AMENDMENT NO. 3 TO NOTE PURCHASE AGREEMENT

Note Purchase Agreement

You are currently viewing:

This Note Purchase Agreement involves

TBC CORP | TBC CORPORATION TBC PRIVATE BRANDS, INC.

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.

Title: AMENDMENT NO. 3 TO NOTE PURCHASE AGREEMENT
Governing Law: New York Date: 6/23/2005
Industry: Tires Sector: Consumer Cyclical

AMENDMENT NO. 3 TO NOTE PURCHASE AGREEMENT, Parties: tbc corp , tbc corporation tbc private brands inc.

<PAGE>

================================================================================

EXHIBIT 4.3

TBC CORPORATION

TBC PRIVATE BRANDS, INC.

---------------------------------

AMENDMENT NO. 3 TO NOTE PURCHASE AGREEMENT

---------------------------------

DATED AS OF JUNE 17, 2005

SERIES D VARIABLE RATE SENIOR SECURED NOTES DUE APRIL 16, 2009

GUARANTEED BY CERTAIN SUBSIDIARIES OF TBC PRIVATE BRANDS, INC.

================================================================================

<PAGE>

TBC CORPORATION

TBC PRIVATE BRANDS, INC.

SERIES D VARIABLE RATE SENIOR SECURED NOTES DUE APRIL 16, 2009

GUARANTEED BY CERTAIN SUBSIDIARIES OF TBC PRIVATE BRANDS, INC.

AMENDMENT NO. 3 TO NOTE PURCHASE AGREEMENT

As of June 17, 2005

The Noteholders 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 Noteholders are party to a Note Purchase Agreement

(the "ORIGINAL NOTE PURCHASE AGREEMENT" and as amended by that certain Amendment

No. 1 to Note Purchase Agreement dated as of November 29, 2003 ("AMENDMENT NO.

1", and as so amended, Original Note Purchase Agreement is referred to herein as

the "FIRST AMENDED NOTE PURCHASE AGREEMENT") and that certain Amendment No. 2 to

Note Purchase 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 PURCHASE AGREEMENT" and, as amended hereby and as may be further

amended, restated or otherwise modified from time to time, the "NOTE PURCHASE

AGREEMENT"), dated as of April 1, 2003, pursuant to which the Company originally

issued $50,000,000 in aggregate principal amount of its Series D Variable Rate

Senior Secured Notes due April 16, 2009 (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 Notes outstanding on the date hereof is

$50,000,000, all of which Notes are held by the Noteholders. The obligations of

the Obligors under the Note Purchase Agreement and the Notes are secured by: (a)

a lien on certain assets of (and are guaranteed by) certain Subsidiaries of the

Company (the "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 JP

Morgan Chase Bank, N.A., as collateral agent for the 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

<PAGE>

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, JP Morgan 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

Noteholders agree to amend the Existing Note Purchase Agreement to, among other

things, permit the Refinancing. The Noteholders have, 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 Purchase Agreement. Other defined terms

used herein shall have the meanings set forth below:

"AGREEMENT, THIS" means this Amendment No. 3 to Note Purchase 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 4770 Hickory Hill

Road, Memphis, Tennessee, in favor of the Collateral Agent for the benefit of

the Noteholders and the Lenders.

"CREDIT AGREEMENT" is defined in Section 1.

"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 PURCHASE AGREEMENT" is defined in Section 1.

<PAGE>

"FINANCING DOCUMENTS" means this Agreement, the Note Purchase Agreement,

the Notes, the Guarantee and Collateral Agreement and the Company Mortgage.

"FIRST AMENDED NOTE PURCHASE 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 and the 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 and the Noteholders, and acknowledged and

agreed to by the Obligors.

"LENDERS" is defined in Section 1.

"1996 NOTEHOLDERS" is defined in Section 7.

"NOTEHOLDERS" means, and is a collective reference to, each holder of a

Note on the date hereof.

"NOTE PURCHASE AGREEMENT" is defined in Section 1.

"NOTES" is defined in Section 1.

"OBLIGORS" is defined in the introductory paragraph.

"ORIGINAL NOTE PURCHASE 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.

"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

<PAGE>

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.

3. REPRESENTATIONS AND WARRANTIES OF THE COMPANIES.

To induce the Noteholders 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:

(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

<PAGE>

Subsidiary (other than those permitted by Section 6.3 of the Note Purchase

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 Noteholders by or on behalf of the Obligors in connection

therewith, taken as a whole, do not contain any untrue statement of a material

fact or omit to state any material fact necessary to make the statements therein

not misleading in light of the circumstances under which they were made. There

is no fact known to the 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 Noteholders by or on behalf of the Obligors

specifically for use in connection with the transactions contemplated by the

Financing Documents.

3.6. NO DEFAULTS; NO MATERIAL ADVERSE 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.

(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 Purchase 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.

<PAGE>

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 Noteholders, 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 Purchase 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 Noteholders, 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 Purchase 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 Noteholders, 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 Noteholders, 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 Purchase 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.

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

<PAGE>

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 PURCHASE AGREEMENT.

The Noteholders and the Company hereby agree that, subject to Section 5

hereof, the Existing Note Purchase Agreement is hereby amended in the manner

specified in Exhibit A to this Agreement (collectively, the "AMENDMENTS").

4.2. 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 Purchase Agreement and the Notes. Upon the effectiveness of this

Agreement, (b) all covenants, restrictions and prohibitions applicable to the

Company contained in the Note Purchase Agreement apply to the Holding Company

and (c) all definitions contained in the Note Purchase 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"):

<PAGE>

5.1. EXECUTION AND DELIVERY OF THIS AGREEMENT.

The Obligors and the Noteholders shall have executed and delivered a

counterpart of this Agreement.

5.2. REPRESENTATIONS AND WARRANTIES TRUE.

The representations and warranties set forth in paragraph 3 shall be true

and correct on such date in all material respects.

5.3. 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 Noteholders 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 and the Noteholders within 10

Business Days of the date hereof.

5.5. OBLIGORS' SECRETARY CERTIFICATES.

The Noteholders 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, 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 each

Noteholder a certificate of its Secretary or Assistant Secretary, certifying as

true, correct and complete and attaching:

(a) copies of the resolutions authorizing the execution, delivery

and performance of the Guarantee and Collateral Agreement, and the

satisfaction of all closing conditions set forth in this Section 5

applicable to it;

<PAGE>

(b) its certificate or articles of incorporation, limited liability

company or limited partnership agreement or other constitutive document

and all amendments thereto;

(d) an incumbency certificate and specimen signatures of its

officers executing documents.

5.7. PROJECTED FINANCIAL STATEMENTS.

Each 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 Purchase Agreement for each Fiscal Quarter of 2005.

5.8. OPINIONS OF COUNSEL.

The Noteholders shall have received opinions (addressed to the Noteholders

and dated the Effective Date) from (a) Thompson Hine LLP, counsel to the

Obligors and (b) Bingham McCutchen LLP, special counsel to the Noteholders, each

in form and substance satisfactory to the Noteholders.

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

Noteholders' special counsel in accordance with Section 6 below. 5.11.

PROCEEDINGS SATISFACTORY.

All proceedings taken in connection with this Agreement and all documents

and papers relating thereto shall be satisfactory to the Noteholders and their

special counsel, and the Noteholders and their special counsel shall have

received copies of such documents and papers as they or their special counsel

may reasonably request in connection herewith.

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 Noteholders' special counsel, Bingham McCutchen LLP,

incurred in connection with the preparation, negotiation and delivery

<PAGE>

of this Agreement. Nothing in this Section 6 shall limit the Obligors'

obligations under Section 11.2 of the Note Purchase Agreement.

7. AMENDMENT FEE.

In consideration of the consent of the Noteholders to the Amendments, the

Obligors shall pay an amendment fee to the Noteholders and the holders of the

1996 Notes (the "1996 NOTEHOLDERS") on the Effective Date in an aggregate amount

equal to $60,000. Such fee shall be paid to the Noteholders and the 1996

Noteholders ratably in accordance with the respective principal amounts of Notes

and 1996 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 Purchase Agreement and the note purchase agreement pursuant to which

the 1996 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 1996 Notes (as

applicable).

8. MISCELLANEOUS.

8.1. PART OF NOTE PURCHASE AGREEMENT, RATIFICATION AND CONFIRMATION.

This Agreement shall be construed in connection with and as a part of the

Existing Note Purchase Agreement and, except as expressly amended by this

Agreement, (a) no terms or provisions of the Existing Note Purchase 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 Noteholders of, or otherwise prejudice the Noteholders' rights, remedies

or powers under, the Note Purchase Agreement or under any applicable law, and

all of such rights, remedies and powers are hereby expressly reserved, and (c)

the obligations of the Obligors under the Existing Note Purchase 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 Purchase Agreement

and the Notes without making specific reference to this Agreement, but

nevertheless all such references shall include this Agreement unless the context

otherwise requires.

8.2. COUNTERPARTS; EFFECTIVENESS.

This Agreement may be executed in any number of counterparts, each of

which shall be an original but all of which together shall constitute one

instrument. Delivery of an executed signature page by facsimile transmission

shall be effective as delivery of a manually signed counterpart of this

Agreement.

8.3. SUCCESSORS AND ASSIGNS.

All covenants and other agreements in this Agreement contained by or on

behalf of any of the parties hereto shall bind and inure to the benefit of the

respective successors and assigns of the parties hereto (including, without

limitation, any transferee) whether so expressed or not.

<PAGE>

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 Noteholders.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. NEXT PAGE IS SIGNATURE PAGE.]

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/

------------------------

Name: Tim J. Miller

Title: Vice President

TBC PRIVATE BRANDS, INC.

By /s/

------------------------

Name: Tim J. Miller

Title: Vice President

<PAGE>

The foregoing Agreement is hereby accepted

as of the date first above written.

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA

By: /s/

-----------------------------------

Name: Billy B. Greer

Title: Senior Vice President

PRUCO LIFE INSURANCE COMPANY

By: /s/

-----------------------------------

Name: Billy B. Greer

Title: Senior Vice President

RGA REINSURANCE COMPANY

By: Prudential Private Placement Investors, L.P.

(as Investment Advisor)

By: Prudential Private Placement Investors, Inc.

(as its General Partner)

By: /s/

---------------------------------------

Name: Billy B. Greer

Title: Senior Vice President

BAYSTATE INVESTMENTS, LLC

By: Prudential Private Placement Investors, L.P.

(as Investment Advisor)

By: Prudential Private Placement Investors, Inc.

(as its General Partner)

By: /s/

---------------------------------------

Name: Billy B. Greer

Title: Senior Vice President

[Signature Page to Amendment No. 3 to Note Purchase Agreement]

<PAGE>

UNITED OF OMAHA LIFE INSURANCE COMPANY

By: Prudential Private Placement Investors, L.P.

(as Investment Advisor)

By: Prudential Private Placement Investors, Inc.

(as its General Partner)

By: /s/

----------------------------------------

Name: Billy B. Greer

Title: Senior Vice President

[Signature Page to Amendment No. 3 to Note Purchase Agreement]

<PAGE>

EXHIBIT A

AMENDMENTS TO EXISTING NOTE PURCHASE AGREEMENT

1. GLOBAL AMENDMENTS.

The following amendments were made to the First Amended Note Purchase

Agreement by Amendment No. 2:

All covenants, restrictions and prohibitions applicable to the Company

contained in the First Amended Note Purchase Agreement (including, without

limitation, those obligations, restrictions and prohibitions set forth in

Sections 5 through 7, inclusive, of the First Amended Note Purchase 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

Purchase 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 Purchase 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 Purchase 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 Purchase 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 Purchase 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.

Exhibit A-1

<PAGE>

(a) FINANCIAL STATEMENTS. Section 5.1 of the Existing Note Purchase

Agreement shall be and is hereby amended by deleting the first four lines of the

last paragraph thereof and replacing them with the following:

"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

Purchase 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".

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 Purchase Agreement and the First Amended Note Purchase

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 ful

SITE SEARCH

AGREEMENTS / CONTRACTS

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates