EXHIBIT 4-Z
TRUSERV CORPORATION
$105,000,000
AMENDED AND RESTATED SENIOR SECURED NOTES DUE 2008
----------
THIRD AMENDMENT TO THE
AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
DATED AS OF MARCH 13, 2003
TRUSERV CORPORATION
8600 West Bryn Mawr Avenue
Chicago, Illinois 60631
March 13, 2003
To Each of the Purchasers
Listed in the Attached Schedule 1
(each, a "PURCHASER")
Ladies and Gentlemen:
Re: THIRD AMENDMENT TO THE AMENDED AND RESTATED NOTE PURCHASE
AGREEMENTS (the "THIRD AMENDMENT")
The undersigned, TruServ Corporation, a Delaware corporation formerly
known as Cotter & Company (herein called the "COMPANY"), hereby agrees and
acknowledges that:
A. The Company and each of you are parties (the "PURCHASERS") to
separate Note Purchase Agreement each dated as of September
10, 1998, as each were amended by Amendment No. 1 to Note
Purchase Agreements dated as of April 1, 1999, as each were
further amended and restated by the Amended and Restated Note
Purchase Agreements each dated as of April 14, 2000, as each
were further amended by the Amendment to the Amended and
Restated Note Purchase Agreements each dated as of April 11,
2002 and by the Second Amendment to the Amended and Restated
Note Purchase Agreements each dated as of December 30, 2002
(collectively, the "ORIGINAL NPAS" and individually each an
"ORIGINAL NPA").
B. Pursuant to the Original NPAs, the Company issued and sold to
each of you $105,000,000 aggregate principal amount of its
6.85% Senior Notes due 2008 (the "NOTES").
C. Each of you and the Company desire to amend the Original NPAs
as hereinafter set forth (the Original NPAs as amended by this
Third Amendment is referred to herein collectively as the
"NPAS" and individually as an "NPA"). Reference is made to the
Original NPA for definitions of capitalized terms used herein
and not otherwise defined herein.
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Pursuant to the request of the Company and in accordance with the
provisions of Section 15 of the Original NPAs, the parties hereto consent to the
amendment of the Original NPAs and agree as follows:
SECTION 1. Amendment. From and after the date this Third Amendment
becomes effective in accordance with its terms, each Original NPA shall be
amended as follows:
1.1 Paragraph 6H Fixed Charge Coverage Ratio of the Original NPAs is
amended in its entirety to read as follows:
6H. FIXED CHARGE COVERAGE RATIO. The Company shall not permit
the Fixed Charge Coverage Ratio as of the end of any fiscal period set
forth below to be less than the applicable ratio set forth below for
such period:
<Table>
<Caption>
Fiscal Period(s) ending on or about Ratio
- ----------------------------------- --------
four quarters ending December 2002 0.70:1.0
four quarters ending March 2003 0.76:1.0
four quarters ending June 2003 0.73:1.0
four quarters ending September 2003 0.68:1.0
four quarters ending December 2003 1.01:1.0
four quarters ending March 2004 1.10:1.0
four quarters ending June 2004 1.00:1.0
each four quarter period thereafter 1.00:1.0
</Table>
1.2 Paragraph 6I Minimum EBITDA of the Original NPAs is amended in its
entirety to read as follows:
6I. MINIMUM ADJUSTED EBITDA. The Company shall not permit the
sum of Adjusted EBITDA as of the end of any fiscal period set forth
below to be less than the respective amount set forth below:
<Table>
<Caption>
Fiscal Period(s) ending on or about Amount
- ----------------------------------- ------------
twelve months ended 12/31/02 $100,000,000
twelve months ended 1/31/03 $ 97,200,000
twelve months ended 2/28/03 $ 92,400,000
twelve months ended 3/31/03 $ 87,400,000
twelve months ended 4/30/03 $ 87,100,000
twelve months ended 5/31/03 $ 83,900,000
twelve months ended 6/30/03 $ 78,400,000
twelve months ended 7/31/03 $ 72,900,000
twelve months ended 8/31/03 $ 70,300,000
twelve months ended 9/30/03 $ 68,200,000
</Table>
3
<Table>
twelve months ended 10/31/03 $ 67,100,000
twelve months ended 11/30/03 $ 66,000,000
twelve months ended 12/31/03 $ 68,800,000
twelve months ended 1/31/04 $ 69,400,000
twelve months ended 2/29/04 $ 70,100,000
twelve months ended 3/31/04 $ 73,700,000
twelve months ended 4/30/04 $ 71,600,000
twelve months ended 5/31/04 $ 71,700,000
twelve months ended 6/30/04 $ 73,000,000
and the twelve month period ended on the $ 73,000,000
last day of each month thereafter
</Table>
1.3 Paragraph 6L Minimum Gross Sales of the Original NPAs is amended in
its entirety to read as follows:
6L. MINIMUM GROSS SALES. The Company shall not permit the
Gross Sales as of the end of any fiscal period set forth below to be
less than the applicable amount set forth below:
<Table>
<Caption>
Fiscal Period(s) ending on or about Amount
- ----------------------------------- --------------
twelve months ended 12/31/02 $1,975,000,000
twelve months ended 1/31/03 $1,834,400,000
twelve months ended 2/28/03 $1,795,700,000
twelve months ended 3/31/03 $1,750,700,000
twelve months ended 4/30/03 $1,737,300,000
twelve months ended 5/31/03 $1,750,900,000
twelve months ended 6/30/03 $1,737,600,000
twelve months ended 7/31/03 $1,728,800,000
twelve months ended 8/31/03 $1,724,800,000
twelve months ended 9/30/03 $1,725,400,000
twelve months ended 10/31/03 $1,728,000,000
twelve months ended 11/30/03 $1,709,100,000
twelve months ended 12/31/03 $1,702,900,000
twelve months ended 1/31/04 $1,700,000,000
twelve months ended 2/29/04 $1,697,600,000
twelve months ended 3/31/04 $1,694,500,000
twelve months ended 4/30/04 $1,690,300,000
twelve months ended 5/31/04 $1,682,900,000
twelve months ended 6/30/04 $1,676,300,000
and the twelve month period ended on the $1,676,300,000
last day of each month thereafter
</Table>
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1.4 Paragraph 6M Minimum Interest Coverage Ratio of the Original NPAs
is amended in its entirety to read as follows:
6M. MINIMUM INTEREST COVERAGE RATIO. The Company shall not
permit the Interest Coverage Ratio as of the end of any fiscal period
set forth below to be less than the applicable ratio set forth below:
<Table>
<Caption>
Fiscal Period(s) Ratio
- ---------------- --------
four quarters ending December 2002 1.75:1.0
four quarters ending March 2003 1.65:1.0
four quarters ending June 2003 1.75:1.0
four quarters ending September 2003 1.85:1.0
four quarters ending December 2003 2.32:1.0
four quarters ending March 2004 2.58:1.0
four quarters ending June 2004 2.74:1.0
and the four quarter period ended on the last 2.74:1.0
day of each month thereafter
</Table>
1.5 Paragraph 10A Defined Terms of the Original NPAs is amended to
delete to amend and restate the following defined terms or, if such definitions
are not in the Original NPA, to add such defined terms, in the appropriate
alphabetical order:
"BUSINESS PLAN" shall mean the business plan of the Company,
which was delivered by the Company to the Purchasers on February 14,
2003; provided, with respect to Paragraph 5A(xiii) and financial
reports relating to the periods prior to 2003, the Business Plan
shall mean the Business Plan of the Company dated March 20, 2002,
which was delivered by the Company to the Purchasers.
"PRUDENTIAL AGREEMENT" shall mean, collectively, (i) Amended
and Restated Private Shelf Agreement dated as of November 13, 1997,
as amended by letter agreements dated September 9, 1998, May 12,
1999, April 14, 2000, April 11, 2002 and December 30, 2002 between
the Company and The Prudential Insurance Company of America
("Prudential") and each affiliate of Prudential which is bound
thereby pursuant to the terms thereof, and (ii) the Note Agreement
dated as of April 13, 1992, as amended through the date hereof,
between Cotter & Company, the predecessor to the Company, and
Prudential, each as amended from time to time.
"THIRD AMENDMENT" shall mean the Third Amendment to the
Amended and Restated Senior Note Purchase Agreement dated as of March
13, 2003 between the Company and the Purchasers who are signatories
thereto.
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1.6 Amendment to Schedules. Schedule 1--Purchasers is deleted in its
entirety and replaced with Schedule 1--Purchasers attached to this Third
Amendment.
1.7 The Schedules and Exhibits attached hereto shall be deemed to amend
the previous schedules or exhibits and any new schedules or exhibits attached
hereto shall be an integral part of the Original NPAs.
SECTION 2. Representations and Warranties. The Company represents,
covenants and warrants to each of the Purchasers that, after giving effect
hereto as though all conditions of effectiveness have been met, (a) each
representation and warranty set forth below is true and correct as of the date
of execution and delivery of this Third Amendment by the Company with the same
effect as if made on such date (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they were true and
correct as of such earlier date), subject to in the case of the representations
and warranties contained in Paragraph 2D below to the matters disclosed in that
Consent to Waiver dated August 26, 2002 executed by the Required Holders, (b) no
Event of Default or Default exists, and (c) no fee has been paid or is payable
to the Lenders or the Agent (each as defined under the Intercreditor Agreement)
in connection with the execution and effectiveness of the Second Amendment to
the BA Credit Agreements:
2A. ORGANIZATION; QUALIFICATIONS; CORPORATE POWER. The Company is a
corporation duly organized and existing in good standing under the laws of the
State of Delaware, each Subsidiary is duly organized and existing in good
standing under the laws of the jurisdiction in which it is formed and the
Company and each of its Subsidiaries is duly qualified as a foreign corporation
or entity and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions in which the
failure to be so qualified could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The Company has and
each Subsidiary has the power to own their respective properties and to carry on
their respective businesses as now being conducted. No Subsidiary has
outstanding any shares of stock of a class which has priority over any other
class as to dividends or in liquidation (except as otherwise disclosed on
Schedule 2A). Each of the Company and each Subsidiary has the power and
authority to execute and deliver this Agreement, the Other Agreements, the
Guaranty, the Collateral Documents, the Notes and all other Note Documents to
which it is a party and to perform the provisions hereof and thereof.
2B. AUTHORIZATION, ETC. This Agreement, the Other Agreements, the
Guaranty, the Collateral Documents, the Notes and all other Note Documents have
been duly authorized by all necessary action on the part of the Company and each
Subsidiary party thereto and this Agreement, the Other Agreements, the Guaranty,
the Collateral Documents and all other Note Documents constitute, and upon
execution and delivery thereof each Note will constitute, a legal, valid and
binding obligation of the Company
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and each Subsidiary party thereto enforceable against the Company and each such
Subsidiary in accordance with its terms, except as such enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
(ii) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
2C. LEGAL RESTRICTIONS; SUBSIDIARIES. (a) No Subsidiary is a party to,
or otherwise subject to any legal restriction or any agreement (other than this
Agreement, the agreements listed on Schedule 2C and customary limitations
imposed by corporate law statutes) restricting the ability of such Subsidiary to
pay dividends out of profits or make any other similar distributions of profits
to the Company or any of its Subsidiaries that owns outstanding shares of
capital stock or similar equity interests of such Subsidiary.
(b) Except as otherwise provided in paragraph 5K of the Original NPAs
(after giving effect to the Third Amendment), the Subsidiaries that are parties
to the Guaranty and the Security Agreement constitute all of the Subsidiaries of
the Company. Except as otherwise provided in paragraph 5K of the Original NPAs
(after giving effect to the Third Amendment), the Company has pledged, pursuant
to the Pledge Agreement, all of the capital stock of each Subsidiary.
2D. FINANCIAL STATEMENTS.
(a) The Company has furnished you and each Other Purchaser of
any Note with the following financial statements, identified by a
Senior Financial Officer of the Company: (i) a consolidated balance
sheet of the Company and its Subsidiaries as at fiscal year end in each
of the three fiscal years of the Company most recently completed prior
to the date as of which this representation is made or repeated to such
Purchaser (other than fiscal years completed within 90 days prior to
such date for which audited financial statements have not been
released) and consolidated statements of operations and cash flows and
a consolidated statement of capital stock and retained earnings of the
Company and its Subsidiaries for each such year, all reported on by
Ernst & Young (or any independent public accounting firm of recognized
national standing) and (ii) a consolidated balance sheet of the Company
and its Subsidiaries as at the end of the quarterly period (if any)
most recently completed prior to such date and after the end of such
fiscal year (other than quarterly periods completed within 60 days
prior to such date for which financial statements have not been
released) and the comparable quarterly period in the preceding fiscal
year and consolidated statements of operations and cash flows and a
consolidated statement of capital stock and retained earnings for the
periods from the beginning of the fiscal years in which such quarterly
periods are included to the end of such quarterly periods, prepared by
the Company. Such financial statements (including any related schedules
and/or notes) are true and correct in all material respects (subject as
to interim statements to changes resulting from audits and year-end
adjustments),
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have been prepared in accordance with GAAP consistently followed
throughout the periods involved and show all liabilities, direct and
contingent, of the Company and its Subsidiaries required to be shown in
accordance with such principles. The balance sheets fairly present the
condition of the Company and its Subsidiaries as at the dates thereof,
and the statements of operations, capital stock and retained earnings
and cash flows fairly present the results of the operations of the
Company and its Subsidiaries and their cash flows for the periods
indicated.
(b) There has been no material adverse change in the business,
operations, condition (financial or otherwise), assets, properties or
prospects of the Company and its Subsidiaries taken as a whole since
the end of the most recent fiscal year for which such audited financial
statements have been furnished other than as has been previously
disclosed by the Company to the Purchasers for any changes through
March 13, 2003. The Company is not aware of any facts that
(individually or in the aggregate) would result in any material change
in the Business Plan. The Business Plan was prepared on the basis of
assumptions (all of which were made by the Company in good faith), and
reflect the reasonable estimates of the Company of the financial
condition, results of operations and other information projected
therein.
2E. ACTIONS PENDING. Except as described in reasonable detail on
Schedule 2E, there is no action, suit, investigation or proceeding pending or,
to the knowledge of the Company, threatened against the Company or any of its
Subsidiaries, or any properties or rights of the Company or any of its
Subsidiaries, by or before any court, arbitrator or administrative or
governmental body which could be reasonably expected to have a Material Adverse
Effect.
2F. OUTSTANDING DEBT. Neither the Company nor any of its Subsidiaries
has outstanding any Debt except as permitted by paragraph 6A(2) of the Original
NPAs (after giving effect to the Third Amendment). There exists no default under
the provisions of any instrument (as defined in the UCC) or agreement evidencing
Debt of the Company or any of its Subsidiaries in an amount greater than
$250,000 or of any agreement relating thereto (it being understood that the
representation and warranty in this sentence is made after giving effect to the
April 2002 Modification and the amendments prior thereto).
2G. TITLE TO PROPERTIES. The Company has and each of its Subsidiaries
has good, marketable and indefeasible title to its respective real properties
(other than properties which it leases) and good title to all of its other
respective properties and assets, including the properties and assets reflected
in the most recent audited balance sheet referred to in paragraph 2D of this
Third Amendment (other than properties and assets disposed of (x) in the
ordinary course of business, (y) in connection with the sale of the Brookings
regional distribution center, or (z) pursuant to the Designated Sale-Leaseback
Transaction), subject to no Lien of any kind except Liens permitted by paragraph
6A(1) of the Original NPAs. All leases necessary in any material respect for the
conduct of the respective businesses of the Company and its Subsidiaries are
valid
8
and subsisting and are in full force and effect. The security interests granted
under the Security Agreement by the Company and its Subsidiaries (the "Security
Interests") are granted as security only and shall not subject the Collateral
Agent or any holder of the Notes to, or transfer or in any way affect or modify,
any obligation or liability of the Company or any other Debtor (as defined in
the Security Agreement) with respect to any of the Collateral (as defined in the
Security Agreement) or any transaction in connection therewith. The Security
Interests constitute valid security interests under the Uniform Commercial Code
as in effect from time to time in the State of Illinois ("UCC") securing the
Liabilities (as defined in the Security Agreement). The Security Interests
constitute perfected security interests in the Collateral (as defined in the
Security Agreement) (except inventory in transit) to the extent that a security
interest therein may be perfected by filing pursuant to the UCC, prior to all
other liens, claims and rights of others therein except for Permitted Liens (as
defined in the Security Agreement).
2H. TAXES. The Company has and each of its Subsidiaries has filed all
federal, state and other tax returns which are required to be filed, and each
has paid all taxes as shown on such returns and on all assessments received by
it to the extent that such taxes have become due, except such unfiled returns
and unpaid taxes (i) as are being contested in good faith by appropriate
proceedings for which adequate reserves have been established in accordance with
GAAP or (ii) the non-filing or non-payment of which (a) could not be reasonably
expected to have a Material Adverse Effect and (b) does not result in the
creation of any Lien other than Liens permitted by paragraph 6A(l)(i) of the
Original NPAs.
2I. CONFLICTING AGREEMENTS AND OTHER MATTERS. Neither the Company nor
any of its Subsidiaries is a party to any contract or agreement or subject to
any charter or other corporate restriction which could have a Material Adverse
Effect. Neither the execution nor delivery of this Agreement, the Other
Agreements, the Guaranty, the Collateral Documents, the Notes or any of the
other Note Documents, nor the offering, issuance and sale of the Notes, nor
fulfillment of nor compliance with the terms and provisions hereof and thereof
and of the Notes will conflict with, or result in a breach of the terms,
conditions or provisions of, or constitute a default under, or result in any
violation of, or result in the creation of any Lien (other than the Liens
created by the Collateral Documents) upon any of the properties or assets of the
Company or any of its Subsidiaries pursuant to, the charter or by-laws of the
Company or any of its Subsidiaries, any award of any arbitrator or any agreement
(including any agreement with stockholders), instrument, order, judgment,
decree, statute, law, rule or regulation to which the Company or any of its
Subsidiaries is subject. Neither the Company nor any of its Subsidiaries is a
party to, or otherwise subject to any provision contained in, any instrument
evidencing Indebtedness of the Company or such Subsidiary, any agreement
relating thereto or any other contract or agreement (including its charter)
which limits the amount of, or otherwise imposes restrictions on the incurring
of, Debt of the Company of the type to be evidenced by the Notes except as set
forth in the agreements listed in Schedule 2I attached hereto (as such Schedule
2I may have been modified from time to
9
time by written supplements thereto delivered by the Company and accepted in
writing by the Required Holders).
2J. ERISA. No contribution required to have been made to any Plan by
the Company or any Subsidiary under the provisions of the Plan or ERISA remains
unpaid and no accumulated funding deficiency (as defined in section 302 of ERISA
and section 412 of the Code), whether or not waived, exists with respect to any
Plan (other than a Multiemployer Plan). No liability to the PBGC has been or is
expected by the Company or any ERISA Affiliate to be incurred with respect to
any Plan (other than a Multiemployer Plan) by the Company, any Subsidiary or any
ERISA Affiliate which has caused or could cause a Material Adverse Effect. None
of the Company, any Subsidiary or any ERISA Affiliate has incurred or presently
expects to incur any withdrawal liability under Title IV of ERISA with respect
to any Multiemployer Plan which has caused or could cause a Material Adverse
Effect.
2K. GOVERNMENTAL CONSENT. Neither the nature of the Company or of any
Subsidiary, nor any of their respective businesses or properties, nor any
relationship between the Company or any Subsidiary and any other Person, nor any
circumstance in connection with the offering, issuance, sale or delivery of the
Notes is such as to require any authorization, consent, approval, exemption or
any action by or notice to or filing with any court or administrative or
governmental body (other than routine filings after the Effective Date for any
Notes with the Securities and Exchange Commission and/or state Blue Sky
authorities) in connection with the execution and delivery of this Agreement,
the offering, issuance, sale or delivery of the Notes or fulfillment of or
compliance with the terms and provisions hereof or of the Notes.
2L. ENVIRONMENTAL COMPLIANCE. The Company and its Subsidiaries and all
of their respective properties and facilities have complied at all times and in
all respects with all Environmental Laws, except, in any such case, where
failure to so comply could not reasonably be expected to result in a Material
Adverse Effect.
2M. SECTION 144A. The Notes are not of the same class as securities, if
any, of the Company listed on a national securities exchange registered under
Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer
quotation system.
2N. STATUS UNDER CERTAIN STATUTES. Neither the Company nor any
Subsidiary is subject to regulation under the Investment Company Act of 1940, as
amended, the Public Utility Holding Company Act of 1935, as amended, the
Interstate Commerce Act, as amended, or the Federal Power Act, as amended.
2O. PRIORITY OF NOTES; BENEFITED OBLIGATIONS. The Notes constitute
"Superior Indebtedness" as such term is defined in the Company's Promissory
(subordinated) Notes, the form of which is attached to the April 2002
Modification as Exhibit A and the Subordinated Debt is subordinated to the
Indebtedness owing from
10
time to time by the Company to the holders of the Notes in connection with this
Agreement.
2P. LICENSES, PERMITS, ETC.
Except as disclosed in Schedule 2P,
(i) the Company and its Subsidiaries own or possess all
licenses, permits, franchises, authorizations, patents, copyrights, service
marks, trademarks and trade names, or rights thereto, that individually or in
the aggregate are Material, without known conflict with the rights of others;
(ii) to the best knowledge of the Company, no product of the
Company infringes in any material respect any license, permit, franchise,
authorization, patent, copyright, service mark, trademark, trade name or other
right owned by any other Person; and
(iii) to the best knowledge of the Company, there is no
Material violation by any Person of any right of the Company or any of its
Subsidiaries with respect to any patent, copyright, service mark, trademark,
trade name or other right owned or used by the Company or any of its
Subsidiaries.
SECTION 3. Effectiveness. The amendments described in Section 1 above
shall become effective as of the date upon which each Purchaser has received the
following (the "Third Amendment Effective Date"):
(a) To the extent due and payable, payment of all costs and
expenses of such Purchaser (including the reasonable fees and disbursements of
legal counsel (Bell, Boyd & Lloyd LLC) to the Purchasers) in connection with
this Third Amendment and all prior negotiations and documentation;
(b) A copy of this Third Amendment duly executed by each party
hereto;
(c) A copy of each of the amendments to the BA Credit
Agreements set forth as Exhibit A, the Prudential Agreement set forth as Exhibit
B, the "Operative Documents" (each as defined in the Intercreditor Agreement)
set forth as Exhibit C, including, without limitation, the extension of the
"Synthetic Lease", each certified as being in full force and effect and each
being in form and substance reasonably satisfactory to the Purchasers and all
ancillary documents in connection therewith, including the Confirmation (as
attached to the Second Amendment to the BA Credit Agreements);
(d) Such other documents or certificates as any Purchaser may
reasonably request; and
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(e) Evidence reasonably satisfactory to the Purchasers that
the appropriate parties to the other Financing Agreements have consented to this
Third Amendment; and
(f) Evidence reasonably satisfactory to the Purchasers that
all corporate and other proceedings shall have occurred.
SECTION 4. Affirmation of Guaranties. Each of the Guarantors hereby
consents to the terms of this Third Amendment in its capacity as a guarantor and
agrees that the terms of this Third Amendment shall not affect in any way its
obligations and liabilities under its Guaranty or any other Collateral Document
to which it is a party, all of which obligations and liabilities shall remain in
full force and effect and each of which is hereby reaffirmed.
SECTION 5. Further Assurances. Upon the request of the Purchasers, the
Company agrees to provide or cause its Subsidiaries to provide to the Purchasers
such additional amendments, consents, reaffirmations and ancillary documentation
as necessary or advisable, in the sole reasonable discretion of the Majority
Holders, to ensure that the Collateral Documents (as defined in the
Intercreditor Agreement) are in full force and effect in all respects.
SECTION 6. Reference to and Effect on Original NPAs. Upon the
effectiveness of this Third Amendment as set forth in Section 3 above, each
reference to the Original NPAs (also referenced in certain other Financing
Agreements as the Senior Note Agreements or the Private Placement Agreements) in
any other document, instrument or agreement shall mean and be a reference to
such agreement as modified by this Third Amendment. Except as specifically set
forth in and in conformity with Section 1 above, each Original NPA shall remain
in full force and effect and each is hereby ratified and confirmed in all
respects.
SECTION 7. Waiver. Nothing contained herein shall be construed as a
waiver of or consent to any violation of the Original NPAs or any Default or
Event of Default under the Original NPAs.
SECTION 8. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY,
THE LAW OF THE STATE OF NEW YORK, EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW
IN SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION
OTHER THAN SUCH STATE.
SECTION 9. WAIVER OF JURY TRIAL. EACH OF THE COMPANY AND EACH HOLDER OF
NOTES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT
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OF OR RELATING TO THIS AMENDMENT, THE ORIGINAL NPAS, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 10. Counterparts; Section Titles. This Third Amendment 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 when taken together shall constitute
but one and the same instrument. The section titles contained in this Third
Amendment are and shall be without substance, meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
SECTION 11. Consents and Waiver. Notwithstanding any provision in the
Original NPAs to the contrary, the Purchasers consent to the amendments to the
Financing Agreements set forth as Exhibits A, B and C hereto.
[SIGNATURES ON FOLLOWING PAGE]
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* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
ALLSTATE INSURANCE COMPANY
By: /s/ BILL SCHMIDT
----------------------------------
Name: Bill Schmidt
-----------------------------
Title: Authorized Signatory
----------------------------
By: /s/ JERRY D. ZINKULA
----------------------------------
Name: Jerry D. Zinkula
-----------------------------
Title: Authorized Signatory
----------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ BILL SCHMIDT
----------------------------------
Name: Bill Schmidt
-----------------------------
Title: Authorized Signatory
----------------------------
By: /s/ JERRY D. ZINKULA
----------------------------------
Name: Jerry D. Zinkula
-----------------------------
Title: Authorized Signatory
----------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
KEYPORT LIFE INSURANCE COMPANY
BY STEIN ROE & FARNHAM INCORPORATED AS AGENT
By: /s/ RICHARD A. HEGWOOD
----------------------------------
Name: Richard A. Hegwood
-----------------------------
Title: Senior Vice President
----------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
THRIVENT FINANCIAL FOR LUTHERANS F/K/A AID ASSOCIATION FOR LUTHERANS
By: /s/ GLEN J. VANIC
----------------------------------
Name: Glen J. Vanic
-----------------------------
Title: Portfolio Manager
----------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
LIBRA SECURITIES, LLC
By: /s/ JESS M. RAVICH
----------------------------------
Name: Jess M. Ravich
-----------------------------
Title: CEO
----------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
FEDERATED LIFE INSURANCE COMPANY
By: /s/ MARK A. HOOD
----------------------------------
Name: Mark A. Hood
-----------------------------
Title: Vice President
----------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
FEDERATED MUTUAL INSURANCE COMPANY
By: /s/ MARK A. HOOD
----------------------------------
Name: Mark A. Hood
-----------------------------
Title: Vice President
----------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
MODERN WOODMEN OF AMERICA
By: /s/ MICHAEL E. DAU
------------------------------------
Name: Michael E. Dau
-------------------------------
Title: Manager, Securities Division
------------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
AMERITAS LIFE INSURANCE CORP.
BY AMERITAS INVESTMENT ADVISORS, INC. AS AGENT
By: /s/ ANDREW S. WHITE
----------------------------------
Name: Andrew S. White
-----------------------------
Title: Vice President
----------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
NATIONAL GUARDIAN LIFE INSURANCE COMPANY
By: /s/ R. A. MUCCI
----------------------------------
Name: R. A. Mucci
-----------------------------
Title: Vice President & Treasurer
----------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
FOOTHILL PARTNERS IV, L.P.
By: /s/ R. MICHAEL BOHANNON
----------------------------------
Name: R. Michael Bohannon
-----------------------------
Title: Managing Member
----------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
EVEREST CAPITAL SENIOR DEBT FUND, LP
By: /s/ MALCOLM STOTT
----------------------------------
Name: Malcolm Stott
-----------------------------
Title: Chief Operating Officer
----------------------------
By: /s/ ERIC GRAHAM
----------------------------------
Name: Eric Graham
-----------------------------
Title: Principal
----------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
RAVICH FAMILY FOUNDATION
By: /s/ JESS M. RAVICH
----------------------------------
Name: Jess M. Ravich
-----------------------------
Title: President
----------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
RAVICH REVOCABLE TRUST OF 1989
By: /s/ JESS M. RAVICH
----------------------------------
Name: Jess M. Ravich
-----------------------------
Title: Trustee
----------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
RAVICH CHILDREN PERMANENT TRUST DATED MAY 11, 1995
By: /s/ KEENAN WOLENS
----------------------------------
Name: Keenan Wolens
-----------------------------
Title: Trustee
----------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
JEFFREY D. BENJAMIN
By:
-------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
CANYON VALUE REALIZATION FUND, L.P.
BY CANPARTNERS INVESTMENTS III, L.P.,
AS GENERAL PARTNER, BY CANYON CAPITAL
ADVISORS, LLC, AS GENERAL PARTNER
By: /s/ JOSHUA S. FRIEDMAN
----------------------------------
Name: Joshua S. Friedman
-----------------------------
Title: Managing Director
----------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
CANYON VALUE REALIZATION FUND (CAYMAN), LTD.
By: /s/ JOSHUA S. FRIEDMAN
----------------------------------
Name: Joshua S. Friedman
-----------------------------
Title: Managing Director
----------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
CANYON VALUE REALIZATION MAC-18, LTD.
BY CANYON CAPITAL ADVISORS, LLC, AS
INVESTMENT ADVISOR
By: /s/ JOSHUA S. FRIEDMAN
----------------------------------
Name: Joshua S. Friedman
-----------------------------
Title: Managing Director
----------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
CMS/CANYON DOF SUBPARTNERSHIP, L.P.
By: /s/ JOSHUA S. FRIEDMAN
----------------------------------
Name: Joshua S. Friedman
-----------------------------
Title: Managing Director
----------------------------
* * * * *
If you are in agreement with the foregoing, please sign this Amendment and
return it to the Company, whereupon the foregoing shall become a binding
agreement between you and the Company.
Very truly yours,
TRUSERV CORPORATION
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
RICHARD M. COPPERSMITH
By: /s/ RICHARD M. COPPERSMITH
----------------------------
Name: Richard M. Coppersmith
GENERAL PAINT & MANUFACTURING COMPANY, as a Guarantor
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
TRUSERV ACCEPTANCE COMPANY, as a Guarantor
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
TRUSERV LOGISTICS COMPANY, as a Guarantor
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
MARYGREEN, LLC, as a Guarantor
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
TRUE VALUE.COM CORPORATION, as a Guarantor
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
ADVOCATE SERVICES, INC., as a Guarantor
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
SERVISTAR PAINT COMPANY, as a Guarantor
By: /s/ BARBARA L. WAGNER
-----------------------
Name: Barbara L. Wagner
Title: Vice President
SCHEDULE 1
PURCHASERS
Allstate Insurance Company
Allstate Life Insurance Company
Ameritas Life Insurance Corp.
Jeffrey D. Benjamin
Canyon Value Realization Fund (Cayman), Ltd.
Canyon Value Realization Fund, L.P.
Canyon Value Realization MAC-18, Ltd.
CMS/Canyon DOF Subpartnership, L.P.
Richard M. Coppersmith
Everest Capital Senior Debt Fund, LP
Federated Life Insurance Company
Federated Mutual Insurance Company
Foothill Partners IV, L.P.
Keyport Life Insurance Company c/o Stein Roe
Libra Securities, LLC
Modern Woodmen of America
National Guardian Life Insurance Co.
Ravich Children Permanent Trust dated 5/11/95
Ravich Family Foundation
Ravich Revocable Trust of 1989
Thrivent Financial for Lutherans f/k/a Aid Association for Lutherans
SCHEDULE 2A
TO THIRD AMENDMENT
SUBSIDIARY STOCK WITH A PREFERENCE
None.
SCHEDULE 2C
TO THIRD AMENDMENT
LEGAL RESTRICTIONS
The Financing Agreements (as defined in the Intercreditor Agreement).
SCHEDULE 2E
TO THIRD AMENDMENT
ACTIONS PENDING
None.
SCHEDULE 2I
TO THIRD AMENDMENT
RESTRICTIVE AGREEMENTS
1. Shelf Agreement (as defined in the Intercreditor Agreement).
2. Credit Agreement (as defined in the Intercreditor Agreement).
3. "Operative Documents" referred to in the Synthetic Lease Guaranty (as defined
in the Intercreditor Agreement).
SCHEDULE 2P
TO THIRD AMENDMENT
LICENSES, PERMITS
None.
EXHIBIT A
TO THIRD AMENDMENT
AMENDMENT TO BA CREDIT AGREEMENTS
EXHIBIT B
TO THIRD AMENDMENT
AMENDMENT TO PRUDENTIAL AGREEMENT
EXHIBIT C
TO THIRD AMENDMENT
AMENDMENT TO SYNTHETIC LEASE