EXHIBIT 4.4
AMENDMENT NO. 1
DATED AS OF APRIL 20, 2001
TO
$160,000,000 AMENDED AND RESTATED
CREDIT AGREEMENT DATED AS OF JANUARY 5, 2001
AMONG
TBC CORPORATION,
THE BANKS SIGNATORY THERETO
AND
FIRST TENNESSEE BANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK
AS CO-ADMINISTRATIVE AGENT
PREPARED BY:
------------
XXXXXXXXX & XXXXXXX LLP
COUNSEL TO THE SYNDICATION AGENT
XXXXXXX X. XXXXX, ESQ.
0000 XXXXX XXXXXX
XXXXXXXXX, XXX XXXX 00000
TELEPHONE: (000) 000-0000
FAX: (000) 000-0000
EMAIL: XXXXXX@XXXXXXXXX-XXXXXXX.XXX
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AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT
AGREEMENT dated as of April 20, 2001 among TBC CORPORATION (the
"Borrower"), the Lenders signatory to this Amendment (each a "Lender"), FIRST
TENNESSEE BANK NATIONAL ASSOCIATION, as Administrative Agent for the Lenders and
as the Issuing Bank, and THE CHASE MANHATTAN BANK, as the "Co-Administrative
Agent").
R E C I T A L S
R.1 The parties have entered into an Amended and Restated Credit
Agreement, dated as of January 5, 2001 (the "Credit Agreement").
R.2 Pursuant to Section 6.02 of the Credit Agreement, to Section 3.1
to the Amended and Restated Security Agreement dated as of January 5, 2001
granted by Tire Kingdom, Inc. ("Tire Kingdom") to The Chase Manhattan Bank, as
Collateral Agent for the Lenders as defined therein, (the "Tire Kingdom Security
Agreement") and to Schedule 3.1 to the Tire Kingdom Security Agreement, Borrower
and Tire Kingdom agreed that a Lien granted by Tire Kingdom to Michelin Tire
Corporation ("Michelin") would be released. Such agreement was based upon the
oral commitment by Michelin to release such Lien and Michelin has refused to do
so. The Borrower has requested that the other parties to the Credit Agreement
and the Tire Kingdom Security Agreement accommodate the situation created by
such refusal by Michelin.
R.3 The parties wish to amend the Credit Agreement on the terms and
conditions set forth below.
NOW, THEREFORE, the parties agree as follows:
1. Definitions. Except as otherwise set forth herein, as used in this
Amendment, the terms defined in the Credit Agreement shall have the meanings
assigned to them in the Credit Agreement.
2. Amendments. The Credit Agreement is hereby amended as set forth
below:
2.1 Definitions. The following definition is added to Section
1.01 of the Credit Agreement:
"Amendment No. 1" shall mean Amendment No. 1 dated as of
April 20, 2001 to Credit Agreement dated as of January 5, 2001.
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2.2 Definitions - Applicable Percentage. The definition of
Applicable Percentage in Section 1.01 is amended to read as follows:
"Applicable Percentage" shall mean, with respect to any
Lender, at any time, the percentage of the total Revolving
Credit Commitments represented by such Lender's Revolving
Credit Commitment at such time. If the Revolving Credit
Commitments have terminated or expired, the Applicable
Percentages shall be determined based upon the principal
amount of all Revolving Loans outstanding, giving effect to
any assignments.
2.3 Federal Funds Loans. The second sentence of Section
2.04A(c) shall be amended to read in its entirety as follows:
Such ABR Revolving Borrowing shall be in the amount of the
aggregate outstanding principal amount of all Revolving
Loans and Federal Funds Loans and shall be used to repay
all such Loans, but the Borrower shall not be required to
repay accrued interest along with the repayment.
2.4 Letters of Credit - Participations and Reimbursement.
Sections 2.05(d) and (e) are amended to remove the references therein to
determination of a Lender's Applicable Percentage as of the date of issuance of
a Letter of Credit. Such determination shall be made in accordance with the
definition of Applicable Percentage contained in Amendment No. 1.
2.5 Michelin Lien. Section 6.02 shall be amended to add thereto
a clause (f), which shall read as follows:
(f) a security interest granted by Tire Kingdom, Inc. to
Michelin Tire Corporation, as secured party, with respect
to all inventory previously and hereafter purchased from
Michelin Tire Corporation by Tire Kingdom, Inc., and all
proceeds thereof, provided that the amount of Indebtedness
secured thereby at no time exceeds $20,000,000.
2.6 Events of Default. Section (o) of Article VII is amended to
read as follows:
(o) any Guarantee of the Facility Obligations, or any
Security Agreement or the Mortgage shall for any reason
cease to be an enforceable obligation of the Borrower or
Guarantor, as the case may
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be, that executed same; or if such party or any other
Person should contest the validity of such Guarantee,
Security Agreement, or Mortgage or shall seek in any way to
have it declared null and void or to have such party's
obligation thereunder in any way limited; or if such party
shall in any respect not described elsewhere in this
Article fail to perform any of its obligations under such
Guarantee, Security Agreement or Mortgage, and such failure
shall continue unremedied for a period of fifteen days
after the earlier to occur of (i) the date Borrower shall
have obtained knowledge thereof or (ii) written notice
thereof from the Co-Administrative Agent to the Borrower
(which notice will be given at the request of any Lender);
or
3. Representations and Warranties. Borrower hereby represents and
warrants to the other parties to this Amendment that:
3.1 Corporate Power and Authority: No Conflicts. The execution,
delivery and performance by the Borrower of this Amendment have been duly
authorized by all necessary corporate action and do not and will not: (a)
require any consent or approval of its shareholders, which has not been
obtained; (b) contravene its charter or by-laws, as amended to date; (c) violate
any provision of, or require any filing, registration, consent or approval
under, any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to the Borrower
or any of its Subsidiaries; (d) result in a breach of or constitute a default or
require any consent that has not been obtained under any indenture or loan or
credit agreement or any other agreement, lease or instrument to which the
Borrower or any of its Subsidiaries is a party or by which it or its properties
may be bound or affected; (e) result in, or require, the creation or imposition
of any Lien, upon or with respect to any of the properties now owned or
hereafter acquired by the Borrower and its Subsidiaries, or (f) cause the
Borrower (or any Subsidiary, as the case may be), to be in default under any
such law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or any such indenture, agreement, lease or instrument.
3.2 Legally Enforceable Agreement. This Amendment and the
Credit Agreement as amended hereby are the legal, valid and binding obligations
of the Borrower enforceable against the Borrower in accordance with their
respective terms, except to the
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extent that such enforcement might be limited by applicable bankruptcy,
insolvency or other similar laws affecting creditors' rights generally.
3.3 No Default. On and as of the date of this Amendment, and
after giving effect to this Amendment, no event has occurred and is continuing
which constitutes a Default or Event of Default.
3.4 Representations and Warranties. All representations and
warranties contained in the Credit Agreement and in the other Loan Documents are
true and correct as of the date of this Amendment as if fully set forth herein
and made on and as of the date of this Amendment.
3.5 Michelin Lien. The only Lien granted by Borrower or any of
its Subsidiaries to Michelin is a Lien granted by Tire Kingdom to Michelin
encumbering all inventory previously and hereafter purchased by Tire Kingdom,
Inc. from Michelin and all proceeds thereof. Such Lien secures all amounts now
or hereafter due from Tire Kingdom, to Michelin.
4. Effectiveness. This Amendment shall be of no force or effect
unless and until the date on which all of the following conditions are met:
4.1 Counterparts. The Borrower and the Co-Administrative Agent
have each received counterparts of this Amendment duly executed by the Borrower
and each of the other parties hereto.
4.2 Guarantors' Consent. The Co-Administrative Agent shall have
received a Consent and Acknowledgment executed by each Guarantor, in the form of
Exhibit 4.2 to this Amendment.
4.3 Tire Kingdom Security Agreement. the Co-Administrative
Agent shall have received a Waiver Letter in the form of Exhibit 4.3 to this
Amendment (the "Tire Kingdom Waiver"), duly executed by all parties thereto.
5. Chase's Expenses. Borrower agrees to pay The Chase Manhattan Bank
("Chase") for all costs, expenses and charges (including, without limitation,
fees and charges of external legal counsel for Chase and costs allocated by its
internal legal department) incurred by Chase in connection with the negotiation,
preparation and execution of this Amendment and other documents executed in
connection herewith.
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6. Tire Kingdom Security Agreement. Each of the parties hereto other
than the Borrower consents, upon this Amendment becoming effective, to the
execution of the Tire Kingdom Waiver by The Chase Manhattan Bank, as Collateral
Agent under the Tire Kingdom Security Agreement.
7. Miscellaneous. Except as expressly provided in this Amendment, the
Credit Agreement and the other Loan Documents shall remain unchanged and in full
force and effect, except that each reference in the Credit Agreement, and in any
of the other Loan Documents, and in any agreements, certificates and notices
simultaneously herewith or hereafter executed under or pursuant to the Credit
Agreement or the other Loan Documents, to the "Credit Agreement", "this
Agreement", "hereof", "herein" and similar terms referring to the Credit
Agreement and other Loan Documents, shall be deemed to refer to the Credit
Agreement and the other Loan Documents as amended by this Amendment.
This Amendment shall be governed by and construed 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.
The section headings in this Amendment are inserted for convenience only
and shall not be a part of this instrument.
This Amendment may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signature thereto and
hereto were upon the same instrument.
SIGNATURE PAGES TO FOLLOW.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
as of the date first above written.
TBC CORPORATION
By /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President &
Chief Financial Officer
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, individually, as
Administrative Agent, as Swingline
Lender and as Issuing Bank
By /s/ Xxxxx X. Xxxxx, Xx.
------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Senior Vice President
BANKS:
THE CHASE MANHATTAN BANK, individually
and as Co-Administrative Agent
By /s/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
BANKS:
FIRST UNION NATIONAL BANK
By:
-----------------------------
Name:
Title:
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BANKS:
SUNTRUST BANK, NASHVILLE, N.A.
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Director
BANKS:
REGIONS BANK
By: /s/ Xxx Xxxxxxxxx
--------------------------
Name: Xxx Xxxxxxxxx
Title: National Division Officer
BANKS:
FLEET CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxx XX
--------------------------
Name: Xxxxxxx X. Xxxx XX
Title: Vice President
BANKS:
ALLFIRST BANK
By: /s/ Xxxx X. Xxxxx
--------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
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BANKS:
FIFTH THIRD BANK
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
BANKS:
FIRSTAR BANK NA
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Vice President
BANKS:
UNION PLANTERS BANK, NA
By:
-----------------------------
Name:
Title:
BANKS:
NATIONAL CITY BANK
By:
-----------------------------
Name:
Title:
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EXHIBIT 4.2
GUARANTORS' CONSENT AND ACKNOWLEDGMENT
The Chase Manhattan Bank, April 20, 2001
as Co-Administrative Agent for the Lenders,
and to each of the Lenders and
other parties referred to below
Xxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to an Amended and Restated Credit Agreement dated as of
January 5, 2001 among TBC Corporation, First Tennessee Bank National
Association, individually and as Administrative Agent, The Chase Manhattan Bank,
individually and as Co-Administrative Agent, and the other parties thereto, as
amended by Amendment No. 1 thereto ("Amendment No. 1") dated as of April 20,
2001 (as so amended, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein as so defined.
Each of the undersigned is a Guarantor pursuant to a Guarantee dated as
of January 5, 2001 (each a "Guarantee").
This letter will serve as each of the undersigned's consent to the
execution, delivery and performance of Amendment No. 1, as its reaffirmation of
its Guarantee and as its agreement that its Guarantee remains in full force and
effect in accordance with its terms with respect to the Credit Agreement, as
amended by Amendment No. 1.
Big O Development, Inc.
By:
-------------------------------
Name:
Title:
Big O Retail Enterprises, Inc.
By:
-------------------------------
Name:
Title:
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Big O Tire of Idaho, Inc.
By:
-------------------------------
Name:
Title:
Big O Tires, Inc.
By:
-------------------------------
Name:
Title:
Xxxxxxx'x, Inc.
By:
-------------------------------
Name:
Title:
Northern States Tire, Inc.
By:
-------------------------------
Name:
Title:
O Advertising, Inc.
By:
-------------------------------
Name:
Title:
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TBC Retail Enterprises, Inc.
By:
-------------------------------
Name:
Title:
TBC International Inc.
By:
-------------------------------
Name:
Title:
Tire Kingdom, Inc.
By:
-------------------------------
Name:
Title:
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EXHIBIT 4.3
TIRE KINGDOM WAIVER LETTER
April 20, 2001
The Chase Manhattan Bank, as Collateral Agent
Xxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxx
Re: Tire Kingdom, Inc. Security Agreement
Ladies and Gentlemen:
Reference is made to an Amended and Restated Security Agreement dated
as of January 5, 2001, granted by Tire Kingdom, Inc., as Debtor, to The Chase
Manhattan Bank, as Collateral Agent for all financial institutions who are and
may become "Lenders" (as defined in such Security Agreement) and for the
Administrative Agent and the Co- Administrative Agent, under the Credit
Agreement defined therein and to the Lenders, the Administrative Agent and the
Co-Administrative Agent. Such agreement is hereinafter referred to as the "Tire
Kingdom Security Agreement" and the terms defined therein are used herein as so
defined.
Under Section 3.1 of the Tire Kingdom Security Agreement, the Debtor
represented that it had granted no currently effective security interest in the
Collateral to any Person other than to the Secured Party, except as listed in
Schedule 3.1 attached to that agreement. Schedule 3.1 listed several Liens
granted by Debtor, each to be released by 1/31/01, including Liens granted (i)
to The Valvoline Company, Cisco Systems Capital Corporation and IBM Credit
Corporation, each of which was related to lease obligations owed by Debtor to
such creditors (the "Lease Liens") and (ii) to Michelin Tire Corporation
("Michelin") as a security interest against all inventory purchased from
Michelin by Debtor, and the proceeds thereof (the "Michelin Lien").
The provision in Schedule 3.1 requiring release of Liens by 1/31/00 was
made applicable to the Lease Liens by mistake, and the Borrower and the Debtor
hereby request that the Collateral Agent waive that requirement, to the extent
that it relates to the Lease Liens.
The representation set forth in Section 3.1 with respect to the
Michelin Lien, and the undertaking to have the Michelin Lien released prior to
1/31/01, were given by Debtor in reliance on oral assurances from Michelin that
the release would be forthcoming prior to that date. Michelin has refused to
provide the release in accordance with its prior
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assurance. On the date hereof, the parties to the Amended Credit Agreement have
executed Amendment No. 1 thereto pursuant to which Debtor is permitted to have
outstanding a Lien to Michelin securing debt not to exceed $20,000,000 at any
time and covering inventory sold to the Debtor by Michelin, and the proceeds
thereof. Section 4.4 of the Tire Kingdom Security Agreement prohibits the Debtor
from granting any Lien with respect to the Collateral to any Person other than
the Secured Party, except to the extent permitted in the Amended Credit
Agreement. Consequently, by virtue of such Amendment No 1 the Michelin Lien is
now a permitted Lien under the Amended Credit Agreement; and the Borrower and
the Debtor hereby request that the Collateral Agent waive the requirement that
the Debtor obtain the release of the Michelin Lien, as required by Section 3.1
and Schedule 3.1 of the Tire Kingdom Security Agreement.
Please signify your agreement to the above requested waivers by
executing the Waiver set forth after the close hereof.
TBC Corporation
By:
-------------------------------
Name:
Title:
Tire Kingdom, Inc.
By:
-------------------------------
Name:
Title:
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XXXXXX
Xx the basis of the foregoing request, the undersigned Collateral Agent
hereby waives, for the term of the Tire Kingdom Security Agreement, (a) the
requirement in Schedule 3.1 to the Tire Kingdom Security Agreement that the
Lease Liens be released and (b) the requirement in such Schedule 3.1 that Debtor
obtain release of the Michelin Lien. Except as specifically provided in this
Waiver, the Tire Kingdom Security Agreement shall remain in full force and
effect in accordance with its terms.
The Chase Manhattan Bank,
as Collateral Agent
By:
-----------------------------------
Name:
Title:
The Collateral Agent is authorized to execute the above Waiver.
Prudential Insurance Company of America
By:
-----------------------------------
Name:
Title:
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