Item 1.01 Entry Into a Material Definitive Agreement
Entry into Term Loan Credit Agreement
On January 4,
2018, Sears Holdings Corporation (the Company), through Sears Roebuck Acceptance Corp. and Kmart Corporation (collectively, the Borrowers), entities wholly-owned and controlled, directly or indirectly by the Company, entered
into a Term Loan Credit Agreement (the Term Loan Credit Agreement) providing for a secured term loan facility (the Term Loan Facility) from JPP, LLC and JPP II, LLC, as lenders (collectively, the Lenders), with
JPP, LLC, serving as administrative and collateral agent (the Agent). Mr. Edward S. Lampert, the Companys Chief Executive Officer and Chairman, is the sole stockholder, chief executive officer and director of ESL
Investments, Inc., which controls JPP, LLC and JPP II, LLC.
The Term Loan Facility is guaranteed by the Company and certain of its subsidiaries that
guarantee the Companys other material debt or own material intellectual property. The Term Loan Facility is secured by substantially all of the unencumbered intellectual property of the Company and its subsidiaries, other than intellectual
property relating to the Kenmore and DieHard brands, as well as by certain real property interests, in each case subject to certain exclusions.
$100
million was borrowed under the Term Loan Facility on January 4, 2018. The Term Loan Facility also contains an uncommitted incremental loan feature that, subject to the satisfaction of certain conditions, including the consent of the Agent,
would permit up to an additional $200 million to be borrowed from other counterparties and secured by the same collateral as the initial loan under the Term Loan Facility.
The loans under the Term Loan Facility bear interest at an annual interest rate of LIBOR plus 12.5%, which during the first year can be paid in kind by
capitalizing interest. The loans under the Term Loan Facility mature on July 20, 2020. The Company expects to use the proceeds of the Term Loan Facility for general corporate purposes.
No upfront or arrangement fees were paid in connection with the Term Loan Facility. The loans under the Term Loan Facility are prepayable without premium or
penalty.
The Term Loan Facility includes certain representations and warranties, indemnities and covenants, including with respect to the condition and
maintenance of the intellectual property and real property collateral. The Term Loan Facility has certain events of default, including (subject to certain materiality thresholds and grace periods) payment default, failure to comply with covenants,
material inaccuracy of representation or warranty, and bankruptcy or insolvency proceedings. If there is an event of default, the Lenders may declare all or any portion of the outstanding indebtedness to be immediately due and payable, exercise any
rights they might have (including against the collateral), and require the Borrowers to pay a default interest rate.
The foregoing description does not
purport to be complete and is qualified in its entirety by reference to the Term Loan Credit Agreement, a copy of which is filed herewith as Exhibit 10.1 and is incorporated by reference herein.
Amendment to Second Lien Notes
On January 9, 2018,
the Company and certain of its subsidiaries entered into a Fourth Supplemental Indenture (the Supplemental Indenture) with Wilmington Trust, National Association, as successor trustee and collateral agent, amending the Indenture, dated
as of October 12, 2010 (the Indenture), among the Company, the subsidiaries of the Company party thereto as guarantors from time to time and Wells Fargo Bank, National Association, as trustee and collateral agent, governing the
Companys 6 5/8% Senior Secured Notes due 2018.
The Supplemental Indenture amended the borrowing base definition in the Indenture to increase the
advance rate for inventory to 75% from 65%. The Supplemental Indenture also defers the collateral coverage test for purposes of the repurchase offer covenant in the Indenture and restarts it with the second quarter of 2018 (such that no collateral
coverage event can occur until the end of the third quarter of 2018).
The foregoing description does not purport to be complete and is qualified in its
entirety by reference to (i) the Supplemental Indenture, a copy of which is filed herewith as Exhibit 4.1 and is incorporated by reference herein, and (ii) the Indenture, which was previously filed as Exhibit 4.1 to the Current Report on
Form
8-K
filed by the Company on October 15, 2010.
Amendment to Second Lien Credit Agreement
On January 9, 2018, the Company, the Borrowers, and certain other subsidiaries of the Company entered into a Second Amendment to Second Lien Credit
Agreement (the Second Amendment) with the lenders party thereto and JPP, LLC, as administrative agent and collateral administrator (the Second Lien Agent), amending the Second Lien Credit Agreement, dated as of
September 1, 2016 (the Second Lien Credit Agreement), among the Company, the Borrowers, the other subsidiaries of the Company party thereto as guarantors from time to time, the lenders party thereto from time to time, and the Second
Lien Agent, as previously amended by the First Amendment to Second Lien Credit Agreement, dated as of July 7, 2017 (the First Amendment), among the Company, the Borrowers, the other subsidiaries of the Company party thereto, the
lenders party thereto and the Second Lien Agent.
The Second Amendment amended the borrowing base definition in the Second Lien Credit Agreement to
increase the advance rate for inventory to 75% from 65%. The Second Amendment also defers the collateral coverage test for purposes of the mandatory repayment covenant in the Second Lien Credit Agreement such that no such mandatory repayment can be
required until the end of the third quarter of 2018.
The foregoing description does not purport to be complete and is qualified in its entirety by
reference to (i) the Second Amendment, a copy of which is filed herewith as Exhibit 10.2 and is incorporated by reference herein, (ii) the Second Lien Credit Agreement, which was previously filed as Exhibit 10.1 to the Current Report on
Form
8-K
filed by the Company on September 2, 2016 and (iii) the First Amendment, which was previously filed as Exhibit 10.1 to the Current Report on Form
8-K
filed by the Company on July 7, 2017.