EXHIBIT 4.2
EXECUTION COPY
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AMENDED AND RESTATED SECOND LIEN CREDIT AGREEMENT
dated as of April 20, 2007
among
THE GOODYEAR TIRE & RUBBER COMPANY,
as Borrower,
The LENDERS Party Hereto,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Agent
and
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
J.P. MORGAN SECURITIES INC., DEUTSCHE BANK SECURITIES INC.,
as Joint Lead Arranger as Joint Lead Arranger
and Joint Bookrunner and Joint Bookrunner
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[CS&M 6701-315]
IMPORTANT NOTE:
EACH PARTY HERETO MUST EXECUTE THIS CREDIT AGREEMENT OUTSIDE THE REPUBLIC OF
AUSTRIA AND EACH LENDER MUST BOOK ITS LOAN AND RECEIVE ALL PAYMENTS OUTSIDE THE
REPUBLIC OF AUSTRIA. TRANSPORTING OR SENDING THE ORIGINAL OR ANY CERTIFIED COPY
OF THIS CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR ANY NOTICE OR OTHER
COMMUNICATION (INCLUDING BY EMAIL OR OTHER ELECTRONIC TRANSMISSION) INTO OR FROM
THE REPUBLIC OF AUSTRIA MAY RESULT IN THE IMPOSITION OF AN AUSTRIAN STAMP DUTY
ON THE CREDIT FACILITY PROVIDED FOR HEREIN, WHICH MAY BE FOR THE ACCOUNT OF THE
PARTY WHOSE ACTIONS RESULT IN SUCH IMPOSITION. COMMUNICATIONS REFERENCING THIS
CREDIT AGREEMENT SHOULD NOT BE ADDRESSED TO RECIPIENTS IN, OR SENT BY PERSONS
LOCATED IN, THE REPUBLIC OF AUSTRIA AND PAYMENTS SHOULD NOT BE MADE TO BANK
ACCOUNTS IN THE REPUBLIC OF AUSTRIA. SEE ALSO SECTION 9.19 AND A MEMORANDUM FROM
AUSTRIAN COUNSEL FOR THE GOODYEAR TIRE & RUBBER COMPANY WHICH IS AVAILABLE UPON
REQUEST FROM THE ADMINISTRATIVE AGENT.
Table of Contents
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms ............................................. 1
SECTION 1.02. [intentionally omitted] ................................... 41
SECTION 1.03. Terms Generally ........................................... 41
SECTION 1.04. Accounting Terms; GAAP .................................... 42
ARTICLE II
The Credits
SECTION 2.01. Restatement Date Transactions ............................. 42
SECTION 2.02. Loans and Borrowings ...................................... 43
SECTION 2.03. Borrowing Procedure ....................................... 43
SECTION 2.04. Funding of Purchases ...................................... 44
SECTION 2.05. Interest Elections ........................................ 44
SECTION 2.06. Repayment of Loans; Evidence of Debt ...................... 46
SECTION 2.07. Prepayment of Loans ....................................... 46
SECTION 2.08. Fees ...................................................... 47
SECTION 2.09. Interest .................................................. 47
SECTION 2.10. Alternate Rate of Interest ................................ 48
SECTION 2.11. Increased Costs ........................................... 48
SECTION 2.12. Break Funding Payments .................................... 49
SECTION 2.13. Taxes ..................................................... 50
SECTION 2.14. Payments Generally; Pro Rata Treatment; Sharing of
Setoffs ................................................... 51
SECTION 2.15. Mitigation Obligations; Replacement of Lenders ............ 53
SECTION 2.16. Co-Borrowers .............................................. 54
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers ...................................... 56
SECTION 3.02. Authorization; Enforceability ............................. 56
SECTION 3.03. Governmental Approvals; No Conflicts ...................... 56
SECTION 3.04. Financial Statements; No Material Adverse Change .......... 57
SECTION 3.05. Litigation and Environmental Matters ...................... 57
SECTION 3.06. Compliance with Laws and Agreements ....................... 58
SECTION 3.07. Investment Company Status ................................. 58
SECTION 3.08. ERISA and Canadian Pension Plans .......................... 58
SECTION 3.09. Disclosure ................................................ 58
SECTION 3.10. Security Interests ........................................ 59
SECTION 3.11. Use of Proceeds ........................................... 60
ARTICLE IV
Conditions
SECTION 4.01. Restatement Date .......................................... 60
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information ................ 64
SECTION 5.02. Notices of Defaults ....................................... 65
SECTION 5.03. Existence; Conduct of Business ............................ 66
SECTION 5.04. Maintenance of Properties ................................. 66
SECTION 5.05. Books and Records; Inspection and Audit Rights ............ 66
SECTION 5.06. Compliance with Laws ...................................... 66
SECTION 5.07. Insurance ................................................. 66
SECTION 5.08. Guarantees and Collateral ................................. 66
ARTICLE VI
Negative Covenants
SECTION 6.01. Limitation on Indebtedness ................................ 68
SECTION 6.02. Limitation on Restricted Payments ......................... 72
SECTION 6.03. Limitation on Restrictions on Distributions from Restricted
Subsidiaries .............................................. 76
SECTION 6.04. Limitation on Sales of Assets and Subsidiary Stock ........ 78
SECTION 6.05. Limitation on Transactions with Affiliates ................ 80
SECTION 6.06. Limitation on Liens ....................................... 82
SECTION 6.07. Limitation on Sale/Leaseback Transactions ................. 85
SECTION 6.08. Fundamental Changes ....................................... 86
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default ......................................... 86
ii
ARTICLE VIII
The Agents
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices ................................................... 92
SECTION 9.02. Waivers; Amendments ....................................... 92
SECTION 9.03. Expenses; Indemnity; Damage Waiver ........................ 94
SECTION 9.04. Successors and Assigns .................................... 95
SECTION 9.05. Survival .................................................. 99
SECTION 9.06. Counterparts; Integration; Effectiveness .................. 100
SECTION 9.07. Severability .............................................. 100
SECTION 9.08. Right of Setoff ........................................... 100
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process ................................................... 100
SECTION 9.10. WAIVER OF JURY TRIAL ...................................... 101
SECTION 9.11. Headings .................................................. 101
SECTION 9.12. Confidentiality ........................................... 101
SECTION 9.13. Interest Rate Limitation .................................. 102
SECTION 9.14. Security Documents ........................................ 102
SECTION 9.15. Additional Financial Covenants ............................ 103
SECTION 9.16. Lenders Lien Subordination and Intercreditor Agreement .... 103
SECTION 9.17. Effect of Restatement ..................................... 103
SECTION 9.18. USA Patriot Act Notice .................................... 104
SECTION 9.19. Austrian Matters .......................................... 104
SCHEDULES:
Schedule 1.01A -- Consent Subsidiaries
Schedule 1.01B -- Mortgaged Properties
Schedule 1.01C -- Senior Subordinated-Lien Indebtedness
Schedule 2.01 -- Lenders on the Restatement Date
Schedule 3.10(b) -- Mortgaged Properties
Schedule 3.10(c) -- Material Intellectual Property
Schedule 4.01 -- Post-Restatement Date Delivery Requirements
Schedule 6.06 -- Existing Liens
iii
EXHIBITS:
Exhibit A -- Form of Borrowing Request
Exhibit B -- Form of Interest Election Request
Exhibit C -- Form of Promissory Note
Exhibit D -- Form of Assignment and Assumption
Exhibit E-1 -- Form of Opinion of Borrower's Outside Counsel
Exhibit E-2 -- Form of Opinion of the General Counsel, the Associate General
Counsel or an Assistant General Counsel of the Borrower
Exhibit F -- Form of Reaffirmation Agreement
Exhibit G -- Form of Restatement Date Perfection Certificate
iv
AMENDED AND RESTATED SECOND LIEN CREDIT AGREEMENT dated as
of April 20, 2007 (this "Agreement"), among THE GOODYEAR TIRE &
RUBBER COMPANY; the LENDERS party hereto; DEUTSCHE BANK TRUST
COMPANY AMERICAS, as Collateral Agent; and JPMORGAN CHASE BANK,
N.A., as Administrative Agent.
The Borrower has requested that the Lenders agree to amend and restate
the Existing Credit Agreement (such term and each other capitalized term used
but not otherwise defined herein having the meaning assigned to it in Article I)
in order to continue a portion of the Loans thereunder and to refinance a
portion of the Loans thereunder in an aggregate principal amount for all such
continued and refinanced Loans not to exceed $1,200,000,000. The Lenders are
willing to continue such Loans and to make such refinancing Loans to the
Borrower, and to amend and restate the Existing Credit Agreement in the form
hereof, on the terms and subject to the conditions herein set forth. The
proceeds of Borrowings hereunder on the Effective Date (as defined in the
Existing Credit Agreement) were used for working capital and general corporate
purposes of the Borrower and the Subsidiaries. The proceeds of Borrowings
hereunder on the Restatement Date will be used to repay the Loans outstanding
under the Existing Credit Agreement on the Restatement Date that will not
continue as Loans of the Continuing Lenders.
The Borrower has also requested that it be given the ability to
designate its subsidiaries Goodyear Canada, Inc., a Canadian corporation, and
Goodyear, SA, a Luxembourg corporation, as co-borrowers with respect to a
portion of the Loans not to exceed at any time $800,000,000 in the aggregate for
both Goodyear Canada, Inc. and Goodyear, SA. Following any such designation, the
applicable co-borrower will be jointly and severally liable with the Borrower in
respect of such portion of the Loans. Following the initial designations as
co-borrowers, the Borrower will have the ability on up to three additional
occasions to reallocate the amount in respect of which either subsidiary is a
co-borrower. The Lenders are willing to permit such designations and
reallocations on the terms and subject to the conditions herein set forth.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Additional Assets" means:
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(a) any property or assets (other than Indebtedness and Capital Stock)
to be used by the Borrower or a Restricted Subsidiary;
(b) the Capital Stock of a Person that becomes a Restricted Subsidiary
as a result of the acquisition of such Capital Stock by the Borrower or another
Restricted Subsidiary; or
(c) Capital Stock constituting a minority interest in any Person that
at such time is a Restricted Subsidiary;
provided, however, that any such Restricted Subsidiary described in clauses (b)
or (c) above is primarily engaged in a Permitted Business.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMCB, in its capacity as administrative
agent for the Lenders hereunder, and its successors in such capacity.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Affiliate Transaction" has the meaning set forth in Section 6.05(a).
"Agents" means the Administrative Agent and the Collateral Agent.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Approved Fund" means (a) with respect to any Lender, a CLO managed by
such Lender or by an Affiliate of such Lender and (b) with respect to any Lender
that is a fund which invests in bank loans and similar extensions of credit, any
other fund that invests in bank loans and similar extensions of credit and is
managed by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"Arrangers" means J.P. Morgan Securities Inc., as Joint Lead Arranger
and Joint Bookrunner, and Deutsche Bank Securities Inc., as Joint Lead Arranger
and Joint Bookrunner, for the credit facility established by this Agreement.
3
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of sales, leases, transfers or dispositions that are part
of a common plan) by the Borrower or any Restricted Subsidiary, including any
disposition by means of a merger, consolidation or similar transaction (each
referred to for the purposes of this definition as a "disposition"), of:
(a) any shares of Capital Stock of a Restricted Subsidiary (other than
directors' qualifying shares or shares required by applicable law to be
held by a Person other than the Borrower or a Restricted Subsidiary);
(b) all or substantially all the assets of any division or line of
business of the Borrower or any Restricted Subsidiary; or
(c) any other assets of the Borrower or any Restricted Subsidiary
outside of the ordinary course of business of the Borrower or such
Restricted Subsidiary;
other than, in the case of clauses (a), (b) and (c) above,
(1) a disposition by a Restricted Subsidiary to the Borrower or
by the Borrower or a Restricted Subsidiary to a Restricted Subsidiary;
(2) for purposes of Section 6.04 only, a disposition subject to
Section 6.02;
(3) a disposition of assets with a Fair Market Value of less than
$10,000,000;
(4) a sale of accounts receivable and related assets of the type
specified in the definition of "Qualified Receivables Transaction" to
a Receivables Entity;
(5) a transfer of accounts receivable and related assets of the
type specified in the definition of "Qualified Receivables
Transaction" (or a fractional undivided interest therein) by a
Receivables Entity in a Qualified Receivables Transaction; and
(6) any Specified Asset Sale.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit D or any other form approved by the Administrative Agent.
"Attributable Debt" means, with respect to any Sale/Leaseback
Transaction that does not result in a Capitalized Lease Obligation, the present
value (computed in accordance with GAAP) of the total obligations of the lessee
for rental payments during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such lease has been
extended). In the case
4
of any lease which is terminable by the lessee upon payment of a penalty, the
Attributable Debt shall be the lesser of (i) the Attributable Debt determined
assuming termination upon the first date such lease may be terminated (in which
case the Attributable Debt shall also include the amount of the penalty, but no
rent shall be considered as required to be paid under such lease subsequent to
the first date upon which it may be so terminated) and (ii) the Attributable
Debt determined assuming no such termination.
"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing (a) the
sum of the products of the number of years from the date of determination to the
dates of each successive scheduled principal payment of such Indebtedness or
scheduled redemption or similar payment with respect to such Preferred Stock
multiplied by the amount of such payment by (b) the sum of all such payments.
"Bank Indebtedness" means all obligations under the U.S. Bank
Indebtedness and European Bank Indebtedness.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Board of Directors" means the board of directors of the Borrower or
any committee thereof duly authorized to act on behalf of the board of directors
of the Borrower.
"Borrower" means Goodyear. In addition, when used in respect of a
Co-Borrower Loan or any obligation or payment in respect of a Co-Borrower Loan,
references to the "Borrower" shall include both Goodyear and the Co-Borrower in
respect of such Co-Borrower Loan.
"Borrowing" means Loans of the same Type made, converted or continued
on the same date and, in the case of Eurodollar Loans, as to which a single
Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a Borrowing in
accordance with Section 2.03 in substantially the form of Exhibit A hereto.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Canadian Benefit Plans" means all material employee benefit plans of
any nature or kind whatsoever that are not Canadian Pension Plans and are
maintained or contributed to by any Credit Party having employees in Canada.
"Canadian Pension Plans" means each plan which is a registered pension
plan within the meaning of the Income Tax Act (Canada).
5
"Canadian Security Agreements" has the meaning assigned to such term
in the Guarantee and Collateral Agreement.
"Canadian Tax Opinion" means an opinion of independent tax counsel
reasonably acceptable to the Administrative Agent, in form and substance
reasonably acceptable to the Administrative Agent, to the effect that no
withholding of Canadian tax would be required on any payment with respect to any
Co-Borrower Loan for which Goodyear Canada is a co-obligor.
"Capitalized Lease Obligations" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such entity.
"Change in Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934, as amended, and the rules of the
United States Securities and Exchange Commission thereunder as in effect on the
date hereof), of Capital Stock representing more than 50% of the aggregate
ordinary voting power represented by the issued and outstanding Capital Stock of
the Borrower; or (b) occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons who were neither (i)
directors on the date hereof or nominated by the board of directors of the
Borrower nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.11(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"CLO" means any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course and is
administered or managed by a Lender or an Affiliate of such Lender.
"Co-Borrower" means each of Goodyear Canada and Goodyear, SA, a
Luxembourg corporation.
"Co-Borrower Loan" means, as to a Co-Borrower, each Loan (or portion
of a Loan) designated as a Co-Borrower Loan of such Co-Borrower pursuant to
Section 2.16.
6
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means all the assets and rights that secure any of the
Obligations pursuant to the Security Documents.
"Collateral Agent" means Deutsche Bank Trust Company Americas, in its
capacity as collateral agent for the Lenders under the Guarantee and Collateral
Agreement and the other Security Documents, and shall include each of its
sub-agents hereunder.
"Commitment" means, with respect to each applicable Lender, the
commitment of such Lender to make Loans on the Restatement Date, expressed as an
amount representing the maximum permitted aggregate amount of the Loans to be
made by such Lender. The amount of each applicable Lender's Commitment is set
forth on Schedule 2.01. The aggregate amount of the Commitments, taken together
with the amount of Loans that will continue on the Restatement Date to be held
by the Continuing Lenders, is $1,200,000,000.
"Consent Subsidiary" means (a) any Subsidiary listed on Schedule 1.01A
and (b) any Subsidiary not on Schedule 1.01A or formed or acquired after the
Restatement Date, in respect of which (A) the consent of any Person other than
the Borrower or any Wholly Owned Subsidiary is required by applicable law or the
terms of any organizational document of such Subsidiary or other agreement of
such Subsidiary or any Affiliate of such Subsidiary in order for such Subsidiary
to execute the Guarantee and Collateral Agreement as a Grantor or a Subsidiary
Guarantor and perform its obligations thereunder, or in order for Capital Stock
of such Subsidiary to be pledged under the Security Documents, as the case may
be, and (B) the Borrower endeavored in good faith to obtain such consents and
such consents shall not have been obtained. Notwithstanding the foregoing, no
Subsidiary shall be a Consent Subsidiary at any time that it is a guarantor of,
or has provided any collateral to secure, Indebtedness for borrowed money of the
Borrower, and any Consent Subsidiary (including a Consent Subsidiary listed in
Schedule 1.01A) that at any time ceases to meet the test set forth in clause (A)
shall cease to be a Consent Subsidiary. No Subsidiary shall be a Consent
Subsidiary if it is a Guarantor or a Grantor under the First Lien Guarantee and
Collateral Agreement or the Third Lien Collateral Agreement, a US Guarantor
under the European Guarantee and Collateral Agreement or a Subsidiary Guarantor
or Grantor Subsidiary Guarantor under the Junior Lien Indenture or the 2006
Indenture.
"Consolidated Coverage Ratio" as of any date of determination means
the ratio of:
(1) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters ending prior to the date of
such determination for which financial statements have been filed with
the SEC to
7
(2) Consolidated Interest Expense for such four fiscal quarters;
provided, however, that:
(A) if the Borrower or any Restricted Subsidiary has
Incurred any Indebtedness since the beginning of such period that
remains outstanding on such date of determination or if the
transaction giving rise to the need to calculate the Consolidated
Coverage Ratio is an Incurrence of Indebtedness, EBITDA and
Consolidated Interest Expense for such period shall be calculated
after giving effect on a pro forma basis to such Indebtedness as
if such Indebtedness had been Incurred on the first day of such
period and the discharge of any other Indebtedness repaid,
repurchased, defeased or otherwise discharged with the proceeds
of such new Indebtedness as if such discharge had occurred on the
first day of such period,
(B) if the Borrower or any Restricted Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness
since the beginning of such period or if any Indebtedness is to
be repaid, repurchased, defeased or otherwise discharged (in each
case other than Indebtedness Incurred under any revolving credit
facility unless such Indebtedness has been permanently repaid and
has not been replaced) on the date of the transaction giving rise
to the need to calculate the Consolidated Coverage Ratio, EBITDA
and Consolidated Interest Expense for such period shall be
calculated on a pro forma basis as if such discharge had occurred
on the first day of such period and as if the Borrower or such
Restricted Subsidiary had not earned the interest income actually
earned during such period in respect of cash or Temporary Cash
Investments used to repay, repurchase, defease or otherwise
discharge such Indebtedness,
(C) if since the beginning of such period the Borrower or
any Restricted Subsidiary shall have made any Asset Disposition,
the EBITDA for such period shall be reduced by an amount equal to
the EBITDA (if positive) directly attributable to the assets that
are the subject of such Asset Disposition for such period or
increased by an amount equal to the EBITDA (if negative) directly
attributable thereto for such period and Consolidated Interest
Expense for such period shall be reduced by an amount equal to
the Consolidated Interest Expense directly attributable to any
Indebtedness of the Borrower or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the
Borrower and its Restricted Subsidiaries in connection with such
Asset Disposition for such period (or, if the Capital Stock of
any Restricted Subsidiary is sold, the Consolidated Interest
Expense for such period directly attributable to the Indebtedness
of such Restricted Subsidiary to the extent the Borrower
8
and its continuing Restricted Subsidiaries are no longer liable
for such Indebtedness after such sale),
(D) if since the beginning of such period the Borrower or
any Restricted Subsidiary (by merger or otherwise) shall have
made an Investment in any Restricted Subsidiary (or any Person
that becomes a Restricted Subsidiary) or an acquisition of
assets, including any acquisition of assets occurring in
connection with a transaction causing a calculation to be made
hereunder, which constitutes all or substantially all of an
operating unit, division or line of a business, EBITDA and
Consolidated Interest Expense for such period shall be calculated
after giving pro forma effect thereto (including the Incurrence
of any Indebtedness) as if such Investment or acquisition
occurred on the first day of such period, and
(E) if since the beginning of such period any Person that
subsequently became a Restricted Subsidiary or was merged with or
into the Borrower or any Restricted Subsidiary since the
beginning of such period shall have made any Asset Disposition or
any Investment or acquisition of assets that would have required
an adjustment pursuant to clause (C) or (D) above if made by the
Borrower or a Restricted Subsidiary during such period, EBITDA
and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto as if such Asset
Disposition, Investment or acquisition of assets occurred on the
first day of such period.
For purposes of this definition, whenever pro forma effect is to be
given to an acquisition of assets, Asset Disposition or other Investment, the
amount of income, EBITDA or earnings relating thereto and the amount of
Consolidated Interest Expense associated with any Indebtedness Incurred in
connection therewith, the pro forma calculations shall be determined in good
faith by a responsible Financial Officer of the Borrower and shall comply with
the requirements of Rule 11-02 of Regulation S-X, as it may be amended or
replaced from time to time, promulgated by the SEC.
If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest expense on such Indebtedness shall be
calculated as if the rate in effect on the date of determination had been the
applicable rate for the entire period (taking into account any Interest Rate
Agreement applicable to such Indebtedness if such Interest Rate Agreement has a
remaining term as at the date of determination in excess of 12 months). If any
Indebtedness is Incurred or repaid under a revolving credit facility and is
being given pro forma effect, the interest on such Indebtedness shall be
calculated based on the average daily balance of such Indebtedness for the four
fiscal quarters subject to the pro forma calculation.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Borrower and its Consolidated Restricted Subsidiaries,
plus, to the extent
9
Incurred by the Borrower and its Consolidated Restricted Subsidiaries in such
period but not included in such interest expense, without duplication:
(1) interest expense attributable to Capitalized Lease
Obligations and the interest expense attributable to leases
constituting part of a Sale/Leaseback Transaction that does not
result in a Capitalized Lease Obligation;
(2) amortization of debt discount and debt issuance costs;
(3) capitalized interest;
(4) noncash interest expense;
(5) commissions, discounts and other fees and charges
attributable to letters of credit and bankers' acceptance
financing,
(6) interest accruing on any Indebtedness of any other
Person to the extent such Indebtedness is Guaranteed by (or
secured by the assets of) the Borrower or any Restricted
Subsidiary and such Indebtedness is in default under its terms or
any payment is actually made in respect of such Guarantee;
(7) net payments made pursuant to Hedging Obligations
(including amortization of fees);
(8) dividends paid in cash or Disqualified Stock in respect
of (A) all Preferred Stock of Restricted Subsidiaries and (B) all
Disqualified Stock of the Borrower, in each case held by Persons
other than the Borrower or a Restricted Subsidiary;
(9) interest Incurred in connection with investments in
discontinued operations; and
(10) the cash contributions to any employee stock ownership
plan or similar trust to the extent such contributions are used
by such plan or trust to pay interest or fees to any Person
(other than the Borrower) in connection with Indebtedness
Incurred by such plan or trust;
and less, to the extent included in such total interest expense, (A) any
breakage costs of Hedging Obligations terminated in connection with the
Incurrence of Indebtedness on the 2006 Indenture Closing Date and the
application of the net proceeds therefrom and (B) the amortization during such
period of capitalized financing costs; provided, however, that for any financing
consummated after the Restatement Date, the aggregate amount of amortization
relating to any such capitalized financing costs deducted in calculating
Consolidated Interest Expense shall not exceed 5% of the aggregate amount of the
financing giving rise to such capitalized financing costs.
10
"Consolidated Net Income" means, for any period, the net income of the
Borrower and its Consolidated Subsidiaries for such period; provided, however,
that there shall not be included in such Consolidated Net Income:
(a) any net income of any Person (other than the Borrower) if such
Person is not a Restricted Subsidiary, except that:
(1) subject to the limitations contained in clause (d) below, the
Borrower's equity in the net income of any such Person for such period
shall be included in such Consolidated Net Income up to the aggregate
amount of cash actually distributed by such Person during such period
to the Borrower or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution
made to a Restricted Subsidiary, to the limitations contained in
clause (c) below);
(2) the Borrower's equity in a net loss of any such Person for
such period shall be included in determining such Consolidated Net
Income to the extent such loss has been funded with cash from the
Borrower or a Restricted Subsidiary;
(b) any net income (or loss) of any Person acquired by the Borrower or
a Subsidiary of the Borrower in a pooling of interests transaction for any
period prior to the date of such acquisition;
(c) any net income of any Restricted Subsidiary if such Restricted
Subsidiary is subject to restrictions on the payment of dividends or the
making of distributions by such Restricted Subsidiary, directly or
indirectly, to the Borrower (but, in the case of any Foreign Restricted
Subsidiary, only to the extent cash equal to such net income (or a portion
thereof) for such period is not readily procurable by the Borrower from
such Foreign Restricted Subsidiary (with the amount of cash readily
procurable from such Foreign Restricted Subsidiary being determined in good
faith by a Financial Officer of the Borrower) pursuant to intercompany
loans, repurchases of Capital Stock or otherwise), except that:
(1) subject to the limitations contained in clause (d) below, the
Borrower's equity in the net income of any such Restricted Subsidiary
for such period shall be included in such Consolidated Net Income up
to the aggregate amount of cash actually distributed by such
Restricted Subsidiary during such period to the Borrower or another
Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution made to another
Restricted Subsidiary, to the limitation contained in this clause);
and
(2) the net loss of any such Restricted Subsidiary for such
period shall not be excluded in determining such Consolidated Net
Income;
(d) any gain (or loss) realized upon the sale or other disposition of
any asset of the Borrower or its Consolidated Subsidiaries (including
pursuant to any
11
Sale/Leaseback Transaction) that is not sold or otherwise disposed of in
the ordinary course of business and any gain (or loss) realized upon the
sale or other disposition of any Capital Stock of any Person;
(e) any extraordinary gain or loss;
(f) the effect of the 2006 strike, as disclosed in the Borrower's
filings with the SEC, which for purposes of determining Consolidated Net
Income shall be deemed to be (i) for the fiscal quarter ended December 31,
2006, a loss of operating income of $363,000,000, and (ii) for each fiscal
quarter thereafter, a loss of operating income in an amount determined by
the Borrower, provided that the aggregate amount of all such losses of
operating income for such fiscal quarters ended after December 31, 2006,
shall not exceed $250,000,000; and
(g) the cumulative effect of a change in accounting principles.
Notwithstanding the foregoing, for the purpose of Section 6.02 only,
there shall be excluded from Consolidated Net Income any dividends, repayments
of loans or advances or other transfers of assets from Unrestricted Subsidiaries
to the Borrower or a Restricted Subsidiary to the extent such dividends,
repayments or transfers increase the amount of Restricted Payments permitted
under Section 6.02(a)(3)(iv).
"Consolidated Net Secured Indebtedness" means, at any date, (a) the
sum for the Borrower and its Consolidated Restricted Subsidiaries at such date,
without duplication, of (i) all Indebtedness (other than obligations in respect
of Swap Agreements) that is included on the Borrower's consolidated balance
sheet and is Secured Indebtedness, (ii) all Capitalized Lease Obligations, (iii)
all synthetic lease financings and (iv) all Qualified Receivables Transactions,
minus (b) the aggregate amount of cash and Temporary Cash Investments in excess
of $400,000,000 held at such time by the Borrower and its Consolidated
Restricted Subsidiaries, all determined in accordance with GAAP. For purposes of
computing Consolidated Net Secured Indebtedness, the amount of any synthetic
lease financing shall equal the amount that would be capitalized in respect of
such lease if it were a Capitalized Lease Obligation.
"Consolidated Revenue" means, for any period, the revenues for such
period, determined in accordance with GAAP, of the Borrower and the Subsidiaries
the accounts of which would be consolidated with those of the Borrower in the
Borrower's consolidated financial statements in accordance with GAAP.
"Consolidated Total Assets" means, at any date, the total assets,
determined in accordance with GAAP, of the Borrower and the Subsidiaries the
accounts of which would be consolidated with those of the Borrower in the
Borrower's consolidated financial statements in accordance with GAAP.
"Consolidation" means, unless the context otherwise requires, the
consolidation of (1) in the case of the Borrower, the accounts of each of the
Restricted Subsidiaries with those of the Borrower and (2) in the case of a
Restricted Subsidiary, the accounts of each Subsidiary of such Restricted
Subsidiary that is a Restricted Subsidiary
12
with those of such Restricted Subsidiary, in each case in accordance with GAAP
consistently applied; provided, however, that "Consolidation" will not include
consolidation of the accounts of any Unrestricted Subsidiary, but the interest
of the Borrower or any Restricted Subsidiary in an Unrestricted Subsidiary will
be accounted for as an investment. The term "Consolidated" has a correlative
meaning.
"Continuing Lender" means each Lender under the Existing Credit
Agreement on the Restatement Date that is listed on Schedule 2.01 as a
Continuing Lender.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Documents" means this Agreement, any promissory notes
delivered pursuant to Section 2.06(e), the Security Documents, the Lenders Lien
Subordination and Intercreditor Agreement and the Lien Subordination and
Intercreditor Agreement.
"Credit Facilities Agreements" means this Agreement, the First Lien
Agreement and the European Facilities Agreement.
"Credit Party" means Goodyear, each Co-Borrower, each Subsidiary
Guarantor and each Grantor.
"Currency Agreement" means with respect to any Person any foreign
exchange contract, currency swap agreement or other similar agreement or
arrangement to which such Person is a party or of which it is a beneficiary.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Designated Noncash Consideration" means noncash consideration
received by the Borrower or one of its Restricted Subsidiaries in connection
with an Asset Disposition that is designated by the Borrower as Designated
Noncash Consideration, less the amount of cash or cash equivalents received in
connection with a subsequent sale of such Designated Noncash Consideration,
which cash and cash equivalents shall be considered Net Available Cash received
as of such date and shall be applied pursuant to Section 6.04.
"Disclosure Documents" means reports of the Borrower on Forms 10-K,
10-Q and 8-K, and any amendments thereto, that shall have been (i) filed with
the SEC on or prior to April 5, 2007, or (ii) filed with the SEC after such date
and prior to the Restatement Date and delivered to the Administrative Agent
prior to the date hereof.
13
"Disqualified Stock" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable) or upon the
happening of any event:
(a) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise;
(b) is convertible or exchangeable for Indebtedness or Disqualified
Stock (excluding Capital Stock convertible or exchangeable solely at the
option of the Borrower or a Restricted Subsidiary; provided, however, that
any such conversion or exchange shall be deemed an Incurrence of
Indebtedness or Disqualified Stock, as applicable); or
(c) is redeemable at the option of the holder thereof, in whole or in
part;
in the case of each of clauses (a), (b) and (c), on or prior to 180 days after
the Maturity Date; provided, however, that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders thereof
the right to require such Person to repurchase or redeem such Capital Stock upon
the occurrence of an "asset sale" or "change of control" occurring prior to the
first anniversary of the Maturity Date shall not constitute Disqualified Stock
if the "asset sale" or "change of control" provisions applicable to such Capital
Stock are not more favorable in any material respect to the holders of such
Capital Stock than the provisions of Section 4.06 and Section 4.08 of the 2006
Indenture; provided further, however, that if such Capital Stock is issued to
any employee or to any plan for the benefit of employees of the Borrower or its
Subsidiaries or by any such plan to such employees, such Capital Stock shall not
constitute Disqualified Stock solely because it may be required to be
repurchased by the Borrower in order to satisfy applicable statutory or
regulatory obligations or as a result of such employee's termination, death or
disability.
The amount of any Disqualified Stock that does not have a fixed
redemption, repayment or repurchase price will be calculated in accordance with
the terms of such Disqualified Stock as if such Disqualified Stock were
redeemed, repaid or repurchased on any date on which the amount of such
Disqualified Stock is to be determined pursuant to this Agreement; provided,
however, that if such Disqualified Stock could not be required to be redeemed,
repaid or repurchased at the time of such determination, the redemption,
repayment or repurchase price will be the book value of such Disqualified Stock
as reflected in the most recent financial statements of such Person.
"dollars" or "$" refers to lawful money of the United States of
America.
"Domestic Subsidiary" means any Subsidiary that is not a Foreign
Subsidiary.
14
"EBITDA" means, for any period, the Consolidated Net Income for such
period, plus, without duplication, the following, to the extent deducted in
calculating such Consolidated Net Income:
(a) income tax expense of the Borrower and its Consolidated Restricted
Subsidiaries;
(b) Consolidated Interest Expense;
(c) depreciation expense of the Borrower and its Consolidated
Restricted Subsidiaries;
(d) amortization expense of the Borrower and its Consolidated
Restricted Subsidiaries (excluding amortization expense attributable to a
prepaid cash item that was paid in a prior period);
(e) cash restructuring charges; provided that the aggregate amount of
such cash restructuring charges incurred on or after the Restatement Date
that may be added back in determining EBITDA pursuant to this clause (e)
for all periods reported on during the term of this Agreement shall not
exceed $120,000,000; and
(f) all other noncash charges of the Borrower and its Consolidated
Restricted Subsidiaries (excluding any such noncash charge to the extent it
represents an accrual of or reserve for cash expenditures in any future
period) less all noncash items of income of the Borrower and its Restricted
Subsidiaries in each case for such period (other than normal accruals in
the ordinary course of business).
Notwithstanding the foregoing, the provision for taxes based on the income or
profits of, and the depreciation and amortization and noncash charges of, a
Restricted Subsidiary of the Borrower shall be added to Consolidated Net Income
to compute EBITDA only to the extent (and in the same proportion) that the net
income of such Restricted Subsidiary was included in calculating Consolidated
Net Income and only if (A) a corresponding amount would be permitted at the date
of determination to be dividended to the Borrower by such Restricted Subsidiary
without prior approval (that has not been obtained), pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to such Restricted
Subsidiary or its shareholders or (B) in the case of any Foreign Restricted
Subsidiary, a corresponding amount of cash is readily procurable by the Borrower
from such Foreign Restricted Subsidiary (as determined in good faith by a
Financial Officer of the Borrower) pursuant to intercompany loans, repurchases
of Capital Stock or otherwise, provided that to the extent cash of such Foreign
Restricted Subsidiary provided the basis for including the net income of such
Foreign Subsidiary in Consolidated Net Income pursuant to clause (c) of the
definition of "Consolidated Net Income," such cash shall not be taken into
account for the purposes of determining readily procurable cash under this
clause (B).
"EEMEA Subsidiary" means a Subsidiary (other than any Subsidiary of
the European JV) organized under the laws of any jurisdiction in Africa, Eastern
Europe
15
(including each of Albania, Belarus, Bosnia and Herzegovina, Bulgaria, Croatia,
Czech Republic, Estonia, Hungary, Latvia, Lithuania, Macedonia, Moldova, Poland,
Romania, Russia, Serbia and Montenegro, Slovakia, Slovenia, and Ukraine) and the
Middle East (including each of Bahrain, Egypt, Iran, Iraq, Israel, Jordan,
Kuwait, Lebanon, Palestine, Oman, Qatar, Saudi Arabia, Syria, Turkey, the United
Arab Emirates, and Yemen).
"Effective Date" means April 8, 2005.
"Engineered Products Division" means those standard business units of
the Borrower and the other Grantors classified as "Engineered Products Division"
on the Borrower's perpetual inventory records.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the presence, the management or release of, or exposure to, any
Hazardous Materials or to health and safety matters.
"Environmental Liability" means all liabilities, obligations, damages,
losses, claims, actions, suits, judgments, orders, fines, penalties, fees,
expenses and costs (including administrative oversight costs, natural resource
damages and remediation costs), whether contingent or otherwise, arising out of
or relating to (a) compliance or non-compliance with any Environmental Law, (b)
the generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release of any Hazardous Materials or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower or any Subsidiary, is treated as
a single employer under Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder, with respect to any Plan
(other than an event for which the 30-day notice period is waived or an event
described in Section 4043.33 of Title 29 of the Code of Federal Regulations);
(b) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA) as
to which a waiver has not been obtained; (c) the incurrence by the Borrower, a
Subsidiary or any ERISA Affiliate of any liability under Title IV of ERISA with
respect to the termination of any Plan; (d) the treatment of a Plan amendment as
a termination under Section 4041 of ERISA; (e) any event or condition,
16
other than the Transactions, that would be materially likely to result in the
termination of, or the appointment of a trustee to administer, any Plan or
Multiemployer Plan under Section 4042 of ERISA; (f) the receipt by the Borrower,
a Subsidiary or any ERISA Affiliate from the PBGC or a plan administrator of any
notice of an intention to terminate any Plan or to appoint a trustee to
administer any Plan; (g) the incurrence by the Borrower, any Subsidiary or any
ERISA Affiliate of any liability under Title IV of ERISA with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (h) the
receipt by the Borrower, any Subsidiary or any ERISA Affiliate of any notice, or
the receipt by any Multiemployer Plan from the Borrower, any Subsidiary or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Euro" or "E" means the lawful currency of the member states of the
European Union that have adopted a single currency in accordance with applicable
law or treaty.
"Euro Equivalent" means with respect to any monetary amount in a
currency other than Euros, at any time of determination thereof, the amount of
Euros obtained by converting such foreign currency involved in such computation
into Euros at the spot rate for the purchase of Euros with the applicable
foreign currency as published in The Wall Street Journal in the "Exchange Rates"
column under the heading "Currency Trading" on the date two Business Days prior
to such determination.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"European Bank Indebtedness" means any and all amounts payable under
or in respect of the European Facilities Agreement and any Refinancing
Indebtedness with respect thereto or with respect to such Refinancing
Indebtedness, as amended from time to time, including principal, premium (if
any), interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Borrower, whether
or not a claim for post-filing interest is allowed in such proceedings), fees,
charges, expenses, reimbursement obligations and all other amounts payable
thereunder or in respect thereof.
"European Facilities Agreement" means the Amended and Restated Term
Loan and Revolving Credit Agreement dated as of the date hereof, among the
European JV, the other borrowers thereunder, certain lenders, certain issuing
banks, J.P. Morgan Europe Limited, as administrative agent, and JPMCB, as
collateral agent, as amended, restated, supplemented, waived, replaced (whether
or not upon termination, and whether with the original lenders or otherwise),
refinanced, restructured or otherwise modified from time to time (except to the
extent that any such amendment, restatement, supplement, waiver, replacement,
refinancing, restructuring or other modification thereto would be prohibited by
the terms of this Agreement, unless otherwise agreed to by the Majority
Lenders).
17
"European Guarantee and Collateral Agreement" means the amended and
restated Master Guarantee and Collateral Agreement among the Borrower, the
Subsidiaries party thereto and JPMCB, in its capacity as collateral agent under
the credit agreements described therein, dated as of April 8, 2005, as from time
to time amended, supplemented or otherwise modified (subject to any restrictions
on such amendments, supplements or modifications set forth herein).
"European JV" means Goodyear Dunlop Tires Europe B.V.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excluded Subsidiary" means any Subsidiary with only nominal assets
and no operations. No Subsidiary shall be an Excluded Subsidiary if it is a
Guarantor or a Grantor under the First Lien Guarantee and Collateral Agreement
or the Third Lien Collateral Agreement or a US Guarantor under the European
Guarantee and Collateral Agreement or a Subsidiary Guarantor or Grantor
Subsidiary Guarantor under the Junior Lien Indenture or the 2006 Indenture.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States or by the jurisdiction
under the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable lending
office is located, (b) any branch profits taxes imposed by the United States or
any similar tax imposed by any other jurisdiction described in clause (a) above
and (c) (i) any withholding tax that is imposed by the United States on amounts
payable to a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.15(b)) at the time such Foreign Lender first becomes a
party to this Agreement (or designates a new lending office), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.13(a) or (ii) any withholding tax that is imposed by the
United States on amounts payable to a Foreign Lender that is attributable to
such Foreign Lender's failure to comply with Section 2.13(e).
"Existing Credit Agreement" means the Second Lien Credit Agreement
dated as of April 8, 2005, among the Borrower, the lenders party thereto,
Deutsche Bank Trust Company Americas, as collateral agent, and JPMCB, as
administrative agent.
"Fair Market Value" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length, free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction, as such price
is, unless specified otherwise in this Agreement, determined in good faith by a
Financial Officer of the Borrower or by the Board of Directors. Fair Market
Value (other than of any asset with a public trading market) of any asset or
property (or group of assets or property subject to
18
an event giving rise to a requirement under this Agreement that "Fair Market
Value" be determined) in excess of $25,000,000 shall be determined by the Board
of Directors or a duly authorized committee thereof.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or any assistant treasurer of the Borrower, or any
senior vice president or higher ranking executive to whom any of the foregoing
report.
"First Lien Agreement" means the Amended and Restated First Lien
Credit Agreement dated as of the date hereof, among the Borrower, certain
lenders, certain issuing banks, Citicorp USA, Inc., as syndication agent, and
JPMCB, as administrative agent, as amended, restated, supplemented, waived,
replaced (whether or not upon termination and whether with the original lenders
or otherwise), refinanced, restructured or otherwise modified from time to time
(except to the extent any such amendment, restatement, supplement, waiver,
replacement, refinancing, restructuring or other modification thereto would be
prohibited by the terms of this Agreement, unless otherwise agreed to by the
Majority Lenders).
"First Lien Guarantee and Collateral Agreement" means the Guarantee
and Collateral Agreement among the Borrower, the Subsidiary Guarantors, the
Grantors, certain other Subsidiaries and JPMCB, dated as of April 8, 2005, as
from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein).
"First Lien Indebtedness" means any and all amounts payable under or
in respect of, or that may be Incurred pursuant to unused commitments under, or
that may be drawn under undrawn letters of credit under, the First Lien
Agreement and any Refinancing Indebtedness with respect thereto or with respect
to such Refinancing Indebtedness, as amended from time to time, including
principal, premium (if any), interest (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to the
Borrower whether or not a claim for post-filing interest is allowed in such
proceedings), fees, charges, expenses, reimbursement obligations and all other
amounts payable thereunder or in respect thereof.
"Foreign Lender" means any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States, each State thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction.
19
"Foreign Pledge Agreement" means a pledge agreement securing the
Obligations or any of them that is governed by the law of a jurisdiction other
than the United States and reasonably satisfactory in form and substance to the
Collateral Agent.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary that
is not organized under the laws of the United States or any State thereof or the
District of Columbia, other than Goodyear Canada.
"Foreign Subsidiary" means any Subsidiary organized under the laws of
a jurisdiction other than the United States or any of its territories or
possessions or any political subdivision thereof.
"GAAP" means generally accepted accounting principles in the United
States.
"Goodyear" means The Goodyear Tire & Rubber Company, an Ohio
corporation.
"Goodyear Canada" means Goodyear Canada Inc., an Ontario corporation,
and its successors and permitted assigns.
"Governmental Authority" means the government of the United States,
Canada, any other nation or any political subdivision thereof, whether state,
provincial, territorial or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"Grantors" means the Borrower and each North American Subsidiary that
is, or is required pursuant to Section 5.08 to become, a Grantor (as defined in
the Guarantee and Collateral Agreement) and, if applicable, a party to any
Canadian Security Agreement.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness of such other Person
(whether arising by virtue of partnership arrangements, or by
agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or
(2) entered into for purposes of assuring in any other manner the
obligee of such Indebtedness of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a
20
verb has a corresponding meaning. The term "Guarantor" shall mean any Person
Guaranteeing any obligation.
"Guarantee and Collateral Agreement" means the Guarantee and
Collateral Agreement among the Borrower, the Subsidiary Guarantors, the
Grantors, certain other Subsidiaries and the Collateral Agent, dated as of April
8, 2005, as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein).
"Hazardous Materials" means (a) petroleum products and byproducts,
asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, radon
gas, chlorofluorocarbons and all other ozone-depleting substances; and (b) any
pollutant or contaminant or any hazardous, toxic, radioactive or otherwise
regulated chemical, material, substance or waste that is prohibited, limited or
regulated pursuant to any applicable Environmental Law.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement, Currency Agreement or raw
materials hedge agreement.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Person at the time it becomes a Subsidiary. The term "Incurrence" when used as a
noun shall have a correlative meaning. The accretion of principal of a
non-interest bearing or other discount security shall not be deemed the
Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination, without duplication:
(1) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
(2) the principal of and premium (if any) in respect of
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(3) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, bankers' acceptance, bank guarantee
or similar credit transaction (other than obligations with respect to
letters of credit or bank guarantees securing obligations (other than
obligations described in clauses (1), (2) and (5)) entered into in the
ordinary course of business of such Person to the extent such letters
of credit or bank guarantees are not drawn upon or, if and to the
extent drawn upon, such drawing is reimbursed no later than the tenth
Business Day following payment on the letter of credit or bank
guarantee);
21
(4) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables), which
purchase price is due more than six months after the date of placing
such property in service or taking delivery and title thereto or the
completion of such services;
(5) all Capitalized Lease Obligations and all Attributable Debt
of such Person;
(6) the amount of all obligations of such Person with respect to
the redemption, repayment or other repurchase of any Disqualified
Stock or, with respect to any Subsidiary of such Person, any Preferred
Stock (but excluding, in each case, any accrued and unpaid dividends);
(7) all Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by
such Person; provided, however, that the amount of Indebtedness of
such Person shall be the lesser of:
(A) the Fair Market Value of such asset at such date of
determination and
(B) the amount of such Indebtedness of such other Persons;
(8) Hedging Obligations of such Person; and
(9) all obligations of the type referred to in clauses (1)
through (8) of other Persons for the payment of which such Person is
responsible or liable, directly or indirectly, as obligor, guarantor
or otherwise, including by means of any Guarantee.
Notwithstanding the foregoing, in connection with the purchase by the
Borrower or any Restricted Subsidiary of any business, the term "Indebtedness"
shall exclude post-closing payment adjustments to which the seller may become
entitled to the extent such payment is determined by a final closing balance
sheet or such payment depends on the performance of such business after the
closing; provided, however, that, at the time of closing, the amount of any such
payment is not determinable and, to the extent such payment thereafter becomes
fixed and determined, the amount is paid within 30 days thereafter.
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above; provided, however, that in the case of Indebtedness sold at a discount,
the amount of such Indebtedness at any time will be the accreted value thereof
at such time.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning set forth in Section 9.03.
22
"Information" has the meaning set forth in Section 9.12.
"Intellectual Property" has the meaning set forth in the Guarantee and
Collateral Agreement.
"Intercompany Items" means obligations owed by the Borrower or any
Subsidiary to the Borrower or any other Subsidiary.
"Interest Election Request" means a request by the Borrower to convert
or continue a Borrowing in accordance with Section 2.05 in substantially the
form of Exhibit B hereto.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December and (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect; provided that (i) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (ii) any Interest Period
pertaining to a Eurodollar Borrowing that commences on the last Business Day of
a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and, in the case of a Borrowing, thereafter shall be the
effective date of the most recent conversion or continuation of such Borrowing.
"Interest Rate Agreement" means, with respect to any Person, any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement to which such Person is a party or of
which it is a beneficiary.
"Investment" in any Person means any direct or indirect advance, loan
or other extension of credit (including by way of Guarantee or similar
arrangement) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the account
or use of others), or any purchase or acquisition of Capital Stock, Indebtedness
or other similar instruments issued by, such Person. For purposes of the
definition of "Unrestricted Subsidiary" and Section 6.02:
23
(1) "Investment" shall include the portion (proportionate to the
Borrower's equity interest in such Subsidiary) of the Fair Market
Value of the net assets of any Subsidiary of the Borrower at the time
that such Subsidiary is designated an Unrestricted Subsidiary;
provided, however, that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Borrower shall be deemed to continue to
have a permanent "Investment" in an Unrestricted Subsidiary in an
amount (if positive) equal to:
(A) the Borrower's "Investment" in such Subsidiary at the
time of such redesignation less
(B) the portion (proportionate to the Borrower's equity
interest in such Subsidiary) of the Fair Market Value of the net
assets of such Subsidiary at the time of such redesignation; and
(2) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its Fair Market Value at the time of
such transfer.
In the event that the Borrower sells Capital Stock of a Restricted
Subsidiary such that after giving effect to such sale, such Restricted
Subsidiary would no longer constitute a Restricted Subsidiary, any Investment in
such Person remaining after giving effect to such sale shall be deemed to
constitute an Investment made on the date of such sale of Capital Stock.
"JPMCB" means JPMorgan Chase Bank, N.A., and its successors.
"Junior Lien Indenture" means the Indenture dated as of March 12,
2004, among the Borrower, the subsidiary guarantors party thereto and Wells
Fargo Bank, N.A., as trustee.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption.
"Lenders Lien Subordination and Intercreditor Agreement" means the
Lenders Lien Subordination and Intercreditor Agreement between the Collateral
Agent and the collateral agent under the Second Lien Agreement, dated as of
April 8, 2005, as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein).
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Jones Market Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the
24
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason with respect to any
Eurodollar Borrowing, then the "LIBO Rate" with respect to such Eurodollar
Borrowing for such Interest Period shall be the rate (rounded upwards, if
necessary, to the next 1/100 of 1%) at which dollar deposits of $5,000,000 and
for a maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds in the
London interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, French delegation of claims, lien, pledge, hypothecation, encumbrance,
charge or security interest in, on or of such asset, and (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset.
"Lien Subordination and Intercreditor Agreement" means the Lien
Subordination and Intercreditor Agreement dated as of March 12, 2004, among
JPMCB, Wilmington Trust Company, the Borrower and the Subsidiary Guarantors.
"Loans" means the loans made to the Borrower pursuant to the Existing
Credit Agreement and continued under this Agreement and the loans made pursuant
to Section 2.01. "Loans" shall include the Co-Borrower Loans.
"Lockbox Agreements" has the meaning assigned to such term in the
Guarantee and Collateral Agreement.
"Lockbox Deposit Account" has the meaning assigned to such term in the
Guarantee and Collateral Agreement.
"Lockbox Deposit Account Institution" has the meaning assigned to such
term in the Guarantee and Collateral Agreement.
"Lockbox System" has the meaning assigned to such term in the
Guarantee and Collateral Agreement.
"Majority Lenders" means, at any time, Lenders having Loans
representing more than 50% of the aggregate principal amount of the total Loans
outstanding.
"Material Adverse Change" means a material adverse change in or effect
on (a) the business, operations, properties, assets or financial condition
(including as a result of the effects of any contingent liabilities thereon) of
the Borrower and the Subsidiaries, taken as a whole, (b) the ability of the
Credit Parties, taken as a whole, to perform obligations under this Agreement
and the other Credit Documents that are material to the rights or interests of
the Lenders or (c) the rights of or benefits available to
25
the Lenders under this Agreement and the other Credit Documents that are
material to the interests of the Lenders.
"Material Foreign Subsidiary" means, at any time, each Foreign
Subsidiary that had Total Assets with an aggregate book value in excess of
$50,000,000 as of December 31, 2006, or if later, as of the end of the most
recent fiscal quarter for which financial statements have been delivered (or
deemed delivered) pursuant to Section 5.01(a) or (b).
"Material Indebtedness" means Indebtedness (other than the Loans), or
obligations in respect of one or more Swap Agreements, of any one or more of the
Borrower and the Subsidiaries in an aggregate principal amount exceeding
$100,000,000. For purposes of determining Material Indebtedness, the "principal
amount" of the obligations of the Borrower or any Subsidiary in respect of any
Swap Agreement at any time shall be the maximum aggregate amount (giving effect
to any netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Swap Agreement were terminated at such time, calculated
in accordance with the terms of such Swap Agreement.
"Material Intellectual Property" means all Intellectual Property of
the Borrower and the Grantors, other than Intellectual Property that in the
aggregate is not material to the business of the Borrower and the Subsidiaries,
taken as a whole.
"Material Subsidiary" means, at any time, each Subsidiary other than
Subsidiaries that do not represent more than 5% for any such individual
Subsidiary, or more than 10% in the aggregate for all such Subsidiaries, of
either (a) Consolidated Total Assets or (b) Consolidated Revenue for the period
of four fiscal quarters most recently ended.
"Maturity Date" means April 30, 2014.
"Moody's" means Moody's Investors Service, Inc., or any successor
thereto.
"Mortgage" means a mortgage or deed of trust, assignment of leases and
rents, or other security documents reasonably satisfactory in form and substance
to the Collateral Agent granting a Lien on any Mortgaged Property to secure the
Obligations, and shall include each amendment and restatement of any existing
Mortgage in connection with the amendment and restatement of the Existing Credit
Agreement.
"Mortgaged Property" means, at any time, each parcel of real property
listed in Schedule 1.01B and the improvements thereto.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"NAIC" means the National Association of Insurance Commissioners.
26
"Net Available Cash" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise and proceeds
from the sale or other disposition of any securities received as consideration,
in each case only as and when received, but excluding any other consideration
received in the form of assumption by the acquiring Person of Indebtedness or
other obligations relating to the properties or assets that are the subject of
such Asset Disposition or received in any other noncash form) therefrom, in each
case net of:
(1) all legal, accounting, investment banking, title and
recording tax expenses, commissions and other fees and expenses
incurred, and all Federal, state, provincial, foreign and local taxes
required to be paid or accrued as a liability under GAAP, as a
consequence of such Asset Disposition;
(2) all payments made on any Indebtedness which is secured by any
assets subject to such Asset Disposition, in accordance with the terms
of any Lien upon or other security agreement of any kind with respect
to such assets, or which must by its terms, or in order to obtain a
necessary consent to such Asset Disposition, or by applicable law be
repaid out of the proceeds from such Asset Disposition;
(3) all distributions and other payments required to be made to
minority interest holders in Subsidiaries or joint ventures as a
result of such Asset Disposition; and
(4) appropriate amounts to be provided by the seller as a
reserve, in accordance with GAAP, against any liabilities associated
with the property or other assets disposed of in such Asset
Disposition and retained by the Borrower or any Restricted Subsidiary
after such Asset Disposition (but only for so long as such reserve is
maintained).
"Net Cash Proceeds" means, with respect to any issuance or sale of
Capital Stock, the cash proceeds of such issuance or sale net of attorneys'
fees, accountants' fees, underwriters' or placement agents' fees, listing fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Net Intercompany Items" means, in the case of any Subsidiary, (a) the
aggregate amount of the Intercompany Items owed by the Borrower or any other
Subsidiary to such Subsidiary minus (b) the aggregate amount of the Intercompany
Items owed by such Subsidiary to the Borrower or any other Subsidiary.
"North American Subsidiary" means any Subsidiary organized under the
laws of the United States or Canada or any of their respective states,
provinces, territories or possessions or any political subdivision of any
thereof.
27
"Obligations" means (a) the due and punctual payment of (i) the
principal of and interest (including interest accruing during the pendency of
any bankruptcy, insolvency, receivership or other similar proceeding, regardless
of whether allowed or allowable in such proceeding) on the Loans, when and as
due, whether at maturity, by acceleration, upon one or more dates set for
prepayment or otherwise and (ii) all other monetary obligations of the Credit
Parties to any of the Secured Parties under this Agreement and each of the other
Credit Documents, including fees, costs, expenses and indemnities, whether
primary, secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), and (b) the due and punctual performance of all
other obligations of the Credit Parties to any of the Secured Parties under this
Agreement and the other Credit Documents.
"Other Taxes" means any and all present or future stamp, documentary,
excise, recording, transfer, sales, property or similar taxes, charges or levies
arising from any payment made under any Credit Document or from the execution,
delivery or enforcement of, or otherwise with respect to, any Credit Document.
"Participant" has the meaning assigned to such term in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Business" means any business engaged in by the Borrower or
any Restricted Subsidiary on the Restatement Date and any Related Business.
"Permitted Investment" means an Investment by the Borrower or any
Restricted Subsidiary in:
(1) the Borrower, a Restricted Subsidiary or a Person that will,
upon the making of such Investment, become a Restricted Subsidiary;
(2) another Person if as a result of such Investment such other
Person is merged or consolidated with or into, or transfers or conveys
all or substantially all its assets to, the Borrower or a Restricted
Subsidiary;
(3) Temporary Cash Investments;
(4) receivables owing to the Borrower or any Restricted
Subsidiary if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms;
provided, however, that such trade terms may include such
concessionary trade terms as the Borrower or any such Restricted
Subsidiary deems reasonable under the circumstances;
(5) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as
expenses
28
for accounting purposes and that are made in the ordinary course of
business;
(6) loans or advances to employees made in the ordinary course of
business of the Borrower or such Restricted Subsidiary;
(7) stock, obligations or securities received in settlement of
disputes with customers or suppliers or debts (including pursuant to
any plan of reorganization or similar arrangement upon insolvency of a
debtor) created in the ordinary course of business and owing to the
Borrower or any Restricted Subsidiary or in satisfaction of judgments;
(8) any Person to the extent such Investment represents the non
cash portion of the consideration received for an Asset Disposition
that was made pursuant to and in compliance with Section 6.04;
(9) a Receivables Entity or any Investment by a Receivables
Entity in any other Person in connection with a Qualified Receivables
Transaction, including Investments of funds held in accounts permitted
or required by the arrangements governing such Qualified Receivables
Transaction or any related Indebtedness; provided, however, that any
Investment in a Receivables Entity is in the form of a Purchase Money
Note, contribution of additional receivables or an equity interest;
(10) any Person to the extent such Investments consist of prepaid
expenses, negotiable instruments held for collection and lease,
utility and workers' compensation, performance and other similar
deposits made in the ordinary course of business by the Borrower or
any Restricted Subsidiary;
(11) any Person to the extent such Investments consist of Hedging
Obligations otherwise permitted under Section 6.01;
(12) any Person to the extent such Investment in such Person
existed on the Restatement Date and any Investment that replaces,
refinances or refunds such an Investment, provided that the new
Investment is in an amount that does not exceed that amount replaced,
refinanced or refunded and is made in the same Person as the
Investment replaced, refinanced or refunded;
(13) advances to, and Guarantees for the benefit of, customers,
dealers or suppliers made in the ordinary course of business and
consistent with past practice; and
(14) any Person to the extent such Investment, when taken
together with all other Investments made pursuant to this clause (14)
and then outstanding on the date such Investment is made, does not
exceed the greater of (A) the sum of (i) $500,000,000 and (ii) any
amounts under
29
Section 6.02(a)(3)(iv)(x) that were excluded by operation of the
proviso in Section 6.02(a)(3)(iv) and which excluded amounts are not
otherwise included in Consolidated Net Income or intended to be
permitted under any of clauses (1) through (13) of this definition and
(B) 5.0% of Consolidated assets of the Borrower as of the end of the
most recent fiscal quarter for which financial statements of the
Borrower have been filed with the SEC.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV or Section 302 of
ERISA or Section 412 of the Code, and in respect of which the Borrower, any
Subsidiary or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Preferred Stock," as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated) that is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over shares of Capital Stock of any other class of such Person.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMCB (or any successor Administrative Agent appointed or
chosen pursuant to Article VIII hereof) as its prime rate in effect at its
principal office in New York City. Each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Priority Secured Indebtedness" means (i) First Lien Indebtedness,
(ii) Secured Indebtedness that is secured by Liens on the Collateral that are
not subordinated to the Liens securing the Obligations and (iii) Secured
Indebtedness to the extent secured by Liens on assets not included in the
Collateral, in the case of each of clauses (i) through (iii) limited to the
portion of such Indebtedness that is so secured.
"Pro Forma Senior Secured Leverage Ratio" means, as of the last day of
any period, the ratio, determined on a pro forma basis as described below, of
(a) Consolidated Net Secured Indebtedness as of such day to (b) EBITDA for such
period. All computations required to be made for purposes of determining the Pro
Forma Senior Secured Leverage Ratio at any time shall be made giving pro forma
effect to any incurrence, increase or reduction of Indebtedness or Consolidated
Net Secured Indebtedness, and any acquisition, Investment, Asset Disposition or
Specified Asset Sale, in each case occurring after the last day of the
applicable period and prior to such time of determination, and, to the extent
applicable, the historical earnings and cash flows associated with the assets
acquired or disposed of, in each case as if such transaction occurred on the
first day of the period in respect of which such computations are being
30
made, but shall not take into account any projected synergies or similar
benefits expected to be realized as a result of such event; provided that no
such acquisition, Investment, Asset Disposition or Specified Asset Sale shall be
reflected on a pro forma basis unless the aggregate consideration in respect
thereof has a fair value in excess of $250,000,000. In connection with such
computations, if the Incurrence of any Indebtedness is being given pro forma
effect and such Indebtedness bears a floating rate of interest, the interest
expense on such Indebtedness shall be calculated as if the rate in effect on the
date of determination had been the applicable rate for the entire period. Pro
forma computations shall be made in good faith by a Financial Officer of the
Borrower.
"Purchase Money Indebtedness" means Indebtedness:
(1) consisting of the deferred purchase price of property, plant
and equipment, conditional sale obligations, obligations under any
title retention agreement and other obligations Incurred in connection
with the acquisition, construction or improvement of such asset, in
each case where the amount of such Indebtedness does not exceed the
greater of (A) the cost of the asset being financed and (B) the Fair
Market Value of such asset; and
(2) Incurred to finance such acquisition, construction or
improvement by the Borrower or a Restricted Subsidiary of such asset;
provided, however, that such Indebtedness is Incurred within 180 days after such
acquisition or the completion of such construction or improvement.
"Purchase Money Note" means a promissory note of a Receivables Entity
evidencing a line of credit, which may be irrevocable, from the Borrower or any
Subsidiary of the Borrower to a Receivables Entity in connection with a
Qualified Receivables Transaction, which note:
(1) shall be repaid from cash available to the Receivables
Entity, other than:
(A) amounts required to be established as reserves;
(B) amounts paid to investors in respect of interest;
(C) principal and other amounts owing to such investors; and
(D) amounts paid in connection with the purchase of newly
generated receivables; and
(2) may be subordinated to the payments described in clause
(A).
31
"Qualified Receivables Transaction" means any transaction or series of
transactions that may be entered into by the Borrower or any of its Subsidiaries
pursuant to which the Borrower or any of its Subsidiaries may sell, convey or
otherwise transfer to:
(1) a Receivables Entity (in the case of a transfer by the
Borrower or any of its Subsidiaries); or
(2) any other Person (in the case of a transfer by a Receivables
Entity);
or may grant a security interest in, any accounts receivable (whether now
existing or arising in the future) of the Borrower or any of its Subsidiaries,
and any assets related thereto including, without limitation, all collateral
securing such accounts receivable, all contracts and all Guarantees or other
obligations in respect of such accounts receivable, proceeds of such accounts
receivable and other assets which are customarily transferred or in respect of
which security interests are customarily granted in connection with asset
securitization transactions involving accounts receivable; provided, however,
that the financing terms, covenants, termination events and other provisions
thereof shall be market terms (as determined in good faith by a Financial
Officer of the Borrower); and provided further, however, that no such
transaction or series of transactions shall be a Qualified Receivables
Transaction if any of the accounts receivable subject thereto is or would absent
such transaction or series of transactions otherwise be subject to a Lien
securing any U.S. Bank Indebtedness.
The grant of a security interest in any accounts receivable of the
Borrower or any of its Restricted Subsidiaries to secure Bank Indebtedness shall
not be deemed a Qualified Receivables Transaction.
"Reaffirmation Agreement" shall mean the Reaffirmation of Guarantee
and Security Documents substantially in the form of Exhibit F, among the Credit
Parties and the Collateral Agent, pursuant to which the Credit Parties shall
reaffirm their obligations under the Guarantee and Collateral Agreement and the
Security Documents to which they are a party.
"Receivables Entity" means a (a) Wholly Owned Subsidiary of the
Borrower which is a Restricted Subsidiary and which is designated by the Board
of Directors (as provided below) as a Receivables Entity or (b) another Person
engaging in a Qualified Receivables Transaction with the Borrower which Person
engages in the business of the financing of accounts receivable, and in either
of clause (a) or (b):
(1) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which
(A) is Guaranteed by the Borrower or any Subsidiary of the
Borrower (excluding Guarantees of obligations (other than the
principal of, and interest on, Indebtedness) pursuant to Standard
Securitization Undertakings);
32
(B) is recourse to or obligates the Borrower or any
Subsidiary of the Borrower in any way other than pursuant to
Standard Securitization Undertakings; or
(C) subjects any property or asset of the Borrower or any
Subsidiary of the Borrower, directly or indirectly, contingently
or otherwise, to the satisfaction thereof, other than pursuant to
Standard Securitization Undertakings;
(2) which is not an Affiliate of the Borrower or with which
neither the Borrower nor any Subsidiary of the Borrower has any
material contract, agreement, arrangement or understanding other than
on terms which the Borrower reasonably believes to be no less
favorable to the Borrower or such Subsidiary than those that might be
obtained at the time from Persons that are not Affiliates of the
Borrower; and
(3) to which neither the Borrower nor any Subsidiary of the
Borrower has any obligation to maintain or preserve such entity's
financial condition or cause such entity to achieve certain levels of
operating results.
Any such designation by the Board of Directors shall be evidenced to
the Administrative Agent by filing with the Administrative Agent a certified
copy of the resolution of the Board of Directors giving effect to such
designation and a certificate of a Financial Officer certifying that such
designation complied with the foregoing conditions.
"Reference Date" means March 12, 2004.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in exchange or replacement for, such Indebtedness, including,
in any such case from time to time, after the discharge of the Indebtedness
being Refinanced. "Refinanced" and "Refinancing" shall have correlative
meanings.
"Refinancing Indebtedness" means Indebtedness that is Incurred to
Refinance (including pursuant to any defeasance or discharge mechanism) any
Indebtedness of the Borrower or any Restricted Subsidiary existing on the
Restatement Date or Incurred in compliance with this Agreement (including
Indebtedness of the Borrower that Refinances Refinancing Indebtedness);
provided, however, that:
(1) the Refinancing Indebtedness has a Stated Maturity no earlier
than the Stated Maturity of the Indebtedness being Refinanced;
(2) the Refinancing Indebtedness has an Average Life at the time
such Refinancing Indebtedness is Incurred that is equal to or greater
than the Average Life of the Indebtedness being refinanced;
33
(3) such Refinancing Indebtedness is Incurred in an aggregate
principal amount (or if Incurred with original issue discount, an
aggregate issue price) that is equal to or less than the aggregate
principal amount of the Indebtedness being refinanced (or if issued
with original issue discount, the aggregate accreted value) then
outstanding (or that would be outstanding if the entire committed
amount of any credit facility being Refinanced were fully drawn (other
than any such amount that would have been prohibited from being drawn
pursuant to Section 6.01) (plus fees and expenses, including any
premium and defeasance costs);
(4) if the Indebtedness being Refinanced is subordinated in right
of payment to the Obligations, such Refinancing Indebtedness is
subordinated in right of payment to the Obligations at least to the
same extent as the Indebtedness being Refinanced; and
(5) if Incurred by the Borrower or any Domestic Subsidiary, the
Refinancing Indebtedness is not secured by Liens on any assets other
than the assets that secured the Indebtedness being refinanced, and
any such Liens have no greater priority than the Liens securing the
Indebtedness being refinanced;
provided further, however, that Refinancing Indebtedness shall not include:
(A) Indebtedness of a Restricted Subsidiary that is not a
Subsidiary Guarantor that Refinances Indebtedness of the
Borrower; or
(B) Indebtedness of the Borrower or a Restricted Subsidiary
that Refinances Indebtedness of an Unrestricted Subsidiary.
"Register" has the meaning set forth in Section 9.04.
"Related Business" means any business reasonably related, ancillary or
complementary to the business of the Borrower and its Restricted Subsidiaries on
the Restatement Date.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents,
counsel, trustees and other advisors of such Person and such Person's
Affiliates.
"Restatement Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Restatement Date Perfection Certificate" means a certificate in the
form of Exhibit G or any other form approved by the Collateral Agent.
34
"Restricted Payment" in respect of any Person means:
(1) the declaration or payment of any dividend, any distribution
on or in respect of its Capital Stock or any similar payment
(including any payment in connection with any merger or consolidation
involving the Borrower or any Restricted Subsidiary) to the direct or
indirect holders of its Capital Stock in their capacity as such,
except (A) dividends or distributions payable solely in its Capital
Stock (other than Disqualified Stock or, in the case of a Restricted
Subsidiary, Preferred Stock) and (B) dividends or distributions
payable to the Borrower or a Restricted Subsidiary (and, if such
Restricted Subsidiary has Capital Stock held by Persons other than the
Borrower or other Restricted Subsidiaries, to such other Persons on no
more than a pro rata basis);
(2) the purchase, repurchase, redemption, retirement or other
acquisition ("Purchase") for value of any Capital Stock of the
Borrower held by any Person (other than the Borrower or a Restricted
Subsidiary) or any Capital Stock of a Restricted Subsidiary held by
any affiliate of such Person (other than by a Restricted Subsidiary)
(other than in exchange for Capital Stock of the Borrower that is not
Disqualified Stock);
(3) the Purchase for value, prior to scheduled maturity, any
scheduled repayment or any scheduled sinking fund payment, of any
Subordinated Obligations (other than the Purchase for value of
Subordinated Obligations acquired in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in
each case due within one year of the date of such Purchase); or
(4) any Investment (other than a Permitted Investment) in any
Person.
"Restricted Subsidiary" means any Subsidiary of the Borrower other
than an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to
property, plant and equipment now owned or hereafter acquired by the Borrower or
a Restricted Subsidiary whereby the Borrower or a Restricted Subsidiary
transfers such property to a Person and the Borrower or such Restricted
Subsidiary leases it from such Person, other than (i) leases between the
Borrower and a Restricted Subsidiary or between Restricted Subsidiaries or (ii)
any such transaction entered into with respect to any property, plant and
equipment or any improvements thereto at the time of, or within 180 days after,
the acquisition or completion of construction of such property, plant and
equipment or such improvements (or, if later, the commencement of commercial
operation of any such property, plant and equipment), as the case may be, to
finance the cost of such property, plant and equipment or such improvements, as
the case may be.
"SEC" means the Securities and Exchange Commission.
35
"Second Lien Agreement" means this Agreement, the Amended and Restated
Second Lien Credit Agreement dated as of the date hereof, among the Borrower,
certain lenders and JPMCB, as administrative agent, as amended, restated,
supplemented, waived, replaced (whether or not upon termination, and whether
with the original lenders or otherwise), refinanced, restructured or otherwise
modified from time to time.
"Secured Indebtedness" means any Indebtedness of the Borrower secured
by a Lien. "Secured Indebtedness" of a Subsidiary has a correlative meaning.
"Secured Parties" means the Administrative Agent, the Collateral Agent
and each Lender.
"Security Documents" means the Reaffirmation Agreement, the Guarantee
and Collateral Agreement, the Foreign Pledge Agreements, the Canadian Security
Agreements, the Mortgages and each other instrument or document delivered
pursuant to Section 5.08 to secure any of the Obligations.
"Senior Indebtedness" of the Borrower or any Subsidiary Guarantor, as
the case may be, means the principal of, premium (if any) and accrued and unpaid
interest on (including interest accruing on or after the filing of any petition
in bankruptcy or for reorganization of the Borrower or any Subsidiary Guarantor,
as applicable, regardless of whether or not a claim for post-filing interest is
allowed in such proceedings), and fees and other amounts owing in respect of
Bank Indebtedness, Indebtedness under the 2006 Indenture (in the case of the
Borrower) and Guarantees thereof (in the case of the Subsidiary Guarantors) and
all other Indebtedness of the Borrower or any Subsidiary Guarantor, as
applicable, whether outstanding on the 2006 Indenture Closing Date or thereafter
Incurred, unless in the instrument creating or evidencing the same or pursuant
to which the same is outstanding it is provided that such obligations are
subordinated in right of payment to the Indebtedness under the 2006 Indenture or
such Subsidiary Guarantor's Guarantee thereof, as applicable; provided, however,
that Senior Indebtedness of the Borrower or any Subsidiary Guarantor shall not
include: (a) any obligation of the Borrower to any Subsidiary of the Borrower or
of such Subsidiary Guarantor to the Borrower or any other Subsidiary of the
Borrower; (b) any liability for Federal, state, local or other taxes owed or
owing by the Borrower or such Subsidiary Guarantor, as applicable; (c) any
accounts payable or other liability to trade creditors arising in the ordinary
course of business (including Guarantees thereof or instruments evidencing such
liabilities); (d) any Indebtedness or obligation of the Borrower (and any
accrued and unpaid interest in respect thereof) that by its terms is subordinate
or junior in right of payment to any other Indebtedness or obligation of the
Borrower or such Subsidiary Guarantor, as applicable, including any Subordinated
Obligations (as defined in the 2006 Indenture) of the Borrower or such
Subsidiary Guarantor, as applicable; (e) any obligations with respect to Capital
Stock; or (f) any Indebtedness Incurred in violation of this Agreement.
"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.
36
"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 that (a) is secured by Liens permitted under Section 6.06(b), but that
is not secured by Liens on any additional assets, (b) constitutes Initial Junior
Indebtedness or Designated Junior Obligations under and as defined in 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 restrictions of Schedule 1.01C. Each of the Borrower's 11% Senior
Secured Notes due 2011 and its Senior Secured Floating Rate Notes due 2011
issued on March 12, 2004, and the Indebtedness under the Third Lien Agreement
are Senior Subordinated-Lien Indebtedness.
"Senior Subordinated-Lien Indebtedness 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.
"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 Indebtedness Security
Documents (to the extent such amounts relate to such Senior Subordinated-Lien
Indebtedness) or the applicable Senior Subordinated-Lien Governing Documents.
"Specified Asset Sale" means (i) the sale of all or a substantial
portion of the assets and liabilities of the Borrower's Engineered Products
Division or (ii) the sale of all or a portion of the Borrower's properties in
Akron, Summit County, Ohio.
"Specified Jurisdiction" means The United States of America and
Canada.
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., or any successor thereto.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Borrower or any
Subsidiary of the Borrower which, taken as a whole, are customary in an accounts
receivable transaction.
"Stated Maturity" means, with respect to any Indebtedness, the date
specified in the documentation governing such Indebtedness as the fixed date on
which the final payment of principal of such Indebtedness is due and payable,
including pursuant to any mandatory redemption provision (but excluding any
provision providing for the repurchase of such Indebtedness at the option of the
holder thereof upon the
37
happening of any contingency beyond the control of the Borrower unless such
contingency has occurred). The "Stated Maturity" of the Obligations means the
Maturity Date.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject, with
respect to the Adjusted LIBO Rate, for Eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute Eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Subordinated Obligation" means any Indebtedness of the Borrower
(whether outstanding on the Restatement Date or thereafter Incurred) (a) that by
its terms is subordinate or junior in right of payment to the Obligations or (b)
that is not Secured Indebtedness or (c) that is secured subject to an agreement
subordinating its Liens to those securing the Obligations. For the avoidance of
doubt, "Subordinated Obligations" shall include the Senior Subordinated-Lien
Obligations and any unsecured Indebtedness of the Borrower and the Subsidiary
Guarantors (including the Borrower's 4% Convertible Senior Notes due 2034 and
Floating Rate Notes due 2009). "Subordinated Obligation" of a Subsidiary
Guarantor has a correlative meaning.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which are consolidated with those of the parent in
the parent's consolidated financial statements in accordance with GAAP as of
such date, as well as any other corporation, limited liability company,
partnership, association or other entity of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held by
the parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower (other than Tire &
Wheel Assemblies, Inc. at any time when not more than 50% of the Capital Stock
or 50% of the voting power are, as of such date, owned or Controlled by the
Borrower).
"Subsidiary Guarantor" means any Subsidiary that is, or is required
pursuant to Section 5.08 to become, a Guarantor (as defined in the Guarantee and
Collateral Agreement).
38
"Swap Agreement" means any agreement in respect of any Hedging
Obligations.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Temporary Cash Investments" means any of the following:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof, and having, at such date of acquisition,
ratings of A2 or higher from Standard & Poor's and P2 or higher from
Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
and issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by any commercial bank organized under the laws
of the United States of America or any state thereof which has a short-term
deposit rating of A1 from Standard & Poor's and P1 from Moody's and has a
combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution described in clause (c) above;
(e) money market funds that (i) comply with the criteria set forth in
SEC Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA
by Standard & Poor's and Aaa by Moody's and (iii) have portfolio assets of
at least $3,000,000,000;
(f) investments of the type and maturity described in clauses (b)
through (e) of foreign obligors, which investments or obligor have ratings
described in such clauses or equivalent ratings from comparable foreign
rating agencies (and with respect to clause (e), are not required to comply
with the Rule 2a-7 criteria);
(g) 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 any of the Credit Facilities
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
39
(h) in the case of any Foreign Subsidiary, (i) marketable direct
obligations issued or unconditionally guaranteed by the sovereign nation in
which such Foreign Subsidiary is organized and is conducting business or
issued by an agency of such sovereign nation and backed by the full faith
and credit of such sovereign nation, in each case maturing within one year
from the date of acquisition, so long as the indebtedness of such sovereign
nation is rated at least A by Standard & Poor's or A2 by Moody's or carries
an equivalent rating from a comparable foreign rating agency, and (ii)
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,
however, that the investments permitted under this subclause (ii) shall be
made in amounts and jurisdictions consistent with the Borrower's policies
governing short-term investments.
"Third Lien Agreement" means the Third Lien Credit Agreement dated as
of April 8, 2005, among the Borrower, certain Subsidiaries of the Borrower party
thereto, certain lenders and JPMCB, as administrative agent, as amended,
restated, supplemented, waived, replaced (whether or not upon termination, and
whether with the original lenders or otherwise), refinanced, restructured or
otherwise modified from time to time (except to the extent that any such
amendment, restatement, supplement, waiver, replacement, refinancing,
restructuring or other modification thereto would be prohibited by the terms of
this Agreement, unless otherwise agreed to by the Majority Lenders).
"Third Lien Collateral Agreement" means the Collateral Agreement dated
as of March 12, 2004, among the Borrower, the Subsidiaries of the Borrower
identified therein and Wilmington Trust Company, as collateral agent, as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein).
"Total Assets" of any Subsidiary means (a) in the case of any
Subsidiary organized in a Specified Jurisdiction, (i) the total assets of such
Subsidiary, excluding Intercompany Items, plus (ii) if the Net Intercompany
Items of such Subsidiary shall be positive, the amount of such Net Intercompany
Items; and (b) in the case of any other Subsidiary, the total assets of such
Subsidiary, excluding Intercompany Items.
"Trade Payables" means, with respect to any Person, any accounts
payable or any indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person arising in the ordinary course of business
in connection with the acquisition of goods or services.
"Transactions" means the execution, delivery and performance by the
Borrower of this Agreement and by the Borrower, the Subsidiary Guarantors and
the Grantors, as applicable, of the Reaffirmation Agreement and the other Credit
Documents, the borrowing of the Loans, the creation and the continuation of the
Liens and Guarantees provided for in the Security Documents and the other
transactions contemplated hereby.
40
"2003 MGCA" means the Master Guarantee and Collateral Agreement dated
as of March 31, 2003, among the Borrower, the subsidiary guarantors thereunder,
the subsidiary grantors thereunder, certain other Subsidiaries, certain
financial institutions, and the collateral agent thereunder.
"2006 Indenture Closing Date" means November 21, 2006.
"2006 Indenture" means the Indenture dated as of November 21, 2006,
between the Borrower and Wells Fargo Bank, N.A., as Trustee.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"UCC" means Article 9 of the Uniform Commercial Code as from time to
time in effect in the State of New York.
"Unrestricted Subsidiary" means:
(a) any Subsidiary of the Borrower that at the time of determination
shall be designated an Unrestricted Subsidiary by the Board of Directors in
the manner provided below and
(b) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary of the Borrower
(including any newly acquired or newly formed Subsidiary of the Borrower) to be
an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries
owns any Capital Stock or Indebtedness of, or owns or holds any Lien on any
property of, the Borrower or any other Subsidiary of the Borrower that is not a
Subsidiary of the Subsidiary to be so designated; provided, however, that
either:
(A) the Subsidiary to be so designated has total Consolidated
assets of $1,000 or less; or
(B) if such Subsidiary has total Consolidated assets greater than
$1,000, then such designation would be permitted under Section 6.02.
The Board of Directors may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided, however, that immediately after giving effect
to such designation:
(x) (1) the Borrower could Incur $1.00 of additional Indebtedness
under Section 6.01(a) or (2) the Consolidated Coverage Ratio for the Borrower
and its Restricted Subsidiaries would be greater after giving effect to such
designation than before such designation and
(2) no Default shall have occurred and be continuing.
41
Any such designation of a Subsidiary as a Restricted Subsidiary or Unrestricted
Subsidiary by the Board of Directors shall be evidenced to the Administrative
Agent by promptly filing the Administrative Agent a copy of the resolution of
the Board of Directors giving effect to such designation and a certificate of a
Financial Officer certifying that such designation complied with the foregoing
provisions.
"U.S. Bank Indebtedness" means any and all amounts payable under or in
respect of the U.S. Credit Agreements and any Refinancing Indebtedness with
respect thereto or with respect to such Refinancing Indebtedness, as amended
from time to time, including principal, premium (if any), interest (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Borrower whether or not a claim for post-filing
interest is allowed in such proceedings), fees, charges, expenses, reimbursement
obligations and all other amounts payable thereunder or in respect thereof.
"U.S. Credit Agreements" means (i) the First Lien Agreement and (ii)
the Second Lien Agreement, each as amended, restated, supplemented, waived,
replaced (whether or not upon termination, and whether with the original lenders
or otherwise), refinanced, restructured or otherwise modified from time to time
(except to the extent that any such amendment, restatement, supplement, waiver,
replacement, refinancing, restructuring or other modification thereto would be
prohibited by the terms of this Agreement, unless otherwise agreed to by the
Majority Lenders).
"U.S. Dollar Equivalent" means with respect to any monetary amount in
a currency other than dollars, at any time for determination thereof, the amount
of dollars obtained by converting such foreign currency involved in such
computation into dollars at the spot rate for the purchase of dollars with the
applicable foreign currency as published in The Wall Street Journal in the
"Exchange Rates" column under the heading "Currency Trading" on the date two
Business Days prior to such determination.
"Wholly Owned Subsidiary" of any Person shall mean a subsidiary of
such Person of which securities (except for directors' qualifying shares) or
other ownership interests representing 100% of the Capital Stock are, at the
time any determination is being made, owned, controlled or held by such Person
or one or more wholly owned Subsidiaries of such Person or by such Person and
one or more wholly owned Subsidiaries of such Person.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. [intentionally omitted]
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to
42
be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, but shall not be deemed to include the subsidiaries of such Person
unless express reference is made to such subsidiaries, (c) the words "herein",
"hereof" and "hereunder", and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, this Agreement, and (e) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Majority Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Restatement Date Transactions. Subject to the terms and
conditions set forth herein, (a) each Continuing Lender will continue as a
Lender under this Agreement holding on the Restatement Date, after giving effect
to the transactions provided for herein, a Loan in the amount set forth opposite
the name of such Lender on Schedule 2.01, and (b) each Lender having a
Commitment as set forth in Schedule 2.01 agrees to make a Loan to the Borrower
on the Restatement Date in a principal amount not exceeding its Commitment,
which amount will be applied to repay outstanding Loans of the Lenders under the
Existing Credit Agreement other than the Loans that continue under clause (a)
above to be held by the Continuing Lenders holding the same immediately prior to
the transactions provided for herein, with the result that each Lender will hold
on the Restatement Date, after giving effect to the transactions provided for
herein, a Loan in the amount set forth opposite its name on Schedule 2.01.
Amounts paid
43
or prepaid in respect of Loans may not be reborrowed. The Commitments of Lenders
shall expire at 5:00 p.m., New York City time, on the Restatement Date.
SECTION 2.02. Loans and Borrowings. (a) Each Loan outstanding on the
Restatement Date, after giving effect to the transactions provided for in
Section 2.01, shall be part of a Borrowing consisting of Loans held ratably by
the Lenders in accordance with the percentages that their respective Loans bear
to the aggregate principal amount of the outstanding Loans. The failure of any
Lender having a Commitment to make any Loan required to be made by it on the
Restatement Date shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to make Loans as
required.
(b) Subject to Section 2.10, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make, convert or continue any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make, convert or continue such Loan; provided that any exercise of
such option shall not affect the obligation of the Borrower to repay such Loan
in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. Borrowings of more
than one Type may be outstanding at the same time; provided that there shall not
at any time be more than a total of 20 Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Borrowing Procedure. To request a Borrowing on the
Restatement Date, the Borrower shall notify the Administrative Agent of such
request by telephone not later than 10:30 a.m., New York City time, on the
Restatement Date. Such telephonic Borrowing Request shall be irrevocable and
shall be confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written Borrowing Request signed by the Borrower. Such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the proposed Restatement Date, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing; and
(iv) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.04.
44
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Funding of Purchases. (a) Each Lender having a
Commitment shall make each Loan to be made by it hereunder on the Restatement
Date by wire transfer of immediately available funds by 12:30 p.m., New York
City time, to the account of the Administrative Agent most recently designated
by it for such purpose by notice to the Lenders. The Administrative Agent will
apply such amounts to pay Lenders under the Existing Credit Agreement the
aggregate principal amount of the Loans of such lenders that will not be
continued hereunder and held by the Continuing Lenders.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the Restatement Date that such Lender will not make available to
the Administrative Agent the funds required to be made available by such Lender
under Section 2.01, the Administrative Agent may assume that such Lender has
made such funds available on such date in accordance with paragraph (a) of this
Section and may, in reliance upon such assumption, repay Loans from Lenders
under the Existing Credit Agreement in a corresponding amount. In such event, if
a Lender has not in fact made its funds available to the Administrative Agent,
then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to the Borrower to but excluding the date of payment to the Administrative
Agent, at (i) in the case of such Lender, the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation or (ii) in the case of the
Borrower, the interest rate applicable to ABR Loans. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing. It is agreed that no payment by the
Borrower under this paragraph will be subject to any break-funding payment under
Section 2.12.
SECTION 2.05. Interest Elections. (a) Each Borrowing initially shall
be of the Type outstanding and, in the case of a Eurodollar Borrowing, shall
have the Interest Period in effect after giving effect to the transactions on
the Restatement Date. Thereafter, the Borrower may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in the case of
a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in
this Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate
Borrowing.
45
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone (a) in the case of
a Eurodollar Borrowing, not later than 3:00 p.m., New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case of an
ABR Borrowing, not later than 10:30 a.m., New York City time, on the date of the
proposed Borrowing. Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02 and 2.16(c):
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Majority Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
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SECTION 2.06. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Loan on the
Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the Indebtedness of the Borrower to such
Lender resulting from each Loan made or held by such Lender, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein (including any failure to record the making or repayment of any Loan)
shall not in any manner affect the obligation of the Borrower to repay the Loans
in accordance with the terms of this Agreement or prevent the Borrower's
obligations in respect of Loans from being discharged to the extent of amounts
actually paid in respect thereof.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) in
substantially the form set forth in Exhibit C hereto. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.07. Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to voluntarily prepay any Borrowing in
whole or in part, subject to paragraph (c) of this Section.
(b) For purposes of complying with Section 6.04(c)(ii) or for any
other reason, the Borrower may at any time make an offer to prepay Loans by
notifying the Administrative Agent by telephone (confirmed by telecopy) of (i)
the amount of the Loans subject to such prepayment offer and (ii) the date
(which shall not be sooner than five Business Days after the date on which such
notice is delivered) before which each Lender shall be entitled to elect, by
written notice to the Administrative Agent, to receive a prepayment of its Loan
in an amount equal to such Lender's ratable share of such
47
prepayment amount based on the respective outstanding Loans of the Lenders.
Promptly following receipt of any such notice from the Borrower, the
Administrative Agent shall advise the Lenders of such prepayment offer. Within
three Business Days of the Prepayment Election Date, the Borrower shall prepay
such Loans as the Lenders shall have elected to have prepaid in accordance with
the foregoing (and no prepayment shall be required in respect of amounts offered
to Lenders who did not elect to accept a prepayment).
(c) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment under paragraph (a) or (b) above (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 and (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. 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. 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 under paragraph (a) 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 2.09.
SECTION 2.08. Fees. The Borrower agrees to pay to the Administrative
Agent, for its own account, fees in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
SECTION 2.09. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate plus 0.75% per annum; provided
that at any time when the Borrower has effective corporate credit ratings of Ba3
or better from Moody's and BB- or better from Standard & Poor's, in each case
with at least stable outlook, the Loans comprising each ABR Borrowing shall bear
interest at the Alternate Base Rate plus 0.50% per annum.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus 1.75% per annum; provided that at any time when the Borrower has effective
corporate credit ratings of Ba3 or better from Moody's and BB- or better from
Standard & Poor's, in each case with at least stable outlook, the Loans
comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate plus 1.50% per annum.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2.00% plus
the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (ii) in the case of any
48
other amount, 2.00% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; provided that (i) interest accrued pursuant
to paragraph (c) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan, accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior
to the end of the current Interest Period therefor, accrued interest on such
Loan shall be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.10. Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Majority Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or any Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing. Each determination by the
Administrative Agent hereunder shall be conclusive absent manifest error.
SECTION 2.11. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate); or
49
(ii) impose on any Lender or the London interbank market any other
condition (other than Taxes) affecting this Agreement or Eurodollar Loans
made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan by an amount deemed by such
Lender to be material, then the Borrower will pay to such Lender such additional
amount or amounts as will compensate such Lender for such additional costs
incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital
requirements has had or would have the effect of reducing the rate of return on
such Lender's capital or on the capital of such Lender's holding company, if
any, in each case by an amount deemed by such Lender to be material, as a
consequence of this Agreement or the Loans made or held by such Lender, to a
level below that which such Lender or such Lender's holding company would have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower. The Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof, unless such amount is being
contested by the Borrower in good faith.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect thereof.
SECTION 2.12. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, continue
or prepay any Eurodollar Loan, or to convert any Loan to a Eurodollar Loan, on
the date specified in any notice delivered pursuant hereto, or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.15, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or
50
expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the eurodollar market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Borrower. The Borrower shall
pay such Lender the amount shown as due on any such certificate within 10 days
after receipt thereof, unless such amount is being contested by the Borrower in
good faith.
SECTION 2.13. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower or any other Credit Party hereunder or under any
other Credit Document shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided that if the Borrower or any other
Credit Party shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions of such Taxes (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent or Lender (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made (and the Borrower shall pay
or cause such Credit Party to pay such increased amount), (ii) the Borrower or
such other Credit Party shall make such deductions and (iii) the Borrower or
such other Credit Party shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) The Borrower shall indemnify the Administrative Agent and each
Lender, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower or any other Credit Party hereunder or under
any other Credit Document (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable out-of-pocket expenses arising therefrom or
with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender, or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(c) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower or any other Credit Party to a Governmental
Authority, the
51
Borrower shall deliver to the Administrative Agent the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such payment,
a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time such Foreign Lender first becomes
a party to this Agreement and at the time or times prescribed by applicable law,
such properly completed and executed documentation prescribed by applicable law
or reasonably requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate; provided that such Foreign Lender has
received written notice from the Borrower advising it of the availability of
such exemption or reduction and supplying all applicable documentation; and
provided further that no such written notice shall be required with respect to
the applicable IRS Form W-8 a Foreign Lender is required to deliver to the
Borrower to permit payments to be made without withholding of U.S. Federal
income tax (or at a reduced rate of U.S. withholding tax).
(f) Any Lender that is entitled to an exemption from withholding tax
under the law of any jurisdiction in which a Co-Borrower is located, or under
any treaty to which such jurisdiction is a party, with respect to payments under
this Agreement shall make reasonable efforts to deliver to Goodyear for the
account of the relevant Co-Borrower (with a copy to the Administrative Agent),
at the time such Lender first becomes a party to this Agreement and at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by Goodyear
as will permit such payments to be made without withholding or at a reduced
rate; provided that such Lender has received written notice from Goodyear
advising it of the availability of such exemption or reduction and supplying all
applicable documentation.
SECTION 2.14. Payments Generally; Pro Rata Treatment; Sharing of
Setoffs. (a) Except as required or permitted under Section 2.07, 2.11, 2.12,
2.13, 2.15 or 9.03, each Borrowing, each payment or prepayment of principal of
any Borrowing, each payment of interest on the Loans, each payment of fees and
each refinancing of any Borrowing with a Borrowing of any Type, shall be
allocated pro rata among the Lenders in accordance with the respective principal
amounts of their outstanding Loans. Each Lender agrees that in computing such
Lender's portion of any Borrowing to be made hereunder, the Administrative Agent
may, in its discretion, round each Lender's percentage of such Borrowing to the
next higher or lower whole dollar amount.
(b) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest or fees, or of amounts payable under
Section 2.11, 2.12 or 2.13 or otherwise) prior to 1:00 p.m., New York City time,
on the date when due, in immediately available funds, without setoff,
counterclaim or other deduction. Any amounts received after such time on any
date may, in the discretion of the
52
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent to the applicable account specified by
the Administrative Agent for the account of the applicable Lenders or, in any
such case, to such other account as the Administrative Agent shall from time to
time specify in a notice delivered to the Borrower, except that payments
pursuant to Sections 2.11, 2.12, 2.13, 2.15 and 9.03 shall be made directly to
the Persons entitled thereto. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person in appropriate
ratable shares to the appropriate recipient or recipients promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. All payments hereunder shall
be made in dollars. Any payment required to be made by the Administrative Agent
hereunder shall be deemed to have been made by the time required if the
Administrative Agent shall, at or before such time, have taken the necessary
steps to make such payment in accordance with the regulations or operating
procedures of the clearing or settlement system used by the Administrative Agent
to make such payment.
(c) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, towards payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
(d) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans. If any participations are purchased pursuant to the
preceding sentence and all or any portion of the payments giving rise thereto
are recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest. The provisions of
this paragraph shall not be construed to apply to any payment made by the
Borrower pursuant to and in accordance with the express terms of this Agreement
or any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans to any assignee or participant,
other than to the Borrower or any Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law and under
this Agreement, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of setoff
53
and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of the Borrower in the amount of such participation.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender, and to pay interest thereon for each day from and
including the date such amount shall have been distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(f) If any Lender shall fail to make any payment required to be made
by it hereunder for the account of the Administrative Agent or any Lender, then
the Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations in
respect of such payment until all such unsatisfied obligations are fully paid.
SECTION 2.15. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.11 or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.13, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.11 or 2.13, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.11, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.13,
or if any Lender shall become the subject of any insolvency or similar
proceeding or filing or default in its obligation to fund Loans hereunder, then
the Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably
54
be withheld, (ii) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans, accrued fees and all other amounts
payable to it hereunder, from the assignee or the Borrower, as the case may be,
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.11 or payments required to be made pursuant to
Section 2.13, such assignment will result in a reduction in such compensation or
payments.
SECTION 2.16. Co-Borrowers. (a) Goodyear shall have the right to
elect, for any reason, including a change in the tax laws of any relevant
jurisdiction, to designate a portion of the Loans as Co-Borrower Loans of either
Co-Borrower. In addition to the initial designation under this paragraph (a)
with respect to each Co-Borrower, Goodyear will have the ability on up to three
additional occasions during the term of this Agreement to designate additional
Loans as Co-Borrower Loans of a Co-Borrower or to designate Co-Borrower Loans of
a Co-Borrower as no longer being Co-Borrower Loans or as being Co-Borrower Loans
of the other Co-Borrower. Each such designation shall be effected by a written
notice to the Administrative Agent by Goodyear and the applicable Co-Borrower
(1) which shall specify (A) the aggregate amount of the Loans so designated and
(B) the Borrowing or Borrowings (or portions thereof) constituting such
Co-Borrower Loans, and (2) pursuant to which such Co-Borrower shall become
liable for all of the obligations of Goodyear in respect of such specified
Co-Borrower Loans and to be bound by the terms of this Agreement in respect of
such Co-Borrower Loans, including all obligations to repay principal, to pay
interest and to pay all other amounts from time to time due in respect of such
Co-Borrower Loans, provided that Goodyear shall remain liable, on a joint and
several basis with the Co-Borrower, for all obligations of the Co-Borrower in
respect of such Co-Borrower Loans. The aggregate amount of Co-Borrower Loans at
any time outstanding shall not exceed $800,000,000. If any designation under
this paragraph (a) results in the aggregate amount of Co-Borrower Loans
outstanding exceeding $800,000,000 such designation shall be considered to be in
error and shall be void to the extent of such excess. Such excess amount shall
not constitute a Co-Borrower Loan or be part of or comprise Co-Borrower Loans
and the principal amount of the Co-Borrower Loan to which such designation
relates shall be restored to the amount permitted hereunder, and the amount to
which the designation relates shall be reduced to the extent necessary such that
the aggregate amount of Co-Borrower Loans outstanding shall equal, and as
intended not exceed, $800,000,000 (and such excess shall be a Borrowing pursuant
to which Goodyear is the sole Borrower hereunder). No designation under this
paragraph (a) may be given pursuant to which Goodyear Canada becomes a
co-obligor with respect to any Co-Borrower Loans unless Goodyear has delivered a
Canadian Tax Opinion to the Administrative Agent at the time of such
designation.
(b) Goodyear shall be jointly and severally liable in respect of each
Co-Borrower Loan to the same extent as if it were the sole borrower in respect
of such Loan. Goodyear's obligations in respect of the Co-Borrower Loans shall
continue in full force and effect and shall not be affected for any reason
whatsoever by the Incurrence of any Co-Borrower Loan by either Co-Borrower,
including by any defect in the power or authority of a Co-Borrower to Incur a
Co-
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Borrower Loan, by any failure of a Co-Borrower to have obtained any consent or
other approval required for it to Incur a Co-Borrower Loan, by any default or
breach by a Co-Borrower of or under any agreement or any law or regulation or
any provision of any organizational document, or by any failure of a Co-Borrower
Loan to be enforceable against a Co-Borrower for any reason whatsoever.
(c) The Co-Borrower Loans of each Co-Borrower shall consist of
separate Borrowings identified by Goodyear as Borrowings comprised of such
Co-Borrower Loans and such Loans shall not be included in any Borrowing
comprised of Co-Borrower Loans of the other Co-Borrower or in any Borrowing that
is not comprised of Co-Borrower Loans. Each Interest Election Request delivered
when any Co-Borrower Loans are outstanding shall specify whether the Borrowing
or Borrowings referred to therein are comprised of Co-Borrower Loans of a
Co-Borrower and, if so, the applicable Co-Borrower.
(d) Prepayments of Loans under Section 2.07 may be allocated among the
Co-Borrower Loans and the other Loans as Goodyear shall elect pursuant to the
applicable notice delivered under Section 2.07(c).
(e) References to the taking of any action by the Borrower in respect
of any Co-Borrower Loan shall be deemed to include references to Goodyear or the
applicable Co-Borrower taking such action and the Agents are expressly
authorized to accept any such action taken by Goodyear or the applicable
Co-Borrower as having the same effect as if taken by Goodyear in respect of a
Loan that is not a Co-Borrower Loan.
(f) For purposes of disclosure pursuant to the Interest Act (Canada),
the annual rates of interest or fees to which the rates of interest or fees
provided in this Agreement and the other Credit Documents (and stated herein or
therein, as applicable, to be computed on the basis of any period of time less
than a calendar year) are equivalent to the rates so determined multiplied by
the actual number of days in the applicable calendar year and divided by 360 or
365, as applicable, or such other period of time, respectively.
(g) Judgment Currency. (i) The obligations of each Co-Borrower
hereunder and under the other Credit Documents to make payments in Dollars (the
"Obligation Currency"), shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment expressed in or converted into any currency
other than the Obligation Currency, except to the extent that such tender or
recovery results in the effective receipt by the Administrative Agent or a
Lender of the full amount of the Obligation Currency expressed to be payable to
the Administrative Agent or Lender under this Agreement or the other Credit
Documents. If, for the purpose of obtaining or enforcing judgment against a
Co-Borrower in any court or in any jurisdiction, it becomes necessary to convert
into or from any currency other than the Obligation Currency (such other
currency being hereinafter referred to as the "Judgment Currency") an amount due
in the Obligation Currency, the conversion shall be made, at the rate of
exchange prevailing, in each case, as of the date immediately preceding the day
on which the judgment is given (such Business Day being hereinafter referred to
as the "Judgment Currency Conversion Date").
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(ii) If there is a change in the rate of exchange prevailing between
the Judgment Currency Conversion Date and the date of actual payment of the
amount due, the applicable Co-Borrower and Goodyear each jointly and severally
covenant and agree to pay, or cause to be paid, such additional amounts, if any
(but in any event not a lesser amount), as may be necessary to ensure that the
amount paid in the Judgment Currency, when converted at the rate of exchange
prevailing on the date of payment, will produce the amount of the Obligation
Currency which could have been purchased with the amount of Judgment Currency
stipulated in the judgment or judicial award at the rate of exchange prevailing
on the Judgment Currency Conversion Date.
(iii) For purposes of determining the prevailing rate of exchange,
such amounts shall include any premium and costs payable in connection with the
purchase of the Obligation Currency.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent and
the Lenders that:
SECTION 3.01. Organization; Powers. The Borrower and each of the other
Credit Parties is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, would not be reasonably
likely to result in a Material Adverse Change, is qualified to do business, and
is in good standing, in every jurisdiction where such qualification is required.
Each Subsidiary of the Borrower other than the Credit Parties is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and is qualified to do business, and is in good standing, in every
jurisdiction where such qualification is required, except for failures that,
individually or in the aggregate, would not be materially likely to result in a
Material Adverse Change.
SECTION 3.02. Authorization; Enforceability. The Transactions to be
entered into by each Credit Party are within such Credit Party's powers and have
been duly authorized. This Agreement has been duly executed and delivered by the
Borrower and constitutes, and each other Credit Document to which any Credit
Party is or is to be a party constitutes or, when executed and delivered by such
Credit Party, will constitute, a legal, valid and binding obligation of the
Borrower or such Credit Party, as the case may be, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, 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.
SECTION 3.03. Governmental Approvals; No Conflicts. (a) Except to the
extent that no Material Adverse Change would be materially likely to result, the
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Transactions (i) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
are required to perfect Liens created under the Security Documents and such as
have been obtained or made and are in full force and effect, (ii) do not and
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of the Borrower or any of the Subsidiaries or any
order of any Governmental Authority, (iii) do not and will not violate or result
in a default under any indenture, agreement or other instrument binding upon the
Borrower or any of the Subsidiaries or any of their assets, and (iv) do not and
will not result in the creation or imposition of any Lien on any asset of the
Borrower or any of the Subsidiaries, except Liens created under the Credit
Documents.
(b) The incurrence, continuation or purchase of each Loan, each
Guarantee thereof under the Credit Documents and each Lien securing any of the
Obligations, is permitted under the Junior Lien Indenture and each other
indenture or other agreement governing any Senior Subordinated-Lien Indebtedness
in effect at the time of such incurrence, and the Loans and Guarantees thereof
under the Credit Documents constitute Designated Senior Obligations under the
Lien Subordination and Intercreditor Agreement.
SECTION 3.04. Financial Statements; No Material Adverse Change. (a)
The Borrower has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, stockholders' equity and cash flows as of and
for the fiscal year ended December 31, 2006. Such financial statements present
fairly, in all material respects, the consolidated financial position and
consolidated results of operations and cash flows of the Borrower and its
Consolidated Subsidiaries as of such date and for such fiscal year in accordance
with GAAP.
(b) Except as disclosed in the Disclosure Documents, since December
31, 2006, there has been no event or condition that constitutes or would be
materially likely to result in a Material Adverse Change, it being agreed that a
reduction in any rating relating to the Borrower issued by any rating agency
shall not, in and of itself, be an event or condition that constitutes or would
be materially likely to result in a Material Adverse Change (but that events or
conditions underlying or resulting from any such reduction may constitute or be
materially likely to result in a Material Adverse Change).
SECTION 3.05. Litigation and Environmental Matters. (a) Except as set
forth in the Disclosure Documents, there are no actions, suits or proceedings by
or before any arbitrator or Governmental Authority pending or, to the knowledge
of the Borrower, threatened against or affecting the Borrower or any of the
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that if adversely determined would be materially likely,
individually or in the aggregate, to result in a Material Adverse Change or (ii)
as of the Restatement Date, that involve the Credit Documents or the
Transactions.
(b) Except as set forth in the Disclosure Documents, and except with
respect to matters that, individually or in the aggregate, would not be
materially likely to result in a Material Adverse Change, neither the Borrower
nor any of the Subsidiaries
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(i) has failed to comply with any Environmental Law or to obtain, maintain or
comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.
SECTION 3.06. Compliance with Laws and Agreements. The Borrower and
each of the Subsidiaries is in compliance with all laws, regulations and orders
of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to be in compliance, individually or in the aggregate,
would not be materially likely to result in a Material Adverse Change. No Event
of Default has occurred and is continuing.
SECTION 3.07. Investment Company Status. Neither the Borrower nor any
of the Subsidiaries is an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended.
SECTION 3.08. ERISA and Canadian Pension Plans. (a) Except as
disclosed in the Disclosure Documents, no ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other ERISA
Events that have occurred or are reasonably expected to occur, would be
materially likely to result in a Material Adverse Change.
(b) Except as would not be materially likely to result in a Material
Adverse Change, (i) the Canadian Pension Plans are duly registered under the
Income Tax Act (Canada) and all other applicable laws which require registration
and no event has occurred which is reasonably likely to cause the loss of such
registered status; (ii) all material obligations of each Credit Party (including
fiduciary, funding, investment and administration obligations) required to be
performed in connection with the Canadian Pension Plans and the funding
agreements therefor have been performed in a timely fashion; (iii) to the
knowledge of the Credit Parties there have been no improper withdrawals of the
assets of the Canadian Pension Plans or the Canadian Benefit Plans; (iv) there
are no outstanding material disputes concerning the assets of the Canadian
Pension Plans or the Canadian Benefit Plans; and (v) each of the Canadian
Pension Plans is being funded in accordance with the actuarial valuation reports
last filed with the applicable Governmental Authorities and which are consistent
with generally accepted actuarial principles.
SECTION 3.09. Disclosure. None of the reports, financial statements,
certificates or other written information referred to in Section 3.04 or
delivered after the date hereof by or on behalf of any Credit Party to the
Administrative Agent, the Collateral Agent or any Lender pursuant to Section
5.01 (taken together with all other information so furnished and as modified or
supplemented by other information so furnished) contained or will contain, in
each case as of the date delivered, any material misstatement of fact or omitted
or will omit to state, in each case as of the date delivered, any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect
59
to projected financial information or other forward looking information, the
Borrower represents only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time.
SECTION 3.10. Security Interests. (a) Each of the Guarantee and
Collateral Agreement, the Reaffirmation Agreement and the Canadian Security
Agreements is or, when executed and delivered, will be, effective to create or
continue in favor of the Collateral Agent for the benefit of the Secured Parties
a valid and enforceable security interest in the Collateral, to the extent
contemplated by the Guarantee and Collateral Agreement, the Reaffirmation
Agreement or the Canadian Security Agreements, as the case may be, and (i) when
the Collateral constituting certificated securities (as defined in the
applicable Uniform Commercial Code) was or is delivered to the Collateral Agent
(or its sub-agent for perfection) thereunder, together with instruments of
transfer duly endorsed in blank, the Guarantee and Collateral Agreement created
or will create, to the extent contemplated by the Guarantee and Collateral
Agreement, a perfected security interest in all right, title and interest of the
Grantors in such certificated securities to the extent perfection is governed by
the applicable Uniform Commercial Code as in effect in any applicable
jurisdiction, subject to no other Lien other than Liens permitted under Section
6.06 that take priority over security interests in certificated securities
perfected by the possession of such securities under the Uniform Commercial Code
as in effect in the applicable jurisdiction, and (ii) when financing statements
in appropriate form were or are filed, and any other applicable registrations
were or are made, in the offices specified in the Restatement Date Perfection
Certificate, the Guarantee and Collateral Agreement, the Reaffirmation Agreement
and the Canadian Security Agreements created or will create or continue a
perfected security interest (or hypothec, as applicable) in all right, title and
interest of the Grantors in the remaining Collateral to the extent perfection
can be obtained by filing Uniform Commercial Code financing statements and
making such other applicable filings and registrations in such jurisdictions,
subject to no other Lien other than Liens permitted under Section 6.06. The
exclusion of the Consent Assets (as defined in the Guarantee and Collateral
Agreement) from the Collateral does not materially reduce the aggregate value of
the Collateral.
(b) Each Mortgage creates or, upon execution and delivery by the
parties thereto, will create in favor of the Collateral Agent, for the benefit
of the Secured Parties, a legal, valid and enforceable Lien on all the
applicable mortgagor's right, title and interest in and to the Mortgaged
Properties subject thereto and the proceeds thereof, and the Mortgages create
or, when the Mortgages have been filed or registered in the counties specified
in Schedule 3.10(b), will create perfected Liens on all right, title and
interest of the mortgagors in the Mortgaged Properties and the proceeds thereof,
prior and superior in right to Liens in favor of any other Person (other than as
provided in the Lenders Lien Subordination and Intercreditor Agreement and other
than Liens or other encumbrances for which exceptions are taken in the policies
of title insurance delivered in respect of the Mortgaged Properties on or prior
to the Restatement Date and Liens permitted under Section 6.06).
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(c) The Guarantee and Collateral Agreement currently on file with the
United States Patent and Trademark Office and the Canadian Security Agreements
currently on file with the Canadian Intellectual Property Office, create in
favor of the Collateral Agent, for the benefit of the Secured Parties, a
perfected Lien on all right, title and interest of the Grantors in the Material
Intellectual Property in which a security interest may be perfected by such
recordation in the United States Patent and Trademark Office or the Canadian
Intellectual Property Office, as the case may be, in each case (i) prior and
superior in right to any other Person and (ii) subject to no other Lien other
than, in the case of (i) and (ii), as provided in the Lenders Lien Subordination
and Intercreditor Agreement and other than Liens permitted under Section 6.06
(it being understood that subsequent recordings in the United States Patent and
Trademark Office or the Canadian Intellectual Property Office, as the case may
be, may be necessary to perfect a Lien on registered trademarks and trademark
applications acquired by the Grantors after the Restatement Date). As of the
Restatement Date, Schedule 3.10(c) sets forth all the Material Intellectual
Property.
(d) The Guarantee and Collateral Agreement currently on file with the
Federal Aviation Administration creates in favor of the Collateral Agent, for
the benefit of the Secured Parties, a perfected Lien on all right, title and
interest of the Grantors in the Aircraft Collateral (as defined in the Guarantee
and Collateral Agreement) in which a security interest may be perfected by such
recordation with the Federal Aviation Administration, in each case, other than
as provided in the Lenders Lien Subordination and Intercreditor Agreement, prior
and superior in right to any other Person, subject to no other Lien other than
Liens permitted under Section 6.06.
(e) None of the Restatement Date Perfection Certificate or any other
written information relating to the Collateral delivered after the date hereof
by or on behalf of any Credit Party to the Administrative Agent, the Collateral
Agent or any Lender pursuant to any provision of any Credit Document is or will
be incorrect when delivered in any respect material to the rights or interests
of the Lenders under the Credit Documents.
SECTION 3.11. Use of Proceeds. The proceeds of the Loans will be used
only for the purposes referred to in the preamble to this Agreement. No part of
the proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations T, U and X.
ARTICLE IV
Conditions
SECTION 4.01. Restatement Date. This Agreement shall not become
effective until the date on which each of the following conditions is satisfied
(or waived or deferred in accordance with Section 9.02 or the penultimate
paragraph of this Section 4.01):
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(a) The Administrative Agent (or its counsel) shall have received from
the Borrower, the Administrative Agent and each Lender either (i) counterparts
of this Agreement signed on behalf of each such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that each such party
has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received favorable written
opinions (addressed to the Administrative Agent and the Lenders and dated the
Restatement Date) of (i) Covington & Burling LLP, counsel for the Borrower,
substantially in the form of Exhibit E-1, and (ii) the General Counsel, the
Associate General Counsel or an Assistant General Counsel of the Borrower,
substantially in the form of Exhibit E-2, and covering such other matters
relating to the Credit Parties, the Credit Documents or the Transactions as the
Administrative Agent or the Majority Lenders shall reasonably request.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of each Credit Party,
the authorization by the Credit Parties of the Transactions and any other legal
matters relating to the Borrower, the other Credit Parties, the Credit Documents
or the Transactions, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.
(d) The Obligations shall have been designated by the Borrower as, and
shall be, "Designated Senior Obligations" under the Lien Subordination and
Intercreditor Agreement.
(e) The amendment and restatement of the First Lien Agreement shall
have become effective or shall concurrently become effective in substantially
the form thereof most recently posted to IntraLinks prior to the date hereof
with only such changes thereto as shall not be adverse to the Lenders in any
material respect and shall have been approved by the Administrative Agent. All
conditions to the effectiveness of the amendment and restatement of the First
Lien Agreement shall have been satisfied. The Collateral Agent and the
collateral agent under the First Lien Agreement shall have reaffirmed
application the Lenders Lien Subordination and Intercreditor Agreement in
respect of the Obligations and the obligations under the amended and restated
First Lien Agreement.
(f) The representations and warranties set forth in Article III and in
the other Credit Documents (insofar as the representations and warranties in
such other Credit Documents relate to the transactions provided for herein or to
the Collateral securing the Obligations) shall be true and correct in all
material respects on the Restatement Date and the Administrative Agent shall
have received a certificate signed by a Financial Officer to the effect that the
representations and warranties set forth in Article III shall be true and
correct in all material respects on the Restatement Date.
(g) The Borrower and the other Credit Parties shall be in compliance
with all the terms and provisions set forth herein and in the other Credit
Documents in all
62
material respects on their part to be observed or performed, and at the time of
and immediately after the Restatement Date, no Default shall have occurred and
be continuing, and the Administrative Agent shall have received a certificate
signed by a Financial Officer to that effect.
(h) The Administrative Agent shall have received all fees and other
amounts due and payable or accrued on or prior to the Restatement Date hereunder
or under the Existing Credit Agreement, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to be reimbursed
or paid by the Borrower hereunder.
(i) The Administrative Agent shall have received (i) a completed
Restatement Date Perfection Certificate dated the Restatement Date and signed by
a Financial Officer, together with all attachments contemplated thereby, and
(ii) the results of a search of the Uniform Commercial Code (or equivalent)
filings or registrations made with respect to the Credit Parties in the
jurisdictions referred to in paragraph 1 of the Restatement Date Perfection
Certificate and copies of the financing statements (or similar documents)
disclosed by such search.
(j) The Administrative Agent shall have received from the Borrower and
each Domestic Subsidiary (other than the Excluded Subsidiaries and the Consent
Subsidiaries) a counterpart of the Reaffirmation Agreement duly executed and
delivered on behalf of the Borrower or such Subsidiary as a Guarantor and (in
the case of each Subsidiary that is a Grantor under the Guarantee and Collateral
Agreement or a Canadian Grantor under any Canadian Security Agreement) a
Grantor.
(k) The Collateral Agent (or its sub-agent for perfection) shall have
received certificates representing all Capital Stock (other than any
uncertificated Capital Stock) pledged pursuant to the Guarantee and Collateral
Agreement, together with undated stock powers or other instruments of transfer
with respect thereto endorsed in blank.
(l) All Uniform Commercial Code financing statements or other personal
property security filings and recordations with the United States Patent and
Trademark Office, the Canadian Intellectual Property Office and the Federal
Aviation Administration required by law or reasonably requested by the
Collateral Agent to be filed or recorded to perfect or continue the Liens
intended to be created on the Collateral (to the extent such Liens may be
perfected or continued by filings under the Uniform Commercial Code as in effect
in any applicable jurisdiction or by filings or registrations under applicable
Canadian personal property security legislation or by filings with the United
States Patent and Trademark Office or the Federal Aviation Administration) shall
have been filed or recorded or delivered to the Collateral Agent for filing or
recording.
(m) The Collateral Agent shall have received (i) counterparts of an
amended and restated Mortgage with respect to each Mortgaged Property, duly
executed and delivered by the record owner of such Mortgaged Property, (ii)
endorsements issued by the applicable nationally recognized title insurance
company to each applicable policy
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of title insurance insuring the Lien of each such Mortgage as amended and
restated as a valid first Lien on the Mortgaged Property described therein, free
of any other Liens (other than Liens referred to in such policies of title
insurance and acceptable to the Administrative Agent and Liens permitted by
Section 6.06), together with such other endorsements as the Collateral Agent or
the Majority Lenders may reasonably request, and (iii) such legal opinions and
other documents as shall reasonably have been requested by the Collateral Agent
with respect to any such amended and restated Mortgage or Mortgaged Property.
(n) The Administrative Agent shall have received from each "Deposit
Account Institution" that is required to be party to a "Lockbox Agreement" (as
such terms are defined in the Guarantee and Collateral Agreement) evidence that
such agreement has been duly executed by all requisite parties and has become
effective.
The Collateral Agent may enter into agreements with the Borrower to
grant extensions of time for the perfection of security interests in or the
delivery of surveys, title insurance, legal opinions or other documents with
respect to particular assets where it determines that perfection cannot be
accomplished or such documents cannot be delivered without undue effort or
expense by the Restatement Date or any later date on which they are required to
be accomplished or delivered under this Agreement or the Security Documents. Any
failure of the Borrower to satisfy a requirement of any such agreement by the
date specified therein (or any later date to which the Collateral Agent may
agree) shall constitute a breach of the provision of this Agreement or the
Security Document under which the original requirement was applicable. Without
limiting the foregoing, it is anticipated that the actions listed on Schedule
4.01 will not have been completed by the Restatement Date, and the Borrower
covenants and agrees that each of such actions will be completed by the date
specified for such action in such Schedule 4.01 (or any later date to which the
Collateral Agent may agree) and that the Borrower will comply with all of the
undertakings set forth in Schedule 4.01.
The Administrative Agent shall notify the Borrower and the Lenders of
the Restatement Date in writing, and such notice shall be conclusive and
binding. Notwithstanding the foregoing, the obligations of the Lenders to
purchase Loans hereunder shall not become effective unless each of the foregoing
conditions shall have been satisfied (or waived pursuant to Section 9.02) at or
prior to 5:00 p.m., New York City time, on April 30, 2007 (and, in the event
such conditions are not so satisfied or waived, the Commitments shall terminate
at such time).
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ARTICLE V
Affirmative Covenants
Until the Commitments shall have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Borrower covenants and agrees with the Administrative
Agent and the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The Borrower
will furnish to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 110 days after the
end of each fiscal year of the Borrower, its audited consolidated balance
sheet and related statements of income, stockholders' equity and cash flows
as of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on
by PricewaterhouseCoopers or other independent public accountants of
recognized national standing (without any qualification or exception as to
the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition
and results of operations of the Borrower and its Consolidated Subsidiaries
in accordance with GAAP consistently applied;
(b) as soon as available and in any event within 60 days after the end
of each of the first three fiscal quarters of each fiscal year of the
Borrower, its consolidated balance sheet and related statements of income,
stockholders' equity and cash flows as of the end of and for such fiscal
quarter and the then elapsed portion of the fiscal year, setting forth in
each case in comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its Consolidated Subsidiaries in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) other than in connection with the delivery of financial statements
for the fiscal period ended March 31, 2007, not later than one Business Day
after each delivery of financial statements under clause (a) or (b) above,
a certificate of a Financial Officer (i) certifying as to whether a Default
has occurred and, if a Default has occurred, specifying the details thereof
and any action taken or proposed to be taken with respect thereto, and (ii)
stating whether any change in GAAP or in the application thereof has
occurred since the date of the most recent audited financial statements
delivered under clause (a) above (or, prior to the delivery of any such
financial statements, since December 31, 2006) and, if any such change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate;
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(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the SEC, or any Governmental Authority
succeeding to any or all of the functions of the SEC, or with any national
securities exchange, or distributed by the Borrower to its shareholders
generally, as the case may be;
(e) other than in connection with the delivery of financial statements
for the fiscal period ended March 31, 2007, not later than one Business Day
after each delivery of financial statements under clause (a) or (b) above,
and at such other times as the Borrower may determine, a certificate of a
Financial Officer identifying each Domestic Subsidiary formed or acquired
after the Restatement Date and not previously identified in a certificate
delivered pursuant to this paragraph, stating whether each such Domestic
Subsidiary is a Consent Subsidiary and describing the factors that shall
have led to the identification of any such Domestic Subsidiary as a Consent
Subsidiary;
(f) from time to time, all information and documentation required to
be delivered under Section 4.04 of the Guarantee and Collateral Agreement;
(g) other than in connection with the delivery of financial statements
for the fiscal period ended March 31, 2007, not later than one Business Day
after each delivery of financial statements under clause (a) or (b) above,
a certificate of a Financial Officer of the Borrower certifying that the
requirements of Section 5.08 have been satisfied in all material respects;
and
(h) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of this Agreement
or the other Credit Documents, or the perfection of the security interests
created by the Security Documents, as the Administrative Agent or any
Lender may reasonably request.
Information required to be delivered pursuant to this Section 5.01
shall be deemed to have been delivered if such information, or one or more
annual or quarterly reports containing such information, shall have been posted
by the Administrative Agent on an IntraLinks or similar site to which the
Lenders have been granted access or shall be available on the website of the SEC
at http://www.sec.gov; provided that the Borrower shall deliver paper copies of
such information to any Lender that requests such delivery. Information required
to be delivered pursuant to this Section 5.01 may also be delivered by
electronic communications pursuant to procedures approved by the Administrative
Agent.
SECTION 5.02. Notices of Defaults. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the occurrence of
any Default, together with a statement of a Financial Officer or other executive
officer of the
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Borrower setting forth the details of the event or development requiring such
notice and any action taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and
will cause each of the Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business, except to the extent that failures to keep in
effect such rights, licenses, permits, privileges and franchises would not be
materially likely, individually or in the aggregate for all such failures, to
result in a Material Adverse Change; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 6.08.
SECTION 5.04. Maintenance of Properties. The Borrower will, and will
cause each of the Subsidiaries to, keep and maintain all its property in good
working order and condition, ordinary wear and tear excepted, except to the
extent any failure to do so would not, individually or in the aggregate, be
materially likely to result in a Material Adverse Change (it being understood
that the foregoing shall not prohibit any sale of any assets permitted by
Section 6.04).
SECTION 5.05. Books and Records; Inspection and Audit Rights. The
Borrower will, and will cause each of the Subsidiaries to, keep books of record
and account sufficient to enable the Borrower to prepare the financial
statements and other information required to be delivered under Section 5.01.
The Borrower will, and will cause each of the Subsidiaries to, permit any
representatives designated by the Administrative Agent (or by any Lender acting
through the Administrative Agent), upon reasonable prior notice, to visit and
inspect its properties (accompanied by a representative of the Borrower) and to
discuss its affairs, finances and condition with its officers, all at such
reasonable times and as often as reasonably requested.
SECTION 5.06. Compliance with Laws. The Borrower will, and will cause
each of the Subsidiaries to, comply with all laws, including Environmental Laws,
rules, regulations and orders of any Governmental Authority applicable to it or
its property, except where the failure to do so, individually or in the
aggregate, would not be materially likely to result in a Material Adverse
Change.
SECTION 5.07. Insurance. The Borrower will, and will cause each of the
Subsidiaries to, maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks as are customary
among companies of established reputation engaged in the same or similar
businesses and operating in the same or similar locations, except to the extent
the failure to do so would not be materially likely to result in a Material
Adverse Change. The Borrower will furnish to the Administrative Agent or any
Lender, upon request, information in reasonable detail as to the insurance so
maintained.
SECTION 5.08. Guarantees and Collateral. (a) In the event that there
shall at any time exist any North American Subsidiary (other than an Excluded
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Subsidiary or Consent Subsidiary) that shall not be a party to the Guarantee and
Collateral Agreement or the Canadian Security Agreements, as the case may be,
the Borrower will promptly notify the Collateral Agent (including in such notice
the information that would have been required to be set forth with respect to
such Subsidiary in the Restatement Date Perfection Certificate if such
Subsidiary had been one of the Grantors listed therein) and will, within 30 days
(or such longer period as may be reasonable under the circumstances) after such
notification, deliver to the Collateral Agent a supplement to the Guarantee and
Collateral Agreement or the Canadian Security Agreements, as the case may be, in
substantially the form specified therein, duly executed and delivered on behalf
of such North American Subsidiary, pursuant to which such North American
Subsidiary will become a party to the Guarantee and Collateral Agreement and a
Subsidiary Guarantor and, if it elects to become a Grantor or if its Total
Assets are greater than $10,000,000 as of December 31, 2006, or if later, as of
the end of the most recent fiscal quarter for which financial statements have
been delivered pursuant to Section 5.01(a) or (b), a Grantor, in each case as
defined in the Guarantee and Collateral Agreement.
(b) In the event that the Borrower or any other Grantor shall at any
time directly own any Capital Stock of any Subsidiary (other than (i) Capital
Stock in any Subsidiary with Total Assets not greater than $10,000,000 as of
December 31, 2006, or if later, as of the end of the most recent fiscal quarter
for which financial statements have been delivered pursuant to Section 5.01(a)
or (b), (ii) Capital Stock in any Excluded Subsidiary or Consent Subsidiary and
(iii) Capital Stock already pledged in accordance with this paragraph or Section
4.01(k)), the Borrower will promptly notify the Collateral Agent and will,
within 30 days (or such longer period as may be reasonable under the
circumstances) after such notification, cause such Capital Stock to be pledged
under the Guarantee and Collateral Agreement and cause to be delivered to the
Collateral Agent (or its sub-agent for perfection) any certificates representing
such Capital Stock, together with undated stock powers or other instruments of
transfer with respect thereto endorsed in blank; provided, that (A) no Grantor
shall be required to pledge more than 65% of outstanding voting Capital Stock of
any Foreign Subsidiary and (B) no Grantor shall be required to pledge any
Capital Stock in any Foreign Subsidiary if a Financial Officer shall have
delivered a certificate to the Administrative Agent certifying that the Borrower
has determined, on the basis of reasonable inquiries in the jurisdiction of such
Person, that such pledge would affect materially and adversely the ability of
such Person to conduct its business in such jurisdiction.
(c) In the event that the Borrower or any other Grantor shall at any
time directly own any Capital Stock of any Material Foreign Subsidiary (other
than Capital Stock already pledged in accordance with this paragraph and Capital
Stock in any Consent Subsidiary), the Borrower will promptly notify the
Collateral Agent and will take all such actions as the Collateral Agent shall
reasonably request and as shall be available under applicable law to cause such
Capital Stock to be pledged under a Foreign Pledge Agreement and cause to be
delivered to the Collateral Agent any certificates representing such Capital
Stock, together with undated stock powers or other instruments of transfer with
respect thereto endorsed in blank; provided, that (A) no Grantor shall be
required to pledge more than 65% of outstanding voting Capital Stock of any
Foreign
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Subsidiary and (B) no Grantor shall be required to pledge any Capital Stock in
any Person if a Financial Officer shall have delivered a certificate to the
Administrative Agent certifying that the Borrower has determined, on the basis
of reasonable inquiries in the jurisdiction of such Person, that such pledge
would affect materially and adversely the ability of such Person to conduct its
business in such jurisdiction.
(d) In the event that the Borrower or any other Grantor shall at any
time own any Material Intellectual Property (other than Material Intellectual
Property as to which the actions required by this paragraph have already been
taken), the Borrower will promptly notify the Collateral Agent and will file all
Uniform Commercial Code financing statements or other applicable personal
property security law filings and recordations with the Patent and Trademark
Office or the Canadian Intellectual Property Office as shall be required by law
or reasonably requested by the Collateral Agent to be filed or recorded to
perfect the Liens intended to be created on the Collateral (to the extent such
Liens may be perfected by filings under the Uniform Commercial Code or other
personal property security legislation as in effect in any applicable
jurisdiction or by filings with the United States Patent and Trademark Office or
the Canadian Intellectual Property Office); provided, that if the consents of
Persons other than the Borrower and the Wholly Owned Subsidiaries would be
required under applicable law or the terms of any agreement in order for a
security interest to be created in any Material Intellectual Property under the
Guarantee and Collateral Agreement or the Canadian Security Agreements, as the
case may be, a security interest shall not be required to be created in such
Material Intellectual Property prior to the obtaining of such consents. The
Borrower will endeavor in good faith to obtain any consents required to permit
any security interest in Material Intellectual Property to be created under the
Guarantee and Collateral Agreement or the Canadian Security Agreements, as the
case may be.
(e) The Borrower will, and will cause each Subsidiary to, execute any
and all further documents, financing statements, agreements and instruments, and
take all such further actions, as may be reasonably requested by the Collateral
Agent in order to cause the security interests purported to be created by the
Security Documents or required to be created under the terms of this Agreement
to constitute valid security interests, perfected in accordance with this
Agreement.
ARTICLE VI
Negative Covenants
Until the Commitments shall have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Borrower covenants and agrees with the Administrative
Agent and the Lenders that:
SECTION 6.01. Limitation on Indebtedness. (a) The Borrower shall not,
and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided, however, that the Borrower or any
Subsidiary Guarantor may Incur Indebtedness if on the date of such Incurrence
and after giving effect thereto and
69
the application of the proceeds therefrom the Consolidated Coverage Ratio would
be greater than 2.0:1.0.
(b) Notwithstanding the foregoing paragraph (a), the Borrower and its
Restricted Subsidiaries may Incur the following Indebtedness:
(1) (x) U.S. Bank Indebtedness in an aggregate principal amount
not to exceed the greater of (A) $3,000,000,000, less the aggregate
amount of all prepayments of principal applied to permanently reduce
any such Indebtedness in satisfaction of the Borrower's obligations
under Section 6.04, and (B) the sum of (i) 60% of the book value of
the inventory of the Borrower and its Restricted Subsidiaries plus
(ii) 80% of the book value of the accounts receivable of the Borrower
and its Restricted Subsidiaries (other than any accounts receivable
pledged, sold or otherwise transferred or encumbered by the Borrower
or any Restricted Subsidiary in connection with a Qualified
Receivables Transaction), in each case, as of the end of the most
recent fiscal quarter for which financial statements have been filed
with the SEC; provided that the aggregate amount of First Lien
Indebtedness at any time outstanding shall not exceed the sum of (I)
$2,500,000,000, (II) the aggregate amount of prepayments of Loans made
pursuant to Section 2.07, and (III) the aggregate amount of offers to
prepay Loans made pursuant to Section 2.07(b) in connection with the
disclosure of a proposed Incurrence of First Lien Indebtedness in
excess of $2,500,000,000, and (y) European Bank Indebtedness in an
aggregate principal amount not to exceed E525,000,000; provided,
however, that the amount of Indebtedness that may be Incurred pursuant
to this clause (1) shall be reduced by any amount of Indebtedness
Incurred and then outstanding pursuant to the election provision of
clause (10)(A)(ii) below;
(2) Indebtedness of the Borrower owed to and held by any
Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owed
to and held by the Borrower or any Restricted Subsidiary; provided,
however, that any subsequent event that results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any subsequent
transfer of any such Indebtedness (except to the Borrower or a
Restricted Subsidiary) shall be deemed, in each case, to constitute
the Incurrence of such Indebtedness by the issuer thereof;
(3) Indebtedness (A) outstanding on the Restatement Date (other
than the Indebtedness described in clauses (1) and (2) above and
clause (12) below), and (B) consisting of Refinancing Indebtedness
Incurred in respect of any Indebtedness described in this clause (3)
(including Indebtedness that is Refinancing Indebtedness) or the
foregoing paragraph (a);
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(4) (A) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted
Subsidiary was acquired by the Borrower or a Restricted Subsidiary
(other than Indebtedness Incurred in contemplation of, in connection
with, as consideration in, or to provide all or any portion of the
funds or credit support utilized to consummate, the transaction or
series of related transactions pursuant to which such Restricted
Subsidiary became a Subsidiary of or was otherwise acquired by the
Borrower); provided, however, that on the date that such Restricted
Subsidiary is acquired by the Borrower, (i) the Borrower would have
been able to Incur $1.00 of additional Indebtedness pursuant to the
foregoing paragraph (a) after giving effect to the Incurrence of such
Indebtedness pursuant to this clause (4) or (ii) the Consolidated
Coverage Ratio immediately after giving effect to such Incurrence and
acquisition would be greater than such ratio immediately prior to such
transaction and (B) Refinancing Indebtedness Incurred by a Restricted
Subsidiary in respect of Indebtedness Incurred by such Restricted
Subsidiary pursuant to this clause (4);
(5) Indebtedness (A) in respect of performance bonds, bankers'
acceptances, letters of credit and surety or appeal bonds entered into
by the Borrower or any Restricted Subsidiary in the ordinary course of
business, and (B) Hedging Obligations entered into in the ordinary
course of business to hedge risks with respect to the Borrower's or a
Restricted Subsidiary's interest rate, currency or raw materials
pricing exposure and not entered into for speculative purposes;
(6) Purchase Money Indebtedness, Capitalized Lease Obligations
and Attributable Debt and Refinancing Indebtedness in respect thereof
in an aggregate principal amount on the date of Incurrence that, when
added to all other Indebtedness Incurred pursuant to this clause (6)
and then outstanding, will not exceed the greater of (A) $600,000,000
and (B) 5.0% of Consolidated assets of the Borrower as of the end of
the most recent fiscal quarter for which financial statements have
been filed with the SEC;
(7) Indebtedness Incurred by a Receivables Entity in a Qualified
Receivables Transaction;
(8) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business;
provided, however, that such Indebtedness is extinguished within five
Business Days of a Financial Officer's becoming aware of its
Incurrence;
(9) any Guarantee by the Borrower or a Restricted Subsidiary of
Indebtedness or other obligations of the Borrower or any of its
Restricted Subsidiaries so long as the Incurrence of such Indebtedness
or other
71
obligations by the Borrower or such Restricted Subsidiary is permitted
under the terms of this Agreement (other than Indebtedness Incurred
pursuant to clause (4) above);
(10) (A) Indebtedness of Foreign Restricted Subsidiaries in an
aggregate principal amount that, when added to all other Indebtedness
Incurred pursuant to this clause (10)(A) and then outstanding, will
not exceed (i) $900,000,000 plus (ii) any amount then permitted to be
Incurred pursuant to clause (1) above that the Borrower instead elects
to Incur pursuant to this clause (10)(A);
(B) Indebtedness of EEMEA Subsidiaries in an aggregate
principal amount not to exceed $500,000,000; and
(C) Indebtedness of Foreign Restricted Subsidiaries Incurred
in connection with a Qualified Receivables Transaction in an
amount not to exceed E350,000,000 at any one time
outstanding;
(11) Indebtedness constituting unsecured Indebtedness or Secured
Indebtedness in an amount not to exceed $850,000,000 and Refinancing
Indebtedness in respect thereof; provided that any such Secured
Indebtedness may be secured solely with assets that do not constitute
Collateral;
(12) Senior Subordinated-Lien Indebtedness and the related
Guarantees by Subsidiaries of the Borrower and Refinancing
Indebtedness in respect thereof; and
(13) Indebtedness of the Borrower and the Restricted Subsidiaries
in an aggregate principal amount on the date of Incurrence that, when
added to all other Indebtedness Incurred pursuant to this clause (13)
and then outstanding, will not exceed $150,000,000.
(c) For purposes of determining the outstanding principal amount of
any particular Indebtedness Incurred pursuant to this Section 6.01:
(1) Outstanding Indebtedness Incurred pursuant to this Agreement,
the First Lien Agreement or the European Facilities Agreement prior to
or on the Restatement Date shall be deemed to have been Incurred
pursuant to clause (1) of paragraph (b) above;
(2) Indebtedness permitted by this Section 6.01 need not be
permitted solely by reference to one provision permitting such
Indebtedness but may be permitted in part by one such provision and in
part by one or more other provisions of this covenant permitting such
Indebtedness; and
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(3) in the event that Indebtedness meets the criteria of more
than one of the types of Indebtedness described in this Section 6.01,
the Borrower, in its sole discretion, shall classify such Indebtedness
(or any portion thereof) as of the time of Incurrence and will only be
required to include the amount of such Indebtedness in one of such
clauses (provided that any Indebtedness originally classified as
Incurred pursuant to Sections 6.01(b)(2) through (b)(13) may later be
reclassified as having been Incurred pursuant to Section 6.01(a) or
any other of Sections 6.01(b)(2) through (b)(13) to the extent that
such reclassified Indebtedness could be Incurred pursuant to Section
6.01(a) or one of Sections 6.01(b)(2) through (b)(13), as the case may
be, if it were Incurred at the time of such reclassification).
(d) For purposes of determining compliance as of any date with any
dollar or Euro denominated restriction on the Incurrence of Indebtedness where
the Indebtedness Incurred is denominated in a different currency, the amount of
such Indebtedness will be the U.S. Dollar Equivalent or Euro Equivalent, as the
case may be, determined on the date of the Incurrence of such Indebtedness;
provided, however, that if any such Indebtedness denominated in a different
currency is subject to a Currency Agreement with respect to dollars or Euros, as
the case may be, covering all principal, premium, if any, and interest payable
on such Indebtedness, the amount of such Indebtedness expressed in dollars or
Euros will be as provided in such Currency Agreement. The principal amount of
any Refinancing Indebtedness Incurred in the same currency as the Indebtedness
being Refinanced will be the U.S. Dollar Equivalent or Euro Equivalent, as
appropriate, of the Indebtedness Refinanced determined on the date of the
Incurrence of such Indebtedness, except to the extent that (i) such U.S. Dollar
Equivalent or Euro Equivalent was determined based on a Currency Agreement, in
which case the Refinancing Indebtedness will be determined in accordance with
the immediately preceding sentence, and (ii) the principal amount of the
Refinancing Indebtedness exceeds the principal amount of the Indebtedness being
Refinanced, in which case the U.S. Dollar Equivalent or Euro Equivalent, as
appropriate, of such excess will be determined on the date such Refinancing
Indebtedness is Incurred.
SECTION 6.02. Limitation on Restricted Payments. (a) The Borrower
shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to make any Restricted Payment if at the time the Borrower or such
Restricted Subsidiary makes any Restricted Payment:
(1) a Default will have occurred and be continuing (or would
result therefrom);
(2) the Borrower could not Incur at least $1.00 of additional
Indebtedness under Section 6.01(a); or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments (the amount so expended, if other than in cash, to
be determined in good faith by a Financial Officer of the Borrower,
whose
73
determination will be conclusive; provided, however, that with respect
to any noncash Restricted Payment in excess of $25,000,000, the amount
so expended shall be determined in accordance with the provisions of
the definition of Fair Market Value) declared or made subsequent to
the Reference Date would exceed the sum, without duplication, of:
(i) 50% of the Consolidated Net Income accrued during the
period (treated as one accounting period) from the beginning of
the fiscal quarter immediately following the fiscal quarter
during which the Reference Date occurs to the end of the most
recent fiscal quarter for which financial statements have been
filed with the SEC prior to the date of such Restricted Payment
(or, in case such Consolidated Net Income will be a deficit,
minus 100% of such deficit);
(ii) 100% of the aggregate Net Cash Proceeds received by the
Borrower from the issuance or sale of its Capital Stock (other
than Disqualified Stock) subsequent to the Reference Date (other
than an issuance or sale to a Subsidiary of the Borrower and
other than an issuance or sale to an employee stock ownership
plan or to a trust established by the Borrower or any of its
Subsidiaries for the benefit of their employees) and 100% of any
cash capital contribution received by the Borrower from its
shareholders subsequent to the Reference Date;
(iii) the amount by which Indebtedness of the Borrower or
its Restricted Subsidiaries is reduced on the Borrower's
Consolidated balance sheet upon the conversion or exchange (other
than by a Subsidiary of the Borrower) subsequent to the Reference
Date of any Indebtedness of the Borrower or its Restricted
Subsidiaries issued after the Reference Date which is convertible
or exchangeable for capital stock (other than Disqualified Stock)
of the Borrower (less the amount of any cash or the Fair Market
Value of other property distributed by the Borrower or any
Restricted Subsidiary upon such conversion or exchange); and
(iv) an amount equal to the sum of (x) the net reduction in
the Investments (other than Permitted Investments) made by the
Borrower or any Restricted Subsidiary in any Person resulting
from repurchases, repayments or redemptions of such Investments
by such Person, proceeds realized on the sale of such Investments
and proceeds representing the return of capital (excluding
dividends and distributions), in each case realized by the
Borrower or any Restricted Subsidiary, and (y) to the extent such
Person is an Unrestricted Subsidiary, the portion (proportionate
to the Borrower's Capital Stock in such Subsidiary) of the fair
market value of the net assets of such Unrestricted Subsidiary at
the time
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such Unrestricted Subsidiary is designated a Restricted
Subsidiary; provided, however, that the foregoing sum shall not
exceed, in the case of any such Person or Unrestricted
Subsidiary, the amount of Investments (excluding Permitted
Investments) previously made (and treated as a Restricted
Payment) by the Borrower or any Restricted Subsidiary in such
Person or Unrestricted Subsidiary.
(b) The provisions of Section 6.02(a) shall not prohibit:
(1) any Restricted Payment made out of the Net Cash Proceeds of
the substantially concurrent sale of, or made by exchange for, Capital
Stock of the Borrower (other than Disqualified Stock and other than
Capital Stock issued or sold to a Subsidiary of the Borrower or an
employee stock ownership plan or to a trust established by the
Borrower or any of its Subsidiaries for the benefit of their employees
to the extent such sale to such an employee stock ownership plan or
trust is financed by loans from or guaranteed by the Borrower or any
Restricted Subsidiary unless such loans have been repaid with cash on
or prior to the date of determination) or a substantially concurrent
cash capital contribution received by the Borrower from its
shareholders; provided, however, that:
(A) such Restricted Payment shall be excluded in the
calculation of the amount of Restricted Payments under Section
6.02(a)(3), and
(B) the Net Cash Proceeds from such sale applied in the
manner set forth in Section 6.02(b)(1) shall be excluded from the
calculation of amounts under Section 6.02(a)(3)(ii);
(2) any prepayment, repayment or Purchase for value of
Subordinated Obligations that are made by exchange for, or out of the
proceeds of the sale of, other Subordinated Obligations (which (x)
satisfy each of clauses (4) and (5) of the definition of Refinancing
Indebtedness in respect of the Subordinated Obligations being prepaid,
repaid or Purchased and (y) may include Indebtedness Incurred under
Section 6.01(a)) or the Net Cash Proceeds of a sale of Capital Stock
of the Borrower; provided, in each case, that the public announcement
of the launch of such prepayment, repayment or Purchase for value is
made within three months of such sale of Subordinated Obligations or
Capital Stock; provided, however, that each such prepayment, repayment
or Purchase for value under this paragraph (2) shall be excluded in
the calculation of the amount of Restricted Payments under Section
6.02(a)(3);
(3) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividends would have
complied with this covenant; provided, however, that such dividends
shall be
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included in the calculation of the amount of Restricted Payments under
Section 6.02(a)(3);
(4) any Purchase for value of Capital Stock of the Borrower or
any of its Subsidiaries from employees, former employees, directors or
former directors of the Borrower or any of its Subsidiaries (or
permitted transferees of such employees, former employees, directors
or former directors), pursuant to the terms of agreements (including
employment agreements) or plans (or amendments thereto) approved by
the Board of Directors under which such individuals purchase or sell
or are granted the option to purchase or sell, shares of such Capital
Stock; provided, however, that the aggregate amount of such Purchases
for value will not exceed $10,000,000 in any calendar year; provided
further, however, that any of the $10,000,000 permitted to be applied
for Purchases under this Section 6.02(b)(4) in a calendar year (and
not so applied) may be carried forward for use in the following two
calendar years; provided further, however, that such Purchases for
value shall be excluded in the calculation of the amount of Restricted
Payments under Section 6.02(a)(3);
(5) so long as no Default has occurred and is continuing,
payments of dividends on Disqualified Stock issued after the Reference
Date pursuant to Section 6.01; provided, however, that such dividends
shall be included in the calculation of the amount of Restricted
Payments under Section 6.02(a)(3);
(6) repurchases of Capital Stock deemed to occur upon exercise of
stock options if such Capital Stock represents a portion of the
exercise price of such options; provided, however, that such
Restricted Payments shall be excluded in the calculation of the amount
of Restricted Payments under Section 6.02(a)(3);
(7) so long as no Default has occurred and is continuing, subject
to Section 6.04(c)(ii), any prepayment, repayment or Purchase for
value of Subordinated Obligations from Net Available Cash; provided,
however, that such prepayment, repayment or Purchase for value shall
be excluded in the calculation of the amount of Restricted Payments
under Section 6.02(a)(3);
(8) so long as no Default has occurred and is continuing, any
prepayment, repayment or Purchase for value of Subordinated
Obligations from Net Available Cash from (assuming for purposes of the
definition of Net Available Cash as used in this clause (8) that the
Specified Asset Sale was an Asset Disposition) from the Specified
Asset Sale set forth in clause (i) of the definition thereof within
180 days after the receipt of such proceeds; provided, however, that
such prepayment, repayment or Purchase for value shall be excluded in
the calculation of the amount of Restricted Payments under Section
6.02(a)(3);
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(9) so long as no Default has occurred and is continuing, any
prepayment, repayment or Purchase for value of any Indebtedness within
365 days of the Stated Maturity of such Indebtedness; provided,
however, that such prepayment, repayment or Purchase for value shall
be excluded in the calculation of the amount of Restricted Payments
under Section 6.02(a)(3);
(10) payments to holders of Capital Stock (or to the holders of
Indebtedness that is convertible into or exchangeable for Capital
Stock upon such conversion or exchange) in lieu of the issuance of
fractional shares; provided, however, that such payments shall be
excluded in the calculation of the amount of Restricted Payments under
Section 6.02(a)(3);
(11) so long as no Default has occurred and is continuing, any
prepayment, repayment or Purchase for value of Indebtedness under or
in respect of the Third Lien Agreement or the Borrower's 11% Senior
Secured Notes due 2011, Senior Secured Floating Rate Notes due 2011,
4% Convertible Senior Notes due 2034 or Floating Rate Notes due 2009;
provided, however, that such prepayment, repayment or Purchase for
value shall be excluded in the calculation of the amount of Restricted
Payments under Section 6.02(a)(3); or
(12) any Restricted Payment in an amount which, when taken
together with all Restricted Payments made after the Reference Date
pursuant to this Section 6.02(b)(12), does not exceed $50,000,000;
provided, however, that
(A) at the time of each such Restricted Payment, no Default
shall have occurred and be continuing (or result therefrom); and
(B) such Restricted Payments shall be included in the
calculation of the amount of Restricted Payments under Section
6.02(a)(3).
SECTION 6.03. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Borrower shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital
Stock or pay any Indebtedness or other obligations owed to the
Borrower;
(2) make any loans or advances to the Borrower; or
(3) transfer any of its property or assets to the Borrower,
except:
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(A) any encumbrance or restriction pursuant to applicable
law, rule, regulation or order or an agreement in effect at or
entered into on the Restatement Date;
(B) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to any
Indebtedness Incurred by such Restricted Subsidiary prior to the
date on which such Restricted Subsidiary was acquired by the
Borrower (other than Indebtedness Incurred as consideration in,
in contemplation of, or to provide all or any portion of the
funds or credit support utilized to consummate the transaction or
series of related transactions pursuant to which such Restricted
Subsidiary became a Restricted Subsidiary or was otherwise
acquired by the Borrower) and outstanding on such date;
(C) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in Section 6.03(3)(A) or Section 6.03(3)(B)
or this Section 6.03(3)(C) or contained in any amendment to an
agreement referred to in Section 6.03(3)(A) or Section 6.03(3)(B)
or this Section 6.03(3)(C); provided, however, that the
encumbrances and restrictions contained in any such Refinancing
agreement or amendment are no less favorable in any material
respect to the Lenders than the encumbrances and restrictions
contained in such predecessor agreements;
(D) in the case of Section 6.03(3), any encumbrance or
restriction:
(i) that restricts in a customary manner the
subletting, assignment or transfer of any property or asset
that is subject to a lease, license or similar contract, or
the assignment or transfer of any such lease, license or
other contract; or
(ii) contained in mortgages, pledges and other security
agreements securing Indebtedness of a Restricted Subsidiary
to the extent such encumbrance or restriction restricts the
transfer of the property subject to such security
agreements;
(E) with respect to a Restricted Subsidiary, any restriction
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or
assets of such Restricted Subsidiary pending the closing of such
sale or disposition;
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(F) any encumbrance or restriction existing under or by
reason of Indebtedness or other contractual requirements of a
Receivables Entity in connection with a Qualified Receivables
Transaction; provided, however, that such restrictions apply only
to such Receivables Entity;
(G) purchase money obligations for property acquired in the
ordinary course of business and Capitalized Lease Obligations
that impose restrictions on the property purchased or leased of
the nature described in Section 6.03(3);
(H) provisions with respect to the disposition or
distribution of assets or property in joint venture agreements,
asset sale agreements, stock sale agreements and other similar
agreements;
(I) restrictions on cash or other deposits or net worth
imposed by customers, suppliers or, in the ordinary course of
business, other third parties; and
(J) with respect to any Foreign Restricted Subsidiary, any
encumbrance or restriction contained in the terms of any
Indebtedness, or any agreement pursuant to which such
Indebtedness was issued, if:
(i) the encumbrance or restriction applies only in the
event of a payment default or a default with respect to a
financial covenant contained in such Indebtedness or
agreement; or
(ii) at the time such Indebtedness is Incurred, such
encumbrance or restriction is not expected to materially
affect the Borrower's ability to make principal or interest
payments on the Obligations, as determined in good faith by
a Financial Officer of the Borrower, whose determination
shall be conclusive.
SECTION 6.04. Limitation on Sales of Assets and Subsidiary Stock. (a)
The Borrower shall not, and shall not permit any Restricted Subsidiary to, make
any Asset Disposition unless:
(1) the Borrower or such Restricted Subsidiary receives
consideration (including by way of relief from, or by any other Person
assuming sole responsibility for, any liabilities, contingent or
otherwise) at the time of such Asset Disposition at least equal to the
Fair Market Value of the shares and assets subject to such Asset
Disposition; and
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(2) at least 75% of the consideration therefor received by the
Borrower or such Restricted Subsidiary is (i) to the extent the assets
subject to such Asset Disposition do not constitute Collateral under
this Agreement, in the form of cash or Additional Assets, or (ii) to
the extent the assets subject to such Asset Disposition do constitute
Collateral under this Agreement, in the form of cash or assets that
are included in the Collateral.
(b) For the purposes of this covenant, the following are deemed to be
cash:
(1) the assumption of Indebtedness or other obligations of the
Borrower (other than obligations in respect of Disqualified Stock of
the Borrower) or any Restricted Subsidiary (other than obligations in
respect of Disqualified Stock and Preferred Stock of a Restricted
Subsidiary that is a Subsidiary Guarantor) and the release of the
Borrower or such Restricted Subsidiary from all liability on such
Indebtedness or obligations in connection with such Asset Disposition;
(2) except to the extent the assets subject to the applicable
Asset Disposition constitute Collateral under this Agreement, any
Designated Noncash Consideration having an aggregate Fair Market Value
that, when taken together with all other Designated Noncash
Consideration received pursuant to this clause and then outstanding,
does not exceed at the time of the receipt of such Designated Noncash
Consideration (with the Fair Market Value of each item of Designated
Noncash Consideration being measured at the time received and without
giving effect to subsequent changes in value) the greater of (1)
$200,000,000 and (2) 1.5% of the total Consolidated assets of the
Borrower as shown on the most recent balance sheet of the Borrower
filed with the SEC;
(3) securities, notes or similar obligations received by the
Borrower or any Restricted Subsidiary from the transferee that are
promptly converted by the Borrower or such Restricted Subsidiary into
cash; and
(4) Temporary Cash Investments.
(c) The Borrower may not use any Net Available Cash to prepay, redeem
or purchase any Indebtedness that is not Priority Secured Indebtedness unless
(i) the Pro Forma Senior Secured Leverage Ratio for the most recently ended
period of four consecutive fiscal quarters for which financial statements have
been delivered under Section 5.01(a) or (b) (or, at any time prior to the first
delivery of such financial statements, for the fiscal year ended December 31,
2006) would have been equal to or less than 3.00 to 1.00, determined at the time
of such proposed use on a pro forma basis as described in the definition of Pro
Forma Senior Secured Leverage Ratio, or (ii) the
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Borrower first offers to use such Net Available Cash to prepay the Loans in
accordance with Section 2.07(b).
(d) Upon receipt of written notice from the Borrower to the Collateral
Agent, the Collateral Agent is hereby authorized and directed to release any
security interest under any Security Document in any Capital Stock of any
Foreign Subsidiary transferred, for tax planning or other business purposes,
consistent with the Borrower's past practices, to any Foreign Subsidiary whose
Capital Stock has been pledged under any of the Security Documents if either (i)
the transferor of such Capital Stock is the Borrower or a Domestic Subsidiary
and such release is required in order to obtain the desired amount of
consideration from such transfer, or (ii) after giving effect to such transfer,
the aggregate fair value of all such Capital Stock (other than Capital Stock
transferred in a transaction described in the immediately preceding clause (i)),
determined as of the date of each respective transfer, does not exceed, for all
such transfers, $250,000,000.
SECTION 6.05. Limitation on Transactions with Affiliates. (a) The
Borrower shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, enter into or conduct any transaction or series of related
transactions (including the purchase, sale, lease or exchange of any property or
the rendering of any service) with any Affiliate of the Borrower (an "Affiliate
Transaction") unless such transaction is on terms:
(1) that are no less favorable to the Borrower or such Restricted
Subsidiary, as the case may be, than those that could be obtained at
the time of such transaction in arm's-length dealings with a Person
who is not such an Affiliate,
(2) that, in the event such Affiliate Transaction involves an
aggregate amount in excess of $25,000,000,
(A) are set forth in writing, and
(B) have been approved by a majority of the members of the
Board of Directors having no personal stake in such Affiliate
Transaction; and
(3) that, in the event such Affiliate Transaction involves an
amount in excess of $75,000,000, have been determined by a nationally
recognized appraisal, accounting or investment banking firm to be
fair, from a financial standpoint, to the Borrower and its Restricted
Subsidiaries.
(b) The provisions of Section 6.05(a) will not prohibit:
(1) any Restricted Payment permitted to be paid pursuant to
Section 6.02;
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(2) any issuance of securities, or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding
of, employment arrangements, stock options and stock ownership plans
approved by the Board of Directors;
(3) the grant of stock options or similar rights to employees and
directors of the Borrower pursuant to plans approved by the Board of
Directors,
(4) loans or advances to employees in the ordinary course of
business of the Borrower;
(5) the payment of reasonable fees and compensation to, or the
provision of employee benefit arrangements and indemnity for the
benefit of, directors, officers and employees of the Borrower and its
Restricted Subsidiaries in the ordinary course of business;
(6) any transaction between or among any of the Borrower, any
Restricted Subsidiary or any joint venture or similar entity which
would constitute an Affiliate Transaction solely because the Borrower
or a Restricted Subsidiary owns an equity interest in or otherwise
controls such Restricted Subsidiary, joint venture or similar entity;
(7) the issuance or sale of any Capital Stock (other than
Disqualified Stock) of the Borrower;
(8) any agreement as in effect on the Restatement Date described
in the Borrower's SEC filings as filed on or prior to the Restatement
Date, or any renewals, extensions or amendments of any such agreement
(so long as such renewals, extensions or amendments are not less
favorable in any material respect to the Borrower or its Restricted
Subsidiaries) and the transactions evidenced thereby;
(9) transactions with customers, clients, suppliers or purchasers
or sellers of goods or services in each case in the ordinary course of
business and otherwise in compliance with the terms of this Agreement
which are fair to the Borrower or its Restricted Subsidiaries, in the
reasonable determination of the Board of Directors or the senior
management thereof, or are on terms at least as favorable as could
reasonably have been obtained at such time from an unaffiliated party;
or
(10) any transaction effected as part of a Qualified Receivables
Transaction.
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SECTION 6.06. Limitation on Liens. The Borrower shall not, and shall
not permit any Restricted Subsidiary to, directly or indirectly, Incur or permit
to exist any Lien of any nature whatsoever on any of its property or assets
(including Capital Stock of a Restricted Subsidiary), whether owned at the
Restatement Date or thereafter acquired, securing any Indebtedness, except:
(a) Liens to secure Indebtedness permitted pursuant to Section
6.01(b)(1); provided that any collateral securing U.S. Bank Indebtedness
shall also constitute Collateral;
(b) Liens to secure Indebtedness permitted pursuant to Section
6.01(b)(12); provided that any Liens to secure Indebtedness permitted
pursuant to Section 6.01(b)(12) shall be subordinate and junior to the
Liens securing the Obligations on the terms set forth in the Lien
Subordination and Intercreditor Agreement;
(c) pledges or deposits by such Person under workers' compensation
laws, unemployment insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts (other than for the
payment of Indebtedness) or leases to which such Person is a party, or
deposits to secure public or statutory obligations of such Person or
deposits of cash or United States government bonds to secure surety or
appeal bonds to which such Person is a party, or deposits as security for
contested taxes or import duties or for the payment of rent, in each case
Incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens, in each case for sums not yet due or being contested in
good faith by appropriate proceedings or other Liens arising out of
judgments or awards against such Person with respect to which such Person
shall then be proceeding with an appeal or other proceedings for review;
(e) Liens for taxes, assessments or other governmental charges not yet
due or payable or subject to penalties for non-payment or which are being
contested in good faith by appropriate proceedings;
(f) Liens on assets not constituting Collateral under this Agreement
which secure obligations under undrawn letters of credit and bank
guarantees or are in favor of issuers of surety or performance bonds issued
pursuant to the request of and for the account of such Person in the
ordinary course of its business; provided, however, that such letters of
credit and bank guarantees do not constitute Indebtedness;
(g) survey exceptions, encumbrances, easements or reservations of, or
rights of others for, licenses, rights-of-way, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or zoning or
other restrictions as to the use of real property or Liens incidental to
the conduct of the business of such Person or to the ownership of its
properties which were not Incurred in connection
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with Indebtedness for borrowed money and which do not in the aggregate
materially adversely affect the value of said properties or materially
impair their use in the operation of the business of such Person;
(h) Liens securing Indebtedness Incurred to finance the construction,
purchase or lease of, or repairs, improvements or additions to, property of
such Person (including Indebtedness Incurred under Section 6.01(b)(6));
provided, however, that the Lien may not extend to any other property
(other than property related to the property being financed) owned by such
Person or any of its Subsidiaries at the time the Lien is Incurred, and the
Indebtedness (other than any interest thereon) secured by the Lien may not
be Incurred more than 180 days after the later of the acquisition,
completion of construction, repair, improvement, addition or commencement
of full operation of the property subject to the Lien;
(i) Liens existing on the Restatement Date and set forth in Schedule
6.06; provided that (x) such Lien shall not apply to any other property or
asset of the Borrower or any Restricted Subsidiary and (y) such Lien shall
secure only those obligations which it secured on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount hereof (other than Liens referred to in the
foregoing clauses (a) and (b));
(j) Liens on property or shares of stock of another Person at the time
such other Person becomes a Subsidiary of such Person; provided, however,
that such Liens are not created, Incurred or assumed in connection with, or
in contemplation of, such other Person becoming such a Subsidiary; provided
further, however, that such Liens do not extend to any other property owned
by such Person or any of its Subsidiaries, except pursuant to
after-acquired property clauses existing in the applicable agreements at
the time such Person becomes a Subsidiary which do not extend to property
transferred to such Person by the Borrower or a Restricted Subsidiary;
(k) Liens on property at the time such Person or any of its
Subsidiaries acquires the property, including any acquisition by means of a
merger or consolidation with or into such Person or any Subsidiary of such
Person; provided, however, that such Liens are not created, Incurred or
assumed in connection with, or in contemplation of, such acquisition;
provided further, however, that the Liens do not extend to any other
property owned by such Person or any of its Subsidiaries;
(l) Liens securing Indebtedness or other obligations of a Subsidiary
of such Person owing to such Person or a Restricted Subsidiary of such
Person;
(m) Liens securing Hedging Obligations so long as such Hedging
Obligations are permitted to be Incurred under this Agreement;
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(n) Liens on assets not constituting Collateral under this Agreement
which secure Indebtedness of any Foreign Restricted Subsidiary Incurred
under Section 6.01(b)(10);
(o) Liens to secure any Refinancing (or successive Refinancings) as a
whole, or in part, of any Indebtedness secured by any Lien referred in the
foregoing clauses (h), (i), (j) and (k); provided, however, that:
(1) such new Lien shall be limited to all or part of the same
property that secured the original Lien (plus improvements,
accessions, proceeds, dividends or distributions in respect thereof);
and
(2) the Indebtedness secured by such Lien at such time is not
increased to any amount greater than the sum of:
(A) the outstanding principal amount or, if greater,
committed amount of the Indebtedness secured by Liens described
under clauses (h), (i), (j) or (k) at the time the original Lien
became a permitted Lien under this Agreement; and
(B) an amount necessary to pay any fees and expenses,
including premiums, related to such Refinancings;
(p) Liens on accounts receivables and related assets of the type
specified in the definition of "Qualified Receivables Transaction" not
constituting Collateral under this Agreement Incurred in connection with a
Qualified Receivables Transaction;
(q) judgment Liens not giving rise to an Event of Default so long as
any appropriate legal proceedings which may have been duly initiated for
the review of such judgment have not been finally terminated or the period
within which such proceedings may be initiated has not expired;
(r) Liens arising from Uniform Commercial Code financing statement
filings regarding leases that do not otherwise constitute Indebtedness
entered into in the ordinary course of business;
(s) leases and subleases of real property which do not materially
interfere with the ordinary conduct of the business of the Borrower and its
Subsidiaries;
(t) Liens which constitute bankers' Liens, rights of set-off or
similar rights and remedies as to deposit accounts or other funds
maintained with any bank or other financial institution, whether arising by
operation of law or pursuant to contract;
(u) Liens on specific items of inventory or other goods and proceeds
of any Person securing such Person's obligations in respect of bankers'
acceptances
85
issued or created for the account of such Person to facilitate the
purchase, shipment or storage of such inventory or other goods;
(v) Liens on specific items of inventory or other goods and related
documentation (and proceeds thereof) securing reimbursement obligations in
respect of trade letters of credit issued to ensure payment of the purchase
price for such items of inventory or other goods;
(w) Liens on assets not constituting Collateral under this Agreement
which secure Indebtedness Incurred under Section 6.01(b)(11) or (13);
(x) Liens on assets subject to Sale/Leaseback Transactions; provided
that the aggregate outstanding Attributable Debt in respect thereof shall
not at any time exceed $125,000,000; and
(y) other Liens on assets that do not constitute Collateral to secure
Indebtedness as long as the amount of outstanding Indebtedness secured by
Liens Incurred pursuant to this clause (x) does not exceed 5.0% of
Consolidated assets of the Borrower, as determined based on the
consolidated balance sheet of the Borrower as of the end of the most recent
fiscal quarter for which financial statements have been filed with the SEC;
provided, however, that notwithstanding whether this clause (y) would
otherwise be available to secure Indebtedness, Liens securing Indebtedness
originally secured pursuant to this clause (y) may secure Refinancing
Indebtedness in respect of such Indebtedness and such Refinancing
Indebtedness shall be deemed to have been secured pursuant to this clause
(y).
For the avoidance of doubt, each reference in this Section or any
other provision of this Agreement to "assets not constituting Collateral" (or
any similar phrase) means assets that (a) are not subject to any Lien securing
the Obligations and (b) are not and (absent a change in facts) will not be
required under the terms of this Agreement or the Security Documents to be made
subject to any Lien securing the Obligations by reason of the nature of, or the
identity of the Subsidiary owning, such assets (and not as a result of the
existence of any other Lien or any legal or contractual provision preventing
such assets from being made subject to Liens securing the Obligations).
SECTION 6.07. Limitation on Sale/Leaseback Transactions. The Borrower
shall not, and shall not permit any Restricted Subsidiary to, enter into any
Sale/Leaseback Transaction with respect to any property unless:
(a) the Borrower or such Restricted Subsidiary would be entitled to:
(i) Incur Indebtedness with respect to such Sale/Leaseback
Transaction pursuant to Section 6.01; and
(ii) create a Lien on such property securing such Indebtedness
pursuant to Section 6.06(x) or, to the extent the assets subject to
such
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Sale/Leaseback do not constitute Collateral under this Agreement,
create a Lien on such property pursuant to the provisions of Section
6.06;
(iii) the gross proceeds payable to the Borrower or such
Restricted Subsidiary in connection with such Sale/Leaseback
Transaction are at least equal to the Fair Market Value of such
property; and
(iv) the transfer of such property is permitted by, and, if
applicable, the Borrower applies the proceeds of such transaction in
compliance with, Section 6.04; or
(b) the Sale/Leaseback Transaction is with respect to all or a portion
of the Borrower's properties in Akron, Summit County, Ohio.
SECTION 6.08. Fundamental Changes. The Borrower will not, and will not
permit any Restricted Subsidiary to, merge into, amalgamate or consolidate with
any other Person, or permit any other Person to merge into, amalgamate or
consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) assets (including Capital Stock of
Subsidiaries) constituting all or substantially all the assets of the Borrower
and its Consolidated Subsidiaries, taken as a whole, or, in the case of the
Borrower, liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be
continuing (i) any Restricted Subsidiary may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation, (ii) any
Restricted Subsidiary may merge into any other Restricted Subsidiary in a
transaction in which the surviving entity is a Restricted Subsidiary; except
that no Domestic Subsidiary may merge into a Foreign Subsidiary, (iii) any sale
of a Restricted Subsidiary made in accordance with Section 6.04 may be effected
by a merger of such Restricted Subsidiary and (iv) any Restricted Subsidiary may
sell, transfer, lease or otherwise dispose of its assets to the Borrower or to
another Restricted Subsidiary; provided that any Investment that takes the form
of a merger, amalgamation or consolidation (other than any merger, amalgamation
or consolidation involving the Borrower) that is expressly permitted by Section
6.02 shall be permitted under this Section 6.08.
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. If any of the following events
("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan when and
as the same shall become due and payable, whether at the due date thereof
or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article)
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payable under this Agreement or any other Credit Document, when and as the
same shall become due and payable, and such failure shall continue
unremedied for a period of (i) in the case of fees and interest payable
under Sections 2.08 and 2.09, respectively, five Business Days, and (ii) in
the case of any other fees, interest or other amounts (other than those
referred to in paragraph (a) above), five Business Days after the earlier
of (A) the day on which a Financial Officer first obtains knowledge of such
failure and (B) the day on which written notice of such failure shall have
been given to the Borrower by the Administrative Agent or any Lender;
(c) any representation or warranty made or deemed made by or on behalf
of any Credit Party in any Credit Document or any amendment or modification
thereof or waiver thereunder shall prove to have been incorrect when made
or deemed made in any respect material to the rights or interests of the
Lenders under the Credit Documents;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to the
Borrower's existence) or 5.08 or in Article VI;
(e) any Credit Party shall fail to observe or perform any covenant,
condition or agreement contained in any Credit Document (other than those
specified in clauses (a), (b) and (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after written notice
thereof from the Administrative Agent to the Borrower (which notice will be
given at the request of any Lender); provided that the failure of any
Credit Party to perform any covenant, condition or agreement made in any
Credit Document (other than this Agreement) shall not constitute an Event
of Default unless such failure shall be (i) wilful or (ii) material to the
rights or interests of the Lenders under the Credit Documents;
(f) the Borrower or any Consolidated Subsidiary shall fail to make any
payment of principal in respect of any Material Indebtedness at the
scheduled due date thereof and such failure shall continue beyond any
applicable grace period or any event or condition occurs that results in
any Material Indebtedness (other than any Qualified Receivables Transaction
existing on March 31, 2003) becoming due or being required to be prepaid,
repurchased, redeemed, defeased or terminated prior to its scheduled
maturity (other than, in the case of any Qualified Receivables Transaction,
any event or condition not caused by an act or omission of the Borrower or
any Subsidiary, if the Borrower shall furnish to the Administrative Agent a
certificate to the effect that after the termination of such Qualified
Receivables Transaction the Borrower and the Subsidiaries that are a party
thereto have sufficient liquidity to operate their businesses in the
ordinary course); provided that this clause (f) shall not apply to (i)
secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness in accordance
with the terms and conditions of this Agreement or (ii) Material
Indebtedness of any Foreign Subsidiary if the
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Borrower is unable, due to applicable law restricting Investments in such
Foreign Subsidiary, to make an Investment in such Foreign Subsidiary to
fund the payment of such Material Indebtedness;
(g) a Change in Control shall occur;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization,
moratorium, suspension of payment or other relief in respect of the
Borrower or any Material Subsidiary or its debts, or of a substantial part
of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Material Subsidiary or for a
substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 90 days or an order or decree
approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization, bankruptcy, moratorium, suspension of payment or other
relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Material Subsidiary or for a substantial part of its assets, (iv) make a
general assignment for the benefit of creditors or (v) take any action for
the purpose of effecting any of the foregoing;
(j) the Borrower or any Material Subsidiary shall admit in writing its
inability or fail generally to pay its debts as they become due;
(k) an ERISA Event shall have occurred that, when taken together with
all other ERISA Events that have occurred, would be materially likely to
result in a Material Adverse Change;
(l) Liens created under the Security Documents shall not be valid and
perfected Liens on a material portion of the Collateral; or
(m) any Guarantee of the Obligations under the Guarantee and
Collateral Agreement or the Canadian Security Documents shall fail to be a
valid, binding and enforceable Guarantee of one or more Subsidiary
Guarantors where such failure would constitute or be materially likely to
result in a Material Adverse Change;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Majority Lenders
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shall, by notice to the Borrower, take any or all of the following actions, at
the same or different times declare the Loans then outstanding to be due and
payable in whole (or in part, in which case any principal not so declared to be
due and payable may thereafter be declared to be due and payable), and thereupon
the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Borrower
accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and in case of any event with respect to the
Borrower described in clause (h) or (i) of this Article, the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, in each case without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Agents
Each of the Lenders hereby irrevocably appoints the Agents as its
agents and authorizes the Agents to take such actions on its behalf and to
exercise such powers as are delegated to the Agents by the terms hereof and of
the other Credit Documents, together with such actions and powers as are
reasonably incidental thereto.
The bank or banks serving as the Agents hereunder shall have the same
rights and powers in their capacity as Lenders as any other Lender and may
exercise the same as though they were not Agents, and such bank or banks and
their Affiliates may accept deposits from, lend money to and generally engage in
any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if they were not Agents hereunder.
The Agents shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the foregoing (a)
the Agents shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) the Agents
shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Agents are required to exercise in writing by the
Majority Lenders, and (c) except as expressly set forth herein, the Agents shall
not have any duty to disclose, and shall not be liable for the failure to
disclose, any information communicated to the Agents by or relating to the
Borrower or any Subsidiary. The Agents shall not be liable for any action taken
or not taken by them with the consent or at the request of the Majority Lenders
or the Lenders, as the case may be, or in the absence of their own gross
negligence or wilful misconduct. In addition, the Agents shall be deemed not to
have knowledge of any Default unless and until written notice thereof is given
to the Agents by the Borrower or a Lender, and the Agents shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Credit Document,
(ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or
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in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or
therein, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein or
therein, other than to confirm receipt of items expressly required to be
delivered to the Agents.
The Agents shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by them to be genuine
and to have been signed or sent by the proper Person. The Agents also may rely
upon any statement made to them orally or by telephone and believed by them to
be made by the proper Person, and shall not incur any liability for relying
thereon. The Agents may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by them with
reasonable care, and shall not be liable for any action taken or not taken by
them in accordance with the advice of any such counsel, accountants or experts.
The Agents may perform any and all their duties and exercise their
rights and powers by or through any one or more sub-agents appointed by the
Agents. The Agents and any such sub-agent may perform any and all their duties
and exercise their rights and powers through their respective Affiliates. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Affiliates of the Agents and any such sub-agent.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such resignation, the Majority Lenders shall have the
right to appoint a successor with the Borrower's written consent (which shall
not be unreasonably withheld or delayed and shall not be required from the
Borrower if an Event of Default has occurred and is continuing). If no successor
shall have been so appointed by the Majority Lenders and shall have accepted
such appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the Lenders, with the
Borrower's written consent (which shall not be unreasonably withheld or delayed
and shall not be required if an Event of Default has occurred and is
continuing), appoint a successor Agent which shall be a bank or an Affiliate
thereof, in each case with a net worth of at least $1,000,000,000 and an office
in New York, New York. Upon the acceptance of its appointment as Agent hereunder
by a successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After an
Agent's resignation hereunder, the provisions of this Article and Section 9.03
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without
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reliance upon the Agents or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
Notwithstanding any other provision contained herein, each Lender
acknowledges that the Administrative Agent is not acting as an agent of the
Borrower and that the Borrower will not be responsible for acts or failures to
act on the part of the Administrative Agent.
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 of the date it becomes
a Lender, all actions taken by the Custodian in such capacity.
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ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy or e-mail, as
follows:
(i) if to the Borrower, to it at 1144 East Market Street, Akron, Ohio,
44316-0001, Attention of the Treasurer (Telecopy No. (330) 796-6502);
(ii) if to the Administrative Agent, to JPMorgan Chase Bank, Loan &
Agency Services Group, 1111 Fannin, 10th Floor, Houston, Texas 77002,
Attention of Alice Telles (Telecopy No. (713) 750-2938), with a copy to
JPMorgan Chase Bank, N.A., 270 Park Avenue, New York, NY 10017, Attention
of Robert Kellas (Telecopy No. (212) 270-5100);
(iii) if to the Collateral Agent, to Deutsche Bank Trust Company
Americas, 60 Wall Street, New York, NY 10005, Attention of Carin Keegan
(Telecopy No. (212) 797-5690); and
(iv) if to a Lender, to it at its address (or telecopy number or
e-mail address) set forth in Schedule 2.01 or its Administrative
Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
(c) Any party hereto may change its address, telecopy number or e-mail
address for notices and other communications hereunder by notice to the other
parties hereto. All notices and other communications given to any party hereto
in accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by any of
the Agents or any Lender in exercising any right or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the Agents and
the Lenders hereunder are cumulative and are not
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exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan shall not be construed as a
waiver of any Default, regardless of whether any Agent or any Lender may have
had notice or knowledge of such Default at the time.
(b) No Credit Document or any provision thereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Credit Parties party thereto and the Administrative Agent or
Collateral Agent, as the case may be, with the consent of the Majority Lenders;
provided, that no such agreement shall (i) increase the Commitment or extend the
expiration date of the Commitment of any Lender without the written consent of
such Lender, (ii) reduce or forgive all or part of the principal amount of any
Loan or reduce the rate of interest thereon, or reduce any fee payable
hereunder, without the prior written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any Loan
or date for the payment of any interest on any Loan or any fee, or reduce the
amount of, waive or excuse any such payment, without the prior written consent
of each Lender adversely affected thereby, (iv) release all or substantially all
the Subsidiary Guarantors from their Guarantees under the Guarantee and
Collateral Agreement, or release all or substantially all the Collateral from
the Liens of the Security Documents, without the written consent of each Lender
and each Agent, (v) change any provision of the Guarantee and Collateral
Agreement or any other Security Document to alter the amount or allocation of
any payment to be made to the Secured Parties, without the written consent of
each adversely affected Lender, (vi) change Section 2.14 in a manner that would
alter the pro rata sharing of any payment without the written consent of each
Lender adversely affected thereby, or (vii) change any of the provisions of this
Section or the definition of "Majority Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender; provided, further that no
such agreement shall amend, modify or otherwise affect the rights or duties of
any Agent under any Credit Document, or any provision of any Credit Document
providing for payments by or to the Administrative Agent, in each case without
the prior written consent of such Agent; provided further, that so long as the
rights or interests of any Lender shall not be adversely affected in any
material respect, the Guarantee and Collateral Agreement or any other Security
Document may be amended without the consent of the Majority Lenders (A) to cure
any ambiguity, omission, defect or inconsistency, or (B) to provide for the
addition of any assets or classes of assets to the Collateral. Notwithstanding
the foregoing, any provision of this Agreement may be amended by an agreement in
writing entered into by the Borrower, the Administrative Agent and the Lenders
that will remain parties hereto after giving effect to such amendment if at the
time such amendment becomes effective, each Lender not consenting thereto
receives payment in full of the principal of and interest accrued on each Loan
made by it and all other amounts owing to it or accrued for its account under
this Agreement.
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(c) Notwithstanding anything in paragraph (b) of this Section to the
contrary, this Agreement and the other Credit Documents may be amended at any
time and from time to time to permit the borrowing of additional term loans by
an agreement in writing entered into by the Borrower, the Administrative Agent,
the Collateral Agent and each Person (including any Lender) that shall agree to
provide any such additional term loans (but without the consent of any other
Lender), and each such Person that shall not already be a Lender shall, at the
time such agreement becomes effective, become a Lender with the same effect as
if it had originally been a Lender under this Agreement with the term loans set
forth in such agreement; provided, however, that: (i) the aggregate amount of
such additional term loans established pursuant to this paragraph shall not
exceed $300,000,000; (ii) no Default or Event of Default shall exist at the time
such amendment becomes effective; (iii) such term loans shall not amortize and
the final maturity of such term loans shall be no earlier than the Maturity
Date, (iv) on the date of Incurrence of such term loans and after giving pro
forma effect thereto and to the application of the proceeds therefrom, in
accordance with the definition of Consolidated Coverage Ratio, the Consolidated
Coverage Ratio would be greater than 2.0:1.0 and (v) the Administrative Agent
shall have received a favorable written opinion (addressed to the Administrative
Agent and the Lenders) of Covington & Burling LLP, counsel for the Borrower (or
other counsel for the Borrower reasonably satisfactory to the Administrative
Agent) in a form reasonably acceptable to the Administrative Agent but in
substance to the effect that the incurrence of such term loans, and each Lien
securing them, will be permitted under the Junior Lien Indenture and each other
indenture or other agreement governing any Material Indebtedness in effect at
the time of the effectiveness of such amendment, and such term loans will
constitute Designated Senior Obligations under the Lien Subordination and
Intercreditor Agreement. Each such term loan established pursuant to this
paragraph shall constitute a Loan under, and shall be entitled to all the
benefits afforded by, this Agreement and the other Credit Documents, and shall,
without limiting the foregoing, benefit equally and ratably from the Guarantees
and security interests and Liens created by the Guarantee and Collateral
Agreement and the other Security Documents. The Borrower shall take any actions
reasonably required by the Administrative Agent to ensure and/or demonstrate
that all requirements under the Credit Documents in respect of the provision and
maintenance of Collateral continue to be satisfied after the establishment of
any such additional term loans. In the event that the Borrower elects to
establish any additional term loans pursuant to this paragraph, the Borrower
will afford the then existing Lenders an opportunity to provide such additional
term loans.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the Agents, the
Arrangers and their Affiliates (including the reasonable fees, charges and
disbursements of Cravath, Swaine & Moore LLP, counsel for the Agents and the
Arrangers, and other local and foreign counsel for the Agents and Arrangers,
limited to one per jurisdiction, in connection with the Security Documents and
the creation and perfection of the Liens created thereby and other local and
foreign law matters) in connection with the arrangement and syndication of the
credit facilities provided for herein, the preparation, execution, delivery and
administration of this Agreement and the other Credit Documents or any
amendments, modifications or waivers of the provisions hereof or thereof
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(whether or not the transactions contemplated hereby or thereby shall be
consummated) and (ii) all reasonable out-of-pocket expenses incurred by the
Agents or any Lender, including the fees, charges and disbursements of any
counsel for the Agents or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights
under this Section, or in connection with the Loans made hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or
similar negotiations in respect of such Loans. The Borrower also shall pay all
out-of-pocket expenses incurred by the Collateral Agent in connection with the
creation and perfection of the security interests contemplated by this
Agreement, including all filing, recording and similar fees and, as more
specifically set forth above, the reasonable fees and disbursements of counsel
(including foreign counsel in connection with Foreign Pledge Agreements).
(b) The Borrower shall indemnify each Agent, each Arranger and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses (including
the reasonable fees, charges and disbursements of any counsel for any
Indemnitee), incurred by or asserted against any Indemnitee and arising out of
(i) the execution or delivery of this Agreement or any other Credit Document or
other agreement or instrument contemplated hereby, the syndication and
arrangement of the credit facilities provided for herein, the performance by the
parties hereto of their respective obligations or the exercise by the parties
hereto of their rights hereunder or thereunder or the consummation of the
Transactions or any other transactions contemplated hereby or thereby, (ii) any
Loan or the use of the proceeds thereof, (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property currently or formerly
owned or operated by the Borrower or any of the Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of the
Subsidiaries, or (iv) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses shall have
resulted from the gross negligence or wilful misconduct of such Indemnitee or
the breach by such Indemnitee of obligations set forth herein or in any other
Credit Document.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to any Agent or any Arranger under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to such Agent or Arranger, as the
case may be, such Lender's percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought based on the
outstanding Loans of such Lender and the other Lenders) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against such Agent or Arranger in its capacity as such.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto,
the Indemnitees and their respective successors and assigns permitted hereby,
except that (i)
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the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, Indemnitees, their respective successors and
assigns permitted hereby, Participants (to the extent provided in paragraph (c)
of this Section) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Agents, the Arrangers and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans at the time owing to it) with the prior written
consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Borrower; provided that no consent of the Borrower shall
be required for an assignment to a Lender, an Affiliate of a Lender,
an Approved Fund, a Federal Reserve Bank or, if an Event of Default
has occurred and is continuing, any other assignee; and
(B) the Administrative Agent; provided that no consent of the
Administrative Agent shall be required for an assignment to an
assignee that is a Lender, an Affiliate of a Lender, a Federal Reserve
Bank or an Approved Fund.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an Affiliate
of a Lender or an Approved Fund, the amount of the Commitment or Loans
of the assigning Lender subject to each such assignment (determined as
of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be less
than $1,000,000 or, if smaller, the entire remaining amount of the
assigning Lender's Commitment or Loans unless each of the Borrower and
the Administrative Agent shall otherwise consent, provided (i) that no
such consent of the Borrower shall be required if an Event of Default
has occurred and is continuing and (ii) in the event of concurrent
assignments to two or more assignees that are Affiliates of one
another, or to two or more Approved Funds managed by the same
investment advisor or by affiliated investment advisors, all such
concurrent assignments shall be aggregated in determining compliance
with this subsection;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and
obligations under this Agreement;
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(C) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; provided that in the event
of concurrent assignments to two or more assignees that are Affiliates
of one another, or to two or more Approved Funds managed by the same
investment advisor or by affiliated investment advisors, only one such
fee shall be payable; and
(D) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the Restatement Date
specified in each Assignment and Assumption the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 2.11,
2.12, 2.13 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section
9.04 shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section. Each assignment hereunder shall be deemed to
be an assignment of the related rights under the Guarantee and Collateral
Agreement and each other applicable Security Document.
(iv) The Administrative Agent shall maintain at one of its offices a
copy of each Assignment and Assumption delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b)
of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and
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Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has
been recorded in the Register as provided in this paragraph.
(vi) By executing and delivering an Assignment and Assumption, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as
follows: (i) such assigning Lender warrants that it is the legal and
beneficial owner of the interest being assigned thereby free and clear of
any adverse claim; (ii) except as set forth in clause (i) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or any other
Credit Document or any other instrument or document furnished pursuant
hereto or thereto, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any of the foregoing, or the financial
condition of the Credit Parties or the performance or observance by the
Credit Parties of any of their obligations under this Agreement or under
any other Credit Document or any other instrument or document furnished
pursuant hereto or thereto; (iii) each of the assignee and the assignor
represents and warrants that it is legally authorized to enter into such
Assignment and Assumption; (iv) such assignee confirms that it has received
a copy of this Agreement, together with copies of any amendments or
consents entered into prior to the date of such Assignment and Assumption
and copies of the most recent financial statements delivered pursuant to
Section 5.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Assumption; (v) such assignee will independently and without
reliance upon the Agents, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (vi) such assignee appoints and authorizes the
Agents to take such action as agents on its behalf and to exercise such
powers under this Agreement and the other Credit Documents as are delegated
to them by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto; (vii) such assignee agrees that it will not
book any Loan at an Austrian branch or through an Austrian Affiliate and
will comply with Section 9.19 of this Agreement; and (viii) such assignee
agrees that it will perform in accordance with their terms all the
obligations that by the terms of this Agreement are required to be
performed by it as a Lender.
(c) (i) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(each a "Participant") in all or a portion of such Lender's rights and/or
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided that (A) such Lender's obligations under
this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in
99
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver that affects such Participant and that, under
Section 9.02, would require the consent of each affected Lender. Subject to
paragraph (c)(ii) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.11, 2.12 and 2.13 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 9.08 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.14(d)
as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.11 or 2.13 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is
made with the Borrower's prior written consent, which consent shall
specifically refer to this exception. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section
2.13 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower,
to comply with Section 2.13(e) as though it were a Lender.
(d) Any Lender may, without the consent of the Borrower or the
Administrative Agent, at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that any Agent or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid and so long
as any Commitment has not expired or terminated. The provisions of Sections
2.11, 2.12, 2.13 and 9.03 and Article VIII shall survive and remain in full
force and effect regardless of the consummation of the transactions contemplated
hereby, the repayment of the Loans,
100
the expiration or termination of the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, the other
Credit Documents and any separate letter agreements with respect to fees payable
to the Administrative Agent or the Arrangers constitute the entire contract
among the parties relating to the subject matter hereof and supersede any and
all previous agreements and understandings, oral or written, relating to the
subject matter hereof. This Agreement shall become effective as provided in
Section 4.01. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement. All the parties hereto on the Restatement Date
consent to the non-ratable prepayment of Loans under the Existing Credit
Agreement on the Restatement Date to the extent such prepayment would require
such consent.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction. No failure to obtain any approval required for the effectiveness
of any provision of this Agreement shall affect the validity or enforceability
of any other provision of this Agreement.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing and the Loans shall have become due and payable
pursuant to Article VII, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each of the Lenders under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each party hereto hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or
101
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
hereto may otherwise have to bring any action or proceeding relating to this
Agreement in the courts of any jurisdiction.
(c) Each party hereto hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Agents and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors who have been informed of the confidential nature of such
Information and instructed to keep such
102
Information confidential, (b) to the extent requested by any regulatory or
self-regulatory authority (including the NAIC), (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) to the extent necessary or advisable
in connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its
obligations, (g) with the written consent of the Borrower or (h) to the extent
such Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to any Agent or any Lender on a
nonconfidential basis from a source other than the Borrower. For the purposes of
this Section, "Information" means all information received from the Borrower or
Persons acting on its behalf relating to the Borrower or its business, other
than any such information that is available to any Agent or any Lender prior to
disclosure by the Borrower on a nonconfidential basis from a source other than
the Borrower that is not known by the recipient to be bound by a confidentiality
agreement or other obligation of confidentiality with respect to such
information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively, the "Charges"), shall exceed
the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Alternate Base Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.14. Security Documents. Each Lender hereby irrevocably
authorizes and directs the Collateral Agent to execute and deliver the
Reaffirmation Agreement, the Guarantee and Collateral Agreement, the Lenders
Lien Subordination and Intercreditor Agreement (and any reaffirmation thereof),
each other Security Document and the European Guarantee and Collateral Agreement
and to carry out the provisions thereof. Each Lender, by executing and
delivering this Agreement, acknowledges receipt of a copy of the Reaffirmation
Agreement, the Guarantee and Collateral Agreement and the European Guarantee and
Collateral Agreement and approves and agrees to be bound by and to act in
accordance with the terms and conditions of the Reaffirmation Agreement, the
Guarantee and Collateral Agreement and each other Security Document insofar as
they relate to or require performance by the Lenders, specifically including (i)
the provisions of Article VI of the Guarantee and Collateral Agreement
(governing the
103
exercise of remedies under the Security Documents and the distribution of the
proceeds realized from such exercise), (ii) the provisions of Articles VIII and
IX of the Guarantee and Collateral Agreement (relating to the duties and
responsibilities of the Collateral Agent thereunder and providing for the
indemnification and the reimbursement of expenses of the Collateral Agent
thereunder by the Lenders), and (iii) the provisions of Section 11.13 of the
Guarantee and Collateral Agreement (providing for releases of Guarantees of and
Collateral securing the Obligations). Each party hereto further agrees that the
foregoing provisions of the Guarantee and Collateral Agreement shall apply to
each other Security Document. In the event that the Borrower shall incur
Indebtedness to refinance or replace Indebtedness under the First Lien Agreement
in compliance with Sections 6.01 and 6.06, each Lender hereby irrevocably
authorizes and directs the Collateral Agent to enter into an intercreditor
agreement on substantially the same terms as those of the Lenders Lien
Subordination and Intercreditor Agreement (as in effect at the time of such
refinancing or replacement) with the holders of such Indebtedness or their
representative.
SECTION 9.15. Additional Financial Covenants. Notwithstanding anything
else contained herein to the contrary, in the event that any maintenance
financial covenant is included in the Third Lien Agreement or any SSLI
Documentation (as defined in Schedule 1.01C), such covenant will be deemed to be
added to Article VI of this Agreement automatically, without the need for any
further action whatsoever.
SECTION 9.16. Lenders Lien Subordination and Intercreditor Agreement.
Reference is made to the Lenders Lien Subordination and Intercreditor Agreement
dated as of April 8, 2005, among JPMorgan Chase Bank, N.A., as collateral agent
for the First Lien Secured Parties referred to therein; Deutsche Bank Trust
Company Americas, as collateral agent for the Second Lien Secured Parties
referred to therein; The Goodyear Tire & Rubber Company; and the subsidiaries of
The Goodyear Tire & Rubber Company named therein (the "Lenders Lien
Subordination and Intercreditor Agreement"). Each Lender (a) hereby consents to
the subordination of the Liens securing the Obligations on the terms set forth
in the Lenders Lien Subordination and Intercreditor Agreement, (b) hereby agrees
that it will be bound by and will take no actions contrary to the provisions of
the Lenders Lien Subordination and Intercreditor Agreement and (c) hereby
authorizes and instructs the Collateral Agent to enter into any reaffirmation of
the Lenders Lien Subordination and Intercreditor Agreement and to subject the
Liens securing the Obligations to the provisions thereof. The foregoing
provisions are intended as an inducement to the First Lien Secured Parties (as
defined in the Lenders Lien Subordination and Intercreditor Agreement) to extend
credit to The Goodyear Tire & Rubber Company and its subsidiaries, and such
First Lien Secured Parties are intended third party beneficiaries of such
provisions and the provisions of the Lenders Lien Subordination and
Intercreditor Agreement.
SECTION 9.17. Effect of Restatement. This Agreement shall supersede
the Existing Credit Agreement from and after the Restatement Date with respect
to the transactions hereunder and with respect to the loans outstanding under
the Existing Credit Agreement as of the Restatement Date. The parties hereto
acknowledge and agree, however, that (a) this Agreement and all other Credit
Documents executed and delivered
104
herewith do not constitute a novation, payment and reborrowing or termination of
the Obligations under the Existing Credit Agreement and the other Credit
Documents as in effect prior to the Restatement Date, (b) such Obligations are
in all respects continuing with only the terms being modified as provided in
this Agreement and the other Credit Documents, (c) the liens and security
interests in favor of the Collateral Agent for the benefit of the Credit Parties
securing payment of such Obligations are in all respects continuing and in full
force and effect with respect to all Obligations and (d) all references in the
other Credit Documents to the Credit Agreement shall be deemed to refer without
further amendment to this Agreement.
SECTION 9.18. USA Patriot Act Notice. Each Lender and each Agent (for
itself and not on behalf of any Lender) hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will
allow such Lender or such Agent, as applicable, to identify the Borrower in
accordance with the Act.
SECTION 9.19. Austrian Matters.
(a) Notices with respect to Austria. Each party to this Agreement
agrees that it will (i) only send notices and other written references to this
Agreement or any other Credit Document (the Agreement, the Credit Documents and
any notices or other written references to the Agreement or any other Credit
Document, each, a "Stamp Duty Sensitive Document") to or from Austria by email
which do not contain the signature of any party (whether manuscript or
electronic, including, for the avoidance of doubt, the name of an individual or
other entity) and (ii) not send fax or scanned copies of a signed Stamp Duty
Sensitive Document to or from Austria.
(b) Agreement to be Kept Outside Austria. No party to this Agreement
shall bring or send to or otherwise produce in Austria (x) an original copy,
notarised copy or certified copy of any Stamp Duty Sensitive Document, or (y) a
copy of any Stamp Duty Sensitive Document signed or endorsed by one or more
parties other than in the event that:
(i) this does not cause a liability of a party to this Agreement
to pay stamp duty in Austria;
(ii) a party to this Agreement wishes to enforce any of its
rights under or in connection with such Stamp Duty Sensitive Document
in Austria and is only able to do so by bringing, sending to or
otherwise producing in Austria (x) an original copy, notarised copy or
certified copy of the relevant Stamp Duty Sensitive Document or (y) a
copy of any Stamp Duty Sensitive Document signed or endorsed by one or
more parties and it would not be sufficient for that party to bring,
send to or otherwise produce in Austria a simple copy (i.e. a copy
which is not an original copy, notarised copy or certified copy) of
the relevant Stamp Duty
105
Sensitive Document for the purposes of such enforcement. In connection
with the foregoing, each party to this Agreement agrees that in any
form of proceedings in Austria simple copies may be submitted by
either party to this Agreement and undertakes to refrain from (I)
objecting to the introduction into evidence of a simple copy of any
Stamp Duty Sensitive Document or raising a defence to any action or to
the exercise of any remedy for the reason of an original or certified
copy of any Stamp Duty Sensitive Document not having been introduced
into evidence, unless such simple copy actually introduced into
evidence does not accurately reflect the content of the original
document and (II) contesting the authenticity (Echtheit) of a simple
copy of any such Stamp Duty Sensitive Document before an Austrian
court or authority, unless such simple copy does not accurately
reflect the content of the original document; or
(iii) a party to this Agreement is required by law, governmental
body, court, authority or agency pursuant to any law or legal
requirement (whether for the purposes of initiating, prosecuting,
enforcing or executing any claim or remedy or enforcing any judgment
or otherwise), to bring an original, notarised copy or certified copy
of any Stamp Duty Sensitive Document into Austria.
(c) Austrian Stamp Duty. Notwithstanding any other provisions in any
of the Credit Documents, if any liability to pay Austrian stamp duties is
triggered:
(i) as a result of a party to this Agreement (1) breaching its
obligations under paragraph (a), (b) or (d) of this Section, or (2)
booking its Loans or making or accepting performance of any rights or
obligations under this Agreement or any of the other Credit Documents
through an entity organized under the laws of the Republic of Austria
or a branch or an Affiliate, located or organized in the Republic of
Austria, of an entity organized under the laws of a jurisdiction other
than the Republic of Austria, that party shall pay such stamp duties;
and
(ii) in circumstances other than those described in clause (i) of
this paragraph (c), the Borrower shall be liable for the payment of
all such stamp duties.
(d) Place of Performance Outside Austria. Each of the parties hereto
agrees that the exclusive place of performance (Erfullungsort) for all rights
and obligations under this Agreement and the other Credit Documents shall be
outside the Republic of Austria, and the payment of amounts under this Agreement
must be made to a bank account outside the Republic of Austria. The
Administrative Agent, the Collateral Agent and each Lender agrees to designate
and maintain one or more accounts at one or more lending offices located outside
the Republic of Austria to which all amounts payable to such party under this
Agreement and the other Credit Documents shall be made.
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
THE GOODYEAR TIRE & RUBBER COMPANY,
by /s/ Damon J. Audia
-------------------------------------
Name: Damon J. Audia
Title: Vice President and Treasurer
JPMORGAN CHASE BANK, N.A., individually
and as Administrative Agent,
by /s/ Bernard J. Lillis
-------------------------------------
Name: Bernard J. Lillis
Title: Managing Director
DEUTSCHE BANK TRUST COMPANY AMERICAS,
individually and as Collateral Agent,
by /s/ Carin Keegan
-------------------------------------
Name: Carin Keegan
Title: Vice President
by /s/ Omayra Laucella
-------------------------------------
Name: Omayra Laucella
Title: Vice president
THE GOODYEAR TIRE & RUBBER COMPANY
AMENDED AND RESTATED
SECOND LIEN CREDIT AGREEMENT
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
AIM FLOATING RATE FUND
by /s/ Thomas Ewald
-------------------------------------
Name: Thomas Ewald
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THE GOODYEAR TIRE & RUBBER COMPANY
AMENDED AND RESTATED
SECOND LIEN CREDIT AGREEMENT
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
ATLAS LOAD FUNDING (HARTFORD), LLC
by /s/ Diana M. Himes
-------------------------------------
Name: Diana M. Himes
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
ATLAS LOAD FUNDING (NAVIGATOR), LLC
by /s/ Diana M. Himes
-------------------------------------
Name: Diana M. Himes
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
AURUM CLO 2002-1 LTD.
by /s/ Eric S. Meyer
-------------------------------------
Name: Eric S. Meyer
Title: Director
by /s/ Mark Rigazio
-------------------------------------
Name: Mark Rigazio
Title: Vice President
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
AVALON CAPITAL LTD. 3
by /s/ Thomas Ewald
-------------------------------------
Name: Thomas Ewald
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
BALLANTYNE FUNDING LLC
by /s/ Kristi Milton
-------------------------------------
Name: Kristi Milton
Title: Assistant Vice president
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
BEAR STEARNS INSTITUTIONAL LOAN MASTER
FUND
by /s/ Jonathan Berg
-------------------------------------
Name: Jonathan Berg
Title: Associate Director
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
BEAR STEARNS LOAN TRUST
by /s/ Jonathan Berg
-------------------------------------
Name: Jonathan Berg
Title: Associate Director
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
BELHURST CLO LTD.
by /s/ Thomas Ewald
-------------------------------------
Name: Thomas Ewald
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
BOSTON HARBOR CLO 2004-1, LTD.
by /s/ Beth Mazor
-------------------------------------
Name: Beth Mazor
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
BUSHNELL CBNA LOAN FUNDING LLC
by /s/ Jeff Parkinson
-------------------------------------
Name: Jeff Parkinson
Title: Attorney
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
CHAMPLAIN CLO, LTD.
by /s/ Thomas Ewald
-------------------------------------
Name: Thomas Ewald
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
CITADEL HILL 2000 LTD.
by /s/ Ken Irvine
-------------------------------------
Name: Ken Irvine
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
CITIBANK, N.A.
by /s/ Christine M. Kanicki
-------------------------------------
Name: Christine M. Kanicki
Title: Attorney
by
-------------------------------------
Name:
----------------------------------
Title:
----------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
DEUTSCHE BANK AG LONDON BRANCH
by /s/ Edward Schaffer
-------------------------------------
Name: Edward Schaffer
Title: Vice President
by /s/ Deirdre Whorton
-------------------------------------
Name: Deirdre Whorton
Title: Assistant Vice President
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
DIVERSIFIED CREDIT PORTFOLIO LTD.
by /s/ Thomas Ewald
-------------------------------------
Name: Thomas Ewald
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
ESPERANCE
by /s/ Neam Ahmed
-------------------------------------
Name: Neam Ahmed
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
FLAGSHIP CLO III
by /s/ Eric S. Meyer
-------------------------------------
Name: Eric S. Meyer
Title: Director
by /s/ Mark Rigazio
-------------------------------------
Name: Mark Rigazio
Title: Vice President
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
FLAGSHIP CLO IV
by /s/ Eric S. Meyer
-------------------------------------
Name: Eric S. Meyer
Title: Director
by /s/ Mark Rigazio
-------------------------------------
Name: Mark Rigazio
Title: Vice President
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
FLAGSHIP CLO V
by /s/ Eric S. Meyer
-------------------------------------
Name: Eric S. Meyer
Title: Director
by /s/ Mark Rigazio
-------------------------------------
Name: Mark Rigazio
Title: Vice President
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
FLAGSHIP CLO VI
by /s/ Eric S. Meyer
-------------------------------------
Name: Eric S. Meyer
Title: Director
by /s/ Mark Rigazio
-------------------------------------
Name: Mark Rigazio
Title: Vice President
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
FOOTHILL CLO I, LTD.
by /s/ Scott P. Quigley
-------------------------------------
Name: Scott P. Quigley
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
THE FOOTHILL GROUP, INC.
by /s/ Scott P. Quigley
-------------------------------------
Name: Scott P. Quigley
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
GALLATIN CLO II 2005-1 LTD.
by /s/ Jonathan Berg
-------------------------------------
Name: Jonathan Berg
Title: Associate Director
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
GALLATIN FUNDING I LTD.
by /s/ Jonathan Berg
-------------------------------------
Name: Jonathan Berg
Title: Associate Director
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
GRAYSTON CLO 2004-1 LTD.
by /s/ Jonathan Berg
-------------------------------------
Name: Jonathan Berg
Title: Associate Director
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
GREENWICH INTERNATIONAL, LTD.
by /s/ Brett Kibbe
-------------------------------------
Name: Brett Kibbe
Title: Senior Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
HALCYON FUND, L.P.
by /s/ Aaron Goldberg
-------------------------------------
Name: Aaron Goldberg
Title: Chief Financial Officer
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
HALCYON LOAN INVESTORS CLO 1, LTD.
by /s/ Aaron Goldberg
-------------------------------------
Name: Aaron Goldberg
Title: Chief Financial Officer
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
HALCYON LOAN INVESTORS CLO II, LTD.
by /s/ Aaron Goldberg
-------------------------------------
Name: Aaron Goldberg
Title: Chief Financial Officer
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
HALCYON STRUCTURED ASSET MANAGEMENT
CLO I LTD.
by /s/ Aaron Goldberg
-------------------------------------
Name: Aaron Goldberg
Title: Chief Financial Officer
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
THE HARTFORD MUTUAL FUNDS, INC.
by /s/ Carlos R. Fogel
-------------------------------------
Name: Carlos R. Fogel
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
KATONAH V, LTD.
by /s/ Thomas Ewald
-------------------------------------
Name: Thomas Ewald
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
LAGUNA FUNDING LLC
by /s/ Kristi Milton
-------------------------------------
Name: Kristi Milton
Title: Assistant Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
LANDMARK CDO LIMITED
by /s/ David S. Jepsky
-------------------------------------
Name: David S. Jepsky
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
LANDMARK II CDO LIMITED
by /s/ David S. Jepsky
-------------------------------------
Name: David S. Jepsky
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
LANDMARK III CDO LIMITED
by /s/ David S. Jepsky
-------------------------------------
Name: David S. Jepsky
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
LANDMARK V CDO LIMITED
by /s/ David S. Jepsky
-------------------------------------
Name: David S. Jepsky
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
LOAN FUNDING IX LLC
by /s/ Thomas Ewald
-------------------------------------
Name: Thomas Ewald
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
MAINSTAY FLOATING RATE FUND
by /s/ F. David Melka
-------------------------------------
Name: F. David Melka
Title: Director
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
MAINSTAY INCOME MANAGER FUND
by /s/ F. David Melka
-------------------------------------
Name: F. David Melka
Title: Director
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
MAINSTAY VP FLOATING RATE PORTFOLIO
by /s/ F. David Melka
-------------------------------------
Name: F. David Melka
Title: Director
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
MAINSTAY INCOME MANAGER FUND
by /s/ F. David Melka
-------------------------------------
Name: F. David Melka
Title: Director
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
MAINSTAY VP FLOATING RATE PORTFOLIO
by /s/ F. David Melka
-------------------------------------
Name: F. David Melka
Title: Director
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
MALIBU CBNA LOAN FUNDING LLC
by /s/ Jeff Parkinson
-------------------------------------
Name: Jeff Parkinson
Title: Attorney
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
MORGAN STANLEY SENIOR FUNDING, INC.
by /s/ Donna M. Souza
-------------------------------------
Name: Donna M. Souza
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
MOSELLE CLO S.A.
by /s/ Thomas Ewald
-------------------------------------
Name: Thomas Ewald
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
NANTUCKET CLO I LTD.
by /s/ Andrew Wigren
-------------------------------------
Name: Andrew Wigren
Title: Portfolio Manager
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
NAUTIQUE FUNDING LTD.
by /s/ Thomas Ewald
-------------------------------------
Name: Thomas Ewald
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
NEW YORK LIFE INSURANCE COMPANY
by /s/ F. David Melka
-------------------------------------
Name: F. David Melka
Title: Corporate Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
by /s/ F. David Melka
-------------------------------------
Name: F. David Melka
Title: Director
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
NYLIM FLATIRON CLO 2003-1 LTD.
by /s/ F. David Melka
-------------------------------------
Name: F. David Melka
Title: Director
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
NYLIM FLATIRON 2004-1 LTD.
by /s/ F. David Melka
-------------------------------------
Name: F. David Melka
Title: Director
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
NYLIM FLATIRON 2005-1 LTD.
by /s/ F. David Melka
-------------------------------------
Name: F. David Melka
Title: Director
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
NYLIM FLATIRON 2006-1 LTD.
by /s/ F. David Melka
-------------------------------------
Name: F. David Melka
Title: Director
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
NYLIM INSTITUTIONAL FLOATING RATE FUND
L.P.
by /s/ F. David Melka
-------------------------------------
Name: F. David Melka
Title: Director
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
PINEHURST TRADING INC.
by /s/ Kristi Milton
-------------------------------------
Name: Kristi Milton
Title: Assistant Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
SAGAMORE CLO LTD.
by /s/ Thomas Ewald
-------------------------------------
Name: Thomas Ewald
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
SARATOGA CLO I, LIMITED
by /s/ Thomas Ewald
-------------------------------------
Name: Thomas Ewald
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
STEDMAN CBNA LOAN FUNDING LLC
by /s/ Jeff Parkinson
-------------------------------------
Name: Jeff Parkinson
Title: Attorney
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
TRUMBULL THC2 LOAN FUNDING LLC
by /s/ Jeff Parkinson
-------------------------------------
Name: Jeff Parkinson
Title: Attorney
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
WASATCH CLO LTD.
by /s/ Thomas Ewald
-------------------------------------
Name: Thomas Ewald
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated Second Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
WATERVILLE FUNDING LLC
by /s/ Kristi Milton
-------------------------------------
Name: Kristi Milton
Title: Assistant Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------