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EXHIBIT 4.2
TBC CORPORATION
TBC PRIVATE BRANDS, INC.
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AMENDMENT NO. 3 TO SECOND AMENDED
AND RESTATED NOTE AGREEMENT
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DATED AS OF JUNE 17, 2005
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
TBC PRIVATE BRANDS, INC.
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
AMENDMENT NO. 3 TO SECOND AMENDED
AND RESTATED NOTE AGREEMENT
As of June 17, 2005
The Noteholder Named on
the Signature Page hereto
Ladies and Gentlemen:
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", and together with the Company, the "OBLIGORS"), hereby agree with you
as follows:
1. BACKGROUND.
The Obligors and The Prudential Insurance Company of America (the
"NOTEHOLDER") are party to a Second Amended and Restated Note Agreement (the
"ORIGINAL NOTE AGREEMENT" and as amended by that certain Amendment No. 1 to
Second Amended and Restated Note Agreement dated as of November 29, 2003
("AMENDMENT NO. 1", and as so amended, Original Note Agreement is referred to
herein as the "FIRST AMENDED NOTE AGREEMENT") and that certain Amendment No. 2
to Second Amended and Restated Note Agreement dated as of November 19, 2004
("AMENDMENT NO. 2") 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, and amending, the
Obligors' (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"). Pursuant to Amendment No. 2 and the
corporate restructuring contemplated thereby, the Holding Company became jointly
and severally liable with the Company in respect of the Notes. The aggregate
principal amount of the Series B Notes outstanding on the date hereof is
$2,750,000 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 Obligors 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 GUARANTORS") pursuant to
that certain Guarantee and Collateral
Agreement, dated as of March 31, 2003 (as amended from time to time, 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 (as
amended from time to time, the " EXISTING COMPANY MORTGAGE"), in favor of ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ Bank, N.A., as collateral agent for the Noteholder, the holders of
the 2003 Notes (the "2003 NOTEHOLDERS") and the lenders party to that certain
Amended and Restated Credit Agreement, dated as of November 19, 2004 (the
"EXISTING CREDIT AGREEMENT"), to which the Obligors are parties. The Obligors
intend to refinance (the "REFINANCING"), terminate and replace the senior credit
facility provided under the Existing Credit Agreement with a new credit facility
pursuant to the terms of a certain Credit Agreement, dated as of the date
hereof, among the Obligors, as co-obligors, First Tennessee Bank, National
Association, as Administrative Agent, ▇▇ ▇▇▇▇▇▇ Chase Bank, N.A., as
Co-Administrative Agent, and the other lenders (collectively, the "LENDERS")
party thereto (the "CREDIT AGREEMENT"). The Obligors have requested that the
Noteholder agree to amend the Existing Note Agreement to, among other things,
permit the Refinancing. 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. 3 to Second Amended and
Restated Note Agreement.
"AMENDMENT DOCUMENTS" means, this Agreement, the Company Mortgage, the
Guarantee and Collateral Agreement and the Intercreditor Acknowledgement.
"AMENDMENT NO. 1" is defined in Section 1.
"AMENDMENT NO. 2" is defined in Section 1.
"AMENDMENTS" is defined in Section 4.1.
"COLLATERAL" is defined in Section 3.8.
"COMPANY" is defined in the introductory paragraph.
"COMPANY MORTGAGE" means that certain Amended and Restated Deed of Trust,
Assignment of Leases and Security Agreement, dated as of the date hereof, with
respect to the real property owned by the Company located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, in favor of the Collateral Agent for the benefit of
the Noteholder, the 2003 Noteholders and the Lenders.
"CREDIT AGREEMENT" is defined in Section 1.
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"EFFECTIVE DATE" is defined in Section 5.
"EXISTING COMPANY MORTGAGE" is defined in Section 1.
"EXISTING CREDIT AGREEMENT" is defined in Section 1.
"EXISTING GUARANTEE AND COLLATERAL AGREEMENT" 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 and the Company Mortgage.
"FIRST AMENDED NOTE AGREEMENT" is defined in Section 1.
"GUARANTEE AND COLLATERAL AGREEMENT" means the Guarantee and Collateral
Agreement, dated as of the date hereof, among the Obligors, the Subsidiary
Guarantors, the Collateral Agent, the Noteholder and the 2003 Noteholders.
"HOLDING COMPANY" is defined in the introductory paragraph.
"INTERCREDITOR ACKNOWLEDGEMENT" means that certain Acknowledgement and
Agreement executed by the Obligors attached to the Intercreditor Agreement.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement, dated as of
the date hereof, among the Lenders, the Noteholder and the 2003 Noteholders and
acknowledged and agreed to by the Obligors.
"LENDERS" 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" is defined in the introductory paragraph.
"ORIGINAL NOTE AGREEMENT" is defined in Section 1.
"PLEDGED STOCK" has the meaning assigned to it in the Guarantee and
Collateral Agreement.
"PREVIOUS AMENDMENT AGREEMENTS" is defined in Section 4.3.
"REFINANCING" is defined in Section 1.
"REMAINING PREVIOUS AMENDMENTS" is defined in Section 4.3.
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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 GUARANTORS" is defined in Section 1.
"2003 NOTEHOLDERS" is defined in Section 1.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANIES.
To induce the Noteholder to enter into this Agreement, the Obligors
represent and warrant that:
3.1. ORGANIZATION AND EXISTENCE.
Each Obligor is duly organized, validly existing and in good standing
under the laws of their respective jurisdictions of organization and has the
entity power and authority to own their respective property and to carry on
their respective business as now being conducted.
3.2. AGREEMENTS AUTHORIZED; OBLIGATIONS ENFORCEABLE.
(a) AGREEMENTS ARE LEGAL AND AUTHORIZED. The execution and delivery
by each Obligor of each Amendment Document to which it is a party and
compliance by it with all of the provisions of each Financing Document to
which it is a party, are within the corporate power and authority of each
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:
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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 any Amendment Document by the
Obligors, nor the fulfillment of or compliance with the terms and provisions of
any Financing Document by the Obligors, 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 Obligors or any
Subsidiary (other than those permitted by Section 6.3 of the Note Agreement)
pursuant to, the charter, bylaws or other constitutive documents of such Obligor
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 such Obligor or such Subsidiary is subject.
3.4. GOVERNMENTAL CONSENT.
Neither the execution and delivery of the Amendment Documents by the
Obligors, 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 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 Noteholder 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 Obligors, or to the best knowledge of the Obligors, any
Subsidiary, 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 EFFECT.
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.
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(a) Each Obligor 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
permitted by Section 6.3 of the Note Agreement and minor defects in title
that do not interfere with its ability to conduct such Obligor's or such
Subsidiary's business as currently conducted or to utilize such properties
for its intended purposes.
(b) As of the Effective Date, the only parcel of real property owned
by the Obligors or their Subsidiaries having a value (together with
improvements thereof) of at least $10,000,000 is the property owned by the
Company and subject to the Company Mortgage.
3.8. SECURITY DOCUMENTS.
(a) The Guarantee and Collateral Agreement is effective to create in
favor of the Collateral Agent, for the benefit of the Noteholder, a legal,
valid and enforceable security interest in the collateral described
therein (the "COLLATERAL") and proceeds thereof. In the case of the
Pledged Stock, with stock certificates representing such Pledged Stock
having been previously delivered to the Collateral Agent, and in the case
of the other Collateral described in the Guarantee and Collateral
Agreement, with financing statements having been filed in appropriate form
in the offices of the Secretary of State of each jurisdiction of
organization of the Obligors and the Subsidiary Guarantors in connection
with the Original Note Agreement, Amendment No. 1 and Amendment No. 2, the
Guarantee and Collateral Agreement will constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the
Obligors and each Subsidiary Guarantor in such Collateral and the proceeds
thereof, as security for the Obligations (as defined in the Guarantee and
Collateral Agreement) owed to the Noteholder, in each case prior and
superior in right to any other Person (except, in the case of Collateral
other than capital stock of Subsidiaries, Liens permitted by Section 6.3
of the Note Agreement), and with priority relating back to the original
date that perfection was established with respect to such Lien on such
Collateral.
(b) Upon execution and delivery thereof, the Company Mortgage will
be effective to maintain in favor of the Collateral Agent, for the benefit
of the Noteholder, a legal, valid and enforceable Lien on the property
described therein and proceeds thereof, and the Company Mortgage will,
upon the filing thereof in the applicable office in Shelby County,
Tennessee to the Credit Agreement, 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)
owed to the Noteholder, in each case prior and superior in right to any
other Person (except with respect to Liens permitted by Section 6.3 of the
Note Agreement), and with priority relating back to the original date that
perfection was established with respect to such Lien on such property.
3.9. SOLVENCY.
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The Obligors are, and after giving effect to the incurrence of all
Indebtedness and obligations being incurred in connection herewith and with the
Refinancing will be, and will continue to be, Solvent.
3.10. FINANCIAL STATEMENTS; NO MATERIAL ADVERSE CHANGE.
(a) Since December 31, 2004, there has been no material adverse
change in the business, assets, operations, prospects or condition,
financial or otherwise, of the Obligors and their Subsidiaries, taken as a
whole.
(b) The projected financial statements of the Obligors and their
Subsidiaries delivered pursuant to Section 5.7 below have been prepared by
the Obligors on the basis of assumptions which the Obligors reasonably
believe are fair and reasonable in light of the historical performance of
the Obligors and their Subsidiaries and reasonably foreseeable business
conditions and which give effect to the transactions contemplated by this
Agreement and the Credit Agreement.
4. AMENDMENTS.
4.1. AMENDMENTS IN RESPECT OF THE EXISTING NOTE AGREEMENT.
The Noteholder and the Company 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. COMPOSITE AMENDMENT.
For the administrative convenience of the parties hereto, the Amendments
are a composite of new amendments effective as of the Effective Date and
amendments provided for in Amendment No. 1 and Amendment No. 2 (the "PREVIOUS
AMENDMENT AGREEMENTS") that have not been superseded by this Agreement (the
"REMAINING PREVIOUS AMENDMENTS"). For the avoidance of doubt, (i) the Remaining
Previous Amendments (as reflected in the Amendments) shall be, and shall be
deemed to be, effective as of their original effective dates set forth in the
applicable Previous Amendment Agreement and such effectiveness shall continue on
and after the Effective Date and (ii) all other amendments effected by the
Previous Amendment Agreements shall have been in effect for the period from and
including the relevant effective date under the Previous Amendment Agreements
to, but not including, the Effective Date.
4.3. RATIFICATION OF OBLIGATIONS OF HOLDING COMPANY.
The Holding Company hereby ratifies and confirms all of its obligations
under Section 4.2 of Amendment No. 2 (Joinder of Holding Company), and
acknowledges and agrees that (a) pursuant thereto (and effective on the
effective date of Amendment No. 2), it became, and is, jointly and severally
liable with the Company in respect of all the Company's obligations in respect
of the Note Agreement and the Notes. Upon the effectiveness of this Agreement,
(b) all covenants, restrictions and prohibitions applicable to the Company
contained in the Note Agreement apply to the Holding Company and (c) all
definitions contained in the Note
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Agreement that are calculated or defined on a consolidated basis shall include
the Holding Company in such calculation or definition.
4.4. EFFECT ON PREVIOUS AMENDMENT AGREEMENTS.
Effective on the Effective Date, the Previous Amendment Agreements (with
the exception of the first paragraph of Section 4.2 of Amendment No. 2) shall be
deemed to be merged into this Agreement and, subject to the last sentence of
Section 4.2, shall cease to have independent existence.
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 Obligors and the Noteholder 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. AUTHORIZATION.
The Obligors and each of their Subsidiaries 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 Obligors or such Subsidiaries.
5.4. OTHER TRANSACTION DOCUMENTS.
The Credit Agreement, the Guarantee and Collateral Agreement and the
Intercreditor Agreement shall each have been executed and delivered by all
parties thereto, and the Noteholder shall have received a true, correct and
complete copy of each such agreement in form and substance satisfactory to them.
The Company shall have agreed to execute and deliver the Company Mortgage to the
Collateral Agent for the benefit of the Lenders, the Noteholder and the 2003
Noteholders within 10 Business Days of the date hereof.
5.5. OBLIGORS' SECRETARY CERTIFICATES.
The Noteholder shall have received a certificate of the Secretary of
each Obligor, (a) certifying that the certificate or articles of incorporation
and the bylaws of such Obligor delivered in connection with Amendment No. 2 are
in full force and effect, not having been amended, supplemented, replaced or
otherwise modified in any way, (b) attaching, and certifying as true, correct
and complete, copies of the resolutions of such Obligor authorizing the
execution,
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delivery and performance of this Agreement and the other Financing Documents to
be executed in connection herewith, (c) attaching an incumbency certificate and
certification of specimen signatures of its officers executing documents, and
(d) certifying as to the satisfaction of all closing conditions set forth in
this Section 5 applicable to such Obligor.
5.6. SUBSIDIARIES' SECRETARY CERTIFICATES.
Each Subsidiary Guarantor 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 the Guarantee and Collateral Agreement, and the
satisfaction of all closing conditions set forth in this Section 5
applicable to it;
(b) its certificate or articles of incorporation, limited liability
company or limited partnership agreement or other constitutive document
and all amendments thereto;
(c) its bylaws; and
(d) an incumbency certificate and specimen signatures of its
officers executing documents.
5.7. PROJECTED FINANCIAL STATEMENTS.
The Noteholder shall have received (i) quarterly and annual projected
financial statements in respect of the Holding Company and its Subsidiaries, on
a consolidated basis, though the end of fiscal year 2010, and (ii) pro forma
calculations of projected compliance with Sections 6.1(a), 6.1(b) and 6.1(c) of
the Note Agreement for each Fiscal Quarter of 2005.
5.8. OPINIONS OF COUNSEL.
The Noteholder shall have received opinions (addressed to the Noteholder
and dated the Effective Date) from (a) ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the
Obligors and (b) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, special counsel to the Noteholder, each
in form and substance satisfactory to the Noteholder.
5.9. AMENDMENT FEE.
The Company shall have paid the amendment fee in accordance with Section 7
below.
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.
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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 they or their special counsel may
reasonably request in connection herewith.
6. EXPENSES.
Whether or not the Amendments become effective, the Obligors 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 Obligors' obligations under
Section 11.2 of the Note Agreement.
7. AMENDMENT FEE.
In consideration of the consent of the Noteholder to the Amendments, the
Obligors shall pay an amendment fee to the Noteholder and the 2003 Noteholder on
the Effective Date in an aggregate amount equal to $60,000. Such fee shall be
paid to the Noteholder and the 2003 Noteholders ratably in accordance with the
respective principal amounts of Notes and 2003 Notes held by them in accordance
with the Amendment Fee Schedule set forth as Exhibit B hereto, and in the manner
and to the accounts specified in the Note Agreement and the note purchase
agreement pursuant to which the 2003 Notes were issued (as each amended on the
date hereof, including the amendments to the Purchaser Schedule attached hereto
as Schedule A), for payments of principal and interest on the Notes and the 2003
Notes (as applicable).
8. MISCELLANEOUS.
8.1. 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, (a)
no terms or provisions of the Existing Note Agreement or any other agreement are
modified or changed by this Agreement, (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, and (c) the obligations of the Obligors
under the Existing Note Agreement and the Notes are hereby ratified and
confirmed. 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 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
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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.
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.
8.5. POST-CLOSING COLLATERAL DOCUMENTS.
The Obligors will not, and will not permit any Subsidiary to, enter into
any agreements granting security interests or any other collateral documentation
for the benefit of the Lenders in connection with the transactions contemplated
hereby unless such agreements and documentation are also provided for the
ratable benefit of the Noteholder.
[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 and the Obligors.
Very truly yours,
TBC CORPORATION
By /s/
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
TBC PRIVATE BRANDS, INC.
By /s/
------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[Signature Page to Amendment No. 3 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: Senior Vice President
[Signature Page to Amendment No. 3 to Second Amended and Restated Note
Agreement]
EXHIBIT A
AMENDMENTS TO EXISTING NOTE AGREEMENT
1. GLOBAL AMENDMENTS.
The following amendments were made to the First Amended Note Agreement by
Amendment No. 2:
All covenants, restrictions and prohibitions applicable to the Company
contained in the First Amended Note Agreement (including, without limitation,
those obligations, restrictions and prohibitions set forth in Sections 5 through
7, inclusive, of the First Amended 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 sentence, any references to "the Company" contained in clauses (a),
(b), (c), (d), (e), (l) and (o) of Section 7.1 of the First Amended Note
Agreement are hereby each replaced with references to "the Company or the
Holding Company".
2. AMENDMENT TO INTRODUCTORY PARAGRAPH.
The introductory paragraph of the First Amended Note Agreement was amended
and restated by Amendment No. 2 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:"
3. AMENDMENT TO SECTION 3.6.
Section 3.6 of the Original Note Agreement was amended by Amendment No. 1
by deleting the parenthetical expression "(the "INTERCREDITOR AGREEMENT")" from
the fourth line thereof.
4. AMENDMENT TO SECTION 3.8.
Section 3.8 of the Original Note Agreement was amended by Amendment No. 1
by deleting the parenthetical expression "(the "GUARANTEE AND COLLATERAL
AGREEMENT")" from the fifth and sixth lines thereof.
5. AMENDMENTS TO AFFIRMATIVE COVENANTS.
(a) FINANCIAL STATEMENTS. Section 5.1 of the Existing Note Agreement shall
be and is hereby amended by deleting the first four lines of the last paragraph
thereof and replacing them with the following:
Exhibit A-1
"Together with each delivery of financial statements required by
clauses (a) and (b) above prepared as at, or for any period ending on or
after, September 30, 2005, the Holding Company will deliver to each holder
of any Notes an Officer's Certificate demonstrating (with computations in
reasonable detail) compliance by the Holding Company and its Subsidiaries
with the provisions of Sections 6.1(a) through (c)"
(b) NOTICE OF CERTAIN MATERIAL EVENTS. Section 5.2 of the Original Note
Agreement was amended by Amendment No. 1 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".
(c) ADDITIONAL COLLATERAL. Section 5.8 of the Existing Note Agreement
shall be and is hereby amended by deleting the reference to "$10,000,000"
therein and replacing it with "$15,000,000".
(d) CORPORATE EXISTENCE, ETC.; BUSINESS. The first sentence of Section
5.12 of the Original Note Agreement and the First Amended Note Agreement was
amended so that, after giving effect to both Amendment No. 1 and Amendment No.
2, such sentence reads in its entirety as follows:
"The Holding 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."
(e) INTERCOMPANY LOANS; PAYMENTS. Section 5.15 of the Existing Note
Agreement shall be and is hereby amended and restated in its entirety as
follows:
"5.15. INTERCOMPANY LOANS; PAYMENTS. The Holding Company agrees with
each holder of Notes that (i) except as provided in clause (ii), any
payments made by a Subsidiary Obligor in reduction of its obligation under
the Guarantee and Collateral Agreement, shall reduce dollar for dollar its
total obligation to the Company and the Holding Company for repayment of
any Intercompany Loans, (ii) it will require that any payments made by a
Subsidiary Obligor that is a direct Wholly-Owned Subsidiary of another
Wholly-Owned Subsidiary of the Company or the Holding Company, in
reduction of its obligation under the Guarantee and Collateral Agreement,
shall reduce dollar for dollar its total obligation for repayment of any
Intercompany Loans owed to its sole shareholder, (iii) neither it nor any
Wholly-Owned Subsidiary will demand, enforce or accept any payments on
account of any Intercompany Loans owed to the Holding Company or such
Wholly-Owned Subsidiary by any Subsidiary Obligor other than Northern
States Tire, Inc. and Big O Development, Inc. at a time when such
Subsidiary Obligor is insolvent or if such payments could reasonably be
expected to render such Subsidiary Obligor insolvent, to leave it with
unreasonably small capital for the business
Exhibit A-2
in which it is engaged and in which it intends to engage, or to leave it
unable to pay its other Indebtedness as the same matures."
6. AMENDMENTS TO NEGATIVE COVENANTS.
(a) FINANCIAL COVENANTS. Section 6.1 of the Existing Note Agreement shall
be and is hereby amended and restated in its entirety to read as follows:
"6.1. FINANCIAL COVENANTS. The Holding 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
--------------------- -----
September 30, 2005, December 31, 2005 and March 31, 2006 1.15 to 1.0
any Fiscal Quarter ending thereafter 1.20 to 1.0
"FIXED CHARGE COVERAGE RATIO" shall mean, as of the last day of any
Fiscal Quarter, the ratio of (a) (i) EBITDAR for the period of four
completed Fiscal Quarters ending on the last day of such Fiscal
Quarter, minus (ii) Capital Expenditures for such period, 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
--------------------- -----
September 30, 2005, December 31, 2005 and March 31, 2006 3.00 to 1.0
any Fiscal Quarter ending thereafter 2.75 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) 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:
Exhibit A-3
FISCAL QUARTER ENDING RATIO
--------------------- -----
September 30, 2005, December 31, 2005 and March 31, 2006 1.20 to 1.0
any Fiscal Quarter ending thereafter 1.25 to 1.0"
(b) LIMITATIONS ON INDEBTEDNESS. Section 6.2 of the Existing Note
Agreement shall be and is hereby amended and restated in its entirety as
follows:
"6.2. LIMITATION ON INDEBTEDNESS. The Holding 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
$325,000,000; 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 $325,000,000, but less than or equal to $400,000,000,
shall be permitted;
(b) Indebtedness and Guarantees existing on the Third
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 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);
(d) [Intentionally Omitted];
(e) Guarantee obligations entered into by Big O or its
Subsidiaries on behalf of its franchisees, other than those
Guarantee obligations existing on the Third Amendment Effective Date
and 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(i) at no time exceeds $30,000,000;
(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;
Exhibit A-4
(g) Guarantees by the Holding Company or any of its
Wholly-Owned Subsidiaries of Indebtedness of the Holding Company or
any of its Wholly-Owned Subsidiaries, provided such Indebtedness is
otherwise permitted pursuant to this Section 6.2;
(h) Guarantee obligations entered into by (x) the Holding
Company or any of its Wholly-Owned Subsidiaries, of obligations of
the Holding Company or any of its 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 Holding Company or any of its Wholly-Owned
Subsidiaries, of obligations of Persons other than the Holding
Company, its Subsidiaries and any of 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 $30,000,000;
(i) [Intentionally Omitted].
(j) Guarantees and Indebtedness arising in connection with (x)
sale and leaseback transactions existing on the Third Amendment
Effective Date and set forth on Schedule 6.2(b) and extensions,
renewals and replacements of any such sale and leaseback
transactions that do not increase the outstanding principal amount
thereof over the amount set forth on such Schedule 6.2(b) and (y)
sale and leaseback transactions permitted under Section 6.10(d); and
(k) other Indebtedness not otherwise permitted by clauses (a)
through (j) of this Section 6.2 in an aggregate principal amount not
to exceed $35,000,000 at any time outstanding."
(c) LIENS. Section 6.3 of the Existing Note Agreement shall be and is
hereby amended and restated in its entirety as follows:
"6.3 LIENS. The Holding Company will not, nor will it permit any of
its Subsidiaries to, create, incur, assume or permit to exist any
Lien on any property or asset now owned or hereafter acquired by it
or any of its Subsidiaries, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Holding Company
or any Subsidiary existing on the Third Amendment Effective Date and
set forth on Schedule 6.3; provided that, if such Lien is not
released within sixty (60) days after the date hereof (i) such Lien
shall not apply to any other property or asset of the Holding
Company or any Subsidiary and (ii) such Lien shall secure only those
obligations which it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the
outstanding principal amount thereof over the amount set forth on
Schedule 6.3;
Exhibit A-5
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Holding Company or any Subsidiary or
existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person
becomes a Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary, as the case may be, (ii) such Lien
shall not apply to any other property or assets of the Holding
Company or any Subsidiary, (iii) such Lien secures Indebtedness
permitted by Section 6.2(k) and (iv) such Lien shall secure only
those obligations which it secures on the date of such acquisition
or the date such Person becomes a Subsidiary, as the case may be;
(d) Liens on fixed or capital assets acquired by the Company
or any Subsidiary; provided that (i) such Liens secure Indebtedness
permitted by Section 6.2(k), (ii) such Liens and the Indebtedness
secured thereby are incurred prior to such acquisition or
simultaneously therewith, (iii) the Indebtedness secured thereby
does not exceed 100% of the cost of acquiring such fixed or capital
assets, (iv) such security interests shall not apply to any other
property or assets of the Company or any Subsidiary; and (v) the
aggregate Indebtedness secured by all such Liens does not exceed
$10,000,000;
(e) Liens arising in connection with sale and leaseback
transactions (i) described in Section 6.2(j)(x) or (ii) other sale
and leaseback transactions permitted under Section 6.10(d); and
(f) a security interest granted by Tire Kingdom to Michelin
Tire Corporation, as secured party, with respect to all inventory
previously and hereafter purchased from Michelin Tire Corporation by
Tire Kingdom and all proceeds thereof."
(d) FUNDAMENTAL CHANGES. Section 6.4 of the Existing Note Agreement shall
be and is hereby amended and restated in its entirety as follows:
"6.4. FUNDAMENTAL CHANGES. The Holding Company will not, nor will it
permit any of its Subsidiaries to, merge or consolidate with or into any
other Person, or permit any other Person to merge into or with it or
consolidate with it, or sell, transfer, lease or otherwise dispose of (in
one transaction or in a series of transactions) any of the stock of its
Subsidiaries (in each case, whether now owned or hereafter acquired), or
liquidate or dissolve itself or any of its Subsidiaries, except that, if
at the time of any such event and immediately after giving effect thereto
no Default or Event of Default shall have occurred and be continuing:
(a) any Wholly-Owned Subsidiary may merge or consolidate with
or into the Holding Company or into another Wholly-Owned Subsidiary;
(b) any Wholly-Owned Subsidiary may sell, transfer, lease or
otherwise dispose of any portion of its assets to the Holding
Company or to another Wholly-Owned Subsidiary;
(c) any Wholly-Owned Subsidiary may liquidate or dissolve if
the Holding Company determines in good faith that such liquidation
or dissolution is
Exhibit A-6
in the best interests of the Holding Company and is not materially
disadvantageous to the holders of the Notes;
(d) Acceptable Acquisitions shall be permitted;
(e) the disposal of Northern States Tire, Inc. shall be
permitted, whether by sale of assets or stock, or by merger,
consolidation, dissolution or liquidation;
(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; and
(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."
(e) INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND ACQUISITIONS. Section 6.5
of the Existing Note Agreement shall be and is hereby amended and restated in
its entirety as follows:
"6.5. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND ACQUISITIONS. The
Holding Company will not, nor will it permit any of its Subsidiaries to,
purchase, hold or acquire (including pursuant to any merger with any
Person that was not a Wholly-Owned Subsidiary prior to such merger) any
capital stock, evidences of Indebtedness or other securities (including
any option, warrant or other right to acquire any of the foregoing) of, or
make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other
interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person
constituting a business unit, except:
(a) Permitted Investments;
(b) (i) capital investments by the Holding Company or any
Subsidiary in any Subsidiary (provided that such latter Subsidiary
is in existence on the Third Amendment Effective Date or becomes a
Subsidiary at any time after such date in a manner that complies
with all other provisions of this Agreement, without giving effect
to this clause (b)) and (ii) other existing investments and loans as
otherwise described in Schedule 6.5(b);
(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;
(d) loans and advances to, purchases of equity interests in
and contributions to the capital of Joint Ventures and other Persons
not otherwise
Exhibit A-7
permitted by this Section 6.5; provided that the aggregate amount of
such investments, plus the aggregate amount of the obligations
guaranteed pursuant to Section 6.2(h)(y), shall not exceed
$30,000,000 at any one time (it being understood that profits and
losses of Joint Ventures that are passed through to its equity
holders shall not be included in the calculation of the aggregate
amount of such investments);
(e) investments in evidences of Indebtedness representing
amounts formerly constituting accounts receivable owed to the
Holding Company or any Subsidiary in the ordinary course of
business;
(f) Guarantees permitted under Section 6.2;
(g) Acceptable Acquisitions so long as either (i) the Leverage
Ratio as of the time immediately after giving effect to such
Acceptable Acquisition would be at least 0.50 to 1.00 less than the
maximum ratio required under Section 6.1(b) for the end of the
Fiscal Quarter during which the Acceptable Acquisition is made or
(ii) the aggregate consideration paid in respect of all Acceptable
Acquisitions made in any Fiscal Year does not exceed $20,000,000;
(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
(i) loans by Big O or its Wholly-Owned Subsidiaries to Big O
franchisees, provided that the aggregate principal amount of such
loans arising after the date hereof plus the aggregate amount of the
obligations guaranteed pursuant to Section 6.2(e) at no time exceeds
$30,000,000. For purposes of this clause (i) investments in
evidences of Indebtedness permitted under clause (e) of this Section
6.5 and Big O franchisee loans that have been sold to third parties
shall be excluded from the loans and obligations required to be
within the $30,000,000 limit."
(f) TRANSACTIONS WITH AFFILIATES. The proviso contained in Section 6.7 of
the Existing Note Agreement shall be and is hereby amended and restated in its
entirety as follows:
"; provided that the foregoing shall not apply to (i) transactions
between the Holding 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, (ii) if such transactions occur
in the ordinary course of business consistent with past practices of the
Holding Company and/or Subsidiary, (A) to transactions between the Holding
Company or any Wholly-Owned Subsidiary and TBC de Mexico, a Mexican
variable capital corporation, or (B) to 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)."
(g) SALE OF ASSETS. Section 6.10 of the Existing Note Agreement shall be
and is hereby amended and restated in its entirety as follows:
Exhibit A-8
"6.10. SALE OF ASSETS. The Holding Company will not, and will not
permit any of its Subsidiaries to, sell, lease, assign, transfer or
otherwise dispose of any of its or their now owned or hereafter acquired
assets (including, without limitation, shares of stock and indebtedness of
such Subsidiaries, receivables and leasehold interests), other than:
(a) inventory disposed of in the ordinary course of business;
(b) transactions with Affiliates permitted under Section 6.7;
(c) the sale or other disposition of assets that are obsolete
or no longer used or usable for the conduct of business in the
ordinary course;
(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 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 2003 Notes and Bank
Term Loans, in accordance with Section 4.8;
(e) the sale by Big O and its Subsidiaries of (i) Big O
franchisee loans to third parties, and (ii) Big O stores (including
real estate, fixtures and equipment) to Big O franchisees and the
sale and leaseback thereof for subleasing to Big O franchisees,
provided that, in each case under the foregoing clauses (i) and (ii)
the transaction is in the ordinary course of business and consistent
with past practice; and
(f) sales, transfers and other dispositions of assets that are
not permitted by any other clause of this Section, provided that the
aggregate fair market value of all assets sold, transferred or
otherwise disposed of in reliance upon this clause (f) shall not
exceed $15,000,000 during any Fiscal Year."
(h) RESTRICTED PAYMENTS. Section 6.11 of the Existing Note Agreement shall
be and is hereby deleted.
7. AMENDMENTS TO DEFINITIONS.
(a) The following definitions in Section 10.2 of the Existing Note
Agreement shall be and are hereby amended and restated in their entireties or
added to Section 10.2 in their appropriate alphabetical order (or were amended
and restated or added in their appropriate alphabetical order in Amendment No. 1
(denoted by a "*") or Amendment No. 2 (denoted by a "#")), as the case may be,
as follows:
""ACCEPTABLE ACQUISITION" means any transaction completed after the
Third Amendment Effective Date pursuant to which the Company, the Holding
Company or any Wholly-Owned Subsidiary (a) acquires all of the outstanding
equity securities of any Person other than the Company or the Holding
Company or any Person which is then a Wholly-Owned Subsidiary, (b)
otherwise makes any Person a Wholly-Owned Subsidiary of the Company or the
Holding Company, in any case pursuant to a merger, purchase of assets or
any reorganization or (c) purchases all or substantially all of the
business or assets of any Person other than a Wholly-Owned Subsidiary or
of any business unit or
Exhibit A-9
line of business of any such Persons if (i) such transaction has been
either (1) approved by the board of directors or the comparable or
appropriate body of any other Person, which is the subject of such
transaction or (2) recommended by such board to the shareholders or such
other body to the equity holders of such other Person, (ii) the target of
the transaction is a Person which is engaged in the replacement tire
industry, (ii) no Default or Event of Default shall have occurred and be
continuing or would result therefrom and (iv) 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 transaction, show that no Default or Event of Default
would result from such transaction."
""ADJUSTED LEVERAGE RATIO" means, at the end of any Fiscal Quarter,
the ratio of (i) Consolidated Adjusted Debt at such time, to (ii) EBITDAR
for the period of four completed Fiscal Quarters then most recently
ended."
""APPLICABLE MARGIN" means, (a) at any time prior to the Third
Amendment Effective Date, 1.00% per annum, (b) at any time on or after the
Third Amendment Effective Date and (i) up to and including the last day of
the first Lower Leverage Period after the Third Amendment Effective Date,
0.75% per annum, (ii) thereafter, 0.00% per annum beginning on the first
day following a Lower Leverage Period (including the first Lower Leverage
Period referred to in clause (i)) up to and including the last day of the
next succeeding Higher Leverage Period, and 0.75% per annum beginning on
the first day following a Higher Leverage Period up to and including the
last day of the next succeeding Lower Leverage Period."
""BANK TERM LOAN" means a loan made under the Credit Agreement
pursuant to Section 2.01(b) of the Credit Agreement."
""CAPITAL EXPENDITURES" means, for any period, expenditures
(excluding the aggregate amount of Capital Lease Obligations incurred
during such period) made directly or indirectly by the Holding Company or
any Subsidiary to acquire or construct fixed assets, property, plant and
equipment (including renewals, improvements, replacements and
substitutions, but excluding repairs) during such period, computed in
accordance with GAAP."
""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 Holding Company and its Subsidiaries during the period of
four completed Fiscal Quarters then most recently ended."
""CONSOLIDATED CASH INTEREST EXPENSE" means, for any period for
which such amount is being determined, (a) the interest expense of the
Holding Company and its Consolidated Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, including the
portion of any rents payable under Capitalized Lease Obligations allocable
to interest expense in accordance with GAAP, minus (b) to the extent
included in such consolidated interest expense for such period, non-cash
Exhibit A-10
amounts attributable to amortization of debt discounts, accrued interest
payable in kind or amortization of fees paid in a previous period."
""CONSOLIDATED RENTAL EXPENSE" means for any period for which such
amount is being determined, the aggregate rental payments (net of any
sublease income) of the Holding Company and its Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP."
""CREDIT AGREEMENT" shall mean the Credit Agreement, dated as of the
Third Amendment Effective Date, among the Company, First Tennessee Bank,
National Association, as Administrative Agent, JPMorgan Chase Bank, N.A.
as Co-Administrative Agent, and the other lenders party thereto."
""EBITDA" shall mean, as to any period, the sum of (i) Consolidated
Net Income, plus (ii) consolidated depreciation, amortization and all
other non-cash charges plus (iii) income taxes to the extent they reduce
Consolidated Net Income, plus (iv) Consolidated Cash Interest Expense.
In addition, (a) EBITDA shall include, on a pro forma basis for each
Fiscal Quarter (including any pro forma cost savings to the extent the
same could be reflected in pro forma financial statements contained in
filings with the Securities and Exchange Commission pursuant to its
Regulation S-X), the foregoing information with respect to each Person
that was either acquired in an Acceptable Acquisition or disposed of as
permitted by this Agreement during such Fiscal Quarter, determined as if
the Acquisition or disposition had taken place on the first day of such
Fiscal Quarter; and (b) whenever in this Agreement EBITDA is determined
for a period of four Fiscal Quarters, it shall include, on a pro forma
basis for such period (including any pro forma cost savings referred to in
the parenthetical above), the foregoing information with respect to each
Person that was either acquired in an Acceptable Acquisition or disposed
of as permitted by this Agreement during such period, determined as if the
Acquisition or disposition had taken place on the first day of such four
Fiscal Quarter period."
""EBITDAR" means, for any period for which such amount is being
determined, the sum of (a) EBITDA for such period plus (b) Consolidated
Rental Expense for such period."
""FIXED CHARGES" shall mean, for any period, the sum of Consolidated
Cash Interest Expense, Scheduled Payments, Consolidated Rental Expense and
Restricted Payments for such period."
""GUARANTEE AND COLLATERAL AGREEMENT" shall mean the Guarantee and
Collateral Agreement, dated as of the Third Amendment Effective Date,
executed and delivered by the Holding Company, the Company and each
Subsidiary Obligor in favor of the Collateral Agent, and the holders of
the Notes and the 2003 Notes, as amended, supplemented or otherwise
modified from time to time."
""HIGHER LEVERAGE PERIOD" means any period of two complete
consecutive Fiscal Quarters in respect of which the Adjusted Leverage
Ratio at the end of each such Fiscal Quarter is greater than 4.50:1."
Exhibit A-11
""INTERCREDITOR AGREEMENT" shall mean the Intercreditor Agreement,
dated as of the Third Amendment Effective date, by and among the holders
of the Notes and the 2003 Notes, the lenders party to the Credit Agreement
and the Collateral Agent, as amended, supplemented or otherwise modified
from time to time."
""LEVERAGE RATIO" is defined in Section 6.1(b)."
""LOWER LEVERAGE PERIOD" means any period of two complete
consecutive Fiscal Quarters in respect of which the Adjusted Leverage
Ratio at the end of each such Fiscal Quarter is less than or equal to
4.50:1."
""NEW MORTGAGE" means that certain Amended and Restated Deed of
Trust, Assignment of Leases and Security Agreement, dated on or about the
Third Amendment Effective Date, 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, supplemented or otherwise modified from time to
time."
""PREPAYMENT EVENT" shall mean:
(a) any sale and leaseback transaction permitted pursuant to
Section 6.10(d) of any property or asset of the Holding Company or
any Subsidiary that requires a prepayment in accordance with the
proviso to such Section or any other sale, transfer, or other
disposition of any property or asset of the Holding Company or any
Subsidiary other than dispositions permitted pursuant to Sections
6.10(a), (b), (c), (e) or (f); or
(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 Holding Company or any
Subsidiary, but only to the extent that the Net Proceeds therefrom,
together with any other such Net Proceeds received after the Third
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 Holding Company or any
Subsidiary within one year after such event; or
(c) any other "Prepayment Event" as defined in the Credit
Agreement."
""RESTRICTED PAYMENT" means, without duplication, for any period,
the sum of (i) dividends or other distributions paid during such period
(whether in cash, securities or other property) with respect to any shares
of any class of capital stock of the Holding Company and (ii) payments
made during such period (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any
shares of capital stock of the Holding Company or any option, warrant or
other right to acquire any such shares of capital stock of the Holding
Company, provided that any such dividends,
Exhibit A-12
distributions or payments made solely with additional shares of the
Holding Company's common stock shall not constitute Restricted Payments."
""SCHEDULED PAYMENTS" means, for any period, the sum (without
duplication) of the aggregate amount of (i) scheduled principal payments
made during such period in respect of Long-Term Indebtedness of the
Holding Company and its Subsidiaries (other than payments made by the
Holding Company or any Subsidiary to the Holding Company or a Subsidiary),
including scheduled prepayments of the Notes pursuant to Section 4.1 for
such period and (ii) scheduled principal cash payments made during such
period on account of Capitalized Lease Obligations."
# ""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
Holding 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 Holding 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."
""THIRD AMENDMENT EFFECTIVE DATE" means June 17, 2005."
# ""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."
(b) The following definitions are hereby deleted from Section 10.2 of the
Existing Note Agreement in their entirety:
First Amendment
First Amendment Effective Date
NTB
NTB Acquisition
NTB Sale and Leaseback
SunTrust Sale and Leaseback
Second Amendment
8. AMENDMENT TO SECTION 11.3.
Exhibit A-13
Section 11.3 (Consent to Amendments) of the Existing Note Agreement is
hereby amended by inserting, between "This Amendment" and "may be amended", the
phrase "each of the other Financing Documents" in the first line thereof.
9. AMENDMENT TO SECTION 11.9.
Section 11.9 of the First Amended Note Agreement was amended and restated
by Amendment No. 2 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."
10. AMENDMENTS TO SCHEDULES.
(a) Schedule A to the Existing Note Agreement shall be and hereby is
amended and restated in its entirety as set forth in Schedule A attached hereto.
(b) Schedule 3.7(b) and Schedule 3.8 of the First Amended Note Agreement
was amended and restated by Amendment No. 2 to read as set forth in Schedule
3.7(b) and Schedule 3.8, respectively, attached hereto.
(c) Schedules 6.2(b), 6.2(e), 6.3, 6.5(b), and 6.8 of the Existing Note
Agreement shall be and are hereby amended and restated in their entireties as
set forth on Schedules 6.2(b), 6.2(e), 6.3, 6.5(b), and 6.8, respectively,
attached hereto.
(d) Schedule 5.15 and Schedule 6.10 of the Existing Note Agreement shall
be and are hereby deleted.
Exhibit A-14
EXHIBIT B
AMENDMENT FEE SCHEDULE
NOTEHOLDER AMENDMENT FEE
---------- -------------
The Prudential Insurance Company of America $15,146 (Prudential Collateral Account)
(Note R-1)
$ 4,540 (Prudential Managed Portfolio)
The Prudential Insurance Company of America $ 5,545
(Note R-2)
The Prudential Insurance Company of America $ 2,383
(1996 Note - Series B)
The Prudential Insurance Company of America $14,296
(1996 Note - Series C)
Pruco Life Insurance Company $ 1,975
RGA Reinsurance Company $ 4,332
Baystate Investments, LLC $ 6,541
United of Omaha Life Insurance Company $ 5,242
-------
TOTAL: $60,000
SCHEDULE A
PURCHASER SCHEDULE
PURCHASER NAME THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
-------------- -------------------------------------------
Name in Which Note is Registered THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
Note Registration Number;
Principal Amount Series A: $19,500,000
Series B: $11,000,000
Series C: $16,500,000
Payment on Account of Note
Method
Account Information ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank
New York, New York
ABA # ▇▇▇-▇▇▇-▇▇▇
Acct # P86188 (please do not include spaces)
Prudential Managed Portfolio
Ref: See "Accompanying Information" below
Accompanying Information Name of Issuer: TBC CORPORATION
Description of Security: Series A Senior Notes due
July 10, 2003
PPN: 872180 B* 4
Description of Security: Series B Senior Notes due
July 10, 2005
PPN: 872180 B@ 2
Description of Security: Series C Senior Notes due
July 10, 2008
PPN: 872180 B# 0
Due Date and Application (as among principal, interest and
Yield-Maintenance Amount) of the payment being made:
Purchaser Schedule-1
PURCHASER NAME THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
-------------- -------------------------------------------
Address for Notices Related to Payments The Prudential Insurance Company of America
c/o Investment Operations Group
Gateway Center Two, 10th Floor
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Manager, ▇▇▇▇▇▇▇▇ and Collections
Fax: ▇▇▇-▇▇▇-▇▇▇▇
For Prepayment Notices:
Manager, Trade Management Group
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Address for All other Notices (including The Prudential Insurance Company of America
copies of all Notices related to Payments) c/o Prudential Capital Group
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Managing Director
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Signature Block Format THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: _____________________________
Name:
Title:
Instructions re Delivery of Notes The Prudential Insurance Company of America
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Tax Identification Number ▇▇-▇▇▇▇▇▇▇
Purchaser Schedule-2
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 Page 1
Country: US
COUNTRY
STATUS FILED APPL# REGDT REG#
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 Page 2
Country: US
COUNTRY
STATUS FILED APPL# REGDT REG#
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
SCHEDULE 6.2(b)
EXISTING INDEBTEDNESS
Indebtedness and Guarantees under or relating to the 2003 Notes.
Those Guarantees listed on Schedule 6.2(e).
TBC Corporation and/or TBC Private Brands, Inc. 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.
The obligations of TBC Corporation, TBC Private Brands, Inc. Big O Retail
Enterprises, Inc., Tire Kingdom, Inc., Big O Tires, Inc., ▇▇▇▇▇▇▇'▇, Inc.,
Merchant's, Incorporated, and NTW Incorporated, to Michelin North America, Inc.
and its affiliates are subject to various cross-guarantees given by TBC
Corporation and certain of its Subsidiaries.
TBC Corporation and/or TBC Private Brands, Inc. has guaranteed all obligations
of Tire Kingdom, Inc. to Continental General Tire, Inc.
Various Capital Leases relating to 19 retail tire stores operated by NTW
Incorporated (at 5/31/05, aggregate ending principal was $7,648,319 and
aggregate net book value was $5,053,040).
Various Capital Leases relating to eight tire stores operated by Merchant's,
Incorporated (at 5/31/05, aggregate ending principal was $3,791,796 and
aggregate net book value was $3,470,576).
Capital Leases related to four trucks in use by TBC Private Brands of Texas, LLC
(capital lease obligation of $70,686 at 5/31/05).
Capital Lease(s) relating to certain computer equipment and related software
used by Tire Kingdom, Inc. (capital lease obligation of $30,818 at 5/31/05).
Long term liability of $6,389,905 (at 5/31/05) relating to eight sale and
leaseback transactions of Big O Tires, Inc. and its subsidiaries that failed to
meet GAAP's sale and leaseback definitions.
The November 2003 sale and leaseback transaction relating to 86 retail stores
operated by NTW Incorporated (net proceeds totaling approximately $132,000,000).
The September 2003 sale and leaseback transaction relating to 13 retail stores
operated by Merchant's, Incorporated (net proceeds totaling approximately
$9,840,000).
SCHEDULE 6.2(e)
GUARANTEE OBLIGATIONS OF BIG O TIRES, INC. AND SUBSIDIARIES
Big O Guarantee Portion at 3/31/05
GE Capital
Intermountain Realty - Sioux Falls $ 313,174.62
GE Capital
Las Vegas (▇▇▇▇▇ ▇▇▇▇▇) 290,000.00
Las Vegas 318,933.45
Boulder, CO 37,304.35
Fresno Winston Location 45,517.50
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Location 58,095.04
▇▇▇▇▇ & ▇▇▇▇▇▇ 1,093,947.53
OKC, LLC JV 50,000.00
Real Estate Lease Guarantees 663,664.04
--------------
Total Guarantees $ 2,870,636.53
SCHEDULE 6.3
EXISTING LIENS
Liens arising under the existing 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 Memphis, Tennessee real property recorded pursuant to
the Existing Credit Agreement.
UCC Filings and Mortgages Against Big O Tires, Inc. and Its Subsidiaries:
First National Bank of ▇▇▇▇▇▇▇▇▇.
Filing in connection with equipment financing by Big O Tire of Idaho, inc.
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.
SCHEDULE 6.5(b)
CERTAIN EXISTING INVESTMENTS AND LOANS
- See Exhibit A for a listing of all existing Subsidiaries.
- TBC Private Brands, Inc. owns 20,000 shares of Series A Preferred Stock,
$.01 par value, of ▇▇▇▇▇ 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 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)
- TBC Private Brands, Inc. owns 20 Preferred Shares of World Tire
Corporation (total investment of $750,000).
EXHIBIT A TO
SCHEDULE 6.5(b)
OBLIGORS AND SUBSIDIARIES AND JURISDICTIONS OF ORGANIZATION
The Holding Company: TBC Corporation, a Delaware corporation formerly known as
TBC Holding Corp.
The Company: TBC Private Brands, Inc., a Delaware corporation formerly known as
TBC Corporation. 100% of the Company's capital stock is owned by the Holding
Company.
Subsidiaries Directly Owned by the Company:
Jurisdiction of Percentage of Stock/ Equity
Name Organization Owned by TBC Subsidiaries
---- --------------- --------------------------- ------------
Big O Tires, Inc. Nevada 100% See Below
▇▇▇▇▇▇▇'▇, 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 Private Brands of Texas, LLC Delaware 100% None
*5% is owned by each of ▇▇▇▇▇▇▇'▇, Inc. and Tire Kingdom, Inc.
Subsidiaries Directly Owned by Big O Tires, Inc.:
Jurisdiction of Percentage of Stock Owned by
Name Incorporation 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 Owned by
Name Incorporation Big O Subsidiaries
---- --------------- ---------------------------- ------------
Big O Retail Enterprises, Inc. Colorado 100% None
Tire Kingdom, Inc. Florida 100% See Below
Subsidiaries Directly Owned By Tire Kingdom, Inc.:
Jurisdiction of Percentage of Stock Owned by
Name Incorporation Big O Subsidiaries
---- --------------- ---------------------------- ------------
Merchant's, Incorporated Delaware 100% None
NTW Incorporated Delaware 100% None
SCHEDULE 6.8
EXISTING RESTRICTIONS
The documents evidencing the Existing Credit Agreement contain, and the
documents evidencing the Credit Agreement will contain, restrictions and
conditions of the type described in Section 6.8.
The sale and leaseback transactions listed on Schedule 6.2(b) contain
restrictions and conditions of the type described in Section 6.8.