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EXHIBIT 4.3
EXECUTION VERSION
TBC CORPORATION
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AMENDMENT NO. 2 TO SECOND AMENDED
AND RESTATED NOTE AGREEMENT
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DATED AS OF NOVEMBER 19, 2004
SERIES A SENIOR NOTES DUE JULY 10, 2003 (PAID IN FULL)
SERIES B SENIOR NOTES DUE JULY 10, 2005
SERIES C SENIOR NOTES DUE JULY 10, 2008
GUARANTEED BY CERTAIN SUBSIDIARIES OF TBC CORPORATION
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TBC CORPORATION
SERIES A SENIOR NOTES DUE JULY 10, 2003 (PAID IN FULL)
SERIES B SENIOR NOTES DUE JULY 10, 2005
SERIES C SENIOR NOTES DUE JULY 10, 2008
GUARANTEED BY SUBSIDIARIES OF TBC CORPORATION
AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED
NOTE AGREEMENT
As of November 19, 2004
The Noteholder Named on
the Signature Page hereto
Ladies and Gentlemen:
TBC CORPORATION, a Delaware corporation (together with its permitted
successors and assigns, the "COMPANY") and TBC PARENT HOLDING CORP., a Delaware
corporation (the "HOLDING COMPANY"), hereby agree with you as follows:
1. BACKGROUND.
The Company and The Prudential Insurance Company of America (the
"NOTEHOLDER") are party to a Second Amended and Restated Note Agreement (as
amended by that certain Amendment No. 1 to Second Amended and Restated Note
Agreement dated as of November 29, 2003 and as in effect immediately prior to
the effectiveness of this Agreement, the "EXISTING NOTE AGREEMENT" and, as
amended hereby and as may be further amended, restated or otherwise modified
from time to time, the "NOTE AGREEMENT"), dated as of April 1, 2003, governing
the terms of, and amending, the Company's (a) Series A Senior Notes due July 10,
2003 (which have been paid in full), (b) Series B Senior Notes due July 10, 2005
(the "SERIES B NOTES") and (c) Series C Senior Notes due July 10, 2008 (the
"SERIES C NOTES" and together with the Series B Notes, the "NOTES"). The
aggregate principal amount of the Series B Notes outstanding on the date hereof
is $5,500,000 and the aggregate principal amount of the Series C Notes
outstanding on the date hereof is $16,500,000, all of which Notes are held by
the Noteholder. The obligations of the Company under the Note Agreement and the
Notes are secured by: (a) a lien on certain assets of (and are guaranteed by)
certain Subsidiaries of the Company (the "SUBSIDIARY OBLIGORS") pursuant to that
certain Guarantee and Collateral Agreement, dated as of March 31, 2003 (as
amended from time to time, the "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 (as amended from time to time, the
"COMPANY MORTGAGE"). Contemporaneously herewith, the Company is undertaking a
corporate reorganization (the "REORGANIZATION") pursuant to Section 251(g) of
the Delaware General Corporation Law by (a) merging a Wholly-Owned Subsidiary of
the Holding Company into the Company (with the Company being the surviving
entity), and (b) subsequently changing the
name of the surviving entity to TBC Private Brands, Inc. Upon the effectiveness
of the Reorganization, the Holding Company will be the holding company parent of
the Company and will be renamed TBC Corporation. The Company has requested that
the Noteholder agree to amend the Existing Note Agreement to reflect the
corporate changes made pursuant to the Reorganization as set forth herein. The
Noteholder has, subject to the satisfaction of the conditions set forth in
Section 5 of this Agreement, consented to such request. 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 Agreement. Other defined terms used herein
shall have the meanings set forth below:
"AGREEMENT, THIS" means this Amendment No. 2 to Second Amended and
Restated Note Agreement.
"AMENDMENTS" is defined in Section 4.1.
"ASSUMPTION AGREEMENTS" is defined in Section 5.6.
"COMPANY" is defined in the introductory paragraph.
"COMPANY MORTGAGE" is defined in Section 1.
"EXISTING NOTE AGREEMENT" is defined in Section 1.
"FINANCING DOCUMENTS" means this Agreement, the Note Agreement, the Notes,
the Guarantee and Collateral Agreement, the Company Mortgage and the Assumption
Agreements.
"GUARANTEE AND COLLATERAL AGREEMENT" is defined in Section 1.
"NOTEHOLDER" is defined in Section 1.
"NOTE AGREEMENT" is defined in Section 1.
"NOTES" is defined in Section 1.
"OBLIGORS" means the Company, the Holding Company and the Subsidiary
Obligors.
"PRO FORMA BALANCE SHEET" is defined in Section 3.9.
"REORGANIZATION" is defined in Section 1.
"SECOND AMENDED AND RESTATED CREDIT AGREEMENT" means the Second Amended
and Restated Credit Agreement, dated on or about the date hereof, by and among
the Company, the Holding Company, First Tennessee Bank, National Association, as
Administrative Agent, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, as Co-Administrative Agent, and the
other lenders party thereto.
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"SERIES B NOTES" is defined in Section 1.
"SERIES C NOTES" is defined in Section 1.
"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.
"SUBSIDIARY OBLIGORS" is defined in Section 1.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce the Noteholder to enter into this Agreement, the Holding Company
and the Company represent and warrant that:
3.1. ORGANIZATION AND EXISTENCE.
Each of the Company and the Holding Company 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 each of the Company and the Holding Company of this Agreement 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 of the Company and the Holding
Company has duly authorized this Agreement by all necessary corporate or
other action on its part. This Agreement has been executed and delivered
by one or more duly authorized officers of each of the Company and the
Holding Company, 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:
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(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 this Agreement by the Company and
the Holding Company, nor the fulfillment of or compliance with the terms and
provisions of any Financing Document to which each is a party, 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,
the Holding Company or any Subsidiary (other than those permitted by Section 6.3
of the Note Agreement) pursuant to its charter, bylaws or other constitutive
documents, any award of any arbitrator or any agreement (including any agreement
with stockholders), instrument, order, judgment, decree, statute, law, rule or
regulation to which any of the Company, the Holding Company or such Subsidiary
is subject.
3.4. GOVERNMENTAL CONSENT.
Neither the execution and delivery of this Agreement by the Company and
the Holding Company, nor the performance by the Obligors of their respective
obligations under the Financing Documents, is such as to 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 this Agreement or the fulfillment of or compliance with the terms
and provisions of the Financing Documents.
3.5. FULL DISCLOSURE.
This Agreement and the documents, certificates or other writings delivered
to the Noteholder by or on behalf of any Obligor 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 the Holding Company, or to the best knowledge of the Company
or the Holding 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 Noteholder 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 this Agreement and the effectiveness of the amendments provided for
herein: (a) would constitute a Default or an Event of Default, or (b) could
reasonably be expected to result in a Material Adverse Effect.
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3.7. PROPERTIES.
(a) The Company, the Holding Company and each of their respective
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 Liens permitted by Section 6.3 of the Note Agreement and
minor defects in title that do not interfere with its ability to conduct
its 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,
the Holding Company or any of their respective Subsidiaries having a value
(together with improvements thereof) of at least $10,000,000.
3.8. ASSETS.
(a) Schedule 3.4 to the Guarantee and Collateral Agreement accurately
describes the name and registration number of all federally registered
trademarks, trade names and service marks of the Holding Company and its
Subsidiaries as of ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) Schedule 4 to the First Amendment to
Guarantee and Collateral Agreement, dated November 29, 2003, accurately
describes the name and registration number of all federally registered
trademarks, trade names and service marks of the Holding Company and its
Subsidiaries acquired between April 1, 2003 and November 29, 2003, and (c)
Schedule 3.8 to this Agreement accurately describes, as of the Effective Date,
the name and registration number of all federally registered trademarks, trade
names and service marks of the Holding Company and its Subsidiaries acquired
after November 29, 2003.
3.9. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(a) Since December 31, 2003, there has been no material adverse
change in the business, assets, operations, prospects or condition,
financial or otherwise, of the Holding Company, the Company and its
Subsidiaries, taken as a whole.
(b) The unaudited pro forma consolidating balance sheet of Holdings
and its subsidiaries as of August 31, 2004 (the "PRO FORMA BALANCE
SHEET"), copies of which have heretofore been furnished to the Noteholder,
has been prepared giving effect (as if such events had occurred on such
date) to the Reorganization. The Pro Forma Balance Sheet has been prepared
using the Company's balance sheet as at August 31, 2004 and, to the best
of the Holding Company's knowledge as of the Effective Date, presents
fairly on a pro forma basis the estimated financial position of the
Holding Company and its Subsidiaries as at August 31, 2004, assuming that
the Reorganization had actually occurred at such date.
3.10. SOLVENCY.
The Company and the Holding Company are, and after giving effect to the
Reorganization will be, and will continue to be, Solvent.
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4. AMENDMENTS.
4.1. AMENDMENTS IN RESPECT OF THE EXISTING NOTE AGREEMENT.
The Company, the Holding Company and the Noteholder hereby agree that,
subject to Section 5 hereof, the Existing Note Agreement is hereby amended in
the manner specified in Exhibit A to this Agreement (collectively, the
"AMENDMENTS").
4.2. JOINDER OF HOLDING COMPANY.
Upon the effectiveness of this Agreement, (a) all of the obligations of
the Company to make payments on the Notes shall apply with equal force to the
Holding Company as if the Company and the Holding Company had executed the Note
Agreement and the Notes as joint and several obligors thereunder, (b) all
covenants, restrictions and prohibitions applicable to the Company contained in
the Existing Note Agreement (including, without limitation, those obligations,
restrictions and prohibitions set forth in Sections 5 through 7, inclusive, of
the Existing Note Agreement) shall apply to the Holding Company such that
references contained therein to "the Company" or "the Company and its
Subsidiaries" shall be deemed to have been replaced by references to "the
Holding Company" or "the Holding Company and its Subsidiaries", as the case may
be, and (c) all definitions contained in the Note Agreement that are calculated
or defined on a consolidated basis shall include the Holding Company in such
calculation or definition.
Notwithstanding the provisions of the preceding paragraph, any references
to "the Company" contained in clauses (a), (b), (c), (d), (e), (l) and (o) of
Section 7.1 of the Existing Note Agreement are hereby each replaced with
references to "the Company or the Holding Company".
4.3. EFFECT OF AMENDMENTS.
Except as expressly provided herein, (a) no terms or provisions of the
Existing Note 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 Noteholder of, or otherwise
prejudice the Noteholder's rights, remedies or powers under, the Note 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, the Holding Company and the Noteholder shall have executed
and delivered a counterpart of this Agreement.
5.2. REPRESENTATIONS AND WARRANTIES TRUE.
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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 Second Amended and Restated Credit Agreement shall have been executed
and delivered by all parties thereto and a copy thereof shall have been
delivered to the Noteholder.
5.4. AUTHORIZATION.
The Company and the Holding Company 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 the Holding Company, as the case may be.
5.5. SECRETARY'S CERTIFICATES.
Each of the Company and the Holding Company shall have executed and
delivered to the 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 this Agreement, and the satisfaction of all closing
conditions set forth in this Section 5 applicable to it;
(b) its certificate of incorporation and all amendments thereto;
(c) 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.
5.6. ASSUMPTION AGREEMENTS; FILINGS.
Each of the Holding Company and TBC Private Brands of Texas LLC shall have
executed and delivered to the Noteholder and the Collateral Agent an Assumption
Agreement (collectively, the "ASSUMPTION AGREEMENTS"), in the form of Annex 1 to
the Guarantee and Collateral Agreement and appropriate Uniform Commercial Code
and (in the case of the Company) real estate filings shall have been made to
reflect the change in the Company's name following the Reorganization and the
addition of the Holding Company as an Obligor.
5.7. CONSUMMATION OF REORGANIZATION.
The Reorganization shall have been consummated in accordance with
applicable law, and all governmental and material third party approvals
necessary in connection with the
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Reorganization and the continuing operation of the Holding 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 any competent authority that would restrain, prevent or otherwise
impose adverse conditions on the Reorganization.
5.8. STOCK CERTIFICATES.
The Collateral Agent shall have received the certificates representing the
shares of Capital Stock of the Company pledged pursuant to the Guarantee and
Collateral Agreement, together with an undated stock power for such certificates
executed in blank by a duly authorized officer of the Holding Company.
5.9. OPINION OF COUNSEL TO THE COMPANY AND THE HOLDING COMPANY.
The Noteholder shall have received an opinion (addressed to the Noteholder
and dated the Effective Date) of ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the Company and
the Holding Company, in form and substance satisfactory to the Noteholder.
5.10. SPECIAL COUNSEL FEES.
The Company shall have paid the reasonable fees and disbursements of the
Noteholder's special counsel in accordance with Section 6 below.
5.11. PROCEEDINGS SATISFACTORY.
All proceedings taken in connection with this Agreement and all documents
and papers relating thereto shall be satisfactory to the Noteholder and its
special counsel, and the Noteholder and its special counsel shall have received
copies of such documents and papers as the Noteholder or its special counsel may
reasonably request in connection herewith.
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 Noteholder's special counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 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 Agreement.
7. MISCELLANEOUS.
7.1. PART OF NOTE AGREEMENT, RATIFICATION AND CONFIRMATION.
This Agreement shall be construed in connection with and as a part of the
Existing Note Agreement and, except as expressly amended by this Agreement, all
terms, conditions and covenants contained in the Existing Note Agreement and the
Notes are hereby ratified and confirmed and shall be and remain in full force
and effect. Any and all notices, requests,
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certificates and other instruments executed and delivered after the execution
and delivery of this Agreement may refer to the Existing Note 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.
7.2. 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.
7.3. 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.
7.4. 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
returning it to the Company, whereupon the foregoing shall become a binding
agreement among you, the Company and the Holding Company.
Very truly yours,
TBC CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: EVP/CFO
TBC PARENT HOLDING CORP.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: EVP/CFO
[Signature Page to Amendment No. 2 to Second Amended and Restated
Note Agreement]
The foregoing Agreement is hereby accepted
as of the date first above written.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
[Signature Page to Amendment No. 2 to Second Amended and Restated
Note Agreement]
EXHIBIT A
AMENDMENTS TO EXISTING NOTE AGREEMENT
1. AMENDMENTS TO NEGATIVE COVENANTS.
(A) LIMITATIONS ON INDEBTEDNESS. Section 6.2(c) of the Existing Note
Agreement shall be and is hereby amended and restated in its entirety as
follows:
"(c) Indebtedness owed to the Holding Company, the Company or
any Wholly-Owned Subsidiary by any of the Holding Company, the
Company or any Wholly-Owned Subsidiary, that in each case is
permitted under Section 6.5(c);".
(B) FUNDAMENTAL CHANGES. Section 6.4 of the Existing Note Agreement shall
be and is hereby amended by deleting "; and" at the end of clause (e) of such
Section and adding two new clauses (g) and (h) to such Section immediately
following clause (f) to read in its entirety as follows:
"(g) the Holding Company may merge or consolidate with or into
the Company, and the Company may merge or consolidate with or into
the Holding Company; and
(h) a Wholly-Owned Subsidiary of the Holding Company may merge
or consolidate with or into the Company pursuant to the
Reorganization (as defined in the Second Amendment)."
(C) INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND ACQUISITIONS. Section 6.5
is hereby amended and restated by amending and restating clauses (c), (g) and
(h) of such Section in their entirety to read as follows:
"(c) advances made by the Holding Company, the Company or any
Wholly-Owned Subsidiary to the Holding Company, the Company or any
Wholly-Owned Subsidiary;";
"(g) Any separate individual Acquisition completed after the
date of this Agreement which has been either (i) approved by the
Board of Directors of the corporation, or the comparable or
appropriate body of any other Person, which is the subject of such
Acquisition or (ii) recommended by such Board to the shareholders of
such corporation, or by such other body to the equity holders of
such other Person, and in each case (A) the Acquisition target is a
Person which is engaged in the replacement tire industry, (B) the
aggregate consideration for all such Acquisitions completed in any
one calendar year does not exceed $40,000,000, (C) the aggregate
consideration for all such Acquisitions completed after the date
hereof does not exceed $75,000,000, provided, that this amount shall
be increased on an annual basis by an amount equal to 25% of the
Company's Consolidated Net Income for the completed 2003 Fiscal Year
and 25% of the Holding Company's Consolidated Net Income for each
completed
Fiscal Year commencing with Fiscal Year 2004, and (D) such
Acquisition is made under circumstances in which no Default or Event
of Default either exists or will result therefrom, and in which pro
forma financial statements and projections including the Holding
Company, its Subsidiaries and the Person and/or assets to be
acquired, covering the most recent 12 month period for which
financial statements are available and the twelve months following
the Acquisition, would show that no Default or Event of Default will
result from the Acquisition (such an Acquisition is referred to
herein as an "ACCEPTABLE ACQUISITION");";
"(h) Intercompany Loans made to the Holding Company, the
Company or any Wholly-Owned Subsidiary by the Holding Company, the
Company or any Wholly-Owned Subsidiary; and".
(D) RESTRICTED PAYMENTS. Section 6.11 of the Existing Note Agreement shall
be and is hereby amended and restated in its entirety to read as follows:
"6.11 RESTRICTED PAYMENTS.
The Holding Company will not, and will not permit any of its
Subsidiaries to, declare or make, or agree to pay or make, directly
or indirectly, any Restricted Payment, except (a) the Holding
Company or the Company may declare and pay dividends with respect to
its capital stock payable solely in additional shares of its common
stock, (b) Subsidiaries may declare and pay dividends ratably with
respect to their Capital Stock, (c) the Company may make Restricted
Payments (and may make payments to the Holding Company to permit the
Holding Company to make Restricted Payments) pursuant to and in
accordance with stock option plans or other benefits for management
or employees of the Holding Company and its Subsidiaries, (d) so
long as no Default or Event of Default shall have occurred and be
continuing or would result therefrom, the Company may make payments
(and may make payments to the Holding Company to permit the Holding
Company to make payments) in an aggregate amount not exceeding
$10,000,000 per calendar year on account of (i) the purchase,
redemption, retirement, acquisition, cancellation or termination of
any shares of Capital Stock of the Holding Company or the Company or
any option, warrant or other right to acquire any such shares and
(ii) the payment of dividends with respect to its preferred stock
and (e) the Company may make Restricted Payments to the Holding
Company."
2. AMENDMENTS TO DEFINITIONS.
(A) "CREDIT AGREEMENT". The definition of "Credit Agreement" in Section
10.2 of the Existing Note Agreement shall be and is hereby amended and restated
in its entirety to read as follows:
""CREDIT AGREEMENT" shall mean the Second Amended and Restated
Credit Agreement, dated as of November 19, 2004, among the Holding
Company, the Company,
First Tennessee Bank, National Association, as Administrative Agent,
JPMorgan Chase Bank, as Co-Administrative Agent, and the other lenders
party thereto."
(B) NEW DEFINITION - "SECOND AMENDMENT". Section 10.2 of the Existing Note
Agreement shall be and is hereby amended by inserting the following new
definition in its appropriate alphabetical order:
""SECOND AMENDMENT" means Amendment No. 2 to Second Amended and
Restated Note Agreement, dated as of November 19, 2004, by and among the
Holding Company, the Company and Prudential."
(C) "SUBSIDIARY". The definition of "Subsidiary" in Section 10.2 of the
Existing Note Agreement shall be and is hereby amended and restated in its
entirety to read as follows:
""SUBSIDIARY" means any subsidiary of the Holding Company; provided,
however, that (a) in no event shall TBC de Mexico be considered to be a
Subsidiary for purposes hereof (but, to the extent required by GAAP, shall
be consolidated in the consolidated financial statements of the Holding
Company and as such included in the calculation of the covenants in
Sections 6.1(a), 6.1(b) and 6.1(c)) until such time, if any, as the
Company's interest in TBC de Mexico exceeds 60%, the Holding Company is
required by GAAP to consolidate TBC de Mexico into the Holding Company's
consolidated financial statements, and the Company's equity investment in
TBC de Mexico exceeds $2,500,000; and (b) no subsidiary under clause (a)
of the definition thereof shall be considered to be a Subsidiary for
purposes hereof solely because, under FASB Interpretation No. 46, GAAP
requires such Person to be consolidated in the consolidated financial
statements of the Holding Company."
(D) "WHOLLY-OWNED SUBSIDIARY". The definition of "Wholly-Owned Subsidiary"
in Section 10.2 of the Existing Note Agreement shall be and is hereby amended
and restated in its entirety to read as follows:
""WHOLLY-OWNED SUBSIDIARY" shall mean, as to any Person, (a) any
subsidiary all of whose outstanding Voting Stock is at the time owned
directly by such Person (including any subsidiary all of whose outstanding
Voting Stock is at the time owned directly or indirectly by one of such
Person's Wholly-Owned Subsidiaries) or (b) any partnership, limited
liability company, association, joint venture or similar business
organization of which 100% of the ownership interests having ordinary
voting power are at the time so owned. Unless the context otherwise
clearly requires, any reference herein to a "Wholly-Owned Subsidiary" is a
reference to a Wholly-Owned Subsidiary of the Holding Company."
3. MISCELLANEOUS AMENDMENTS
(A) INTRODUCTION. The introductory paragraph of the Existing Note
Agreement is hereby amended and restated in its entirety to read as follows:
"TBC PRIVATE BRANDS, INC., a Delaware corporation (formerly known as
TBC Corporation) (together with its permitted successors and assigns, the
"COMPANY") and TBC CORPORATION, a Delaware corporation (formerly known as
TBC Parent Holding Corp.) (together with its permitted successors and
assigns, the "HOLDING COMPANY"), hereby agree with you as follows:"
(B) NOTICES. Section 11.9 of the Existing Note Agreement is hereby amended
and restated in its entirety to read as follows:
. "11.9 NOTICES.
All written communications provided for hereunder shall be sent by
first class mail or nationwide overnight delivery service (with charges
prepaid) and (i) if to Prudential, addressed as specified for such
communications in the Purchaser Schedule attached hereto or at such other
address as Prudential shall have specified to the Holding Company in
writing, (ii) if to any other holder of any Note, addressed to it at such
address as it shall have specified in writing to the Holding Company or,
if any such holder shall not have so specified an address, then addressed
to such holder in care of the last holder of such Note which shall have so
specified an address to the Holding Company and (iii) if to the Holding
Company or the Company, addressed to it at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention, Chief Financial Officer,
provided, however, that any such communication to the Holding Company or
the Company may also, at the option of the Person sending such
communication, be delivered by any other means either to the Holding
Company or the Company at its address specified above or to any Authorized
Officer of the Holding Company or the Company."
Schedule 3.7(b)
CERTAIN OWNED REAL PROPERTY
Offices and warehouse located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
Schedule 3.8
CERTAIN TRADEMARKS, TRADE NAMES AND SERVICE MARKS
TBC BRANDS, LLC
Trademark Report by ▇▇▇▇ Printed:11/18/2004
Country:US Page 1
COUNTRY FILED APPL# REGDT REG# STATUS
AIRFLOW
UNITED STATES 3/18/2004 76/581,898 PENDING
ARCTIC CLAW WINTER TXI
UNITED STATES 9/30/2004 76/613,843 PENDING
ARCTIC CLAW WINTER XSI
UNITED STATES 9/30/2004 76/613,840 PENDING
CORDOVAN TOUR PLUS
UNITED STATES 11/12/2003 76/559,458 PENDING
CORDOVAN WILD TRAC RADIAL X/RS
UNITED STATES 12/17/2003 76/565,633 PENDING
GAUNTLET
UNITED STATES 3/26/2004 76/582,982 PENDING
GRAND SPIRIT TOURING LS
UNITED STATES 12/4/2002 76/472,572 6/15/2004 2,854,718 REGISTERED
NAVITRAC
UNITED STATES 5/5/2004 76/590,533 PENDING
OTOS
UNITED STATES 5/13/2004 76/591,948 PENDING
POWER KING LOADER GRADER PLUS
UNITED STATES 3/18/2004 76/581,850 PENDING
TBC PRIVATE BRANDS
UNITED STATES 8/12/2004 76/606,744 PENDING
TBC PRIVATE BRANDS & DESIGN
UNITED STATES 12/12/2002 76/369,492 2/3/2004 2,811,332 REGISTERED
TOUR PLUS
UNITED STATES 11/12/2003 76/559,494 PENDING
TRACMASTER WINTER XSI
UNITED STATES 9/30/2004 76/613,844 PENDING
TRACMASTER WINTER TXI
UNITED STATES 9/30/2004 76/613,838 PENDING
Trademark Report by ▇▇▇▇ Printed:11/18/2004
Country:US Page 2
COUNTRY FILED APPL# REGDT REG# STATUS
VANDERBILT TURBO TECH RADIAL A/SR
UNITED STATES 12/17/2003 76/565,634 PENDING ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ 4/8/2004 76/585,613 PENDING ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ 4/8/2004 76/585,624 PENDING N/A
WILD COUNTRY XTX
UNITED STATES 4/8/2004 76/585,612 PENDING 012
BIG O TIRES, INC.
Trademark Report by ▇▇▇▇ Printed:11/18/2004
Country:US
COUNTRY FILED APPL# REGDT REG# STATUS
AGGRESSOR
UNITED STATES 11/10/2003 76/558,468 PENDING
BIG FOOT
UNITED STATES 2/17/2004 76/576,412 PENDING
BIG O TIRES LUBE CENTER
UNITED STATES 5/19/2004 76/592,994 PENDING
BIGFOOT COUNTRY & DESIGN
UNITED STATES 8/3/2004 76/605,325 PENDING
EURO TOUR
UNITED STATES 11/8/2002 76/468,502 1/13/2004 2,804,363 REGISTERED
FUGITIVE
UNITED STATES 11/10/2003 76/558,462 PENDING
LEGACY TOUR PLUS
UNITED STATES 11/12/2003 76/559,495 PENDING
MAMMOTH
UNITED STATES 11/10/2003 76/558,466 PENDING
NTW
UNITED STATES 9/20/2004 76/612,095 PENDING
SXP SUPER SPORT
UNITED STATES 10/8/2004 76/615,918 PENDING
VENGEANCE
UNITED STATES 5/5/2004 76/590,532 PENDING
VENGEANCE RADIAL SPORT
UNITED STATES 11/10/2003 76/558,465 PENDING
VENGEANCE SPORT SLX
UNITED STATES 11/10/2003 76/558,467 PENDING
363691.1