EXHIBIT 4-AC
SECOND AMENDMENT
THIS SECOND AMENDMENT dated as of March 13, 2003 (this "Amendment")
amends the Second Amended and Restated Credit Agreement dated as of April 11,
2002 (as previously amended, the "Credit Agreement") among TruServ Corporation
(the "Company"), various financial institutions from time to time party thereto
(the "Lenders") and Bank of America, N.A., as agent for the Lenders (in such
capacity, the "Agent"). Capitalized terms used but not otherwise defined herein
have the respective meanings given to them in the Credit Agreement.
WHEREAS, the Company, the Lenders and the Agent have entered into the
Credit Agreement; and
WHEREAS, the parties hereto desire to amend the Credit Agreement as
more fully set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 Amendments. Effective on (and subject to the occurrence of)
the Amendment Effective Date (as defined below), the Credit Agreement shall be
amended as set forth below:
1.1 Amendment to Definition of "Business Plan". The definition of
"Business Plan" is amended in its entirety to read as follows:
Business Plan means the business plan of the Company which was
delivered by the Company to the Agent on February 14, 2003; provided
that, with respect to financial reports relating to the periods prior
to 2003, "Business Plan" means the Business Plan of the Company dated
March 20, 2002 which was delivered by the Company to the Agent.
1.2 Amendment to Section 7.1. The table set forth in Section 7.1 is
amended in its entirety to read as follows:
Fiscal quarter ending on or about Minimum Fixed Charge
--------------------------------- Coverage Ratio
--------------
December 31, 2002 0.70 to 1
March 31, 2003 0.76 to 1
June 30, 2003 0.73 to 1
September 30, 2003 0.68 to 1
December 31, 2003 1.01 to 1
March 31, 2004 1.10 to 1
June 30, 2004 1.00 to 1
1.3 Amendment to Section 7.14. The table set forth in Section 7.14 is
amended in its entirety to read as follows:
Fiscal quarter ending on or about Minimum Interest
--------------------------------- Coverage Ratio
--------------
December 31, 2002 1.75 to 1
March 31, 2003 1.65 to 1
June 30, 2003 1.75 to 1
September 30, 2003 1.85 to 1
December 31, 2003 2.32 to 1
March 31, 2004 2.58 to 1
June 30, 2004 2.74 to 1
1.4 Amendment to Section 7.15. The table set forth in Section 7.15 is
amended in its entirety to read as follows:
Fiscal period ending on or about Minimum Amount
------------------------------- --------------
December 31, 2002 $1,975,000,000
January 31, 2003 $1,834,400,000
February 28, 2003 $1,795,700,000
March 31, 2003 $1,750,700,000
April 30, 2003 $1,737,300,000
May 31, 2003 $1,750,900,000
June 30, 2003 $1,737,600,000
July 31, 2003 $1,728,800,000
August 31, 2003 $1,724,800,000
September 30, 2003 $1,725,400,000
October 31, 2003 $1,728,000,000
November 30, 2003 $1,709,100,000
December 31, 2003 $1,702,900,000
January 31, 2004 $1,700,000,000
February 29, 2004 $1,697,600,000
March 31, 2004 $1,694,500,000
April 30, 2004 $1,690,300,000
May 31, 2004 $1,682,900,000
June 30, 2004 $1,676,300,000
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1.5 Amendment to Section 7.17. The table set forth in Section 7.17 is
amended in its entirety to read as follows:
Fiscal period ending on or about Minimum Adjusted
-------------------------------- EBITDA
------
December 31, 2002 $100,000,000
January 31, 2003 $ 97,200,000
February 28, 2003 $ 92,400,000
March 31, 2003 $ 87,400,000
April 30, 2003 $ 87,100,000
May 31, 2003 $ 83,900,000
June 30, 2003 $ 78,400,000
July 31, 2003 $ 72,900,000
August 31, 2003 $ 70,300,000
September 30, 2003 $ 68,200,000
October 31, 2003 $ 67,100,000
November 30, 2003 $ 66,000,000
December 31, 2003 $ 68,800,000
January 31, 2004 $ 69,400,000
February 29, 2004 $ 70,100,000
March 31, 2004 $ 73,700,000
April 30, 2004 $ 71,600,000
May 31, 2004 $ 71,700,000
June 30, 2004 $ 73,000,000.
SECTION 2 Representations and Warranties. The Company represents and
warrants to the Agent and the Lenders that, after giving effect hereto, (a) each
representation and warranty set forth in Article V of the
Credit Agreement is
true and correct as of the date of the execution and delivery of this 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, in
the case of the representations and warranties contained in Sections 5.2 and
5.12 of the
Credit Agreement, to the matters disclosed in the waiver letter
dated October 3, 2002 executed by the Lenders, and (b) no Event of Default or
Unmatured Event of Default exists.
SECTION 3 Effectiveness. The amendments set forth in Section 1 above
shall become effective on the date (the "Amendment Effective Date") when the
Agent shall have received the following:
(a) to the extent then billed, all costs and expenses of the Agent in
connection with this Amendment (including reasonable attorneys' fees and charges
and all costs, expenses and charges for a field examination);
(b) counterparts of this Amendment executed by the Company and the
Required Lenders;
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(c) a Confirmation, substantially in the form of Exhibit A, signed by
the Company and each Guarantor; and
(d) evidence that the Company shall have entered into amendments to the
Senior Note Agreements and the Shelf Note Agreement (each as defined in the
Intercreditor Agreement) in form and substance reasonably satisfactory to the
Agent.
SECTION 4 Miscellaneous.
4.1 Continuing Effectiveness, etc. As herein amended, the
Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the Amendment Effective Date, all references in
the
Credit Agreement and the other Loan Documents to "this Agreement", "the
Credit Agreement" or similar terms shall refer to the Credit Agreement as
amended hereby.
4.2 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
4.3 Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of Illinois applicable to contracts made and
to be performed entirely within such state.
4.4 Successors and Assigns. This Amendment shall be binding upon the
Company, the Lenders and the Agent and their respective successors and assigns,
and shall inure to the benefit of the Company, the Lenders and the Agent and the
respective successors and assigns of the Lenders and the Agent.
4.5 Consents. Notwithstanding any provision in the Credit Agreement to
the contrary, the Required Lenders consent to the amendments to the Financing
Agreements set forth as Exhibits B, C and D hereto.
4.6 Further Assurances. Upon the request of the Required Lenders, the
Company agrees to provide and cause its Subsidiaries to provide to the Lenders
such additional amendments, consents, reaffirmations and ancillary documentation
as is necessary or advisable, in the sole reasonable discretion of the Required
Lenders, to ensure that the Collateral Documents are in full force and effect in
all respects.
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Delivered at Chicago, Illinois, as of the day and year first above
written.
TRUSERV CORPORATION
By: /s/ XXXXXXX X. XXXXXX
----------------------------------
Title: Vice President
-------------------------------
BANK OF AMERICA, N.A., as Agent
By: /s/ XXXXXX XXXXXX
----------------------------------
Title: Senior Vice President
-------------------------------
BANK OF AMERICA, N.A., as a Lender
By: /s/ XXXXXX XXXXXX
----------------------------------
Title: Senior Vice President
-------------------------------
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BANK OF MONTREAL
By: /s/ XXXXXXX TURF
---------------------------------
Title: Director
------------------------------
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BANK ONE, NA (Main Office Chicago)
By: /s/ XXXXXXX XXXXXXX
---------------------------------
Title: First Vice President
------------------------------
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ XXXX XXXX
--------------------------------
Title: Vice President
-----------------------------
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WACHOVIA BANK, N.A.
By: /s/ XXXXX XXXXXX
---------------------------------
Title: Director
------------------------------
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THE NORTHERN TRUST COMPANY
By: /s/ XXXX XXXXXXXX
---------------------------------
Title: Vice President
------------------------------
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ABN AMRO BANK N.V.
By:
---------------------------------
Title:
------------------------------
By:
---------------------------------
Title:
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NATIONAL CONSUMER COOPERATIVE BANK
By: /s/ XXXX X. XXXXX
---------------------------------
Title: Managing Director
------------------------------
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UMB BANK, N.A.
By: /s/ XXXXX XXXXXX
---------------------------------
Title: Senior Vice President
------------------------------
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Exhibit A
CONFIRMATION
Dated as of March 13, 2003
To: Bank of America, N.A., individually and as Collateral Agent, and the
the other "Benefited Parties" as defined in the Intercreditor Agreement
referred to below
Please refer to: (a) the First Amended and Restated Intercreditor
Agreement dated as of April 11, 2002 (the "Intercreditor Agreement"; capitalized
terms used but not defined herein have the respective meanings ascribed thereto
in the Intercreditor Agreement) among various creditors of
TruServ Corporation
and Bank of America, N.A., as Collateral Agent; (b) the Second Amendment dated
as of the date hereof to the Credit Agreement; (c) the Second Amendments dated
as of the date hereof to the Senior Note Agreements; and (d) the Second
Amendment dated as of the date hereof to the Shelf Note Agreement.
Each of the undersigned hereby confirms to the Collateral Agent and
each of the other Benefited Parties that, after giving effect to Second
Amendments referred to in clauses (b), (c) and (d) of the preceding paragraph
and the transactions contemplated thereby, the Guaranty and each Collateral
Document to which such undersigned is a party continues in full force and effect
and is the legal, valid and binding obligation of such undersigned, enforceable
against such undersigned in accordance with its terms.
TRUSERV ACCEPTANCE COMPANY
TRUSERV LOGISTICS COMPANY
GENERAL PAINT & MANUFACTURING COMPANY
MARYGREEN, LLC
TRUE XXXXX.XXX CORPORATION
ADVOCATE SERVICES, INC.
SERVISTAR PAINT COMPANY
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Name Printed: Xxxxxxx X. Xxxxxx
Title: Vice President
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EXHIBIT B-D
AMENDMENTS TO FINANCING AGREEMENTS
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