EXHIBIT 4.8
CONFORMED COPY
FIRST AMENDMENT TO INTERCREDITOR AGREEMENT
FIRST AMENDMENT, dated as of November 29, 2003 (this
"Amendment"), to the Intercreditor Agreement, dated as of March 31, 2003 (the
"Intercreditor Agreement"), among The Prudential Insurance Company of America
("PICA"), certain affiliates of PICA party thereto (the "Prudential Affiliates";
and, together with PICA, "Prudential"), each lender from time to time party to
the Credit Agreement referred to below (the "Banks"), the Administrative Agent
and the Co-Administrative Agent from time to time under the Credit Agreement
(respectively the "Administrative Agent" and the "Co-Administrative Agent") and
JPMorgan Chase Bank, as Collateral Agent under Security Documents (as defined in
the Intercreditor Agreement) (in such capacity, the "Collateral Agent").
W I T N E S S E T H:
WHEREAS, the Intercreditor Agreement and the Guarantee and
Collateral Agreement (as defined in the Intercreditor Agreement) were executed
in connection with the Credit Agreement, dated as March 31, 2003, among the TBC
Corporation (the "Company"), the Banks, the Administrative Agent and the
Co-Administrative Agent (the "March 2003 Credit Agreement");
WHEREAS, concurrently with the execution of this Amendment,
the March 2003 Credit Agreement shall be amended and restated in its entirety
(the March 2003 Credit Agreement as so amended and restated, the "Credit
Agreement") to, among other things, make available to the Company the Tranche C
Term Commitments (as defined in the Credit Agreement), to amend certain of the
covenants therein and to make other modifications as specified therein and the
Guarantee and Collateral Agreement shall be amended to, among other things,
include the Company's obligations in respect of certain hedging agreements in
the obligations guaranteed and secured thereunder;
WHEREAS, the Secured Parties and the Collateral Agent wish to
amend the Intercreditor Agreement in the manner and on the terms and conditions
set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. (a) Capitalized terms used but not
defined herein shall have the meanings assigned to them in the Intercreditor
Agreement.
(b) As used in this Amendment, the terms listed in this
Section 1(b) shall have the respective meanings set forth in this Section 1(b):
"First Amendment Effective Date": as defined in Section 7.
2. Amendment to Section 3 (Information). Section 3(b) of
the Intercreditor Agreement is hereby amended by (i) deleting the phrase "owing
to such Secured Party" as it appears therein and (ii) inserting in lieu thereof
the phrase "owing to such Secured Party (or, in the case of Bank Obligations
arising under a Specified Hedging Agreement, any Affiliate of such Secured
Party)".
3. Amendments to Section 11 (Definitions). (a) The
following definitions are hereby inserted in Section 11 of the Intercreditor
Agreement in proper alphabetical order:
"Affiliate" shall have the meaning set forth in the Guarantee
and Collateral Agreement.
"Bank Percentage" means, on any date, an amount equal to a
fraction, the numerator of which is the total amount of Bank
Obligations as of such date and the denominator of which is the total
amount of Obligations as of such date.
"Specified Hedging Agreement" shall have the meaning set forth
in the Guarantee and Collateral Agreement.
(b) The definition of "Bank Obligations" appearing in Section
11 of the Intercreditor Agreement is hereby amended by (i) deleting such
definition in its entirety and (ii) inserting in lieu thereof the following
definition:
"Bank Obligations" shall mean, at any time, (i) all
obligations of the Company arising under the Bank Agreements,
including, without limitation, premium, make-whole amounts, breakage
costs and yield maintenance amounts and the obligations of the Company
under and in respect to any Letters of Credit (including contingent
obligations in respect thereof); plus (ii) the amount of any
participations in the Note Obligations purchased by the Banks pursuant
to Section 2(b), minus (iii) the amount of any participations in the
Bank Obligations purchased by Prudential pursuant to Section 2(b) plus
(iv) all obligations of the Company arising under any Specified Hedging
Agreement."
(c) The definition of "Bank Term Loans" appearing in Section
11 of the Intercreditor Agreement is hereby deleted in its entirety and each
occurrence of the phrase "Bank Term Loans" appearing in the Intercreditor
Agreement shall be deleted in its entirety and replaced with the phrase "Bank
Obligations".
(d) The definition of "Bank Term Obligations" appearing in
Section 11 of the Intercreditor Agreement is hereby deleted in its entirety and
each occurrence of the phrase "Bank Term Obligations" appearing in the
Intercreditor Agreement shall be deleted in its entirety and replaced with the
phrase "Bank Obligations".
(e) The definition of "Bank Term Percentage" appearing in
Section 11 of the Intercreditor Agreement is hereby deleted in its entirety and
each occurrence of the phrase "Bank Term Percentage" appearing in the
Intercreditor Agreement shall be deleted in its entirety and replaced with the
phrase "Bank Percentage".
(f) The definition of "Percentage Interest" appearing in
Section 11 of the Intercreditor Agreement is hereby amended by (i) deleting the
phrase "owing to such Secured Party" as it appears therein and (ii) inserting in
lieu thereof the phrase "owing to such Secured Party (or, in the case of Bank
Obligations arising under a Specified Hedging Agreement with any Affiliate of a
Secured Party, such Affiliate)".
(g) The definition of "Prudential Percentage" appearing in
Section 11 of the Intercreditor Agreement is hereby amended by deleting the
phrase "Term Obligations" appearing in the third line thereof and inserting in
lieu thereof the word "Obligations".
(h) The definition of "Term Obligations" appearing in Section
11 of the Intercreditor Agreement is hereby deleted.
(i) The definition of "Term Percentage" appearing in Section
11 of the Intercreditor Agreement is hereby deleted.
4. Amendments to Section 2 (Application of Proceeds of
Collateral, etc.).
(a) Section 2(c)(i)(B) of the Intercreditor Agreement is
hereby amended by inserting "or under any Specified Hedging Agreement" between
the closing parenthesis and the semi-colon.
(b) Section 2(d) of the Intercreditor Agreement is hereby
amended by (i) deleting the first occurrence of the word "Term" as it appears
therein and (ii) deleting the last sentence thereof and inserting in lieu
thereof the following:
"For purposes of this Section 2(d), the amounts received for
application against Obligations shall be (x) the amount of Proceeds and setoffs,
and (xx) the amount of any prepayments and other payments (other than regularly
scheduled payments) applied or to be applied by the Secured Parties to any of
the Obligations."
(c) Section 2(h) of the Intercreditor Agreement is hereby
amended and restated in its entirety to read as follows:
"(h) Each Secured Party agrees that any sums and amounts
received by such Secured Party pursuant to this Section shall be applied to the
payment of such Secured Obligations held by such Secured Party as shall be
determined by such Secured Party in its sole discretion, subject to any
provisions of any other agreement affecting such application."
5. Amendment to Section 7 (Additional Collateral).
Section 7 of the Intercreditor Agreement is hereby amended by deleting the last
sentence thereof.
6. Amendment to Section 12 (Miscellaneous). Section
12(i) of the Intercreditor Agreement is hereby amended by (i) deleting the
second occurrence of the phrase "owed to them" as it appears therein and (ii)
inserting in lieu thereof the phrase "owed to them (other than Obligations in
respect of Specified Hedging Agreements)".
7. Conditions to Effectiveness. This Amendment shall
become effective on the date (the "First Amendment Effective Date") on which:
(i) the Collateral Agent shall have received
counterparts of this Amendment duly executed and delivered by or on
behalf of each of the Secured Parties and the Collateral Agent;
(ii) the Amendment and Restatement Effective Date (as
defined in the Credit Agreement) shall have occurred; and
(iii) the Effective Date (as defined in each of
Amendment No. 1 to Note Purchase Agreement, dated as of even date
herewith, between the Company and PICA and Amendment No. 1 to Second
Amended and Restated Note Agreement, dated as of even date herewith,
among the Company, PICA and the Prudential Affiliates) shall have
occurred.
8. Counterparts. This Amendment may be executed by one
or more of the parties to this Amendment on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. Delivery of an executed signature page of this
Amendment by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.
9. Severability; Headings. Any provision of this
Amendment that is prohibited or unenforceable in any jurisdiction, shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. The section and
subsection headings used in this Amendment are for convenience of reference only
and are not to affect the construction hereof or to be taken into consideration
in the interpretation hereof.
10. Continuing Effect. This Amendment shall not
constitute an amendment or waiver of any other provision of the Intercreditor
Agreement not expressly referred to herein. Except as expressly amended,
modified and supplemented hereby, the provisions of the Intercreditor Agreement
are and shall remain in full force and effect.
11. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to the Intercreditor Agreement to be duly executed and delivered by
their proper and duly authorized officers as of the date first above written.
JPMORGAN CHASE BANK,
as Collateral Agent and as Co-Administrative
Agent, on behalf of the Banks
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Vice President
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Vice President
PRUCO LIFE INSURANCE COMPANY
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
RGA REINSURANCE COMPANY
By: Prudential Private Placement Investors, L.P.,
as Investment Advisor
By: Prudential Private Placement Investors, Inc.,
General Partner
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Vice President
BAYSTATE INVESTMENTS, LLC
By: Prudential Private Placement Investors, L.P.,
as Investment Advisor
By: Prudential Private Placement Investors, Inc.,
General Partner
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Vice President
UNITED OMAHA LIFE INSURANCE
COMPANY
By: Prudential Private Placement Investors, L.P.,
as Investment Advisor
By: Prudential Private Placement Investors, Inc.,
General Partner
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Vice President
ACKNOWLEDGMENT AND AGREEMENT
The undersigned, although not a party thereto, acknowledges and, to the
extent required, consents to the terms and conditions of the First Amendment to
the Intercreditor Agreement (the "Amendment") set forth above. Further, the
undersigned agrees (i) to reimburse the Collateral Agent, on demand, for any
expenses incurred by the Collateral Agent plus interest at the Collateral
Agent's prime rate from the date reimbursement is demanded until the date of
reimbursement, including all attorneys fees and compensation of agents, arising
out of, or in any way connected with, the execution or delivery of the Amendment
or the performance by the parties thereto of their respective obligations under
the Intercreditor Agreement, as amended by the Amendment, or in connection with
the enforcement or protection of the rights of the Collateral Agent and/or the
Secured Parties under the Intercreditor Agreement, as amended by the Amendment,
or the Security Documents and the seizure, repossession, sale, transfer or other
disposition of any of the Collateral and (ii) to indemnify and hold harmless the
Collateral Agent and its directors, officers, employees and agents, on demand,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (including interest thereon at the Collateral Agent's
prime rate) which may be imposed on, incurred by or asserted against the
Collateral Agent in its capacity as the Collateral Agent or any of them in any
way relating to or arising out of the Intercreditor Agreement, as amended by the
Amendment, or any Security Document or any action taken or omitted by it under
the Intercreditor Agreement, as amended by the Amendment, or any Security
Document; provided, however, that the undersigned does not hold the Collateral
Agent harmless for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or willful misconduct of the Collateral
Agent or any of its directors, officers, employees or agents.
The undersigned shall execute and deliver such other documents and
instruments, in form and substance reasonably satisfactory to the Collateral
Agent, and shall take such other action, in each case, as the Collateral Agent
may reasonably request, to effectuate and carry out the provisions of the
Intercreditor Agreement, as amended by the Amendment, including, without
limitation, by recording or filing in such places as the Collateral Agent may
deem desirable, such other documents or instruments as the Collateral Agent may
specify.
In the event the Collateral Agent under the Intercreditor Agreement, as
amended by the Amendment, is not one of the Secured Parties a party thereto, the
undersigned agrees to pay all fees charged by such Collateral Agent for
performing its duties and obligations thereunder.
IN WITNESS WHEREOF, the party below has caused this Acknowledgment and
Agreement to be duly executed as of the date first above written.
TBC Corporation
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President/CFO
