EXHIBIT 4.4
CONFORMED COPY
Recording requested by, and when Shelby County, Tennessee
recorded, please return to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
AMENDMENT NO. 1 TO DEED OF TRUST, ASSIGNMENT OF LEASES AND SECURITY
AGREEMENT
between
TBC CORPORATION,
Grantor
and
JPMORGAN CHASE BANK, as Collateral Agent,
Beneficiary
DATED AS OF NOVEMBER 29, 2003
AMENDMENT NO. 1 TO DEED OF TRUST, ASSIGNMENT OF LEASES AND SECURITY
AGREEMENT
AMENDMENT NO. 1 TO DEED OF TRUST, ASSIGNMENT OF LEASES AND
SECURITY AGREEMENT (this "Amendment") dated as of November 29, 2003 by and
between TBC CORPORATION, a Delaware corporation ("Grantor") and JPMORGAN CHASE
BANK, a New York banking corporation, in its capacity as Collateral Agent (in
such capacity, "Beneficiary").
Preliminary Statement
Grantor executed and delivered that certain Deed of Trust,
Assignment of Leases and Security Agreement dated as of March 31, 2003 and more
particularly described on Schedule 1 attached hereto (as the same may be
amended, restated, replaced, modified or supplemented from time to time, the
"Instrument").
Grantor and Beneficiary desire to amend the Instrument as
hereinafter set forth.
Agreement
In consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor and Beneficiary agree as follows:
1. The first sentence in the first full paragraph on the first
page of the Instrument is hereby amended so that (a) the words "(the
"Instrument")" are hereby inserted immediately following the words THE
INSTRUMENT appearing therein, (b) the parenthetical expression "(the
Intercreditor Agreement")" appearing in the fourth line thereof is deleted, and
(c) the language "as amended by that certain First Amendment to Intercreditor
Agreement, dated as of November 29, 2003 (as further amended, restated,
supplemented or otherwise modified from time to time, the "Intercreditor
Agreement")" is inserted immediately following the phrase "of even date
herewith" in the fifth line thereof.
2. The first sentence of the first paragraph of the "WITNESSETH"
clause on the first page of the Instrument is hereby deleted in its entirety,
and the following is substituted in lieu thereof:
"Grantor, as Borrower, the Lenders, FTB, as
Administrative Agent, Beneficiary, as
Co-Administrative Agent, U.S. Bank National
Association ("USB"), as Documentation Agent, and
Suntrust Bank ("Suntrust"), as Syndication Agent, are
parties to that certain Credit Agreement, dated as of
March 31, 2003, as amended and restated pursuant to
that certain Amended and Restated Credit Agreement
amongst Grantor, as Borrower, the Lenders, FTB, as
Administrative Agent, Beneficiary, as
Co-Administrative Agent, USB, as Documentation Agent,
and Suntrust, as
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Syndication Agent, dated as of November 29, 2003 (as
amended, supplemented, substituted, restated or
otherwise modified from time to time, the "Credit
Agreement")."
3. The second paragraph of the "WITNESSETH" clause on the first
page of the Instrument is hereby amended so that (a) the language ", as amended
by Amendment No. 1 to Second Amended and Restated Note Agreement dated as of
November 29, 2003 (the "Series AB&C Amendment")" is added immediately following
the date of "April 1, 2003" in the first sentence thereof, (b) the phrase "as
amended by the Series AB&C Amendment and as further" is added immediately
following the opening parenthesis in the fifth line thereof, and the first
occurrence of the word "as" appearing in such parenthetical expression is hereby
deleted and (c) the language ",as amended by Amendment No. 1 to Note Purchase
Agreement dated as of November 29, 2003 (the "Series D Amendment" and together
with the Series AB&C Amendment, the "Note Agreement Amendments")" is hereby
added immediately following the date of "April 1, 2003" in the second sentence
thereof.
4. The paragraph on the second page of the Instrument beginning
with the language "NOW, THEREFORE" is hereby amended by inserting the language
"Prudential's execution of the Note Agreement Amendments" after the comma in the
second line thereof.
5. The paragraph on the second and third pages of the Instrument
beginning with the language "TO HAVE AND TO HOLD" is hereby deleted in its
entirety and the following paragraph is substituted in lieu thereof:
"TO HAVE AND TO HOLD the Property unto Trustee, his
successors and assigns forever in trust, to secure the payment
of the unpaid principal of and interest on the Prudential
Notes, the Loans and Reimbursement Obligations and all other
obligations and liabilities of Grantor (including, without
limitation, interest accruing at the then applicable rate
provided in the Credit Agreement, the Note Agreements and the
Prudential Notes after the maturity of the Loans, the
Reimbursement Obligations and the Prudential Notes and
interest accruing at the then applicable rate provided in the
Credit Agreement, the Note Agreements and the Prudential
Notes, as applicable, after the filing of any petition in
bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Grantor,
whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) to the Collateral
Agent or any Secured Party, whether direct or indirect,
absolute or contingent, due or to become due, or now existing
or hereafter incurred, which may arise under, out of, or in
connection with, the Credit Agreement, the Note Agreements,
the Prudential Notes, the Guarantee and Collateral Agreement,
this Instrument, any Letter of Credit and any guarantee of the
Grantor's obligations in respect of any of the foregoing as
from time to time in effect, any Specified Hedging Agreement
or any other document made, delivered or given in connection
with any of the foregoing, in each case whether on account of
principal, interest, reimbursement obligations, Make-Whole
Amounts, fees, indemnities, costs, expenses or otherwise
(including,
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without limitation, all fees and disbursements of counsel to
the Collateral Agent or to the Secured Parties that are
required to be paid by the Grantor pursuant to the terms of
any of the foregoing agreements) (collectively, but not
including any Specified Hedging Agreement, the "Loan
Documents") (all such indebtedness and obligations being
herein called the "Secured Indebtedness") (capitalized terms
used but not defined in this paragraph shall have the meanings
ascribed thereto in the Guarantee and Collateral Agreement,
dated as of March 31, 2003, by and among the Grantor, certain
of the Grantor's subsidiaries and the Beneficiary, as amended
by that certain First Amendment to Guarantee and Collateral
Agreement, dated as of November 29, 2003 (as further amended,
restated, supplemented or otherwise modified from time to
time, the "Guarantee and Collateral Agreement").
6. Paragraph 21 of the Instrument is hereby amended such that the
words "Deed of Trust" in the second sentence thereof are hereby deleted, and the
word "Instrument" is hereby substituted in lieu thereof.
7. All references in the Instrument to the defined term the
"Instrument" shall be deemed to mean and refer to the Instrument as amended by
this Amendment, and as the same may be further amended, supplemented, restated,
extended, substituted, replaced or otherwise modified from time to time.
Capitalized terms used but not defined in the Instrument or in this Amendment,
including in the Preamble above, shall have the meanings ascribed thereto in the
Guarantee and Collateral Agreement, dated as of March 31, 2003, by and among the
Grantor, certain of the Grantor's subsidiaries and the Beneficiary, as amended
by that certain First Amendment to Guarantee and Collateral Agreement, dated as
of November 29, 2003 (as further amended, restated, supplemented or otherwise
modified from time to time, the "Guarantee and Collateral Agreement").
8. Grantor and Beneficiary expressly acknowledge and agree that,
except as expressly set forth herein, this Amendment shall not alter, amend,
modify or otherwise affect the terms, provisions and conditions of the Loan
Documents or any Specified Hedging Agreement, and Grantor and Beneficiary hereby
ratify, confirm and agree that the Loan Documents and all liens, security
interests, assignments, powers, indemnities, waivers and other rights created
for the benefit of Beneficiary or any other Secured Party thereunder, including,
without limitation, the lien created by the Instrument, as amended by this
Amendment, shall continue to secure, in the same manner, in the same priority
and to the same extent set forth therein, the payment and performance of the
Secured Indebtedness, and all of same are hereby renewed, extended, carried
forward, ratified and confirmed and shall be deemed for all purposes in full
force and effect.
9. Grantor and Beneficiary acknowledge and agree that the
execution and/or acceptance of this Amendment by Beneficiary shall not be deemed
or construed as a (a) novation or an accord and satisfaction of any of Grantor's
or Beneficiary's duties, obligations and liabilities contained in the Loan
Documents or any Specified Hedging Agreement; (b) waiver, modification,
restriction or limitation of any and all of Grantor's or Beneficiary's rights
and benefits arising under the Loan Documents or any Specified Hedging Agreement
by operation of law, or otherwise, to demand full, complete and strict
performance of the duties, obligations and
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liabilities contained in the Loan Documents or any Specified Hedging Agreement;
or (c) precedent, and that Beneficiary shall be under no obligation, express or
implied, to grant Grantor any future or further modification, renewal, extension
and/or amendment to the Instrument, as amended hereby or any or all of the other
Loan Documents or any Specified Hedging Agreement, except as provided therein.
10. This Amendment may be executed by one or more of the parties
to this Amendment on any number of separate counterparts with the same effect as
if the signature thereto and hereto were upon the same instrument, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
11. Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction or court shall, as to such jurisdiction or
court, 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 or court shall not invalidate or render
unenforceable such provision in any other jurisdiction or court.
12. This Amendment, the Loan Documents and any Specified Hedging
Agreement represent the entire agreement of the parties with respect to the
subject matter hereof, and there are no promises, undertakings, representations
or warranties by any party relative to the subject matter hereof not expressly
set forth or referred to herein or therein.
13. Neither this Amendment nor any terms hereof may be amended,
supplemented or modified except by a written instrument executed by the parties
hereto. This Amendment shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns.
14. Each of the parties hereto, and the respective representatives
thereof executing this Amendment on their respective behalves, represents that
such representative has full power, authority and legal right to execute and
deliver this Amendment and that the same constitutes a valid and binding
obligation of such party.
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IN WITNESS WHEREOF, this Amendment has been duly executed by Grantor
and Beneficiary as of the day and year first above written.
TBC CORPORATION, a Delaware
corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President/
Chief Financial Officer
JPMORGAN CHASE BANK,
as Collateral Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
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UNIFORM FORM CERTIFICATE OF ACKNOWLEDGMENT
(Within________)
State of Tennessee )
County of Shelby ) ss.:
On the 25th day of November in the year 2003 before me, the
undersigned, personally appeared ▇.▇. ▇▇▇▇▇▇ personally known to me or proved to
me on the basis of satisfactory evidence to be the individual(s) whose name(s)
is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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NOTARY PUBLIC
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UNIFORM FORM CERTIFICATE OF ACKNOWLEDGMENT
(Within _____)
State of New York)
County of New York) ss.:
On the 25th day of November in the year 2003 before me, the
undersigned, personally appeared ▇▇▇▇▇ ▇▇▇▇▇ personally known to me or proved to
me on the basis of satisfactory evidence to be the individual(s) whose name(s)
is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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NOTARY PUBLIC
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SCHEDULE 1
Description of Deed of Trust, Assignment of Leases and Security Agreement
The following Security Instrument is recorded in the public records of
City/Town: Memphis
County: Shelby
State: Tennessee
Deed of Trust (the "Deed of Trust")
Grantor: TBC Corporation
Trustee (if any): ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
Beneficiary: The Chase Manhattan Bank (now known as JPMorgan Chase Bank)
Dated: 03/31/03
Recorded: 5/14/03
Document Number: 03094271
The Deed of Trust encumbers premises described therein and on Schedule A hereto.
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SCHEDULE A
Commencing at the intersection of the centerline of East Shelby Drive with the
centerline of Hickory Hill Road; thence south along the centerline of Hickory
Hill Road a call distance of 478.67 feet to a point; thence east a distance of
54.00 feet to the point of beginning, said point being on the east line of
Hickory Hill Road; thence S 87(degrees) 25' 42" E a distance of 1598.04 feet to
a one-half inch rebar found at a fence corner; thence S 02(degrees) 21' 18" W a
distance of 540.00 feet to a point on the centerline of a fifty feet wide
railroad, drainage and utility easement (unrecorded); thence N 87(degrees) 25'
42" W a distance of 1597.90 feet along said easement centerline to a point on
the east line of Hickory Hill Road; thence N 02(degrees) 20' 25" E a distance of
540.00 feet to the point of beginning and containing 19.809 acres.
Being the same real estate conveyed to TBC Corporation by Warranty Deed dated
July 17, 1991, of record under Instrument No. CH-2450 in the Register's Office
of Shelby County, Tennessee.