EXHIBIT 4-U
TRUSERV CORPORATION
$105,000,000
AMENDED AND RESTATED SENIOR SECURED NOTES DUE 2008
----------
SECOND AMENDMENT TO THE
AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
DATED AS OF DECEMBER 30, 2002
TRUSERV CORPORATION
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
December 30, 2002
To Each of the Purchasers
Listed in the Attached Schedule 1
(each, a "PURCHASER")
Ladies and Gentlemen:
Re: SECOND AMENDMENT TO THE AMENDED AND RESTATED NOTE PURCHASE
AGREEMENTS (the "SECOND AMENDMENT")
The undersigned, TruServ Corporation, a Delaware corporation formerly
known as ▇▇▇▇▇▇ & 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, and 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 amended by
the Amendment to the Amended and Restated Note Purchase Agreements
each dated as of April 11, 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 Second
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.
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:
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SECTION 1. Amendment. From and after the date this Second Amendment
becomes effective in accordance with its terms, each Original NPA shall be
amended as follows:
1.1 Paragraph 5J Real Estate Documents of the Original NPAs is amended by
replacing the last paragraph therein in clause (b) with the following new
paragraph:
Additionally, in the case of any real property leased by the Company
or any Guarantor, the Company shall use its best efforts to, or shall
cause such Guarantor to use its best efforts to, provide a consent, in
form and substance satisfactory to the Collateral Agent, from the owner
and each mortgagee of such property (a) consenting to the Mortgage in
favor of the Collateral Agent with respect to such property and (b)
waiving any landlord's Lien in respect of personal property kept at the
premises subject to such lease; provided, however, consents in connection
with the Designated Sale-Leaseback Transactions shall not be required.
1.2 Paragraph 5O(3) of the Original NPAs is amended by replacing the first
sentence with the following:
For so long as the Intercreditor Agreement is in effect, amounts required
to be prepaid under this paragraph 5O shall be paid (subject to the true-up
provisions set forth therein), shared and distributed in accordance with the
Intercreditor Agreement and, to the extent provided for in the Intercreditor
Agreement, the Company's obligation to pay any Make-Whole Amount may be paid
prior to the Final True-Up Date (as defined in the Intercreditor Agreement) by
the issuance of Make-Whole Notes.
1.3 Paragraph 6A(1) Liens of the Original NPAs is amended by replacing
clauses (x) and (xi) therein with the following:
(x) (i) Liens in favor of the Collateral Agent, provided that the
Intercreditor Agreement shall be in full force and effect and (ii) such
Liens on the Special Company Account solely to the extent such Liens
secure amounts due and owing Bank of America, N.A. for its services
rendered solely in connection with routine administration of such account,
provided that the Security Agreement and the Intercreditor Agreement shall
both be in full force and effect;
(xi) any interest or title of a lessor in property subject to any
lease other than (i) subject to clause (vii) above, a Capitalized Lease
Obligation, (ii) a lease entered into as part of a sale and leaseback
transaction (other than the Designated Sale-Leaseback Transaction;
provided, that such interest or title attaches only to the property being
leased in connection therewith) or (iii) except as permitted by clause
(xv) below, a Synthetic Lease;
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1.4 Paragraph 6A(3) Sale of Assets of the Original NPAs is amended in its
entirety to read as follows:
6A(3)(i). SALE OF ASSETS. Sell, lease, assign, transfer or otherwise
dispose of value in the Company or any Subsidiary to any Person (other
than the Company or a Subsidiary) of any assets of the Company or any
Subsidiary (an "Asset Sale") (it being understood that an Asset Sale shall
include (A) the sale and/or issuance of stock of any Subsidiary to Persons
other than the Company or any wholly-owned Subsidiary and (B) any dilution
of ownership arising from a merger or consolidation of Subsidiaries as
permitted by paragraph 6A(3)(ii)), other than in the ordinary course of
business, unless the Net Cash Proceeds of all such assets sold, leased or
otherwise disposed of outside of the ordinary course of business during
the most recent 36-month rolling period when added together, without
duplication, with any assets then proposed to be sold outside of the
ordinary course of business, do not exceed $10,000,000. Excluded from the
foregoing limitation are the disposition of assets the proceeds of which
are, within 180 days of such disposition, either (i) reinvested in
property or assets for use in the existing business of the Company and its
Subsidiaries or paid to the Collateral Agent to be distributed in
accordance with the Intercreditor Agreement, or (ii) applied on a pro rata
basis to prepay Senior Funded Debt, including, without limitation, the
Notes pursuant to paragraph 4B hereof, including the Make-Whole Amount
provided for in said paragraph 4B. Notwithstanding the foregoing, TruServ
Canada Cooperative Inc. may issue and sell shares of its stock in the
ordinary course of business consistent with its practices as of April
13,1992. Notwithstanding the foregoing, an Asset Sale shall not include
(i) the sale, lease, assignment, transfer or other disposition of value
(each a "DISPOSITION") of inventory in the ordinary course of business,
(ii) the Disposition of inventory or receivables to a Guarantor or to the
Company, (iii) leases or subleases entered into in the ordinary course of
business, (iv) the licensing of intellectual property by the Company or
any Subsidiary in the ordinary course of business (so long as such
licensing does not prevent the Company or such Subsidiary from using
intellectual property material to the business of the Company or such
Subsidiary) , (v) any sublease of, or assignment by the Company of its
interest as lessee in, properties sold pursuant to a Designated
Sale-Leaseback Transaction provided that any such sublease or assignment
shall be on an arm's length basis, reasonable and normal commercial terms,
and no less frequent than quarterly payment of rent or (vi) the
Disposition of other assets having a value not exceeding $250,000 in the
aggregate in any fiscal year.
1.5 Paragraph 6B(h) Restricted Investments of the Original NPAs is amended
by replacing the clause with the following:
(h) (i) maintain the Special Company Account; provided that as of the
close of business on any day on which the Total Outstandings (as defined
in the BA Credit
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Agreement) are greater than zero or during the existence of an Event of
Default after the commencement of an Enforcement (as defined in the
Intercreditor Agreement), the amount maintained in the Special Company
Account shall not be greater than zero; and (ii) maintain other deposit
accounts with financial institutions in the ordinary course of business;
provided that the amount maintained in deposit accounts with financial
institutions other than the Lenders (as defined in the BA Credit
Agreement) shall not exceed (x) in the case of any one such account,
$200,000 for more than three consecutive Business Days; and (y) in the
case of all such accounts in the aggregate, $600,000 for more than two
consecutive Business Days;
1.6 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:
Fiscal Period(s) ending on or about Ratio
----------------------------------- --------
four quarters ending December 2002 0.70:1.0
four quarters ending March 2003 0.70:1.0
four quarters ending June 2003 0.65:1.0
four quarters ending September 2003 0.65:1.0
four quarters ending December 2003 0.90:1.0
four quarters ending March 2004 0.90:1.0
four quarters ending June 2004 0.90:1.0
each four quarter period thereafter 0.90:1.0
1.7 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:
Fiscal Period(s) ending on or about Amount
----------------------------------- ------------
twelve months ended 12/31/02 $100,000,000
twelve months ended 1/31/03 $ 95,000,000
twelve months ended 2/28/03 $ 95,000,000
twelve months ended 3/31/03 $ 90,000,000
twelve months ended 4/30/03 $ 90,000,000
twelve months ended 5/31/03 $ 85,000,000
twelve months ended 6/30/03 $ 80,000,000
twelve months ended 7/31/03 $ 75,000,000
twelve months ended 8/31/03 $ 70,000,000
twelve months ended 9/30/03 $ 70,000,000
twelve months ended 10/31/03 $ 70,000,000
twelve months ended 11/30/03 $ 70,000,000
twelve months ended 12/31/03 $ 70,000,000
twelve months ended 1/31/04 $ 70,000,000
twelve months ended 2/29/04 $ 70,000,000
twelve months ended 3/31/04 $ 70,000,000
twelve months ended 4/30/04 $ 70,000,000
twelve months ended 5/31/04 $ 70,000,000
twelve months ended 6/30/04 $ 70,000,000
and the twelve month period ended on the
last day of each month thereafter $ 70,000,000
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1.8 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:
Fiscal Period(s) ending on or about Amount
----------------------------------- --------------
twelve months ended 12/31/02 $1,975,000,000
twelve months ended 1/31/03 $1,820,000,000
twelve months ended 2/28/03 $1,780,000,000
twelve months ended 3/31/03 $1,740,000,000
twelve months ended 4/30/03 $1,725,000,000
twelve months ended 5/31/03 $1,740,000,000
twelve months ended 6/30/03 $1,720,000,000
twelve months ended 7/31/03 $1,715,000,000
twelve months ended 8/31/03 $1,710,000,000
twelve months ended 9/30/03 $1,700,000,000
twelve months ended 10/31/03 $1,715,000,000
twelve months ended 11/30/03 $1,695,000,000
twelve months ended 12/31/03 $1,700,000,000
twelve months ended 1/31/04 $1,700,000,000
twelve months ended 2/29/04 $1,695,000,000
twelve months ended 3/31/04 $1,690,000,000
twelve months ended 4/30/04 $1,690,000,000
twelve months ended 5/31/04 $1,680,000,000
twelve months ended 6/30/04 $1,670,000,000
and the twelve month period ended on the
last day of each month thereafter $1,670,000,000
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1.9 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:
Fiscal Period(s) Ratio
--------------------------------------------- --------
four quarters ending December 2002 1.75:1.0
four quarters ending March 2003 1.75:1.0
four quarters ending June 2003 2.00:1.0
four quarters ending September 2003 2.00:1.0
four quarters ending December 2003 3.00:1.0
four quarters ending March 2004 3.00:1.0
four quarters ending June 2004 3.00:1.0
and the four quarter period ended on the last
day of each month thereafter 3.00:1.0
1.10 Paragraph 6N Maximum Capital Expenditures of the Original NPAs is
amended by adding the following proviso at the end thereof:
; provided that the aggregate amount of Capital Expenditures made
during any fiscal year ending after December 31, 2002 may be
increased by an amount equal to the lesser of (x) $2,000,000 and (y)
the excess of the maximum amount of Capital Expenditures permitted
to be made in the prior fiscal year over the actual amount of
Capital Expenditures made during such prior fiscal year. Such
increased permitted Capital Expenditures may be made in any fiscal
quarter or fiscal quarters of such fiscal year.
1.11 Paragraph 6O Adjustments to Financial Covenants of the Original NPAs
is amended in its entirety to read as follows:
6O. ADJUSTMENTS TO FINANCIAL COVENANTS. The financial covenants
contained herein may be adjusted upon the mutual agreement of the Company
and the Purchasers to reflect Asset Sales not contemplated in the Business
Plan, including but not limited to sale-leaseback transactions; provided,
however, that if the parties cannot reach agreement within sixty days of
the commencement of their negotiations, such covenant shall remain
unchanged. If the sale-leaseback of
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the regional distribution center located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇ (the "Manchester RDC") does not occur by February 15, 2003,
the Company shall cause the financial covenant levels set forth in
paragraph 6 to be amended to reflect the exclusion of the Manchester RDC
sale-leaseback from the Business Plan in a manner satisfactory to the
Majority Holders in their sole discretion, and such financial covenant
levels will be established in a manner reasonably satisfactory to the
Majority Holders on the basis of the same methodologies used in preparing
the covenant levels incorporated in the Second Amendment.
1.12 Paragraph 7A(xix) Acceleration of the Original NPAs is amended by
replacing the clause with the following:
(xix) the Company shall, on any date, not have in effect the BA Credit
Agreements providing for a revolving loan facility to the Company with a
commitment in the amount of at least $200,000,000 as such amount may be
reduced by the application of Interim Proceeds as provided in the
Intercreditor Agreement and as such amount may be voluntarily reduced by
the Company in accordance with the BA Credit Agreements so long as
voluntary reductions of the revolving loan facility do not exceed
$50,000,000 in the aggregate; provided, that the commitment reductions
provided for by Section 2.4.2(a) of the Credit Agreement shall be deemed
voluntary reductions for purposes of this Paragraph 7A(xix); or
1.13 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:
"ADJUSTED CASH FLOW" shall mean, with respect to any period,
Consolidated Net Earnings for such period less (a) the sum of (i) to
extent not already deducted in the calculation of Consolidated Net
Earnings, gains from Asset Sales realized during such period, (ii) Capital
Expenditures during such period, (iii) amortization of all Indebtedness
(including amortization of Indebtedness from payments of Excess Cash Flow
but excluding amortization of Indebtedness from the proceeds of Asset
Sales) for such period, (iv) patronage dividends accrued in the current
fiscal year to be paid in the following fiscal year, (v) any increase in
restricted cash during such period, (vi) for the period ended December 31,
2002, $7,500,000 and (vii) Restructuring Charges taken during such period;
plus (b) the sum of (i) to the extent deducted in the calculation of
Consolidated Net Earnings, losses from Asset Sales realized during such
period, (ii) depreciation and amortization expense for such period,
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(iii) non-cash income tax expense for such period and (iv) any decrease in
restricted cash during such period.
"BUSINESS PLAN" shall mean the business plan of the Company, which
was delivered by the Company to the Purchasers on December 18, 2002;
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.
"DESIGNATED SALE-LEASEBACK TRANSACTION" means the sale by the
Company of the regional distribution centers listed on Schedule
6A(3)(i)(v) and the concurrent lease, as lessee, of such properties by the
Company and/or one or more Subsidiaries pursuant to documentation
substantially in the form previously delivered to the Purchasers.
"INTERCREDITOR AGREEMENT" shall mean the First Amended and Restated
Intercreditor Agreement dated as of April 11, 2002 among Bank of America,
N.A. as agent under the BA Credit Agreements, the Collateral Agent, the
Purchasers, The Prudential Insurance Company of America and various other
parties in the form of Exhibit G, as amended as of December 30, 2002 in
the form attached as Exhibit G-1, as amended from time to time in
accordance with its terms.
"MANCHESTER RDC" shall have the meaning set forth in Paragraph 6O.
"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, and April 11, 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 ▇▇▇▇▇▇ & Company, the predecessor to the Company, and Prudential,
each as amended from time to time.
"SECOND AMENDMENT" shall mean the Second Amendment to the Amended
and Restated Senior Note Purchase Agreement dated as of December 30, 2002
between the Company and the Purchasers who are signatories thereto.
"SECURITY AGREEMENT" shall mean the Security Agreement among the
Company, various Subsidiaries and the Collateral Agent, dated April 14,
2000 and as amended by a First Amendment to the Security Agreement dated
as of April 11, 2002, in the form of Exhibit I, and a Second Amendment to
the Security Agreement as of December 30, 2002 in the form of Exhibit I-1,
as
9
amended from time to time in accordance with its terms and the terms of
the Intercreditor Agreement.
"SPECIAL COMPANY ACCOUNT" shall have the meaning given in the
Security Agreement.
1.14 Amendment to Exhibits. Exhibit G--the Intercreditor Agreement to the
Original NPA is supplemented with Exhibit G-1--the First Amendment to the
Intercreditor Agreement attached to this Second Amendment. Exhibit I--the
Security Agreement to the Original NPA is supplemented with Exhibit G-1--the
December 2002 Amendment to the Security Agreement attached to this Second
Amendment.
1.15 Amendment to Schedules. Schedule 1--Purchasers is deleted in its
entirety and replaced with Schedule 1--Purchasers attached to this Second
Amendment. The Original NPAs are further amended by the supplement of Schedule
6A(3)(i)(v)--Scheduled RDC Sales attached to this Second Amendment.
1.16 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 Second 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 First 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
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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 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 Second 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 Second 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
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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), 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 December 30,
2002. 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 Second Amendment). There exists no default under the
provisions of any instrument (as defined in the UCC) or agreement evidencing
Debt of the Company or
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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 Second
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 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
13
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 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.
14
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 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 "Second 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 (▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLC) to the Purchasers) in connection with this
Second Amendment and all prior negotiations and documentation;
15
(b) A copy of this Second Amendment duly executed by each party
hereto;
(c) A copy of each of the amendments to the BA Credit Agreements,
the Prudential Agreement, the "Operative Documents" (each as defined in the
Intercreditor Agreement) and the Security Agreement, 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 First Amendment to the
BA Credit Agreements);
(d) A copy of the First Amendment to the Intercreditor Agreement
duly executed by all the parties thereto and in form and substance satisfactory
to the Purchasers;
(e) A copy of those certain leases, deeds and a Closing Agreement,
dated as of December 30, 2002, duly executed by ▇▇▇▇▇▇▇ and Bolt (DE) Limited
Partnership and all ancillary documents in connection therewith, including such
evidence as reasonably satisfactory to the Purchasers to substantiate the
execution and completion of the Designated Sale-Leaseback Transaction;
(f) Such other documents or certificates as any Purchaser may
reasonably request; and
(g) Evidence reasonably satisfactory to the Purchasers that all
corporate and other proceedings shall have occurred.
SECTION 4. 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 5. Reference to and Effect on Original NPAs. Upon the
effectiveness of this Second 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 Second 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.
16
SECTION 6. 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 7. 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 8. 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 OF OR RELATING TO THIS AMENDMENT, THE ORIGINAL NPAs, THE
NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 9. Counterparts; Section Titles. This Second 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 Second
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 10. Consents and Waiver. Notwithstanding any provision in the
Original NPAs to the contrary, the Purchasers consent to (a) the amendments to
the Financing Agreements set forth as Exhibits G-1 and I-1 to the Original NPAs
and Exhibits A, B and C hereto (b) the consummation of the Designated
Sale-Leaseback Transaction and (c) the release of collateral by the Collateral
Agent to the extent subject to the Designated Sale-Leaseback Transaction.
Notwithstanding any provision in the Original NPAs to the contrary, the
Purchasers hereby confirm that the Make-Whole Amount (as defined in the
Intercreditor Agreement) due with respect to the Designated Sale-Leaseback
Transaction shall be the Make-Whole Original Amount (as defined in the
Intercreditor Agreement) and the Purchasers hereby waive any rights to any
Make-Whole Delta Obligations (as defined in the Intercreditor Agreement) in
connection with prepayments required in connection with the Designated
Sale-Leaseback Transaction.
[SIGNATURES ON FOLLOWING PAGE]
17
* * * * *
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
ALLSTATE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Portfolio Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
[Signature Page to Amendment to Senior Note Purchase Agreement]
* * * * *
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Portfolio Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
[Signature Page to Amendment to Senior Note Purchase Agreement]
* * * * *
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
KEYPORT LIFE INSURANCE COMPANY
BY COLUMBIA MANAGEMENT GROUP AS AGENT
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
[Signature Page to Amendment to Senior Note Purchase Agreement]
* * * * *
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior 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/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Portfolio Manager
[Signature Page to Amendment to Senior Note Purchase Agreement]
* * * * *
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
[Signature Page to Amendment to Senior Note Purchase Agreement]
* * * * *
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
FEDERATED LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
[Signature Page to Amendment to Senior Note Purchase Agreement]
* * * * *
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
FEDERATED MUTUAL INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
[Signature Page to Amendment to Senior Note Purchase Agreement]
* * * * *
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
MODERN WOODMEN OF AMERICA
By: /s/ ▇▇▇▇ ▇. COIN
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer and Investment Manager
[Signature Page to Amendment to Senior Note Purchase Agreement]
* * * * *
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
[Signature Page to Amendment to Senior Note Purchase Agreement]
* * * * *
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
NATIONAL GUARDIAN LIFE INSURANCE COMPANY
By: /s/ ▇. ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President and Treasurer
[Signature Page to Amendment to Senior Note Purchase Agreement]
* * * * *
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
FOOTHILL PARTNERS IV, L.P.
By: /s/ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Member
[Signature Page to Amendment to Senior Note Purchase Agreement]
* * * * *
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
EVEREST CAPITAL SENIOR DEBT FUND, LP
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Operating Officer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Principal
[Signature Page to Amendment to Senior Note Purchase Agreement]
* * * * *
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
▇▇▇▇▇▇ CAPITAL, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member
[Signature Page to Amendment to Senior Note Purchase Agreement]
* * * * *
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
RAVICH REVOCABLE TRUST OF 1989
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Trustee
[Signature Page to Amendment to Senior Note Purchase Agreement]
* * * * *
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
[Signature Page to Amendment to Senior Note Purchase Agreement]
* * * * *
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior 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/ R. C. B. ▇▇▇▇▇▇▇
---------------------------------
Name: R.C.B. ▇▇▇▇▇▇▇
Title: Managing Partner
[Signature Page to Amendment to Senior Note Purchase Agreement]
* * * * *
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
CANYON VALUE REALIZATION FUND (CAYMAN), LTD.
By: /s/ R. C. B. ▇▇▇▇▇▇▇
---------------------------------
Name: R.C.B. ▇▇▇▇▇▇▇
Title: Director
[Signature Page to Amendment to Senior Note Purchase Agreement]
* * * * *
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior 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/ R. C. B. ▇▇▇▇▇▇▇
---------------------------------
Name: R.C.B. ▇▇▇▇▇▇▇
Title: Managing Partner
[Signature Page to Amendment to Senior Note Purchase Agreement]
* * * * *
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
The foregoing Amendment is
hereby accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
[Signature Page to Amendment to Senior Note Purchase Agreement]
SCHEDULE 6A(3)(I)(V)
SCHEDULED RDC SALES
PROPERTY TYPE ADDRESS
-------- ---- -------
Allentown Distribution Center ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Atlanta Distribution Center ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
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Corsicana Distribution Center ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
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Kansas City Distribution Center ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Kingman Distribution Center ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
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Springfield Distribution Center ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
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Woodland Distribution Center ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇
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[Signature Page to Amendment to Senior Note Purchase Agreement]
EXHIBIT G-1
TO ORIGINAL NPAs
AMENDMENT TO INTERCREDITOR AGREEMENT
Please see attached.
EXHIBIT I-1
TO ORIGINAL NPAs
AMENDMENT TO SECURITY AGREEMENT
Please see attached.
SCHEDULE 2A
TO SECOND AMENDMENT
SUBSIDIARY STOCK WITH A PREFERENCE
None.
SCHEDULE 2C
TO SECOND AMENDMENT
LEGAL RESTRICTIONS
The Financing Agreements (as defined in the Intercreditor Agreement).
SCHEDULE 2E
TO SECOND AMENDMENT
ACTIONS PENDING
None.
SCHEDULE 2I
TO SECOND 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 SECOND AMENDMENT
LICENSES, PERMITS
None.
EXHIBIT A
TO SECOND AMENDMENT
AMENDMENT TO BA CREDIT AGREEMENTS
Please see attached.
EXHIBIT B
TO SECOND AMENDMENT
AMENDMENT TO PRUDENTIAL AGREEMENT
Please see attached.
EXHIBIT C
TO SECOND AMENDMENT
AMENDMENT TO SYNTHETIC LEASE
Please see attached.
