Page 9 of 17 – SEC Filing
The foregoing description of the Second Lien Credit Agreement does not purport to be complete and
is qualified in its entirety by reference to that certain Second Lien Credit Agreement, entered into in connection with the Second-Lien Term Loan, filed as Exhibit 99.30 and incorporated by reference herein.
Also on September 1, 2016, Holdings amended that certain Security Agreement, dated as of October 12, 2010 (together with all
exhibits and schedules attached thereto, as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Security Agreement), among Holdings, the subsidiaries of Holdings from time to time party
thereto as grantors and Wilmington Trust, to cure certain ambiguities, omissions, defects or inconsistencies in the Security Agreement.
In addition, in connection with the entry into the Second Lien Credit Agreement, JPP, LLC, as administrative agent and collateral
administrator under the Second Lien Credit Agreement, executed a joinder to the Security Agreement.
The foregoing discussion does not
purport to be complete and is qualified in its entirety by reference to both (i) the First Amendment to the Security Agreement on Exhibit 10.2 to Holdings Current Report on Form 8-K filed with the SEC on September 2, 2016, and
(ii) that certain Pari Passu Joinder Agreement, attached hereto as Exhibit 99.31 and incorporated by reference herein.
Also on
September 1, 2016, Bank of America, N.A. and Wells Fargo Bank, National Association (as successor to Wells Fargo Retail Finance, LLC), as co-collateral agents, and Wilmington Trust, as successor trustee, entered into an amendment and
restatement of that certain Intercreditor Agreement, dated as of October 12, 2010 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Intercreditor Agreement), to, among other
things, make certain amendments in connection with Holdings entry into the Second Lien Credit Agreement and the security interests granted in connection therewith.
The foregoing description of the Intercreditor Agreement does not purport to be complete and is qualified in its entirety by reference to the
Amended and Restated Intercreditor Agreement on Exhibit 10.3 to Holdings Current Report on Form 8-K filed with the SEC on September 2, 2016.
Item 5. Interest in Securities of the Issuer.
Item 5 is hereby amended and restated in its entirety as follows:
(a)-(b) Each Reporting Person declares that neither the filing of this statement nor anything herein shall be construed as an
admission that such person is, for the purposes of Section 13(d) or 13(g) of the Act or any other purpose, the beneficial owner of any securities covered by this statement.
Each Reporting Person may be deemed to be a member of a group with respect to Holdings or securities of Holdings for the purposes of
Section 13(d) or 13(g) of the Act. Each Reporting Person declares that neither the filing of this statement nor anything herein shall be construed as an admission that such person is, for the purposes of Section 13(d) or 13(g) of the Act
or any other purpose, (i) acting (or has agreed or is agreeing to act) with any other person as a partnership, limited partnership, syndicate, or other group for the purpose of acquiring, holding, or disposing of securities of Holdings or
otherwise with respect to Holdings or any securities of Holdings or (ii) a member of any syndicate or group with respect to Holdings or any securities of Holdings.
As of September 2, 2016, the Reporting Persons may be deemed to beneficially own the shares of Holdings Common Stock set forth in the
table below.
REPORTING
PERSON
NUMBER OF
SHARES
BENEFICIALLY
OWNED PERCENTAGE
OF
OUTSTANDING
SHARES SOLE VOTING
POWER SHARED
VOTING
POWER SOLE
DISPOSITIVE
POWER SHARED
DISPOSITIVE
POWER ESL Partners, L.P.
64,285,529 (1)(2) 57.5 %(3) 26,801,105 (2) 0 26,801,105 (2) 37,484,424 (1) SPE I Partners, LP
150,124 0.1 % 150,124 0 150,124 0 SPE Master I, LP
193,341 0.2 % 193,341 0 193,341 0 RBS Partners, L.P.
64,628,994 (1)(4) 57.8 %(5) 27,144,570 (4) 0 27,144,570 (4) 37,484,424 (1) ESL Investments, Inc.
64,628,994 (1)(6) 57.8 %(7) 27,144,570 (6) 0 27,144,570 (6) 37,484,424 (1) Edward S. Lampert
64,628,994 (1)(8) 54.7 %(9) 64,628,994 (1)(8) 0 27,144,570 (8) 37,484,424 (1)
The foregoing description of the Second Lien Credit Agreement does not purport to be complete and
is qualified in its entirety by reference to that certain Second Lien Credit Agreement, entered into in connection with the Second-Lien Term Loan, filed as Exhibit 99.30 and incorporated by reference herein.
Also on September 1, 2016, Holdings amended that certain Security Agreement, dated as of October 12, 2010 (together with all
exhibits and schedules attached thereto, as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Security Agreement), among Holdings, the subsidiaries of Holdings from time to time party
thereto as grantors and Wilmington Trust, to cure certain ambiguities, omissions, defects or inconsistencies in the Security Agreement.
In addition, in connection with the entry into the Second Lien Credit Agreement, JPP, LLC, as administrative agent and collateral
administrator under the Second Lien Credit Agreement, executed a joinder to the Security Agreement.
The foregoing discussion does not
purport to be complete and is qualified in its entirety by reference to both (i) the First Amendment to the Security Agreement on Exhibit 10.2 to Holdings Current Report on Form 8-K filed with the SEC on September 2, 2016, and
(ii) that certain Pari Passu Joinder Agreement, attached hereto as Exhibit 99.31 and incorporated by reference herein.
Also on
September 1, 2016, Bank of America, N.A. and Wells Fargo Bank, National Association (as successor to Wells Fargo Retail Finance, LLC), as co-collateral agents, and Wilmington Trust, as successor trustee, entered into an amendment and
restatement of that certain Intercreditor Agreement, dated as of October 12, 2010 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the Intercreditor Agreement), to, among other
things, make certain amendments in connection with Holdings entry into the Second Lien Credit Agreement and the security interests granted in connection therewith.
The foregoing description of the Intercreditor Agreement does not purport to be complete and is qualified in its entirety by reference to the
Amended and Restated Intercreditor Agreement on Exhibit 10.3 to Holdings Current Report on Form 8-K filed with the SEC on September 2, 2016.
Item 5. Interest in Securities of the Issuer.
Item 5 is hereby amended and restated in its entirety as follows:
(a)-(b) Each Reporting Person declares that neither the filing of this statement nor anything herein shall be construed as an
admission that such person is, for the purposes of Section 13(d) or 13(g) of the Act or any other purpose, the beneficial owner of any securities covered by this statement.
Each Reporting Person may be deemed to be a member of a group with respect to Holdings or securities of Holdings for the purposes of
Section 13(d) or 13(g) of the Act. Each Reporting Person declares that neither the filing of this statement nor anything herein shall be construed as an admission that such person is, for the purposes of Section 13(d) or 13(g) of the Act
or any other purpose, (i) acting (or has agreed or is agreeing to act) with any other person as a partnership, limited partnership, syndicate, or other group for the purpose of acquiring, holding, or disposing of securities of Holdings or
otherwise with respect to Holdings or any securities of Holdings or (ii) a member of any syndicate or group with respect to Holdings or any securities of Holdings.
As of September 2, 2016, the Reporting Persons may be deemed to beneficially own the shares of Holdings Common Stock set forth in the
table below.
| REPORTING PERSON | NUMBER OF SHARES BENEFICIALLY OWNED | PERCENTAGE OF OUTSTANDING SHARES | SOLE VOTING POWER | SHARED VOTING POWER | SOLE DISPOSITIVE POWER | SHARED DISPOSITIVE POWER | ||||||||||||||||||
| ESL Partners, L.P. | 64,285,529 | (1)(2) | 57.5 | %(3) | 26,801,105 | (2) | 0 | 26,801,105 | (2) | 37,484,424 | (1) | |||||||||||||
| SPE I Partners, LP | 150,124 | 0.1 | % | 150,124 | 0 | 150,124 | 0 | |||||||||||||||||
| SPE Master I, LP | 193,341 | 0.2 | % | 193,341 | 0 | 193,341 | 0 | |||||||||||||||||
| RBS Partners, L.P. | 64,628,994 | (1)(4) | 57.8 | %(5) | 27,144,570 | (4) | 0 | 27,144,570 | (4) | 37,484,424 | (1) | |||||||||||||
| ESL Investments, Inc. | 64,628,994 | (1)(6) | 57.8 | %(7) | 27,144,570 | (6) | 0 | 27,144,570 | (6) | 37,484,424 | (1) | |||||||||||||
| Edward S. Lampert | 64,628,994 | (1)(8) | 54.7 | %(9) | 64,628,994 | (1)(8) | 0 | 27,144,570 | (8) | 37,484,424 | (1) | |||||||||||||
