EXHIBIT 4.3
EXECUTION COPY
TBC CORPORATION
AMENDMENT NO. 1 TO NOTE PURCHASE AGREEMENT
DATED AS OF NOVEMBER 29, 2003
SERIES D VARIABLE RATE SENIOR SECURED NOTES DUE APRIL 16, 2009
GUARANTEED BY CERTAIN SUBSIDIARIES OF TBC CORPORATION
TBC CORPORATION
SERIES D VARIABLE RATE SENIOR SECURED NOTES DUE APRIL 16, 2009
GUARANTEED BY SUBSIDIARIES OF TBC CORPORATION
AMENDMENT NO. 1 TO NOTE PURCHASE AGREEMENT
As of November 29, 2003
The Noteholders Named on
the Signature Page hereto
Ladies and Gentlemen:
TBC CORPORATION, a Delaware corporation (together with its permitted
successors and assigns, the "COMPANY"), hereby agrees with you as follows:
1. BACKGROUND.
The Company and the Noteholders are party to a Note Purchase Agreement
(as in effect immediately prior to the effectiveness of this Agreement, the
"EXISTING NOTE PURCHASE AGREEMENT" and, as amended hereby, the "NOTE PURCHASE
AGREEMENT"), dated as of April 1, 2003, pursuant to which the Company issued
$50,000,000 in aggregate principal amount of its Series D Variable Rate Senior
Secured Notes due April 16, 2009 (the "NOTES"). The aggregate principal amount
of the Notes outstanding on the date hereof is $50,000,000, all of which notes
are held by the Noteholders. The obligations of the Company under the Note
Purchase Agreement and the Notes are secured by: (a) a lien on certain assets of
(and are guaranteed by) certain Subsidiaries of the Company (the "EXISTING
SUBSIDIARY OBLIGORS") pursuant to that certain Guarantee and Collateral
Agreement, dated as of March 31, 2003 (the "EXISTING GUARANTEE AND COLLATERAL
AGREEMENT"), and (b) a lien on certain real property owned by the Company,
pursuant to that certain Deed of Trust, Assignment of Leases and Security
Agreement, dated as of March 31, 2003, in favor of the Collateral Agent (the
"EXISTING COMPANY MORTGAGE"). Contemporaneously herewith, Merchant's,
Incorporated, a wholly-owned Subsidiary of the Company, is acquiring (the "NTB
ACQUISITION") all of the issued and outstanding capital stock of NTW
Incorporated, a Delaware corporation ("NTB") from Sears, Xxxxxxx and Co., a New
York corporation, pursuant to a certain Stock Purchase Agreement, dated as of
September 21, 2003 (the "NTB ACQUISITION AGREEMENT"). The Company has requested
that the Noteholders agree to amend the Existing Note Purchase Agreement to
permit the NTB Acquisition, and the financing thereof, as set forth herein. The
Noteholders have, subject to the satisfaction of the conditions set forth in
Section 5 of this Agreement, consented to such request. Additionally, the
Company has formed a new Subsidiary, TBC of Nevada LLC, a Nevada limited
liability company ("TBC NEVADA"), which will hold and dispose of certain assets
formerly held by STI Acquisition, LLC and, in compliance with the obligations of
the Company under the Note Purchase Agreement, shall become a Grantor and
Guarantor under the Guarantee and Collateral Agreement (as such terms are
defined therein). The mutual agreement of the parties as to such matters is set
forth in this Agreement.
2. DEFINED TERMS.
Capitalized terms used herein and not otherwise defined herein have the
meanings ascribed to them in the Note Purchase Agreement. Other defined terms
used herein shall have the meanings set forth below:
"AGREEMENT, THIS" means this Amendment No. 1 to Note Purchase
Agreement.
"AMENDED AND RESTATED CREDIT AGREEMENT" means the Amended and Restated
Credit Agreement, dated on or about the date hereof, by and among the Company,
First Tennessee Bank, National Association, as Administrative Agent, XX Xxxxxx
Chase Bank, as Co-Administrative Agent, and the other lenders party thereto.
"AMENDMENT DOCUMENTS" means, this Agreement, the Company Mortgage
Amendment, the GCA Amendment and the Assumption Agreements.
"AMENDMENTS" is defined in Section 4.1.
"ASSUMPTION AGREEMENTS" is defined in Section 5.10.
"COLLATERAL" is defined in Section 3.9.
"COMPANY" is defined in the introductory paragraph.
"COMPANY MORTGAGE" is defined in Section 3.9(b).
"COMPANY MORTGAGE AMENDMENT" is defined in Section 5.12.
"EXISTING COMPANY MORTGAGE" is defined in Section 1.
"EXISTING GUARANTEE AND COLLATERAL AGREEMENT" is defined in Section 1.
"EXISTING NOTE PURCHASE AGREEMENT" is defined in Section 1.
"EXISTING SUBSIDIARY OBLIGORS" is defined in Section 1.
"FINANCING DOCUMENTS" means this Agreement, the Note Purchase
Agreement, the Notes, the GCA Amendment, the Guarantee and Collateral Agreement,
the Company Mortgage Amendment, the Company Mortgage and the Assumption
Agreements.
"GCA AMENDMENT" is defined in Section 5.9.
"GUARANTEE AND COLLATERAL AGREEMENT" means the Existing Guarantee and
Collateral Agreement, as amended by the GCA Amendment and after giving effect to
the Assumption Agreements.
"NOTEHOLDERS" means, and is a collective reference to, each holder of a
Note on the date hereof.
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"NOTE PURCHASE AGREEMENT" is defined in Section 1.
"NOTES" is defined in Section 1.
"NTB" is defined in Section 1.
"NTB ACQUISITION" is defined in Section 1.
"NTB ACQUISITION AGREEMENT" is defined in Section 1.
"NTB ACQUISITION DOCUMENTS" means the NTB Acquisition Agreement and all
schedules, exhibits and annexes thereto, and all the related documents and
instruments executed pursuant thereto, including, without limitation, any side
letters or other agreements affecting the terms of the NTB Acquisition
Agreement.
"NTB SALE AND LEASEBACK" means the sale, for an aggregate price not to
exceed $140,000,000 and the leasing back of up to eighty-nine retail properties
acquired by the Company in connection with the NTB Acquisition.
"NTB SALE AND LEASEBACK DOCUMENTS" means the Purchase Agreement and
Escrow Instructions, dated October 23, 2003, between the Company and Realty
Income Corporation.
"OBLIGORS" means the Company, the Existing Subsidiary Obligors, NTB and
TBC Nevada.
"PLEDGED STOCK" is defined in Section 3.9.
"PRO FORMA BALANCE SHEET" is defined in Section 3.11.
"SOLVENT" means, with respect to any Person, that, as of any date of
determination, (a) the amount of the "present fair saleable value" of the assets
of such Person will, as of such date, exceed the amount of all "liabilities of
such Person, contingent or otherwise", as of such date, as such quoted terms are
determined in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair saleable value
of the assets of such Person will, as of such date, be greater than the amount
that will be required to pay the liability of such Person on its debts as such
debts become absolute and matured, (c) such Person will not have, as of such
date, an unreasonably small amount of capital with which to conduct its
business, and (d) such Person will be able to pay its debts as they mature. For
purposes of this definition, (i) "debt" means liability on a "claim", and (ii)
"claim" means any (x) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured
or unsecured.
"TBC NEVADA" is defined in Section 1.
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3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce the Noteholders to enter into this Agreement, the Company
represents and warrants that:
3.1. ORGANIZATION AND EXISTENCE.
Each of the Company and each of its Subsidiaries is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and has the entity power and authority to own its respective
property and to carry on its respective business as now being conducted.
3.2. AGREEMENTS AUTHORIZED; OBLIGATIONS ENFORCEABLE.
(a) AGREEMENTS ARE LEGAL AND AUTHORIZED. The execution
and delivery by the Obligors of each Amendment Document to which it is
a party and compliance by the Obligors with all of the provisions of
each Financing Document to which it is a party, is within the corporate
power and authority of such Obligor.
(b) OBLIGATIONS ARE ENFORCEABLE. Each Obligor has duly
authorized each Amendment Document to which it is a party by all
necessary corporate or other action on its part. The Amendment
Documents have been executed and delivered by one or more duly
authorized officers of each Obligor party thereto, and each Financing
Document constitutes a legal, valid and binding obligation of each
Obligor party thereto, enforceable in accordance with its terms, except
that the enforceability thereof may be:
(i) limited by applicable bankruptcy,
reorganization, arrangement, insolvency, moratorium, or other
similar laws affecting the enforceability of creditors' rights
generally; and
(ii) subject to the availability of equitable
remedies.
3.3. NO CONFLICTS.
Neither the execution and delivery of any Amendment Document by any
Obligor, nor the fulfillment of or compliance with the terms and provisions of
any Financing Document to which it is a party, nor the consummation of the NTB
Acquisition, will conflict with, or result in a breach of the provisions of, or
constitute a default under, or result in the creation of any Lien upon any of
the properties of the Company or any Subsidiary (other than those permitted by
Section 6.3 of the Note Purchase Agreement) pursuant to, the charter, bylaws or
other constitutive documents of the Company or such Subsidiary, 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 such Subsidiary is subject.
3.4. GOVERNMENTAL CONSENT.
Neither the execution and delivery of the Amendment Documents, nor the
performance by the Obligors of their respective obligations under the Financing
Documents, is such as to
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require any authorization, consent, approval, exemption or other action by or
notice to or filing with any court or administrative or governmental body (other
than routine filings with the Securities and Exchange Commission and/or state
blue sky authorities) on the part of such Obligor in connection with the
execution and delivery of the Amendment Documents or the fulfillment of or
compliance with the terms and provisions of the Financing Documents.
3.5. FULL DISCLOSURE.
The Amendment Documents and the documents, certificates or other
writings delivered to the Noteholders by or on behalf of the Obligors in
connection therewith, taken as a whole, do not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading in light of the circumstances under which they
were made. There is no fact known to the Company, or to the best knowledge of
the Company, any other Obligor, that could reasonably be expected to have a
Material Adverse Effect that has not been set forth herein or in the other
documents, certificates and other writings delivered to the Noteholders by or on
behalf of the Obligors specifically for use in connection with the transactions
contemplated by the Financing Documents.
3.6. NO DEFAULTS; NO MATERIAL ADVERSE CHANGE.
No event has occurred and no condition exists that, upon the execution
and delivery of the Amendment Documents and the effectiveness of the Amendments:
(a) would constitute a Default or an Event of Default, or (b) could reasonably
be expected to result in a Material Adverse Effect.
3.7. PROPERTIES.
(a) The Company and each of its Subsidiaries has good
title to, or valid leasehold interests in, all its real and personal
property material to its business, free and clear of all Liens except
for the Liens set forth on Schedule 6.3 hereto, Liens permitted by
Section 6.3 of the Note Purchase Agreement and minor defects in title
that do not interfere with its ability to conduct the Company's or such
Subsidiary's business as currently conducted or to utilize such
properties for its intended purposes.
(b) Schedule 3.7(b) lists, as of the Effective Date, each
parcel of owned real property located in the United States and held by
the Company or any of its Subsidiaries.
3.8. ENVIRONMENTAL AUDITS.
The environmental audits regarding the real properties which are part
of the NTB Acquisition provided to the Noteholders pursuant to Section 5.17 do
not contain any finding that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect.
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3.9. SECURITY DOCUMENTS.
(a) The Guarantee and Collateral Agreement is effective
to create in favor of the Collateral Agent, for the benefit of the
Noteholders, a legal, valid and enforceable security interest in the
collateral described therein (the "COLLATERAL") and proceeds thereof.
In the case of the pledged Capital Stock of NTB described in the
Guarantee and Collateral Agreement (the "PLEDGED STOCK"), when stock
certificates representing such Pledged Stock are delivered to the
Collateral Agent, and in the case of the other Collateral described in
the Guarantee and Collateral Agreement, financing statements with
respect to NTB and TBC Nevada in appropriate form having been filed in
the offices specified on Schedule 3.16(a) to the Amended and Restated
Credit Agreement, the Guarantee and Collateral Agreement constitutes a
fully perfected Lien on, and security interest in, all right, title and
interest of NTB and TBC Nevada in such Collateral and the proceeds
thereof, as security for the Obligations (as defined in the Guarantee
and Collateral Agreement), in each case prior and superior in right to
any other Person (except, in the case of Collateral other than Pledged
Stock, Liens permitted by Section 6.3 of the Note Purchase Agreement).
(b) The Existing Company Mortgage, as amended by the
Company Mortgage Amendment (the "COMPANY MORTGAGE") is effective to
create in favor of the Collateral Agent, for the benefit of the
Noteholders, a legal, valid and enforceable Lien on the property
described therein and proceeds thereof, and the Existing Company
Mortgage has been filed in the applicable office specified on Schedule
3.16(b) to the Amended and Restated Credit Agreement and constitutes
(and, upon the filing of the Company Mortgage Amendment, the Company
Mortgage will constitute) a fully perfected Lien on, and security
interest in, all right, title and interest of the Company in the
property described in such mortgage and the proceeds thereof, as
security for the Secured Indebtedness (as defined in the Company
Mortgage), in each case prior and superior in right to any other
Person.
3.10. SOLVENCY.
The Company is, and after giving effect to the NTB Acquisition and the
incurrence of all Indebtedness and obligations being incurred in connection
herewith and therewith will be, and will continue to be, Solvent.
3.11. PRO FORMA FINANCIAL STATEMENTS.
The unaudited pro forma consolidated balance sheet of the Company and
its Subsidiaries as at November 30, 2003 (including the notes thereto) (the "PRO
FORMA BALANCE SHEET"), has been prepared giving effect (as if such events had
occurred on such date) to (i) the consummation of the NTB Acquisition, (ii) the
loans to be made under and pursuant to the Amended and Restated Credit Agreement
and the NTB Sale and Leaseback to be consummated on the Effective Date and the
use of proceeds thereof and (iii) the payment of fees and expenses in connection
with the foregoing. The Pro Forma Balance Sheet has been prepared using NTB's
balance sheet as at December 28, 2002 and the projected consolidated balance
sheet of the Company and its existing Subsidiaries as at November 30, 2003 and,
to the best of the
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Company's knowledge as of the Effective Date, presents fairly on a pro forma
basis the estimated consolidated financial position of Company and its
Subsidiaries as at November 30, 2003, assuming that the events specified in the
preceding sentence had actually occurred at such date.
4. AMENDMENTS.
4.1. AMENDMENTS IN RESPECT OF THE EXISTING NOTE PURCHASE AGREEMENT.
The Noteholders and the Company hereby agree that, subject to Section 5
hereof, the Existing Note Purchase Agreement is hereby amended in the manner
specified in Exhibit A to this Agreement (collectively, the "AMENDMENTS").
4.2. EFFECT OF AMENDMENTS.
Except as expressly provided herein, (a) no terms or provisions of the
Existing Note Purchase Agreement or any other agreement are modified or changed
by this Agreement, and (b) the terms of this Agreement shall not operate as an
amendment, waiver or other modification by the Noteholders of, or otherwise
prejudice the Noteholders' rights, remedies or powers under, the Note Purchase
Agreement or under any applicable law, and all of such rights, remedies and
powers are hereby expressly reserved.
5. CONDITIONS TO EFFECTIVENESS.
The Amendments shall become effective only upon the date of the
satisfaction in full of the following conditions precedent (the "EFFECTIVE
DATE"):
5.1. EXECUTION AND DELIVERY OF THIS AGREEMENT.
The Company and the Noteholders shall have executed and delivered a
counterpart of this Agreement.
5.2. REPRESENTATIONS AND WARRANTIES TRUE.
The representations and warranties set forth in paragraph 3 shall be
true and correct on such date in all material respects.
5.3. AMENDED AND RESTATED CREDIT AGREEMENT.
The Amended and Restated Credit Agreement shall have been executed and
delivered by all parties thereto.
5.4. AUTHORIZATION.
The Company and each Subsidiary shall have authorized, by all necessary
action, the execution, delivery and performance of all documents, agreements and
certificates in connection with this Agreement, and the satisfaction of all
closing conditions set forth in this Section 5, applicable to the Company or
such Subsidiary.
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5.5. COMPANY SECRETARY CERTIFICATE.
The Noteholders shall have received a certificate of the Secretary of
the Company, (a) certifying that the certificate or articles of incorporation
and the bylaws of the Company and the Existing Subsidiary Obligors delivered by
the Company in connection with the Existing Note Purchase Agreement are in full
force and effect, having not been amended, supplemented, replaced or otherwise
modified in any way, and (b) attaching and certifying as true, correct and
complete copies of the resolutions of the Company and each Existing Subsidiary
Obligor authorizing the execution, delivery and performance of this Agreement
and the other Financing Documents to be executed in connection herewith, and the
satisfaction of all closing conditions set forth in this Section 5, applicable
to the Company or such Existing Subsidiary Obligor.
5.6. CERTAIN DOCUMENTS; COMPANY OFFICER CERTIFICATE.
The Noteholders shall have received a certificate of a Senior Financial
Officer of the Company attaching and certifying as true, correct and complete,
copies of:
(a) the Amended and Restated Credit Agreement;
(b) the NTB Sale and Leaseback Documents; and
(c) the NTB Acquisition Agreement.
5.7. NEW SUBSIDIARIES' SECRETARY CERTIFICATES.
Each of NTB and TBC Nevada shall have executed and delivered to each
Noteholder a certificate of its Secretary or Assistant Secretary, certifying as
true, correct and complete and attaching:
(a) copies of the resolutions authorizing the execution,
delivery and performance of all Financing Documents to be executed by
it in connection herewith, and the satisfaction of all closing
conditions set forth in this Section 5 applicable to it;
(b) in the case of NTB, its certificate of incorporation
and all amendments thereto and, in the case of TBC Nevada, its limited
liability company agreement and all amendments thereto;
(c) in the case of NTB, its bylaws;
(d) a long form certificate of good standing with respect
to it issued by the Secretary of State of its jurisdiction of
organization; and
(e) an incumbency certificate and specimen signatures of
its officers executing documents.
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5.8. NTB ACQUISITION DOCUMENTS; CONSUMMATION OF NTB ACQUISITION.
The NTB Acquisition shall have been consummated in accordance with
applicable law and the terms of the NTB Acquisition Documents, no provisions
thereof having been amended, waived, supplemented or otherwise modified in any
respect materially adverse to the Company and the Noteholders.
5.9. AMENDMENT TO GUARANTEE AND COLLATERAL AGREEMENT.
The Noteholders shall have received the Amendment to Guarantee and
Collateral Agreement, substantially in the form of Exhibit B hereto (the "GCA
AMENDMENT"), executed and delivered by the Company, each Existing Subsidiary
Obligor and the Collateral Agent.
5.10. ASSUMPTION OF GUARANTEE AND COLLATERAL AGREEMENT BY NTB AND
TBC NEVADA.
The Noteholders shall have received an Assumption Agreement,
substantially in the form attached to the Guarantee and Collateral Agreement as
Annex 1, executed and delivered by each of NTB and TBC Nevada (the "ASSUMPTION
AGREEMENTS").
5.11. AMENDMENT TO INTERCREDITOR AGREEMENT.
The Noteholders shall have received the Amendment to the Intercreditor
Agreement, substantially in the form of Exhibit C hereto, executed and delivered
by the parties to the Intercreditor Agreement, and acknowledged by the Company.
5.12. COMPANY MORTGAGE AMENDMENT.
The Noteholders shall have received copies of Amendment No. 1 to Deed
of Trust, Assignment of Leases and Security Agreement, dated as of November 29,
2003, executed by the Company and the Collateral Agent (the "COMPANY MORTGAGE
AMENDMENT").
5.13. PRO FORMA BALANCE SHEET.
Each Noteholder shall have received a copy of the Pro Forma Balance
Sheet.
5.14. PROCEEDS FROM NTB SALE AND LEASEBACK.
The Company shall have received at least $120,000,000 in gross cash
proceeds from the NTB Sale and Leaseback.
5.15. GOVERNMENTAL AND THIRD PARTY APPROVALS.
All governmental and material third party approvals necessary in
connection with the NTB Acquisition, the financing contemplated hereby and the
continuing operations of the Company and its Subsidiaries shall have been
obtained and be in full force and effect, and all applicable waiting periods
shall have expired without any action being taken or threatened by
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any competent authority that would restrain, prevent or otherwise impose adverse
conditions on the NTB Acquisition or the financing thereof.
5.16. INSURANCE CERTIFICATES.
The Noteholders shall have received copies of satisfactory insurance
certificates with respect to all required insurance on property of NTB and TBC
Nevada.
5.17. ENVIRONMENTAL AUDITS.
The Noteholders shall have received (i) copies of the Phase I
environmental assessments completed in 2003 with respect to the real properties
that are part of the NTB Sale and Leaseback and (ii) copies of all other
existing Phase I environmental assessments received by the Company in respect of
the real properties that are part of the NTB Acquisition.
5.18. CLEAR LIEN SEARCH REPORT WITH RESPECT TO NTB AND TBC NEVADA
ASSETS.
The Noteholders shall have received the results of a recent lien search
in each of the jurisdictions where assets of NTB and TBC Nevada are located, as
well as the jurisdiction in which each of NTB and TBC Nevada is organized and
such search shall have revealed no Liens on any of the assets of NTB or TBC
Nevada except for Liens permitted by Section 6.3 of the Note Purchase Agreement
or discharged on or prior to the Effective Date pursuant to documentation
satisfactory to the Noteholders.
5.19. RECEIPT BY COLLATERAL AGENT OF PLEDGED STOCK.
The Noteholders shall have received evidence reasonable satisfactory to
them that the Collateral Agent has received the certificates representing the
shares of Pledged Stock of NTB, together with an undated stock power for each
such certificate executed in blank by a duly authorized officer of Merchant's,
Incorporated.
5.20. AMENDMENT FEE.
The Company shall have paid the amendment fee in accordance with
Section 7 below.
5.21. SPECIAL COUNSEL FEES.
The Company shall have paid the reasonable fees and disbursements of
Noteholders' special counsel in accordance with Section 6 below.
5.22. PROCEEDINGS SATISFACTORY.
All proceedings taken in connection with this Agreement and all
documents and papers relating thereto shall be satisfactory to the Noteholders
and their special counsel, and the Noteholders and their special counsel shall
have received copies of such documents and papers as they or their special
counsel may reasonably request in connection herewith.
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6. EXPENSES.
Whether or not the Amendments become effective, the Company will pay
all reasonable fees, expenses and costs relating to this Agreement, including,
but not limited to, (a) the reasonable cost of reproducing this Agreement and
the other documents delivered in connection herewith and (b) the reasonable fees
and disbursements of the Noteholders' special counsel, Xxxxxxx XxXxxxxxx LLP,
incurred in connection with the preparation, negotiation and delivery of this
Agreement. Nothing in this Section 6 shall limit the Company's obligations under
Section 11.2 of the Note Purchase Agreement.
7. AMENDMENT FEE.
In consideration of the consent of the Noteholders to the Amendments,
the Company shall pay a combined fee to the Noteholders on the Effective Date in
an amount equal to .25% of the aggregate principal amount of the Notes
outstanding on such date ($125,000). Such combined fee shall be paid to the
Noteholders ratably in accordance with the respective principal amounts of Notes
held by them in accordance with the Amendment Fee Schedule set forth as Exhibit
D hereto and in the manner and to the accounts specified in the Note Purchase
Agreement for payments of principal and interest on the Notes.
8. MISCELLANEOUS.
8.1. PART OF NOTE PURCHASE AGREEMENT, RATIFICATION AND
CONFIRMATION.
This Agreement shall be construed in connection with and as a part of
the Existing Note Purchase Agreement and, except as expressly amended by this
Agreement, all terms, conditions and covenants contained in the Existing Note
Purchase Agreement and the Notes are hereby ratified and confirmed and shall be
and remain in full force and effect. Any and all notices, requests, certificates
and other instruments executed and delivered after the execution and delivery of
this Agreement may refer to the Existing Note Purchase Agreement and the Notes
without making specific reference to this Agreement, but nevertheless all such
references shall include this Agreement unless the context otherwise requires.
8.2. COUNTERPARTS; EFFECTIVENESS.
This Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument. Delivery of an executed signature page by facsimile transmission
shall be effective as delivery of a manually signed counterpart of this
Agreement.
8.3. SUCCESSORS AND ASSIGNS.
All covenants and other agreements in this Agreement contained by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto (including, without
limitation, any transferee) whether so expressed or not.
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8.4. GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND
THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE INTERNAL LAWS OF THE STATE
OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT
WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH
STATE.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. NEXT PAGE IS SIGNATURE PAGE.]
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If you are in agreement with the foregoing, please so indicate by
signing the agreement below on the accompanying counterpart of this Agreement
and return it to the Company, whereupon the foregoing shall become a binding
agreement among you and the Company.
Very truly yours,
TBC CORPORATION
By/s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X. Xxxxxx
Title: EVP/CFO
[Signature Page to Amendment No. 1 to Note Purchase Agreement]
The foregoing Agreement is hereby accepted as of the date first above written.
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., Investment Advisor
By: Prudential Private Placement Investors, Inc., its General Partner
By:/s/ Xxxxx Xxxxx
------------------------
Name: Xxxxx Xxxxx
Title: Vice President
BAYSTATE INVESTMENTS, LLC
By: Prudential Private Placement Investors, L.P., Investment Advisor
By: Prudential Private Placement Investors, Inc., its General Partner
By:/s/ Xxxxx Xxxxx
------------------------
Name: Xxxxx Xxxxx
Title: Vice President
UNITED OF OMAHA LIFE INSURANCE COMPANY
By: Prudential Private Placement Investors, L.P., Investment Advisor
By: Prudential Private Placement Investors, Inc., its General Partner
By:/s/ Xxxxx Xxxxx
------------------------
Name: Xxxxx Xxxxx
Title: Vice President
[Signature Page to Amendment No. 1 to Note Purchase Agreement]
EXHIBIT A
AMENDMENTS TO EXISTING NOTE PURCHASE AGREEMENT
1. AMENDMENT TO AFFIRMATIVE COVENANTS.
(a) NOTICE OF CERTAIN MATERIAL EVENTS. Section 5.2 of the Existing
Note Purchase Agreement shall be and is hereby amended by deleting "; and"
appearing at the end of clause (b) thereof, relettering clause (c) as clause
(d), and inserting a new clause (c) to read in its entirety as follows:
"(c) the occurrence of the events described in the
definition of "Subsidiary" resulting in TBC de Mexico being considered
a Subsidiary for all purposes under this Agreement; and".
(b) CORPORATE EXISTENCE, ETC.; BUSINESS. The first sentence of
Section 5.12 of the Existing Note Purchase Agreement shall be and is hereby
amended and restated in its entirety as follows:
"The Company covenants that it will, and will cause each of
its Subsidiaries to, preserve and keep in full force and effect at all
times its corporate existence, and the permits, licenses, franchises
and other rights material to its business, provided that the foregoing
shall not prohibit any merger, consolidation, conversion,
restructuring, liquidation, dissolution or other transaction permitted
under Section 6.4.".
2. AMENDMENTS TO NEGATIVE COVENANTS.
(a) FINANCIAL COVENANTS. Section 6.1 of the Existing Note Purchase
Agreement shall be and is hereby amended and restated in its entirety to read as
follows:
"6.1. FINANCIAL COVENANTS. The Company will not at any time
permit:
(a) FIXED CHARGE COVERAGE RATIO. The Fixed
Charge Coverage Ratio as of the last day of any Fiscal Quarter
to be less than the amount set forth in the table below:
FISCAL QUARTER ENDING RATIO
---------------------------------------- -----------
December 31, 2003, March 31, 2004 and
June 30, 2004, 1.15 to 1.0
September 30, 2004, December 31, 2004, 1.25 to 1.0
March 31, 2005, June 30, 2005, September
30, 2005 and December 31, 2005
any Fiscal Quarter ending thereafter 1.50 to 1.0
"FIXED CHARGE COVERAGE RATIO" shall mean, as of the last day
of any Fiscal Quarter of the Company, the ratio of (a) EBITDA
for the period of four
completed Fiscal Quarters of the Company ending on the last
day of such Fiscal Quarter to (b) Fixed Charges for such
period.
(b) MAXIMUM LEVERAGE RATIO. The Leverage Ratio
as of the end of any Fiscal Quarter to be greater than the
amount set forth in the table below:
FISCAL QUARTER ENDING RATIO
----------------------------------------------------------------------- -----------
December 31, 2003, March 31, 2004 and June 30, 2004, 3.25 to 1.0
September 30, 2004 3.00 to 1.0
December 31, 2004, March 31, 2005 and June 30, 2005 2.75 to 1.0
September 30, 2005, December 31, 2005, March 31, 2006 and June 30, 2006 2.50 to 1.0
September 30, 2006 and any Fiscal Quarter ending thereafter 2.25 to 1.0
"LEVERAGE RATIO" at any time means the ratio of Consolidated
Funded Indebtedness as of the end of the then most recent
Fiscal Quarter to the aggregate EBITDA for the period of four
Fiscal Quarters most recently ended, including any adjustments
based on Acceptable Acquisitions and dispositions as provided
in the definition of EBITDA.
(C) ADJUSTED DEBT TO EBITDAR. The ratio of (i)
Consolidated Adjusted Debt to (ii) EBITDAR at the end of any
Fiscal Quarter, to be greater than the amount set forth in the
table below:
FISCAL QUARTER ENDING RATIO
----------------------------------------------------------------------- -----------
December 31, 2003, March 31, 2004, June 30, 2004
and September 30, 2004 5.35 to 1.0
December 31, 2004, March 31, 2005 and June 30, 2005 5.00 to 1.0
September 30, 2005, December 31, 2005, March 31, 2006 and June 30, 2006 4.75 to 1.0
September 30, 2006, December 31, 2006, March 31, 2007 and June 30, 2007 4.25 to 1.0
September 30, 2007, and any Fiscal Quarter ending thereafter 4.00 to 1.0
For purposes of this Section 6.1(c), "CONSOLIDATED ADJUSTED
DEBT" shall mean, at the end of any Fiscal Quarter,
Consolidated Funded Indebtedness as of the end of such Fiscal
Quarter, plus eight times the rental payments made (net of any
sublease income) by the Company and its Subsidiaries during
the period of four completed Fiscal Quarters then most
recently ended.
(d) ASSET TEST. The ratio of the sum of
consolidated accounts receivable and inventories subject to a
first priority perfected security interest in favor of the
Collateral Agent pursuant to the Guarantee and Collateral
Agreement (and, in any event, exclusive of any then
outstanding amounts secured by a security interest on
inventory permitted by Section 6.3(f)) to Consolidated Funded
Indebtedness as at the end of any Fiscal Quarter to be less
than the amount set forth in the table below:
FISCAL QUARTER ENDING RATIO
----------------------------------------------------------- ------------
December 31, 2003, March 31, 2004, June 30, 2004
and September 30, 2004 1.10 to 1.0
December 31, 2004, March 31, 2005 and June 30, 2005 1.20 to 1.0
September 30, 2005 and any Fiscal Quarter ending thereafter 1.35 to 1.0"
(b) LIMITATIONS ON INDEBTEDNESS. Section 6.2 of the Existing Note
Purchase Agreement shall be and is hereby amended and restated in its entirety
as follows:
"6.2. LIMITATION ON INDEBTEDNESS. The Company will not, nor
will it permit any of its Subsidiaries to, create, incur, assume or
permit to exist any Indebtedness, except:
(a) (i) Indebtedness created hereunder and
Guarantees executed pursuant hereto (including, without
limitation, the Guarantee and Collateral Agreement), and (ii)
Indebtedness and Guarantees under the Credit Agreement in an
aggregate principal amount not exceeding $271,167,164;
provided, however, that the amount of any increase in the
aggregate revolving commitments thereunder made in accordance
with Section 2.02(d) thereof that increases the aggregate
Indebtedness and Guarantees under the Credit Agreement to an
amount greater than $271,167,164, but less than or equal to
$299,667,164, shall be permitted;
(b) Indebtedness and Guarantees existing on the
First Amendment Effective Date and set forth on Schedule
6.2(b) and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal
amount thereof over the amount set forth in respect of such
Indebtedness on Schedule 6.2(b);
(c) Indebtedness owed to the Company by any of
its Wholly-Owned Subsidiaries, or owed to any of its
Wholly-Owned Subsidiaries by any of its other Wholly-Owned
Subsidiaries, that in each case is permitted under Section
6.5(c), and Indebtedness owed by the Company to any of its
Wholly-Owed Subsidiaries;
(d) Guarantees and Indebtedness arising in
connection with the SunTrust Sale and Leaseback;
(e) Guarantee obligations entered into by Big O
or its Subsidiaries on behalf of its franchisees, other than
those existing Guarantee obligations listed on Schedule
6.2(e), provided that the aggregate principal amount of such
guaranteed obligations arising after the date hereof plus the
aggregate principal amount of loans permitted under Section
6.5(h) at no time exceeds $20,000,000;
(f) Indebtedness of any Subsidiary which becomes
such as a result of an Acceptable Acquisition, including such
Indebtedness that is assumed or becomes the subject of a
Guarantee, but not any extensions, renewals or replacements
thereof; provided, that such Indebtedness is not created in
contemplation of or in connection with such Acceptable
Acquisition;
(g) Guarantees by the Company or any of its
Wholly-Owned Subsidiaries of Indebtedness of any of its other
Wholly-Owned Subsidiaries, provided such Indebtedness is
otherwise permitted pursuant to this Section 6.2;
(h) Guarantee obligations entered into by (x)
the Company or any of its Wholly-Owned Subsidiaries, of
obligations of any of its other Wholly-Owned Subsidiaries to
Persons other than their Affiliates, which obligations are
incurred by them in the ordinary course of business and do not
constitute Indebtedness, such as trade accounts payable,
customer advances, accrued expenses and lease payments that do
not constitute Indebtedness, and (y) the Company or any of its
Wholly-Owned Subsidiaries, of obligations of Persons other
than Subsidiaries and their Affiliates, provided that the
aggregate principal amount of the guaranteed obligations under
clause (y) plus the aggregate amount of the investments
permitted under Section 6.5(d) at no time exceeds $20,000,000;
(i) Guarantees and Indebtedness arising in
connection with the NTB Sale and Leaseback;
(j) Capitalized Lease Obligations in respect of
property acquired in the NTB Acquisition and set forth on
Schedule 6.2(b) in an aggregate amount not to exceed
$13,000,000;
(k) Guarantees and Indebtedness arising in
connection with sale and leaseback transactions permitted
under Section 6.10(d); and
(l) other Indebtedness not otherwise permitted
by clauses (a) through (k) of this Section 6.2 in an aggregate
principal amount not to exceed $25,000,000 at any time
outstanding."
(c) LIENS. Section 6.3 of the Existing Note Purchase Agreement
shall be and is hereby amended as follows:
(i) clause (c) thereof is hereby amended by (A) deleting
the phrase ", other than a Lien securing a Synthetic Lease permitted
under Section 6.2(d)," in the first and second lines thereof, and (B)
deleting the reference "Section 6.2(j)" contained in clause (iii) of
the proviso therein and inserting in its place "Section 6.2(l)";
(ii) clause (d) thereof is hereby amended by (A) deleting
the phrase ", other than a Lien securing a Synthetic Lease permitted
under Section 6.2(d)," in the first and second lines thereof, and (B)
deleting the reference "Section 6.2(j)" contained in clause (i) of the
proviso therein and inserting in its place "Section 6.2(l)";
(iii) clause (e) thereof is hereby amended and restated in
its entirety as follows:
"(e) Liens (i) arising in connection with the
SunTrust Sale and Leaseback, so long as the Indebtedness
secured thereby is permitted under Section 6.2(d), (ii)
arising in connection with the NTB Sale and Leaseback so long
as the Indebtedness secured thereby is permitted under Section
6.2(i), and (iii) other sale and leaseback transactions
permitted under Section 6.10(d);";
(d) FUNDAMENTAL CHANGES. Section 6.4 of the Existing Note Purchase
Agreement shall be and is hereby amended as follows:
(i) clause (e) thereof is hereby amended and restated in
its entirety as follows:
"(e) the disposal of Northern States Tire, Inc. or
STI Acquisition LLC to any Person shall be permitted, whether
by sale of assets or stock, or by merger, consolidation,
dissolution or liquidation; and"; and
(ii) a new clause (f) is hereby added to Section 6.4
immediately following clause (e) to read in its entirety as follows:
"(f) any Wholly-Owned Subsidiary may change its
entity form to, or otherwise convert to another form of
entity, which is also a Wholly-Owned Subsidiary and is a
grantor and guarantor under the Guarantee and Collateral
Agreement, or engage in any other restructuring, provided that
no assets of or ownership interests in any such Wholly-Owned
Subsidiary shall be transferred to a Person which is not also
a Wholly-Owned Subsidiary and a grantor and guarantor under
the Guarantee and Collateral Agreement.".
(e) INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND ACQUISITIONS.
Section 6.5 of the Existing Note Purchase Agreement shall be and is hereby
amended as follows:
(i) clause (h) thereof is hereby amended by deleting the
word "and" appearing at the end of such clause;
(ii) clause (i) thereof is hereby amended by deleting the
period at the end of such clause and inserting in its place "; and";
and
(iii) a new clause (j) is hereby added to Section 6.5
immediately following clause (i) to read in its entirety as follows:
"(j) the NTB Acquisition.".
(f) TRANSACTIONS WITH AFFILIATES. The proviso contained in Section
6.7 of the Existing Note Purchase Agreement shall be and is hereby amended and
restated in its entirety as follows:
"; provided that the foregoing shall not apply to transactions
(i) between the Company and any of its Wholly-Owned Subsidiaries or
between or among such Wholly-Owned Subsidiaries, as long as such
transactions do not violate Section 6.5; or (ii) if such transactions
occur in the ordinary course of business consistent with past practices
of the Company and/or Subsidiary, (A) transactions between the Company
or any Wholly-Owned Subsidiary and TBC de Mexico, a Mexican variable
capital corporation, or (B) transactions between Big O or any of its
Subsidiaries and any Joint Venture established by Big O or any of its
Subsidiaries in the ordinary course of business, the entire investment
in which is permitted under Section 6.5(d); or (iii) incident to any
dissolution or liquidation of STI Acquisition LLC and the associated
distribution or disposal of any of its assets to the extent permitted
under Sections 6.4(e) and 6.10(i)."
(g) SALE OF ASSETS. Section 6.10 of the Existing Note Purchase
Agreement shall be and is hereby amended as follows:
(i) clause (d) thereof is hereby amended and restated in
its entirety to read as follows:
"(d) one or more transactions in which fixed or
capital assets are sold and leased back on terms that do not
constitute Capitalized Lease Obligations (other than the
SunTrust Sale and Leaseback, the NTB Sale and Leaseback and
any transaction described in clause (e) below) provided that
(i) if the aggregate sale price of the assets sold exceeds
$15,000,000, the Net Proceeds of each such sale are used to
prepay principal of the Notes, the 1996 Notes and Bank Term
Loans, in accordance with Section 4.8;";
(ii) clause (f) thereof is hereby amended by deleting the
word "and" appearing at the end of such clause;
(iii) a new clause (h) is hereby added to Section 6.10
immediately following clause (g) to read in its entirety as follows:
"(h) the NTB Sale and Leaseback; and"; and
(iv) a new clause (i) is hereby added to Section 6.10
immediately following new clause (h) to read in its entirety as
follows:
"the disposition of the assets of, or the ownership
interests of the Company and its Wholly-Owned Subsidiaries in,
STI Acquisition LLC.".
3. AMENDMENTS TO DEFINITIONS.
(a) "APPLICABLE MARGIN". The definition of "Applicable Margin" in
Section 10.2 of the Existing Note Purchase Agreement shall be and is hereby
amended and restated in its entirety to read as follows:
""APPLICABLE MARGIN" means, (a) at any time on or after the
First Amendment Effective Date and prior to the later to occur of (i)
the six month anniversary of the First Amendment Effective Date and
(ii) the last day of the first Fiscal Quarter following the First
Amendment Effective Date on which the Adjusted Leverage Ratio is less
than 4.50
to 1.0 (for purposes of this definition, the "Termination Date"), one
percent (1.00%) per annum and (b) for the time periods specified below
(i) the interest rate per annum set forth in the table below opposite
the Adjusted Leverage Ratio for each of the two most recently ended
Fiscal Quarters at such time, and (ii) in all other cases, the
Applicable Margin then in effect shall remain unchanged.
ADJUSTED LEVERAGE RATIO AT INTEREST RATE PER
THE END OF EACH OF THE TWO ANNUM
TIME PERIOD MOST RECENT FISCAL QUARTERS
------------------------------- ---------------------------- -----------------
on or after the Termination greater than 4.75:1 1.00%
Date but prior to September
30, 2005 less than or equal to 4.75:1 0.00%
on or after September 30, 2005 greater than 4.50:1 1.00%
less than or equal to 4.50:1 0.00%"
(b) "BANK TERM LOAN". The definition of "Bank Term Loan" in
Section 10.2 of the Existing Note Purchase Agreement shall be and is hereby
amended and restated in its entirety to read as follows:
""BANK TERM LOAN" shall mean a loan made under the Credit
Agreement pursuant to any of Sections 2.01(b), 2.01(c) or 2.01(d) of
the Credit Agreement.".
(c) "CREDIT AGREEMENT". The definition of "Credit Agreement" in
Section 10.2 of the Existing Note Purchase Agreement shall be and is hereby
amended and restated in its entirety to read as follows:
""CREDIT AGREEMENT" shall mean the Amended and Restated Credit
Agreement, dated as of November 29, 2003, among the Company, First
Tennessee Bank, National Association, as Administrative Agent, JPMorgan
Chase Bank, as Co-Administrative Agent, and the other lenders party
thereto.".
(d) NEW DEFINITION - "FIRST AMENDMENT". Section 10.2 of the
Existing Note Purchase Agreement shall be and is hereby amended by inserting the
following new definition in its appropriate alphabetical order:
""FIRST AMENDMENT" means Amendment No. 1 to Note Purchase
Agreement, dated as of November 29, 2003, by and among the Company and
the holders of Notes.".
(e) NEW DEFINITION - "FIRST AMENDMENT EFFECTIVE DATE". Section
10.2 of the Existing Note Purchase Agreement shall be and is hereby amended by
inserting the following new definition in its appropriate alphabetical order:
""FIRST AMENDMENT EFFECTIVE DATE" means November 29, 2003.".
(f) "GUARANTEE AND COLLATERAL AGREEMENT". The definition of
"Guarantee and Collateral Agreement" in Section 10.2 of the Existing Note
Purchase Agreement shall be and is hereby amended and restated in its entirety
to read as follows:
""GUARANTEE AND COLLATERAL AGREEMENT" shall mean the Guarantee
and Collateral Agreement executed and delivered by the Company and each
Subsidiary Obligor in the form attached hereto as Exhibit 3.8, as
amended by that certain Amendment to Guarantee and Collateral
Agreement, dated as of November 29, 2003 and after giving effect to the
Assumption Agreements executed by each of NTB and TBC Nevada on the
First Amendment Effective Date and as further amended, supplemented (by
any other such similar Assumption Agreement or otherwise) or otherwise
modified from time to time.";
and the parenthetical expression "(the "GUARANTEE AND COLLATERAL AGREEMENT")" is
hereby deleted from Section 3.8 of the Existing Note Purchase Agreement.
(g) "INDEBTEDNESS". The definition of "Indebtedness" in Section
10.2 of the Existing Note Purchase Agreement shall be and is hereby amended by
deleting the phrase "Synthetic Leases" appearing in clause (k) thereof and
inserting in its place the phrase "synthetic leases".
(h) "INTERCREDITOR AGREEMENT". The definition of "Intercreditor
Agreement" in Section 10.2 of the Existing Note Purchase Agreement shall be and
is hereby amended and restated in its entirety to read as follows:
""INTERCREDITOR AGREEMENT" shall mean the Intercreditor
Agreement, dated as of March 31, 2003, by and among the holders of
Notes, the lenders party to the Credit Agreement and the Collateral
Agent, as amended, supplemented or otherwise modified from time to
time.";
and the parenthetical expression "(the "INTERCREDITOR AGREEMENT")" is hereby
deleted from Section 3.6 of the Existing Note Purchase Agreement.
(i) NEW DEFINITION - "NTB". Section 10.2 of the Existing Note
Purchase Agreement shall be and is hereby amended by inserting the following new
definition in its appropriate alphabetical order:
""NTB" means NTW Incorporated, a Delaware corporation.".
(j) NEW DEFINITION - "NTB ACQUISITION". Section 10.2 of the
Existing Note Purchase Agreement shall be and is hereby amended by inserting the
following new definition in its appropriate alphabetical order:
""NTB ACQUISITION" means the acquisition by the Company of all
of the issued and outstanding capital stock of NTB from Sears, Xxxxxxx
and Co. pursuant to a certain Stock Purchase Agreement dated as of
September 21, 2003, for an aggregate purchase price not to exceed
$225,000,000.".
(k) NEW DEFINITION - "NTB SALE AND LEASEBACK". Section 10.2 of the
Existing Note Purchase Agreement shall be and is hereby amended by inserting the
following new definition in its appropriate alphabetical order:
""NTB SALE AND LEASEBACK" means the sale, for an aggregate
price not to exceed $140,000,000 and the leasing back of up to
eighty-nine retail properties acquired by the Company in connection
with the NTB Acquisition.".
(l) "PREPAYMENT EVENT". Clause (b) of the definition of
"Prepayment Event" in Section 10.2 of the Existing Note Purchase Agreement shall
be and is hereby amended and restated in its entirety as follows:
"(b) any casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar proceeding
of, any property or asset of the Company or any Subsidiary, but only to
the extent that the Net Proceeds therefrom, together with any other
such Net Proceeds received after the First Amendment Effective Date,
exceed $5,000,000 in the aggregate and have not been applied to repair,
restore or replace such property or asset or to acquire other real
property, equipment or other tangible assets to be used in the business
of the Borrower or any Subsidiary within one year after such event; or"
(m) "SUNTRUST SALE AND LEASEBACK". The definition of "SunTrust
Sale and Leaseback" in Section 10.2 of the Existing Note Purchase Agreement
shall be and is hereby amended and restated in its entirety as follows:
""SUNTRUST SALE AND LEASEBACK" means the sale, for an
aggregate price of $5,840,000, and the leasing back of eight retail
stores previously owned by Merchant's, Incorporated, pursuant to the
Purchase Agreements and Lease Agreements, each dated as of September
30, 2003 among Merchant's, Incorporated and various affiliates of
SunTrust Equity Funding, LLC.".
(n) "TENNESSEE PROPERTY MORTGAGE". The definition of "Tennessee
Property Mortgage" in Section 10.2 of the Existing Note Purchase Agreement shall
be and is hereby amended and restated in its entirety as follows:
""TENNESSEE PROPERTY MORTGAGE" means that certain Deed of
Trust, Assignment of Leases and Security Agreement, dated as of March
31, 2003, in respect of real property and improvements in Memphis,
Tennessee owned by the Company securing its obligations to, among other
parties, the holders of Notes, in respect of, among other obligations,
the Company's obligations under this Agreement and the Notes, as
amended by that certain Amendment No. 1 to Deed of Trust, Assignment of
Leases and Security Agreement, dated as of November 29, 2003.".
4. AMENDMENTS TO SCHEDULES.
Schedules 6.2(b), 6.2(e), 6.3, 6.5(b), and 6.8 of the Existing Note
Purchase Agreement shall be and are hereby amended and restated in their
entireties as set forth on Schedule 6.2(b), 6.2(e), 6.3, 6.5(b), and 6.8,
respectively, attached hereto.
EXHIBIT B
AMENDMENT TO GUARANTEE AND COLLATERAL AGREEMENT
EXHIBIT C
AMENDMENT TO INTERCREDITOR AGREEMENT
EXHIBIT D
AMENDMENT FEE SCHEDULE
NOTEHOLDER AMENDMENT FEE
------------------------------------------- -------------
The Prudential Insurance Company of America
(Note R-1) $ 56,803
The Prudential Insurance Company of America
(Note R-2) $ 16,000
Pruco Life Insurance Company $ 5,698
RGA Reinsurance Company $ 12,500
Baystate Investments, LLC $ 18,875
United of Omaha Life Insurance Company $ 15,125
Schedule 3.7(b)
OWNED REAL PROPERTIES
TBC CORPORATION
Offices and Warehouse Located At:
0000 Xxxxxxx Xxxx Xxxx, Xxxxxxx, XX
BIG O TIRES & SUBSIDIARIES
Retail Tire Stores Located At:
0000 Xxxxxxx Xxxxxxx, Xxxxxxxx, XX
00000 S. Western Ave, Oklahoma City, OK
000 X. Xxxxxxx Xx, Xxxxxxx, XX
00000 X. Xxxxxxxx Xxxx., Xxxxxxx, XX
000 Xxxx 00xx Xx., Xxxxxxx, XX
0000 X. Xxxxx Xxx, Xxxxx Xxxxxx, XX
000 00xx Xxx., Xxxxxxxxx, XX
000 X. Xxxxxxx 00, Xxxxxxx, XX
0000 X. 000xx Xxx., Xxxxxxx, XX
000 X. Xxxxxxxxxx Xxx, Xxxxxxxxxx, XX
00000 Xxxxxxxxxx Xxxx, Xxxxxxxxx, XX
0000 00xx Xxxxxx, Xxxxxxxxxxx, XX
0000 Xxxx Xxxxxxx Xx., Xxx Xxxxx, XX
0000 Xxxxxx Xxx., Xxx Xxxxx, XX
0000 X. Xxxxxxxxx Xxx., Xxxxxxxxx, XX
000 Xxxx Xxxx, Xxxxxx, XX
0000 X Xxxxxx, Xxxxxxx, XX
Warehouses Located At:
0000 X. Xxxxxxx Xx., Xxxx Xxxx Xxxx, XX (capital lease)
0000 X. Xxxxxx Xx., Xxxxxx, XX (mini storage)
Retail Stores Under Development:
Greenfield and Main Streets, Mesa, AZ
Arapahoe and Potomac Avenues, Centennial, CO
Desert Foothills, Phoenix, AZ
Vacant Land Located At:
Approx. 000 X. Xxxxxxx 00, Xxxxxxx, XX
Approx. Colo & Havana, Aurora, CO
Approx. 0000 Xxxxxxx, Xxxxxxxx, XX
Approx. 000 Xxxx Xxxx, Xxxxxx, XX
Approx. Woodman & Rangewood, Colorado Springs, CO
Approx. 00000 Xxxxxxx Xxxx., Xxxxxxx, XX
MERCHANT'S, INCORPORATED
Retail Tire Stores Located At:
000 Xxxxxxxxxx Xxxxx, Xxxxxxxxx, XX
0000 Xxxxxxxxxxx Xxxx, Xxxxxxxxxx, X.X.
0000 X. Xxxxxxxx Xxxxxxx, Xxxxxxx, XX
000 X. Xxxxxxx Xxxx., Xxxxxxx, XX
00000 Warwick Blvd., Newport News, VA
0000 X. Xxxxxxxxxxx Xxxx., Xxxxxxxxxx, XX
Training Center:*
0000 Xxxxxx Xxxxxx, Xxxxxxxx, XX
* Training Center option to purchase has been exercised by Merchant's
stockholders (anticipated to be sold 1st Qtr 2004)
NORTHERN STATES TIRE, INC.
000 Xxxxx Xx., Xxx 0 XX Xxxx Subdivision, Williston, VT (retail store)
000 Xxxxxxxx Xxxxxxx Xxx, Xxxxxxx, XX (retail store and warehouse)
NTW INCORPORATED
Retail Tire Stores Located At:
0000 Xxxx Xxxxxxx, Xxxxxxx, XX (#7262)
00000 Xxx Xxxx Xxxx, Xxxxxxx, XX (#7352)
0000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, XX (#7541)
0000 Xxxx 000xx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx
Xx addition, NTW Incorporated leases 19 retail tire stores pursuant to various
capital leases described on Schedule 6.2(b) hereto.
SCHEDULE 6.2(b)
EXISTING INDEBTEDNESS
Indebtedness and Guarantees under or relating to the 1996 Notes.
Those Guarantees listed on Schedule 6.2(e).
TBC Corporation has guaranteed a $1,500,000 line of credit made available to TBC
de Mexico and TBC International Inc. by First Tennessee Bank National
Association.
TBC Corporation has guaranteed all obligations of Big O Retail Enterprises,
Inc., Tire Kingdom, Inc., Big O Tires, Inc., Xxxxxxx'x, Inc., Merchant's,
Incorporated and (after the closing date of the NTB Acquisition) expects to
guarantee all obligations of NTW Incorporated, to Michelin North America, Inc.
and its affiliates.
TBC Corporation has guaranteed all obligations of Tire Kingdom, Inc. to
Continental General Tire, Inc.
Capital Lease relating to the Salt Lake City Warehouse of Big O Tires, Inc.
(book value as of 9/30/03 is $1,130,000).
Various Capital Leases relating to 19 retail tire stores operated by NTW
Incorporated (at 9/27/03, aggregate ending principal was $12,106,943 and
aggregate net book value was $7,898,965).
SCHEDULE 6.2(e)
GUARANTEE OBLIGATIONS OF BIG O TIRES, INC. AND SUBSIDIARIES
Big O Guarantee Portion at 9/30/03
The CIT Group
Intermountain Realty - Sioux Falls $ 358,886.66
Xxxxxxx Xxxxx
Loan portfolio (sold 6/30/97,9/30/97,12/31/98) 11,280.65
GE Capital
Las Vegas (Xxxxx Xxxxx) 290,000.00
Las Vegas 371,523.01
82nd St. Oregon 211,781.86
Boulder, CO 45,742.96
Fresno Winston Location 55,000.00
Xxxxxx Xxxxxxx Location 70,000.00
L&W Tire Service Center, LLC 245,409.87
L&W Tire Service Center, LLC 310,371.25
OKC, LLC JV 125,000.00
Real Estate Lease Guarantees 1,047,120.88
-------------
Total Guarantees $3,142,117.14
SCHEDULE 6.3
EXISTING LIENS
- Liens arising under the Guarantee and Collateral Agreement.
- Numerous UCC financing statements evidencing operating lease
transactions in which TBC Corporation and its Subsidiaries are lessees
have been filed and are still in effect.
- Mortgage on the Tennessee headquarters of TBC Corporation recorded
pursuant to the Credit Agreement.
UCC Filings and Mortgages Against Big O Tires, Inc. and Its Subsidiaries:
The CIT Group/Equipment Financing, Inc.
Filings in connection with sales of franchisee notes receivable.
SunTrust Bank, as Agent.
Filings in connection with Synthetic Leases (in process of being
terminated).
First National Bank of Xxxxxxxxx.
Filing in connection with equipment financing by Big O Tire of Idaho,
inc.
Xxxxx X. Xxxx
Filing to evidence consigned Interstate Battery System of America
inventory.
UCC Filings Against Tire Kingdom, Inc.:
Michelin North America, Inc. and related entities.
Purchase money security interest filing against all inventory purchased
from secured party by Tire Kingdom and all proceeds therefrom.
UCC Filings Against Merchant's, Incorporated or Merban, Inc:
Bridgestone/Firestone, Inc.
Consigned inventory of the secured party.
Bandag, Incorporated
Liens relating to Bandag equipment and related collateral used in the
retreading operations of Merban (in process of being terminated).
SCHEDULE 6.5(b)
CERTAIN EXISTING INVESTMENTS AND LOANS
- See Exhibit A for a listing of all existing Subsidiaries.
- TBC of Nevada LLC owns 40% of STI Acquisition LLC, a Nevada limited
liability company.
- TBC Corporation owns 20,000 shares of Series A Preferred Stock, $.01
par value, of Xxxxx Automotive, Corp. and 14.4 shares of Common Stock,
$100 par value, of V.I.P., Inc. (total investment - $5,000,000).
- TBC International Inc. owns approximately 49% of the ownership
interests in TBC de Mexico, S.A. de C.V., a Mexican company.
- Big O Retail Enterprises, Inc. is a 50% shareholder in Tires Industries
Corporation, a Utah corporation.
- Big O Development, Inc. loaned Xxxxx Xxxxxxx Tufts $297,000 on October
10, 1994. At 10/31/03, the balance on the promissory note relating
thereto was $105,923.
- Xxxxxxx'x, Inc. owns 50 shares of stock of The Hercules Tire & Rubber
Company.
- Xxxxxxx'x Inc. owns 360 shares of stock of Carmerica, Inc.
- Big O Tires, Inc. holds a 50% interest in each of the following joint
ventures:
BORE/MPC, LLC (a Missouri LLC)
OKC, LLC (a Colorado LLC)
Intermountain Development Joint Venture (a Colorado general
partnership) One Stop Undercar Denver, LLC (a Colorado LLC)
EXHIBIT A TO
SCHEDULE 6.5(b)
COMPANY AND SUBSIDIARIES AND JURISDICTIONS OF ORGANIZATION
Company: TBC Corporation, a Delaware corporation ("TBC")
Subsidiaries Directly Owned by TBC:
Jurisdiction of Percentage of Stock/
Name Organization Equity Owned by TBC Subsidiaries
---------------------------- --------------- -------------------- ------------
Big O Tires, Inc. Nevada 100% See Below
Xxxxxxx'x, Inc. Georgia 100% None
Northern States Tire, Inc. Delaware 100% None
TBC International Inc. Delaware 100% None
TBC Retail Enterprises, Inc. Delaware 100% See Below
TBC Brands, LLC Delaware 100% None
TBC Capital, LLC Delaware 90%* None
TBC of Nevada LLC Nevada 100% None
*5% is owned by each of Xxxxxxx'x, Inc. and Tire Kingdom, Inc.
Subsidiaries Directly Owned by Big O Tires, Inc.:
Jurisdiction of Percentage of Stock
Name Incorporation Owned by Big O Subsidiaries
------------------------- --------------- ------------------- ------------
Big O Development, Inc. Colorado 100% None
O Advertising, Inc. Colorado 100% None
Big O Tire of Idaho, Inc. Idaho 100% None
Subsidiaries Directly Owned by TBC Retail Enterprises, Inc.:
Jurisdiction of Percentage of Stock
Name Incorporation Owned by TBC Retail Subsidiaries
------------------------- --------------- ------------------- ------------
Big O Retail Enterprises, Colorado 100% None
Inc.
Tire Kingdom, Inc. Florida 100% See Below
Subsidiaries Directly Owned By Tire Kingdom, Inc.:
Jurisdiction of Percentage of Stock
Name Incorporation Owned by TKI Subsidiaries
------------------------- --------------- ------------------- ------------
Merchant's, Incorporated Delaware 100% See Below
Subsidiaries Directly Owned By Merchant's, Incorporated:
Jurisdiction of Percentage of Stock
Name Incorporation Owned by Merchant's Subsidiaries
------------------ --------------- ------------------- ------------
Merban, Inc. Virginia 100% None
NTW Incorporated** Delaware 100% None
--
----------
** After Closing Data of NTB Acquisition
--
SCHEDULE 6.8
EXISTING RESTRICTIONS
The documents evidencing the Credit Agreement contain restrictions and
conditions of the type described in Section 6.8.
The documents evidencing the SunTrust Sale and Leaseback contain restrictions
and conditions of the type described in Section 6.8.
The documents evidencing the NTB Sale and Leaseback contain restrictions and
conditions of the type described in Section 6.8.
