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): March 12, 2018

 

 

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)

Registrant’s 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))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Act of 1934 (§240.12b-2 of this chapter)

Emerging Growth Company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

 


Item 1.01 Entry into a Material Definitive Agreement.

On March 12, 2018, 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 “JCP 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 $400,000,000 aggregate principal amount of 8.625% Senior Secured Second Priority Notes due 2025 (the “Notes”).

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 bear interest at a rate of 8.625% per year and will mature on March 15, 2025. Interest on the Notes is payable on March 15 and September 15 of each year, commencing on September 15, 2018. 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 March 15, 2021, the Corporation may redeem the Notes in whole or in part, at the Corporation’s 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 excess of (a) the present value at the redemption date of (1) the redemption price of the Notes to be redeemed at March 15, 2021 as set forth in the terms of the Notes plus (2) all required interest payments due on the Notes to be redeemed through March 15, 2021 (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 defined in the Indenture) as of the redemption date plus 50 basis points; over (b) the principal amount of the Notes to be redeemed; plus, in each case, any accrued and unpaid interest to, but not including, the redemption date. The Corporation may also redeem the Notes in whole or in part at any time, and from time to time, on or after March 15, 2021 and prior to maturity at a redemption price equal to (i) 104.313% of the principal amount of the Notes to be redeemed if the redemption occurs on or after March 15, 2021 and before March 15, 2022, (ii) 102.156% of the principal amount of the Notes to be redeemed if the redemption occurs on or after March 15, 2022 and before March 15, 2023 or (iii) 100.000% of the principal amount of the Notes to be redeemed if the redemption occurs on or after March 15, 2023, 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 March 15, 2021, the Corporation may redeem up to 35% of the original principal amount of the Notes at a redemption price equal to 108.625% 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 Corporation’s ability to (i) consolidate, merge or sell all or substantially all of its properties or assets, (ii) sell (x) Collateral (as defined below), other than ABL Priority Collateral (as defined below) (“Second Priority Collateral”), or (y) any real property interest that secures the JCP Parties’ obligations under the Amended and Restated Credit and Guaranty Agreement, dated as of June 23, 2016, among the JCP Parties, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent (the “Term Loan Facility”), or the Indenture (the “2016 Indenture”), dated as of June 23, 2016, among the JCP Parties and Wilmington


Trust, National Association, as trustee (“Material Real Estate Assets”), (iii) create liens and to engage in certain sale and lease-back transactions with the Second Priority Collateral or any Material Real Estate Asset, and (iv) permit any subsidiary of the Corporation that guarantees the Notes and that directly owns any Material Real Estate Asset to incur or guarantee any indebtedness. In the event the aggregate net cash proceeds from permitted dispositions of Second Priority Collateral or Material Real Estate Assets 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 addition, if the Corporation 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.

The obligations under the Notes are guaranteed on a senior secured basis by the Company and the subsidiaries of the Corporation that are JCP Parties. The obligations under the Notes are secured by collateral substantially similar to the collateral under the Term Loan Facility and the 2016 Indenture, other than real property interests (the “Collateral”), including liens on substantially all personal property of the JCP Parties, subject to certain exclusions set forth in the Indenture and the related security documents, including a Pledge and Security Agreement (the “Security Agreement”), dated as of March 12, 2018, among the JCP Parties and Wilmington Trust, National Association, as collateral agent (the “Collateral Agent”). The Security Agreement provides for (i) a grant of a security interest over the Collateral in favor of the Collateral Agent on behalf of the holders of the Notes, (ii) certain perfection requirements and (iii) customary representations and warranties, covenants and remedial provisions with respect to the Collateral. The liens securing the obligations under the Notes with respect to inventory, accounts receivable, deposit accounts and certain related collateral of the JCP Parties (the “ABL Priority Collateral”) are junior to the liens on such collateral securing the loans and other obligations incurred under the Amended and Restated Credit Agreement (as amended, the “ABL Credit Agreement”), dated as of June 20, 2017, among the Company, the Corporation, J. C. Penney Purchasing Corporation, the lenders party thereto, Wells Fargo Bank, National Association, as administrative agent and 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 Term Loan Facility and the 2016 Indenture (the “Term Loan/2016 Notes Collateral Agent”), and the JCP Parties, to which the Collateral Agent, as representative of the holders of the obligations under the Notes, has become a party pursuant to a Representative Joinder Agreement No. 1 (the “Joinder Agreement”), dated as of March 12, 2018. The ABL Intercreditor Agreement governs, as among the holders of the loans and other obligations under the Term Loan Facility and the 2016 Indenture, the holders of the loans and other obligations under the ABL Credit Agreement, and the holders of the obligations under the Notes, 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.


In addition, the liens securing the obligations under the Notes with respect to the Collateral (including the ABL Priority Collateral) are junior to the liens on such Collateral securing the loans and other obligations under the Term Loan Facility and the 2016 Indenture pursuant to a Junior Priority Intercreditor Agreement (the “First/Second Priority Intercreditor Agreement”), dated as of March 12, 2018, between the Term Loan/2016 Notes Collateral Agent and the Collateral Agent. The First/Second Priority Intercreditor Agreement governs, as among the holders of the loans and other obligations under the Term Loan Facility and the 2016 Indenture, on the one hand, and the holders of the obligations under the Notes, on the other hand, with respect to the Collateral, the respective lien priorities, enforcement rights, application of proceeds and rights under insolvency proceedings.

Certain of the initial purchasers of the Notes and their related entities provide commercial banking, investment banking, trustee and custodial services to the Company.

In connection with the issuance of the Notes, the Company, the Corporation and J. C. Penney Purchasing Corporation entered into an Amendment No. 3 to Credit Agreement (the “ABL Amendment”) to the ABL Credit Agreement. The ABL Amendment makes certain clarifying amendments to the ABL Credit Agreement.

Copies of the Indenture, the Security Agreement, the Joinder Agreement, the First/Second Priority Intercreditor Agreement and the ABL Amendment are filed herewith as Exhibits 4.1, 10.1, 10.2, 10.3 and 10.4, respectively. A copy of the ABL Intercreditor Agreement was filed as Exhibit 10.3 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 24, 2016. The foregoing descriptions of the Indenture, the Security Agreement, the ABL Intercreditor Agreement, the Joinder Agreement, the First/Second Priority Intercreditor Agreement and the ABL Amendment do not purport to be complete and are qualified in their entirety by reference to the full texts of the Indenture, the Security Agreement, the ABL Intercreditor Agreement, the Joinder Agreement, the First/Second Priority Intercreditor Agreement and the ABL Amendment, respectively, which are incorporated herein by reference.

 

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth under Item 1.01 above regarding the Notes is incorporated herein by reference as if fully set forth herein.


Item 9.01 Financial Statements and Exhibits.

(d)

 

Exhibit 4.1    Indenture (including the form of Note), dated as of March 12, 2018, among J.  C. Penney Company, Inc., J. C. Penney Corporation, Inc., the subsidiary guarantors party thereto and Wilmington Trust, National Association
Exhibit 10.1    Pledge and Security Agreement, dated as of March  12, 2018, among J. C. Penney Company, Inc., J. C. Penney Corporation, Inc., the subsidiary guarantors party thereto and Wilmington Trust, National Association, as collateral agent
Exhibit 10.2    Representative Joinder Agreement No. 1, dated as of March 12, 2018, to the 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
Exhibit 10.3    Junior Priority Intercreditor Agreement, dated as of March  12, 2018, between Wilmington Trust, National Association, as representative for the first lien secured parties, and Wilmington Trust, National Association, as representative for the junior lien secured parties
Exhibit 10.4    Amendment No. 3 to Credit Agreement, dated as of March  8, 2018, among J. C. Penney Company, Inc., J. C. Penney Corporation, Inc., J. C. Penney Purchasing Corporation, the guarantors party thereto, Wells Fargo Bank, National Association, as administrative agent, revolving agent and collateral agent, and the lenders party thereto


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/ Jeffrey Davis
 

Jeffrey Davis

Executive Vice President and Chief

Financial Officer

Date: March 14, 2018

Exhibit 4.1

Execution Version

 

 

J. C. PENNEY CORPORATION, INC.,

as Issuer,

the GUARANTORS party hereto

AND

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Trustee

$400,000,000 8.625% Senior Secured Second Priority Notes due 2025

 

 

INDENTURE

Dated as of March 12, 2018

 

 


Table of Contents

 

          Page  
ARTICLE I  
DEFINITIONS AND INCORPORATION BY REFERENCE  

SECTION 1.1.

   Definitions      1  

SECTION 1.2.

   Other Definitions      22  

SECTION 1.3.

   Rules of Construction      23  

SECTION 1.4.

   Inapplicability of the Trust Indenture Act      24  
ARTICLE II  
THE NOTES  

SECTION 2.1.

   Form, Dating and Terms      24  

SECTION 2.2.

   Execution and Authentication      28  

SECTION 2.3.

   Registrar and Paying Agent      29  

SECTION 2.4.

   Paying Agent to Hold Money in Trust      29  

SECTION 2.5.

   Holder Lists      29  

SECTION 2.6.

   Transfer and Exchange      30  

SECTION 2.7.

   Mutilated, Destroyed, Lost or Stolen Notes      33  

SECTION 2.8.

   Outstanding Notes      33  

SECTION 2.9.

   Temporary Notes      34  

SECTION 2.10.

   Cancellation      34  

SECTION 2.11.

   Payment of Interest; Defaulted Interest      34  

SECTION 2.12.

   CUSIP and ISIN Numbers      35  
ARTICLE III  
COVENANTS  

SECTION 3.1.

   Payment of Notes      35  

SECTION 3.2.

   Maintenance of Office or Agency      35  

SECTION 3.3.

   Stay, Extension and Usury Laws      36  

SECTION 3.4.

   Compliance Certificate      36  

SECTION 3.5.

   Limitation on Asset Dispositions      36  

SECTION 3.6.

   Limitation on Liens      39  

SECTION 3.7.

   Limitation on Sale and Lease-Back Transactions      39  

SECTION 3.8.

   Subsidiaries      39  

SECTION 3.9.

   Change of Control      39  

SECTION 3.10.

   Reports      41  

SECTION 3.11.

   Limitation on Real Estate Subsidiary Guarantor Indebtedness      41  

SECTION 3.12.

   Statement by Officers as to Default      43  
ARTICLE IV  
CONSOLIDATION, MERGER OR SALE OF ASSETS  

SECTION 4.1.

   Consolidation, Merger or Sale of Assets      43  

SECTION 4.2.

   Successor Corporation Substituted      44  


ARTICLE V  
REDEMPTION OF SECURITIES  

SECTION 5.1.

   Notices and Opinions to Trustee      44  

SECTION 5.2.

   Selection of Notes to Be Redeemed or Purchased      44  

SECTION 5.3.

   Notice of Redemption      45  

SECTION 5.4.

   Effect of Notice of Redemption      45  

SECTION 5.5.

   Deposit of Redemption Price      46  

SECTION 5.6.

   Notes Redeemed in Part      46  

SECTION 5.7.

   Optional Redemption      46  

SECTION 5.8.

   Mandatory Redemption      47  
ARTICLE VI  
DEFAULTS AND REMEDIES  

SECTION 6.1.

   Events of Default      47  

SECTION 6.2.

   Acceleration      49  

SECTION 6.3.

   Other Remedies      49  

SECTION 6.4.

   Waiver of Past or Existing Defaults      49  

SECTION 6.5.

   Control by Majority      50  

SECTION 6.6.

   Limitation on Suits      50  

SECTION 6.7.

   Rights of Holders to Receive Payment      50  

SECTION 6.8.

   Collection Suit by Trustee      50  

SECTION 6.9.

   Trustee May File Proofs of Claim      51  

SECTION 6.10.

   Priorities      51  

SECTION 6.11.

   Undertaking for Costs      51  
ARTICLE VII  
TRUSTEE  

SECTION 7.1.

   Duties of Trustee      52  

SECTION 7.2.

   Rights of Trustee      53  

SECTION 7.3.

   Individual Rights of Trustee      54  

SECTION 7.4.

   Trustee’s Disclaimer      54  

SECTION 7.5.

   Notice of Defaults      54  

SECTION 7.6.

   [Reserved]      54  

SECTION 7.7.

   Compensation and Indemnity      54  

SECTION 7.8.

   Replacement of Trustee      55  

SECTION 7.9.

   Successor Trustee by Merger      55  

SECTION 7.10.

   Eligibility; Disqualification      56  

SECTION 7.11.

   Collateral Documents; Intercreditor Agreements      56  
ARTICLE VIII  
DEFEASANCE AND DISCHARGE PRIOR TO MATURITY  

SECTION 8.1.

   Option to Effect Defeasance      56  

SECTION 8.2.

   Defeasance and Discharge      56  

SECTION 8.3.

   Conditions to Defeasance      57  

SECTION 8.4.

   Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions      57  

SECTION 8.5.

   Repayment to the Issuer      58  

SECTION 8.6.

   Reinstatement      58  

 

-ii-


ARTICLE IX  
AMENDMENTS  

SECTION 9.1.

   Without Consent of Holders      58  

SECTION 9.2.

   With Consent of Holders      59  

SECTION 9.3.

   [Reserved]      60  

SECTION 9.4.

   Revocation and Effect of Consents and Waivers      60  

SECTION 9.5.

   Notation on or Exchange of Notes      61  

SECTION 9.6.

   Trustee to Sign Amendments      61  
ARTICLE X  
GUARANTEE  

SECTION 10.1.

   Guarantee      61  

SECTION 10.2.

   Limitation on Liability; Termination, Release and Discharge      63  

SECTION 10.3.

   Right of Contribution      63  

SECTION 10.4.

   No Subrogation      63  
ARTICLE XI  
SATISFACTION AND DISCHARGE  

SECTION 11.1.

   Satisfaction and Discharge      64  

SECTION 11.2.

   Application of Trust Money      65  
ARTICLE XII  
COLLATERAL  

SECTION 12.1.

   Collateral Documents      65  

SECTION 12.2.

   Release or Subordination of Liens on the Collateral      65  
ARTICLE XIII  
MISCELLANEOUS  

SECTION 13.1.

   Notices      66  

SECTION 13.2.

   [Reserved]      68  

SECTION 13.3.

   Certificate and Opinion as to Conditions Precedent      68  

SECTION 13.4.

   Statements Required in Certificate or Opinion      68  

SECTION 13.5.

   When Notes Disregarded      68  

SECTION 13.6.

   Rules by Trustee, Paying Agent and Registrar      68  

SECTION 13.7.

   Legal Holidays      69  

SECTION 13.8.

   Governing Law      69  

SECTION 13.9.

   Jurisdiction      69  

SECTION 13.10.

   Waivers of Jury Trial      69  

SECTION 13.11.

   USA PATRIOT Act      69  

SECTION 13.12.

   No Recourse Against Others      69  

SECTION 13.13.

   Successors      69  

SECTION 13.14.

   Multiple Originals      69  

SECTION 13.15.

   Table of Contents; Headings      70  

SECTION 13.16.

   Force Majeure      70  

SECTION 13.17.

   Severability      70  

 

-iii-


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 March 12, 2018, 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 Issuer’s $400,000,000 8.625% Senior Secured Second Priority Notes due 2025 (the “ Initial Notes ”), as issued on the date hereof, and (ii) any additional 8.625% Senior Secured Second Priority Notes due 2025 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.

2019 Notes ” means the Issuer’s 8.125% Senior Notes due 2019.

2020 Notes ” means the Issuer’s 5.65% Senior Notes due 2020.

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 as of June 23, 2016, among the ABL Collateral Agent, the Term Loan/Notes Collateral Agent, the Issuer, the Guarantors party thereto and certain other parties party thereto, as amended, amended and restated, supplemented or otherwise modified prior to the Issue Date and as supplemented by the joinder to be entered into by the Collateral Agent on the Issue Date.

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).

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 set forth in the Second Priority Pari Passu Intercreditor Agreement.


Appraised Value ” of any Real Estate Asset subject to a Mortgage in favor of the Term Loan/Notes 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) Second Priority Collateral or (ii) any 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; provided that, with respect to any such disposition of Material Real Estate Assets to a Subsidiary, (x) such transferee Subsidiary shall be a Subsidiary Guarantor and (y) such transferee Subsidiary shall not have outstanding, at the time of such transferee Subsidiary’s acquisition of such Material Real Estate Asset, any Indebtedness incurred or Guaranteed since the Issue Date that would not be permitted by Section 3.11, applying Section 3.11 to such transferee Subsidiary at the time of such transferee Subsidiary’s acquisition of such Material Real Estate Asset;

(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 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 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;

 

-2-


(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 Second Priority Collateral or 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 Second Priority 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 property and assets (including Equity Interests) in which Liens are purported to be granted pursuant to the Collateral Documents as security for the Second Priority Secured Obligations.

Collateral Agent ” means Wilmington Trust, National Association in its capacity as “Collateral Agent” under the Second Priority 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 to secure Term Loan/Notes Secured Obligations on such date to (b) the aggregate principal amount of the Term Loan/Notes Secured Obligations as of such date.

Collateral Documents ” means the “Junior Priority Security Documents” (as defined in the Second Priority 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 Person’s assets are acquired by Holdings or any Subsidiary.

Consolidated Priority Debt ” means, on any date, Consolidated Total Debt excluding (i) any amount of such Indebtedness that is not incurred or Guaranteed by any Real Estate Subsidiary Guarantor and (ii) any amount of such Indebtedness that is incurred or Guaranteed by any Real Estate Subsidiary Guarantor on a basis that is subordinated in right of payment to such Real Estate Subsidiary Guarantor’s obligations under this Indenture.

 

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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), (b), (n) and (v) 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 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 definitions of “Senior Secured Leverage Ratio” and “Priority 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.

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 Officer’s 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.

Discharge of Term Loan/Notes Secured Obligations ” is defined as, with respect to any Series of Term Loan/Notes Secured Obligations (i) for purposes of the ABL Intercreditor Agreement and the First/Second Priority Intercreditor Agreement, the payment in full of all Term Loan/Notes Secured Obligations thereunder (other than certain contingent obligations) and the termination of all commitments, if any, to extend credit thereunder and (ii) for purposes of the Term Loan/Notes Pari Passu Intercreditor Agreement, the date, with respect to any Shared Collateral (as defined in the Term Loan/Notes Pari Passu Intercreditor Agreement), that such Series of Term Loan/Notes Secured Obligations ceases to be secured by such Shared Collateral (whether as a result of the repayment thereof or otherwise).

 

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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 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 Issuer’s 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.

 

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Excluded Asset ” has the meaning set forth in the Security Agreement (as defined in the Second Priority 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.

Existing First Lien Notes ” means the Issuer’s 5.875% Senior Secured Notes due 2023.

Existing Notes ” means the Issuer’s 6.375% Senior Notes due 2036, 6.9% Notes due 2026, 7.125% Debentures due 2023, 7.4% Debentures due 2037, 7.625% Notes due 2097, the 2019 Notes, the 2020 Notes and the Existing First Lien Notes.

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.

First/Second Priority Intercreditor Agreement ” means the Junior Priority Intercreditor Agreement, dated as of the Issue Date, among the Term Loan/Notes Collateral Agent, as First Lien Representative (as defined therein), and the Collateral Agent, as Junior Priority Representative (as defined therein), as it may be amended or supplemented from time to time.

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.

Four Quarter Period ” means the period of the most recent four full consecutive Fiscal Quarters.

Future Second Priority Indebtedness ” has the meaning given to the term “Future Junior Priority Indebtedness” in the Second Priority Pari Passu Intercreditor Agreement.

Future Term Loan/Notes Indebtedness ” has the meaning set forth in the Term Loan/Notes Pari Passu Intercreditor Agreement.

GAAP ” means the United States generally accepted accounting principles in effect as of the Issue Date.

 

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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.

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 contract, 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 Registrar’s 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 Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person

 

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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 Notes ” has the meaning set forth in the first recital paragraph of this Indenture.

Insolvency Proceeding ” means any case or 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 Second Priority Pari Passu Intercreditor Agreement, the First/Second 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 March 12, 2018.

Issuer ” has the meaning assigned to such term in the preamble of this Indenture.

JCP Parties ” means, collectively, the Issuer and the Guarantors.

Junior Lien Priority ” means a Lien that ranks junior in priority to the Liens securing the Second Priority Secured Obligations on substantially similar terms to the terms on which the Liens securing the Second Priority Secured Obligations are subordinated to the Liens securing the Term Loan/Notes Secured Obligations in the First/Second Priority Intercreditor Agreement.

Junior Priority Secured Obligations ” means the Obligations with respect to Indebtedness which is by its terms intended to be secured by the Collateral with a Junior Lien Priority relative to the Second Priority Secured Obligations; provided that the collateral agent for such Indebtedness shall become party to (i) an intercreditor agreement establishing the Junior Lien Priority of such Obligations relative to the Second Priority Secured Obligations, which may take the form of an amendment to or amendment and restatement of the First/Second Priority Intercreditor Agreement, (ii) unless the ABL Secured Obligations Payment Date has occurred, the ABL Intercreditor Agreement and (iii) unless the Discharge of Term Loan/Notes Secured Obligations has occurred, the First/Second Priority Intercreditor Agreement, and the indenture, loan agreement and other agreements relating to such Indebtedness (including the security documents relating thereto) authorize the collateral agent for such Indebtedness to bind the holders of such Obligations to the terms of the agreements set forth in clauses (i), (ii) and (iii) above, as applicable.

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, as of any date of determination, any Real Estate Asset that secures the Term Loan/Notes Secured Obligations.

 

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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.

Moody’s ” means Moody’s Investors Service, Inc., or any successor thereto.

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.

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 Second Priority 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 seller’s 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 Fiscal Quarter 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).

Note Documents ” means the Notes (including Additional Notes), the Note Guarantees, the Collateral Documents, the Intercreditor Agreements and this Indenture.

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 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 Second Priority 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, expenses, 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 March 8, 2018, 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.

Officer’s 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 .

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;

 

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(b) carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s 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 Person’s 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;

 

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(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 Indebtedness ” means:

(a) obligations incurred by any Real Estate Subsidiary Guarantor 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 such Real Estate Subsidiary Guarantor permitted under this Indenture;

(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 any Real Estate Subsidiary Guarantor in the ordinary course of business;

(d) (i) obligations of any Real Estate Subsidiary Guarantor 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 a Real Estate Subsidiary Guarantor 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 Moody’s or F2 from Fitch;

 

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(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

(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 Moody’s.

Permitted Liens ” means each of the following:

(a) Liens on the Collateral and the Term Loan/Notes Exclusive Real Estate Collateral in favor of the Term Loan/Notes Collateral Agent securing Term Loan/Notes Secured Obligations in respect of (i) the Existing First Lien Notes issued on June 23, 2016, (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 prepayment thereof from Net Available Cash from a disposition of Collateral pursuant to Section  3.5 and (B) the principal amount thereof Paid in connection with the incurrence of Indebtedness secured by Liens pursuant to clause (a)(iv) 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) Liens on the Collateral in favor of the Collateral Agent securing Second Priority Secured Obligations in respect of (i) Notes and related Note Guarantees issued on the Issue Date, (ii) Future Second Priority Indebtedness (subject, in the case of any Guarantee thereof by a Real Estate Subsidiary Guarantor, to such amount being permitted by clause (a) or (g) of Section 3.11 and (iii) refinancings, extensions, renewals and replacements of Indebtedness secured by Liens described in subclauses (i) and (ii) 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;

(c) Permitted Encumbrances;

 

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(d) any Lien on any property or asset of Holdings or any Subsidiary existing on the Issue Date (other than Liens securing the Second Priority Secured Obligations, 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;

(e) 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;

(f) 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 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 (f) shall not exceed $750,000,000 at any time outstanding;

(g) 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;

(h) 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;

(i) 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;

(j) 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;

(k) 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;

 

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(l) 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;

(m) Liens on property subject to sale and leaseback transactions not prohibited by Section  3.7 and general intangibles related thereto;

(n) 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 or (iii) constituting 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 (x) 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” (as defined in the Term Loan/Notes Pari Passu Intercreditor Agreement) in its sole discretion and (y) the Second Priority Collateral are subordinated to the Liens securing the Second Priority Secured Obligations on terms satisfactory to the Applicable Authorized Representative in its sole discretion;

(o) Liens on insurance policies and the proceeds thereof and unearned premiums securing the financing of premiums with respect to Indebtedness in respect of the financing of insurance premiums;

(p) to the extent constituting a Lien, sales or assignments of any litigation claims or rights to receive payments with respect to any such claims;

(q) to the extent constituting a Lien, sales or assignments of any right to receive rental payments permitted under Section  3.5 ;

(r) Liens on cash or cash equivalents securing Swap Agreements;

(s) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s 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;

(t) [reserved];

(u) 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

(v) Liens on the Collateral securing Indebtedness constituting Junior Priority Secured 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.

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.

 

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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.

Priority Leverage Ratio ” means, as of any date of determination, the ratio of (i) Consolidated Priority Debt to (ii) Consolidated Adjusted EBITDA for 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).

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.

Real Estate Subsidiary Guarantor ” means any Subsidiary Guarantor that directly owns any Material Real Estate Assets, during the period that such Person both is a Subsidiary Guarantor and so directly owns any Material Real Estate Assets.

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.

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) .

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.

Second Priority Collateral ” means the Term Loan/Notes Exclusive Collateral other than the Term Loan/Notes Exclusive Real Estate Collateral.

Second Priority Documents ” means the Note Documents and all other documents governing Second Priority Secured Obligations.

 

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Second Priority Pari Passu Intercreditor Agreement ” means that certain Junior Lien Pari Passu Intercreditor Agreement, dated as of the Issue Date, among 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.

Second Priority Secured Obligations ” has the meaning given to the term “Junior Priority Secured Obligations” in the Second Priority Pari Passu Intercreditor Agreement.

Second Priority Secured Parties ” has the meaning given to the term “Junior Lien Secured Parties” in the Second Priority Pari Passu Intercreditor Agreement.

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 (other than Indebtedness constituting Second Priority Secured Obligations or Junior Priority Secured Obligations) 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 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 of Second Priority Secured Obligations ” has the meaning given to the term “Series” in the Second Priority Pari Passu Intercreditor Agreement.

Series of Term Loan/Notes Secured Obligations ” has the meaning given to the term “Series” in the Term Loan/Notes 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 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

 

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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 parent’s 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.

Subsidiary Guarantor ” means any Subsidiary of the Issuer that Guarantees the Notes, until such Subsidiary’s Note Guarantee is released in accordance with the terms of this Indenture.

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.

Tender Offers ” means the cash tender offers by the Issuer and Holdings for up to $95 million aggregate principal amount of the 2019 Notes and up to $225 million aggregate principal amount of the 2020 Notes.

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 June 23, 2016, 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,

 

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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.

Term Loan/Notes Collateral Agent ” has the meaning given to the term “First Lien Representative” in the First/Second Priority Intercreditor Agreement.

Term Loan/Notes Exclusive Collateral ” has the meaning set forth in the ABL Intercreditor Agreement.

Term Loan/Notes Exclusive Real Estate Collateral ” means the Term Loan/Notes Exclusive Collateral consisting of real estate interests (including leasehold interests).

Term Loan/Notes Pari Passu Intercreditor Agreement ” means the Pari Passu Intercreditor Agreement, dated as of June 23, 2016, among the Term Loan/Notes Collateral Agent, the Term Loan Administrative Agent and Wilmington Trust, National Association, as trustee for the Existing First Lien Notes, as it may be amended or supplemented from time to time.

Term Loan/Notes Secured Obligations ” has the meaning set forth in the Term Loan/Notes Pari Passu Intercreditor Agreement.

Transactions ” means (i) the issuance and sale of the Initial Notes, (ii) the consummation of the Tender Offers and (iii) the payment of all fees and expenses related thereto.

Treasury Rate ” means, with respect to the Notes, as of the applicable redemption date, the weekly average rounded to the nearest 1/100th of a percentage point (for the most recently completed week for which such information is available as of the date that is two business days prior to the redemption date) of the yield to maturity of United States Treasury Securities with a constant maturity (as compiled and published in Federal Reserve Statistical Release H.15 with respect to each applicable day during such week or, if such Statistical Release is no longer published, any publicly available source of similar market data) most nearly equal to the period from the redemption date to March 15, 2021; provided , however , that if the period from such redemption date to March 15, 2021 is not equal to the constant maturity of a United States Treasury Security for which such a 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 the redemption date to March 15, 2021 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.

Treasury Services Obligations ” means Obligations in respect of 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.

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 person’s 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)

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

Permitted Supply Chain Financing

   3.11(h)

protected purchaser

   2.7

Redemption Date

   5.1

 

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Term

   Defined in
Section

Registra r”

   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 $400,000,000. 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 Sections 3.6 and 3.11 .

With respect to any Additional Notes, the Issuer shall set forth in an Officer’s 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 Officer’s 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 DTC’s 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 DTC’s 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 DTC’s 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.

(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:

 

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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 ISSUER’S AND THE TRUSTEE’S 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 SUCCESSOR’S 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 DTC’s and the Registrar’s 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 $400,000,000, (2) subject to Sections 3.6 and 3.11 , 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 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.

 

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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 Issuer’s 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 Issuer’s 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 to each Holder at such Holder’s address appearing in the register of Holders at least fifteen (15) calendar days prior to the Automatic Exchange 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 Holder’s beneficial interests will be transferred and (z) the “CUSIP” number of the Unrestricted Global Note into which such Holder’s 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 Officer’s 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.

(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.

 

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(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 Issuer’s and Registrar’s 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 .

 

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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 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 Officer’s 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; (II) any other Second Priority Secured Obligations; and/or (III) any 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 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

 

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(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 Officer’s 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.

 

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(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 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 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 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 Second Priority Collateral, whether now owned or hereinafter acquired, or any 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, any facility evidencing Term Loan/Notes Secured Obligations or any other facility evidencing Second Priority 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, any facility evidencing Term Loan/Notes Secured Obligations or any other facility evidencing Second Priority Secured Obligations, notify the Trustee thereof and promptly cause such Domestic Subsidiary to (i) execute and deliver a supplemental indenture to this 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 the 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 Holder’s 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

 

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days following the date of any Change of Control, or, at the Issuer’s 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 Issuer’s 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 or 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, rules 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 its 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 Officer’s 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 “Management’s 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 SEC’s 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 SEC’s 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 Trustee’s 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 Issuer’s, any Guarantor’s or any other Person’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates delivered pursuant to this Indenture).

SECTION 3.11. Limitation on Real Estate Subsidiary Guarantor Indebtedness . Holdings shall not permit any Real Estate Subsidiary Guarantor to create, incur, assume, Guarantee, or otherwise become liable in respect of any Indebtedness, except:

(a) (i) ABL Secured Obligations permitted pursuant to clause (n) of the definition of “Permitted Liens” and any other Indebtedness that would be permitted pursuant to such clause (n) if such other Indebtedness were treated for such purpose as ABL Secured Obligations (and, in each case, 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 amendment, extension, renewal, refinancing or replacement)) and Guarantees of such ABL Secured Obligations and any such other Indebtedness;

(ii) Term Loan/Notes Secured Obligations permitted pursuant to clause (a) of the definition of “Permitted Liens” and any other Indebtedness that would be permitted pursuant to such clause (a) if such other Indebtedness were treated for such purpose as Term Loan/Notes Secured Obligations (and, in each case, 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 amendment, extension, renewal, refinancing or replacement)) and Guarantees of such Term Loan/Notes Secured Obligations and any such other Indebtedness;

(b) Indebtedness represented by the Note Guarantees in respect of the Notes issued on the Issue Date;

(c) Indebtedness existing on the Issue Date 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 amendment, extension, renewal, refinancing or replacement) or result in an earlier maturity date or decreased weighted average life thereof;

 

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(d) Guarantees of Indebtedness; provided that the Indebtedness so Guaranteed would have been permitted to be incurred pursuant to this Section 3.11, assuming for purposes of this clause (d) that the Person incurring the Indebtedness so Guaranteed were subject to this Section 3.11;

(e) Permitted Indebtedness;

(f) Indebtedness 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 Issue Date or required to become Collateral) 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 (f) shall not exceed $650,000,000 at any time outstanding;

(g) other Indebtedness in an aggregate principal amount not to exceed the sum of (1) an amount at any time outstanding equal to $500,000,000 ( minus the aggregate principal amount of the Notes issued on the Issue Date which remain outstanding at the time of such calculation pursuant to this subclause (1)) plus (2) an unlimited amount, so long as in the case of this subclause (2), on a pro forma basis (as determined in compliance with the definition of Priority Leverage Ratio), the Priority Leverage Ratio shall not exceed 3.00 to 1.00;

(h) Indebtedness consisting of letters of credit, guarantees or other credit support provided in respect of trade payables of Holdings, the Issuer 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 the Issuer 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 Holdings, the Issuer or any Subsidiary would otherwise have been obligated to pay to its vendor or supplier in respect of the applicable trade payables (“ Permitted Supply Chain Financing ”);

(i) Indebtedness 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;

(j) Indebtedness pursuant to sale and leaseback transactions not prohibited by Section 3.7;

(k) unsecured reimbursement obligations in respect of standby letters of credit issued in the ordinary course of business for the account of Holdings, the Issuer or any other Subsidiary so long as only the Issuer and Holdings are obligated to reimburse the issuer thereof in the case of any drawing;

(l) Indebtedness owing to the Issuer, Holdings or any other Subsidiary or an Excluded Subsidiary; provided that any Indebtedness of a Real Estate Subsidiary Guarantor owing to the Issuer or Holdings or any Subsidiary that is not a Real Estate Subsidiary Guarantor or any Excluded Subsidiary shall be subordinated in right of payment to such Real Estate Subsidiary Guarantor’s obligations under this Indenture;

(m) Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;

 

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(n) Indebtedness in respect of non-speculative Swap Agreements relating to the business or operation of such Real Estate Subsidiary Guarantor;

(o) reimbursement obligations incurred in the ordinary course of business; and

(p) other Indebtedness that is unsecured and contractually subordinated in right of payment to the Notes Obligations of such Real Estate Subsidiary Guarantor.

For purposes of this Section 3.11, in the event that any Indebtedness of a Real Estate Subsidiary Guarantor meets the criteria of more than one of the clauses above, the Issuer, in its sole discretion, will classify, and may reclassify, such Indebtedness and only be required to include the amount and type of such Indebtedness in one of the above clauses, and the Indebtedness of a Real Estate Subsidiary Guarantor may be divided and classified and reclassified into more than one of the types of Indebtedness of a Real Estate Subsidiary Guarantor described above. In addition, for purposes of calculating compliance with this Section 3.11, in no event will the amount of any Indebtedness of a Real Estate Subsidiary Guarantor be required to be included more than once despite the fact more than one Person is or becomes liable with respect to any related Indebtedness (for example, and for the avoidance of doubt, in the case where more than one Real Estate Subsidiary Guarantor incurs Indebtedness or otherwise becomes liable for such Indebtedness, the amount of such Indebtedness shall only be included once for purposes of such calculations).

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 Issuer’s 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 Issuer’s 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 Second Priority Secured Obligations;

(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 Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Article IV and that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.

 

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(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 Note Guarantee, this 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 such Guarantor thereunder and maintain the perfection of the Liens securing the Second Priority 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 Issuer’s 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 Officer’s 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

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 Officer’s 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.

 

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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.

(d) At the Issuer’s request, the Trustee will give the notice of redemption in the Issuer’s name and at their expense; provided, however , that the Issuer’s 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 Officer’s 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 Issuer’s option

 

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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 Issuer’s 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 Issuer’s discretion, until such time as any or all such conditions shall be satisfied (or waived by the Issuer in the Issuer’s 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 Issuer’s 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 March 15, 2021, 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 March 15, 2021 (such redemption price being set forth in the table under clause (e) below) plus (ii) all required interest payments due on the Note through March 15, 2021 (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.

 

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(b) At any time prior to March 15, 2021, the Issuer may on one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under this Indenture at a redemption price equal to 108.625% 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 Issuer’s option prior to March 15, 2021.

(e) On or after March 15, 2021, 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 March 15 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  

2021

     104.313

2022

     102.156

2023 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.

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;

 

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(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 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 Note Guarantee 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 Note Guarantee, 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.

 

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(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 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.

(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

 

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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, in the Second Priority Pari Passu Intercreditor Agreement and in the First/Second Priority 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

(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 .

 

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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.

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.

 

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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 person’s 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.

(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.

 

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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 Officer’s 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 Officer’s 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.

(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.

 

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(l) The Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to furnish the Trustee with Officer’s 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. Trustee s 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 Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s 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 Trustee’s 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 Trustee’s and the Collateral Agent’s 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 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.

 

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(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 Issuer’s 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 Trustee’s 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 Issuer’s 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 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

 

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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 Second Priority 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 Second Priority 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 Issuer’s 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 Issuer’s option, any specified payment obligation and to have satisfied all other obligations under the Notes, the Note Guarantees, this 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 and the Collateral Agent, as applicable, 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 Issuer’s 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 Issuer’s 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 this 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 this 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 Issuer’s 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 Issuer’s and the Guarantors’ obligations under this 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 Note 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 Note 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 Issuer’s election, comply with any requirement of the SEC in connection with the qualification of this Indenture under the TIA if such qualification is required;

(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 and/or the Intercreditor Agreements, as applicable;

 

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(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 the Collateral Agent to any Note 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 Second Priority Secured Obligations, as additional security for the payment and performance of all or any portion of the Second Priority 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 and/or the Intercreditor Agreements;

(13) (i) secure any Future Second Priority Indebtedness 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, Second Priority Secured Obligations, Junior Priority Secured Obligations or Term Loan/Notes Secured Obligations in any Intercreditor Agreement, (iii) 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 Second Priority Document or (iv) 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 Second Priority Document;

(14) comply with the rules of any applicable securities depositary; or

(15) conform the text of this Indenture, any Note Guarantee, the Notes or any other Note 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 Note 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 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 Note 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).

 

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(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 this Indenture of any Holder to receive payment of principal of and interest on such Holder’s 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 Holder’s 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 Holder’s 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 Holder’s 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 Holder’s 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 Note Document unless such amended or supplemental indenture or amendment or supplement to any Note Document adversely affects the Trustee’s own rights, duties or immunities under any Note 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 Note 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 Officer’s 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 Note 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 Second Priority 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 ”).

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.

 

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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).

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.

 

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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 such Subsidiary 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 Guarantee any other then outstanding Series of Second Priority Secured Obligations or any then outstanding 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) upon the release of the Guarantee by such Subsidiary of each other then outstanding Series of Second Priority Secured Obligations and each 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 Second Priority Secured Obligations or such 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; and

(5) except for a Subsidiary that continues to Guarantee any other then outstanding Series of Second Priority Secured Obligations or any then outstanding 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.

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

 

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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 . This 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 Issuer’s 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 Issuer’s 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 Officer’s 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.

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 Issuer’s and the Guarantors’ obligations under the Notes, subject to such provisions that shall survive pursuant to the terms of this Indenture.

 

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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 Issuer’s 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 Second Priority 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 Second Priority 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 Second Priority Secured Parties. In the event of any conflict between the terms of the Intercreditor Agreements and this Indenture or any of the other Note Documents, the provisions of the Intercreditor Agreements shall govern and control.

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 Officer’s 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 Issuer’s 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;

 

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(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) as to any asset constituting Collateral, upon the release of all Liens on such Collateral securing each other then outstanding Series of Second Priority Secured Obligations and each then outstanding Series of Term Loan/Notes Secured Obligations (other than in connection with a repayment in full of another Series of Second Priority Secured Obligations or a Series of Term Loan/Notes Secured Obligations); and

(vi) as to any asset constituting Collateral that becomes an Excluded Asset pursuant to a transaction not prohibited by this 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 Officer’s 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 Issuer’s 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, 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 (v) of clause (a) above, which shall occur as provided in the Intercreditor Agreements, 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 Officer’s 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 Officer’s 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 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:

 

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if to the JCP Parties:

J. C. Penney Corporation, Inc.

6501 Legacy Drive

Plano, Texas 75024

Attention: Trent Kruse

Facsimile No.: (972) 531-2488

Email: twkruse@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.

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.

 

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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 Officer’s 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 Officer’s 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.

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.

 

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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 this Indenture or any other Note 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.

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.

 

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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/ Trent Kruse
  Name: Trent Kruse
 

Title: Vice President, Treasury and Investor

  Relations

 

J. C. PENNEY COMPANY, INC.
By:   /s/ Jeffrey Davis
  Name: Jeffrey Davis
 

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 March 15, 2025.

Interest Payment Dates: March 15 and September 15, commencing on September 15, 2018 2

Record Dates: March 1 and September 1

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.

 

A-1


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:                         

 

A-2


[FORM OF REVERSE SIDE OF NOTE]

J. C. PENNEY CORPORATION, INC.

8.625% Senior Secured Second Priority Notes due 2025

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 8.625% per annum from March 12, 2018 3 until maturity. The Issuer will pay interest semi-annually in arrears every March 15 and September 15 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 September 15, 2018. 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 March 1 and September 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 March 12, 2018 (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 March 15, 2021, 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 March 15, 2021 (such redemption price being set forth in the table under clause (e) below) plus (ii) all required interest payments due on the Note through March 15, 2021 (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 March 15, 2021, 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 108.625% 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.

 

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(c) Except pursuant to clauses (a) and (b) of this paragraph 6, the Notes will not be redeemable at the Issuer’s option prior to March 15, 2021.

(d) On or after March 15, 2021, 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 March 15 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  

2021

     104.313

2022

     102.156

2023 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 Holder’s 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 Issuer’s 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.

 

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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) 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 Note 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 Note 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 Note 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.

 

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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.

 

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 Note 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: Trent Kruse

Facsimile No.: (972) 531-2488

Email: twkruse@jcp.com

 

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 assignee’s name, address and zip code)

 

 

(Insert assignee’s 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 undersigned’s 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.

 

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Signature Guarantee:     Signature
       
(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 undersigned’s 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 March 12, 2018 (as amended, supplemented, waived or otherwise modified, the “ Indenture ”), providing for the issuance of an aggregate principal amount of $400,000,000 of 8.625% Senior Secured Second Priority Notes due 2025 (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 Issuer’s 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 Subsidiary’s 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: Trent Kruse

Facsimile No.: (972) 531-2488

Email: twkruse@jcp.com

Wilmington Trust, National Association,

as Trustee and Registrar

50 South Sixth Street

Suite 1290

Minneapolis, Minnesota 55402

Attention: J. C. Penney Corporation, Inc. Secured Notes Administrator

Facsimile No.: (612) 217-5651

Email: hfield@wilmingtontrust.com

 

Re: J. C. Penney Corporation, Inc. (the “ Issuer ”)

8.625% Senior Secured Second Priority Notes due 2025 (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.

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.

 

C-1


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

PLEDGE AND SECURITY AGREEMENT

dated as of March 12, 2018

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

     1  
        1.1    General Definitions      1  
        1.2    Definitions; Interpretation      7  

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    No Control Agreements Required      11  
        4.3    Intellectual Property Recording Requirements      11  
        4.4    Other Actions      12  
        4.5    Timing and Notice      12  

SECTION 5. REPRESENTATIONS AND WARRANTIES

     12  
        5.1    [Reserved.]      12  
        5.2    Collateral Identification, Special Collateral      12  
        5.3    Ownership of Collateral and Absence of Other Liens      12  
        5.4    Status of Security Interest      13  
        5.5    Goods      14  
        5.6    Pledged Equity Interests, Investment Related Property      14  
        5.7    Intellectual Property      14  

SECTION 6. COVENANTS AND AGREEMENTS

     15  
        6.1    Grantor Information and Status      15  
        6.2    Commercial Tort Claims      16  
        6.3    Ownership of Collateral and Absence of Other Liens      16  
        6.4    Status of Security Interest      16  
        6.5    Goods and Receivables      16  
        6.6    Pledged Equity Interests, Investment Related Property      17  
        6.7    Intellectual Property      18  
        6.8    Insurance      18  

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      20  
        8.1    Power of Attorney      20  
        8.2    No Duty on the Part of Collateral Agent or Secured Parties      21  
        8.3    Appointment Pursuant to the Second Priority 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    [Reserved]      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

   —     

TRADEMARK SECURITY AGREEMENT

EXHIBIT C

   —     

PATENT SECURITY AGREEMENT

EXHIBIT D

   —     

COPYRIGHT SECURITY AGREEMENT

 

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This PLEDGE AND SECURITY AGREEMENT , dated as of March 12, 2018 (the “ Effective Date ”) (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 ”), and each of the subsidiaries of Holdings or the Company 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 Junior Lien Secured Parties (as herein defined) (in such capacity as collateral agent, together with its successors and permitted assigns, the “ Collateral Agent ”).

RECITALS:

WHEREAS , pursuant to the terms, conditions and provisions of (a) that certain Indenture, dated as of March 12, 2018 (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 March 8, 2018 (the “ Purchase Agreement ”), among the Company, Holdings, the other guarantors under the Indenture, and J.P. Morgan Securities LLC, as representative of the several initial purchasers named in Schedule I thereto, the Company issued $400,000,000 aggregate principal amount of its 8.625% Senior Secured Second Priority Notes due 2025, 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 and the Trustee, as Notes Authorized Representative for the Notes Secured Parties (as such terms are defined therein) are entering into that certain Junior Lien Pari Passu Intercreditor Agreement, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “ Second Priority Pari Passu Intercreditor Agreement ”);

WHEREAS , pursuant to the Indenture and the Second Priority Pari Passu Intercreditor Agreement, the Trustee has appointed and authorized the Collateral Agent to act as agent on its behalf and on behalf of the Junior Lien Secured Parties represented by the Trustee, and the Collateral Agent has accepted such appointment; and

WHEREAS , one or more of the Grantors may incur Future Junior Priority Indebtedness after the date hereof, and in connection therewith, the Authorized Representative for the holders of such Future Junior Priority Indebtedness will become a party to the Second Priority 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 Junior Lien 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 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 Indenture.


ABL Agent ” shall have the meaning set forth in the ABL Intercreditor Agreement.

ABL Intercreditor Agreement ” shall have the meaning set forth in the Second Priority Pari Passu Intercreditor Agreement.

ABL Priority Collateral ” shall have the meaning set forth in the First/Second Priority 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 Second Priority Pari Passu Intercreditor Agreement.

Authorized Representative ” shall have the meaning set forth in the Second Priority 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.

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.

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.

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.

 

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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.

Effective Date ” shall have the meaning set forth in the recitals.

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.

Event of Default ” shall mean an “Event of Default” under, and as defined in, the Indenture or any Future Junior Priority 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.

First Lien Representative ” shall have the meaning set forth in the First/Second Priority Intercreditor Agreement.

First/Second Priority Intercreditor Agreement ” shall have the meaning set forth in the Second Priority Pari Passu Intercreditor Agreement.

Future Junior Priority Agreement ” shall have the meaning set forth in the Second Priority Pari Passu Intercreditor Agreement.

Future Junior Priority Indebtedness ” shall have the meaning set forth in the Second Priority Pari Passu Intercreditor Agreement.

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.

 

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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.

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.

Junior Lien Secured Parties ” shall have the meaning set forth in the Second Priority Pari Passu Intercreditor Agreement.

Junior Priority Documents ” shall have the meaning set forth in the Second Pari Passu Intercreditor Agreement.

Junior Priority Secured Obligations ” shall have the meaning set forth in the Second Priority Pari Passu Intercreditor Agreement.

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 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 Grantors to perform their payment obligations under the Note Documents or (c) a material impairment of the rights of or benefits available to any Authorized Representative or the Collateral Agent under any Note Document (other than any such impairment of rights or benefits that is primarily attributable to (i) action taken by one or more Authorized Representatives, Junior Lien Secured Parties or the Collateral Agent (excluding any action against one or more Authorized Representatives, Junior Lien Secured Parties or the Collateral Agent taken by Holdings, Company, their respective Subsidiaries or their respective Affiliates) or (ii) circumstances that are unrelated to Holdings, the Company, their respective Subsidiaries or their respective Affiliates).

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.

 

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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.

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 3.6 of the Indenture and the applicable section of each Future Junior Priority 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 the Company), 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.

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.

 

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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 Company 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.

Purchase Agreement ” shall have the meaning set forth in the recitals.

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 a Grantor or any computer bureau or agent from time to time acting for a 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.

Stockholders’ Equity ” shall have the meaning set forth in the Indenture.

Second Priority Pari Passu Intercreditor Agreement ” shall have the meaning set forth in the recitals.

Synchrony Agreement ” shall mean that certain Amended and Restated Consumer Credit Card Program Agreement dated November 5, 2009, by and between the Company and Synchrony Bank, as in effect on the date hereof.

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).

 

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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.

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 Second Priority Pari Passu Intercreditor Agreement or, if not defined therein, the Indenture. The incorporation by reference of terms defined in the Indenture shall survive any termination of the Indenture until this Agreement is terminated as provided in Section 11 hereof. Any of the terms defined herein may, unless

 

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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 definitions for the capitalized terms used therein) and the Second Priority Pari Passu Intercreditor Agreement, the Second Priority 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 to the Collateral Agent, for the benefit of the Junior Lien Secured Parties, a security interest in and continuing lien on all of such Grantor’s 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);

(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;

 

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(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 Section 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 Person’s 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 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 Junior Priority 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 Synchrony

 

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Agreement); (j) any Equity Interests of the Company owned or held by Holdings or instruments evidencing Indebtedness made by the Company 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 subclauses (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 Grantor’s 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 employer’s 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 Company 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 Junior Priority 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 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 Junior Lien 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 Junior Lien 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 Junior Lien 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.

 

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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 No Control Agreements Required . Notwithstanding anything to the contrary in this Agreement, none of the Grantors shall be required to enter into any control agreements or control, lockbox or similar arrangements (or any amendments to any such existing control agreements or control, lockbox or similar arrangements) with respect to any Deposit Account or Securities Account included in the Collateral (regardless of whether any such Deposit Account or Securities Account constitutes ABL Priority Collateral).

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.

(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.

 

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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 Effective Date in which a security interest in favor of the Collateral Agent, for the benefit of the Junior Lien Secured Parties, is not perfected or delivered on the 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 thirty (30) days of the 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 3.10(a) of the Indenture or the corresponding provisions of any Future Junior Priority 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).

SECTION 5. REPRESENTATIONS AND WARRANTIES.

Each Grantor hereby represents and warrants, on the 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 Junior Lien 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;

 

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(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 (i) the Collateral Agent, (ii) the ABL Agent to the extent permitted under the ABL Intercreditor Agreement, (iii) the First Lien Representative to the extent permitted under the First/Second Priority Intercreditor Agreement, (iv) any control in favor of a Bank, Securities Intermediary or Commodity Intermediary maintaining a Deposit Account, Securities Account or Commodity Contract or (v) 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 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 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 Grantor’s name (i) on the Collateral Questionnaire or (ii) as specified by notice from the Company to the Applicable Authorized Representative and the Collateral Agent, as applicable, after the 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 Junior Lien 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;

(b) the security interests granted hereunder in favor of the Collateral Agent, for the benefit of the Junior Lien Secured Parties, constitute (i) legal and valid security interests in all the Collateral securing the payment and performance of the Junior Priority 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 Junior Lien 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

 

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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 Junior Lien Secured Parties, in Proceeds are limited to the extent provided in Section 9-315 of the Uniform Commercial Code.

5.5 Goods . 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

(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 second 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, in each case, subject to the First/Second Priority Intercreditor Agreement.

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 Grantor’s 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;

 

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(c) no holding, decision, ruling, or judgment has been rendered in any action or proceeding before any court or administrative authority prohibiting such Grantor’s 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 Grantor’s right to register, own, or use, any Material Intellectual Property of such Grantor is pending or, to such Grantor’s 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 Grantor’s knowledge, the conduct of such Grantor’s business does not infringe, misappropriate, dilute or otherwise violate any intellectual property rights of any other Person, and 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

(i) to such Grantor’s 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.

 

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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 Junior Lien 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 3.10(a) of the Indenture or the corresponding provisions of any Future Junior Priority Agreement.

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), (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 Junior Lien Secured Parties afforded thereby (as reasonably determined by the Company 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;

 

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(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 (subject to Section 4.2) 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 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 Junior Priority 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) Subject to the First/Second Priority Intercreditor Agreement, 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 Agent’s 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

 

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(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: (x) 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 (y) 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 Grantor’s 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.

6.8 Insurance . Within 30 days after the Effective Date (or as soon as practicable thereafter using commercially reasonable efforts), the Company shall deliver to the Initial Purchasers (as defined in the Purchase Agreement), the Trustee and the Collateral Agent certificates with respect to the policies of insurance maintained by the Grantors with respect to any Collateral, which certificates shall reflect the Collateral Agent, for the benefit of the Junior Lien Secured Parties, as additional insured or loss payee, as applicable. Unless an Event of Default shall have occurred and be continuing, (x) the Collateral Agent shall turn over to the applicable Grantor any amounts received by it as loss payee under any such policies and (y) the Grantors shall have the sole right to make, settle and adjust claims in respect of such 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 the first sentence of this Section 6.8 and the requirements of any other Junior Priority 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 Section 6.8, 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 Junior Priority Secured Obligations secured hereby.

 

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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 Junior Lien 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 or the Applicable Authorized Representative in a manner that will protect such privilege;

(iv) at the Collateral Agent’s or the Applicable Authorized Representative’s request, appear in and defend any action or proceeding that may affect such Grantor’s title to or the Collateral Agent’s 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.

 

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(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 Indenture and any Future Junior Priority 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 the Grantors, each Additional Grantor shall be a Grantor and shall be as fully a party hereto as if such 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 the Collateral Agent not to cause any Subsidiary of the Company 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 Grantor’s 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 Agent’s 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 Junior Priority Documents;

(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;

 

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(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, expenses, 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 Indenture, any Future Junior Priority 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 Junior Lien Secured Party to cure or perform, any covenants or other promises of any Grantor with respect to taxes, assessments, charges, fees, expenses, Liens, security interests or other encumbrances and maintenance as set forth herein or in the other Junior Priority Documents. The Collateral Agent will give notice to the Company of any exercise of the Collateral Agent’s 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 Agent’s option and such Grantor’s 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 Agent’s security interest therein in order to effect the intent of this Agreement, all as fully and effectively as such Grantor might do.

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 Junior Lien Secured Parties in the Collateral and shall not impose any duty upon the Collateral Agent or any other Junior Lien Secured Party to exercise any such powers. The Collateral Agent and the other Junior Lien 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.

 

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8.3 Appointment Pursuant to the Second Priority Pari Passu Intercreditor Agreement . The Collateral Agent has been appointed as collateral agent pursuant to the Second Priority Pari Passu Intercreditor Agreement. The rights, duties, privileges, immunities and indemnities of the Collateral Agent hereunder are subject to the provisions of the Second Priority 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 Second Priority Pari Passu Intercreditor Agreement. When, under the terms of the Second Priority 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 Junior Priority 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 Junior Lien 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;

(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 Agent’s 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.

 

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(b) The Collateral Agent or any other Junior Lien 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 Junior Lien 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 Junior Priority 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 Junior Lien 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 Junior Priority 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 Junior Priority 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 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 Junior Priority 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.

 

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9.2 Application of Proceeds . Subject to the ABL Intercreditor Agreement and the First/Second Priority 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 Second Priority Pari Passu Intercreditor Agreement.

9.3 Sales on Credit . If the Collateral Agent sells any of the Collateral upon credit, a Grantor will be credited only with payments actually made by purchaser and received by the Collateral Agent and applied to indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Collateral Agent may resell the Collateral and a 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, 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 Grantor’s 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.

 

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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 Agent’s 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 Agent’s 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 Grantor’s 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 Agent’s designee all of such Grantor’s 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 Junior Priority Secured Obligations outstanding only to the extent that the Collateral Agent (or any other Junior Lien 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 Grantor’s power and authority, such personnel in such Grantor’s 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 Agent’s behalf and to be compensated by the Collateral Agent at such Grantor’s 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

(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;

 

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(1) all amounts and proceeds (including checks and other instruments) received by a 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) a 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 Junior Priority 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 Grantor’s sole cost and expense, such assignments or other transfer instruments 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 that after giving effect to such reassignment, the Collateral Agent’s 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 Junior Lien Secured Parties.

9.7 [Reserved] .

SECTION 10. COLLATERAL AGENT.

The Collateral Agent has been appointed to act as Collateral Agent hereunder by the Junior Lien Secured Parties or their Authorized Representatives pursuant to the Second Priority 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 Second Priority Pari Passu Intercreditor Agreement, the ABL Intercreditor Agreement, the First/Second Priority Intercreditor Agreement and the other Junior Priority Documents. In furtherance of the foregoing provisions of this Section, each Junior Lien 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 Junior Lien Secured Party that all rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of Junior Lien Secured Parties in accordance with the terms of this Section. The provisions of the Second Priority Pari Passu Intercreditor Agreement, the Indenture and each other Junior Priority 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.

 

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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 Junior Priority Secured Obligations (other than unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations) and the cancellation or termination of the commitments under any Future Junior Priority 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 Junior Priority Documents, any Junior Lien Secured Party may assign or otherwise transfer any Notes (as defined in the Indenture) 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 Junior Lien Secured Party herein or otherwise. Upon the payment in full of all Junior Priority Secured Obligations (other than unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations) and the cancellation or termination of the commitments under any Future Junior Priority 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 Agent’s 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 Junior Priority 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 Second Priority Pari Passu Intercreditor Agreement and in Section 5.1 of the First/Second Priority Intercreditor Agreement. The Collateral Agent shall, at the applicable Grantor’s 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 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 7.7 of the Indenture and the applicable section of each Future Junior Priority Agreement.

 

-27-


SECTION 13. MISCELLANEOUS.

Any notice required or permitted to be given under this Agreement shall be given in accordance with Section 13.1 of the Indenture, the applicable section of each Future Junior Priority Agreement and Section 5.01 of the Second Priority 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 Article IX of the Indenture and the corresponding provisions of any Future Junior Priority 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 Junior Priority 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 Junior Priority 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 Junior Priority Documents, assign any right, duty or obligation hereunder. This Agreement and the other Junior Priority 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 Junior Priority 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; and 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.

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).

 

-28-


THE PROVISIONS OF THE SECOND PRIORITY 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 SECOND PRIORITY 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, (x) with respect to the ABL Priority Collateral are subject to the limitations and provisions of the ABL Intercreditor Agreement and (y) are subject to the limitations and provisions of the First/Second Priority Intercreditor Agreement and the Second Priority Pari Passu Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2 and the definitions for the capitalized terms used therein) and the terms and conditions of the ABL Intercreditor Agreement, the First/Second Priority Intercreditor Agreement or the Second Priority Pari Passu Intercreditor Agreement, the terms and conditions of the ABL Intercreditor Agreement, the First/Second Priority Intercreditor Agreement or the Second Priority Pari Passu Intercreditor Agreement, as applicable, shall control. In the event of any inconsistency between the terms or conditions of the ABL Intercreditor Agreement, the First/Second Priority Intercreditor Agreement or the Second Priority Pari Passu Intercreditor Agreement as such terms and conditions apply to any interpretation of this Agreement, (a) the terms of the ABL Intercreditor Agreement shall control over the First/Second Priority Intercreditor Agreement and the Second Priority Pari Passu Intercreditor Agreement and (b) the terms of the First/Second Priority Intercreditor Agreement shall control over the Second Priority Pari Passu Intercreditor Agreement.

Prior to the Discharge of First Lien Obligations, (i) the requirements herein to endorse, assign or deliver any Collateral to the Collateral Agent (or any representation or warranty having the effect of requiring the same) shall be deemed satisfied (or any such representation or warranty shall be deemed true) by endorsement, assignment or delivery of such Collateral to the First Lien Representative (as bailee for the Collateral Agent) pursuant to the terms of the First Lien Documents, and (ii) any endorsement, assignment or delivery of any Collateral to the First Lien Representative shall be deemed an endorsement, assignment or delivery of such Collateral to the Collateral Agent for all purposes hereunder. All capitalized terms used in this paragraph (including the word “Collateral”) have the meanings given to them in the First/Second Priority Intercreditor Agreement.

[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:   /s/ Jeffrey Davis
  Name:   Jeffrey Davis
  Title:   Executive Vice President and Chief
Financial Officer

J.  C. PENNEY CORPORATION, INC. ,

as Grantor

By:   /s/ Trent Kruse
  Name:   Trent Kruse
  Title:   Vice President, Treasury and Investor Relations

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 PLEDGE AND SECURITY AGREEMENT

COLLATERAL IDENTIFICATION

 

I. INTELLECTUAL PROPERTY

 

(A) 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 program--J 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

1996

  

TX0004283408

TX0004283410

TX0004283409
TX0004361805
TX0004361806

TX0004361807

TX0004361621

TX0004492396

TX0004492397
TX0004492395

J.C. Penney Company, Inc.    JC Penney management report : a monthly newsletter to keep all Penney management associates informed of current developments.   

CSN0003921

1995

  

TX0004149562

TX0004149563

TX0004182864

TX0004182863

TX0004182865

J.C. Penney Company, Inc.    JC Penney management report : a monthly newsletter to keep all Penney management associates informed of current developments.   

CSN0003921

1994

  

TX0003987051

TX0003987053

TX0003987052

TX0003987049

TX0003987050

J.C. Penney Company, Inc.    JC Penney management report : a monthly newsletter to keep all Penney management associates informed of current developments.   

CSN0003921

1993

  

TX0003573858

TX0003831167
TX0003831166

TX0003831165

TX0003831164

TX0003831163

TX0003831162

J.C. Penney Company, Inc.    JC Penney management report : a monthly newsletter to keep all Penney management associates informed of current developments.   

CSN0003921

1992

  

TX0003285446

TX0003340775

TX0003305190

TX0003340776

TX0003350308

TX0003573861

TX0003573860

TX0003573859

J.C. Penney Company, Inc.    JC Penney management report : a monthly newsletter to keep all Penney management associates informed of current developments.   

CSN0003921

1985

  

TX0001590281

TX0001568875

TX0001568874

TX0001600415

TX0001608027

TX0001637323

TX0001636563

TX0001682222

TX0001725541

J.C. Penney Company, Inc.    JC Penney management report : a monthly newsletter to keep all Penney management associates informed of current developments.   

CSN0003921

1984

  

TX0001273193

TX0001337445

TX0001332883

TX0001361149

TX0001381753

TX0001392894

TX0001431122

TX0001445020

TX0001483686


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

1983

  

TX0001075753

TX0001086624

TX0001108023

TX0001134070

TX0001154020

TX0001171088

TX0001186527

TX0001208358

TX0001242509

TX0001311069

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


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

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

J.C. Penney Company, Inc.   

JC Penney today / [editor-in-

chief, Robert M. Fisher ... et al.].

  

CSN0011562

1980

  

TX0000411190

TX0000433111

TX0000531120

TX0000443269

TX0000496800

TX0000537503

TX0000537506

J.C. Penney Company, Inc.   

JC Penney today / [editor-in-

chief, Robert M. Fisher ... et al.].

  

CSN0011562

1979

  

TX0000197108

TX0000224532

TX0000267257

TX0000307939

TX0000307940

TX0000328012

TX0000340409

TX0000356323

TX0000377557

J.C. Penney Company, Inc.    JC Penney today.   

CSN0011563

1978

  

TX0000153613

TX0000176285

J.C. Penney Company, Inc.    JC Penney today /[editor-in- chief, Robert M. Fisher ... et al.].   

CSN0011563

1980

  

TX0000411105

TX0000433113

TX0000443268

TX0000496801

TX0000537504

J.C. Penney Company, Inc.   

JC Penney today / [editor-in-

chief, Robert M. Fisher ... et al.].

  

CSN0011563

1979

  

TX0000197107

TX0000224533

TX0000267256

TX0000307942

TX0000307941

TX0000328013

TX0000340408

TX0000356324

TX0000377558

J.C. Penney Company, Inc.    Penney news.   

CSN0012844

1978

   TX0000119497
J.C. Penney Company, Inc.    Penney news.   

CSN0012845

1978

   TX0000119495


Owner

  

Title

  

Copyright Serial No.

(“CSN”)

Serial Publication Year

  

Registration No.

J.C. Penney Company, Inc.    PenneyPAC report : a special
suppl. of the J. C. Penney management rept. for profit-sharing associates / [prepared for the company’s Political Action Committee (PenneyPAC) ...].
  

CSN0056900

1984

   TX0001364311
J.C. Penney Company, Inc.    Minority business scope : the J C Penney minority economic development newsletter.   

CSN0065746

1993

   TX0003576922
J.C. Penney Company, Inc.    Minority business scope : the J C Penney minority economic development newsletter.   

CSN0065746

1992

   TX0003576921
J.C. Penney Company, Inc.    Minority business scope : the J C Penney minority economic development newsletter.   

CSN0065746

1991

  

TX0003204670

TX0003200201

J.C. Penney Company, Inc.    Minority business scope : the J C Penney minority economic development newsletter.   

CSN0065746

1990

   TX0003062887
J.C. Penney Company, Inc.    Minority business scope : the J C Penney minority economic development newsletter.   

CSN0065746

1989

  

TX0002545444

TX0002701839

J.C. Penney Company, Inc.    Minority business scope : the J C Penney minority economic development newsletter.   

CSN0065746

1988

   TX0002446617
J.C. Penney Company, Inc.    Minority business scope : the J C Penney minority economic development newsletter.   

CSN0065746

1987

   TX0002089154
J.C. Penney Company, Inc.    Minority business scope : the J C Penney minority economic development newsletter.   

CSN0065746

1986

  

TX0001819508

TX0001911516

J.C. Penney Company, Inc.    Pennsylvania PenneyPAC newsline.   

CSN0088113

1990

   TX0002793806
J.C. Penney Company, Inc.    Focus 2000 : visions of diversity at J. C. Penney.   

CSN0108046

1994

  

TX0003824889

TX0003929012

TX0003895531

J.C. Penney Company, Inc.    Focus 2000 : visions of diversity at J. C. Penney.   

CSN0108046

1993

  

TX0003824885

TX0003824886

TX0003824887

TX0003824888

J.C. Penney Company, Inc.    1900--the year time changed / written & produced by Mary P. Manilla.      

PA0000125220

1978

J.C. Penney Company, Inc.    Fashion comes to life.      

PA0000498103

1990

J.C. Penney Company, Inc.    Jobs for Connecticut’s future / producers, Peter Foley, Margaret Gardiner, B. L. Harman, Laura Shuler ; directed by Doug Snyder.      

PAu000831411

1986

J.C. Penney Company, Inc.    Jobs for Connecticut’s future.      

PAu000831413

1986


Owner

  

Title

  

Copyright Serial No.

(“CSN”)

Serial Publication Year

  

Registration No.

J.C. Penney Company, Inc.    Holiday I.      

PAu001694180

1992

J.C. Penney Company, Inc.    Holiday II.      

PAu001694183

1992

J.C. Penney Company, Inc.    Seven days.      

PAu001694187

1992

J.C. Penney Company, Inc.    Decoration.      

PAu001694189

1992

J.C. Penney Company, Inc.    Service.      

PAu001694190

1992

J.C. Penney Company, Inc.   

Running : getting started / written by Allen Selner [i.e. Allen J. Selner] ; foreword by

Bill Toomey for J. C. Penney ; [designed and illustrated by Ed Tadiello].

     

TX0000345271

1979

J.C. Penney Company, Inc.    Let’s write well : memos & letters / by Louise Lytle Patterson.      

TX0000965543

1982

J.C. Penney Company, Inc.    JC Penney general management position questionnaire.      

TX0001727407

1985

J.C. Penney Company, Inc.    J.C. Penney Company, Inc., a century of timeless values / Vanessa Castagna.      

TX0005609330

2002

J.C. Penney Company, Inc.    Runners clinic manual.      

TXu000027428

1979

J.C. Penney Company, Inc.    JC Penney affirmative action program : equal employment opportunity.      

TXu000213033

1984

J.C. Penney Company, Inc.    JC Penney retail/catalog packaging manual for import merchandise.      

TXu000289091

1987

J.C. Penney Company, Inc.    Country borders.      

VAu000068800

1983

J.C. Penney, Inc.    Advanced focus report generation.      

TX0002847950

1990

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 on Appendix A


(B) Copyrights Licenses

None.

 

(C) Patents

 

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) Trademarks

U.S. and State Trademarks :

 

Trademark

  

Jurisdiction

  

Application No.

Application Date

  

Registration

No.

Registration

Date

  

Owner Name

BOUTIQUE+    U.S. Federal   

87001334

4/14/16

  

5224405

6/13/17

   J. C. Penney Purchasing Corporation
PENNEY LANE    U.S. Federal   

87001291

4/14/16

  

5201493

5/9/17

   J. C. Penney Corporation, Inc.
BELLE + SKY    U.S. Federal   

86606302

4/22/15

  

5013919

8/2/16

   J. C. Penney Purchasing Corporation

BELLE + SKY

LOGO

   U.S. Federal   

86606602

4/22/15

  

5013920

8/2/16

   J. C. Penney Purchasing Corporation
STYLUS    U.S. Federal   

86510380

1/21/15

  

4833716

10/13/16

   J. C. Penney Purchasing Corporation
SLEEP CHIC    U.S. Federal   

86315616

6/20/14

  

4832934

10/13/16

   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

  

Jurisdiction

  

Application No.

Application Date

  

Registration

No.

Registration

Date

  

Owner Name

JCPENNEY HOME    U.S. Federal   

86511366

1/22/15

  

4807704

9/8/15

   J. C. Penney Purchasing Corporation
TOTAL GIRL    U.S. Federal   

86575793

3/25/15

  

4804215

9/1/15

   J. C. Penney Purchasing Corporation

JCPENNEY HOME EST. 1902

LOGO

   U.S. Federal   

86511393

1/22/15

  

4803616

6/16/15

   J. C. Penney Purchasing Corporation
XERSION    U.S. Federal   

86510885

1/22/15

  

4803586

9/1/15

   J. C. Penney Purchasing Corporation

H HOME EXPRESSIONS

LOGO

   U.S. Federal   

86510856

1/22/15

  

4803584

9/1/15

   J. C. Penney Purchasing Corporation
HOME EXPRESSIONS    U.S. Federal   

86510824

1/22/15

  

4803581

9/1/15

   J. C. Penney Purchasing Corporation
MIXIT    U.S. Federal   

86510777

1/22/15

  

4803576

9/1/15

   J. C. Penney Purchasing Corporation

THE ORIGINAL ARIZONA JEAN CO.

LOGO

   U.S. Federal   

86510399

1/21/15

  

4803543

9/15/15

   J. C. Penney Purchasing Corporation
FINDMORE    U.S. Federal   

77925900

2/2/10

  

3895342

12/21/10

   J. C. Penney Corporation, Inc.
JCP    U.S. Federal   

86714515

4/1/08

  

3505202

9/23/08

(Cancelled)

   J. C. Penney Corporation, Inc.

M

LOGO

   U.S. Federal   

77894678

12/16/09

  

4013113

8/16/11

   J. C. Penney Purchasing Corporation
MONET    U.S. Federal   

73300467

3/9/81

  

1209655

9/21/82

   J. C. Penney Purchasing Corporation


Trademark

  

Jurisdiction

  

Application No.

Application Date

  

Registration

No.

Registration

Date

  

Owner Name

THE FOUNDRY BIG & TALL SUPPLY CO.

LOGO

   U.S. Federal   

85171312

11/10/10

  

4158540

6/12/12

   J. C. Penney Corporation, Inc.
THE FOUNDRY BIG & TALL SUPPLY CO.    U.S. Federal   

85171274

11/8/10

  

4158539

6/12/12

   J. C. Penney Corporation, Inc.

JC PENNEY

LOGO

   U.S. Federal   

86714672

8/4/15

  

4950072

5/3/16

   J. C. Penney Corporation, Inc.
JC PENNEY    U.S. Federal   

86714595

08/04/2015

  

4950068

05/03/2016

   J. C. Penney Corporation, Inc.
MONET    U.S. Federal   

72109807

12/7/60

  

0719979

8/15/61

   J. C. Penney Purchasing Corporation
STAFFORD    U.S. Federal   

73631706

21-Nov-1986

  

1502274

30-Aug-1988

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.
I SAID YES    U.S. Federal   

85105315

11-Aug-2010

  

4053862

08-Nov-2011

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.
I SAID YES!    U.S. Federal   

85105452

11-Aug-2010

  

4053863

08-Nov-2011

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.


Trademark

  

Jurisdiction

  

Application No.

Application Date

  

Registration

No.

Registration

Date

  

Owner Name

UPROAR    U.S. Federal   

77963573

19-Mar-2010

  

4003383

26-Jul-2011

(Cancelled)

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.
TOWNCRAFT    U.S. Federal   

72210343

21-Jan-1965

  

0797853

19-Oct-1965

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.
AMBRIELLE    U.S. Federal   

86575893

23-Oct-2007

  

4845282

13-May-2008

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.
FLIRTITUDE    U.S. Federal   

86575821

06-Mar-2006

  

4808596

11-Dec-2007

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.
A.N.A A NEW APPROACH    U.S. Federal   

86575868

20-Oct-2005

  

4845279

30-Jan-2007

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.
STAFFORD    U.S. Federal   

73701325

16-Dec-1987

  

1510969

01-Nov-1988

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.


Trademark

  

Jurisdiction

  

Application No.

Application Date

  

Registration

No.

Registration

Date

  

Owner Name

ST. JOHN’S BAY    U.S. Federal   

73636097

18-Dec-1986

  

1455438

01-Sep-1987

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.
STJOHN’SBAY    U.S. Federal   

73706932

22-Jan-1988

  

1503930

13-Sep-1988

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.
CITY STREETS    U.S. Federal   

73462812

27-Jan-1984

  

1319486

12-Feb-1985

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.
TOWNCRAFT    U.S. Federal   

71247084

07-Apr-1927

  

0231906

30-Aug-1927

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.
THE ORIGINAL ARIZONA JEAN COMPANY    U.S. Federal   

74681437

30-May-1995

  

1978252

04-Jun-1996

(Cancelled)

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.
LISETTE    U.S. Federal   

75323165

11-Jul-1997

  

2197706

20-Oct-1998

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.


Trademark

  

Jurisdiction

  

Application No.

Application Date

  

Registration

No.

Registration

Date

  

Owner Name

BRIGHT FUTURE    U.S. Federal   

75320236

07-Jul-1997

  

2195308

13-Oct-1998

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.
WORTHINGTON    U.S. Federal   

73646168

24-Feb-1987

  

1486179

26-Apr-1988

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.
UNDERSCORE    U.S. Federal   

73632087

24-Nov-1986

  

1449840

28-Jul-1987

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.
OKIE-DOKIE    U.S. Federal   

75327048

18-Jul-1997

  

2195381

13-Oct-1998

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.
BIG MAC    U.S. Federal   

72243012

08-Apr-1966

  

0824962

28-Feb-1967

   J.C. Penney Purchasing Corporation, as successor to J. C. Penney Private Brands, Inc.
LIZ CLAIBORNE NEW YORK    United States   

77981858

8/19/2008

  

3999161

7/19/2011

   J. C. Penney Purchasing Corporation
CLAIBORNE    United States   

73600946

5/27/1986

  

1480350

3/15/1988

   J. C. Penney Purchasing Corporation


Trademark

  

Jurisdiction

  

Application No.

Application Date

  

Registration

No.

Registration

Date

  

Owner Name

CLAIBORNE    United States   

73771324

12/23/1988

  

1554507

9/5/1989

   J. C. Penney Purchasing Corporation
CLAIBORNE    United States   

74062991

5/29/1990

  

1653728

8/13/1991

   J. C. Penney Purchasing Corporation
CLAIBORNE Bottle Design    United States   

73837071

11/1/1989

  

1611814

9/4/1990

   J. C. Penney Purchasing Corporation
CLAIBORNE SPORT    United States   

75234374

1/31/1997

  

2191453

9/22/1998

   J. C. Penney Purchasing Corporation
CONCEPTS BY CLAIBORNE    United States   

87519818

7/7/2017

(Pending ITU)

      J. C. Penney Purchasing Corporation
Cosmetic Triangle Logo (Red, B    United States   

73607982

7/7/1986

  

1450271

8/4/1987

   J. C. Penney Purchasing Corporation
ELISABETH    United States   

75035736

12/22/1995

  

2128086

1/13/1998

   J. C. Penney Purchasing Corporation
LIZ CLAIBORNE    United States   

73574821

12/23/1985

  

1422446

12/30/1986

   J. C. Penney Purchasing Corporation
LIZ CLAIBORNE    United States   

73241762

12/6/1979

  

1167434

9/1/1981

   J. C. Penney Purchasing Corporation
LIZ CLAIBORNE    United States   

75298341

5/27/1997

  

2202253

11/3/1998

   J. C. Penney Purchasing Corporation
LIZ CLAIBORNE    United States   

73741678

7/22/1988

  

1529086

3/7/1989

   J. C. Penney Purchasing Corporation
LIZ CLAIBORNE    United States   

75975430

11/15/1993

  

2131395

1/20/1998

   J. C. Penney Purchasing Corporation
LIZ CLAIBORNE    United States   

73588531

3/17/1986

  

1442825

6/16/1987

   J. C. Penney Purchasing Corporation
LIZSPORT    United States   

87520036

7/7/2017

  

5395423

02/06/18

   J. C. Penney Purchasing Corporation


Trademark

  

Jurisdiction

  

Application No.

Application Date

  

Registration

No.

Registration

Date

  

Owner Name

LIZGOLF    United States   

75256491

3/13/1997

  

2132747

1/27/1998

   J. C. Penney Purchasing Corporation
LIZWEAR    United States   

87520022

07/07/2017

  

5395422

2/6/2018

   J. C. Penney Purchasing Corporation
Triangular Bottle Design    United States   

73707097

1/22/1988

  

1507695

10/11/1988

   J. C. Penney Purchasing Corporation
ESTATE BY MONET    Puerto Rico   

67135

6/20/2005

  

67135

12/10/2007

   J. C. Penney Purchasing Corporation
M Monogram and MONET SINCE 1929 Design    Puerto Rico   

Awaiting App. No.

1/13/2011

      J. C. Penney Purchasing Corporation
MONET    United States   

73300467

3/9/1981

  

1209655

9/21/1982

   J. C. Penney Purchasing Corporation
MONET    United States   

72109807

12/7/1960

  

719979

8/15/1961

   J. C. Penney Purchasing Corporation
LIZ & CO. BY LIZ CLAIBORNE    United States   

87530513

07/17/17

(Pending ITU)

      J. C. Penney Purchasing Corporation
LIZ & CO.    United States   

87530498

07/17/17

(Pending ITU)

      J. C. Penney Purchasing Corporation
TOTAL GIRL    United States   

87782447

02/02/2018

(Pending ITU)

      J. C. Penney Purchasing Corporation
PS PERSONAL STYLE    United States   

87782389

02/02/2018

(Pending ITU)

      J. C. Penney Purchasing Corporation
LIZZIE BY LIZ CLAIBORNE    United States   

87782304

02/02/2018

(Pending ITU)

      J. C. Penney Purchasing Corporation
STYLE AND VALUE FOR ALL    United States   

87782200

02/02/2018

(Pending ITU)

      J. C. Penney Corporation, Inc.
LIZZIE BY LIZ CLAIBORNE    United States   

87776498

01/30/2018

(Pending ITU)

      J. C. Penney Purchasing Corporation


Trademark

  

Jurisdiction

  

Application No.

Application Date

  

Registration

No.

Registration

Date

  

Owner Name

PEYTON & PARKER

  

United States

  

87770713

01/30/2018

(Pending ITU)

      J. C. Penney Purchasing Corporation

JAMES & CO.

  

United States

  

87702796

11/30/2017

(Pending ITU)

      J. C. Penney Purchasing Corporation

ARIZONA JEAN CO.

  

United States

  

87519900

07/07/2017

(Pending ITU)

      J. C. Penney Purchasing Corporation

Design

LOGO

  

United States

  

87390197

03/29/2017

  

5323049

10/31/2017

  

J. C. Penney Corporation,

Inc.

Design

LOGO

  

United States

  

87390717

03/29/17

  

5291143

09/19/17

  

J. C. Penney Corporation,

Inc.

Design

LOGO

  

United States

  

87390786

03/29/17

  

5291144

09/19/17

  

J. C. Penney Corporation,

Inc.

ST. JOHN’S BAY

  

United States

  

87639553

10/10/2017

      J. C. Penney Purchasing Corporation

LIZ CLAIBORNE

  

United States

  

85341825

06/09/2011

  

4063464

11/29/2011

   J. C. Penney Purchasing Corporation

LC

  

United States

  

77910237

01/12/2010

  

4080583

01/03/2012

   J. C. Penney Purchasing Corporation


Trademark

  

Jurisdiction

  

Application No.

Application Date

  

Registration No.

Registration Date

  

Owner Name

LOGO   

United States

  

77910210

01/12/2010

  

4080582

01/03/2012

   J. C. Penney Purchasing Corporation
LOGO   

United States

  

77910193

01/12/2010

  

4080581

01/03/2012

   J. C. Penney Purchasing Corporation

DISCOVER THE REAL SECRET

  

United States

  

85104972

08/11/2010

  

4037300

10/11/2011

   J. C. Penney Corporation, Inc.

JCP

  

United States

  

86714515

08/04/2015

  

4913488

03/08/2016

   J. C. Penney Corporation, Inc.

GET YOUR PENNEY’S WORTH

  

United States

  

86804119

10/29/2015

  

4990473

06/28/2016

   J. C. Penney Corporation, Inc.

PRICED TO BUY. GUARANTEED TO LOVE.

  

United States

  

87346799

02/23/2017

(Pending ITU)

      J. C. Penney Corporation, Inc.

GREAT CONNECTIONS

  

United States

  

73449355

10/24/1983

  

1298926

10/02/1984

   J. C. Penney Purchasing Corporation

TOWNCRAFT

  

United States

  

73573635

12/16/1985

  

1404163

08/05/1986

   J. C. Penney Purchasing Corporation

THE JCPENNEY TOWEL

  

United States

  

73600741

05/27/1986

  

1421983

12/23/1986

   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, “Licensor”)*

  

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 Juicy Couture, Kate Spade and other marks not involved in the contemplated transaction    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, 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.


Licensor

  

Licensee

  

Marks Licensed

  

Type of License

Liz Claiborne,

Inc. (“Company”)*

   QVC   

LIZ CLAIBORNE NEW

YORK (the “Mark”)

  

Company grants to QVC during the term,

non-exclusive licenses in various territories to promote certain identified products using the Mark

J. C. Penney Purchasing Corporation    Safilo USA, Inc.   

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 Purchasing Corporation    Moda LLC    Liz Claiborne    Licensor grants to Licensee the exclusive right to use the Mark in connection with the design and manufacture of women’s footwear products bearing the Mark.
J. C. Penney Corporation, Inc.    Adelington Design Group, LLC    Liz Claiborne, Claiborne, Liz, Liz & Co., Concepts by Claiborne, LC, the LC logo, LizSport, Elizabeth, LizGolf, Liz Claiborne New York, LCNY, Lizwear, MONET, the “M” logo    Licensor grants Licensee the exclusive right to use the Marks in connection with the design and manufacture of fashion jewelry to be sold by Licensor
J. C. Penney Corporation, Inc.    CAA-GBG Global Brand Management    Liz Claiborne    Licensor grants to Licensee the exclusive right to represent Licensor during the Term to expand the Brand through licensing and related opportunities in the territories described in the letter agreement

 

* 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.


II. COMMERCIAL TORT CLAIMS

Claim of J. C. Penney Corporation, Inc. against a landlord’s roofing consultant, RoofTech Consulting Group, Inc., and contractor, Progressive Services, Inc., for negligence resulting in a partial roof collapse and store flood. A further claim was made against landlord’s remediation contractor for additional flooding and inventory damage related to work performed following the initial flooding event. The total value of the claims exceeds $4 million. The claim amount represents J. C. Penney Corporation, Inc.’s deductible under its insurance and other uninsured losses. Suit has been filed on the claims and the same is currently pending in state court in Comanche County, Oklahoma.

 

III. RESERVED


APPENDIX A

(see attached)


Titles in document V3608D709

This list contains titles in document V3608D709

Document title: Earring & 496 other titles.

The complete document is: V3608 D709 P1-17

 

 

List of titles:

 

  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.


Titles in document V3608D709

 

  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.


Titles in document V3608D709

 

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.


Titles in document V3608D709

 

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.


Titles in document V3608D709

 

  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.


Titles in document V3608D709

 

  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.


Titles in document V3608D709

 

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.


Titles in document V3608D709

 

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.


Titles in document V3608D709

 

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.


Titles in document V3608D709

 

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.


Titles in document V3608D709

 

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.


Titles in document V3608D709

 

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.


Titles in document V3608D709

 

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.


Titles in document V3608D709

 

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’ Mother’s 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.

End of titles list for document V3608D709

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SCHEDULE 5.4

TO PLEDGE AND SECURITY AGREEMENT

FINANCING STATEMENTS

 

Grantor

               Filing Jurisdiction            

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 PLEDGE AND SECURITY AGREEMENT

Equipment Locations

(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
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

 

Page 1 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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
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

 

Page 2 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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
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

 

Page 3 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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
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

 

Page 4 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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
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

 

Page 5 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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
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

 

Page 6 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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
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

 

Page 7 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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
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

 

Page 8 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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
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

 

Page 9 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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
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

 

Page 10 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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
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

 

Page 11 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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
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

 

Page 12 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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
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

 

Page 13 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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
2453    MAIN STORE    6 MCKINLEY MALL    BLASDELL    NY
      SW CORNER PINES BLVD. & SW      
2456    HOME STORE    136TH STREET    PEMBROKE PINES    FL
2456    MAIN STORE    11401 PINES BLVD    PEMBROKE PINES    FL

 

Page 14 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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
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

 

Page 15 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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
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

 

Page 16 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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
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

 

Page 17 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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
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

 

Page 18 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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
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

 

Page 19 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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
         CHESTERFIELD   
2967    MAIN STORE    50753 WATERSIDE DR    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
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

 

Page 20 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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 D’ARCY PARKWAY    LATHROP    CA
9224    LOGISTIC CENTER    700 D’ARCY 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
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

 

Page 21 of 22


Equipment Locations

 

Store

Number

  

Type/Use

  

Address

  

City

  

State

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

 

Page 22 of 22


Inventory Locations

(see attached)


INVENTORY LOCATIONS

 

LOCATION

  

STATE

 

CITY

 

ZIP

 

ADDRESS

1

  

WY

 

KEMMERER

  831010110  

722 J C PENNEY DR

4

  

SD

 

BROOKINGS

  570062830  

990 22ND AVE S

5

  

FL

 

JACKSONVILLE

  322258293  

9501 ARLINGTON EXPY STE 105

7

  

NY

 

AUBURN

  130219532  

1579 CLARK STREET RD

27

  

OR

 

HAPPY VALLEY

  970867717  

12300 SE 82ND AVE

30

  

MN

 

BURNSVILLE

  553064997  

14301 BURNHAVEN DR

43

  

CO

 

ALAMOSA

  811012595  

621 MAIN ST

55

  

TX

 

LUFKIN

  759015695  

4600 S MEDFORD DR STE 2000

58

  

PR

 

PONCE

  007171312  

2050 PONCE BY PASS STE 200

67

  

PA

 

WHITEHALL

  180525797  

500 LEHIGH VALLEY MALL

89

  

SC

 

ROCK HILL

  297307939  

2321 DAVE LYLE BLVD

90

  

AZ

 

TUCSON

  857051693  

4530 N ORACLE RD

99

  

NC

 

FAYETTEVILLE

  283037299  

300 CROSS CREEK MALL

106

  

WA

 

SEATTLE

  981258514  

401 NE NORTHGATE WAY STE 475

113

  

ND

 

WILLISTON

  588015305  

403 MAIN STREET

116

  

NH

 

SALEM

  030792977  

81 ROCKINGHAM PARK BLVD

120

  

WY

 

CASPER

  826094202  

301 WYOMING BLVD SE

130

  

NY

 

JOHNSON CITY

  137901286  

601-635 HARRY L DR STE 99

133

  

NH

 

ROCHESTER

  038678804  

25 LILAC MALL (RT 125)

141

  

OK

 

ARDMORE

  734011829  

1207 N COMMERCE

157

  

AZ

 

CHANDLER

  852861587  

2180 S GILBERT RD

161

  

GA

 

HIRAM

  301412733  

5043 JIMMY LEE SMITH PKWY

168

  

PA

 

NORTH WALES

  194543907  

300 MONTGOMERY MALL

170

  

KY

 

MURRAY

  420711692  

720 N 12TH ST (US 641)

171

  

WI

 

PLEASANT PRAIRIE

  531581142  

10225 77TH ST

174

  

NY

 

NEW YORK

  100013202  

100 W 32ND ST

178

  

TN

 

OAK RIDGE

  378306778  

333 MAIN ST STE 200

179

  

TX

 

DALLAS

  752317720  

6051 SKILLMAN ST

183

  

TN

 

CHATTANOOGA

  374216049  

2100 HAMILTON PLACE BLVD

184

  

MO

 

LEES SUMMIT

  640865718  

990 NW BLUE PKWY

185

  

IL

 

GALESBURG

  614011349  

1150 W CARL SANDBURG DR

192

  

VA

 

FAIRFAX

  220333398  

11801 FAIR OAKS MALL

194

  

MD

 

LANHAM

  207061673  

9100 MCHUGH DR STE 576

195

  

CA

 

DALY CITY

  940152345  

63 SERRAMONTE CTR

197

  

NY

 

BROOKLYN

  112392822  

360 GATEWAY DR

199

  

PA

 

MONROEVILLE

  151462247  

500 MONROEVILLE MALL

201

  

NC

 

MATTHEWS

  281054617  

10101 E INDEPENDENCE BLVD

204

  

VA

 

WOODBRIDGE

  221924625  

2700 POTOMAC MILLS CIR

209

  

MD

 

ABINGDON

  210092020  

3411 MERCHANT BLVD

211

  

SD

 

SIOUX FALLS

  571066501  

3200 W EMPIRE MALL

217

  

CA

 

VICTORVILLE

  923925402  

14370 BEAR VALLEY RD

218

  

IN

 

INDIANAPOLIS

  462501578  

6020 E 82ND ST STE 700

219

  

AL

 

MOBILE

  366063411  

3400 BELL AIR MALL

220

  

WA

 

UNION GAP

  989031634  

1500 E WASHINGTON AVE

221

  

PA

 

HANOVER

  173311200  

1155 CARLISLE ST

224

  

CA

 

SAN BERNARDINO

  924081921  

300 INLAND CTR

226

  

TX

 

MCALLEN

  785035478  

2200 S 10TH ST

227

  

NY

 

BROOKLYN

  112345208  

5100 KINGS PLZ STE 2201


INVENTORY LOCATIONS

 

LOCATION

  

STATE

 

CITY

 

ZIP

 

ADDRESS

231

   UT   SANDY   840704176   10450 S STATE ST STE 2100

232

   WA   TACOMA   984097265   4502 S STEELE STE 200

237

   IL   ORLAND PARK   604626596   3 ORLAND SQ DR

241

   NJ   CHERRY HILL   080022144   2000 RT 38 STE 1000

246

   CA   CARSON   907463796   20700 AVALON BLVD

249

   IL   JACKSONVILLE   626503145   901 W MORTON

250

   CA   LAKEWOOD   907122482   67 LAKEWOOD CTR MALL

251

   AZ   GLENDALE   853088612   7750 W ARROWHEAD TOWNE CENTER

253

   IN   MUNCIE   473031295   3501 GRANVILLE AVE

258

   MO   FARMINGTON   636401951   734 MARKET ST

259

   TX   TEMPLE   765021953   3111 S 31ST ST STE 3301

260

   CA   REDDING   960034080   950 DANA DR

268

   WV   BRIDGEPORT   263309775   2500 MEADOWBROOK MALL

270

   NY   CORTLAND   130453580   854 STATE RTE 13

273

   MD   GAITHERSBURG   208772696   701 RUSSELL AVE

283

   SC   SUMTER   291502567   1057 BROAD ST

287

   FL   SEBRING   338702131   901 US 27 N STE 150

288

   OR   PORTLAND   972234429   9500 SW WASHINGTON SQ RD

304

   TX   LONGVIEW   756054488   3550 MCCANN RD

309

   IN   VINCENNES   475913630   640 NIBLACK BLVD

318

   MN   ROCHESTER   559022169   101 APACHE MALL

321

   FL   ALTAMONTE SPRINGS   327014634   451 E ALTAMONTE DR STE 1301

322

   TN   COOKEVILLE   385014034   400 DUBOIS RD

334

   CA   FAIRFIELD   945334699   1330 TRAVIS BLVD

345

   CA   HEMET   925453666   2200 W FLORIDA AVE

351

   AR   RUSSELLVILLE   728022003   3057 E MAIN

355

   IN   GREENWOOD   461424526   1251 US 31 N

367

   RI   WARWICK   028861683   400 BALD HILL RD

373

   MD   LA VALE   215027798   1262 VOCKE RD STE 300

384

   IA   AMES   500104655   2901 N GRAND AVE

389

   CA   PLEASANTON   945883276   1500 STONERIDGE MALL RD

395

   PA   HERMITAGE   161480056   3405 E STATE ST

400

   MI   BIG RAPIDS   493071807   125 S MICHIGAN AVE

403

   LA   HOUMA   703641495   5953 W PARK AVE STE 3000

419

   TN   JACKSON   383054986   2021 N HIGHLAND AVE STE 15

424

   FL   PENSACOLA   325046397   7171 N DAVIS HWY AND RT 10

426

   CT   TORRINGTON   067906301   251 HIGH ST

439

   NY   VICTOR   145641002   600 EASTVIEW MALL

450

   NM   GALLUP   873015394   1300 W MALONEY AVE STE A

456

   NE   GRAND ISLAND   688032399   3404 W 13TH ST

465

   CA   SANTA CLARITA   913553913   24140 MAGIC MOUNTAIN PKY

466

   IL   ALTON   620025998   150 HOMER ADAMS PKWY

479

   FL   GAINESVILLE   326054398   6481 NEWBERRY RD

481

   ID   POCATELLO   832022494   4201 YELLOWSTONE AVE

485

   TX   ABILENE   796062798   4310 BUFFALO GAP RD

487

   IN   TERRE HAUTE   478025588   3401 S US 41

494

   CA   MERCED   953482496   600 MERCED MALL

496

   MN   ROSEVILLE   551133096   1700 W COUNTY RD B-2


INVENTORY LOCATIONS

 

LOCATION

  

STATE

 

CITY

 

ZIP

 

ADDRESS

497

  

NJ

 

ROCKAWAY

  078662147  

305 MOUNT HOPE AVE

514

  

ME

 

PRESQUE ISLE

  047692276  

830 MAIN ST

528

  

MI

 

ALMA

  488011099  

1680 WRIGHT AVE

529

  

MD

 

HAGERSTOWN

  217406999  

17301 VALLEY MALL RD STE 400

530

  

VT

 

SOUTH BURLINGTON

  054036280  

155 DORSET ST

539

  

NY

 

OSWEGO

  131262964  

140 STATE ROUTE 104 STE A

549

  

LA

 

METAIRIE

  700024879  

3301 VETERANS MEMORIAL BLVD

557

  

CA

 

WHITTIER

  906032383  

15740 WHITTWOOD LANE

559

  

CO

 

GRAND JUNCTION

  815051115  

2424 US 6TH AND 50TH

562

  

NY

 

BAY SHORE

  117066081  

1701 SUNRISE HWY

566

  

CA

 

CARLSBAD

  920081202  

2555 EL CAMINO REAL

578

  

MA

 

HOLYOKE

  010402736  

50 HOLYOKE ST

579

  

TX

 

ODESSA

  797627287  

4101 E 42ND ST

581

  

TN

 

COLUMBIA

  384014388  

800 S JAMES CAMPBELL BLVD

582

  

OH

 

TOLEDO

  436233699  

5001 MONROE ST

601

  

WA

 

PUYALLUP

  983733779  

3700 S MERIDIAN ST

608

  

AR

 

HARRISON

  726012189  

814 US HWY 62-65 N STE 27

611

  

TX

 

LUBBOCK

  794144310  

6002 SLIDE RD-BLDG A

620

  

FL

 

DAYTONA BEACH

  321141398  

1700 W INTL SPEEDWAY BLVD

631

  

TX

 

SAN ANTONIO

  782389893  

6301 NW LOOP 410

634

  

CA

 

NATIONAL CITY

  919508097  

3040 PLAZA BONITA RD

643

  

MI

 

SAGINAW

  486042797  

4600 BAY RD

644

  

CO

 

PUEBLO

  810081092  

3301 DILLON DR

647

  

OH

 

ASHTABULA

  440044376  

3315 N RIDGE RD E STE 100

652

  

IL

 

PEORIA

  616131082  

2200 W WAR MEMORIAL DR STE 997

654

  

LA

 

ALEXANDRIA

  713013697  

3541 MASONIC DR

656

  

MT

 

GREAT FALLS

  594054493  

1200 10TH AVE S

658

  

TX

 

LAREDO

  780413000  

5300 SAN DARIO

663

  

AR

 

NORTH LITTLE ROCK

  721168098  

3929 MCCAIN BLVD STE 500

671

  

NM

 

ALAMOGORDO

  883106151  

3199 N WHITE SANDS

681

  

TN

 

KINGSPORT

  376643659  

2101 FT HENRY DR

687

  

GA

 

ATHENS

  306063193  

3700 ATLANTA HWY

688

  

MS

 

BILOXI

  395314603  

2600 BEACH BLVD

689

  

FL

 

LAKE CITY

  320554727  

2427 US HWY 90 W STE 10

691

  

CA

 

CONCORD

  945205818  

484 SUN VALLEY MALL

695

  

SC

 

GREENVILLE

  296072794  

700 HAYWOOD RD

696

  

WA

 

TUKWILA

  981882840  

1249 SOUTHCENTER MALL

699

  

CA

 

GLENDALE

  912101301  

1169 GLENDALE GALLERIA

700

  

NJ

 

TRENTON

  086481904  

500 QUAKER BRIDGE MALL

702

  

TX

 

EL PASO

  799255668  

8401 GATEWAY BLVD W

703

  

MI

 

PETOSKEY

  497702624  

408 E MITCHELL ST

704

  

IL

 

MOLINE

  612656314  

4651 27TH ST

708

  

MI

 

BENTON HARBOR

  490222398  

1800 PIPESTONE RD

709

  

FL

 

ORLANDO

  328035107  

3115 E COLONIAL DR

712

  

TX

 

WICHITA FALLS

  763082816  

3111 MIDWESTERN PKWY

718

  

FL

 

SANFORD

  327717410  

310 TOWNE CTR CIR

731

  

NE

 

OMAHA

  681445633  

3202 OAKVIEW DR

733

  

CO

 

DURANGO

  813016819  

800 S CAMINO DEL RIO


INVENTORY LOCATIONS

 

LOCATION

  

STATE

 

CITY

 

ZIP

 

ADDRESS

738

  

MN

 

DETROIT LAKES

  565013474  

925 WASHINGTON AVE

739

  

SC

 

N CHARLESTON

  294064062  

2150 NORTHWOODS BLVD UNIT E100

744

  

OR

 

EUGENE

  974012151  

300 VALLEY RIVER CTR

766

  

FL

 

BRANDON

  335114723  

331 BRANDON TOWN CENTER MALL

767

  

OH

 

SANDUSKY

  448705891  

4316 MILAN RD

768

  

NY

 

HORSEHEADS

  148451497  

3300 CHAMBERS RD STE 5090

769

  

NV

 

ELKO

  898012699  

2190 IDAHO ST

778

  

VA

 

RICHMOND

  232295540  

1408 N PARHAM RD

779

  

KY

 

FLORENCE

  410421432  

6000 FLORENCE MALL

780

  

IN

 

KOKOMO

  469022494  

1718 E BLVD

781

  

OK

 

TULSA

  741356062  

4101 S YALE AVE

786

  

MD

 

GLEN BURNIE

  210610363  

7900 GOVERNOR RITCHIE HWY

794

  

NC

 

WILMINGTON

  284030811  

3500 OLEANDER DR

808

  

SC

 

ANDERSON

  296212773  

3187 N MAIN ST

814

  

WA

 

OLYMPIA

  985025094  

625 BLACK LAKE BLVD

816

  

DE

 

NEWARK

  197023295  

606 CHRISTIANA MALL

819

  

MI

 

ANN ARBOR

  481081699  

500 BRIARWOOD CIR

830

  

MS

 

LAUREL

  394403961  

910 SAWMILL RD

834

  

GA

 

ALPHARETTA

  300224859  

2000 N POINT CIR

838

  

MS

 

GREENWOOD

  389302899  

810 W PARK AVE

852

  

VA

 

VIRGINIA BEACH

  234527304  

701 LYNN HAVEN PKWY

863

  

CO

 

COLORADO SPRINGS

  809095398  

680 CITADEL DR E

870

  

TX

 

HOUSTON

  770961699  

730 MEYERLAND PLAZA MALL

881

  

KS

 

WICHITA

  672071771  

7700 E KELLOGG DR

882

  

IN

 

LAFAYETTE

  479055124  

2415 SAGAMORE PKWY S 52

890

  

MA

 

STURBRIDGE

  015661297  

194 MAIN ST

891

  

WI

 

MADISON

  537043793  

135 E TOWNE MALL

895

  

GA

 

GAINESVILLE

  305013548  

150 PEARL NIX PKWY

899

  

ME

 

BANGOR

  044013606  

639 STILLWATER AVE

902

  

NJ

 

TOMS RIVER

  087537607  

1201 HOOPER AVE STE B

907

  

FL

 

SARASOTA

  342382994  

8201 S TAMIAMI TRAIL

910

  

MI

 

BAY CITY

  487062264  

4129 E WILDER RD

911

  

NE

 

OMAHA

  681142348  

800 N 98TH ST

920

  

MO

 

CAPE GIRARDEAU

  637036397  

200 W PARK MALL

921

  

MI

 

MT PLEASANT

  488584494  

2231 S MISSION RD

933

  

CT

 

FARMINGTON

  060322605  

300 WESTFARMS MALL

951

  

DE

 

DOVER

  199018726  

1365 N DUPONT HWY STE 5000

952

  

NY

 

GARDEN CITY

  115303471  

630 OLD COUNTRY RD UNIT A2

955

  

CA

 

HUNTINGTON PARK

  902554104  

6420 S PACIFIC BLVD

965

  

AR

 

EL DORADO

  717303398  

1845 N WEST AVE

972

  

IL

 

NILES

  607141281  

220 GOLF MILL CTR

982

  

MD

 

BALTIMORE

  212242196  

7777 EASTPOINT MALL

993

  

TX

 

SAN ANTONIO

  782241497  

2418 SW MILITARY DR

995

  

WV

 

BLUEFIELD

  247019098  

261 MERCER MALL RD

996

  

TX

 

TYLER

  757031398  

4401 S BROADWAY

1020

  

CA

 

HANFORD

  932305926  

1671 W LACEY BLVD

1028

  

CA

 

CALEXICO

  922312755  

315 E SECOND ST

1037

  

CA

 

MODESTO

  953560505  

3401 DALE RD


INVENTORY LOCATIONS

 

LOCATION

  

STATE

 

CITY

 

ZIP

 

ADDRESS

1046

  

TX

 

DENTON

  762058196  

2201 S INTERSTATE 35 E STE D

1048

  

TX

 

KERRVILLE

  780285998  

200 SIDNEY BAKER ST S (HWY 16)

1049

  

IL

 

AURORA

  605044194  

4 FOX VALLEY CTR

1052

  

AZ

 

NOGALES

  856211041  

220 W MARIPOSA RD

1056

  

IN

 

ELKHART

  465173192  

3701 S MAIN ST (US 33)

1068

  

KS

 

PITTSBURG

  667626563  

202 E CENTENNIAL DR

1071

  

OH

 

AKRON

  443101814  

2000 BRITTAIN RD STE 600

1081

  

TN

 

FRANKLIN

  370672623  

1780 GALLERIA BLVD

1091

  

MN

 

BEMIDJI

  566014196  

1401 PAUL BUNYAN DR NW STE 2

1101

  

TX

 

WESLACO

  785964539  

715 E EXPRESSWAY 83

1106

  

CO

 

BRIGHTON

  806017066  

1950 PRAIRIE CENTER PKWY

1116

  

OK

 

MCALESTER

  745015100  

1744 E CARL ALBERT PKWY

1122

  

OK

 

OKLAHOMA CITY

  731348099  

2501 W MEMORIAL RD

1128

  

TX

 

LEAGUE CITY

  775736743  

2520 GULF FWY S

1130

  

AZ

 

TUCSON

  857165484  

3501 E BROADWAY

1134

  

PA

 

SCRANTON

  185081398  

80 VIEWMONT MALL

1135

  

VA

 

LYNCHBURG

  245022264  

3409 CANDLERS MOUNTAIN RD

1140

  

VA

 

RICHMOND

  232312421  

4541 S LABURNUM AVE

1142

  

CA

 

LOS BANOS

  936353995  

951 W PACHECO BLVD

1148

  

FL

 

MARY ESTHER

  325691699  

300 MARY ESTHER BLVD

1150

  

NJ

 

EATONTOWN

  077242023  

180 STATE ROUTE 35

1153

  

KS

 

DODGE CITY

  678016278  

2601 CENTRAL AVE

1156

  

CA

 

STOCKTON

  952075787  

4915 CLAREMONT AVE

1161

  

PA

 

GREENSBURG

  156016405  

5256 ROUTE 30

1163

  

KY

 

FRANKFORT

  406014358  

1375 US 127 S

1164

  

ND

 

GRAND FORKS

  582016030  

2800 S COLUMBIA RD

1165

  

ID

 

LEWISTON

  835014068  

1826 19TH AVE

1166

  

MI

 

DEARBORN

  481263999  

18900 MICHIGAN AVE (US 12)

1168

  

CO

 

AURORA

  800122592  

14200 E ALAMEDA AVE

1170

  

AL

 

OXFORD

  362031848  

700 QUINTARD DR STE 100

1180

  

NJ

 

WAYNE

  074706993  

260 WAYNE TOWNE CTR

1188

  

MO

 

SPRINGFIELD

  658043781  

2825 S GLENSTONE AVE STE 200

1190

  

IL

 

LOMBARD

  601485592  

175 YORKTOWN S/C

1195

  

WI

 

BROOKFIELD

  530056021  

95 N MOORLAND RD

1206

  

CA

 

CITRUS HTS

  956106973  

6100 SUNRISE BLVD

1210

  

WI

 

LA CROSSE

  546011899  

3700 STATE RD 16

1212

  

PA

 

WEST MIFFLIN

  151230014  

3075 CLAIRTON RD STE 100

1217

  

WI

 

MADISON

  537191087  

23 WEST TOWNE MALL

1223

  

CA

 

LAGUNA HILLS

  926533695  

24200 LAGUNA HILLS MALL

1226

  

PA

 

LANCASTER

  176012799  

400 PARK CITY S/C

1228

  

IA

 

MARSHALLTOWN

  501584593  

2500 S CENTER ST

1229

  

CA

 

THOUSAND OAKS

  913604294  

280 HILLCREST DR W

1240

  

IA

 

CARROLL

  514012729  

504 N ADAMS ST

1241

  

CA

 

SALINAS

  939062097  

100 NORTHRIDGE MALL

1248

  

KY

 

SOMERSET

  425016400  

4150 S HWY 27

1250

  

IN

 

CLARKSVILLE

  471292285  

757 E LEWIS & CLRK PKY STE 701

1256

  

WA

 

KENNEWICK

  993367658  

1321 N COLUMBIA CTR BLVD # 100

1270

  

NV

 

CARSON CITY

  897015528  

3939 S CARSON ST


INVENTORY LOCATIONS

 

LOCATION

  

STATE

 

CITY

 

ZIP

 

ADDRESS

1274

  

CA

 

CHULA VISTA

  919105307  

591 BROADWAY

1288

  

SD

 

RAPID CITY

  577017854  

2200 N MAPLE AVE STE 2204

1296

  

KS

 

HAYS

  676011991  

2918 VINE ST STE 2001

1306

  

MI

 

WESTLAND

  481852089  

35000 W WARREN RD

1308

  

KY

 

LOUISVILLE

  402073371  

5000 SHELBYVILLE RD

1313

  

TX

 

LAKE JACKSON

  775664016  

100 HWY 332 W STE 1260

1315

  

GA

 

STATESBORO

  304582759  

325 NORTHSIDE DR E STE 25

1319

  

OH

 

MOUNT VERNON

  430501475  

1530 COSHOCTON AVE

1320

  

NC

 

WINSTON SALEM

  271033032  

3320 SILAS CREEK PKWY STE 460

1321

  

FL

 

MERRITT ISLAND

  329523575  

777 E MERRITT ISL CSWY STE 210

1322

  

KY

 

DANVILLE

  404222460  

1560 HOUSTONVILLE RD STE 301

1323

  

OH

 

NORTH OLMSTED

  440703383  

5100 GREAT NORTHERN MALL

1324

  

IN

 

BEDFORD

  474216107  

1118 JAMES AVE

1327

  

NC

 

GREENSBORO

  274074790  

100 FOUR SEASONS TOWN CTR

1330

  

TX

 

CORPUS CHRISTI

  784114123  

5488 S PADRE ISLAND DR STE4000

1337

  

CA

 

DOWNEY

  902413994  

100 STONEWOOD ST

1339

  

MO

 

JOPLIN

  648011697  

101 RANGE LINE STE 250A

1348

  

TX

 

PARIS

  754605026  

3560 LAMAR AVE HWY 82

1351

  

FL

 

OCALA

  344744499  

3100 SW COLLEGE RD

1352

  

MI

 

TROY

  480834260  

700 W 14 MILE RD

1360

  

FL

 

MIAMI

  331567874  

7201 N KENDALL DR

1362

  

MN

 

DULUTH

  558115697  

1600 A MILLER TRUNK HWY STE 4

1368

  

IL

 

NORTH RIVERSIDE

  605461474  

7507 W CERMAK RD

1373

  

MO

 

SAINT LOUIS

  631291094  

100 S COUNTY CENTER WAY

1377

  

NC

 

GOLDSBORO

  275343483  

607 N BERKELEY BLVD

1388

  

CA

 

UKIAH

  954824588  

205 N ORCHARD AVE

1389

  

KS

 

OVERLAND PARK

  662141882  

11801 W 95TH ST

1392

  

NH

 

WEST LEBANON

  037842000  

250 PLAINFIELD RD UNIT 202

1393

  

KY

 

PIKEVILLE

  415013250  

4257 N MAYO TRAIL

1398

  

MI

 

TAYLOR

  481805287  

23000 EUREKA RD STE A3

1399

  

NE

 

NORFOLK

  687017305  

1700 MARKET LANE

1405

  

MN

 

MINNETONKA

  553051929  

12421 WAYZATA BLVD

1413

  

UT

 

SALT LAKE CITY

  841193746  

3601 S 2700 W

1417

  

CA

 

ARCADIA

  910071900  

400 S BALDWIN AVE

1419

  

TX

 

FORT WORTH

  761161703  

1900 GREEN OAKS RD

1432

  

MI

 

STERLING HEIGHTS

  483131368  

14300 LAKESIDE CIR

1433

  

IN

 

MERRILLVILLE

  464106497  

1890 SOUTHLAKE MALL

1443

  

IL

 

FAIRVIEW HEIGHTS

  622082134  

245 SAINT CLAIR SQ

1445

  

NY

 

NEW HARTFORD

  134131597  

1 SANGERTOWN SQ STE 55

1451

  

IL

 

JOLIET

  604318821  

3340 MALL LOOP DR SPACE 2

1455

  

VA

 

WINCHESTER

  226015136  

1850 APPLE BLOSSOM DR

1462

  

VA

 

SPRINGFIELD

  221501702  

6699 SPRINGFIELD MALL

1467

  

MD

 

FREDERICK

  217038331  

5500 BUCKEYSTOWN PIKE

1475

  

FL

 

CLEARWATER

  337613499  

27001 US HWY 19 N

1480

  

AZ

 

PHOENIX

  850327790  

4510 E CACTUS RD

1481

  

FL

 

TAMPA

  336091899  

201 WESTSHORE PLAZA

1489

  

PA

 

DU BOIS

  158013314  

5522 SHAFFER RD STE 09

1493

  

RI

 

WESTERLY

  028913197  

100 FRANKLIN ST UNIT F


INVENTORY LOCATIONS

 

LOCATION

  

STATE

 

CITY

 

ZIP

 

ADDRESS

1503

  

VA

 

HARRISONBURG

  228013496  

1925 E MARKET ST

1505

  

CA

 

WEST COVINA

  917902885  

1203 PLAZA DR

1509

  

CA

 

SANTA ROSA

  954013570  

800 CODDINGTOWN CTR

1510

  

NY

 

AMHERST

  142261185  

1303 NIAGARA FALLS BLVD

1512

  

CA

 

DELANO

  932151736  

1228 MAIN ST

1514

  

FL

 

BRADENTON

  342057990  

303 301 BLVD W STE 701

1529

  

NJ

 

E BRUNSWICK

  088164995  

755 STATE RT 18 STE 600

1531

  

PA

 

LANGHORNE

  190471824  

2300 E LINCOLN HWY

1535

  

PA

 

BUTLER

  160011583  

101 CLEARVIEW CIRCLE

1542

  

IL

 

CHICAGO

  606521051  

7601 S CICERO AVE

1559

  

IA

 

CEDAR RAPIDS

  524043295  

2400 EDGEWOOD RD SW

1572

  

CA

 

CULVER CITY

  902306504  

6000 S HANNUM AVE

1580

  

MI

 

GRAND RAPIDS

  495121675  

3225 28TH ST SE

1589

  

OH

 

ZANESVILLE

  437011010  

3575 MAPLE AVE

1590

  

KS

 

WICHITA

  672092546  

4600 W KELLOGG RD

1591

  

NY

 

CLIFTON PARK

  120653810  

22 CLIFTON COUNTRY RD STE 2

1603

  

NC

 

RALEIGH

  276095790  

4217 SIX FORKS RD STE 100

1612

  

IA

 

WEST DES MOINES

  502661189  

1551 VALLEY WEST DR

1614

  

CA

 

MONTCLAIR

  917631598  

5100 MONTCLAIR PLAZA LANE

1618

  

NY

 

ROCHESTER

  146235822  

25 MIRACLE MILE DR

1623

  

MI

 

NOVI

  483773410  

27150 NOVI RD

1650

  

AL

 

FLORENCE

  356301579  

301 COX CREEK PKWY (RT 133)

1674

  

WV

 

BARBOURSVILLE

  255041830  

800 MALL RD

1693

  

NM

 

HOBBS

  882404314  

1401 N TURNER ST

1698

  

KY

 

OWENSBORO

  423017424  

5000 FREDERICA ST

1704

  

KY

 

LOUISVILLE

  402193398  

4803 OUTER LOOP RD

1717

  

IL

 

MT VERNON

  628642295  

115 TIMES SQ MALL

1722

  

PA

 

ERIE

  165650840  

840 MILL CREEK MALL

1738

  

NY

 

VALLEY STREAM

  115811552  

1051 GREEN ACRES MALL

1749

  

TX

 

TEXARKANA

  755032495  

2400 RICHMOND RD STE 61

1751

  

SC

 

SPARTANBURG

  293011381  

205 W BLACKSTOCK RD STE 8

1761

  

NJ

 

PARAMUS

  076522410  

502 GARDEN STATE PLAZA

1775

  

ND

 

BISMARCK

  585045752  

850 KIRKWOOD MALL

1779

  

PA

 

STROUDSBURG

  183601198  

300 STROUD MALL

1783

  

IN

 

SEYMOUR

  472743540  

1224 E TIPTON ST

1786

  

AL

 

TUSCALOOSA

  354045824  

1701 MACFARLAND BLVD E

1787

  

OH

 

AKRON

  443124067  

1500 CANTON RD

1794

  

NV

 

LAS VEGAS

  891073196  

4400 MEADOWS LANE

1811

  

CA

 

TORRANCE

  905037000  

21840 S HAWTHORNE BLVD

1816

  

OH

 

MENTOR

  440605596  

7850 MENTOR AVE STE 930

1823

  

WA

 

VANCOUVER

  986626499  

8900 NE VANCOUVER MALL DR

1831

  

AK

 

ANCHORAGE

  995012369  

406 W 5TH AVE

1832

  

DE

 

WILMINGTON

  198086130  

3236 KIRKWOOD HWY

1842

  

CA

 

VISALIA

  932776289  

2115 S MOONEY BLVD

1844

  

CA

 

HAYWARD

  945452158  

340 SOUTHLAND MALL

1845

  

OR

 

SALEM

  973013589  

305 LIBERTY ST NE

1847

  

NC

 

ROCKINGHAM

  283794445  

1305 E BROAD AVE STE 13

1853

  

OH

 

CANTON

  447085247  

4300 TUSCARAWAS ST W


INVENTORY LOCATIONS

 

LOCATION

  

STATE

 

CITY

 

ZIP

 

ADDRESS

1858

  

OH

 

CHILLICOTHE

  456011763  

1075 N BRIDGE ST

1859

  

OH

 

LIMA

  458051223  

2400 ELIDA RD

1860

  

IN

 

RICHMOND

  473743725  

4199 NATIONAL RD E

1862

  

FL

 

FORT MYERS

  339019058  

4125 CLEVELAND AVE STE 903

1868

  

MO

 

HANNIBAL

  634012239  

420 HUCK FINN S/C

1869

  

MD

 

BALTIMORE

  212364901  

8200 PERRY HALL BLVD

1870

  

MO

 

SAINT JOSEPH

  645063089  

3702 FREDERICK AVE STE 7

1871

  

CA

 

SANTA MARIA

  934546911  

1321 S BROADWAY

1874

  

MN

 

SAINT CLOUD

  563016600  

4101 W DIVISION ST

1886

  

WA

 

WENATCHEE

  988011594  

1300 N MILLER ST

1891

  

MN

 

ALEXANDRIA

  563083497  

3015 HWY 29 S

1899

  

OH

 

CINCINNATI

  452451297  

4621 EASTGATE BLVD

1900

  

NC

 

GREENVILLE

  278585149  

714 GREENVILLE BLVD SE STE 200

1902

  

OH

 

ELYRIA

  440352485  

4500 MIDWAY MALL

1908

  

NC

 

LUMBERTON

  283582981  

2910 N ELM ST

1911

  

VA

 

STAUNTON

  244015502  

90 LEE JACKSON HWY STE 1268

1919

  

NC

 

NEW BERN

  285625276  

3100 M L KING JR BLVD

1923

  

CA

 

SAN JOSE

  951221347  

2230 EASTRIDGE LOOP

1924

  

OH

 

NILES

  444464810  

5555 YOUNGSTOWN-WARREN RD

1927

  

WV

 

VIENNA

  26105  

200 GRAND CENTRAL MALL

1928

  

KY

 

HOPKINSVILLE

  422404998  

4000 FT CAMPBELL BLVD

1932

  

CA

 

FRESNO

  937107770  

555 E SHAW AVE

1934

  

UT

 

LOGAN

  843412299  

1350 N MAIN ST

1935

  

MT

 

BOZEMAN

  597183985  

2825 W MAIN ST STE C

1936

  

OH

 

YOUNGSTOWN

  445125613  

7401 MARKET ST

1939

  

FL

 

SAINT PETERSBURG

  337103937  

7000 TYRONE SQ

1940

  

WI

 

GREENDALE

  531291126  

5350 S 76TH ST

1942

  

MO

 

DES PERES

  631313701  

90 W COUNTY CTR

1943

  

TX

 

HURST

  760536211  

1105 MELBOURNE DR

1944

  

IL

 

MATTOON

  619384692  

700 BROADWAY AVE E STE 1

1945

  

KY

 

BOWLING GREEN

  421044497  

2625 SCOTTSVILLE RD STE 40

1948

  

IL

 

SCHAUMBURG

  601735068  

3 WOODFIELD MALL

1950

  

CA

 

SAN DIEGO

  921081299  

6987 FRIARS RD

1951

  

MD

 

FORESTVILLE

  207473289  

3401 DONNELL DR

1953

  

FL

 

HIALEAH

  330122966  

1655 W 49TH ST STE 1200

1956

  

FL

 

PLANTATION

  333880900  

8000 W BROWARD BLVD STE 900

1958

  

TX

 

BEAUMONT

  777066784  

6455 EASTEX FRWY

1959

  

CA

 

SAN BRUNO

  940661389  

1122 EL CAMINO REAL

1960

  

CA

 

RIVERSIDE

  925034198  

3605 GALLERIA AT TYLER

1961

  

AR

 

FORT SMITH

  729032065  

5111 ROGERS AVE

1962

  

GA

 

ATLANTA

  303452702  

4840 BRIARCLIFF RD NE

1963

  

IA

 

DAVENPORT

  528065972  

320 W KIMBERLY RD STE 409

1965

  

TN

 

GOODLETTSVILLE

  370722498  

1000 RIVERGATE PKWY STE 3

1968

  

PA

 

WILKES BARRE

  187026895  

34 WYOMING VALLEY MALL

1971

  

NY

 

WILLIAMSVILLE

  142216080  

4545 TRANSIT RD

1972

  

IN

 

FORT WAYNE

  468051176  

4201 COLDWATER RD

1976

  

ND

 

MINOT

  587016997  

2400 10TH ST SW

1977

  

FL

 

TALLAHASSEE

  323013087  

1500 APALACHEE PKWY


INVENTORY LOCATIONS

 

LOCATION

  

STATE

 

CITY

 

ZIP

 

ADDRESS

1979

  

MI

 

FLINT

  485073041  

3535 S LINDEN RD

1980

  

IN

 

MISHAWAKA

  465451092  

6501 N GRAPE RD

1981

  

MT

 

MISSOULA

  598017786  

2901 BROOKS ST

1982

  

MI

 

PORTAGE

  490243593  

6580 S WESTNEDGE AVE

1983

  

NJ

 

WOODBRIDGE

  070951394  

428 WOODBRIDGE CTR DR

1985

  

ME

 

AUBURN

  042106399  

550 CENTER ST

1989

  

TX

 

SAN ANGELO

  769045693  

6000 SUNSET MALL

1991

  

VT

 

BENNINGTON

  052011940  

99 BENNINGTON SQ

1992

  

SC

 

GREENWOOD

  296491410  

320 BYPASS 72 NW STE A

1993

  

TN

 

JOHNSON CITY

  376013130  

2011 N ROAN ST

1994

  

ND

 

FARGO

  581033399  

3902 13TH AVE SW STE 200

1997

  

NY

 

BATAVIA

  140202146  

40 BATAVIA CITY CTR

1998

  

AZ

 

FLAGSTAFF

  860042499  

4600 N US HWY 89

2006

  

MO

 

JEFFERSON CITY

  651095754  

3600 COUNTRY CLUB DR STOP 4

2008

  

NY

 

ROME

  134406500  

205 ERIE BLVD W

2010

  

OH

 

PARMA

  441295675  

7900 DAY DR

2011

  

WA

 

LYNNWOOD

  980374783  

18601 33RD AVE W

2015

  

AL

 

ENTERPRISE

  363302797  

626 BOLL WEEVIL CIR

2018

  

OK

 

LAWTON

  735014600  

200 SW C AVE

2020

  

TX

 

PALESTINE

  758015916  

1930 S LOOP 256

2021

  

TX

 

WACO

  767106394  

6001 W WACO DR

2022

  

MA

 

HADLEY

  010359523  

367 RUSSELL ST STE A

2024

  

VA

 

CHARLOTTESVILLE

  229011489  

1639 E RIO RD

2025

  

IN

 

EVANSVILLE

  477152495  

800 N GREEN RIVER RD

2034

  

WV

 

MOUNT HOPE

  258809669  

105 CROSSROADS MALL

2036

  

TX

 

MIDLAND

  797053208  

4511 N MIDKIFF RD

2039

  

TN

 

MCMINNVILLE

  371101388  

1410 SPARTA ST

2040

  

TX

 

AUSTIN

  787468197  

2901 S CAPITOL OF TEXAS HWY

2042

  

VA

 

FREDERICKSBURG

  224071123  

400 SPOTSYLVANIA MALL

2044

  

PA

 

INDIANA

  157013395  

2334 OAKLAND AVE

2047

  

FL

 

SAINT AUGUSTINE

  320866099  

2121 US HWY 1 S STE A

2048

  

IA

 

SPENCER

  513015500  

901 11TH AVE SW STE 34

2051

  

NY

 

ALBANY

  122035376  

120 WASHINGTON AVE EXT STE 40

2052

  

PA

 

CLARION

  162144065  

22631 RT 68 STE 10

2055

  

TX

 

PLANO

  750758809  

821 N CENTRAL EXPWY

2058

  

WY

 

CHEYENNE

  820094801  

1400 DELL RANGE BLVD

2060

  

GA

 

SAVANNAH

  314063501  

7804 ABERCORN ST

2063

  

NY

 

ONEONTA

  138203702  

5006 STATE HIGHWAY 23

2064

  

AR

 

HOT SPRINGS NAT PK

  719137412  

4501 CENTRAL AVE STE 103

2065

  

MI

 

LANSING

  489171915  

5304 W SAGINAW ST

2066

  

MI

 

OKEMOS

  488641770  

1982 W GRAND RIVER AVE STE 135

2067

  

MI

 

JACKSON

  492024082  

1860 W MICHIGAN AVE

2069

  

FL

 

ORLANDO

  328097684  

8001 S ORANGE BLOSSOM STE 700

2071

  

FL

 

AVENTURA

  331802397  

19525 BISCAYNE BLVD

2074

  

FL

 

ORANGE PARK

  320732329  

1910 WELLS RD

2076

  

MI

 

ALPENA

  497074598  

2338 US 23 S

2079

  

VA

 

DANVILLE

  245404028  

325 PIEDMONT DR

2080

  

NM

 

FARMINGTON

  874028667  

4601 E MAIN ST


INVENTORY LOCATIONS

 

LOCATION

  

STATE

 

CITY

 

ZIP

 

ADDRESS

2083

  

WV

 

CHARLESTON

  253011595  

401 LEE ST E

2085

  

OR

 

MEDFORD

  975014625  

1500 N RIVERSIDE AVE

2086

  

KY

 

PADUCAH

  420019023  

5101 HINKLEVILLE RD STE 800

2089

  

KY

 

MIDDLESBORO

  409651856  

905 N 12TH ST STE 10

2091

  

ME

 

SOUTH PORTLAND

  041063277  

700 MAINE MALL RD

2092

  

FL

 

MELBOURNE

  329043997  

1700 W NEW HAVEN AVE

2093

  

NM

 

LAS CRUCES

  880118630  

700 TELSHOR BLVD STE 2000

2096

  

CA

 

PALM DESERT

  922603315  

72900 HWY 111

2098

  

TN

 

MARYVILLE

  378012314  

101 FOOTHILLS MALL

2099

  

ID

 

IDAHO FALLS

  834046540  

2320 E 17TH ST

2102

  

MD

 

ANNAPOLIS

  214017624  

1695 ANNAPOLIS MALL

2103

  

TX

 

EAGLE PASS

  788525095  

455 S BIBB ST

2104

  

TX

 

HOUSTON

  770705735  

7925 FM 1960 RD STE 7000

2105

  

TX

 

GREENVILLE

  754027390  

6834 WESLEY ST STE C

2108

  

TX

 

BAYTOWN

  775218502  

2000 SAN JACINTO MALL

2110

  

TX

 

KILLEEN

  765435396  

2100 S W S YOUNG DR STE 2000

2115

  

FL

 

PANAMA CITY

  324055388  

2000 MARTIN LUTHER KING JR BLV

2119

  

AL

 

ANDALUSIA

  364202531  

922 RIVER FALLS ST

2121

  

OK

 

ENID

  737034806  

4125 W OWEN K GARRIOTT RD

2122

  

OH

 

ALLIANCE

  446015697  

2500 W STATE ST STE 118

2123

  

LA

 

BOSSIER CITY

  711113265  

2950 E TEXAS ST

2130

  

SC

 

MYRTLE BEACH

  295724027  

10177 N KINGS HWY

2132

  

FL

 

NAPLES

  341024895  

2076 9TH ST N

2135

  

NM

 

ROSWELL

  882019733  

4501 N MAIN ST STE 9

2137

  

TX

 

PORT ARTHUR

  776427724  

3100 HWY 365

2138

  

CT

 

WATERFORD

  063854294  

850 HARTFORD PIKE UNIT C

2139

  

FL

 

CORAL SPRINGS

  330716900  

9303 W ATLANTIC BLVD

2140

  

TX

 

HARLINGEN

  785525999  

2006 S EXPY 83

2144

  

IA

 

DUBUQUE

  520025258  

555 JOHN F KENNEDY RD

2147

  

MN

 

WILLMAR

  562014223  

1605 SOUTH FIRST STREET

2152

  

SC

 

ORANGEBURG

  291153235  

2390 CHESTNUT ST

2153

  

NC

 

SANFORD

  273303459  

1041 SPRING LANE

2159

  

FL

 

BOYNTON BEACH

  334263399  

801 N CONGRESS AVE

2160

  

CO

 

WESTMINSTER

  800313002  

5453 W 88TH AVE

2163

  

IL

 

CALUMET CITY

  604095519  

200 RIVER OAKS CENTER DR

2165

  

MA

 

NORTH DARTMOUTH

  027474204  

120 N DARTMOUTH MALL

2166

  

CA

 

YREKA

  960979531  

1810 FORT JONES RD

2168

  

MS

 

RIDGELAND

  391571999  

1200 E COUNTY LINE RD

2169

  

TX

 

AMARILLO

  791210600  

7701 W I-40 STE 600

2171

  

CA

 

ESCONDIDO

  920258094  

290 E VIA RANCHO PKWY

2172

  

CA

 

MONTEBELLO

  906402197  

1600 TOWN CENTER DR

2173

  

GA

 

BRUNSWICK

  315251859  

ONE MALL BLVD

2175

  

LA

 

MONROE

  712037000  

4761 PECANLAND MALL DR

2176

  

KS

 

MANHATTAN

  665026000  

101 MANHATTAN TOWN CTR

2177

  

VA

 

ROANOKE

  240122017  

4832 VALLEY VIEW BLVD NW

2178

  

TX

 

VICTORIA

  779042698  

8106 N NAVARRO ST

2184

  

TX

 

COLLEGE STATION

  778403766  

1500 HARVEY RD

2185

  

WI

 

APPLETON

  549138636  

4301 W WISCONSIN AVE


INVENTORY LOCATIONS

 

LOCATION

  

STATE

 

CITY

 

ZIP

 

ADDRESS

2188

  

ME

 

WATERVILLE

  049014980  

60 ELM PLAZA

2190

  

PA

 

BURNHAM

  170091812  

224 N LOGAN BLVD

2196

  

MI

 

OWOSSO

  488672901  

201 S WASHINGTON ST

2197

  

KS

 

GARDEN CITY

  678466959  

2302 E KANSAS AVE

2198

  

MO

 

KIRKSVILLE

  635014629  

2206 S BALTIMORE ST

2203

  

GA

 

VALDOSTA

  316013698  

1700 NORMAN DR

2204

  

KY

 

ELIZABETHTOWN

  427019449  

1704 N DIXIE HWY

2207

  

NM

 

CLOVIS

  881014483  

2813 N PRINCE ST

2209

  

CA

 

BAKERSFIELD

  933044400  

2501 MING AVE

2210

  

KS

 

EMPORIA

  668016222  

1678 INDUSTRIAL RD

2211

  

OK

 

BARTLESVILLE

  740067210  

2350 SE WASHINGTON BLVD

2213

  

AR

 

SEARCY

  721436099  

301 N POPLAR

2218

  

AL

 

HOOVER

  352442310  

2300 RIVERCHASE GALLERIA

2220

  

TN

 

DYERSBURG

  380241640  

2700 LAKE RD

2224

  

TX

 

HUNTSVILLE

  773403514  

2 FINANCIAL PLAZA

2225

  

OH

 

DEFIANCE

  435128887  

1500 N CLINTON ST

2229

  

NM

 

SANTA FE

  875074697  

4250 CERRILLOS RD

2231

  

NC

 

JACKSONVILLE

  285467316  

311 JACKSONVILLE MALL

2232

  

CT

 

TRUMBULL

  066114203  

5065 MAIN ST

2237

  

OK

 

TULSA

  741332108  

6931 S MEMORIAL DR

2238

  

KS

 

LIBERAL

  679015298  

1513 N KANSAS AVE

2239

  

KS

 

SALINA

  674017313  

2259 S 9TH ST

2240

  

AR

 

CONWAY

  720323542  

201 SKYLINE DR STE 7

2241

  

MT

 

KALISPELL

  599014023  

20 N MAIN ST

2243

  

ID

 

PONDERAY

  838529799  

300 BONNER MALL WAY STE 60

2244

  

MA

 

NORTH ATTLEBORO

  027603651  

1019 S WASHINGTON ST

2246

  

NY

 

POUGHKEEPSIE

  126015978  

2001 SOUTH RD (RT 9)

2247

  

NH

 

NASHUA

  030605745  

310 DANIEL WEBSTER HWY STE 103

2250

  

NH

 

NEWINGTON

  038012811  

50 FOX RUN RD STE 35

2256

  

CT

 

DANBURY

  068107428  

7 BACKUS AVE

2257

  

SC

 

FLORENCE

  295014093  

2701 DAVID H MCLEOD BLVD

2258

  

GA

 

AUGUSTA

  309092511  

3450 WRIGHTSBORO RD

2259

  

NC

 

ROCKY MOUNT

  278045717  

1100 WESLEYAN BLVD

2263

  

PA

 

PITTSBURGH

  152373803  

1006 ROSS PARK MALL DR

2265

  

AR

 

PINE BLUFF

  716017616  

2901 PINES MALL DR STE A

2266

  

CO

 

GREELEY

  806310001  

2080 GREELEY MALL

2270

  

OH

 

HEATH

  430561281  

771 S 30TH ST

2274

  

TN

 

CLARKSVILLE

  370405011  

2801 GUTHRIE HWY STE 500

2275

  

ID

 

TWIN FALLS

  833018326  

1615 POLE LINE RD E

2276

  

CA

 

WOODLAND

  957766398  

1260 GIBSON RD

2279

  

OK

 

SHAWNEE

  748041396  

4901 N KICKAPOO AVE STE 4000

2281

  

MS

 

MCCOMB

  396482048  

1724 VETERANS BLVD

2282

  

OH

 

LANCASTER

  431301468  

1600 RIVER VALLEY CIR N

2284

  

MO

 

COLUMBIA

  652031092  

2301 W WORLEY

2286

  

NY

 

WATERTOWN

  136012274  

21017 SALMON RUN MALL LOOP E

2287

  

NJ

 

MAYS LANDING

  083303106  

4405 BLACK HORSE PIKE

2288

  

OK

 

MUSKOGEE

  744016306  

501 N MAIN ST STE 118

2290

  

VA

 

COLONIAL HEIGHTS

  238342962  

6 SOUTHPARK MALL


INVENTORY LOCATIONS

 

LOCATION

  

STATE

 

CITY

 

ZIP

 

ADDRESS

2294

  

NC

 

CONCORD

  280252816  

1480 CONCORD PKWY N

2297

  

NJ

 

JERSEY CITY

  073101601  

10 MALL DR W

2298

  

WA

 

KELSO

  986263100  

311 THREE RIVERS DR

2303

  

NC

 

HICKORY

  286025158  

1970 US HWY 70 SE

2304

  

KS

 

TOPEKA

  666043881  

1821 SW WANAMAKER RD

2309

  

FL

 

JENSEN BEACH

  349574492  

3382 NW FEDERAL HWY

2311

  

TN

 

TULLAHOMA

  373882307  

1600 N JACKSON ST

2312

  

ID

 

BOISE

  837049121  

300 N MILWAUKEE ST

2313

  

NY

 

PLATTSBURGH

  129012100  

60 SMITHFIELD BLVD

2316

  

GA

 

ALBANY

  317076801  

2601 DAWSON RD

2320

  

CO

 

LITTLETON

  801237201  

8501 W BOWLES AVE

2324

  

IN

 

MADISON

  472501670  

435 E CLIFTY DR

2326

  

CA

 

GRASS VALLEY

  959499695  

732 FREEMAN LANE

2327

  

WA

 

BELLINGHAM

  982265571  

10 BELLIS FAIR PKWY

2338

  

TX

 

MESQUITE

  751504132  

6000 TOWN EAST MALL

2341

  

OR

 

BEND

  977016763  

63455 N HWY 97 STE 93

2342

  

VT

 

BERLIN

  056028277  

282 BERLIN MALL RD UNIT 19

2343

  

OH

 

PIQUA

  453564132  

987 E ASH ST

2345

  

NC

 

MOUNT AIRY

  270305600  

HWY 52 N & FREDERICK ST

2346

  

NC

 

ASHEVILLE

  288052218  

3 S TUNNEL RD

2347

  

FL

 

PORT CHARLOTTE

  339481073  

1441 TAMIAMI TRAIL

2349

  

MI

 

TRAVERSE CITY

  496848118  

3300 S AIRPORT RD W

2353

  

WA

 

SILVERDALE

  983838129  

10315 SILVERDALE WAY NW

2354

  

WA

 

SUNNYSIDE

  989441258  

2010 YAKIMA VALLEY HWY J-1

2356

  

MO

 

WEST PLAINS

  657752957  

1414 SOUTHERN HILLS CTR

2357

  

IN

 

PLYMOUTH

  465633438  

1350 PILGRIM LN

2358

  

IL

 

FREEPORT

  610326760  

1810 S WEST AVE

2364

  

NY

 

CHEEKTOWAGA

  142255424  

3 WALDEN GALLERIA DR

2367

  

OH

 

YOUNGSTOWN

  445152225  

6000 MAHONING AVE

2368

  

ID

 

COEUR D ALENE

  838156703  

200 W HANLEY AVE

2369

  

OK

 

NORMAN

  730724811  

3501 W MAIN ST

2370

  

VA

 

CHESAPEAKE

  233212100  

4200 PORTSMOUTH BLVD

2372

  

SC

 

BEAUFORT

  299064233  

328 ROBERT SMALLS PKWY

2374

  

UT

 

SAINT GEORGE

  847908100  

1750 E RED CLIFFS DR

2381

  

MI

 

GREENVILLE

  488381593  

300 GREENVILLE W DR STE 1

2382

  

MI

 

CADILLAC

  496011131  

1550 N MITCHELL ST

2385

  

CA

 

YUBA CITY

  959913600  

1199 COLUSA AVE

2386

  

WV

 

MORGANTOWN

  265018524  

9560 MALL RD

2388

  

CA

 

PALMDALE

  935513945  

1131 W RANCHO VISTA BLVD

2391

  

WA

 

BURLINGTON

  982333254  

300 CASCADE MALL DR

2392

  

IL

 

BOURBONNAIS

  609149307  

1600 N STATE RT 50

2396

  

NY

 

CANANDAIGUA

  144242352  

3225 STATE RT 364 STE 165

2398

  

AL

 

DOTHAN

  363032281  

900 COMMONS DR STE 900

2399

  

PR

 

MAYAGUEZ

  006801261  

975 AVE HOSTOS STE 320

2400

  

MS

 

TUPELO

  388040997  

1001 BARNES CROSSING RD STE300

2410

  

TX

 

LEWISVILLE

  750678797  

2401 S STEMMONS FWY STE 4000

2414

  

CA

 

EL CAJON

  920202413  

355 FLETCHER PKWY

2416

  

NH

 

CONCORD

  033015000  

270 LOUDON RD


INVENTORY LOCATIONS

 

LOCATION

  

STATE

 

CITY

 

ZIP

 

ADDRESS

2417

  

NC

 

CARY

  275114734  

1105 WALNUT ST

2418

  

FL

 

LAKELAND

  338093800  

3800 US HWY 98 N STE 200

2419

  

AZ

 

MESA

  852063711  

6525 E SOUTHERN AVE

2423

  

OR

 

ROSEBURG

  974716515  

780 NW GARDEN VLY BLVD STE 160

2427

  

KY

 

HAZARD

  417012603  

278 BLACK GOLD BLVD

2428

  

MI

 

FORT GRATIOT

  480593809  

4400 24TH AVE

2430

  

FL

 

JACKSONVILLE

  322560750  

10308 SOUTHSIDE BLVD

2431

  

AZ

 

COTTONWOOD

  863264643  

1100-B HWY 260

2433

  

NC

 

PINEVILLE

  281348370  

11017 CAROLINA PLACE PKWY

2434

  

NM

 

ALBUQUERQUE

  871103439  

6600 MENAUL BLVD NE STE 600

2436

  

AR

 

BATESVILLE

  725013599  

475 S ST LOUIS ST

2439

  

PA

 

UNIONTOWN

  154012676  

1000 MALL RUN RD

2442

  

AZ

 

SHOW LOW

  859017701  

4481 S WHITE MOUNTAIN RD STE 5

2443

  

MD

 

WALDORF

  206031160  

11130 MALL CIR

2447

  

MS

 

STARKVILLE

  397593570  

864 HWY 12 W

2449

  

KY

 

CAMPBELLSVILLE

  427188831  

399 CAMPBELLSVILLE BYPASS

2452

  

GA

 

ROME

  301657736  

300 MOUNT BERRY SQ NE

2453

  

NY

 

BLASDELL

  142192659  

6 MCKINLEY MALL

2456

  

FL

 

PEMBROKE PINES

  330264117  

11401 PINES BLVD

2457

  

NY

 

SYRACUSE

  132909501  

9559 DESTINY USA DR

2458

  

AL

 

SCOTTSBORO

  357682698  

1601 S BROAD

2460

  

NY

 

MASSENA

  136623214  

6100 SAINT LAWRENCE CTR

2463

  

NY

 

STATEN ISLAND

  103145902  

140 MARSH AVE

2467

  

CA

 

SACRAMENTO

  958154030  

1695 ARDEN WAY

2470

  

KY

 

MAYSVILLE

  410569193  

US 68 S AND AA HWY

2477

  

NJ

 

FREEHOLD

  077281600  

3710 HWY 9

2478

  

FL

 

MIAMI

  331722707  

1603 NW 107TH AVE

2480

  

CA

 

MORENO VALLEY

  925537506  

22450 TOWN CIR

2482

  

LA

 

LAFAYETTE

  705035307  

5725 JOHNSTON ST

2484

  

WA

 

SPOKANE

  992071426  

4730 N DIVISION ST

2485

  

PA

 

JOHNSTOWN

  159048909  

560 GALLERIA DR

2486

  

PA

 

ALTOONA

  166022852  

5580 GOODS LN STE 2031

2488

  

NY

 

MIDDLETOWN

  109413032  

ONE N GALLERIA DR

2490

  

NY

 

GREECE

  146262818  

231 GREECE RIDGE CTR DR

2494

  

TN

 

CLEVELAND

  373122982  

200 PAUL HUFF PKWY NW STE 44

2495

  

MN

 

MANKATO

  560014840  

1850 ADAMS ST STE 2

2496

  

CA

 

NEWARK

  945605214  

500 NEWPARK MALL

2498

  

OH

 

DAYTON

  454313778  

2727 FAIRFIELD COMMONS BLVD

2503

  

IL

 

CARBONDALE

  629013191  

1201 E MAIN

2505

  

IL

 

SPRINGFIELD

  627032122  

1201 S DIRKSEN PKWY

2507

  

LA

 

LAKE CHARLES

  706018453  

312 W PRIEN LAKE RD

2521

  

MO

 

KANSAS CITY

  641548500  

9100 N SKYVIEW AVE

2522

  

OK

 

OWASSO

  740555315  

9056 N 121ST EAST AVE

2523

  

TX

 

NEW BRAUNFELS

  781306389  

215 CREEKSIDE WAY

2524

  

MA

 

WAREHAM

  025715032  

2421 CRANBERRY HWY STE 290

2527

  

KY

 

ASHLAND

  411017362  

500 WINCHESTER AVE

2529

  

TN

 

FARRAGUT

  379341975  

11534 PARKSIDE DR

2530

  

OH

 

AVON

  440111211  

1301 CENTER RD


INVENTORY LOCATIONS

 

LOCATION

  

STATE

 

CITY

 

ZIP

 

ADDRESS

2534

  

LA

 

HAMMOND

  704036044  

501 C M FAGAN DR

2613

  

CA

 

CHICO

  959286398  

1932 E 20TH ST

2614

  

OH

 

BELLEFONTAINE

  433111510  

1710 S MAIN ST

2616

  

GA

 

CENTERVILLE

  310281780  

2940 WATSON BLVD

2617

  

TN

 

KNOXVILLE

  379195671  

7600 KINGSTON PIKE

2619

  

VA

 

GLEN ALLEN

  230596523  

10101 BROOK RD STE 800

2620

  

MO

 

POPLAR BLUFF

  639015523  

515 S WESTWOOD

2622

  

FL

 

CAPE CORAL

  339906624  

2301 DEL PRADO BLVD STE 700

2624

  

KY

 

LEXINGTON

  405033605  

3401 NICHOLASVILLE RD STE 116

2626

  

NV

 

HENDERSON

  890146606  

1312 W SUNSET RD

2629

  

MO

 

ROLLA

  654014416  

1050 S BISHOP AVE

2631

  

CA

 

YUCCA VALLEY

  922842555  

58000 TWENTY NINE PALMS HWY

2632

  

MO

 

SAINT PETERS

  633764301  

4 MID RIVERS MALL

2647

  

MA

 

PEABODY

  019601647  

210 ANDOVER ST

2648

  

CA

 

BREA

  928215737  

400 BREA MALL

2649

  

CA

 

WESTMINSTER

  926834979  

400 WESTMINSTER MALL

2650

  

UT

 

LAYTON

  840415160  

1201 N HILL FIELD RD STE 1050

2651

  

NE

 

LINCOLN

  685052433  

68 GATEWAY MALL

2653

  

WI

 

EAU CLAIRE

  547018022  

4770 GOLF RD

2654

  

MA

 

LEOMINSTER

  014533335  

100 COMMERCIAL RD UNIT 180

2655

  

AZ

 

DOUGLAS

  856072851  

90 W 5TH ST

2660

  

FL

 

MIAMI

  331891219  

20505 S DIXIE HWY

2661

  

IL

 

VERNON HILLS

  600611520  

RT 60 & HWY 21

2662

  

NY

 

QUEENSBURY

  128041895  

578 AVIATION RD STE 3

2663

  

CA

 

VENTURA

  930033437  

377 S MILLS RD

2671

  

OR

 

MCMINNVILLE

  971282700  

2180 NE HWY 99 W

2672

  

NC

 

HENDERSON

  275362935  

380 N COOPER DR

2676

  

MO

 

SIKESTON

  638019350  

1215 S MAIN ST

2677

  

CA

 

NORTHRIDGE

  913242503  

9301 TAMPA AVE

2678

  

OH

 

MANSFIELD

  449061246  

658 RICHLAND MALL

2679

  

CT

 

WATERBURY

  067061246  

525 UNION ST

2682

  

OK

 

OKLAHOMA CITY

  731181608  

1901 NW EXPWY STE 1200

2683

  

OH

 

STRONGSVILLE

  441364420  

17177 ROYALTON RD

2685

  

TX

 

ARLINGTON

  760154120  

3851 S COOPER ST

2687

  

WA

 

SEQUIM

  983829998  

651 W WASHINGTON

2689

  

OH

 

CENTERVILLE

  454593735  

2700 MIAMISBURG-CENTERVILLE RD

2690

  

MS

 

HATTIESBURG

  394021144  

1000 TURTLE CREEK DR

2693

  

AZ

 

KINGMAN

  864014165  

3127 STOCKTON HILL RD

2695

  

OH

 

E LIVERPOOL

  439209024  

16280 DRESDEN AVE SPACE M

2696

  

TX

 

CEDAR PARK

  786131501  

11200 LAKELINE MALL DR

2697

  

TX

 

SUGAR LAND

  774792317  

16529 SOUTHWEST FRWY

2698

  

CA

 

TRACY

  953047319  

3100 NAGLEE RD

2700

  

OH

 

DUBLIN

  430161508  

5083 TUTTLE CROSSING BLVD

2702

  

LA

 

GRETNA

  700532572  

197 WESTBANK EXPY STE 2

2703

  

TN

 

MEMPHIS

  381338147  

2756 N GERMANTOWN PKWY

2704

  

NM

 

ALBUQUERQUE

  871144050  

10000 COORS BYPASS NW

2705

  

FL

 

LAKE WALES

  338594739  

501 EAGLE RIDGE DR

2708

  

MA

 

MARLBOROUGH

  017524725  

573 DONALD LYNCH BLVD


INVENTORY LOCATIONS

 

LOCATION

  

STATE

 

CITY

 

ZIP

 

ADDRESS

2709

  

AR

 

FAYETTEVILLE

  727033877  

4201 N SHILOH DR

2712

  

PA

 

CAMP HILL

  170117002  

3501 CAPITAL CITY MALL

2715

  

KY

 

CORBIN

  407016191  

14659 N US HWY 25 E

2716

  

GA

 

WAYCROSS

  315010902  

2215 MEMORIAL DR

2718

  

NY

 

BRONX

  104754572  

100 BAYCHESTER AVE

2719

  

WA

 

OMAK

  988419693  

715 OMACHE DR

2720

  

PA

 

MONACA

  150612315  

200 BEAVER VALLEY MALL

2721

  

MO

 

SEDALIA

  653012116  

3159 W BROADWAY

2722

  

FL

 

OCOEE

  347616903  

9409 W COLONIAL DR

2725

  

CA

 

SELMA

  936629037  

3350 E FLORAL AVE

2730

  

FL

 

VERO BEACH

  329661088  

6200 20TH ST STE 700

2732

  

MD

 

COLUMBIA

  210443398  

10300 LITTLE PATUXENT PKWY

2736

  

MD

 

HYATTSVILLE

  207825001  

3500 EAST WEST HWY STE 1000

2738

  

MD

 

WHEATON

  209022540  

11160 VEIRS MILL RD

2739

  

TX

 

HUMBLE

  773382327  

20131 HWY 59N STE 3000

2740

  

WA

 

MARYSVILLE

  982705500  

151 MARYSVILLE TOWNE CTR

2741

  

NY

 

LAKEWOOD

  147502007  

318 E FAIRMOUNT AVE

2742

  

CA

 

TURLOCK

  953809530  

1840 COUNTRYSIDE DR

2744

  

WA

 

SPOKANE

  992161823  

14730 E INDIANA AVE

2749

  

VA

 

STERLING

  201662416  

21030 DULLES TOWN CIR

2751

  

PR

 

SAN JUAN

  009188001  

PLAZA LAS AMERICAS SC

2753

  

LA

 

BATON ROUGE

  708366200  

6201 BLUEBONNET BLVD

2755

  

CA

 

PASO ROBLES

  934464842  

120 NIBLICK RD

2756

  

NY

 

LAKE GROVE

  117551219  

9 SMITH HAVEN MALL

2757

  

CO

 

LONE TREE

  801245128  

8417 S PARK MEADOWS CTR DR

2758

  

IA

 

CORALVILLE

  522412801  

1471 CORAL RIDGE AVE

2760

  

MD

 

CALIFORNIA

  206194022  

23415 THREE NOTCH RD STE 2016

2761

  

VA

 

RICHMOND

  232354761  

11500 MIDLOTHIAN TPKE

2762

  

FL

 

TAMPA

  336253181  

8102 CITRUS PARK TOWN CTR

2763

  

TX

 

THE WOODLANDS

  773805001  

1201 LAKE WOODLANDS DR STE 500

2770

  

UT

 

PROVO

  846012996  

1200 TOWNE CENTRE BLVD STE B

2773

  

GA

 

KENNESAW

  301444917  

400 ERNEST W BARRETT PKWY NW

2775

  

NJ

 

DEPTFORD

  080965229  

1750 DEPTFORD CENTER RD STE D

2776

  

GA

 

BUFORD

  305194913  

3333 BUFORD DR

2777

  

NH

 

KEENE

  034312403  

381 WEST ST

2780

  

PR

 

CAGUAS

  007254302  

200 AVE RAFAEL CORDERO STE 111

2782

  

NE

 

KEARNEY

  688472424  

5055 2ND AVE STE 28

2783

  

CA

 

TEMECULA

  925915504  

40640 WINCHESTER RD

2785

  

MI

 

GRANDVILLE

  494183067  

3774 RIVERTOWN PRKWY SW

2788

  

KY

 

MT STERLING

  403531015  

259 INDIAN MOUND DR

2789

  

FL

 

WELLINGTON

  334143106  

10308 W FOREST HILL BLVD

2795

  

TX

 

FRISCO

  750349434  

2607 PRESTON RD

2796

  

CA

 

ROSEVILLE

  956781917  

1125 GALLERIA BLVD

2797

  

OH

 

STEUBENVILLE

  439523083  

100 MALL DR UNIT B

2802

  

PA

 

PITTSBURGH

  152054810  

2000 ROBINSON TOWN CTR

2804

  

GA

 

LITHONIA

  300382542  

8040 MALL PKWY

2805

  

NC

 

DURHAM

  277138722  

6910 FAYETTEVILLE RD STE 600

2806

  

TX

 

BROWNSVILLE

  785264500  

2370 N EXPWY STE 2000


INVENTORY LOCATIONS

 

LOCATION

  

STATE

 

CITY

 

ZIP

 

ADDRESS

2807

  

MI

 

MUSKEGON

  494448766  

5690 HARVEY ST

2809

  

VA

 

NEWPORT NEWS

  236026931  

12300 JEFFERSON AVE STE 500

2810

  

MT

 

BILLINGS

  591025688  

140 S 24TH ST W

2814

  

NY

 

ELMHURST

  113735018  

92-59 59TH AVE

2815

  

AZ

 

PRESCOTT

  863030000  

3200 GATEWAY BLVD

2816

  

CA

 

EL CENTRO

  922439672  

3351 S DOGWOOD

2820

  

GA

 

DOUGLASVILLE

  301351532  

6650 DOUGLAS BLVD

2821

  

IA

 

SIOUX CITY

  511064709  

4340 SERGEANT RD

2822

  

FL

 

POMPANO BEACH

  330622459  

1600 NE 23RD ST

2823

  

CA

 

RANCHO CUCAMONGA

  917398810  

12399 S MAINSTREET

2824

  

MS

 

SOUTHAVEN

  386718102  

6620 TOWNE CENTER LOOP STE E

2825

  

MN

 

COON RAPIDS

  554486710  

12550 RIVERDALE BLVD

2826

  

TX

 

CEDAR HILL

  751042134  

333 N HWY 67

2827

  

IN

 

PLAINFIELD

  461682710  

2611 E MAIN ST

2828

  

IL

 

CHAMPAIGN

  618209345  

2000 N NEIL ST

2829

  

MN

 

MAPLE GROVE

  553114412  

13701 GROVE DR

2830

  

IL

 

ROCKFORD

  611121017  

7200 E HARRISON AVE

2832

  

VA

 

CHESAPEAKE

  233202875  

1401 GREENBRIER PKWY STE 3000

2833

  

TX

 

SAN ANTONIO

  782475317  

6909 N LOOP 1604 E

2834

  

LA

 

COVINGTON

  704337220  

69340 HWY 21

2835

  

AR

 

JONESBORO

  724016321  

3000 E HIGHLAND DR STE 516

2837

  

AZ

 

YUMA

  853651708  

1375 S YUMA PALMS PKWY

2838

  

TX

 

BURLESON

  760282659  

877 NE ALSBURY BLVD

2839

  

MI

 

ROSEVILLE

  480664555  

31510 GRATIOT AVE

2840

  

AL

 

MONTGOMERY

  361172154  

1236 EASTDALE MALL

2841

  

TX

 

DEL RIO

  788403120  

2209 VETERANS BLVD

2842

  

AZ

 

GOODYEAR

  853952631  

13333 W MCDOWELL RD

2843

  

FL

 

FORT MYERS

  339138963  

10083 GULF CENTER DR

2844

  

TX

 

FRIENDSWOOD

  775462707  

100 BAYBROOK MALL

2845

  

OH

 

AKRON

  443339288  

3742 BROOKWALL DR STE 10

2846

  

AZ

 

PHOENIX

  850446406  

5050 E RAY RD

2847

  

PA

 

TARENTUM

  150843835  

167 PITTSBURGH MILL CIR

2848

  

NV

 

LAS VEGAS

  891471429  

4485 S GRAND CANYON DR

2849

  

CA

 

REDLANDS

  923742062  

10000 ALABAMA ST

2850

  

FL

 

WESLEY CHAPEL

  335438805  

28151 STATE RD 56

2862

  

OH

 

HAMILTON

  450117956  

3459 PRINCETON RD

2863

  

TX

 

KATY

  774494562  

23523 GRAND CIRCLE BLVD

2864

  

MN

 

MAPLEWOOD

  551091215  

3001 WHITE BEAR AVE

2865

  

MN

 

WOODBURY

  551253384  

8348 TAMARACK VILLAGE

2866

  

WI

 

ASHWAUBENON

  543045248  

800 WILLARD DR

2868

  

TN

 

MT JULIET

  371228469  

401 S MOUNT JULIET RD STE 630

2869

  

AL

 

TRUSSVILLE

  35173  

5060 PINNACLE SQ

2870

  

MO

 

INDEPENDENCE

  640553869  

17610 E 39TH ST S

2871

  

GA

 

FAYETTEVILLE

  302147814  

240 BANKS CROSSING

2872

  

GA

 

MCDONOUGH

  302537303  

1380 HWY 20 W

2873

  

SC

 

COLUMBIA

  292297939  

304 FORUM DR

2874

  

GA

 

NEWNAN

  302651067  

341 NEWNAN CROSSING BYP

2875

  

AL

 

SPANISH FORT

  365279414  

22500 TOWN CENTER AVE


INVENTORY LOCATIONS

 

LOCATION

  

STATE

 

CITY

 

ZIP

 

ADDRESS

2876

  

CO

 

WESTMINSTER

  800239173  

14658 DELAWARE ST

2877

  

TX

 

SAN ANTONIO

  782570000  

17710 LA CANTERA PKWY

2878

  

PA

 

HARRISBURG

  171112447  

4680 HIGH POINTE BLVD

2879

  

AR

 

ROGERS

  727588809  

2202 BELLVIEW RD

2880

  

NH

 

NORTH CONWAY

  038603369  

STATE HWY 16 & RT 302

2881

  

TX

 

HOUSTON

  770242599  

300 MEMORIAL CITY WAY

2883

  

TX

 

PEARLAND

  775845235  

2500 SMITH RANCH RD

2884

  

TX

 

AUSTIN

  787530000  

12351 N IH-35

2885

  

TX

 

PASADENA

  775053728  

5120 FAIRMONT PKWY

2889

  

AZ

 

PHOENIX

  850152510  

1727 W BETHANY HOME RD

2901

  

IN

 

INDIANAPOLIS

  462681123  

8752 MICHIGAN RD

2902

  

AZ

 

TEMPE

  852812237  

1900 E RIO SALADO PKWY STE 140

2903

  

NC

 

BURLINGTON

  272158237  

3141 WATERMILL DR

2904

  

TX

 

AUSTIN

  787481752  

9500 S IH-35 STE H

2905

  

TX

 

FORT WORTH

  761778590  

3001 TEXAS SAGE TRL

2906

  

TN

 

MURFREESBORO

  371293351  

1720 OLD FORT PKWY

2907

  

CO

 

AURORA

  800165326  

6302 S CENTRAL ST

2908

  

SC

 

COLUMBIA

  292122234  

100 COLUMBIANA CIR #102

2909

  

MO

 

DARDENNE PRAIRIE

  633687382  

7939 HWY N

2910

  

NE

 

PAPILLION

  680462135  

7751 TOWNE CENTER PKWY

2911

  

UT

 

SOUTH JORDAN

  840955606  

11552 S DISTRICT DR

2912

  

KS

 

KANSAS CITY

  661118100  

10904 STADIUM PKWY

2913

  

AZ

 

TUCSON

  857063962  

5265 S CALLE SANTA CRUZ

2914

  

AR

 

LITTLE ROCK

  722056916  

2600 S SHACKLEFORD RD

2915

  

CO

 

FORT COLLINS

  805255901  

135 BOCKMAN DR

2916

  

NY

 

OLEAN

  147602631  

400 N UNION ST

2918

  

AL

 

ALABASTER

  350074688  

340 S COLONIAL DR

2919

  

CA

 

SANTA ANA

  927056605  

2890 N MAIN ST

2920

  

MI

 

BRIGHTON

  481162084  

9480 VILLAGE PLACE BLVD

2921

  

TX

 

FLOWER MOUND

  750285619  

5751 LONG PRAIRIE RD

2922

  

IN

 

NOBLESVILLE

  460605598  

13900 HOARD DR

2925

  

MN

 

EDEN PRAIRIE

  553445315  

8201 FLYING CLOUD DR

2926

  

LA

 

SHREVEPORT

  711055535  

7451 YOUREE DR

2927

  

IN

 

VALPARAISO

  463830000  

410 PORTERS VALE BLVD

2928

  

IL

 

MONTGOMERY

  605385401  

1100 OGDEN AVE

2930

  

IL

 

NORTH AURORA

  605426501  

1600 ORCHARD GATEWAY BLVD

2931

  

OH

 

MAUMEE

  435377527  

3100 MAIN ST STE 1000

2932

  

CO

 

MONTROSE

  814014834  

3400 RIO GRANDE AVE

2933

  

ID

 

NAMPA

  836878598  

1200 N HAPPY VALLEY RD

2934

  

TX

 

ROUND ROCK

  786652431  

151 UNIVERSITY OAKS

2935

  

VA

 

HAMPTON

  236663219  

2071 COLISEUM DR

2936

  

AZ

 

CASA GRANDE

  851945402  

1041 N PROMENADE PKWY

2937

  

CA

 

CHINO

  917105746  

14659 RAMONA AVE

2939

  

TX

 

SAN ANTONIO

  782165353  

7400 SAN PEDRO AVE

2940

  

AZ

 

LAKE HAVASU CITY

  864049646  

5651 HWY 95 N

2941

  

OK

 

MOORE

  731605504  

2400 S SERVICE RD

2942

  

OK

 

MIDWEST CITY

  731106092  

7271 SE 29TH ST

2943

  

OH

 

COLERAIN TOWNSHIP

  452511459  

3675 STONE CREEK BLVD


INVENTORY LOCATIONS

 

LOCATION

  

STATE

 

CITY

 

ZIP

 

ADDRESS

2944

  

TX

 

CYPRESS

  774291028  

25646 HWY 290

2945

  

FL

 

KISSIMMEE

  347410731  

2001 W OSCEOLA PKWY

2946

  

TX

 

ROCKWALL

  750874826  

1015 E I 30

2948

  

NY

 

SARATOGA SPRINGS

  128662960  

3065 RT 50

2949

  

TX

 

WAXAHACHIE

  751655120  

1441 N HWY 77

2950

  

IL

 

ALGONQUIN

  601025932  

800 S RANDALL RD

2951

  

IL

 

JOHNSBURG

  600515409  

2940 COMMERCE DR

2952

  

IL

 

MATTESON

  604433044  

4451 PROMENADE WAY

2953

  

MO

 

KANSAS CITY

  641581115  

8100 N FLINTLOCK RD

2954

  

WI

 

MENOMONEE FALLS

  530517103  

N96W18515 COUNTY LINE RD

2955

  

CA

 

ANTIOCH

  945318695  

4951 SLATTEN RANCH RD

2956

  

AL

 

PRATTVILLE

  360666542  

550 PINNACLE PL

2957

  

UT

 

RIVERDALE

  844053509  

4185 RIVERDALE RD

2959

  

TX

 

EDINBURG

  785399150  

419 E TRENTON RD

2960

  

TX

 

EL PASO

  799382629  

1950 JOE BATTLE BLVD

2961

  

LA

 

LAFAYETTE

  705011404  

3125 LOUISIANA AVE

2962

  

TX

 

WEATHERFORD

  760866277  

725 ADAMS DR

2963

  

VT

 

SAINT JOHNSBURY

  058198516  

1996 MEMORIAL DR STE 1

2965

  

CO

 

COLORADO SPRINGS

  809222817  

3650 NEW CENTER PT

2966

  

CO

 

DENVER

  802383143  

8568 E 49TH AVE

2967

  

MI

 

CHESTERFIELD TOWNSHP

  480514008  

50753 WATERSIDE DR

2968

  

TX

 

ROSENBERG

  774716092  

24201 BRAZOS TOWN CROSSING

2969

  

TX

 

SHERMAN

  750926733  

610 GRAHAM DR

2970

  

FL

 

SPRING HILL

  346073935  

5181 PEPPER ST

2971

  

MI

 

WHITE LAKE

  483862181  

300 TOWN CENTER BLVD

2972

  

MI

 

CANTON

  481873101  

43690 FORD RD

2973

  

IL

 

MOKENA

  604482070  

11325 W LINCOLN HWY

2975

  

IA

 

COUNCIL BLUFFS

  515018287  

3333 MARKET PLACE DR

2976

  

WV

 

TRIADELPHIA

  260591045  

515 CABELA DR

2977

  

MO

 

WASHINGTON

  630904950  

5886 HIGHWAY 100

2978

  

OH

 

CINCINNATI

  452498302  

9365 FIELDS ERTEL RD

2979

  

FL

 

CLERMONT

  347116877  

2345 S HWY 27

2980

  

TX

 

CONROE

  773045040  

3165 INTERSTATE 45 N

2982

  

TX

 

FAIRVIEW

  750691640  

301 STACY RD

2983

  

TX

 

SAN MARCOS

  786666190  

800 BARNES ST

2984

  

KY

 

RICHMOND

  404756010  

2037 LANTERN RIDGE DR

2985

  

FL

 

DAVENPORT

  338372305  

6200 GRANDVIEW PKWY

2986

  

MS

 

FLOWOOD

  392323339  

200 MARKET ST

2988

  

TN

 

MEMPHIS

  381255755  

7700 POLO GROUNDS BLVD

2989

  

SC

 

MYRTLE BEACH

  295779782  

1800 COASTAL GRAND CIR

2990

  

KS

 

OVERLAND PARK

  662234803  

6901 W 135TH ST

2991

  

TX

 

SAN ANTONIO

  782537300  

5335 W LOOP 1604 N

2992

  

MI

 

BURTON

  485091761  

4190 E COURT ST STE 500

2993

  

MO

 

FENTON

  630267726  

798 GRAVOIS BLUFFS BLVD

2994

  

AL

 

FULTONDALE

  350681694  

3363 LOWERY PKWY

2995

  

TX

 

HOUSTON

  770492500  

5858 E SAM HOUSTON PKWY N

2997

  

FL

 

PANAMA CITY BEACH

  324132145  

206 BLUEFISH DR

2998

  

WA

 

VANCOUVER

  986839316  

19005 SE MILL PLAIN BLVD


INVENTORY LOCATIONS

 

LOCATION

  

STATE

 

CITY

 

ZIP

 

ADDRESS

2999

  

CA

 

MANTECA

  953379620  

1060 PERIMETER DR

4944

  

NY

 

NEW YORK

  10018  

8 W 40TH ST FL 5

9442

  

TX

 

CEDAR HILL

  75104  

1650 S HWY 67

9450

  

FL

 

LAKELAND

  33805  

6800 STATE RD 33 N

9454

  

UT

 

SPANISH FORK

  84660  

4000 E HWY 6

9010

  

CA

 

BUENA PARK

  90620  

6800 VALLEY VIEW AVE

9224

  

CA

 

LATHROP

  95330  

700 DARCY PKWY

9317

  

CT

 

MANCHESTER

  06041  

1339 TOLLAND TPK

2633

  

GA

 

COLUMBUS

  319096402  

3507 MANCHESTER EXPWY STE E

9486

  

GA

 

FOREST PARK

  30297  

120 PENNEY RD

9132

  

KS

 

LENEXA

  66250  

10500 LACKMAN RD

9005

  

NC

 

STATESVILLE

  28677  

1634 SALISBURY RD

2812

  

NE

 

COLUMBUS

  686012639  

202 E 24TH ST

2767

  

NH

 

MANCHESTER

  031033205  

1500 S WILLOW ST

9316

  

NV

 

RENO

  89506  

11111 STEAD BLVD

9130

  

OH

 

COLUMBUS

  43232  

5555 SCARBOROUGH BLVD

9435

  

TX

 

HASLET

  76052  

1701 INTERMODAL PKWY

9131

  

WI

 

WAUWATOSA

  53222  

11800 W BURLEIGH ST


EXHIBIT A

TO PLEDGE AND SECURITY AGREEMENT

PLEDGE SUPPLEMENT

This PLEDGE SUPPLEMENT , dated [                ], 20[    ], is delivered by [ NAME OF GRANTOR ] a [state of organization] [type of entity] (the “ Grantor ”) pursuant to the Pledge and Security Agreement, dated as of March 12, 2018 (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.

The 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 the Grantor’s right, title and interest in, to and under all Collateral to secure the Junior Priority Secured Obligations, in each case whether now or hereafter existing or in which the Grantor now has or hereafter acquires an interest and wherever the same may be located. The 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 , the 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 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)

 

(F) Trademark Licenses

 

EXHIBIT A-3


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 PLEDGE AND SECURITY AGREEMENT

Financing Statements:

 

Grantor

 

Filing Jurisdiction(s)

 

EXHIBIT A-5


SUPPLEMENT TO SCHEDULE 5.5

TO PLEDGE AND SECURITY AGREEMENT

Additional Information:

 

Name of Grantor

 

Location of Equipment and Inventory

 

EXHIBIT A-6


EXHIBIT B

TO PLEDGE AND SECURITY AGREEMENT

FORM OF TRADEMARK SECURITY AGREEMENT

This 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 Junior Lien Secured Parties (in such capacity, together with its successors and permitted assigns, the “ Collateral Agent ”).

WHEREAS , the Grantors are party to a Pledge and Security Agreement, dated as of March 12, 2018 (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. To secure the Junior Priority Secured Obligations, each Grantor hereby grants to the Collateral Agent, for the benefit of the Junior Lien Secured Parties, a security interest in and continuing lien on all of such Grantor’s 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 Junior Lien 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 Junior Priority Secured Obligations (other than unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations) and the cancellation or termination of the commitments under any Future Junior Priority 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 Agent’s 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, (x) with respect to Trademark Collateral constituting ABL Priority Collateral, are subject to the limitations and provisions of the ABL Intercreditor Agreement, and (y) are subject to the limitations and provisions of the First/Second Priority Intercreditor Agreement and the Second Priority Pari Passu Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2 and the definitions for the capitalized terms used therein) and the terms and conditions of the ABL Intercreditor Agreement, the First/Second Priority Intercreditor Agreement or the Second Priority Pari Passu Intercreditor Agreement, the terms and conditions of ABL Intercreditor Agreement, the First/Second Priority Intercreditor Agreement or the Second Priority Pari Passu Intercreditor Agreement, as applicable, shall control. In the event of any inconsistency between the terms or conditions of the ABL Intercreditor Agreement, the First/Second Priority Intercreditor Agreement or the Second Priority Pari Passu Intercreditor Agreement as such terms and conditions apply to any interpretation of this Agreement, (a) the terms of the ABL Intercreditor Agreement shall control over the First/Second Priority Intercreditor Agreement and the Second Priority Pari Passu Intercreditor Agreement and (b) the terms of the First/Second Priority Intercreditor Agreement shall control over the Second Priority Pari Passu Intercreditor Agreement.

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 Second Priority 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 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 Junior Lien Secured Parties (in such capacity, together with its successors and permitted assigns, the “ Collateral Agent ”).

WHEREAS , the Grantors are party to a Pledge and Security Agreement, dated as of March 12, 2018 (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. To secure the Junior Priority Secured Obligations, each Grantor hereby grants to the Collateral Agent, for the benefit of the Junior Lien Secured Parties, a security interest in and continuing lien on all of such Grantor’s 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 Junior Lien 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 Junior Priority Secured Obligations (other than unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations) and the cancellation or termination of the commitments under any Future Junior Priority 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 Agent’s 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, (x) with respect to Patent Collateral constituting ABL Priority Collateral, are subject to the limitations and provisions of the ABL Intercreditor Agreement, and (y) are subject to the limitations and provisions of the First/Second Priority Intercreditor Agreement and the Second Priority Pari Passu Intercreditor Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2

 

EXHIBIT C-2


and the definitions for the capitalized terms used therein) and the terms and conditions of the ABL Intercreditor Agreement, the First/Second Priority Intercreditor Agreement or the Second Priority Pari Passu Intercreditor Agreement, the terms and conditions of ABL Intercreditor Agreement, the First/Second Priority Intercreditor Agreement or the Second Priority Pari Passu Intercreditor Agreement, as applicable, shall control. In the event of any inconsistency between the terms or conditions of the ABL Intercreditor Agreement, the First/Second Priority Intercreditor Agreement or the Second Priority Pari Passu Intercreditor Agreement as such terms and conditions apply to any interpretation of this Agreement, (a) the terms of the ABL Intercreditor Agreement shall control over the First/Second Priority Intercreditor Agreement and the Second Priority Pari Passu Intercreditor Agreement and (b) the terms of the First/Second Priority Intercreditor Agreement shall control over the Second Priority Pari Passu Intercreditor Agreement

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 Second Priority 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 COPYRIGHT SECURITY AGREEMENT

This 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 Junior Lien Secured Parties (in such capacity, together with its successors and permitted assigns, the “ Collateral Agent ”).

WHEREAS , the Grantors are party to a Pledge and Security Agreement, dated as of March 12, 2018 (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. To secure the Junior Priority Secured Obligations, each Grantor hereby grants to the Collateral Agent, for the benefit of the Junior Lien Secured Parties, a security interest in and continuing lien on all of such Grantor’s 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;

(f) all other rights corresponding thereto throughout the world; and

 

EXHIBIT D-1


(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 Junior Lien 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 Junior Priority Secured Obligations (other than unasserted indemnification, tax gross-up, expense reimbursement or yield protection obligations) and the cancellation or termination of the commitments under any Future Junior Priority 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 Agent’s 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, (x) with respect to Copyright Collateral constituting ABL Priority Collateral, are subject to the limitations and provisions of the ABL Intercreditor Agreement, and (y) are subject to the limitations and provisions of the First/Second Priority Intercreditor Agreement and the Second Priority Pari Passu Intercreditor

 

EXHIBIT D-2


Agreement. In the event of any inconsistency between the terms or conditions of this Agreement (other than Section 2 and the definitions for the capitalized terms used therein) and the terms and conditions of the ABL Intercreditor Agreement, the First/Second Priority Intercreditor Agreement or the Second Priority Pari Passu Intercreditor Agreement, the terms and conditions of ABL Intercreditor Agreement, the First/Second Priority Intercreditor Agreement or the Second Priority Pari Passu Intercreditor Agreement, as applicable, shall control. In the event of any inconsistency between the terms or conditions of the ABL Intercreditor Agreement, the First/Second Priority Intercreditor Agreement or the Second Priority Pari Passu Intercreditor Agreement as such terms and conditions apply to any interpretation of this Agreement, (a) the terms of the ABL Intercreditor Agreement shall control over the First/Second Priority Intercreditor Agreement and the Second Priority Pari Passu Intercreditor Agreement and (b) the terms of the First/Second Priority Intercreditor Agreement shall control over the Second Priority Pari Passu Intercreditor Agreement

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 Second Priority 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 10.2

Execution Version

REPRESENTATIVE JOINDER AGREEMENT NO. 1 dated as of March 12, 2018 (this “ 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 Junior Priority Secured Obligations pursuant to that certain Indenture, dated as of March 12, 2018, by and among the Borrower, as issuer, the other Grantors as guarantors, and Wilmington, as trustee, and the Person (solely in its capacity as collateral agent) identified in the signature pages hereto as the “Junior Priority Representative” (the “ Additional Representative ”) will serve as the collateral agent for the holders of such Junior Priority Secured Obligations. The 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 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 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 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 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 Junior Priority Pari Passu Intercreditor Agreement provides that, upon the Additional Representative’s entry into this Representative Joinder Agreement, the secured parties in respect of such 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 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.

 

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Junior Priority Representative for the Junior Priority Secured Parties

By: 

 

/s/ Hallie E. Field

  Name:   Hallie E. Field
  Title:     Assistant Vice President

 

Address for notices:

 

Global Capital Markets

50 South Sixth Street, Suite 1290

Minneapolis, MN 55402

attention of: 

 

J. C. Penney Notes Administrator

Telecopy:

 

(612) 217-5651


Acknowledged by:

 

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Representative with respect to the ABL Credit Agreement

By: 

 

/s/ Maggie Townsend

  Name:   Maggie Townsend
  Title:     Vice President


Acknowledged by:

 

WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as Collateral Agent, as Term Loan/Notes Representative

By: 

 

/s/ Hallie E. Field

  Name:   Hallie E. Field
  Title:     Assistant Vice President

Exhibit 10.3

Execution Version

JUNIOR PRIORITY INTERCREDITOR AGREEMENT

JUNIOR PRIORITY INTERCREDITOR AGREEMENT, dated as of March 12, 2018, 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 WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as “Collateral Agent” under the Junior Lien Pari Passu Intercreditor Agreement (as defined below) (together with its successors as “Collateral Agent” under the Junior 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. The Company is party to the Indenture dated as of March 12, 2018 among the Company, the guarantors identified therein and Wilmington Trust, National Association, as Junior Lien Trustee (as amended, restated, supplemented, waived, Refinanced or otherwise modified from time to time, the “ Junior Lien Indenture ”) pursuant to which the Company has issued its 8.625% Senior Secured Second Priority Notes due 2025.

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, the Junior Lien Trustee has appointed, and, if any additional Series (as defined in the Junior Lien Pari Passu Intercreditor Agreement) of Junior Priority Obligations are established following the date hereof, one or more additional Junior Lien Authorized Representatives for the holders of additional Series of Junior Priority Obligations will appoint, the Junior Lien Representative to hold Liens for the benefit of the Junior Lien Secured Parties under the Junior Priority Documents and to bind such Junior Lien Secured Parties by the terms of this Agreement.


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 .

 

-2-


Discharge of First Lien Obligations ” shall mean, except to the extent otherwise provided in Section  5.7 and Section  6.3 , 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 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 Priority Obligations.

Grantor Joinder Agreement ” means a supplement to this Agreement substantially in the form of Annex I, appropriately completed.

 

-3-


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 Priority Obligations pursuant to a Junior Lien Security Document.

Junior Lien Pari Passu Intercreditor Agreement ” means the Junior Lien 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 Priority Obligations.

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 Lien Trustee ” shall mean Wilmington Trust, National Association, in its capacity as trustee under the Junior Lien Indenture, and its permitted successors.

Junior Liens ” shall mean the Liens securing the Junior Priority Obligations.

 

-4-


Junior Priority Documents ” shall have the meaning given to such term by the Junior Lien Pari Passu Intercreditor Agreement.

Junior Priority Obligations ” shall have the meaning given to the term “Junior Priority Secured Obligations” in the Junior Lien Pari Passu Intercreditor Agreement.

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, fees, expenses (including any interest, fees or expenses accruing subsequent to the filing of a petition in any Insolvency or Liquidation Proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest, fees or expenses are an allowed claim under applicable state, federal or foreign law), premium, penalties, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and banker’s acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, expenses, 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 or restructuring 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.

 

-5-


Series ” shall have the meaning given to such term by the First Lien Pari Passu Intercreditor Agreement.

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 Person’s 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 Priority 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 Priority 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 Priority Obligations and (b) any Lien on the Collateral securing any Junior Priority 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

 

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Liens on the Collateral securing any Junior Priority 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 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 Priority 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 Priority 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 Priority 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 Priority 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 .

 

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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 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 Priority Obligations in respect of any applicable Junior Priority 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 bailee’s 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 Priority 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

 

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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 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, 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 (including, without limitation, Section  6.2 ), 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 (except as otherwise expressly provided in Section  6 ) 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 Priority 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 Priority Obligations pursuant to the Junior Priority 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.

 

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(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 Priority 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.

(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 Priority 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 Priority Documents or otherwise in respect of the applicable Junior Priority 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 Priority 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 (except as otherwise expressly provided in Section  6 ) 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 Priority 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 Representative’s release), the Junior Lien Representative will promptly, at the Company’s 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 Subsidiary’s 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 Priority 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 Priority Documents, then the provisions of Section  5.7 shall apply as if a Refinancing of First Lien Obligations had occurred.

 

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(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 Representative’s own name, from time to time in the First Lien Representative’s 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 Priority Documents and (c) third, if no Junior Priority 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 March 12,

 

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2018 (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 Wilmington Trust, National Association, 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 pursuant to that certain Consent of Company and Grantors dated of even date therewith 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.”

In addition, the Junior Lien Representative, on behalf of the Junior Lien Secured Parties, agrees that each mortgage covering any Collateral, if any, 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 Company 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 Priority Obligations in accordance with the terms of the applicable Junior Priority 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 Priority 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 any Collateral, First Lien Collateral or other collateral as a result of its enforcement of its rights as an unsecured creditor in respect of Junior Priority 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 Priority 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.

 

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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 .

(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 Priority 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 Representative’s 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.

 

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(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 Company’s 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.

5.6. [ Reserved ].

5.7. No Release in 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 Priority 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 Priority 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 Priority Obligations are so subordinated to the First Priority Liens securing the applicable First Lien Obligations;

 

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(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 Priority 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;

(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 Representative’s or such First Lien Secured Party’s 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 Representative’s or any First Lien Secured Party’s 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

 

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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 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 Priority 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 Priority 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 Priority 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 Representative’s 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

 

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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.

6.4. Application . The parties hereto agree that this Agreement constitutes a “subordination 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, both on account of First Lien Obligations and on account of Junior Priority Obligations, then, to the extent the debt obligations distributed on account of the First Lien Obligations and on account of the Junior Priority 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 Priority 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, fees and expenses that accrue 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, fees or expenses 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, then the Junior Lien Representative, for

 

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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 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, fees or expenses 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 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 Priority 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 Priority Obligations or any of the Collateral. In furtherance of the foregoing, the Junior Lien Representative hereby appoints the First Lien Representative as its attorney-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 Priority 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 Priority 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 Priority 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, collectability 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 Priority 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 collectability of any of the Junior Priority Obligations, the First Lien Obligations or any guarantee or security which may have been granted to any of them in connection therewith, (b) the Company’s 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 Priority 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 Priority 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 Priority 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 Priority Obligations or any guarantee thereof;

(d) the commencement of any Insolvency or Liquidation Proceeding in respect of the Company or any other Grantor; or

 

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(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 Priority Obligations in respect of this Agreement.

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 Priority 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 Priority 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 Priority 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 Company’s 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 Company’s 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 Priority Obligations to the extent such indebtedness does not expressly violate the First Lien Documents or the Junior Priority Documents and (ii) in the case of such additional Junior Priority Obligations, (a) establish that the Liens on the Collateral securing such Junior Priority 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 Priority Obligations) and (b) provide to the holders of such Junior Priority 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 Priority Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the First Lien Obligations or the Junior Priority 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 Priority Obligations beyond that which is required pursuant to the Junior Priority 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.

 

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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;

(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 Junior 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; 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 party’s 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.

 

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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.

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 Priority 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 Priority 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 Priority 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 Priority 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 Priority 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 Priority 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 Priority Document.

 

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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 Priority 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 Priority 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:    /s/ Hallie E. Field
Name:   Hallie E. Field
Title:   Assistant Vice President


WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Junior Lien Representative
By:    /s/ Hallie E. Field
Name:   Hallie E. Field
Title:   Assistant Vice President
Address:  

Global Capital Markets

50 South Sixth Street, Suite 1290

Minneapolis, MN 55408


CONSENT OF COMPANY AND GRANTORS

Dated: March 12, 2018

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 WILMINGTON TRUST, NATIONAL ASSOCIATION, 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 Priority 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]


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/ Trent Kruse
  Name:   Trent Kruse
  Title:   Vice President, Treasury and Investor Relations
J.C. PENNEY COMPANY, INC.
By:   /s/ Jeffrey Davis
  Name:   Jeffrey Davis
  Title:   Executive Vice President and Chief Financial Officer
J. C. PENNEY PURCHASING CORPORATION
By:   /s/ Gary Piper
  Name:   Gary Piper
  Title:   Treasurer
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


Annex I

[FORM OF] GRANTOR JOINDER AGREEMENT NO. [      ] dated as of [              ], 20[      ] (the “ Grantor Joinder Agreement ”) to the JUNIOR PRIORITY INTERCREDITOR AGREEMENT dated as of March 12, 2018 (the “ Intercreditor Agreement ”), among WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as Collateral Agent, as Representative for the First Lien Secured Parties, and WILMINGTON TRUST, NATIONAL ASSOCIATION, 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 ]


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:     
  Name:
  Title:


Acknowledged by:

 

[EACH REPRESENTATIVE], as Representative with respect to [the [      ] Agreement]
By:     
  Name:
  Title:

Exhibit 10.4

[Execution]

AMENDMENT NO. 3 TO CREDIT AGREEMENT

AMENDMENT NO. 3 TO CREDIT AGREEMENT, dated as of March 8, 2018 (this “Amendment No. 3”), is by and among J. C. Penney Company, Inc. (“Holdings”), J. C. Penney Corporation, Inc. (“Parent Borrower”), J. C. Penney Purchasing Corporation (“Purchasing,” and together with Parent Borrower, individually, a “Borrower” and collectively, “Borrowers”), the parties to the Collateral Agreement (as defined in the Credit Agreement (as defined below)) as guarantors (individually, a “Guarantor” and collectively, “Guarantors”), Wells Fargo Bank, National Association, as Administrative Agent (in such capacity, “Administrative Agent”) for the parties to the Credit Agreement as lenders (individually, a “Lender” and collectively, “Lenders”), Revolving Agent (in such capacity, “Revolving Agent”), Collateral Agent (in such capacity, “Collateral Agent”) and LC Agent (in such capacity, “LC Agent,” and together with Administrative Agent, Revolving Agent and Collateral Agent, individually an “Agent” and collectively, “Agents”) and Lenders party hereto.

W I T N E S S E T H :

WHEREAS, Agents, Lenders, Borrowers and Guarantors have entered into financing arrangements pursuant to which Lenders have made and may make loans and advances and provide other financial accommodations to Borrowers as set forth in the Credit Agreement, dated as of June 20, 2014, by and among Agents, Lenders, Borrowers and Holdings (as amended, modified, restated, supplemented, or otherwise modified prior to the date hereof, the “Credit Agreement”, and together with all agreements, documents and instruments at any time executed and/or delivered in connection therewith or related thereto, as from time to time amended, modified, supplemented, extended, renewed, restated or replaced, collectively, the “Loan Documents”);

WHEREAS, Borrowers desire to amend certain provisions of the Credit Agreement as set forth herein, and Agent and Lenders party hereto constituting Required Revolving Lenders are willing to agree to such amendments on the terms and subject to the conditions set forth herein;

WHEREAS, by this Amendment No. 3, Agents, Lenders party hereto constituting Required Revolving Lenders, Borrowers and Guarantors desire and intend to evidence such amendments;

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

Section 1. Definitions .

1.1 Amendment to Definitions . The definition of the term “Customary Mandatory Prepayment Terms” in Section 1.01 of the Credit Agreement is hereby amended by amending and restating the definition of such term in its entirety as follows:

““ 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 an “asset sale” (or similar event, including condemnation or casualty), provided that such


mandatory 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 except, in the case of Permitted Second-Lien Indebtedness, on the same terms as those in the Loan Documents (subject to the relevant Intercreditor Agreement), (c) in the event of a “fundamental change” (or similar event) that is customary at the time of issuance (a “ Fundamental Change ”) or (d) in the case of any Indebtedness that constitutes a term loan, on account of annual “excess cash flow” on terms approved by the Administrative Agent (such approval not to be unreasonably withheld). Holdings or the Parent Borrower may provide a certificate of a Financial Officer to the effect that the terms of (x) any reinvestment rights or other means of avoiding the applicable Payment referred to in clause (b)(i) above or (y) Fundamental Change are customary, and such determination shall be conclusive unless the 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.”

1.2 Additional Definitions . As used herein, the term “Amendment No. 3” shall mean Amendment No. 3 to Credit Agreement, dated as of March 8, 2018, by and among Agents, Lenders party thereto, Borrowers and Guarantors, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, and the Credit Agreement and the other Loan Documents shall be deemed and are hereby amended to include, in addition and not in limitation, such definition.

1.3 Interpretation . For purposes of this Amendment No. 3, all terms used herein which are not otherwise defined herein, including but not limited to, those terms used in the recitals hereto, shall have the respective meanings assigned thereto in the Credit Agreement.

Section 2. Liens . Section 6.02 of the Credit Agreement is hereby amended by deleting the last paragraph thereof in its entirety and replacing it with the following:

“Notwithstanding the foregoing, none of the Liens permitted pursuant to this Section 6.02 (other than (1) involuntary Permitted Encumbrances, (2) Specified Involuntary Liens securing obligations not in excess of $20,000,000 at any time and (3) those permitted under clauses (a), (c), (g), (h), (m) or (t) above) may at any time attach to any Collateral.”

Section 3. Representations and Warranties . Each Loan Party represents and warrants to Agents and Lenders that the representations and warranties of each Loan Party contained in Article III of the Credit Agreement or any other Loan Document delivered in connection with this Amendment No. 3 are true and correct in all material respects on and as of the date hereof, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and (ii) in the case of any representation and warranty qualified by materiality or Material Adverse Effect (or words of similar import), they shall be true and correct in all respects in accordance with the terms thereof.

Section 4. Conditions Precedent . This Amendment No. 3 shall only be effective on the date of the satisfaction or waiver of each of the following conditions precedent:

4.1 Administrative Agent shall have received an original or original counterparts (or a telefacsimile or other electronic copy, including an email with a pdf) of this Amendment No. 3, duly authorized, executed and delivered by Borrowers, Guarantors, Administrative Agent and the Required Revolving Lenders; and

 

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4.2 immediately after giving effect to the terms and conditions of this Amendment No. 3, no Default or Event of Default shall have occurred and be continuing.

Section 5. Effect of Amendment No.  3 . Except as expressly set forth herein, no other amendments, changes or modifications to the Loan Documents are intended or implied, and in all other respects the Loan Documents are hereby specifically ratified, restated and confirmed by all parties hereto as of the effective date hereof and Loan Parties shall not be entitled to any other or further amendment by virtue of the provisions of this Amendment No. 3 or with respect to the subject matter of this Amendment No. 3. Without limiting the generality of the foregoing, each Guarantor hereby acknowledges and confirms that its guarantee of the Obligations is in full force and effect in accordance with its terms and is hereby ratified and confirmed and such continuing liability shall not be affected by this Amendment No. 3, nor shall anything contained in this Amendment No. 3 be deemed to limit or otherwise affect its obligations under such guarantee. To the extent of conflict between the terms of this Amendment No. 3 and the other Loan Documents, the terms of this Amendment No. 3 shall control. This Amendment No. 3 constitutes a Loan Document. Nothing contained in this Amendment No. 3 will constitute a waiver of any right, power or remedy under the Credit Agreement or any of the other Loan Documents.

Section 6. Governing Law . The validity, interpretation and enforcement of this Amendment No. 3 and any dispute arising out of the relationship between the parties hereto whether in contract, tort, equity or otherwise, shall be governed by the internal laws of the State of New York but excluding any principles of conflicts of law or other rule of law that would cause the application of the law of any jurisdiction other than the laws of the State of New York.

Section 7. Jury Trial Waiver . EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT NO. 3, ANY OF THE OTHER LOAN DOCUMENTS 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 PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY 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 AMENDMENT NO. 3 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.

Section 8. Binding Effect . This Amendment No. 3 shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and assigns.

Section 9. Entire Agreement . This Amendment No. 3 represents the entire agreement and understanding concerning the subject matter hereof among the parties hereto, and supersedes all other prior agreements, understandings, negotiations and discussions, representations, warranties, commitments, proposals, offers and contracts concerning the subject matter hereof, whether oral or written.

Section 10. Headings . The headings listed herein are for convenience only and do not constitute matters to be construed in interpreting this Amendment No. 3.

 

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Section 11. Counterparts . This Amendment No. 3 may be executed in any number of counterparts, each of which shall be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Amendment No. 3 by telefacsimile or other electronic method of transmission (including email with a pdf) shall have the same force and effect as delivery of an original executed counterpart of this Amendment No. 3. Any party delivering an executed counterpart of this Amendment No. 3 by telefacsimile or other electronic method of transmission (including email with a pdf) shall also deliver an original executed counterpart of this Amendment No. 3, but the failure to do so shall not affect the validity, enforceability, and binding effect of this Amendment No. 3.

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3 to be duly executed and delivered as of the day and year first above written.

 

J. C. PENNEY CORPORATION, INC.
By:   /s/ Trent Kruse
Name:   Trent Kruse
Title:   Vice President, Treasury and Investor Relations
J. C. PENNEY COMPANY, INC.
By:   /s/ Trent Kruse
Name:   Trent Kruse
Title:   Authorized Signatory

J. C. PENNEY PURCHASING CORPORATION

JCP REAL ESTATE HOLDINGS, INC.

J. C. PENNEY PROPERTIES, INC.

By:   /s/ Gary Piper
Name:   Gary Piper
Title:   Vice President, Treasurer

[SIGNATURES CONTINUE ON NEXT PAGE]


[SIGNATURES CONTINUED FROM PREVIOUS PAGE]

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Revolving Agent and Collateral Agent
By:    /s/ Maggie Townsend
Name:   Maggie Townsend
Title:   Vice President
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as LC Issuer, as a Lender and as Swing Line Lender
By:    /s/ Maggie Townsend
Name:   Maggie Townsend
Title:   Vice President

[SIGNATURES CONTINUE ON NEXT PAGE]


[SIGNATURES CONTINUED FROM PREVIOUS PAGE]

 

BANK OF AMERICA, N.A.,
as a Lender
By:    /s/ Christine Hutchinson
Name:   Christine Hutchinson
Title:   Director

[SIGNATURES CONTINUE ON NEXT PAGE]


[SIGNATURES CONTINUED FROM PREVIOUS PAGE]

 

JPMORGAN CHASE BANK, N.A.,
as a Lender
By:    /s/ Lauren Baker
Name:   Lauren Baker
Title:   Executive Director

[SIGNATURES CONTINUE ON NEXT PAGE]


[SIGNATURES CONTINUED FROM PREVIOUS PAGE]

 

BARCLAYS BANK PLC,
as a Lender
By:    /s/ Nick Guzzardo
Name:   Nick Guzzardo
Title:   Assistant Vice President