First Amendment to Guarantee and Collateral Agreement by TBC Corporation and Affiliates in Favor of JPMorgan Chase Bank
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Summary
This amendment, dated November 29, 2003, modifies the Guarantee and Collateral Agreement originally made on March 31, 2003, between TBC Corporation and its affiliates (as Grantors) and JPMorgan Chase Bank, acting as Collateral Agent for various lenders and secured parties. The amendment updates definitions, clarifies obligations, and aligns the agreement with recent changes to related credit and note agreements. It is a condition for the effectiveness of other financing amendments and ensures continued credit availability to TBC Corporation under revised terms.
EX-4.6 9 l04549exv4w6.txt FIRST AMENDMENT TO GUARANTEE AND COLLATERAL AGRMNT EXHIBIT 4.6 CONFORMED COPY FIRST AMENDMENT TO GUARANTEE AND COLLATERAL AGREEMENT FIRST AMENDMENT, dated as of November 29, 2003 (this "Amendment"), to the Guarantee and Collateral Agreement, dated as of March 31, 2003 (the "Guarantee and Collateral Agreement"), made by TBC Corporation (the "Borrower"), Big O Development, Inc., Big O Retail Enterprises, Inc., Big O Tire of Idaho, Inc., Big O Tires, Inc., Carroll's, Inc., Merban, Inc., Merchant's, Incorporated, Northern States Tire, Inc., O Advertising, Inc., TBC Brands, LLC, TBC Capital, LLC, TBC International Inc., TBC Retail Enterprises, Inc. and Tire Kingdom, Inc. (each, including the Borrower, a "Grantor") in favor of JPMorgan Chase Bank, as Collateral Agent for the Secured Parties (as defined in the Guarantee and Collateral Agreement). W I T N E S S E T H: WHEREAS, the Guarantee and Collateral Agreement was executed in connection with: (i) the Credit Agreement, dated as March 31, 2003, among the Borrower, the lenders from time to time party thereto (each a "Lender"), First Tennessee Bank National Association, as administrative agent for the Lenders (in such capacity, the "Administrative Agent") and JPMorgan Chase Bank, as co-administrative agent for the Lenders (in such capacity the "Co-Administrative Agent") (the "March 2003 Credit Agreement"), and (ii) (A) the Second Amended and Restated Note Agreement (the "Series AB&C Note Agreement"), dated as of April 1, 2003, between the Borrower and The Prudential Insurance Company of America, and (B) the Note Purchase Agreement (the "Series D Note Agreement", dated as of April 1, 2003, by and among the Borrower, The Prudential Insurance Company of America and certain of its affiliates and managed accounts (collectively, "Prudential"); WHEREAS, concurrently with the execution of this Amendment, the March 2003 Credit Agreement shall be amended and restated in its entirety (the March 2003 Credit Agreement as so amended and restated, the "Credit Agreement") to, among other things, make available to the Borrower the Tranche C Term Commitments (as defined in the Credit Agreement), to amend certain of the covenants therein and to make other modifications as specified therein; WHEREAS, concurrently with the execution of this Amendment, the Series D Note Agreement shall be amended pursuant to Amendment No. 1 to Note Purchase Agreement, dated as of even date herewith (the "Series D Note Agreement Amendment" and, as so amended, the Series D Note Agreement shall be referred to as the "Amended Series D Note Agreement") and the Series AB&C Note Agreement shall be amended pursuant to Amendment No. 1 to Second Amended and Restated Note Agreement, dated as of even date herewith (the "Series AB&C Note Agreement Amendment" and together with the Series D Note Agreement Amendment, the "Note Agreement Amendments" and, as so amended, the Series AB&C Note Agreement shall be referred to herein as the "Amended Series AB&C Note Agreement") to, among other things, amend certain of the covenants therein and to make other modifications as specified therein; WHEREAS, the execution of this Amendment by the parties hereto and its delivery to the Co-Administrative Agent is a condition precedent to the effectiveness of the amendment and restatement of the March 2003 Credit Agreement and the obligation of the Lenders to make their respective extensions of credit to the Borrower under the Credit Agreement and to the effectiveness of the Note Agreement Amendments; NOW, THEREFORE, in consideration of the premises and to induce the Co-Administrative Agent and the Lenders to enter into the amendment and restatement of the March 2003 Credit Agreement and to induce the Lenders to make their respective extensions of credit to the Borrower under the Credit Agreement and to induce Prudential to enter into the Note Agreement Amendments, the parties hereto hereby agree as follows: 1. Defined Terms. (a) Capitalized terms used but not defined herein shall have the meanings assigned to them in the Guarantee and Collateral Agreement. (b) As used in this Amendment, the terms listed in this Section 1(b) shall have the respective meanings set forth in this Section 1(b): "First Amendment Effective Date": as defined in Section 5. 2. Amendments to Section 1.1 (Definitions). (a) The following definitions are hereby inserted in Section 1.1 of the Guarantee and Collateral Agreement in proper alphabetical order: "Affiliate": as defined in the Credit Agreement. "Hedging Agreement": as defined in the Credit Agreement. "Specified Hedging Agreement": any Hedging Agreement entered into by the Borrower and any Lender or Affiliate thereof in respect of interest rates. (b) The definition of "Borrower Obligations" appearing in Section 1.1 of the Guarantee and Collateral Agreement is hereby amended by (i) deleting such definition in its entirety and (ii) inserting in lieu thereof the following definition: "Borrower Obligations": the collective reference to the unpaid principal of and interest on the Prudential Notes, the Loans and Reimbursement Obligations and all other obligations and liabilities of the Borrower (including, without limitation, interest accruing at the then applicable rate provided in the Credit Agreement, the Note Agreements and the Prudential Notes after the maturity of the Loans, the Reimbursement Obligations and the Prudential Notes and interest accruing at the then applicable rate provided in the Credit Agreement, the Note Agreements and the Prudential Notes, as applicable, after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) to the Collateral Agent or any Secured Party (or, in the case of any Specified Hedging Agreement, any Affiliate of any applicable Secured Party), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the Credit Agreement, the Note Agreements, the Prudential Notes, this Agreement, any Mortgage, any Letter of Credit and any guarantee of the Borrower's obligations in respect of any of the foregoing as from time to time in effect, any Specified Hedging Agreement or any other document made, delivered or given in connection with any of the foregoing, in each case whether on account of principal, interest, reimbursement obligations, Make-Whole Amounts, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Collateral Agent or to the Secured Parties that are required to be paid by the Borrower pursuant to the terms of any of the foregoing agreements) (collectively, but not including any Specified Hedging Agreement, the "Loan Documents"). (c) The definition of "Intercreditor Agreement" appearing in Section 1.1 of the Guarantee and Collateral Agreement is hereby amended by (i) deleting such definition in its entirety and (ii) inserting in lieu thereof the following definition: "Intercreditor Agreement": the Intercreditor Agreement among Prudential, the Prudential Affiliates, each Lender, the Administrative Agent and the Collateral Agent, dated as of March 31, 2003, as amended by the First Amendment to Intercreditor Agreement, dated as of November 29, 2003. (d) The definition of "Secured Parties" appearing in the final parenthetical of the preamble of the Guarantee and Collateral Agreement is hereby amended by inserting immediately following "the Lenders," appearing therein "each Lender Affiliate party to a Specified Hedge Agreement,". 3. Amendment to Section 8.15 (Releases). Section 8.15(a) of the Guarantee and Collateral Agreement is hereby amended by inserting immediately following the phrase "and the other Obligations" appearing therein "(other than Obligations in respect of Specified Hedging Agreements)". 4. Consent and Acknowledgement. Each Grantor hereby (i) consents to the amendment and restatement of the March 2003 Credit Agreement and the Note Agreement Amendments and the transactions contemplated thereby, (ii) acknowledges and agrees that the guarantees, grants of security interests and other obligations of such Grantor under the Guarantee and Collateral Agreement and the other Loan Documents are in all respects continuing, and shall remain (as amended hereby), in full force and effect after giving effect to the Credit Agreement, the Amended Series AB&C Note Agreement, the Amended Series D Note Agreement and this Amendment and (iii) agrees that each reference in the Guarantee and Collateral Agreement to (A) the "Credit Agreement" shall be deemed to be a reference to the March 2003 Credit Agreement as amended and restated pursuant to the Credit Agreement, (B) the "Existing Note Agreement" shall be deemed to be a reference to the Amended Series AB&C Note Agreement, and (C) the "Additional Note Agreement" shall be deemed to be a reference to the Amended Series D Note Agreement, in each case, as such agreements may be further amended, supplemented or otherwise modified from time to time. 5. Conditions to Effectiveness. This Amendment shall become effective on the date (the "First Amendment Effective Date") on which: (i) the Co-Administrative Agent and each Required Noteholder shall have received counterparts of this Amendment duly executed and delivered by each of the Borrower, each other Grantor, the Co-Administrative Agent and each Required Noteholder; and (ii) the Amendment and Restatement Effective Date (as defined in the Credit Agreement) shall have occurred; and (iii) the Effective Date, as defined in the Series AB&C Note Agreement Amendment (the "Series AB&C Note Agreement Amendment Effective Date"), and the Effective Date, as defined in the Series D Note Agreement Amendment (the "Series D Note Agreement Amendment Effective Date"), shall each have occurred. 6. Representation and Warranties. Each Grantor hereby represents and warrants (a) to each Lender as of the First Amendment Effective Date, (b) to each Lender Party party to the Series AB&C Note Agreement Amendment as of the Series AB&C Note Agreement Amendment Effective Date, and (c) to each Lender Party party to the Series D Note Agreement Amendment as of the Series D Note Agreement Amendment Effective Date, in each case, (i) each of the representations and warranties contained in Sections 4.1(a) through 4.1(d), inclusive, of the Guarantee and Collateral Agreement are true and correct with respect to this Amendment (as if each reference to "this Agreement" were a reference to this Amendment), and (ii) that, after giving effect to this Amendment, each of the representations and warranties of such Grantor in or pursuant to the Guarantee and Collateral Agreement is true and correct in all material respects and the information set forth on the Schedules thereto is true and correct except as set forth on Annex I hereto, as if made on the First Amendment Effective Date, the Series AB&C Note Agreement Amendment Effective Date and the Series D Note Agreement Amendment Effective Date, as applicable. 7. Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Amendment by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof. 8. Severability; Headings. Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The section and subsection headings used in this Amendment are for convenience of reference only and are not to affect the construction hereof or to be taken into consideration in the interpretation hereof. 9. Continuing Effect of Other Documents. This Amendment shall not constitute an amendment or waiver of any other provision of the Guarantee and Collateral Agreement not expressly referred to herein and shall not be construed as a waiver or consent to any further or future action on the part of any Grantor that would require a waiver or consent of the Lenders, the Co-Administrative Agent or the Required Noteholders. Except as expressly amended, modified and supplemented hereby, the provisions of the Guarantee and Collateral Agreement are and shall remain in full force and effect. 10. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to the Guarantee and Collateral Agreement to be duly executed and delivered by their proper and duly authorized officers as of the date first above written. TBC Corporation By: /s/ Thomas W. Garvey -------------------- Name: Thomas W. Garvey Title: Executive Vice President/CFO TBC International Inc. By: /s/ Thomas W. Garvey -------------------- Name: Thomas W. Garvey Title: Executive Vice President/CFO Carroll's, Inc. By: /s/ Thomas W. Garvey -------------------- Name: Thomas W. Garvey Title: Executive Vice President/CFO Big O Tires, Inc. By: /s/ Thomas W. Garvey -------------------- Name: Thomas W. Garvey Title: Executive Vice President TBC Retail Enterprises, Inc. By: /s/ Thomas W. Garvey -------------------- Name: Thomas W. Garvey Title: Executive Vice President/CFO Big O Tire of Idaho, Inc. By: /s/ Thomas W. Garvey -------------------- Name: Thomas W. Garvey Title: Executive Vice President O Advertising, Inc. By: /s/ Thomas W. Garvey -------------------- Name: Thomas W. Garvey Title: Executive Vice President Tire Kingdom, Inc. By: /s/ Thomas W. Garvey -------------------- Name: Thomas W. Garvey Title: Executive Vice President/CFO Northern States Tire, Inc. By: /s/ Thomas W. Garvey -------------------- Name: Thomas W. Garvey Title: Executive Vice President/CFO Big O Retail Enterprises, Inc. By: /s/ Thomas W. Garvey -------------------- Name: Thomas W. Garvey Title: Executive Vice President/CFO Big O Development, Inc. By: /s/ Thomas W. Garvey -------------------- Name: Thomas W. Garvey Title: Executive Vice President TBC Brands, LLC By: /s/ Tina J. Ford ---------------- Name: Tina J. Ford Title: President and Treasurer TBC Capital, LLC By: /s/ Tina J. Ford ------------------ Name: Tina J. Ford Title: President and Treasurer Merchant's, Incorporated By: /s/ Thomas W. Garvey -------------------- Name: Thomas W. Garvey Title: Executive Vice President/CFO Merban, Inc. By: /s/ Thomas W. Garvey -------------------- Name: Thomas W. Garvey Title: Executive Vice President/CFO JPMORGAN CHASE BANK, as Co-Administrative Agent By: /s/ Bruce Yoder --------------- Name: Bruce Yoder Title: Vice President THE PRUDENTIAL INSURANCE COMPANY OF AMERICA By: /s/ Billy Greer --------------- Name: Billy Greer Title: Vice President PRUCO LIFE INSURANCE COMPANY By: /s/ Billy Greer --------------- Name: Billy Greer Title: Assistant Vice President RGA REINSURANCE COMPANY By: Prudential Private Placement Investors, L.P., as Investment Advisor By: Prudential Private Placement Investors, Inc., General Partner By: /s/ Billy Greer --------------- Name: Billy Greer Title: Vice President BAYSTATE INVESTMENTS, LLC By: Prudential Private Placement Investors, L.P., as Investment Advisor By: Prudential Private Placement Investors, Inc., General Partner By: /s/ Billy Greer --------------- Name: Billy Greer Title: Vice President UNITED OMAHA LIFE INSURANCE COMPANY By: Prudential Private Placement Investors, L.P., as Investment Advisor By: Prudential Private Placement Investors, Inc., General Partner By: /s/ Billy Greer --------------- Name: Billy Greer Title: Vice President Annex I Supplements to Guarantee and Collateral Agreement Schedules Schedule 1 None. Schedule 2 Additional Pledged Stock:
Additional Uncertificated Securities:
Schedule 3 See attached Amended Schedule 3, which replaces the existing Schedule 3. Schedule 4 - - Merchant's, Incorporated has dropped its opposition filing on the "Ready to Roll Tire Pricing" trademark. - - See additional items attached. Amended Schedule 3 LOCATION OF JURISDICTION AND CHIEF EXECUTIVE OFFICE
SCHEDULE 4, continued TBC BRANDS, LLC Trademark Report by Mark Printed: 11/19/2003 11/19/2003 Status: ACTIVE
Status: ACTIVE
END OF TOTAL ITEMS SELECTED 25 BIG O TIRES, INC. Trademark Report by Mark Printed: 11/19/2003 11/19/2003 Status: PENDING
Trademark Report by Mark Printed: 11/19/2003
END OF TOTAL ITEMS SELECTED 27 NTW INCORPORATED (AFTER CLOSING OF NTB ACQUISITION) 1. Copyright registrations:
2. Trademark registrations:
