Representative Joinder Agreement shall become effective when each other Representative shall have received a counterpart of this Representative Joinder Agreement that
bears the signature of the Additional Representative. Delivery of an executed counterpart of a signature page to this Representative Joinder Agreement by telecopy or electronic image scan transmission (such as a pdf file) shall be effective as delivery of a manually signed counterpart of this Representative Joinder Agreement.
Section 4. Benefit of Agreement . The agreements set forth herein or undertaken pursuant hereto are for the benefit of, and may be enforced by, any party to the Intercreditor Agreement.
Section 5. Governing Law . THIS REPRESENTATIVE JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND (TO THE EXTENT APPLICABLE) THE BANKRUPTCY CODE.
Section 6. Severability . In the event any one or more of the provisions contained in this Representative Joinder Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
Section 7. Notices . All communications and notices hereunder shall be in writing and given as provided in Section 11.7 of the Intercreditor Agreement. All communications and notices hereunder to the Additional Representative shall be given to it at the address set forth under its signature hereto, which information supplements Section 11.7 of the Intercreditor Agreement.
Section 8. Expenses . The Borrower agrees to reimburse each Representative for its reasonable out-of-pocket expenses in connection with this Representative Joinder Agreement, including the reasonable fees, other charges and disbursements of counsel for each Representative.
[ Signature Pages Follow ]
IN WITNESS WHEREOF, the Additional Representative has duly executed this Representative Joinder Agreement to the Intercreditor Agreement as of the day and year first above written.
[NAME OF ADDITIONAL REPRESENTATIVE], [as REPRESENTATIVE with respect to [NAME OF REPLACEMENT ABL CREDIT AGREEMENT] and the holders of the Secured Obligations thereunder] [as Junior Priority Representative for the Junior Priority Secured Parties] | ||
By: |
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Name: | ||
Title: |
Address for notices: | ||
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attention of: |
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Telecopy: |
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Acknowledged by:
[EACH REPRESENTATIVE], as Representative with respect to [ ] |
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Annex III
[FORM OF] GRANTOR JOINDER AGREEMENT NO. [ ] dated as of [ ], 201[ ] (the Grantor Joinder Agreement ) to the INTERCREDITOR AND COLLATERAL COOPERATION AGREEMENT dated as of June 23, 2016 (the Intercreditor Agreement ), among WELLS FARGO BANK, NATIONAL ASSOCIATION ( Wells Fargo ), as Representative with respect to the ABL Credit Agreement, Wilmington Trust, National Association ( Wilmington ), in its capacity as Collateral Agent (as defined in the Term Loan/Notes Pari Passu Intercreditor Agreement),as Term Loan/Notes Representative, each other Representative from time to time party thereto, J.C. PENNEY CORPORATION, INC. (the Borrower ) and each of the other Grantors party thereto.
A. Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Intercreditor Agreement.
B. [ ], a Subsidiary of the Borrower (the Additional Grantor ), has granted a Lien on all or a portion of its assets to secure First Priority Obligations and such Additional Grantor is not a party to the Intercreditor Agreement.
C. The Additional Grantor wishes to become a party to the Intercreditor Agreement and to acquire and undertake the rights and obligations of a Grantor thereunder. The Additional Grantor is entering into this Grantor Joinder Agreement in accordance with the provisions of the Intercreditor Agreement in order to become a Grantor thereunder.
Accordingly, the Additional Grantor agrees as follows, for the benefit of the Representatives, the Borrower and each other party to the Intercreditor Agreement:
Section 1. Accession to the Intercreditor Agreement . The Additional Grantor (a) hereby accedes and becomes a party to the Intercreditor Agreement as a Grantor with the same force and effect as if originally named therein as a Grantor, (b) agrees to all the terms and provisions of the Intercreditor Agreement and (c) shall have all the rights and obligations of a Grantor under the Intercreditor Agreement.
Section 2. Representations, Warranties and Acknowledgment of the Additional Grantor . The Additional Grantor represents and warrants to each Representative and to the Secured Parties that this Grantor Joinder Agreement has been duly authorized, executed and delivered by such Additional Grantor and constitutes the legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
Section 3. Counterparts . This Grantor Joinder Agreement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Grantor Joinder Agreement shall become effective when each other Representative shall have received a counterpart of this Grantor Joinder Agreement that bears the signature of the Additional Grantor. Delivery of an executed counterpart of a signature page to this Grantor Joinder Agreement by telecopy or electronic image scan transmission (such as a pdf file) shall be effective as delivery of a manually signed counterpart of this Grantor Joinder Agreement.
Section 4. Benefit of Agreement . The agreements set forth herein or undertaken pursuant hereto are for the benefit of, and may be enforced by, any party to the Intercreditor Agreement.
Section 5. Governing Law . THIS GRANTOR JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND (TO THE EXTENT APPLICABLE) THE BANKRUPTCY CODE.
Section 6. Severability . In the event any one or more of the provisions contained in this Grantor Joinder Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
Section 7. Notices . All communications and notices hereunder shall be in writing and given as provided in Section 11.7 of the Intercreditor Agreement.
Section 8. The Additional Grantor agrees to reimburse each Representative for its reasonable out-of-pocket expenses in connection with this Grantor Joinder Agreement, including the reasonable fees, other charges and disbursements of counsel for each Representative.
[ Signature Pages Follow ]
IN WITNESS WHEREOF, the Additional Grantor has duly executed this Grantor Joinder Agreement to the Intercreditor Agreement as of the day and year first above written.
[NAME OF SUBSIDIARY] | ||
By: |
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Name: | ||
Title: |
Acknowledged by:
[EACH REPRESENTATIVE], as Representative with respect to [the [ ] Agreement] |
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EXHIBIT 10.4
EXECUTION VERSION
PARI PASSU INTERCREDITOR AGREEMENT
dated as of
June 23, 2016
among
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Collateral Agent,
JPMORGAN CHASE BANK, N.A.,
as Term Loan Authorized Representative for the Term Loan Secured Parties,
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Notes Authorized Representative for the Notes Secured Parties
and
each additional Authorized Representative from time to time party hereto
Notwithstanding anything herein to the contrary, any liens and security interests granted to the Collateral Agent pursuant to this Pari Passu Intercreditor Agreement and the exercise of any right or remedy by the Collateral Agent hereunder are subject to the limitations and provisions of the Intercreditor and Collateral Cooperation Agreement, dated as of June 23, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the ABL Intercreditor Agreement ), among Wells Fargo Bank, National Association, as representative for the First Priority Secured Parties (as defined therein), Wilmington Trust, National Association, as representative for the Term Loan/Notes Secured Parties, and certain other persons party or that may become party thereto from time to time, and consented to by J. C. Penney Corporation and the grantors identified therein. In the event of any conflict between the terms of the ABL Intercreditor Agreement and the terms of this Pari Passu Intercreditor Agreement, the terms of the ABL Intercreditor Agreement shall govern and control. This paragraph forms part of the Pari Passu Intercreditor Agreement.
PARI PASSU INTERCREDITOR AGREEMENT (as amended or supplemented from time to time, this Agreement ) dated as of June 23, 2016, among WILMINGTON TRUST, NATIONAL ASSOCIATION, as collateral agent for the Term Loan/Notes Secured Parties (as defined below) (in such capacity and together with its successors in such capacity, the Collateral Agent ), JPMORGAN CHASE BANK, N.A., as Authorized Representative for the Term Loan Secured Parties (in such capacity, the Term Loan Authorized Representative ), WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee under the Indenture, as Authorized Representative for the Notes Secured Parties (in such capacity, the Notes Authorized Representative ), and each additional Authorized Representative from time to time party hereto for the Future Term Loan/Notes Secured Parties of the Series with respect to which it is acting in such capacity.
In consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Collateral Agent, the Term Loan Authorized Representative (for itself and on behalf of the Term Loan Secured Parties), the Notes Authorized Representative (for itself and on behalf of the Notes Secured Parties) and each additional Authorized Representative (for itself and on behalf of the Future Term Loan/Notes Secured Parties of the applicable Series) agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Construction; Certain Defined Terms.
(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words include, includes and including shall be deemed to be followed by the phrase without limitation. The word will shall be construed to have the same meaning and effect as the word shall. Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument, other document, statute or regulation herein shall be construed as referring to such agreement, instrument, other document, statute or regulation as from time to time amended, supplemented or otherwise modified, (ii) any reference herein to any Person shall be construed to include such Persons successors and assigns, but shall not be deemed to include the subsidiaries of such Person unless express reference is made to such subsidiaries, (iii) the words herein, hereof and hereunder, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (iv) all references herein to Articles, Sections and Annexes shall be construed to refer to Articles, Sections and Annexes of this Agreement, (v) unless otherwise expressly qualified herein, the words asset and property shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights and (vi) the term or is not exclusive.
(b) It is the intention of the Term Loan/Notes Secured Parties of each Series that the holders of Term Loan/Notes Secured Obligations of such Series (and not the Term Loan/Notes Secured Parties of any other Series) bear the risk of (i) any determination by a court
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of competent jurisdiction that (x) any of the Term Loan/Notes Secured Obligations of such Series are unenforceable under applicable law or are subordinated to any other obligations (other than another Series of Term Loan/Notes Secured Obligations), (y) any of the Term Loan/Notes Secured Obligations of such Series do not have an enforceable security interest in any of the Collateral securing any other Series of Term Loan/Notes Secured Obligations and/or (z) any intervening security interest exists securing any other obligations (other than another Series of Term Loan/Notes Secured Obligations) on a basis ranking prior to the security interest of such Series of Term Loan/Notes Secured Obligations but junior to the security interest of any other Series of Term Loan/Notes Secured Obligations or (ii) the existence of any Collateral for any other Series of Term Loan/Notes Secured Obligations that is not Shared Collateral (any such condition referred to in the foregoing clauses (i) or (ii) with respect to any Series of Term Loan/Notes Secured Obligations, an Impairment of such Series); provided , that the existence of a maximum claim with respect to real properties subject to a Mortgage which applies to all Series of Term Loan/Notes Secured Obligations shall not be deemed to be an Impairment of any Series of Term Loan/Notes Secured Obligations. In the event of any Impairment with respect to any Series of Term Loan/Notes Secured Obligations, the results of such Impairment shall be borne solely by the holders of such Series of Term Loan/Notes Secured Obligations, and the rights of the holders of such Series of Term Loan/Notes Secured Obligations (including, without limitation, the right to receive distributions in respect of such Series of Term Loan/Notes Secured Obligations pursuant to Section 2.01) set forth herein shall be modified to the extent necessary so that the effects of such Impairment are borne solely by the holders of the Series of such Term Loan/Notes Secured Obligations subject to such Impairment. Additionally, in the event the Term Loan/Notes Secured Obligations of any Series are modified pursuant to applicable law (including, without limitation, pursuant to Section 1129 of the Bankruptcy Code), any reference to such Term Loan/Notes Secured Obligations or the Term Loan/Notes Documents governing such Term Loan/Notes Secured Obligations shall refer to such obligations or such documents as so modified.
(c) As used in this Agreement, the following terms have the meanings specified below:
ABL Intercreditor Agreement has the meaning set forth on the cover page of this Agreement.
Affiliate has the meaning set forth in the Term Loan Agreement on the date hereof.
Agreement shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
Applicable Authorized Representative means, with respect to any Shared Collateral, (i) until the earlier of (x) the Discharge of Term Loan Obligations and (y) the Non-Applicable Authorized Representative Enforcement Date, the Term Loan Authorized Representative and (ii) from and after the earlier of (x) the Discharge of Term Loan Obligations and (y) the Non-Applicable Authorized Representative Enforcement Date, the Major Non-Applicable Authorized Representative.
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Authorized Representative means (i) in the case of any Term Loan Obligations or the Term Loan Secured Parties, the Term Loan Authorized Representative, (ii) in the case of the Notes Obligations or the Notes Secured Parties, the Notes Authorized Representative and (iii) in the case of any Series of Future Term Loan/Notes Secured Obligations or Future Term Loan/Notes Secured Parties that become subject to this Agreement after the date hereof, the Authorized Representative named for such Series in the applicable Joinder Agreement.
Bankruptcy Case shall have the meaning assigned to such term in Section 2.05(b).
Bankruptcy Code shall mean Title 11 of the United States Code, as amended.
Bankruptcy Law shall mean the Bankruptcy Code and any similar Federal, state or foreign law for the relief of debtors.
Collateral means all assets and properties subject to Liens created pursuant to any Term Loan/Notes Security Document to secure one or more Series of Term Loan/Notes Secured Obligations.
Collateral Agent shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
Company means J. C. Penney Corporation, a Delaware corporation.
Controlling Secured Parties means, with respect to any Shared Collateral, the Series of Term Loan/Notes Secured Parties whose Authorized Representative is the Applicable Authorized Representative for such Shared Collateral.
DIP Financing shall have the meaning assigned to such term in Section 2.05(b).
DIP Financing Liens shall have the meaning assigned to such term in Section 2.05(b).
DIP Lenders shall have the meaning assigned to such term in Section 2.05(b).
Discharge means, with respect to any Shared Collateral and any Series of Term Loan/Notes Secured Obligations, the date on which such Series of Term Loan/Notes Secured Obligations is no longer secured by such Shared Collateral. The term Discharged shall have a corresponding meaning.
Discharge of Term Loan Obligations means, with respect to any Shared Collateral, the Discharge of the Term Loan Obligations with respect to such Shared Collateral; provided that the Discharge of Term Loan Obligations shall be deemed not to have occurred in connection with a Refinancing of such Term Loan Obligations with additional Term Loan/Notes Secured Obligations secured by such Shared Collateral under a Future Term Loan/Notes Agreement which has been designated as the Term Loan Agreement in the Joinder Agreement with respect thereto and which Joinder Agreement has been executed by the Term Loan Authorized Representative (under the Term Loan Agreement so Refinanced).
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Event of Default shall mean an Event of Default under and as defined in the Term Loan Agreement, the Indenture or any other Future Term Loan/Notes Agreement.
Future Term Loan/Notes Agreement shall mean any indenture, credit agreement or other agreement pursuant to which any Grantor will incur Future Term Loan/Notes Indebtedness.
Future Term Loan/Notes Indebtedness means Indebtedness that has been designated as Future Term Loan/Notes Secured Obligations pursuant to Section 5.02(c).
Future Term Loan/Notes Secured Obligations shall mean all advances to, and debts, liabilities, obligations, covenants and duties of, any Grantor arising under any Future Term Loan/Notes Agreement (and any Term Loan/Notes Documents entered into in connection therewith) including, without limitation, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Grantor or any Affiliate thereof of any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
Future Term Loan/Notes Secured Party means the holders of any Future Term Loan/Notes Secured Obligations, the Collateral Agent and any Authorized Representative with respect thereto.
Grantors means Holdings, the Company and each other subsidiary or direct or indirect parent company of the Company which has granted a security interest pursuant to any Term Loan/Notes Security Document to secure any Series of Term Loan/Notes Secured Obligations.
Holdings means J. C. Penney Company, Inc., a Delaware corporation.
Impairment shall have the meaning assigned to such term in Section 1.01(b).
Indebtedness shall have the meaning set forth in the Term Loan Agreement as in effect on the date hereof.
Indenture means that certain Indenture dated as of June 23, 2016, among the Company, the guarantors identified therein and the Notes Authorized Representative, as trustee.
Insolvency or Liquidation Proceeding means:
(1) any case commenced by or against the Company or any other Grantor under any Bankruptcy Law, any other proceeding for the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of the Company or any other Grantor, any receivership or assignment for the benefit of creditors relating to the Company or any other Grantor or any similar case or proceeding relative to the Company or any other Grantor or its creditors, as such, in each case whether or not voluntary;
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(2) any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to the Company or any other Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or
(3) any other proceeding of any type or nature in which substantially all claims of creditors of the Company or any other Grantor are determined and any payment or distribution is or may be made on account of such claims.
Intellectual Property Security Agreement shall have the meaning assigned to such term in the Security Agreement.
Intervening Creditor shall have the meaning assigned to such term in Section 2.01(a) hereof.
Joinder Agreement means a Future Term Loan/Notes Secured Party Consent substantially in the form attached as Exhibit A hereto.
Junior Priority Intercreditor Agreement means a Junior Priority Intercreditor Agreement, substantially in the form of Exhibit B hereto with such changes thereto as are agreed to by the Applicable Authorized Representative.
Lien means with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.
Major Non-Applicable Authorized Representative means, with respect to any Shared Collateral, the Authorized Representative of the Series of Term Loan/Notes Secured Obligations that constitutes the largest outstanding principal amount of any then outstanding Series of Term Loan/Notes Secured Obligations (other than the Term Loan Obligations) with respect to such Shared Collateral but solely to the extent that such Series of Term Loan/Notes Secured Obligations has a larger aggregate outstanding principal amount than the Term Loan Obligations then outstanding.
Mortgage shall mean any mortgage, deed of trust, deed to secure debt, security deed, trust deed or spreader of lien, in favor of the Collateral Agent to secure any Term Loan/Notes Secured Obligations.
New York UCC shall mean the Uniform Commercial Code as from time to time in effect in the State of New York.
Non-Applicable Authorized Representative means, at any time with respect to any Shared Collateral, any Authorized Representative that is not the Applicable Authorized Representative at such time with respect to such Shared Collateral.
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Non-Applicable Authorized Representative Enforcement Date means, with respect to any Non-Applicable Authorized Representative, the date that is 90 days (throughout which 90-day period such Non-Applicable Authorized Representative was the Major Non-Applicable Authorized Representative) after the occurrence of both (i) an Event of Default (under and as defined in the Indenture or Future Term Loan/Notes Agreement under which such Non-Applicable Authorized Representative is the Authorized Representative) and (ii) the Collateral Agents and each other Authorized Representatives receipt of written notice from such Non-Applicable Authorized Representative certifying that (x) such Non-Applicable Authorized Representative is the Major Non-Applicable Authorized Representative and that an Event of Default (under and as defined in the Indenture or Future Term Loan/Notes Agreement under which such Non-Applicable Authorized Representative is the Authorized Representative) has occurred and is continuing and (y) the Term Loan/Notes Secured Obligations of the Series with respect to which such Non-Applicable Authorized Representative is the Authorized Representative are currently due and payable in full (whether as a result of acceleration thereof or otherwise) in accordance with the terms of the applicable Future Term Loan/Notes Agreement; provided that the Non-Applicable Authorized Representative Enforcement Date shall be stayed and shall not occur and shall be deemed not to have occurred with respect to any Shared Collateral (1) at any time the Collateral Agent has been instructed by the Applicable Authorized Representative to commence and diligently pursue and has commenced and is diligently pursuing any enforcement action with respect to such Shared Collateral, (2) at any time the Grantor which has granted a security interest in such Shared Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding or (3) at any time the Collateral Agent is stayed pursuant to the ABL Intercreditor Agreement from exercising enforcement actions with respect to a material portion of Shared Collateral.
Non-Controlling Secured Parties means, with respect to any Shared Collateral, the Term Loan/Notes Secured Parties which are not Controlling Secured Parties with respect to such Shared Collateral.
Notes Authorized Representative shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
Notes Obligations means the Notes Obligations (as defined in the Indenture).
Notes Secured Parties shall mean the Notes Secured Parties as defined in the Indenture.
Other Intercreditor Agreements shall mean, collectively, the ABL Intercreditor Agreement and, if executed, the Junior Priority Intercreditor Agreement.
Possessory Collateral means any Shared Collateral in the possession of the Collateral Agent (or its agents or bailees), to the extent that possession thereof perfects a Lien thereon under the Uniform Commercial Code of any jurisdiction. Possessory Collateral includes, without limitation, any Certificated Securities, Promissory Notes, Instruments, and Chattel Paper, in each case, delivered to or in the possession of the Collateral Agent under the terms of the Term Loan/Notes Security Documents. All capitalized terms used in this definition and not defined elsewhere in this Agreement have the meanings assigned to them in the New York UCC.
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Post-Petition Interest means any interest or entitlement to fees or expenses or other charges that accrue after the commencement of any bankruptcy or insolvency proceeding, whether or not allowed or allowable as a claim in any such bankruptcy or insolvency proceeding.
Proceeds shall have the meaning assigned to such term in Section 2.01(a) hereof.
Refinance means, in respect of any indebtedness, to refinance, extend, renew, defease, amend, increase, modify, supplement, restructure, refund, replace or repay, or to issue other indebtedness or enter alternative financing arrangements, in exchange or replacement for such indebtedness (in whole or in part), including by adding or replacing lenders, creditors, agents, borrowers and/or guarantors, and including in each case, but not limited to, after the original instrument giving rise to such indebtedness has been terminated and including, in each case, through any credit agreement, indenture or other agreement. Refinanced and Refinancing have correlative meanings.
Security Agreement means the Amended and Restated Pledge and Security Agreement, dated as of June 23, 2016, by and among the Grantors and the Collateral Agent, as the same may be further amended, restated or modified from time to time.
Series means (a) with respect to the Term Loan/Notes Secured Parties, each of (i) the Term Loan Secured Parties (in their capacities as such), (ii) the Notes Secured Parties (in their capacities as such) and (iii) each additional Series of Future Term Loan/Notes Secured Parties that are represented by a common Authorized Representative, in its capacity as such for such Future Term Loan/Notes Secured Parties (in their capacities as such) and (b) with respect to any Term Loan/Notes Secured Obligations, each of (i) the Term Loan Obligations, (ii) the Notes Obligations and (iii) the Future Term Loan/Notes Secured Obligations incurred pursuant to any Future Term Loan/Notes Agreement, which pursuant to any Joinder Agreement, are to be represented hereunder by a common Authorized Representative (in its capacity as such for such Future Term Loan/Notes Secured Obligations).
Shared Collateral means, at any time, Collateral in which the Collateral Agent holds, for the benefit of two or more Series of Term Loan/Notes Secured Obligations, a valid and perfected security interest at such time. If more than two Series of Term Loan/Notes Secured Obligations are outstanding at any time and the Collateral Agent holds a valid and perfected security interest in any Collateral at such time for less than all Series of Term Loan/Notes Secured Obligations, then such Collateral shall constitute Shared Collateral for those Series of Term Loan/Notes Secured Obligations that benefit from a valid security interest in such Collateral at such time and shall not constitute Shared Collateral for any Series which does not benefit from a valid and perfected security interest in such Collateral at such time. Unless the Collateral Agent has received notice from the Authorized Representative for any Series of Term Loan/Notes Secured Obligations that any item of Collateral is not Shared Collateral for such Series or a court of competent jurisdiction has made a determination that any item of Collateral is not Shared Collateral for any Series of Term Loan/Notes Secured Obligations, the Collateral Agent shall be fully protected in assuming that all Collateral is Shared Collateral for each Series of Term Loan/Notes Secured Obligations.
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Term Loan Agreement means that certain Amended and Restated Credit and Guaranty Agreement, dated as of June 23, 2016, among the Company, the guarantors party thereto, the lending institutions from time to time parties thereto, the Term Loan Authorized Representative, as administrative agent, and the other parties thereto.
Term Loan Authorized Representative shall have the meaning assigned to such term in the introductory paragraph of this Agreement.
Term Loan/Notes Document means (i) the Term Loan Agreement and the Credit Documents (as defined in the Term Loan Agreement), (ii) the Indenture and the Notes Documents (as defined in the Indenture) and (iii) each Future Term Loan/Notes Agreement (and any documents designated therein as Credit Documents, Notes Documents or any equivalent term).
Term Loan/Notes Secured Obligations means, collectively, (i) the Term Loan Obligations, (ii) the Notes Obligations and (iii) each Series of Future Term Loan/Notes Secured Obligations.
Term Loan/Notes Secured Parties means (i) the Term Loan Secured Parties, (ii) the Notes Secured Parties and (iii) the Future Term Loan/Notes Secured Parties with respect to each Series of Future Term Loan/Notes Secured Obligations.
Term Loan/Notes Security Documents means the Security Agreement, each Mortgage, each Intellectual Property Security Agreement and each other agreement entered into in favor of the Collateral Agent for purposes of securing any Series of Term Loan/Notes Secured Obligations.
Term Loan Obligations means the Obligations as defined in the Term Loan Agreement.
Term Loan Secured Parties means the Secured Parties as defined in the Term Loan Agreement.
ARTICLE II
Priorities and Agreements with Respect to Shared Collateral
SECTION 2.01 Priority of Claims.
(a) Anything contained herein or in any of the Term Loan/Notes Documents to the contrary notwithstanding (but subject to Section 1.01(b)), if an Event of Default has occurred and is continuing, and the Collateral Agent is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of any Grantor or any Term Loan/Notes Secured Party receives any payment pursuant to any Other Intercreditor Agreement with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by the Collateral Agent pursuant to any Other Intercreditor Agreement and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the
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Term Loan/Notes Secured Obligations are entitled under any Other Intercreditor Agreement (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as Proceeds ), shall, subject to the terms of the ABL Intercreditor Agreement with respect to the ABL Priority Collateral, be applied (i) FIRST, to the payment of all amounts owing to the Collateral Agent (in its capacity as such) pursuant to the terms of this Agreement and any other Term Loan/Notes Document and (ii) SECOND, subject to Section 1.01(b), to the payment in full of the Term Loan/Notes Secured Obligations of each Series on a ratable basis in accordance with the terms of the applicable Term Loan/Notes Documents. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a Term Loan/Notes Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of Term Loan/Notes Secured Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of Term Loan/Notes Secured Obligations (such third party an Intervening Creditor ), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of Term Loan/Notes Secured Obligations with respect to which such Impairment exists; provided, further, that following commencement of any Insolvency or Liquidation Proceeding with respect to any Grantor, solely for purposes of this Section 2.01(a) and not any other Term Loan/Notes Document, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the Term Loan/Notes Secured Obligations to be allowed under Sections 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other bankruptcy law in such Insolvency or Liquidation Proceeding, the amount of Term Loan/Notes Secured Obligations of each Series of Term Loan/Notes Secured Obligations shall include only the maximum amount of Post-Petition Interest allowable under Sections 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other bankruptcy law in such Insolvency or Liquidation Proceeding.
(b) It is acknowledged that the Term Loan/Notes Secured Obligations of any Series may, subject to the limitations set forth in the then extant Term Loan/Notes Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the Term Loan/Notes Secured Parties of any Series.
(c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Term Loan/Notes Secured Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Term Loan/Notes Documents or any defect or deficiencies in the Liens securing the Term Loan/Notes Secured Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.01(b)), each Term Loan/Notes Secured Party hereby agrees that the Liens securing each Series of Term Loan/Notes Secured Obligations on any Shared Collateral shall be of equal priority.
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SECTION 2.02 Actions With Respect to Shared Collateral; Prohibition on Contesting Liens.
(a) With respect to any Shared Collateral, (i) only the Collateral Agent shall act or refrain from acting with respect to the Shared Collateral (including with respect to any Other Intercreditor Agreement), and then only on the instructions of the Applicable Authorized Representative, (ii) the Collateral Agent shall not follow any instructions with respect to such Shared Collateral (including with respect to any Other Intercreditor Agreement) from any Non-Applicable Authorized Representative (or any other Term Loan/Notes Secured Party other than the Applicable Authorized Representative) and (iii) no Non-Applicable Authorized Representative or other Term Loan/Notes Secured Party (other than the Applicable Authorized Representative) shall or shall instruct the Collateral Agent to, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest in or realize upon, or take any other action available to it in respect of, any Shared Collateral (including with respect to any intercreditor agreement with respect to any Shared Collateral), whether under any Term Loan/Notes Security Document, applicable law or otherwise, it being agreed that only the Collateral Agent, acting on the instructions of the Applicable Authorized Representative, shall be entitled to take any such actions or exercise any such remedies with respect to Shared Collateral. Notwithstanding the equal priority of the Liens, in exercising its rights under this Agreement, as between the Applicable Authorized Representative and the Controlling Secured Parties, on the one hand, and the Non-Controlling Authorized Representatives and the Non-Controlling Secured Parties, on the other, the Applicable Authorized Representative and the Controlling Secured Parties may exercise their rights under this Agreement, without regard to the existence of any Non-Controlling Authorized Representatives or Non-Controlling Secured Parties and shall owe no duties to such Persons. No Non-Applicable Authorized Representative or Non-Controlling Secured Party will contest, protest or object to any foreclosure proceeding or action brought by the Collateral Agent, the Applicable Authorized Representative or any Controlling Secured Party or any other exercise by the Collateral Agent, the Applicable Authorized Representative or any Controlling Secured Party of any rights and remedies relating to the Shared Collateral, or to cause the Collateral Agent to do so. The foregoing shall not be construed to limit the rights and priorities of any Term Loan/Notes Secured Party, Collateral Agent or Authorized Representative with respect to any Collateral not constituting Shared Collateral.
(b) Each of the Authorized Representatives agrees that it will not accept any Lien on any Collateral for the benefit of any Series of Term Loan/Notes Secured Obligations (other than funds deposited for the discharge or defeasance of any Series of Term Loan/Notes Secured Obligations) other than pursuant to the Term Loan/Notes Security Documents, and by executing this Agreement (or a Joinder Agreement), each Authorized Representative and the Series of Term Loan/Notes Secured Parties for which it is acting hereunder agrees to be bound by the provisions of this Agreement and the other Term Loan/Notes Security Documents applicable to it.
(c) Each of the Term Loan/Notes Secured Parties agrees that it will not (and hereby waives any right to) contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the perfection, priority, validity, attachment or enforceability of a Lien held by or on behalf of any of the Term Loan/Notes Secured Parties in all or any part of the Shared Collateral, or the provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any of the Collateral Agent or any Authorized Representative to enforce this Agreement.
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SECTION 2.03 No Interference; Payment Over.
(a) Each Term Loan/Notes Secured Party agrees that (i) it will not challenge or question in any proceeding the validity or enforceability of any Term Loan/Notes Secured Obligations of any Series or any Term Loan/Notes Security Document or the validity, attachment, perfection or priority of any Lien under any Term Loan/Notes Security Document or the validity or enforceability of the priorities, rights or duties established by or other provisions of this Agreement; (ii) it will not take or cause to be taken any action the purpose or intent of which is, or could be, to interfere, hinder or delay, in any manner, whether by judicial proceedings or otherwise, any sale, transfer or other disposition of the Shared Collateral by the Collateral Agent, (iii) except as provided in Section 2.02, it shall have no right to (A) direct the Collateral Agent or any other Term Loan/Notes Secured Party to exercise any right, remedy or power with respect to any Shared Collateral (including pursuant to any intercreditor agreement) or (B) consent to the exercise by the Collateral Agent or any other Term Loan/Notes Secured Party of any right, remedy or power with respect to any Shared Collateral, (iv) it will not institute any suit or assert in any suit, bankruptcy, insolvency or other proceeding any claim against the Collateral Agent, the Applicable Authorized Representative or any other Term Loan/Notes Secured Party represented by the Applicable Authorized Representative seeking damages from or other relief by way of specific performance, instructions or otherwise with respect to any Shared Collateral, and none of the Collateral Agent, any Applicable Authorized Representative or any other Term Loan/Notes Secured Party represented by any Applicable Authorized Representative shall be liable for any action taken or omitted to be taken by the Collateral Agent, such Applicable Authorized Representative or such Term Loan/Notes Secured Party with respect to any Shared Collateral in accordance with the provisions of this Agreement, (v) it will not seek, and hereby waives any right, to have any Shared Collateral or any part thereof marshaled upon any foreclosure or other disposition of such Collateral and (vi) it will not attempt, directly or indirectly, whether by judicial proceedings or otherwise, to challenge the enforceability of any provision of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of the Collateral Agent or any other Term Loan/Notes Secured Party to enforce this Agreement.
(b) Each Term Loan/Notes Secured Party hereby agrees that if it shall obtain possession of any Shared Collateral or shall realize any proceeds or payment in respect of any such Shared Collateral, pursuant to any Term Loan/Notes Security Document or by the exercise of any rights available to it under applicable law or in any Insolvency or Liquidation Proceeding or through any other exercise of remedies (including pursuant to any intercreditor agreement), at any time prior to the Discharge of each other Series of the Term Loan/Notes Secured Obligations with respect to such Shared Collateral, then it shall hold such Shared Collateral, proceeds or payment in trust for the other Term Loan/Notes Secured Parties and promptly transfer such Shared Collateral, proceeds or payment, as the case may be, to the Collateral Agent, to be distributed in accordance with the provisions of Section 2.01 hereof.
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SECTION 2.04 Automatic Release of Liens; Amendments to Term Loan/Notes Security Documents.
(a) If, at any time the Collateral Agent forecloses upon or otherwise exercises remedies against any Shared Collateral, then (whether or not any Insolvency or Liquidation Proceeding is pending at the time) the Liens in favor of the Collateral Agent for the benefit of each Series of Term Loan/Notes Secured Parties upon such Shared Collateral will automatically be released and discharged; provided that any proceeds of any Shared Collateral realized therefrom shall be applied pursuant to Section 2.01 hereof.
(b) Each Term Loan/Notes Secured Party agrees that the Collateral Agent may enter into any amendment (and, upon request by the Collateral Agent, each Authorized Representative shall sign a consent to such amendment) to any Term Loan/Notes Security Document or Other Intercreditor Agreement, so long as the Collateral Agent receives a certificate of the Company stating that such amendment is permitted by the terms of each then extant Term Loan/Notes Document; provided, however, that any amendment to any Term Loan/Notes Document or Other Intercreditor Agreement solely for the purpose of effectuating a release or subordination of any Lien or any subdivision of a Real Estate Asset pursuant to the last sentence of Section 4.08 shall not require such certificate and shall instead be governed by the requirements of Section 4.08. Additionally, each Term Loan/Notes Secured Party agrees that the Collateral Agent may enter into any amendment (and, upon request by the Collateral Agent, each Authorized Representative shall sign a consent to such amendment) to any Term Loan/Notes Security Document or Other Intercreditor Agreement solely as such Term Loan/Notes Security Document or Other Intercreditor Agreement relates to a particular Series of Term Loan/Notes Secured Obligations so long as (x) such amendment is in accordance with the Term Loan/Notes Document pursuant to which such Series of Term Loan/Notes Secured Obligations was incurred and (y) such amendment does not adversely affect the Term Loan/Notes Secured Parties of any other Series (and the Collateral Agent shall be fully protected in relying on a certificate of the Company certifying as to each of (x) and (y)).
(c) Additionally, if the Applicable Authorized Representative with respect to any Shared Collateral, other than in connection with the repayment in full of any Series of Term Loan/Notes Secured Obligations, delivers a certificate to the Collateral Agent requesting that (i) all or any portion of such Shared Collateral be released from the Liens of the Term Loan/Notes Security Documents with respect to all Series of then outstanding Term Loan/Notes Secured Obligations, (ii) the Liens of the Collateral Agent on all or any portion of the Shared Collateral for all then outstanding Series of Term Loan/Notes Secured Obligations be subordinated to any other Liens on such Shared Collateral or (iii) the Collateral Agent enter into the Junior Priority Intercreditor Agreement or any supplement to any Other Intercreditor Agreement or any amendment or supplement to any Term Loan/Notes Security Document relating to such Shared Collateral, the Collateral Agent shall execute and deliver or otherwise authorize the filing of such releases (including financing statement amendments or terminations) or subordination agreements or, in the case of clause (iii), the Junior Priority Intercreditor Agreement or such amendments and supplements to any Other Intercreditor Agreement as may be requested by the Applicable Authorized Representative to effectuate such request.
(d) Each Authorized Representative agrees to execute and deliver (at the sole cost and expense of the Grantors) all such authorizations and other instruments as shall reasonably be requested by the Collateral Agent to evidence and confirm any release of Shared Collateral or amendment to any Term Loan/Notes Security Document provided for in this Section.
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SECTION 2.05 Certain Agreements With Respect to Bankruptcy or Insolvency Proceedings.
(a) This Agreement shall continue in full force and effect notwithstanding the commencement of any proceeding under the Bankruptcy Code or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law by or against the Company or any of its subsidiaries.
(b) If any Grantor shall commence or become subject to a case (a Bankruptcy Case ) under the Bankruptcy Code and shall, as debtor(s)-in-possession, move for approval of financing to be provided by one or more lenders (the DIP Lenders ) under Section 364 of the Bankruptcy Code ( DIP Financing ) and/or the use of cash collateral under Section 363 of the Bankruptcy Code (in each case, or under any equivalent provision of any other applicable bankruptcy law), each Term Loan/Notes Secured Party agrees that it will raise no objection to any such financing or to the Liens on the Shared Collateral securing the same ( DIP Financing Liens ) and/or to any use of cash collateral that constitutes Shared Collateral, unless the Applicable Authorized Representative with respect to such Shared Collateral shall then oppose or object to such DIP Financing or such DIP Financing Liens and/or use of cash collateral (and (i) to the extent that such DIP Financing Liens are senior to the Liens on any such Shared Collateral for the benefit of the Controlling Secured Parties, each Non-Controlling Secured Party hereby authorizes and instructs the Collateral Agent to subordinate the Liens with respect to such Shared Collateral for the benefit of the Non-Controlling Secured Parties on the same terms as the Liens for the benefit of the Controlling Secured Parties (other than any Liens of any Term Loan/Notes Secured Parties constituting DIP Financing Liens) are subordinated thereto, and (ii) to the extent that such DIP Financing Liens rank pari passu with the Liens on any such Shared Collateral granted to secure the Term Loan/Notes Secured Obligations of the Controlling Secured Parties, each Non-Controlling Secured Party will confirm the priorities with respect to such Shared Collateral as set forth herein), in each case so long as (A) the Term Loan/Notes Secured Parties of each Series (or the Collateral Agent or other representative for the benefit of such Term Loan/Notes Secured Parties) retain the benefit of their Liens, including Liens on proceeds of Shared Collateral arising after the commencement of such bankruptcy proceedings, on all such Shared Collateral pledged to the DIP Lenders, with the same priority vis-a-vis all the other Term Loan/Notes Secured Parties (other than any Liens of any Term Loan/Notes Secured Parties constituting DIP Financing Liens) as existed prior to the commencement of the Bankruptcy Case, (B) the Term Loan/Notes Secured Parties of each Series (or the Collateral Agent or other representative for the benefit of such Term Loan/Notes Secured Parties) are granted Liens on any additional collateral pledged to any Term Loan/Notes Secured Parties (or the Collateral Agent or other representative for the benefit of such Term Loan/Notes Secured Parties) as adequate protection or otherwise in connection with such DIP Financing and/or use of cash collateral, with the same priority vis-a-vis the Term Loan/Notes Secured Parties as set forth in this Agreement, (C) if any amount of such DIP Financing and/or cash collateral is applied to repay any of the Term Loan/Notes Secured Obligations, such amount is applied pursuant to Section 2.01 of this Agreement, and (D) if any Term Loan/Notes Secured Parties are granted adequate protection, including in the form of periodic payments, in connection with such DIP Financing and/or use of cash collateral, the proceeds of such adequate protection are applied pursuant to Section 2.01 of this Agreement; provided that the Term Loan/Notes Secured Parties of each Series shall have a right to object to the grant of a Lien to
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secure the DIP Financing over any Collateral subject to Liens in favor of the Term Loan/Notes Secured Parties of such Series or its Authorized Representative that shall not constitute Shared Collateral; and provided , further , that the Term Loan/Notes Secured Parties receiving adequate protection shall not object to any other Term Loan/Notes Secured Party receiving adequate protection comparable to any adequate protection granted to such Term Loan/Notes Secured Parties in connection with a DIP Financing and/or use of cash collateral.
SECTION 2.06 Reinstatement. In the event that any of the Term Loan/Notes Secured Obligations shall be paid in full and such payment or any part thereof shall subsequently, for whatever reason (including an order or judgment for disgorgement of a preference under Title 11 of the United Stated Code, or any similar law, or the settlement of any claim in respect thereof), be required to be returned or repaid, the terms and conditions of this Article II shall be fully applicable thereto until all such Term Loan/Notes Secured Obligations shall again have been paid in full in cash.
SECTION 2.07 Insurance. As between the Term Loan/Notes Secured Parties, the Collateral Agent, acting at the direction of the Applicable Authorized Representative, shall have the right to adjust or settle any insurance policy or claim covering or constituting Shared Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding affecting the Shared Collateral.
SECTION 2.08 Refinancings. The Term Loan/Notes Secured Obligations of any Series may be Refinanced, in whole or in part, in each case, without notice to, or the consent (except to the extent a consent is otherwise required to permit the refinancing transaction under any Term Loan/Notes Document) of any Term Loan/Notes Secured Party of any other Series, all without affecting the priorities provided for herein or the other provisions hereof; provided that the Authorized Representative of the holders of any such Refinancing indebtedness shall have executed a Joinder Agreement on behalf of the holders of such Refinancing indebtedness.
SECTION 2.09 Possessory Collateral Agent as Gratuitous Bailee for Perfection.
(a) The Collateral Agent agrees to hold any Shared Collateral constituting Possessory Collateral that is part of the Collateral in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee for the benefit of each other Term Loan/Notes Secured Party and any assignee solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable Term Loan/Notes Security Documents, in each case, subject to the terms and conditions of this Section 2.09. Pending delivery to the Collateral Agent, each Authorized Representative agrees to hold any Shared Collateral constituting Possessory Collateral, from time to time in its possession, as gratuitous bailee for the benefit of each other Term Loan/Notes Secured Party and any assignee, solely for the purpose of perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the applicable Term Loan/Notes Security Documents, in each case, subject to the terms and conditions of this Section 2.09.
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(b) The duties or responsibilities of the Collateral Agent and each Authorized Representative under this Section 2.09 shall be limited solely to holding any Shared Collateral constituting Possessory Collateral as gratuitous bailee for the benefit of each other Term Loan/Notes Secured Party for purposes of perfecting the Lien held by such Term Loan/Notes Secured Parties therein.
ARTICLE III
Existence and Amounts of Liens and Obligations
Whenever the Collateral Agent or any Authorized Representative shall be required, in connection with the exercise of its rights or the performance of its obligations hereunder, to determine the existence or amount of any Term Loan/Notes Secured Obligations of any Series, or the Shared Collateral subject to any Lien securing the Term Loan/Notes Secured Obligations of any Series, it may request that such information be furnished to it in writing by the Authorized Representative for the applicable Series and shall be entitled to make such determination on the basis of the information so furnished; provided , however , that if an Authorized Representative shall fail or refuse reasonably promptly to provide the requested information, the requesting Collateral Agent or Authorized Representative shall be entitled to make any such determination by such method as it may, in the exercise of its good faith judgment, determine, including by reliance upon a certificate of the Company. The Collateral Agent and each Authorized Representative may rely conclusively, and shall be fully protected in so relying, on any determination made by it in accordance with the provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to any Grantor, any Term Loan/Notes Secured Party or any other person as a result of such determination.
ARTICLE IV
The Collateral Agent
SECTION 4.01 Appointment and Authority.
(a) Each Authorized Representative, on behalf of the Term Loan/Notes Secured Parties of the applicable Series, hereby irrevocably appoints Wilmington Trust, National Association (and any successor as contemplated hereby) to act as the Collateral Agent for the current and future Term Loan/Notes Secured Parties hereunder and under each of the Term Loan/Notes Security Documents and Other Intercreditor Agreements and authorizes the Collateral Agent to take such actions on its behalf and on behalf of such Term Loan/Notes Secured Parties and to exercise such powers as are delegated to the Collateral Agent by the terms hereof or thereof, including for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any Grantor to secure the Term Loan/Notes Secured Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Collateral Agent and any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Agent pursuant to Section 4.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under any of the Term Loan/Notes Security Documents, or for exercising any rights and remedies thereunder at the direction of the Applicable Authorized Representative or for exercising any rights under any of the Other Intercreditor Agreements, shall be entitled to the benefits of all provisions of this Article IV.
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(b) Each Non-Controlling Secured Party acknowledges and agrees that the Collateral Agent shall be entitled, for the benefit of the Term Loan/Notes Secured Parties, to sell, transfer or otherwise dispose of or deal with any Shared Collateral as provided herein and in the Term Loan/Notes Security Documents and Other Intercreditor Agreements, without regard to any rights to which the Non-Controlling Secured Parties would otherwise be entitled. Without limiting the foregoing, each Non-Controlling Secured Party agrees that none of the Collateral Agent, the Applicable Authorized Representative or any other Term Loan/Notes Secured Party shall have any duty or obligation first to marshal or realize upon any type of Shared Collateral (or any other Collateral securing any of the Term Loan/Notes Secured Obligations), or to sell, dispose of or otherwise liquidate all or any portion of such Shared Collateral (or any other Collateral securing any Term Loan/Notes Secured Obligations) or otherwise to exercise any of its rights under this Agreement, in any manner that would maximize the return to the Non-Controlling Secured Parties, notwithstanding that the order and timing of any such realization, sale, disposition or liquidation may affect the amount of proceeds actually received by the Non-Controlling Secured Parties from such realization, sale, disposition or liquidation. Each of the Term Loan/Notes Secured Parties waives any claim it may now or hereafter have against the Collateral Agent or the Authorized Representative of any other Series of Term Loan/Notes Secured Obligations or any other Term Loan/Notes Secured Party of any other Series arising out of (i) any actions which the Collateral Agent, any Authorized Representative or any Term Loan/Notes Secured Party takes or omits to take (including, actions with respect to the creation, perfection or continuation of Liens on any Collateral, actions with respect to the foreclosure upon, sale, release or depreciation of, or failure to realize upon, any of the Collateral and actions with respect to the collection of any claim for all or any part of the Term Loan/Notes Secured Obligations from any account debtor, guarantor or any other party) in accordance with this Agreement or the Term Loan/Notes Security Documents or any other agreement related thereto or to the collection of the Term Loan/Notes Secured Obligations or the valuation, use, protection or release of any security for the Term Loan/Notes Secured Obligations, (ii) any election by any Applicable Authorized Representative or any holders of Term Loan/Notes Secured Obligations, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b) of the Bankruptcy Code or (iii) subject to Section 2.05, any borrowing by, or grant of a security interest or administrative expense priority under Section 364 of the Bankruptcy Code by, the Company or any of its subsidiaries, as debtor-in-possession. Notwithstanding any other provision of this Agreement, the Collateral Agent shall not accept any Shared Collateral in full or partial satisfaction of any Term Loan/Notes Secured Obligations pursuant to Section 9-620 of the Uniform Commercial Code of any jurisdiction, without the consent of each Authorized Representative representing holders of Term Loan/Notes Secured Obligations for whom such Collateral constitutes Shared Collateral.
(c) Each party hereto acknowledges and agrees that the Collateral Agent, any Authorized Representative or any other Term Loan/Notes Secured Party may be a lender or agent under the ABL Credit Agreement (as defined in the ABL Intercreditor Agreement) or other Indebtedness of any Grantor that does not constitute Term Loan/Notes Secured Obligations or may have other arrangements or agreements with any other Grantor and each party hereto waives any claim against the Collateral Agent or any other Term Loan/Notes Secured Party based on any conflict or alleged conflict of interest as a result thereof.
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SECTION 4.02 Rights as a Term Loan/Notes Secured Party.
The Person serving as the Collateral Agent hereunder shall have the same rights and powers in its capacity as a Term Loan/Notes Secured Party under any Series of Term Loan/Notes Secured Obligations that it holds as any other Term Loan/Notes Secured Party of such Series and may exercise the same as though it were not the Collateral Agent and if the Collateral Agent holds any Term Loan/Notes Obligations, the term Term Loan/Notes Secured Party or Term Loan/Notes Secured Parties or (as applicable) Term Loan Secured Party, Term Loan Secured Parties, Notes Secured Party, Notes Secured Parties, Future Term Loan/Notes Secured Party or Future Term Loan/Notes Secured Parties shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Collateral Agent hereunder in its individual capacity. The Person acting as Collateral Agent and its Affiliates and each Person acting as an Authorized Representative or any other Term Loan/Notes Secured Party may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Grantor or other Affiliate thereof as if such Person were not the Collateral Agent, an Authorized Representative or a Term Loan/Notes Secured Party hereunder and without any duty to account therefor to any other Term Loan/Notes Secured Party.
SECTION 4.03 Exculpatory Provisions.
(a) The Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the other Term Loan/Notes Security Documents. Without limiting the generality of the foregoing and notwithstanding any contrary position in any Term Loan/Notes Security Document, the Collateral Agent:
(i) | shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing; |
(ii) | shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Term Loan/Notes Security Documents or by the Other Intercreditor Agreements that the Collateral Agent is required to exercise as directed in writing by the Applicable Authorized Representative; provided that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to unindemnified individual liability or that is contrary to applicable law; |
(iii) | shall not, except as expressly set forth herein, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Affiliates that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity; |
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(iv) | shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Applicable Authorized Representative or (ii) in the absence of its own gross negligence or willful misconduct as determined by a final order of a court of competent jurisdiction or (iii) in reliance on a certificate of the Company stating that such action is permitted by the terms of this Agreement. The Collateral Agent shall be deemed not to have knowledge of any Event of Default under any Series of Term Loan/Notes Secured Obligations unless and until written notice describing such Event of Default and stating that it is a notice of default, is given to the Collateral Agent in accordance with Section 5.01 by the Authorized Representative of such Series of Term Loan/Notes Secured Obligations or the Company; |
(v) | shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, any other Term Loan/Notes Security Document or any Other Intercreditor Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Term Loan/Notes Security Document, any Other Intercreditor Agreement or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Term Loan/Notes Security Documents, (v) the value or the sufficiency of any Collateral for any Series of Term Loan/Notes Secured Obligations, or (vi) the satisfaction of any condition set forth in any Term Loan/Notes Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent; |
(vi) | shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Company (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law); |
(vii) | shall not be liable for any indirect, special, punitive, incidental or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action; and |
(viii) |
shall not be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be created by the Term Loan/Notes Security Documents (including without limitation the filing or continuation of any UCC financing or continuation statements or similar documents or instruments), nor shall the Collateral Agent be responsible |
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for, and the Collateral Agent makes no representation regarding, the validity, effectiveness or priority of any of the Term Loan/Notes Security Documents or the security interests or Liens intended to be created thereby. |
SECTION 4.04 Reliance by Collateral Agent.
The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message or other distribution) believed by it in good faith to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it in good faith to have been made by the proper Person, and shall not incur any liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
SECTION 4.05 Delegation of Duties.
The Collateral Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Term Loan/Notes Security Document or Other Intercreditor Agreement by or through any one or more sub-agents appointed by the Collateral Agent. The Collateral Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Affiliates. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Affiliates of the Collateral Agent and any such sub-agent. The Collateral Agent shall not be liable for the negligence or misconduct of any sub-agents appointed with due care.
SECTION 4.06 Resignation of Collateral Agent.
The Collateral Agent may at any time give notice of its resignation as Collateral Agent under this Agreement and the other Term Loan/Notes Security Documents to each Authorized Representative and the Company. Upon receipt of any such notice of resignation, the Applicable Authorized Representative shall have the right, in consultation with the Company, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Applicable Authorized Representative and shall have accepted such appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may, on behalf of the Term Loan/Notes Secured Parties, appoint a successor Collateral Agent meeting the qualifications set forth above; provided that if the Collateral Agent shall notify the Company and each Authorized Representative that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Term Loan/Notes Security Documents and the Other Intercreditor Agreements (except that in the case of any collateral security held by the Collateral Agent on behalf of the Term Loan/Notes Secured
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Parties under any of the Term Loan/Notes Security Documents, the retiring Collateral Agent shall continue to hold such collateral security solely for purposes of maintaining the perfection of the security interests of the Term Loan/Notes Secured Parties therein until such time as a successor Collateral Agent is appointed but with no obligation to take any further action at the request of the Applicable Authorized Representative or any other Term Loan/Notes Secured Parties) and (b) all payments, communications and determinations provided to be made by, to or through the Collateral Agent shall instead be made by or to each Authorized Representative directly, until such time as the Applicable Authorized Representative appoints a successor Collateral Agent as provided for above in this Section. Upon the acceptance of a successors appointment as Collateral Agent hereunder and under the Term Loan/Notes Security Documents, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Collateral Agent, and the retiring Collateral Agent shall be discharged from all of its duties and obligations hereunder or under the other Term Loan/Notes Security Documents and Other Intercreditor Agreements (if not already discharged therefrom as provided above in this Section). After the retiring Collateral Agents resignation hereunder and under the other Term Loan/Notes Security Documents, the provisions of this Article shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective related parties in respect of any actions taken or omitted to be taken by any of them while the retiring Collateral Agent was acting as Collateral Agent. Upon any notice of resignation of the Collateral Agent hereunder and under the other Term Loan/Notes Security Documents, the Company agrees to use commercially reasonable efforts to transfer (and maintain the validity and priority of) the Liens in favor of the retiring Collateral Agent under the Term Loan/Notes Security Documents to the successor Collateral Agent. The Collateral Agent shall execute and deliver or otherwise authorize the filing of such documents as the Company or the Applicable Authorized Representative shall reasonably request, in form and substance reasonably satisfactory to the Collateral Agent, to transfer (and maintain the validity and priority of) the Liens in favor of the retiring Collateral Agent under the Term Loan/Notes Security Documents to the successor Collateral Agent.
SECTION 4.07 Non-Reliance on Collateral Agent and other Term Loan/Notes Secured Parties.
Each Term Loan/Notes Secured Party acknowledges that it has, independently and without reliance upon the Collateral Agent, any Authorized Representative or any other Term Loan/Notes Secured Party or any of their Affiliates and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and the other Term Loan/Notes Documents. Each Term Loan/Notes Secured Party also acknowledges that it will, independently and without reliance upon the Collateral Agent, any Authorized Representative or any other Term Loan/Notes Secured Party or any of their Affiliates and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Term Loan/Notes Document or any related agreement or any document furnished hereunder or thereunder.
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SECTION 4.08 Collateral and Guaranty Matters.
Each of the Term Loan/Notes Secured Parties irrevocably authorizes the Collateral Agent to, and the Collateral Agent shall:
(a) release or subordinate any Lien on any property granted to or held by the Collateral Agent under any Term Loan/Notes Security Document in accordance with Section 2.04 or upon receipt of a written request by the Collateral Agent and each Applicable Authorized Representative from the Company stating that the release or subordination of such Lien is permitted by the terms of each then extant Term Loan/Notes Document;
(b) execute and deliver or otherwise authorize the filing of documents in connection with a subdivision of Collateral subject to a Mortgage upon receipt by the Collateral Agent and each Applicable Authorized Representative of a written request from the Company stating that such subdivision is permitted by the terms of each then extant Term Loan/Notes Document; and
(c) release any Grantor from its obligations under the Term Loan/Notes Security Documents upon receipt by the Collateral Agent and each Applicable Authorized Representative of a written request from the Company stating that such release is permitted by the terms of each then extant Term Loan/Notes Document.
The Collateral Agent shall execute and deliver or otherwise authorize the filing of such documents as the Company or any other Grantor shall reasonably request, in form and substance reasonably satisfactory to the Collateral Agent, including financing statement amendments to evidence such release, subordination or subdivision to give effect to any such release or subordination. Such documents may take the form of amendments and restatements of, or other amendments or modifications to, one or more Term Loan/Notes Security Documents solely to give effect to the foregoing.
SECTION 4.09 Other Intercreditor Agreements.
Each of the Term Loan/Notes Secured Parties by accepting the benefits of this Agreement, irrevocably authorizes the Collateral Agent (x) to enter into and perform its obligations under the ABL Intercreditor Agreement and, if requested by the Applicable Authorized Representative, the Junior Priority Intercreditor Agreement and agrees to be bound by the terms of each such Other Intercreditor Agreement applicable to such Term Loan/Notes Secured Party and (y) to enter into and perform its obligations under the Term Loan/Notes Security Documents to which it is a party.
SECTION 4.10 Fees, Expenses and Indemnities.
The Company shall pay to the Collateral Agent such compensation, reimburse the Collateral Agent for expenses and indemnify the Collateral Agent all as set forth in Sections 2.11(b), 10.2 and 10.3 of the Term Loan Agreement, Section 7.7 of the Indenture and the applicable provisions of any Future Term Loan/Notes Agreement.
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ARTICLE V
Miscellaneous
SECTION 5.01 Notices. All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Collateral Agent, to it at Wilmington Trust, National Association, Global Capital Markets, 50 South Sixth Street, Suite 1290, Minneapolis, Minnesota 55402, Attention of J. C. Penney Collateral Agency Administrator (Telecopy No. 612-217-5651 and Electronic Mail: hfield@wilmingtontrust.com);
(b) if to the Term Loan Authorized Representative, to it at JPMorgan Chase Bank, N.A., as Administrative Agent, 500 Stanton Christiana Road, Ops Building 2, 3 rd Floor, Newark, DE 19713-2107(Telephone: (302) 634-1678);
(c) if to the Notes Authorized Representative, to it at Wilmington Trust, National Association, Global Capital Markets, 50 South Sixth Street, Suite 1290, Minneapolis, Minnesota 55402, Attention of J. C. Penney Notes Administrator (Telecopy No. 612-217-5651 and Electronic Mail: hfield@wilmingtontrust.com);
(d) if to any other additional Authorized Representative, to it at the address set forth in the applicable Joinder Agreement.
Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt (if a Business Day) and on the next Business Day thereafter (in all other cases) if delivered by hand or overnight courier service or sent by telecopy or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 5.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 5.01. As agreed to in writing among the Collateral Agent and each Authorized Representative from time to time, notices and other communications may also be delivered by e-mail to the e-mail address of a representative of the applicable person provided from time to time by such person.
SECTION 5.02 Waivers; Amendment; Joinder Agreements.
(a) No failure or delay on the part of any party hereto in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any party therefrom shall in any event be effective
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unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be terminated, waived, amended or modified (other than pursuant to any Joinder Agreement) except pursuant to an agreement or agreements in writing entered into by each Authorized Representative and the Collateral Agent and, in the case of waivers, amendments or modifications that could reasonably be expected to affect the rights, duties or interests of any Grantor (including, without limitation, any waiver, amendment or modification of Sections 2.04(c), 2.05, 2.08, 2.09, 4.08 and 5.03 and this Section 5.02), the Company.
(c) On or after the date hereof and so long as permitted by the Term Loan Agreement, the Indenture and any Future Term Loan/Notes Agreement then outstanding (but subject to Section 4.04 above), the Company may from time to time designate Indebtedness at the time of incurrence to be Future Term Loan/Notes Secured Indebtedness by delivering to the Collateral Agent and each Authorized Representative (a) a certificate signed by an Authorized Officer of the Company (i) identifying the obligations so designated and the initial aggregate principal amount or face amount thereof, (ii) stating that such obligations are designated as Future Term Loan/Notes Secured Obligations for purposes hereof, (iii) representing that such designation of such obligations as Future Term Loan/Notes Secured Indebtedness complies with the terms of the Term Loan Agreement, the Indenture and any Future Term Loan/Notes Agreement then outstanding and (iv) specifying the name and address of the Authorized Representative for such Future Term Loan/Notes Secured Indebtedness and (b) a Joinder Agreement executed by the Grantors and the Authorized Representative for such Future Term Loan/Notes Secured Indebtedness (and if such Future Term Loan/Notes Secured Indebtedness is being designated as the Term Loan Agreement, the then extant Term Loan Authorized Representative). Each Authorized Representative agrees that upon the satisfaction of all conditions set forth in the preceding sentence, the Collateral Agent shall execute such Joinder Agreement and act as agent under and subject to the terms of this Agreement for the benefit of all Term Loan/Notes Secured Parties, including without limitation, any Term Loan/Notes Secured Parties that hold any such Future Term Loan/Notes Secured Obligations, and each Authorized Representative agrees to the appointment, and acceptance of the appointment, of the Collateral Agent as agent for the holders of such Future Term Loan/Notes Secured Obligations as set forth in each Joinder Agreement and agrees, on behalf of itself and each Term Loan/Notes Secured Party it represents, to be bound by this Agreement. In addition, the Collateral Agent shall execute, at the Companys expense, any reaffirmations, amendments, amendments and restatements or other modifications to any Term Loan/Notes Security Document in connection with such Joinder Agreement as the Company or the Applicable Authorized Representative shall request for purposes of giving effect thereto.
SECTION 5.03 Parties in Interest. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, as well as the other Term Loan/Notes Secured Parties, all of whom are intended to be bound by, and to be third party beneficiaries of, this Agreement. In addition, the Grantors shall be third party beneficiaries of Sections 2.04, 2.05, 2.08, 2.09, 4.08 and 5.02 and this Section 5.03.
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SECTION 5.04 Survival of Agreement. All covenants, agreements, representations and warranties made by any party in this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.
SECTION 5.05 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
SECTION 5.06 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 5.07 Governing Law.
This Agreement shall be construed in accordance with and governed by the law of the State of New York.
SECTION 5.08 Submission To Jurisdiction Waivers . The Collateral Agent and each Authorized Representative, on behalf of itself and the Term Loan/Notes Secured Parties of the Series for whom it is acting, irrevocably and unconditionally :
(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the Term Loan/Notes Security Documents, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Person (or its Authorized Representative) at the address referred to in 5.01;
(d) agrees that nothing herein shall affect the right of any other party hereto (or any Term Loan/Notes Secured Party) to effect service of process in any other manner permitted by law; and
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(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section 5.08 any special, exemplary, punitive or consequential damages.
SECTION 5.09 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 5.10 Headings. Article, Section and Annex headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 5.11 Conflicts. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of any of the other Term Loan/Notes Documents or Term Loan/Notes Security Documents (other than the ABL Intercreditor Agreement), the provisions of this Agreement shall control.
SECTION 5.12 Provisions Solely to Define Relative Rights. The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the Term Loan/Notes Secured Parties in relation to one another. None of the Company, any other Grantor or any other creditor thereof shall have any rights or obligations hereunder, except as expressly provided in this Agreement ( provided that nothing in this Agreement (other than Section 2.04, 2.05, 2.08, 2.09 or 4.08 or Article V) is intended to or will amend, waive or otherwise modify the provisions of the Term Loan Agreement, the Indenture or any Future Term Loan/Notes Agreements), and none of the Company or any other Grantor may rely on the terms hereof (other than Sections 2.04, 2.05, 2.08, 2.09 and 4.08 and Article V). Nothing in this Agreement is intended to or shall impair the obligations of any Grantor, which are absolute and unconditional, to pay the Term Loan/Notes Secured Obligations as and when the same shall become due and payable in accordance with their terms.
SECTION 5.13 Integration; Effectiveness. This Agreement together with the other Term Loan/Notes Documents and the Term Loan/Notes Security Documents represents the agreement of each of the Grantors and the Term Loan/Notes Secured Parties with respect to the subject matter hereof and there are no promises, undertakings, representations or warranties by any Grantor, the Collateral Agent, any or any other Term Loan/Notes Secured Party relative to the subject matter hereof not expressly set forth or referred to herein or in the other Term Loan/Notes Documents or the Term Loan/Notes Security Documents. This Agreement shall continue to be effective until all Liens securing Term Loan/Notes Secured Obligations have been released in accordance with the provisions of this Agreement and shall survive the repayment of any Series of Term Loan/Notes Secured Obligations.
SECTION 5.14 Concerning the Notes Authorized Representative. The Notes Authorized Representative is acting in this Agreement in its capacity as Trustee under the Indenture, and shall be entitled to all of the rights, privileges and immunities of the Trustee set forth in the Indenture as if such rights, privileges and immunities were set forth herein. Whenever the Notes Authorized Representative makes any determination, gives any direction or instruction or request to the Collateral Agent or exercises any discretion, it shall do so pursuant to the provisions of and in compliance with the Indenture.
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SECTION 5.15 Termination. This Agreement shall terminate and be of no further force and effect, (i) with respect to the Notes Secured Parties and the Notes Obligations, upon the Discharge of the Notes Obligations; (ii) with respect to the Term Loan Secured Parties and the Term Loan Obligations, upon the Discharge of Term Loan Obligations and (iii) in the case of any Series of Future Term Loan/Notes Secured Obligations or Future Term Loan/Notes Secured Parties that become subject to this Agreement after the date hereof, upon the Discharge of such Future Term Loan Notes/Secured Obligations, in each case, subject to Section 2.08; provided, however, that such termination shall not relieve any such party of its obligations incurred hereunder prior to the date of such termination; provided, further that, notwithstanding the foregoing, the provisions of Section 4.06 shall govern the resignation of the Collateral Agent and the provisions of Section 4.10 relating to the indemnity of the Collateral Agent shall survive such termination or the earlier resignation or removal of the Collateral Agent .
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
WILMINGTON TRUST, NATIONAL ASSOCIATION, | ||
as Collateral Agent | ||
By: |
/s/ Hallie E. Field |
|
Name: | Hallie E. Field | |
Title: | Assistant Vice President | |
JPMORGAN CHASE BANK, N.A., as Term Loan Authorized Representative |
||
By: |
/s/ Lauren M. Baker |
|
Name: | Lauren M. Baker | |
Title: | Vice President | |
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Notes Authorized Representative |
||
By: |
/s/ Hallie E. Field |
|
Name: | Hallie E. Field | |
Title: | Assistant Vice President |
[Pari Passu Intercreditor Agreement]
CONSENT OF GRANTORS
Dated: June 23, 2016
Reference is made to the Pari Passu Intercreditor Agreement dated as of the date hereof by and among WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent, JPMORGAN CHASE BANK, N.A., as Term Loan Authorized Representative, and WILMINGTON TRUST, NATIONAL ASSOCIATION, as Notes Authorized Representative, as the same may be amended, restated, supplemented, waived, or otherwise modified from time to time (the Pari Passu Intercreditor Agreement ). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Pari Passu Intercreditor Agreement.
Each of the undersigned Grantors has read the foregoing Pari Passu Intercreditor Agreement and consents thereto and agrees to indemnify and hold harmless the Collateral Agent on the terms set forth therein. Each of the undersigned Grantors agrees not to take any action that would be contrary to the express provisions of the Pari Passu Intercreditor Agreement, agrees to abide by the requirements expressly applicable to it under the Pari Passu Intercreditor Agreement and agrees that, except as otherwise provided therein, no Term Loan/Notes Secured Party shall have any liability to any Grantor for acting in accordance with the provisions of the Pari Passu Intercreditor Agreement. Each Grantor understands that the Pari Passu Intercreditor Agreement is for the sole benefit of the Term Loan/Notes Secured Parties and their respective successors and assigns, and that such Grantor is not an intended beneficiary or third party beneficiary thereof except to the extent otherwise expressly provided therein.
Without limitation to the foregoing, each Grantor agrees to take such further action and to execute and deliver such additional documents and instruments (in recordable form, if requested) as the Collateral Agent may reasonably request to effectuate the terms of and the lien priorities contemplated by Pari Passu Intercreditor Agreement.
This Consent shall be governed and construed in accordance with the laws of the State of New York. Notices delivered to any Grantor pursuant to this Consent shall be delivered in accordance with the notice provisions set forth in the Pari Passu Intercreditor Agreement, at the address set forth on Appendix B attached to the Term Loan Agreement or such other address as the Company may notify the Collateral Agent and the Authorized Representatives in writing.
IN WITNESS HEREOF, this Consent is hereby executed by each of the Grantors as of the date first written above.
J. C. PENNEY CORPORATION, INC. | ||
By: |
/s/ Michael Porter |
|
Name: | Michael Porter | |
Title: | Vice President, Treasurer | |
J. C. PENNEY COMPANY, INC. | ||
By: |
/s/ Edward Record |
|
Name: | Edward Record | |
Title: | Executive Vice President and Chief | |
Financial Officer | ||
J. C. PENNEY PURCHASING CORPORATION | ||
By: |
/s/ Gary Piper |
|
Name: | Gary Piper | |
Title: | Treasurer | |
J. C. PENNEY REAL ESTATE HOLDINGS, INC. | ||
By: |
/s/ Gary Piper |
|
Name: | Gary Piper | |
Title: | Treasurer | |
J. C. PENNEY PROPERTIES, INC. | ||
By: |
/s/ Gary Piper |
|
Name: | Gary Piper | |
Title: | Treasurer |
EXHIBIT A
[Form of]
ADDITIONAL TERM LOAN/NOTES SECURED PARTY CONSENT
[Name of Future Term Loan/Notes Secured Party]
[Address of Future Term Loan/Notes Secured Party]
[Date]
The undersigned is the Authorized Representative for Persons wishing to become Term Loan/Notes Secured Parties (the New Secured Parties ) under that certain Pari Passu Intercreditor Agreement (the Pari Passu Intercreditor Agreement ), dated as of June 23, 2016, among Wilmington Trust, National Association, as Collateral Agent, JPMorgan Chase Bank, N.A., as the Term Loan Authorized Representative and Wilmington Trust, National Association, as the Notes Authorized Representative, and acknowledged by J. C. Penney Corporation and the other grantors party thereto (the Grantors ). Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Pari Passu Intercreditor Agreement.
In consideration of the foregoing, the undersigned hereby:
(i) represents that the Authorized Representative has been duly authorized by the New Secured Parties to become a party to the Pari Passu Intercreditor Agreement on behalf of the New Secured Parties under that [DESCRIBE OPERATIVE AGREEMENT] (the New Secured Obligation ) and to act as the Authorized Representative for the New Secured Parties;
(ii) acknowledges that the New Secured Parties have received a copy of the Pari Passu Intercreditor Agreement [and the ABL Intercreditor Agreement/Junior Priority Intercreditor Agreement] 1 ;
(iii) appoints and authorizes the Collateral Agent to take such action as agent on its behalf and on behalf of all other Term Loan/Notes Secured Parties and to exercise such powers under the Pari Passu Intercreditor Agreement, the Other Intercreditor Agreements and the Term Loan/Notes Security Documents as are delegated to the Collateral Agent by the terms thereof, together with all such powers as are reasonably incidental thereto;
1 | Include references to each Other Intercreditor Agreement then in effect. |
(iv) accepts and acknowledges the terms of the Pari Passu Intercreditor Agreement applicable to it and the New Secured Parties and agrees to serve as Authorized Representative for the New Secured Parties with respect to the New Secured Obligation and agrees on its own behalf and on behalf of the New Secured Parties to be bound by the terms thereof applicable to holders of Future Term Loan/Notes Secured Obligations, with all the rights and obligations of a Term Loan/Notes Secured Party thereunder and bound by all the provisions thereof as fully as if it had been a Term Loan/Notes Secured Party on the effective date of the Pari Passu Intercreditor Agreement and agrees that its address for receiving notices pursuant to the Pari Passu Intercreditor Agreement shall be as follows:
[Address]
(v) accepts and acknowledges the terms of each Other Intercreditor Agreement applicable to it and the New Secured Parties, confirms the authority of the Collateral Agent to enter into such agreements on its behalf and on behalf of the New Secured Parties and agrees on its own behalf and on behalf of the New Secured Parties to be bound by the terms thereof applicable to it and the New Secured Parties as fully as if it had been a party to each such agreement.
[The New Secured Obligation is hereby designated as the Term Loan Agreement for purposes of the Pari Passu Intercreditor Agreement.]
The Collateral Agent, by acknowledging and agreeing to this Future Term Loan/Notes Secured Party Consent, accepts the appointment set forth in clause (iii) above.
Each Grantor hereby grants (and hereby confirms its prior grant of) to the Collateral Agent, for the benefit of the Term Loan/Notes Secured Parties, a security interest in and continuing lien on all of such Grantors right, title and interest in, to and under all Collateral of such Grantor, including the Collateral as defined in the Security Agreement, in each case whether now or hereafter existing or in which any Grantor now has or hereafter acquires an interest and wherever the same may be located. Each Grantor hereby authorizes the Collateral Agent to file financing statements in any jurisdiction and with any filing offices as the Collateral Agent or the Applicable Authorized Representative may determine are necessary or advisable to perfect or otherwise protect the security interest granted to the Collateral Agent herein. Such financing statements may describe the Collateral in the same manner as described in the applicable Term Loan/Notes Security Document or may contain an indication or description of collateral that describes such property in any other manner as the Collateral Agent or the Applicable Authorized Representative may determine is necessary, advisable or prudent to ensure the perfection of the security interest in the Collateral granted to the Collateral Agent herein, including, without limitation, describing such property as all assets, whether now owned or hereafter acquired, developed or created or words of similar effect.
THIS ADDITIONAL TERM LOAN/NOTES SECURED PARTY CONSENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Future Term Loan/Notes Secured Party Consent to be duly executed by its authorized officer as of the day of 20 .
[NAME OF AUTHORIZED REPRESENTATIVE] | ||
By: |
|
|
Name: | ||
Title: |
Acknowledged and Agreed | ||
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent |
||
By: |
|
|
Name: | ||
Title: | ||
[Acknowledged and Agreed | ||
[ ], as former Term Loan Authorized Agent |
||
By: |
|
|
Name: | ||
Title:] 2 | ||
[GRANTORS] | ||
By: |
|
|
Name: | ||
Title: |
2 | To be included if the New Secured Obligation is being designated as the Term Loan Agreement for purposes of the Pari Passu Intercreditor Agreement. |
EXHIBIT B
[FORM OF]
JUNIOR PRIORITY INTERCREDITOR AGREEMENT
JUNIOR PRIORITY INTERCREDITOR AGREEMENT, dated as of [ ] [ ], 20[ ], among WILMINGTON TRUST, NATIONAL ASSOCIATION in its capacity as Collateral Agent under the First Lien Pari Passu Intercreditor Agreement (as defined below) (together with its successors as Collateral Agent, the First Lien Representative ), as Representative for the First Lien Secured Parties (as defined below), and [ ] (together with its successors as Collateral Agent under the Second Lien Pari Passu Intercreditor Agreement, the Junior Lien Representative ), as Representative for the Junior Lien Secured Parties (as defined below). Capitalized terms used herein but not otherwise defined herein have the meanings set forth in Section 1 below.
A. J. C. PENNEY CORPORATION, INC., a Delaware corporation (the Company ), is party to the Amended and Restated Credit and Guaranty Agreement, dated as of June 23, 2016 (as amended, restated, supplemented, waived, Refinanced or otherwise modified from time to time including without limitation to add new loans thereunder or increase the amount of commitments thereunder, the Term Loan Agreement ), among the Company, the guarantors party thereto, the lenders party thereto from time to time and JPMorgan Chase Bank, N.A., as administrative agent (together with its successors in such capacity under the Term Loan Agreement, the Term Loan Agent ).
B. The Company is party to the Indenture dated as of June 23, 2016 among the Company, the guarantors identified therein and Wilmington Trust, National Association, as First Lien Trustee (as amended, restated, supplemented, waived, Refinanced or otherwise modified from time to time, the First Lien Indenture ) pursuant to which the Company has issued its 5.875% Senior Secured Notes due 2023.
C. [Describe document governing initial Junior Lien Obligations] 1
D. Pursuant to the First Lien Pari Passu Intercreditor Agreement, the Term Loan Agent and the First Lien Trustee have appointed, and, if any additional Series of First Lien Obligations have been or are hereinafter established, one or more additional First Lien Authorized Representatives for the holders of additional Series of First Lien Obligations will appoint, the First Lien Representative to hold Liens for the benefit of the First Lien Secured Parties under the First Lien Documents and to bind such First Lien Secured Parties by the terms of this Agreement;
E. Pursuant to the Junior Lien Pari Passu Intercreditor Agreement, [ ] [and [ ] 2 ] [has] [have] appointed, and, if any additional Series (as defined in the Junior Lien Pari Passu Intercreditor Agreement) of Junior Lien Obligations are established following the date hereof, one or more additional Junior Lien Authorized Representatives for the holders of additional Series of Junior Lien Obligations will appoint, the Junior Lien Representative to hold Liens for the benefit of the Junior Lien Secured Parties under the Junior Lien Documents and to bind such Junior Lien Secured Parties by the terms of this Agreement.
1 | To be updated as appropriate. |
2 | Insert if applicable. |
Accordingly, in consideration of the foregoing, the mutual covenants and obligations herein set forth and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. Definitions .
1.1. Defined Terms . As used in this Agreement, the following terms have the meanings specified below:
ABL Intercreditor Agreement shall mean that certain Intercreditor and Collateral Cooperation Agreement, dated as of June 23, 2016, among Wells Fargo Bank, National Association, as representative for the First Priority Secured Parties (as defined therein), the First Lien Representative, as representative for the First Lien Secured Parties and the Junior Lien Representative, as representative for the Junior Lien Secured Parties, and certain other persons party or that may become party thereto from time to time, and consented to by the Company and the grantors identified therein, as amended, restated, supplemented or otherwise modified from time to time.
ABL Priority Collateral shall have the meaning given such term in the ABL Intercreditor Agreement.
Agreement shall mean this Junior Priority Intercreditor Agreement, as amended, renewed, extended, supplemented or otherwise modified from time to time in accordance with the terms hereof.
Bankruptcy Code means Title 11 of the United States Code, as amended.
Bankruptcy Law shall mean the Bankruptcy Code and any similar Federal, state or foreign law for the relief of debtors.
Business Day means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York, United States or the jurisdiction of the place of payment are authorized or required by law to close.
Collateral shall mean all of the assets of any Grantor, whether real, personal or mixed, constituting both First Lien Collateral and Junior Lien Collateral including, without limitation, any assets on which the First Lien Representative is automatically deemed to have a Lien pursuant to the provisions of Section 2.3 .
Company shall have the meaning set forth in the recitals.
Comparable Junior Lien Security Document shall mean, in relation to any Collateral subject to any Lien created under any First Lien Document, each Junior Lien Security Document that creates a Lien on the same Collateral, granted by the same Grantor.
Controlled Accounts shall have the meaning set forth in Section 5.5(b) .
DIP Financing shall have the meaning set forth in Section 6.1 .
Discharge of First Lien Obligations shall mean, except to the extent otherwise provided in Section 5.7 , payment in full in cash (except for contingent indemnities and cost and reimbursement obligations to the extent no claim has been made) of all First Lien Obligations and, with respect to
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letters of credit or letter of credit guaranties outstanding under the First Lien Documents, delivery of cash collateral or backstop letters of credit in respect thereof in a manner consistent with the applicable First Lien Documents and otherwise reasonably satisfactory to the First Lien Representative, in each case after or concurrently with the termination of all commitments to extend credit thereunder and the termination of all commitments of the First Lien Secured Parties under the First Lien Documents; provided that the Discharge of First Lien Obligations shall not be deemed to have occurred if such payments are made with the proceeds of other First Lien Obligations that constitute an exchange or replacement for or a Refinancing of such Obligations or First Lien Obligations.
First Lien Authorized Representatives means the Term Loan Agent, the First Lien Trustee and each other Authorized Representative (as defined in the First Lien Pari Passu Intercreditor Agreement) that becomes a party to the First Lien Pari Passu Intercreditor Agreement following the date hereof.
First Lien Collateral shall mean all of the assets of any Grantor, whether real, personal or mixed, with respect to which a Lien is granted or purported to be granted as security for any First Lien Obligations pursuant to a First Lien Security Document.
First Lien Documents shall have the meaning given to the term Term Loan/Notes Documents by the First Lien Pari Passu Intercreditor Agreement.
First Lien Indenture shall have the meaning set forth in the recitals.
First Lien Obligations shall have the meaning given to the term Term Loan/Notes Secured Obligations in the First Lien Pari Passu Intercreditor Agreement.
First Lien Pari Passu Intercreditor Agreement shall mean the Pari Passu Intercreditor Agreement, dated as of June 23, 2016 and as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, by and among the Grantors, the First Lien Representative, the Term Loan Agent, the First Lien Trustee and each other First Lien Authorized Representative from time to time party thereto.
First Lien Representative has the meaning set forth in the introductory paragraph of this Agreement.
First Lien Secured Parties shall mean the First Lien Representative, the First Lien Authorized Representatives and the holders from time to time of the First Lien Obligations.
First Lien Security Documents shall have the meaning given to the term Term Loan/Notes Security Documents by the First Lien Pari Passu Intercreditor Agreement.
First Lien Trustee shall mean Wilmington Trust, National Association, in its capacity as trustee under the First Lien Indenture, and its permitted successors.
First Priority Liens shall mean Liens securing the First Lien Obligations, which Liens are superior and prior in priority to the Liens securing the Junior Lien Obligations.
Grantor Joinder Agreement means a supplement to this Agreement substantially in the form of Annex I, appropriately completed.
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Grantors shall mean Holdings, the Company and each other Subsidiary or direct or indirect parent company of the Company which has granted a security interest pursuant to any First Lien Security Document to secure any Series of First Lien Obligations.
Holdings shall mean J. C. Penney Company, Inc., a Delaware corporation.
Insolvency or Liquidation Proceeding shall mean:
(1) any case commenced by or against the Company or any other Grantor under any Bankruptcy Law, any other proceeding for the reorganization, receivership, recapitalization or adjustment or marshalling of the assets or liabilities of the Company or any other Grantor or its assets, any receivership or assignment for the benefit of creditors relating to the Company or any other Grantor or its assets or any similar case or proceeding relative to the Company or any other Grantor or its creditors or its assets, as such, in each case whether or not voluntary;
(2) any liquidation, dissolution, marshalling of assets or liabilities, assignment for the benefit of creditors or other winding up of or relating to the Company or any other Grantor or its assets, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency and whether or not in a court supervised proceeding; or
(3) any other proceeding of any type or nature in which substantially all claims of creditors of the Company or any other Grantor are determined and any payment or distribution is or may be made on account of such claims.
Junior Lien Authorized Representative means each Authorized Representative as defined in the Junior Lien Pari Passu Intercreditor Agreement.
Junior Lien Collateral shall mean all of the assets of any Grantor, whether real, personal or mixed, with respect to which a Lien is granted or purported to be granted as security for any Junior Lien Obligations pursuant to a Junior Lien Security Document.
Junior Lien Documents shall have the meaning given to such term by the Junior Lien Pari Passu Intercreditor Agreement.
Junior Lien Obligations shall have the meaning given to the term Junior Priority Secured Obligations in the Junior Lien Pari Passu Intercreditor Agreement.
Junior Lien Pari Passu Intercreditor Agreement means the pari passu intercreditor agreement, dated as of the date hereof, entered into by and among the Junior Lien Representative and one or more Junior Lien Authorized Representatives pursuant to which, among other things, the Junior Lien Secured Parties (or one or more Junior Lien Authorized Representatives on behalf of such Junior Lien Secured Parties) have authorized and directed the Junior Lien Representative to enter into this Agreement on behalf of the Junior Lien Secured Parties and to bind them hereby.
Junior Lien Representative has the meaning set forth in the introductory paragraph of this Agreement.
Junior Lien Secured Parties shall mean the Junior Lien Representative, the Junior Lien Authorized Representatives and the holders from time to time of the Junior Lien Obligations.
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Junior Lien Security Documents shall have the meaning given to the term Junior Priority Security Documents (or like term) in the Junior Lien Pari Passu Intercreditor Agreement.
Junior Liens shall mean the Liens securing the Junior Lien Obligations.
Lien shall mean, with respect to any asset, any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset.
Non-Conforming Plan of Reorganization shall mean any Plan of Reorganization which grants the Junior Lien Representative or any Junior Lien Secured Party any right or benefit, directly or indirectly, which right or benefit is inconsistent with the terms of this Agreement or prohibited at such time by the provisions of this Agreement.
Obligations shall mean any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, federal or foreign law), premium, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and bankers acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any indebtedness.
Payment Discharge shall have the meaning set forth in Section 5.1(a) .
Person shall mean any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, entity or other party, including any government and any political subdivision, agency or instrumentality thereof.
Plan of Reorganization shall mean any plan of reorganization, plan of liquidation, agreement for composition, or other type of plan of arrangement proposed in or in connection with any Insolvency or Liquidation Proceeding.
Pledged Collateral shall mean the Collateral in the possession or control of the First Lien Representative (or its agents or bailees), in accordance with the terms of the First Lien Pari Passu Intercreditor Agreement, to the extent that possession or control thereof perfects a Lien thereon under the UCC.
Recovery shall have the meaning set forth in Section 6.3 .
Refinance shall mean, in respect of any indebtedness, to refinance, extend, renew, defease, amend, increase, modify, supplement, restructure, refund, replace or repay, or to issue other indebtedness or enter alternative financing arrangements, in exchange for or replacement of such indebtedness, including by adding or replacing lenders, creditors, agents, borrowers and/or guarantors, and including in each case, but not limited to, after the original instrument giving rise to such indebtedness has been terminated. Refinanced and Refinancing shall have correlative meanings.
Representative shall mean each of the First Lien Representative and the Junior Lien Representative.
Series shall have the meaning given to such term by the First Lien Pari Passu Intercreditor Agreement.
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Subsidiary shall mean any Subsidiary of the Company as defined in the First Lien Indenture.
Term Loan Agent shall have the meaning set forth in the recitals.
Term Loan Agreement shall have the meaning set forth in the recitals.
UCC shall mean the Uniform Commercial Code as from time to time in effect in the State of New York.
1.2. Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words include, includes and including shall be deemed to be followed by the phrase without limitation. The word will shall be construed to have the same meaning and effect as the word shall. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified in accordance with this Agreement, (b) any reference herein to any Person shall be construed to include such Persons successors and assigns, (c) the words herein, hereof and hereunder, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Sections shall be construed to refer to Sections of this Agreement and (e) the words asset and property shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
SECTION 2. Lien Priorities .
2.1. Subordination of Liens . Notwithstanding (i) the date, time, method, manner or order of filing or recordation of any document or instrument or grant, attachment or perfection of any Liens granted to the Junior Lien Representative or any Junior Lien Secured Party on the Collateral or of any Liens granted to the First Lien Representative or any First Lien Secured Party on the Collateral (or any actual or alleged defect or deficiency in any of the foregoing or any avoidance, invalidation or subordination by any third party or court of competent jurisdiction of any or all of the security interests in the Collateral), (ii) any provision of the UCC, the Bankruptcy Code, any applicable law, any Junior Lien Documents or the First Lien Documents, (iii) whether the First Lien Representative, either directly or through agents, holds possession of, or has control over, all or any part of the Collateral, (iv) the fact that any such Liens may be subordinated, voided, avoided, invalidated or lapsed or (v) any other circumstance of any kind or nature whatsoever, the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party under its Junior Lien Documents, hereby agrees that: (a) any Lien on the Collateral securing any First Lien Obligations now or hereafter held by or on behalf of the First Lien Representative or any First Lien Secured Parties or any agent or trustee therefor regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects and prior to any Lien on the Collateral securing any Junior Lien Obligations and (b) any Lien on the Collateral securing any Junior Lien Obligations now or hereafter held by or on behalf of the Junior Lien Representative or any Junior Lien Secured Party or any agent or trustee therefor regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Collateral securing any First Lien Obligations. All Liens on the Collateral securing any First Lien Obligations shall be and remain senior in all respects and prior to all Liens on the Collateral securing any Junior Lien Obligations for all purposes, whether or not such Liens securing any First Lien Obligations are subordinated to any Lien securing any other obligation of the Company, any other Grantor or any other Person. The Junior Lien Representative, for itself and on behalf
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of the Junior Lien Secured Parties, expressly agrees that any Lien purported to be granted on any Collateral as security for the First Lien Obligations shall be deemed to be, and shall be deemed to remain, senior in all respects and prior to all Liens on the Collateral securing any Junior Lien Obligations for all purposes regardless of whether any Lien purported to be granted is found to be improperly granted, improperly perfected, preferential, a fraudulent conveyance or fraudulent transfer or legally or otherwise deficient in any manner.
2.2. Prohibition on Contesting Liens . The Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, agrees that (a) it shall not (and hereby waives any right to) take any action to contest, or support any other Person in contesting, directly or indirectly, in any proceeding (including any Insolvency or Liquidation Proceeding), the validity, extent, perfection, priority or enforceability of a Lien securing, or the allowability of any claim asserted with respect to, any First Lien Obligations held (or purported to be held) by or on behalf of the First Lien Representative or any of the First Lien Secured Parties or any agent or trustee therefor in any First Lien Collateral or Collateral and (b) none of them will oppose or otherwise contest (or support any Person contesting) any other request for judicial relief made in any court by the First Lien Representative or any First Lien Secured Party relating to the lawful enforcement of any First Priority Lien on Collateral or First Lien Collateral. The First Lien Representative, for itself and on behalf of each First Lien Secured Party, agrees that it shall not (and hereby waives any right to) take any action to contest, or support any other Person in contesting, directly or indirectly, in any proceeding (including any Insolvency or Liquidation Proceeding), the validity, extent, perfection, priority or enforceability of a Lien securing, or the allowability of any claim asserted with respect to, any Junior Lien Obligations held (or purported to be held) by or on behalf of the Junior Lien Representative or any Junior Lien Secured Party on the Collateral; provided , however , that nothing in this Agreement shall be construed to prevent or impair the rights of the First Lien Representative or any First Lien Secured Parties to enforce this Agreement (including the priority of the Liens securing the First Lien Obligations as provided in Section 2.1 ) or any of the First Lien Documents.
2.3. No New Liens . So long as the Discharge of First Lien Obligations has not occurred, the parties hereto agree that, after the date hereof, none of Holdings, the Company or any other Subsidiary shall grant or permit any additional Liens on any asset or property of such Person to secure any Junior Lien Obligations unless it has granted, or concurrently therewith grants, a Lien on such asset or property to secure the First Lien Obligations. If the Junior Lien Representative or any Junior Lien Secured Party shall (nonetheless and in breach hereof) acquire or hold any Lien on any assets or property of Holdings, the Company or any other Subsidiary securing the Junior Lien Obligations that is not also subject to the First Priority Lien in respect of the First Lien Obligations under the First Lien Documents, then the Junior Lien Representative or such Junior Lien Secured Party, without the need for any further consent of any party and notwithstanding anything to the contrary in any other agreement, document or instrument, (i) shall notify the First Lien Representative promptly upon becoming aware thereof and, unless Holdings, the Company or any other Subsidiary, as applicable, shall promptly grant a similar Lien on such assets or property to the First Lien Representative as security for the First Lien Obligations, and must assign such Lien to the First Lien Representative as security for the First Lien Obligations (but may retain a junior lien on such assets or property subject to the terms of this Agreement) and (ii) until such assignment or such grant of a similar Lien to the First Lien Representative, will be deemed to hold and have held such Lien for the benefit of the First Lien Representative as security for the First Lien Obligations. Any amounts received or distributed to the Junior Lien Representative pursuant to or as a result of any Lien granted in contravention of this Section 2.3 shall be subject to the provisions of Section 4.2 .
2.4. Perfection of Liens . Except as expressly set forth in Section 5.5 hereof, neither the First Lien Representative nor any First Lien Secured Party shall be responsible for perfecting and maintaining the perfection of Liens with respect to the Collateral for the benefit of the Junior Lien Representative or any Junior Lien Secured Parties. Neither the Junior Lien Representative nor any Junior Lien
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Secured Party shall be responsible for perfecting and maintaining the perfection of Liens with respect to the Collateral for the benefit of the First Lien Representative or any First Lien Secured Parties. The provisions of this Agreement are intended to govern the respective Lien priorities as between the First Lien Secured Parties and the Junior Lien Secured Parties and shall not impose on the First Lien Representative, the Junior Lien Representative, the Junior Lien Secured Parties or the First Lien Secured Parties or any agent or trustee therefor any obligations in respect of the disposition of proceeds of any Collateral which would conflict with prior perfected claims therein in favor of any other Person or any order or decree of any court or governmental authority or any applicable law.
SECTION 3. Enforcement .
3.1. Exercise of Remedies, Etc .
(a) So long as the Discharge of First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, (i) neither the Junior Lien Representative nor any Junior Lien Secured Party will (x) exercise or enforce or seek to exercise or enforce any rights or remedies (including setoff, recoupment and the right to credit bid debt (except as set forth in Section 3.1(f) below)) with respect to any Collateral securing both the First Lien Obligations and any Junior Lien Obligations in respect of any applicable Junior Lien Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or otherwise object to any foreclosure or enforcement proceeding or action brought with respect to the Collateral or any other collateral by the First Lien Representative or any First Lien Secured Party in respect of the First Lien Obligations, the exercise of any right by the First Lien Representative or any First Lien Secured Party (or any agent or sub-agent on their behalf) in respect of the First Lien Obligations under any lockbox agreement, control agreement, landlord waiver or bailees letter or similar agreement or arrangement to which the First Lien Representative or any First Lien Secured Party either is a party or may have rights as a third-party beneficiary, the Junior Lien Representative or any Junior Lien Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party of any rights and remedies as a secured party relating to the Collateral or any other collateral under the First Lien Documents or otherwise in respect of First Lien Obligations, or (z) object to any waiver or forbearance by the First Lien Secured Parties from or in respect of bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral or any other collateral in respect of First Lien Obligations and (ii) as between the First Lien Representative or First Lien Secured Parties, on one hand, and the Junior Lien Representative or any Junior Lien Secured Party, on the other hand, the First Lien Representative (or any person authorized by it) and the First Lien Secured Parties shall have the sole and exclusive right to enforce rights, exercise remedies (including setoff, recoupment and the right to credit bid their debt), marshal, process and make determinations regarding the release, disposition or restrictions, or waiver or forbearance of rights or remedies with respect to the Collateral and will also have the exclusive right to determine and direct the time, method and place for exercising such right or remedies or conducting any proceeding with respect thereto, in each case, without any consultation with or the consent of the Junior Lien Representative or any Junior Lien Secured Party; provided , however , that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, the Junior Lien Representative or any Junior Lien Secured Party may file a claim, proof of claim or statement of interest with respect to the Junior Lien Obligations, (B) the Junior Lien Representative or any Junior Lien Secured Party may take any action (not adverse to the prior Liens on the Collateral securing the First Lien Obligations or the rights of the First Lien Representative or the First Lien Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Collateral, (C) to the extent not otherwise inconsistent with or prohibited by the this Agreement, the Junior Lien Representative or the Junior Lien Secured Parties may exercise their rights and remedies as unsecured creditors, solely to the extent provided, and as limited,
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herein, (D) the Junior Lien Representative or the Junior Lien Secured Parties may exercise the rights and remedies provided for in this Agreement with respect to seeking adequate protection in an Insolvency or Liquidation Proceeding, and (E) the Junior Lien Representative or the Junior Lien Secured Parties may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims or Liens of the Junior Lien Representative or the Junior Lien Secured Parties, including any claims secured by the Collateral, in each case (A) through (E) above to the extent such action is not prohibited by, inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement. In exercising rights and remedies with respect to the First Lien Collateral or Collateral, the First Lien Representative and the First Lien Secured Parties may enforce the provisions of the First Lien Documents and exercise any one or more of its or their rights and remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(b) So long as the Discharge of First Lien Obligations has not occurred, the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection with the exercise of any right or remedy or otherwise in an Insolvency or Liquidation Proceeding (including set off, recoupment or the right to credit bid debt (except as set forth in Section 3.1(f) below)) with respect to any Collateral in respect of the applicable Junior Lien Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of First Lien Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.1(a) , the sole right of the Junior Lien Representative and the Junior Lien Secured Parties with respect to the Collateral is to hold a Lien on the Collateral in respect of the applicable Junior Lien Obligations pursuant to the Junior Lien Documents, as applicable, for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of First Lien Obligations has occurred.
(c) Subject to the proviso in clause (ii) of Section 3.1(a) , (i) the Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, agrees that neither the Junior Lien Representative nor any Junior Lien Secured Party will take any action that would hinder any exercise of remedies undertaken by the First Lien Representative or the First Lien Secured Parties with respect to the Collateral, the First Lien Collateral or any other collateral under the First Lien Documents, including any sale, lease, exchange, transfer or other disposition of the Collateral, the First Lien Collateral or such other collateral, whether by foreclosure or otherwise, and (ii) the Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, hereby waives any and all rights it or any Junior Lien Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Representative or any First Lien Secured Party seeks to enforce or collect the First Lien Obligations or the Liens granted in any of the First Lien Collateral or Collateral, regardless of whether any action or failure to act by or on behalf of the First Lien Representative or First Lien Secured Party is adverse to the interests of the Junior Lien Secured Parties.
(d) The Junior Lien Representative and each Junior Lien Secured Party hereby acknowledge and agree that no covenant, agreement or restriction contained in any applicable Junior Lien Document shall be deemed to restrict in any way the rights and remedies of the First Lien Representative or any First Lien Secured Parties with respect to the First Lien Collateral or Collateral as set forth in this Agreement and the First Lien Documents.
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(e) So long as the Discharge of First Lien Obligations has not occurred, neither the Junior Lien Representative nor any other Junior Lien Secured Party may assert or enforce any right of marshalling accorded to a junior lienholder, as against the First Lien Representative or any First Lien Secured Party (in their capacity as priority lienholders).
(f) Section 3.1 hereof shall not be construed to in any way limit or impair the right of any Junior Lien Secured Party from exercising a credit bid with respect to the Junior Lien Obligations in a sale or other disposition of Collateral under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, provided that in connection with and immediately after giving effect to such sale and credit bid there occurs a Discharge of First Lien Obligations.
3.2. Cooperation . Subject to the proviso in clause (ii) of Section 3.1(a) , the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that, unless and until the Discharge of First Lien Obligations has occurred, it will not commence, or join with any Person (other than the First Lien Secured Parties and the First Lien Representative upon the request thereof) in commencing, any enforcement, collection, execution, levy or foreclosure action or proceeding with respect to any Lien held by it in the Collateral or any other collateral under any of the applicable Junior Lien Documents or otherwise in respect of the applicable Junior Lien Obligations.
SECTION 4. Payments .
4.1. Application of Proceeds . Subject to the terms of the First Lien Pari Passu Intercreditor Agreement and the ABL Intercreditor Agreement, so long as the Discharge of First Lien Obligations has not occurred, the Collateral or proceeds thereof received in connection with the sale or other disposition of, or collection on, such Collateral upon the exercise of rights or remedies or any transfer or disposition in lieu thereof as a secured party, shall be applied by the First Lien Representative to the First Lien Obligations prior to application to any Junior Lien Obligations, in such order as specified in the First Lien Pari Passu Intercreditor Agreement and in the relevant First Lien Documents until the Discharge of First Lien Obligations has occurred. Upon the Discharge of First Lien Obligations, subject to the proviso of Section 5.1(a)(y) and subject to Section 5.7 hereof, the First Lien Representative shall deliver promptly to the Junior Lien Representative any Collateral or proceeds thereof held by it in the same form as received, with any endorsements reasonably requested by the Junior Lien Representative or as a court of competent jurisdiction may otherwise direct.
4.2. Payments Over . Any Collateral or First Lien Collateral or proceeds thereof received by the Junior Lien Representative or any Junior Lien Secured Party in connection with the exercise of any right or remedy (including set off, recoupment or credit bid) or in any Insolvency or Liquidation Proceeding relating to the Collateral not expressly permitted by this Agreement or prior to the Discharge of First Lien Obligations shall be segregated and held in trust for the benefit of and forthwith paid over to the First Lien Representative in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct. The First Lien Representative is hereby authorized to make any such endorsements as agent for the Junior Lien Representative or any such Junior Lien Secured Party. This authorization is coupled with an interest and is irrevocable.
SECTION 5. Other Agreements .
5.1. Releases .
(a) (x) If at any time any Grantor or any First Lien Secured Party delivers notice to the Junior Lien Representative with respect to any specified Collateral (including for such purpose, in the
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case of the sale or other disposition of all or substantially all of the equity interests in any Subsidiary, any Collateral held by such Subsidiary or any direct or indirect Subsidiary thereof) that:
(A) such specified Collateral has been or is being sold, leased, exchanged, transferred or otherwise disposed of by the owner of such Collateral in a transaction permitted under the First Lien Documents and the Junior Lien Documents; or
(B) the First Priority Liens thereon have been or are being released in connection with the release of a Subsidiary from its guarantee under all of the First Lien Documents or
(C) the First Priority Liens thereon have been or are being otherwise released as permitted by the First Lien Documents or by the First Lien Representative on behalf of the First Lien Secured Parties (unless, in the case of clause (B) or (C) of this Section 5.1(a)(x) , such release occurs in connection with, and after giving effect to, a Discharge of First Lien Obligations, which discharge is not in connection with a foreclosure of, or other exercise of remedies with respect to, Collateral by the First Lien Secured Parties (such discharge not in connection with any such foreclosure or exercise of remedies, a Payment Discharge )),
then the Junior Liens upon such Collateral will automatically be released and discharged as and when, but only to the extent, such Liens on such Collateral securing First Lien Obligations are released and discharged ( provided that in the case of any release of Collateral not pursuant to a Payment Discharge, the Liens on any Collateral disposed of in connection with the satisfaction in whole or in part of First Lien Obligations shall be automatically released but any proceeds thereof not used for purposes of the Discharge of First Lien Obligations or otherwise in accordance with the First Lien Documents shall be subject to Junior Liens and shall be applied pursuant to Section 4.1 ). Upon delivery to the Junior Lien Representative of a notice from the First Lien Representative stating that any such release of Liens securing or supporting the First Lien Obligations has become effective (or shall become effective upon the Junior Lien Representatives release), the Junior Lien Representative will promptly, at the Companys expense, execute and deliver such instruments, releases, termination statements or other documents confirming such release on customary terms, which instruments, releases and termination statements shall be substantially identical to the comparable instruments, releases and termination statements executed by the First Lien Representative in connection with such release. In the case of the sale of capital stock of a Subsidiary or any other transaction resulting in the release of such Subsidiarys guarantee under the First Lien Documents in accordance with the First Lien Documents, the guarantee in favor of the Junior Lien Secured Parties, if any, made by such Subsidiary will automatically be released and discharged as and when, but only to the extent, the guarantee by such Subsidiary of all First Lien Obligations is released and discharged.
(y) In the event of a Payment Discharge, the Junior Liens on Collateral owned by the Company or a Grantor immediately after giving effect to such Payment Discharge shall become first-priority security interests (subject to the ABL Intercreditor Agreement and any intercreditor agreements or arrangements among Junior Lien Secured Parties pursuant to Section 8.21 and subject to Liens permitted by the Junior Lien Documents); provided that if the Company or the Grantors incur at any time thereafter any new or replacement First Lien Obligations permitted under the Junior Lien Documents, then the provisions of Section 5.7 shall apply as if a Refinancing of First Lien Obligations had occurred.
(b) The Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, hereby irrevocably constitutes and appoints the First Lien Representative and any officer or agent of the First Lien Representative, with full power of substitution, as its true and lawful attorneys-in-fact with full irrevocable power and authority in the place and stead of the Junior Lien Representative or such holder or in the First Lien Representatives own name, from time to time in the First Lien Representatives
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discretion, for the purpose of carrying out the terms of this Section 5.1 , to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of this Section 5.1 , including any termination statements, endorsements or other instruments of transfer or release.
(c) Unless and until the Discharge of First Lien Obligations has occurred, the Junior Lien Representative for itself and on behalf of each Junior Lien Secured Party, hereby consents to the application, whether prior to or after a default, of proceeds of Collateral or other collateral to the repayment of First Lien Obligations pursuant to the First Lien Documents (but subject to the First Lien Pari Passu Intercreditor Agreement and the ABL Intercreditor Agreement).
5.2. Insurance . Unless and until the Discharge of First Lien Obligations has occurred, as between the First Lien Representative or any First Lien Secured Party, on one hand, and the Junior Lien Representative or any Junior Lien Secured Party, on the other hand, the First Lien Representative and the First Lien Secured Parties shall have the sole and exclusive right, to the extent permitted by the First Lien Documents and subject to the rights of the Grantors thereunder, to adjust settlement for any insurance policy covering the Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding affecting the Collateral. Subject to the First Lien Pari Passu Intercreditor Agreement and the ABL Intercreditor Agreement, unless and until the Discharge of First Lien Obligations has occurred, all proceeds of any such policy and any such award if in respect of the Collateral shall be paid (a) first, until the occurrence of the Discharge of First Lien Obligations, to the First Lien Representative for the benefit of the First Lien Secured Parties pursuant to the terms of the First Lien Documents, (b) second, after the occurrence of the Discharge of First Lien Obligations, to the Junior Lien Representative for the benefit of the Junior Lien Secured Parties pursuant to the terms of the applicable Junior Lien Documents and (c) third, if no Junior Lien Obligations are outstanding, to the owner of the subject property, such other person as may be entitled thereto or as a court of competent jurisdiction may otherwise direct. If the Junior Lien Representative or any Junior Lien Secured Party shall, at any time prior to the Discharge of First Lien Obligations, receive any proceeds of any such insurance policy or any such award in contravention of this Agreement, such proceeds shall be segregated and held in trust for the benefit of the First Lien Representative and it shall forthwith pay such proceeds over to the First Lien Representative in accordance with the terms of Section 4.2 .
5.3. Amendments to Junior Lien Security Documents .
(a) So long as the Discharge of First Lien Obligations has not occurred, without the prior written consent of the First Lien Representative, no Junior Lien Security Document may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification, or the terms of any new Junior Lien Security Document, would be prohibited by or inconsistent with any of the terms of this Agreement. The Junior Lien Representative agrees that each applicable Junior Lien Security Document shall include the following language (or language to similar effect approved by the First Lien Representative):
Notwithstanding anything herein to the contrary, the liens and security interests granted to [the Junior Lien Representative] pursuant to this Agreement and the exercise of any right or remedy by [the Junior Lien Representative] hereunder are subject to the limitations and provisions of the Junior Priority Intercreditor Agreement, dated as of [ ] [ ], 20[ ] (as amended, restated, supplemented or otherwise modified from time to time, the Intercreditor Agreement ) among Wilmington Trust, National Association, as Representative for the First Lien Secured Parties, and [ ], as Representative for the Junior Lien Secured Parties, and certain other persons party or that may become party thereto from time to time, and consented to by J. C. Penney Corporation, Inc. and
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the other Grantors identified therein. In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Agreement, the terms of the Intercreditor Agreement shall govern and control.
In addition, the Junior Lien Representative, on behalf of the Junior Lien Secured Parties, agrees that each mortgage covering any Collateral shall contain such other language as the First Lien Representative may reasonably request to reflect the subordination of such mortgage to the First Lien Document covering such Collateral.
(b) In the event that the First Lien Representative or any First Lien Secured Party enters into any amendment, waiver or consent in respect of or replaces any of the First Lien Security Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First Lien Security Document or changing in any manner the rights of the First Lien Representative, the First Lien Secured Parties, the Company or any other Grantor thereunder (including the release of any Liens in Collateral in accordance with Section 5.1 ), then such amendment, waiver or consent shall apply automatically to any comparable provision of each Comparable Junior Lien Security Document without the consent of the Junior Lien Representative or any Junior Lien Secured Party and without any action by the Junior Lien Representative, the Company or any other Grantor; provided that such amendment, waiver or consent does not materially adversely affect the rights of the Junior Lien Secured Parties or the interests of the Junior Lien Secured Parties in the Collateral in a manner materially different from that affecting the rights of the First Lien Secured Parties thereunder or therein. The First Lien Representative shall give written notice of such amendment, waiver or consent (along with a copy thereof) to the Junior Lien Representative; provided that the failure to give such notice shall not affect the effectiveness of such amendment with respect to the provisions of any Junior Lien Security Document as set forth in this Section 5.3(b) .
5.4. Rights as Unsecured Creditors . The Junior Lien Representative and the Junior Lien Secured Parties may exercise rights and remedies as an unsecured creditor against the Company or any Subsidiary that has guaranteed the Junior Lien Obligations in accordance with the terms of the applicable Junior Lien Documents and applicable law and to the extent not inconsistent with, or prohibited by, the terms of this Agreement. Nothing in this Agreement shall prohibit the receipt by the Junior Lien Representative or any Junior Lien Secured Party of required payments of interest and principal so long as such receipt is not the direct or indirect result of the exercise by the Junior Lien Representative or any Junior Lien Secured Party of rights or remedies as a secured creditor in respect of Collateral or other collateral or enforcement in contravention of this Agreement of any Lien in respect of Junior Lien Obligations held by any of them or in any Insolvency or Liquidation Proceeding. In the event the Junior Lien Representative or any Junior Lien Secured Party becomes a judgment lien creditor or other secured creditor in respect of Collateral, First Lien Collateral or other collateral as a result of its enforcement of its rights as an unsecured creditor in respect of Junior Lien Obligations or otherwise, such judgment or other lien shall be subordinated to the Liens securing the First Lien Obligations on the same basis as the other Liens securing the Junior Lien Obligations are so subordinated to the First Priority Liens securing First Lien Obligations under this Agreement. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the First Lien Representative or the First Lien Secured Parties may have with respect to the First Lien Collateral.
5.5. First Lien Representative as Gratuitous Bailee for Perfection .
(a) The First Lien Representative agrees to hold the Pledged Collateral that is part of the Collateral in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee for the benefit and on behalf of the Junior Lien Representative and each Junior Lien Secured Party and any assignee thereof solely for the purpose of perfecting the security interest granted in such Pledged Collateral pursuant to the Junior Lien Security Documents, subject to the terms and conditions of this Section 5.5 .
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(b) The Junior Lien Representative, on behalf of the Junior Lien Secured Parties, hereby appoints the First Lien Representative to act as its collateral agent under each control agreement to which it is a party for the purpose of perfecting the security interest granted in the deposit accounts, securities accounts and other accounts subject to such control agreements that constitute Collateral (collectively, the Controlled Accounts ) pursuant to the Junior Lien Security Documents, and the First Lien Representative accepts such appointment. In furtherance of the foregoing, each Grantor hereby grants a security interest in the Pledged Collateral consisting of Controlled Accounts to the First Lien Representative for the benefit of the Junior Lien Representative and the Junior Lien Secured Parties.
(c) The First Lien Representative shall have no obligation whatsoever to the Junior Lien Representative or any Junior Lien Secured Party to assure that the Pledged Collateral is genuine or owned by the Grantors or to protect or preserve rights or benefits of any Person or any rights pertaining to the Collateral except as expressly set forth in this Section 5.5 . The duties or responsibilities of the First Lien Representative under this Section 5.5 shall be limited solely to holding the Pledged Collateral as gratuitous bailee for the benefit and on behalf of the Junior Lien Representative and each Junior Lien Secured Party for purposes of perfecting the Liens held by the Junior Lien Secured Parties.
(d) The First Lien Representative shall not have by reason of the Junior Lien Documents or this Agreement or any other document a fiduciary relationship in respect of the Junior Lien Representative or any Junior Lien Secured Party, and each of the Junior Lien Representative and the Junior Lien Secured Parties hereby waives and releases the First Lien Representative from all claims and liabilities arising pursuant to the First Lien Representatives role under this Section 5.5 , as agent and gratuitous bailee with respect to the Collateral.
(e) Upon the Discharge of First Lien Obligations, the First Lien Representative shall (x) deliver to the Junior Lien Representative written notice of the occurrence thereof (which notice may state that such Discharge of First Lien Obligations is subject to the provisions of this Agreement, including, without limitation, Sections 5.1(a)(y) , 5.7 and 6.3 hereof) (it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of the Discharge of First Lien Obligations or required to take any actions based on such Discharge of First Lien Obligations) and (y) deliver to the Junior Lien Representative, to the extent that it is legally permitted to do so, the remaining Pledged Collateral (if any) together with any endorsements reasonably requested by the Junior Lien Representative (or otherwise allow the Junior Lien Representative to obtain control of such Pledged Collateral) or as a court of competent jurisdiction may otherwise direct. The Company and each Grantor shall take such further action as is required to effectuate the transfer contemplated hereby and shall indemnify the First Lien Representative for loss or damage suffered by the First Lien Representative as a result of such transfer except for loss or damage suffered by the First Lien Representative as a result of its own willful misconduct, gross negligence or bad faith. The First Lien Representative has no obligation to follow instructions from the Junior Lien Representative or any Junior Lien Secured Party in contravention of this Agreement.
(f) Neither the First Lien Representative nor any of the First Lien Secured Parties shall be required to marshal any present or future collateral security for the Companys or its Subsidiaries obligations to the First Lien Representative or the First Lien Secured Parties under the First Lien Documents or any assurance of payment in respect thereof or to resort to such collateral security or other assurances of payment in any particular order, and all of their rights in respect of such collateral security or any assurance of payment in respect thereof shall be cumulative and in addition to all other rights, however existing or arising.
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5.6. [ Reserved ].
5.7. No Release if Event of Reinstatement . If at any time in connection with or after the Discharge of First Lien Obligations the Company either in connection therewith or thereafter enters into any Refinancing of any First Lien Document evidencing a First Lien Obligation, then such Discharge of First Lien Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement, the First Lien Documents and the Junior Lien Documents, and the obligations under such Refinancing shall automatically be treated as First Lien Obligations for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, and the related documents shall be treated as First Lien Documents for all purposes of this Agreement. Upon receipt of a notice stating that the Company has entered into a new First Lien Document, the Junior Lien Representative shall promptly (at the expense of the Company) (a) enter into such documents and agreements (including amendments or supplements to this Agreement) as the Company or the First Lien Representative shall reasonably request in order to confirm to the First Lien Representative the rights contemplated hereby, in each case consistent in all material respects with the terms of this Agreement and (b) deliver to the First Lien Representative the Pledged Collateral together with any necessary endorsements (or otherwise allow the First Lien Representative to obtain possession or control of such Pledged Collateral).
SECTION 6. Insolvency or Liquidation Proceedings .
6.1. Financing and Sale Issues . The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that if the Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding:
(a) if the First Lien Representative or any First Lien Secured Party shall desire to permit (or not object to) the use of cash collateral and/or to permit the Company or any other Grantor to obtain financing (whether from any First Lien Secured Party or any third party) under Section 363 or Section 364 of the Bankruptcy Code or any similar provision in any Bankruptcy Law ( DIP Financing ), including if such DIP Financing is secured by Liens on the Collateral senior in priority to the Liens securing the Junior Lien Obligations, then the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that it will raise no objection to, and will not support any objection to, and will not otherwise contest such use of cash collateral or DIP Financing and will not request adequate protection or any other relief in connection therewith (except to the extent permitted by Section 6.2 ) and, to the extent the Liens securing the First Lien Obligations are subordinated to or pari passu with such DIP Financing, will subordinate its Liens in the Collateral and any other collateral to such DIP Financing (and all Obligations relating thereto), any adequate protection liens granted to the First Lien Secured Parties, and any carve out for professional and United States Trustee fees agreed to by the First Lien Representative, on the same basis as the other Liens securing the Junior Lien Obligations are so subordinated to the First Priority Liens securing the applicable First Lien Obligations;
(b) none of them will object to, or otherwise contest (or support any other Person contesting), any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Lien Obligations made by the First Lien Representative or any First Lien Secured Party;
(c) none of them will object to, or otherwise contest (or support any other Person contesting), any order relating to a sale of assets of the Company or any Grantor for which the First Lien Representative has consented that provides, to the extent that sale is to be free and clear of Liens, that the Liens securing the First Lien Obligations and the Junior Lien Obligations will
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attach to the proceeds of the sale on the same basis of priority as the existing Liens in accordance with this Agreement; provided that the Junior Lien Representative may object solely to any sale or bidding procedures proposed for any such sale;
(d) none of them will seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral, the First Lien Collateral or any other collateral without the prior written consent of the First Lien Representative;
(e) none of them will object to, or otherwise contest (or support any other Person contesting), (i) any request by the First Lien Representative or any First Lien Secured Party for adequate protection or (ii) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Representatives or such First Lien Secured Partys claiming a lack of adequate protection;
(f) none of them will assert or enforce any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Collateral or First Lien Collateral;
(g) none of them will oppose or otherwise contest (or support any Person contesting) any lawful exercise by the First Lien Representative or any First Lien Secured Party of the right to credit bid, under Section 363(k) of the Bankruptcy Code or any similar provision of any Bankruptcy Law, First Lien Obligations at any sale of Collateral or First Lien Collateral;
(h) none of them will challenge (or support any other Person challenging) the validity, enforceability, perfection or priority of the First Priority Liens on Collateral or First Lien Collateral (and the First Lien Representative and the First Lien Secured Parties agree not to challenge the validity, enforceability, perfection or priority of the Liens in favor of the Junior Lien Representative and each other Junior Lien Secured Party on the Collateral); and
(i) the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that notice received two Business Days prior to the entry of an order approving a DIP Financing and/or the use, lease, or other disposition of cash or other collateral shall be deemed to be adequate notice thereof.
6.2. Adequate Protection . The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees in an Insolvency or Liquidation Proceeding that none of them shall object to or contest (a) any request by the First Lien Representative or any First Lien Secured Party for adequate protection in any form, (b) any objection by the First Lien Representative or any First Lien Secured Party to any motion, relief, action, or proceeding based on the First Lien Representatives or any First Lien Secured Partys claiming a lack of adequate protection, or (c) the allowance and payment of interest, fees, expenses, or other amounts of the First Lien Representative or any First Lien Secured Party as adequate protection or otherwise under Section 506(b) or (c) of the Bankruptcy Code or any similar provision of any Bankruptcy Law. If the First Lien Secured Parties (or any subset thereof) are granted adequate protection in the form of a Lien on additional or replacement collateral and/or a superpriority administrative expense claim in connection with any DIP Financing and/or use of cash collateral under Section 363 or 364 of the Bankruptcy Code or any similar provision of any Bankruptcy Law, then the Junior Lien Representative, for itself and on behalf of the Junior Lien Secured Parties, may seek or request adequate protection in the form of (as applicable) a Lien on such additional or replacement collateral and/or a superpriority administrative expense claim, which Lien and/or superpriority administrative expense claim (as applicable) will be subordinated to the Liens securing or granted as adequate protection
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for, and claims with respect to, the First Lien Obligations and such DIP Financing (and all obligations relating thereto) and/or use of cash collateral on the same basis as the other Liens securing and claims with respect to the Junior Lien Obligations are so subordinated to the Liens securing and claims with respect to the First Lien Obligations under this Agreement and (ii) in the event any Junior Lien Secured Party seeks or requests adequate protection, and such adequate protection is granted in the form of (as applicable) a Lien on additional or replacement collateral and/or a superpriority administrative expense claim, then the Junior Lien Secured Parties agree that the First Lien Representative shall also be granted (as applicable) a senior Lien on such additional or replacement collateral as security and adequate protection for the First Lien Obligations and/or a senior superpriority administrative expense claim, and that any Lien on such additional or replacement Collateral securing or providing adequate protection for the Junior Lien Obligations and/or superpriority administrative expense claim shall be subordinated to the Liens on such Collateral securing and claims with respect to the First Lien Obligations and any such DIP Financing (and all obligations relating thereto) and any other Liens and claims granted to the First Lien Secured Parties as adequate protection on the same basis as the other Liens securing and claims with respect to the Junior Lien Obligations are so subordinated to such Liens securing and claims with respect to First Lien Obligations under this Agreement. To the extent that the First Lien Secured Parties are granted adequate protection in the form of payments in the amount of current post-petition fees and expenses and/or other cash payments, then the Junior Lien Secured Parties shall not be prohibited from seeking adequate protection in the form of payments in the amount of current post-petition incurred fees and expenses, and/or other cash payments (as applicable), subject to the right of the First Lien Secured Parties to object to the allowance and reasonableness of the amounts of fees and expenses or other cash payments so sought by the Junior Lien Secured Parties.
6.3. Preference Issues . If any First Lien Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of the Company or any other Grantor (or any trustee, receiver or similar person therefor) or to or for the benefit of its creditors, because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reason, any amount (a Recovery ), whether received as proceeds of security, enforcement of any right of setoff, recoupment or otherwise, then as among the parties hereto, the First Lien Obligations shall be deemed to be reinstated to the extent of such Recovery and to be outstanding as if such payment had not occurred, and such First Lien Secured Party shall be entitled to a future Discharge of First Lien Obligations with respect to all such recovered amounts and shall have all rights hereunder with respect thereto. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. Any Collateral or First Lien Collateral or proceeds thereof received by any Junior Lien Secured Party prior to the time of such Recovery shall be deemed to have been received prior to the Discharge of First Lien Obligations and subject to the provisions of Section 4.2 and the other terms of this Agreement. The First Lien Representative shall use commercially reasonable efforts to give written notice to the Junior Lien Representative of the occurrence of any such Recovery ( provided that the failure to give such notice shall not affect the First Lien Representatives rights hereunder, except it being understood that until the delivery of such notice to the Junior Lien Representative, the Junior Lien Representative shall not be charged with knowledge of such Recovery or required to take any actions based on such Recovery). The Junior Lien Representative, for itself and on behalf of each Junior Lien Secured Party, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with the provisions of Section 4.1 and the other terms of this Agreement, whether by preference or otherwise, it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the provisions of Section 4.1 and the other terms of this Agreement.
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6.4. Application . The parties hereto agree that this Agreement constitutes a subordinated agreement under Section 510(a) of the Bankruptcy Code or any similar provision under any Bankruptcy Law, and this Agreement shall be applicable prior to and after the commencement of any Insolvency or Liquidation Proceeding. All references herein to any Grantor shall apply to any trustee for such Person and such Person as debtor in possession. The relative rights as to the Collateral and other collateral and proceeds thereof shall continue after the filing thereof on the same basis as prior to the date of the petition, subject to any court order approving the financing of, or use of cash collateral by, any Grantor.
6.5. Reorganization Securities . If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed, pursuant to a Plan of Reorganization or similar dispositive restructuring plan, both on account of First Lien Obligations and on account of Junior Lien Obligations, then, to the extent the debt obligations distributed on account of the First Lien Obligations and on account of the Junior Lien Obligations are secured by Liens upon the same property, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the Liens securing such debt obligations.
6.6. Post-Petition Interest .
(a) The Junior Lien Representative, on behalf of the Junior Lien Secured Parties, hereby acknowledges and agrees that neither the Junior Lien Representative nor any Junior Lien Secured Party shall oppose or seek to challenge any claim by the First Lien Representative or any First Lien Secured Party for allowance in any Insolvency or Liquidation Proceeding of First Lien Obligations consisting of post-petition interest, fees or expenses.
(b) Neither the First Lien Representative nor any First Lien Secured Party shall oppose or seek to challenge any claim by the Junior Lien Representative or any Junior Lien Secured Party for allowance in any Insolvency or Liquidation Proceeding of Junior Lien Obligations consisting of post-petition interest, fees or expenses to the extent of the value of the Liens in favor of the Junior Lien Secured Parties on the Collateral (after taking into account the Liens in favor of the First Lien Secured Parties).
6.7. Nature of Obligations; Separate Classification . The Junior Lien Representative, on behalf of the Junior Lien Secured Parties, hereby acknowledges and agrees that (i) the Junior Lien Secured Parties claims against the Company and/or any Grantor in respect of the Collateral constitute junior claims separate and apart (and of a different class) from the senior claims of the First Lien Secured Parties against the Company and the Grantor in respect of the Collateral and (ii) the First Lien Obligations include all interest that accrues after the commencement of any Insolvency or Liquidation Proceeding of the Company or any Grantor at the rate provided for in the applicable First Lien Documents governing the same, whether or not a claim for post-petition interest is allowed or allowable in any such Insolvency or Liquidation Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the claims against the Company or any Grantor in respect of the Collateral constitute only one secured claim (rather than separate classes of senior and junior claims) under a Plan of Reorganization or other dispositive restructuring plan, then the Junior Lien Representative, for itself and on behalf of the Junior Lien Secured Parties, hereby acknowledge and agree that all distributions pursuant to Section 4.1 or otherwise shall be made as if there were separate classes of senior and junior secured claims against the Company and the Grantors in respect of the Collateral (with the effect being that, to the extent that the aggregate value of the Collateral is sufficient (for this purpose ignoring
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all claims held by the Junior Lien Representative on behalf of the Junior Lien Secured Parties), the First Lien Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of principal, fees and expenses, pre-petition interest and other claims, all amounts owing in respect of post-petition interest at the relevant contract rate (even though such claims may or may not be allowed or allowable in whole or in part in the respective Insolvency or Liquidation Proceeding) before any distribution is made in respect of the claims held by the Junior Lien Representative, for itself and on behalf of the Junior Lien Secured Parties, with the Junior Lien Representative, for itself and on behalf of the Junior Lien Secured Parties, hereby acknowledging and agreeing to turn over to the holders of the First Lien Obligations all amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence even if such turnover of amounts has the effect of reducing the amount of the claim of the Junior Lien Secured Parties).
6.8. Proofs of Claim . Subject to the limitations set forth in this Agreement, the First Lien Representative may file proofs of claim and other pleadings and motions with respect to any First Lien Obligations, any Junior Lien Obligations or the Collateral in any Insolvency or Liquidation Proceeding. If a proper proof of claim has not been filed in the form required in such Insolvency or Liquidation Proceeding at least ten (10) days prior to the expiration of the time for filing thereof, the First Lien Representative shall have the right (but not the duty) to file an appropriate claim for and on behalf of the Junior Lien Secured Parties with respect to any of the Junior Lien Obligations or any of the Collateral. In furtherance of the foregoing, the Junior Lien Representative hereby appoints the First Lien Representative as its attorneys-in-fact, with full authority in the place and stead of the Junior Lien Representative and full power of substitution and in the name of the Junior Lien Secured Parties or otherwise, to execute and deliver any document or instrument that the First Lien Representative is required or permitted to deliver pursuant to this Section 6.8 , such appointment being coupled with an interest and irrevocable.
6.9. Plan of Reorganization . No Junior Lien Secured Party (whether in the capacity as a secured or unsecured creditor) may support or vote in favor of any Non-Conforming Plan of Reorganization (and each shall be deemed to have voted to reject any such Non-Conforming Plan of Reorganization). Without limiting the generality of any provisions of this Agreement, any vote to accept, and any other act to support the confirmation or approval of, any Non-Conforming Plan of Reorganization shall be inconsistent with and accordingly, a violation of the terms of this Agreement, and the First Lien Representative shall be entitled to have any such vote to accept a Non-Conforming Plan of Reorganization dismissed and any such support of any Non-Conforming Plan of Reorganization withdrawn. Without limiting the generality of the foregoing, no Junior Lien Secured Party (whether in the capacity as a secured or unsecured creditor) may support or vote in favor of any Plan of Reorganization unless such Plan of Reorganization (a) pays off, in cash in full, all First Lien Obligations or (b) is accepted by the class of holders of First Lien Obligations voting thereon in accordance with Section 1126(c) of the Bankruptcy Code.
SECTION 7. Reliance; Waivers; etc .
7.1. Reliance . The consent by the First Lien Secured Parties to the execution and delivery of the Junior Lien Documents to which the First Lien Secured Parties have consented and all loans and other extensions of credit made or deemed made on and after the date hereof by the First Lien Secured Parties to the Company or any Subsidiary shall be deemed to have been given and made in reliance upon this Agreement. The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, acknowledges that it and the Junior Lien Secured Parties have, independently and without reliance on the First Lien Representative or any First Lien Secured Parties, and based on documents and information deemed by them appropriate, made their own credit analysis and decision to enter into the applicable Junior Lien Document, this Agreement and the transactions contemplated hereby and thereby and they will continue to make their own credit decision in taking or not taking any action under the applicable Junior Lien Document or this Agreement.
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7.2. No Warranties or Liability . The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, acknowledges and agrees that neither the First Lien Representative nor any of the First Lien Secured Parties has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectibility or enforceability of any of the First Lien Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon. The First Lien Secured Parties will be entitled to manage and supervise their respective loans and extensions of credit under the First Lien Documents in accordance with law and as they, in their sole discretion, may otherwise deem appropriate, and the First Lien Secured Parties may manage their loans and extensions of credit without regard to any rights or interests that the Junior Lien Representative or any of the Junior Lien Secured Parties have in the Collateral or otherwise, except as otherwise provided in this Agreement. Neither the First Lien Representative nor any First Lien Secured Parties shall have any duty to the Junior Lien Representative or any Junior Lien Secured Party to act or refrain from acting in a manner that allows, or results in, the occurrence or continuance of an event of default or default under any agreements with the Company or any Subsidiary thereof (including the Junior Lien Documents), regardless of any knowledge thereof that they may have or be charged with. The First Lien Representative, the First Lien Secured Parties, the Junior Lien Representative and the Junior Lien Secured Parties have not otherwise made to each other, nor do they hereby make to each other, any warranties, express or implied, nor do they assume any liability to each other with respect to (a) the enforceability, validity, value or collectibility of any of the Junior Lien Obligations, the First Lien Obligations or any guarantee or security which may have been granted to any of them in connection therewith, (b) the Companys title to or right to transfer any of the Collateral or (c) any other matter except as expressly set forth in this Agreement.
7.3. Obligations Unconditional . All rights, interests, agreements and obligations of the First Lien Representative and the First Lien Secured Parties, and the Junior Lien Representative and the Junior Lien Secured Parties, respectively, hereunder shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any First Lien Documents or any Junior Lien Documents; or any lack of or other matter relating to the validity, enforceability, perfection or priority of any lien creating or existing or purported to be creating or existing thereunder;
(b) any change in the time, manner or place of payment of, or in any other terms of, all or any of the First Lien Obligations or Junior Lien Obligations, or any amendment or waiver or other modification, including any increase in the amount thereof, whether by course of conduct or otherwise, of the terms of any First Lien Document or of the terms of any Junior Lien Document;
(c) any exchange of any security interest in any Collateral or any other collateral, or any amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of all or any of the First Lien Obligations or Junior Lien Obligations or any guarantee thereof;
(d) the commencement of any Insolvency or Liquidation Proceeding in respect of the Company or any other Grantor; or
(e) any other circumstances that otherwise might constitute a defense available to, or a discharge of, the Company or any other Grantor in respect of the First Lien Obligations or the Junior Lien Obligations in respect of this Agreement.
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SECTION 8. Miscellaneous .
8.1. Conflicts . Subject to Section 8.19 , in the event of any conflict between the provisions of this Agreement and the provisions of any First Lien Document or any Junior Lien Document, the provisions of this Agreement shall govern; provided, however, solely as it relates to matters between the ABL Agent and the ABL Secured Parties (as each term is defined in the ABL Intercreditor Agreement) on the one hand and the First Lien Secured Parties and the Junior Lien Secured Parties on the other hand, in the event of any conflict between the provisions of this Agreement and the provisions of the ABL Intercreditor Agreement, the provisions of the ABL Intercreditor Agreement shall govern.
8.2. Continuing Nature of This Agreement; Severability . Subject to Section 5.1(a)(y) , Section 5.7 and Section 6.3 , this Agreement shall continue to be effective until the Discharge of First Lien Obligations shall have occurred or such later time as all of the Junior Lien Obligations shall have been paid in full. This is a continuing agreement of lien subordination, and the First Lien Secured Parties may continue, at any time and without notice to the Junior Lien Representative or any Junior Lien Secured Party, to extend credit and other financial accommodations and lend monies to or for the benefit of the Company or any other Grantor constituting First Lien Obligations in reliance hereon. The terms of this Agreement shall survive, and shall continue in full force and effect, in any Insolvency or Liquidation Proceeding. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
8.3. Amendments; Waivers . No amendment, modification or waiver of any of the provisions of this Agreement by the Junior Lien Representative or the First Lien Representative shall be deemed to be made except as contemplated by the First Lien Documents and the Junior Lien Documents and then pursuant to an agreement or agreements in writing signed by or on behalf of the First Lien Representative and the Junior Lien Representative or their respective authorized agents, and consented to in writing by the Company, and each waiver, if any, shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of the parties making such waiver or the obligations of the other parties to such party in any other respect or at any other time; provided that no such agreement shall by its terms amend, modify or otherwise affect the rights or obligations of any Grantor without the Companys prior written consent. Notwithstanding anything in this Section 8.3 to the contrary, this Agreement may be amended from time to time at the request of the Company, at the Companys expense, and with the consent of First Lien Representative and the Junior Lien Representative but without the consent of any other First Lien Secured Party or Junior Lien Secured Party to (i) secure additional extensions of credit or add other parties holding First Lien Obligations or Junior Lien Obligations to the extent such indebtedness does not expressly violate the First Lien Documents or the Junior Lien Documents and (ii) in the case of such additional Junior Lien Obligations, (a) establish that the Liens on the Collateral securing such Junior Lien Obligations shall be junior and subordinate in all respects to all Liens on the Collateral securing any First Lien Obligations (at least to the same extent as the Liens on the Collateral in favor of the Junior Lien Secured Parties are junior and subordinate to the Liens on the Collateral in favor of the First Lien Secured Parties pursuant to this Agreement immediately prior to the incurrence of such additional Junior Lien Obligations) and (b) provide to the holders of such Junior Lien Obligations (or any agent or trustee thereof) the comparable rights and benefits (including any improved rights and benefits that have been consented to by the First Lien Representative) as are provided to the Junior Lien Secured Parties under this Agreement.
8.4. Information Concerning Financial Condition of Holdings, the Company and the Subsidiaries . The First Lien Representative, the First Lien Secured Parties, the Representative and the Junior Lien Secured Parties shall each be responsible for keeping themselves informed of (a) the financial condition of Holdings, the Company and the Subsidiaries and all endorsers and/or guarantors of the First
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Lien Obligations or the Junior Lien Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the First Lien Obligations or the Junior Lien Obligations; provided, however, that nothing in this Agreement shall impose a duty on the First Lien Representative to keep itself informed of the financial condition of Holdings, the Company and the Subsidiaries or of other circumstances bearing upon the risk of nonpayment of the First Lien Obligations or any Junior Lien Obligations beyond that which is required pursuant to the Second Lien Documents. The First Lien Representative, the First Lien Secured Parties, the Junior Lien Representative and the Junior Lien Secured Parties shall have no duty to advise any other party hereunder of information known to it or them regarding such condition or any such circumstances or otherwise. In the event that the First Lien Representative, any First Lien Secured Party, the Junior Lien Representative or any Junior Lien Secured Party, in its or their sole discretion, undertakes at any time or from time to time to provide any such information to any other party, it or they shall be under no obligation (w) to make, and the First Lien Representative, the First Lien Secured Parties, the Junior Lien Representative and the Junior Lien Secured Parties shall not make, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of any such information so provided, (x) to provide any additional information or to provide any such information on any subsequent occasion, (y) to undertake any investigation or (z) to disclose any information that, pursuant to accepted or reasonable commercial finance practices, such party wishes to maintain confidential or is otherwise required to maintain confidential.
8.5. Subrogation . The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, hereby waives any rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of First Lien Obligations has occurred.
8.6. Application of Payments . Except as otherwise provided herein or in the ABL Intercreditor Agreement, all payments received by the First Lien Secured Parties may be applied, reversed and reapplied, in whole or in part, to such part of the First Lien Obligations by the First Lien Secured Parties in a manner consistent with the terms of the First Lien Documents, The First Lien Pari Passu Intercreditor Agreement and the ABL Intercreditor Agreement. Except as otherwise provided herein, the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, assents to any such extension or postponement of the time of payment of the First Lien Obligations or any part thereof and to any other indulgence with respect thereto, to any substitution, exchange or release of any security that may at any time secure any part of the First Lien Obligations and to the addition or release of any other Person primarily or secondarily liable therefor.
8.7. Consent to Jurisdiction; Waivers . The parties hereto consent to the jurisdiction of any state or federal court located in New York, New York, and consent that all service of process may be made by registered mail directed to such party as provided in Section 8.8 for such party. Service so made shall be deemed to be completed three days after the same shall be posted as aforesaid. The parties hereto waive any objection to any action instituted hereunder in any such court based on forum non conveniens, and any objection to the venue of any action instituted hereunder in any such court. Each of the parties hereto waives any right it may have to trial by jury in respect of any litigation based on, or arising out of, under or in connection with this Agreement, or any course of conduct, course of dealing, verbal or written statement or action of any party hereto in connection with the subject matter hereof.
8.8. Notices . Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy or electronic mail, as follows:
(i) if to a Grantor, to it c/o J. C. Penney Corporation, Inc., 6501 Legacy Drive, Mail Code 1304, Plano, TX 75024, Attention of the Treasurer (Telecopy No. (972) 431-2044), with a copy to the General Counsel;
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(ii) if to the First Lien Representative, to Wilmington Trust, National Association, Global Capital Markets, 50 South Sixth Street, Suite 1290, Minneapolis, Minnesota 55402, Attention J.C. Penney Collateral Agency Administrator;
(iii) if to the Second Lien Representative, to [ ]; or
(iv) with respect to any party hereto, to such other address as may be designated by such party in a written notice to each other party hereto
Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given shall be in writing and may be personally served, telecopied, electronically mailed or sent by courier service or U.S. mail and shall be deemed to have been given when delivered in person or by courier service, upon receipt of a telecopy or electronic mail or upon receipt via U.S. mail (registered or certified, with postage prepaid and properly addressed). For the purposes hereof, the addresses of the parties hereto shall be as set forth below each partys name on the signature pages hereto, or, as to each party, at such other address as may be designated by such party in a written notice to all of the other parties.
8.9. Further Assurances . Each Grantor and the Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, agrees that each of them shall take such further action and shall execute and deliver to the First Lien Representative such additional documents and instruments (in recordable form, if requested) as are necessary or that the First Lien Representative may reasonably request to effectuate the terms of and the lien priorities contemplated by this Agreement.
8.10. Governing Law . This Agreement has been delivered and accepted at and shall be deemed to have been made at New York, New York and shall be interpreted, and the rights and liabilities of the parties bound hereby determined, in accordance with the laws of the State of New York.
8.11. Binding on Successors and Assigns . This Agreement shall be binding upon the First Lien Representative, the First Lien Secured Parties, the Junior Lien Representative, the Junior Lien Secured Parties, the Company, the Grantors consenting hereto and their respective permitted successors and assigns.
8.12. Specific Performance . The First Lien Representative may demand specific performance of this Agreement. The Junior Lien Representative, on behalf of itself and each Junior Lien Secured Party, hereby irrevocably waives any defense based on the adequacy of a remedy at law and any other defense that might be asserted to bar the remedy of specific performance in any action that may be brought by the First Lien Representative.
8.13. Section Titles . The section titles contained in this Agreement are and shall be without substantive meaning or content of any kind whatsoever and are not a part of this Agreement.
8.14. Counterparts . This Agreement may be executed in one or more counterparts, including by means of facsimile or pdf file thereof, each of which shall be an original and all of which shall together constitute one and the same document.
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8.15. Authorization . By its signature, each party hereto represents and warrants to the other parties hereto that the Person executing this Agreement on behalf of such party is duly authorized to execute this Agreement. The First Lien Representative represents and warrants that this Agreement is binding upon the First Lien Secured Parties. The Junior Lien Representative represents and warrants that this Agreement is binding upon the Junior Lien Secured Parties.
8.16. No Third Party Beneficiaries; Successors and Assigns . This Agreement and the rights and benefits hereof shall inure to the benefit of, and be binding upon, each of the parties hereto and their respective successors and assigns and shall inure to the benefit of each of, and be binding upon, the holders of First Lien Obligations and Junior Lien Obligations. No other Person shall have or be entitled to assert rights or benefits hereunder.
8.17. Effectiveness . This Agreement shall become effective when executed and delivered by the parties hereto. This Agreement shall be effective both before and after the commencement of any Insolvency or Liquidation Proceeding. All references to the Company or any other Grantor shall include the Company or any other Grantor as debtor and debtor-in-possession and any receiver or trustee for the Company or any other Grantor (as the case may be) in any Insolvency or Liquidation Proceeding.
8.18. [Reserved] .
8.19. Relative Rights . Notwithstanding anything in this Agreement to the contrary (except to the extent contemplated by Section 5.3(b) ), nothing in this Agreement is intended to or will (a) amend, waive or otherwise modify the provisions of any First Lien Document or any Junior Lien Document, or permit the Company or any other Grantor to take any action, or fail to take any action, to the extent such action or failure would otherwise constitute a breach of, or default under, any First Lien Document or any Junior Lien Document, (b) change the relative priorities of the First Lien Obligations or the Liens granted under the First Lien Documents on the Collateral (or any other assets) as among the First Lien Secured Parties, (c) otherwise change the relative rights of the First Lien Secured Parties in respect of the Collateral as among such First Lien Secured Parties or (d) obligate the Company or any Subsidiary to take any action, or fail to take any action, if taking or failing to take such action, as the case may be, would otherwise constitute a breach of, or default under, any First Lien Document or any Junior Lien Document.
8.20. References . Notwithstanding anything to the contrary in this Agreement, any references contained herein to any Section, clause, paragraph, definition or other provision of any First Lien Document or Junior Lien Document (including any definition contained therein) shall be deemed to be a reference to such Section, clause, paragraph, definition or other provision as in effect on the date of this Agreement; provided that any reference to any such Section, clause, paragraph or other provision shall refer to such Section, clause, paragraph or other provision of the applicable First Lien Document or Junior Lien Document, as applicable (including any definition contained therein), as amended or modified from time to time if such amendment or modification has been made in accordance with the applicable First Lien Document or Junior Lien Document.
8.21. Intercreditor Agreements . Notwithstanding anything to the contrary contained in this Agreement, each party hereto agrees that (i) the Junior Lien Secured Parties (as among themselves) may enter into intercreditor agreements (including the Junior Lien Pari Passu Intercreditor Agreement) or similar arrangements governing the rights, benefits and privileges as among the Junior Lien Secured Parties in respect of the Collateral, this Agreement and the other Junior Lien Documents, including as to application of proceeds of the Collateral, voting rights, control of the Collateral and waivers with respect to the Collateral and (ii) the First Lien Secured Parties (as among themselves) may enter into intercreditor agreements (including the Junior Lien Pari Passu Intercreditor Agreement) or similar arrangements governing
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the rights, benefits and privileges as among the First Lien Secured Parties in respect of the Collateral, this Agreement and the other First Lien Documents, including as to application of proceeds of the Collateral, voting rights, control of the Collateral and waivers with respect to the Collateral. In any event, if a respective intercreditor agreement (or similar arrangement) exists, the provisions thereof shall not be (or be construed to be) an amendment, modification or other change to this Agreement or any other First Lien Security Document or Junior Lien Security Document, and the provisions of this Agreement and the other First Lien Security Documents and Junior Lien Security Documents shall remain in full force and effect in accordance with the terms hereof and thereof (as such provisions may be amended, modified or otherwise supplemented from time to time in accordance with the terms hereof and thereof, including to give effect to any intercreditor agreement (or similar arrangement)). The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the First Lien Secured Parties on the one hand and the Junior Lien Secured Parties on the other hand. None of the Company, any Grantor or any Subsidiary of the Company or any other creditor thereof shall have any rights hereunder. Nothing in this Agreement is intended to or shall impair the obligations of the Company or any other Grantor to pay the First Lien Obligations and the Junior Lien Obligations as and when the same shall become due and payable in accordance with their terms.
8.22. Concerning the First Lien Representative . The First Lien Representative is acting in this Agreement solely in its capacity as Collateral Agent under the First Lien Pari Passu Intercreditor Agreement, and shall be entitled to all of the rights, privileges and immunities of the Collateral Agent set forth therein and in the First Lien Documents, as if such rights, privileges and immunities were set forth herein.
8.23. Additional Grantors . The Company and each other Grantor on the date of this Agreement will constitute the original Grantors party hereto. The original Grantors will cause each Person that becomes a Grantor after the date hereof to contemporaneously become a party hereto (as a Grantor) by executing and delivering a Grantor Joinder Agreement to each Representative. The parties hereto agree that, notwithstanding any failure to take the actions required by the immediately preceding sentence, each Person that becomes a Grantor at any time (and any security granted by any such Person) will be subject to the provisions hereof as fully as if it constituted a Grantor party hereto and had complied with the requirements of the immediately preceding sentence.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as Collateral Agent, as First Lien Representative | ||
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[ ], as Junior Lien Representative | ||
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CONSENT OF COMPANY AND GRANTORS-
Dated: [ ] [ ], 20[ ]
Reference is made to the Junior Priority Intercreditor Agreement dated as of the date hereof among WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as Collateral Agent, as Representative for the First Lien Secured Parties, and [ ], as Representative for the Junior Lien Secured Parties, as the same may be amended, restated, supplemented, waived, or otherwise modified from time to time (the Intercreditor Agreement ). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Intercreditor Agreement.
Each of the undersigned Grantors has read the foregoing Intercreditor Agreement and consents thereto. Each of the undersigned Grantors agrees not to take any action that would be contrary to the express provisions of the foregoing Intercreditor Agreement, agrees to abide by the requirements expressly applicable to it under the foregoing Intercreditor Agreement and agrees that, except as otherwise provided therein, no First Lien Secured Party or Junior Lien Secured Party shall have any liability to any Grantor for acting in accordance with the provisions of the foregoing Intercreditor Agreement, the First Lien Documents or the Junior Lien Documents. Each Grantor understands that the foregoing Intercreditor Agreement is for the sole benefit of the First Lien Secured Parties and the Junior Lien Secured Parties and their respective successors and assigns, and that such Grantor is not an intended beneficiary or third party beneficiary thereof except to the extent otherwise expressly provided therein.
Without limitation to the foregoing, each Grantor agrees to take such further action and to execute and deliver such additional documents and instruments (in recordable form, if requested) as the First Lien Representative or the Junior Lien Representative (or any of their respective agents or representatives) may reasonably request to effectuate the terms of and the lien priorities contemplated by the Intercreditor Agreement.
This Consent shall be governed and construed in accordance with the laws of the State of New York. Notices delivered to any Grantor pursuant to this Consent shall be delivered in accordance with the notice provisions set forth in the Term Loan Agreement.
[Signature page follows]
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IN WITNESS HEREOF, this Consent is hereby executed by each of the Grantors as of the date first written above.
J. C. PENNEY CORPORATION, INC. | ||
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J.C. PENNEY COMPANY, INC. | ||
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[OTHER GRANTORS] | ||
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Annex I
[FORM OF] GRANTOR JOINDER AGREEMENT NO. [ ] dated as of [ ], 201[ ] (the Grantor Joinder Agreement ) to the JUNIOR PRIORITY INTERCREDITOR AGREEMENT dated as of [ ], 20[ ] (the Intercreditor Agreement ), among WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as Collateral Agent, as Representative for the First Lien Secured Parties, and [ ], as Representative for the Junior Lien Secured Parties, each other Representative from time to time party thereto, and consented to by J.C. PENNEY CORPORATION, INC. (the Company ) and each of the other Grantors party thereto.
A. Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Intercreditor Agreement.
B. [ ], a Subsidiary of the Company (the Additional Grantor ), has granted a Lien on all or a portion of its assets to secure [First] [Junior] Lien Obligations and such Additional Grantor is not a party to the Intercreditor Agreement.
C. The Additional Grantor wishes to become a party to the Intercreditor Agreement and to acquire and undertake the rights and obligations of a Grantor thereunder. The Additional Grantor is entering into this Grantor Joinder Agreement in accordance with the provisions of the Intercreditor Agreement in order to become a Grantor thereunder.
Accordingly, the Additional Grantor agrees as follows, for the benefit of the Representatives, the Company and each other party to the Intercreditor Agreement:
Section 1. Accession to the Intercreditor Agreement . The Additional Grantor (a) hereby accedes and becomes a party to the Intercreditor Agreement as a Grantor with the same force and effect as if originally named therein as a Grantor, (b) agrees to all the terms and provisions of the Intercreditor Agreement and (c) shall have all the rights and obligations of a Grantor under the Intercreditor Agreement.
Section 2. Representations, Warranties and Acknowledgment of the Additional Grantor . The Additional Grantor represents and warrants to each Representative, the First Lien Secured Parties and the Junior Lien Secured Parties that this Grantor Joinder Agreement has been duly authorized, executed and delivered by such Additional Grantor and constitutes the legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
Section 3. Counterparts . This Grantor Joinder Agreement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Grantor Joinder Agreement shall become effective when each other Representative shall have received a counterpart of this Grantor Joinder Agreement that bears the signature of the Additional Grantor. Delivery of an executed counterpart of a signature page to this Grantor Joinder Agreement by telecopy or electronic image scan transmission (such as a pdf file) shall be effective as delivery of a manually signed counterpart of this Grantor Joinder Agreement.
Section 4. Benefit of Agreement . The agreements set forth herein or undertaken pursuant hereto are for the benefit of, and may be enforced by, any party to the Intercreditor Agreement.
Section 5. Governing Law . THIS GRANTOR JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND (TO THE EXTENT APPLICABLE) THE BANKRUPTCY CODE.
Section 6. Severability . In the event any one or more of the provisions contained in this Grantor Joinder Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
Section 7. Notices . All communications and notices hereunder shall be in writing and given as provided in Section 8.8 of the Intercreditor Agreement.
Section 8. The Additional Grantor agrees to reimburse each Representative for its reasonable out-of-pocket expenses in connection with this Grantor Joinder Agreement, including the reasonable fees, other charges and disbursements of counsel for each Representative.
[ Signature Pages Follow ]
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IN WITNESS WHEREOF, the Additional Grantor has duly executed this Grantor Joinder Agreement to the Intercreditor Agreement as of the day and year first above written.
[NAME OF SUBSIDIARY] | ||
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Acknowledged by:
[EACH REPRESENTATIVE], as Representative with respect to [the [ ] Agreement] | ||
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