Exhibit 4-I
EXECUTION COPY
FOURTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT ("Fourth Amendment")
is made as of the 28th day of December, 2005 by and among True Value Company, a
Delaware corporation (f/k/a TruServ Corporation and herein "True Value" or
"TruServ"), TruServ Acceptance Company, an Illinois corporation ("TruServ
Acceptance"), TruServ Logistics Company, an Illinois corporation ("TruServ
Logistics"), General Paint & Manufacturing Company ("General Paint") and True
Xxxxx.xxx Corporation, a Delaware corporation ("True Xxxxx.xxx"), Bank of
America, N.A., a national banking association ("B of A"), as
successor-in-interest to Fleet Capital Corporation ("FCC"), as agent for Lenders
hereunder (B of A, in such capacity, being "Agent"), Wachovia Capital Financial
Corporation (Central) (f/k/a Congress Financial Corporation), Xxxxxxx Xxxxx
Capital, a Division of Xxxxxxx Xxxxx Business Financial Services, Inc., LaSalle
Business Credit, LLC as Co-Documentation Agents ("Co-Documentation Agents") and
the lenders who are signatories hereto ("Lenders"). True Value, TruServ
Acceptance, TruServ Logistics, General Paint and True Xxxxx.xxx are sometimes
hereinafter referred to individually as a "Borrower" and collectively as
"Borrowers."
WITNESSETH:
WHEREAS, Borrowers, Bank of America, N.A., as Syndication Agent (Bank of
America, N.A. has assigned all of its interests to FCC which, in turn, has
assigned all of its interests, either directly or indirectly, through an
Affiliate of B of A), Co-Documentation Agents, Agent and Lenders entered into a
certain Loan and Security Agreement dated as of August 29, 2003, as amended by a
certain First Amendment to Loan and Security Agreement by and among Borrowers,
Bank of America, N.A., as Syndication Agent, Co-Documentation Agents, Agent and
Lenders dated as of March 19, 2004, by a certain Second Amendment to Loan and
Security Agreement by and among Borrowers, Syndication Agent, Co-Documentation
Agents, Agents and Lenders dated as of October 26, 2004 and by a certain Third
Amendment to Loan and Security Agreement by and among Borrowers,
Co-Documentation Agents, Agent and Lenders dated as of May 6, 2005 (said Loan
and Security Agreement, as so amended, is hereinafter referred to as the "Loan
Agreement"); and
WHEREAS, Borrowers desire to amend and modify certain provisions of the
Loan Agreement and, subject to the terms hereof, Agent and Lenders are willing
to agree to such amendments and modifications;
NOW THEREFORE, in consideration of the premises, the mutual covenants and
agreements herein contained, and any extension of credit heretofore, now or
hereafter made by Agent and Lenders to Borrowers, the parties hereto hereby
agree as follows:
1. Definitions. All capitalized terms used herein without definition shall
have the meaning given to them in the Loan Agreement.
2. Added Definitions. Appendix A of the Loan Agreement is hereby amended to
insert the following new definitions of "Fourth Amendment," "Fourth Amendment
Effective
Date," "Manchester Mortgage Documents" and "Manchester Mortgage Indebtedness" in
their appropriate alphabetical order:
Fourth Amendment - that certain Fourth Amendment to Loan and Security
Agreement dated as of December 28, 2005 by and among Agent, Borrowers,
Co-Documentation Agents and the Lenders party thereto.
Fourth Amendment Effective Date - shall have the meaning contained in
Section 6 of this Fourth Amendment.
Manchester Mortgage Documents - [DESCRIPTION TO COME FROM BORROWERS.]
Manchester Mortgage Indebtedness - Money Borrowed owed by Borrowers or
any one of them pursuant to the Manchester Mortgage Documents.
3. Indebtedness. Subsection 8.2.3 of the Loan Agreement is hereby deleted
and the following is inserts in its stead:
"8.2.3 Total Indebtedness for Money Borrowed. Create, incur,
assume, or suffer to exist, or permit any Restricted Subsidiary of any
Borrower to create, incur or suffer to exist, any Indebtedness for
Money Borrowed, except:
(i) Obligations owing to Agent, any Lender or any Affiliate
of any Lender or Agent under this Agreement or any of the other
Loan Documents;
(ii) Indebtedness for Money Borrowed, including, without
limitation, Subordinated Debt, existing on the date of this
Agreement and listed on Exhibit 8.2.3, any renewals,
replacements, refinancings or extensions thereof;
(iii) Permitted Purchase Money Indebtedness;
(iv) contingent liabilities arising out of endorsements of
checks and other negotiable instruments for deposit or collection
in the ordinary course of business;
(v) Guaranties of any Indebtedness for Money Borrowed
permitted hereunder;
(vi) Indebtedness for Money Borrowed permitted under
subsections 8.2.2(v) and (vi);
(vii) Indebtedness for Money Borrowed outstanding pursuant
to the Redeemable Subordinated Notes;
(viii) Indebtedness for Money Borrowed outstanding pursuant
to the Member Notes;
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(ix) reimbursement obligations owing with respect to the B
of A LCs and with respect to documentary letters of credit;
(x) Indebtedness for Money Borrowed arising out of
performance or surety bonds in the ordinary course of business;
(xi) Indebtedness for Money Borrowed arising out of
Derivative Obligations;
(xii) Indebtedness for Money Borrowed in respect of sale and
leaseback transactions not prohibited by the terms hereof
involving existing facilities;
(xiii) Indebtedness for Money Borrowed in respect of
deferred compensation, incentive plans and similar arrangements;
(xiv) Member Guaranties in an aggregate amount outstanding
at any time not to exceed $10,000,000 less the aggregate amount
of Member Loans outstanding at such time;
(xv) Manchester Mortgage Indebtedness; and
(xvi) Indebtedness for Money Borrowed not included in
paragraphs (i) through (xv) above which does not exceed at any
time, in the aggregate, the sum of $1,000,000." [CHANGED ITEMS
UNDERSCORED]
4. Liens. Subsection 8.2.5 of the Loan Agreement is hereby deleted and the
following is inserted in its stead:
"8.2.5 Limitation on Liens. Create or suffer to exist, or permit
any Subsidiary of any Borrower 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 or Affiliates or upon any Property in
possession of or control of any Lender;
(ii) Liens for taxes, assessments or governmental charges
(excluding any Lien imposed pursuant to any of the provisions of
ERISA) not yet due, being contested in the manner described in
subsection 7.1.14 hereto or other than taxes in immaterial
amounts that inadvertently remain unpaid, but only if, in the
case of contested taxes, such Lien would not reasonably be
expected to adversely affect Agent's rights or the priority of
Agent's lien on any Collateral (other than Collateral having de
minimis value);
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(iii) Liens arising in the ordinary course of the business
of any Borrower or any of its Subsidiaries by operation of law or
regulation, including, without limitation, Liens of landlords,
mechanics, materialmen, repairmen and suppliers, but only if
payment in respect of any such Lien is not at the time required
(or are being contested in good faith and for which adequate
reserves have been made) and such Liens do not, in the aggregate,
materially detract from the value of the Property of such
Borrower or any of its Restricted Subsidiaries or materially
impair the use thereof in the operation of the business of such
Borrower or any of its Restricted Subsidiaries;
(iv) Purchase Money Liens securing Permitted Purchase Money
Indebtedness;
(v) such other Liens as appear on Exhibit 8.2.5 hereto and
any renewals, refinancings, replacements or extensions thereof;
(vi) Liens incurred or pledges of financial instruments
(such as certificates of deposit) or deposits made in the
ordinary course of business in connection with (1) worker's
compensation, social security, unemployment insurance and other
like laws, (2) sales contracts, bids, 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
or (3) surety or appeal bonds, insurance bonds, performance bonds
and other obligations of a like nature incurred in the ordinary
course of business;
(vii) reservations, easements (including, without
limitation, reciprocal easement agreements and utility easements)
covenants, zoning and other land use regulations, imperfections
of title, title exceptions, encroachments, or encumbrances
affecting real Property owned or leased by a Borrower or one of
its Restricted Subsidiaries; provided that such exceptions do not
in the aggregate materially interfere with the use of such
Property in the ordinary course of any Borrower's or such
Restricted Subsidiary's business;
(viii) local, county, state and federal laws, ordinances or
governmental regulations now or hereafter in effect relating to
the real Property owned or leased by Borrowers;
(ix) with respect to the real Property owned by Borrowers on
or prior to the Closing Date, all matters disclosed by the
mortgagee title insurance policies delivered by Borrower to Agent
pursuant to Section 5.5 hereof;
(x) Liens related to dispositions of Properties permitted
pursuant to subsection 8.2.7 hereof;
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(xi) judgment Liens that do not give rise to an Event of
Default under subsection 10.1.14;
(xii) Liens consisting of cash or cash equivalents pledged
to secure Borrowers' reimbursement obligations with respect to
the B of A LCs or outstanding documentary letters of credit;
(xiii) Liens arising in respect of Capitalized Lease
Obligations permitted hereunder;
(xiv) Licenses, leases or subleases granted to others not
interfering in any material respect with the business of the
Borrowers taken as a whole;
(xv) Liens of a collection bank arising under, or described
by, Section 4-201 of the Uniform Commercial Code;
(xvi) normal and customary rights of setoff upon deposits of
cash in favor of banks or other depositary institutions;
(xvii) Liens of sellers of goods to a Borrower or any of its
Restricted Subsidiaries arising under Article 2 of the Uniform
Commercial Code or similar provisions of applicable law in the
ordinary course of business, covering only the goods sold and
securing the unpaid purchase price for such goods and related
expenses;
(xviii) Liens on property leased by a Borrower including the
interest of lessor incurred under a lease entered into as part of
a sale and leaseback transaction;
(xix) any escrow, holdback or similar arrangement in
connection with any sale, lease or transfer or other disposition
of any asset not prohibited hereunder;
(xx) such other Liens as Majority Lenders may hereafter
approve in writing;
(xxi) Liens on the real and other Property described in the
Manchester Mortgage Documents (as such Manchester Mortgage
Documents are in effect on the Fourth Amendment Effective Date)
which Liens secure the repayment of the Manchester Mortgage
Indebtedness; and
(xxii) Liens not described in the foregoing clauses (i)
through (xxi) and securing Indebtedness not to exceed
$1,000,000." [ADDED LANGUAGE UNDERSCORED]
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5. Payments and Amendments to Certain Debt. Subsection 8.2.6 of the Loan
Agreement is hereby deleted and the following is inserted in its stead:
"8.2.6 Payments and Amendments of Certain Debt.
(i) make or permit any Subsidiary of any Borrower to make
any payment of any part or all of any Subordinated Debt or take
any other action or omit to take any other action in respect of
any Subordinated Debt, which are prohibited by the subordination
agreement relative thereto or the subordination provisions
thereof, including, without limitation, Member Notes and
Redeemable Subordinated Notes;
(ii) prepay or permit any Subsidiary of any Borrower to
prepay (either directly or indirectly through a repurchase) any
principal or interest on any Subordinated Debt, except for
principal and interest prepayments (either directly or indirectly
through a repurchase) of amounts due under Member Notes or
Redeemable Subordinated Notes in an aggregate sum not to exceed
$250,000 within any fiscal year of Borrowers, so long as, in
either case, after giving effect to any such prepayment, no
Default or Event of Default would exist and be continuing;
(iii) amend or modify, in any manner adverse to Borrowers,
Agent or Lenders, any agreement, instrument or document
evidencing or relating to any Subordinated Debt;
(iv) make or permit any Subsidiary of any Borrower to make
voluntary prepayment of the Manchester Mortgage Indebtedness; or
(v) amend or modify, in any manner adverse to Borrowers,
Agent or Lenders, the Manchester Mortgage Indebtedness." [ADDED
LANGUAGE UNDERSCORED]
6. Proceeds of Manchester Mortgage Indebtedness.
(a) Borrowers covenant to pay to Agent, pursuant to Section 3.3 of the
Loan Agreement, the proceeds from the issuance of the Manchester Mortgage
Indebtedness. Such proceeds shall be applied to outstanding Revolving Credit
Loans as provided in subsection 3.3.1 of the Loan Agreement. Upon receipt of
such proceeds and subject to the effectiveness of this Fourth Amendment, Agent
shall release (and Majority Lenders so consent to any such release) its Lien on
the real and other Property described in the Manchester Mortgage Documents (as
in effect on the Fourth Amendment Effective Date).
(b) Borrowers acknowledge that the Net Appraised Orderly Liquidation
Value of Borrowers' Equipment and/or the Net Appraised Fair Market Value of
Borrowers' real Property shall be reduced by the Net Appraised Orderly
Liquidation Value of Borrowers' Equipment and Net Appraised Fair Market Value of
Borrowers' real Property included within the real and other Property described
in the Manchester Mortgage Documents as provided in subsection 3.3.1 of the Loan
Agreement. Borrowers further acknowledge that Agent intends to
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conduct new appraisals of Borrowers' real Property and Equipment as contemplated
by Section 2.10 of the Agreement and that the Net Appraised Fair Market Value of
Borrowers' real Property and/or the Net Appraised Orderly Liquidation Value of
Borrowers' Equipment may be further reduced as a result of such appraisals.
7. Fourth Amendment Effective Date. This Fourth Amendment shall become
effective when (i) Borrowers, Agent and Majority Lenders shall have executed and
delivered to each other this Fourth Amendment, (ii) Borrowers shall have
delivered to Agent and Lenders copies of the Manchester Mortgage Documents,
certified as true, correct and complete by an officer of Borrower Representative
and the terms and conditions of the Manchester Mortgage Documents shall be
acceptable to Majority Lenders and (iii) the mortgagee under the Manchester
Mortgage Documents shall have executed and delivered to Agent a Mortgagee Waiver
in form and substance acceptable to Agent. The date on which such foregoing
condition is satisfied shall be referred to as the "Fourth Amendment Effective
Date."
8. Execution in Counterparts. This Fourth Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
9. Continuing Effect. Except as otherwise specifically set out herein, the
provisions of the Loan Agreement shall remain in full force and effect.
10. Successors and Assigns. This Fourth Amendment shall be binding upon and
inure to the benefit of the successors and assigns of each Borrower, Agent and
each Lender permitted under Section 11.9 of the Loan Agreement.
11. Governing Law. This Fourth Amendment shall be governed by and construed
in accordance with the laws of the State of Illinois.
12. Successor Agent. Borrowers and Lenders acknowledge that FCC has
assigned its entire rights, title and interest in the Loan Agreement and the
Loan Documents to B of A (or an affiliate of B of A, which in turn has assigned
such rights, title and interest to B of A). Borrowers and Lenders consent to
such assignment(s), the resignation of FCC as Agent and the appointment of B of
A as successor Agent to FCC.
(SIGNATURE PAGE FOLLOWS)
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(SIGNATURE PAGE TO FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT)
IN WITNESS WHEREOF, this Fourth Amendment has been duly executed as of the
day and year specified at the beginning hereof.
TRUE VALUE COMPANY, as a Borrower
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
TRUSERV ACCEPTANCE COMPANY, as a
Borrower
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
TRUSERV LOGISTICS COMPANY, as a Borrower
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
GENERAL PAINT & MANUFACTURING COMPANY,
as a Borrower
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
(SIGNATURE PAGE TO FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT)
TRUE XXXXX.XXX CORPORATION, as a
Borrower
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
(SIGNATURE PAGE TO FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT)
BANK OF AMERICA, N.A., as Agent and
as a Lender
By: /s/ XXXXX X. XXXXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
----------------------------------
Title: Senior Vice President
---------------------------------
(SIGNATURE PAGE TO FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT)
WACHOVIA CAPITAL FINANCE CORPORATION
(CENTRAL) (FORMERLY KNOWN AS CONGRESS
FINANCIAL CORPORATION (CENTRAL)), as
Co-Documentation Agent and as a Lender
By: /s/ XXXXX XXXXXX
------------------------------------
Name: Xxxxx Xxxxxx
----------------------------------
Title: Associate
---------------------------------
(SIGNATURE PAGE TO THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT)
XXXXXXX XXXXX CAPITAL, a Division of
Xxxxxxx Xxxxx Business Financial
Services, Inc., as Co-Documentation
Agent and as a Lender
By: /s/ XXXXXX XXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxx
----------------------------------
Title: Assistant Vice President
---------------------------------
(SIGNATURE PAGE TO FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT)
LASALLE BUSINESS CREDIT, LLC, as
Co-Documentation Agent and as a
Lender
By: /s/ XXXXXX XXXXXX
------------------------------------
Name: Xxxxxx Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
(SIGNATURE PAGE TO FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT)
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: /s/ XXXXXXXXX XXXXX
------------------------------------
Name: Xxxxxxxxx Xxxxx
----------------------------------
Title: Assistant Vice President
---------------------------------
(SIGNATURE PAGE TO FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT)
M & I XXXXXXXX & ILSLEY BANK, as a
Lender
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------
Title: Vice President
---------------------------------
By: /s/ XXX XXXXXX
------------------------------------
Name: Xxx Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
Schedule 1
Manchester Mortgage Documents
1. Mortgage Deed, Security Agreement, Assignment of Leases and Rents and
Fixture Filing executed by True Value Company, as Borrower, in favor of GE
Commercial Finance Business Property Corporation, as Mortgagee.
2. Promissory Note executed by True Value Company, as Borrower, in favor of GE
Commercial Finance Business Property Corporation, as Mortgagee.
3. Security Agreement made by True Value Company, as Debtor, in favor of GE
Commercial Finance Business Property Corporation, as Secured Party.
4. Environmental Indemnity Agreement Regarding Hazardous Substances made by
True Value Company, as Indemnitor, in favor of GE Commercial Finance
Business Property Corporation, as Lender.
5. Financing Statement made by True Value Company, as Debtor, in favor of GE
Commercial Finance Business Property Corporation, as Secured Party for
filing in the Recorder of Deeds office for Hillsborough County, New
Hampshire.
6. Financing Statement made by True Value Company, as Debtor, in favor of GE
Commercial Finance Business Property Corporation, as Secured Party for
filing in the office of the Delaware Secretary of State.
7. Borrower's Certificate executed by Borrower.
8. General Corporate Authorization Documents including Corporate Resolutions
and Incumbency Certificates executed by True Value Company.
Schedule 1
Schedule 2
Loan No.: 6321415-001
EXHIBIT A
(333 Xxxxxx Road, Manchester, Hillsborough County, New Hampshire)
LEGAL DESCRIPTION:
A certain tract or parcel of land situate in the City of Manchester, County of
Hillsborough, and State of New Hampshire, shown as Lot #721-6 on a Lot Line
Adjustment Plan entitled "Tax Map 721 - Xxxx 0 & 00, Xxxxxx Xxxx, Xxxxxxxxxx,
X.X., Owners of Record: TRU-SERV (Lot 6), Manchester Airport Authority (Lot
18)" dated November 9, 1998 and recorded as Plan #30302 in the Hillsborough
County Registry of Deeds.
Reference to said plan is made for a more particular description.
Together with an underground stormwater drainage easement as granted by the
City of Manchester by Construction & Maintenance Agreement dated January 20,
2000 and recorded in Volume 6208, Page 1234 and described as follows:
An Easement for the construction and maintenance of an underground stormwater
drainage system over Xxx 00, Xxx Xxx 000, xx Xxxxxxxxxx, XX and further
described as follows: Beginning at an IPIN to be set on the easterly property
line of land formerly of B&M Railroad, now City of Manchester, at the most
Southwesterly corner of "Parcel A" as shown on the plan entitled "Lot Line
Adjustment plan, Tax Map 721, Lots 6 & 00, Xxxxxx Xxxx, Xxxxxxxxxx, XX" Owners
of Record, Tru-Serv (Lot 6) and Manchester Airport Authority (Lot 18) dated
November 9, 1998 and recorded in the Hillsborough County Registry of Deeds as
Plan 30302; Thence S 19(degrees)19(feet)54(inches) E along the westerly line of
Tax Map 721 Lot 6, a distance of 278.08(feet) to a point; thence S
23(degrees)31(feet)56(inches) E, along the westerly line of Tax Map 721 Lot 6, a
distance of 78.99(feet) to a point; thence S 10(degrees)25(feet)14(inches) W a
distance of 264.84(feet) to a point; thence N 79(degrees)34(feet)46(inches) W a
distance of 50(feet) to a point; thence N 10(degrees)25(feet)14(inches) E a
distance of 264.84(feet) to a point; thence N 18(degrees)01(feet)24(inches) W a
distance of 315.89(feet) to a point; thence N 42(degrees)16(feet)06(inches) E,
northeasterly a distance of 34.74(feet) to the point of beginning.
EXHIBIT B
(000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx)
Secured Party: GE COMMERCIAL FINANCE BUSINESS PROPERTY CORPORATION,
a Delaware corporation, its successors and assigns
Debtor: TRUE VALUE COMPANY, a Delaware corporation
Loan No.: 6321415-001
The collateral includes all of the right, title and interest of Debtor in,
to and under:
1. All fixtures, landscaping, equipment used in the maintenance of the
Improvements (defined below), and articles of property now or hereafter attached
to, or used or adapted for use in the operation of buildings, structures,
improvements, and parking areas located on the real estate (herein the
"Premises") described in Exhibit A, including but without being limited to, all
heating, air conditioning, lighting, and incinerating apparatus and equipment;
all boilers, engines, motors, dynamos, generating equipment, piping and plumbing
fixtures, water heaters, ranges, cooking apparatus and mechanical kitchen
equipment, refrigerators, freezers, cooling, ventilating, sprinkling and vacuum
cleaning systems, fire extinguishing apparatus, gas and electric fixtures,
carpeting, floor coverings, underpadding, elevators, escalators, partitions,
mantels, built-in mirrors, window shades, blinds, draperies, screens, storm
sash, awnings, signs, and shrubbery and plants, and including also all interest
of any owner of the Premises in any of such items hereafter at any time acquired
under conditional sale contract, chattel mortgage or other title retaining or
security instrument, all of which property mentioned in this paragraph 1 shall
be referred to as the "Improvements" and shall be deemed part of the realty and
not severable wholly or in part without material injury to the freehold of the
Premises.
2. All compensation, awards, damages, rights of action and proceeds,
including interest thereon and/or the proceeds of any policies of insurance
therefor, arising out of or relating to a (a) taking or damaging of the Premises
or Improvements thereon by reason of any public or private improvement,
condemnation proceeding (including change of grade), sale or transfer in lieu of
condemnation, or fire, earthquake or other casualty, or (b) any injury to or
decrease in the value of the Premises or the Improvements for any reason
whatsoever.
3. Return premiums or other payments upon any insurance any time provided
for the benefit of or naming Secured Party with respect to the Premises,
Improvements and other collateral described herein, and refunds or rebates of
taxes or assessments on the Premises.
4. All written and oral leases and rental agreements (including extensions,
renewals and subleases; all of the foregoing shall be referred to collectively
herein as the "Leases") now or hereafter affecting the Premises including,
without limitation, all rents, issues, profits and other revenues and income
therefrom and from the renting, leasing or bailment of Improvements, all
guaranties of tenants' performance under the Leases, and all rights and claims
of any kind that Debtor may have against any tenant under the Leases or in
connection with the termination or rejection of the Leases in a bankruptcy or
insolvency proceeding.
5. Plans, specifications, contracts and agreements relating to the design
or construction of the Improvements; Debtor's rights under any payment,
performance, or other bond in connection with the design or construction of the
Improvements; all landscaping and construction materials, supplies, and
equipment used or to be used or consumed in connection with construction of the
Improvements, whether stored on the Premises or at some other location; and
contracts, agreements, and purchase orders with contractors, subcontractors,
suppliers, and materialmen incidental to the design or construction of the
Improvements.
Secured Party: GE COMMERCIAL FINANCE BUSINESS PROPERTY CORPORATION,
a Delaware corporation, its successors and assigns
Debtor: TRUE VALUE COMPANY, a Delaware corporation
Loan No.: 6321415-001
6. All contracts, rights, claims or causes of action pertaining to or
affecting the Premises or the Improvements, including, without limitation, all
options or contracts to acquire other property for use in connection with
operation or development of the Premises or Improvements, service or supply
contracts, permits, licenses, and certificates, and all commitments or
agreements, now or hereafter in existence, intended by the obligor thereof to
provide Debtor with proceeds to satisfy the loan evidenced hereby or improve
the Premises or Improvements, and the right to receive all proceeds due under
such commitments or agreements including refundable deposits and fees.
7. All books, records, surveys, reports and other documents related to
the Premises, the Improvements, the Leases, or other items of collateral
described herein.
8. All additions, accessions, replacements, substitutions, proceeds and
products of the real and personal property, tangible and intangible, described
herein, including but not limited to lease and real-estate proceeds and other
amounts relating to the use, disposition, or sale of the collateral described
herein which proceeds or other amounts are characterized as general intangibles.
All of the foregoing described collateral is exclusive of any goods,
inventory, equipment not related to the operation and maintenance of the
improvements, furniture, furnishings, and trade fixtures owned and supplied by
Debtor.
FURTHER ENCUMBRANCE OF THE ABOVE COLLATERAL IS PROHIBITED.
