Exhibit 4-N
FIRST AMENDMENT
THIS FIRST AMENDMENT dated as of April 11, 2002 (this "Amendment") amends
the Security Agreement dated as of April 14, 2000 (the "Security Agreement")
among TruServ Corporation (the "Company"), various subsidiaries of the Company
(together with the Company, the "Debtors") and Bank of America, N.A., as
Collateral Agent (in such capacity, the "Collateral Agent"). Terms defined in
the Security Agreement are, unless otherwise defined herein or the context
otherwise requires, used herein as defined therein.
WHEREAS, the Debtors and the Collateral Agent have entered into the
Security Agreement; and
WHEREAS, the parties hereto desire to amend the Security Agreement in
certain respects as more fully set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 Amendments. Subject to the satisfaction of the conditions
precedent set forth in Section 3, the Security Agreement shall be amended as
follows:
1.1 Amendment to Section 1. Section 1 is amended as follows:
(a) The definition of "Assignee Deposit Account" is deleted in its
entirety.
(b) The following new definitions are added to Section 1 in proper
sequence:
"Blocked Account Agreement" - see Section 4.
"Clearing Bank" - see Section 4.
"Payment Account" - see Section 4.
1.2 Amendment to Section 4. Section 4 is amended by deleting the second,
third and fourth paragraphs thereof and substituting the following therefor:
"Until the Collateral Agent notifies the Debtors to the contrary,
the Debtors shall make collection of all Accounts and other Collateral for
the Collateral Agent, shall receive all payments as the Collateral Agent's
trustee, and shall immediately (or, any in any event, not later than the
next Business Day following receipt of any such payment) deliver all
payments in their original form duly endorsed in blank into an account
(the "Payment Account") established for the account of the Debtors (in the
name of the Collateral Agent or the Debtors, at the option of the
Collateral Agent) at a financial institution reasonably acceptable
to the Collateral Agent (the "Clearing Bank"), subject to an account
control agreement reasonably acceptable to the Collateral Agent (a
"Blocked Account Agreement"). On or prior to the date hereof, the Debtors
shall establish a lock-box service for collections of Accounts at the
Clearing Bank and subject to a Blocked Account Agreement and other
documentation reasonably acceptable to the Collateral Agent. The Debtors
shall instruct all Account Debtors to make all payments directly to the
address established for such service. If, notwithstanding such
instructions, any Debtor receives any proceeds of Accounts, it shall
receive such payments as the Collateral Agent's trustee, and shall
immediately (or, in any event, not later than the next Business Day
following receipt of any such payment) deliver such payments to the
Collateral Agent in their original form duly endorsed in blank or deposit
them into the Payment Account, as the Collateral Agent may direct. All
collections received in any lock-box or the Payment Account or directly by
a Debtor or the Collateral Agent, and all funds in the Payment Account or
any other account to which such collections are deposited shall be subject
to the Collateral Agent's sole control and withdrawals by any Debtor shall
not be permitted. The Collateral Agent or the Collateral Agent's designee
may, at any time after the occurrence of a Default, notify Account Debtors
that the Accounts have been assigned to the Collateral Agent and of the
Collateral Agent's security interest therein, and may collect them
directly and charge the collection costs and expenses to the Payment
Account as a Committed Loan. So long as a Default has occurred and is
continuing, each Debtor, at the Collateral Agent's request, shall execute
and deliver to the Collateral Agent such documents as the Collateral Agent
shall reasonably require to grant the Collateral Agent access to any post
office box in which collections of Accounts are received.
If sales of Inventory are made or services are rendered for cash,
the applicable Debtor shall immediately deliver to the Collateral Agent,
or deposit into the Payment Account, the cash which such Debtor receives.
All payments (including immediately available funds received by the
Collateral Agent at a bank account designated by it) will be the
Collateral Agent's sole property for its benefit and the ratable benefit
of the Lenders; provided that payments (a) received following the receipt
of written notice by the Collateral Agent from a Benefited Party that a
Final True-Up Event has occurred or (b) which constitute Interim Proceeds
will be held by the Collateral Agent for the ratable benefit of the
Benefited Parties to be applied as set forth in Section 4 of the
Intercreditor Agreement.
Each Debtor authorizes the Collateral Agent to, and the Collateral
Agent will on each Business Day, subject to the terms of the Intercreditor
Agreement, apply the whole or any part of any amounts received by the
Collateral Agent (whether deposited in the Payment Account or otherwise
received by the
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Collateral Agent) from the collection of items of payment and proceeds of
any Collateral (other than payments described in the proviso in the
preceding paragraph) against the Credit Agreement Obligations, whether or
not then due, in accordance with the terms of the Intercreditor Agreement;
provided that no check, draft or other instrument received by the
Collateral Agent or any Lender shall constitute final payment to the
Collateral Agent for the account of the Lenders unless and until such item
of payment has actually been collected. Upon written request by the
Company, so long as no Event of Default exists, the Collateral Agent will
release to the Company all or any of the balance in the Payment Account
(other than amounts which will be applied to the Credit Agreement
Obligations or the other Benefited Obligations) within three days
following receipt of such request."
1.3 Amendment to Section 6. Clause (i)(A) of Section 6 is amended in its
entirety to read as follows:
"(A) So long as no Default exists, subject to the terms of the
Intercreditor Agreement and the Credit Agreement, the Collateral Agent
shall deliver any proceeds of such insurance which may be received by it
to such Debtor".
1.4 Amendments to Schedules. Schedules I, II, III and IV are amended in
their entirety to read as set forth as Schedules I, II, III and IV hereto.
SECTION 2 Representations and Warranties. Each Debtor represents and
warrants to the Collateral Agent for the benefit of the Benefited Parties that,
after giving effect to the effectiveness hereof, (a) each warranty set forth in
Section 3 of the Security Agreement is true and correct as of the date of the
execution and delivery of this Amendment by the Debtors, with the same effect as
if made on such date (except to the extent such warranty expressly relates to an
earlier date, in which case it was true and correct as of such earlier date) and
(b) no Default exists.
SECTION 3 Effectiveness. The amendments set forth in Section 1 above shall
become effective on the date when the Collateral Agent shall have received
counterparts of this Amendment executed by the Debtors.
SECTION 4 Miscellaneous.
4.1 Continuing Effectiveness, etc. As herein amended, the Security
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the effectiveness of this Amendment, all
references in the Security Agreement, the Collateral Documents and the Financing
Agreements to "Security Agreement" or similar terms shall refer to the Security
Agreement as amended hereby.
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4.2 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
4.3 Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of Illinois.
4.4 Successors and Assigns. This Amendment shall be binding upon the
Debtors, the Benefited Parties and the Collateral Agent and their respective
successors and assigns, and shall inure to the benefit of the Debtors, the
Benefited Parties and the Collateral Agent and the respective successors and
assigns of the Benefited Parties and the Collateral Agent.
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Delivered as of the day and year first above written.
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
Name Printed: Barbara L. Wagner
Title: Vice President
TRUSERV ACCEPTANCE COMPANY
TRUSERV LOGISTICS COMPANY
GENERAL PAINT & MANUFACTURING
COMPANY
MARYGREEN, LLC
TRUE VALUE.COM CORPORATION
By: /s/ BARBARA L. WAGNER
Name Printed: Barbara L. Wagner
Title: Vice President
BANK OF AMERICA, N.A., as Collateral Agent
By: /s/ DAVID A. JOHANSON
Name Printed: David A. Johanson
Title: Vice President
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