SENIOR UNSECURED TERM LOAN AGREEMENT Dated as of December 27, 2017 among SERITAGE GROWTH PROPERTIES, L.P., as the Borrower, SERITAGE GROWTH PROPERTIES, as the Parent and initial Guarantor, JPP, LLC, as Administrative Agent, and The Lenders Party...

 

Exhibit 10.1

 

 

Dated as of December 27, 2017

among

SERITAGE GROWTH PROPERTIES, L.P.,

as the Borrower,

SERITAGE GROWTH PROPERTIES,

as the Parent and initial Guarantor,

JPP, LLC,

as Administrative Agent,

and

The Lenders Party Hereto,

as the Lenders

ARTICLE I DEFINITIONS AND ACCOUNTING TERMS		1
Section 1.01	Certain Defined Terms	1
Section 1.02	Computation of Time Periods	15
Section 1.03	Accounting Terms;  Changes in GAAP	15
Section 1.04	Parent Guarantor	16
Section 1.05	Miscellaneous	16
ARTICLE II THE ADVANCES		16
Section 2.01	The Advances	16
Section 2.02	Method of Borrowing	17
Section 2.03	Upfront Fee	18
Section 2.04	Incremental Borrowing.	18
Section 2.05	Repayment of Advances	19
Section 2.06	Interest	19
Section 2.07	Prepayments.	20
Section 2.08	[Reserved]	20
Section 2.09	Increased Costs	20
Section 2.10	Payments and Computations	21
Section 2.11	Taxes	23
Section 2.12	Lender Replacement	26
Section 2.13	Sharing of Payments, Etc.	27
ARTICLE III CONDITIONS OF LENDING		28
Section 3.01	Conditions Precedent to Closing and for Borrowing	28
ARTICLE IV REPRESENTATIONS AND WARRANTIES		30
Section 4.01	Existence; Qualification; Partners; Subsidiaries	30
Section 4.02	Partnership and Corporate Power	31
Section 4.03	Authorization and Approvals	31
Section 4.04	Enforceable Obligations	31
Section 4.05	Parent REIT Status	32
Section 4.06	Financial Statements	32
Section 4.07	True and Complete Disclosure	32
Section 4.08	Litigation	32
Section 4.09	Use of Proceeds	32
Section 4.10	Investment Company Act	33
Section 4.11	Taxes	33
Section 4.12	Pension Plans	33
Section 4.13	Condition of Property; Casualties; Condemnation	34
Section 4.14	Insurance	34
Section 4.15	No Burdensome Restrictions;  No Defaults	34
Section 4.16	Environmental Condition	34
Section 4.17	Legal Requirements, Zoning, Utilities, Access	35
Section 4.18	Existing Indebtedness	36
Section 4.19	Title; Encumbrances	36
Section 4.20	Leasing Arrangements	36
Section 4.21	Unencumbered Properties	36
Section 4.22	OFAC	36
ARTICLE V AFFIRMATIVE COVENANTS		37
Section 5.01	Compliance with Laws, Etc.	37
Section 5.02	Preservation of Existence, Separateness, Etc.	37
Section 5.03	Payment of Taxes, Etc.	37
Section 5.04	Visitation Rights; Lender Meeting	38
Section 5.05	Reporting Requirements	38
Section 5.06	Maintenance of Property	41
Section 5.07	Insurance	41
Section 5.08	Use of Proceeds	41
Section 5.09	New Guarantors	41
ARTICLE VI NEGATIVE COVENANTS		42
Section 6.01	Liens, Etc.	42
Section 6.02	Indebtedness	42
Section 6.03	Agreements Restricting Distributions From Subsidiaries	43
Section 6.04	Restricted Payments	43
Section 6.05	Fundamental Changes; Asset Dispositions	44
Section 6.06	Subsidiary Ownership	45
Section 6.07	Investments, Loans, Future Properties	45
Section 6.08	Affiliate Transactions	46
Section 6.09	Sale and Leaseback	46
Section 6.10	Sale or Discount of Receivables	46
Section 6.11	Restriction on Negative Pledges	46
Section 6.12	Material Documents	47
Section 6.13	OFAC	47
ARTICLE VII FINANCIAL COVENANTS		47
Section 7.01	Maintenance of Net Worth	47
Section 7.02	Limitations on Total Liabilities	47
ARTICLE VIII EVENTS OF DEFAULT; REMEDIES		47
Section 8.01	Events of Default	47
Section 8.02	Optional Acceleration of Maturity	50
Section 8.03	Automatic Acceleration of Maturity	50
Section 8.04	[Reserved]	50
Section 8.05	Non exclusivity of Remedies	50
Section 8.06	Right of Set off	50
ARTICLE IX [RESERVED]		51
ARTICLE X AGENCY PROVISIONS		51
Section 10.01	Authorization and Action	51
Section 10.02	Administrative Agent’s Reliance, Etc.	51
Section 10.03	Administrative Agent and Its Affiliates	52
Section 10.04	Lender Credit Decision	52
Section 10.05	Indemnification	52
Section 10.06	Successor Administrative Agent	53
Section 10.07	Designation of Additional Agents	53
ARTICLE XI MISCELLANEOUS		53
Section 11.01	Amendments, Etc.	53
Section 11.02	Notices, Etc.	55
Section 11.03	No Waiver; Remedies	56
Section 11.04	Costs and Expenses	56
Section 11.05	Binding Effect	57
Section 11.06	Lender Assignments and Participations	57
Section 11.07	Indemnification	59
Section 11.08	Execution in Counterparts	61
Section 11.09	Survival of Representations, Indemnifications, etc.	61
Section 11.10	Severability	61
Section 11.11	Entire Agreement	61
Section 11.12	Usury Not Intended	61
Section 11.13	Governing Law	62
Section 11.14	Consent to Jurisdiction; Service of Process; Jury Trial	62
Section 11.15	Knowledge of Borrower	63
Section 11.16	Lenders Not in Control	63
Section 11.17	Headings Descriptive	63
Section 11.18	Time is of the Essence	64
Section 11.19	Scope of Indemnities	64
Section 11.20	Confidentiality	64
Section 11.21	USA Patriot Act Notice	65
Section 11.22	No Fiduciary Duties	65

 

EXHIBITS:

EXHIBIT A ‑ FORM OF NOTE

EXHIBIT B ‑ FORM OF ASSIGNMENT AND ACCEPTANCE

EXHIBIT C ‑ FORM OF COMPLIANCE CERTIFICATE

EXHIBIT D ‑ FORM OF GUARANTY

EXHIBIT E ‑ FORM OF NOTICE OF BORROWING

SCHEDULES:

SCHEDULE 1.01(A) ‑ COMMITMENTS

SCHEDULE 1.01(B) ‑ EXISTING PROPERTIES

SCHEDULE 1.01(C) ‑ LEASES

SCHEDULE 4.01(A) ‑ SUBSIDIARIES

SCHEDULE 4.01(B) - JOINT VENTURES

SCHEDULE 4.08 ‑ LITIGATION

SCHEDULE 4.17 ‑ LEGAL REQUIREMENTS; ZONING; UTILITIES; ACCESS

SCHEDULE 4.18 ‑ EXISTING INDEBTEDNESS

 

 

This SENIOR UNSECURED TERM LOAN AGREEMENT (as the same may be amended, modified, restated or supplemented from time to time, this “Agreement”), dated as of December 27, 2017, is among SERITAGE GROWTH PROPERTIES, L.P., a Delaware limited partnership (the “Borrower”), SERITAGE GROWTH PROPERTIES, a Maryland trust (the “Parent” and, together with any guarantor added pursuant to Section 5.09, individually or collectively as the context may require, the “Guarantor”), JPP, LLC, a Delaware limited liability company, JPP II, LLC, a Delaware limited liability company, Empyrean Investments, LLC, a Delaware limited liability company, and each other party to this Agreement identified as a lender on the signature pages hereto (collectively, the “Initial Lenders”, and, together with each lender that shall become a party to this Agreement pursuant to Section 11.06, collectively, the “Lenders”), and JPP, LLC, a Delaware limited liability company, as administrative agent (the “Administrative Agent”), in its capacity as Administrative Agent for the Lenders pursuant to Article X, as such Administrative Agent may be replaced pursuant to Section 10.06).

The Borrower has requested, and the Lenders have agreed to extend credit in the form of a term loan on the Closing Date.  In consideration of the mutual agreements contained in this Agreement, the parties hereto do hereby agree as follows:

WITNESSETH THAT:

WHEREAS, the Borrower has requested that the Lenders extend credit to the Borrower, and the Lenders, upon the occurrence of the Closing Date and subject to the terms hereof, have agreed to make advances to and for the benefit of the Borrower pursuant to the terms of this Agreement.

NOW, THEREFORE, in consideration of the recitals set forth above, which by this reference are incorporated into this Agreement set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and subject to the terms and conditions hereof and on the basis of the representations and warranties herein set forth, the parties hereto hereby agree to the following:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

“Accession Agreement” means an Accession Agreement in the form attached to the Guaranty as Annex 1 thereto, which agreement causes the Person executing and delivering the same to the Administrative Agent to become a party to the Guaranty.

“Additional Lender” means, at any time, any bank, other financial institution or institutional investor that is not an existing Lender and that agrees to provide any portion of any Incremental Advance in accordance with Section 2.04. Each Additional Lender shall be a Lender to the extent any such Person has executed and delivered an Incremental Amendment.

“Advance” has the meaning set forth in Section 2.01.

“Affected Lender” has the meaning set forth in Section 2.12(b).

“Affiliate” means, as to any Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person or any Subsidiary of such Person.  The term “control” (including the terms “controlled by” or “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of a Control Percentage, by contract or otherwise.

“Anti‑Corruption Laws” shall mean all laws, rules and regulations of any jurisdiction applicable to the Borrower, the Parent or their Subsidiaries from time to time concerning or relating to bribery, corruption or money laundering.

“Applicable Lending Office” means, with respect to each Lender, such Lender’s Domestic Lending Office.

“Appraisal” means, for a Future Property, an as-is appraisal of such Future Property that is prepared by a member of the Appraisal Institute selected by Lender, meets the minimum appraisal standards for national banks promulgated by the Comptroller of the Currency pursuant to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended (FIRREA) and complies with the Uniform Standards of Professional Appraisal Practice (USPAP).

“Assignment and Acceptance” means an assignment and acceptance entered into by a Lender and a purchasing Lender, and accepted by the Administrative Agent, in substantially the form of the attached Exhibit B.

“Borrowing” means the borrowing consisting of simultaneous Advances made by the Lenders on the Closing Date pursuant to Section 2.01.

“Business Day” means a day of the year on which banks are not required or authorized to close in New York City.

“Capital Expenditure” means any payment made directly or indirectly for the purpose of acquiring or constructing fixed assets, Property or equipment which in accordance with GAAP would be capitalized in the fixed asset accounts of such Person making such expenditure, including, without limitation, amounts paid or payable for such purpose under any conditional sale or other title retention agreement or under any Capital Lease.

“Capital Lease” means, for any Person, any lease of any Property (whether real, personal or mixed) by that Person as lessee which, in accordance with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person.

“Cash Flow Sweep Period” has the meaning set forth in the Existing Property Loan Agreement.

“Cash Flow Sweep Trigger Event” has the meaning set forth in the Existing Property Loan Agreement.

“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, state and local analogs, and all rules and regulations and requirements thereunder in each case as now or hereafter in effect.

“Closing Date” means the date on which this Agreement becomes effective following satisfaction of the conditions in Section 3.01 or such other date as may be agreed upon by the Borrower and the Administrative Agent.

“Code” means the Internal Revenue Code of 1986, as amended, and any successor statute.

“Commitment” means, with respect to any Lender, the amount set opposite such Lender’s name on Schedule 1.01(a) as its Commitment, or if such Lender has entered into any Assignment and Acceptance, the amount set forth for such Lender as its Commitment in the Register maintained by the Administrative Agent pursuant to Section 11.06(c).

“Compliance Certificate” means a certificate of the Borrower in substantially the form of the attached Exhibit C.

“Consolidated” refers, with respect to the Borrower, to the consolidation of the accounts of the Borrower with the Borrower’s Subsidiaries and, with respect to the Parent, to the consolidation of the accounts of the Parent with the Parent’s Subsidiaries (including the Borrower and its Subsidiaries), in each case, as applicable, in accordance with GAAP.

“Consolidated Total Book Value” means, at any time the same is to be determined, the aggregate book value of all assets that would appear on the balance sheet of the Parent and the Parent’s Subsidiaries determined on a Consolidated basis in accordance with GAAP, plus the aggregate book value of the accumulated depreciation of such assets determined on a Consolidated basis in accordance with GAAP.

“Control Percentage” means, with respect to any Person, the percentage of the outstanding capital stock of such Person having ordinary voting power which gives the direct or indirect holder of such stock the power to elect a majority of the board of directors (or the equivalent) of such Person.

“Controlled Group” means all members of a controlled group of corporations and all trades (whether or not incorporated) under common control which, together with the Parent and the Borrower, are treated as a single employer under Section 414 of the Code.

“Credit Documents” means this Agreement, the Notes, the Guaranties, and each other agreement, instrument or document executed by the Borrower, any of its Subsidiaries or the Parent at any time in connection with this Agreement.

“Damages” means, as to any Person, any and all liabilities, obligations, losses, demands, damages, penalties, assessments, actions, causes of action, judgments, proceedings, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including reasonable attorneys’ fees and other costs of defense and/or enforcement whether or not suit is brought), fines, charges, fees, settlement costs and disbursements actually imposed on, or actually incurred by, such party, whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise; provided, however, that “Damages” shall not include special, consequential or punitive damages, except to the extent actually imposed upon the Administrative Agent or a Lender by one or more third parties.

“Default” means (a) an Event of Default or (b) any event or condition which with notice or lapse of time or both would, unless cured or waived, become an Event of Default.

“Disqualified Stock” means any preferred stock that, by its terms (or by the terms of any security or other equity interest to which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder thereof, in whole or in part (other than (i) solely for Stock and Stock Equivalents that is not Disqualified Stock and cash in lieu of fractional shares or (ii) as a result of a change of control or similar event so long as any rights of the holders thereof upon the occurrence of a change of control shall be subject to the prior repayment in full of the Borrowing and all other Obligations that are accrued and payable), or (c) is or becomes convertible into or exchangeable for Indebtedness, in each case, prior to the Maturity Date.

“Dollars” and “$” means lawful money of the United States of America.

“Domestic Lending Office” means, with respect to any Lender, the office of such Lender specified as such Lender may from time to time specify to the Borrower and the Administrative Agent.

“DSCR” means, with respect to any Secured Non-Recourse Indebtedness to be incurred or assumed by a Subsidiary or a Joint Venture formed or acquired after the Closing Date to finance one or more Future Properties or Existing Carve-Out Properties, as of any date of determination, the quotient obtained by dividing (i) the projected stabilized net operating income for such Future Properties or Existing Carve-Out Properties for the immediately succeeding 12-month period as estimated in good faith by the Borrower in a manner consistent with how it accounts for its other redevelopment projects, divided by (ii) the aggregate actual amount of scheduled debt service (including interest and amortization, if applicable) for the 12-month period following such date of determination to be payable under such Secured Non-Recourse Indebtedness as of such date of determination.

“Environment” or “Environmental” shall have the meanings set forth in 42 U.S.C. § 9601(8), as amended.

“Environmental Claim” means any third party (including governmental agencies and employees) action, lawsuit, claim, demand, regulatory action or proceeding, order, decree, consent agreement or notice of potential or actual responsibility or violation (including claims or proceedings under the Occupational Safety and Health Acts or similar laws or requirements relating to health or safety of employees) which seeks to impose liability under any Environmental Law.

“Environmental Law” means all Legal Requirements arising from, relating to, or in connection with the Environment, health, or safety, including without limitation, CERCLA, relating to (a) pollution, contamination, injury, destruction, loss, protection, cleanup, reclamation or restoration of the air, surface water, groundwater, land surface or subsurface strata, or other natural resources; (b) solid, gaseous or liquid waste generation, treatment, processing, recycling, reclamation, cleanup, storage, disposal or transportation; (c) exposure to pollutants, contaminants, hazardous, medical, infectious, or toxic substances, materials or wastes; (d) the safety or health of employees; or (e) the manufacture, processing, handling, transportation, distribution in commerce, use, storage or disposal of hazardous, medical, infectious, or toxic substances, materials or wastes.

“Environmental Permit” means any permit, license, order, approval or other authorization under Environmental Law.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

“Event of Default” has the meaning set forth in Section 8.01.

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.

“Excluded Subsidiary” means:

“Excluded Taxes” means any of the following Taxes required to be withheld or deducted from a payment hereunder or under any Credit Document (i) in the case of each Lender, and the Administrative Agent, Taxes imposed on or measured by its net income, however denominated, franchise Taxes imposed on it by the jurisdiction under the laws of which such Lender or the Administrative Agent (as the case may be) is organized or any political subdivision of such jurisdiction or by the jurisdiction of such Lender’s Applicable Lending Office or any political subdivision of such jurisdiction, (ii)  any Taxes imposed pursuant to FATCA, and (iii) any United States federal withholding Tax imposed on amounts payable to or for the account of any Lender or the Administrative Agent with respect to an applicable interest in an Advance or Commitment pursuant to a law in effect on the date on which such Lender or the Administrative Agent acquires such interest in the Advance or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.12) or designates a new Applicable Lending Office, except in each case to the extent that, pursuant to Section 2.11(a) or Section 2.11(c), amounts with respect to such Taxes were payable either to such Lender’s or the Administrative Agent’s assignor immediately before such Person became a party hereto or to such Lender immediately before it changed its Applicable Lending Office.

“Existing Carve-Out Property” has the meaning set forth in Section 6.05(b)(ii)(A).

“Existing Loan Agreement” means, collectively, the Existing Property Loan Agreement and the Existing Mezzanine Loan Agreement.

“Existing Mezzanine Loan Agreement” means that certain Mezzanine Loan Agreement, dated as of July 7, 2015, by and among Seritage SRS Mezzanine Finance LLC and Seritage KMT Mezzanine Finance LLC, as borrowers, and JPMorgan Chase Bank, National Association and H/2 Special Opportunities III Corp, as lenders, as amended by that certain Omnibus Amendment, dated as of September 28, 2015, and that certain Second Amendment to Loan Agreement, dated as of November 8, 2016, and as the same may be further amended or extended.

“Existing Properties” means, collectively the Land and the Improvements owned by the Borrower and its Subsidiaries as of the Closing Date, as listed on Schedule 1.01(b) and “Existing Property” means any of such properties.

“Existing Property Loan Agreement” means that certain Loan Agreement, dated as of July 7, 2015, by and among Seritage SRS Finance LLC and Seritage KMT Finance LLC, as borrowers, Seritage GS Holdings LLC, Seritage SPS Holdings LLC and Seritage MS Holdings LLC as JV pledgors and JPMorgan Chase Bank, National Association and H/2 SO III Funding I LLC as lenders, as amended by that certain Omnibus Amendment, dated as of September 28, 2015, and that certain Second Amendment to Loan Agreement, dated as of November 8, 2016, and as the same may be further amended or extended.

“Existing SEC Filing” has the meaning set forth in Section 4.07.

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities entered into in connection with the implementation of the foregoing.

“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for any such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

“Federal Reserve Board” means the Board of Governors of the Federal Reserve System or any of its successors.

“Fiscal Quarter” means each of the three‑month periods ending on March 31, June 30, September 30 and December 31.

“Fiscal Year” means the twelve‑month period ending on December 31.

“Future Property” means any Land and/or Improvements which the Borrower or any Subsidiary of the Borrower acquires after the Closing Date (and, for the avoidance of doubt, excluding the Existing Properties), and “Future Properties” means all of such properties.

“GAAP” means United States generally accepted accounting principles as in effect from time to time, applied on a basis consistent with the requirements of Section 1.03.

“Governmental Authority” means any foreign governmental authority, the United States of America, any state of the United States of America and any subdivision of any of the foregoing, and any agency, department, commission, board, authority or instrumentality, bureau or court having jurisdiction over any Lender, the Parent, the Borrower, any Subsidiaries of the Borrower or the Parent.

“Guaranty” means that certain Guaranty effective the date hereof executed by the Parent and the Borrower, evidencing the joint and several guaranty by the signatories thereto of the Obligations of the Borrower in respect of the Credit Documents, in substantially the form of the attached Exhibit D, and any supplement executed by an entity added as a Guarantor in accordance with Section 5.09, as any of such agreement may be amended, restated, supplemented or otherwise modified from time to time.

“Hazardous Substance” means the substances identified as such pursuant to CERCLA and those regulated under any other Environmental Law, including without limitation, pollutants, contaminants, petroleum, petroleum products, radio nuclides, radioactive materials and medical and infectious waste.

“Hazardous Waste” means the substances regulated as such pursuant to any Environmental Law.

“Improvements” means, with respect to any Property, all buildings, structures, fixtures, tenant improvements and other improvements of every kind and description now or hereafter located in or on or attached to the Land for such Property; and all additions and betterments thereto and all renewals, substitutions and replacements thereof.

“Incremental Advances” has the meaning set forth in Section 2.04(a).

“Incremental Amendment” has the meaning set forth in Section 2.04(e).

“Incremental Facility” has the meaning set forth in Section 2.04(a).

“Indebtedness” means (without duplication), at any time and with respect to any Person, (a) indebtedness of such Person for borrowed money (whether by loan or the issuance and sale of debt securities) or for the deferred purchase price of property or services purchased (other than amounts constituting trade payables, accruals or bank drafts arising in the ordinary course of business); (b) indebtedness of others in the amount which such Person has directly or indirectly assumed or guaranteed or otherwise provided credit support therefor or for which such Person is liable as a partner of such Person; (c) indebtedness of others in the amount secured by a Lien on assets of such Person, whether or not such Person shall have assumed such indebtedness; (d) obligations of such Person in respect of letters of credit, acceptance facilities, or drafts or similar instruments issued or accepted by banks and other financial institutions for the account of such Person (other than trade payables or bank drafts arising in the ordinary course); (e) obligations of such Person under Capital Leases; (f) obligations under interest rate swap agreements, interest rate cap agreements, interest rate collar agreements or other similar agreements or arrangements designed to protect against fluctuations in interest rates; and (g) all obligations of such Person in respect of Disqualified Stock.

“Indemnified Parties” has the meaning set forth in Section 11.07(a).

“Indemnified Taxes” means all Taxes imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Credit Document, other than Other Taxes and Excluded Taxes.

“Interest Payment Date” means, with respect to each Interest Period, the fifteenth day of the calendar month in which such Interest Period ends.  Whenever an Interest Payment Date is not a Business Day, the entire amount that would have been due and payable on such Interest Payment Date shall instead be due and payable on the immediately succeeding Business Day.

“Interest Period” means (i) the period from the Closing Date to the fifteenth day of the immediately succeeding calendar month and (ii) each subsequent period from the day immediately following the end of the immediately prior Interest Period to the fifteenth day of the immediately succeeding calendar month (or such earlier date on which the Advances are repaid in full).  The initial Interest Period shall be the period commencing on the Closing Date and ending on January 15, 2018.

“Interest Rate” means 6.75% per annum.

“Interest Rate Agreements” means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other similar agreement or arrangement designed to protect the Borrower, the Parent or any of their respective Subsidiaries against fluctuations in interest rates.

“Investment” means, with respect to any Person, (a) any loan or advance to any other Person, (b) the purchase or other acquisition of any Stock, Stock Equivalents, other equity interest, obligations or other securities of, (i) any other Person, or (ii) all or substantially all of the assets of any other Person, or (iii) all or substantially any Future Property or all of the assets constituting the business of a division, branch or other unit operation of any other Person, or (c) any joint venture or partnership with, or any capital contribution to, or other investment in, any other Person.  Except as expressly provided otherwise, for purposes of determining compliance with any covenant contained in a Credit Document, the amount of any Investment made by any Person shall be the amount actually invested net of any actual returns of any such Investment received by such Person, without adjustment for subsequent increases or decreases in the value of such Investment.

“Joint Venture Investment” means the ownership interest of the Borrower or any of its Subsidiaries in a Joint Venture.

“Joint Venture” means any Person (which may be a corporation, limited liability company or limited partnership), other than a Subsidiary, in which the Parent, the Borrower or any of their respective Subsidiaries beneficially owns any Stock, Stock Equivalents or other equity interest.  As of the Closing Date, the Joint Ventures are set forth on Schedule 4.01(b).

“Land” means real property together with all rights, title and interests appurtenant to such real property, including without limitation all rights, title and interests to (a) all strips and gores within or adjoining such property, (b) the streets, roads, sidewalks, alleys, and ways adjacent thereto, (c) all of the tenements, hereditaments, easements, reciprocal easement agreements, rights‑of‑way and other rights, privileges and appurtenances thereunto belonging or in any way pertaining thereto, (d) all reversions and remainders, (e) all air space rights, and all water, sewer and wastewater rights, (f) all mineral, oil, gas, hydrocarbon substances and other rights to produce or share in the production of anything related to such property, and (g) all other appurtenances appurtenant to such property, including without limitation, any now or hereafter belonging or in anywise appertaining thereto.

“Legal Requirement” means any law, statute, ordinance, decree, requirement, order, judgment, rule, regulation (or official interpretation of any of the foregoing) of, and the terms of any license or permit issued by, any Governmental Authority.

“Leverage Ratio” means, as of any date, a ratio equal to (x) the total debt of Parent as of such date to (y) the total assets of Parent as of such date, determined on a Consolidated basis in accordance with GAAP.

“Lien” means any mortgage, lien, pledge, charge, deed of trust, security interest, encumbrance or other type of preferential arrangement to secure or provide for the payment of any obligation of any Person, whether arising by contract, operation of law or otherwise (including, without limitation, the interest of a vendor or lessor under any conditional sale agreement, Capital Lease or other title retention agreement).

“Liquid Investments” means cash and the following:

“LTV” means, with respect to any Secured Non-Recourse Indebtedness to be incurred or assumed by a Subsidiary or a Joint Venture formed or acquired after the Closing Date to finance one or more Future Properties or Existing Carve-Out Properties, as of any date of determination, a fraction, expressed as a percentage, the numerator of which is (x) the sum of the aggregate principal amount (including any undisbursed funds) of all such Secured Non-Recourse Indebtedness incurred or assumed by such Subsidiary or Joint Venture to finance such Future Properties or Existing Carve-Out Properties, as of such date of determination, and the denominator of which is (y) the aggregate fair market value of such Future Properties or Existing Carve-Out Properties, determined pursuant to an Appraisal of such Future Properties or Existing Carve-Out Properties obtained by the Borrower and reasonably satisfactory to Administrative Agent dated not more than one month prior to such date of determination.  The foregoing Appraisal shall be obtained at Borrower’s sole cost and expense.

“Material Adverse Change” shall mean (a) a material adverse change in the business, financial condition or results of operations of the Borrower, the Parent and their respective Subsidiaries, taken as a whole, since the date of the most recent financial statements of the Parent delivered to the Lenders pursuant to Section 5.05(b), (b) a material adverse change affecting the validity or enforceability of this Agreement or any Credit Document as against the Borrower or any Guarantor or (c) a material adverse change affecting the ability of the Borrower, the Parent and the Guarantors, taken as a whole, to perform their obligations under this Agreement or the other Credit Document; provided, however, that none of the occurrence or continuation of any Cash Flow Sweep Trigger Event or the existence of a Cash Flow Sweep Period shall in and of themselves constitute a Material Adverse Change.

“Maturity Date” means the earliest of (i) December 31, 2018 and (ii) the date on which the Parent, Borrower or any of their Subsidiaries repays the Indebtedness outstanding under the Existing Loan Agreement in full.

“Maximum Rate” means the maximum non-usurious interest rate under applicable law.

“Minimum Net Worth” means $1,000,000,000.

“Moody’s” means ▇▇▇▇▇’▇ Investor Service Inc., and any successor thereto.

“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which the Parent, the Borrower or any member of a Controlled Group is making or accruing an obligation to make contributions.

“Net Worth” means, for any Person, as of any date, total assets of such Person as of such date, minus total liabilities as of such date, in each case determined on a Consolidated basis and in accordance with GAAP.

“Non-Recourse Carve-Out Obligations” has the meaning set forth in the definition of Secured Non-Recourse Indebtedness.

“Note” means a promissory note of the Borrower payable to the order of any Lender, in substantially the form of the attached Exhibit A, evidencing indebtedness of the Borrower to such Lender resulting from an Advance owing to such Lender, and

“Notes” means all of such promissory notes.

“Notice of Borrowing” means a notice of borrowing in the form of the attached Exhibit E signed by a Responsible Officer of the Borrower.

“Obligations” means all Advances and other amounts payable by the Borrower to the Administrative Agent or the Lenders under the Credit Documents, including all interest due on all Advances, fees and other amounts then due under the Credit Documents.

“OFAC” means the Office of Foreign Asset Control of the Department of the Treasury of the United States.

“Other Taxes” has the meaning set forth in Section 2.11(b).

“Parent Capital Stock” means (i) the Parent Common Stock, (ii) the Series A Cumulative Redeemable Preferred Shares of beneficial interest of Parent, par value $0.01 per share (the “Parent Preferred Stock”) and (iii) any other shares of Stock or Stock Equivalents of the Parent (other than Disqualified Stock).

“Parent Common Stock” means the Class A common shares of beneficial interest of Parent, par value $.01 per share.

“Participant Register” has the meaning set forth in Section 11.06(d).

“Patriot Act” has the meaning set forth in Section 3.01(a)(viii).

“PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.

“Permitted Encumbrances” means the Liens permitted to exist pursuant to Section 6.01.

“Permitted Hazardous Substances” means (a) Hazardous Substances, petroleum and petroleum products which are (i) used in the ordinary course of business and in typical quantities for a retail property and (ii) generated, used and disposed of in accordance with all Legal Requirements and good retail industry practice and (b) non-friable asbestos to the extent (i) that no applicable Legal Requirements require removal of such asbestos from the Property and (ii) such asbestos is encapsulated in accordance with all applicable Legal Requirements and such reasonable operations and maintenance program as may be required by the Administrative Agent.

“Person” means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, limited liability company, joint venture or other entity, or a government or any political subdivision or agency thereof or any trustee, receiver, custodian or similar official.

“Personal Property” for any Property means all fixtures, furnishings, equipment, furniture, inventory and other personal property of every kind owned by Borrower, Parent or any of their Subsidiaries, whether now existing or hereafter acquired, tangible and intangible, now or hereafter located on or about such Property, and used or to be used in the future in connection with the operation of such Property.

“Plan” means an employee benefit plan (other than a Multiemployer Plan) maintained for employees of the Parent, the Borrower or any member of a Controlled Group and covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code.

“Prescribed Forms” means such duly executed form(s) or statement(s), and in such number of copies, which may, from time to time, be prescribed by law and which, pursuant to applicable provisions of (a) an income tax treaty between the United States and the country of residence of the Lender providing the form(s) or statement(s), (b) the Code, or (c) any applicable rule or regulation under the Code, permit the Borrower to make payments hereunder for the account of such Lender free of deduction or withholding of income or similar Taxes (except for any deduction or withholding of income or similar Taxes as a result of any change in or in the interpretation of any such treaty, the Code or any such rule or regulation).

“Pro Rata Share” means, at any time with respect to any Lender, the ratio (expressed as a percentage) of such Lender’s outstanding Advance at such time to the aggregate outstanding Advances of all the Lenders at such time.

“Property” means, individually or collectively, as the context may require, the Existing Properties and all Future Properties.

“Property Material Adverse Effect” means, as to any Property of the Borrower and its Subsidiaries, a material adverse effect upon (i) the Borrower’s or such Subsidiary’s title to such Property, or (ii) the value, use or enjoyment of such Property or the operation or occupancy thereof to the Borrower and its Subsidiaries.

“Property Owner” for any Existing Property or Future Property, means the Person who owns fee or leasehold title interest (as applicable) in and to such Property.

“Qualified Ground Lease” means, each of the ground leases or ground subleases (including those set forth on Schedule 1.01(c) hereto) (a) which is a direct ground lease or ground sublease granted by the fee owner of real property or a master ground lessee from such fee owner, (b) which may be transferred and/or assigned without the consent of the lessor (or as to which the lease expressly provides that (i) such lease may be transferred and/or assigned with the consent of the lessor and (ii) such consent shall not be unreasonably withheld or delayed) or subject to certain reasonable pre-defined requirements, (c) which has a remaining term (including any renewal terms exercisable at the sole option of the lessee) of at least twenty (20) years, (d) under which no material default has occurred and is continuing, (e) with respect to which a Lien may be granted without the consent of the lessor (but subject to customary requirements regarding the nature of the holder of such Lien and prior notice to the lessor), (f) which contains customary and reasonable lender protection provisions, including, without limitation, provisions to the effect that (i) the lessor shall notify any holder of a Lien in such lease of the occurrence of any default by the lessee under such lease and shall afford such holder the option to cure such default, and (ii) in the event that such lease is terminated, such holder shall have the option to enter into a new lease having terms substantially identical to those contained in the terminated lease and (g) which otherwise contains no non‑customary terms that are material and adverse to the lessee.

“Register” has the meaning set forth in paragraph (c) of Section 11.06.

“REIT” means a real estate investment trust under Sections 856‑860 of the Code.

“Release” shall have the meaning set forth in CERCLA or under any other Environmental Law.

“Reportable Event” means any of the events set forth in Section 4043(b) of ERISA.

“Required Lenders” means, at any time, Lenders holding at least 51% of the aggregate unpaid principal amount of the Advances at such time.

“Response” shall have the meaning set forth in CERCLA or under any other Environmental Law.

“Responsible Officer” means the Chief Executive Officer, President, Executive Vice President, Chief Financial Officer.

“Restricted Payment” means, with respect to any Person, (a) any direct or indirect payment, prepayment, redemption, purchase, or deposit of funds or Property for the payment (including any sinking fund or defeasance), prepayment, redemption or purchase of Indebtedness of such Person or its Subsidiaries incurred in violation of this Agreement, or (b) the making by such Person of any dividends or other distributions (in cash, property, or otherwise) on, or payment for the purchase, redemption or other acquisition of, any shares of any capital stock, any limited liability company interests or any partnership interests of such Person, other than dividends or distributions payable in such Person’s stock, limited liability company interests or any partnership interests.

“S&P” means Standard & Poor’s Financial Services LLC, a division of McGraw‑Hill Financial, Inc., and any successor thereto.

“Sanctions” has the meaning set forth in Section 4.22.

“Secured Non‑Recourse Indebtedness” of any Person means all Indebtedness of such Person with respect to which recourse for payment is limited to specific assets encumbered by a Lien securing such Indebtedness; provided, however, that personal recourse of a holder of Indebtedness against any obligor with respect thereto for fraud, misrepresentation, misapplication of cash, non‑payment of real estate taxes or ground lease rent, waste, non‑permitted transfers or liens, bankruptcy, violation of special purpose covenants and other circumstances customarily excluded from non‑recourse provisions in non‑recourse financing of real estate (such recourse obligations being referred to herein as “Non-Recourse Carve-Out Obligations”) shall not, by itself, prevent any Indebtedness from being characterized as Secured Non‑Recourse Indebtedness, provided further that if a personal recourse claim is made in connection therewith, such claim shall not constitute Secured Non‑Recourse Indebtedness for the purposes of this Agreement.

“Secured Recourse Indebtedness” means, with respect to any Subsidiary or Joint Venture formed or acquired after the Closing Date, all Indebtedness of such Person (i) with respect to which recourse for payment is not limited to specific assets encumbered by a Lien securing such Indebtedness, but is instead recourse in whole or in part to such Person, (ii) which is incurred or assumed to finance the acquisition, construction, development or refurbishment of one or more Existing Carve-Out Properties acquired by such Subsidiary or Joint Venture in compliance with Section 6.07 and (iii) the obligations in respect of which may be secured by a Lien on some or all assets of such Person.

“SHLD Master Lease” means that certain Master Lease and side letter entered into in connection therewith, each dated as of July 7, 2015, by and among Seritage SRC Finance LLC and Seritage KMT Finance LLC, as Landlord, and Kmart Operations, LLC and Sears Operations, LLC, as Tenant, as the same may be amended, modified, restated or supplemented from time to time in accordance with this Agreement.

“Stock” means shares of capital stock, beneficial or partnership interests, participations or other equivalents (regardless of how designated) of or in a corporation or equivalent entity, whether voting or non‑voting, and includes, without limitation, common stock and preferred stock.

“Stock Equivalents” means all securities (other than Stock) convertible into or exchangeable for Stock and all warrants, options or other rights to purchase or subscribe for any stock, whether or not presently convertible, exchangeable or exercisable.

“Subsidiary” of a Person means any corporation, association, partnership or other business entity of which more than 50% of the outstanding shares of capital stock (or other equivalent interests) having by the terms thereof ordinary voting power under ordinary circumstances to elect a majority of the board of directors or Persons performing similar functions (or, if there are no such directors or Persons, having general voting power) of such entity (irrespective of whether at the time capital stock (or other equivalent interests) of any other class or classes of such entity shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more Subsidiaries of such Person or by one or more Subsidiaries of such Person.  For the avoidance of doubt, the Joint Ventures are not Subsidiaries.

“Termination Event” means (a) the occurrence of a Reportable Event with respect to a Plan, as described in Section 4043 of ERISA and the regulations issued thereunder (other than a Reportable Event not subject to the provision for 30‑day notice to the PBGC under such regulations), (b) the withdrawal of the Parent, the Borrower or any of a Controlled Group from a Plan during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, (c) the giving of a notice of intent to terminate a Plan under Section 4041(c) of ERISA, (d) the institution of proceedings to terminate a Plan by the PBGC, or (e) any other event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan.

“Total Commitments” means $145,000,000.

(a)      Unless otherwise indicated, all financial statements of the Borrower and the Parent, all calculations for compliance with covenants in this Agreement, and all calculations of any amounts to be calculated under the definitions in Section 1.01 shall be based upon the Consolidated accounts of the Borrower, the Parent and their respective Subsidiaries (as applicable) in accordance with GAAP.

ARTICLE II

THE ADVANCES

ARTICLE III

CONDITIONS OF LENDING

(i) an executed copy of the Guaranty;

(ii) a certificate from the Chief Executive Officer, President, Chief Financial Officer or Executive Vice President of the Parent on behalf of the Borrower dated as of the Closing Date stating that as of the Closing Date (A) all representations and warranties of the Borrower set forth in this Agreement and the Credit Documents are true and correct in all material respects (except to the extent that any representation or warranty that is qualified by materiality shall be true and correct in all respects); provided, to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; and (B) no Default has occurred and is continuing;

(iii) a certificate of the Secretary of the Borrower dated as of the Closing Date certifying as of the Closing Date to the extent applicable (A) the names and true signatures of officers or authorized representatives of the Borrower authorized to sign the Credit Documents, (B) resolutions of the board of trustees of Parent, in its capacity as the general partner of the Borrower, approving the transactions herein contemplated and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Credit Documents and each Credit Document to which it is or is to be a party, (C) a true and correct copy of the organizational documents of Borrower, and (D) a true and correct copy of the partnership agreement of the Borrower;

(iv) a certificate of the Secretary of the Parent dated as of the Closing Date certifying as of the Closing Date (A) the names and true signatures of officers or authorized representatives of the Parent authorized to sign the Credit Documents, (B) resolutions of the board of trustees of Parent approving the transactions herein contemplated and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Credit Documents and each Credit Document to which it is or is to be a party, (C) a true and correct copy of the organizational documents of Parent, (D) a true and correct copy of the bylaws of the Parent, and (E) that the Parent owns 100% of the general partner interests in the Borrower;

(v) a copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of incorporation, organization or formation of each of the Borrower and the Parent, dated reasonably near (but prior to) the Closing Date, certifying (A) as to a true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Person, and each amendment thereto on file in such Secretary’s office, and (B) that such Person is duly incorporated, organized or formed and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation;

(vi) a copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any of the Parent and the Borrower owns or leases material property or in which the conduct of its business requires it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably be expected to result in a Material Adverse Change, dated reasonably near (but prior to) the Closing Date, stating with respect to each such Person that such Person is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate;

(vii) (A) a favorable written opinion of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special counsel for the Borrower and the Parent in a form reasonably acceptable to the Administrative Agent, dated as of the Closing Date and with such changes as the Administrative Agent may approve, and (B) a favorable opinion of ▇▇▇▇▇▇▇ LLP, as special counsel for Parent in a form reasonably acceptable to the Administrative Agent, dated as of the Closing Date and with such changes as the Administrative Agent may approve;

(viii) any information or materials reasonably required by the Administrative Agent or any Lender in order to assist the Administrative Agent or such Lender in maintaining compliance with (i) the USA Patriot Act (Title III of Pub.  L. 107‑56 (signed into law October 26, 2001)) (the “Patriot Act”) and (ii) any applicable “know your customer” or similar rules and regulations, in each case, reasonably requested by such Lender in writing at least ten Business Days prior to the Closing Date; and

(ix) a Compliance Certificate duly executed by a Responsible Officer of the Parent, dated the Closing Date that the Parent is in compliance with the covenants contained in Article VII on such date.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

The Parent and the Borrower represents and warrants as follows:

ARTICLE V

AFFIRMATIVE COVENANTS

So long as any Obligation shall remain outstanding or any Lender shall have any Commitment hereunder, unless the Administrative Agent shall otherwise consent in writing (subject to the provisions of Section 11.01), the Parent and the Borrower agree to comply with the following covenants.

Section 5.03      Payment of Taxes, Etc.  The Borrower and the Parent will file all federal and state income Tax returns and other material Tax returns and reports that are required to be filed and pay or discharge, and cause each of their Subsidiaries to pay or discharge, in each case, (a) all taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or Property that are material in amount, prior to the date on which penalties attach thereto and (b) all lawful claims that are material in amount which, if unpaid, might by Legal Requirement become a Lien upon its property (other than (i) any Taxes the amount or validity of which is being contested in good faith and by appropriate proceedings for which appropriate reserves have been established in accordance with GAAP, (ii) such charge or claim which does not constitute and is not secured by any ▇▇▇▇▇▇ ▇▇▇▇ on any portion of any Property and no portion of any Property is in jeopardy of being sold, forfeited or lost during or as a result of such contest, (iii) such charge or claim which would not subject either the Administrative Agent or any Lender to any civil fine or penalty or criminal fine or penalty, in each case as a result of non-payment of such charge or claim and (iv) where the failure to do so could not reasonably be expected to have a Material Adverse Change).

Documents required to be delivered (A) pursuant to Section 5.05(d) shall be deemed to have been furnished on the date on which the Administrative Agent receives notice that the Borrower or Parent has filed such document with the SEC and is available on the ▇▇▇▇▇ website on the Internet at ▇▇▇.▇▇▇.▇▇▇ or any successor government website that is freely and readily available to the Administrative Agent and the Lenders without charge and (B) pursuant to Sections 5.05(a) through (d) (to the extent any such documents are included in materials not otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower or Parent posts such documents, or provides a link thereto on its website on the Internet; or (ii) on which such documents are posted on the Borrower’s or Parent’s behalf on an Internet or Intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that the Borrower shall notify (which may be by electronic mail) the Administrative Agent of the posting of any such documents and, upon request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.

ARTICLE VI

NEGATIVE COVENANTS

So long as any Obligations are outstanding (other than contingent indemnification or reimbursement obligations for which no claim has been made), the Borrower agrees, unless the Administrative Agent shall otherwise consent in writing (subject to the provisions of Section 11.01), to comply with the following covenants.

Notwithstanding the foregoing, but subject to the following sentence, if a Default or Event of Default shall have occurred and be continuing, Parent and Borrower shall (i) only be permitted to make the Restricted Payments permitted under Section 6.04(g) or Section 6.04(h) and (ii) not make any other Restricted Payment.  If a Default or Event of Default specified in Section 8.1(a) or Section 8.1(f) of this Agreement shall have occurred and be continuing, or if as a result of the occurrence of any other Event of Default the Obligations have been accelerated pursuant to Section 8.2 of this Agreement, the Parent shall not, and shall not permit any of its Subsidiaries to, make any Restricted Payments to any Person whatsoever other than to the Borrower or any of its Subsidiaries.

Notwithstanding the foregoing, neither the Borrower, nor the Parent, nor their respective Subsidiaries shall acquire a Future Property or otherwise make an Investment which would (a) cause a Default, (b) cause or result in the Borrower or the Parent failing to comply with any of the financial covenants contained herein, or (c) cause the aggregate amount of all Investments for (i) all Future Properties located outside the United States and (ii) all Investments made pursuant to Section 6.07(d) which are located outside the United States which has at least 50% of its assets located outside the United States to exceed 10% of the Consolidated Total Book Value.

provided, however, that so long as no Default or Event of Default has occurred and is continuing, (x) such terminations, modifications or amendments of a Qualified Ground Lease or any other material agreement shall be permitted so long as they could not reasonably be expected to (i) cause a Material Adverse Change, or (ii) impair or otherwise adversely affect in any material respect the interests or rights of the Administrative Agent or any Lender, in each case after taking into account the effect of any agreements that supplement or serve to replace, in whole or in part, such Qualified Ground Leases or other material agreements and (y) the consent of the Administrative Agent shall not be required for modifications of the SHLD Master Lease affecting recapture and other rights with respect to individual Properties only.  Any termination, modification or amendment prohibited under this Section 6.12 shall, to the extent permitted by applicable law, be void and of no force and effect.

ARTICLE VII

FINANCIAL COVENANTS

So long as any Obligations are outstanding, or any Lender shall have any Commitment hereunder, unless the Administrative Agent shall otherwise consent in writing (subject to the provisions of Section 11.01), the Borrower agrees to comply and cause the Parent to comply with the following covenants.

ARTICLE VIII

EVENTS OF DEFAULT;  REMEDIES

ARTICLE IX

[RESERVED]

ARTICLE X

AGENCY PROVISIONS

ARTICLE XI

MISCELLANEOUS

Any amendment to this Agreement, including a covenant of the Parent or any of its Subsidiaries or amendment to a definition, shall require the Borrower’s written consent.

If to Administrative Agent or Initial Lenders:

 

c/o ESL Investments, Inc.

▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇

▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

Attention:  ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, CEO

 

and

 

ESL Investments, Inc.

▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇

▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

Attention: ▇▇▇▇▇▇ ▇. Talisman

Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇

 

and

 

Empyrean Investments, LLC

c/o Empyrean Capital Partners, LP

▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇

▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

Attention: General Counsel

Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇

 

with a copy (which shall not constitute notice) to:

 

▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇

▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇

▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇

Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇

 

If to Borrower:

 

c/o Seritage Growth Properties, L.P.

▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇^▇▇ ▇▇▇▇▇

▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇

Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇

Executive Vice President & General Counsel
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇

 

and

 

▇▇▇▇▇ ▇▇▇▇▇▇▇

Executive Vice President & Chief Financial Officer
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇

 

with a copy (which shall not constitute notice) to:

 

Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP

▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: F. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇

Email: ▇.▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇

 

As to each other party (including any Lender following the Closing Date), at such address and email address designated by such party in a written notice to the other parties and Administrative Agent.

 

[Balance of page intentionally left blank]

The parties hereto are executing this Agreement as of the date first above written.

 

 

	ADMINISTRATIVE AGENT:
	JPP, LLC, a Delaware limited liability company
	By:	/s/  ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
		Name:   ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
		Title:     Authorized Signatory