EXHIBIT 4.4
FIRST AMENDMENT dated as of February 19, 2004
(this "Amendment"), to the $645,454,545 Term Loan
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 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
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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)".
The following new definitions are hereby inserted in their
appropriate alphabetical positions:
"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.
"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.
"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.
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"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.
"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 2.07 of the Credit Agreement.
Section 2.07 of the Credit Agreement is hereby amended by redesignating
paragraphs (d) and (e) thereof as paragraphs (g) and (h), making corresponding
changes to all references to such paragraphs adding the following new paragraphs
(d), (e) and (f):
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"(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-Lien Indebtedness, the Borrower shall, substantially
concurrently with the incurrence, issuance or sale of the Senior
Subordinated-Lien Indebtedness, prepay Loans in an aggregate amount equal
to 50% of such Net Cash Proceeds.
(e) If proceeds from borrowings under the ABL Facilities Agreement
pursuant to commitments becoming effective substantially concurrently with
the First Amendment Date shall exceed $300,000,000, the Borrower shall
prepay Loans 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.
(f) 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, 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, 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."
SECTION 5. 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 6. 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; provided, that the amount of
Indebtedness permitted by this paragraph or any other paragraph of this
Section to exist under this Agreement and the US Revolving Facility
Agreement shall be reduced (i) in the case of this Agreement, by the
aggregate amount of all prepayments of the loans outstanding hereunder and
(ii) in the case of the US Revolving Facility Agreement, by the aggregate
amount of all permanent reductions of the commitments thereunder (it being
agreed, however, that up to $250,000,000 of Indebtedness under the US
Revolving Facility Agreement in the form of cash-collateralized letters of
credit will in any event be permitted)."
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(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 Revolving Facility Agreement) or to provide cash
collateral for reimbursement obligations in respect of letters of
credit (including the Letters of Credit under and as defined in the
US Revolving Facility Agreement)) (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 hereunder required in connection with the issuance
of such Senior Subordinated-Lien Indebtedness and (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;
(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 7. 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
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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 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;
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(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 8. Amendments to Section 6.05 of the Credit Agreement.
Section 6.05(e) of the Credit Agreement is amended to read as follows:
"(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 9. 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 clause (v):
(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
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hereunder, 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 10. 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 "(A)" after the words "and
shall not have been used" in the parenthetical therein and (c) by inserting at
the end of the parenthetical therein the words "or (B) to repurchase, repay or
prepay Designated Debt".
SECTION 11. 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 12. 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 13. 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
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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 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 12; 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:
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(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;
(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 14. 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 16, 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 against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other laws affecting creditors'
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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 16, except to the extent such representations and
warranties relate to an earlier date.
SECTION 15. 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 16. 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 12, the authorization set forth in Section 13 and the agreement set
forth in Section 15 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 14 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 14 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 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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(f) The US Revolving 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 17. 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 18. 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 19. 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.
SECTION 20. 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 21. 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 22. 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.
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SECTION 23. 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 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
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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
[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