Exhibit 99.1
EXECUTION VERSION
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RESTORATION HARDWARE, INC.
THE MICHAELS FURNITURE COMPANY, INC.
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SEVENTH AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
Dated: November 26, 2002
$72,000,000
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THE CIT GROUP/BUSINESS CREDIT, INC.
as Co-Administrative Agent
FLEET CAPITAL CORPORATION
Individually and as Agent for any Lender which is
or becomes a Party hereto
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LOAN AND SECURITY AGREEMENT
THIS SEVENTH AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT is
made as of this 26th day of November, 2002, by and among FLEET CAPITAL
CORPORATION ("Fleet"), a Rhode Island corporation with an office at 00000
Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxx, Xxxxxxxxxx 00000, individually as a
Lender and as Agent ("Agent") for itself and any other financial institution
which is or becomes a party hereto (each such financial institution, including
Fleet, is referred to hereinafter individually as a "Lender" and collectively as
the "Lenders"), THE CIT GROUP/BUSINESS CREDIT, INC., with an office at 000 Xxxxx
Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, individually as a Lender
and as Co-Administrative Agent, LENDERS, RESTORATION HARDWARE, INC., a Delaware
corporation ("Lead Borrower") and THE MICHAELS FURNITURE COMPANY, INC., a
California corporation ("Michaels," together with the Lead Borrower, the
"Borrowers") both with chief executive offices and principal places of business
at 00 Xxxx Xxxx, Xxxxx X, Xxxxx Xxxxxx, Xxxxxxxxxx 00000. Capitalized terms used
in this Agreement have the meanings assigned to them in Appendix A, General
Definitions. Accounting terms not otherwise specifically defined herein shall be
construed in accordance with GAAP consistently applied.
SECTION 1. CREDIT FACILITY
Subject to the terms and conditions of, and in reliance upon the
representations and warranties made in, this Agreement and the other Loan
Documents, Lenders agree to make a Total Credit Facility of up to $72,000,000
available upon Borrowers' request therefor, as follows:
1.1 Revolving Credit Loans.
Each Lender agrees, severally and not jointly, for so long as no
Default or Event of Default exists, to make Revolving Credit Loans to Borrowers
from time to time during the period from the date hereof to but not including
the last day of the Term, as requested by Borrowers in the manner set forth in
subsection 3.1.1 hereof, up to a maximum principal amount at any time
outstanding equal to the lesser of (i) such Lender's Revolving Loan Commitment
minus the product of such Lender's Revolving Loan Percentage and the LC Amount
and (ii) the product of such Lender's Revolving Loan Percentage and an amount
equal to the Borrowing Base at such time minus the LC amount minus the then
aggregate of Availability Reserves, if any. The Revolving Credit Loans shall be
further evidenced by, and repayable in accordance with the terms of, the
Revolving Notes and shall be secured by all of the Collateral.
1.2 Overadvances.
Agent may make Revolving Credit Loans on behalf of Lenders at a time
when an Overadvance exists or would be caused by the making of such Revolving
Credit Loans on behalf of Lenders, where such Revolving Credit Loans (without
duplication) are either (a) Protective Advances or (b) are made when
Availability equals zero, made during the period August 1 through October 31 of
any calendar year and are not extant for more than sixty (60)
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consecutive days during any such period absent consent of Majority Lenders;
provided however, in no event shall (x) the making of any Overadvance cause any
Lender to exceed that Lender's Revolving Loan Commitment, (y) the aggregate
outstanding amount of Overadvance exceed $5,000,000 at any one time and (z) the
aggregate amount of Protective Advances exceed 5% of the Borrowing Base. In each
case, after the expiration of such sixty (60) day period, no such event or
occurrence shall cause or constitute a waiver by any Lender of its right to
refuse to make any further Revolving Credit Loans at any time that an
Overadvance exists or would result therefrom. Agent may not (i) make Revolving
Credit Loans on behalf of Lenders under this subsection 1.2 to the extent such
Revolving Credit Loans would cause a Lender's share of the Revolving Credit
Loans to exceed such Lender's Revolving Loan Commitment minus such Lender's
Revolving Loan Percentage of the LC Amount or (ii) make Revolving Credit Loans
after the end of the Term.
1.3 Use of Proceeds.
The Revolving Credit Loans shall be used solely for (i) the
Borrowers' Capital Expenditures, (ii) for Borrowers' general operating capital
needs in a manner consistent with the provisions of this Agreement and all
applicable laws, and (iii) for other purposes permitted under this Agreement.
1.4 SwingLine Loans.
Revolving Credit Loans that are Base Rate Advances may be made by
SwingLine Lender (in the aggregate, the "SwingLine Loans") in accordance with
the procedures set forth in this Agreement for the making of Revolving Credit
Loans. The unpaid principal balance of the SwingLine Loans shall not at any one
time be in excess of $7,500,000 (which amount may be increased or decreased from
time to time, by reasonable advance notice by Agent to the Lead Borrower). The
aggregate unpaid principal balance of SwingLine Loans shall bear interest at the
rate applicable to Base Rate Advances. The SwingLine Loans shall be further
evidenced by, and repayable in accordance with the terms of, the SwingLine Notes
and shall be secured by all of the Collateral. In the event that, when a
Revolving Credit Loan is requested and the aggregate unpaid balance of the
SwingLine Loan is less than $7,500,000, then SwingLine Lender may advise Agent
that the SwingLine Lender has determined to include up to the amount of the
requested Revolving Credit Loan as part of the SwingLine Loan. In such event,
SwingLine Lender shall transfer the amount of the requested Revolving Credit
Loan to Agent.
The SwingLine Loan shall be converted to a Revolving Credit Loan in
which all Lenders participate at any time and from time to time (but not less
than on a weekly basis), by SwingLine Lender advising Agent that all of the
SwingLine Loan is to be converted to a Revolving Credit Loan in which all
Lenders participate. Agent will settle the SwingLine Loan the earlier of (a)
Wednesday of each week or (b) when the SwingLine Loan exceeds $7,500,000. Agent
shall advise each Lender of such conversion as if, and with the same effect as
if such conversion were the making of a Revolving Loan as provided in Section
1.1.
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1.5 Letters of Credit; LC Guaranties.
Agent agrees, for so long as no Default or Event of Default exists
and if requested by Borrowers, to (i) issue its, or cause to be issued by Bank
or another Affiliate of Agent, on the date requested by Borrowers, Letters of
Credit for the account of Borrowers (any such Letter of Credit or LC Guaranty,
at request of Borrower, may be for the benefit of a Borrower or any Subsidiary
of a Borrower) or (ii) execute LC Guaranties by which Bank, or another Affiliate
of Lender, on the date requested by Borrowers, shall guaranty the payment or
performance by a Borrower of its reimbursement obligations with respect to
Letters of Credit, provided (i) that the LC Amount shall not exceed $25,000,000
at any time, (ii) that the aggregate outstanding amount of usance Letters of
Credit (giving effect to the Letter of Credit whose issuance is requested) plus
the face amount of any outstanding bankers' acceptances arising out of drawings
under Letters of Credit shall not exceed $15,000,000 at any time and (iii) no
Letter of Credit shall be issued or LC Guaranty executed to the extent such
Letter of Credit or LC Guaranty would cause the sum of any Lender's Revolving
Credit Loans and such Lender's Revolving Loan Percentage of the LC Amount (after
giving effect to such Letter of Credit or LC Guaranty) to exceed the lesser of
(a) such Lender's Revolving Loan Commitment, or (b) the difference between the
Borrowing Base and the then aggregate of any Availability Reserves. No
documentary Letter of Credit or LC Guaranty of a documentary letter of credit
may have an expiration date that is more than 60 days after the date of issuance
thereof and if such documentary Letter of Credit is a usance Letter of Credit,
time drafts drawn thereunder shall be payable no later than 60 days after sight;
and no standby Letter of Credit or LC Guaranty of a standby letter of credit may
have an expiration date that is more than one year from the date of issuance
thereof. No Letter of Credit or LC Guaranty may have an expiration date that is
after 30 days prior to the last day of the Term, unless, in the case of a
documentary Letter of Credit or LC Guaranty with respect to a documentary Letter
of Credit, on the date such Letter of Credit or LC Guaranty is requested by
Borrowers, an amount equal to 105% of the face amount of such Letter of Credit
or LC Guaranty is deposited with Agent to be held as cash collateral, and such
later expiration date shall have been agreed to by, Agent, Bank or another
Affiliate of Agent, as applicable. Any such cash collateral shall be held by
Agent and applied by it as specified in Section 10.3.5. Notwithstanding anything
to the contrary contained herein, Borrowers, Agent and Lenders hereby agree that
all LC Obligations and all obligations of Borrowers relating thereto shall be
satisfied by the prompt issuance of one or more Revolving Credit Loans that are
Base Rate Revolving Portions, which Borrowers hereby acknowledge are requested
and Lenders hereby agree to fund. In the event that Revolving Credit Loans are
not, for any reason, promptly made to satisfy all then existing LC Obligations,
each Lender hereby agrees to pay to Agent, on demand, an amount equal to such LC
Obligations multiplied by such Lender's Revolving Loan Percentage, and until so
paid, such amount shall be secured by the Collateral and shall bear interest and
be payable at the same rate and in the same manner as Base Rate Revolving
Portions. Immediately upon the issuance of a Letter of Credit or an LC Guaranty
under this Agreement, each Lender shall be deemed to have irrevocably and
unconditionally purchased and received from Agent, without recourse or warranty,
an undivided interest and participation therein equal to such LC Obligations
multiplied by such Lender's Revolving Loan Percentage.
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1.6 Foreign Exchange Facility
Agent agrees, for so long as no Default or Event of Default exists
and if requested by Borrowers to enter, or cause its Affiliate to enter, into
Derivative Obligations up to a maximum amount, in the aggregate, not to exceed
$2,000,000 (the "Foreign Exchange Facility"). No other Lender shall have any
obligation to Agent or Borrowers with respect to the Foreign Exchange Facility.
No Derivative Obligations may have a term that exceeds one year and in no event
exceeds the Term. The face amount of any Derivative Obligation shall be reserved
from Availability at 100% of the face amount of such Derivative Obligation if
the Derivative Obligation, or the remaining life of the Derivative Obligation,
is for a term of two Business Days or less. Agent reserves the right to create
additional reserves based on the xxxx-to-market value of the Derivative
Obligation from time to time. All settlements of any Derivative Obligations will
be determined by Agent at Agent's sole discretion at the expiration date for
such Derivative Obligations. Borrowers shall pay to Agent all fees and expenses
set forth in Section 2.12 in connection with the Foreign Exchange Facility. All
Derivative Obligations will be processed through Agent's Treasury and
International Services Group.
SECTION 2. INTEREST, FEES AND CHARGES
2.1 Interest.
2.1.1 Rates of Interest. Interest shall accrue on the
principal amount of the Base Rate Revolving Portion outstanding at the end of
each day at a fluctuating rate per annum equal to the Applicable Margin then in
effect plus the Base Rate. Said rate of interest shall increase or decrease by
an amount equal to any increase or decrease in the Base Rate, effective as of
the opening of business on the day that any such change in the Base Rate occurs.
Interest shall accrue on the principal amount of each of the LIBOR Advances
outstanding at the end of each day at a fixed rate per annum equal to the
Applicable Margin then in effect plus the LIBOR for the applicable Interest
Period.
2.1.2 Default Rate of Interest. At the option of Agent or upon
the instruction of the Majority Lenders, upon and after the occurrence of an
Event of Default, and during the continuation thereof, the principal amount of
all Loans and Letters of Credit shall bear interest at a rate per annum equal to
2.0% plus the interest rate otherwise applicable thereto (the "Default Rate").
2.1.3 Maximum Interest. In no event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under the Notes and
charged or collected pursuant to the terms of this Agreement or pursuant to the
Notes exceed the highest rate permissible under any law which a court of
competent jurisdiction shall, in a final determination, deem applicable hereto.
If any provisions of this Agreement or the Notes are in contravention of any
such law, such provisions shall be deemed amended to conform thereto.
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2.2 Computation of Interest and Fees.
Base Rate Interest, Letter of Credit and LC Guaranty fees and unused
line fees hereunder shall be calculated daily and shall be computed on the
actual number of days elapsed over a year of 365 days. LIBOR Interest shall be
computed on the actual number of days elapsed over a year of 360 days. For the
purpose of computing interest hereunder, all items of payment received by Agent
shall be applied by Agent on account of the Obligations (subject to final
payment of such items) on the Business Day after receipt by Agent of such items
(as determined in accordance with Section 3.4) in Agent's account located in
Atlanta, Georgia.
2.3 Fee Letter.
Borrowers shall pay to Agent certain fees and other amounts in
accordance with the terms of the fee letter between Borrowers and Agent dated as
of September 26, 2000 (the "Agent Fee Letter").
2.4 Letter of Credit and LC Guaranty Fees.
Borrowers shall pay to Agent, for the ratable benefit of the
Lenders, a fee equal to 1.5% per annum (except that, following the occurrence of
any Event of Default, such fee shall be increased by 2% per annum) multiplied by
the aggregate face amount of all Letters of Credit, LC Guaranties for Letters of
Credit and the aggregate face amount of any outstanding bankers' acceptances
arising out of drawings under Letters of Credit outstanding from time to time
during the term of this Agreement, which fees shall be payable quarterly in
arrears on the first day of each month hereafter, and, all normal and customary
charges associated with the issuance of such Letters of Credit, LC Guaranties
and bankers' acceptances, which fees and charges shall be deemed fully earned
and shall be due and payable upon issuance of each such Letter of Credit, LC
Guaranty or bankers' acceptance and shall not be subject to rebate or proration
upon the termination of this Agreement for any reason.
2.5 Unused Line Fee.
Borrowers shall pay to Agent, for the ratable benefit of the
Lenders, a fee (the "Unused Line Fee") equal to 0.375% per annum multiplied by
the average daily amount by which the Total Credit Facility exceeds the sum of
the outstanding principal balance of the Revolving Credit Loans. The unused line
fee shall be payable quarterly in arrears on the first Business Day of each
quarter hereafter and at the end of the term.
2.6 Prepayment Fee.
Borrowers shall pay to Agent, for the ratable benefit of the
Lenders, a fee in the event that prior to 45 days prior to the end of the Term
Borrowers elect to repay the Loans in full and terminate all Revolving Loan
Commitments or upon the acceleration of the Obligations pursuant to Section 10.2
hereof. Such fee shall be payable upon repayment of the Loans and shall be in
the amount of 0.25% of the Revolving Credit Maximum Amount.
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2.7 Audit Fees.
Borrowers shall pay to Agent all out-of-pocket expenses incurred by
Agent in connection with audit of the books and records and Properties of
Borrowers and their Subsidiaries and such other matters as Agent shall deem
appropriate in its sole judgment, whether such audits are conducted by employees
of Agent or by third parties hired by Agent. Agent contemplates conducting four
such audits during any 12 month period, but may conduct additional audits in its
sole judgment. Such out-of-pocket expenses shall be payable on the first day of
the month following the date of issuance by Agent of a request for payment
thereof to Borrowers.
2.8 Reimbursement of Expenses.
If, at any time or times regardless of whether or not an Event of
Default then exists, (i) Agent incurs legal or accounting expenses or any other
costs or out-of-pocket expenses in connection with (1) the negotiation and
preparation of this Agreement or any of the other Loan Documents, any amendment
of or modification of this Agreement or any of the other Loan Documents, or any
sale or attempted sale of any interest herein to any assignee (including,
without limitation, printing and distribution of materials to prospective
Lenders and all costs associated with bank meetings, but excluding any closing
fees paid to Lenders in connection therewith) or (2) the administration of this
Agreement or any of the other Loan Documents and the transactions contemplated
hereby and thereby; or (ii) Agent or any Lender incurs legal or accounting
expenses or any other costs or out-of-pocket expenses in connection with (1) any
litigation, contest, dispute, suit, proceeding or action (whether instituted by
Agent, any Lender, Borrowers or any other Person) relating to the Collateral,
this Agreement or any of the other Loan Documents or Borrowers', any of their
Subsidiaries' or any Guarantor's affairs; (2) any attempt to enforce any rights
of Agent or any Lender against Borrowers or any other Person which may be
obligated to Agent or any Lender by virtue of this Agreement or any of the other
Loan Documents, including, without limitation, the Account Debtors; or (3) any
attempt to inspect, verify, protect, preserve, restore, collect, sell, liquidate
or otherwise dispose of or realize upon the Collateral; then all such legal and
accounting expenses, other costs and out of pocket expenses of Agent or any
Lender, as applicable, shall be charged to Borrowers; provided, that Borrowers
shall not be responsible for such costs and out-of-pocket expenses to the extent
incurred because of the gross negligence or willful misconduct of Agent or any
Lender. All amounts chargeable to Borrower under this Section 2.8 shall be
Obligations secured by all of the Collateral, shall be payable on demand to
Agent and shall bear interest from the date such demand is made until paid in
full at the rate applicable to Base Rate Advances from time to time. Borrowers
shall also reimburse Agent for expenses incurred by Agent in its administration
of the Collateral to the extent and in the manner provided in Section 2.10
hereof.
2.9 Bank Charges.
Borrowers shall pay to Agent any and all fees, costs or expenses
which Agent pays to a bank or other similar institution arising out of or in
connection with (i) the forwarding to Borrowers or any other Person on behalf of
Borrowers, by Agent, of proceeds of Loans made to Borrowers pursuant to this
Agreement and (ii) the depositing for collection
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by Agent of any check or item of payment received or delivered to Agent on
account of the Obligations.
2.10 Collateral Protection Expenses; Inventories; Appraisals.
All out-of-pocket expenses incurred in protecting, storing,
warehousing, insuring, handling, maintaining and shipping the Collateral, any
and all excise, property, sales, and use taxes imposed by any state, federal, or
local authority on any of the Collateral or in respect of the sale thereof shall
be borne and paid by Borrowers. If Borrowers fail to promptly pay any portion
thereof when due, Agent may, at its option, but shall not be required to, pay
the same and charge Borrowers therefor.
2.11 Payment of Charges.
All amounts chargeable to Borrowers under this Agreement shall be
Obligations secured by all of the Collateral, shall be, unless specifically
otherwise provided, payable on demand and shall bear interest from the date
demand was made or such amount is due, as applicable, until paid in full at the
rate applicable to Base Rate Revolving Portions from time to time.
2.12 Foreign Exchange Facility
Borrowers shall pay to Agent on account of the Foreign Exchange
Facility, a fee equal to 1% per annum, based on a year of 360 days, on the
amount reserved from Availability applicable to the Derivative Obligations plus
a transactional fee equal to the Bank's standard fee for such transactions.
SECTION 3. LOAN ADMINISTRATION
3.1 Manner of Borrowing Revolving Credit Loans.
Borrowings under the credit facility established pursuant to Section
1 hereof shall be as follows:
3.1.1 Loan Requests. A request for a Revolving Credit Loan
shall be made, or shall be deemed to be made, in the following manner: (i)
Borrowers may give Agent notice of their intention to borrow, in which notice
Borrowers shall specify the amount of the proposed borrowing (which shall be no
less than $10,000 in the case of Base Rate Revolving Portions) and the proposed
borrowing date, no later than 10:30 a.m. Los Angeles time on the proposed
borrowing date (or in accordance with Section 3.1.5 in the case of a request for
a LIBOR Advance), provided, however, that no such request may be made at a time
when there exists a Default or an Event of Default; and (ii) the becoming due of
any amount required to be paid under this Agreement, or the Notes, whether as
interest or for any other Obligation, shall be deemed irrevocably to be a
request for a Revolving Credit Loan on the due date in the amount required to
pay such interest or other Obligation.
3.1.2 Disbursement. Borrowers hereby irrevocably authorize
Lender to disburse the proceeds of each Revolving Credit Loan requested, or
deemed to be requested,
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pursuant to subsection 3.1.1(ii) as follows: (i) the proceeds of each Revolving
Credit Loan requested under subsection 3.1.1(i) shall be disbursed by Agent in
lawful money of the United States of America in immediately available funds, by
wire transfer to such bank account as may be agreed upon by Borrowers and Agent
from time to time or elsewhere if pursuant to a written direction from
Borrowers; and (ii) the proceeds of each Revolving Credit Loan deemed requested
under subsection 3.1.1(ii) shall be disbursed by Agent by way of direct payment
of the relevant interest or other Obligation.
3.1.3 Payment by Lenders. Agent shall give to each Lender
prompt written notice by facsimile, telex or cable of the receipt by Agent from
Borrowers of any request for a Revolving Credit Loan. Each such notice shall
specify the requested date and amount of such Revolving Credit Loan, whether
such Revolving Credit Loan shall be a LIBOR Advance, and the amount of each
Lender's advance thereunder (in accordance with its applicable Revolving Loan
Percentage). Each Lender shall, not later than 12:00 p.m. (Los Angeles time) on
such requested date, wire to a bank designated by Agent the amount of that
Lender's Revolving Loan Percentage of the requested Revolving Credit Loan. The
failure of any Lender to make the Revolving Credit Loans to be made by it shall
not release any other Lender of its obligations hereunder to make its Revolving
Credit Loan. Neither Agent nor any other Lender shall be responsible for the
failure of any other Lender to make the Revolving Credit Loan to be made by such
other Lender.
3.1.4 Authorization. Borrowers hereby irrevocably authorize
Agent to advance to Borrowers, and to charge to Borrowers' Loan Account
hereunder as a Revolving Credit Loan, a sum sufficient to pay all interest
accrued on the Obligations during the immediately preceding month and to pay all
fees, costs and expenses and other Obligations at any time owed by Borrowers to
Agent or any Lender hereunder.
3.1.5 LIBOR Advances. Notwithstanding the provisions of
subsection 3.1.1, in the event Borrowers desire to obtain a LIBOR Advance,
Borrowers shall give Agent prior, written, irrevocable notice no later than
10:30 a.m. Los Angeles time on the 3rd Business Day prior to the requested
borrowing date specifying (i) Borrowers' election to obtain a LIBOR Advance,
(ii) the date of the proposed borrowing (which shall be a Business Day) and
(iii) the amount to be borrowed, which amount shall be in a minimum principal
amount of $1,000,000 and may increase in integral multiples of $100,000. In no
event shall Borrowers be permitted to have outstanding at any one time LIBOR
Advances with more than six different Interest Periods.
3.1.6 Conversion of Base Rate Advances. Provided that no
Default or Event of Default has occurred which is then continuing, Borrowers
may, on any Business Day, convert any Base Rate Advance into a LIBOR Advance. If
Borrowers desire to convert a Base Rate Advance, Borrowers shall give Agent not
less than two (2) Business Days' prior written notice (prior to 10:30 a.m. Los
Angeles Time on such Business Day), specifying the date of such conversion and
the amount to be converted. Each conversion into or conversion of a LIBOR
Advance shall be in a minimum principal amount of $1,000,000 and may increase in
integral multiples of $100,000 in excess thereof. After giving effect to any
conversion of Base Rate Advances to LIBOR Advances, Borrowers shall not be
permitted to
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have outstanding at any one time LIBOR Advances with more than six different
Interest Periods.
3.1.7 Continuation of LIBOR Advances. The Lead Borrower shall
have the right on two (2) Business Days' prior irrevocable written notice given
to Agent by the Lead Borrower (prior to 10:30 a.m. Los Angeles Time on such
Business Day), subject to the provisions hereof, to continue any LIBOR Advance
into a subsequent Interest Period of the same or a different permitted duration,
in each case subject to the satisfaction of the following conditions:
(i) in the case of a continuation of less than all
LIBOR Advances, the LIBOR Advances continued shall each be in a
minimum principal amount of $1,000,000 and may increase in integral
multiples of $100,000; and
(ii) no LIBOR Advance (or portion thereof) may be
continued as a LIBOR Advance if a Default or Event of Default has
occurred which is then continuing or if, after giving effect to such
continuation, Borrowers shall have outstanding more than six
separate LIBOR Advances in the aggregate.
If the Lead Borrower shall fail to give timely notice of its
election to continue any LIBOR Advance or portion thereof as provided above, or
if such continuation shall not be permitted, such LIBOR Advance or portion
thereof, unless such LIBOR Advance shall be repaid, shall automatically be
converted into a Base Rate Advance at the end of the Interest Period then in
effect with respect to such LIBOR Advance.
3.1.8 Inability to Make LIBOR Advances. Notwithstanding any
other provision hereof, if any applicable law, treaty, regulation or directive,
or any change therein or in the interpretation or application thereof, shall
make it unlawful for any Lender (for purposes of this subsection 3.1.8, the term
"Lender" shall include the office or branch where a Lender or any corporation or
bank then controlling such Lender makes or maintains any LIBOR Advances) to make
or maintain its LIBOR Advances, or if with respect to any Interest Period, any
Lender is unable to determine the LIBOR relating thereto, or adverse or unusual
conditions in, or changes in applicable law relating to, the London interbank
market make it, in the reasonable judgment of such Lender, impracticable to fund
therein any of the LIBOR Advances, or make the projected LIBOR unreflective of
the actual costs of funds therefor to such Lender, the obligation of such Lender
to make LIBOR Advances hereunder shall forthwith be suspended during the
pendency of such circumstances and Borrowers shall, if any affected LIBOR
Advances are then outstanding, promptly upon request from such Lender, convert
such affected LIBOR Advances into Base Rate Advances.
3.1.9 Letter of Credit and LC Guaranty Requests. A request for
a Letter of Credit or LC Guaranty shall be made in the following manner: Lead
Borrower may give Agent and Bank a written notice of its request for the
issuance of a Letter of Credit or LC Guaranty, not later than 11:00 a.m. Los
Angeles time, one Business Day before the proposed issuance date thereof, in
which notice Lead Borrower shall specify the proposed issuer,
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issuance date and format and wording for the Letter of Credit or LC Guaranty
being requested (which shall be satisfactory to Agent and the Person being asked
to issue such Letter of Credit or LC Guaranty); provided, that no such request
may be made at a time when there exists a Default or Event of Default. Such
request shall be accompanied by an executed application and reimbursement
agreement in form and substance satisfactory to Agent and the Person being asked
to issue the Letter of Credit or LC Guaranty, as well as any required
resolutions and any cash collateral amount required by Section 1.5.
3.1.10 Method of Making Requests. As an accommodation to
Borrowers, unless a Default or an Event of Default is then in existence, (i)
Agent shall permit telephonic requests for Revolving Credit Loans to Agent, (ii)
Agent and Bank may, in their discretion, permit electronic transmittal of
requests for Letters of Credit and LC Guaranties to them, and (iii) Agent may,
in Agent's discretion, permit electronic transmittal of instructions,
authorizations, agreements or reports to Agent. Unless Lead Borrower
specifically directs Agent or Bank in writing not to accept or act upon
telephonic or electronic communications from Lead Borrower, neither Agent nor
Bank shall have any liability to Borrowers for any loss or damage suffered by
Borrowers as a result of Agent's or Bank's honoring of any requests, execution
of any instructions, authorizations or agreements or reliance on any reports
communicated to it telephonically or electronically and purporting to have been
sent to Agent or Bank by one of the authorized individuals of Lead Borrower
listed on Exhibit 3.1.10 hereto, which may be revised from time to time by Lead
Borrower in compliance with Section 8.1.2, and neither Agent nor Bank shall have
any duty to verify the origin of any such communication or the authority of the
person sending it. Each telephonic request for a Revolving Credit Loan, Letter
of Credit or LC Guaranty accepted by Agent and Bank, if applicable, hereunder
shall be promptly followed by a written confirmation of such request from Lead
Borrower to Lender and Bank, if applicable.
3.2 Payments.
Except where evidenced by notes or other instruments issued or made
by Borrowers to any Lender and accepted by such Lender specifically containing
payment instructions that are in conflict with this Section 3.2 (in which case
the conflicting provisions of said notes or other instruments shall govern and
control), the Obligations shall be payable as follows:
3.2.1 Principal. Principal payable on account of Revolving
Credit Loans shall be payable by Borrowers to Agent for the ratable benefit of
Lenders immediately upon the earliest of (i) the receipt by Agent or Borrowers
of any proceeds of any of the Collateral (except as otherwise provided herein),
including without limitation pursuant to subsections 3.3.1 and 6.2.4, to the
extent of said proceeds, subject to Borrowers' rights to reborrow such amounts
in compliance with subsection 1.1 hereof; (ii) the occurrence of an Event of
Default in consequence of which Agent or Majority Lenders elect to accelerate
the maturity and payment of the Obligations, or (iii) termination of this
Agreement pursuant to Section 4 hereof; provided, however, that, if an
Overadvance shall exist at any time, Borrowers shall, on demand, repay the
Overadvance. Each payment (including principal prepayments) by Borrowers on
account of principal of the Revolving Credit Loans shall be applied first to
Base Rate Advances, then to LIBOR Advances.
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3.2.2 Interest.
(a) Base Rate Advances. Interest accrued on Base Rate
Advances shall be due and payable on the earliest of (1) the first
calendar day of each month (for the immediately preceding month), computed
through the last calendar day of the preceding month, (2) the occurrence
of an Event of Default in consequence of which Agent or Majority Lenders
elect to accelerate the maturity and payment of the Obligations or (3)
termination of this Agreement pursuant to Section 4 hereof.
(b) LIBOR Advances. Interest accrued on each LIBOR Advance
shall be due and payable on each LIBOR Interest Payment Date and on the
earlier of (1) the occurrence of an Event of Default in consequence of
which Agent or Majority Lenders elect to accelerate the maturity and
payment of the Obligations or (2) termination of this Agreement pursuant
to Section 4 hereof.
3.2.3 Costs, Fees and Charges. Costs, fees and charges payable
pursuant to this Agreement shall be payable by Borrowers to Agent, as and when
provided in Section 2 hereof or to any other Person designated by Agent in
writing.
3.2.4 Other Obligations. The balance of the Obligations
requiring the payment of money, if any, shall be payable by Borrowers to Agent
for distribution to Lenders, as appropriate, as and when provided in this
Agreement, the Other Agreements or the Security Documents, or on demand,
whichever is later.
3.2.5 Prepayment of LIBOR Advances. Borrowers may repay a
LIBOR Advance. Borrowers shall pay to Agent, upon request of Agent, such amount
or amounts as shall be sufficient (in the reasonable opinion of Agent) to
compensate Lenders for any loss, cost, or expense incurred as a result of: (i)
any payment of a LIBOR Advance on a date other than the last day of the Interest
Period for such Loan; (ii) any failure by Borrowers to borrow a LIBOR Advance on
the date specified by Borrowers' written notice; or (iii) any failure by
Borrowers to pay a LIBOR Advance on the date for payment specified in Borrowers'
written notice. Without limiting the foregoing, Borrowers shall pay to Agent,
for the ratable benefit of Lenders, a "yield maintenance fee" in an amount
computed as follows: the current rate for United States Treasury securities
(bills on a discounted basis shall be converted to a bond equivalent) with a
maturity date closest to the Interest Period chosen pursuant to the LIBOR
Advance as to which the prepayment is made, shall be subtracted from the LIBOR
in effect at the time of prepayment. If the result is zero or a negative number,
there shall be no yield maintenance fee. If the result is a positive number,
then the resulting percentage shall be multiplied by the amount of the principal
balance being prepaid. The resulting amount shall be divided by 360 and
multiplied by the number of days remaining in the Interest Period chosen
pursuant to the LIBOR Advance as to which the prepayment is made. Said amount
shall be reduced to present value calculated by using the above referenced
United States Treasury securities rate and the number of days remaining in the
term chosen pursuant to the LIBOR Advance as to which prepayment is made. The
resulting amount shall be the yield maintenance fee due to Agent, for the
ratable benefit of Lenders, upon the payment of a LIBOR Advance. If by reason of
an Event of Default, Agent or Majority Lenders elect to declare the Obligations
to be immediately due and payable, then any
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yield maintenance fee with respect to a LIBOR Advance shall become due and
payable in the same manner as though Borrowers had exercised such right of
prepayment.
3.2.6 Application of Proceeds of Collateral and Payments after
an Event of Default. Upon the occurrence of and during the continuation of an
Event of Default, either if requested by Majority Lenders or upon termination of
the Revolving Loan Commitments, (a) all payments received on account of the
Obligations, whether from Borrowers or otherwise, shall be applied by Agent
against the Obligations and (b) all proceeds received by Agent in respect of any
sale of, or collection from, or other realization upon all or any part of the
Collateral under any Loan Document may, in the discretion of Agent, be held by
Agent as Collateral for, and/or (then or at any time thereafter) applied in full
or in part by Agent against, the applicable Obligations, in each case in the
following order of priority:
(a) first, to the payment of all costs, expenses, indemnities and
attorneys' fees incurred by Agent in collecting the Obligations, in
enforcing the rights of Agent and Lenders under the Loan Documents and in
collecting, retaking, completing, protecting, removing, storing,
advertising for sale, selling and delivering any Collateral (except for
any such costs, expenses, indemnities and attorneys' fees incurred solely
in connection with the Derivative Obligations, and which can be so
identified);
(b) thereafter, to the payment of all costs, expenses, indemnities
and attorneys' fees incurred by any Lender then due under the Loan
Documents (except for any such costs, expenses, indemnities and attorneys'
fees incurred solely in connection with the Derivative Obligations, and
which can be so identified);
(c) thereafter, to the payment of all other Obligations (excluding
Derivative Obligations) for the ratable benefit of the holders thereof to
the full extent thereof (subject to the provisions of this subsection
3.2);
(d) thereafter, to the payment of all Derivative Obligations and
all costs, expenses, indemnities and attorneys' fees incurred in
connection with such Derivative Obligations, then due and payable pro rata
to the full extent thereof; and
(e) thereafter, to the extent of any excess of such proceeds, to
the payment to or upon the order of Borrowers or to whosoever may be
lawfully entitled to receive the same or as a court of competent
jurisdiction may direct.
3.3 Mandatory and Optional Prepayments.
3.3.1 Proceeds of Sale, Loss, Destruction or Condemnation of
Collateral. Except as provided in subsections 6.4.2 and 8.2.9, if any Borrower
or any of its Subsidiaries sells any of the Equipment or real Property, or if
any of the Collateral is lost or destroyed or taken by condemnation, Borrowers
shall, unless otherwise agreed by Majority Lenders, pay to Agent for the ratable
benefit of Lenders as and when received by Borrowers or such Subsidiary and as a
mandatory prepayment of the Loans, as herein provided, a sum equal to the
proceeds (including insurance payments but net of costs and taxes incurred in
connection with such sale or event) received by such Borrower or such Subsidiary
from such
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sale, loss, destruction or condemnation. The applicable prepayment shall be
applied to reduce the outstanding principal balance of the Revolving Credit
Loans, but shall not permanently reduce the Revolving Loan Commitments.
Notwithstanding the foregoing, if the proceeds of insurance (net of costs and
taxes incurred) with respect to any loss or destruction of Equipment, Inventory
or real Property (i) are less than $500,000, unless an Event of Default is then
in existence, Agent shall remit such proceeds to Borrowers for use in replacing
or repairing the damaged Collateral or (ii) are equal to or greater than
$500,000 and Borrowers have requested that Agent agree to permit Borrowers or
the applicable Subsidiary to repair or replace the damaged Collateral, such
amounts shall be provisionally applied to reduce the outstanding principal
balance of the Revolving Credit Loans until the earlier of Agent's decision with
respect thereto or the expiration of 90 days from such request. If Agent agrees,
in its reasonable judgment, to permit such repair or replacement under such
clause (ii), such amount shall, unless an Event of Default is in existence, be
remitted to Borrowers for use in replacing or repairing the damaged Collateral;
if Agent declines to permit such repair or replacement or does not respond to
Borrowers within such 90 day period, such amount shall be applied to the Loans
in the manner specified in the second sentence of this subsection 3.3.1 until
payment thereof in full.
3.3.2 LIBOR Advances. If the application of any payment made
in accordance with the provisions of this Section 3.3 at a time when no Event of
Default has occurred and is continuing would result in termination of a LIBOR
Advance prior to the last day of the Interest Period for such LIBOR Advance, the
amount of such prepayment shall not be applied to such LIBOR Advance, but will,
at Borrowers' option, be held by Agent in a non-interest bearing account or
deposited by Borrowers in an interest-bearing account at a Lender or another
bank satisfactory to Agent in its discretion, which account is in the name of
Agent and from which account only Agent can make any withdrawal, in each case to
be applied as such amount would otherwise have been applied under this Section
3.3 at the earlier to occur of (i) the last day of the relevant Interest Period
or (ii) the occurrence of a Default or an Event of Default.
3.4 Application of Payments and Collections.
All items of payment received by Agent by 2:00 p.m., Los Angeles
time, on any Business Day shall be deemed received on that Business Day. All
items of payment received after 2:00 p.m., Los Angeles time, on any Business Day
shall be deemed received on the following Business Day. Borrowers irrevocably
waive the right to direct the application of any and all payments and
collections at any time or times hereafter received by Agent from or on behalf
of Borrowers, and Borrowers do hereby irrevocably agree that Agent shall have
the continuing exclusive right to apply and reapply any and all such payments
and collections received at any time or times hereafter by Agent or its agent
against the Obligations, in such manner as Agent may deem advisable,
notwithstanding any entry by Agent or any Lender upon any of its books and
records. If as the result of collections of Accounts as authorized by subsection
6.2.4 hereof or otherwise, a credit balance exists in the Loan Account, such
credit balance shall not accrue interest in favor of Borrowers, but shall be
disbursed to Borrowers or otherwise at Borrowers' direction in the manner set
forth in subsection 3.1.2, upon Borrowers' request at any time, so long as no
Default or Event of Default then exists. Agent
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may at its option, offset such credit balance against any of the Obligations
upon and during the continuance of an Event of Default.
3.5 All Loans to Constitute One Obligation.
The Loans shall constitute one general Obligation of Borrowers, and
shall be secured by Lender's Lien upon all of the Collateral.
3.6 Loan Account.
Agent shall enter all Loans as debits to a loan account (the "Loan
Account") and shall also record in the Loan Account all payments made by
Borrowers on any Obligations and all proceeds of Collateral which are finally
paid to Agent, and may record therein, in accordance with customary accounting
practice, other debits and credits, including interest and all charges and
expenses properly chargeable to Borrowers pursuant to this Agreement or any
other Loan Document.
3.7 Statements of Account.
Agent will account to Borrowers monthly with a statement of Loans,
charges and payments made pursuant to this Agreement during the immediately
preceding month, and such account rendered by Agent shall be deemed final,
binding and conclusive upon Borrowers absent demonstrable error unless Agent is
notified by Borrowers in writing to the contrary within 30 days of the date each
accounting is received by Borrowers. Such notice shall only be deemed an
objection to those items specifically objected to therein.
3.8 Sharing of Payments, Etc.
If any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) on
account of any Loan made by it in excess of its ratable share of payments on
account of Loans made by all Lenders, such Lender shall forthwith purchase from
each other Lender such participation in such Loan as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each other
Lender; provided, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lenders the
purchase price to the extent of such recovery, together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. Borrowers agree
that any Lender so purchasing a participation from another Lender pursuant to
this Section 3.8 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of Borrowers
in the amount of such participation. Notwithstanding anything to the contrary
contained herein, all purchases and repayments to be made under this Section 3.8
shall be made through Agent.
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3.9 Increased Costs.
If any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law) adopted after the date of this Agreement and having general applicability
to all banks within the jurisdiction in which any Lender operates (excluding,
for the avoidance of doubt, the effect of and phasing in of capital requirements
or other regulations or guidelines passed prior to the date of this Agreement),
or any interpretation or application thereof by any governmental authority
charged with the interpretation or application thereof, or the compliance of
such Lender therewith, shall:
(1) subject such Lender to any tax with respect to
this Agreement (other than (a) any tax based on or measured by net
income or otherwise in the nature of a net income tax, including,
without limitation, any franchise tax or any similar tax based on
capital, net worth or comparable basis for measurement and (b) any
tax collected by a withholding on payments and which neither is
computed by reference to the net income of the payee nor is in the
nature of an advance collection of a tax based on or measured by the
net income of the payee) or (2) change the basis of taxation of
payments to such Lender of principal, fees, interest or any other
amount payable hereunder or under any Loan Documents (other than in
respect of (a) any tax based on or measured by net income or
otherwise in the nature of a net income tax, including, without
limitation, any franchise tax or any similar tax based on capital,
net worth or comparable basis for measurement and (b) any tax
collected by a withholding on payments and which neither is computed
by reference to the net income of the payee nor is in the nature of
an advance collection of a tax based on or measured by the net
income of the payee);
(2) impose, modify or hold applicable any reserve
(except any reserve taken into account in the determination of the
applicable LIBOR), special deposit, assessment or similar
requirement against assets held by, or deposits in or for the
account of, advances or loans by, or other credit extended by, any
office of such Lender, including (without limitation) pursuant to
Regulation D of the Board of Governors of the Federal Reserve
System; or
(3) impose on such Lender or the London interbank
market any other condition with respect to any Loan Document
and the result of any of the foregoing is to increase the cost to such Lender of
making, renewing or maintaining its Loans hereunder by an amount that such
Lender deems to be material or to reduce the amount of any payment (whether of
principal, interest or otherwise) in respect of any of such Loans by an amount
that such Lender deems to be material, then, in any such case, Borrowers shall
pay such Lender, upon demand and certification not later than sixty (60) days
following its receipt of notice of the imposition of such increased costs, such
additional amount as will compensate such Lender for such additional cost or
such reduction, as the case may be, to the extent such Lender has not otherwise
been compensated, with respect to a particular Loan, for such increased cost as
a result of an increase in the Base Rate or the LIBOR. An officer of such Lender
shall determine the amount of such additional cost
15
or reduced amount using reasonable averaging and attribution methods and shall
certify the amount of such additional cost or reduced amount to Borrowers, which
certification shall include a written explanation of such additional cost or
reduction to Borrowers. Such certification shall be conclusive absent manifest
error. If such Lender claims any additional cost or reduced amount pursuant to
this Section 3.9, then such Lender shall use reasonable efforts (consistent with
legal and regulatory restrictions) to designate a different lending office or to
file any certificate or document reasonably requested by Borrowers if the making
of such designation or filing would avoid the need for, or reduce the amount of,
any such additional cost or reduced amount and would not, in the sole discretion
of such Lender, be otherwise disadvantageous to such Lender.
3.10 Basis for Determining Interest Rate Inadequate or Unfair.
In the event that Agent shall have determined that:
(i) reasonable means do not exist for ascertaining the
LIBOR for any Interest Period; or
(ii) Dollar deposits in the relevant amount and for the
relevant maturity are not available in the London interbank market
with respect to a proposed LIBOR Advance, or a proposed conversion
of a Base Rate Advance into a LIBOR Advance; then
Agent shall give Borrowers prompt written, telephonic or electronic notice of
the determination of such effect. If such notice is given, (i) any such
requested LIBOR Advance shall be made as a Base Rate Advance, unless Borrowers
shall notify Agent no later than 10:30 a.m. (Los Angeles Time) two (2) Business
Days prior to the date of such proposed borrowing that the request for such
borrowing shall be canceled or made as an unaffected type of LIBOR Advance, and
(ii) any Base Rate Advance which was to have been converted to an affected type
of LIBOR Advance shall be continued as or converted into a Base Rate Advance,
or, if Borrowers shall notify Agent, no later than 10:30 a.m. (Los Angeles Time)
two (2) Business Days prior to the proposed conversion, shall be maintained as
an unaffected type of LIBOR Advance.
3.11 Lead Borrower as Borrowers' Agent.
Each Borrower hereby designates the Lead Borrower as that Borrower's
agent to obtain Revolving Credit Loans hereunder, the proceeds of which shall be
available to each Borrower for the same uses as set forth in Section 1.3, above.
As the disclosed principal for its agent, each Borrower shall be obligated to
the Agent and the Lenders on account of Revolving Credit Loans as if made
directly by the Lenders to that Borrower, notwithstanding the manner by which
such loans and advances are recorded on the books and records of the Lead
Borrower and of any other Borrower.
3.12 Replacement of a Lender
If a Lender claims additional compensation or reduced amount
pursuant to Section 3.9 or determines that its ability to make LIBOR Advances
hereunder is suspended
16
pursuant to Section 3.1.8 (any such Lender, a "Subject Lender"), so long as (i)
no Default or Event of Default shall have occurred and be continuing and
Borrowers have obtained a commitment from another Lender or other Person
acceptable to Agent to purchase at par the Subject Lender's Loans and assume the
Subject Lender's Revolving Loan Commitment and all other obligations of the
Subject Lender hereunder, (ii) such Lender is not the issuer or an Affiliate of
the issuer of any Letters of Credit or LC Guaranties outstanding (unless all
such Letters of Credit and LC Guaranties are terminated or arrangements
acceptable to such Lender (such as cash collateral or a "back-to-back" letter of
credit) are made) and (iii), if applicable, the Subject Lender is unwilling to
withdraw the claim made pursuant to Section 3.9, Borrowers may require the
Subject Lender to assign all of its Loans and Revolving Loan Commitment to such
other Lender, Lenders, other Person or other Persons pursuant to the provisions
of Section 11.9; provided that, prior to or concurrently with such replacement,
(1) the Subject Lender shall have received payment in full of all principal,
interest, fees and other amounts (including all amounts under Section 3.9 (if
applicable)) through such date of replacement and a release from its obligations
under the Loan Documents, (2) the processing fee required to be paid by
subsection 11.9.1 shall have been paid to Agent and (3) all of the requirements
for such assignment contained in Section 11.9.1, including, without limitation,
the consent of Agent and the receipt by Agent of an executed Assignment
Agreement and other supporting documents, have been fulfilled.
SECTION 4. TERM AND TERMINATION
4.1 Term of Agreement.
Subject to the right of Lenders to cease making Loans to Borrowers
during the continuance of any Default or Event of Default, this Agreement shall
be in effect from the date hereof, through and including June 30, 2004 (the
"Term"), unless terminated as provided in Section 4.1 hereof.
4.2 Termination.
4.2.1 Termination by Lenders. Agent may, and at the direction
of Majority Lenders shall, terminate this Agreement without notice upon or after
the occurrence and during the continuance of an Event of Default.
4.2.2 Termination by Borrowers. Upon at least 30 days' prior
written notice to Agent and Lenders, Borrowers may, at their option, terminate
this Agreement; provided, however, no such termination shall be effective until
Borrowers have paid or collateralized to Agent's satisfaction all of the
Obligations in immediately available funds, all Letters of Credit and LC
Guaranties have expired, terminated or have been cash collateralized to Agent's
satisfaction and Borrowers have complied with Sections 2.6 and 3.2.5. Any notice
of termination given by Borrowers shall be irrevocable unless all Lenders
otherwise agree in writing, no Lender shall have any obligation to make any
Loans or issue or procure any Letters of Credit or LC Guaranties on or after the
termination date stated in such notice. Borrowers may elect to terminate this
Agreement in its entirety only. No section of this Agreement or type of Loan
available hereunder may be terminated singly.
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4.2.3 Effect of Termination. All of the Obligations shall be
immediately due and payable upon the termination date stated in any notice of
termination of this Agreement. All undertakings, agreements, covenants,
warranties and representations of Borrowers contained in the Loan Documents
shall survive any such termination and Agent shall retain its Liens in the
Collateral and Agent and each Lender shall retain all of its rights and remedies
under the Loan Documents notwithstanding such termination until all Obligations
have been discharged or paid, in full, in immediately available funds,
including, without limitation, all Obligations under Sections 2.6 and 3.2.5
resulting from such termination. Notwithstanding the foregoing or the payment in
full of the Obligations, Agent shall not be required to terminate its Liens in
the Collateral unless, with respect to any loss or damage Agent may incur as a
result of dishonored checks or other items of payment received by Agent from
Borrowers or any Account Debtor and applied to the Obligations, Agent shall, at
its option, (i) have received a written agreement satisfactory to Agent,
executed by Borrowers and by any Person whose loans or other advances to
Borrowers are used in whole or in part to satisfy the Obligations, indemnifying
Agent and each Lender from any such loss or damage or (ii) have retained cash
Collateral for such period of time as Agent, in its discretion, may deem
necessary to protect Agent and each Lender from any such loss or damage.
SECTION 5. SECURITY INTERESTS
5.1 Security Interest in Collateral.
To secure the prompt payment and performance to Agent and each
Lender of the Obligations, each Borrower hereby grants to Agent for the benefit
of each Lender a continuing Lien upon all of such Borrower's assets, including
all of the following Property and interests in Property of such Borrower,
whether now owned or existing or hereafter created, acquired or arising and
wheresoever located:
(i) Accounts;
(ii) Certificated Securities;
(iii) Chattel Paper;
(iv) Computer Hardware and Software and all rights with
respect thereto, including, any and all licenses, options,
warranties, service contracts, program services, test rights,
maintenance rights, support rights, improvement rights, renewal
rights and indemnifications, and any substitutions, replacements,
additions or model conversions of any of the foregoing;
(v) Contract Rights;
(vi) Deposit Accounts;
(vii) Documents;
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(viii) Financial Assets;
(ix) Fixtures;
(x) General Intangibles (including Payment
Intangibles, Software and Intellectual Property);
(xi) Goods, (including all of its Equipment, Fixtures
and Inventory), and all accessions, additions, attachments,
improvements, substitutions and replacements thereto and therefor;
(xii) Instruments;
(xiii) Investment Property;
(xiv) money (of every jurisdiction whatsoever);
(xv) Letter-of-Credit Rights;
(xvi) Security Entitlements;
(xvii) Supporting Obligations;
(xviii) Uncertificated Securities; and
(xix) to the extent not included in the foregoing, all
other personal property of any kind or description;
together with all books, records, writings, data bases, information and other
property relating to, used or useful in connection with, or evidencing,
embodying, incorporating or referring to any of the foregoing, and all Proceeds,
products, offspring, rents, issues, profits and returns of and from any of the
foregoing; provided that to the extent that the provisions of any lease or
license of such Collateral expressly prohibit (which prohibition is enforceable
under applicable law) any assignment thereof, and the grant of security interest
therein, Agent will not enforce its security interest in a Borrower's rights
under such lease or license (other than in respect of the Proceeds thereof) for
so long as such prohibition continues, it being understood that upon request of
Agent, Borrowers will in good faith use reasonable efforts to obtain consent for
the creation of a security interest in favor of Agent (and to Agent's
enforcement of such security interest) in such Agent's rights under such lease
or license.
5.2 Other Collateral.
5.2.1 Commercial Tort Claims. Borrowers shall promptly notify
Agent in writing upon incurring or otherwise obtaining a Commercial Tort Claim
after the Closing Date against any third party and, upon request of Agent,
promptly enter into an amendment to this Agreement and do such other acts or
things deemed appropriate by Agent to give Agent a security interest in any such
Commercial Tort Claim.
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5.2.2 Other Collateral. Borrowers shall promptly notify Agent
in writing upon acquiring or otherwise obtaining any Collateral after the date
hereof consisting of Deposit Accounts, Investment Property, Letter of Credit
Rights or Electronic Chattel Paper and, upon the request of Agent, promptly
execute such other documents, and do such other acts or things deemed
appropriate by Agent to deliver to Agent control with respect to such
Collateral; promptly notify Agent in writing upon acquiring or otherwise
obtaining any Collateral after the date hereof consisting of Documents or
Instruments and, upon the request of Agent, will promptly execute such other
documents, and do such other acts or things deemed appropriate by Agent to
deliver to Agent possession of such Documents which are negotiable and
Instruments, and, with respect to nonnegotiable Documents, to have such
nonnegotiable Documents issued in the name of Agent; and with respect to
Collateral in the possession of a third party, other than Certificated
Securities and Goods covered by a Document and obtain an acknowledgement from
the third party that it is holding the Collateral for the benefit of Agent.
5.3 Lien Perfection; Further Assurances.
Borrowers shall authorize such UCC-1 financing statements as are
required by the UCC and such other instruments, assignments or documents as are
necessary to perfect Agent's Lien upon any of the Collateral and shall take such
other action as may be required to perfect or to continue the perfection of
Agent's Lien upon the Collateral. Unless prohibited by applicable law, Borrowers
hereby irrevocably authorize Agent to execute and/or file any such financing
statements, including, without limitation, financing statements that indicate
the Collateral (i) as all assets of Borrowers or words of similar effect, or
(ii) as being of an equal or lesser scope, or with greater or lesser detail,
than as set forth in Section 5.1, on Borrowers' behalf. Borrowers also hereby
ratify their authorization for Agent to have filed in any jurisdiction any like
financing statements or amendments thereto if filed prior to the date hereof.
The parties agree that a carbon, photographic or other reproduction of this
Agreement shall be sufficient as a financing statement and may be filed in any
appropriate office in lieu thereof. At Agent's request, Borrowers shall also
promptly execute or cause to be executed and shall deliver to Agent any and all
documents, instruments and agreements deemed necessary by Agent to give effect
to or carry out the terms or intent of the Loan Documents.
5.4 Lien on Realty.
The due and punctual payment and performance of the Obligations
shall also be secured by the Lien created by Mortgages upon all real Property of
Borrowers now or hereafter owned. Each Mortgage shall be executed by Borrowers
in favor of Agent. Each Mortgage shall be duly recorded, at Borrowers' expense,
in each office where such recording is required to constitute a fully perfected
first Lien on the real Property covered thereby. Borrowers shall deliver to
Agent, at Borrowers' expense, mortgagee title insurance policies issued by a
title insurance company satisfactory to Agent, which policies shall be in form
and substance satisfactory to Agent and shall insure a valid first Lien in favor
of Agent, for the benefit of itself and the Lenders, on the Property covered by
each Mortgage, subject only to those exceptions acceptable to Agent and its
counsel. Borrowers shall deliver to Agent such other documents, including,
without limitation, as-built survey prints of the real Property, as Agent and
its counsel may request relating to the real Property subject to the Mortgages.
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SECTION 6. COLLATERAL ADMINISTRATION
6.1 General.
6.1.1 Location of Collateral. All Collateral, other than
Inventory in transit and motor vehicles, will at all times be kept by Borrowers
and their Subsidiaries at one or more of the business locations set forth in
Exhibit 6.1.1 hereto, as updated pursuant to Section 6.3 hereof. All Accounts
and other intangible items comprising a portion of the Collateral are deemed to
be located at the Lead Borrower's chief executive office.
6.1.2 Insurance of Collateral. Borrowers shall maintain and
pay for insurance upon all Collateral wherever located and with respect to the
business of Borrowers and each of their Subsidiaries, covering casualty, hazard,
public liability, workers' compensation and such other risks in such amounts and
with such insurance companies as are reasonably satisfactory to Agent. Borrowers
shall deliver certified copies of such policies to Agent as promptly as
practicable, with satisfactory lender's loss payable endorsements, naming Agent
as a loss payee, assignee or additional insured, as appropriate, as its interest
may appear, and showing only such other loss payees, assignees and additional
insureds as are satisfactory to Agent. Each policy of insurance or endorsement
shall contain a clause requiring the insurer to give not less than 60 days'
prior written notice to Agent in the event of cancellation of the policy and a
clause specifying that the interest of Agent shall not be impaired or
invalidated by any act or neglect of Borrowers, any of their Subsidiaries or the
owner of the Property or by the occupation of the premises for purposes more
hazardous than are permitted by said policy. Borrowers agree to deliver to
Agent, promptly as rendered, true copies of all reports made in any reporting
forms to insurance companies. All proceeds of business interruption insurance
(if any) of Borrowers and their Subsidiaries shall be remitted to Agent for
application to the outstanding balance of the Revolving Credit Loans.
Unless Borrowers provide Agent with evidence of the insurance
coverage required by this Agreement, Agent may purchase insurance at Borrowers'
expense to protect Agent's interests in the Properties of Borrowers and their
Subsidiaries, provided, however that Agent's purchase of such insurance shall
not constitute a cure or waiver of any Event of Default occasioned by Borrowers'
or their Subsidiaries' failure to comply with the provisions of this Section
6.1.2. This insurance may, but need not, protect the interests of Borrowers and
their Subsidiaries. The coverage that Agent purchases may not pay any claim that
Borrowers or any Subsidiary makes or any claim that is made against Borrowers or
any such Subsidiary in connection with said Property. Borrowers may later cancel
any insurance purchased by Agent, but only after providing Agent with evidence
that Borrowers and their Subsidiaries have obtained insurance as required by
this Agreement. If Agent purchases insurance, Borrowers will be responsible for
the costs of that insurance, including interest and any other charges Agent may
impose in connection with the placement of insurance, until the effective date
of the cancellation or expiration of the insurance. The costs of the insurance
may be added to the Obligations. The costs of the insurance may be more than the
cost of insurance that Borrowers and their Subsidiaries may be able to obtain on
their own.
The Lead Borrower shall advise Agent of each claim in excess of
$200,000 made by any Borrower under any policy of insurance which covers the
Collateral and will
21
permit Agent, at Agent's option in each instance, to the exclusion of the
Borrowers, to conduct the adjustment of each such claim (and of all claims
following the occurrence of any Event of Default). Borrowers hereby appoint
Agent as Borrowers' attorney in fact to obtain, adjust, settle, and cancel any
insurance described in this section and to endorse in favor of the Agent any and
all drafts and other instruments with respect to such insurance. The within
appointment, being coupled with an interest, is irrevocable until this Agreement
is terminated by a written instrument executed by a duly authorized officer of
Agent. Agent shall not be liable on account of any exercise pursuant to said
power except where there has been a final judicial determination (in a
proceeding in which Agent had an opportunity to be heard) that such exercise was
conducted in a grossly negligent manner or in willful misconduct. Agent shall
apply any proceeds of such insurance against the Obligations, whether or not
such have matured, as provided in Section 3.3.1 of this Agreement.
6.1.3 Protection of Collateral. Lender shall not be liable or
responsible in any way for the safekeeping of any of the Collateral or for any
loss or damage thereto (except for reasonable care in the custody thereof while
any Collateral is in Agent's or any Lender's actual possession) or for any
diminution in the value thereof, or for any act or default of any warehouseman,
carrier, forwarding agency, or other person whomsoever, but the same shall be at
Borrowers' sole risk.
6.2 Administration of Accounts.
6.2.1 Records, Schedules and Assignments of Accounts.
Borrowers shall keep accurate and complete records of their Accounts and all
payments and collections thereon and shall submit to Agent on such periodic
basis as Agent shall request a sales and collections report for the preceding
period, in form consistent with the reports currently prepared by Borrowers with
respect to such information. Concurrently with the delivery of each Borrowing
Base Certificate required by subsection 8.1.4, or more frequently as requested
by Agent, from and after the date hereof, Borrowers shall deliver to Agent a
detailed aged trial balance of all of its Accounts, and upon Agent's request
therefor, copies of proof of delivery and the original copy of all documents,
including, without limitation, repayment histories and present status reports
relating to the Accounts so scheduled and such other matters and information
relating to the status of then existing Accounts as Agent shall request.
6.2.2 If an Account includes a charge for any tax payable to
any governmental taxing authority, Agent is authorized, in its sole discretion,
to pay the amount thereof to the proper taxing authority for the account of
Borrowers and to charge Borrowers therefor, except for taxes that (i) are being
actively contested in good faith and by appropriate proceedings and with respect
to which Borrowers maintain reasonable reserves on its books therefor and (ii)
would not reasonably be expected to result in any Lien other than a Permitted
Lien. In no event shall Agent or any Lender be liable for any taxes to any
governmental taxing authority that may be due by Borrowers.
6.2.3 Account Verification. Any of Agent's officers, employees
or agents shall have the right, at any time or times hereafter, in the name of
Agent, any designee of Agent or Borrowers, to verify the validity, amount or any
other matter relating to any Accounts by mail, telephone, electronic
communication or otherwise; provided, that unless a
22
Default or an Event of Default is then in existence, prior to conducting each
set of verifications, Agent shall generally consult with Borrowers about the
verification process. Borrowers shall cooperate fully with Agent in an effort to
facilitate and promptly conclude any such verification process.
6.2.4 Maintenance of Dominion Account. Borrowers have
established and shall maintain a Dominion Account or Accounts pursuant to
blocked account arrangements acceptable to Agent with Bank. Borrowers shall
issue, to the extent not previously issued, to any such banks an irrevocable
letter of instruction directing such banks to deposit all payments or other
remittances received in the blocked accounts to the Dominion Account for
application on account of the Obligations. All funds deposited in any Dominion
Account shall immediately become the property of Agent, for the ratable benefit
of Lenders, and Borrowers shall obtain, to the extent not previously obtained,
the agreement by such banks in favor of Agent to waive any offset rights against
the funds so deposited. Agent assumes no responsibility for such blocked account
arrangements, including, without limitation, any claim of accord and
satisfaction or release with respect to deposits accepted by any bank
thereunder.
6.2.5 Collection of Accounts, Proceeds of Collateral. To
expedite collection, each Borrower shall endeavor in the first instance to make
collection of its Accounts for Agent. All remittances received by Borrowers on
account of Accounts, together with the proceeds of any other Collateral, shall
be held as Agent's property, for its benefit and the benefit of Lenders, by
Borrowers as trustee of an express trust for Agent's benefit and Borrowers shall
on a daily basis deposit same in kind in the lockboxes or a Dominion Account.
Agent retains the right at all times after the occurrence and during the
continuance of a Default or an Event of Default to notify Account Debtors that
Borrowers' Accounts have been assigned to Agent and to collect Borrowers'
Accounts directly in its own name and to charge the collection costs and
expenses, including attorneys' fees, to Borrowers.
6.3 Records and Reports of Inventory.
Borrowers shall keep records of their Inventory which records shall
be complete and accurate in all material respects. Borrowers shall furnish to
Agent Inventory reports concurrently with the delivery of each Borrowing Base
Certificate described in subsection 8.1.4 or more frequently as requested by
Agent, which reports will be in such other format and detail as Agent shall
request and shall include a current list of all locations of Borrowers'
Inventory.
6.3.1 Additionally, at least once in each of January and July,
and at any time at the request of Agent if a Default or Event of Default shall
have occurred and be continuing, Borrowers shall, at Borrowers' expense cause
each Store to have physical inventories consistent with current practice
conducted by inventory takers satisfactory to Agent and following such
methodology satisfactory to Agent. If so requested by Agent, the Lead Borrower
shall provide Agent with a copy of the preliminary results of such inventory
within 10 days after completion and a reconciliation with Borrowers' books and
records within 30 days after completion. Agent may, at the expense of Borrowers,
participate in
23
and/or observe each physical count and/or inventory of so much of the Collateral
as consists of Inventory which inventory is undertaken on behalf of Borrowers.
6.3.2 From time to time, if Agent or any Lender determines
that obtaining appraisals is necessary in order for it to comply with applicable
laws or regulations, and at any time if a Default or an Event of Default shall
have occurred and be continuing, Agent may, at Borrowers' expense, obtain
appraisals conducted by such appraisers (who may be personnel of Agent) as are
satisfactory to Agent. Agent contemplates conducting four appraisals during any
twelve month period, but may conduct additional appraisals in its sole
discretion.
6.3.3 Agent contemplates conducting four commercial finance
audits (at Borrowers' expense) of Borrowers' books and records during any 12
month period, but may conduct additional audits in its sole discretion.
6.3.4 Agent may, from time to time, at Borrowers' expense,
undertake "mystery shopping" visits to all or any of Borrowers' business
premises. Agent shall provide the Lead Borrower with a copy of any
non-confidential results of such "mystery shopping."
6.3.5 Agent shall provide copies of the foregoing to the
Lenders upon request.
6.4 Administration of Equipment.
6.4.1 Records and Schedules of Equipment. Borrowers shall keep
records of their Equipment which shall be complete and accurate in all material
respects itemizing and describing the kind, type, quality, quantity and book
value of their Equipment and all dispositions made in accordance with subsection
6.4.2 hereof, and, if so requested by Agent, Borrowers shall, and shall cause
each of their Subsidiaries to, furnish Agent with a current schedule containing
the foregoing information. Promptly after the reasonable request therefor by
Agent, Borrowers shall deliver to Agent any and all evidence of ownership, if
any, of any of its Equipment.
6.4.2 Dispositions of Equipment. Borrowers shall not, and
shall not permit any of their Subsidiaries to, sell, lease or otherwise dispose
of or transfer any of their respective Equipment or other fixed assets or any
part thereof, without the prior written consent of Agent; provided, however,
that the foregoing restriction shall not apply, for so long as no Default or
Event of Default exists and is continuing, (i) to dispositions of Equipment or
other fixed assets with a book value not in excess of $50,000 in the aggregate
in any fiscal year and (ii) to replacements of Equipment or other fixed assets
that are substantially worn, damaged or obsolete with Equipment or other fixed
assets which are useful in the business of Borrowers or one of their
Subsidiaries, provided that the replacement Equipment or other fixed assets
shall be acquired within 90 days after any disposition of the Equipment or other
fixed assets that are to be replaced and the replacement Equipment or other
fixed assets shall be free and clear of Liens other than Permitted Liens that
are Purchase Money Liens.
24
6.5 Credit Card Receipts.
Annexed hereto as Exhibit 6.5 is a Schedule that describes all
arrangements to which Borrowers are a party with respect to the payment to
Borrowers of the proceeds of credit card charges for sales by Borrowers.
Borrowers have heretofore delivered to Agent, as a condition to the
effectiveness of this Agreement, notification, executed on behalf of Borrowers,
to each of Borrowers' credit card clearinghouses and processors of notice (in
form satisfactory to Agent), which notice provides that payment of all credit
card charges submitted by Borrowers to that clearinghouse or other processor and
any other amount payable to Borrowers by such clearinghouse or other processor
shall be directed to the Dominion Account or as otherwise designated from time
to time by Agent. Borrowers shall not change such direction or designation
except upon and with the prior written consent of Agent.
SECTION 7. REPRESENTATIONS AND WARRANTIES
7.1 General Representations and Warranties.
To induce Agent and each Lender to enter into this Agreement and to
make advances hereunder, each Borrower warrants, represents and covenants to
Agent and each Lender that:
7.1.1 Organization and Qualification. Each Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation or organization listed on Exhibit
7.1.1. Each of Borrowers' Subsidiaries is a corporation, limited partnership or
limited liability company duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization listed
on Exhibit 7.1.1. Each of Borrowers and each of their Subsidiaries is duly
qualified and is authorized to do business and is in good standing as a foreign
limited liability company, limited partnership or corporation, as applicable, in
each state or jurisdiction listed on Exhibit 7.1.1 hereto and in all other
states and jurisdictions in which the failure of Borrowers or any of their
Subsidiaries to be so qualified would reasonably be expected to have a Material
Adverse Effect.
7.1.2 Power and Authority. Borrowers and each of their
Subsidiaries are duly authorized and empowered to enter into, execute, deliver
and perform this Agreement and each of the other Loan Documents to which they
are a party. The execution, delivery and performance of this Agreement and each
of the other Loan Documents have been duly authorized by all necessary corporate
or other relevant action and do not and will not (i) require any consent or
approval of the shareholders of Borrowers or any of the shareholders, partners
or members, as the case may be, of any Subsidiary of Borrowers; (ii) contravene
Borrowers' or any of their Subsidiaries' charter, articles or certificate of
incorporation, partnership agreement, certificate of formation, by-laws, limited
liability agreement, operating agreement or other organizational documents (as
the case may be); (iii) violate, or cause Borrowers or any of their Subsidiaries
to be in default under, any provision of any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award in effect having
applicability to Borrowers or any of their Subsidiaries, the violation of which
would reasonably be expected to have a Material Adverse Effect; (iv) result in a
25
breach of or constitute a default under any indenture or loan or credit
agreement or any other agreement, lease or instrument to which Borrowers or any
of their Subsidiaries is a party or by which it or its Properties may be bound
or affected, the breach of or default under which would reasonably be expected
to have a Material Adverse Effect; or (v) result in, or require, the creation or
imposition of any Lien (other than Permitted Liens) upon or with respect to any
of the Properties now owned or hereafter acquired by Borrowers or any of their
Subsidiaries.
7.1.3 Legally Enforceable Agreement. This Agreement is, and
each of the other Loan Documents when delivered under this Agreement will be, a
legal, valid and binding obligation of each of Borrowers and each of their
Subsidiaries party thereto, enforceable against it in accordance with its
respective terms, except as limited by applicable bankruptcy or insolvency laws,
and by general principles of equity.
7.1.4 Capital Structure. Exhibit 7.1.4 hereto states, as of
the date hereof, (i) the correct name of each of the Subsidiaries of Borrowers,
its jurisdiction of incorporation or organization and the percentage of its
Voting Stock owned by Borrowers or a Subsidiary of Borrowers, (ii) the name of
each of Borrowers' and each of their Subsidiaries' corporate or joint venture
relationships and the nature thereof and (iii) the number of all outstanding
Securities of Borrowers and each Subsidiary of Borrowers. Borrowers have good
title to all of the Securities they purport to own of each of such Subsidiaries,
free and clear in each case of any Lien other than Permitted Liens. All such
Securities have been duly issued and are fully paid and non-assessable. As of
the date hereof, there are no outstanding options to purchase, or any rights or
warrants to subscribe for, or any commitments or agreements to issue or sell any
Securities or obligations convertible into, or any powers of attorney relating
to any Securities of any Subsidiaries of Lead Borrower. Except as set forth on
Exhibit 7.1.4, as of the date hereof, there are no outstanding agreements or
instruments binding upon any of such Subsidiaries' partners, members or
shareholders, as the case may be, relating to the ownership of their Securities.
Each Affiliate of Borrowers, whose existence is known to Borrowers is also
listed on Exhibit 7.1.4 (such representation and warranty being made only to the
knowledge of Borrowers, without obligation to inquire, as to Persons who are
Affiliates solely by virtue of the acquisition by such Persons of publicly
traded Voting Stock of Borrowers).
7.1.5 Names. Neither Borrowers nor any of their Subsidiaries
has been known as or has used any legal, fictitious or trade names except those
listed on Exhibit 7.1.5 hereto. Except as set forth on Exhibit 7.1.5, neither
Borrowers nor any of their Subsidiaries has been the surviving entity of a
merger or consolidation or has acquired all or substantially all of the assets
of any Person. Borrowers' and each of their Subsidiaries' respective states of
incorporation or organization, Type of Organization and Organizational I.D.
Number are set forth on Exhibits 7.1.4 and 7.1.5. The respective exact legal
names of Borrowers and each of their Subsidiaries are set forth on Exhibit
7.1.5.
7.1.6 Business Locations; Agent for Process. Each of
Borrowers' and their Subsidiary's chief executive office and other places of
business, including whether such property is owned or leased and the name and
address of any Lessor, as of the date hereof are as listed on Exhibit 6.1.1
hereto as updated from time to time by Borrowers. During the
26
preceding one-year period, neither Borrowers nor any of their Subsidiaries has
had an office or place of business other than as listed on Exhibit 6.1.1. All
tangible Collateral is and will at all times be kept by Borrowers and their
Subsidiaries in accordance with subsection 6.1.1. Except as shown on Exhibit
6.1.1 and except for Inventory in control of a customs broker who has entered
into a Customs Brokers Agreement, as of the date hereof, no Inventory is stored
with a bailee, distributor, warehouseman or similar party, nor is any Inventory
consigned to any Person.
7.1.7 Title to Properties; Priority of Liens. Each of
Borrowers and their Subsidiaries has good, indefeasible and marketable title to
and fee simple ownership of, or valid and subsisting leasehold interests in, all
of its real Property, and good title to all of the Collateral and all of its
other Property, in each case, free and clear of all Liens except Permitted
Liens. Each of Borrowers and each of their Subsidiaries has paid or discharged
all lawful claims which, if unpaid, might become a Lien against any of
Borrowers' or such Subsidiary's Properties that is not a Permitted Lien. The
Liens granted to Agent under Section 5 hereof are first priority Liens, subject
only to Permitted Liens.
7.1.8 Accounts. Agent may rely, in determining which Accounts
are Eligible Accounts, on all statements and representations made by Borrowers
with respect to any Account or Accounts. With respect to each of Borrowers'
Accounts, whether or not such Account is an Eligible Account, unless otherwise
disclosed to Agent in writing:
(i) It is genuine and in all respects what it purports
to be, and it is not evidenced by a judgment;
(ii) It arises out of a completed, bona fide sale and
delivery of goods or rendition of services by Borrowers, in the
ordinary course of its business and in accordance with the terms and
conditions of all purchase orders, contracts or other documents
relating thereto and forming a part of the contract between
Borrowers and the Account Debtor and the Account Debtor is not an
Affiliate of Borrowers or a Subsidiary of Borrowers;
(iii) It is for a liquidated amount maturing as stated
in the duplicate invoice covering such sale or rendition of
services, a copy of which has been furnished or is available to
Agent;
(iv) There are no facts, events or occurrences which in
any way impair the validity or enforceability of any Accounts or
tend to reduce the amount payable thereunder from the face amount of
the invoice and statements delivered or made available to Agent with
respect thereto;
(v) To the best of Borrowers' knowledge, the Account
Debtor thereunder (1) had the capacity to contract at the time any
contract or other document giving rise to the Account was executed
and (2) such Account Debtor is Solvent;
(vi) To the best of Borrowers' knowledge, there are no
proceedings or actions which are threatened or pending against the
Account
27
Debtor thereunder which might result in any material adverse change
in such Account Debtor's financial condition or the collectibility
of such Account;
(vii) Such Account, and Agent's security interest
therein, is not, and will not (by voluntary act or omission of
Borrowers) be in the future, subject to any offset, Lien (other than
Permitted Liens), deduction, recoupment, defense, dispute,
counterclaim or any other adverse condition except for disputes
resulting in returned goods where the amount in controversy is
deemed by Agent to be immaterial, and each such Account is
absolutely owing to Borrowers and is not contingent in any respect
or for any reason; and
(viii) Borrowers have made no agreement with any Account
Debtor thereunder for any extension, compromise, settlement or
modification of any such Account or any deduction therefrom, except
discounts or allowances which are granted by Borrowers in the
ordinary course of their business for prompt payment and which are
reflected in the calculation of the net amount of each respective
invoice related thereto.
7.1.9 Equipment. The Equipment of Borrowers and their
Subsidiaries is in good operating condition and repair, and all necessary
replacements of and repairs thereto shall be made so that the operating
efficiency thereof shall be maintained and preserved, reasonable wear and tear
excepted, except where the failure to so maintain the same would not reasonably
be expected to have a Material Adverse Effect. Borrowers will not permit any
Equipment to become affixed to any real Property leased to Borrowers or any of
their Subsidiaries so that an interest arises therein under the real estate laws
of the applicable jurisdiction unless the landlord of such real Property has
executed a landlord waiver or leasehold mortgage in favor of and in form
reasonably acceptable to Agent, and Borrowers will not permit any of the
Equipment of Borrowers or any of their Subsidiaries to become an accession to
any personal Property other than Equipment that is subject to first priority
(except for Permitted Liens) Liens in favor of Agent.
7.1.10 Financial Statements; Fiscal Year. The Consolidated
balance sheets of Borrowers and their Subsidiaries (including the accounts of
all Subsidiaries of Borrowers and their respective Subsidiaries for the
respective periods during which a Subsidiary relationship existed) as of
February 2, 2002, and the related statements of income for the periods ended on
such dates, have been prepared in accordance with GAAP, and present fairly in
all material respects the financial positions of Borrowers and such Persons,
taken as a whole, at such dates and the results of Borrowers' and such Persons'
operations, taken as a whole, for such periods. As of the date hereof, since
February 2, 2002, there has been no material adverse change in the financial
position of Borrowers and such other Persons, taken as a whole, as reflected in
the Consolidated balance sheet as of such date.
7.1.11 Full Disclosure. The financial statements referred to
in subsection 7.1.10 hereof do not, nor does this Agreement or any other written
statement of either Borrower to Agent or any Lender contain any untrue statement
of a material fact or omit a material fact necessary to make the statements
contained therein or herein not
28
misleading. There is no fact which Borrowers have failed to disclose to Agent or
any Lender in writing which would reasonably be expected to have a Material
Adverse Effect.
7.1.12 Solvent Financial Condition. Each of Borrowers and
their Subsidiaries, is now and, after giving effect to the initial Loans to be
made and the initial Letters of Credit and LC Guaranties to be issued hereunder
and all related transactions, will be, Solvent.
7.1.13 Surety Obligations. Except as set forth on Exhibit
7.1.13, as of the date hereof, neither Borrowers nor any of their Subsidiaries
is obligated as surety or indemnitor under any surety or similar bond or other
contract issued or entered into to assure payment, performance or completion of
performance of any undertaking or obligation of any Person.
7.1.14 Taxes. The Lead Borrower's federal tax identification
number is 00-0000000 and Michaels' federal tax identification number is
00-0000000. The federal tax identification number of each Subsidiary of
Borrowers is shown on Exhibit 7.1.14 hereto. Borrowers shall not change their
federal tax identification number. Each of Borrowers and their Subsidiaries has
filed all federal, state and local tax returns and other reports relating to
taxes it is required by law to file, except where the failure to so file would
not reasonably be expected to have a Material Adverse Effect, and has paid, or
made provision for the payment of, all taxes, assessments, fees, levies and
other governmental charges upon it, its income and Properties as and when such
taxes, assessments, fees, levies and charges are due and payable, unless and to
the extent any thereof are being actively contested in good faith and by
appropriate proceedings and each of Borrowers and their Subsidiaries maintains
reasonable reserves on its books therefor. The provision for taxes on the books
of Borrowers and their Subsidiaries is adequate for all years not closed by
applicable statutes, and for the current fiscal year.
7.1.15 Brokers. Except as shown on Exhibit 7.1.15 hereto,
there are no claims for brokerage commissions, finder's fees or investment
banking fees in connection with the transactions contemplated by this Agreement.
7.1.16 Patents, Trademarks, Copyrights and Licenses. Each of
Borrowers and their Subsidiaries owns, possesses or licenses or has the right to
use all the patents, trademarks, service marks, trade names, copyrights,
licenses and other Intellectual Property necessary for the present and planned
future conduct of its business without any known conflict with the rights of
others, except for such conflicts as would not reasonably be expected to have a
Material Adverse Effect. All such patents, trademarks, service marks,
tradenames, copyrights, licenses, and Intellectual Property are listed on
Exhibit 7.1.16 hereto. No claim has been asserted to Borrowers or any of their
Subsidiaries which is currently pending that their use of their Intellectual
Property or the conduct of their business does or may infringe upon the
Intellectual Property rights of any third party. To the knowledge of Borrowers
and except as set forth on Exhibit 7.1.16 hereto, as of the date hereof, no
Person is engaging in any activity that infringes in any material respect upon
any Borrower's or any of their Subsidiaries' material Intellectual Property.
Except as set forth on Exhibit 7.1.16, each of Borrowers' and their
Subsidiaries' (i) material trademarks, service marks, and copyrights
29
are registered with the U.S. Patent and Trademark Office or in the U.S.
Copyright Office, as applicable and (ii) material license agreements and similar
arrangements relating to its Inventory (1) permits, and does not restrict, the
assignment by Borrowers or any of their Subsidiaries to Agent, or any other
Person designated by Agent, of all of Borrowers' or such Subsidiary's, as
applicable, rights, title and interest pertaining to such license agreement or
such similar arrangement and (2) would permit the continued use by Borrowers or
such Subsidiary, or Agent or its assignee, of such license agreement or such
similar arrangement and the right to sell Inventory subject to such license
agreement for a period of no less than 6 months after a default or breach of
such agreement or arrangement. The consummation and performance of the
transactions and actions contemplated by this Agreement and the other Loan
Document, including without limitation, the exercise by Agent of any of its
rights or remedies under Section 10, will not result in the termination or
impairment of any of Borrowers' or any of their Subsidiaries' ownership or
rights relating to its Intellectual Property, except for such Intellectual
Property rights the loss or impairment of which would not reasonably be expected
to have a Material Adverse Effect. Except as listed on Exhibit 7.1.16 and except
as would not reasonably be expected to have a Material Adverse Effect, (i)
neither any Borrower nor any of their Subsidiaries is in breach of, or default
under, any term of any license or sublicense with respect to any of its
Intellectual Property and (ii) to the knowledge of Borrowers, no other party to
such license or sublicense is in breach thereof or default thereunder, and such
license is valid and enforceable.
7.1.17 Governmental Consents. Each of Borrowers and their
Subsidiaries has, and is in good standing with respect to, all governmental
consents, approvals, licenses, authorizations, permits, certificates,
inspections and franchises necessary to continue to conduct its business as
heretofore or proposed to be conducted by it and to own or lease and operate its
Properties as now owned or leased by it, except where the failure to possess or
so maintain such rights would not reasonably be expected to have a Material
Adverse Effect.
7.1.18 Compliance with Laws. Each of Borrowers and their
Subsidiaries has duly complied in all material respects with, and its
Properties, business operations and leaseholds are in compliance in all material
respects with, the provisions of all federal, state and local laws, rules and
regulations applicable to Borrowers or such Subsidiary, as applicable, their
Properties or the conduct of its business, except for such non-compliance as
would not reasonably be expected to have a Material Adverse Effect, and there
have been no citations, notices or orders of noncompliance issued to Borrowers
or any of their Subsidiaries under any such law, rule or regulation, except
where such noncompliance would not reasonably be expected to have a Material
Adverse Effect. Borrowers and each of their Subsidiaries have established and
maintain an adequate monitoring system to insure that they remain in compliance
in all material respects with all federal, state and local rules, laws and
regulations applicable to them. To the best of Borrowers' knowledge, without
additional inquiry, no Inventory has been produced in violation of the Fair
Labor Standards Act (29 U.S.C. Section 201 et seq.), as amended.
7.1.19 Restrictions. Neither any Borrower nor any of their
Subsidiaries is a party or subject to any contract or agreement which restricts
its right or ability to incur Indebtedness, except where such restriction would
not reasonably be expected
30
to have a Material Adverse Effect, none of which prohibit the execution of or
compliance with this Agreement or the other Loan Documents by Borrowers or any
of their Subsidiaries, as applicable.
7.1.20 Litigation. Except as set forth on Exhibit 7.1.20
hereto, there are no actions, suits, proceedings or investigations pending, or
to the knowledge of Borrowers, threatened, against or involving Borrowers or any
of their Subsidiaries, or the business, operations, Properties, prospects,
profits or condition of Borrowers or any of their Subsidiaries which, singly or
in the aggregate, would reasonably be expected to have a Material Adverse
Effect. Neither Borrowers nor any of their Subsidiaries is in default with
respect to any order, writ, injunction, judgment, decree or rule of any court,
governmental authority or arbitration board or tribunal, which, singly or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
7.1.21 No Defaults. No event has occurred and no condition
exists which would, upon or after the execution and delivery of this Agreement
or Borrowers' performance hereunder, constitute a Default or an Event of
Default. Neither Borrowers nor any of their Subsidiaries is in default in (and
no event has occurred and no condition exists which constitutes, or which the
passage of time or the giving of notice or both would constitute, a default in)
the payment of any Indebtedness to any Person for Money Borrowed in excess of
$300,000.
7.1.22 Leases. Exhibit 7.1.22 hereto is a complete listing of
all capitalized and operating personal property leases of Borrowers and their
Subsidiaries and all real property leases of Borrowers and their Subsidiaries.
Each of Borrowers and their Subsidiaries is in full compliance with all of the
terms of each of its respective capitalized and operating leases, except where
the failure to so comply would not reasonably be expected to have a Material
Adverse Effect. Each of Borrowers and their Subsidiaries shall not alter, amend
or modify any real property lease other than in the ordinary course of business
and in a manner that would not reasonably be expected to have a Material Adverse
Effect. Borrowers hereby authorize Agent at any time and from time to time to
contact any of the Borrowers' landlords in order to confirm the continued
compliance by any Borrower with the terms and conditions of the lease(s) between
such Borrower and that landlord and to discuss such issues, concerning such
Borrower's occupancy under such lease(s), as Agent may determine.
7.1.23 Pension Plans. Except as disclosed on Exhibit 7.1.23
hereto, neither any Borrower nor any of their Subsidiaries has any Plan. Each of
Borrowers and their Subsidiaries is in compliance with the requirements of ERISA
and the regulations promulgated thereunder with respect to each Plan, except
where the failure to so comply would not reasonably be expected to have a
Material Adverse Effect. No fact or situation that would reasonably be expected
to result in a material adverse change in the financial condition of Borrowers
and their Subsidiaries exists in connection with any Plan. Neither any Borrower
nor any of their Subsidiaries has any material withdrawal liability in
connection with a Multiemployer Plan.
7.1.24 Trade Relations. Except as set forth on Exhibit 7.1.24,
there exists no actual or, to Borrowers' knowledge, threatened termination,
cancellation or
31
limitation of, or any modification or change in, the business relationship
between any Borrower or any of its Subsidiaries and any customer or any group of
customers whose purchases individually or in the aggregate are material to the
business of Borrowers and their Subsidiaries, or with any material supplier,
except in each case, where the same would not reasonably be expected to have a
Material Adverse Effect, and there exists no present condition or state of facts
or circumstances which would prevent any Borrower or any of their Subsidiaries
from conducting such business after the consummation of the transaction
contemplated by this Agreement in substantially the same manner in which it has
heretofore been conducted.
7.1.25 Labor Relations. Except as described on Exhibit 7.1.25
hereto, as of the date hereof, neither any Borrower nor any of their
Subsidiaries is a party to any collective bargaining agreement. There are no
material grievances, disputes or controversies with any union or any other
organization of any Borrower's or any of their Subsidiaries' employees, or
threats of strikes, work stoppages or any asserted pending demands for
collective bargaining by any union or organization, except those that would not
reasonably be expected to have a Material Adverse Effect.
7.1.26 Conduct of Business. Neither Borrowers nor their
Subsidiaries shall engage in any business other than the business in which they
are currently engaged or a business reasonably related thereto.
7.1.27 Hazardous Materials. Neither Borrowers nor their
Subsidiaries have (i) been legally responsible for any release or threat of
release of any Hazardous Material; or (ii) received notification of any release
or threat of release of any Hazardous Material from any site or vessel occupied
or operated by Borrowers or any Subsidiaries and/or of the incurrence of any
expense or loss in connection with the assessment, containment, or removal of
any release or threat of release of any Hazardous Material from any such site or
vessel.
7.1.28 No Margin Stock Neither Borrowers nor their
Subsidiaries are engaged in the business of extending credit for the purpose of
purchasing or carrying any margin stock (within the meaning of Regulations U, T
and X of the Board of Governors of the Federal Reserve System of the United
States). No part of the proceeds of any borrowing hereunder will be used at any
time to purchase or carry any such margin stock or to extend credit to others
for the purpose of purchasing or carrying any such margin stock.
7.2 Continuous Nature of Representations and Warranties.
Each representation and warranty contained in this Agreement and the
other Loan Documents shall be continuous in nature and shall remain accurate,
complete and not misleading at all times during the term of this Agreement,
except for changes in the nature of Borrowers' or one of Borrowers' Subsidiary's
business or operations that would render the information in any exhibit attached
hereto or to any other Loan Document either inaccurate, incomplete or
misleading, so long as Majority Lenders have consented to such changes or such
changes are expressly permitted by this Agreement.
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7.3 Survival of Representations and Warranties.
All representations and warranties of Borrowers contained in this
Agreement or any of the other Loan Documents shall survive the execution,
delivery and acceptance thereof by Agent and each Lender and the parties thereto
and the closing of the transactions described therein or related thereto.
SECTION 8. COVENANTS AND CONTINUING AGREEMENTS
8.1 Affirmative Covenants.
During the term of this Agreement, and thereafter for so long as
there are any Obligations outstanding, each Borrower covenants that, unless
otherwise consented to by Majority Lenders, in writing, it shall:
8.1.1 Visits and Inspections; Lender Meeting. Permit
representatives of Agent, and during the continuation of any Default or Event of
Default any Lender, from time to time, as often as may be reasonably requested,
but only during normal business hours, to visit and inspect the Properties of
Borrowers and each of their Subsidiaries, inspect, audit and make extracts from
its books and records, and discuss with its officers, its employees and its
independent accountants, Borrowers' and each of their Subsidiaries' business,
assets, liabilities, financial condition, business prospects and results of
operations. Without limiting the foregoing, Borrowers will participate and will
cause its key management personnel to participate in a meeting with Agent and
Lenders periodically and in no event less than once during each year (except
that during the continuation of an Event of Default such meetings may be held
more frequently as requested by Agent or Majority Lenders), which meeting(s)
shall be held at such times and such places as may be reasonably requested by
Agent.
8.1.2 Notices. Promptly notify Agent in writing of the
occurrence of any event or the existence of any fact which renders any
representation or warranty in this Agreement or any of the other Loan Documents
inaccurate, incomplete or misleading in any material respect as of the date made
or remade. In addition, Borrowers agree to provide Agent with (i) 21 days' prior
written notice of (1) any change in the legal name of Borrowers or any of their
Subsidiaries, (2) the adoption by Borrowers or any of their Subsidiaries of any
new fictitious name or trade name, (3) any change in the chief executive office
of Borrowers or any of their Subsidiaries, (4) any change in the Lead Borrower's
officers, (5) the completion of any physical count of all or a material portion
of Borrowers' Inventory (together with a copy of the results thereof certified
by the Lead Borrower at the Agent's request), (6) any cessation by Borrowers of
their making payment to its creditors generally as Borrowers' debts become due,
(7) any failure by Borrowers to pay rent at any of Borrowers' locations, which
failure continues for more than three days following the last day on which such
rent was payable without more than a de minimus adverse effect to Borrowers, (8)
any change in the business, operations, or financial affairs of Borrowers that
could result in a Material Adverse Effect, (9) the occurrence of any Default or
Event of Default, (10) any intention on the part of the Lead Borrower to
discharge its present independent accountants or any withdrawal or resignation
by such independent accountants from their acting in such capacity or (11) any
litigation which, if determined adversely to Borrowers, might have a
33
Material Adverse Effect on the financial condition of Borrowers, and (ii) prompt
written notice of any change in the information disclosed in any exhibit hereto,
in each case after giving effect to the materiality limits and Material Adverse
Effect qualifications contained therein.
8.1.3 Financial Statements/Reporting Requirements. Keep, and
cause each of its Subsidiaries to keep, adequate records and books of account
with respect to its business activities in which proper entries are made in
accordance with customary accounting practices reflecting all its financial
transactions; and cause to be prepared and furnished to Agent and each Lender,
the following, all (in the case of the financial statements referred to in
paragraphs (i), (ii) and (iii)) to be prepared in accordance with GAAP applied
on a consistent basis, unless Borrowers' certified public accountants concur in
any change therein and such change is disclosed to Agent and is consistent with
GAAP:
(i) not later than 90 days after the close of each
fiscal year of Borrowers, unqualified (except for a qualification
for a change in accounting principles with which the accountant
concurs) audited financial statements of Borrowers and their
Subsidiaries as of the end of such year, on a Consolidated basis,
certified by a firm of independent certified public accountants of
recognized standing selected by Borrowers but acceptable to Agent
and, within a reasonable time thereafter a copy of any management
letter issued in connection therewith;
(ii) not later than 45 days after the end of each
fiscal quarter hereafter (and more often if requested, with respect
to the unaudited interim financial statements on a "store specific"
basis), unaudited interim financial statements of Borrowers and
their Subsidiaries as of the end of such fiscal quarter then
elapsed, on a Consolidated and "store specific" basis, and a
comparison of same store sales for the same fiscal quarter of the
previous year certified by the principal officer of Borrowers as
prepared in accordance with GAAP and fairly presenting in all
material respects the financial position and results of operation of
Borrowers and their Subsidiaries for such fiscal quarter subject
only to changes from audit and year-end adjustments and except that
such statements need not contain notes;
(iii) (a) not later than 15 days after the end of each
month hereafter, (1) a certified copy of the "Inventory
Certificate," (2) a Merchandise Management Report comparing
inventory to sales forecast, (3) summary pages of the STS stock
ledger by location, (4) report of inventory sold at the Restoration
Hardware Direct Fulfillment Center, (5) report of Eligible Prepaid
Inventory and (6) report of Eligible Inventory of Michaels.
(b) not later than 30 days after the end of each month
hereafter, unless such month is the end of a fiscal quarter, in
which case within 45 days following the end of such quarter;
including the last month of Borrowers' fiscal year, (1) unaudited
interim financial statements of Borrowers and their Subsidiaries as
of the end of such month and of the portion of the
34
fiscal year then elapsed, on a Consolidated basis, certified by the
principal financial officer of Borrowers as prepared in accordance
with GAAP and fairly presenting in all material respects the
financial position and results of operations of Borrowers and their
Subsidiaries for such month and period subject only to changes from
audit and year-end adjustments and except that such statements need
not contain notes, (2) reconciliation of the Stock Ledger Inventory
Report to Availability and to the general ledger, (3) a schedule of
year-to-date purchases from the Borrowers' ten largest vendors in
form satisfactory to Agent, including cumulative year-to-date
purchases and an aging of payables to each such vendor, (4) an aging
of Borrowers' account payables and (5) a Store Activity Report;
(iv) not later than Monday of each week for the
preceding week ending Saturday, hereafter, a flash sales report in
such form as specified by Agent, summary pages of the STS stock
ledger, and STS stock ledger pages for the Lead Borrower's Canadian
Affiliate;
(v) (a) together with each delivery of financial
statements pursuant to clauses (i), (ii) and (iii) of this
subsection 8.1.3, a management report setting forth in comparative
form the corresponding figures for the corresponding periods of the
previous fiscal year and the corresponding figures from the most
recent Projections for the current fiscal year delivered pursuant to
subsection 8.1.7, (b) together with the each delivery of financial
statements pursuant to clause (ii), a management report identifying
the reasons for any significant variations between the corresponding
figures for the corresponding periods of the previous fiscal year
and the corresponding figures from the most recent Projections for
the current fiscal year delivered pursuant to subsection 8.1.7. The
information above shall be presented in reasonable detail and shall
be certified by the chief financial officer of Borrowers to the
effect that such information fairly presents in all material
respects the results of operation and financial condition of
Borrowers and their Subsidiaries as at the dates and for the periods
indicated;
(vi) promptly after the sending or filing thereof, as
the case may be, copies of any proxy statements or financial
statements which Borrowers have made available to its Securities
holders and copies of any regular, periodic and special reports or
registration statements which, Borrowers or any of their
Subsidiaries files with the Securities and Exchange Commission or
any governmental authority which may be substituted therefor, or any
national securities exchange;
(vii) upon request of Agent, copies of any annual
report to be filed with ERISA in connection with each Plan; and
(viii) such other data and information (financial and
otherwise) as Agent or any Lender, from time to time, may reasonably
request,
35
bearing upon or related to the Collateral or Borrowers' or any of
their Subsidiaries' financial condition or results of operations.
No later than the earlier of (i) 15 days prior to the end of each of
the Borrowers' fiscal years or (ii) the date on which such accountants commence
their work on the preparation of the financial statements described in paragraph
(i) of this subsection 8.1.3, Lead Borrower shall give written notice to such
accountants (with a copy of such notice, when sent, to Agent) that (a) such
financial statements will be delivered by Borrowers to Agent (for subsequent
distribution by Agent to each Lender), (b) it is the primary intention of
Borrowers, in their engagement of such accountants, to satisfy the financial
reporting requirements set forth in this subsection 8.1.3; and (c) Borrowers
have been advised that Agent and each Lender will rely thereon with respect to
the administration of, and transactions under, the Total Credit Facility
contemplated by this Agreement.
Upon issuance, Borrowers shall forward to Agent a copy of the
accountants' letter to Borrowers' management that is prepared in connection with
the financial statements described in paragraph (i) of this subsection 8.1.3 and
also shall cause to be prepared and shall furnish to Agent a certificate of the
aforesaid certified public accountants certifying to Agent that, based upon
their examination of the financial statements of Borrowers and their
Subsidiaries performed in connection with their examination of said financial
statements, they are not aware of any Default or Event of Default, or, if they
are aware of such Default or Event of Default, specifying the nature thereof.
Concurrently with the delivery of the financial statements described in
paragraph (i), (ii) and (iii) of this subsection 8.1.3, or more frequently if
reasonably requested by Agent, Borrowers shall cause to be prepared and
furnished to Agent a Compliance Certificate in the form of Exhibit 8.1.3 hereto
executed by the Chief Financial Officer of Borrowers.
8.1.4 Borrowing Base Certificates. By 11:30 a.m. California
time, the more frequent of (i) weekly, each Monday for the previous week ending
Saturday or (ii) with each request for a Revolving Credit Loan, Borrowers shall
deliver to Agent a Borrowing Base Certificate as of the last day of the
immediately preceding period, with such supporting materials as Agent shall
reasonably request. If Borrowers deem it advisable, Borrowers shall execute and
deliver to Agent Borrowing Base Certificates more frequently than weekly.
8.1.5 Landlord, Processor and Storage Agreements. Upon
request, provide Agent with copies of all agreements between Borrowers or any of
their Subsidiaries and any landlord, processor, distributor, warehouseman or
consignee which owns any premises at which any Collateral may, from time to
time, be kept.
8.1.6 Canadian Affiliate Financial Statements. Deliver or
cause to be delivered to Agent financial statements, if any, for Canadian
Affiliate (to the extent not consolidated with the financial statements
delivered to Agent under subsection 8.1.3) in form and substance satisfactory to
Agent at such intervals and covering such time periods as Agent may request.
36
8.1.7 Projections. No later than 30 days prior to the end of
each fiscal year of Borrowers, deliver to Agent Projections of Borrowers and
each of their Subsidiaries for the forthcoming two fiscal years, month by month.
8.1.8 Subsidiaries. Cause each Subsidiary of Borrowers,
whether now or hereafter in existence, promptly upon Lender's request therefor,
to execute and deliver to Lender a Guaranty Agreement and a security agreement
pursuant to which such Subsidiary guaranties the payment of all Obligations and
grants to Lender a first priority Lien (subject only to Permitted Liens) on all
of its Properties of the types described in subsection 5.1. Additionally,
Borrowers shall execute and deliver to Lender a pledge agreement pursuant to
which Borrowers grant to Lender a first priority Lien (subject only to Permitted
Liens) with respect to all of the issued and outstanding Securities of each such
Subsidiary.
8.1.9 Hazardous Materials. Borrowers shall (i) dispose of any
Hazardous Material only in compliance with all Environmental Laws; and (ii) not
store on any site or vessel occupied or operated by Borrowers and not transport
or arrange for the transport of any Hazardous Material, except if such storage
or transport is in the ordinary course of Borrowers' business and is in
compliance with all Environmental Laws. The Lead Borrower shall provide Agent
with written notice upon obtaining knowledge of any incurrence of any expense or
loss by any governmental authority or other Person in connection with the
assessment, containment, or removal of any Hazardous Material, for which expense
or loss Borrowers may be liable.
8.1.10 Deposit and Brokerage Accounts. For each deposit
account or brokerage account that a Borrower at any time opens or maintains,
such Borrower shall, at Agent's request and option, pursuant to an agreement in
form and substance satisfactory to Lender, cause the depository bank or
securities intermediary, as applicable, to agree to comply at any time with
instructions from Agent to such depository bank or securities intermediary, as
applicable, directing the disposition of funds from time to time credited to
such deposit or brokerage account, without further consent of such Borrower.
8.2 Negative Covenants.
During the Term, and thereafter for so long as there are any
Obligations outstanding, each Borrower covenants that, unless otherwise
consented to by Majority Lenders, in writing, it shall not:
8.2.1 Mergers; Consolidations; Acquisitions; Structural
Changes. Merge or consolidate, or permit any Subsidiary of Borrowers to merge or
consolidate, with any Person; or acquire, or permit any of their respective
Subsidiaries to acquire, all or any substantial part of the Properties of any
Person; or change, or permit any Subsidiary of Borrowers to change, its state of
incorporation or organization or Type of Organization; or change, or permit any
Subsidiary of Borrowers to change, its legal name, except for:
(i) mergers of any Subsidiary of Borrowers into a
Borrower or another Subsidiary of Borrowers; and
37
(ii) acquisitions of assets consisting of fixed assets
or real property that constitute Capital Expenditures permitted
under subsection 8.2.8.
8.2.2 Loans Make, or permit any Subsidiary of Borrowers to
make, any loans or other advances of money to any Person, other than (i) for
salary, travel advances, advances against commissions and other similar advances
to employees and extensions of trade credit in the ordinary course of business,
(ii) deposits with financial institutions permitted under this Agreement, (iii)
prepaid expenses and (iv) intercompany loans from Lead Borrower to any
Subsidiary, or from any Subsidiary to Lead Borrower; provided that (A) loans to
Canadian Affiliate shall be limited to either (a) working capital loans relating
to the purchase of inventory or payment of current operating expenses of
Canadian Affiliate from Lead Borrower, for each purpose stated above, the amount
of any loan in the aggregate, shall not increase by more than $5,500,000 in any
calendar year or (b) loans arising from services fees charged by Lead Borrower
related to the transfers of inventory to Canadian Affiliate, and (B) if such
intercompany loans are evidenced by a promissory note or other Instrument, such
promissory note or other Instrument shall have been delivered to Agent pursuant
to Section 5.2 hereof.
8.2.3 Total Indebtedness. Create, incur, assume, or suffer to
exist, or permit any Subsidiary of Borrowers to create, incur or suffer to
exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under
this Agreement;
(ii) Indebtedness existing on the date of this
Agreement and listed on Exhibit 8.2.3;
(iii) Permitted Purchase Money Indebtedness;
(iv) Indebtedness with respect to Capital Leases
aggregating not in excess of $5,000,000 at any one time;
(v) Contingent liabilities, including but not limited
to liabilities in respect of gift certificates, merchandise returns,
special order deposits and deferred revenue, and other contingent
liabilities arising out of endorsement of checks or other negotiable
instruments for deposit or collection in the ordinary course of
business;
(vi) Accounts payable to trade creditors, accruals for
current operating expenses (other than for Money Borrowed, and
accruals including and which include but are not limited to sales
tax payable amounts and payroll, occupancy, interest and income tax
expense accruals), which are not aged more than thirty (30) days
from the due date, in each case incurred in the ordinary course of
business and paid within such time period, unless the same are being
actively contested in good faith and by appropriate and lawful
proceedings; and Borrowers or such Subsidiary shall have set aside
such reserves, if any,
38
with respect thereto as are required by GAAP and deemed adequate by
Borrowers or such Subsidiary and its independent accountants;
(vii) Indebtedness in respect of intercompany loans
permitted under subsection 8.2.2 (iv);
(viii) Accrued service fees, deferred lease incentives,
deferred rent and reserves related to sales returns, sales and use
taxes, litigation, escheat, and insurance (including
self-insurance), in each case established in the ordinary course of
business;
(ix) Indebtedness not included in paragraphs (i)
through (viii) above which does not exceed at any time, in the
aggregate, the sum of $3,000,000.
8.2.4 Affiliate Transactions. Enter into, or be a party to, or
permit any Subsidiary of Borrowers to enter into or be a party to, any
transaction with any Affiliate of Borrowers or any holder of any Securities of
Borrowers or any Subsidiary of Borrowers, including without limitation any
management, consulting or similar fees, except (i) in the ordinary course of and
pursuant to the reasonable requirements of Borrowers' or such Subsidiary's
business and upon fair and reasonable terms which are fully disclosed to Agent
and are no less favorable to Borrowers than would be obtained in a comparable
arms-length transaction with a Person not an Affiliate or Security holder of
Borrowers, (ii) distribution of proceeds of the Revolving Credit Loans to
Michaels and (iii) loans permitted pursuant to Section 8.2.2.
8.2.5 Limitation on Liens. Create or suffer to exist, or
permit any Subsidiary of Borrowers to create or suffer to exist, any Lien upon
any of its Property, income or profits, whether now owned or hereafter acquired,
except:
(i) Liens at any time granted in favor of Agent for
the benefit of Lenders;
(ii) Liens for taxes, assessments or governmental
charges (excluding any Lien imposed pursuant to any of the
provisions of ERISA) not yet due, or being contested in the manner
described in subsection 7.1.14 hereto, but only if such Lien would
not reasonably be expected to have a Material Adverse Effect;
(iii) Liens arising in the ordinary course of the
business of Borrowers or any of their Subsidiaries by operation of
law or regulation, but only if payment in respect of any such Lien
is not at the time required and such Liens do not, in the aggregate,
materially detract from the value of the Property of Borrowers or
any of their Subsidiaries or materially impair the use thereof in
the operation of the business of Borrowers or any of their
Subsidiaries;
(iv) Purchase Money Liens securing Permitted Purchase
Money Indebtedness;
39
(v) Such other Liens as appear on Exhibit 8.2.5
hereto;
(vi) Liens incurred or deposits made in the ordinary
course of business in connection with (1) worker's compensation,
social security, unemployment insurance and other like laws or (2)
sales contracts, leases, statutory obligations, work in progress
advances and other similar obligations not incurred in connection
with the borrowing of money or the payment of the deferred purchase
price of property;
(vii) Reservations, covenants, zoning and other land
use regulations, title exceptions or encumbrances granted in the
ordinary course of business, affecting real Property owned or leased
by Borrowers or one of their Subsidiaries; provided that such
exceptions do not in the aggregate materially interfere with the use
of such Property in the ordinary course of Borrowers' or such
Subsidiary's business;
(viii) Judgment Liens that do not give rise to an Event
of Default under subsection 10.1.15; and
(ix) Such other Liens as Majority Lenders may
hereafter approve in writing.
8.2.6 Store Closures. Commit to close any location at which
Borrowers maintain, offer for sale or store any of the Collateral; provided,
however that:
(A) Borrowers may close up to six Stores during any fiscal
year;
(B) Provided further that all payments for termination of
Store leases and all proceeds of Relocation Sales shall be
paid directly to the Dominion Account, to be applied and
distributed as set forth in Section 6.2;
(C) Provided further, that if requested by Agent, the Lead
Borrower shall provide to Agent and the Co-Administrative
Agent, weekly written updates (delivered on Tuesday of each
week for the prior week ended Saturday), segregated by
location, of the Inventory and Equipment liquidation and the
Relocation Sales, including detail concerning (a) the average
xxxx-xxxxx; (b) reconciliation of receipts; and (c) a report
that compares actual results against the plan provided by the
Lead Borrower pursuant to Section 8.2.6(D) below; and
(D) Provided further that the Lead Borrower shall provide to
Agent, and the Co-Administrative Agent, written notice
immediately upon the execution of any agreement to terminate a
Lease, or upon the Lead Borrower's decision to close one or
more Stores, including, if so requested by Agent: (a) a
summary detailing the key economic and timing provisions
thereof; (b) an executed copy of any lease termination
agreement; (c) a weekly Store closing plan that includes:
40
(i) the starting date of the Relocation Sales for the affected
Store (which shall not be less than ten (10) days following
delivery of the Store closing plan, except in the case of the
first Store to be closed pursuant to the Replacement Tenant
Agreement); (ii) a report showing Inventory at the affected
Store, valued at Cost and Retail; (iii) projected weekly gross
sales, net sales, markdowns, Gross Margin, and ending
Inventory at Cost and Retail; (iv) any additions to Inventory
(if applicable); (v) the ending date of the Relocation Sale;
and (vi) the plan for disposition of any remaining Inventory
after completion of the Relocation Sale at that Affected
Store.
8.2.7 Distributions. Declare or make, or permit any Subsidiary
of Borrowers to declare or make, any Distributions, except for:
(i) Distributions by any Subsidiary to Lead Borrower;
and
(ii) Distributions paid solely in Securities of
Borrowers or any of its Subsidiaries.
8.2.8 Capital Expenditures. Make Consolidated Net Capital
Expenditures (including, without limitation the total principal portion of
Capitalized Lease Obligations) which, in the aggregate, as to Borrowers and all
of their Subsidiaries, exceed (1) for the fiscal year ending February 2, 2002
("Fiscal Year 2001"), $5,000,000; (2) for the fiscal year ending February 1,
2003 ("Fiscal Year 2002"), $17,000,000 plus the amount allowed for Fiscal Year
2001 but not expended in such year, plus Fifty Percent (50%) of the amount by
which the Borrowers' actual Consolidated EBITDA for Fiscal Year 2001 exceeded
$16,000,000; (3) for the fiscal year ending February 1, 2004 ("Fiscal Year
2003"), $19,000,000); and (4) for the period from February 2, 2004 through June
30, 2004, $7,900,000.
8.2.9 Disposition of Assets. Sell, lease or otherwise dispose
of any of, or permit any Subsidiary of Borrowers to sell, lease or otherwise
dispose of any of, its Properties, including any disposition of Property as part
of a sale and leaseback transaction, to or in favor of any Person, except for:
(i) so long as no Event of Default has occurred and is
continuing, sales of Inventory in the ordinary course of business;
(ii) transfers of Property to Borrowers by a Subsidiary
of Borrowers;
(iii) dispositions of Property that is substantially
worn, damaged, uneconomic or obsolete (subject to subsection 6.4.2
hereof);
(iv) dispositions of investments described in
paragraphs (iv), (v), (vi) and (vii) of the definition of the term
"Restricted Investments"; and
41
(v) other dispositions expressly authorized by this
Agreement.
8.2.10 Securities of Subsidiaries. Permit any of its
Subsidiaries to issue any additional Securities except director's qualifying
Securities.
8.2.11 Xxxx-and-Hold Sales, Etc. Make, or permit any
Subsidiary of Borrowers to make, a sale to any customer on a xxxx-and-hold or
consignment basis.
8.2.12 Restricted Investment. Make or have, or permit any
Subsidiary of Borrowers to make or have, any Restricted Investment.
8.2.13 Subsidiaries and Joint Ventures. Create, acquire or
otherwise suffer to exist any Subsidiary or joint venture arrangement not in
existence as of the date hereof.
8.2.14 Tax Consolidation. File or consent to the filing of any
consolidated income tax return with any Person other than Borrowers and
Borrowers' Subsidiaries.
8.2.15 Organizational Documents. Agree to, or suffer to occur,
any amendment, supplement or addition to its or any of its Subsidiaries'
charter, articles or certificate of incorporation, certificate of formation,
limited partnership agreement, bylaws, limited liability agreement, operating
agreement or other organizational documents (as the case may be), that would
reasonably be expected to have a Material Adverse Effect.
8.2.16 Fiscal Year End. Change, or permit any Subsidiary of
Borrowers to change, its fiscal year end.
8.2.17 Additional Stores. Execute any lease, commit to, or
become legally obligated to, open any additional Stores unless each of the
following conditions is satisfied with respect thereto:
(i) Such commitment or obligation is in the ordinary
course of business.
(ii) Such commitment or obligation is not, and does not
result in, a violation of this Agreement.
(iii) Not less than 30 days' prior written notice of the
opening of the subject Store is given to the Agent.
(iv) The Borrowers have used their best efforts to
obtain a landlord's waiver from the landlord of the subject Store,
which waiver is in form reasonably satisfactory to the Agent.
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(v) Such commitment or obligation will not result in
the opening of more than the following number of Stores during the
period indicated:
(A) Fiscal Year 2002: one Store
(B) Fiscal Year 2003: five Stores
(C) Period ending June 30, 2004: five Stores
8.3 Specific Financial Covenants.
During the Term, and thereafter for so long as there are any
Obligations outstanding, Borrowers covenant that, unless otherwise consented to
by Majority Lenders in writing, it shall comply with all of the financial
covenants set forth in Exhibit 8.3 hereto. If GAAP changes from the basis used
in preparing the audited financial statements delivered to Agent by Borrowers on
or before the Closing Date, Borrowers will provide Agent with certificates
demonstrating compliance with such financial covenants and will include, at the
election of Borrowers or upon the request of Agent, calculations setting forth
the adjustments necessary to demonstrate how Borrowers are in compliance with
such financial covenants based upon GAAP as in effect on the Closing Date.
SECTION 9. CONDITIONS PRECEDENT
Notwithstanding any other provision of this Agreement or any of the
other Loan Documents, and without affecting in any manner the rights of Agent or
any Lender under the other sections of this Agreement, no Lender shall be
required to make any Loan, nor shall Agent be required to or issue or procure
any Letter of Credit or LC Guaranty unless and until each of the following
conditions has been and continues to be satisfied:
9.1 Documentation.
9.1.1 Agent shall have received, in form and substance
satisfactory to Agent and its counsel, a duly executed copy of this Agreement
and the other Loan Documents, together with such additional documents,
instruments and certificates as Agent and its counsel shall require in
connection therewith from time to time, all in form and substance satisfactory
to Agent and its counsel;
9.1.2 Resolutions of the Board of Directors of the Borrowers,
approving and authorizing the execution, delivery and performance of this Loan
and Security Agreement, certified as of the Effective Date by its corporate
secretary or an assistant secretary as being in full force and effect without
modification or amendment;
9.1.3 Signature and incumbency certificates of the officers of
Borrowers executing this Loan and Security Agreement; and
9.1.4 Originally executed copies of the favorable written
opinion of Xxxxxxxx & Xxxxxxxx LLP, outside counsel for Borrowers, in form and
substance reasonably
43
satisfactory to Agent and its counsel, dated as of the Effective Date and
setting forth such matters as Agent acting on behalf of Lenders may reasonably
request.
9.2 No Default.
No Default or Event of Default shall exist.
9.3 Other Conditions.
Each of the conditions precedent set forth in the Loan Documents
shall have been satisfied.
9.4 Representations and Warranties.
Each of the representations made by or on behalf of the Borrowers in
this Agreement or in any of the other Loan Documents or in any other report,
statement, document, or paper provided by or on behalf of the Borrowers shall be
true and complete as of the date as of which such representation or warranty was
made.
9.5 No Litigation.
No action, proceeding, investigation, regulation or legislation
shall have been instituted or proposed before any court, governmental agency or
legislative body to enjoin, restrain or prohibit, or to obtain damages in
respect of, or which is related to or arises out of this Agreement or the
consummation of the transactions contemplated hereby.
9.6 Material Adverse Effect.
Since the date of Borrowers' most recent audited financial
statements, there has not been any material adverse change in its business,
assets, financial condition, income or prospects and no event or condition
exists which would be reasonably likely to result in any Material Adverse
Effect.
SECTION 10. EVENTS OF DEFAULT; RIGHTS AND REMEDIES ON DEFAULT
10.1 Events of Default.
The occurrence of one or more of the following events shall
constitute an "Event of Default":
10.1.1 Payment of Obligations. Borrowers shall fail to pay any
of the Obligations hereunder or under any Note on the due date thereof (whether
due at stated maturity, on demand, upon acceleration or otherwise).
10.1.2 Misrepresentations. Any representation, warranty or
other statement made or furnished to Agent or any Lender by or on behalf of
Borrowers, any Subsidiary of Borrowers or any Guarantor in this Agreement, any
of the other Loan Documents or any instrument, certificate or financial
statement furnished in compliance with
44
or in reference thereto proves to have been false or misleading in any material
respect when made, furnished or remade pursuant to Section 7.2 hereof.
10.1.3 Breach of Specific Covenants. Borrowers shall fail or
neglect to perform, keep or observe any covenant contained in Sections 5.2,
6.1.2, 6.2.5, 6.5 8.1.1, 8.1.2, 8.1.4, 8.2 or 8.3 hereof on the date that
Borrowers are required to perform, keep or observe such covenant or shall fail
or neglect to perform, keep or observe any covenant contained in Section 8.1.3
hereof within 5 days following the date on which Borrowers are required to
perform, keep or observe such covenant.
10.1.4 Breach of Other Covenants. Borrowers shall fail or
neglect to perform, keep or observe any covenant contained in this Agreement
(other than a covenant which is dealt with specifically elsewhere in Section
10.1 hereof) and the breach of such other covenant is not cured to Agent's
satisfaction within 15 days after the sooner to occur of Borrowers' receipt of
notice of such breach from Agent or the date on which such failure or neglect
first becomes known to any officer of Borrowers.
10.1.5 Default Under Security Documents or Other Agreements.
Any event of default shall occur under, or any Borrower, any of their
Subsidiaries or any Guarantor shall default in the performance or observance of
any term, covenant, condition or agreement contained in, any of the Security
Documents or the Other Agreements and such default shall continue beyond any
applicable grace period.
10.1.6 Other Defaults. (a) There shall occur any default or
event of default on the part of any Borrower, any Subsidiary of Borrowers or any
Guarantor under any agreement, document or instrument to which such Borrower,
such Subsidiary of Borrowers or such Guarantor is a party or by which such
Borrower, such Subsidiary of Borrowers or such Guarantor or any of its Property
is bound, evidencing or relating to any Indebtedness (other than the
Obligations) with an outstanding principal balance in excess of $300,000, if the
payment or maturity of such Indebtedness is accelerated in consequence of such
event of default or demand for payment of such Indebtedness is made or could be
made in accordance with the terms thereof or (b) the occurrence of any of the
following with respect to Leases on which any Borrower or a Subsidiary is the
lessee or is obligated: (i) an aggregate of more than $200,000 in rent is then
overdue; (ii) default and the expiry of any applicable grace period with respect
to not more than two Leases of Stores; and (iii) default and the expiry of any
applicable grace period of any Lease of any warehouse or distribution center.
10.1.7 Uninsured Losses. Any material loss, theft, damage or
destruction of any portion of the Collateral having a fair market value of
$750,000, in the aggregate, if not fully covered (subject to such deductibles
and self-insurance retentions as Agent shall have permitted) by insurance.
10.1.8 Insolvency and Related Proceedings. A Borrower, any
Subsidiary of Borrowers or any Guarantor shall cease to be Solvent or shall
suffer the appointment of a receiver, trustee, custodian or similar fiduciary,
or shall make an assignment for the benefit of creditors, or any petition for an
order for relief shall be filed by or against any Borrower, any Subsidiary of
Borrowers or any Guarantor under the federal bankruptcy
45
laws (if against any Borrower, any Subsidiary of Borrowers or any Guarantor the
continuation of such proceeding for more than 30 days), or any Borrower, any
Subsidiary of Borrowers or any Guarantor shall make any offer of settlement,
extension or composition to their respective unsecured creditors generally.
10.1.9 Business Disruption; Condemnation. There shall occur a
cessation of a substantial part of the business of any Borrower, any Subsidiary
of Borrowers or any Guarantor for a period which materially adversely affects
such Borrower's, such Subsidiary's or such Guarantor's capacity to continue its
business on a profitable basis; or any Borrower, any Subsidiary of Borrowers or
any Guarantor shall suffer the loss or revocation of any material license or
permit now held or hereafter acquired by any Borrower, any Subsidiary of
Borrowers or any Guarantor which is necessary to the continued or lawful
operation of its business; or any Borrower, any Subsidiary of Borrowers or any
Guarantor shall be enjoined, restrained or in any way prevented by court,
governmental or administrative order from conducting all or any material part of
its business affairs; or any material lease or agreement pursuant to which any
Borrower, any Subsidiary of Borrowers or any Guarantor leases, uses or occupies
any Property shall be canceled or terminated prior to the expiration of its
stated term, except any such lease or agreement the cancellation or termination
of which would not reasonably be expected to have a Material Adverse Effect; or
any material portion of the Collateral shall be taken through condemnation or
the value of such Property shall be impaired through condemnation.
10.1.10 Change in Control. Any Change in Control.
10.1.11 ERISA. A Reportable Event shall occur which, in
Agent's determination, constitutes grounds for the termination by the Pension
Benefit Guaranty Corporation of any Plan or for the appointment by the
appropriate United States district court of a trustee for any Plan, or if any
Plan shall be terminated or any such trustee shall be requested or appointed, or
if Borrowers, any Subsidiary of Borrowers or any Guarantor is in "default" (as
defined in Section 4219(c)(5) of ERISA) with respect to payments to a
Multiemployer Plan resulting from Borrowers', such Subsidiary's or such
Guarantor's complete or partial withdrawal from such Plan and any such event
would reasonably be expected to have a Material Adverse Effect.
10.1.12 Challenge to Agreement. Any Borrower, any Subsidiary
of Borrowers or Guarantor, or any Affiliate of any of them, shall challenge or
contest in any action, suit or proceeding the validity or enforceability of this
Agreement or any of the other Loan Documents, the legality or enforceability of
any of the Obligations or the perfection or priority of any Lien granted to
Agent or a default shall occur under any Loan Document.
10.1.13 Key Management. The failure, for any reason, of the
Lead Borrower's chief executive officer or chief financial officer, as of the
Effective Date, to continue to serve in such capacity, if a replacement
therefor, reasonably satisfactory to Agent, is not identified within 90 days and
retained within 120 days, or the failure of any such replacement to continue to
serve in such capacity if a replacement therefor, reasonably satisfactory to
Agent, is not identified within 90 days and retained within 120 days.
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10.1.14 Criminal Forfeiture. Any Borrower, any Subsidiary of
Borrowers or any Guarantor shall be criminally indicted or convicted under any
law that could lead to a forfeiture of any Property of Borrowers, any Subsidiary
of Borrowers or any Guarantor.
10.1.15 Judgments. Any money judgments, writ of attachment or
similar processes (collectively, "Judgments") are issued or rendered against any
Borrower, any Subsidiary of Borrowers or any Guarantor, or any of their
respective Property (i) in the case of money judgments, in an amount of $300,000
or more for any single judgment, attachment or process in excess of any
applicable insurance with respect to which the insurer has admitted liability,
and (ii) in the case of non-monetary Judgments, such Judgment or Judgments (in
the aggregate) would reasonably be expected to have a Material Adverse Effect,
in each case which Judgment is not stayed, released or discharged within 30
days.
10.2 Acceleration of the Obligations.
Upon or at any time after the occurrence and during the continuance
of an Event of Default, (i) the Revolving Loan Commitments shall, at the option
of Agent or Majority Lenders be terminated and/or (ii) Agent or Majority Lenders
may declare all or any portion of the Obligations at once due and payable
without presentment, demand protest or further notice by Agent or any Lender,
and Borrowers shall forthwith pay to Agent, the full amount of such Obligations,
provided, that upon the occurrence of an Event of Default specified in
subsection 10.1.8 hereof, all of the Obligations shall become automatically due
and payable without declaration, notice or demand by Agent or any Lender.
10.3 Other Remedies.
Upon the occurrence and during the continuance of an Event of
Default, Agent shall have and may exercise from time to time the following other
rights and remedies:
10.3.1 All of the rights and remedies of a secured party under
the UCC or under other applicable law, and all other legal and equitable rights
to which Agent or Lenders may be entitled, all of which rights and remedies
shall be cumulative and shall be in addition to any other rights or remedies
contained in this Agreement or any of the other Loan Documents, and none of
which shall be exclusive.
10.3.2 The right to take immediate possession of the
Collateral, and to (i) require Borrowers and each of their Subsidiaries to
assemble the Collateral, at Borrowers' expense, and make it available to Agent
at a place designated by Agent which is reasonably convenient to both parties,
and (ii) enter any premises where any of the Collateral shall be located and to
keep and store the Collateral on said premises until sold (and if said premises
be the Property of Borrowers or any Subsidiary of Borrowers, Borrowers agree not
to charge, or permit any of their Subsidiaries to charge, Agent for storage
thereof).
10.3.3 The right to sell or otherwise dispose of all or any
Collateral in its then condition, or after any further manufacturing or
processing thereof, at public or private sale or sales, with such notice as may
be required by law, in lots or in bulk, for cash or on credit, all as Agent, in
its sole discretion, may deem advisable. Agent may, at Agent's
47
option, disclaim any and all warranties regarding the Collateral in connection
with any such sale. Borrowers agree that 10 days' written notice to any Borrower
or any of their Subsidiaries of any public or private sale or other disposition
of Collateral shall be reasonable notice thereof, and such sale shall be at such
locations as Agent may designate in said notice. Agent shall have the right to
conduct such sales on any Borrower's or any of their Subsidiaries' premises,
without charge therefor, and such sales may be adjourned from time to time in
accordance with applicable law. Agent shall have the right to sell, lease or
otherwise dispose of the Collateral, or any part thereof, for cash, credit or
any combination thereof, and Agent, on behalf of Lenders, may purchase all or
any part of the Collateral at public or, if permitted by law, private sale and,
in lieu of actual payment of such purchase price, may set off the amount of such
price against the Obligations. The proceeds realized from the sale of any
Collateral shall be applied to the Obligations upon receipt by Agent in
accordance with Section 3.2.6 hereof. If any deficiency shall arise, Borrowers
and each Guarantor shall remain jointly and severally liable to Agent and
Lenders therefor.
10.3.4 Agent is hereby granted a license or other right to
use, without charge, each Borrower's and each of their Subsidiary's labels,
patents, copyrights, licenses, rights of use of any name, trade secrets,
tradenames, trademarks and advertising matter, or any Property of a similar
nature, as it pertains to the Collateral, in completing, advertising for sale
and selling any Collateral and Borrowers' and each of their Subsidiary's rights
under all licenses and all franchise agreements shall inure to Agent's benefit.
10.3.5 Agent may, at its option, require Borrowers to deposit
with Agent funds equal to the LC Amount and, if Borrowers fail to promptly make
such deposit, Agent may advance such amount as a Revolving Credit Loan (whether
or not an Overadvance is created thereby). Each such Revolving Credit Loan shall
be secured by all of the Collateral and shall bear interest and be payable at
the same rate and in the same manner as Loans. Any such deposit or advance shall
be held by Agent as a reserve to fund future payments on such LC Guaranties and
future drawings against such Letters of Credit. At such time as all LC
Guaranties have been paid or terminated and all Letters of Credit have been
drawn upon or expired, any amounts remaining in such reserve shall be applied
against any outstanding Obligations, or, if all Obligations have been
indefeasibly paid in full, returned to Borrowers.
10.4 Set Off and Sharing of Payments.
In addition to any rights now or hereafter granted under applicable
law and not by way of limitation of any such rights, during the continuance of
any Event of Default, each Lender is hereby authorized by Borrowers at any time
or from time to time, with prior written consent of the Majority Lenders and
with reasonably prompt subsequent notice to Borrowers (any prior or
contemporaneous notice to Borrowers being hereby expressly waived) and each
Lender agrees that it shall, to the extent it is lawfully entitled to do so,
upon the request of Agent or the Majority Lenders, to set off and to appropriate
and to apply any and all (i) balances held by such Lender at any of its offices
for the account of any Borrower or any of their Subsidiaries (regardless of
whether such balances are then due to Borrowers or their Subsidiaries), and (ii)
other property at any time held or owing by such Lender to or for the credit or
for the account of any Borrower or any of their Subsidiaries, first against and
on account of any of the Obligations (other than the Derivative Obligations) and
second, against
48
any outstanding Derivative Obligations. Any Lender exercising a right to set off
shall, to the extent the amount of any such set off exceeds its Revolving Loan
Percentage of the amount set off, purchase for cash (and the other Lenders shall
sell) interests in each such other Lender's pro rata share of the Obligations as
would be necessary to cause such Lender to share such excess with each other
Lender in accordance with their respective Revolving Loan Percentages; provided
however, that if all or part of such excess payment received by the purchasing
party is thereafter recovered from it, those purchases of interests shall be
rescinded in whole or in part, as applicable, and the applicable portion of the
purchase price paid therefor shall be returned to the purchasing party. Each
Borrower agrees, to the fullest extent permitted by law, that any Lender may
exercise its right to set off with respect to amounts in excess of its pro rata
share of the Obligations and upon doing so shall deliver such excess to Agent
for the benefit of all Lenders in accordance with the Revolving Loan
Percentages.
10.5 Remedies Cumulative; No Waiver.
All covenants, conditions, provisions, warranties, guaranties,
indemnities, and other undertakings of Borrowers contained in this Agreement and
the other Loan Documents, or in any document referred to herein or contained in
any agreement supplementary hereto or in any schedule or in any Guaranty
Agreement given to Agent or any Lender or contained in any other agreement
between any Lender and Borrowers or between Agent and Borrowers heretofore,
concurrently, or hereafter entered into, shall be deemed cumulative to and not
in derogation or substitution of any of the terms, covenants, conditions, or
agreements of Borrowers herein contained. The failure or delay of Agent or any
Lender to require strict performance by Borrowers of any provision of this
Agreement or to exercise or enforce any rights, Liens, powers, or remedies
hereunder or under any of the aforesaid agreements or other documents or
security or Collateral shall not operate as a waiver of such performance, Liens,
rights, powers and remedies, but all such requirements, Liens, rights, powers,
and remedies shall continue in full force and effect until all Loans and other
Obligations owing or to become owing from Borrowers to Agent and each Lender
have been fully satisfied. None of the undertakings, agreements, warranties,
covenants and representations of Borrowers contained in this Agreement or any of
the other Loan Documents and no Event of Default by Borrowers under this
Agreement or any other Loan Documents shall be deemed to have been suspended or
waived by Lenders, unless such suspension or waiver is by an instrument in
writing specifying such suspension or waiver and is signed by a duly authorized
representative of Agent and directed to Borrowers.
SECTION 11. THE AGENT
11.1 Authorization and Action.
Each Lender hereby appoints and authorizes Agent to take such action
on its behalf and to exercise such powers under this Agreement and the other
Loan Documents as are delegated to Agent by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto. Each Lender
hereby acknowledges that Agent shall not have by reason of this Agreement
assumed a fiduciary relationship in respect of any Lender. In performing its
functions and duties under this Agreement, Agent shall act solely as agent of
49
Lenders and shall not assume, or be deemed to have assumed, any obligation
toward, or relationship of agency or trust with or for, Borrowers.
11.1.1 As to any matters not expressly provided for by this
Agreement and the other Loan Documents (including without limitation enforcement
and collection of the Notes), Agent may, but shall not be required to, exercise
any discretion or take any action, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from
acting) upon the instructions of the Majority Lenders, whenever such instruction
shall be requested by Agent or required hereunder, or a greater or lesser number
of Lenders if so required hereunder, and such instructions shall be binding upon
all Lenders; provided, that Agent shall be fully justified in failing or
refusing to take any action which exposes Agent to any liability or which is
contrary to this Agreement, the other Loan Documents or applicable law, unless
Agent is indemnified to its satisfaction by the other Lenders against any and
all liability and expense which it may incur by reason of taking or continuing
to take any such action. If Agent seeks the consent or approval of the Majority
Lenders (or a greater or lesser number of Lenders as required in this
Agreement), with respect to any action hereunder, Agent shall send notice
thereof to each Lender and shall notify each Lender at any time that the
Majority Lenders (or such greater or lesser number of Lenders) have instructed
Agent to act or refrain from acting pursuant hereto.
11.1.2 The capacity of Co-Administrative Agent is solely
titular in nature and Co-Administrative Agent shall not have any additional
rights or obligations under the Loan Documents by reason of such capacity.
11.1.3 References in the Loan Documents to Collateral Agent
shall be deemed to refer to Agent, and Fleet (or any successor entity acting as
Agent) shall have all the powers and authority that any Loan Document confers
upon the Collateral Agent in its capacity as Agent. All of the provisions of
this Section 11 applicable to Agent shall apply equally to Agent when acting
pursuant to the Loan Documents as Collateral Agent.
11.2 Agent's Reliance, Etc.
Neither Agent, any Affiliate of Agent, nor any of their respective
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement or
the other Loan Documents, except for its or their own gross negligence or
willful misconduct. Without limitation of the generality of the foregoing,
Agent: (i) may treat each Lender party hereto as the holder of Obligations until
Agent receives written notice of the assignment or transfer or such lender's
portion of the Obligations signed by such Lender and in form reasonably
satisfactory to Agent; (ii) may consult with legal counsel, independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts, (iii) makes no warranties or
representations to any Lender and shall not be responsible to any Lender for any
recitals, statements, warranties or representations made in or in connection
with this Agreement or any other Loan Documents; (iv) shall not have any duty
beyond Agent's customary practices in respect of loans in which Agent is the
only lender, to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of this Agreement or
50
the other Loan Documents on the part of Borrowers, to inspect the property
(including the books and records) of Borrowers, to monitor the financial
condition of Borrowers or to ascertain the existence or possible existence or
continuation of any Default or Event of Default; (v) shall not be responsible to
any Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or the other Loan Documents
or any other instrument or document furnished pursuant hereto or thereto; (vi)
shall not be liable to any Lender for any action taken, or inaction, by Agent
upon the instructions of Majority Lenders pursuant to Section 11.1 hereof or
refraining to take any action pending such instructions; (vii) shall not be
liable for any apportionment or distributions of payments made by it in good
faith pursuant to Section 3 hereof; (viii) shall incur no liability under or in
respect of this Agreement or the other Loan Documents by acting upon any notice,
consent, certificate, message or other instrument or writing (which may be by
telephone, facsimile, telegram, cable or telex) believed in good faith by it to
be genuine and signed or sent by the proper party or parties; and (ix) may
assume that no Event of Default has occurred and is continuing, unless Agent has
actual knowledge of the Event of Default, has received notice from Borrowers or
Borrowers' independent certified public accounts stating the nature of the Event
of Default, or has received notice from a Lender stating the nature of the Event
of Default and that such Lender considers the Event of Default to have occurred
and to be continuing. In the event any apportionment or distribution described
in clause (vii) above is determined to have been made in error, the sole
recourse of any Person to whom payment was due but not made shall be to recover
from the recipients of such payments any payment in excess of the amount to
which they are determined to have been entitled.
11.3 Fleet and Affiliates.
With respect to its commitment hereunder to make Loans, Fleet shall
have the same rights and powers under this Agreement and the other Loan
Documents as any other Lender and may exercise the same as though it were not
Agent; and the terms "Lender," "Lenders" or "Majority Lenders" shall, unless
otherwise expressly indicated, include Fleet in its individual capacity as a
Lender. Fleet and its Affiliates may lend money to, and generally engage in any
kind of business with, Borrowers, and any Person who may do business with or own
Securities of Borrowers all as if Fleet were not Agent and without any duty to
account therefor to any other Lender.
11.4 Lender Credit Decision.
Each Lender acknowledges that it has, independently and without
reliance upon Agent or any other Lender and based on the financial statements
referred to herein and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement. Agent
shall not have any duty or responsibility, either initially or on an ongoing
basis, to provide any Lender with any credit or other similar information
regarding Borrowers, except for notices, reports and other information as
required to be furnished pursuant to this Agreement.
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11.5 Indemnification.
Lenders agree to indemnify Agent (to the extent not reimbursed by
Borrowers), in accordance with their respective Aggregate Percentages, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against
Agent in any way relating to or arising out of this Agreement or any other Loan
Document or any action taken or omitted by Agent under this Agreement; provided
that no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from Agent's gross negligence or willful misconduct or
arising in connection with any Derivative Obligations. Without limitation of the
foregoing, each Lender agrees to reimburse Agent promptly upon demand for its
ratable share, as set forth above, of any out-of-pocket expenses (including
attorneys' fees) incurred by Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiation, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement and each
other Loan Document, to the extent that Agent is not reimbursed for such
expenses by Borrowers; provided that no Lender shall be liable to reimburse
Agent for any portion of such expenses resulting from Agent's gross negligence
or willful misconduct or arising in connection with any Derivative Obligations.
The obligations of Lenders under this Section 11.5 shall survive the payment in
full of all Obligations and the termination of this Agreement. If after payment
and distribution of any amount by Agent to Lenders, any Lender or any other
Person, including Borrowers, any creditor of Borrowers, a liquidator,
administrator or trustee in bankruptcy, recovers from Agent any amount found to
have been wrongfully paid to Agent or disbursed by Agent to Lenders, then
Lenders, in accordance with their respective Aggregate Percentages, shall
reimburse Agent for all such amounts, unless such amounts relate to any
Derivative Obligations.
11.6 Rights and Remedies to be Exercised by Agent Only.
Each Lender agrees that, except as set forth in subsection 10.4, no
Lender shall have any right individually (i) to realize upon the security
created by this Agreement or any other Loan Document, (ii) to enforce any
provision of this Agreement or any other Loan Document, or (iii) to make demand
under this Agreement or any other Loan Document.
11.7 Agency Provisions Relating to Collateral.
Each Lender authorizes and ratifies Agent's entry into this
Agreement and the Security Documents for the benefit of Lenders. Each Lender
agrees that any action taken by Agent with respect to the Collateral in
accordance with the provisions of this Agreement or the Security Documents, and
the exercise by Agent of the powers set forth herein or therein, together with
such other powers as are reasonably incidental thereto, shall be authorized and
binding upon all Lenders. Agent is hereby authorized on behalf of all Lenders,
without the necessity of any notice to or further consent from any Lender, from
time to time prior to an Event of Default, to take any action with respect to
any Collateral or the Loan Documents which may be necessary to perfect and
maintain perfected Agent's Liens upon the Collateral,
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for its benefit and the ratable benefit of Lenders. Lenders hereby irrevocably
authorize Agent, at its option and in its discretion, to release any Lien
granted to or held by Agent upon any Collateral (i) upon termination of the
Agreement and payment and satisfaction of all Obligations; or (ii) constituting
property being sold or disposed of if a Borrower certifies to Agent that the
sale or disposition is made in compliance with subsection 8.2.9 hereof (and
Agent may rely conclusively on any such certificate, without further inquiry);
or (iii) constituting property in which no Borrower owned an interest at the
time the Lien was granted or at any time thereafter; or (iv) in connection with
any foreclosure sale or other disposition of Collateral after the occurrence and
during the continuation of an Event of Default or (v) if approved, authorized or
ratified in writing by Agent at the direction of all Lenders. Upon request by
Agent at any time, Lenders will confirm in writing Agent's authority to release
particular types or items of Collateral pursuant hereto. Agent shall have no
obligation whatsoever to any Lender or to any other Person to assure that the
Collateral exists or is owned by Borrowers or is cared for, protected or insured
or has been encumbered or that the Liens granted to Agent herein or pursuant to
the Security Documents have been properly or sufficiently or lawfully created,
perfected, protected or enforced or are entitled to any particular priority, or
to exercise at all or in any particular manner or under any duty of care,
disclosure or fidelity, or to continue exercising, any of its rights,
authorities and powers granted or available to Agent in this Section 11.7 or in
any of the Loan Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission or event related thereto, Agent may act in any
manner it may deem appropriate, in its sole discretion, but consistent with the
provisions of this Agreement, including given Agent's own interest in the
Collateral as a Lender and that Agent shall have no duty or liability whatsoever
to any Lender.
11.8 Agent's Right to Purchase Commitments.
Agent shall have the right, but shall not be obligated, at any time
upon written notice to any Lender and with the consent of such Lender, which may
be granted or withheld in such Lender's sole discretion, to purchase for Agent's
own account all of such Lender's interests in this Agreement, the other Loan
Documents and the Obligations, for the face amount of the outstanding
Obligations owed to such Lender, including without limitation all accrued and
unpaid interest and fees.
11.9 Right of Sale, Assignment, Participations.
Borrowers hereby consent to any Lender's participation, sale,
assignment, transfer or other disposition, at any time or times hereafter, of
this Agreement and any of the other Loan Documents, or of any portion hereof or
thereof, including, without limitation, such Lender's rights, title, interests,
remedies, powers, and duties hereunder or thereunder subject to the terms and
conditions set forth below:
11.9.1 Sales, Assignments. Each Lender hereby agrees that,
with respect to any sale or assignment (i) no such sale or assignment shall be
for an amount of less than $10,000,000, (ii) each such sale or assignment shall
be made on terms and conditions which are customary in the industry at the time
of the transaction, (iii) Agent and, in the absence of a Default or Event of
Default, Borrowers, must consent, such consent not to be unreasonably withheld,
to each such assignment to a Person that is not an original signatory to
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this Agreement, (iv) the assignor Lender (or Borrowers, in the case of an
assignment required by Section 3.12) shall pay to the Agent a processing and
recordation fee of $5,000, provided that no such processing fee shall be due if
such assignor Lender was a Lender on September 27, 2000, and any out-of-pocket
attorneys' fees and expenses incurred by the Agent in connection with any such
sale or assignment and (v) such assignment shall be pursuant to the Assignment
Agreement substantially in the form of Exhibit 11.9.1 hereto. After such sale or
assignment has been consummated (x) the assignee Lender thereupon shall become a
"Lender" for all purposes of this Agreement and (y) the assigning Lender shall
have no further liability for funding the portion of Revolving Loan Commitments
assumed by such other Lender.
11.9.2 Participations. Any Lender may grant participations in
its extensions of credit hereunder to any other Lender or other lending
institution (a "Participant"), provided that (i) no such participation shall be
for an amount of less than $5,000,000, (ii) no Participant shall thereby acquire
any direct rights under this Agreement, (iii) no Participant shall be granted
any right to consent to any amendment, except to the extent any of the same
pertain to (1) reducing the aggregate principal amount of, or interest rate on,
or fees applicable to, any Loan or (2) extending the final stated maturity of
any Loan or the stated maturity of any portion of any payment of principal of,
or interest or fees applicable to, any of the Loans; provided, that the rights
described in this subclause (2) shall not be deemed to include the right to
consent to any amendment with respect to or which has the effect of requiring
any mandatory prepayment of any portion of any Loan or any amendment or waiver
of any Default or Event of Default, or (3) release a substantial portion of any
Collateral except as provided in the Loan Documents, (iv) no sale of a
participation in extensions of credit shall in any manner relieve the
originating Lender of its obligations hereunder, (v) the originating Lender
shall remain solely responsible for the performance of such obligations, (vi)
Borrowers and the Agent shall continue to deal solely and directly with the
originating Lender in connection with the originating Lender's rights and
obligations under this Agreement and the other Loan Documents, (vii) in no event
shall any financial institution purchasing the participation grant a
participation in its participation interest in the Loans without the prior
written consent of Agent, and, in the absence of a Default or an Event of
Default, Borrowers, which consents shall not unreasonably be withheld and (viii)
all amounts payable by Borrowers hereunder shall be determined as if the
originating Lender had not sold any such participation.
11.9.3 Certain Agreements of Borrowers. Borrowers agree that
(i) they will use its best efforts to assist and cooperate with each Lender in
any manner reasonably requested by such Lender to effect the sale of
participation in or assignments of any of the Loan Documents or any portion
thereof or interest therein, including, without limitation, assisting in the
preparation of appropriate disclosure documents and making members of management
available at reasonable times to meet with and answer questions of potential
assignees and Participants; and (ii) subject to the provisions of Section 12.14
hereof, such Lender may disclose credit information regarding Borrowers to any
potential Participant or assignee.
11.9.4 Non U.S. Resident Transferees. If, pursuant to this
Section 11.9, any interest in this Agreement or any Loans is transferred to any
transferee
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which is organized under the laws of any jurisdiction other than the United
States or any state thereof, the transferor Lender shall cause such transferee
(other than any Participant), and may cause any Participant, concurrently with
and as a condition precedent to the effectiveness of such transfer, to (i)
represent to the transferor Lender (for the benefit of the transferor Lender,
the Agent, and Borrowers) that under applicable law and treaties no taxes will
be required to be withheld by Agent, Borrowers or the transferor Lender with
respect to any payments to be made to such transferee in respect of the interest
so transferred, (ii) furnish to the transferor Lender, Agent and Borrowers
either United States Internal Revenue Service Form W-8ECI or United States
Internal Revenue Service Form W-8BEN (wherein such transferee claims entitlement
to complete exemption from United States federal withholding tax on all interest
payments hereunder), and (iii) agree (for the benefit of the transferor Lender,
Agent and Borrowers) to provide the transferor Lender, Agent and Borrowers a new
Form W-8ECI or Form W-8BEN upon the obsolescence of any previously delivered
form and comparable statements in accordance with applicable United States laws
and regulations and amendments duly executed and completed by such transferee,
and to comply from time to time with all applicable United States laws and
regulations with regard to such withholding tax exemption.
11.10 Amendment.
No amendment or waiver of any provision of this Agreement or any
other Loan Document (including without limitation any Note), nor consent to any
departure by Borrowers therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Majority Lenders and Borrowers, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, that no amendment, waiver or
consent shall be effective, unless (i) in writing and signed by each Lender, do
any of the following: (1) increase or decrease the aggregate Revolving Loan
Commitments, or any Lender's Revolving Loan Commitment, (2) reduce the principal
of, or interest on, any amount payable hereunder or under any Note, other than
those payable only to Fleet in its capacity as Agent, which may be reduced by
Fleet unilaterally, (3) increase or decrease any interest rate payable
hereunder, or reduce or postpone any fees payable under the terms of this
Agreement or any of the Loan Documents, (4) postpone any date fixed for any
payment of principal of, or interest on, any amounts payable hereunder or under
any Note, other than those payable only to Fleet in its capacity as Agent, which
may be postponed by Fleet unilaterally, or reduce or postpone any fees payable
under the terms of this Agreement or any of the Loan Documents, (5) reduce the
number of Lenders that shall be required for Lenders or any of them to take any
action hereunder, (6) release or discharge any Person liable for the performance
of any obligations of Borrowers hereunder or under any of the Loan Documents,
(7) amend any provision of this Agreement that requires the consent of all
Lenders or consent to or waive any breach thereof, (8) amend the definition of
the term "Majority Lenders", (9) amend this Section 11.10, (10) release or
contractually subordinate all or any portion of the Collateral with a value in
excess of $1,000,000 in the aggregate, unless otherwise permitted pursuant to
Section 11.7 hereof, (11) increase the Letter of Credit sublimit, (12) amend
Section 1.2 or the definitions of Borrowing Base, Inventory Advance Rate,
Inventory Appraisal Cap or Receivables Advance Rate, (13) make less restrictive
the eligibility criteria set forth in the definitions of Eligible Account,
Eligible Credit Card Receivables, Eligible In Transit Inventory, Eligible
Inventory or Eligible Letter of Credit Inventory or (14) decrease or eliminate
any reserves set forth in the definition of Availability
55
Reserves, Inventory Reserves or Receivables Reserves; or (ii) in writing and
signed by Agent in addition to the Lenders required above to take such action,
affect the rights or duties of Agent under this Agreement, any Note or any other
Loan Document; or (iii) in writing and signed by SwingLine Lender in addition to
the Lenders required above to take such action, affect the rights or duties of
SwingLine Lender under this Agreement, any Note or any other Loan Document.
11.11 Resignation of Agent; Appointment of Successor.
The Agent may resign as Agent by giving not less than thirty (30)
days' prior written notice to the Lenders and Borrowers. If the Agent shall
resign under this Agreement, then, (i) subject to the consent of the Borrowers
(which consent shall not be unreasonably withheld and which consent shall not be
required during any period in which a Default or an Event of Default exists),
the Majority Lenders shall appoint from among the Lenders a successor agent for
the Lenders or (ii) if a successor agent shall not be so appointed and approved
within the thirty (30) day period following the Agent's notice to the Lenders
and the Borrowers of its resignation, then the Agent shall appoint a successor
agent who shall serve as Agent until such time as the Majority Lenders appoint a
successor agent, subject to the Borrowers' consent as set forth above. Upon its
appointment, such successor agent shall succeed to the rights, powers and duties
of the Agent and the term "Agent" shall mean such successor effective upon its
appointment, and the former Agent's rights, powers and duties as Agent shall be
terminated without any other or further act or deed on the part of such former
Agent or any of the parties to this Agreement. After the resignation of any
Agent hereunder, the provisions of this Section 11 shall inure to the benefit of
such former Agent and such former Agent shall not by reason of such resignation
be deemed to be released from liability for any actions taken or not taken by it
while it was an Agent under this Agreement.
SECTION 12. MISCELLANEOUS
12.1 Power of Attorney.
Each Borrower hereby irrevocably designates, makes, constitutes and
appoints Agent (and all Persons designated by Agent) as such Borrower's true and
lawful attorney (and agent-in-fact), solely with respect to the matters set
forth in this Section 12.1, and Agent, or Agent's agent, may, without notice to
either Borrowers and in either Borrower's or Agent's name, but at the cost and
expense of Borrowers:
12.1.1 At such time or times as Agent or said agent, in its
sole discretion, may determine, endorse a Borrower's name on any checks, notes,
acceptances, drafts, money orders or any other evidence of payment or proceeds
of the Collateral which come into the possession of Agent or under Agent's
control.
12.1.2 At such time or times upon or after the occurrence and
during the continuance of an Event of Default (provided that the occurrence of
an Event of Default shall not be required with respect to clauses (iv), (vi),
(viii) and (ix) below), as Agent or its agent in its sole discretion may
determine: (i) demand payment of the Accounts from the Account Debtors, enforce
payment of the Accounts by legal proceedings or otherwise, and
56
generally exercise all of a Borrower's rights and remedies with respect to the
collection of the Accounts; (ii) settle, adjust, compromise, discharge or
release any of the Accounts or other Collateral or any legal proceedings brought
to collect any of the Accounts or other Collateral; (iii) sell or assign any of
the Accounts and other Collateral upon such terms, for such amounts and at such
time or times as Agent deems advisable; (iv) take control, in any manner, of any
item of payment or proceeds relating to any Collateral; (v) prepare, file and
sign a Borrower's name to a proof of claim in bankruptcy or similar document
against any Account Debtor or to any notice of lien, assignment or satisfaction
of lien or similar document in connection with any of the Collateral; (vi)
receive, open and dispose of all mail addressed to either Borrower and notify
postal authorities to change the address for delivery thereof to such address as
Agent may designate; (vii) endorse the name of a Borrower upon any of the items
of payment or proceeds relating to any Collateral and deposit the same to the
account of Agent on account of the Obligations; (viii) endorse the name of a
Borrower upon any chattel paper, document, instrument, invoice, freight xxxx,
xxxx of lading or similar document or agreement relating to the Accounts,
Inventory and any other Collateral; (ix) use a Borrower's stationery and sign
the name of a Borrower to verifications of the Accounts and notices thereof to
Account Debtors; (x) use the information recorded on or contained in any data
processing equipment and computer hardware and software relating to the
Accounts, Inventory, Equipment and any other Collateral; (xi) make and adjust
claims under policies of insurance; and (xii) do all other acts and things
necessary, in Agent's determination, to fulfill Borrowers' obligations under
this Agreement.
The power of attorney granted hereby shall constitute a power
coupled with an interest and shall be irrevocable.
12.2 Indemnity.
Borrowers hereby agree to indemnify Agent and each Lender (and each
of their Affiliates) and hold Agent and each Lender (and each of their
Affiliates) harmless from and against any liability, loss, damage, suit, action
or proceeding ever suffered or incurred by any such Person (including reasonable
attorneys fees and legal expenses) as the result of Borrowers' failure to
observe, perform or discharge Borrowers' duties hereunder. In addition,
Borrowers shall defend Agent and each Lender (and each of their Affiliates)
against and save it harmless from all claims of any Person with respect to the
Collateral (except those resulting from the gross negligence or intentional
misconduct of any such Person). Without limiting the generality of the
foregoing, these indemnities shall extend to any claims asserted against Agent
or any Lender (and each of their Affiliates) by any Person under any
Environmental Laws by reason of Borrowers' or any other Person's failure to
comply with laws applicable to solid or hazardous waste materials or other toxic
substances. Notwithstanding any contrary provision in this Agreement, the
obligation of Borrowers under this Section 12.2 shall survive the payment in
full of the Obligations and the termination of this Agreement.
12.3 Sale of Interest.
Borrowers may not sell, assign or transfer any interest in this
Agreement, any of the other Loan Documents, or any of the Obligations, or any
portion thereof, including,
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without limitation, Borrowers' rights, title, interests, remedies, powers, and
duties hereunder or thereunder.
12.4 Severability.
Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
12.5 Successors and Assigns.
This Agreement, the Other Agreements and the Security Documents
shall be binding upon and inure to the benefit of the successors and assigns of
Borrowers, Agent and each Lender permitted under Section 11.9 hereof.
12.6 Cumulative Effect; Conflict of Terms.
The provisions of the Other Agreements and the Security Documents
are hereby made cumulative with the provisions of this Agreement. Except as
otherwise provided in any of the other Loan Documents by specific reference to
the applicable provision of this Agreement, if any provision contained in this
Agreement is in direct conflict with, or inconsistent with, any provision in any
of the other Loan Documents, the provision contained in this Agreement shall
govern and control.
12.7 Execution in Counterparts.
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which
counterparts taken together shall constitute but one and the same instrument.
12.8 Notices.
Except as otherwise provided herein, all notices, requests and
demands to or upon a party hereto, to be effective, shall be in writing and
shall be sent by certified or registered mail, return receipt requested, by
personal delivery against receipt, by overnight courier or by facsimile and,
unless otherwise expressly provided herein, shall be deemed to have been validly
served, given, delivered or received immediately when delivered against receipt,
one Business Day after deposit with an overnight courier or, in the case of
facsimile notice, when sent, addressed as follows:
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If to Agent: Fleet Capital Corporation
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Loan Administration Manager
Facsimile No.: (000) 000-0000
With a copy to: O'Melveny & Xxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Facsimile No.: 000-000-0000
If to Borrowers: Restoration Hardware, Inc.
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile No.: 000-000-0000
With a copy to: Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile No.: 000-000-0000
or to such other address as each party may designate for itself by notice given
in accordance with this Section 12.8; provided, however, that any notice,
request or demand to or upon a Lender pursuant to subsection 3.1.1 or 4.2.2
hereof shall not be effective until received by such Lender.
12.9 Consent.
Whenever Agent's or Majority's Lenders' consent is required to be
obtained under this Agreement, any of the Other Agreements or any of the
Security Documents as a condition to any action, inaction, condition or event,
except as otherwise specifically provided herein, Agent or Majority Lenders, as
applicable, shall be authorized to give or withhold such consent in their sole
and absolute discretion.
12.10 Credit Inquiries.
Borrowers hereby authorize and permit Agent and each Lender to
respond to usual and customary credit inquiries from third parties concerning
Borrowers or any of their Subsidiaries.
12.11 Time of Essence.
Time is of the essence of this Agreement, the Other Agreements and
the Security Documents.
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12.12 Entire Agreement.
This Agreement and the other Loan Documents, together with all other
instruments, agreements and certificates executed by the parties in connection
therewith or with reference thereto, embody the entire understanding and
agreement between the parties hereto and thereto with respect to the subject
matter hereof and thereof and supersede all prior agreements, understandings and
inducements, whether express or implied, oral or written.
12.13 Interpretation.
No provision of this Agreement or any of the other Loan Documents
shall be construed against or interpreted to the disadvantage of any party
hereto by any court or other governmental or judicial authority by reason of
such party having or being deemed to have structured or dictated such provision.
12.14 Confidentiality.
Agent and each Lender shall hold all nonpublic information obtained
pursuant to the requirements of this Agreement in accordance with Agent's and
such Lender's customary procedures for handling confidential information of this
nature and in accordance with safe and sound banking practices and in any event
may make disclosure reasonably required by a prospective participant or assignee
in connection with the contemplated participation or assignment or as required
or requested by any governmental authority or representative thereof or pursuant
to legal process and shall require any such participant or assignee to agree to
comply with this Section 12.14.
12.15 GOVERNING LAW; CONSENT TO FORUM.
THIS AGREEMENT HAS BEEN NEGOTIATED AND DELIVERED IN AND SHALL BE
DEEMED TO HAVE BEEN MADE IN LOS ANGELES, CALIFORNIA. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA; PROVIDED, HOWEVER, THAT IF ANY OF THE COLLATERAL SHALL BE LOCATED IN
ANY JURISDICTION OTHER THAN CALIFORNIA, THE LAWS OF SUCH JURISDICTION SHALL
GOVERN THE METHOD, MANNER AND PROCEDURE FOR FORECLOSURE OF AGENT'S LIEN UPON
SUCH COLLATERAL AND THE ENFORCEMENT OF AGENT'S OTHER REMEDIES IN RESPECT OF SUCH
COLLATERAL TO THE EXTENT THAT THE LAWS OF SUCH JURISDICTION ARE DIFFERENT FROM
OR INCONSISTENT WITH THE LAWS OF CALIFORNIA. AS PART OF THE CONSIDERATION FOR
NEW VALUE RECEIVED, AND REGARDLESS OF ANY PRESENT OR FUTURE DOMICILE OR
PRINCIPAL PLACE OF BUSINESS OF ANY BORROWER, AGENT OR ANY LENDER, BORROWERS
HEREBY CONSENT AND AGREE THAT THE SUPERIOR COURT OF LOS ANGELES COUNTY,
CALIFORNIA, OR, AT AGENT'S OPTION, THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN ANY BORROWER ON THE ONE HAND AND AGENT
OR ANY LENDER ON THE OTHER
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HAND PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATED TO
THIS AGREEMENT. EACH BORROWER EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH
BORROWER HEREBY WAIVES ANY OBJECTION WHICH SUCH BORROWER MAY HAVE BASED UPON
LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH BORROWER HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH BORROWER AT THE ADDRESS SET FORTH
IN THIS AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE
EARLIER OF SUCH BORROWER'S ACTUAL RECEIPT THEREOF OR 3 DAYS AFTER DEPOSIT IN THE
U.S. MAILS, PROPER POSTAGE PREPAID. NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR
OPERATE TO AFFECT THE RIGHT OF AGENT OR ANY LENDER TO SERVE LEGAL PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW, OR TO PRECLUDE THE ENFORCEMENT BY AGENT OR ANY
LENDER OF ANY JUDGMENT OR ORDER OBTAINED IN SUCH FORUM OR THE TAKING OF ANY
ACTION UNDER THIS AGREEMENT TO ENFORCE SAME IN ANY OTHER APPROPRIATE FORUM OR
JURISDICTION.
12.16 WAIVERS BY BORROWER.
EACH BORROWER WAIVES (i) THE RIGHT TO TRIAL BY JURY (WHICH AGENT AND
EACH LENDER HEREBY ALSO WAIVES) IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM
OF ANY KIND ARISING OUT OF OR RELATED TO ANY OF THE LOAN DOCUMENTS, THE
OBLIGATIONS OR THE COLLATERAL; (ii) PRESENTMENT, DEMAND AND PROTEST AND NOTICE
OF PRESENTMENT, PROTEST, DEFAULT, NON PAYMENT, MATURITY, RELEASE, COMPROMISE,
SETTLEMENT, EXTENSION OR RENEWAL OF ANY OR ALL COMMERCIAL PAPER, ACCOUNTS,
CONTRACT RIGHTS, DOCUMENTS, INSTRUMENTS , CHATTEL PAPER AND GUARANTIES AT ANY
TIME HELD BY AGENT OR ANY LENDER ON WHICH BORROWER MAY IN ANY WAY BE LIABLE AND
HEREBY RATIFIES AND CONFIRMS WHATEVER AGENT OR ANY LENDER MAY DO IN THIS REGARD;
(iii) NOTICE PRIOR TO AGENT'S TAKING POSSESSION OR CONTROL OF THE COLLATERAL OR
ANY BOND OR SECURITY WHICH MIGHT BE REQUIRED BY ANY COURT PRIOR TO ALLOWING
AGENT TO EXERCISE ANY OF AGENT'S REMEDIES; (iv) THE BENEFIT OF ALL VALUATION,
APPRAISEMENT AND EXEMPTION LAWS; AND (v) NOTICE OF ACCEPTANCE HEREOF. BORROWER
ACKNOWLEDGES THAT THE FOREGOING WAIVERS ARE A MATERIAL INDUCEMENT TO AGENT'S AND
EACH LENDER'S ENTERING INTO THIS AGREEMENT AND THAT AGENT AND EACH LENDER IS
RELYING UPON THE FOREGOING WAIVERS IN ITS FUTURE DEALINGS WITH BORROWERS. EACH
BORROWER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THE FOREGOING WAIVERS WITH
ITS LEGAL COUNSEL AND HAS KNOWINGLY AND
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VOLUNTARILY WAIVED ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
12.17 Joint Borrower Provisions.
Each Borrower represents to the Lenders that each is an integral
part of a consolidated enterprise, and that each Borrower will receive direct
and indirect benefits from the availability of the joint credit facility
provided for herein, and from the ability to access the collective credit
resources of the consolidated enterprise that are Borrowers.
Each Borrower is, and at all times shall be, jointly and severally
liable for each and every one of the Obligations hereunder, regardless of which
Borrower requested, received, used, or directly enjoyed the benefit of the
extensions of credit hereunder. All of the Collateral shall secure all of the
Obligations. Each Borrower's Obligations are independent obligations and are
absolute and unconditional. Each Borrower, to the extent permitted by law,
hereby waives any defense to such Obligations that may arise by reason of the
disability or other defense or cessation of liability of any other Borrower for
any reason other than payment in full. Each Borrower also waives any defense to
such Obligations that it may have as a result of any Lender's or Agent's
election of or failure to exercise any right, power, or remedy, including,
without limitation, the failure to proceed first against such other Borrower or
any security it holds for such other Borrower's Obligations under any Loan
Document, if any. Without limiting the generality of the foregoing, each
Borrower expressly waives all demands and notices whatsoever (except for any
demands or notices, if any, that such Borrower expressly is entitled to receive
pursuant to the terms of any Loan Document), and agrees that the Lenders and
Agent may, without notice (except for such notice, if any, as such Borrower
expressly is entitled to receive pursuant to the terms of any Loan Document) and
without releasing the liability of such Borrower, extend for the benefit of the
other Borrower the time for making any payment, waive or extend the performance
of any agreement or make any settlement of any agreement for the benefit of any
other Borrower, and may proceed against each Borrower, directly and
independently of any other Borrower, as such obligee may elect in accordance
with this Agreement.
Each Borrower acknowledges that the Obligations of such Borrower
undertaken herein or in the other Loan Documents, and the grants of security
interests and liens by such Borrower to secure Obligations of the other Borrower
could be construed to consist, at least in part, of the guaranty of Obligations
of the other Borrower and, in full recognition of that fact, each Borrower
consents and agrees as hereinafter set forth in the balance of this Section
12.17. The consents, waivers, and agreements of the Borrowers that are contained
in the balance of this Section 12.17 are intended to deal with the suretyship
aspects of the transactions evidenced by the Loan Documents (to the extent that
a Borrower may be deemed a guarantor or surety for the Obligations of another
Borrower) and thus are intended to be effective and applicable only to the
extent that any Borrower has agreed to answer for the Obligations of another
Borrower or has granted a lien or security interest in Collateral to secure the
Obligations of another Borrower. Conversely, the consents, waivers, and
agreements of the Borrowers that are contained in the balance of this Section
12.17 shall not be applicable to the direct Obligations of a Borrower with
respect to credit extended
62
directly to such Borrower, and shall not be applicable to security interests or
liens on Collateral of a Borrower given to directly secure direct Obligations of
such Borrower where no aspect of guaranty or suretyship is involved. Each
Borrower consents and agrees that the Lenders may, at any time and from time to
time, without notice or demand, whether before or after any actual or purported
termination, repudiation or revocation of this Agreement by any one or more
Borrowers, and without affecting the enforceability or continuing effectiveness
hereof as to such Borrower, in accordance with the terms of the Loan Documents:
(a) supplement, restate, modify, amend, increase, decrease, extend, renew,
accelerate or otherwise change the time for payment or the terms of the
Obligations or any part thereof, including any increase or decrease of the
rate(s) of interest thereon; (b) supplement, restate, modify, amend, increase,
decrease or waive, or enter into or give any agreement, approval or consent with
respect to, the Obligations or any part thereof, or any of the Loan Documents or
any security or guarantees granted or entered into by any Person(s) other than
such Borrower, or any condition, covenant, default, remedy, right,
representation or term thereof or thereunder; (c) accept new or additional
instruments, documents or agreements in exchange for or relative to any of the
Loan Documents or the Obligations or any part thereof, (d) accept partial
payments on the Obligations; (e) receive and hold additional security or
guarantees for the Obligations or any part thereof, (f) release, reconvey,
terminate, waive, abandon, fail to perfect, subordinate, exchange, substitute,
transfer or enforce any security or guarantees, and apply any security and
direct the order or manner of sale thereof as the Lenders in their sole and
absolute discretion may determine; (g) release any other Person (including,
without limitation, any other Borrower) from any personal liability with respect
to the Obligations or any part thereof, (h) with respect to any Person other
than such Borrower (including, without limitation, any other Borrower), settle,
release on terms satisfactory to the Lenders or by operation of applicable laws
or otherwise liquidate or enforce any Obligations and any security therefor or
guaranty thereof in any manner, consent to the transfer of any security and bid
and purchase at any sale; or (i) consent to the merger, change or any other
restructuring or termination of the corporate or partnership existence of any
other Borrower or any other Person, and correspondingly agree, in accordance
with all applicable provisions of the Loan Documents, to the restructure of the
Obligations, and any such merger, change, restructuring or termination shall not
affect the liability of any Borrower or the continuing effectiveness hereof, or
the enforceability hereof with respect to all or any part of the Obligations.
Upon the occurrence and during the continuance of any Event of
Default, Agent and the Lenders may enforce the Loan Documents independently as
to each Borrower and independently of any other remedy Agent or the Lenders at
any time may have or hold in connection with the Obligations, and it shall not
be necessary for Agent or the Lenders to marshal assets in favor of any Borrower
or any other Person or to proceed upon or against or exhaust any security or
remedy before proceeding to enforce this Agreement or any other Loan Documents.
Each Borrower expressly waives any right to require Agent or the Lenders to
marshal assets in favor of any Borrower or any other Person or to proceed
against any other Borrower or any Collateral provided by any Person, and agrees
that Agent and the Lenders may proceed against Borrowers or any Collateral in
such order as they shall determine in their sole and absolute discretion.
Agent and the Lenders may file a separate action or actions against
any Borrower, whether action is brought or prosecuted with respect to any
security or against any
63
other Person, or whether any other Person is joined in any such action or
actions. Each Borrower agrees, for itself, that Agent, any Lender and any other
Borrower, or any Affiliate of any other Borrower (other than such Borrower
itself), may deal with each other in connection with the Obligations or
otherwise, or alter any contracts or agreements now or hereafter existing
between any of them, in any manner whatsoever, all without in any way altering
or affecting the continuing efficacy as to such Borrower of the Loan Documents.
Agent's and the Lenders' rights hereunder shall be reinstated and
revived, and the enforceability of this Agreement shall continue, with respect
to any amount at any time paid on account of the Obligations which thereafter
shall be required to be restored or returned by Agent or the Lenders (including,
without limitation, the restoration or return of any amount pursuant to a court
order or judgment (whether or not final or non-appealable), or pursuant to a
good faith settlement of a pending or threatened avoidance or recovery action,
or pursuant to good faith compliance with a demand made by a Person believed to
be entitled to pursue an avoidance or recovery action (such as a bankruptcy
trustee or a Person having the avoiding powers of a bankruptcy trustee, or
similar avoiding powers), and without requiring Agent or the Lenders to oppose
or litigate avoidance or recovery demands or actions that it believes in good
faith to be meritorious or worthy of settlement or compliance, or pursue or
exhaust appeals), all as though such amount had not been paid. The rights of
Agent or the Lenders created or granted herein and the enforceability of the
Loan Documents at all times shall remain effective to cover the full amount of
all the Obligations even though the Obligations, including any part thereof or
any other security or guaranty therefor, may be or hereafter may become invalid
or otherwise unenforceable as against any other Borrower and whether or not any
other Borrower shall have any personal liability with respect thereto.
To the maximum extent permitted by applicable law, each Borrower,
for itself, expressly waives any and all defenses now or hereafter arising or
that otherwise might be asserted by reason of (a) any disability or other
defense of any other Borrower with respect to the Obligations or with respect to
the enforceability of Agent's security interest in or Encumbrance on any
collateral securing any of the Obligations (including, without limitation, the
Collateral), (b) the unenforceability or invalidity of any security or guaranty
for the Obligations or the lack of perfection or continuing perfection or
failure of priority of any security for the Obligations, (c) the cessation for
any cause whatsoever of the liability of any other Borrower (other than by
reason of the full payment and performance of all Obligations), (d) any failure
of Agent to give notice of sale or other disposition of Collateral to any other
Borrower or any other Person other than such waiving Borrower, or any defect in
any notice that may be given to any other Borrower for any other Person other
than such waiving Borrower, in connection with any sale or disposition of any
collateral securing the Obligations or any of them (including, without
limitation, the Collateral), (e) any failure of Agent to comply with applicable
law in connection with the sale or other disposition of any collateral or other
security for any Obligations that is owned by another Borrower or by any other
Person other than such waiving Borrower, including any failure of Agent to
conduct a commercially reasonable sale or other disposition of any such
collateral or other security for any Obligations, (f) any act or omission of
Agent or others that directly or indirectly results in or aids the discharge or
release of any other Borrower, or the Obligations of any other Borrower, or any
security or guaranty therefor, by operation of law or otherwise, or (g) any law
which provides that the obligation of a surety or guarantor must neither be
larger in
64
amount nor in other respects more burdensome than that of the principal or which
reduces a surety's or guarantor's obligation in proportion to the principal
obligation. Until such time, if any, as all of the Obligations (other than
contingent Obligations and indemnities which survive repayment of the Loans)
have been paid and performed in full and no portion of any commitment of the
Lenders to any Borrower under any Loan Document remains in effect, no Borrower
shall have any right of subrogation, contribution, reimbursement or indemnity,
and each Borrower expressly waives any right to enforce any remedy that
Collateral Agent now have or hereafter may have against any other Person and
waives the benefit of, or any right to participate in, any collateral now or
hereafter held by Agent. Except to the extent expressly provided for in any Loan
Document, each Borrower expressly waives, to the maximum extent permitted by
applicable law, all rights or entitlements to presentments, demands for payment
or performance, notices of nonpayment or nonperformance, protests, notices of
protest, notices of dishonor and all other notices or demands of any kind or
nature whatsoever with respect to the Obligations, and all notices of acceptance
of the Loan Documents or of the existence, creation or incurring of new or
additional Obligations.
In the event that all or any part of the Obligations at any time
should be or become secured by any one or more deeds of trust or mortgages or
other instruments creating or granting liens on any interests in real property,
each Borrower authorizes Agent, upon the occurrence of and during the
continuance of any Event of Default, at its sole option, without notice or
demand except as is or may be expressly required by the terms of any Loan
Document or by the provisions of any applicable law, to foreclose any or all of
such deeds of trust or mortgages or other instruments by judicial or
non-judicial sale, without affecting or diminishing, except to the extent of the
effect of the application of the proceeds realized therefrom, and except to the
extent mandated by any non-waivable provision of applicable law, the Obligations
of any Borrower (other than the Obligations of a grantor of a foreclosed deed of
trust, mortgage, or other instrument, to the extent, if any, that applicable law
affects or diminishes the Obligations of such grantor), the enforceability of
this Agreement or any other Loan Document, or the validity or enforceability of
any remaining security interests or liens of, or for the benefit of, the Lenders
and Agent on any Collateral.
Each Borrower hereby agrees to keep each other Borrower fully
apprised at all times as to the status of its business, affairs, finances, and
financial condition, and its ability to perform its Obligations under the Loan
Documents, and in particular as to any adverse developments with respect
thereto. Each Borrower hereby agrees to undertake to keep itself apprised at all
times as to the status of the business, affairs, finances, and financial
condition of each other Borrower, and of the ability of each other Borrower to
perform its Obligations under the Loan Documents, and in particular as to any
adverse developments with respect to any thereof. Each Borrower hereby agrees,
in light of the foregoing mutual covenants to inform each other, and to keep
themselves and each other informed as to such matters, that the Lenders and
Agent shall have no duty to inform any Borrower of any information pertaining to
the business, affairs, finances, or financial condition of any other Borrower,
or pertaining to the ability of any other Borrower to perform its Obligations
under the Loan Documents, even if such information is adverse, and even if such
information might influence the decision of one or more of the Borrowers to
continue to be jointly and severally liable for, or to provide Collateral for,
Obligations of one or more of the other Borrowers. To the fullest extent
65
permitted by applicable law, each Borrower hereby expressly waives any duty of
the Lenders and Agent to inform any Borrower of any such information.
Borrowers and each of them warrant and agree that each of the
waivers and consents set forth herein are made after consultation with legal
counsel and with full knowledge of their significance and consequences, with the
understanding that events giving rise to any defense or right waived may
diminish, or otherwise adversely affect rights that Borrowers otherwise may have
against other Borrowers, Lenders, Agent, or others, or against Collateral, and
that, under the circumstances, the waivers and consents herein given are
reasonable. If any of the waivers or consents herein is determined to be
contrary to any applicable law or public policy, such waivers and consents shall
be effective to the maximum extent permitted by law.
12.18 Amendment and Restatement.
Agreement amends and restates in full that certain Sixth Amended and
Restated Loan and Security Agreement dated September 27, 2000, among the
Borrowers and Fleet Capital Corporation, as a lender and as agent for the
lenders referenced therein (the "September 2000 Agreement"). On the Effective
Date, all loans outstanding under the September 2000 Agreement shall become
Revolving Credit Loans to the Borrowers under this Agreement, of the same type
and amount, and the Revolving Credit Loans by each of the Lenders shall be
adjusted according to their Revolving Loan Percentage.
66
IN WITNESS WHEREOF, this Agreement has been duly executed on the day
and year specified at the beginning of this Agreement.
RESTORATION HARDWARE, INC., the Lead Borrower
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------------
Title: VP/CFO
--------------------------------------
THE MICHAELS FURNITURE COMPANY, a Borrower
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------------
Title: Director
--------------------------------------
FLEET CAPITAL CORPORATION, a Rhode Island
corporation, as Agent and as a Lender
By: /s/ Xxxxxxx X. Xxx Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxx Xxxxxxxxxx
---------------------------------------
Title: Senior Vice President
--------------------------------------
THE CIT GROUP/BUSINESS CREDIT, as the
Co-Administrative Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
---------------------------------------
Title: VP
--------------------------------------
S-1
APPENDIX A
GENERAL DEFINITIONS
When used in the Seventh Amended and Restated Loan Agreement
and Security Agreement dated as of November 26, 2002, by and among Fleet Capital
Corporation, individually and as Agent, the other financial institutions which
are or become parties thereto, Restoration Hardware, Inc. and The Michaels
Furniture Company,(a) the terms Account, Certificated Security, Chattel Paper,
Deposit Account, Document, Equipment, Financial Asset, Fixture, General
Intangibles, Goods, Instruments, Inventory, Investment Property, Security,
Proceeds, Security Entitlement, Uncertificated Security, Commercial Tort Claims,
Electronic Chattel Paper, Health-Care-Insurance Receivables, Letter-of-Credit
Rights, Payment Intangibles, Software, Supporting Obligations and Tangible
Chattel Paper have the respective meanings assigned thereto in the UCC (as
defined below); (b) all terms indicating Collateral having the meanings assigned
thereto under the UCC shall be deemed to mean such Property, whether now owned
or hereafter created or acquired by Borrowers or in which Borrowers now have or
hereafter acquire any interest; (c) capitalized terms which are not otherwise
defined have the respective meanings assigned thereto in said Loan and Security
Agreement; and (d) the following terms shall have the following meanings (terms
defined in the singular to have the same meaning when used in the plural and
vice versa):
"Account Debtor" - any Person who is or may become obligated
on or under or on account of any Account, Contract Right, Chattel Paper or
General Intangible.
"Affiliate" - a Person (other than a Subsidiary): (i) which
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, a Person; (ii) which
beneficially owns or holds 5% or more of any class of the Voting Stock of a
Person; or (iii) 5% or more of the Voting Stock (or in the case of a Person
which is not a corporation, 5% or more of the equity interest) of which is
beneficially owned or held by a Person or a Subsidiary of a Person.
"Agent" - Fleet Capital Corporation in its capacity as agent
for the Lenders under the Agreement and any successor in that capacity appointed
pursuant to subsection 11.11.
"Aggregate Percentage" - with respect to each Lender, the
percentage equal to the quotient of (i) such Lender's Revolving Loan Commitment
divided by (ii) the aggregate of all Revolving Loan Commitments.
"Agreement" - the Seventh Amended and Restated Loan and
Security Agreement referred to in the first sentence of this Appendix A, all
Exhibits and Schedules thereto and this Appendix A, as each of the same may be
amended from time to time.
"Applicable Margin" - the percentages set forth below with
respect to the Base Rate Revolving Portion and the LIBOR Revolving Portion:
A-1
Actual EBITDA for the Prior Twelve LIBOR Base Rate
Months Revolving Revolving
Portion Portion
--------------------------------------------------------------------------------
Tier I > $25,000,000 1.75% 1.00%
Tier II > $20,000,000 <= $25,000,000 2.00% 1.00%
Tier III > $17,500,000 <= $20,000,000 2.25% 1.00%
Tier IV > $15,000,000 <= $17,500,000 2.50% 1.25%
Tier V > $12,500,000 <= $15,000,000 2.75% 1.50%
Tier VI > $10,000,000 <= $12,500,000 3.00% 1.75%
Tier VII <= $10,000,000 3.25% 2.00%
In calculating EBITDA for the prior twelve months for purposes
of the above grid, EBITDA shall include, in the sole and complete discretion of
the Agent, one - time non - cash additions that are not offset by future cash
charges. The interest rate shall be adjusted based on the Borrowers' fiscal
quarter-end financial statements, effective immediately upon such determination
by the Agent, which shall be made promptly following receipt of such financial
statements. Notwithstanding the foregoing, but subject to Section 2.1.2,
interest shall accrue at the rate set pursuant to Tier V of the foregoing grid
through February 1, 2003.
"Appraised Inventory Liquidation Value" - The product of (a)
the Cost of Eligible Inventory (net of Inventory Reserves) multiplied by (b)
that percentage, determined from the then most recent appraisal of the
Borrowers' and Canadian Affiliate's Inventory obtained by the Agent, to reflect
the appraiser's estimate of the net realization on the liquidation of the Cost
of the Borrowers' and Canadian Affiliate's Inventory.
"Availability" - the amount of additional money which
Borrowers are entitled to borrow from time to time as Revolving Credit Loans,
such amount being the difference derived when the sum of the principal amount of
Revolving Credit Loans then outstanding (including any amounts which Agent or
any Lender may have paid for the account of Borrowers pursuant to any of the
Loan Documents and which have not been reimbursed by Borrowers), the LC Amount
and any Availability Reserves is subtracted from the Borrowing Base. If the
amount outstanding is equal to or greater than the Borrowing Base, Availability
is zero (0).
"Availability Reserves" - such reserves as the Agent from time
to time determines in the Agent's reasonable discretion as being appropriate to
reflect the impediments to the Agent's ability to realize upon the Collateral.
Without limiting the generality of the foregoing, Availability Reserves may
include (but are not limited to) reserves based on the following:
A-2
(i) Rent (based upon past due rent and/or whether or not a
landlord's waiver, acceptable to the Agent, has been received by the Agent)
(initially which shall be 2 months rent for each location located in a Landlord
State).
(ii) Customer Credit Liabilities (initially which shall be 50%
of the amount for such items as reflected on the Borrowers' general ledger).
(iii) Past due taxes and other governmental charges, including
ad valorem, personal property, and other taxes which might have priority over
the interests of Agent in the Collateral.
(iv) Import Landing Costs (initially which shall be 50% of
such amount as reflected on the Borrowers' stock ledger).
(v) Landing Costs (initially which shall be 50% of 15% of
Eligible Prepaid Inventory).
(vi) Deposits on special orders equal to 100% of total special
order deposit amounts as reflected on the Borrowers' balance sheet.
(vii) Payables (based upon payables which are past the
Borrowers' historical payment terms consistent with past practices).
(viii) Additional reserves related to matters particular to
Canadian Assets, including, without limitation, ad valorem taxes.
(ix) Foreign exchange contracts in an amount established in
the Agent's discretion.
"Bank" - Fleet National Bank.
"Base Rate" - the rate of interest announced or quoted by Bank
from time to time as its prime rate for commercial loans, whether or not such
rate is the lowest rate charged by Bank to its most preferred borrowers; and, if
such prime rate for commercial loans is discontinued by Bank as a standard, a
comparable reference rate designated by Bank as a substitute therefor shall be
the Base Rate.
"Base Rate Advance" - any Loan bearing interest computed by
reference to the Base Rate.
"Base Rate Revolving Portion" - that portion of the Revolving
Credit Loans that is subject to interest computed by reference to the Base Rate.
"Borrowing Base" - as at any date of determination thereof, an
amount equal to the lesser of:
(i) the Revolving Credit Maximum Amount; and
A-3
(ii) the result of the following:
(A) The Cost of Eligible Inventory (excluding Eligible Letter
of Credit Inventory) of the Lead Borrower (net of Inventory
Reserves) multiplied by the applicable Inventory Advance Rate,
not to exceed the applicable Inventory Appraisal Cap
plus
(B) The Cost of Eligible Letter of Credit Inventory of the
Lead Borrower (net of Inventory Reserves) multiplied by the
applicable Inventory Advance Rate
plus
(C) The Cost of Eligible Inventory (excluding Eligible Letter
of Credit Inventory) of the Canadian Affiliate (net of
Inventory Reserves) multiplied by the applicable Inventory
Advance Rate, not to exceed the applicable Inventory Appraisal
Cap, which, together with the result of subsection (ii)(D)
below, shall not exceed $1,500,000.00
plus
(D) The Cost of Eligible Letter of Credit Inventory of the
Canadian Affiliate (net of Inventory Reserves) multiplied by
the applicable Inventory Advance Rate, which, together with
the result of subsection (ii)(C) above, shall not exceed
$1,500,000.00
plus
(E) The product of the Cost of Eligible Inventory of Michaels
(net of Inventory Reserves) multiplied by 25%, which, together
with the result of subsection (ii)(F) below shall not exceed
$2,000,000.00
plus
(F) The product of the face amount of Eligible Accounts of
Michaels (net of Receivables Reserves) multiplied by the
applicable Receivables Advance Rate, which, together with the
result of subsection (ii)(E) above, shall not exceed
$2,000,000.00
plus
(G) The product of the face amount of Eligible Credit Card
Receivables of the Lead Borrower (net of Receivables Reserves)
multiplied by the applicable Receivables Advance Rate, which,
together with the result of subsection (ii)(H) below, shall
not exceed $5,000,000.00
A-4
plus
(H) The product of the face amount of Eligible Credit Card
Receivables of the Canadian Affiliate (net of Receivables
Reserves) multiplied by the applicable Receivables Advance
Rate, which, together with the results of subsection (ii)(G)
above, shall not exceed $5,000,000.00.
Provided, however, as of the Effective Date, Agent does not have a
perfected security interest in the Canadian Assets and the Canadian Inventory,
therefore, until such time as the Agent's security interest becomes perfected,
the amounts in subsections (ii)(C), (D) and (H) shall not be included in the
Borrowing Base calculation.
"Borrowing Base Certificate" - a certificate by a responsible
officer of Borrowers, in a form acceptable to Agent setting forth the
calculation of the Borrowing Base, including a calculation of each component
thereof, all in such detail as shall be satisfactory to Agent. All calculations
of the Borrowing Base in connection with the preparation of any Borrowing Base
Certificate shall originally be made by Borrowers and certified to Agent;
provided, that Agent shall have the right to review and adjust, in the exercise
of its reasonable credit judgment, any such calculation after giving notice
thereof to the Borrowers, (1) to reflect its reasonable estimate of declines in
value of any of the Collateral described therein, and (2) to the extent that
such calculation is not in accordance with this Agreement.
"Business Day" - (i) when used with respect to the LIBOR
Option, shall mean a day on which dealings may be effected in deposits of United
States Dollars in the London interbank foreign currency deposits market and on
which Agent is conducting and other banks may conduct business in London,
England or in the State of California and (ii) when used with respect to any
other provision of the Agreement, any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the State of California or is a day
on which banking institutions located in such state are closed.
"Canadian Affiliate" - Restoration Hardware Canada,
Incorporated.
"Canadian Assets" - the presently existing or hereafter
arising assets of the Canadian Affiliate.
"Canadian Inventory" - the Inventory of the Canadian
Affiliate.
"Capital Expenditures" - expenditures made or liabilities
incurred for the acquisition of any fixed assets or improvements, replacements,
substitutions or additions thereto which have a useful life of more than one
year, including the total principal portion of Capitalized Lease Obligations.
"Capitalized Lease Obligation" - any Indebtedness represented
by obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP.
A-5
"Change in Control" - the occurrence of any of the following:
(a) the failure of the Lead Borrower to own, beneficially and
of record, 100% of the capital stock of all of the other
Borrowers;
(b) the occurrence of any event or circumstance such that the
Lead Borrower does not have the power to elect all directors
of all other Borrowers; or
(c) the acquisition, by any group of persons (within the
meaning of the Securities Exchange Act of 1934, as amended) or
by any Person, of beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission),
directly or indirectly, of 40% or more of the issued and
outstanding capital stock of the Lead Borrower having the
right to vote for the election of directors of the Lead
Borrower or other than Palladin, Reservoir or Xxxx Xxxxxxxx;
or
(d) Directors who served as directors of the Lead Borrower on
October 1, 2002 (the "Incumbent Board"), cease for any reason
to constitute at least a majority of the Board of Directors of
the Lead Borrower; provided that any individual nominated by
The Palladin Capital Group, Inc. or Reservoir Capital Group,
Inc. to fill a seat held by a prior nominee of The Palladin
Capital Group, Inc. or Reservoir Capital Group, Inc. shall be
considered to be a member of the Incumbent Board.
"Collateral" - all of the Property and interests in Property
described in Section 5 of the Agreement, and all other Property and interests in
Property that now or hereafter secure the payment and performance of any of the
Obligations.
"Computer Hardware and Software" - all of Borrowers' rights
(including rights as licensee and lessee) with respect to (i) computer and other
electronic data processing hardware, including all integrated computer systems,
central processing units, memory units, display terminals, printers, computer
elements, card readers, tape drives, hard and soft disk drives, cables,
electrical supply hardware, generators, power equalizers, accessories,
peripheral devices and other related computer hardware; (ii) all Software and
all software programs designed for use on the computers and electronic data
processing hardware described in clause (i) above, including all operating
system software, utilities and application programs in any form (source code and
object code in magnetic tape, disk or hard copy format or any other listings
whatsoever); (iii) any firmware associated with any of the foregoing; and (iv)
any documentation for hardware, Software and firmware described in clauses (i),
(ii) and (iii) above, including flow charts, logic diagrams, manuals,
specifications, training materials, charts and pseudo codes.
"Consolidated" - the consolidation in accordance with GAAP of
the accounts or other items as to which such term applies.
A-6
"Contract Right" - any right of Borrowers to payment under a
contract for the sale or lease of goods or the rendering of services, which
right is at the time not yet earned by performance.
"Cost" - the lower of
(a) the calculated cost of Inventory purchases, as determined
from invoices received by Borrowers and reflected in
Borrowers' purchase journal or stock ledger, based upon
Borrowers' accounting practices in effect on the date hereof;
and
(b) the cost equivalent of the lowest ticketed or promoted
price at which the subject Inventory is offered to the public,
after all xxxx-xxxxx (whether or not such price is then
reflected on Borrowers' accounting system), determined in
accordance with the lower of cost or market method of
accounting and reflecting Borrowers' historic business
practices.
"Cost" does not include Inventory capitalization costs or
other non-purchase price charges (such as freight and
UNICAP) used in Borrowers' calculation of cost of goods sold.
"Credit Card Receivables" - Accounts due on a non-recourse
basis from major credit card processors.
"Current Assets" - at any date means the amount at which all
of the current assets of a Person would be properly classified
as current assets shown on a balance sheet at such date in
accordance with GAAP except that amounts due from Affiliates
and investments in Affiliates shall be excluded therefrom.
"Default" - an event or condition the occurrence of which
would, with the lapse of time or the giving of notice, or both, become an Event
of Default.
"Default Rate" - as defined in subsection 2.1.2 of the
Agreement.
"Derivative Obligations" - every obligation of a Person under
any forward contract, futures contract, swap, option or other financing
agreement or arrangement (including, without limitation, caps, floors, collars
and similar agreement), the value of which is dependent upon interest rates,
currency exchange rates, commodities or other indices.
"Distribution" - in respect of any Person means and includes:
(i) the payment of any dividends or other distributions on Securities (except
distributions in such Securities) and (ii) the redemption or acquisition of
Securities of such Person, as the case may be, unless made contemporaneously
from the net proceeds of the sale of Securities.
"Dominion Account" - a special bank account or accounts of
Agent established by Borrowers pursuant to subsection 6.2.4 of the Agreement at
a bank selected by Borrowers, but acceptable to Agent in its sole discretion,
and over which Agent shall have sole and exclusive access and control for
withdrawal purposes.
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"EBITDA" - The Borrowers' Consolidated earnings (excluding
extraordinary gains and gains from the sale of assets other than in the ordinary
course of business) before interest, taxes, depreciation, amortization and other
non-cash charges properly deducted in determining earnings in accordance with
GAAP, each as determined in accordance with GAAP.
"Effective Date" - November 26, 2002.
"Eligible Account" - such of Michaels' Accounts arising in the
ordinary course of the business of Michaels from the sale of goods or rendition
of services by Michaels which Agent, in its reasonable credit judgment, deems to
be an Eligible Account and subject to Agent's right to establish Reserves
therefor.
"Eligible Credit Card Receivables" - Credit Card Receivables
(which, if due on account of a private label credit card program, are deemed in
the reasonable credit judgment of the Agent to be eligible) which accounts have
been outstanding for no more than four Business Days, which are subject to
agreements with the applicable credit card clearinghouse satisfying the terms
and conditions of Section 6.5 and otherwise are satisfactory in form and
substance to the Agent and as to which the Agent has a perfected security
interest that is prior and superior to all claims and all Liens (other than
Permitted Liens, subject to the Agent's right to establish Reserves therefor).
"Eligible In Transit Inventory" - That portion of the Lead
Borrower's Inventory (without duplication of Eligible Inventory or Eligible
Letter of Credit Inventory) for which the Lead Borrower has paid, title to which
passed to the Lead Borrower, and which has been shipped from a foreign location
to the Lead Borrowers' warehouse provided that
(i) Such Inventory is of such types, character, qualities and
quantities as the Agent in its reasonable discretion from time to time
determines to be Eligible Inventory;
(ii) The documents which relate to such shipment name the
Agent as consignee of the subject Inventory and, if required by the Agent, the
Agent has control over the documents which evidence ownership of the subject
Inventory such as by providing a customs brokers agreement to the Agent); and
(iii) Such Inventory has not yet been delivered to the Lead
Borrower's warehouse and has been in transit from the applicable foreign
location for no more than 45 calendar days.
"Eligible Inventory" - Inventory of Borrowers and Canadian
Affiliate (other than packaging materials and supplies, tooling, samples and
literature) which Agent, in its reasonable credit judgment, deems to be Eligible
Inventory. Without limiting the generality of the foregoing, no Inventory shall
be Eligible Inventory if:
(i) it is not raw materials, work in process that is readily
marketable in its current form or finished goods;
(ii) it is not in good, new and saleable condition; or
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(iii) it is slow-moving, obsolete or unmerchantable; or
(iv) it does not meet all standards imposed by any
governmental agency or authority; or
(v) it does not conform in all respects to any covenants,
warranties and representations set forth in the Agreement; or
(vi) it is not at all times subject to Agent's duly perfected,
first priority security interest and no other Lien except a Permitted Lien; or
(vii) it is not Eligible In Transit Inventory; or
(viii) it is Michaels' supply and label Inventory; or
(ix) it is not otherwise acceptable to Agent in its reasonable
credit judgment.
"Eligible Letter of Credit Inventory" - That portion of
Inventory of a Person (without duplication of Eligible Inventory and Eligible
Prepaid Inventory), the purchase of which is supported by a documentary Letter
of Credit then having an initial expiry of 60 days or less days provided that
(a) Such Inventory is of such types, character, qualities and
quantities as the Agent in its reasonable discretion from time to time
determines to be Eligible Inventory;
(b) The documentary Letter of Credit which relate to such
shipment name the Agent as consignee of the subject Inventory and Agent has
control over the documents which evidence ownership of the subject Inventory
such as by providing a customs brokers agreement to the Agent); and
(c) Such Inventory has not yet been delivered to such Person's
warehouse and has been in transit from the applicable foreign location for no
more than 45 calendar days.
"Eligible Prepaid Inventory" - That portion of the Lead
Borrower's Inventory which consists of Eligible In Transit Inventory and
Eligible Letter of Credit Inventory.
Eligible Prepaid Inventory shall not include Inventory that
has been received by Borrowers at Borrowers' warehouse or distribution center
located in the United States and recorded in Borrowers' stock ledger.
"Environmental Laws" - all federal, state and local laws,
rules, regulations, ordinances, orders and consent decrees relating to pollution
or the protection of the environment.
"Equipment" - all machinery, apparatus, equipment, fittings,
furniture, fixtures, motor vehicles and other tangible personal Property (other
than Inventory) of every kind and description used in the operations of
Borrowers or any of its Subsidiaries or owned
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by Borrowers or any of its Subsidiaries or in which Borrowers or any of its
Subsidiaries has an interest, whether now owned or hereafter acquired by
Borrowers or any of its Subsidiaries and wherever located, and all parts,
accessories and special tools and all increases and accessions thereto and
substitutions and replacements therefor.
"ERISA" - the Employee Retirement Income Security Act of 1974,
as amended, and all rules and regulations from time to time promulgated
thereunder.
"Event of Default" - as defined in Section 10.1 of the
Agreement.
"Fiscal Year 2001" - as defined in Section 8.2.8.
"Fiscal Year 2002" - as defined in Section 8.2.8.
"Fiscal Year 2003" - as defined in Section 8.2.8.
"Foreign Exchange Facility" - as defined in Section 1.6.
"GAAP" - generally accepted accounting principles in the
United States of America in effect from time to time.
"Gross Margin" - with respect to the subject accounting period
for which being calculated, the decimal equivalent of the following (determined
in accordance with the cost method of accounting):
Net Sales (Minus) Cost of Goods Sold
------------------------------------
Net Sales
"Guarantor" - means any Subsidiary of Borrowers that executes
a guaranty of the Obligations in favor of Agent and Lenders.
"Hazardous Materials" - Any (a) hazardous materials, hazardous
waste, hazardous or toxic substances or petroleum products, which (as to any of
the foregoing) are defined or regulated as a hazardous material in or under any
Environmental Law and (b) oil in any physical state.
"Import Landing Costs" - to the extent not included in the
stated amount of a Letter of Credit, Landing Costs for Inventory, the purchase
of which is supported by such Letter of Credit, or customs, duty, freight, and
other out-of-pocket costs and expenses that will be expended to "land" in
transit Inventory and which is not included in invoices for prepaid Inventory.
"Indebtedness" - as applied to a Person means, without
duplication:
(i) all items which in accordance with GAAP would be included
in determining total liabilities as shown on the liability side of a balance
sheet of such Person as at the date as of which Indebtedness is to be
determined, including, without limitation, Capitalized Lease Obligations;
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(ii) all obligations of other Persons which such Person has
guarantied;
(iii) all reimbursement obligations in connection with letters
of credit or letter of credit guaranties issued for the account of such Person;
(iv) Derivative Obligations; and
(v) in the case of Borrowers (without duplication), the
Obligations.
"Intellectual Property" - all past, present and future: trade
secrets, know - how and other proprietary information; trademarks, internet
domain names, service marks, trade dress, trade names, business names, designs,
logos, slogans (and all translations, adaptions, derivations and combinations of
the foregoing) indicia and other source and/or business identifiers, and the
goodwill of the business relating thereto and all registrations or applications
for registrations which have heretofore been or may hereafter be issued thereon
throughout the world; copyrights (including copyrights for computer programs)
and copyright registrations or applications for registrations which have
heretofore been or may hereafter be issued throughout the world and all tangible
property embodying the copyrights, unpatented inventions (whether or not
patentable); patent applications and patents; industrial design applications and
registered industrial designs; license agreements related to any of the
foregoing and income therefrom; books, records, writings, computer tapes or
disks, flow diagrams, specification sheets, computer software, source codes,
object codes, executable code, data, databases and other physical
manifestations, embodiments or incorporations of any of the foregoing; the right
to xxx for all past, present and future infringements of any of the foregoing;
all other intellectual property; and all common law and other rights throughout
the world in and to all of the foregoing.
"Interest Period" - as applicable to any LIBOR Advance, a
period commencing on the date a LIBOR Advance is made, and ending on the date
which is one (1) month, two (2) months, three (3) months, or six (6) months
later, as may then be requested by Borrowers; provided that (i) any Interest
Period which would otherwise end on a day which is not a Business Day shall end
in the next preceding or succeeding Business Day as is Agent's custom in the
market to which such LIBOR Advance relates; (ii) there remains a minimum of one
(1) month, two (2) months, three (3) months or six (6) months (depending upon
which Interest Period Borrowers selects) in the Term; and (iii) all Interest
Periods of the same duration which commence on the same date shall end on the
same date.
"Inventory Advance Rate" - The following percentages during
the periods indicated in the chart below:
Canadian
Lead Borrower Affiliate
Period Percentage Percentage
------ ------------- ----------
December 25th - July 31st 68% 61.2%
August 1st - December 24th 72% 64.8%
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"Inventory Appraisal Cap" - (i) Eighty-Five Percent (85%) of
the Appraised Inventory Liquidation Value for Inventory of the Lead Borrower,
plus (ii) Seventy-Six and One-Half Percent (76.5%) of the Appraised Inventory
Liquidation Value for Inventory of the Canadian Affiliate.
"Inventory Reserves" - such Reserves as may be established
from time to time by Agent in Agent's reasonable discretion with respect to the
determination of the saleability, at liquidation, of the Eligible Inventory or
which reflect such other factors as affect the liquidation value of the Eligible
Inventory. Without limiting the generality of the foregoing, Inventory Reserves
may include (but are not limited to) reserves based on the following:
(i) Obsolescence (based upon Inventory on hand beyond a given
number of days).
(ii) Seasonality.
(iii) Shrinkage, which initially shall be the amount equal to
that percentage of actual shrink in excess of the percentage accrued by the
Borrowers.
(iv) Imbalance.
(v) Change in Inventory character.
(vi) Change in Inventory composition.
(vii) Change in Inventory mix.
(viii) Markdowns (both permanent and point of sale).
(ix) Retail xxxx ons and markups inconsistent with prior
period practice and performance; industry standards; current business plans; or
advertising calendar and planned advertising events.
(x) Damaged goods.
(xi) Consigned goods.
(xii) Any non-merchandise Inventory (such as labels, bags, and
packaging materials).
(xiii) Return to vendor merchandise.
(xiv) Packaways.
(xv) RAW Inventory (i.e. Inventory delivered to vendors on a
temporary basis for such work as assembly).
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(xvi) Catalogue photo sample Inventory.
(xvii) Inventory subject to open Letters of Credit.
(xviii) Inventory owned by the Canadian Affiliate.
Agent reserves the right to increase or to establish
additional Inventory Reserves upon one Business Day's written notice to the Lead
Borrower. If the Lead Borrower desires to challenge an increased or additional
Inventory Reserve, it may request Agent to obtain an updated Inventory appraisal
(conducted at Borrowers' expense) by providing a written request to Agent within
two Business Days of the notice by the Agent of the increased or additional
Inventory Reserve. Agent shall instruct the appraisal firm to conduct an
appraisal diligently, with a target completion of no more than two weeks. Agent
will make appropriate adjustments (if any) in the Inventory Reserves based on
such updated Inventory appraisal. Notwithstanding the foregoing, all increased
or additional Inventory Reserves will be binding pending completion of the
updated appraisal. Any appraisals obtained pursuant to this paragraph shall be
in addition to appraisals obtained by Agent pursuant to Section 6.3.
Any Event of Default that directly results from the imposition
of increased or additional Inventory Reserves pursuant to the paragraph above
shall be deemed cured in the event such Event of Default would not have existed
based upon the adjusted Inventory Reserves based upon the results of the updated
appraisal.
"Landing Costs" - customs, duty, freight, and other
out-of-pocket costs and expenses which will be expended to "land" in transit
Inventory, without duplication of Import Landing Costs.
"Landlord State" - initially Washington, Virginia, and
Pennsylvania and such other states in which a landlord's claim for rent has
priority over the Liens of the Agent in the Collateral.
"LC Amount" - at any time, the aggregate undrawn face amount
of all Letters of Credit and LC Guaranties then outstanding plus the face amount
of any outstanding bankers' acceptances arising out of drawings under such
Letters of Credit, without duplication.
"LC Guaranty" - any guaranty pursuant to which Agent or any
Affiliate of Agent shall guaranty the payment or performance by Borrowers of its
reimbursement obligation under any letter of credit.
"LC Obligations" - any Obligations that arise from any draw
against any Letter of Credit or against any Letter of Credit supported by an LC
Guaranty, including any bankers' acceptances that arise from any draw against
any Letter of Credit or that arise from any requirement to cash collateralize
any LC Amount.
"Lease" - any lease or other agreement, no matter how styled
or structured, pursuant to which any Borrower is entitled to the use or
occupancy of any space.
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"Letter of Credit" - any standby, documentary or usance letter
of credit issued by Agent or any Affiliate of Agent for the account of
Borrowers.
"LIBOR" - as applicable to any LIBOR Advance, the rate per
annum (rounded upward, if necessary, to the nearest 1/32 of one percent) as
determined on the basis of the offered rates for deposits in U.S. dollars, for a
period of time comparable to such LIBOR Advance which appears on the Telerate
page 3750 as of 11:00 a.m. (London time) on the date that is two (2) London
Banking Days preceding the first day of such LIBOR Advance; provided, however,
if the rate described above does not appear on the Telerate System on any
applicable interest determination date, the LIBOR rate shall be the rate
(rounded upwards as described above, if necessary) for deposits in U.S. dollars
for a period substantially equal to the interest period on the Reuters Page
"LIBO" (or such other page as may replace the LIBO Page on that service for the
purpose of displaying such rates), as of 11:00 a.m. (London Time), on the day
that is two (2) London Banking Days prior to the beginning of such interest
period. If both the Telerate and Reuters systems are unavailable, then the rate
for that date will be determined on the basis of the offered rates for deposits
in U.S. dollars for a period of time comparable to such LIBOR Advance which are
offered by four (4) major banks in the London interbank market at approximately
11:00 a.m. (London time), on the day that is two (2) London Banking Days
preceding the first day of such LIBOR Advance as selected by Agent. The
principal London office of each of the major London Banks so selected will be
requested to provide a quotation of its U.S. dollar deposit offered rate. If at
least two (2) such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations. If fewer than two quotations are provided as
requested, the rate for that date will be determined on the basis of the rates
quoted for loans in U.S. dollars to leading European banks for a period of time
comparable to such LIBOR Advance offered by major banks in New York City at
approximately 11:00 a.m. (New York City time), on the date that is two (2)
London Banking Days preceding the first day of such LIBOR Advance. In the event
that Agent is unable to obtain any such quotation as provided above, it will be
determined that LIBOR pursuant to a LIBOR Advance cannot be determined. In the
event that the Board of Governors of the Federal Reserve System shall impose a
Reserve Percentage with respect to LIBOR deposits of Bank then for any period
during which such Reserve Percentage shall apply, LIBOR shall be equal to the
amount determined above divided by an amount equal to 1 minus the Reserve
Percentage.
"LIBOR Advance" - any Loan bearing interest computed by
reference to the LIBOR.
"LIBOR Interest Payment Date" - the first day of each calendar
month during and immediately following the applicable Interest Period.
"LIBOR Revolving Portion" - that portion of the Revolving
Credit Loans that is subject to interest computed by reference to the LIBOR.
"Lien" - any interest in Property securing an obligation owed
to, or a claim by, a Person other than the owner of the Property, whether such
interest is based on common law, statute or contract. The term "Lien" shall also
include rights of seller under conditional sales contracts or title retention
agreements, reservations, exceptions, encroachments, easements,
A-14
rights-of-way, covenants, conditions, restrictions, leases and other title
exceptions and encumbrances affecting Property. For the purpose of the
Agreement, Borrowers shall be deemed to be the owner of any Property which it
has acquired or holds subject to a conditional sale agreement or other
arrangement pursuant to which title to the Property has been retained by or
vested in some other Person for security purposes.
"Loan Account" - the loan account established on the books of
Agent pursuant to Section 3.6 of the Agreement.
"Loan Documents" - the Agreement, the Other Agreements and the
Security Documents.
"Loans" - all loans and advances of any kind made by Agent or
any Lender (or by any Affiliate of Fleet) pursuant to the Agreement.
"London Banking Day" - any date on which commercial banks are
open for business in London, England.
"Majority Lenders" - as of any date, Lenders holding 66 2/3%
of the Revolving Loan Commitments determined on a combined basis and following
the termination of the Revolving Loan Commitments, Lenders holding 66 2/3% or
more of the outstanding Loans, LC Amounts and LC Obligations not yet reimbursed
by Borrowers or funded with a Revolving Credit Loan; provided, that (i) in each
case, if there are 2 or more Lenders with outstanding Loans, LC Amounts,
unfunded and unreimbursed LC Obligations or Revolving Loan Commitments, at least
2 Lenders shall be required to constitute Majority Lenders; and (ii) prior to
termination of the Revolving Loan Commitments, if any Lender breaches its
obligation to fund any requested Revolving Credit Loan, for so long as such
breach exists, its voting rights hereunder shall be calculated with reference to
its outstanding Loans, LC Amounts and unfunded and unreimbursed LC Obligations,
rather than its Revolving Loan Commitment.
"Material Adverse Effect" - (i) a material adverse effect on
the business, condition (financial or otherwise), operation, performance or
properties of Borrowers and their Subsidiaries taken as a whole, (ii) a material
adverse effect on the rights and remedies of Agent or Lenders under the Loan
Documents, or (iii) the material impairment of the ability of any Borrower or
any of their Subsidiaries to perform its obligations hereunder or under any Loan
Document.
"Money Borrowed" - means, without duplication, (i)
Indebtedness arising from the lending of money by any Person to any Borrower or
any of its Subsidiaries; (ii) Indebtedness, whether or not in any such case
arising from the lending by any Person of money to any Borrower or any of its
Subsidiaries, (1) which is represented by notes payable or drafts accepted that
evidence extensions of credit, (2) which constitutes obligations evidenced by
bonds, debentures, notes or similar instruments, or (3) upon which interest
charges are customarily paid (other than accounts payable) or that was issued or
assumed as full or partial payment for Property; (iii) Indebtedness that
constitutes a Capitalized Lease Obligation; (iv) reimbursement obligations with
respect to letters of credit or guaranties of
A-15
letters of credit and (v) Indebtedness of any Borrower or any of its
Subsidiaries under any guaranty of obligations that would constitute
Indebtedness for Money Borrowed under clauses (i) through (iv) hereof, if owed
directly by any Borrower or any of its Subsidiaries. Money Borrowed shall not
include trade payables or accrued expenses.
"Mortgages" - All mortgages, deeds of trust and comparable
documents now or at any time hereafter securing the whole or any part of the
Obligations.
"Multiemployer Plan" - has the meaning set forth in Section
4001(a)(3) of ERISA.
"Net Availability" - Availability less amounts needed to bring
trade payables, accrued expenses, and rents within normal terms (excluding those
amounts for which a bona fide dispute exists in the ordinary course of
business), in each case as determined by Agent in its discretion; provided that,
in so exercising its discretion: (i) during the period between January 26 and
July 31, inclusive, of each year, Agent's determination of what constitutes
normal terms for trade payables shall be at least fifty (50) days from the
invoice date in the aggregate for outstanding trade payables; and (ii) during
the period between August 1 and January 25, inclusive, of each year, Agent's
determination of what constitutes normal terms for trade payables shall be at
least sixty - five (65) days from the invoice date in the aggregate for
outstanding trade payables.
"Net Capital Expenditures" - Capital Expenditures net of
actual cash received from landlords for tenant improvements relating to the
Borrowers' leased store locations.
"Notes" - the Revolving Notes and the Swing Line Note.
"Obligations" - all Loans, all LC Obligations and all other
advances, debts, liabilities, obligations, covenants and duties, together with
all interest, fees and other charges thereon, owing, arising, due or payable
from Borrowers to any Lender or Agent, for its own benefit and the benefit of
the Lenders, or from Borrowers to Bank or to any other affiliate of Fleet, of
any kind or nature, present or future, whether or not evidenced by any note,
guaranty or other instrument, whether arising under the Agreement or any of the
other Loan Documents or otherwise, whether direct or indirect (including those
acquired by assignment), absolute or contingent, primary or secondary, due or to
become due, now existing or hereafter arising and however acquired, including
without limitation any Derivative Obligations owing to Agent, any Lender or
Bank.
"Organizational I.D. Number" - with respect to Borrowers or
any Subsidiary of Borrowers, the organizational identification number assigned
to Borrowers or such Subsidiary by the applicable governmental unit or agency of
the jurisdiction of organization of Borrowers or such Subsidiary.
"Other Agreements" - any and all agreements, instruments and
documents (other than the Agreement and the Security Documents), heretofore, now
or hereafter executed by Borrowers, any Subsidiary of Borrowers or any other
third party and delivered to Agent in respect of the transactions contemplated
by the Agreement.
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"Overadvance" - the amount, if any, by which the outstanding
principal amount of Revolving Credit Loans, plus the LC Amount, plus the amount
of LC Obligations that have not been reimbursed by Borrowers or funded with a
Revolving Credit Loan, plus reserves, exceeds the Borrowing Base.
"Permitted Liens" - any Lien of a kind specified in subsection
8.2.5 of the Agreement.
"Permitted Purchase Money Indebtedness" - Purchase Money
Indebtedness of Borrowers incurred after the date hereof which is secured by a
Purchase Money Lien.
"Person" - an individual, partnership, corporation, limited
liability company, joint stock company, land trust, business trust, or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Plan" - an employee benefit plan now or hereafter maintained
for employees of Borrowers or any of its Subsidiaries that is covered by Title
IV of ERISA.
"Projections" - Borrowers' forecasted Consolidated (i) balance
sheets, (ii) profit and loss statements, (iii) cash flow statements, and (iv)
capitalization statements, all prepared on a consistent basis with the
historical financial statements of Borrowers and their Subsidiaries, together
with appropriate supporting details and a statement of underlying assumptions.
"Property" - any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Protective Advances" - means expenditures by the Agent
undertaken in the Agent's discretion to (i) protect or preserve any Liens
granted pursuant to Section 5, (ii) protect or preserve any rights upon an Event
of Default, or (iii) facilitate a liquidation in the pursuit of remedies under
Section 10.
"Purchase Money Indebtedness" - means and includes (i)
Indebtedness (other than the Obligations) for the payment of all or any part of
the purchase price of any fixed assets, provided that such Indebtedness does not
exceed 100% of the purchase price of such fixed assets, (ii) any Indebtedness
(other than the Obligations) incurred at the time of or within 20 days prior to
or after the acquisition of any fixed assets for the purpose of financing all or
any part of the purchase price thereof, and (iii) any renewals, extensions or
refinancings thereof, but not any increases in the principal amounts thereof
outstanding at the time.
"Purchase Money Lien" - a Lien upon fixed assets which secures
Purchase Money Indebtedness, but only if such Lien shall at all times be
confined solely to the fixed assets the purchase price of which was financed
through the incurrence of the Purchase Money Indebtedness secured by such Lien.
"Receivables Advance Rate" - (i) in the case of Eligible
Accounts; Eighty-Five Percent (85%); (ii) in the case of Eligible Credit Card
Receivables of the Lead Borrower,
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Eighty-Five Percent (85%); and (iii) in the case of Eligible Credit Card
Receivables of the Canadian Affiliate, Seventy-Five Percent (75%).
"Receivables Reserves" - such Reserves as may be established
from time to time by Agent, in Agent's reasonable discretion based upon the
Agent's determination of the collectibility in the ordinary course and of the
creditworthiness of the Eligible Accounts. Without limiting the generality of
the foregoing, Receivables Reserves may include (but are not limited to)
reserves based on the following:
(i) The aggregate of all Accounts which are more than 90 days
past invoice or are due or unpaid for more than 60 days from the due date.
(ii) The aggregate of all Accounts for which 25% or more of
Accounts from the Account Debtor are deemed subject to reserves hereunder or not
deemed Eligible Accounts.
(iii) That portion of Eligible Accounts owed by any Account
Debtor which exceed ten percent (10%) of all Eligible Accounts.
(iv) The aggregate of all Accounts which arise out of the sale
by the Borrowers of goods consigned or delivered to the Borrowers or to an
Account Debtor on sale or return terms (whether or not compliance has been made
with the applicable provisions of Article 2 of the Uniform Commercial Code).
(v) The aggregate of all Accounts which arise out of any sale
made on a basis other than upon terms usual to the business of Borrowers.
(vi) The aggregate of all Accounts which arise out of any sale
made on a "xxxx and hold," dating, or delayed shipping basis.
(vii) The aggregate of all Accounts which are owed by any
Account Debtor whose principal place of business is not within the continental
United States.
(viii) The aggregate of all Accounts which are owed by any
Affiliate.
(ix) The aggregate of all Accounts to the extent that the
Account Debtor holds or is entitled to any claim, counterclaim, set off, or
chargeback as determined by the Agent in its discretion.
(x) The aggregate of all Accounts which are evidenced by a
promissory note or other documentation evidencing modified payment terms.
(xi) The aggregate of all Accounts which are owed by any
Person employed by, or a salesperson of, Borrowers.
(xii) The Account Debtor is also a Michaels creditor or
supplier, and the Account Debtor has disputed liability with respect to such
Account, and the Account Debtor has made any claim with respect to any other
Account due from such Account Debtor to
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Michaels, or the Account otherwise is or may become subject to any right of
setoff by an Account Debtor who is also a Michaels creditor or supplier.
(xiii) The goods giving rise to such Account have not been
delivered to and accepted by the Account Debtor or the services giving rise to
such Account or the Account does not otherwise represent a final sale.
(xiv) There exists any agreement with the Account Debtor for
any deduction therefrom, including finance charges and reserves for rebates and
advertising, except for discounts or allowances which are made in the ordinary
course of business for prompt payment and which discounts or allowances are
reflected in the calculation of the face value of each invoice related to the
Account.
"Relocation Sales" - the Lead Borrower's liquidation, through
sales, of the Inventory and Equipment located at its Stores that it may close as
provided in Section 8.2.6, as well as associated or otherwise excess Inventory
located in related Warehouses.
"Reportable Event" - any of the events set forth in Section
4043(b) of ERISA.
"Reserves" - the following: Receivables Reserves, Availability
Reserves, and Inventory Reserves.
"Reserve Percentage" the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves) which is
imposed on member banks of the Federal Reserve System against "Eurocurrency
Liabilities" as defined in Regulation D.
"Restricted Investment" - any investment made in cash or by
delivery of Property to any Person, whether by acquisition of stock,
Indebtedness or other obligation or Security, or by loan, advance or capital
contribution, or otherwise, or in any Property except the following:
(i) investments by Borrowers, to the extent existing on the
Closing Date, in one or more Subsidiaries of Borrowers;
(ii) Property to be used in the ordinary course of business;
(iii) Current Assets arising from the sale of goods and
services in the ordinary course of business of Borrowers or any of their
Subsidiaries;
(iv) investments in direct obligations of the United States of
America, or any agency thereof or obligations guaranteed by the United States of
America, provided that such obligations mature within one year from the date of
acquisition thereof;
(v) investments in certificates of deposit maturing within one
year from the date of acquisition and fully insured by the Federal Deposit
Insurance Corporation;
(vi) investments in commercial paper given the highest rating
by a national credit rating agency and maturing not more than 270 days from the
date of creation thereof;
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(vii) investments in money market, mutual or similar funds
having assets in excess of $100,000,000 and the investments of which are limited
to investment grade securities;
(viii) investments existing on the date hereof and listed on
Exhibit 8.2.12 hereto; and
(ix) investments otherwise expressly permitted pursuant to the
Agreement.
"Retail" - the current ticket price aggregated by SKU of the
Eligible Inventory, as reflected in Borrowers' Consolidated stock ledger except
that to the extent that Eligible Inventory is not reflected in the stock ledger,
"Retail" shall be determined using such Consolidated non - stock ledger
inventory systems of Borrowers as Agent shall deem adequate for such purpose in
its reasonable discretion.
"Revolving Credit Loan" - a Loan made by Lender pursuant to
Section 1.1 of the Agreement.
"Revolving Credit Maximum Amount" - $72,000,000.
"Revolving Loan Commitment" - with respect to any Lender, the
amount of such Lender's Revolving Loan Commitment pursuant to subsection 1.1 of
the Agreement, as set forth below such Lender's name on the signature page
hereof.
"Revolving Loan Percentage" - with respect to each Lender, the
percentage equal to the quotient of such Lender's Revolving Loan Commitment
divided by the aggregate of all Revolving Loan Commitments.
"Revolving Notes" - the notes to be executed by Borrowers on
or about the Closing Date in favor of each Lender to evidence the Revolving
Credit Loans, which shall be in the form of Exhibit 1.1 to the Agreement,
together with any replacement or successor notes therefor.
"Security" - all shares of stock, partnership interests,
membership interests, membership units or other ownership interests in any other
Person and all warrants, options or other rights to acquire the same.
"Security Documents" - the Mortgages and all other instruments
and agreements now or at any time hereafter securing the whole or any part of
the Obligations.
"Solvent" - as to any Person, such Person (i) owns Property
whose fair saleable value is greater than the amount required to pay all of such
Person's Indebtedness (including contingent debts discounted based on the
likelihood of their having to be paid), (ii) is able to pay all of its
Indebtedness as such Indebtedness matures and (iii) has capital sufficient to
carry on its business and transactions and all business and transactions in
which it is about to engage.
"Subject Lender" - as defined in Section 3.12.
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"SwingLine Lender" - Fleet.
"SwingLine Loans" - as defined in Section 1.4.
"SwingLine Notes" - the Secured Promissory Notes to be
executed by Borrowers in favor of SwingLine Lender to evidence the SwingLine
Loans, which shall be in the form of Exhibit 1.4 to the Agreement, together with
any replacement or successor notes therefor.
"Stores" - All of the Borrowers' present and future retail
locations, including without limitation, those locations listed on Exhibit 6.1.1
as retail locations.
"Subsidiary" - any Person of which another Person owns,
directly or indirectly through one or more intermediaries, more than 50% of the
Voting Stock at the time of determination.
"Term" - as defined in Section 4.1 of the Agreement.
"Total Credit Facility" - $72,000,000.
"Type of Organization" - with respect to Borrowers or any
Subsidiary of Borrowers, the kind or type of entity by which Borrowers or such
Subsidiary is organized, such as a corporation or limited liability company.
"UCC" - the Uniform Commercial Code as in effect in the State
of California on the date of this Agreement, as the UCC may be amended or
otherwise modified.
"Voting Stock" - Securities of any class or classes of a
corporation, limited partnership or limited liability company or any other
entity the holders of which are ordinarily, in the absence of contingencies,
entitled to vote with respect to the election of corporate directors (or Persons
performing similar functions).
"Other Terms". All other terms contained in the Agreement
shall have, when the context so indicates, the meanings provided for by the UCC
to the extent the same are used or defined therein.
"Certain Matters of Construction". The terms "herein",
"hereof" and "hereunder" and other words of similar import refer to the
Agreement as a whole and not to any particular section, paragraph or
subdivision. Any pronoun used shall be deemed to cover all genders. The section
titles, table of contents and list of exhibits appear as a matter of convenience
only and shall not affect the interpretation of the Agreement. All references to
statutes and related regulations shall include any amendments of same and any
successor statutes and regulations. All references to any of the Loan Documents
shall include any and all modifications thereto and any and all extensions or
renewals thereof.
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TABLE OF CONTENTS
PAGE
SECTION 1. CREDIT FACILITY......................................................................... 1
1.1 Revolving Credit Loans.................................................................. 1
1.2 Overadvances............................................................................ 1
1.3 Use of Proceeds......................................................................... 2
1.4 SwingLine Loans......................................................................... 2
1.5 Letters of Credit; LC Guaranties........................................................ 3
1.6 Foreign Exchange Facility............................................................... 4
SECTION 2. INTEREST, FEES AND CHARGES.............................................................. 4
2.1 Interest................................................................................ 4
2.1.1 Rates of Interest............................................................ 4
2.1.2 Default Rate of Interest..................................................... 4
2.1.3 Maximum Interest............................................................. 4
2.2 Computation of Interest and Fees........................................................ 5
2.3 Fee Letter.............................................................................. 5
2.4 Letter of Credit and LC Guaranty Fees................................................... 5
2.5 Unused Line Fee......................................................................... 5
2.6 Prepayment Fee.......................................................................... 5
2.7 Audit Fees.............................................................................. 6
2.8 Reimbursement of Expenses............................................................... 6
2.9 Bank Charges............................................................................ 6
2.10 Collateral Protection Expenses; Inventories; Appraisals................................. 7
2.11 Payment of Charges...................................................................... 7
2.12 Foreign Exchange Facility............................................................... 7
SECTION 3. LOAN ADMINISTRATION..................................................................... 7
3.1 Manner of Borrowing Revolving Credit Loans.............................................. 7
3.1.1 Loan Requests................................................................ 7
3.1.2 Disbursement................................................................. 7
3.1.3 Payment by Lenders........................................................... 8
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TABLE OF CONTENTS
(CONTINUED)
PAGE
3.1.4 Authorization................................................................ 8
3.1.5 LIBOR Advances............................................................... 8
3.1.6 Conversion of Base Rate Advances............................................. 8
3.1.7 Continuation of LIBOR Advances............................................... 9
3.1.8 Inability to Make LIBOR Advances............................................. 9
3.1.9 Letter of Credit and LC Guaranty Requests.................................... 9
3.1.10 Method of Making Requests.................................................... 10
3.2 Payments................................................................................ 10
3.2.1 Principal.................................................................... 10
3.2.2 Interest..................................................................... 11
3.2.3 Costs, Fees and Charges...................................................... 11
3.2.4 Other Obligations............................................................ 11
3.2.5 Prepayment of LIBOR Advances................................................. 11
3.2.6 Application of Proceeds of Collateral and Payments after an Event of Default. 12
3.3 Mandatory and Optional Prepayments...................................................... 12
3.3.1 Proceeds of Sale, Loss, Destruction or Condemnation of Collateral............ 12
3.3.2 LIBOR Advances............................................................... 13
3.4 Application of Payments and Collections................................................. 13
3.5 All Loans to Constitute One Obligation.................................................. 13
3.6 Loan Account............................................................................ 14
3.7 Statements of Account................................................................... 14
3.8 Sharing of Payments, Etc................................................................ 14
3.9 Increased Costs......................................................................... 14
3.10 Basis for Determining Interest Rate Inadequate or Unfair................................ 16
3.11 Lead Borrower as Borrowers' Agent....................................................... 16
3.12 Replacement of a Lender................................................................. 16
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TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 4. TERM AND TERMINATION.................................................................... 17
4.1 Term of Agreement....................................................................... 17
4.2 Termination............................................................................. 17
4.2.1 Termination by Lenders....................................................... 17
4.2.2 Termination by Borrowers..................................................... 17
4.2.3 Effect of Termination........................................................ 17
SECTION 5. SECURITY INTERESTS...................................................................... 18
5.1 Security Interest in Collateral......................................................... 18
5.2 Other Collateral........................................................................ 19
5.2.1 Commercial Tort Claims....................................................... 19
5.2.2 Other Collateral............................................................. 19
5.3 Lien Perfection; Further Assurances..................................................... 20
5.4 Lien on Realty.......................................................................... 20
SECTION 6. COLLATERAL ADMINISTRATION............................................................... 20
6.1 General................................................................................. 20
6.1.1 Location of Collateral....................................................... 20
6.1.2 Insurance of Collateral...................................................... 21
6.1.3 Protection of Collateral..................................................... 22
6.2 Administration of Accounts.............................................................. 22
6.2.1 Records, Schedules and Assignments of Accounts............................... 22
6.2.3 Account Verification......................................................... 22
6.2.4 Maintenance of Dominion Account.............................................. 23
6.2.5 Collection of Accounts, Proceeds of Collateral............................... 23
6.3 Records and Reports of Inventory........................................................ 23
6.4 Administration of Equipment............................................................. 24
6.4.1 Records and Schedules of Equipment........................................... 24
6.4.2 Dispositions of Equipment.................................................... 24
6.5 Credit Card Receipts.................................................................... 24
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TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 7. REPRESENTATIONS AND WARRANTIES.......................................................... 25
7.1 General Representations and Warranties.................................................. 25
7.1.1 Organization and Qualification............................................... 25
7.1.2 Power and Authority.......................................................... 25
7.1.3 Legally Enforceable Agreement................................................ 26
7.1.4 Capital Structure............................................................ 26
7.1.5 Names........................................................................ 26
7.1.6 Business Locations; Agent for Process........................................ 26
7.1.7 Title to Properties; Priority of Liens....................................... 27
7.1.8 Accounts..................................................................... 27
7.1.9 Equipment.................................................................... 28
7.1.10 Financial Statements; Fiscal Year............................................ 28
7.1.11 Full Disclosure.............................................................. 28
7.1.12 Solvent Financial Condition.................................................. 28
7.1.13 Surety Obligations........................................................... 29
7.1.14 Taxes........................................................................ 29
7.1.15 Brokers...................................................................... 29
7.1.16 Patents, Trademarks, Copyrights and Licenses................................. 29
7.1.17 Governmental Consents........................................................ 30
7.1.18 Compliance with Laws......................................................... 30
7.1.19 Restrictions................................................................. 30
7.1.20 Litigation................................................................... 30
7.1.21 No Defaults.................................................................. 31
7.1.22 Leases....................................................................... 31
7.1.23 Pension Plans................................................................ 31
7.1.24 Trade Relations.............................................................. 31
7.1.25 Labor Relations.............................................................. 32
7.1.26 Conduct of Business.......................................................... 32
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TABLE OF CONTENTS
(CONTINUED)
PAGE
7.1.27 Hazardous Materials.......................................................... 32
7.1.28 No Margin Stock.............................................................. 32
7.2 Continuous Nature of Representations and Warranties..................................... 32
7.3 Survival of Representations and Warranties.............................................. 32
SECTION 8. COVENANTS AND CONTINUING AGREEMENTS..................................................... 33
8.1 Affirmative Covenants................................................................... 33
8.1.1 Visits and Inspections; Lender Meeting....................................... 33
8.1.2 Notices...................................................................... 33
8.1.3 Financial Statements/Reporting Requirements.................................. 33
8.1.4 Borrowing Base Certificates.................................................. 36
8.1.5 Landlord, Processor and Storage Agreements................................... 36
8.1.6 Canadian Affiliate Financial Statements...................................... 36
8.1.7 Projections.................................................................. 36
8.1.8 Subsidiaries................................................................. 36
8.1.9 Hazardous Materials.......................................................... 37
8.1.10 Deposit and Brokerage Accounts............................................... 37
8.2 Negative Covenants...................................................................... 37
8.2.1 Mergers; Consolidations; Acquisitions; Structural Changes.................... 37
8.2.2 Loans........................................................................ 37
8.2.3 Total Indebtedness........................................................... 38
8.2.4 Affiliate Transactions....................................................... 39
8.2.5 Limitation on Liens.......................................................... 39
8.2.6 Store Closures............................................................... 40
8.2.7 Distributions................................................................ 41
8.2.8 Capital Expenditures......................................................... 41
8.2.9 Disposition of Assets........................................................ 41
8.2.10 Securities of Subsidiaries................................................... 41
8.2.11 Xxxx-and-Hold Sales, Etc..................................................... 41
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TABLE OF CONTENTS
(CONTINUED)
PAGE
8.2.12 Restricted Investment........................................................ 42
8.2.13 Subsidiaries and Joint Ventures.............................................. 42
8.2.14 Tax Consolidation............................................................ 42
8.2.15 Organizational Documents..................................................... 42
8.2.16 Fiscal Year End.............................................................. 42
8.2.17 Additional Stores............................................................ 42
8.3 Specific Financial Covenants............................................................ 43
SECTION 9. CONDITIONS PRECEDENT.................................................................... 43
9.1 Documentation........................................................................... 43
9.2 No Default.............................................................................. 43
9.3 Other Conditions........................................................................ 44
9.4 Representations and Warranties.......................................................... 44
9.5 No Litigation........................................................................... 44
9.6 Material Adverse Effect................................................................. 44
SECTION 10. EVENTS OF DEFAULT; RIGHTS AND REMEDIES ON DEFAULT....................................... 44
10.1 Events of Default....................................................................... 44
10.1.1 Payment of Obligations....................................................... 44
10.1.2 Misrepresentations........................................................... 44
10.1.3 Breach of Specific Covenants................................................. 44
10.1.4 Breach of Other Covenants.................................................... 45
10.1.5 Default Under Security Documents or Other Agreements......................... 45
10.1.6 Other Defaults............................................................... 45
10.1.7 Uninsured Losses............................................................. 45
10.1.8 Insolvency and Related Proceedings........................................... 45
10.1.9 Business Disruption; Condemnation............................................ 45
10.1.10 Change in Control............................................................ 46
10.1.11 ERISA........................................................................ 46
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TABLE OF CONTENTS
(CONTINUED)
PAGE
10.1.12 Challenge to Agreement....................................................... 46
10.1.13 Key Management............................................................... 46
10.1.14 Criminal Forfeiture.......................................................... 46
10.1.15 Judgments.................................................................... 46
10.2 Acceleration of the Obligations......................................................... 47
10.3 Other Remedies.......................................................................... 47
10.4 Set Off and Sharing of Payments......................................................... 48
10.5 Remedies Cumulative; No Waiver.......................................................... 49
SECTION 11. THE AGENT............................................................................... 49
11.1 Authorization and Action................................................................ 49
11.2 Agent's Reliance, Etc................................................................... 50
11.3 Fleet and Affiliates.................................................................... 51
11.4 Lender Credit Decision.................................................................. 51
11.5 Indemnification......................................................................... 51
11.6 Rights and Remedies to be Exercised by Agent Only....................................... 52
11.7 Agency Provisions Relating to Collateral................................................ 52
11.8 Agent's Right to Purchase Commitments................................................... 53
11.9 Right of Sale, Assignment, Participations............................................... 53
11.9.1 Sales, Assignments........................................................... 53
11.9.2 Participations............................................................... 54
11.9.3 Certain Agreements of Borrowers.............................................. 54
11.9.4 Non U.S. Resident Transferees................................................ 54
11.10 Amendment............................................................................... 55
11.11 Resignation of Agent; Appointment of Successor.......................................... 56
SECTION 12. MISCELLANEOUS........................................................................... 56
12.1 Power of Attorney....................................................................... 56
12.2 Indemnity............................................................................... 57
12.3 Sale of Interest........................................................................ 57
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TABLE OF CONTENTS
(CONTINUED)
PAGE
12.4 Severability............................................................................ 57
12.5 Successors and Assigns.................................................................. 58
12.6 Cumulative Effect; Conflict of Terms.................................................... 58
12.7 Execution in Counterparts............................................................... 58
12.8 Notices................................................................................. 58
12.9 Consent................................................................................. 59
12.10 Credit Inquiries........................................................................ 59
12.11 Time of Essence......................................................................... 59
12.12 Entire Agreement........................................................................ 59
12.13 Interpretation.......................................................................... 59
12.14 Confidentiality......................................................................... 60
12.15 GOVERNING LAW; CONSENT TO FORUM......................................................... 60
12.16 WAIVERS BY BORROWER..................................................................... 61
12.17 Joint Borrower Provisions............................................................... 61
12.18 Amendment and Restatement............................................................... 66
-viii-
LIST OF EXHIBITS AND SCHEDULES
Exhibit 1.1 Form of Revolving Note
Exhibit 1.4 Form of SwingLine Note
Exhibit 3.1.10 Authorized Individuals of Lead Borrower
Exhibit 6.1.1 Business Locations
Exhibit 6.5 Credit Card Arrangements
Exhibit 7.1.1 Jurisdictions in which Borrowers and their Subsidiaries are
Authorized to do Business
Exhibit 7.1.4 Capital Structure
Exhibit 7.1.5 Names
Exhibit 7.1.13 Surety Obligations
Exhibit 7.1.14 Tax Identification Numbers of Subsidiaries
Exhibit 7.1.15 Brokers' Fees
Exhibit 7.1.16 Patents, Trademarks, Copyrights and Licenses
Exhibit 7.1.20 Litigation
Exhibit 7.1.22 Capitalized and Operating Leases
Exhibit 7.1.23 Pension Plans
Exhibit 7.1.24 Trade Relations
Exhibit 7.1.25 Collective Bargaining Agreements; Labor Controversies
Exhibit 8.1.3 Compliance Certificate
Exhibit 8.2.3 Existing Indebtedness
Exhibit 8.2.5 Permitted Liens
Exhibit 8.2.12 Permitted Investments
Exhibit 8.3 Financial Covenants
Exhibit 11.9.1 Form of Assignment Agreement
List of Exhibits and Schedules
EXHIBIT 1.1
FORM OF REVOLVING NOTE
Exhibit 1.1 - Page 1
REVOLVING NOTE
$40,000,000 November __, 2002
FOR VALUE RECEIVED, the undersigned, (collectively, the "Borrowers"),
promise to pay to the order of FLEET CAPITAL CORPORATION, on the date when due
in accordance with the Agreement referred to below, the aggregate principal
amount of $40,000,000 or so much of such principal amount as shall be
outstanding and unpaid on June 30, 2004 advanced to Borrowers as a Revolving
Credit Loan by the Lenders under that certain Seventh Amended and Restated Loan
and Security Agreement among Borrowers, FLEET CAPITAL CORPORATION ("Fleet"),
individually as a Lender and as Agent ("Agent") for itself and any other
financial institution which is or becomes a party hereto (each such financial
institution, including Fleet, is referred to hereinafter individually as a
"Lender" and collectively as the "Lenders") and THE CIT GROUP/BUSINESS CREDIT,
INC., individually as a Lender and as Co-Administrative Agent, dated as of
November 12, 2002 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined.
This Revolving Note (the "Note") is the Revolving Note referred to in, and
is issued pursuant to the Agreement and is entitled to all of the benefits and
security of the Agreement. All of the terms, covenants and conditions of the
Agreement and the Security Documents are hereby made a part of this Note and are
deemed incorporated herein in full. All capitalized terms used herein, unless
otherwise specifically defined in this Note, shall have the meanings ascribed to
them in the Agreement.
The rate of interest in effect hereunder shall be calculated with reference
to the Base Rate or LIBOR, as applicable, as more specifically provided in the
Agreement. The interest due shall be computed in the manner provided in the
Agreement.
Except as otherwise expressly provided in the Agreement, if any payment on
this Note becomes due and payable on a day other than a Business Day, the
maturity there of shall be extended to the next succeeding Business Day, and
with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension. Notwithstanding the foregoing, if
any portion of the Revolving Credit Loans evidenced by this promissory note
constitutes a LIBOR Advance, and an extension of the maturity of any payment
hereon would cause the maturity thereof to occur during the next calendar month,
then such payment shall mature on the next preceding Business Day.
This Note shall be subject to mandatory prepayment in accordance with the
provisions of Section 3.3 of the Agreement. Borrowers may also terminate the
Agreement and, in connection with such termination, prepay this Note in the
manner provided in Section 4 of the Agreement.
Upon the occurrence and continuation of any one or more of the Events of
Default specified in the Agreement which have not been cured by Borrowers or
waived by Agent, Agent may declare all Obligations evidenced hereby to be
immediately due and payable (except with
respect to any Event of Default set forth in subsection 10.1.8 of the Agreement,
in which case all Obligations evidenced hereby shall automatically become
immediately due and payable without the necessity of any notice or other
demand) without presentment, demand, protest or any other action or obligation
of the Agent.
Time is of the essence of this Note. Borrowers hereby waive presentment,
demand, protest and notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of such rights.
Wherever possible, each provision of this Note shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Note shall be prohibited or invalid under applicable law,
such provision shall be ineffective to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or remaining
provisions of this Note. No delay or failure on the part of Agent in the
exercise of any right or remedy hereunder shall operate as a waiver thereof,
nor as an acquiescence in any default, nor shall any single or partial exercise
by Agent of any right or remedy preclude any other right or remedy. Agent, at
its option, may enforce its rights against any collateral securing this Note
without enforcing its rights against Borrowers, any guarantor of the
indebtedness evidenced hereby or any other property or indebtedness due or to
become due to Borrowers. Borrowers agree that, without releasing or impairing
Borrowers' liability hereunder, Agent may at any time release, surrender,
substitute or exchange any collateral securing this Note and may at any time
release any party primarily or secondarily liable for the indebtedness
evidenced by this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF CALIFORNIA.
BORROWERS WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING
OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS REVOLVING NOTE,
ANY OF THE OTHER LOAN DOCUMENTS, THE OBLIGATIONS OR THE COLLATERAL.
RESTORATION HARDWARE, INC.
By: __________________________________
Name: ________________________________
Title: _______________________________
THE MICHAELS FURNITURE COMPANY, INC.
By: __________________________________
Name: ________________________________
Title: _______________________________
REVOLVING NOTE
$32,000,000 November , 2002
FOR VALUE RECEIVED, the undersigned, (collectively, the "Borrowers"),
promise to pay to the order of THE CIT GROUP/BUSINESS CREDIT, INC., on the date
when due in accordance with the Agreement referred to below, the aggregate
principal amount of $32,000,000 or so much of such principal amount as shall be
outstanding and unpaid on June 30, 2004 advanced to Borrowers as a Revolving
Credit Loan by the Lenders under that certain Seventh Amended and Restated Loan
and Security Agreement among Borrowers, FLEET CAPITAL CORPORATION ("Fleet"),
individually as a Lender and as Agent ("Agent") for itself and any other
financial institution which is or becomes a party hereto (each such financial
institution, including Fleet, is referred to hereinafter individually as a
"Lender" and collectively as the "Lenders") and THE CIT GROUP/BUSINESS CREDIT,
INC., individually as a Lender and as Co-Administrative Agent, dated as of
November 12, 2002 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement," the terms defined
therein being used herein as therein defined).
This Revolving Note (the "Note") is the Revolving Note referred to in, and
is issued pursuant to the Agreement and is entitled to all of the benefits and
security of the Agreement. All of the terms, covenants and conditions of the
Agreement and the Security Documents are hereby made a part of this Note and are
deemed incorporated herein in full. All capitalized terms used herein, unless
otherwise specifically defined in this Note, shall have the meanings ascribed to
them in the Agreement.
The rate of interest in effect hereunder shall be calculated with reference
to the Base Rate or LIBOR, as applicable, as more specifically provided in the
Agreement. The interest due shall be computed in the manner provided in the
Agreement.
Except as otherwise expressly provided in the Agreement, if any payment on
this Note becomes due and payable on a day other than a Business Day, the
maturity there of shall be extended to the next succeeding Business Day, and
with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension. Notwithstanding the foregoing, if
any portion of the Revolving Credit Loans evidenced by this promissory note
constitutes a LIBOR Advance, and an extension of the maturity of any payment
hereon would cause the maturity thereof to occur during the next calendar month,
then such payment shall mature on the next preceding Business Day.
This Note shall be subject to mandatory prepayment in accordance with the
provisions of Section 3.3 of the Agreement. Borrowers may also terminate the
Agreement and, in connection with such termination, prepay this Note in the
manner provided in Section 4 of the Agreement.
Upon the occurrence and continuation of any one or more of the Events of
Default specified in the Agreement which have not been cured by Borrowers or
waived by Agent, Agent may declare all Obligations evidenced hereby to be
immediately due and payable (except with
respect to any Event of Default set forth in subsection 10.1.8 of the Agreement,
in which case all Obligations evidenced hereby shall automatically become
immediately due and payable without the necessity of any notice or other demand)
without presentment, demand, protest or any other action or obligation of the
Agent.
Time is of the essence of this Note. Borrowers hereby waive presentment,
demand, protest and notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of such rights.
Wherever possible, each provision of this Note shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Note shall be prohibited or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or remaining provisions of this
Note. No delay or failure on the part of Agent in the exercise of any right or
remedy hereunder shall operate as a waiver thereof, nor as an acquiescence in
any default, nor shall any single or partial exercise by Agent of any right or
remedy preclude any other right or remedy. Agent, at its option, may enforce its
rights against any collateral securing this Note without enforcing its rights
against Borrowers, any guarantor of the indebtedness evidenced hereby or any
other property or indebtedness due or to become due to Borrowers. Borrowers
agree that, without releasing or impairing Borrowers' liability hereunder, Agent
may at any time release, surrender, substitute or exchange any collateral
securing this Note and may at any time release any party primarily or
secondarily liable for the indebtedness evidenced by this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF CALIFORNIA.
BORROWERS WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING
OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS REVOLVING NOTE,
ANY OF THE OTHER LOAN DOCUMENTS, THE OBLIGATIONS OR THE COLLATERAL.
RESTORATION HARDWARE, INC.
By:________________________________
Name: _____________________________
Title: ____________________________
THE MICHAELS FURNITURE COMPANY, INC.
By:________________________________
Name: _____________________________
Title: ____________________________
EXHIBIT 1.4
FORM OF SWINGLINE NOTE
Exhibit 1.4 - Page 1
SWING LINE NOTE
$7,500,000 November , 2002
FOR VALUE RECEIVED, the undersigned, (collectively, the "Borrowers"),
promise to pay to the order of SwingLine Lender, on the date when due in
accordance with the Agreement referred to below, the aggregate principal amount
of $7,500,000 or so much of such principal amount as shall be outstanding and
unpaid on June 30, 2004 advanced to Borrowers as a SwingLine Loan by the
SwingLine Lender under that certain Seventh Amended and Restated Loan and
Security Agreement among Borrowers, FLEET CAPITAL CORPORATION ("Fleet"),
individually as a Lender and as Agent ("Agent") for itself and any other
financial institution which is or becomes a party hereto (each such financial
institution, including Fleet, is referred to hereinafter individually as a
"Lender" and collectively as the "Lenders") and THE CIT GROUP/BUSINESS CREDIT,
INC., individually as a Lender and as Co-Administrative Agent, dated as of
November 12, 2002 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined).
This SwingLine Note (the "Note") is the SwingLine Note referred to in, and
is issued pursuant to the Agreement and is entitled to all of the benefits and
security of the Agreement. All of the terms, covenants and conditions of the
Agreement and the Security Documents are hereby made a part of this Note and are
deemed incorporated herein in full. All capitalized terms used herein, unless
otherwise specifically defined in this Note, shall have the meanings ascribed to
them in the Agreement.
The rate of interest in effect hereunder shall be calculated as provided in
the Agreement. This interest due shall be computed in the manner provided in the
Agreement.
Except as otherwise expressly provided in the Agreement, if any payment on
this Note becomes due and payable on a day other than a Business Day, the
maturity there of shall be extended to the next succeeding Business Day, and
with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension.
This Note shall be subject to mandatory prepayment in accordance with the
provisions of Section 3.3 of the Agreement. Borrowers may also terminate the
Agreement and, in connection with such termination, prepay this Note in the
manner provided in Section 4 of the Agreement.
Upon the occurrence and continuation of any one or more of the Events of
Default specified in the Agreement which have not been cured by Borrowers or
waived by Agent, Agent may declare all Obligations evidenced hereby to be
immediately due and payable (except with respect to any Event of Default set
forth in subsection 10.1.8 of the Agreement, in which case all Obligations
evidenced hereby shall automatically become immediately due and payable without
the necessity of any notice or other demand) without presentment, demand,
protest or any other action or obligation of the Agent.
Time is of the essence of this Note. Borrowers hereby waive presentment,
demand, protest and notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of such rights.
Wherever possible, each provision of this Note shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Note shall be prohibited or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or remaining provisions of this
Note. No delay or failure on the part of Agent in the exercise of any right or
remedy hereunder shall operate as a waiver thereof, nor as an acquiescence in
any default, nor shall any single or partial exercise by Agent of any right or
remedy preclude any other right or remedy. Agent, at its option, may enforce its
rights against any collateral securing this Note without enforcing its rights
against Borrowers, any guarantor of the indebtedness evidenced hereby or any
other property or indebtedness due or to become due to Borrowers. Borrowers
agree that, without releasing or impairing Borrowers' liability hereunder, Agent
may at any time release, surrender, substitute or exchange any collateral
securing this Note and may at any time release any party primarily or
secondarily liable for the indebtedness evidenced by this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF CALIFORNIA.
BORROWERS WAIVE THE RIGHT TO TRIAL BY JURY BY ANY ACTION, SUIT, PROCEEDING
OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS SWINGLINE NOTE,
ANY OF THE OTHER LOAN DOCUMENTS, THE OBLIGATIONS OR THE COLLATERAL.
RESTORATION HARDWARE, INC.
By:___________________________
Name:_________________________
Title:________________________
THE MICHAELS FURNITURE COMPANY,
INC.
By:___________________________
Name:_________________________
Title:________________________
EXHIBIT 3.1.10
AUTHORIZED INDIVIDUALS OF LEAD BORROWER
Xxxxx Xxxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxxx Xxxx
Xxxxxx XxxXxxxxx
Xxxxx Xxxxxx
Exhibit 3.1.10 - Page 1
EXHIBIT 6.1.1
BUSINESS LOCATIONS
1. Borrowers currently have the following business locations,
and no others:
Chief Executive Office: 00 Xxxx Xxxx, Xxxxx X, Xxxxx Xxxxxx, XX 00000
Other Locations: See attached list
2. Borrowers maintain their books and records relating to
Accounts and General Intangibles at: 00 Xxxx Xxxx, Xxxxx X, Xxxxx Xxxxxx, XX
00000
3. Borrowers have had no office or location of business other
than as set forth above, except: None
4. Each Subsidiary currently has the following business
locations, and no others:
Chief Executive Office: Restoration Hardware Canada, Inc.
Attn: Xxxxx Xxxx
XxXxxxxx Xxxxxxxx XXX
X.X. Xxx 00000, Xxxxxxx Xxxxxx
Suite 1300, 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0 Xxxxxx
Other Locations: 0000 Xxxxxxxxx Xxxxxx, #000, Xxxxxxxxx, XX X0X0X0, Xxxxxx
0000 Xxxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxx X0X0X0, Xxxxxx
0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, X0X 0X0, Xxxxxx
Chief Executive Office: The Michaels Furniture Company, Inc.
0000 00xx Xxxxxx, Xxxxxxxxxx, XX 00000
Other Locations: 0000 00xx Xxxxxx, Xxxxxxxxxx, XX 00000
0000 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000
0000 00xx Xxxxxx, Xxxxxxxxxx, XX 00000
5. Each Subsidiary maintains its books and records relating to
Accounts and General Intangibles at:
Restoration Hardware Canada, Inc. - 00 Xxxx Xxxx, Xxxxx X, Xxxxx Xxxxxx, XX
00000
The Michaels Furniture Company, Inc. - 0000 00xx Xxxxxx, Xxxxxxxxxx, XX
00000
6. Each Subsidiary has had no office or location of business
other than as set forth above, except: None
Exhibit 6.1.1 - Page 1
7. The following bailees, warehouseman, similar parties and
consignees hold inventory of Borrowers or one of their Subsidiaries:
See attached list
Exhibit 6.1.1 - Page 2
EXHIBIT 6.1.1 #1
OTHER LOCATIONS
STREET ADDRESS COUNTY/CITY
-------------------------------------------------------------------------------------
00 Xxxx Xxxx, Xxxxx X Xxxxx Xxxxxx, XX 00000
0000 X. Xxxxxx Xxx Xxxxxxx, XX 00000 (Dist.Cntr)
0000 X. XxxXxxxxx Xxxxx Xxxxx, XX 00000 (Dist. Cntr)
0000 Xxxxx Xxxxx Xxxxxxxxx, XX 00000 (Dist.Cntr)
000 Xxxxxx Xxxxxx Xxxxxx, XX 00000
0000 Xxxxxxxxx Xxxxx Xxxxxx, Xxxxx X0 Xxxxxxxx, XX 00000
000 Xxxxxxx Xxx. Xxxxx, Xxxxx X000 Xxxxxxx Xxxxx, XX 00000
0000 Xxxxxxx Xxxxxxx Xxxxx Xxxxxx, XX 00000
0000 Xxxxxx Xxxxxx Xxxxxxxx, XX 00000
000 XX 00xx Xxxxxx Xxxxxxxx, XX 00000
000 Xxxxxxxxx Xxxx, Xxxxx 0000 Xxx Xxxxx, XX 00000-0000
000 Xxxxxxxxxx Xxxxxx Xxxx Xxxx, XX 00000-0000
000 X. Xxxxxxxx Xxxx Xxxxxxxx, XX 00000-0000
0000 X. Xxxxxxxxx Xx Xxxxxxx, XX 00000-0000
000 Xxx Xxxxxxx Xxxxxx, Xxxxx X00 Xxxxxx, Xxx 00000
0000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 0000 Xxxxxxxx Xxxxx, XX 00000
0000 Xxxx Xxx Xxxxxx Xx, Xxxxx X-000 Xxxx, XX 00000
0000 Xxxxxxxxxx Xxxxxxx, XX 00000
0000 Xx. Xxxxx Xxxxxxxx Xxxxxxxx Xxxxxxx, XX 00000
0000 Xxxx Xxxxxxx Xxxx Xxxxx, Xxx X0 Xxxxxxxxx, XX 00000
0000 X. 000xx Xxxxxx, #0000 Xxxxxxx, XX 00000
0000 Xxxx Xxxxxx Xxxxxx, XX 00000
00000 Xxxxxxxx Xx., Xxxxx 0000 Xxxxxxx, XX 00000
000 Xxxx Xxxxxx Xxxxxxxxxx, XX 00000
0000 Xxxxxxxxxx Xxxxxxx Xxxxx, XX Xxxxxxx, XX 00000
000 Xxxx Xxxx Xxxx xx Xxxxxxx, XX 00000
000 Xxxxxxxxx Xxx. X, Xxxxx 000 Xxxxxxx, XX 00000
0000 Xxxxxx Xxxxxx Xxxxxx XxXxxx, XX 00000
00000 Xxxxxxxxx Xx., Xxxxx 000 Xxxxxxx Xxxx, XX 00000
Xxxxxxxxx Xxxxx Xxxxxxxx Xxx., Xxx 0000 Xxxxxx Xxxx, XX 00000
#1 Garden Xxxxx Xxxxx Xxxx, Xxx 0000 Xxxxxxx, XX 00000
0000 Xxxxxxxx Xxxxxxxx Xxxx., Xxx 00 Xxxxxxxx, XX 00000
000 Xxxxxxxxx Xxxx, Xxxxx X-000 Xxxxxxxxxx, XX 00000
00000 Xxxxx Xxxxxx Xxxx., Xxxxx 00 Xxx Xxxxxxx, XX 00000
0000-X Xxxxxxxx Xxxxx Xxxxx Xxxxxxxxx, XX 00000
000 Xxxx Xxxxx Xxxx, Xxxxx 0000 Xxx Xxxxxxx, XX 00000
0000 Xxxxxxxxxx Xx., Xxxxx 0000 Xxxxxxxxxx, XX 00000
0000 Xxxxxx Xxxx, Xxxxx 000 Xxx Xxxxx, XX 00000
0000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxx Xxxxxx, XX 00000
000 X. Xx Xxxxxxx Xxxx., Xxxxx 000 Xxx Xxxxxxx, XX 00000
000 Xxxxx Xxxxxx Xx. Xxxx, XX 00000
000 X. Xxxxxx Xxx. Xxxxx, XX 00000
0000 Xxxxxxxx Xxx., Xxxxx 000 Xxxxxxx, XX 00000
0000 Xxxxxxxxx Xx., X.X., Xxxxx 0000 Xxxxxxx, XX 00000
00000 Xxxxxxxx Xxxx., Xxxxx 000 Xxxxxxxx, XX 00000
000 Xxxxxx Xxxx. Xxxxxxxxxx, XX 00000
0000 X. Xxxx Xxxx, Xxxxx 000 Xxxxxxx, XX 00000
0000 Xxxxxx Xxxxxxxx, Xxxxx X-000 Xxxxx Xxxxx, XX 00000
0000 Xxxxxxxxx Xxx Xxxxx, Xxxxx X-000 Xxxx Xxxxx, XX 00000
000 Xxxxxxxx Xxxxxx Xxxxxx, XX 00000
0000 Xxxxxxxx Xxxxx, XX 00000-0000
0000 XX Xxxxx 0, Xxxxx 000 Xxxxxxxxx, XX 00000
0000 Xxxxxxxxx Xxx., Xxxxxxxxx Xxxxxxxxxx, XX 00000
0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000 Xxxxxxxxx, XX 00000
0000 X.X. 000xx Xxxxxx, Xxxxx 000 Xxxxx, XX 00000
000 Xxxxxxx Xxxxxx Xxxx Xxxx Xxxx, XX 00000
0000 X. 0xx Xxx., Xxxxx X-000 Xxxxxx, XX 00000
000 Xxxxxxxxxxx Xxx., Xxxxx 0000 Xxxxx Xxxxxx, XX 00000
0000 XXX Xxxx., Xxxxx X000 Xxxx Xxxxx Xxxxxxx, XX 00000
00 X. Xxxxxxx Xxx., Xxxxx 000 Xxxxxxxxxx, Xxx 00000
0000 Xx. Xxxxxx Xxxx. Xxxxxx Xxxxx, XX 00000
000 Xxxxxxxx Xxx Xxxx, XX 00000
000 Xxxx Xxxxxx, #000 Xxxxxxx, XX 00000
000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxx, XX 00000
0000 Xxxx Xxxxxx Xxxxxxxxxxxx, XX 00000
000 Xxxxxxx Xxxxxx Xxxxxxx, XX 00000
000 Xxxxxxxxx Xxx. Xxxxxxxxx, XX 00000
0000 Xxxxxx Xxxx Xxxx Xxxxxx Xxxx Xxxxx, XX 00000
000 Xxxxxxxxxx Xxx., Xxxxx #000 Xxxxxxx, XX 00000
000 X. Xxxxx Xxx. Xxxxxxx, Xxx 00000
00 Xxxxxxxx Xxxxxx Xxxxxxxx, Xxx 00000
00 Xxxxx Xxxxxx Xxx Xxxx, XX 00000
000 Xxxx Xxx. Xxxxx, Xxxxx 000 Xxxxxx Xxxx, XX 00000
0000 X. Xxxxxxxx Xxxx Xxxx., Xxxxx X Xxxxxxxx Xxxx, XX 00000
0000 Xxxxxxxxx Xxx Xxxxxxxx, XX 00000
0000 Xxxxx Xxxx Xxxxxx, XX 00000
00 Xxxxxxxxxx Xxxxx Xxxxxxxxxx, XX 00000
0000 Xxxxxxxx Xxxxxxxx, Xxxxx 000 Xxxxxxxxxxxx, Xxx 00000
0000 Xxxx Xxxxxx Xxxx., Xxxxx 0000 Xxxxx Xxxxx, XX 00000
00000 Xxxxx Xxxxxx Xxxx., #00X Xxxxxxx Xxxxx, XX 00000
00000 Xxxxxx Xxxxxxxx Xxxx., Xxx 0000 Xxxxxxxx, XX 00000
000 Xxxxxxxxx Xxxxx Xxxxxxxx, XX 00000-0000
Marlton Specialty Ctr., Xxx 00 X., Xxx. X Xxxxxxx, XX 00000
0000 Xxxxxx Xx., Xxx XX00 Xxxxxx, XX 00000
000 Xxxxx Xxxxxx Xxxxx Xxxxxxx, XX 00000
0 X. Xxxxxxxxxx Xxxxxx Xxxxxxx, XX 00000-0000
00 Xxxx Xxxx Xxxx Xxxxxxxx, XX 00000-0000
0000 X. Xxxxxx Xxxxxxx Xxxxx, Xxx. 0000 Xxxxxxx, XX 00000
0000 Xxxxxxxxx Xxxx., Xxxxx 0000 Xxxxxxxxxx, XX 00000
000 Xxxx Xxxxxx Xx., Xxxxx 000 Xxxxxxx Xxxxx, XX 00000-0000
0000 Xxxxxxxxx Xxxxxx Xxxxxx Xxxx, XX 00000
0000 X. Xxxxxx Xxxx Xxxx, Xxxxx 000 Xxxxxxxxx, XX 00000
0000 XxXxxxx Xxxxxxx Xx., Xxxxx X-0 Xxx Xxxxx, XX 00000
00000 Xxxxxxxx Xxxx, Xxxxx 000 Xxxxxx, XX 00000-0000
0000 Xxxxxx Xx., Xxxxx 000 Xxxxxxxx Xxxx, Xxx 00000-0000
0000 Xxxxx Xxxxxx Xxxxx, XX 00000
0 X. Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxxx, XX 00000
0000 X. Xxxxxxx Xx., X000, Xxxxx 000 Xxxxxxxxx, XX 00000
0000 Xxxxxxx Xx., Xxxxx 0000 Xxxxxx, XX 00000-0000
00000 Xxxxxxxxxx Xx., Xxx 000 Xxxxxxxxxx, XX 00000
River Park Square, 000 X Xxxx Xxxxxx Xxxxxxx, XX 00000
0000 Xxxxxxxx Xxxx, Xxxxx 000 Xxxxxxxxx, XX 00000
000 X Xxxxxxxx Xxx, Xxxxx 000 X. Xxxx Xxxxx, XX 00000
00000 X. Xxxx Xx, Xxx 000 Xxxx Xxxx, Xxx 00000
0000 Xxxxxxx Xxxxx Xxxx., Xxx 0000 Xxxxx Xxxxx, XX 00000
0000 Xxxxxxxxxxx Xxxx., Xxx 000,Xxxx X Xxxxxx, XX 00000
0000 Xxxxxxxxx Xxxxxx, #000 Xxxxxxxxx, XX X0X0X0 Can.
0000 Xxxxxxx Xxx Xxxxx Xxxx, Xxx X0X 0X0 Can.
0000 Xxxxx Xxxxxx Xxxxxxx, Xxx X0X0X0 Xxxxxx
0000 00xx Xxxxxx Xxxxxxxxxx, XX 00000
0000 00xx Xxxxxx Xxxxxxxxxx, XX 00000
0000 00xx Xxxxxx Xxxxxxxxxx, XX 00000
000 X 00xx Xxxxxx, Xxxxx 000 Xxxxx, XX
0000 Xxxxxxxxxx Xxxxxx Xxxx Xxxxxxx, XX
00 X. Xxxx Xx. X.X., XX Santa Barbara, CA
00000 Xxxxx Xx. Xxxxxxx Xxxxxx, XX
00000 00xx Xxx. Xxxxx Xxxx, XX
000 0xx Xx. #X, Xxxxxx, XX Xxxxxx, XX
00 Xxxx Xxx Xxx Xxxx., Xxx Xxxxxxx, XX
9610 Xxxxx Xxxxxxxx Dr. #100 Austin, TX
0000 XX 00xx Xx. Xxxxxxxx, XX
0000 Xxxx Xxxxxx Xxxxxx Xxxxxx, XX
000 Xxxxxxxxx Xxxxxx Xxxxxx, XX
Exhibit 6.1.1 Item #7
ESTIMATED AMOUNT OF OWNER OF
NAME AND ADDRESS OF PARTY NATURE OF RELATIONSHIP INVENTORY (AT COST INVENTORY
------------------------- ---------------------- ------------------ ---------
AMERICAN MOVING & STORAGE Third Party Warehouse $700,000 Restoration
000 Xxxxx Xxxx Xxxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
RIDOL INC. Third Party Warehouse $450,000 Restoration
0000 X. 00xx Xxxxx Xxxxxxxx
Xxxxxxx Xxxx, XX 00000
PROFESSIONAL INSTALLERS Third Party Warehouse $55,000 Restoration
0000 Xxxxx Xxxxx Xxxxx Xxxxxxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
AARDVARK MOVING COMPANY Third Party Warehouse $110,000 Restoration
0000 X Xxx Xx. Xxxxxxxx
Xxx'x Xxxxxx, XX 00000
XXXXXXX DELIVERY SERVICE Third Party Warehouse $165,000 Restoration
000 Xxxxxxx Xx. Xxxxxxxx
Xxxxxxx, XX 00000
HANOVER WAREHOUSE Third Party Warehouse $750,000 Restoration
000 Xxxxxxx Xxx. Bldg. 00 Xxxxxxxx
Xxxxx Xxxxxxx, XX 00000
LOGISCO, INC. Third Party Warehouse $55,000 Restoration
0000 Xxxxx Xxxxx Xxxxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
ALAMO RELOCATION & STORAGE Third Party Warehouse $55,000 Restoration
0000 X. Xxxxxxx Xxxxxx Xxxxxxxx
Xxx Xxxxxxx, XX 00000
STARCK VAN LINES INC. Third Party Warehouse $55,000 Restoration
00 Xxxxxx Xxxxx Xxxxxxxx
Xxxxxxxxxxxx, XX 00000
XXXXXXX DELIVERY SERVICE Third Party Warehouse $220,000 Restoration
Port 95 Industrial Center Hardware
0000 XX 00xx Xx.
Xxxx Xxxxxxxxxx, XX 00000
PEOPLE MOVERS (AKA PURPLE MOVING SYS.) Third Party Warehouse $55,000 Restoration
000 Xxxx Xxxxxx Xx. Xxxxx 000 Xxxxxxxx
Xxxxxxxx, XX 00000
ESTIMATED AMOUNT OF OWNER OF
NAME AND ADDRESS OF PARTY NATURE OF RELATIONSHIP INVENTORY (AT COST INVENTORY
------------------------- ---------------------- ------------------ ---------
XXXXXX TRANSFER & STORAGE Third Party Warehouse $55,000 Restoration
0000 X. Xxxx Xxxxxxxx
Xxxxxxx, XX 00000
RAINBOW MOVERS Third Party Warehouse $220,000 Restoration
000 Xxxxx Xx. Xxxxxxxx
Xxxxxxxx, XX 00000
XXXXXX-XXXXXX LOGISTICS Third Party Warehouse $55,000 Restoration
0000 Xxxxxxxx Xxxx Xxxx. Xxxxxxxx
Xxxxxxxxx, XX 00000
DESIGNER MOVING SYSTEMS Third Party Warehouse $55,000 Restoration
0000 X. Xxxxxxxxxx Xxxxxx Xxxxxxxx
Xxxx Xxxx Xxxx, XX 00000
XXXXXXX DELIVERY SERVICE Third Party Warehouse $240,000 Restoration
0000 Xxxxxxxxx Xx. Xxxxxxxx
Xxxxx, XX 00000
ACCURATE LOGISTICS LTD. Third Party Warehouse $55,000 Restoration
0000 Xxxxxxxxxx Xxxxxxxxxx Xxxxx Xxxxxxxx
Xxxxx Xxxx, XX 00000
SCOOTERS DELIVERY SERVICE Third Party Warehouse $55,000 Restoration
0000 Xxxxxx Xxxx Xxxxxxxx
Xxxxxxxxxxxx, XX 00000
THE SHIPPING DEPARTMENT, INC. Third Party Warehouse $55,000 Restoration
0000 Xxxxxx Xxxx, Xxxxx X Xxxxxxxx
Xxxxx Xxxxx, XX 00000
CRATERS & FREIGHTERS Third Party Warehouse $55,000 Restoration
0000 Xxxx 00xx Xxxxx Xxxxxxxx
Xxxxx, XX 00000
CROWN MOVING COMPANY Third Party Warehouse $55,000 Restoration
00000 X. Xxxxxxxx Xx. Xxxxxxxx
Xxxxxxx, XX 00000
CONVOI INTERMODAL INC. Third Party Warehouse $55,000 Restoration
# 000-00000 Xxxxxx Xxx Xxxxxxxx
Xxxxxxxx, XX X0X 0X0
AVENUE MOVING AND STORAGE LTD. Third Party Warehouse $110,000 Restoration
000 Xxxxxxxxx Xxxx Xxxxxxxx
Xxxxxxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
EXHIBIT 6.5
CREDIT CARD ARRANGEMENTS
See attached list.
Exhibit 6.5 - Page 1
Store Merchant Numbers
RESTORATION HARDWARE, INC. Exhibit 6.5
CREDIT CARD PROCESSING INFORMATION
CONTACT INFORMATION
AMEX VISA/MASTERCARD - FNBO DISCOVER ADS
0000 X. Xxxxxxxxx Xxxx X.X. Xxx 0000 2402 X. Xxxxxxxxx Xxxx Xxx Xxxxxxxx
Xxxxx 000 Xxxxx, XX 68103-0196 Xxxxxxx, XX 00000 xxxxxxxxx@xxxxxxx.xxx
Xxxxxxx, XX 00000 Xxxxx Xxxxx - 000-000-0000 x 0000 Xxxxx Xxxxxxx 000-000-0000 x 0000 972-348-5328
Xxxx Xxxxxx 000-000-0000 xxxxxx@xxxx.xxx xxxxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
xxxx.xxxxxx@xxxx.xxx
(000) 000-0000
---------------------------------------------------------------------------------------------------------
# STORE AMEX VISA/MC DISCOVER PRIVATE LABEL
---------------------------------------------------------------------------------------------------------
All stores 000 000 0000
3 Eureka 504 489 9805 441800 525873 6011-0180-1500-032 RHDW00003010000
4 Danville 504 476 3100 441800 525899 6011-0180-1500-040 RHDW00004010000
5 Newport 504 480 4839 441800 525909 6011-0180-1500-057 RHDW00005010000
6 Corte Madera 504 573 2179 441800 525912 6011-0180-1500-065 RHDW00006010000
7 Berkeley 504 423 0670 441800 525925 6011-0180-1500-073 RHDW00007010000
8 Portland 536 481 4921 441800 525938 6011-0180-1500-081 RHDW00008010000
9 San Mateo 504 593 8651 441800 525941 6011-0180-1500-099 RHDW00009010000
10 Palo Alto 504 593 8677 441800 525954 6011-0180-1500-107 RHDW00010010000
11 Pasadena 504 593 8685 441800 525967 6011-0180-1500-115 RHDW00011010000
12 Phoenix 502 484 4243 441800 525970 0000-0000-0000-122 RHDW00012010000
13 Skokie 312 591 0273 441800 533056 6011-0180-1500-131 RHDW00013010000
14 Woodland Hills 504 436 9106 441800 533069 6011-0180-1500-149 RHDW00014010000
15 Troy 321 487 8191 441800 533072 6011-0180-1500-156 RHDW00015010000
16 Houston 142 300 4423 441800 533085 6011-0180-1500-164 RHDW00016010000
17 Richmond Heights 324 300 0627 441800 567404 6011-0180-1500-172 RHDW00017010000
18 Littleton 105 300 0857 441800 567417 0000-0000-0000-189 RHDW00018010000
19 Leawood 115 300 0252 441800 567420 6011-0180-1500-198 RHDW00019010000
20 Dallas 142 300 4431 441800 567433 6011-0180-1500-206 RHDW00020010000
21 Houston 142 300 4449 441800 567446 6011-0180-1500-214 RHDW00021010000
22 Alexandria 445 301 2726 441800 567459 6011-0180-1500-222 RHDW00022010000
24 Seattle 546 302 4281 441800 597597 6011-0180-1500-248 RHDW00024010000
25 King of Prussia 237 303 1806 441800 597607 6011-0180-1500-255 RHDW00025010000
26 Atlanta/Perimeter 410 304 4426 441800 597610 6011-0180-1500-263 RHDW00026010000
27 XxXxxx 445 303 9927 441800 798082 6011-0180-1500-271 RHDW00027010000
28 Xxxxxxx Oaks 504 323 9615 441800 798079 6011-0180-1500-289 RHDW00028010000
29 Roosevelt 631 309 6836 441800 264943 6011-0180-1500-297 RHDW00029010000
30 Paramus 229 304 5787 441800 264927 6011-0180-1500-305 RHDW00030010000
31 Metairie 117 301 2899 441800 787886 6011-0180-1500-313 RHDW00031010000
32 Hartford 206 301 9004 441800 264930 0000-0000-0000-320 RHDW00032010000
33 Century City 504 318 8853 441800 787132 6011-0180-1500-339 RHDW00033010000
34 Charlotte 432 302 8803 441800 787145 6011-0180-1500-347 RHDW00034010000
35 San Antonio 142 314 9871 441800 787190 6011-0180-1500-354 RHDW00035010000
36 Pittsburgh 237 307 8898 441800 787158 6011-0180-1500-362 RHDW00036010000
Store Merchant Numbers
RESTORATION HARDWARE, INC. Exhibit 6.5
CREDIT CARD PROCESSING INFORMATION
CONTACT INFORMATION
AMEX VISA/MASTERCARD - FNBO DISCOVER ADS
0000 X. Xxxxxxxxx Xxxx X.X. Xxx 0000 2402 X. Xxxxxxxxx Xxxx Xxx Xxxxxxxx
Xxxxx 000 Xxxxx, XX 68103-0196 Xxxxxxx, XX 00000 xxxxxxxxx@xxxxxxx.xxx
Xxxxxxx, XX 00000 Xxxxx Xxxxx - 000-000-0000 x 0000 Xxxxx Xxxxxxx 000-000-0000 x 0000 972-348-5328
Xxxx Xxxxxx 000-000-0000 xxxxxx@xxxx.xxx xxxxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
xxxx.xxxxxx@xxxx.xxx
(000) 000-0000
---------------------------------------------------------------------------------------------------------
# STORE AMEX VISA/MC DISCOVER PRIVATE LABEL
---------------------------------------------------------------------------------------------------------
37 San Diego 504 329 7290 441800 787420 6011-0180-1500-370 RHDW00037010000
38 Santa Xxxxxx 504 329 7308 441800 787433 6011-0180-1500-388 RHDW00038010000
39 Xxxxxxx Ctr 504 331 5225 441800 787909 6011-0180-1500-396 RHDW00039010000
40 MSP 322 302 8325 441800 787446 6011-0180-1500-404 RHDW00040010000
41 Tampa 000 000 0000 441800 787459 6011-0180-1500-412 RHDW00041010000
42 Raleigh 432 302 2061 441800 787912 6011-0180-1500-420 RHDW00042010000
43 Atl/Lenox 410 304 8609 441800 787899 6011-0180-1500-438 RHDW00043010000
44 Aventura 409 332 8556 441800 787598 6011-0180-1500-446 RHDW00044010000
45 Birmingham 401 304 1504 441800 787608 6011-0180-1500-453 RHDW00045010000
46 Wichita 115 301 5482 441800 787611 6011-0180-1500-461 RHDW00046010000
48 Short Hills 000-000-0000 441800 792321 6011-0180-1500-487 RHDW00048010000
49 Palisades 000-000-0000 441800 792334 6011-0180-1500-495 RHDW00049010000
50 Boston 000-000-0000 441800 792347 6011-0180-1500-503 RHDW00050010000
51 Edina 322 303 8043 441800 792415 6011-0180-1500-511 RHDW00051010000
52 Princeton 229 309 8554 441800 792428 6011-0180-1500-529 RHDW00052010000
53 Washington DC 408 300 6122 441800 792431 6011-0180-1500-537 RHDW00053010000
54 Nashville 441 305 5351 441800 792444 6011-0180-1500-545 RHDW00054010000
55 Miami 409 329 9881 441800 792538 6011-0180-1500-552 RHDW00055010000
56 Salt Lake City 543 303 2034 441800 792567 6011-0180-1500-560 RHDW00056010000
57 Denver 105 306 8805 441800 792512 6011-0180-1500-578 RHDW00057010000
58 White Plains 631 327 1744 441800 792525 6011-0180-1500-586 RHDW00058010000
59 Palm Bch Gardens 409 329 9899 441800 792541 6011-0180-1500-594 RHDW00059010000
60 Naperville 312 311 6816 441800 792554 6011-0180-1500-602 RHDW00060010000
00 Xxxxxx Xxxxx 504 910 0837 441800 786065 6011-0180-1500-610 RHDW00061010000
62 New York 631 331 1680 441800 556855 6011-0180-1500-628 RHDW00062010000
00 Xxxxxxx/Xxxxxxx Xx 546 306 8395 441800 792570 6011-0180-1500-636 RHDW00063010000
00 Xxxxxxxx Xxxx 220 309 6920 441800 556884 6011-0180-1500-644 RHDW00064010000
65 Philadelphia 237 315 4129 441800 556842 6011-0180-1500-651 RHDW00065010000
66 Peabody 220 309 6912 441800 556907 6011-0180-1500-669 RHDW00066010000
67 Greenwich 206 304 8078 44180 1921748 6011-0180-1500-677 RHDW00067010000
68 Tampa / Citrus Pk 409 339 3213 44180 1916203 6011-0180-1500-685 RHDW00068010000
69 Norfolk 445 311 5354 44180 1916216 6011-0180-1500-693 RHDW00069010000
70 Chicago/Lincoln Pk. 312 311 4738 44180 1908415 6011-0180-1500-701 RHDW00070010000
00 Xxx Xxxxx 312 316 4428 441800 790462 6011-0180-1500-719 RHDW00071010000
72 Red Bank 229 314 1982 44180 1921751 6011-0180-1500-727 RHDW00072010000
00 Xxxxxx Xxxx 409 344 5229 441800 790475 6011-0180-1500-735 RHDW00073010000
74 Thousand Oaks 504 805 2351 44180 1908402 6011-0180-1500-743 RHDW00074010000
75 Columbus 334 311 7560 44180 1908428 6011-0180-1500-750 RHDW00075010000
76 Dallas / Galleria 142 340 6586 44180 1921764 6011-0180-1500-768 RHDW00076010000
Store Merchant Numbers
RESTORATION HARDWARE, INC. Exhibit 6.5
CREDIT CARD PROCESSING INFORMATION
CONTACT INFORMATION
AMEX VISA/MASTERCARD - FNBO DISCOVER ADS
0000 X. Xxxxxxxxx Xxxx X.X. Xxx 0000 2402 X. Xxxxxxxxx Xxxx Xxx Xxxxxxxx
Xxxxx 000 Xxxxx, XX 68103-0196 Xxxxxxx, XX 00000 xxxxxxxxx@xxxxxxx.xxx
Xxxxxxx, XX 00000 Xxxxx Xxxxx - 000-000-0000 x 0000 Xxxxx Xxxxxxx 000-000-0000 x 0000 972-348-5328
Xxxx Xxxxxx 000-000-0000 xxxxxx@xxxx.xxx xxxxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
xxxx.xxxxxx@xxxx.xxx
(000) 000-0000
---------------------------------------------------------------------------------------------------------
# STORE AMEX VISA/MC DISCOVER PRIVATE LABEL
---------------------------------------------------------------------------------------------------------
77 Providence, RI 238 301 6987 44180 1910018 6011-0180-1500-776 RHDW00077010000
78 Indianapolis, IN 313 307 0722 44180 1910050 6011-0180-1500-784 RHDW00078010000
79 Baton Rouge 117 306 3348 44180 1910021 6011-0180-1500-792 RHDW00079010000
100 Mission Viejo 504 806 3424 44180 1910034 6011-0180-1501-006 RHDW00100010000
101 Columbia, MD 219 309 4943 44180 1910047 6011-0180-1501-014 RHDW00101010000
102 Sarasota, Fl 000-000-0000 00000 0000000 0000-0000-0000-022 RHDW00102010000
103 Marlton, NJ 000-000-0000 44180 1910089 6011-0180-1501-030 RHDW00103010000
104 Buford, GA 000-000-0000 00000 0000000 0000-0000-0000-048 RHDW00104010000
105 Santa Barbara, CA 000-000-0000 44180 1910209 6011-0180-1501-055 RHDW00105010000
106 Ardmore, PA 000-000-0000 00000 0000000 0000-0000-0000-063 RHDW00106010000
107 Westport, CT 000-000-0000 44180 1910102 6011-0180-1501-071 RHDW00107010000
108 Orlando, FL 000-000-0000 00000 0000000 0000-0000-0000-089 RHDW00108010000
109 Grandville, MI 000-000-0000 44180 1910173 6011-0180-1501-097 RHDW00109010000
000 Xxxxxxx Xxxxx, XX 504 809 1912 44180 8016517 6011-0180-1501-113 RHDW00111010000
112 Kansas City, MO 000-000-0000 00000 0000000 0000-0000-0000-021 RHDW00112010000
113 Ridgeland, MS 000-000-0000 44180 1923775 6011-0180-1501-139 RHDW00113010000
114 San Diego, CA 000-000-0000 00000 0000000 0000-0000-0000-047 RHDW00114010000
000 Xxxxxx, XX 142 506 1413 44180 8016520 6011-0180-1501-154 RHDW00115010000
000 Xxxxxxxx Xxxx, XX 312 320 3812 44180 8016533 6011-0180-1501-162 RHDW00116010000
117 Tulsa, OK 135 307 5468 44180 8015686 6011-0180-1501-170 RHDW00117010000
118 Broomfield, CO 105 313 0134 44180 8015699 6011-0180-1501-188 RHDW00118010000
119 Wauwatosa 348 308 3085 44180 8013277 6011-0180-1501-196 RHDW00119010000
000 Xxxxxx, XX 142 509 3135 44180 8013251 6011-0180-1501-204 RHDW00120010000
000 Xxxxxxxxxx, XX 502 000 1780 44180 8013280 6011-0180-1501-212 RHDW00121010000
000 Xxxxxxx, XX 546 000 2793 44180 8013293 6011-0180-1501-220 RHDW00122010000
123 Roseville 504 830 4646 44180 8013264 6011-0180-1501-238 RHDW00123010000
000 Xxxx Xxxx Xxxxx 409 001 9142 44180 8013303 6011-0180-1501-261 RHDW00126010000
000 Xxxx Xxxx, XX 312 001 6563 44180 8013329 6011-0180-1511-278 RHDW00127010000
128 Santa Clare, Ca 504-056-4544 44180 8000620 6011-0180-1501-287 RHDW00128010000
000 Xxxxxxx, XX 432 024 8446 44180 5957970 6011-0180-1501-295 RHDW00129010000
940 Catalog 441-611-220-9 792509 6011-0180-1511-112 9990
Web 441-022-9744 4418-01919093 6011-0180-1522-226 9991
501 Vancouver 000-000-0000 400-721944 6011-0090-0115-551
000 Xxxxxxx, XX 000-000-0000 200-284927 6011-0090-0115-544
000 Xxxxx Xx. XX 000-000-0000 200-444521 6011-0090-0115-536
EXHIBIT 7.1.1
JURISDICTIONS IN WHICH BORROWERS
AND THEIR SUBSIDIARIES
ARE AUTHORIZED TO DO BUSINESS
Name of Entity Jurisdictions
-------------- -------------
Restoration Hardware, Inc. Delaware
Alabama Missouri
Arizona New Jersey
California New York
Colorado North Carolina
Connecticut Ohio
Florida Oklahoma
Georgia Oregon
Illinois Pennsylvania
Indiana Rhode Island
Kansas Texas
Louisiana Tennessee
Maryland Utah
Massachusetts Virginia
Michigan Washington
Minnesota Washington, DC
Mississippi Wisconsin
Subsidiaries
The Michaels Furniture Company, Inc. California
Restoration Hardware Canada, Inc. Province of British Columbia
Ontario
Exhibit 7.1.1 - Page 1
EXHIBIT 7.1.4
CAPITAL STRUCTURE
1. The class and the number of authorized and issued Securities of
Borrowers and each of their Subsidiaries are as follows:
Borrowers:
Class of Number of Securities Number of Securities
Securities Issued and Outstanding Authorized but Unissued
---------- ---------------------- -----------------------
Common Stock 29,956,986 (as of 10/25/02) 30,043,014
Preferred Series A 13,470 13,037
Preferred Series B 0 13,037
Subsidiaries:
Class of Number of Securities Number of Securities
Securities Issued and Outstanding Authorized but Unissued
---------- ---------------------- -----------------------
Restoration Hardware Canada, Inc.
Common Stock 3,001 96,999
The Michaels Furniture Company, Inc.
Common Stock 1,000 0
2. The number of all other outstanding Securities of Borrowers and each
Subsidiary are as follows: None
Exhibit 7.1.4 - Page 1
3. The correct name and jurisdiction of incorporation or organization of
each Subsidiary of Borrowers and the percentage of its issued and
outstanding Voting Stock owned by Borrowers or a Subsidiary of
Borrowers are as follows:
Percentage of Voting
Jurisdiction of Stock Owned by Borrowers or
Name Incorporation/Organization a Subsidiary of Borrowers
---- -------------------------- ---------------------------
Restoration Hardware Canada, Inc. Province of British Columbia 100%
The Michaels Furniture Company, Inc. California 100%
4. The name of each of Borrowers' and each Subsidiary's corporate or joint
venture Affiliates and the nature of the affiliation are as follows:
Restoration Hardware, Inc. (excluding "upstream affiliates") None
Restoration Hardware Canada, Inc. None
The Michaels Furniture Company, Inc. None
5. The agreements or instruments binding upon the partners, members or
shareholders of any Subsidiaries of Lead Borrower and relating to the
ownership of their Securities, are as follows:
The Michaels Furniture Company, Inc. - Stock Purchase Agreement by and
among Restoration Hardware, Inc. and Xxxxxxx Xxxxxxxxxx.
6. The name of each Affiliate of Borrowers, whose existence is known to
the Borrowers, is as follows:
Every Person who has filed a Form 3, 4 and/or 5 pursuant to the
requirements of the Securities Exchange Act of 1934, as amended, and
who holds publicly traded Voting Stock of either of the Borrowers and
every Person who has filed a Schedule 13D or 13G pursuant to the
requirements of Regulation 13D-G under the Securities Exchange Act of
1934, as amended.
Exhibit 7.1.4 - Page 2
EXHIBIT 7.1.5
NAMES
1. Lead Borrower's correct name, as registered with the Secretary of State
of the State of Delaware is: Restoration Hardware, Inc.
2. In the conduct of its business, Lead Borrower has used the following
names:
Restoration Hardware, Inc.
Restoration Hardware
3. Each Subsidiary's correct name, as registered with the Secretary of
State of the State of its incorporation or formation, is:
Restoration Hardware Canada, Inc.
The Michaels Furniture Company, Inc.
4. In the conduct of its business, each Subsidiary has used the following
names:
Restoration Hardware Canada, Inc.: Restoration Hardware
The Michaels Furniture Company, Inc.: a) Michaels; and
b) Michaels Concepts in Wood, Inc.
5. Borrowers have not been the surviving entity of a merger or
consolidation nor have they acquired substantially all the assets of
any person.
6. No Subsidiary has been the surviving entity of a merger or
consolidation nor has it acquired substantially all the assets of any
person.
7. Borrowers are corporations.
8. Lead Borrower's Subsidiary, Restoration Hardware Canada, Inc., is a
corporation.
Lead Borrower's Subsidiary, The Michaels Furniture Company, Inc., is a
corporation.
9. Lead Borrower's Organizational I.D. Number is 00-0000000
10. The Organizational I.D. Number for Lead Borrower's Subsidiary,
Restoration Hardware Canada, Inc., is 894423623.
The Organizational I.D. Number for Lead Borrower's Subsidiary, The
Michaels Furniture Company, Inc., is 00-0000000.
Exhibit 7.1.5 - Page 1
EXHIBIT 7.1.13
SURETY OBLIGATIONS
NONE
Exhibit 7.1.13 - Page 1
EXHIBIT 7.1.14
TAX IDENTIFICATION NUMBERS OF SUBSIDIARIES
Subsidiary Number
---------- ------
Restoration Hardware Canada, Inc. 894423623
The Michaels Furniture Company, Inc. 00-0000000
Exhibit 7.1.14 - Page 1
EXHIBIT 7.1.15
BROKERS' FEES
NONE
Exhibit 7.1.15 - Page 1
EXHIBIT 7.1.16
PATENTS, TRADEMARKS, COPYRIGHTS AND LICENSES
Borrowers' and their Subsidiaries' patents: None
Borrowers' and their Subsidiaries' trademarks: See attached.
Borrowers' and their Subsidiaries' copyrights: None
Borrowers' and their Subsidiaries' licenses (other than routine
business licenses, authorizing them to transact business in local
jurisdictions): None
Infringement Activities:
Unregistered material trademarks, service marks and copyrights: None
Material license agreements that do not permit assignment or limit the
use of license after default: None
Exhibit 7.1.16 - Page 1
EXHIBIT 7.1.16
Restoration Hardware, Inc. - TRADEMARK STATUS REPORT (SORTED ALPHABETICALLY)
FAMOUS FALL LIGHTING SALE STATUS: Registered
US United States of America
APPLICATION NUMBER: 76058786 REGISTRATION NUMBER: 2563076
FILING DATE: 27-May-00 REGISTRATION DATE: 00-Xxx-00
XXXXXXX XXXX XXXXXX: Xxxxxxxxxx
XX Xxxxxx Xxxxxx of America
APPLICATION NUMBER: 76124909 REGISTRATION NUMBER: 2583562
FILING DATE: 07-Sep-00 REGISTRATION DATE: 18-Jun-02
HOLIDAY WIT & WISDOM STATUS: Registered
US United States of America
APPLICATION NUMBER: 76058785 REGISTRATION NUMBER: 2558031
FILING DATE: 27-May-00 REGISTRATION DATE: 09-Apr-02
RESTORATION HARDWARE STATUS: Registered
CA Canada
APPLICATION NUMBER: 829912 REGISTRATION NUMBER: 505610
FILING DATE: 26-Nov-96 REGISTRATION DATE: 16-Dec-98
RESTORATION HARDWARE STATUS: Registered
MX Mexico
APPLICATION NUMBER: 286271 REGISTRATION NUMBER: 553715
FILING DATE: 07-Feb-97 REGISTRATION DATE: 29-Jul-97
RESTORATION HARDWARE STATUS: Registered
US United States of America
APPLICATION NUMBER: 74584098 REGISTRATION NUMBER: 2048579
FILING DATE: 11-Oct-94 REGISTRATION DATE: 01-Apr-97
Exhibit 7.1.16 - Page 2
RESTORATION HARDWARE (STYLIZED) STATUS: Pending
CA Canada
APPLICATION NUMBER: 1070730 REGISTRATION NUMBER:
FILING DATE: 10-Aug-00 REGISTRATION DATE:
RESTORATION HARDWARE (STYLIZED) STATUS: Registered
CN China
APPLICATION NUMBER: 2000065002 REGISTRATION NUMBER: 1659685
FILING DATE: 15-May-00 REGISTRATION DATE: 28-Oct-01
CLASS(ES): 35 NEXT RENEWAL DATE: 27-Oct-11
RESTORATION HARDWARE (STYLIZED) STATUS: Registered
EU European Community
APPLICATION NUMBER: 1637404 REGISTRATION NUMBER: 1637404
FILING DATE: 03-May-00 REGISTRATION DATE: 03-May-00
RESTORATION HARDWARE (STYLIZED) STATUS: Published
HK Hong Kong
APPLICATION NUMBER: 98862000 REGISTRATION NUMBER:
FILING DATE: 06-May-00 REGISTRATION DATE:
RESTORATION HARDWARE (STYLIZED) STATUS: Registered
JP Japan
APPLICATION NUMBER: 200048711 REGISTRATION NUMBER: 4583948
FILING DATE: 01-May-00 REGISTRATION DATE: 05-Jul-02
RESTORATION HARDWARE (STYLIZED) STATUS: Pending
SG Singapore
APPLICATION NUMBER: T0007685J REGISTRATION NUMBER:
FILING DATE: 09-May-00 REGISTRATION DATE:
Exhibit 7.1.16 - Page 3
RESTORATION HARDWARE (STYLIZED) STATUS: Registered
TW Taiwan
APPLICATION NUMBER: 89024484 REGISTRATION NUMBER: 149527
FILING DATE: 04-May-00 REGISTRATION DATE: 01-Oct-01
Exhibit 7.1.16 - Page 4
EXHIBIT 7.1.20
LITIGATION
The only actions, suits, proceedings and investigations pending, or, to the
knowledge of Borrowers, threatened against or involving Borrowers or any of
their Subsidiaries, or the business, operations, Properties, prospects, profits
or condition of Borrowers or any of their Subsidiaries which, singly or in the
aggregate, be reasonably expected to have a Material Adverse Effect are as
follows: None.
Exhibit 7.1.20 - Page 1
EXHIBIT 7.1.22
CAPITALIZED AND OPERATING LEASES
Borrowers and their Subsidiaries have the following capitalized and operating
leases:
Capitalized Leases
Lessee Lessor Term of Lease Property Covered
------ ------ ------------- ----------------
Restoration Hardware, Inc. Dell Leasing Expires 3/1/03 Computer Equipment
Restoration Hardware, Inc Lampertz Expires 12/1/03 Security System
The Michaels Furniture Company, Inc. ILC Expires 12/15/03 M&W Re-Gensorb System
Operating Leases:
See attached.
Exhibit 7.1.22 - Page 1
EXHIBIT 7.1.22 OPERATING LEASES
LOCATIONS
LEASE
EXPIRATION
LESSEE LESSOR DATE (TERM) PROPERTY COVERED
------------------------------------------------------------------------------------------------------------------------------------
Restoration
Hardware, Inc. Wynwood 11/1/2002 00 Xxxx Xxxx, Xxxxx X Xxxxx Xxxxxx, XX 00000
Paradise Point
Restoration
Hardware, Inc. Wynwood 7/1/2004 0000 X. Xxxxxx Xxx Xxxxxxx, XX 00000
Boston Properties (Dist.Cntr)
Restoration
Hardware, Inc. Central Valley LLC 2/1/2004 0000 X. XxxXxxxxx Xxxxx Xxxxx, XX 00000
(Dist.Cntr)
Restoration
Hardware, Inc. BT Property LLC 9/1/2006 0000 Xxxxx Xxxxx Xxxxxxxxx, XX 00000
(Dist.Cntr)
Restoration
Hardware, Inc. Eureka Preservation Partners 3/1/2004 000 Xxxxxx Xxxxxx Xxxxxx, XX 00000
Globe Properties
Xxxxxxx Xxxxxx
Restoration
Hardware, Inc. Blackhawk Plaza 12/1/2007 0000 Xxxxxxxxx Xxxxx Xxxxxx, Xxxxx X0 Xxxxxxxx, XX 00000
Restoration
Hardware, Inc. Irvine Retail Property 4/1/2004 000 Xxxxxxx Xxx. Xxxxx, Xxxxx X000 Xxxxxxx Xxxxx, XX 00000
Restoration
Hardware, Inc. Macerich 4/1/2002 0000 Xxxxxxx Xxxxxxx Xxxxx Xxxxxx, XX 00000
Restoration
Hardware, Inc. Drew Properties 4/1/2004 0000 Xxxxxx Xxxxxx Xxxxxxxx, XX 00000
Restoration
Hardware, Inc. Xxx Xxxxxxxx 7/1/2010 000 XX 00xx Xxxxxx Xxxxxxxx, XX 00000
Schnitzer Investments
Restoration
Hardware, Inc. Xxxxxxxx Dev. 10/1/2005 000 Xxxxxxxxx Xxxx, Xxxxx 0000 Xxx Xxxxx, XX 00000-0000
Restoration
Hardware, Inc. Xxxxxx/Xxxxxx Xxxxxx 9/1/2005 000 Xxxxxxxxxx Xxxxxx Xxxx Xxxx, XX 00000-0000
Restoration
Hardware, Inc. Lincoln Trust Co 10/1/2007 000 X. Xxxxxxxx Xxxx Xxxxxxxx, XX 00000-0000
Cherry Family Trust
77 Del Mar LLC
Restoration
Hardware, Inc. Biltmore Shopping Ctr LLC 11/1/2005 0000 X. Xxxxxxxxx Xx Xxxxxxx, XX 00000-0000
Airport Plaza
Restoration
Hardware, Inc. Old Orchard Urban Ltd 5/1/2008 000 Xxx Xxxxxxx Xxxxxx, Xxxxx X00 Xxxxxx, Xxx 00000
Restoration
Hardware, Inc. The Promenade LLC 6/1/2007 0000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 0000 Xxxxxxxx Xxxxx, XX 00000
Restoration
Hardware, Inc. Somerset Collection 8/1/2008 0000 Xxxx Xxx Xxxxxx Xx, Xxxxx X-000 Xxxx, XX 00000
Restoration
Hardware, Inc. Highland Village 1/1/2012 0000 Xxxxxxxxxx Xxxxxxx, XX 00000
Interstate Battery
Restoration
Hardware, Inc. Hycel Partners LP 9/1/2011 0000 Xx. Xxxxx Xxxxxxxx Xxxxxxxx Xxxxxxx, XX 00000
Restoration
Hardware, Inc. Xxxxx Park Xxxxxxx 1/1/2009 0000 Xxxx Xxxxxxx Xxxx Xxxxx, Xxx X0 Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxxxxxx
Restoration
Hardware, Inc. Town Center Plaza 1/1/2012 0000 X. 000xx Xxxxxx, #0000 Xxxxxxx, XX 00000
Aardvark Moving
Restoration
Hardware, Inc. Xxxxxxxxx Properties 1/1/2012 0000 Xxxx Xxxxxx Xxxxxx, XX 00000
Interstate Battery
Restoration
Hardware, Inc. Town & Country Partners 1/1/2012 00000 Xxxxxxxx Xx., Xxxxx 0000 Xxxxxxx, XX 00000
Interstate Battery
Restoration
Hardware, Inc. Xxxxxxx Development 2/1/2012 000 Xxxx Xxxxxx Xxxxxxxxxx, XX 00000
Restoration
Hardware, Inc. University Village 5/1/2007 0000 Xxxxxxxxxx Xxxxxxx Xxxxx, XX Xxxxxxx, XX 00000
GDM & Associates
Restoration
Hardware, Inc. King of Prussia Assoc. 5/1/2009 000 Xxxx Xxxx Xxxx xx Xxxxxxx, XX 00000
Restoration
Hardware, Inc. Daltex Perimeter Inc 1/1/2013 000 Xxxxxxxxx Xxx. X, Xxxxx 000 Xxxxxxx, XX 00000
Restoration
Hardware, Inc. Tysons Corner LLC 12/1/2009 0000 Xxxxxx Xxxxxx Xxxxxx XxXxxx, XX 00000
Restoration
Hardware, Inc. Xxxxxxx Oaks Fasion Assoc. 12/1/2009 00000 Xxxxxxxxx Xx., Xxxxx 000 Xxxxxxx Xxxx, XX 00000
Restoration
Hardware, Inc. Roosevelt Field Mall 6/1/2009 Roosevelt Field Shopping Ctr., Ste 1121 Xxxxxx Xxxx, XX 00000
LEASE
EXPIRATION
LESSEE LESSOR DATE (TERM) PROPERTY COVERED
------------------------------------------------------------------------------------------------------------------------------------
Restoration
Hardware, Inc. Westland Garden State 1/1/2010 #1 Garden Xxxxx Xxxxx Xxxx, Xxx 0000 Xxxxxxx, XX 00000
Restoration
Hardware, Inc. Greater Lakeside Corp 12/1/2012 0000 Xxxxxxxx Xxxxxxxx Xxxx., Xxx 00 Xxxxxxxx, XX 00000
Restoration
Hardware, Inc. West Farms Associates 1/1/2010 000 Xxxxxxxxx Xxxx, Xxxxx X-000 Xxxxxxxxxx, XX 00000
Restoration
Hardware, Inc. Century City Mall LLC 1/1/2010 00000 Xxxxx Xxxxxx Xxxx., Xxxxx 00 Xxx Xxxxxxx, XX 00000
Restoration
Hardware, Inc. Xxxxxxxx Place Partners 8/1/2012 0000-X Xxxxxxxx Xxxxx Xxxxx Xxxxxxxxx, XX 00000
Restoration
Hardware, Inc. CB Xxxxxxx Xxxxx 8/1/2012 000 Xxxx Xxxxx Xxxx, Xxxxx 0000 Xxx Xxxxxxx, XX 00000
Restoration
Hardware, Inc. L&B Southpointe Galleria 1/1/2013 0000 Xxxxxxxxxx Xx., Xxxxx 0000 Xxxxxxxxxx, XX 00000
Restoration
Hardware, Inc. Equitable Life Assurance 1/1/2010 0000 Xxxxxx Xxxx, Xxxxx 000 Xxx Xxxxx, XX 00000
Restoration
Hardware, Inc. Xxxxxx Xxxxxx Co 9/1/2007 0000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxx Xxxxxx, XX 00000
Restoration
Hardware, Inc. La Cienega Associates 11/1/2010 000 X. Xx Xxxxxxx Xxxx., Xxxxx 000 Xxx Xxxxxxx, XX 00000
Restoration
Hardware, Inc. 791 Limited Liability 10/1/2012 000 Xxxxx Xxxxxx Xx. Xxxx, XX 00000
Welsh Assoc
Restoration
Hardware, Inc. Old Hyde Park Properties 10/1/2012 000 X. Xxxxxx Xxx. Xxxxx, XX 00000
Restoration
Hardware, Inc. CVM Associates 11/1/2009 0000 Xxxxxxxx Xxx., Xxxxx 000 Xxxxxxx, XX 00000
Restoration
Hardware, Inc. Lenox Square Retail Prop. Trust 10/1/2009 0000 Xxxxxxxxx Xx., X.X., Xxxxx 0000 Xxxxxxx, XX 00000
Restoration
Hardware, Inc. Midland Loan Services 2/1/2013 00000 Xxxxxxxx Xxxx., Xxxxx 000 Xxxxxxxx, XX 00000
Restoration
Hardware, Inc. Bayer Retail Co 1/1/2014 000 Xxxxxx Xxxx. Xxxxxxxxxx, XX 00000
Restoration
Hardware, Inc. Laham Holdings LLC 3/1/2008 0000 X. Xxxx Xxxx, Xxxxx 000 Xxxxxxx, XX 00000
Restoration
Hardware, Inc. Short Hills Associates 1/1/2011 0000 Xxxxxx Xxxxxxxx, Xxxxx X-000 Xxxxx Xxxxx, XX 00000
Restoration
Hardware, Inc. Pyramid Mgt. Group 12/1/2013 0000 Xxxxxxxxx Xxx Xxxxx, Xxxxx X-000 Xxxx Xxxxx, XX 00000
Restoration
Hardware, Inc. Xxxxxxx Bank 6/1/2008 000 Xxxxxxxx Xxxxxx Xxxxxx, XX 00000
XX Property Fund GMBH
Restoration
Hardware, Inc. Xxxxxxx & Xxxx 6/1/2013 0000 Xxxxxxxx Xxxxx, XX 00000-0000
Welsh Partners
Restoration
Hardware, Inc. Princeton Marketfair 1/1/2011 0000 XX Xxxxx 0, Xxxxx 000 Xxxxxxxxx, XX 00000
Restoration
Hardware, Inc. Key Properties LLC 6/1/2018 0000 Xxxxxxxxx Xxx., Xxxxxxxxx Xxxxxxxxxx, XX 00000
Restoration
Hardware, Inc. Marquette-Green Hills 1/1/2014 0000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000 Xxxxxxxxx, XX 00000
Restoration
Hardware, Inc. The Falls Shopping Center 9/1/2011 0000 X.X. 000xx Xxxxxx, Xxxxx 000 Xxxxx, XX 00000
Restoration
Hardware, Inc. TSI Partnership 1/1/2011 000 Xxxxxxx Xxxxxx Xxxx Xxxx Xxxx, XX 00000
Restoration
Hardware, Inc. Taubman Cherry Creek 7/1/2011 0000 X. 0xx Xxx., Xxxxx X-000 Xxxxxx, XX 00000
Xxxxxx Xxxxxxxxxx
Restoration
Hardware, Inc. 4676 Fashion Mall Partners 7/1/2010 000 Xxxxxxxxxxx Xxx., Space 2700 Xxxxx Xxxxxx, XX 00000
Restoration
Hardware, Inc. Forbes/Chohen FL Prop. 9/1/2010 0000 XXX Xxxx., Xxxxx X000 Xxxx Xxxxx Xxxxxxx,
XX 00000
Restoration
Hardware, Inc. BBM Incorporated 1/1/2014 00 X. Xxxxxxx Xxx., Xxxxx 000 Xxxxxxxxxx, Xxx 00000
Restoration
Hardware, Inc. La Salle Partners 9/1/2008 0000 Xx. Xxxxxx Xxxx. Xxxxxx Xxxxx, XX 00000
Restoration
Hardware, Inc. Shefa Land Corp 1/1/2014 000 Xxxxxxxx Xxx Xxxx, XX 00000
Restoration
Hardware, Inc. PSD Pacific Place 1/1/2011 000 Xxxx Xxxxxx, #000 Xxxxxxx, XX 00000
GDM & Associates
Restoration
Hardware, Inc. Atrium Associates 1/1/2011 000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxx, XX 00000
Restoration
Hardware, Inc. Manayunk Farmers Mkt 1/1/2014 0000 Xxxx Xxxxxx Xxxxxxxxxxxx, XX 00000
Restoration
Hardware, Inc. North Shore Mall LP 1/1/2011 000 Xxxxxxx Xxxxxx Xxxxxxx, XX 00000
Restoration
Hardware, Inc. 239 Greenwich Associates 6/1/2015 000 Xxxxxxxxx Xxx. Xxxxxxxxx, XX 00000
LEASE
EXPIRATION
LESSEE LESSOR DATE (TERM) PROPERTY COVERED
------------------------------------------------------------------------------------------------------------------------------------
Restoration
Hardware, Inc. Citrus Park Venture LP 3/1/2011 0000 Xxxxxx Xxxx Xxxx Xxxxxx Xxxx Xxxxx, XX 00000
Restoration
Hardware, Inc. Taubman MacArthur Assoc 2/1/2012 000 Xxxxxxxxxx Xxx., Xxxxx #000 Xxxxxxx, XX 00000
Restoration
Hardware, Inc. GDH Investments 7/1/2014 000 X. Xxxxx Xxx. Xxxxxxx, Xxx 00000
Restoration
Hardware, Inc. Urban Retail Properties 5/1/2011 00 Xxxxxxxx Xxxxxx Xxxxxxxx, Xxx 00000
Restoration
Hardware, Inc. Broad Street Partners 7/1/2014 00 Xxxxx Xxxxxx Xxx Xxxx, XX 00000
Restoration
Hardware, Inc. Xxxxxxx College 6/1/2009 000 Xxxx Xxx. Xxxxx, Xxxxx 000 Xxxxxx Xxxx, XX 00000
Restoration
Hardware, Inc. Westlake Promenade 6/1/2014 0000 X. Xxxxxxxx Xxxx Xxxx., Xxxxx X Xxxxxxxx Xxxx, XX 00000
Restoration
Hardware, Inc. Easton Town Center 1/1/2010 0000 Xxxxxxxxx Xxx Xxxxxxxx, XX 00000
Restoration
Hardware, Inc. DAP Limited 8/1/2009 0000 Xxxxx Xxxx Xxxxxx, XX 00000
Interstate Battery
Restoration
Hardware, Inc. Providence Place Group 8/1/2014 00 Xxxxxxxxxx Xxxxx Xxxxxxxxxx, XX 00000
Restoration
Hardware, Inc. SDG Fashion Mall LLP 1/1/2015 0000 Xxxxxxxx Xxxxxxxx, Xxxxx 000 Xxxxxxxxxxxx, Xxx 00000
Restoration
Hardware, Inc. Mall of Louisiana Assoc 12/1/2009 0000 Xxxx Xxxxxx Xxxx., Xxxxx 0000 Xxxxx Xxxxx, XX 00000
Restoration
Hardware, Inc. Mission Viejo Associates 1/1/2015 00000 Xxxxx Xxxxxx Xxxx., #00X Xxxxxxx Xxxxx, XX 00000
Restoration
Hardware, Inc. Mall at Columbia 12/1/2003 00000 Xxxxxx Xxxxxxxx Xxxx., Xxx 0000 Xxxxxxxx, XX 00000
Restoration
Hardware, Inc. Dynamic Retail Trust 4/1/2012 000 Xxxxxxxxx Xxxxx Xxxxxxxx, XX 00000-0000
Restoration
Hardware, Inc. Continental Real Estate 1/1/2015 Marlton Specialty Ctr., Xxx 00 X., Xxx. X Xxxxxxx, XX 00000
Restoration
Hardware, Inc. Mall of Georgia LLC 10/1/2009 0000 Xxxxxx Xx., Xxx XX00 Xxxxxx, XX 00000
Restoration
Hardware, Inc. 000 Xxxxx Xxxxxx Partners 1/1/2010 000 Xxxxx Xxxxxx Xxxxx Xxxxxxx, XX 00000
Xxxxx Moving & Storage
Restoration
Hardware, Inc. Ameriship Suburban LP 1/1/2010 0 X. Xxxxxxxxxx Xxxxxx Xxxxxxx, XX 00000-0000
Restoration
Hardware, Inc. Fine Arts Realty Co 1/1/2015 00 Xxxx Xxxx Xxxx Xxxxxxxx, XX 00000-0000
Restoration
Hardware, Inc. Florida Mall Associates 11/1/2014 0000 X. Xxxxxx Xxxxxxx Xxxxx, Xxx. 0000 Xxxxxxx, XX 00000
Restoration
Hardware, Inc. Rivertown Crossings 1/1/2010 0000 Xxxxxxxxx Xxxx., Xxxxx 0000 Xxxxxxxxxx, XX 00000
Restoration
Hardware, Inc. Counsins Properties 2/1/2010 000 Xxxx Xxxxxx Xx., Xxxxx 000 Xxxxxxx Xxxxx, XX
00000-0000
Restoration
Hardware, Inc. X.X. Xxxxxxx 1/1/2015 0000 Xxxxxxxxx Xxxxxx Xxxxxx Xxxx, XX 00000
Restoration
Hardware, Inc. General Growth Mgt 1/1/2012 0000 X. Xxxxxx Xxxx Xxxx, Xxxxx 000 Xxxxxxxxx, XX 00000
Restoration
Hardware, Inc. Westfield Corp. 1/1/2012 0000 XxXxxxx Xxxxxxx Xx., Xxxxx X-0 Xxx Xxxxx, XX 00000
Restoration
Hardware, Inc. SPG ARB Associates 1/1/2011 00000 Xxxxxxxx Xxxx, Xxxxx 000 Xxxxxx, XX 00000-0000
Industrial Properties
Restoration
Hardware, Inc. Renaissance Place LLC 7/1/2010 0000 Xxxxxx Xx., Xxxxx 000 Xxxxxxxx Xxxx, Xxx
00000-0000
Restoration
Hardware, Inc. Helmerich & Xxxxx 7/1/2012 0000 Xxxxx Xxxxxx Xxxxx, XX 00000
Restoration
Hardware, Inc. Flatiron Holding LLC 1/31/2011 0 X. Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxxxxxx
Restoration
Hardware, Inc. Mayfair Property Inc 1/1/2013 0000 X. Xxxxxxx Xx., X000, Xxxxx 000 Xxxxxxxxx, XX 00000
Restoration
Hardware, Inc. GGP Homart II 1/1/2013 0000 Xxxxxxx Xx., Xxxxx 0000 Xxxxxx, XX 00000-0000
Interstate Battery
Restoration
Hardware, Inc. PHXAZ Limited Partners 10/1/2010 00000 Xxxxxxxxxx Xx., Xxx 000 Xxxxxxxxxx, XX 00000
Airport Plaza
Restoration
Hardware, Inc. Xxxxx Xxxx Xxxxxx 00/0/0000 Xxxxx Xxxx Xxxxxx, 000 X Xxxx Xxxxxx Xxxxxxx, XX 00000
Restoration
Hardware, Inc. Urban Roseville LLC 8/1/2010 0000 Xxxxxxxx Xxxx, Xxxxx 000 Xxxxxxxxx, XX 00000
Restoration
Hardware, Inc. Cityplace Retail 10/1/2015 000 X Xxxxxxxx Xxx, Xxxxx 000 X. Xxxx Xxxxx, XX 00000
LEASE
EXPIRATION
LESSEE LESSOR DATE (TERM) PROPERTY COVERED
------------------------------------------------------------------------------------------------------------------------------------
Restoration
Hardware, Inc. DDRC P&M Deer Park Town Ctr 1/1/2011 00000 X. Xxxx Xx, Xxx 000 Xxxx Xxxx, Xxx 00000
Restoration
Hardware, Inc. Valley Fair 1/1/2012 0000 Xxxxxxx Xxxxx Xxxx., Xxx 0000 Xxxxx Xxxxx, XX 00000
Restoration
Hardware, Inc. Southpointe Mall 3/1/2012 0000 Xxxxxxxxxxx Xxxx., Xxx 000,Xxxx X Xxxxxx, XX 00000
Restoration
Hardware
Canada, Inc. Bentall Properties 8/1/2008 0000 Xxxxxxxxx Xxxxxx, #000 Xxxxxxxxx, XX X0X0X0 Can.
Restoration
Hardware
Canada, Inc. Orland Corp 12/1/2009 0000 Xxxxxxx Xxx Xxxxx Xxxx, Xxx X0X 0X0
Can.
Restoration
Hardware
Canada, Inc. Yonge North Development 11/1/2014 0000 Xxxxx Xxxxxx Xxxxxxx, Xxx X0X0X0 Xxxxxx
Yonge Broadway Dev.
The Michael's
Furniture
Company, Inc.. Xxxxxxx Xxxxxxxxxx 2/28/2008 0000 00xx Xxxxxx Xxxxxxxxxx, XX 00000
The Michael's
Furniture
Company, Inc.. Xxxxxxx Xxxxxxxxxx 2/28/2008 0000 00xx Xxxxxx Xxxxxxxxxx, XX 00000
The Michael's
Furniture
Company, Inc.. Xxxxxxx Xxxxxxxxxx 2/28/2008 0000 Xxxxx Xxxxxx Xxxxxxxxxx, XX 00000
The Michael's
Furniture
Company, Inc.. Xxxxxxx Xxxxxxxxxxxx 7/31/2006 0000 00xx Xxxxxx Xxxxxxxxxx, XX 00000
Restoration
Hardware, Inc. Airport Plaza 10/31/2002 000 X 00xx Xxxxxx, Xxxxx 000 Xxxxx, XX
c/o Victoria Properties, Inc.
Welsh Partners '85 10/31/2002 0000 Xxxxxxxxxx Xxxxxx Xxxx Xxxxxxx, XX
Restoration
Hardware, Inc. Xxxxx Moving & Storage 12/31/2002 00 X. Xxxx Xx. X.X., XX Xxxxx Xxxxxxx, XX
Restoration
Hardware, Inc. Interstate Battery SY 2/28/2003 00000 Xxxxx Xx. Xxxxxxx Xxxxxx, XX
Restoration
Hardware, Inc. GDM & Associates 3/1/2003 00000 00xx Xxx. Xxxxx Xxxx, XX
Restoration
Hardware, Inc. Globe Properties 4/30/2002 000 0xx Xx. #X, Xxxxxx, XX Xxxxxx, XX
Restoration
Hardware, Inc. 77 DEL MAR LLC 7/31/2003 00 Xxxx Xxx Xxx Xxxx., Xxx Xxxxxxx, XX
Restoration
Hardware, Inc. Industrial Properties 9/1/2003 0000 Xxxxx Xxxxxxxx Xx. #000 Xxxxxx, XX
Restoration
Hardware, Inc. Schnitzer Investments 9/30/2003 0000 XX 00xx Xx. Xxxxxxxx, XX
Restoration
Hardware, Inc. Xxxxxx X. Xxxxxxxxxx 7/31/2005 0000 Xxxx Xxxxxx Xxxxxx Xxxxxx, XX
Restoration
Hardware, Inc. US Property Fund GMBH 10/1/2008 000 Xxxxxxxxx Xxxxxx Xxxxxx, XX
EQUIPMENT
LEASE
EXPIRATION
LESSEE LESSOR DATE PROPERTY COVERED
------------------------------------------------------------------------------------------------------------------------
Restoration Hardware, Inc. Apple Commercial Credit 7/1/2003 Power Mac G4
Restoration Hardware, Inc. Banc of America/Nations Credit 5/2/2002 Computer Equipment
Restoration Hardware, Inc. Copelco 6/18/2005 Lift Trucks
Restoration Hardware, Inc. Xxxxxxx 5/1/2003 Office Furniture
Restoration Hardware, Inc. Dell Financial Services 3/20/03 - 2/20/04 PC's, Printers, Software
Restoration Hardware, Inc. GMAC 5/6/2003 Chevy Truck
Restoration Hardware, Inc. Xxxxxx Financial Leasing 2/28/2002 Computer Equipment
Restoration Hardware, Inc. LaSalle 9/1/2002 Computer Equipment
Restoration Hardware, Inc. Lucent 2/3/2002 Phone Systems
Restoration Hardware, Inc. NMHG 5/11/2006 Forklifts and batteries
EXHIBIT 7.1.23
PENSION PLANS
Borrowers and their Subsidiaries have the following Plans:
Party Type of Plan
----- ------------
Borrowers: The Restoration Hardware 401(k) Plan 401(k)
Subsidiaries: The Michaels Furniture Company - included in above
Restoration Hardware Canada, Inc. - Not applicable
Exhibit 7.1.23 - Page 1
EXHIBIT 7.1.24
TRADE RELATIONS
NONE
Exhibit 7.1.24 - Page 1
EXHIBIT 7.1.25
COLLECTIVE BARGAINING AGREEMENTS; LABOR CONTROVERSIES
Borrowers and their Subsidiaries are parties to the following collective
bargaining agreements: NONE
Material grievances, disputes of controversies with employees of Borrowers or
any of their Subsidiaries are as follows: NONE
Threatened strikes, work stoppages and asserted pending demands for collective
bargaining with respect to Borrowers or any of their Subsidiaries are as
follows: NONE
Exhibit 7.1.25 - Page 1
EXHIBIT 8.1.3
COMPLIANCE CERTIFICATE
[_____________________________]
____________, ____
Fleet Capital Corporation, as Agent
00000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
The undersigned, the chief financial officer of "Lead Borrower", gives
this certificate to Fleet Capital Corporation, in its capacity as Agent
("Agent") in accordance with the requirements of subsection 8.1.3 of that
certain Seventh Amended and Restated Loan and Security Agreement dated
__________, 20__ among the Lead Borrower, the Michaels Furniture Company, Inc.,
Agent and the Lenders party thereto ("Loan Agreement"). Capitalized terms used
in this Certificate, unless otherwise defined herein, shall have the meanings
ascribed to them in the Loan Agreement.
Based upon my review of the balance sheets and statements of
income of the Lead Borrower and its Subsidiaries for the
[monthly/quarterly/annual] period ending _______________, ____, copies of which
are attached hereto, I hereby certify that:
Capital Expenditures during the period and for the
fiscal year to date total $__________ and $__________, respectively.
[Add covenants];
No Default exists on the date hereof, other than:
__________________________________________________________________ [if none, so
state]; and
No Event of Default exists on the date hereof, other than
______________________________________________________________ [if none, so
state].
Very truly yours,
________________________________
Chief Financial Officer
Exhibit 8.1.3 - Page 1
EXHIBIT 8.2.3
EXISTING INDEBTEDNESS
Borrowers Lender Amount Maturity
--------- ------ ------ --------
Restoration Hardware, Inc. Dell Leasing $42,699 3/1/03
Restoration Hardware, Inc. Lampertz $79,862 12/1/03
The Michaels Furniture Company, Inc. ILC $153,461 12/15/03
Exhibit 8.2.3 - Page 1
EXHIBIT 8.2.5
PERMITTED LIENS
(See attached)
Exhibit 8.2.12 - Page 1
UCC SEARCH SUMMARY CHART
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
1. Restoration Hardware, Inc. AL Fleet Retail Finance Inc., as collateral 03/12/98
00 Xxxx Xxxx, Xxxxx X agent and Fleet Capital Corporation, as
Corte Xxxxxx, XX 00000 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
2. Restoration Hardware, Inc. AZ NationsCredit Commercial Corporation 02/02/98
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
3. Restoration Hardware, Inc. AZ Fleet Retail Finance Inc., as collateral 12/16/97
00 Xxxx Xxxx, Xxxxx X agent and Fleet Capital Corporation, as
Corte Madera, CA collateral agent
----------------------------------------------------------------------------------------------------------------------------------
4. Michael's Furniture Company, CA Xxxxxxx Leasing Corporation 08/30/02
Inc., The
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
5. Michaels Furniture Co. (The) CA Safeco Credit Co. Inc. dba Safeline Leasing 01/11/01
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
6. Michaels Furniture Company CA Citicorp Vendor Finance, Inc. 07/11/01
Inc., Inc.
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
7. Restoration Hardware CA Pitney Xxxxx Credit Corporation 05/04/98
0000 X. Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
8. Restoration Hardware
Canada, Inc. CA Fleet Retail Finance, Inc., as collateral 08/09/01
00 Xxxx Xxxx, Xxxxx X xxxxx
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
1. Restoration Hardware, Inc. B1998-10475FS Assets, accounts, contract rights,
00 Xxxx Xxxx, Xxxxx X general intangibles, equipment,
Corte Xxxxxx, XX 00000 (continued on DE UCC in inventory and chattel paper
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
2. Restoration Hardware, Inc. 01002859 Computer equipment
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
3. Restoration Hardware, Inc. 997254 Assets, accounts, contract rights,
00 Xxxx Xxxx, Xxxxx X (continued on DE UCC in general intangibles, equipment,
Corte Madera, CA lieu of cont. filed inventory, chattel paper, machinery,
10/15/2001) fixtures, and vehicles
------------------------------------------------------------------------------------------------------
4. Michael's Furniture Company, 0224260451 Equipment
Inc., The
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
5. Michaels Furniture Co. (The) 0102060406 Leased Equipment
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
6. Michaels Furniture Company 0119560134 Leased Equipment
Inc., Inc.
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
7. Restoration Hardware 9812560666 Leased Equipment
0000 X. Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
8. Restoration Hardware
Canada, Inc. 0122260107 All personal property
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 1
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
9. Restoration Hardware Inc. CA Dell Financial Services, L.P. 03/21/01
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
10. Restoration Hardware Inc. CA Copelco Capital Inc. 07/28/00
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
11. Restoration Hardware Inc. CA Newcourt Communications Finance Corporation 04/03/00
0000 Xxxxx Xxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
12. Restoration Hardware, Inc. CA M&I First National Leasing Corp. 10/30/00
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
13. Restoration Hardware, Inc. CA LaSalle National Leasing Corporation 10/04/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
14. Restoration Hardware, Inc. CA LaSalle National Leasing Corporation 10/04/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
15. Restoration Hardware, Inc. CA LaSalle National Leasing Corporation 10/04/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
16. Restoration Hardware, Inc. CA LaSalle National Leasing Corporation 09/10/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
17. Restoration Hardware, Inc. CA LaSalle National Leasing Corporation 09/07/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
9. Restoration Hardware Inc. 0108660915 Leased Computer Equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
10. Restoration Hardware Inc. 0021660765 Leased Equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
11. Restoration Hardware Inc. 0009660224 Leased Equipment
0000 Xxxxx Xxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
12. Restoration Hardware, Inc. 0031460169 Equipment
0000 Xxxxx Xxxxxx Xxxxx (purchase money security interest)
Xxx Xxxxxx, XX 00000 (cont. by UCC in lieu of
continuation filed in DE
on 2/11/2002)
------------------------------------------------------------------------------------------------------
13. Restoration Hardware, Inc. 0000000000 Leased Equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
14. Restoration Hardware, Inc. 9927961048 All Debtor's right, title and
00 Xxxx Xxxx, Xxxxx X interest in and to Equipment Xxxxxxxx
Xxxxx Xxxxxx, XX 00000 between Debtor and The Michaels
Furniture Company, Inc.
------------------------------------------------------------------------------------------------------
15. Restoration Hardware, Inc. 9927961049 Lease Equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
16. Restoration Hardware, Inc. 9925761037 Leased Equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
17. Restoration Hardware, Inc. 0000000000 Leased Equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 2
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
18. Restoration Hardware, Inc. CA LaSalle National Leasing Corporation 07/09/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
19. Restoration Hardware, Inc. CA LaSalle National Leasing Corporation 07/09/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
20. Restoration Hardware, Inc. CA LaSalle National Leasing Corporation 07/09/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
21. Restoration Hardware, Inc. CA Xxxxxx Financial Leasing, Inc. 01/29/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
22. Restoration Hardware, Inc. CA Xxxxxx Financial Leasing, Inc. 11/10/98
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
23. Restoration Hardware, Inc. CA Xxxxxx Financial Leasing, Inc. 07/30/98
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
24. Restoration Hardware, Inc. CA NationsCredit Commercial 05/12/98
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
25. Restoration Hardware, Inc. CA NationsCredit Commercial 02/03/98
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
26. Restoration Hardware, Inc. CA NationsCredit Commercial Corporation 01/30/98
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
27. Restoration Hardware, Inc. CA Fleet Retail Finance Inc., as collateral 12/19/97
00 Xxxx Xxxx, Xxxxx X agent and
Corte Xxxxxx, XX 00000 Fleet Capital Corporation, as collateral
agent
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
18. Restoration Hardware, Inc. 0000000000 Computer Equipment
00 Xxxx Xxxx, Xxxxx X (xxxxxxxx)
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
19. Restoration Hardware, Inc. 9919660689 Leased Equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
20. Restoration Hardware, Inc. 9919660697 Leased Equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
21. Restoration Hardware, Inc. 9903260386 Leased Computer Equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
22. Restoration Hardware, Inc. 9831660907 Leased Equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
23. Restoration Hardware, Inc. 9821260100 Specific leased equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
24. Restoration Hardware, Inc. 9813361127 Leased Equipment
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
25. Restoration Hardware, Inc. 9804160314 Leased Equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
26. Restoration Hardware, Inc. 0000000000 All miscellaneous computer equipment,
00 Xxxx Xxxx, Xxxxx X furniture and fixtures financed by
Corte Xxxxxx, XX 00000 secured party (lease)
------------------------------------------------------------------------------------------------------
27. Restoration Hardware, Inc. 9735760042 Assets, accounts, contract rights,
00 Xxxx Xxxx, Xxxxx X (continued on DE UCC in general intangibles, equipment,
Corte Xxxxxx, XX 00000 lieu of cont. filed inventory, instruments, deposit
10/15/2001) accounts
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 3
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
28. Restoration Hardware, Inc. CA Fleet Retail Finance Inc., as collateral 08/11/95
00 Xxxx Xxxx, Xxxxx X agent and 06/15/00 cont'x.
Xxxxx Xxxxxx, XX 00000 Fleet Capital Corporation, as collateral
agent
----------------------------------------------------------------------------------------------------------------------------------
29. Restoration Hardware, Inc. CA Fleet Retail Finance Inc., as collateral 08/11/95
000 Xxxxx Xxxxxx, Xxxxx 0 agent and 06/15/00 cont'd.
Xxxxxx, XX 00000 Fleet Capital Corporation, as collateral
agent
----------------------------------------------------------------------------------------------------------------------------------
30. Restoration Hardware CA Avaya Inc. 11/05/2002
0000 Xxxxx XxXxxxxx Xx.
Xxx 000
Xxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
31. Restoration Hardware, Inc. CA-Alameda Fleet Retail Finance Inc., as collateral 9/6/95
agent and
Fleet Capital Corporation, as collateral 8/16/95
agent
----------------------------------------------------------------------------------------------------------------------------------
32. Restoration Hardware, Inc. CA-Contra Costa County Fleet Retail Finance Inc., as collateral 9/7/95
agent and
Fleet Capital Corporation, as collateral
agent
----------------------------------------------------------------------------------------------------------------------------------
33. Restoration Hardware, Inc. CA-San Mateo Fleet Retail Finance Inc., as collateral 8/26/96
agent and
Fleet Capital Corporation, as collateral
agent
----------------------------------------------------------------------------------------------------------------------------------
34. Restoration Hardware, Inc. CA-Santa Xxxxx County Fleet Retail Finance Inc., as collateral 8/19/96
agent and
Fleet Capital Corporation, as collateral
agent
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
28. Restoration Hardware, Inc. 9522760709 accounts, general intangibles,
00 Xxxx Xxxx, Xxxxx X (continued on DE UCC in deposit accounts, books and records,
Corte Xxxxxx, XX 00000 lieu of cont. filed goods, inventory and merchandise,
10/15/2001) proceeds
------------------------------------------------------------------------------------------------------
29. Restoration Hardware, Inc. 9522760714 accounts, general intangibles,
000 Xxxxx Xxxxxx, Xxxxx 0 (continued on DE UCC in deposit accounts, books and records,
Xxxxxx, XX 00000 lieu of cont. filed goods, inventory and merchandise,
10/15/2001) proceeds
------------------------------------------------------------------------------------------------------
30. Restoration Hardware 000000000000 Telephone equipment installed at
0000 Xxxxx XxXxxxxx Xx. Restoration Hardware, 0000 Xxxxx
Xxx 000 XxXxxxxx Xx., Xxx. 000, Xxxxx, XX
Xxxxx, XX 00000 95376
------------------------------------------------------------------------------------------------------
31. Restoration Hardware, Inc. 95204298 All assets
96203381
(both continued on DE
UCC in lieu of cont.
filed 10/15/2001)
------------------------------------------------------------------------------------------------------
32. Restoration Hardware, Inc. 95-149516 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
33. Restoration Hardware, Inc. 96-105039 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
34. Restoration Hardware, Inc. 13413020 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 4
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
35. Restoration Hardware, Inc. CA-Marin County Fleet Retail Finance Inc., as collateral 9/5/95
agent and
Fleet Capital Corporation, as collateral
agent
----------------------------------------------------------------------------------------------------------------------------------
36. Restoration Hardware, Inc. CA-Marin County Fleet Retail Finance Inc., as collateral 9/6/96
agent and
Fleet Capital Corporation, as collateral
agent
----------------------------------------------------------------------------------------------------------------------------------
37. The Michaels Furniture Co. CA Safeco Credit Co. Inc. dba Safeline Leasing 04/17/00
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
38. The Michaels Furniture
Company, Inc. CA The CIT Group/Equipment Financing, Inc. 07/09/01
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
39. The Michaels Furniture
Company, Inc. CA Fleet Retail Finance, Inc., as collateral 07/02/01
00 Xxxx Xxxx, Xxxxx X agent and Fleet Capital Corporation, as
Xxxxx Xxxxxx, XX 00000 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
40. The Michaels Furniture
Company, Inc. CA Sovereign Bank Network Capital Alliance 9/29/00
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
41. The Michaels Furniture
Company, Inc. CA Xxxxxx Financial Leasing, Inc. 01/29/99
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
42. The Michaels Furniture
Company, Inc. CA Xxxxxx Financial Leasing, Inc. 11/10/98
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
43. The Michaels Furniture
Company, Inc. CA Xxxxxx Financial Leasing, Inc. 07/30/98
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
35. Restoration Hardware, Inc. 95-041871 All assets
(may have lapsed)
------------------------------------------------------------------------------------------------------
36. Restoration Hardware, Inc. 96-048102 All assets
(may have lapsed)
------------------------------------------------------------------------------------------------------
37. The Michaels Furniture Co. 0011560096 Leased Equipment
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
38. The Michaels Furniture
Company, Inc. 0119460037 Equipment
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
39. The Michaels Furniture
Company, Inc. 0118660464 all personal property
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
40. The Michaels Furniture
Company, Inc. 0028560516 Equipment
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
41. The Michaels Furniture
Company, Inc. 9903260389 Leased Equipment
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
42. The Michaels Furniture
Company, Inc. 9831660916 Leased Equipment
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
43. The Michaels Furniture
Company, Inc. 0000000000 Leased Equipment
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 5
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
44. The Michaels Furniture
Company, Inc. CA Fleet Retail Finance Inc., as collateral 04/15/98
0000 00xx Xxxxxx agent and Fleet Capital Corporation, as
Xxxxxxxxxx, XX 00000 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
45. The Michaels Furniture
Company, Inc. CA Fleet Retail Finance Inc., as collateral 02/19/98
0000 00xx Xxxxxx agent and Fleet Capital Corporation, as
Xxxxxxxxxx, XX 00000 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
46. The Michaels Furniture
Company, Inc. CA-Sacramento County Fleet Capital Corporation , as collateral 5/14/98
0000 00xx Xxxxxx agent and Fleet Retail Finance Inc., as
Xxxxxxxxxx, XX 00000 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
47. Restoration Hardware Inc. CO Xxxxxx Financial Leasing, Inc. 02/02/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
48. Restoration Hardware Inc. CO Fleet Capital Corporation , as collateral 12/16/97
00 Xxxx Xxxx, Xxxxx X agent and Fleet Retail Finance Inc., as
Xxxxx Xxxxxx, XX 00000 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
49. Restoration Hardware, Inc. CO NationsCredit Commercial Corporation 02/03/98
0000 Xxxx Xxxxxxx Xxxxxx Xx.
Xxxxx X0
Xxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
50. Restoration Hardware, Inc. CT LaSalle National Leasing Corporation 08/31/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
51. Restoration Hardware, Inc. CT NationsCredit Commercial Corporation 05/11/98
000 Xxxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
52. Restoration Hardware, Inc. CT NationsCredit Commercial Corporation 02/03/98
000 Xxxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
44. The Michaels Furniture
Company, Inc. 9810561281 All personal property
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
45. The Michaels Furniture
Company, Inc. 9805161203 All personal property
0000 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
46. The Michaels Furniture
Company, Inc. 199805140777
0000 00xx Xxxxxx Fixture Filing
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
47. Restoration Hardware Inc. 19992006041 Equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
48. Restoration Hardware Inc. 19972114461 General intangibles, accounts
00 Xxxx Xxxx, Xxxxx X (continued on DE UCC in receivable, inventory, equipment,
Corte Xxxxxx, XX 00000 lieu of cont. filed documents and contract rights
10/15/2001)
------------------------------------------------------------------------------------------------------
49. Restoration Hardware, Inc. 19982007734 Equipment
0000 Xxxx Xxxxxxx Xxxxxx Xx.
Xxxxx X0
Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
50. Restoration Hardware, Inc. 00019463870 Computer equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
51. Restoration Hardware, Inc. 0001849779 Computer equipment
000 Xxxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
52. Restoration Hardware, Inc. 0001829143 Computer equipment
000 Xxxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 6
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
53. Restoration Hardware, Inc. CT Fleet Capital Corporation , as collateral 12/16/97
00 Xxxx Xxxx, Xxxxx X agent and Fleet Retail Finance Inc., as
Xxxxx Xxxxxx, XX 00000 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
54. Restoration Hardware DC Fleet Retail Finance Inc., as collateral 08/10/01
Canada, Inc.
00 Xxxx Xxxx, Xxxxx X xxxxx
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
55. Restoration Hardware, Inc. XX Xxxxxx Financial Leasing, Inc. 11/12/98
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
56. Restoration Hardware, Inc. DC Fleet Capital Corporation , as collateral 04/02/98
00 Xxxx Xxxx, Xxxxx X agent and Fleet Retail Finance Inc., as
Xxxxx Xxxxxx, XX 00000 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
57. Restoration Hardware Inc. XX Xxxxxxx Leasing Corporation 09/28/01
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
58. Restoration Hardware, Inc. DE M&I First National Leasing Corp. 02/11/02
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxx, XX 00000
and
The Michael's Furniture
Co., Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
59. Restoration Hardware, Inc. DE NMHG Financial Services, Inc. 07/19/01
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
53. Restoration Hardware, Inc. 0001820565 Assets, accounts, contract rights,
00 Xxxx Xxxx, Xxxxx X (continued on DE UCC in general intangibles, equipment,
Corte Xxxxxx, XX 00000 lieu of cont. filed inventory, chattel paper, machinery,
10/15/2001) fixtures, and vehicles
------------------------------------------------------------------------------------------------------
54. Restoration Hardware 0000000000 All personal property
Canada, Inc.
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
55. Restoration Hardware, Inc. 9800018866 Computer equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
56. Restoration Hardware, Inc. 9800006057 All assets
00 Xxxx Xxxx, Xxxxx X (continued on DE UCC in
Corte Xxxxxx, XX 00000 lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
57. Restoration Hardware Inc. 1125955 0 Equipment
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
58. Restoration Hardware, Inc. 2056218 5 Equipment
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxx, XX 00000 Financing Statement in
and lieu of continuation
The Michael's Furniture
Co., Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
59. Restoration Hardware, Inc. 1074238 2 Leased Equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 7
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
60. Restoration Hardware, Inc. DE Fleet Retail Finance Inc., as collateral 07/03/01
00 Xxxx Xxxx, Xxxxx X agent and Fleet Capital Corporation, as
Corte Xxxxxx, XX 00000 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
61. Restoration Hardware Inc. FL LaSalle National Leasing Corporation 10/01/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
62. Restoration Hardware Inc. FL LaSalle National Leasing Corporation 09/01/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
63. Restoration Hardware Inc. FL LaSalle National Leasing Corporation 07/08/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
64. Restoration hardware Inc. FL NationsCredit Commercial Corporation 05/12/98
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
65. Restoration Hardware, Inc. FL Xxxxxx Financial Leasing, Inc. 02/05/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
66. Restoration Hardware, Inc. FL Xxxxxx Financial Leasing, Inc. 11/10/98
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
67. Restoration Hardware, Inc. FL Fleet Capital Corporation, as collateral 02/26/98
00 Xxxx Xxxx, Xxxxx X agent and Fleet Retail Finance Inc., as
Xxxxx Xxxxxx, XX 00000 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
68. Restoration Hardware, Inc. FL AEI Music Network, Inc. 12/12/97
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Mall Space 000
Xxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
60. Restoration Hardware, Inc. 1061822 8 Assets, accounts, contract rights,
00 Xxxx Xxxx, Xxxxx X general intangibles, equipment,
Corte Xxxxxx, XX 00000 Financing Statement in inventory, chattel paper, machinery,
lieu of continuation fixtures, vehicles, and returned or
repossessed goods
------------------------------------------------------------------------------------------------------
61. Restoration Hardware Inc. 990000224287 Equipment and computer equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
62. Restoration Hardware Inc. 990000201475 Equipment and computer equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
63. Restoration Hardware Inc. 990000154635 Computer equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
64. Restoration hardware Inc. 980000103150 Computer equipment (Lease)
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------
65. Restoration Hardware, Inc. 990000027867 Computer equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
66. Restoration Hardware, Inc. 980000251621 Computer equipment and communications
00 Xxxx Xxxx, Xxxxx X xxxxxxxxx
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
67. Restoration Hardware, Inc. 980000043332 Assets, accounts, contract rights,
00 Xxxx Xxxx, Xxxxx X (continued on DE UCC in general intangibles, equipment,
Corte Xxxxxx, XX 00000 lieu of cont. filed inventory, chattel paper, machinery,
10/15/2001) fixtures and vehicles
------------------------------------------------------------------------------------------------------
68. Restoration Hardware, Inc. 970000278846 Equipment and proceeds
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Mall Space 751
Aventura, FL 33180
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 8
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
69. Restoration Hardware, Inc. GA-DeKalb Cnty Fleet Capital Corporation 09/06/00
15 Koch Road, Suite J
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
70. Restoration Hardware, Inc. GA-Fulton Cty. NationsCredit Commercial Corporation 05/08/98
3393 Peachtree Road, N.E.
Suite 3142
Atlanta, GA 30326
----------------------------------------------------------------------------------------------------------------------------------
71. Restoration Hardware, Inc. GA - Fulton Cty. Fleet Capital Corporation , as collateral 12/12/97
15 Koch Road, Suite J agent (Assignee) and Fleet Retail Finance
Corte Madera, CA 94925 Inc., as collateral agent (Assignee)
----------------------------------------------------------------------------------------------------------------------------------
72. Restoration Hardware, Inc. GA-Gwinnett Cnty Fleet Capital Corporation 09/01/2000
15 Koch Road, Suite J
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
73. Restoration Hardware Inc. IL LaSalle National Leasing Corp. 10/01/99
15 Koch Road, Suite J
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
74. Restoration Hardware Inc. IL LaSalle National Leasing Corp. 08/31/99
15 Koch Road, Suite J
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
75. Restoration Hardware Inc. IL Heller Financial Leasing Inc. 02/05/99
15 Koch Road, Suite J
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
76. Restoration Hardware Inc. IL Heller Financial Leasing Inc. 11/19/98
15 Koch Road, Suite J
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
69. Restoration Hardware, Inc. 04400007269 Equipment, fixtures, inventory,
15 Koch Road, Suite J general intangibles, chattel paper,
Corte Madera, CA 94925 negotiable instruments, vehicles,
accounts, miscellaneous goods and
consumer goods
------------------------------------------------------------------------------------------------------
70. Restoration Hardware, Inc. 06098009703 Collateral (Lease)
3393 Peachtree Road, N.E.
Suite 3142
Atlanta, GA 30326
------------------------------------------------------------------------------------------------------
71. Restoration Hardware, Inc. 06097026209 All assets.
15 Koch Road, Suite J (continued on DE UCC in
Corte Madera, CA 94925 lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
72. Restoration Hardware, Inc. 06700009992 Equipment, fixtures, inventory,
15 Koch Road, Suite J general intangibles, chattel paper,
Corte Madera, CA 94925 negotiable instruments, vehicles,
accounts, miscellaneous goods and
consumer goods
------------------------------------------------------------------------------------------------------
73. Restoration Hardware Inc. 004102867 Specific leased equipment
15 Koch Road, Suite J
Corte Madera, CA 94925
------------------------------------------------------------------------------------------------------
74. Restoration Hardware Inc. 004087989 Specific leased equipment
15 Koch Road, Suite J
Corte Madera, CA 94925
------------------------------------------------------------------------------------------------------
75. Restoration Hardware Inc. 003985316 Equipment
15 Koch Road, Suite J
Corte Madera, CA 94925
------------------------------------------------------------------------------------------------------
76. Restoration Hardware Inc. 003945103 Leases
15 Koch Road, Suite J
Corte Madera, CA 94925
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 9
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
77. Restoration Hardware Inc. IL Fleet Retail Finance Inc., as collateral 12/17/97
15 Koch Road, Suite J agent and Fleet Retail Finance Inc., as
Corte Madera, CA 94925 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
78. Restoration Hardware Inc. IL Fleet Retail Finance Inc., as collateral 07/31/96
15 Koch Road, Suite J agent and Fleet Retail Finance Inc., as 07/02/01 cont'd
Corte Madera, CA 94925 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
79. Restoration Hardware, Inc. IN Fleet Capital Corporation and Fleet Retail 03/31/98
15 Koch Road, Suite J Finance Inc.
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
80. Restoration Hardware Inc. KS Fleet Capital Corporation, as collateral 12/16/97
15 Koch Road, Suite J agent and Fleet Retail Finance Inc., as
Corte Madera, CA 94925 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
81. Restoration Hardware, Inc. KS Fleet Capital Corporation, as collateral 7/30/96
agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
82. Restoration Hardware Inc. LA NationsCredit Commercial Corporation 05/13/98
3301 Veterans Memorial
Boulevard, Suite 36
Metairie, LA 70002
----------------------------------------------------------------------------------------------------------------------------------
83. Restoration Hardware, Inc. LA NationsCredit Commercial Corporation 02/18/98
3301 Veterans Memorial Blvd.
Suite 36
Metairie, LA 70002
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
77. Restoration Hardware Inc. 003776753 Accounts receivable, inventory,
15 Koch Road, Suite J (continued on DE UCC in equipment, books
Corte Madera, CA 94925 lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
78. Restoration Hardware Inc. 003572475 All assets
15 Koch Road, Suite J (continued on DE UCC in
Corte Madera, CA 94925 lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
79. Restoration Hardware, Inc. 2181659 Assets, accounts, contract rights,
15 Koch Road, Suite J (continued on DE UCC in general intangibles, equipment,
Corte Madera, CA 94925 lieu of cont. filed inventory, chattel paper, machinery,
10/15/2001) fixtures, and vehicles
------------------------------------------------------------------------------------------------------
80. Restoration Hardware Inc. 2412163 Assets, accounts, contract rights,
15 Koch Road, Suite J (continued on DE UCC in general intangibles, equipment,
Corte Madera, CA 94925 lieu of cont. filed inventory, chattel paper, machinery,
10/15/2001) fixtures, and vehicles
------------------------------------------------------------------------------------------------------
81. Restoration Hardware, Inc. 2268373 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
82. Restoration Hardware Inc. 26-223742 Equipment
3301 Veterans Memorial
Boulevard, Suite 36
Metairie, LA 70002
------------------------------------------------------------------------------------------------------
83. Restoration Hardware, Inc. 26-221706 Equipment
3301 Veterans Memorial Blvd.
Suite 36
Metairie, LA 70002
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 10
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
84. Restoration Hardware, Inc. LA-East Baton Rouge Fleet Capital Corporation, as collateral 12/17/97
15 Koch Road, Suite J Parish agent and Fleet Retail Finance Inc., as
Corte Madera, CA 94925 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
85. Restoration Hardware, Inc. LA-Jefferson Parish Fleet Capital Corporation 09/01/00
15 Koch Road, Suite J
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
86. Restoration Hardware, Inc. MA LaSalle National Leasing Corporation 07/09/99
15 Koch Road, Suite J
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
87. Restoration Hardware, Inc. MA Heller Financial Leasing, Inc. 02/05/99
15 Koch Road
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
88. Restoration Hardware, Inc. MA Fleet Capital Corporation, as collateral 03/13/98
15 Koch Road, Suite J agent and Fleet Retail Finance Inc., as
Corte Madera, CA 94925 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
89. Restoration Hardware, Inc. MA-Boston City Clerk Fleet Capital Corporation, as collateral 04/2/98
agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
90. Restoration Hardware, Inc. MA-Boston City Clerk Heller Financial Leasing, Inc. 2/5/99
----------------------------------------------------------------------------------------------------------------------------------
91. Restoration Hardware, Inc. MA-Boston City Clerk LaSalle National Leasing Corporation 8/4/99
(Lessor) (Lessor)
----------------------------------------------------------------------------------------------------------------------------------
92. Restoration Hardware, Inc. MA-Newton City Clerk Heller Financial Leasing, Inc. 2/3/99
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
84. Restoration Hardware, Inc. 17-1142735 Accounts, contract rights and general
15 Koch Road, Suite J (continued on DE UCC in intangibles
Corte Madera, CA 94925 lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
85. Restoration Hardware, Inc. 26-247388 All assets, accounts, contract
15 Koch Road, Suite J rights, general intangibles,
Corte Madera, CA 94925 equipment and inventory
------------------------------------------------------------------------------------------------------
86. Restoration Hardware, Inc. 99645409 Specific leased equipment
15 Koch Road, Suite J
Corte Madera, CA 94925
------------------------------------------------------------------------------------------------------
87. Restoration Hardware, Inc. 99608561 Specific leased equipment
15 Koch Road
Corte Madera, CA 94925
------------------------------------------------------------------------------------------------------
88. Restoration Hardware, Inc. 98535434 All assets
15 Koch Road, Suite J (continued on DE UCC in
Corte Madera, CA 94925 lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
89. Restoration Hardware, Inc. 406729 All assets
(continued on DE UCC
in lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
90. Restoration Hardware, Inc. 414237 Specific leased equipment
------------------------------------------------------------------------------------------------------
91. Restoration Hardware, Inc. 418784 Specific leased equipment
(Lessor)
------------------------------------------------------------------------------------------------------
92. Restoration Hardware, Inc. 109-99 Specific leased equipment
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 11
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
93. Restoration Hardware, Inc. MA-Newton City Clerk Fleet Capital Corporation, as collateral 1/18/00
agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
94. Restoration Hardware, Inc. MA-Peabody City Clerk Heller Financial Leasing, Inc. 2/3/99
----------------------------------------------------------------------------------------------------------------------------------
95. Restoration Hardware, Inc. MA-Peabody City Clerk Fleet Capital Corporation, as collateral 1/13/00
agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
96. Restoration Hardware, Inc. MA-Mansfield Fleet Capital Corporation, as agent 9/29/00
----------------------------------------------------------------------------------------------------------------------------------
97. Restoration Hardware Inc. MD Copelco Capital, Inc. 06/20/00
8416 Kelso Drive
Essex, MD 21221
----------------------------------------------------------------------------------------------------------------------------------
98. Restoration Hardware, Inc. MD Copelco Capital, Inc. 08/01/00
8416 Kelso Drive
Essex, MD 21221
----------------------------------------------------------------------------------------------------------------------------------
99. Restoration Hardware, Inc. MD Fleet Capital Corporation, as collateral 01/13/00
15 Koch Road, Suite J agent and Fleet Retail Finance Inc., as
Corte Madera, CA 94925 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
100. Restoration Hardware, Inc. MD LaSalle National Leasing Corporation 10/06/99
15 Koch Road, Suite J
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
101. Restoration Hardware, Inc. MI Fleet Capital Corporation, as collateral 09/29/00
15 Koch Road, Suite J agent and Fleet Retail Finance Inc., as
Corte Madera, CA 94925 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
93. Restoration Hardware, Inc. 22-2000 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
94. Restoration Hardware, Inc. 36,266 Specific leased equipment
------------------------------------------------------------------------------------------------------
95. Restoration Hardware, Inc. 36,858 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
96. Restoration Hardware, Inc. 183-00 All Assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
97. Restoration Hardware Inc. 00000181050203 Equipment
8416 Kelso Drive
Essex, MD 21221
------------------------------------------------------------------------------------------------------
98. Restoration Hardware, Inc. 00000181054355 Equipment
8416 Kelso Drive
Essex, MD 21221
------------------------------------------------------------------------------------------------------
99. Restoration Hardware, Inc. 00000181032442 Assets, accounts, contract rights,
15 Koch Road, Suite J (continued on DE UCC in general intangibles, equipment,
Corte Madera, CA 94925 lieu of cont. filed inventory, chattel paper, machinery,
10/15/2001) fixtures, and vehicles
------------------------------------------------------------------------------------------------------
100. Restoration Hardware, Inc. 00000181022417 Equipment
15 Koch Road, Suite J
Corte Madera, CA 94925
------------------------------------------------------------------------------------------------------
101. Restoration Hardware, Inc. D699607 All assets
15 Koch Road, Suite J
Corte Madera, CA 94925
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 12
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
102. Restoration Hardware, Inc. MI NationsCredit Commercial Corporation 02/20/98
2800 West Big Beaver Road
Suite R-236
Troy, MI 48084
----------------------------------------------------------------------------------------------------------------------------------
103. Restoration Hardware, Inc. MI Fleet Capital Corporation, as collateral 12/16/97
15 Koch Road, Suite J agent and Fleet Retail Finance Inc., as
Corte Madera, CA 94925 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
104. Restoration Hardware, Inc. MI-Oakland County Fleet Capital Corporation and Fleet Retail 9/9/96
Finance Inc.
----------------------------------------------------------------------------------------------------------------------------------
105. Restoration Hardware, Inc. MN Heller Financial Leasing, Inc. 02/04/99
15 Koch Road, Suite J
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
106. Restoration Hardware, Inc. MN NationsCredit Commercial Corporation 05/11/98
791 Grand Avenue
St. Paul, MN 55105
----------------------------------------------------------------------------------------------------------------------------------
107. Restoration Hardware, Inc. MN Fleet Capital Corporation, as collateral 02/26/98
15 Koch Road, Suite J agent and Fleet Retail Finance Inc., as
Corte Madera, CA 94925 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
108. Restoration Hardware Inc. MO Fleet Capital Corporation, as collateral 12/16/97
15 Koch Road, Suite J agent and Fleet Retail Finance Inc., as
Corte Madera, CA 94925 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
109. Restoration Hardware Inc. MO-Jackson County Fleet Capital Corporation, as collateral 1/14/00
agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
110. Restoration Hardware Inc. MO-St. Louis County Imperial Business Credit, Inc. 12/17/96
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
102. Restoration Hardware, Inc. D341601 Computer equipment
2800 West Big Beaver Road
Suite R-236
Troy, MI 48084
------------------------------------------------------------------------------------------------------
103. Restoration Hardware, Inc. 91000B Assets, accounts, contract rights,
15 Koch Road, Suite J (continued on DE UCC in general intangibles, equipment,
Corte Madera, CA 94925 lieu of cont. filed inventory, chattel paper, machinery,
10/15/2001) fixtures and vehicles
------------------------------------------------------------------------------------------------------
104. Restoration Hardware, Inc. 9606036 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
105. Restoration Hardware, Inc. 2103860 Computer equipment
15 Koch Road, Suite J
Corte Madera, CA 94925
------------------------------------------------------------------------------------------------------
106. Restoration Hardware, Inc. 2036244 Computer equipment
791 Grand Avenue
St. Paul, MN 55105
------------------------------------------------------------------------------------------------------
107. Restoration Hardware, Inc. 2015300 Assets, accounts, contract rights,
15 Koch Road, Suite J (continued on DE UCC in general intangibles, equipment,
Corte Madera, CA 94925 lieu of cont. filed inventory, chattel paper, machinery,
10/15/2001) fixtures, and vehicles
------------------------------------------------------------------------------------------------------
108. Restoration Hardware Inc. 2859547 All assets
15 Koch Road, Suite J (continued on DE UCC in
Corte Madera, CA 94925 lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
109. Restoration Hardware Inc. 2000J 0418842 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
110. Restoration Hardware Inc. 15070 Specific leased equipment
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 13
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
111. Restoration Hardware Inc. MO-St. Louis County Fleet Capital Corporation, as collateral 12/16/97
agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
112. Restoration Hardware Inc. MS Fleet Capital Corporation, as collateral 01/13/00
15 Koch Road, Suite J agent and Fleet Retail Finance Inc., as
Corte Madera, CA 94925 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
113. Restoration Hardware Inc. MO Fleet Capital Corporation, as collateral 12/16/97
15 Koch Road, Suite J agent and Fleet Retail Finance Inc., as
Corte Madera, CA 94925 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
114. Restoration Hardware Inc. MS-Hinds (1st Dist.) Fleet Capital Corporation, as collateral 9/29/00
agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
115. Restoration Hardware Inc. MS-Madison Fleet Capital Corporation, as collateral 1/13/00
agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
116. Restoration Hardware Inc. NC NationsCredit Commercial Corporation 05/12/98
4325 Glenwood Avenue
Suite 145
Raleigh, NC 27612
----------------------------------------------------------------------------------------------------------------------------------
117. Restoration Hardware Inc. NC NationsCredit Commercial Corporation 01/30/98
6815A Phillips Place Court
Charlotte, NC 28210
----------------------------------------------------------------------------------------------------------------------------------
118. Restoration Hardware Inc. NC NationsCredit Commercial Corporation 01/30/98
4325 Glenwood Avenue
Suite 145
Raleigh, NC 27612
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
111. Restoration Hardware Inc. 15053 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
112. Restoration Hardware Inc. 1395084 Assets, accounts, contract rights,
15 Koch Road, Suite J (continued on DE UCC in general intangibles, equipment,
Corte Madera, CA 94925 lieu of cont. filed inventory, chattel paper, machinery,
10/15/2001) fixtures, and vehicles
------------------------------------------------------------------------------------------------------
113. Restoration Hardware Inc. 2859547 Assets, accounts, contract rights,
15 Koch Road, Suite J (continued on DE UCC in general intangibles, equipment,
Corte Madera, CA 94925 lieu of cont. filed inventory, products and chattel paper
10/15/2001)
------------------------------------------------------------------------------------------------------
114. Restoration Hardware Inc. 289483 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
115. Restoration Hardware Inc. 001329 All personal property
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
116. Restoration Hardware Inc. 199823979 Computer equipment
4325 Glenwood Avenue
Suite 145
Raleigh, NC 27612
------------------------------------------------------------------------------------------------------
117. Restoration Hardware Inc. 1544429 Computer equipment
6815A Phillips Place Court
Charlotte, NC 28210
------------------------------------------------------------------------------------------------------
118. Restoration Hardware Inc. 1544428 Computer equipment
4325 Glenwood Avenue
Suite 145
Raleigh, NC 27612
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 14
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
119. Restoration Hardware, Inc. NC Fleet Capital Corporation, as collateral 12/17/97
15 Koch Road, Suite J agent and Fleet Retail Finance Inc., as
Corte Madera, CA 94925 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
120. Restoration Hardware, Inc. NC-Mecklenburg County Fleet Capital Corporation, as collateral 12/31/97
agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
121. Restoration Hardware, Inc. NC-Wake County Fleet Capital Corporation and Fleet Retail 12/31/97
Finance Inc.
----------------------------------------------------------------------------------------------------------------------------------
122. Restoration Hardware, Inc. NC-Wake County NationsCredit Commercial Corporation 5/8/98
Register of Deeds
(Lessee) (Lessor)
----------------------------------------------------------------------------------------------------------------------------------
123. Restoration Hardware, Inc. NC-Wake County Fleet Retail Finance Inc., as collateral 9/29/00
Register of Deeds agent and Fleet Capital Corporation, as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
124. Restoration Hardware, Inc. NY-Nassau County Fleet Capital Corporation, as collateral 12/30/97
agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
125. Restoration Hardware, Inc. NY-Nassau County NationsCredit Commercial Corporation 2/6/98
(Lessee) (Lessor)
----------------------------------------------------------------------------------------------------------------------------------
126. Restoration Hardware, Inc. NY-Nassau County NationsCredit Commercial Corporation 5/20/98
(Lessee) (Lessor)
----------------------------------------------------------------------------------------------------------------------------------
127. Restoration Hardware, Inc. NY-New York County Fleet Capital Corporation, as collateral 1/19/00
agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
119. Restoration Hardware, Inc. 1523526 Assets, accounts, contract rights,
15 Koch Road, Suite J (continued on DE UCC in general intangibles, negotiable
Corte Madera, CA 94925 lieu of cont. filed instruments, equipment, inventory,
10/15/2001) chattel paper, machinery, fixtures,
and vehicles
------------------------------------------------------------------------------------------------------
120. Restoration Hardware, Inc. 19562 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
121. Restoration Hardware, Inc. 19562 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
122. Restoration Hardware, Inc. 98 003738 Specific leased equipment
(Lessee)
------------------------------------------------------------------------------------------------------
123. Restoration Hardware, Inc. 00 006959 All assets
------------------------------------------------------------------------------------------------------
124. Restoration Hardware, Inc. XXXX00000000 All assets
------------------------------------------------------------------------------------------------------
125. Restoration Hardware, Inc. UCUC98002306 Specific leased equipment
(Lessee)
------------------------------------------------------------------------------------------------------
126. Restoration Hardware, Inc. UCUC98008928 Specific leased equipment
(Lessee)
------------------------------------------------------------------------------------------------------
127. Restoration Hardware, Inc. 00PN03293 All assets
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 15
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
128. Restoration Hardware, Inc. NJ LaSalle National Leasing Corp. 10/04/99
15 Koch Road, Suite J
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
129. Restoration Hardware, Inc. NJ Heller Financial Leasing, Inc. 02/03/99
15 Koch Road, Suite J
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
130. Restoration Hardware, Inc. NJ Heller Financial Leasing, Inc. 11/12/98
15 Koch Road, Suite J
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
131. Restoration Hardware, Inc. NJ Heller Financial, Inc. 08/03/98
15 Koch Road, Suite J
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
132. Restoration Hardware, Inc. NJ Fleet Capital Corporation, as collateral 12/12/97
15 Koch Road, Suite J agent and Fleet Retail Finance Inc., as
Corte Madera, CA 94925 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
133. Restoration Hardware, Inc. NY Heller Financial Leasing, Inc. 02/02/99
15 Koch Road, Suite J
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
134. Restoration Hardware, Inc. NY Heller Financial Leasing, Inc. 11/10/98
15 Koch Road, Suite J
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
135. Restoration Hardware, Inc. NY Heller Financial Leasing, Inc. 07/30/98
15 Koch Road, Suite J
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
136. Restoration Hardware, Inc. NY NationsCredit Commercial 05/11/98
Roosevelt Field Shopping Center
Suite 1121
Garden City, NY 11530
----------------------------------------------------------------------------------------------------------------------------------
137. Restoration Hardware, Inc. NY NationsCredit Commercial Corporation 02/03/98
Roosevelt Field Shopping Center
Suite 1121
Garden City, NY 11530
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
128. Restoration Hardware, Inc. 1933742 Specific leased equipment
15 Koch Road, Suite J
Corte Madera, CA 94925
------------------------------------------------------------------------------------------------------
129. Restoration Hardware, Inc. 1887277 Computer equipment
15 Koch Road, Suite J
Corte Madera, CA 94925
------------------------------------------------------------------------------------------------------
130. Restoration Hardware, Inc. 1871646 Computer equipment
15 Koch Road, Suite J
Corte Madera, CA 94925
------------------------------------------------------------------------------------------------------
131. Restoration Hardware, Inc. 1852633 Computer equipment
15 Koch Road, Suite J
Corte Madera, CA 94925
------------------------------------------------------------------------------------------------------
132. Restoration Hardware, Inc. 1808237 Assets, accounts, contract rights,
15 Koch Road, Suite J continued on DE UCC in general intangibles, equipment,
Corte Madera, CA 94925 lieu of cont. filed inventory, chattel paper, machinery
10/15/2001) and fixtures
------------------------------------------------------------------------------------------------------
133. Restoration Hardware, Inc. 99021919 Equipment and computer equipment
15 Koch Road, Suite J
Corte Madera, CA 94925
------------------------------------------------------------------------------------------------------
134. Restoration Hardware, Inc. 98238679 Computer equipment
15 Koch Road, Suite J
Corte Madera, CA 94925
------------------------------------------------------------------------------------------------------
135. Restoration Hardware, Inc. 98164174 Computer equipment
15 Koch Road, Suite J
Corte Madera, CA 94925
------------------------------------------------------------------------------------------------------
136. Restoration Hardware, Inc. 98100637 Computer equipment
Roosevelt Field Shopping Center
Suite 1121
Garden City, NY 11530
------------------------------------------------------------------------------------------------------
137. Restoration Hardware, Inc. 98023287 Computer equipment
Roosevelt Field Shopping Center
Suite 1121
Garden City, NY 11530
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 16
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
138. Restoration Hardware, Inc. NY Fleet Capital Corporation and Fleet Retail 12/17/97
15 Koch Road, Suite J Finance Inc. and Sumitomo Bank of California
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
139. Restoration Hardware, Inc. NY-Rockland County Fleet Capital Corporation, as collateral 1/13/00
agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
140. Restoration Hardware, Inc. NY-Westchester County Heller Financial leasing, Inc. (CEFD) 11/12/98
----------------------------------------------------------------------------------------------------------------------------------
141. Restoration Hardware, Inc. NY-Westchester County Heller Financial leasing, Inc. (CEFD) 2/4/99
----------------------------------------------------------------------------------------------------------------------------------
142. Restoration Hardware, Inc. NY-Westchester County Fleet Capital Corporation, as collateral 1/14/00
agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
143. Restoration Hardware, Inc. NY-NY Cnty Heller Financial Leasing, Inc. 02/08/99
15 Koch Road
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
144. Restoration Hardware Inc. OH Fleet Capital Corporation, as collateral 01/13/00
15 Koch Road, Suite J agent and Fleet Retail Finance Inc., as
Corte Madera, CA 94925 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
145. Restoration Hardware Inc. OH LaSalle National Leasing Corporation 09/01/1999
15 Koch Road, Suite J
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
146. Restoration Hardware, Inc. OH-Franklin County LaSalle National Leasing Corporation 9/1/99
Recorder
(Lessee) (Lessor)
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
138. Restoration Hardware, Inc. 97259081 Assets, accounts, contract rights,
15 Koch Road, Suite J continued on DE UCC in general intangibles, equipment,
Corte Madera, CA 94925 lieu of cont. filed inventory, chattel paper, machinery,
10/15/2001) fixtures and vehicles
------------------------------------------------------------------------------------------------------
139. Restoration Hardware, Inc. 2000-2152 All assets
continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
140. Restoration Hardware, Inc. 98-09867 Specific leased equipment
------------------------------------------------------------------------------------------------------
141. Restoration Hardware, Inc. 99-01002 Specific leased equipment
------------------------------------------------------------------------------------------------------
142. Restoration Hardware, Inc. 40014-0154 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
143. Restoration Hardware, Inc. 99PK01937 Equipment
15 Koch Road
Corte Madera, CA 94925
------------------------------------------------------------------------------------------------------
144. Restoration Hardware Inc. AP0207961 All assets
15 Koch Road, Suite J (continued on DE UCC in
Corte Madera, CA 94925 lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
145. Restoration Hardware Inc. AP0172449 Equipment
15 Koch Road, Suite J
Corte Madera, CA 94925
------------------------------------------------------------------------------------------------------
146. Restoration Hardware, Inc. 199909010223453 Specific leased equipment
(Lessee)
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 17
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
147. Restoration Hardware, Inc. OH-Franklin County Fleet Capital Corporation, as collateral 1/13/00
Recorder agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
148. Restoration Hardware Inc. OK Fleet Capital Corporation, as collateral 09/01/00
15 Koch Road, Suite J agent and Fleet Retail Finance Inc., as
Corte Madera, CA 94925 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
149. Restoration Hardware Inc. OR Heller Financial Leasing, Inc. 02/03/99
15 Koch Road, Suite J
Corte Madera, CA 94925
----------------------------------------------------------------------------------------------------------------------------------
150. Restoration Hardware Inc. OR NationsCredit Commercial Corporation 03/17/98
315 N.W. 23rd Avenue
Portland, OR 97210
----------------------------------------------------------------------------------------------------------------------------------
151. Restoration Hardware Inc. OR Fleet Capital Corporation, as collateral 12/16/97
15 Koch Road, Suite J agent and Fleet Retail Finance Inc., as
Corte Madera, CA 94925 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
152. Restoration Hardware Inc. OR-Multnomah County Fleet Capital Corporation, as collateral 9/7/95
agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
153. Restoration Hardware Inc. PA Heller Financial Leasing, Inc. 02/02/99
15 Koch Road, Suite J
Corte Madera, CA 94925-0000
----------------------------------------------------------------------------------------------------------------------------------
154. Restoration Hardware Inc. PA NationsCredit Commercial Corporation 02/02/98
000 Xxx Xxxxxxxxx
Xxxx xx Xxxxxxx, XX 00000-0000
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
147. Restoration Hardware, Inc. 2000001 130009627 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
148. Restoration Hardware Inc. 0047499 Assets, accounts, contract rights,
00 Xxxx Xxxx, Xxxxx X (continued on DE UCC in general intangibles, equipment,
Corte Xxxxxx, XX 00000 lieu of cont. filed inventory, chattel paper, machinery,
10/15/2001) fixtures and vehicles
------------------------------------------------------------------------------------------------------
149. Restoration Hardware Inc. 0000455273 Computer equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
150. Restoration Hardware Inc. 0000414365 Computer equipment (lease)
000 X.X. 00xx Xxxxxx
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
151. Restoration Hardware Inc. 0000402495 Assets, accounts, contract rights,
00 Xxxx Xxxx, Xxxxx X (continued on DE UCC in general intangibles, equipment,
Corte Xxxxxx, XX 00000 lieu of cont. filed inventory, chattel paper, machinery,
10/15/2001) fixtures, vehicles and returned or
repossessed goods
------------------------------------------------------------------------------------------------------
152. Restoration Hardware Inc. 95108403 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
153. Restoration Hardware Inc. 29870734 Specific leased equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------
154. Restoration Hardware Inc. 28510580 Specific leased equipment
000 Xxx Xxxxxxxxx
Xxxx xx Xxxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 18
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
155. Restoration Hardware Inc. PA NationsCredit Commercial Corporation 02/02/98
0000 Xxxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000-0000
----------------------------------------------------------------------------------------------------------------------------------
156. Restoration Hardware Inc. PA Fleet Capital Corporation, as collateral 12/16/97
00 Xxxx Xxxx, Xxxxx X agent and Fleet Retail Finance Inc., as
Xxxxx Xxxxxx, XX 00000 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
157. Restoration Hardware, Inc. PA-Allegheny County Fleet Capital Corporation, as collateral 12/17/97
Prothonotary agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
158. Restoration Hardware, Inc. PA-Xxxxxxxxxx County NationsCredit Commercial Corporation 10/9/97
Prothonotary
(Lessee) (Lessor)
----------------------------------------------------------------------------------------------------------------------------------
159. Restoration Hardware, Inc. PA-Xxxxxxxxxx County Fleet Capital Corporation, as agent 12/17/97
Prothonotary
----------------------------------------------------------------------------------------------------------------------------------
160. Restoration Hardware, Inc. PA-Philadelphia County Xxxxxx Financial leasing, Inc. 2/2/99
Prothonotary
----------------------------------------------------------------------------------------------------------------------------------
161. Restoration Hardware, Inc. PA-Philadelphia County Fleet Capital Corporation, as agent 1/18/00
Prothonotary
----------------------------------------------------------------------------------------------------------------------------------
162. Restoration Hardware, Inc. PA-Washington Fleet Capital Corporation, as collateral 9/29/00
Prothonotary agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
155. Restoration Hardware Inc. 28510582 Specific leased equipment
0000 Xxxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------
156. Restoration Hardware Inc. 28320774 All assets
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
157. Restoration Hardware, Inc. 97-009642 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
158. Restoration Hardware, Inc. 270507 Specific leased equipment
(Lessee)
------------------------------------------------------------------------------------------------------
159. Restoration Hardware, Inc. 271925 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
160. Restoration Hardware, Inc. 99 563 Specific leased equipment
------------------------------------------------------------------------------------------------------
161. Restoration Hardware, Inc. 00257 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
162. Restoration Hardware, Inc. 2000-61108 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 19
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
163. Restoration Hardware, Inc. RI Fleet Capital Corporation, as collateral 01/14/00
00 Xxxx Xxxx, Xxxxx X agent and Fleet Retail Finance Inc., as
Xxxxx Xxxxxx, XX 00000 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
164. Restoration Hardware, Inc. TN Xxxxxx Financial Leasing, Inc. 11/16/98
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
165. Restoration Hardware, Inc. TN Xxxxxx Financial Leasing, Inc. 08/03/98
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
166. Restoration Hardware, Inc. TN Fleet Capital Corporation, as collateral 03/12/98
00 Xxxx Xxxx, Xxxxx X agent and Fleet Retail Finance Inc., as
Xxxxx Xxxxxx, XX 00000 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
167. Restoration Hardware, Inc. TX LaSalle National Leasing Corporation 10/04/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
168. Restoration Hardware, Inc. TX LaSalle National Leasing Corporation 07/08/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
169. Restoration Hardware, Inc. TX Xxxxxx Financial Leasing, Inc. 02/01/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
170. Restoration Hardware, Inc. TX NationsCredit Commercial Corporation 02/03/98
000 Xxxx Xxxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
171. Restoration Hardware, Inc. TX Fleet Capital Corporation, as collateral 12/16/97
00 Xxxx Xxxx, Xxxxx X agent and Fleet Retail Finance Inc., as
Xxxxx Xxxxxx, XX 00000 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
172. Restoration Hardware, Inc. UT Xxxxxx Financial Leasing, Inc. 02/02/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
163. Restoration Hardware, Inc. 707118 Assets, accounts, contract rights,
00 Xxxx Xxxx, Xxxxx X (continued on DE UCC in general intangibles, equipment,
Corte Xxxxxx, XX 00000 lieu of cont. filed inventory, chattel paper, machinery,
10/15/2001) fixtures, and vehicles
------------------------------------------------------------------------------------------------------
164. Restoration Hardware, Inc. 983-614404 Unspecified
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
165. Restoration Hardware, Inc. 982-069498 Specific leased equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
166. Restoration Hardware, Inc. 982-023138 Assets, accounts, contract rights,
00 Xxxx Xxxx, Xxxxx X (continued on DE UCC in general intangibles, equipment,
Corte Xxxxxx, XX 00000 lieu of cont. filed inventory, chattel paper, machinery,
10/15/2001) and fixtures
------------------------------------------------------------------------------------------------------
167. Restoration Hardware, Inc. 9900200719 Specific leased equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
168. Restoration Hardware, Inc. 9900137860 Specific leased equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
169. Restoration Hardware, Inc. 9900020240 Specific leased equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
170. Restoration Hardware, Inc. 9800022679 Specific leased equipment
000 Xxxx Xxxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
171. Restoration Hardware, Inc. 0000000000 All assets
00 Xxxx Xxxx, Xxxxx X (continued on DE UCC in
Corte Xxxxxx, XX 00000 lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
172. Restoration Hardware, Inc. 99632597 Computer equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 20
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
173. Restoration Hardware, Inc. UT Fleet Capital Corporation, as collateral 03/13/98
00 Xxxx Xxxx, Xxxxx X agent and Fleet Retail Finance Inc., as
Xxxxx Xxxxxx, XX 00000 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
174. Restoration Hardware, Inc. VA LaSalle National Leasing Corporation 07/09/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
175. Restoration Hardware, Inc. VA Fleet Capital Corporation, as collateral 12/16/97
00 Xxxx Xxxx, Xxxxx X agent and Fleet Retail Finance Inc., as
Xxxxx Xxxxxx, XX 00000 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
176. Restoration Hardware, Inc. VA-Alexandria City Imperial Business Credit, Inc. 2/19/97
Clerk (may have lapsed)
----------------------------------------------------------------------------------------------------------------------------------
177. Restoration Hardware, Inc. VA-Alexandra City The Sumitomo Bank of California (original 5/16/97
Clerk filing) (may have lapsed)
Fleet Capital Corporation (amended secured
party on amendment filed 10/3/00)
----------------------------------------------------------------------------------------------------------------------------------
178. Restoration Hardware, Inc. VA-Alexandra City Fleet Capital Corporation, as collateral 12/18/97
Clerk agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
179. Restoration Hardware, Inc. VA-Alexandra City LaSalle National Leasing Corporation 7/9/99
Clerk
(Lessee) (Lessor)
----------------------------------------------------------------------------------------------------------------------------------
180. Restoration Hardware, Inc. VA-Fairfax County Clerk NationsCredit Commercial Corporation 10/8/97
(Lessee) (Lessor)
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
173. Restoration Hardware, Inc. 98599753 Assets, accounts, contract rights,
00 Xxxx Xxxx, Xxxxx X (continued on DE UCC in general intangibles, equipment,
Corte Xxxxxx, XX 00000 lieu of cont. filed inventory, chattel paper, machinery,
10/15/2001) fixtures, and vehicles
------------------------------------------------------------------------------------------------------
174. Restoration Hardware, Inc. 990709 7155 Computer equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
175. Restoration Hardware, Inc. 971216 7802 Assets, accounts, contract rights,
00 Xxxx Xxxx, Xxxxx X (continued on DE UCC in general intangibles, equipment,
Corte Xxxxxx, XX 00000 lieu of cont. filed inventory, chattel paper, machinery,
10/15/2001) fixtures, and vehicles
------------------------------------------------------------------------------------------------------
176. Restoration Hardware, Inc. 47239 Specific leased equipment
(may have lapsed)
------------------------------------------------------------------------------------------------------
177. Restoration Hardware, Inc. 47559 Fixture Filing & All assets
Fixture Filing
(may have lapsed)
------------------------------------------------------------------------------------------------------
178. Restoration Hardware, Inc. 48318 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
179. Restoration Hardware, Inc. 50548 Specific leased equipment
(Lessee)
------------------------------------------------------------------------------------------------------
180. Restoration Hardware, Inc. 97-010252 Specific leased equipment
(Lessee)
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 21
NO. DEBTOR NAME/ADDRESS JURISDICTION SECURED PARTY FILE DATE
----------------------------------------------------------------------------------------------------------------------------------
181. Restoration Hardware, Inc. VA-Fairfax County Fleet Capital Corporation, as collateral 12/18/97
agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
182. Restoration Hardware, Inc. VA-Fairfax County NationsCredit Commercial Corporation 2/3/98
(Lessee) (Lessor)
----------------------------------------------------------------------------------------------------------------------------------
183. Restoration Hardware, Inc. VA-Norfolk City Clerk LaSalle National Leasing Corporation 7/9/99
(Lessee) (Lessor)
----------------------------------------------------------------------------------------------------------------------------------
184. Restoration Hardware, Inc. VA-Norfolk City Clerk Fleet Capital Corporation, as collateral 1/13/00
agent and Fleet Retail Finance Inc., as
collateral agent
----------------------------------------------------------------------------------------------------------------------------------
185. Restoration Hardware, Inc. WA Xxxxxx Financial Leasing, Inc. 02/01/99
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
186. Restoration Hardware, Inc. WA NationsCredit Commercial 05/11/98
0000 Xxxxxxxxxx Xxxxxxx Xxxx.
Xxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
187. Restoration Hardware, Inc. WA NationsCredit Commercial Corporation 02/02/98
0000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
188. Restoration Hardware, Inc. WA Fleet Capital Corporation, as collateral 12/16/97
00 Xxxx Xxxx, Xxxxx X agent and Fleet Retail Finance Inc., as
Xxxxx Xxxxxx, XX 00000 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
189. Restoration Hardware Inc. WI Fleet Capital Corporation, as collateral 10/02/00
00 Xxxx Xxxx, Xxxxx X agent and Fleet Retail Finance Inc., as
Corte Xxxxxx, XX 00000 collateral agent
----------------------------------------------------------------------------------------------------------------------------------
NO. DEBTOR NAME/ADDRESS FILE NUMBER COLLATERAL
DESCRIPTION
------------------------------------------------------------------------------------------------------
181. Restoration Hardware, Inc. 97-0125265 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
182. Restoration Hardware, Inc. 98-001085 Specific leased equipment
(Lessee)
------------------------------------------------------------------------------------------------------
183. Restoration Hardware, Inc. 99-905 Specific leased equipment
(Lessee)
------------------------------------------------------------------------------------------------------
184. Restoration Hardware, Inc. 2000-0060 All assets
(continued on DE UCC in
lieu of cont. filed
10/15/2001)
------------------------------------------------------------------------------------------------------
185. Restoration Hardware, Inc. 990320057 Computer equipment
00 Xxxx Xxxx, Xxxxx X
Xxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
186. Restoration Hardware, Inc. 981310630 Computer equipment
0000 Xxxxxxxxxx Xxxxxxx Xxxx.
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
187. Restoration Hardware, Inc. 980330143 Computer equipment (Lease)
0000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------
188. Restoration Hardware, Inc. 973500030 Assets, accounts, contract rights,
00 Xxxx Xxxx, Xxxxx X (continued on DE UCC in general intangibles, equipment,
Corte Xxxxxx, XX 00000 lieu of cont. filed inventory, chattel paper, machinery,
10/15/2001) fixtures, and vehicles
------------------------------------------------------------------------------------------------------
189. Restoration Hardware Inc. 01996635 Assets, accounts, contract rights,
00 Xxxx Xxxx, Xxxxx X (continued on DE UCC in general intangibles, equipment,
Corte Xxxxxx, XX 00000 lieu of cont. filed inventory, chattel paper, machinery,
10/15/2001) fixtures and vehicles
------------------------------------------------------------------------------------------------------
Exhibit 8.2.12 - Page 22
EXHIBIT 8.2.12
PERMITTED INVESTMENTS
NONE.
Exhibit 8.2.12 - Page 1
EXHIBIT 8.3
FINANCIAL COVENANTS
MINIMUM NET AVAILABILITY: At no time shall Borrowers suffer or permit Net
Availability to be less than:
(i) Five Million Dollars ($5,000,000) at all times during the period January
26th through December 24th; and
(ii) Fifteen Million Dollars ($15,000,000) at all times during the period
December 25th through January 25th.
Exhibit 8.3 - Page 1
