Exhibit 4.4
EXECUTION COPY
FIRST AMENDMENT dated as of November 8, 2001 (this
"AMENDMENT"), to the Term Loan Agreement dated as of March 30,
2001 (the "TERM LOAN AGREEMENT"), among THE GOODYEAR TIRE &
RUBBER COMPANY, an Ohio corporation (the "BORROWER"); the
lenders party thereto (together with their successors and
permitted assigns thereunder, the "LENDERS"); THE CHASE
MANHATTAN BANK, a New York banking corporation, as
administrative agent for the Lenders (in such capacity, the
"ADMINISTRATIVE AGENT"); and CHASE MANHATTAN INTERNATIONAL
LIMITED, as London agent for the Lenders (the "LONDON AGENT").
WHEREAS, pursuant to the terms and conditions of the Term Loan
Agreement, the Lenders have agreed to make certain loans to the Borrower; and
WHEREAS, the Borrower has requested that certain provisions of the Term
Loan Agreement be modified in the manner provided for in this Amendment, and the
Lenders are willing to agree to such modifications on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration the parties hereto hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used and not defined herein shall
have the meanings given to them in the Term Loan Agreement, as amended hereby.
2. AMENDMENT TO THE TERM LOAN AGREEMENT. Clause (a) of Article V of the
Term Loan Agreement is hereby amended by deleting in its entirety the table set
forth therein and inserting in its place the following table:
Fiscal Quarter End Minimum Ratio
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September 30, 2001 2.75 to 1.00
December 31, 2001 2.75 to 1.00
March 31, 2002 2.75 to 1.00
June 30, 2002 2.75 to 1.00
September 30, 2002 2.75 to 1.00
December 31, 2002 2.75 to 1.00
March 31, 2003 3.00 to 1.00
June 30, 2003 3.25 to 1.00
September 30, 2003 and each
Fiscal Quarter End thereafter 3.50 to 1.00
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3. NO OTHER AMENDMENTS OR WAIVERS; CONFIRMATION. Except as expressly
amended hereby, the provisions of the Term Loan Agreement are and shall remain
in full force and effect. Nothing herein shall be deemed to entitle the Borrower
to a consent to, or a waiver, amendment, modification or other change of, any of
the terms, conditions, obligations, covenants or agreements contained in the
Term Loan Agreement in similar or different circumstances.
4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to the Administrative Agent and the Lenders that, as of the date
hereof:
(a) No Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by the Borrower of
this Amendment has been duly authorized by all necessary corporate and
other action and does not and will not require any registration with,
consent or approval of, notice to or action by, any person (including
any Governmental Body) in order to be effective and enforceable. The
Term Loan Agreement as amended by this Amendment constitutes the legal,
valid and binding obligation of the Borrower, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding
in equity or at law.
(c) All representations and warranties of the Borrower set
forth herein and in the Term Loan Agreement are true and correct in all
material respects on and as of the date hereof.
5. AMENDMENT FEE. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender that executes and delivers a copy of this
Amendment at or prior to 5:00 p.m., New York City time, on November 8, 2001, an
amendment fee (the "AMENDMENT FEE") equal to 0.15% of such Lender's Commitment
(whether then utilized or unutilized) as of November 8, 2001. The Amendment Fee
shall be payable upon the effectiveness of this Amendment.
6. CONDITIONS PRECEDENT TO EFFECTIVENESS. This Amendment shall become
effective as of and with effect from the date hereof, subject to the receipt by
the
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Administrative Agent of counterparts hereof duly executed and delivered by the
Borrower and the Majority Lenders.
7. EXPENSES. The Borrower agree to pay or reimburse the Administrative
Agent for its out-of-pocket expenses in connection with this Amendment,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
Moore, counsel for the Administrative Agent.
8. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
9. 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. This Amendment may be delivered by facsimile transmission of the
relevant signature pages hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their duly authorized officers as of the day and
year first above written.
THE GOODYEAR TIRE & RUBBER
COMPANY,
by
____________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent,
by
____________________________________
Name:
Title:
CHASE MANHATTAN INTERNATIONAL
LIMITED, as London Agent,
by
____________________________________
Name:
Title:
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Signature page to the First Amendment dated
as of November 8, 2001, to the Term Loan
Agreement
Name of Lender:
______________________________________________
by
___________________________________________
Name:
Title: