Exhibit 4.1
EXECUTION COPY
FIRST AMENDMENT dated as of December 22, 2005 (this "Amendment"), to
the AMENDED AND RESTATED TERM LOAN AND REVOLVING CREDIT AGREEMENT dated as of
April 8, 2005 (the "Credit Agreement"), among THE GOODYEAR TIRE & RUBBER
COMPANY, an Ohio corporation ("Goodyear"); GOODYEAR DUNLOP TIRES EUROPE B.V., a
corporation organized under the laws of the Netherlands (the "European J.V.");
GOODYEAR DUNLOP TIRES GERMANY GMBH, a company organized under the laws of the
Federal Republic of Germany; GOODYEAR GMBH & CO. KG, a partnership organized
under the laws of the Federal Republic of Germany; DUNLOP GMBH & CO. KG, a
partnership organized under the laws of the Federal Republic of Germany;
GOODYEAR LUXEMBOURG TIRES S.A., a societe anonyme organized under the laws of
Luxembourg; the LENDERS party thereto (together with their successors and
permitted assigns thereunder, the "Lenders"); J.P. MORGAN EUROPE LIMITED, as
Administrative Agent (in such capacity, the "Administrative Agent"); and
JPMORGAN CHASE BANK, N.A., as Collateral Agent.
WHEREAS, on the terms and conditions set forth in the Credit
Agreement, the Lenders have extended and agreed to extend credit to the
Borrowers (such term and each other capitalized term used and not otherwise
defined herein having the meaning assigned to it in the Credit Agreement); and
WHEREAS, Goodyear and the Borrowers have requested, and the Majority
Lenders are willing to agree, that certain provisions of the Credit Agreement be
amended on the terms and subject to the conditions set forth herein to permit
the conversion of GD Handelssysteme GmbH & Co. KG, a partnership organized under
the laws of the Federal Republic of Germany and a Grantor and a Subsidiary
Guarantor under the Credit Agreement ("GDHS"), into a limited liability company
(a Gesellschaft mit beschrankter Haftung, or "GmbH"), as described in a letter
dated the date hereof from Goodyear (the "Amendment Request");
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. Amendment of Section 6.14 of the Credit Agreement. Section
6.14 of the Credit Agreement is hereby amended by inserting at the end thereof
the following new paragraph (c):
"(c) Notwithstanding the foregoing provisions of this Section 6.14, GD
Handelssysteme GmbH & Co. KG ("GDHS") may be converted into a GmbH that
immediately after such conversion will hold substantially the same assets as
were held by GDHS (the GmbH resulting from such conversion being called the
"Resulting GmbH").
Following such conversion, the Resulting GmbH will not (i) engage in any
business other than substantially the business in which GDHS shall have been
engaged on December 1, 2005 or (ii) become a partner of any Subsidiary that is
organized as a KG, and none of Goodyear, the European J.V. or the other
Borrowers shall, or shall permit any Subsidiary to, (i) merge, consolidate or
amalgamate with the Resulting GmbH or (ii) except in the ordinary course of
business and consistent with past practice, make any Investment in or transfer
any material assets to the Resulting GmbH. To the extent it shall not remain
liable therefor by operation of law, the Resulting GmbH will promptly assume all
the obligations of GDHS under the Guarantee and Collateral Agreement and the
other Security Documents. Goodyear and the Borrowers shall, and shall cause the
Resulting GmbH and all direct owners of the capital stock of the Resulting GmbH
to, promptly take all such actions and execute all such documents or instruments
(including documents or instruments reflecting the conversion of GDHS to a GmbH)
as shall be necessary or reasonably requested by the Collateral Agent to create
or maintain in favor of the Collateral Agent perfected Liens on the capital
stock and assets of the Resulting GmbH consistent in all material respects with
the Liens in favor of the Collateral Agent on the capital stock and assets of
GDHS."
SECTION 2. Representations and Warranties. Each of Goodyear and the
European J.V. represents and warrants to the Administrative Agent and the
Lenders that:
(a) On the date hereof and at the time the amendment provided for
herein becomes effective, no Default has occurred and is continuing or will
have occurred and be continuing.
(b) All representations and warranties of Goodyear and the
European J.V. 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, except to the extent such representations and
warranties relate to an earlier date (in which case they were true and
correct as of such earlier date).
(c) The financial and other information regarding GDHS furnished
to the Administrative Agent in connection with this Amendment is true and
correct in all material respects.
SECTION 3. Conditions Precedent to Effectiveness. This Amendment shall
become effective when the Administrative Agent shall have received counterparts
hereof duly executed and delivered by Goodyear, each Borrower and the Majority
Lenders.
SECTION 4. 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
Goodyear or the Borrowers 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 5. Expenses. Goodyear 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 and Allen & Overy LLP, counsel for the
Administrative Agent.
SECTION 6. 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 7. 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 8. 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.
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/ Darren Wells
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Name: Darren Wells
Title: Senior Vice President Business
Development and Treasurer
GOODYEAR DUNLOP TIRES EUROPE B.V.,
By: /s/ R. M. Archer
------------------------------------
Name: R. M. Archer
Title: VP Finance and CFO
GOODYEAR DUNLOP TIRES GERMANY GMBH,
By: /s/ Thomas Korner
------------------------------------
Name: Thomas Korner
Title:
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GOODYEAR GMBH & CO. KG,
By: /s/ Thomas Korner
------------------------------------
Name: Thomas Korner
Title:
---------------------------------
DUNLOP GMBH & CO. KG,
By: /s/ Thomas Korner
------------------------------------
Name: Thomas Korner
Title:
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GOODYEAR LUXEMBOURG TIRES SA,
By: /s/ H. Lange
------------------------------------
Name: H. Lange
Title: Finance Director
By: /s/ L. Reiles
------------------------------------
Name: L. Reiles
Title: Authorized Signer
JPMORGAN CHASE BANK, N.A.,
individually and as Collateral Agent,
By: /s/ Bernard J. Lillis
------------------------------------
Name: Bernard J. Lillis
Title: Managing Director
The undersigned institutions hereby appove and become a party to the First
Amendment dated as of December 22, 2005, to the Amended and Restated Term Loan
and Revolving Credit Agreement dated as of April 8, 2005, of The Goodyear Tire &
Rubber Company; Goodyear Dunlop Tires Europe B.V., Goodyear Dunlop Tires Germany
GmbH, Goodyear GmbH & CO KG, Dunlop GmbH & CO KG and Goodyear Luxembourg Tires
SA:
BANK AUSTRIA CREDITANSTALT AG,
By: /s/ Ingo Bleier
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Name: Ingo Bleier
Title: Deputy Managing Director
For any institution requiring a second
signature line:
By: /s/ Hilke Schubert
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Name: Hilke Schubert
Title: Senior Manager
BNP PARIBAS,
By: /s/ Aida M. Ralla
------------------------------------
Name: Aida M. Ralla
Title: Managing Director
For any institution requiring a second
signature line:
By: /s/ Walter Kaplan
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Name: Walter Kaplan
Title: Managing Director
CALYON NEW YORK BRANCH,
By: /s/ Lee E. Greve
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Name: Lee E. Greve
Title: Managing Director Deputy
For any institution requiring a second
signature line:
By: /s/ Gerard M. Russell
------------------------------------
Name: Gerard M. Russell
Title: Director
CELF LOAN PARTNERS BV,
CELF LOAN PARTNERS II PLC
By: /s/ Colin Atkins
------------------------------------
Name: Colin Atkins
Title: Director
CITIBANK, N.A.,
By: /s/ Melinda Harris
------------------------------------
Name: Melinda Harris
Title: RM
CLARENVILLE CDO, SA,
By: Pacific Investment Management
Company LLC, as its Investment
Advisor
By: /s/ Mohan V. Phansalkar
------------------------------------
Name: Mohan V. Phansalkar
Title: Managing Director
COMMERZBANK ARTIENGESELLSCHAFT,
By: /s/ Jenetzky
------------------------------------
Name: Jenetzky
Title: SVP
For any institution requiring a second
signature line:
By: /s/ Keller
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Name: Keller
Title: SVP
CREDIT SUISSE, CAYMAN ISLANDS
BRANCH (F/K/A CREDIT SUISSE
FIRST BOSTON, ACTING THROUGH
ITS CAYMAN ISLANDS BRANCH),
By: /s/ Bill O'Daly
------------------------------------
Name: Bill O'Daly
Title: Director
For any institution requiring a second
signature line:
By: /s/ Mikhail Faybusovich
------------------------------------
Name: Mikhail Faybusovich
Title: Associate
CREDIT SUISSE LONDON BRANCH,
By: /s/ Kay Bailer
------------------------------------
Name:
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Title:
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For any institution requiring a second
signature line:
By: /s/ Emma Balaam
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Name:
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Title:
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DEUTSCHE BANK AG, NY BRANCH,
By: /s/ Evelyn Thierry
------------------------------------
Name: Evelyn Thierry
Title: Vice President
For any institution requiring a second
signature line:
By: /s/ Susan LeFevre
------------------------------------
Name: Susan LeFevre
Title: Director
DIVERSIFIED EUROPEAN CREDIT S.A.
EUROPEAN CREDIT (LUXEMBOURG) S.A.
LEVERAGED LOANS EUROPE PLC,
By: /s/ illegible
------------------------------------
Name:
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Title:
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For any institution requiring a second
signature line:
By: /s/ illegible
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Name:
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Title:
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GE CORPORATE BANKING EUROPE SAS,
By: /s/ Harold Huebl
------------------------------------
Name: Harold Huebl
Title: Director
Global Enhanced Loan Fund, S.A.,
By: Pacific Investment Management
Company LLC, as its Investment
Advisor
By: /s/ Mohan V. Phansalkar
------------------------------------
Name: Mohan V. Phansalkar
Title: Managing Director
GOLDMAN SACHS CREDIT PARTNERS, LP,
By: /s/ Stephen B. King
------------------------------------
Name: Stephen B. King
Title: Authorized Signatory
GSC EUROPEAN CDO II S.A.,
GSC EUROPEAN CDO I S.A.
By: /s/ Jan Willem van Koeverden Brouwer
------------------------------------
Name: Jan Willem van Koeverden Brouwer
Title: Director
For any institution requiring a second
signature line:
By: /s/ Robert Jan Schol
------------------------------------
Name: Robert Jan Schol
Title: Director
HIGHLAND CAPITAL MANAGEMENT EUROPE, LTD,
By: /s/ Stephen Williams
------------------------------------
Name: Stephen Williams
Title: Director
INTERCONTINENTAL CDO S.A.,
By: Pacific Investment Management
Company LLC, as its Investment
Advisor
By: /s/ Mohan V. Phansalkar
------------------------------------
Name: Mohan V. Phansalkar
Title: Managing Director
J.P. MORGAN SECURITIES LTD,
By: /s/Carlos Vazquez
------------------------------------
Name: Carlos Vazquez
Title: VP
Alcentra Ltd., on behalf of JUBILEE CDO
IV B.V.,
By: /s/ James Alcar
------------------------------------
Name: James Alcar
Title: Executive Director
MULTINATIONALS KBC BANK NV
By: /s/ Helinda Wouters
------------------------------------
Name: Helinda Wouters
Title: Global Relationship Manager
For any institution requiring a second
signature line:
By: /s/ Adriaan Loeff
------------------------------------
Name: Adriaan Loeff
Title: General Manager
Henderson Global Investors Ltd. for and
on behalf of MELCHIOR CDO I S.A.,
By: /s/ David Milward
------------------------------------
Name: David Milward
Title:
NATEXIS BANQUES POPULAIRES
By: /s/ Patrick Senderens
------------------------------------
Name: Patrick Senderens
Title: Global Relationship Manager
For any institution requiring a second
signature line:
By: /s/ Thibank Huillet
------------------------------------
Name: Thibank Huillet
Title: Relationship Manager
N M ROTHSCHILD & SONS LIMITED
By: /s/ Craig Thomson
------------------------------------
Name: Craig Thomson
Title: Assistant Director
For any institution requiring a second
signature line:
By: /s/ Adam Greenbury
------------------------------------
Name: Adam Greenbury
Title: Director
THE NORTHERN TRUST COMPANY,
By: /s/ Preeti Sullivan
------------------------------------
Name: Preeti Sullivan
Title: Vice President
PETRUSSE EUROPEAN CLO S.A.,
By: INVESCO SENIOR SECURED MANAGEMENT
INC. AS COLLATERAL MANAGER
By: /s/ Scott Baskind
------------------------------------
Name: Scott Baskind
Title: Authorized Signatory
PIONEER FLOATING RATE TRUST,
By: /s/ Joe Dougherty
------------------------------------
Name: Joe Dougherty
Title: Portfolio Manager
PROSPERO CLO I B.V.,
By: /s/ Adam Greenbury
------------------------------------
Name: Adam Greenbury
Title: Attorney-in-fact
RMF EURO CDO II S.A.,
By: /s/ Jan Willem van Koeverden Brouwer
------------------------------------
Name: Jan Willem van Koeverden Brouwer
Title: Director
RTIF EURO CDO III PLC,
By: /s/ M. Notari
------------------------------------
Name: M. Notari
Title:
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For any institution requiring a second
signature line:
By: /s/ F. Kotus
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Name: F. Kotus
Title:
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