EXHIBIT 4.2
FIRST AMENDMENT dated as of February 19,
2004 (this "Amendment"), to the $750,000,000 Amended
and Restated Revolving Credit Agreement dated as of
March 31, 2003 (the "Credit 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"); and JPMORGAN CHASE BANK,
a New York banking corporation, as administrative
agent for the Lenders (in such capacity, the
"Administrative Agent").
WHEREAS, pursuant to the terms and conditions of the Credit
Agreement, the Lenders have extended and agreed to extend credit to the
Borrower; and
WHEREAS, the Borrower has requested, and the Majority Lenders are
willing to agree, that certain provisions of the Credit Agreement and of the
Security Documents be amended on the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used and not defined
herein shall have the meanings given to them in the Credit Agreement or, if not
defined therein, in the Guarantee and Collateral Agreement, each as amended
hereby or pursuant hereto.
SECTION 2. Amendments to Section 1.01 of the Credit Agreement.
Section 1.01 of the Credit Agreement is hereby amended as follows:
(a) The definition of "Capital Expenditures" is hereby amended
by deleting the word "and" immediately before "(ii)" in the second
sentence thereof and inserting immediately before the period at the end of
such sentence "and (iii) "Capital Expenditures" in respect of any period
shall be reduced by the amount of Customer Capital Expenditures that are
directly paid by customers during such period and by the amount of
reimbursements the Borrower or any Subsidiary shall have received during
such period from customers in respect of Customer Capital Expenditures;
provided that the aggregate amount of such reductions shall not exceed
$50,000,000 in any fiscal year".
(b) The definition of "Consolidated Net Worth" is hereby
amended by inserting "(including the $84,700,000 of charges incurred in
connection with the Borrower's restatement of its financial statements
from 1998 through the second quarter of 2003, reflected in SEC filings
made in the fourth quarter of 2003)" immediately after the phrase
"non-cash non-recurring charges" in clause (c)(i) of such definition.
(c) The definition of "Consolidated Senior Secured
Indebtedness" is hereby amended by inserting "(other than up to
$2,500,000,000 aggregate principal amount of Senior Subordinated-Lien
Indebtedness)" immediately after the word "Indebtedness" in clause (a) of
such definition.
(d) The definition of "Credit Documents" is hereby amended by
replacing the word "and" with a comma and by inserting immediately before
the period at the end thereof "and the Lien Subordination and
Intercreditor Agreement".
(e) The definition of "Net Cash Proceeds" is hereby amended by
inserting immediately before the period at the end thereof "; provided,
that the Net Cash Proceeds of any event that is not a Prepayment Event
shall be determined as if such event were a Prepayment Event".
(f) Clause (c) of the definition of "Permitted Encumbrances"
is hereby amended by inserting therein immediately after the phrase
"deposits made" the phrase "(including cash deposits to secure obligations
in respect of letters of credit provided)".
(g) Clause (f) of the definition of "Permitted Investments" is
hereby amended by replacing the word "or" immediately before clause (ii)
thereof with a comma and inserting immediately before the period at the
end thereof the following:
", (iii) investments of the type and maturity described in
clause (c) in any obligor organized under the laws of a
jurisdiction other than the United States that (A) is a branch
or subsidiary of a Lender or the ultimate parent company of a
Lender under one of the New Facilities Credit Agreements (but
only if such Lender meets the ratings and capital, surplus and
undivided profits requirements of such clause (c)) or (B)
carries a rating at least equivalent to the rating of the
sovereign nation in which it is located, and (iv) other
investments of the type and maturity described in clause (c)
in obligors organized under the laws of a jurisdiction other
than the United States in any country in which such Subsidiary
is located; provided, that the investments permitted under
this subclause (iv) shall not exceed $10,000,000 for all such
Subsidiaries in any such country or $50,000,000 in the
aggregate for all such Subsidiaries and all countries".
(h) The definition of "Securitization Transaction" is hereby
amended by inserting immediately before the period at the end of the first
sentence thereof the following:
"; provided that "Securitization Transaction" shall not
include (A) the sale by any Foreign Subsidiary, in the
ordinary course of its business, of drafts with a bank or
other financial institution as the maker (or otherwise
primarily responsible for the payment
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thereof), bankers acceptances or similar instruments received
by such Foreign Subsidiary from a customer operating in a
jurisdiction other than the United States or any of its
territories or possessions or any political subdivision
thereof in satisfaction of accounts receivable or otherwise as
consideration for goods sold or services provided to such
customer or (B) the sale, in the ordinary course of business,
of drafts not payable on demand received by the Borrower or
any Subsidiary from a customer in satisfaction of accounts
receivable or otherwise as consideration for goods sold or
services provided to such customer pursuant to an arrangement
(1) initiated by and entered into a the request of such
customer, and (2) under which a financial institution has
agreed as part of a financing program established for and at
the request of such customer to buy such drafts from such
customer's vendors (which arrangements may be modified by the
Borrower or any Subsidiary to contemplate the repurchase of
such drafts by such customer, or other actions by such
customer to reinstate or to pay receivables in respect of
which such drafts were created, in the event of any failure by
such financial institution to buy such drafts)".
(i) The definition of "Security Documents" is hereby
amended by inserting therein immediately after the phrase "document
delivered" the phrase "in connection with the cash collateralization of
Letters of Credit or".
The following new definitions are hereby inserted in their
appropriate alphabetical positions:
"Cash Collateral Requirement" means an obligation of the Borrower to
have on deposit with the Administrative Agent, to collateralize reimbursement
obligations in respect of Letters of Credit, cash in an amount equal on any date
of determination to 105% of the positive difference (if any) derived by
subtracting (i) the aggregate Regular Way Commitments from (ii) the aggregate
Revolving Credit Exposures.
"Customer Capital Expenditures" shall mean all or any portion of the
purchase price of equipment or other fixed assets purchased for use in the
business of the Borrower or any Subsidiary that is paid directly, or reimbursed
to the Borrower or any Subsidiary, by customers of the Borrower or any of the
Subsidiaries that are not Affiliates of the Borrower.
"Designated Debt" means Indebtedness of the Borrower that matures
during any of the calendar years 2005, 2006, 2007 and 2008.
"First Amendment" means the First Amendment dated as of February 19,
2004, to this Agreement.
"First Amendment Date" means February 19, 2004.
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"Junior Securities" means, collectively, any Senior
Subordinated-Lien Indebtedness and any Indebtedness or preferred Equity
Interests issued under Section 6.01(q).
"Lien Subordination and Intercreditor Agreement" means a Lien
Subordination and Intercreditor Agreement, to be dated on or about the first
date on which Senior Subordinated-Lien Indebtedness is incurred, issued or sold,
among the Collateral Agent, the applicable Senior Subordinated-Lien Collateral
Agent, the Borrower and the Subsidiary Guarantors, in substantially the form of
the draft made available to the Lenders prior to the First Amendment Date with
such changes as shall have been approved by the Administrative Agent.
"Principal Issuing Bank" means JPMCB and any other Issuing Bank whom
the Borrower and JPMCB agree will be a Principal Issuing Bank (or any of their
Affiliates that shall act as Issuing Banks hereunder).
"Regular Way Commitment" means, with respect to each Lender as of
any date of determination, the Commitment then in effect for such Lender or, if
lower, the Commitment that would then have been in effect for such Lender but
for the provisos set forth in Section 2.07(c) and (d).
"Senior Subordinated-Lien Collateral Agent" means, as to any Senior
Subordinated-Lien Indebtedness, the collateral agent under the applicable Senior
Subordinated-Lien Indebtedness Security Documents.
"Senior Subordinated-Lien Governing Documents" means each Indenture
or other agreement or instrument providing for the issuance or setting forth the
terms of any Senior Subordinated-Lien Indebtedness.
"Senior Subordinated-Lien Indebtedness" means Indebtedness of the
Borrower issued after the First Amendment Date that (a) is secured by Liens
permitted under Section 6.02(m), but that is not secured by Liens on any
additional assets, (b) constitutes Initial Junior Indebtedness or Designated
Junior Obligations under the Lien Subordination and Intercreditor Agreement, and
the Liens securing which are subordinated under the Lien Subordination and
Intercreditor Agreement to the Liens securing the Obligations and (c) does not
contain provisions inconsistent with the provisions of Annex A to the First
Amendment.
"Senior Subordinated-Lien Obligations" means, as to any Senior
Subordinated-Lien Indebtedness, (a) the principal of and all premium or
make-whole amounts, if any, and interest payable in respect of such Senior
Subordinated-Lien Indebtedness, (b) any amounts payable under Guarantees of such
Senior Subordinated-Lien Indebtedness by Subsidiaries and (c) all other amounts
payable by the Borrower or any Subsidiary under such Senior Subordinated-Lien
Indebtedness, the applicable Senior Subordinated-Lien Security Documents (to the
extent such amounts relate to such Senior Subordinated-Lien Indebtedness) or the
applicable Senior Subordinated-Lien Governing Documents.
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"Senior Subordinated-Lien Security Documents" means, as to any
Senior Subordinated-Lien Indebtedness, the security agreements, pledge
agreements, mortgages and other documents creating Liens on assets of the
Borrower and the Subsidiary Guarantors to secure the applicable Senior
Subordinated-Lien Obligations.
SECTION 3. Amendments to Section 1.02 of the Credit Agreement.
Section 1.02 of the Credit Agreement is hereby amended by inserting the
following at the end thereof:
"For purposes of determining compliance as of any date with Section
6.08, amounts incurred in euros during 2003 shall be translated into
dollars at the exchange rate in effect on March 31, 2003, and
amounts incurred in euros during any subsequent year shall be
translated into dollars at the exchange rate determined by the
Borrower and used in its Annual Operating Plan for such year (which
exchange rate shall be determined reasonably and set forth in the
first certificate delivered pursuant to Section 5.01(c) during such
year)."
SECTION 4. Amendments to Section 2.01. Section 2.01 is hereby
amended by inserting at the end of the first sentence thereof the following: "or
the aggregate outstanding amount of such Lender's Loans exceeding such Lender's
Regular Way Commitment. Notwithstanding any other provision of the Agreement, a
Loan shall not be made unless after giving effect to such Loan, the Cash
Collateral Requirement shall be satisfied".
SECTION 5. Amendments to Section 2.04. Section 2.04 is hereby
amended by:
(a) replacing clause (i) of the final sentence of paragraph (b)
thereof with the following clause: "the LC Exposure shall not when taken
together with the LC Exposure under (and as defined in) the ABL Facilities
Agreement exceed $600,000,000";
(b) inserting at the end of paragraph (b) thereof the following
sentences: "Notwithstanding any other provision of the Agreement, a Letter
of Credit shall not be issued, increased, renewed or extended at any time
that the aggregate amount of the Regular Way Commitments is less than the
aggregate amount of the Commitments unless (i) the Borrower shall at such
time not be entitled to obtain the issuance of a letter of credit under
the ABL Facilities Agreement in a like amount and (ii) after giving effect
to such issuance, increase, renewal or extension, the aggregate amount of
cash deposited with the Administrative Agent to collateralize
reimbursement obligations in respect of Letters of Credit shall be not
less than the Cash Collateral Requirement.";
(c) adding at the end of paragraph (d) thereof the following
sentence: "Each Lender hereby agrees that in the event any Letter of
Credit shall be
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redesignated as a Letter of Credit under (and as defined in) the ABL
Facilities Agreement, then immediately upon the effectiveness of such
redesignation in accordance with the terms of the ABL Facilities
Agreement, such Lender's participation in such Letter of Credit shall
terminate and such Letter of Credit shall cease to be a 'Letter of Credit'
hereunder."; and
(d) inserting in the first sentence of paragraph (j) thereof
immediately after the phrase "an amount in cash" the phrase "that, when
added to cash on deposit with the Administrative Agent in compliance with
the Cash Collateral Requirement, shall be".
SECTION 6. Amendments to Section 2.07 of the Credit Agreement.
Section 2.07 of the Credit Agreement is hereby amended and restated to read in
its entirety as follows:
"SECTION 2.07 Termination of Commitments; Reductions of Commitments.
(a) Unless previously terminated, the Commitments shall terminate on the
Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the
Commitments shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.09, the
total Revolving Credit Exposures would exceed the total Commitments.
(c) In the event and on each occasion that the Borrower shall
receive any proceeds from borrowings under the ABL Facilities Agreement
pursuant to commitments becoming effective substantially concurrently with
the First Amendment Date, the Regular Way Commitments and, if applicable,
the Commitments shall be automatically reduced, substantially concurrently
with such borrowings, by an amount equal to (i) the aggregate amount by
which the proceeds from borrowings under the ABL Facilities Agreement
pursuant to commitments becoming effective substantially concurrently with
the First Amendment Date exceeds $300,000,000, net of the aggregate fees
and out-of-pocket expenses paid by the Borrower in connection with the
borrowings under the ABL Facilities and the related bank amendments, minus
(ii) the aggregate amount of such proceeds (A) that shall have been
applied to prepay Loans under and as defined in the US Term Facility
Agreement or (B) in respect of which the Regular Way Commitments and, if
applicable, the Commitments shall previously have been reduced pursuant to
this paragraph; provided that the aggregate amount of the Commitments
shall not be reduced under this paragraph (c) to an amount less than
$250,000,000.
(d) In the event and on each occasion that the Borrower shall
receive any Net Cash Proceeds from the incurrence, issuance or sale of
Senior Subordinated-
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Lien Indebtedness, the Regular Way Commitments and, if applicable, the
Commitments shall be automatically reduced, substantially concurrently
with the incurrence, issuance or sale of the Senior Subordinated-Lien
Indebtedness by the greater of zero and an amount equal to (i) 50% of the
aggregate Net Cash Proceeds received from all incurrence, issuances and
sales of Senior Subordinated-Lien Indebtedness minus (ii) the aggregate
amount of the Net Cash Proceeds from all such incurrences, issuances and
sales (A) that shall have been applied to prepay Loans under and as
defined in the US Term Facility Agreement or (B) in respect of which the
Regular Way Commitments and, if applicable, the Commitments shall
previously have been reduced pursuant to this paragraph; provided that the
aggregate amount of the Commitments shall not be reduced under this
paragraph (d) to an amount less than $250,000,000.
(e) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of
this Section at least three Business Days prior to the effective date of
such termination or reduction, specifying such election and the effective
date thereof, and shall promptly notify the Administrative Agent of any
required reduction of the Commitments or the Regular Way Commitments under
paragraph (c) or (d) of this Section, specifying the effective date of
such reduction. Promptly following receipt of any such notice, the
Administrative Agent shall advise the Lenders of the contents thereof.
Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments
delivered by the Borrower pursuant to paragraph (b) above may state that
such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or prior to the specified effective
date) if such condition is not satisfied. Any termination or reduction of
the Commitments or the Regular Way Commitments shall be permanent. Each
reduction of the Commitments or the Regular Way Commitments shall be made
ratably among the Lenders in accordance with their respective
Commitments."
SECTION 7. Amendments to Section 2.09 of the Credit Agreement.
Section 2.09 of the Credit Agreement is hereby amended and restated to read in
its entirety as follows:
"SECTION 2.09. Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (d) of this Section.
(b) In the event that, after giving effect to any reduction of the
Regular Way Commitments and, if applicable, the Commitments pursuant to
Section 2.07, the aggregate Revolving Credit Exposures would exceed the
aggregate Regular Way Commitments, the Borrower will, on the date of such
reduction (i) prepay Loans in an amount sufficient to eliminate such
excess, and (ii) if any portion of such excess remains after the repayment
of all outstanding Loans (and any concurrent redesignation of Letters of
Credit as Letters of Credit under and as
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defined in the ABL Facilities Agreement), the Borrower will satisfy the
Cash Collateral Requirement. Any cash so deposited (and any cash
previously deposited in satisfaction of the Cash Collateral Requirement)
with the Administrative Agent shall be held in an account over which the
Administrative Agent shall have dominion and control to the exclusion of
the Borrower and its Subsidiaries, including the exclusive right of
withdrawal. Other than any interest earned on the investment of such
deposits, which investment shall be in Permitted Investments and shall be
made in the discretion of the Administrative Agent (or, at any time when
no Default or Event of Default has occurred and is continuing, shall be
made at the direction of the Borrower) and at the Borrower's risk and
expense, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse each
Issuing Bank for LC Disbursements for which it has not been reimbursed
and, to the extent not so applied, shall be held for the satisfaction of
the reimbursement obligations of the Borrower for the LC Exposure at such
time or, if the maturity of the Loans has been accelerated (but subject to
the consent of Lenders with LC Exposures representing greater than 50% of
the total LC Exposure), be applied to satisfy other obligations of the
Borrower under this Agreement. If the Borrower has provided cash
collateral to satisfy the Cash Collateral Requirement, then, so long as no
Event of Default shall exist, such cash collateral shall be released to
the Borrower if so requested by the Borrower at any time if and to the
extent that, after giving effect to such release, the amount of cash
remaining on deposit with the Administrative Agent would not be less than
the Cash Collateral Requirement.
(c) If (i) under the terms of any agreement or instrument governing
Junior Securities the Borrower is required to apply or offer to apply any
proceeds of any sales of assets to prepay, redeem, repurchase or defease
such Junior Securities in the event such proceeds are not applied within a
prescribed period to one or more other permitted uses ("Alternate
Permitted Uses"), and (ii) such Alternate Permitted Uses would include the
prepayment of Loans under and as defined in the Credit Agreement or the US
Term Facility Agreement and/or the deposit of cash collateral to secure
reimbursement obligations in respect of Letters of Credit, then the
Borrower shall within such prescribed period either (A) apply such
proceeds to an Alternate Permitted Use not involving the prepayment of
Indebtedness or (B) prepay Loans under and as defined in the Credit
Agreement or the US Term Facility Agreement and/or deposit cash collateral
to secure reimbursement obligations in respect of Letters of Credit (and,
in connection with any prepayment of Loans or cash collateralization of
Letters of Credit under this Agreement, reduce the Commitments), in each
case to the extent necessary in order that the Borrower will not be
required to apply or offer to apply such proceeds to prepay, redeem,
repurchase or defease such Junior Securities. Any cash collateral
deposited pursuant to this paragraph to secure reimbursement obligations
in respect of Letters of Credit shall be held and applied in accordance
with the provisions of paragraph (b) above.
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(d) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 3:00 p.m., New York
City time, three Business Days before the date of prepayment or (ii) in
the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of prepayment; provided
that if the Borrower shall be required to make any prepayment hereunder by
reason of the receipt of Net Cash Proceeds of any Senior Subordinated-Lien
Indebtedness, it shall not be required to notify the Administrative Agent
of such prepayment prior to the receipt of such Net Cash Proceeds. Each
such notice shall be irrevocable and shall specify the prepayment date and
the principal amount of each Borrowing or portion thereof to be prepaid;
provided that, if a notice of prepayment under paragraph (a) above is
given in connection with a conditional notice of termination of the
Commitments as contemplated by Section 2.07, then such notice of
prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.07. Promptly following receipt of any such
notice relating to a Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Borrowing
shall be in an amount that would be permitted in the case of an advance of
a Borrowing of the same Type as provided in Section 2.02. Each prepayment
of a Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to
the extent required by Section 2.11."
SECTION 8. Amendments to Section 5.01 of the Credit Agreement.
Paragraph (c) of Section 5.01 of the Credit Agreement is hereby amended by (a)
deleting the words "at the time of" at the beginning of such paragraph and
inserting in their place the words "not later than one Business Day after", (b)
removing the word "and" immediately preceding clause (iii) thereof and (c)
adding at the end of clause (iii) and immediately preceding the semicolon the
following clause: "and (iv) specifying the exchange rate determined by the
Borrower and used in its Annual Operating Plan for the then current fiscal year
(which rate the Borrower agrees to determine reasonably)".
SECTION 9. Amendments to Section 6.01 of the Credit Agreement.
(a) Paragraph (b) of Section 6.01 is hereby amended by replacing
"$1,600,000,000" with "$1,950,000,000" and by inserting immediately at the
end thereof the following:
"or, at any time when (i) the Loans under and as defined in
the US Term Facility Agreement have been repaid in full and (ii) no
Loans are outstanding hereunder and the Regular Way Commitments have
been reduced to zero, $2,000,000,000; provided, that the amount of
Indebtedness permitted by this paragraph or any other paragraph of
this Section to exist under the US Term Facility Agreement and this
Agreement shall be reduced (i) in the case of the US Term Facility
Agreement, by the aggregate amount of all prepayments of the loans
outstanding thereunder and (ii) in the case of this Agreement, by
the
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aggregate amount of all permanent reductions of the commitments
hereunder (it being agreed, however, that up to $250,000,000 of
Indebtedness under this Agreement in the form of cash-collateralized
letters of credit will in any event be permitted);"
(b) Paragraph (g) of Section 6.01 of the Credit Agreement is hereby
amended to read as follows:
"(g) Securitization Transactions (other than those permitted
by paragraphs (f), (j), (l), (r) and (u) of this Section) in an
aggregate amount not greater than (euro)275,000,000 outstanding at
any time;"
(c) Section 6.01 of the Credit Agreement is hereby further amended
by deleting the word "and" at the end of clause (r), redesignating clause
(s) as clause (u) and inserting after clause (r) the following new
clauses:
"(s) Senior Subordinated-Lien Indebtedness for borrowed money
of the Borrower not maturing or required to be prepaid, redeemed,
repurchased or defeased prior to the Maturity Date, whether on one
or more scheduled dates or upon the happening of one or more events
(other than as a result of events of default or change of control
events or pursuant to customary provisions requiring that the
Borrower offer to purchase such Senior Subordinated-Lien
Indebtedness with the proceeds of asset sales to the extent such
proceeds have not been invested in assets used in the Borrower's
business or used to prepay, redeem or purchase other Indebtedness
(including Loans hereunder and Loans under and as defined in the US
Term Facility Agreement) or to provide cash collateral for
reimbursement obligations in respect of letters of credit (including
the Letters of Credit)) (it being understood that provisions
comparable to those contained in Annex A hereto are customary), and
related Guarantees by the Subsidiary Guarantors; provided that (i)
the Borrower shall substantially concurrently make any prepayments,
deposits of cash collateral to secure reimbursement obligations in
respect of Letters of Credit and reductions of Regular Way
Commitments and Commitments required in connection with the issuance
of such Senior Subordinated-Lien Indebtedness under the US Term
Facility Agreement and this Agreement, (ii) the Senior
Subordinated-Lien Collateral Agent for such Senior Subordinated-Lien
Indebtedness shall have executed and delivered to the Administrative
Agent, on its own behalf and on behalf of the obligees on such
Senior Subordinated-Lien Indebtedness, the Lien Subordination and
Intercreditor Agreement, and (iii) after no Loans or Regular Way
Commitments are outstanding under the US Term Facility Agreement and
this Agreement, the portion of the Net Cash Proceeds of such Senior
Subordinated-Lien
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Indebtedness in excess of required prepayments under the US Term
Facility Agreement and Commitment reductions and Regular Way
Commitment reductions under this Agreement shall, except to the
extent a like amount of Net Cash Proceeds of Senior
Subordinated-Lien Indebtedness shall have been so applied prior to
the time at which all amounts outstanding under the US Term Facility
Agreement and this Agreement shall have been prepaid and the Regular
Way Commitments shall have been reduced to zero, be applied, within
180 days after the receipt by the Borrower of such Net Cash
Proceeds, solely (A) to prepay Loans under and as defined in the New
Facilities Credit Agreements (it being agreed that at the time of
any such prepayment of revolving loans the related commitments will
be reduced by the amount of such prepayment), (B) to repurchase,
repay or prepay Designated Debt or (C) to make reasonably
anticipated required contributions to Plans of the Borrower and the
Subsidiaries;
(t) Securitization Transactions of Foreign Subsidiaries (other
than those permitted by paragraphs (f), (g), (j), (l) and (r) of
this Section) in an aggregate amount not greater than $15,000,000
outstanding at any time; and"
SECTION 10. Amendments to Section 6.02 of the Credit Agreement.
(a) Section 6.02 of the Credit Agreement is amended by deleting from
the introductory clause thereof the phrase "(other than sales of
delinquent receivables and sales of receivables in the ordinary course of
business (other than Securitization Transactions and factoring
transactions) for the purpose of accelerating collection of such
receivables)" and replacing it with the phrase "(other than sales of
delinquent or doubtful receivables and other than any transaction excluded
from the definition of "Securitization Transaction" under the proviso
thereto)".
(b) Paragraph (f) of Section 6.02 of the Credit Agreement is hereby
amended to read as follows:
"(f)(i) Liens on assets of Foreign Subsidiaries (other than
the European JV and its subsidiaries and Luxembourg Finance)
securing Indebtedness incurred under Section 6.01(f), and (ii) in
connection with Securitization Transactions permitted under Section
6.01(f) or (t);"
(c) Section 6.02 of the Credit Agreement is amended by deleting the
word "and" at the end of clause (l), redesignating clause (m) as clause
(q) and inserting after clause (l) the following new clauses (m), (n), (o)
and (p):
"(m) Liens on assets constituting ABL Facilities Collateral,
US Facilities Pledged Collateral, Luxembourg Finance Pledged
Collateral and US Facilities Article 9 Collateral (other than any
such US Facilities Article 9 Collateral constituting Indenture
Properties or "manufacturing facilities", as defined in the Swiss
Franc Note Agreement) (each such term not defined in this Agreement
having the meaning assigned to it in the Guarantee and Collateral
Agreement), and on the Borrower's headquarters
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building in Akron, Ohio, created under any Senior Subordinated-Lien
Security Documents to secure any Senior Subordinated-Lien
Indebtedness incurred under Section 6.01(s); provided, that such
Liens shall be subordinate and junior to the Liens securing the
Obligations on the terms set forth in the Lien Subordination and
Intercreditor Agreement;
(n) Liens on assets constituting ABL Facilities Collateral
securing Indebtedness incurred under Section 6.01(m) to refinance
the Indebtedness under the ABL Facilities Agreement, but only if all
Indebtedness under the ABL Facilities Agreement shall have been
repaid and discharged in full and the Commitments under and as
defined in the ABL Facilities Agreement shall have been terminated
not later than the time at which such Liens are incurred;
(o) Liens on assets constituting European Facilities
Collateral and Luxembourg Finance Pledged Collateral (each such term
not defined in this Agreement having the meaning assigned to it in
the Guarantee and Collateral Agreement) securing Indebtedness
incurred under Section 6.01(m) to refinance the Indebtedness under
the European Facilities Agreement, but only if all Indebtedness
under the European Facilities Agreement shall have been repaid in
full and the Commitments under and as defined in the European
Facilities Agreement shall have been terminated not later than the
time at which such Liens are incurred;
(p) at the time of and after the initial incurrence, issuance
or sale of Senior Subordinated-Lien Indebtedness, Liens on assets
constituting ABL Facilities Collateral, US Facilities Pledged
Collateral, Luxembourg Finance Pledged Collateral and US Facilities
Article 9 Collateral (other than any such US Facilities Article 9
Collateral constituting Indenture Properties or "manufacturing
facilities", as defined in the Swiss Franc Note Agreement) (each
such term not defined in this Agreement having the meaning assigned
to it in the Guarantee and Collateral Agreement), and on the
Borrower's headquarters building in Akron, Ohio, to secure the
Guarantees by the Borrower and the Subsidiary Guarantors of the
Obligations under and as defined in the European Facilities
Agreement (or of Indebtedness incurred under Section 6.01(m) to
refinance the Indebtedness under the European Facilities Agreement,
but only if all Indebtedness under the European Facilities Agreement
shall have been repaid in full and the Commitments under and as
defined in the European Facilities Agreement shall have been
terminated not later than the time at which such Liens are
incurred); provided that such Liens shall be pari passu with the
Liens securing Senior Subordinated-Lien Indebtedness and subordinate
to the other Liens on such Collateral created by the Guarantee and
Collateral Agreement; and"
SECTION 11. Amendments to Section 6.05 of the Credit Agreement.
Section 6.05(e) of the Credit Agreement is amended to read as follows:
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"(e) on or after June 30, 2003, the acquisition of any Equity
Interest; provided that the aggregate consideration paid by the
Borrower and the Subsidiaries in all such acquisitions (including
Indebtedness assumed by the Borrower or any Subsidiary) shall not
exceed $100,000,000 plus the aggregate Net Cash Proceeds from
Prepayment Events or incurrences, issuances or sales of Senior
Subordinated-Lien Indebtedness after the date hereof that (i) shall
not have been required to be applied to reduce commitments, prepay
loans and/or cash collateralize reimbursement obligations in respect
of letters of credit under any of the New Facilities Credit
Agreements, and (ii) shall not have been used (and shall not be
required to be used) (A) to make Capital Expenditures that would
otherwise have been prohibited by Section 6.08 or (B) to repurchase,
repay or prepay Designated Debt;"
SECTION 12. Amendments to Section 6.07 of the Credit Agreement.
Paragraph (b) of Section 6.07 of the Credit Agreement is amended by deleting the
word "and" at the end of clause (iii), replacing the period at the end of clause
(iv) with ";" and inserting after clause (iv) the following new clauses (v) and
(vi):
"(v) if the Loans under and as defined in the US Term Facility
Agreement shall have been repaid in full and no Event of Default
shall exist, repurchases, repayments or prepayments of Designated
Debt in an aggregate amount not greater than the portion of the
aggregate Net Cash Proceeds from the issuance and sale of Senior
Subordinated-Lien Indebtedness not required to be applied to reduce
commitments, prepay loans and/or cash collateralize reimbursement
obligations in respect of letters of credit under this Agreement or
the US Term Facility Agreement, but only to the extent that such
portion of such Net Cash Proceeds shall not have been used (A) to
make Capital Expenditures that would have been prohibited by Section
6.08 but for the receipt of such Net Cash Proceeds or (B) to acquire
Equity Interests pursuant to Section 6.05(e); and
(vi) if no Event of Default shall exist, repurchases,
repayments or prepayments of Designated Debt in an aggregate amount
not greater than the portion of the aggregate Net Cash Proceeds of
securities issued and sold pursuant to Section 6.01(q) not required
to be applied to prepay loans under the US Term Facility Agreement,
but only to the extent that such portion of such Net Cash Proceeds
shall not have been used (A) to make Capital Expenditures that would
have been prohibited by Section 6.08 but for the receipt of such Net
Cash Proceeds or (B) to acquire Equity Interests pursuant to Section
6.05(e)."
SECTION 13. Amendments to Section 6.08 of the Credit Agreement.
Section 6.08 of the Credit Agreement is amended (a) by inserting after the words
"Prepayment Events" the words "or incurrences, issuances or sales of Senior
Subordinated-Lien Indebtedness", (b) by inserting after the words "prepay loans"
the
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words "or cash collateralize letters of credit", (c) by inserting "(A)" after
the words "and shall not have been used" in the parenthetical therein and (d) by
inserting at the end of the parenthetical therein the words "or (B) to
repurchase, repay or prepay Designated Debt".
SECTION 14. Amendment to Section 6.09 of the Credit Agreement.
Section 6.09 of the Credit Agreement is hereby amended by inserting immediately
following the words "2.25 to 1.00" the words "or, at any time after the Borrower
shall have received gross cash proceeds of at least $500,000,000 from issuances
and sales after the First Amendment Date of Senior Subordinated-Lien
Indebtedness, 2.00 to 1.00".
SECTION 15. Amendment to Section 9.04(b) of the Credit Agreement.
Section 9.04(b) of the Credit Agreement is hereby amended by (a) deleting the
word "and" at the end of clause (i)(A) thereof, (b) replacing the period at the
end of clause (i)(B) thereof with "; and" and (c) inserting after such clause
(i)(B) the following new clause (i)(C):
"(C) in the case of any assignment of a Commitment or any
interests in a Letter of Credit or LC Disbursement, a Principal
Issuing Bank, provided that no consent of a Principal Issuing Bank
shall be required for an assignment to an assignee that is a Federal
Reserve Bank."
SECTION 16. Amendments to the Guarantee and Collateral Agreement;
Security Documents; Lien Subordination and Intercreditor Agreement. (a) The
undersigned Lenders authorize the Collateral Agent to execute and deliver an
instrument or instruments amending the Guarantee and Collateral Agreement (and,
in the case of clauses (i), (ii) and (vi) below, the other Security Documents)
as follows:
(i) to provide that all ABL Facilities Obligations will be
secured by a second Lien, junior to the Lien securing the US Term
Facility Obligations, the US Revolving Facility Obligations, the US
Miscellaneous Obligations and the Collateral Agent Obligations, by
all the US Facilities Pledged Collateral and the US Facilities
Article 9 Collateral (other than any such US Facilities Article 9
Collateral constituting Indenture Properties or "manufacturing
facilities", as defined in the Swiss Franc Note Agreement, to the
extent the securing of the ABL Facilities Obligations with such
Collateral would require that Indebtedness under the Indentures be
ratably secured), and by the Borrower's headquarters building in
Akron, Ohio;
(ii) to provide that, at such time as any Senior
Subordinated-Lien Indebtedness shall be issued, the Guarantees by
the Borrower and the Subsidiary Guarantors of the Revolving
Obligations (and, if the Borrower and the Collateral Agent shall at
any time hereafter so agree, the Term Obligations) under and as
defined in the European Facilities Agreement will be secured,
equally and ratably with the Senior Subordinated-Lien Indebtedness
(and subordinate to the other Liens on such Collateral created by
the Guarantee and Collateral Agreement), by the ABL Facilities
Collateral, the US Facilities Pledged Collateral and the US
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Facilities Article 9 Collateral (other than any such US Facilities
Article 9 Collateral constituting Indenture Properties or
"manufacturing facilities", as defined in the Swiss Franc Note
Agreement), and by the Borrower's headquarters building in Akron,
Ohio;
(iii) to provide that amounts received by the holders of
Obligations secured by Junior Liens as a result of the subordination
to such Junior Liens of the Liens securing any Senior
Subordinated-Lien Indebtedness will be treated in the same manner
under the subordination provisions of the Guarantee and Collateral
Agreement as amounts received from the Borrower;
(iv) to modify Section 11.03(b) to confirm that the Junior
Lien on the ABL Facilities Collateral will be senior to the Lien on
such Collateral securing any Senior Subordinated-Lien Indebtedness
notwithstanding the use of any proceeds of any Senior
Subordinated-Lien Indebtedness to repay amounts outstanding under
the ABL Facilities;
(v) to modify Section 11.04 to provide that the Junior Lien on
the Intellectual Property consisting of Trademarks securing the ABL
Facilities Obligations will be senior to the Lien on such
Intellectual Property securing any Senior Subordinated-Lien
Indebtedness;
(vi) to effect such other changes as the Collateral Agent
shall deem appropriate in connection with the issuance of any Senior
Subordinated-Lien Indebtedness, the creation of the Liens securing
such Indebtedness, the subordination of such Liens to the Liens
created by the Guarantee and Collateral Agreement and the
implementation of the matters set forth in this Section 16; and
(vii) to modify Section 13.13 to provide for the release of
the security interests in up to 14% of the stock of C A Goodyear de
Venezuela held by the Borrower in connection with the sale of such
stock by the Borrower to Goodyear do Brasil Productos de Borraca
Ltda (Brasil) in a transaction permitted by the Credit Agreements
(as defined therein) for consideration consisting of up to
$10,000,000 of cash.
(b) The undersigned Lenders further authorize and direct the
Collateral Agent to execute and deliver such amendments to the Security
Documents as may in its judgment be appropriate for the following
purposes:
(i) to provide that the Liens securing the ABL
Facilities Obligations will, insofar as they are applicable to cash
deposited to collateralize Letter of Credit reimbursement
obligations pursuant to Section 2.04(b) of the Credit Agreement, be
subordinate to the Liens securing such Letter of Credit
reimbursement obligations;
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(ii) to provide that all ABL Facilities Obligations will
be secured by a second Lien on all real property subject to
Liens securing the US Term Facility Obligations, the US
Revolving Facility Obligations, the US Miscellaneous
Obligations or the Collateral Agent Obligations to the extent
the securing of the ABL Facilities Obligations with such
Collateral would not require that Indebtedness under the
Indentures be ratably secured; and
(iii) to confirm that the US Term Facility Obligations,
the US Revolving Facility Obligations, the ABL Facilities
Obligations and the US Miscellaneous Obligations are and will
be secured by not more than 65% of the issued and outstanding
voting Equity Interests of Luxembourg Finance.
(c) The undersigned Lenders further authorize and direct the
Collateral Agent, on or after the Effective Date, to execute and deliver
the Lien Subordination and Intercreditor Agreement. Each Lender party to
the Credit Agreement from time to time will be deemed to have agreed to be
bound by the provisions of the Lien Subordination and Intercreditor
Agreement to the same extent as if it had executed such Agreement as a
party thereto.
SECTION 17. Notices. The address for notices to the Administrative
Agent under each Credit Document is hereby amended to read as follows:
"if to the Administrative Agent, to JPMorgan Chase Bank, Loan & Agency
Services Group, 1111 Fannin, 10th Floor, Houston, Texas 77002, Attention
of Debbie Meche and Cliff Trapani (Telecopy No. (713) 750-2938), with a
copy to JPMorgan Chase Bank, 270 Park Avenue, New York, NY 10017,
Attention of Robert Kellas (Telecopy No. (212) 270-3089);"
SECTION 18. Representations, Warranties and Agreements. The Borrower
hereby represents and warrants to the Administrative Agent and the Lenders that:
(a) On the date hereof and at the time the amendments provided
for herein become effective under Section 20, no Default shall have
occurred and be continuing.
(b) The execution, delivery and performance by the Borrower of
this Amendment and the performance by the Borrower of the Credit Agreement
as amended hereby have been duly authorized by all necessary corporate and
other action and, except to the extent that no Material Adverse Change
would be materially likely to result, do not and will not require any
registration with, consent or approval of, notice to or action by, any
Person (including any Governmental Authority) in order to be effective and
enforceable.
(c) This Amendment and the Credit Agreement as amended hereby
constitute the legal, valid and binding obligations of the Borrower,
enforceable
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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.
(d) All representations and warranties of the Borrower set
forth herein, and the representations and warranties of the Borrower set
forth in the Credit Agreement, are true and correct in all material
respects on and as of the date hereof, and will be true and correct on the
date hereof and at the time the amendments provided for herein become
effective under Section 20, except to the extent such representations and
warranties relate to an earlier date.
SECTION 19. Amendment Fee. In consideration of the agreements
contained in this Amendment, the Borrower agrees to pay to the Administrative
Agent, for the account of each Lender that delivers an executed counterpart of
this Amendment prior to noon, New York City time, on February 17, 2004, an
amendment fee (the "Amendment Fee") to be agreed upon between the Borrower and
J.P. Morgan Securities Inc., payable on the Effective Date (as defined below).
SECTION 20. Conditions Precedent to Effectiveness. This Amendment
shall become effective upon the satisfaction of the condition set forth in
paragraph (a) below; provided that the amendments set forth in Sections 2
through 15, the authorization set forth in Section 16 and the agreement set
forth in Section 19 shall become effective only upon the satisfaction, on a date
(the "Effective Date") on or prior to February 28, 2004, of each of the
conditions set forth below (and failing such satisfaction by such date, such
amendments, authorization and agreements shall cease to be of any further force
or effect):
(a) The Administrative Agent shall have received counterparts
hereof duly executed and delivered by the Borrower and the Majority
Lenders.
(b) The Administrative Agent shall have received such evidence
as it shall reasonably have requested as to the corporate power and
authority of the Borrower to enter into this Amendment and to perform its
obligations hereunder and under the Credit Agreement as amended hereby.
(c) The Administrative Agent shall have received a certificate
of an officer of the Borrower to the effect that the representations and
warranties set forth in Section 18 are true and correct in all material
respects on and as of the Effective Date.
(d) The Administrative Agent shall have received the Amendment
Fees payable by the Borrower pursuant to Section 19 and all other fees
payable to the Arrangers and the Administrative Agent.
(e) The Security Documents shall have been amended as
necessary to provide that the Liens securing the ABL Facilities
Obligations will, insofar as they are applicable to cash deposited to
collateralize Letter of Credit reimbursement
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obligations pursuant to Section 2.04(b) of the Credit Agreement, be
subordinate to the Liens securing such Letter of Credit reimbursement
obligations.
(f) The US Term Facility Agreement shall have been amended to
require that (i) if proceeds from borrowings under the ABL Facilities
Agreement pursuant to commitments becoming effective substantially
concurrently with the Effective Date shall exceed $300,000,000, the
Borrower shall prepay loans under the US Term Facility Agreement in an
aggregate amount equal to 100% of such proceeds in excess of $300,000,000,
net of the aggregate fees and out-of-pocket expenses paid by the Borrower
in connection with the borrowings under the ABL Facilities and the related
bank amendments and (ii) the Borrower shall apply 50% of the Net Cash
Proceeds of incurrences or issuances of Senior Subordinated-Lien
Indebtedness to prepay loans under the US Term Facility Agreement.
(g) The US Term Facility Agreement, the ABL Facilities
Agreement and the European Facilities Agreement shall have been or shall
simultaneously be amended in a manner reasonably satisfactory to the
Administrative Agent to permit the incurrence, issuance and sale of Senior
Subordinated-Lien Indebtedness and the other transactions contemplated
hereby, in each case in a manner substantially corresponding to the
amendments to the Credit Agreement effected hereby, to the extent
applicable.
The Administrative Agent shall notify the Lenders when it determines
that the foregoing conditions have been satisfied and that this Amendment has
become fully effective, and such notice shall be conclusive and binding upon the
Lenders.
SECTION 21. No Other Amendments or Waivers; Confirmation. Except as
expressly amended hereby, the provisions of the Credit 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 Credit Agreement in similar or different circumstances. This Amendment
shall be a Credit Document for all purposes of the Credit Agreement.
SECTION 22. Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Amendment, including the reasonable fees, charges and disbursements of
Cravath, Swaine & Moore LLP, counsel for the Administrative Agent.
SECTION 23. Indemnity. It is agreed that for all purposes of Section
9.03(b) of the Credit Agreement, any offering, incurrence, issuance or sale of
Senior Subordinated-Lien Indebtedness and any other securities issued and sold
pursuant to Section 6.01(q) of the Credit Agreement, the execution, delivery and
performance of this Amendment and of the Lien Subordination and Intercreditor
Agreement, the amendment of the Guarantee and Collateral Agreement as
contemplated by Section 16 and the other transactions contemplated hereby shall
all be deemed to be transactions contemplated by the Credit Agreement.
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SECTION 24. 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.
SECTION 25. Counterparts. This Amendment may be executed by one or
more of the parties hereto 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
signature pages hereof.
SECTION 26. Headings. The section headings used herein are for
convenience of reference only, are not part of this Amendment and are not to
affect the construction of, or to be taken into consideration in interpreting
this Amendment.
SECTION 27. Amendment to Article VIII of the Credit Agreement.
Article VIII of the Credit Agreement is hereby amended by adding the following
at the end thereof:
"Without prejudice to the provisions of this Article VIII,
each Lender hereby irrevocably appoints and authorizes the Collateral
Agent (and any successor acting as Collateral Agent) to act as the person
holding the power of attorney (in such capacity, the "fonde de pouvoir")
of the Lenders as contemplated under Article 2692 of the Civil Code of
Quebec, and to enter into, to take and to hold on their behalf, and for
their benefit, any hypothec, and to exercise such powers and duties which
are conferred upon the fonde de pouvoir under any hypothec. Moreover,
without prejudice to such appointment and authorization to act as the
person holding the power of attorney as aforesaid, each Lender hereby
irrevocably appoints and authorizes the Collateral Agent (and any
successor acting as Collateral Agent) (in such capacity, the "Custodian")
to act as agent and custodian for and on behalf of the Lenders to hold and
to be the sole registered holder of any debenture which may be issued
under any hypothec, the whole notwithstanding Section 32 of the Act
respecting the special powers of legal persons (Quebec) or any other
applicable law. In this respect, (i) the Custodian shall keep a record
indicating the names and addresses of, and the pro rata portion of the
obligations and indebtedness secured by any pledge of any such debenture
and owing to each Lender, and (ii) each Lender will be entitled to the
benefits of any charged property covered by any hypothec and will
participate in the proceeds of realization of any such charged property,
the whole in accordance with the terms hereof.
"Each of the fonde de pouvoir and the Custodian shall (a) have
the sole and exclusive right and authority to exercise, except as may be
otherwise specifically restricted by the terms hereof, all
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rights and remedies given to fonde de pouvoir and the Custodian (as
applicable) with respect to the charged property under any hypothec, any
debenture or pledge thereof relating to any hypothec, applicable laws or
otherwise, (b) benefit from and be subject to all provisions hereof with
respect to the Collateral Agent mutatis mutandis, including, without
limitation, all such provisions with respect to the liability or
responsibility to and indemnification by the Lenders, and (c) be entitled
to delegate from time to time any of its powers or duties under any
hypothec, any debenture or pledge thereof relating to any hypothec,
applicable laws or otherwise and on such terms and conditions as it may
determine from time to time. Any person who becomes a Lender shall be
deemed to have consented to and confirmed: (y) the fonde de pouvoir as the
person holding the power of attorney as aforesaid and to have ratified, as
of the date it becomes a Lender, all actions taken by the fonde de pouvoir
in such capacity, (z) the Custodian as the agent and custodian as
aforesaid and to have ratified, as of the date it becomes a Lender, all
actions taken by the Custodian in such capacity."
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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
/s/ D. R. Wells
-----------------------------------
Name: D. R. Wells
Title: Vice President
JPMORGAN CHASE BANK, individually and as
Administrative Agent and Collateral Agent,
By
/s/ B. Joseph Lillis
-----------------------------------
Name: B. Joseph Lillis
Title: Managing Director
-21-
[Remaining Signature Pages Intentionally Omitted]
ANNEX A
Senior Subordinated-Lien Indebtedness
- Capitalized terms used and not defined herein shall have
the meanings given to them in the First Amendment, or,
if not defined therein, in the Credit Agreement or, if
not defined therein, in the Guarantee and Collateral
Agreement, each as amended by the First Amendment or
pursuant thereto.
- All Senior Subordinated-Lien Indebtedness and the
related Liens shall satisfy the requirements set forth
in the definition of Senior Subordinated-Lien
Indebtedness and in Sections 6.01(s) and 6.02(m).
- Prior to the date (the "US Facilities Termination Date")
on which all the loans under the US Term Facility
Agreement and the US Revolving Facility Agreement have
been repaid in full and the remaining commitments under
the US Revolving Facility Agreement, if any, are
available only for the issuance of cash collateralized
letters of credit, the documentation establishing or
evidencing any Senior Subordinated-Lien Indebtedness
("SSLI Documentation") shall contain no maintenance
financial covenants (i.e., covenants requiring the
maintenance of any balance sheet, income statement or
other financial level or ratio). After the US Facilities
Termination Date, the SSLI Documentation shall contain
no maintenance financial covenants that are not
contained in the Credit Agreement, and the financial
levels or ratios required to be maintained by any such
covenants shall be no more restrictive than those
required to be maintained by the corresponding covenants
of the Credit Agreement (it being understood that
additional maintenance financial covenants may be
included in any SSLI Documentation and, if they are,
they shall automatically be included in this Agreement).
- The SSLI Documentation shall permit (specifically, and
not through a basket that could be exhausted by other
financings) the refinancing of all Indebtedness under
the New Facilities Credit Agreements (or any refinancing
Indebtedness in respect thereof) with new Indebtedness
having a maturity no sooner than, a weighted average
life no shorter than, and an aggregate principal amount
or accreted value no greater than the fully drawn amount
(plus fees and expenses, including any premium and
defeasance costs of refinancing) of the refinanced
indebtedness or commitments thereunder and secured on
the same basis as the Indebtedness refinanced.
- The SSLI Documentation shall not restrict (except for
restrictions that a Financial Officer of the Borrower
shall have represented in a
certificate to the Administrative Agent (which shall be
deemed to be a Credit Document) will not materially
interfere with the Borrower's ability to effect) the
securing of Indebtedness under the New Facilities Credit
Agreements or any refinancing Indebtedness in respect
thereof or the cash collateralization of any letter of
credit exposure thereunder (but may require that if
Indebtedness under any New Facilities Credit Agreement
or related refinancing Indebtedness is secured by assets
not securing the Indebtedness under any of the New
Facilities Credit Agreements on the First Amendment
Date, a junior lien on such assets, subordinated under
the Lien Subordination and Intercreditor Agreement, (or
in the case of any lien granted by any US Facilities
Grantor or ABL Facilities Grantor (as defined in the
Guarantee and Collateral Agreement) to secure
indebtedness under the European Facility Agreement, a
ratable or junior lien on such assets) must be granted
to secure the Senior Subordinated-Lien Indebtedness).
- The SSLI Documentation shall not restrict (except for
restrictions a Financial Officer of the Borrower shall
have represented in a certificate to the Administrative
Agent (which shall be deemed to be a Credit Document)
will not materially interfere with the Borrower's
ability to effect) the use of proceeds from any sale,
transfer or other disposition of assets owned directly
by (a) the Borrower or any US Facilities Grantor or ABL
Facilities Grantor (as defined in the Guarantee and
Collateral Agreement) to repay or prepay Indebtedness
under the New Facilities Credit Agreements (other than
the European Facilities Agreement) or refinancing
Indebtedness in respect thereof or, until the
commitments under the US Revolving Facility Agreement
and the ABL Facilities Agreement have been terminated
and no letter of credit remains outstanding under either
such agreement, to cash collateralize any letter of
credit exposure thereunder, or (b) the European JV or
any of its subsidiaries to repay or prepay Indebtedness
under the European Facilities Agreement or refinancing
Indebtedness in respect thereof.
- Prior to the US Facilities Termination Date, no SSLI
Documentation shall contain any provision under which a
default or event of default (however denominated) or
requirement to make or offer to make a prepayment or
redemption under any other Indebtedness (the "Other
Debt") would constitute a default or event of default or
result in a requirement to make or offer to make a
prepayment or redemption under such SSLI Documentation,
unless such default or event of default under such Other
Debt is a payment default or the Other Debt is as a
result thereof accelerated.
2