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EXHIBIT 4.1
CONFORMED COPY
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CREDIT AGREEMENT [364-Day Facility]
Dated as of August 20, 1999
among
THE GOODYEAR TIRE & RUBBER COMPANY,
THE LENDERS NAMED HEREIN,
and
THE CHASE MANHATTAN BANK
as Advisor, Lead Arranger and Book Manager
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TABLE OF CONTENTS
Article Section Page
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I. DEFINITIONS
1.01 Defined Terms .................................. 1
1.02 Terms Generally ................................ 16
II. THE CREDITS
2.01 Commitments ................................... 17
2.02 Loans ......................................... 17
2.03 Competitive Bid Procedure ..................... 19
2.04 Standard Borrowing Procedure .................. 22
2.05 Refinancings .................................. 23
2.06 Fees .......................................... 24
2.07 Repayment of Loans; Evidence of
Debt; Conversion and Continuation
of Standard Borrowings ........................ 25
2.08 Interest on Loans ............................. 28
2.09 Default Interest .............................. 29
2.10 Unavailability of LIBO Rate
and CD Rate Quotations ........................ 29
2.11 Termination, Reduction, Extension
and Addition of Commitments ................... 30
2.12 Prepayment .................................... 31
2.13 Reserve Requirements;
Change in Circumstances ....................... 33
2.14 Change in Legality ............................ 35
2.15 Pro Rata Treatment ............................ 36
2.16 Payments ...................................... 37
2.17 Taxes ......................................... 37
2.18 Termination or Assignment
of Commitments ................................ 40
III. REPRESENTATIONS AND WARRANTIES............................ 40
IV. CONDITIONS OF LENDING
4.01 All Borrowings ................................ 42
4.02 First Borrowing ............................... 43
V. AFFIRMATIVE COVENANTS..................................... 43
VI. NEGATIVE COVENANTS........................................ 45
VII. EVENTS OF DEFAULT ........................................ 47
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VIII. THE AGENT ................................................ 51
IX. MISCELLANEOUS
9.01 Notices ....................................... 54
9.02 Survival of Agreement ......................... 54
9.03 Binding Effect; Successors
and Assigns ................................... 55
9.04 Applicable Law ................................ 55
9.05 Waivers; Amendment ............................ 55
9.06 Interest Rate Limitation ...................... 56
9.07 Entire Agreement .............................. 57
9.08 Information; Access and
Confidentiality ............................... 57
9.09 Severability .................................. 58
9.10 Counterparts ........................... ...... 58
9.11 Headings ...................................... 58
9.12 Jurisdiction; Consent to Service
of Process ................................... 58
9.13 Stamp Taxes ................................... 59
9.14 Change of Control Option ...................... 60
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Notice of Competitive Bid Request
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid Accept/Reject Letter
Exhibit A-5 Form of Standby Borrowing Request
Exhibit B Form of Opinion of Counsel
Exhibit C Form of Schedule of Compliance
Exhibit D Form of Agreement Providing for Additional Lender
Exhibit E Form of Promissory Note to Facilitate Assignments to
Federal Reserve Banks
Schedule 2.01 Commitments; Addresses for Notices and
Reserve Percentages.
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CREDIT AGREEMENT [364-Day Facility] dated as of August 20,
1999, among THE GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation
(the "Borrower"), the lenders listed in Schedule 2.01 (the "Lenders")
and THE CHASE MANHATTAN BANK, a New York banking corporation, as agent
for the Lenders (in such capacity, the "Agent").
The Borrower has requested the Lenders to extend credit to the Borrower
in order to enable it to borrow on a standby revolving credit basis on and after
the date hereof and at any time and from time to time prior to the Commitment
Termination Date (as herein defined), and thereafter to have outstanding prior
to the Maturity Date, a principal amount not in excess of $1,300,000,000 at any
time outstanding. The Borrower has also requested the Lenders to provide a
procedure pursuant to which the Borrower may invite the Lenders to bid on an
uncommitted basis on borrowings by the Borrower. The Lenders are willing to
extend such credit to the Borrower on the terms and subject to the conditions
herein set forth.
Accordingly, the Borrower, the Lenders and the Agent agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR BORROWING" shall mean a Borrowing comprised of ABR Loans.
"ABR LOAN" shall mean any Standard Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ADJUSTED CD RATE" shall mean, with respect to any CD Loan, the rate
per annum (rounded upward, if necessary, to the nearest 1/1000th of 1%)
equivalent to the sum of (i) the quotient of (x) the CD Rate with respect to the
Interest Period in respect of such CD Loan, divided by (y) one minus the CD
Reserve Requirement of the applicable Lender, if any, PLUS (ii) the Assessment
Rate of the applicable Lender, if any. The Adjusted CD Rate shall be
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determined as of the first day of, and shall remain constant throughout, the
applicable Interest Period.
"ADJUSTED LIBO RATE" shall mean, with respect to any Eurodollar Loan,
the rate per annum (expressed as a percentage rounded upward, if necessary, to
the nearest 1/1000th of 1%) equivalent to the sum of (i) the quotient of (x) the
LIBO Rate for the Interest Period in respect of such Eurodollar Loan, divided by
(y) one minus the Eurodollar Reserve Requirement, if any. The Adjusted LIBO Rate
shall be the rate appropriately determined to be in effect on the first day of,
and shall remain constant throughout, such Interest Period. The Eurodollar
Reserve Requirement shall be determined as at the first day of, and shall remain
constant throughout, such Interest Period.
"ADMINISTRATIVE FEES" shall have the meaning assigned to such term in
Section 2.06(b).
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) 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%. For purposes hereof, "PRIME RATE"
shall mean the rate of interest per annum publicly announced from time to time
by the Agent as its prime rate in effect at its principal office in New York
City; each change in the Prime Rate shall be effective on the date such change
is publicly announced as effective. "FEDERAL FUNDS EFFECTIVE RATE" shall mean,
for any day, the weighted average 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 which
is a Business Day, the average of the quotations for the day of such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it. If for any reason the Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Federal Funds Effective Rate for any reason,
including the inability or failure of the Agent to obtain sufficient quotations
in accordance with the terms thereof, the Alternate Base Rate shall be
determined without regard to clause (b) of the first sentence of this definition
until the circumstances giving rise to such inability no longer exist. Any
change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective on the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
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"ANNUAL PERIOD" shall mean a period of four complete, consecutive
fiscal quarters of the Borrower, taken together and constituting one accounting
period.
"ASSESSMENT RATE" shall mean, at any date as of which any determination
thereof is being or to be made and with respect to any CD Loan and the
applicable Interest Period in respect of which any determination thereof is
being or to be made, the aggregate of the net annual assessment rates or similar
fees or charges (expressed on a per annum percentage basis, rounded upward, if
necessary, to the nearest 1/1000th of 1%), if any, paid by the Lender making
such Loan on its Dollar time deposits in the United States of America insured by
the Federal Deposit Insurance Corporation (or any successor agency) or any other
Governmental Body which has general jurisdiction over such Lender and such
rates, fees or charges, if any, are measured with respect to Dollar time
deposits (including certificates of deposit and equivalent instruments) with
such Lender in the United States of America; such rates, fees or charges, if
any, shall be determined by annualizing the then most recent assessment rates or
similar fees or charges levied on such Lender by said Corporation or other
Governmental Body with respect to such Dollar time deposits evidenced by
certificates of deposit or equivalent instruments in amounts and for periods
substantially equal to the applicable Interest Period.
"AUTHORIZED OFFICER" shall mean (i) any of the Chairman of the Board,
any Vice Chairman of the Board, the President, any Executive Vice President, any
Vice President and the Treasurer of the Borrower, and (ii) in respect of all
matters relating to this Agreement other than the execution and delivery of this
Agreement, the Comptroller, the Secretary, any Assistant Treasurer, any
Assistant Comptroller or any Assistant Secretary of the Borrower and any other
person designated in writing by any officer specified in clause (i) above as
duly authorized to act on behalf of the Borrower hereunder.
"BOARD" shall mean the Board of Governors of the Federal Reserve System
of the United States.
"BORROWING" shall mean a group of Loans of a single Type made by the
Lenders (or, in the case of a Competitive Borrowing, by the Lender or Lenders
whose Competitive Bids have been accepted pursuant to
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Section 2.03) on a single date and as to which a single Interest Period is in
effect.
"BUSINESS DAY" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; PROVIDED, HOWEVER, 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.
"CD BORROWING" shall mean a Borrowing comprised of CD Loans.
"CD LOAN" shall mean any Standard Loan bearing interest at a rate
determined by reference to the Adjusted CD Rate in accordance with the
provisions of Article II.
"CD RATE" shall mean with respect to any CD Borrowing for any Interest
Period, the rate of interest (expressed as an annual rate) equal to the
arithmetic average (expressed as a percentage rounded upward, if necessary, to
the nearest 1/1000th of 1%) of the rates specified as (x) the "Average" rate and
(y) the "Secondary CDs" rate, each such rate to be in respect of certificates of
deposits or similar instruments having a maturity which is equal or
substantially equal to such Interest Period, which rates appear on the display
designated as page "CDNY" on the Reuter System (or on such other display on the
Reuter System as shall then display rates for the purchase at face value of
certificates of deposit or equivalent instruments) at 10:00 a.m., New York City
time, on the first day of such Interest Period; PROVIDED, THAT, if no rates can
be obtained from page "CDNY" of the Reuter System (or such other display), CD
Rate shall be equal to the rate set forth under the caption "Certificates of
Deposit" in the daily statistical release published by the Federal Reserve Bank
of New York entitled "Composite 3:30 p.m. Quotations for U.S. Government
Securities", or any successor publication (the "Composite Quotations"), for the
first day of such Interest Period in respect of certificates of deposit having a
maturity substantially equal to such Interest Period; PROVIDED, FURTHER, that if
no rates are available from the Reuter System or the Composite Quotations, or
the Agent or the Borrower shall in good faith reasonably determine (and promptly
give notice to the other party of such determination) that the CD Rate in
respect of such Interest Period determined as aforesaid is materially higher (as
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reasonably determined by the Borrower) or lower (as reasonably determined by the
Agent) than the prevailing rate of interest the Agent is required to pay to
acquire funds evidenced by non-negotiable certificates of deposit in amounts of
$1,000,000 or more for a period substantially equal to such Interest Period,
then, in any such event, CD Rate shall mean, with respect to such Interest
Period and to the applicable CD Borrowing, the arithmetic average (expressed as
a percentage rounded upward, if necessary, to the nearest 1/1000th of 1%) of the
offered rates (each expressed as a per annum rate) offered by leading New York
City dealers in negotiable certificates of deposit at 10:30 a.m., New York City
time, on the first day of such Interest Period for the purchase at face value
from the Agent of negotiable certificates of deposit or equivalent instruments
in amounts of $1,000,000 or more for the period of, or for a period comparable
or substantially equal to, such Interest Period.
"CD RESERVE REQUIREMENT" shall mean, at any date as of which any
determination thereof is being or to be made and with respect to any CD Loan and
the applicable Interest Period in respect of which any determination thereof is
being or to be made, the amount (expressed as a decimal, rounded upward, if
necessary, to six decimal places) equal to the sum of (i) the aggregate of all
reserve requirements (including, without duplication, all basic, supplemental,
marginal and other reserves) in effect on such date (as established under
Regulation D of the Board, or any other regulation of the Board which prescribes
reserve requirements applicable to non-personal time deposits then in effect and
applicable to the Lender making such Loan), on Dollar non-personal time deposits
in the United States of the type used as a reference in determining the CD Rate
and having a maturity equal or comparable to the applicable Interest Period, as
and to the extent that such Lender is subject to such requirements, and (ii) the
aggregate of all reserve or similar requirements of any other Governmental Body
having jurisdiction over such Lender in respect of such Dollar non-personal time
deposits in the United States having a maturity equal or comparable to the
applicable Interest Period.
"CLOSING DATE" shall mean August 20, 1999.
"CODE" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
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"COMMITMENT" shall mean, with respect to each Lender, the commitment of
such Lender hereunder as set forth in Schedule 2.01 hereto, as such Lender's
Commitment may be permanently terminated or reduced from time to time pursuant
to Section 2.11. Schedule 2.01 will be deemed to have been appropriately amended
to reflect any addition of a Commitment pursuant to Section 2.11(d), assignment
pursuant to Section 9.03 or termination of any Commitment.
"COMMITMENT TERMINATION DATE" shall mean August 18, 2000, or any date
to which the Commitment Termination Date shall have been extended pursuant to
Section 2.11(e).
"COMPETITIVE BID" shall mean an offer by a Lender to make a Competitive
Loan pursuant to Section 2.03.
"COMPETITIVE BID ACCEPT/REJECT LETTER" shall mean a notification made
by the Borrower pursuant to Section 2.03(d) in the form of Exhibit A-4.
"COMPETITIVE BID RATE" shall mean, as to any Competitive Bid made by a
Lender pursuant to Section 2.03(b), (i) in the case of a Eurodollar Loan, the
Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate of interest
offered by the Lender making such Competitive Bid.
"COMPETITIVE BID REQUEST" shall mean a request made pursuant to Section
2.03 in the form of Exhibit A-1.
"COMPETITIVE BORROWING" shall mean a borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Lender or Lenders
whose Competitive Bids for such Borrowing have been accepted by the Borrower
under the bidding procedure described in Section 2.03.
"COMPETITIVE LOAN" shall mean a Loan from a Lender to the Borrower
pursuant to the bidding procedure described in Section 2.03. Each Competitive
Loan shall be a Eurodollar Competitive Loan or a Fixed Rate Loan.
"CONSOLIDATED" shall refer to the consolidation of the accounts of the
Borrower and the Subsidiaries in accordance with generally accepted accounting
principles, including principles of consolidation.
"CONSOLIDATED DEBT" shall mean, as at the date as of which any
determination thereof is being or to be made,
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Debt of the Borrower and the Subsidiaries, without duplication, determined on a
Consolidated basis in accordance with generally accepted accounting principles.
"CONSOLIDATED FINANCIAL STATEMENTS OF THE BORROWER" shall mean the
Consolidated balance sheet of the Borrower and Subsidiaries as at December 31,
1998 and 1997 and the Consolidated statements of income, shareholders' equity
and cash flows for each of the three years in the period ended December 31,
1998, and the Notes to Financial Statements in respect thereof, together with
the Report of Price Waterhouse, independent accountants, in respect thereof, all
as set forth at pages 43 through 68, inclusive, of the Annual Report on Form
10-K for the Borrower for the year ended December 31, 1998, a copy of which has
heretofore been delivered to each of the Lenders.
"CONSOLIDATED INTEREST EXPENSE" shall mean, with respect to any Annual
Period in respect of which a determination thereof is being or to be made,
without duplication and excluding intercorporate transactions among the Borrower
and the Subsidiaries, the sum of (i) Consolidated interest accrued in respect of
all Consolidated Debt of the Borrower and the Subsidiaries during such Annual
Period, whether or not paid and whether expensed or capitalized, calculated and
determined after giving effect, as and to the extent permitted by generally
accepted accounting principles, to any amounts paid or received by the Borrower
or the Subsidiaries under interest rate exchange and similar agreements and
arrangements which are intended to hedge or limit interest rates and expenses,
PLUS (ii) amortization of debt expense and discount or premium relating to any
such Debt (including and giving effect to any similar amounts paid or received
by the Borrower and the Subsidiaries under any such interest rate exchange or
similar agreement or arrangement) during such period, whether or not paid and
whether expensed or capitalized, PLUS (iii) the portion of rental expense
payable during such period pursuant to all capital lease obligations (which are
recorded as Debt) representing imputed interest recorded in accordance with
generally accepted accounting principles.
"CONSOLIDATED NET WORTH" shall mean, as at the end of any fiscal
quarter in respect of which a determination thereof is being or to be made, the
Consolidated stated capital, surplus and retained earnings of the Borrower and
the Subsidiaries, before (i) foreign currency translation adjustment and (ii)
the effect (on such retained earnings)
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of the recognition of the one time charge for the "transition obligation" of the
Borrower and the Subsidiaries upon the Borrower's adoption of, and under and in
accordance with the applicable provisions of, Statement of Financial Accounting
Standards No. 106, "Employers' Accounting for Postretirement Benefits other than
Pensions" in 1992.
"CONSOLIDATED OPERATING INCOME" shall mean, with respect to any Annual
Period in respect of which a determination thereof is being or to be made, the
Consolidated net sales of the Borrower and the Subsidiaries for such Annual
Period, PLUS other income, MINUS cost of goods sold and selling, administrative
and general expense properly attributable to continuing operations of the
Borrower and the Subsidiaries for such Annual Period.
"DEBT" shall mean and shall include, as at the date as of which any
determination thereof is being or is to be made and in respect of any Person,
without duplication and excluding in the case of the Borrower and the
Subsidiaries intercorporate debt and other intercorporate obligations solely
among the Borrower and the Subsidiaries, all (i) indebtedness of such Person for
borrowed money, (ii) obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) obligations of such Person to pay the
deferred purchase price of property or services under conditional sales or other
similar agreements which provide for the deferral of the payment of the purchase
price for a period in excess of one year following the date of such Person's
receipt and acceptance of the complete delivery of such property and/or
services, (iv) obligations of such Person as lessee under leases which
obligations are, in accordance with generally accepted accounting principles,
recorded as capital lease obligations, and (v) obligations of such Person under
direct or indirect guaranties in respect of, and obligations (contingent or
otherwise) of such Person to purchase or otherwise acquire, indebtedness or
obligations of others of the kinds referred to in clauses (i) through (iv)
above. Whenever any determination of the amount of Debt (or of Consolidated Debt
or Funded Debt) is required or permitted to be, or is otherwise being or to be,
made for any purpose under this Agreement, the amount of any such Debt
denominated in any currency other than Dollars shall be calculated at the Dollar
Equivalent of such Debt as at the date as of which such determination of the
amount of Debt is being or to be made, except that, if all or any portion of the
principal amount of any such Debt which is payable in a currency other than
Dollars is hedged into Dollars, the
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principal amount of such hedged Debt, or the hedged portion thereof, shall be
deemed to be equal to the amount of Dollars specified in, or determined pursuant
to, the applicable hedging contract.
"DOLLAR EQUIVALENT" shall mean, in respect of any amount of any
currency, and as at the date and time as of which any determination thereof is
being or to be made, that number of Dollars into which such amount of currency
may be converted on such date, which shall be equal to the product of (a) the
principal amount of such currency (expressed in standard units of such currency)
multiplied by (b) the prevailing spot rate for exchanging such currency into
Dollars as quoted on page "Spot" of the Reuter System as at such date and time
as of which the determination of Dollar Equivalent is being or to be made, or,
if no rate is quoted in respect of such currency on the Reuter System display
designated page "Spot" as at such date and time, the prevailing spot rate for
exchanging such currency into Dollars in the New York City foreign currency
exchange market (or, if a more substantial and liquid market for the exchange of
such currency, the London currency exchange market or the currency exchange
market in the principal financial center of such currency) as at such date and
time.
"DOLLARS" or "$" shall mean lawful money of the United States of
America.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time, and the regulations promulgated
and the rulings issued thereunder.
"ERISA LIABILITIES" shall mean, as at the date as of which any
determination in respect thereof is being or to be made, the minimum liability
with respect to Plans which would be required to be reflected at such time as a
liability on the Consolidated balance sheet of the Borrower and the Subsidiaries
under paragraphs 36 and 70 of Statement of Financial Accounting Standards No. 87
as such statement may from time to time be amended, modified or supplemented, or
under any successor statement issued in replacement thereof.
"EURODOLLAR BORROWING" shall mean a Borrowing comprised of Eurodollar
Loans.
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"EURODOLLAR COMPETITIVE LOAN" shall mean any Competitive Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"EURODOLLAR LOAN" shall mean any Eurodollar Competitive Loan or
Eurodollar Standard Loan.
"EURODOLLAR RESERVE REQUIREMENT" shall mean, at any date as of which
any determination thereof is being or to be made and with respect to any
Eurodollar Loan and the applicable Interest Period in respect of which any
determination thereof is being or to be made, the amount (expressed as a
decimal, rounded upward, if necessary, to six decimal places) of the applicable
statutory reserve or similar requirements (including, without duplication, all
basic, supplemental, marginal, emergency, special and other reserves), if any,
on Eurodollar deposits applicable to and imposed upon the applicable Lender from
time to time under regulations issued from time to time by the Board (or any
successor) for determining the minimum reserve requirement (including, without
limitation, any such reserve requirements under Regulation D of the Board and
any emergency, supplemental or other marginal reserve requirements), or by any
other Governmental Body having jurisdiction over such Lender, applicable to such
Lender with respect to liabilities or assets consisting of or including
Eurocurrency liabilities (as defined in Regulation D of the Board, as in effect
from time to time) having a term substantially equal to such Interest Period.
"EURODOLLAR STANDARD LOAN" shall mean any Standard Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Article VII.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and any successor Federal statute.
"FACILITY FEE" shall have the meaning assigned to such term in Section
2.06(a).
"FEES" shall mean the Facility Fee, the Utilization Fee and the
Administrative Fees.
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"FIXED RATE BORROWING" shall mean a Borrowing comprised of Fixed Rate
Loans.
"FIXED RATE LOAN" shall mean any Competitive Loan bearing interest at a
fixed percentage rate per annum (expressed in the form of a decimal to no more
than four decimal places) specified by the Lender making such Loan in its
Competitive Bid.
"FUNDED DEBT" shall mean and include, as at any date as of which any
determination thereof is being or to be made, any Debt of the Borrower which by
its terms (i) matures more than one year after the date on which it was issued,
incurred, assumed or guaranteed by the Borrower, or (ii) matures one year or
less after the date it was issued, incurred, guaranteed or assumed which at such
date may be renewed at the sole election or option of the Borrower so as to
mature more than one year after such date.
"GOVERNMENTAL BODY" shall mean the United States of America, any State
thereof, any other country or any political subdivision of such other country,
or any department, agency, commission, board, bureau or instrumentality of the
United States of America, any State thereof, any other country or political
subdivision of such other country or any subdivision of any of them, and, to the
extent the term is used in respect of the Agent or any Lender, any
quasi-governmental body, agency or authority (including any central bank)
exercising regulatory authority over the Agent or any Lender pursuant to
applicable law in respect of the transactions contemplated by this Agreement.
"INTEREST PAYMENT DATE" shall mean, with respect to any Loan, the last
day of the Interest Period applicable thereto and, in the case of a Eurodollar
Loan with an Interest Period of more than three months' duration or a Fixed Rate
Loan or a CD Loan with an Interest Period of more than 90 days' duration, each
day that would have been an Interest Payment Date for such Loan had successive
Interest Periods of three months' duration or 90 days' duration, as the case may
be, been applicable to such Loan and, in addition, the date of any refinancing
or conversion of such Loan with or to a Loan of a different Type.
"INTEREST PERIOD" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
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may be, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3, 6 or 12 months thereafter (or, in the case of a Eurodollar Competitive
Borrowing, on any day that is 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 or 12 months
thereafter), as the Borrower may elect, (b) as to any CD Borrowing, a period of
30, 60, 90, 180 or 360 days' duration, as the Borrower may elect, commencing on
the date of such Borrowing, (c) as to any ABR Borrowing, the period commencing
on the date of such Borrowing and ending on the date 90 days thereafter or, if
earlier, on the Maturity Date or the date of prepayment of such Borrowing and
(d) as to any Fixed Rate Borrowing, the period commencing on the date of such
Borrowing and ending on the date specified in the Competitive Bids in which the
offers to make the Fixed Rate Loans comprising such Borrowing were extended,
which shall not be earlier than seven days after the date of such Borrowing or
later than the Maturity Date; PROVIDED, HOWEVER, that 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, in the case of Eurodollar
Loans only, 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. Interest shall accrue from and including the first day of an
Interest Period to but excluding the last day of such Interest Period.
"LIBO RATE" means, with respect to any Interest Period relating to a
Eurodollar Loan, the rate of interest (expressed as an annual rate) equal to the
arithmetic average (expressed as a percentage rounded upward, if necessary, to
the nearest 1/1000th of 1%) of the offered rates for deposits in Dollars for a
period substantially equal to such Interest Period of the banks whose rates
appear on the Bloomberg's British Banker Association rate page, or on any
successor or substitute page for such service as shall then display the London
interbank offered rates for deposits in Dollars quoted by selected banks (page
"LIBO" or such other display being herein referred to as the "Reuter Screen"),
for delivery on the first day of such Interest Period, such rate to be
established from quotes on the Reuter Screen at (or as near to as practicable)
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period (which shall be a Business Day); PROVIDED, THAT, if no rates can
be obtained from the Reuter Screen, the LIBO Rate shall be equal to the
arithmetic average (expressed as a percentage rounded upward, if
12
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16
necessary, to the nearest 1/1000th of 1%) of the rates (expressed as annual
rates) at which deposits in Dollars in amounts of $5,000,000 or more for a
period substantially equal to such Interest Period are offered by the LIBOR
Reference Banks to prime banks in the London interbank market for delivery on
the first day of such Interest Period, such rates to be established from quotes
obtained at (or as near as practicable to) 12:00 noon (London time) two Business
Days prior to the first day of such Interest Period (which shall be a Business
Day); PROVIDED FURTHER, THAT, if with respect to any such Interest Period fewer
than two LIBOR Reference Banks are offering quotations, then LIBOR shall be
equal to the arithmetic average (rounded upward, if necessary, to the nearest
1/1000th of 1%) of the rates (expressed as annual rates) at which the Reference
Banks are offered deposits in Dollars in New York in amounts of $5,000,000 or
more for delivery on the first day of such Interest Period for a period
substantially equal to the Interest Period by leading banks in the New York
interbank market as of 11:00 a.m. (New York time) on the first day of such
Interest Period (which shall be a business day). As used herein, the term "LIBOR
REFERENCE BANKS" shall mean [Banque Nationale De Paris, Canadian Imperial Bank
of Commerce, Commerzbank Aktiengesellschaft and The Sumitomo Bank, Limited], and
the term "REFERENCE BANKS" shall mean [Bank of America NT&SA, The Chase
Manhattan Bank, Citibank, N.A. and Morgan Guaranty Trust Company of New York].
"LIEN" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset or (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset.
"LOAN" shall mean a Competitive Loan or a Standard Loan, whether made
as a Eurodollar Loan, a CD Loan, an ABR Loan or a Fixed Rate Loan, as permitted
hereby.
"MAJORITY LENDERS" shall mean, at any time, Lenders having Commitments
representing at least a majority of the Total Commitment.
"MANUFACTURING FACILITY" shall mean any plant, other facility or
equipment owned by the Borrower which is used primarily to manufacture
automotive or other products and is located within the United States of America,
but
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17
shall not include (i) retread plants, facilities or equipment, (ii) plants,
facilities or equipment which, in the opinion of the Board of Directors of the
Borrower, are not of material importance to the total business conducted by the
Borrower and the Subsidiaries, or (iii) plants, facilities or equipment which,
in the opinion of the Board of Directors of the Borrower, are used primarily for
transportation, marketing or warehousing.
"MARGIN" shall mean, as to any Eurodollar Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to no more
than four decimal places) to be added to or subtracted from the LIBO Rate in
order to determine the interest rate applicable to such Loan, as specified in
the Competitive Bid relating to such Loan.
"MATURITY DATE" shall mean the second anniversary of the Commitment
Termination Date.
"PERSON" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership or Governmental Body.
"PLAN" shall mean an employee benefit plan, other than a Multiemployer
Plan (as defined in Section 4001(a)(3) of ERISA), which (i) is (or, in the event
that any such plan has been terminated within five years of a transaction
described in Section 4069 of ERISA, was) maintained for employees of the
Borrower (or any trade or business which would be considered as under common
control with the Borrower within the meaning of Section 4001(b) of ERISA) and
subject to Title IV of ERISA, and (ii) has assets having an aggregate market
value in excess of $100,000,000.
"REQUIRED LENDERS" shall mean, at any time, Lenders having Commitments
representing at least two-thirds of the Total Commitment or, for purposes of
acceleration pursuant to clause (ii) of Article VII, Lenders holding Loans
representing at least two-thirds of the aggregate principal amount of the Loans
outstanding.
"REUTER SYSTEM" means the Reuter Money Service Monitor System.
"SCHEDULE OF COMPLIANCE" shall mean a Schedule of Compliance,
substantially in the form of Exhibit C, prepared by the Borrower and delivered
to the Lenders pursuant to subsection (c) of Article V.
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"STANDARD BORROWING" shall mean a borrowing consisting of simultaneous
Standard Loans from each of the Lenders.
"STANDARD BORROWING REQUEST" shall mean a request made pursuant to
Section 2.04 in the form of Exhibit A-5.
"STANDARD LOANS" shall mean the revolving loans made by the Lenders to
the Borrower pursuant to Section 2.04. Each Standard Loan shall be a Eurodollar
Standard Loan, a CD Loan or an ABR Loan.
"SUBSIDIARY" shall mean any corporation, partnership, limited liability
company, joint venture, trust or estate of which (or in which) more than 50% of
(i) the outstanding capital stock having ordinary voting power
to elect a majority of the board of directors of such corporation
(irrespective of whether or not at the time capital stock of any other
class or classes of such corporation shall or might have voting power
upon the occurrence of any contingency),
(ii) the interest in the capital or profits of such
partnership, limited liability company or joint venture, or
(iii) the beneficial interest of such trust or estate,
is at the time directly or indirectly owned by the Borrower, by the Borrower and
one or more other Subsidiaries, or by one or more other Subsidiaries.
"SUPPLEMENTAL AMOUNT" shall mean, as at the end of any fiscal quarter
of the Borrower in respect of which a determination thereof is being or to be
made, the Dollar amount (if a positive number), if any, which is equal to the
product of (x) the remainder obtained by subtracting $2.25 billion from the
Consolidated Net Worth of the Borrower as at the end of such fiscal quarter,
multiplied by (y) .50.
"TOTAL COMMITMENT" shall mean at any time the aggregate amount of the
Lenders' Commitments, as in effect at such time.
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"TYPE", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, "RATE" shall include the LIBO
Rate, the CD Rate, the Alternate Base Rate and the Fixed Rate.
"UTILIZATION FEE" shall have the meaning assigned to such term in
Section 2.06(b).
SECTION 1.02. TERMS GENERALLY. The definitions in Section 1.01 shall
apply equally to both 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 be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with generally accepted accounting principles in the
United States, as in effect on the date of this Agreement.
ARTICLE II. THE CREDITS
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SECTION 2.01. COMMITMENTS. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, to make Standard Loans to the Borrower, at
any time and from time to time on and after the date hereof and until (and
including) the Commitment Termination Date or the date of any earlier
termination of the Commitment of such Lender, in an aggregate principal amount
at any time outstanding not to exceed such Lender's Commitment minus the amount
by which the Competitive Loans outstanding at such time shall be deemed to have
used such Commitment pursuant to Section 2.15, subject, however, to the
conditions that (a) at no time shall (i) the sum of (x) the outstanding
aggregate principal amount of all Standard Loans made by all Lenders plus (y)
the outstanding aggregate principal amount of all Competitive Loans made by all
Lenders exceed (ii) the Total Commitment and (b) except as otherwise provided in
Section 2.07(a), at all times the outstanding aggregate principal amount of all
Standard Loans made by each Lender shall equal the product of (i) the percentage
which its Commitment represents of the Total Commitment times (ii) the
outstanding aggregate principal amount of all Standard Loans made pursuant to
Section 2.04. Each Lender's Commitment is set forth opposite its respective name
in Schedule 2.01. Such Commitments may be terminated, reduced or extended from
time to time pursuant to Section 2.11.
Within the foregoing limits, the Borrower may borrow, pay or prepay and
reborrow hereunder, on and after the Closing Date and prior to the Commitment
Termination Date, subject to the terms, conditions and limitations set forth
herein.
SECTION 2.02. LOANS. (a) Each Standard Loan shall, except as otherwise
provided in Section 2.07(a), be made as part of a Borrowing consisting of Loans
made by the Lenders ratably in accordance with their Commitments; PROVIDED,
HOWEVER, that the failure of any Lender to make any Standard Loan shall not in
itself relieve any other Lender of its obligation to lend hereunder (it being
understood, however, that no Lender shall be responsible for the failure of any
other Lender to make any Loan required to be made by such other Lender). Each
Competitive Loan shall be made in accordance with the procedures set forth in
Section 2.03. The Standard Loans or Competitive Loans comprising any Borrowing
shall be in an aggregate principal amount which is an integral multiple of
$1,000,000 and not less than $25,000,000 in the case of Standard Loans and
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X-4.1-20
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$5,000,000 in the case of Competitive Loans (or an aggregate principal amount
equal to the remaining balance of the available Total Commitment).
(b) Each Competitive Borrowing shall be comprised entirely of
Eurodollar Competitive Loans or Fixed Rate Loans, and each Standard Borrowing
shall be comprised entirely of Eurodollar Standard Loans, CD Loans or ABR Loans,
as the Borrower may request pursuant to Section 2.03 or 2.04, as applicable.
Borrowings of more than one Type or of the same Type and having different
Interest Periods may be outstanding at the same time. For purposes of the
foregoing, Loans of different Types and Loans having different Interest Periods,
regardless of whether they commence on the same date, shall be considered
separate Loans and separate Borrowings.
(c) Subject to Section 2.05, each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Agent in New York, New York, not later than
11:30 a.m., New York City time, and the Agent shall transfer the entire amount
received to the Borrower in Dollars in immediately available funds at the bank
and to the account designated by the Borrower as promptly as practicable and in
any event by such a time that such funds will be available for retransfer,
investment or other use by the Borrower on the borrowing date or, if a Borrowing
shall not occur on such date because any condition precedent herein specified
shall not have been met, return the amounts so received to the respective
Lenders. Competitive Loans shall be made by the Lender or Lenders whose
Competitive Bids therefor are accepted pursuant to Section 2.03 in the amounts
so accepted and Standard Loans shall be made by the Lenders pro rata in
accordance with Section 2.15. Unless the Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Agent such Lender's portion of such Borrowing, the Agent may
assume that such Lender has made such portion available to the Agent on the date
of such Borrowing in accordance with this paragraph (c) and the Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have made
such portion available to the Agent, such Lender and the Borrower severally
agree to repay to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such
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amount is repaid to the Agent at the Federal Funds Effective Rate; PROVIDED that
if such Lender does not pay such principal amount to the Agent within five
Business Days and the Borrower repays such principal amount on the sixth
Business Day, such Lender shall be responsible for interest during such six
Business Day period, provided that the Agent, if it shall first have made demand
on such Lender and shall not have received payment, may recover such interest
from the Borrower. If such Lender shall pay to the Agent such corresponding
amount within five Business Days, such amount shall constitute such Lender's
Loan as part of such Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Borrowing if the Interest Period requested
with respect thereto would end after the Maturity Date.
SECTION 2.03. COMPETITIVE BID PROCEDURE. (a) In order to request
Competitive Bids, the Borrower shall hand deliver or telecopy to the Agent a
duly completed Competitive Bid Request in the form of Exhibit A-1 hereto, to be
received by the Agent (i) in the case of a Eurodollar Competitive Borrowing, not
later than 10:00 a.m., New York City time, four Business Days before a proposed
Competitive Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later
than 10:00 a.m., New York City time, one Business Day before a proposed
Competitive Borrowing. No CD Loan or ABR Loan shall be requested in, or made
pursuant to, a Competitive Bid Request. A Competitive Bid Request that does not
conform substantially to the format of Exhibit A-1 may be rejected in the
Agent's sole discretion, and the Agent shall promptly notify the Borrower of
such rejection by telecopier. Such request shall in each case refer to this
Agreement and specify (x) whether the Borrowing then being requested is to be a
Eurodollar Borrowing or a Fixed Rate Borrowing, (y) the date of such Borrowing
(which shall be a Business Day) and the aggregate principal amount thereof which
shall be in a minimum principal amount of $25,000,000 and in an integral
multiple of $1,000,000, and (z) the Interest Period with respect thereto (which
may not end after the Maturity Date). Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid, the Agent shall
invite by telecopier (in the form set forth in Exhibit A-2 hereto) the Lenders
to bid, on the terms and conditions of this Agreement, to make Competitive Loans
pursuant to the Competitive Bid Request.
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(b) Each Lender may, in its sole discretion, make one or more
Competitive Bids to the Borrower responsive to a Competitive Bid Request. Each
Competitive Bid by a Lender must be received by the Agent via telecopier, in the
form of Exhibit A-3 hereto, (i) in the case of a Eurodollar Competitive
Borrowing, not later than 9:30 a.m., New York City time, three Business Days
before a proposed Competitive Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 9:30 a.m., New York City time, on the day of a
proposed Competitive Borrowing. Multiple bids will be accepted by the Agent.
Competitive Bids that do not conform substantially to the format of Exhibit A-3
may be rejected by the Agent after conferring with, and upon the instruction of,
the Borrower, and the Agent shall notify the Lender making such nonconforming
bid of such rejection as soon as practicable. Each Competitive Bid shall refer
to this Agreement and specify (x) the principal amount (which shall be in a
minimum principal amount of $5,000,000 and in an integral multiple of $1,000,000
and which may equal the entire principal amount of the Competitive Borrowing
requested by the Borrower) of the Competitive Loan or Loans that the Lender is
willing to make to the Borrower, (y) the Competitive Bid Rate or Rates at which
the Lender is prepared to make the Competitive Loan or Loans and (z) the
Interest Period and the last day thereof. If any Lender shall elect not to make
a Competitive Bid, such Lender shall so notify the Agent via telecopier (I) in
the case of Eurodollar Competitive Loans, not later than 9:30 a.m., New York
City time, three Business Days before a proposed Competitive Borrowing, and (II)
in the case of Fixed Rate Loans, not later than 9:30 a.m., New York City time,
on the day of a proposed Competitive Borrowing; PROVIDED, HOWEVER, that failure
by any Lender to give such notice shall not cause such Lender to be obligated to
make any Competitive Loan as part of such Competitive Borrowing. A Competitive
Bid submitted by a Lender pursuant to this paragraph (b) shall be irrevocable.
(c) The Agent shall promptly notify the Borrower by telecopier of all
the Competitive Bids made, the Competitive Bid Rate and the principal amount of
each Competitive Loan in respect of which a Competitive Bid was made and the
identity of the Lender that made each bid. The Agent shall send a copy of all
Competitive Bids to the Borrower for its records as soon as practicable after
completion of the bidding process set forth in this Section 2.03.
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(d) The Borrower may in its sole and absolute discretion, subject only
to the provisions of this paragraph (d), accept or reject any Competitive Bid
referred to in paragraph (c) above (and the Competitive Bids accepted need not
be in any minimum aggregate amount except as provided below in this paragraph).
The Borrower shall notify the Agent by telephone, confirmed by telecopier in the
form of a Competitive Bid Accept/Reject Letter in the format of Exhibit A-4,
whether and to what extent it has decided to accept or reject any of or all the
bids referred to in paragraph (c) above, (x) in the case of a Eurodollar
Competitive Borrowing, not later than 10:30 a.m., New York City time, three
Business Days before a proposed Competitive Borrowing, and (y) in the case of a
Fixed Rate Borrowing, not later than 10:30 a.m., New York City time, on the day
of a proposed Competitive Borrowing; PROVIDED, HOWEVER, that (i) the failure by
the Borrower to give such notice shall be deemed to be a rejection of all the
bids referred to in paragraph (c) above, (ii) the Borrower shall not accept a
bid made at a particular Competitive Bid Rate if the Borrower has decided to
reject a bid made at a lower Competitive Bid Rate, (iii) if the Borrower shall
accept a bid or bids made at a particular Competitive Bid Rate but the amount of
such bid or bids shall cause the total amount of bids to be accepted by the
Borrower to exceed the amount that the Borrower desires to borrow, then the
Borrower shall accept a portion of such bid or bids in an amount equal to the
amount that the Borrower desires to borrow less the amount of all other
Competitive Bids accepted with respect to such Competitive Bid Request, which
acceptance, in the case of multiple bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such bid at such Competitive
Bid Rate, and (iv) except pursuant to clause (iii) above, no bid shall be
accepted for a Competitive Loan unless such Competitive Loan is in a minimum
principal amount of $5,000,000 and an integral multiple of $1,000,000; PROVIDED
FURTHER, HOWEVER, that if a Competitive Loan must be in an amount less than
$5,000,000 because of the provisions of clause (iii) above, such Competitive
Loan may be for a minimum of $1,000,000 or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances of portions of multiple bids
at a particular Competitive Bid Rate pursuant to clause (iv) the amounts shall
be rounded to integral multiples of $1,000,000 in a manner which shall be in the
discretion of the Borrower. The Borrower may accept Competitive Bids in an
aggregate principal amount in excess of the principal amount specified in the
relevant Competitive Bid Request. A notice given by
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the Borrower in the form of a Competitive Bid Accept/Reject Letter pursuant to
this paragraph (d) shall be irrevocable.
(e) The Agent shall promptly notify each bidding Lender whether or not
its Competitive Bid has been accepted (and if so, in what amount and at what
Competitive Bid Rate or Rates) by telecopy sent by the Agent, and each
successful bidder will thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Loans in respect of which its bid has
been accepted.
(f) A Competitive Bid Request shall not be made within five Business
Days after the date of any previous Competitive Bid Request.
(g) If the Agent shall elect to submit a Competitive Bid in its
capacity as a Lender, it shall submit such bid directly to the Borrower one
quarter of an hour earlier than the latest time at which the other Lenders are
required to submit their bids to the Agent pursuant to paragraph (b) above.
(h) All notices required by this Section 2.03 shall be given in
accordance with Section 9.01.
SECTION 2.04. STANDARD BORROWING PROCEDURE. In order to request a
Standard Borrowing, the Borrower shall hand deliver or telecopy to the Agent in
the form of Exhibit A-5 (a) in the case of a Eurodollar Standard Borrowing, not
later than 3:00 p.m., New York City time, three Business Days before a proposed
Borrowing, (b) in the case of a CD Borrowing, not later than 10:30 a.m., New
York City time, two Business Days before a proposed Borrowing and (c) in the
case of an ABR Borrowing, not later than 10:30 a.m., New York City time, on the
day of a proposed Borrowing. No Fixed Rate Loan shall be requested or made
pursuant to a Standard Borrowing Request. Such notice shall be irrevocable and
shall in each case specify (i) whether the Borrowing then being requested is to
be a Eurodollar Standard Borrowing, a CD Borrowing or an ABR Borrowing; (ii) the
date of such Standard Borrowing (which shall be a Business Day) and the amount
thereof; and (iii) if such Borrowing is to be a Eurodollar Standard Borrowing or
CD Borrowing, the Interest Period with respect thereto. If no election as to the
Type of Standard Borrowing is specified in any such notice, then the requested
Standard Borrowing shall be an ABR Borrowing. If no Interest Period with respect
to any Eurodollar Standard Borrowing or CD Borrowing is specified in any such
notice, then the
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Borrower shall be deemed to have selected an Interest Period of one month's
duration, in the case of a Eurodollar Standard Borrowing, or 30 days' duration,
in the case of a CD Borrowing. If the Borrower shall not have given notice in
accordance with this Section 2.04 of its election to refinance a Standard
Borrowing prior to the end of the Interest Period in effect for such Borrowing,
then the Borrower shall (unless such Borrowing is repaid at the end of such
Interest Period) be deemed to have given notice of an election to refinance such
Borrowing with an ABR Borrowing and the Agent will advise the Borrower that such
notice has not been received (but shall not be liable to the Borrower for any
unintentional omission to do so). The Agent shall promptly advise the Lenders of
any notice given or deemed to have been given pursuant to this Section 2.04 and
of each Lender's portion of the requested Borrowing.
SECTION 2.05. REFINANCINGS. The Borrower may refinance all or any part
of any Borrowing with a Borrowing of the same or a different Type made pursuant
to Section 2.03 or Section 2.04, subject to the conditions and limitations set
forth herein and elsewhere in this Agreement, including refinancings of
Competitive Borrowings with Standard Borrowings and Standard Borrowings with
Competitive Borrowings. Any Borrowing or part thereof so refinanced shall be
deemed to be repaid in accordance with Section 2.07 with the proceeds of a new
Borrowing hereunder and the proceeds of the new Borrowing, to the extent they do
not exceed the principal amount of the Borrowing being refinanced, shall not be
paid by the Lenders to the Agent or by the Agent to the Borrower pursuant to
Section 2.02(c); PROVIDED, HOWEVER, that (i) if the principal amount extended by
a Lender in a refinancing is greater than the principal amount extended by such
Lender in the Borrowing being refinanced, then such Lender shall pay such
difference to the Agent for distribution to the Lenders described in (ii) below,
(ii) if the principal amount extended by a Lender in the Borrowing being
refinanced is greater than the principal amount being extended by such Lender in
the refinancing, the Agent shall return the difference to such Lender out of
amounts received pursuant to (i) above, and (iii) to the extent any Lender fails
to pay the Agent amounts due from it pursuant to (i) above, any Loan or portion
thereof being refinanced with such amounts shall not be deemed repaid in
accordance with Section 2.07 and shall be payable by the Borrower.
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SECTION 2.06. FEES. (a) The Borrower agrees to pay to each Lender,
through the Agent, on each March 31, June 30, September 30 and December 31, and
on the Maturity Date or on any earlier date on which the Commitment of such
Lender shall have terminated and its outstanding Loans repaid, a facility fee (a
"FACILITY FEE") equal to 0.08% per annum on the amount of the Commitment of such
Lender, whether used or unused, or, following the Commitment Termination Date,
the amount of the outstanding Loans of such Lender, during the preceding quarter
(or shorter period commencing with the date hereof or ending with the Maturity
Date or the date of such termination and repayment). All Facility Fees shall be
computed on the basis of the actual number of days elapsed in a year of 365 or
366 days, as the case may be. The Facility Fee due to each Lender shall commence
to accrue on the date hereof and shall cease to accrue on the Maturity Date or
any earlier date on which the Commitment of such Lender shall have terminated
(but shall in any event accrue until all Loans made by such Lender have been
repaid).
(b) The Borrower agrees to pay to each Lender, through the Agent, on
each March 31, June 30, September 30 and December 31 and on each date on which
the Commitment of such Lender shall be terminated or reduced as provided herein,
a utilization fee of .125% per annum (a "Utilization Fee") (i) on such Lender's
a pro rata portion (based on the ratio of such Lender's Commitment to the Total
Commitment) of the aggregate principal amount of all of the outstanding Loans
for each day during the preceding quarter (or other period commencing on the
date hereof or ending with the Maturity Date or any date on which the Commitment
of such Lender shall be terminated and its outstanding Loans repaid in full) on
which the sum of the outstanding Loans, including Competitive Loans, exceeds 33%
of the Total Commitment and (ii) after the termination of such Lender's
Commitment (other than as a result of the termination of the Commitments due to
the occurrence of an Event of Default under clause (a) or (b) of Article VII),
on the principal amount of such Lender's outstanding Loans. The Utilization Fee
shall be computed on the basis of the actual number of days elapsed in a year of
360 days. The Utilization Fee due to each Lender shall be payable in arrears and
shall commence to accrue on the date hereof and cease to accrue on the earlier
of the Maturity Date and the date on which the Commitment of such Lender is
terminated and its outstanding Loans repaid in full as provided herein.
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(c) The Borrower agrees to pay the Agent, for its own account, agent
and administrative fees (the "Administrative Fees") at the times and in the
amounts agreed upon in the letter agreement dated August [3], 1999, between the
Borrower and the Agent.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Agent for distribution, if and as appropriate, among the Lenders.
Once paid, none of the Fees shall be refundable under any circumstances.
SECTION 2.07. REPAYMENT OF LOANS; EVIDENCE OF DEBT; CONVERSION AND
CONTINUATION OF STANDARD BORROWINGS. (a) The outstanding principal balance of
each Competitive Loan and Standard Loan shall be payable on the last day of the
Interest Period applicable to such Loan prior to the Commitment Termination Date
and on the Commitment Termination Date applicable to the Lender making such
Loan; PROVIDED, HOWEVER, that if the Borrower shall, at least three Business
Days prior to such Commitment Termination Date, notify the Agent and such Lender
of its election to (i) extend the maturity of one or more Standard Loans made by
such Lender, or of any portion or portions of the principal amounts thereof,
then outstanding, (ii) obtain from such Lender one or more new Standard Loans in
such amount(s) as Borrower shall elect up to the Commitment of such Lender on
such notice date (which Loan or Loans shall be made by such Lender on the
Commitment Termination Date and, if for less than the entire Commitment of such
Lender, shall be in a minimum amount of at least $1,000,000 and shall be, to the
extent permitted, in integral multiples of $1,000,000), or (iii) obtain any
combination of extensions of outstanding Standard Loans and new Standard Loans
having an aggregate principal amount up to the Commitment of such Lender, all
such Standard Loans shall in each case (notwithstanding the Interest Period(s)
in respect thereof then selected) instead mature on the Maturity Date.
Notwithstanding any other provision of this Agreement, in the event of any
extensions of Standard Loans or any new Standard Loans, or both, by the Borrower
from any Lender pursuant to the preceding sentence of this paragraph (a) at a
time when the Commitment Termination Date has been extended as to other Lenders,
then from and after the Commitment Termination Date in respect of such Lender
(i) Section 2.15 shall no longer apply to the Loans of such Lender, and shall
apply to the Loans of the other Lenders as to which the Commitment Termination
Date has been extended as if such Lender were not a party to this Agreement;
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29
(ii) insofar as the rights and obligations of such Lender are concerned, this
Agreement shall operate as if it were an agreement solely between the Borrower
and such Lender, with the result, INTER ALIA, that (A) such Lender shall have,
as to its Loans, all the rights and obligations of the "Lenders" and the
"Agent", (B) such Lender shall have an independent right to accelerate its Loans
as provided in Article VII, (C) the consent of such Lender shall be required in
order for any amendment to or waiver of this Agreement to be applicable to such
Lender (and such Lender shall not be deemed to have a Commitment or Loans
outstanding for the purpose of determining or participating in any action taken
by the Majority Lenders or Required Lenders or any of the rights or obligations
of the other Lenders), (D) all notices provided for hereunder shall be given
directly by the Borrower to such Lender or by such Lender to the Borrower, as
the case may be, and (E) all payments to which such Lender is entitled shall be
made directly by the Borrower to such Lender; and (iii) the Agent shall have no
further responsibilities with respect to such Lender or the administration of
this Agreement as it relates to such Lender (but, at the request of the Borrower
or such Lender from time to time, will determine the rates of interest
applicable to the Loans of such Lender).
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness to such Lender resulting from
each Loan made by such Lender from time to time, including the amounts of
principal and interest payable and paid such Lender from time to time under this
Agreement.
(c) The Agent shall maintain accounts in which it will record (i) the
amount of each Loan made hereunder, the Type of each Loan made 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 Agent hereunder from the
Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (c) of this Section 2.07 shall, to the extent permitted by applicable
law, be rebuttable evidence of the existence and amounts of the obligations
therein recorded; PROVIDED, HOWEVER, that the failure of any Lender or the Agent
to maintain such accounts or any error therein shall not in any manner affect
the
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30
obligations of the Borrower to repay the Loans in accordance with their terms.
(e) Following the Commitment Termination Date applicable to each
Lender, if the Borrower shall have elected to extend the maturity of the Loan of
such Lender pursuant to Section 2.07(a), the Borrower shall have the right at
any time upon prior irrevocable notice to the Agent and such Lender (i) not
later than 12:00 (noon), New York City time, one Business Day prior to
conversion, to convert any Eurodollar Standard Loan or CD Loan by such Lender
then outstanding into an ABR Loan by such Lender, (ii) not later than 10:30
a.m., New York City time, two Business Days prior to conversion or continuation,
to convert any Eurodollar Standard Loan or ABR Loan by such Lender into a CD
Loan by such Lender or to continue any CD Loan by such Lender as a CD Loan by
such Lender for an additional Interest Period, and (iii) not later than 3:00
p.m., New York City time, three Business Days prior to conversion or
continuation, to convert any ABR Loan or CD Loan by such Lender into a
Eurodollar Standard Loan or to continue any Eurodollar Standard Loan as a
Eurodollar Standard Loan for an additional Interest Period, subject in each case
to the following:
(i) if less than all the outstanding principal amount of any
Standard Loan shall be converted or continued, the aggregate principal
amount of such Standard Loan converted or continued shall be an
integral multiple of $1,000,000 and not less than $1,000,000;
(ii) if any Eurodollar Standard Loan or CD Loan is converted
at a time other than the end of the Interest Period applicable thereto,
the Borrower shall pay, upon demand, any amount due to the applicable
Lender pursuant to Section 2.12(d); and
(iii) no Interest Period may be selected for any Eurodollar
Standard Loan or CD Loan that would end later than the Maturity Date.
Each notice pursuant to this paragraph (e) shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Standard Loan that the Borrower requests be converted or continued, (ii) whether
such Standard Loan is to be converted to or continued as a Eurodollar Standard
Loan, a CD Loan or an ABR Loan, (iii) if
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31
such notice requests a conversion, the date of such conversion (which shall be a
Business Day) and (iv) if such Standard Loan is to be converted to or continued
as a Eurodollar Standard Loan or CD Loan, the Interest Period with respect
thereto. If no Interest Period is specified in any such notice with respect to
any conversion to or continuation as a Eurodollar Standard Loan or CD Loan, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration, in the case of a Eurodollar Standard Loan, or 30 days' duration, in
the case of a CD Loan. If the Borrower shall not have given notice in accordance
with this paragraph to continue any Standard Loan into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this
paragraph to convert such Standard Loan), such Standard Loan shall, at the end
of the Interest Period applicable thereto (unless repaid pursuant to the terms
hereof), automatically be continued into a new Interest Period as an ABR Loan.
SECTION 2.08. INTEREST ON LOANS. (a) Subject to the provisions of
Section 2.09, the Loans comprising each Eurodollar Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal to (i) in the case of each Eurodollar Standard
Loan, the LIBO Rate for the Interest Period in effect for such Borrowing plus
0.32%, and (ii) in the case of each Eurodollar Competitive Loan, the LIBO Rate
for the Interest Period in effect for such Borrowing plus (or minus) the Margin
offered by the Lender making such Loan and accepted by the Borrower pursuant to
Section 2.03.
(b) Subject to the provisions of Section 2.09, the Loans comprising
each CD Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
CD Rate for the Interest Period in effect for such Borrowing plus 0.445%.
(c) Subject to the provisions of Section 2.09, the Loans comprising
each ABR Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be, when
determined by reference to the Prime Rate and over a year of 360 days at all
other times) at a rate per annum equal to the Alternate Base Rate minus 0.08%.
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32
(d) Subject to the provisions of Section 2.09, each Fixed Rate Loan
shall bear interest at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 360 days) equal to the fixed rate of
interest offered by the Lender making such Loan and accepted by the Borrower
pursuant to Section 2.03.
(e) Subject to the provisions of Section 2.09, interest on each Loan
shall be payable on each Interest Payment Date applicable to such Loan. The LIBO
Rate, the CD Rate or the Alternate Base Rate for each Interest Period or day
within an Interest Period shall be determined by the Agent in accordance with
the terms and conditions of this Agreement, and such determination shall be
conclusive absent manifest error.
SECTION 2.09. DEFAULT INTEREST. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, whether by scheduled maturity, notice of prepayment, acceleration
or otherwise, the Borrower shall on demand from time to time from the Agent pay
interest, to the extent permitted by law, on such defaulted amount up to (but
not including) the date of actual payment (after as well as before judgment) at
a rate per annum (computed on the basis of the actual number of days elapsed
over a year of 360 days) equal to the Alternate Base Rate plus 1%.
SECTION 2.10. UNAVAILABILITY OF LIBO RATE AND CD RATE QUOTATIONS. (a)
In the event that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Agent shall have determined that
it is not possible to ascertain a LIBO Rate for such Interest Period, either
from the Reuter Screen on the Reuter System or from rates offered by at least
two of the LIBO Reference Banks or the Reference Banks as contemplated in the
definition of LIBO Rate at Section 1.01, the Agent shall, as soon as practicable
thereafter, give written or telecopy notice of such event to the Borrower and
the Lenders, in which event any request by the Borrower for a Eurodollar
Borrowing for such Interest Period shall be of no force or effect and no
Borrowing shall be made pursuant to such request.
(b) In the event, and on each occasion, that on the day on which the
Interest Period for any CD Borrowing commences the Agent shall have determined
that it is not possible to ascertain a CD Rate for such Interest Period,
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33
either from Page "CDNY" or other display on the Reuter System or from "Composite
Quotations" or, if applicable, the rates offered by leading New York City
dealers in negotiable certificates of deposits as contemplated in the definition
of CD Rate at Section 1.01, the Agent shall, as soon as practicable thereafter,
give written or telecopy notice of such determination to the Borrower and the
Lenders, in which event any request by the Borrower for a CD Loan for such
Interest Period shall be of no force or effect and no Borrowing shall be made
pursuant to such request.
SECTION 2.11. TERMINATION, REDUCTION, EXTENSION AND ADDITION OF
COMMITMENTS. (a) The Commitments shall be automatically terminated on the
Commitment Termination Date.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Total
Commitment; PROVIDED, HOWEVER, that each partial reduction of the Total
Commitment shall be in an integral multiple of $1,000,000 and in a minimum
amount of $5,000,000.
(c) Each reduction in the Total Commitment hereunder shall be made
ratably among the Lenders in accordance with their respective Commitments. The
Borrower shall pay to the Agent for the account of the Lenders, on the date of
each termination or reduction, the Facility Fees on the amount of the
Commitments so terminated or reduced accrued to the date of such termination or
reduction.
(d) The Borrower may from time to time request that one or more
additional financial institutions be added as Lenders under this Agreement with
Commitments agreed upon by the Borrower and such financial institutions. In the
event of any such request, such financial institutions shall become parties to
and Lenders under this Agreement upon the execution of one or more agreements to
that effect in the form (appropriately completed) of Exhibit D (and without any
action being required on the part of any other Lender), and upon the
effectiveness of any such agreement, Schedule 2.01 shall be automatically
amended to reflect the Commitment of each new Lender.
(e) Not later than the date 45 days prior to the first, or, if the
Commitment Termination Date has previously been extended, the second, third or
fourth anniversary of the date hereof, as the case may be, the Borrower may
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34
deliver to the Agent (which shall promptly transmit a copy to each Lender) a
notice requesting that the Commitments then remaining in effect be extended to
the date 364 days after the Commitment Termination Date at the time in effect.
Within 20 days after its receipt of any such notice, each Lender shall notify
the Agent of its willingness or unwillingness so to extend its Commitment. Any
Lender which shall fail so to notify the Agent within such period shall be
deemed to have declined to extend its Commitment. The Commitment of any Lender
that shall so decline (or be deemed to have declined) to extend its Commitment
pursuant to this paragraph (e) shall terminate on the Commitment Termination
Date at the time in effect and the Loans, if any, of such Lender shall, subject
to 2.07(a), be repaid on such date together with all interest accrued thereon
and the accrued Facility Fee and Utilization Fee. Any payment made pursuant to
this Section 2.11(e) shall be without premium, penalty or other cost of any kind
and shall not be subject to the requirements of Sections 2.15 and 2.12(d). The
Commitments of the Lenders notifying the Borrower that they are willing to
extend shall be extended, effective as of the date which shall theretofore have
been the Commitment Termination Date, to the date 364 days after such date.
SECTION 2.12. PREPAYMENT. (a) The Borrower shall have the right at any
time and from time to time to prepay without premium or penalty any Borrowing
(including a Competitive Borrowing), in whole or in part, upon giving written or
telecopy notice (or telephone notice promptly confirmed by written or telecopy
notice) to the Agent: (i) before 5:00 p.m., New York City time, three Business
Days prior to prepayment, in the case of Eurodollar Loans, (ii) before 5:00
p.m., New York City time, two Business Days prior to prepayment, in the case of
CD Loans or Fixed Rate Loans, and (iii) before 10:00 a.m., New York City time,
one Business Day prior to prepayment, in the case of ABR Loans; PROVIDED,
HOWEVER, that each partial prepayment of a Borrowing shall be in an amount which
is an integral multiple of $1,000,000 and, prior to the Commitment Termination
Date, not less than $5,000,000.
(b) On the date of any termination or reduction of the Commitments
pursuant to Section 2.11(b), the Borrower shall pay or prepay so much of the
outstanding Borrowings, selected at the Borrower's sole option, as shall be
necessary in order that the aggregate principal amount of the Competitive Loans
and Standard Loans outstanding will
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35
not exceed the Total Commitment after giving effect to such termination or
reduction.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing (or portion
thereof) by the amount stated therein on the date stated therein. All
prepayments under this Section 2.12 shall be accompanied by accrued interest on
the principal amount being prepaid to the date of payment.
(d) In the event any prepayment is made in respect of any Loan (or in
the event any Lender is required to transfer a Loan or the Borrower repays any
Loan on the Commitment Termination Date and such date shall be prior to the end
of the Interest Period applicable to such Loan), other than (i) any ABR Loan and
(ii) any Loan the prepayment, payment or transfer of which is made by Borrower
pursuant to its right to prepay, repay or require the transfer of such Loan
under Sections 2.11(e), 2.13, 2.14, 2.17 or 9.05 or upon the Lender's exercise
of its option pursuant to Section 9.14, the Borrower shall pay to such Lender,
promptly upon the written request of such Lender (which request shall be
accompanied by a certificate as described below), such amount as shall be
necessary to reimburse such Lender for the loss, if any, reasonably incurred by
such Lender as a result of such repayment, prepayment or transfer arising from
inability due to general market conditions to recover the cost of deposits or
other funds acquired by such Lender to fund such Loan, in the liquidation of
such deposits or other funds so acquired (or from the reemployment thereof if
such reemployment would result in less of a funding loss to such Lender);
PROVIDED, that any such funding loss shall not in any event exceed the cost
incurred by such Lender to obtain such deposit or other funds, minus the fair
market value thereof realizable by such Lender in the liquidation thereof. Such
Lender shall use reasonable efforts to avoid or minimize any such loss. Such
Lender's claim, if any, shall be accompanied by a certificate setting forth in
reasonable detail (including the calculations made in determining) the reason
for and the amount of such loss, which certificate shall be conclusive in the
absence of manifest error. Prepayments of ABR Borrowings shall be without
penalty, premium or other cost of any kind.
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36
SECTION 2.13. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES. (a) In the
event that at any time or from time to time during the term of this Agreement
any Eurodollar Reserve Requirement shall be applicable to deposits acquired in
respect of any Eurodollar Loan the Lender making such Eurodollar Loan shall
promptly notify the Borrower in writing of any imposition of or change in or
prospective imposition of or change in any Eurodollar Reserve Requirement,
whether in respect of an outstanding Eurodollar Loan or any possible future
Eurodollar Loan, and, for as long as such Eurodollar Reserve Requirement shall
be effective, the Borrower shall, upon written request from such Lender (with a
copy of such request to the Agent), pay to such Lender at the end of each
Interest Period for such Eurodollar Loan, an additional amount equal to the
difference between the interest accrued based upon the LIBO Rate and the
interest that would have accrued had the Adjusted LIBO Rate been applicable to
the Eurodollar Loan of such Lender. Each Lender represents that currently it is
not subject to (and does not incur) any Eurodollar Reserve Requirement.
(b) In the event that at any time or from time to time during the term
of this Agreement any CD Reserve Requirement or Assessment Rate shall be
applicable to deposits acquired in respect of any CD Loan the Lender making such
CD Loan shall promptly notify the Borrower in writing of any imposition of or
change in or prospective imposition of or change in any CD Reserve Requirement
or Assessment Rate, whether in respect of an outstanding CD Loan or any possible
future CD Loan, and, for as long as such CD Reserve Requirement or Assessment
Rate shall be effective, the Borrower shall, upon written request from such
Lender (with a copy of such request to the Agent), pay to such Lender at the end
of the Interest Period for such CD Loan, an additional amount equal to the
difference between the interest accrued based upon the CD Rate and the interest
that would have accrued had the Adjusted CD Rate been applicable to the CD Loan
of such Lender. Each Lender represents that its current CD Reserve Requirement
and Assessment Rate are as set forth on Schedule 2.01.
(c) Notwithstanding any other provision herein, if after the date of
this Agreement, either (i) the introduction of, or any change in or in the
interpretation of, any law or regulation or (ii) compliance by any Lender with
any directive, guideline or request of any Governmental Body (whether or not
having the force of law) affects or
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37
would affect the amount of capital required or expected to be maintained by such
Lender, so as to increase the minimum amount of capital required to be
maintained by such Lender based upon the existence of this Agreement, the
Commitment of such Lender and/or any Loans made hereunder and such requirement
applies equally to other agreements with, and to commitments and loans similar
to the transactions contemplated by this Agreement to, all other corporate
borrowers situated in the United States of America, then the Borrower shall pay
to such Lender amounts sufficient to compensate such Lender, in light of such
circumstances, to the extent that such Lender reasonably and equitably
determines such increase in required capital over the capital of such Lender in
place on the date hereof to be allocable to this Agreement, to the Commitment of
such Lender (or the unused portion thereof), or to any Loans made by such Lender
hereunder, it being understood that in no event shall the cost allocable, and/or
amount charged, to the Borrower under this paragraph (c) exceed the cost
allocable, and/or amount charged, with respect to any similar agreement between
such Lender and any other corporate borrower located in the United States, in
each instance determined ratably with respect to the relative transactional
amounts. Each Lender represents that, to its best knowledge on the date hereof
it would not be required to increase its capital or to otherwise incur any
increased capital costs in respect of this Agreement under existing laws, rules,
regulations, directives or guidelines (whether or not currently in effect) of
any Governmental Body.
(d) A certificate of a Lender setting forth such amount or amounts as
shall be necessary to compensate such Lender as specified in paragraph (c) above
shall be delivered to the Borrower (with a copy to the Agent) and shall be
conclusive absent manifest error. The Borrower shall pay each Lender the amount
shown as due on any such certificate delivered by it within 10 days after the
receipt of the same. No Lender shall be entitled to any compensation for any
additional costs under this Section 2.13 requested by such Lender unless such
Lender shall have notified the Borrower that it will request compensation for
such additional costs not more than 30 days after the date such additional costs
were first incurred.
(e) The Borrower may at any time following its receipt from any Lender
of a notice of the occurrence or prospective occurrence of any imposition of or
increase in the Eurodollar Reserve Requirement, the CD Reserve
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38
Requirement, the Assessment Rate or capital requirements or costs of such Lender
terminate the Commitment of such Lender and repay any outstanding Loans of such
Lender (together with all accrued interest and Facility Fee and Utilization Fee)
on the effective date of such termination, which repayments, if any, shall be
without premium, penalty or other cost of any kind and shall not be subject to
the requirements of Sections 2.15 and 2.12(d).
SECTION 2.14. CHANGE IN LEGALITY. (a) Notwithstanding any other
provision herein, if any change in any law or regulation or in the
interpretation thereof by any Governmental Body charged with the administration
or interpretation thereof shall make it unlawful for any Lender to make or
maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written or
telecopy notice to the Borrower and to the Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made
by such Lender hereunder, whereupon such Lender shall not submit a
Competitive Bid in response to a request for Eurodollar Competitive
Loans and any request by the Borrower for a Eurodollar Standard
Borrowing shall, as to such Lender only, be without effect and void
unless such declaration shall be subsequently withdrawn; and
(ii) require (if required by law to do so) that all
outstanding Eurodollar Loans made by it be converted to CD Loans, in
which event all such Eurodollar Loans shall be automatically converted
to CD Loans with an Interest Period agreed upon by the Borrower and
such Lender as of the effective date of such notice as provided in
paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
Loans of such Lender resulting from the conversion of such Eurodollar Loans. The
Borrower may in any event prepay any Loan resulting from the conversion of any
Eurodollar Loan under this Section within five Business Days after such
conversion.
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39
(b) For purposes of this Section 2.14, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan, if lawful, on the last day
of the Interest Period currently applicable to such Eurodollar Loan; in all
other cases such notice shall be effective on the date of receipt by the
Borrower.
(c) In the event that any Lender shall (i) give Borrower any notice
contemplated by, or exercise its rights under, this Section 2.14 or (ii) unless
Borrower shall fail to meet the conditions set forth at Section 4.01, Lender for
any reason fails to fund any Loan, the Borrower may at any time terminate the
Commitment of the Lender and repay any outstanding Loans of such Lender
(together with all accrued interest and Facility Fee and Utilization Fee) on the
effective date of such termination, which repayment, if any, shall be without
premium, penalty or other cost of any kind and shall not be subject to the
requirements of Sections 2.15 and 2.12(d).
SECTION 2.15. PRO RATA TREATMENT. Except as required or permitted under
Section 2.07(a) and (e), 2.11(d) and (e), 2.12, 2.13, 2.14, 2.17, 2.18, 9.05 or
9.14, each Standard Borrowing, each payment or prepayment of principal of any
Standard Borrowing, each payment of interest on the Standard Loans, each payment
of the Facility Fees, each payment of the Utilization Fee, each reduction of the
Commitments and each refinancing of any Borrowing with a Standard Borrowing of
any Type, shall be allocated pro rata among the Lenders in accordance with their
respective Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
outstanding Standard Loans). Each payment of principal of any Competitive
Borrowing shall be allocated pro rata among the Lenders participating in such
Borrowing in accordance with the respective principal amounts of their
outstanding Competitive Loans comprising such Borrowing. Each payment of
interest on any Competitive Borrowing shall be allocated pro rata among the
Lenders participating in such Borrowing in accordance with the respective
amounts of accrued and unpaid interest on their outstanding Competitive Loans
comprising such Borrowing. For purposes of determining the available Commitments
of the Lenders at any time, each outstanding Competitive Borrowing shall be
deemed to have utilized the Commitments of the Lenders (including those Lenders
which shall not have made Loans as part of such Competitive Borrowing) pro rata
in accordance with such respective Commitments. Each Lender agrees that in
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40
computing such Lender's portion of any Borrowing to be made hereunder, the Agent
may, in its discretion, round each Lender's percentage of such Borrowing to the
next higher or lower whole dollar amount.
SECTION 2.16. PAYMENTS. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder not later than 3:00 p.m., New York City time, on the date
when due in Dollars to the Agent (except as otherwise provided herein) at its
offices at 270 Park Avenue, New York, New York, in immediately available funds.
Except as provided in Section 2.07(a), any payment required to be made to the
Lenders shall be deemed made when made to the Agent and shall, insofar as the
obligations of the Borrower are concerned, be deemed to have been received by
the Lenders at the time of receipt by the Agent (which shall promptly forward
such payment to the Lenders). In the event the Lenders shall receive payments in
an amount less than the amounts at the time due hereunder, the amounts received
shall be applied first against the principal of Loans, second against accrued
interest, third against accrued Fees, fourth against amounts due under Section
2.13 or 2.17, and fifth against any other amounts due hereunder.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder shall become due, or otherwise
would occur, on a day that is not a Business Day, such payment may be made on
the next succeeding Business Day, and such extension of time shall in the case
of a payment of principal be included in the computation of interest.
SECTION 2.17. TAXES. (a) Each Lender represents and warrants unto, and
covenants and agrees with, the Borrower that (i) such Lender is presently exempt
from United States Federal withholding tax (including backup withholding, as
such term is defined in the Code), and from any other withholding tax,
assessment or charge imposed by any Governmental Body, on any amount payable to
it under this Agreement, and has heretofore delivered to the Borrower such
evidence as may be required by law to claim or substantiate any such exemption
(stating the provisions of law and/or treaty under which such exemption is
claimed); (ii) such Lender will notify the Borrower promptly upon its becoming
aware of the occurrence or of any prospective occurrence of any event which
would result in any such withholding tax exemption not being available to such
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41
Lender; and (iii) such Lender will indemnify and hold the Borrower harmless from
and against any loss, cost or liability the Borrower may incur as a result of
its reliance on the foregoing representations, or the failure of such Lender to
give prompt notice of any event resulting in any said withholding tax exemption
not being available to such Lender.
(b) All payments by the Borrower to the Lenders under this Agreement
shall be made without setoff or counterclaim and in such amounts as may be
necessary in order that all such payments after deduction or withholding for or
on account of any present or future taxes, levies, imposts, duties or other
charges of whatsoever nature imposed by any Governmental Body or taxing
authority thereof (herein collectively referred to as "TAXES"), other than any
Taxes on or measured by the net income of any Lender pursuant to (i) the income
and/or franchise tax laws of the jurisdictions where such Lender is incorporated
or organized and where the principal office or branch of such Lender is located,
and (ii) the income and/or franchise tax laws of the jurisdictions where the
lending office(s) of such Lender are then located, and other than any
withholding tax or deduction for, or other imposition of, Taxes as to which such
Lender is entitled to a credit against income or franchise taxes payable by it
in the country and/or other jurisdictions of its incorporation or organization
or in the countries and/or other jurisdictions where the principal office or the
lending office(s) of such Lender are then located (herein collectively referred
to as "EXCLUDED TAXES"), shall not be less than the amounts otherwise specified
to be paid by the Borrower to the Lenders under this Agreement. Each Lender
shall use its best efforts to avoid the imposition of any deduction or
withholding of Taxes (other than in respect of Excluded Taxes) by designating
(with the consent of the Borrower which consent shall not be unreasonably
withheld) a different lending office, if such designation will avoid the
imposition of such deduction or withholding, or other imposition, of Taxes
(other than in respect of Excluded Taxes) and will not, in the judgment of such
Lender, reasonably exercised, be otherwise disadvantageous to such Lender or, in
the judgment of the Borrower, reasonably exercised, be disadvantageous to the
Borrower. A certificate as to any additional amounts payable to a Lender under
this paragraph (b) submitted to the Borrower by such Lender shall show in
reasonable detail the amount payable and the calculations used to determine
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X-4.1-41
42
such amount and shall, absent manifest error, be conclusive and binding,
PROVIDED, that the determination of such additional amounts set forth in such
certificate is made reasonably and in good faith. With respect to each deduction
or withholding for or on account of any Taxes, the Borrower shall promptly (and
in any event not later than 45 days thereafter) furnish to any Lender such
certificates, receipts and other documents as may be necessary to establish any
tax credit to which such Lender may be entitled or as may be required by law to
be in such Lender's possession. Any Lender claiming any additional amounts
payable pursuant to this Section shall use reasonable efforts (consistent with
legal and regulatory restrictions) to file any certificate or document requested
by the Borrower or to change the jurisdiction of its applicable lending office
if the making of such a filing or change would avoid the need for or reduce the
amount of any such additional amounts which may thereafter accrue or avoid the
circumstances giving rise to such exercise and would not, in the sole
determination of such Lender, be otherwise disadvantageous to such Lender. Each
Lender agrees that should any such additional amount paid by the Borrower to or
for such Lender in respect of any Taxes be recovered, in whole or in part, by
such Lender (by credit, offset, deduction or otherwise), against or in computing
any income, franchise or other Taxes in its country and/or other jurisdiction of
its incorporation or organization or in any of the jurisdictions where the
principal office or branch of such Lender and the lending office(s) of such
Lender is then located, such Lender shall reimburse the Borrower the amount of
such recovery. A transferee of any interest in this Agreement shall not be
entitled to the benefits of this Section 2.17 with respect to any Taxes which
would not have been incurred if there had been no transfer.
(c) At any time subsequent to the Borrower's receipt of any notice
given by a Lender pursuant to paragraph (a) above, or to the imposition of any
Taxes (other than Excluded Taxes) in respect of which the Borrower shall have
the obligation to "gross up" amounts due under this Agreement pursuant to
paragraph (b) above, the Borrower shall have the right to prepay, in whole or in
part, without penalty or premium, the entire principal amount of any and all
Loans in respect of which such obligation in respect of Taxes (other than
Excluded Taxes) would be incurred upon two Business Days' notice to such Lender
and any such payment shall be without premium, penalty or other cost of any kind
and shall not be subject to the requirements of
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X-4.1-42
43
Sections 2.15 and 2.12(d). Any such prepayment shall be accompanied by the
payment of all accrued interest on the principal amount prepaid.
(d) In no event shall the Borrower have any obligation to "gross up"
amounts due under this Agreement in respect of Excluded Taxes.
(e) The representations, warranties and agreements contained in this
Section 2.17 shall survive the termination of this Agreement and the payment in
full of the Loans.
SECTION 2.18. TERMINATION OR ASSIGNMENT OF COMMITMENTS. The Borrower
shall have the right (in addition to its rights pursuant to Sections 2.11(b),
2.11(e), 2.13, 2.14, 2.17 and 9.05), at its own expense, at any time upon notice
to any Lender and the Agent, (i) to terminate the Commitment of such Lender
(with or without, at Borrower's sole election, replacing such terminated
Commitment) or (ii) to require such Lender to transfer and assign without
recourse all its interests, rights and obligations under this Agreement to
another financial institution reasonably acceptable to the Agent which shall
assume such obligations; PROVIDED that (x) no such assignment shall conflict
with any law, rule or regulation or order of any Governmental Body applicable to
such affected Lender and (y) the Borrower or the assignee, as the case may be,
shall pay to the affected Lender in immediately available funds on the effective
date of such termination or assignment the principal of and interest accrued to
the date of payment on the Loans made by it hereunder then outstanding and
accrued and unpaid Facility Fee and Utilization Fee and any amounts which
Borrower had theretofore been notified were accruing in respect of such Loans
under Section 2.13, which payments shall not be subject to the provisions of
Section 2.15.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Lenders that:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Ohio.
40
X-4.1-43
44
(b) The execution, delivery and performance of this Agreement
by the Borrower are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, will not violate any
provision of any existing law or regulation or order or decree of any
court or Governmental Body or of the Amended Articles of Incorporation
or Code of Regulations of the Borrower, as each is amended to date, or
of the unwaived terms of any mortgage, indenture, agreement or other
instrument to which the Borrower is a party or which is binding upon it
or its assets, and will not result in the creation or imposition of any
security interest, lien, charge or encumbrance on any of its assets
pursuant to the provisions of any of the foregoing.
(c) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Body or court is required to
be made or effected by the Borrower for the due execution and delivery
of this Agreement by the Borrower and for the performance by the
Borrower of the obligations on its part to be performed under this
Agreement.
(d) This Agreement constitutes the legal, valid and binding
obligation of the Borrower enforceable against the Borrower in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law).
(e) The Consolidated Financial Statements of the Borrower and
its Subsidiaries present fairly, in all material respects, the
financial position of the Borrower and its Consolidated Subsidiaries at
December 31, 1998 and 1997 and the Consolidated results of their
operations and their Consolidated cash flows for each of the three
years in the period ended December 31, 1998, in conformity with
generally accepted accounting principles.
(f) The Borrower is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
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45
(g) Neither the Borrower nor any Subsidiary is a "holding
company", or a "subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
(h) The Borrower is not engaged principally, or as one of its
important activities, in the business of extending credit for the
purpose of purchasing or carrying margin stock, within the meaning of
Regulation U of the Board.
(i) To the Borrower's knowledge, the disclosures relating to
Year 2000 matters contained in (i) the Borrower's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1999 and (ii) the Borrower's
Annual Report on Form 10-K for the year ended December 31, 1998,
accurately present, in all material respects, the status of the
Borrower's efforts to address Year 2000 compliance issues as of June
30, 1999 and December 31, 1998 respectively.
ARTICLE IV. CONDITIONS OF LENDING
The obligation of each Lender to make Loans hereunder is
subject to the satisfaction of the following conditions:
SECTION 4.01. ALL BORROWINGS. On the date of each Borrowing,
including each Borrowing in which Loans are refinanced with new Loans as
contemplated by Section 2.05:
(a) The Agent shall have received a notice of such Borrowing
as required by Section 2.03 or Section 2.04, as applicable.
(b) The representations and warranties set forth in Article
III hereof shall be true and correct in all material respects on and as
of the date of such Borrowing with the same effect as though made on
and as of such date.
(c) No event shall have occurred and be continuing on and as
of the date of such Borrowing, or would result from such Borrowing or
from (after giving effect to) the application of the proceeds of such
Borrowing, which constitutes an Event of Default.
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X-4.1-45
46
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date of such Borrowing as to the matters specified in
paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. FIRST BORROWING. On the Closing Date, the Agent
shall have received the following (in the case of (a), (b), (c) and (d), each
dated the Closing Date):
(a) an opinion of the General Counsel, the Associate General
Counsel or an Assistant General Counsel of the Borrower addressed to
the Lenders and the Agent in substantially the form of Exhibit B
hereto;
(b) a certified copy of the resolutions of the Board of
Directors of the Borrower authorizing the execution and delivery of
this Agreement;
(c) a certificate of the Secretary or an Assistant Secretary
of the Borrower certifying the names and true signatures of the
Authorized Officers;
(d) a certificate signed by an Authorized Officer, confirming
compliance with conditions set forth in paragraphs (b) and (c) of
Section 4.01; and
(e) all Fees and other amounts due and payable on or prior to
the Closing Date.
ARTICLE V. AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Lender and the
Agent that, so long as the Commitment of such Lender shall remain in effect or
the principal of or interest on any Loan by such Lender shall be unpaid, unless
the Majority Lenders shall otherwise consent in writing, the Borrower will:
(a) INTEREST COVERAGE RATIO. Maintain, as at the end of each
fiscal quarter of the Borrower, a ratio of Consolidated Operating
Income for the Annual Period then ended to Consolidated Interest
Expense for the Annual Period then ended of not less than 1.55 to 1.
(b) NET WORTH. Maintain, as at the end of each fiscal quarter
of the Borrower, Consolidated Net Worth at an amount not less than
$1,250,000,000.
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47
(c) REPORTING REQUIREMENTS. Furnish to the Agent, together
with sufficient number of copies for each of the Lenders:
(i) as soon as available and in any event not later than 60
days after the end of each of the first three quarters of each fiscal
year of the Borrower, a conformed copy of the Borrower's Quarterly
Report on Form 10-Q for such quarter as filed with the Securities and
Exchange Commission, together with (1) a Schedule of Compliance, signed
by an Authorized Officer setting forth computations used by the
Borrower in determining compliance with the covenants contained in
paragraphs (a) and (b) of this Article V and in paragraphs (a) and (b)
of Article VI and (2) a certificate of an Authorized Officer stating
that no Event of Default has occurred and is continuing or, if an Event
of Default has occurred and is continuing, a statement as to the nature
thereof and the action which the Borrower has taken and proposes to
take with respect thereto; and
(ii) as soon as available and in any event not later than 120
days after the end of each fiscal year of the Borrower, a conformed
copy of the Borrower's Annual Report on Form 10-K for such year as
filed with the Securities and Exchange Commission, together with (1) a
Schedule of Compliance, signed by an Authorized Officer setting forth
computations used by the Borrower in determining compliance with the
covenants contained in paragraphs (a) and (b) of Article V, and in
paragraphs (a) and (b) of Article VI, and (2) a certificate of an
Authorized Officer stating that no Event of Default has occurred and is
continuing or, if an Event of Default has occurred and is continuing, a
statement as to the nature thereof and the action which the Borrower
has taken and proposes to take with respect thereto; and
(iii) as soon as practicable and in any event within ten
Business Days after any Authorized Officer of the Borrower obtains
actual knowledge of the occurrence of any Event of Default, a statement
of an Authorized Officer setting forth details of such Event of Default
and the action which the Borrower has taken and proposes to take with
respect thereto; and
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X-4.1-47
48
(iv) promptly after the filing thereof, copies of all reports
(in addition to Forms 10-K and 10-Q) filed by the Borrower with the
Securities and Exchange Commission (other than annual reports on Form
11-K) pursuant to the Exchange Act; and
(v) such other publicly available information relating to the
financial condition or business operations of the Borrower as the Agent
or any Lender may from time to time reasonably request.
(d) PRESERVATION OF CORPORATE EXISTENCE. Preserve and maintain
its corporate existence; PROVIDED, that the Borrower may merge or transfer its
assets in a transaction permitted by paragraph (c) of Article VI.
ARTICLE VI. NEGATIVE COVENANTS
The Borrower covenants and agrees with each Lender and the
Agent that, so long as the Commitment of such Lender shall remain in effect or
the principal of or interest on any Loan by such Lender shall be unpaid, unless
the Majority Lenders shall otherwise consent in writing, the Borrower will not:
(a) LIMITATION ON LIENS. Issue, assume or guarantee Debt if
such Debt is secured by a Lien upon any Manufacturing Facility without providing
(concurrently with the issuance, assumption or guarantee of any such Debt) that
the Loans shall be secured equally and ratably with such Debt; PROVIDED,
HOWEVER, that the foregoing restriction shall not apply to:
(i) any Lien on property if such Lien is in existence at the
time of the acquisition of such property by the Borrower;
(ii) any Lien on property to secure the payment of all or any
part of the purchase price of such property or to secure any Debt
incurred (prior to, at the time of, or within 360 days after, the
acquisition by the Borrower of such property) for the purpose of, or in
connection with, financing all or any part of the purchase price
thereof;
(iii) any Lien on property of a corporation if such Lien was
in existence prior to the time such
45
X-4.1-48
49
corporation is merged into or consolidated with the Borrower or prior
to the time of a sale, lease or other disposition of the properties of
an entity as an entirety or substantially as an entirety to the
Borrower;
(iv) any Lien on property in favor of the United States of
America, any State thereof, or any department, agency or
instrumentality or political subdivision of the United States of
America or any State thereof, in favor of any other country or any
political subdivision thereof, or in favor of any other Governmental
Body, to secure partial, progress, advance or other payments, or
performance of any other obligations, pursuant to any contract or
statute or to secure any indebtedness incurred for the purpose of
financing all or any part of the purchase price or the cost of
construction of the property subject to such Lien; or
(v) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any Lien
referred to in the foregoing clauses (i) to (iv), inclusive; PROVIDED,
HOWEVER, that the principal amount of Debt secured thereby shall not
exceed the principal amount of Debt so secured at the time of such
extension, renewal or replacement, and that such extension, renewal, or
replacement Lien shall be limited to all or a part of the property
which secured the Lien so extended, renewed or replaced (plus
improvements on such property).
Notwithstanding the foregoing, the Borrower may issue, assume
or guarantee Debt secured by a Lien on a Manufacturing Facility which would
otherwise be subject to the foregoing restrictions in an aggregate amount which,
together with the aggregate principal amount of all other such Debt of the
Borrower outstanding at the time of such issuance, assumption or guarantee (but
excluding Debt permitted by the foregoing clauses (i) to (v), inclusive), does
not at such time exceed fifteen percent (15%) of the Consolidated Net Worth of
the Borrower as at the end of the then most recently completed fiscal year of
the Borrower.
(b) LIMITATION ON DEBT. Issue, incur, assume or guarantee, or
permit any Subsidiary to issue, incur, assume or guarantee, any Debt if,
immediately after giving effect
46
X-4.1-49
50
to the issuance, incurrence, assumption or guarantee of such Debt and after
giving effect to the receipt and application of any and all proceeds thereof,
the aggregate principal amount of the Consolidated Debt of the Borrower and the
Subsidiaries would, at the end of any fiscal quarter of the Borrower, exceed the
sum of (x) $5,000,000,000 plus (y) the Supplemental Amount, if any, at such
date. For the purpose of this paragraph (b), if any such Debt is payable in a
currency other than Dollars and all or any portion of the principal amount of
such Debt is hedged into Dollars, then the principal amount thereof, or such
portion thereof, shall be the amount of Dollars specified in, or determined
pursuant to, the applicable hedging contract.
(c) MERGERS, ETC. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, or acquire all or substantially all of the
assets of, any Person; except that (i) any Subsidiary may merge into or transfer
assets to or obtain assets from the Borrower, and (ii) the Borrower may merge
with or acquire all or substantially all of the assets of any Person, PROVIDED
in any such case that, immediately after giving effect to such proposed
transaction, no Event of Default would exist and, in the case of any such merger
to which the Borrower is a party, the Borrower is the surviving corporation.
(d) ERISA LIABILITIES. Create or suffer to exist, as at the
end of any fiscal quarter of Borrower, any ERISA Liabilities of the Borrower in
an aggregate amount in excess of $750,000,000.
ARTICLE VII. EVENTS OF DEFAULT
So long as any Commitment shall be in effect or any amount of
the principal of or accrued interest on any Borrowing shall be unpaid, in case
of the occurrence and continuance of any of the following events ("Events of
Default"):
(a) The Borrower shall fail to pay the principal of any Loan
when due, or shall fail to pay interest on any Loan when due, and any
such failure shall remain unremedied for more than five Business Days
after the earlier of (i) the day on which an Authorized Officer
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X-4.1-50
51
first obtains actual knowledge of such failure or (ii) written notice
of such failure shall have been given to the Borrower by the Agent or
any Lender; or
(b) The Borrower shall fail to pay any Fees when due and such
failure shall remain unremedied for more than ten Business Days after
the earlier of (i) the day on which an Authorized Officer first obtains
actual knowledge of such failure or (ii) written notice of such failure
shall have been given to the Borrower by the Agent or any Lender; or
(c) Any representation or warranty made by the Borrower in
this Agreement or by the Borrower (or any of its Authorized Officers)
in any certificate delivered pursuant to this Agreement, or deemed to
have been made pursuant to and in accordance with Section 4.01 of this
Agreement, shall prove to have been incorrect in any material respect
when made; PROVIDED, that if any such representation or warranty is
capable of being rendered true and correct in all material respects,
such event shall not constitute an Event of Default unless such
incorrect representation or warranty is not rendered true and correct
in all material respects within thirty days after the earlier of (i)
the day on which an Authorized Officer first obtains actual knowledge
of such default or (ii) the day written notice thereof shall have been
given to the Borrower by the Agent or any Lender; or
(d) The Borrower shall fail to perform or observe any covenant
or agreement set forth in paragraph (a) or (b) of Article V or in
paragraph (a) or (b) of Article VI and such failure shall remain
unremedied for more than thirty days after the earlier of (i) the day
on which an Authorized Officer first obtains actual knowledge of such
failure or (ii) written notice thereof shall have been given to the
Borrower by the Agent or any Lender; or
(e) The Borrower shall fail to perform or observe any other
material provision of this Agreement on its part to be performed or
observed and such failure shall remain unremedied for more than thirty
Business Days after the earlier of (i) the day on which an Authorized
Officer first obtains actual knowledge of such failure or (ii) written
notice thereof shall have been given to the Borrower by the Agent or
any Lender; or
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X-4.1-51
52
(f) The Borrower shall fail to pay any principal of Funded
Debt of the Borrower which is then outstanding in a principal amount in
excess of $25,000,000 at the scheduled maturity thereof, such failure
shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Funded Debt, and such
Funded Debt is not paid within ten Business Days after the earlier of
(i) the day on which an Authorized Officer first obtains actual
knowledge of such failure or (ii) written notice of such failure shall
have been given to the Borrower by the holder or holders of such Funded
Debt; or Funded Debt of the Borrower which is then outstanding in a
principal amount in excess of $25,000,000 shall become due and payable
prior to the scheduled maturity thereof as a result of the lawful
acceleration thereof due to the occurrence of an event of default
thereunder (other than an event of default resulting from a pledge or
transfer of any margin stock, as defined in Regulation U of the Board)
and such Funded Debt is not paid, or such acceleration thereof is not
rescinded or annulled, within ten Business Days following such lawful
acceleration thereof; or
(g) The Borrower shall sell or otherwise dispose of all or
substantially all of its assets; or
(h) The Borrower shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its
debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the
Borrower seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, or other similar official for it or for any
substantial part of its property, and, if instituted against the
Borrower, is consented to by it or remains undismissed or unstayed for
a period of 90 consecutive days; or the Borrower shall take any
corporate action to authorize any of the actions set forth above in
this clause (h);
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53
then, and in every such event (other than the entry of an order for relief with
respect to the Borrower as a bankrupt under the Federal Bankruptcy Code), and at
any time thereafter during the continuance of such event, the Agent, at the
request of the Required Lenders, shall, by notice to the Borrower, take either
or both of the following actions, at the same or different times: (i) terminate
forthwith the Commitments and (ii) declare the Loans then outstanding to be
forthwith due and payable in whole or in part, whereupon the principal of the
Loans so declared to be due and payable, together with accrued interest thereon
and any unpaid accrued Fees and all other liabilities of the Borrower accrued
hereunder, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by the Borrower, anything contained herein to the contrary
notwithstanding; PROVIDED, that in the event of the entry of an order for relief
with respect to Borrower as a bankrupt under the Federal Bankruptcy Code, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of the Borrower accrued hereunder, shall automatically
become due and payable, without presentment, demand, protest or any other notice
of any kind, all of which are hereby expressly waived by the Borrower, anything
contained herein to the contrary notwithstanding.
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54
ARTICLE VIII. THE AGENT
In order to expedite the transactions contemplated by this
Agreement, The Chase Manhattan Bank is hereby appointed to act as Agent on
behalf of the Lenders. Subject to Section 2.07(a), each of the Lenders hereby
irrevocably authorizes the Agent to take such actions on behalf of such Lender
and to exercise such powers as are specifically delegated to the Agent by the
terms and provisions hereof, together with such actions and powers as are
reasonably incidental thereto. The Agent is hereby expressly authorized by the
Lenders, without hereby limiting any implied authority, (a) to receive on behalf
of the Lenders all payments of principal of and interest on the Loans and all
other amounts due to the Lenders hereunder, and promptly to distribute to each
Lender its proper share of each payment so received; (b) to give notice on
behalf of each of the Lenders to the Borrower of any Event of Default specified
in this Agreement of which the Agent has actual knowledge acquired in connection
with its agency hereunder; and (c) to distribute to each Lender copies of all
notices, financial statements and other materials delivered by the Borrower
pursuant to this Agreement as received by the Agent.
Neither the Agent nor any of its directors, officers,
employees or agents shall be liable to any Lender as such for any action taken
or omitted by any of them except for its or his own gross negligence or wilful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Borrower of any of the terms, conditions (except delivery to
the Agent of the items required by Section 4.02 to be delivered to it),
covenants or agreements contained in this Agreement. The Agent shall not be
responsible to the Lenders for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement or other instruments or
agreements. The Agent shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. The Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be
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55
genuine and correct and to have been signed or sent by the proper Person or
Persons. Neither the Agent nor any of its directors, officers, employees or
agents shall have any responsibility to the Borrower on account of the failure
of or delay in performance or breach by any Lender of any of its obligations
hereunder or to any Lender on account of the failure of or delay in performance
or breach by any other Lender or the Borrower of any of their respective
obligations hereunder or in connection herewith. The Agent may execute any and
all duties hereunder by or through agents or employees and shall be entitled to
rely upon the advice of legal counsel selected by it with respect to all matters
arising hereunder and shall not be liable for any action taken or suffered in
good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that the Agent shall be under
no duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent
as provided below, the Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor. If no successor shall have been so appointed by
the Required 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, appoint a successor Agent which shall be a
bank with an office in New York, New York, having a combined capital and surplus
of at least $500,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor bank, 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 the Agent's resignation hereunder, the provisions of this Article and
Section 9.05 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.
With respect to the Loans made by it hereunder, the Agent in
its individual capacity and not as Agent shall have the same rights and powers
as any other Lender and may exercise the same as though it were not the Agent,
and the Agent may accept deposits from, lend money to and generally
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56
engage in any kind of business with the Borrower as if it were not the Agent.
Each Lender agrees (i) to reimburse the Agent, on demand, in
the amount of its pro rata share (based on its Commitment hereunder) of any
expenses incurred for the benefit of the Lenders by the Agent, including
reasonable counsel fees and compensation of agents and employees paid for
services rendered on behalf of the Lenders, which shall not have been reimbursed
by the Borrower and (ii) to indemnify and hold harmless the Agent and any of its
directors, officers, employees or agents, on demand, in the amount of such pro
rata share, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against it in its capacity as the Agent or any of them in any way
relating to or arising out of this Agreement or any action taken or omitted by
it or any of them under this Agreement, to the extent the same shall not have
been reimbursed by the Borrower; PROVIDED that no Lender shall be liable to the
Agent or any other indemnitee for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or wilful misconduct of the
Agent or any of its directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and
without reliance upon the Agent 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 reliance upon the Agent 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 herein, each Lender
acknowledges that the Agent is not acting as an agent of the Borrower and that
the Borrower will not be responsible for any acts or failures to act on the part
of the Agent.
53
X-4.1-56
57
ARTICLE IX. MISCELLANEOUS
SECTION 9.01. NOTICES. Except or otherwise expressly provided
herein, notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, priority mail,
mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 1144 East Market Street,
Akron, Ohio 44316-0001, Attention of the Treasurer (Telecopy No.
216-796-1021 or 216-796-8836);
(b) if to the Agent, to The Chase Manhattan Bank, Loan and
Agency Services Group, One Chase Manhattan Plaza, 8th Floor, New York,
New York 10081, Attention of Janet Belden (Telecopy No. 212-552-5658),
with a copy to The Chase Manhattan Bank, 270 Park Avenue, New York, New
York 10017, Attention of Julie Long (Telecopy No. 212-972-9854); and
(c) if to a Lender, to it at its address (or telecopy number)
set forth in Schedule 2.01.
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 if delivered by hand or overnight courier service or sent by
telecopy (as evidenced by machine transmission report), or on the date five
Business Days after dispatch by certified or registered mail, in each case
delivered, sent or mailed (properly addressed) to such party as provided in this
Section 9.01 or in accordance with the latest unrevoked direction from such
party given in accordance with this Section 9.01.
SECTION 9.02. SURVIVAL OF AGREEMENT. All covenants,
agreements, representations and warranties made by the Borrower herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement shall be considered to have been relied upon by
the Lenders and shall survive the making by the Lenders of the Loans, regardless
of any investigation made by the Lenders or on their behalf, 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 the Commitments have not been terminated.
54
X-4.1-57
58
SECTION 9.03. BINDING EFFECT; SUCCESSORS AND ASSIGNS. (a) This
Agreement shall become effective when it shall have been executed by the
Borrower and the Agent and when the Agent shall have received copies hereof
which, when taken together, bear the signatures of each Lender, and thereafter
shall be binding upon and inure to the benefit of the Borrower, the Agent and
each Lender and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights hereunder or any interest
herein or to delegate any of its duties hereunder without the prior written
consent of all the Lenders and (ii) no Lender shall have the right to assign or
participate its rights hereunder or any interest herein or to delegate any of
its duties hereunder without the prior written consent of the Borrower and
giving a written notice (also signed by the Borrower) to the Agent.
(b) Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include any successors and
permitted assigns of such party; and all covenants, promises and agreements by
or on behalf of the Borrower, the Agent or the Lenders that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and permitted assigns.
(c) Notwithstanding the limitations set forth in this Section
9.03, any Lender may at any time assign all or any portion of its rights under
this Agreement to a Federal Reserve Bank without the prior written consent of
the Borrower or the Agent; PROVIDED that no such assignment shall release a
Lender from any of its obligations hereunder or substitute any such Bank for
such Lender as a party hereto. In order to facilitate such an assignment to a
Federal Reserve Bank, the Borrower shall, at the request of the assigning
Lender, duly execute and deliver to the assigning Lender a promissory note or
notes in the form of Exhibit E hereto evidencing the Loans made to the Borrower
by the assigning Lender hereunder.
SECTION 9.04. APPLICABLE LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.05. WAIVERS; AMENDMENT. (a) No failure or delay of
the Agent or any Lender in exercising any power or right 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
55
X-4.1-58
59
steps to enforce such a right or power or preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Agent and the Lenders hereunder are cumulative and are not exclusive of any
rights or remedies provided by law. 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.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower and the Majority Lenders; provided,
HOWEVER, that no such agreement shall (i) amend, modify or otherwise affect the
rights or duties of the Agent hereunder without the prior written consent of the
Agent, (ii) decrease the principal amount of, or extend the maturity of or any
scheduled principal payment date or date for the payment of any interest on any
Loan or any Fees, or waive or excuse any such payment or any part thereof, or
decrease the rate of interest on any Loan or any Fees, without the prior written
consent of each Lender affected thereby, (iii) change or extend the Commitment
or decrease the Facility Fees or the Utilization Fee of any Lender without the
prior written consent of such Lender, or (iv) amend or modify the provisions of
Section 2.15, the provisions of this Section or the definition of "Majority
Lenders" or "Required Lenders", without the prior written consent of each
Lender; PROVIDED that the provisions referred to in the preceding clauses (ii),
(iii) and (iv) may be amended by the Majority Lenders; but any Lender which
declines to approve any such amendment shall have the right at any time, on 10
Business Days' notice to the Borrower, to terminate its Commitment and require
the Borrower to pay the principal of and interest on its outstanding Loans, and
the amount of the principal and interest so paid shall be determined without
giving effect to such amendment. All prepayments made pursuant to this Section
9.05(b) shall be without premium, penalty or other cost of any kind and shall
not be subject to the requirements of Sections 2.15 and 2.12(d).
SECTION 9.06. INTEREST RATE LIMITATION. Notwithstanding
anything herein to the contrary, if at any time the applicable interest rate,
together with all fees and charges which are treated as interest under
applicable law (collectively the "Charges"), as provided for herein, or
56
X-4.1-59
60
otherwise contracted for, charged, received, taken or reserved by any Lender,
shall exceed the maximum lawful rate (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by such Lender in
accordance with applicable law, the rate of interest payable hereunder to such
Lender, together with all Charges payable to such Lender, shall be limited to
the Maximum Rate.
SECTION 9.07. ENTIRE AGREEMENT. This Agreement and the letter
agreement referred to in Section 2.06(b) constitute the entire contract between
the parties relative to the subject matter hereof. Any previous agreement among
the parties with respect to the subject matter hereof is superseded by this
Agreement. Nothing in this Agreement, expressed or implied, is intended to
confer upon any party other than the parties hereto any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
SECTION 9.08. INFORMATION; ACCESS AND CONFIDENTIALITY. So long
as any Commitments shall be in effect or any Loans shall remain unpaid: (i) the
Lenders, acting through their officers and other duly designated employees,
shall have the right to discuss the affairs, finances and accounts of the
Borrower and the Subsidiaries with senior financial officers and employees of
the Borrower at such reasonable times and intervals as the Lenders shall
reasonably request; and (ii) the Borrower will make available to the Lenders
such other information relating to the financial condition or business
operations of the Borrower and the Subsidiaries as the Lenders shall from time
to time reasonably request. Notwithstanding anything herein to the contrary, in
no event shall the Borrower be required to furnish to the Lenders any
information pursuant to this Section 9.08 if the Borrower shall reasonably
determine that the furnishing of such requested information would be in
violation of any applicable law, regulation or order of any Governmental Body or
if such information relates to the Borrower's strategic planning, research,
development, testing, manufacturing or marketing activities and the furnishing
thereof would, in the sole judgment of the Borrower reasonably exercised,
adversely affect the competitive position of the Borrower. Each Lender agrees
that all such information provided to such Lender (or any officer or employee of
such Lender) is confidential and proprietary to the Borrower and that such
Lender will not disclose (other than to the directors, officers and employees of
such Lender who require such information in
57
X-4.1-60
61
connection with such Lender's administration of this Agreement and who have been
directed to treat such information as confidential and proprietary to the
Borrower) any such information (excluding information which becomes (i)
generally available to the public other than as a result of the disclosure
thereof by such Lender or its representatives or (ii) available to such Lender
on a non-confidential basis from a source other than the Borrower or the
Subsidiaries or any of their respective directors, officers, employees, agents
or representatives, provided such source is not bound by a confidentiality
agreement with the Borrower), except to the extent such Lender is, in the
opinion of legal counsel to such Lender, required by law to disclose such
information and then only after such Lender shall have given the Borrower at
least five (5) days' prior written notice of such required disclosure or, if
such prior notice period is not available to such Lender under applicable law,
such shorter notice period, if any, as shall in fact be available to such Lender
under applicable law.
SECTION 9.09. SEVERABILITY. In the event any one or more of
the provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the legal and economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.10. COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract, and shall become
effective as provided in Section 9.03.
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 are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a)
Each party to this Agreement irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court
or Federal court of the United States of America sitting in
58
X-4.1-61
62
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment related hereto, 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. Nothing in this Agreement
shall affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement in the courts of any jurisdiction.
(b) Each party to this Agreement 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 New York State or Federal court. 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.
(c) 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 9.13. STAMP TAXES. The Borrower agrees to pay, and to
save the Agent and each Lender harmless from all liability for, any stamp,
transfer, documentary or similar taxes, assessments or charges (herein "Stamp
Taxes"), and any penalties or interest with respect thereto, which may be
assessed, levied, collected or imposed, or otherwise become payable, in
connection with the execution and delivery of this Agreement. The Agent and each
Lender represents and warrants unto the Borrower that, at the date of this
Agreement, there are not Stamp Taxes in effect which are applicable to this
Agreement or any Loans which may be made hereunder and the Agent and each Lender
agrees that it will promptly notify the Borrower upon becoming aware of the
imposition or prospective imposition of any Stamp Taxes in respect of this
Agreement or any Loan made pursuant to this Agreement. The obligations of the
Borrower, the Agent and each Lender under this Section 9.13 shall survive the
payment of the Loans.
59
X-4.1-62
63
SECTION 9.14. CHANGE OF CONTROL OPTION. (a) In the event there
shall occur any Change of Control (as defined below) each Lender shall have the
right, at its option exercisable at any time within six months following the
Change Date (as defined below), to require the Borrower to purchase the Loans of
such Lender on the Purchase Date (as defined below) at a purchase price which
shall be equal to the sum of (i) the principal amount of such Loans then
outstanding, PLUS (ii) any and all accrued and unpaid interest on such Loans to
the Purchase Date (the "Purchase Price").
(b) The Borrower shall give the Lenders, through the Agent,
written notice of the occurrence of a Change of Control within five Business
Days following the Change Date. No failure of the Borrower to give notice of a
Change of Control shall limit the right of any Lender to require the purchase of
its Loans pursuant to this Section 9.14.
(c) Any Lender may exercise its right to require the purchase
of its Loans under this Section 9.14 by delivering to the Borrower at any time
within six months after the Change Date written notice thereof, specifying the
Purchase Date. The Commitment of any Lender exercising its right to require the
purchase of its Loans under this Section 9.14 shall automatically terminate
immediately upon the Borrower's receipt of such Lender's written notice of such
exercise of its option in accordance with this Section 9.14.
(d) In the event of the exercise by any Lender of its option
under this Section 9.14 in the manner provided herein, the Borrower shall pay or
cause to be paid to such Lender on the Purchase Date the Purchase Price
(determined in accordance with paragraph (a) above) in immediately available
funds. No exercise of the option granted in this Section 9.14 shall be subject
to the requirements of Sections 2.15 and 2.12(d).
(e) As used in this Section 9.14, the term:
(1) "CHANGE DATE" means the date on which any Change of
Control shall be deemed to have occurred; PROVIDED, that, if the
Borrower shall fail to give timely notice of the occurrence of a Change
of Control to the Lenders as provided in paragraph (b) above, for the
purpose of determining the duration of the Lenders' rights to require
prepayment under this Section 9.14,
60
X-4.1-63
64
"CHANGE DATE" shall mean the earlier of (i) the date on which notice of
a Change of Control is duly given by the Borrower to the Agent or (ii)
with respect to any Lender, the date on which such Lender obtains
actual knowledge of the Change of Control.
(2) "CHANGE OF CONTROL" means when, and shall be deemed to
have occurred at such time as, a "person" or "group" (within the
meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of
more than 50% of the then outstanding Voting Stock of the Borrower;
PROVIDED, that fifty percent shall become 70% with respect to any
"employee benefit plan" (as defined in Section 3(3) of ERISA)
maintained by the Borrower or any Subsidiary or any trust or funding
vehicle maintained for or pursuant to such "employee benefit plan".
(3) "PURCHASE DATE" means, with respect to any Lender, the
date on which the Borrower shall purchase the Loans of such Lender
pursuant to the exercise by such Lender of its option under this
Section 9.14, pursuant to a notice given to the Borrower in accordance
with paragraph (c) of this Section 9.14, which date shall be a Business
Day not less than 90 nor more than 120 days after the date such Lender
gives the Borrower written notice of such exercise.
(4) "VOTING STOCK" shall mean capital stock of the Borrower of
any class or classes (however designated) the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of the Board of Directors of the Borrower, it being understood
that, at the date hereof, the Common Stock, without par value, of the
Borrower is the only outstanding class of capital stock of the Borrower
which constitutes "Voting Stock".
61
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65
IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders
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/ Stephanie W. Bergeron
---------------------------------
Name: Stephanie W. Bergeron
Title: Vice President and
Treasurer
THE CHASE MANHATTAN BANK, individually
and as Agent,
by /s/ Julie S. Long
---------------------------------
Name: Julie S. Long
Title: Vice President
BANQUE NATIONALE de PARIS,
Chicago Branch,
by /s/ Jo Ellen Bender
---------------------------------
Name: Jo Ellen Bender
Title: Senior Vice
President
CIBC INC.,
by /s/ Barrie Anderson
---------------------------------
Name: Barrie Anderson
Title: Executive Director
CIBC World Markets
Corp. As Agent
THE SUMITOMO BANK LIMITED, New
York Branch
by /s/Edward D. Henderson, Jr.
---------------------------------
Name: Edward D.Henderson,Jr.
Title: Senior Vice President
62
X-4.1-65
66
COMMERZBANK AG, New York and Grand
Cayman Branches,
by /s/ John Marlatt
---------------------------------
Name: John Marlatt
Title: Vice President
by /s/ Graham Warning
---------------------------------
Name: Graham Warning
Title: Assistant Treasurer
BANK OF AMERICA, N.A.,
by /s/ Lynn W. Stetson
---------------------------------
Name: Lynn W. Stetson
Title: Managing Director
ABN AMRO BANK N.V.,
by /s/ John M. Ellenwood
---------------------------------
Name: John M. Ellenwood
Title: Group Vice President
by /s/ Erin Marie Lavelle
---------------------------------
Name: Erin Marie Lavelle
Title: Vice President
BANK OF TOKYO-MITSUBISHI
by /s/ Heather T. Zimmerman
---------------------------------
Name: Heather T. Zimmerman
Title: Vice President
BARCLAYS BANK PLC,
by /s/ L. Peter Yetman
---------------------------------
Name: L. Peter Yetman
Title: Director
63
X-4.1-66
67
CITICORP USA, Inc.,
by /s/ Candi M. Halbert
---------------------------------
Name: Candi M. Halbert
Title: Vice President
CREDIT LYONNAIS, Chicago Branch,
by /s/ Mary Ann Klemm
---------------------------------
Name: Mary Ann Klemm
Title: Vice President
CREDIT SUISSE FIRST BOSTON,
by /s/ Bill O'Daly
---------------------------------
Name: Bill O'Daly
Title: Vice President
by /s/ Kristin Lepri
---------------------------------
Name: Kristin Lepri
Title: Associate
THE DAI-ICHI KANGYO BANK, LTD.,
Chicago Branch,
by /s/ Nobuyasu Fukatsu
---------------------------------
Name: Nobuyasu Fukatsu
Title: General Manager
DEUTSCHE BANK AG, New York
and/or Cayman Islands Branch,
by /s/ Hans-Josep Thiele
---------------------------------
Name: Hans-Josep Thiele
Title: Director
by /s/ Joel Makowsky
---------------------------------
Name: Joel Makowsky
Title: Vice President
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68
THE FIRST NATIONAL BANK OF CHICAGO,
by /s/ Patrick F. Dunphy
---------------------------------
Name: Patrick F. Dunphy
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
by /s/ Walter R. Wolff
---------------------------------
Name: Walter R. Wolff
Title: Joint General
Manager
NATIONAL CITY BANK,
by /s/ Janice E. Focke
---------------------------------
Name: Janice E. Focke
Title: Vice President and
Senior Lending
Officer
THE NORTHERN TRUST COMPANY,
by /s/ Tracy J. Toulouse
---------------------------------
Name: Tracy J. Toulouse
Title: Vice President
ROYAL BANK OF CANADA,
by /s/ Gordon C. MacArthur
----------------------------------
Name: Gordon C. MacArthur
Title: Senior Manager
SOCIETE GENERALE, Chicago Branch,
by /s/ Steven R. Fercho
----------------------------------
Name: Steven R. Fercho
Title: Director
65
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69
THE BANK OF NOVA SCOTIA,
by /s/ F.C.H. Ashby
----------------------------------
Name: F.C.H. Ashby
Title: Senior Manager Loan
Operations
BBL INTERNATIONAL (U.K.) LIMITED,
by /s/ C.F. Wright
-----------------------------------
Name: C.F. Wright
Title: Autorised Signatory
by /s/ M-C Swinnen
-----------------------------------
Name: M-C Swinnen
Title: Authorised Signatory
BANCA NAZIONALE DEL LAVORO, S.P.A. -
NEW YORK BRANCH
by /s/ Giulio Giovine
----------------------------------
Name: Giulio Giovine
Title: Vice President
by /s/ Leonardo Valentini
----------------------------------
Name: Leonardo Valentini
Title: First Vice President
KEYBANK, NATIONAL ASSOCIATION,
by /s/ Daniel W. Lally
----------------------------------
Name: Daniel W. Lally
Title: Assistant Vice
President
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X-4.1-69
70
SCHEDULE 2.01
======================================================================================================
Lender Commitment CD Reserve Requirement
- ------------------------------------------- ---------------------------------- -----------------------
THE CHASE MANHATTAN BANK $145,000,000.00 0.0%
270 Park Avenue
10th Floor
New York, NY 10017-2070
Attention: David W. Fox
Telephone: (212) 270-4449
Telecopy: (212) 270-1340
- ------------------------------------------- ---------------------------------- -----------------------
BANQUE NATIONALE de PARIS, $75,000,000.00 0.0%
Chicago Branch
Rookery Bldg, 5th Floor
209 South LaSalle Street
Chicago, IL 60604
Attention: Fred Moryl
Telephone: (312) 977-2211
Telecopy: (312) 977-1380
- ------------------------------------------- ---------------------------------- -----------------------
CIBC INC. $75,000,000.00 0.0%
425 Lexington Avenue
New York, NY 10017
Attention: W. Barrie Anderson
Telephone: (212) 856-3580
Telecopy: (212) 856-3991
- ------------------------------------------- ---------------------------------- -----------------------
THE SUMITOMO BANK LIMITED $30,000,000.00 0.0%
New York Branch
277 Park Avenue
New York, NY 10172
Attention: Bruce Gregory
Telephone: (212) 224-4143
Telecopy: (212) 224-4384
- ------------------------------------------- ---------------------------------- -----------------------
COMMERZBANK AG $75,000,000.00 0.0%
New York and Grand Cayman
Branches
20 S. Clark Street
Suite 2700
Chicago, IL 60603
Attention: Tim Shortly
Telephone: (312) 795-1620
Telecopy: (312) 236-2827
X-4.1-70
71
======================================================================================================
Lender Commitment CD Reserve Requirement
- ------------------------------------------- ---------------------------------- -----------------------
BANK OF AMERICA, N.A., $75,000,000.00 0.0%
231 South LaSalle Street
Chicago, IL 60697
Attention: Robert Balmos
Telephone: (312) 828-4405
Telecopy: (312) 987-0303
- ------------------------------------------- ---------------------------------- -----------------------
ABN AMRO BANK N.V. $30,000,000.00 0.0%
135 South LaSalle Street
Chicago, IL 60674-9135
Attention: John Ellenwood
Telephone: (312) 904-2735
Telecopy: (312) 904-2537
- ------------------------------------------- ---------------------------------- -----------------------
THE BANK OF TOKYO-MITSUBISHI TRUST COMPANY $45,000,000.00 0.0%
1251 Avenue of the Americas
12th Floor
New York, NY 10111
Attention: Fredrich Wilms
Telephone: (212) 782-4341
Telecopy: (212) 782-6445
- ------------------------------------------- ---------------------------------- -----------------------
BARCLAYS BANK PLC $30,000,000.00 0.0%
New York
222 Broadway, 8th Floor
New York, NY 10038
Attention: Timothy Weidman
Telephone: (212) 412-2984
Telecopy: (212) 412-7585
- ------------------------------------------- ---------------------------------- -----------------------
CITIBANK, N.A. $75,000,000.00 0.23%
399 Park Avenue
8th Floor, Zone 12
New York, NY 10043
Attention: Brian Ike
Telephone: (212) 559-7205
Telecopy: (212) 826-2375
- ------------------------------------------- ---------------------------------- -----------------------
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72
======================================================================================================
Lender Commitment CD Reserve Requirement
- ------------------------------------------- ---------------------------------- -----------------------
CREDIT LYONNAIS $45,000,000.00 0.0%
Chicago Branch
227 West Monroe Street
Suite 3800
Chicago, IL 60606
Attention: Nigel Carter
Telephone: (312) 220-7310
Telecopy: (312) 641-0527
- ------------------------------------------- ---------------------------------- -----------------------
CREDIT SUISSE FIRST BOSTON $75,000,000.00 0.0%
11 Madison Avenue
New York, NY 10010-3692
Attention: William O'Daly
Telephone: (212) 325-1986
Telecopy: (212) 325-8309
- ------------------------------------------- ---------------------------------- -----------------------
THE DAI-ICHI KANGYO BANK, $30,000,000.00 0.0%
LTD.
10 South Wacker Drive
26th Floor
Chicago, IL 60606
Attention: Norman Fedder
Telephone: (312) 715-6363
Telecopy: (312) 876-2011
- ------------------------------------------- ---------------------------------- -----------------------
DEUTSCHE BANK AG $45,000,000.00 0.0%
31 W. 52nd Street
24th Floor
New York, NY 10019
Attention: Rolf-Peter Mikolayczyk
Telephone: (212) 469-8237
Telecopy: (212) 474-8212
- ------------------------------------------- ---------------------------------- -----------------------
THE FIRST NATIONAL BANK $75,000,000.00 0.0%
OF CHICAGO
611 Woodward Avenue
2nd Floor
South Detroit, MI 48226
Attention: Paul Demelo
Telephone: (313) 225-2520
Telecopy: (313) 225-1212
- ------------------------------------------- ---------------------------------- -----------------------
THE INDUSTRIAL BANK OF JAPAN, LIMITED $45,000,000.00 0.0%
AT&T Corporate Center
227 West Monroe Street
Suite 2600
Chicago, IL 60606
Attention: Stan Beltramea
Telephone: (312) 855-8492
Telecopy: (312) 855-8200
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73
======================================================================================================
Lender Commitment CD Reserve Requirement
- ------------------------------------------- ---------------------------------- -----------------------
NATIONAL CITY BANK $30,000,000.00 0.0%
National City Center
1900 East Ninth Street
Locator #2077
Cleveland, OH 44114-3484
Attention: Janice Focke
Telephone: (216) 575-2836
Telecopy: (216) 222-0003
- ------------------------------------------- ---------------------------------- -----------------------
THE NORTHERN TRUST COMPANY $30,000,000.00 0.0%
50 South LaSalle Street
Chicago, IL 60675
Attention: Tracy Toulouse
Telephone: (312) 557-1356
Telecopy: (312) 630-6062
- ------------------------------------------- ---------------------------------- -----------------------
ROYAL BANK OF CANADA $75,000,000.00 0.0%
One Liberty Plaza - 4th Floor
New York, NY 10006-1404
Attention:Aurora Lanteigne
Telephone: (212) 428-6338
Telecopy: (212) 428-2372
with a copy to:
Attention:G.C. MacAurthur
Telephone: (212) 428-6502
Telecopy: (212) 428-2319
- ------------------------------------------- ---------------------------------- -----------------------
SOCIETE GENERALE $45,000,000.00 0.0%
181 W. Madison Street
Suite 3400
Chicago, IL 60602
Attention: Steven Fercho
Telephone: (312) 578-5008
Telecopy: (312) 578-5099
- ------------------------------------------- ---------------------------------- -----------------------
BBL INTERNATIONAL (U.K.) $30,000,000.00 0.0%
LIMITED
6 Broadgate
London ECM 2AJ
Attention: Chris Wright
Telephone: 011-44-171-392-5533
Telecopy: 011-44-171-562-0208
- ------------------------------------------- ---------------------------------- -----------------------
BANCA NAZIONALE DEL LAVORO $45,000,000.00 0.0%
25 West 51st Street
New York, NY 10019
Attention: Giulio Giovine
Telephone: (212) 314-0239
Telecopy: (212) 765-2978
X-4.1-73
74
======================================================================================================
Lender Commitment CD Reserve Requirement
- ------------------------------------------- ---------------------------------- -----------------------
KEYBANK, NATIONAL ASSOCIATION $30,000,000.00 0.0%
127 Public Square
6th Floor
Cleveland, OH 44114-1306
Attention: Dan Lally
Telephone: (216) 689-8065
Telecopy: (216) 689-4981
- ------------------------------------------- ---------------------------------- -----------------------
THE BANK OF NOVA SCOTIA $45,000,000.00 0.0%
181 West Madison Street
Suite 3700
Chicago, IL 60602
Attention: Eric Bergren
Telephone: (312) 201-4187
Telecopy: (312) 201-4108
=========================================== ================================== =======================
TOTAL $1,300,000,000.00
=========================================== ================================== =======================
X-4.1-74
75
EXHIBIT A-1
FORM OF COMPETITIVE BID REQUEST
The Chase Manhattan Bank, as Agent for
the Lenders referred to below,
270 Park Avenue
New York, N.Y. 10017
[Date]
Attention:
Dear Sirs:
The undersigned, The Goodyear Tire & Rubber Company (the
"Borrower"), refers to the Credit Agreement [364-Day Facility] dated as of
[ ], 1999 (as it may hereafter be amended, modified, extended or
restated from time to time, the "Credit Agreement"), among the Borrower, the
Lenders parties thereto and The Chase Manhattan Bank, as Agent. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement. The Borrower hereby gives you
notice pursuant to Section 2.03(a) of the Credit Agreement that it requests a
Competitive Borrowing under the Credit Agreement, and in that connection sets
forth below the terms on which such Competitive Borrowing is requested to be
made:
(A) Date of Competitive Borrowing
(which is a Business Day) ____________________
(B) Principal Amount of
Competitive Borrowing 1/ ____________________
(C) Interest rate basis 2/ ____________________
(D) Interest Period and the last
day thereof 3/ ____________________
- --------
1/ Not less than $25,000,000 (and in integral multiples of $1,000,000) or
greater than the Total Commitment then available.
2/ Eurodollar Borrowing or Fixed Rate Borrowing.
3/ Which shall be subject to the definition of "Interest Period" and end
not later than the Maturity Date.
X-4.1-75
76
Upon acceptance of any or all of the Loans offered by the
Lenders in response to this request, the Borrower shall be deemed to have
represented and warranted that the conditions to lending specified in Section
4.01(b) and (c) of the Credit Agreement have been satisfied.
Very truly yours,
THE GOODYEAR TIRE & RUBBER COMPANY,
by
---------------------------
Title: [Authorized Officer]
X-4.1-76
77
EXHIBIT A-2
FORM OF NOTICE OF COMPETITIVE BID REQUEST
[Name of Lender]
[Address]
[Date]
Attention:
Dear Sirs:
Reference is made to the Credit Agreement [364-Day Facility]
dated as of [ ], 1999 (as it may hereafter be amended, modified,
extended or restated from time to time, the "Credit Agreement"), among The
Goodyear Tire & Rubber Company (the "Borrower"), the Lenders parties thereto and
The Chase Manhattan Bank, as Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. The Borrower made a Competitive Bid Request on , 19 ,
pursuant to Section 2.03(a) of the Credit Agreement, and in that connection you
are invited to submit a Competitive Bid by [Date]/[Time] . 4/ Your Competitive
Bid must comply with Section 2.03(b) of the Credit Agreement and the terms set
forth below on which the Competitive Bid Request was made:
(A) Date of Competitive Borrowing ____________________
(B) Principal amount of
Competitive Borrowing ____________________
- -----------
4/ The Competitive Bid must be received by the Agent (i) in the case of
Eurodollar Loans, not later than 9:30 a.m., New York City time, three Business
Days before a proposed Competitive Borrowing, and (ii) in the case of Fixed Rate
Loans, not later than 9:30 a.m., New York City time, on the Business Day of a
proposed Competitive Borrowing.
X-4.1-77
78
(C) Interest rate basis
--------------------
(D) Interest Period and the last
day thereof
--------------------
Very truly yours,
THE CHASE MANHATTAN BANK, as
Agent,
By
-------------------------
Title:
X-4.1-78
79
EXHIBIT A-3
FORM OF COMPETITIVE BID
The Chase Manhattan Bank, as Agent for
the Lenders referred to below,
270 Park Avenue
New York, N.Y. 10017
[Date]
Attention:
Dear Sirs:
The undersigned, [Name of Bank], refers to the Credit
Agreement [364-Day Facility] dated as of [ ], 1999 (as it may
hereafter be amended, modified, extended or restated from time to time, the
"Credit Agreement"), among The Goodyear Tire & Rubber Company (the "Borrower"),
the Lenders parties thereto and The Chase Manhattan Bank, as Agent. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement. The undersigned hereby makes a
Competitive Bid pursuant to Section 2.03(b) of the Credit Agreement, in response
to the Competitive Bid Request made by the Borrower on , 19 ,
and in that connection sets forth below the terms on which such Competitive
Bid is made:
(A) Principal Amount 5/ ____________________
(B) Competitive Bid Rate 6/ ____________________
- --------------
5/ Not less than $5,000,000 or greater than the requested Competitive
Borrowing and in integral multiples of $1,000,000. Multiple bids will be
accepted by the Agent.
6/ i.e., LIBO Rate + or - %, in the case of Eurodollar Loans or %, in
the case of Fixed Rate Loans.
X-4.1-79
80
(C) Interest Period and last
day thereof ____________________
The undersigned hereby confirms that it is prepared, subject
to the conditions set forth in the Credit Agreement, to extend credit to the
Borrower upon acceptance by the Borrower of this bid in accordance with Section
2.03(d) of the Credit Agreement.
Very truly yours,
[NAME OF LENDER],
By
----------------------
Title:
X-4.1-80
81
EXHIBIT A-4
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
[Date]
The Chase Manhattan Bank, as Agent for
the Lenders referred to below
270 Park Avenue
New York, N.Y. 10017
Attention: [ ]
Dear Sirs:
The undersigned, The Goodyear Tire & Rubber Company (the
"Borrower"), refers to the Credit Agreement [364-Day Facility] dated as of
[ ], 1999 (as it may hereafter be amended, modified, extended or
restated from time to time, the "Credit Agreement"), among the Borrower, the
Lenders parties thereto and The Chase Manhattan Bank, as Agent.
In accordance with Section 2.03(c) of the Credit Agreement, we
have received a summary of bids in connection with our Competitive Bid Request
dated ___________ and in accordance with Section 2.03(d) of the Credit
Agreement, we hereby accept the following bids for maturity on [date]:
Principal Amount Fixed Rate/Margin Lender
$
$ [%]/[+/-. %]
We hereby reject all other bids.
X-4.1-81
82
The $ should be deposited in [ ]
account number [ ] on [date].
Very truly yours,
THE GOODYEAR TIRE & RUBBER
COMPANY,
by
-----------------------
Name:
Title:
X-4.1-82
83
EXHIBIT A-5
FORM OF STANDARD BORROWING REQUEST
The Chase Manhattan Bank, as Agent for the
Lenders referred to below,
270 Park Avenue
New York, N.Y. 10017
[Date]
Attention:
Dear Sirs:
The undersigned, The Goodyear Tire & Rubber Company (the
"Borrower"), refers to the Credit Agreement [364-Day Facility] dated as of
[ ], 1999 (as it may hereafter be amended, modified, extended or
restated from time to time, the "Credit Agreement"), among the Borrower, the
Lenders parties thereto and The Chase Manhattan Bank, as Agent. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement. The Borrower hereby gives you
notice pursuant to Section 2.04 of the Credit Agreement that it requests a
Standard Borrowing under the Credit Agreement, and in that connection sets forth
below the terms on which such Standard Borrowing is requested to be made:
(A) Date of Standard Borrowing
(which is a Business Day) ____________________
(B) Principal Amount of
Standard Borrowing 7/ ____________________
(C) Interest rate basis 8/ ____________________
__________
7/ Not less than $25,000,000 (and in integral multiples of $1,000,000)
or greater than the Total Commitment then available.
8/ Eurodollar Loan, CD Loan or ABR Loan.
X-4.1-83
84
(D) Interest Period 9/ ____________________
(E) Account to which funds
should be transferred ____________________
Upon acceptance of any or all of the Loans made by the Lenders
in response to this request, the Borrower shall be deemed to have represented
and warranted that the conditions to lending specified in Section 4.01(b) and
(c) of the Credit Agreement have been satisfied.
Very truly yours,
THE GOODYEAR TIRE & RUBBER COMPANY,
By
----------------------------
Title: [Authorized Officer]
- ------------
9/ Which shall be subject to the definition of "Interest Period" and
end not later than the Maturity Date.
X-4.1-84
85
EXHIBIT B
FORM OF OPINION OF COUNSEL TO GOODYEAR
--------------------------------------
[INSERT CLOSING DATE]
The Lenders and the Agent
named in the Credit
Agreement referred to below
c/o The Chase Manhattan Bank, as Agent,
270 Park Avenue
New York, NY 10017
RE: CREDIT AGREEMENT [364-DAY FACILITY] DATED AS OF
[ ], 1999, AMONG THE GOODYEAR TIRE & RUBBER COMPANY,
THE LENDERS NAMED THEREIN AND THE CHASE MANHATTAN BANK, AS AGENT
Gentlemen:
This opinion is furnished to you pursuant to Section 4.02(a) of the
Credit Agreement [364-Day Facility] dated as of [ ], 1999
(the "Agreement"), among The Goodyear Tire & Rubber Company ("Goodyear"), the
financial institutions party thereto as lenders (the "Lenders") and The Chase
Manhattan Bank, as agent for the Lenders.
I am [the General Counsel and a Vice President] [Associate (Assistant)
General Counsel] of Goodyear, an Ohio corporation, and, as such, am familiar
with the provisions of its Amended Articles of Incorporation and its Code of
Regulations, as each is amended to date, and such other documents as relate to
its corporate power to enter into and perform the Agreement and to incur
indebtedness thereunder.
I am also familiar with the terms and provisions of the Agreement and
with the corporate proceedings taken by Goodyear in connection with its
authorization, execution and delivery.
My opinion is limited to matters involving United States Federal law
and the law of the State of Ohio. I have made no examination of the law of any
other jurisdiction (other than United States Federal law and the law of the
State of Ohio) as a basis for the opinion hereinafter expressed and I do not
express, nor should there be implied, any opinion thereon.
X-4.1-85
86
Based upon the foregoing, I am of the opinion that:
1. Goodyear is a corporation duly organized, validly existing
and in good standing under the laws of the State of Ohio.
2. The execution, delivery and performance of the Agreement by
Goodyear are within Goodyear's corporate powers, have been duly
authorized by all necessary corporate action, will not violate any
provision of any existing law or regulation or order or decree of any
court or Governmental Body or of the Amended Articles of Incorporation
or Code of Regulations of Goodyear, as each is amended to date, or of
the unwaived terms of any mortgage, indenture, agreement or other
instrument to which Goodyear is a party or which is binding upon it or
its assets, and will not result in the creation or imposition of any
security interest, lien, charge or encumbrance on any of its assets
pursuant to the provisions of any of the foregoing.
3. No authorization or approval or other action by, and no
notice to or filing with, any Governmental Body or court is required to
be made or effected by Goodyear for the due execution and delivery of
the Agreement by Goodyear and for the performance by Goodyear of the
obligations on its part to be performed under the Agreement.
4. If, contrary to the intent of the parties, the Agreement
were held to be governed by Ohio law, the Agreement would constitute
the legal, valid and binding obligation of Goodyear enforceable against
Goodyear in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
Very truly yours,
[General Counsel or
Associate or Assistant
General Counsel]
X-4.1-86
87
EXHIBIT C
THE GOODYEAR TIRE & RUBBER COMPANY
SCHEDULE OF COMPLIANCE
DATED AS OF ___________________, ______
This Schedule of Compliance is delivered pursuant to and in accordance
with clause (1) of part [(i)] [(ii)] of Subsection (d) of Article V of the
Credit Agreement [364-Day Facility] dated as of [ ], 1999 (the "Credit
Agreement"), among The Goodyear Tire & Rubber Company ("Goodyear"), the lenders
parties thereto and The Chase Manhattan Bank, as agent for the lenders. The
terms defined in the Credit Agreement are used herein as therein defined. All
dollar amounts set forth herein are expressed in millions of dollars. This
Schedule of Compliance is in respect of the fiscal [quarter] [year] of Goodyear
ended ________________ (the "Current Fiscal [Quarter] [Year]").
I. INTEREST COVERAGE RATIO - Article V(a)
-------------------------------------
INTEREST COVERAGE RATIO FOR THE ANNUAL PERIOD ENDED
ON [INSERT DATE].
(A) ANNUAL PERIOD CONSOLIDATED
OPERATING INCOME: $___________________
ANNUAL PERIOD INTEREST CHARGES: $___________________
(B) Annual Period Interest $___________________
(C) Annual Period Amortized
Debt discount and expense $___________________
(D) Annual Period Capitalized
Lease imputed interest $___________________
(E) CALCULATION OF ANNUAL PERIOD
INTEREST CHARGES:
(B)+(C)+(D) $___________________
CALCULATION OF INTEREST
COVERAGE RATIO FOR THE
ANNUAL PERIOD:
(A)/(E) ___________________
MINIMUM INTEREST COVERAGE
RATIO REQUIRED BY
ARTICLE V(a) 1.55 TO 1
II. CONSOLIDATED NET WORTH - ARTICLE V(a)
-------------------------------------
X-4.1-87
88
(A) Consolidated stated capital,
surplus and retained earnings
(before foreign currency
translation adjustment) $
--------------------
(B) SFAS 106 Transition obligation
adjustment $ 1,065.7
--------------------
Calculation of Consolidated
Net Worth as at end of
Current Fiscal
[Quarter] [Year]:
(A)+(B) $___________________
Minimum Consolidated Net
Worth required by
Section 6.1(C) $ 1,250.0
--------------------
III. LIMITATION ON LIENS - ARTICLE VI(a)
-----------------------------------
LIENS ON MANUFACTURING FACILITIES ISSUED, ASSUMED OR
GUARANTEED DURING THE CURRENT FISCAL YEAR.
(A) Liens on property at
acquisition $____________________
(B) Permitted purchase money
Liens $____________________
(C) Liens on property of
acquired or merged entity $____________________
(D) Permitted governmental
Liens $___________________
(E) Permitted renewal Liens $___________________
(F) Permitted Liens under
basket provision of
Article VI(a) $___________________
(G) Liens not permitted by
Article VI(a) $___________________
IV. LIMITATION ON DEBT - ARTICLE VI(b)
----------------------------------
CONSOLIDATED DEBT AT END OF CURRENT FISCAL [QUARTER] [YEAR].
(A) Indebtedness for borrowed
money constituting Debt,
obligations evidenced by
bonds, debentures or similar
instruments constituting
Debt and obligations for
deferred purchase price of
property or services
X-4.1-88
89
constituting Debt $
-------------------
(B) Capital Lease Obligations
constituting Debt $
-------------------
(C) Guarantees constituting
Debt $
-------------------
CALCULATION OF CONSOLIDATED
DEBT AT END OF CURRENT FISCAL
YEAR (A)+(B)+(C) $
-------------------
AMOUNT OF CONSOLIDATED DEBT
PERMITTED BY ARTICLE VI(B) $
($5,000,000,000) PLUS THE -------------------
SUPPLEMENTAL AMOUNT
OF $__________________ $
-------------------
V. LEVERAGE RATIO
--------------
CONSOLIDATED DEBT AT END OF CURRENT FISCAL QUARTER.
(A) (1) Notes payable to banks
and overdrafts $
-------------------
(2) Long term debt due
within one year $
-------------------
(3) Long term debt and capital
leases $
-------------------
(B) Net proceeds from the sale of
outstanding domestic accounts
receivable $
-------------------
(C) Consolidated Net Worth
(including SFAS 106 transition
charge) ((A)+(B) of Part II) $
-------------------
CALCULATION OF LEVERAGE
RATIO AT END OF CURRENT
FISCAL QUARTER
[(A)+(B)] / [(A)+(B)+(C)] %
-----------------
The undersigned hereby certifies that the above information has been
prepared in accordance with the requirements of the Credit Agreement and that
such information is true and correct in all material respects.
THE GOODYEAR TIRE & RUBBER COMPANY
By:_____________________________
[Name and Title of Authorized
Officer]
X-4.1-89
90
EXHIBIT D
[FORM OF AGREEMENT]
AGREEMENT dated as of [ ], [ ],
between The Goodyear Tire & Rubber Company, an Ohio corporation and [ ]
(the "New Lender").
Reference is made to the Credit Agreement [364-Day Facility]
dated as of [ ], 1999 (the "Credit Agreement"), among The Goodyear
Tire & Rubber Company, an Ohio corporation (the "Borrower"), the Lenders listed
in Schedule 2.01 thereof (the "Lenders") and The Chase Manhattan Bank, a New
York banking corporation, as agent for the Lenders (in such capacity, the
"Agent"). Terms defined in the Credit Agreement are used herein with the same
meanings.
1. Pursuant to Section 2.11(d) of the Credit Agreement the New
Lender and the Borrower hereby agree that the New Lender shall become a
Lender under the Credit Agreement with a Commitment of $[ ]
by the New Lender, effective as of the later of [ ],
[ ], and the fifth Business day after this Agreement shall
have been delivered to the Agent (the "Effective Date"). From and after
the Effective Date the New Lender shall be a party to and be bound by
the provisions of the Credit Agreement and have the rights and
obligations of a Lender thereunder.
2. Upon the effectiveness of this Agreement, Schedule 2.01 to
the Credit Agreement shall be automatically amended to reflect the
Commitment of the New Lender.
3. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
X-4.1-90
91
IN WITNESS WHEREOF, the Borrower and 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 ___________________________
Name:
Title:
[ ],
By ___________________________
Name:
Title:
X-4.1-91
92
EXHIBIT E
[Date]
[FORM OF]
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned, THE GOODYEAR TIRE & RUBBER
COMPANY, an Ohio corporation (the "Borrower"), hereby promises to pay to the
order of (the "Lender") at the office of The Chase Manhattan Bank (the "Agent"),
at 270 Park Avenue, New York, New York, 10017, when and as due under the terms
of the Credit Agreement referred to below, the aggregate unpaid principal amount
of all Loans made by the Lender to the Borrower under the Credit Agreement, in
lawful money of the United States of America in same day funds, and to pay
interest from the date hereof on such principal amount from time to time
outstanding in like funds, at said office, at a rate or rates per annum and
payable on the dates provided in the Credit Agreement.
This note is one of the notes referred to in Section 9.03(c) of
the Revolving Credit Facility Agreement dated as of [ ], 1999,
among the Borrower, the lenders parties thereto (including the "Lender") and The
Chase Manhattan Bank, as Agent (as the same may be modified, amended, extended
or restated from time to time, the "Credit Agreement"). The Lender is hereby
authorized to record information as to the amounts and types of the Loans made
by it and payments of principal and interest received with respect thereto on
the schedule attached hereto. Capitalized terms used in this note have the
respective meanings assigned to them in the Credit Agreement. THIS NOTE SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
AND ANY APPLICABLE LAWS OF THE UNITED STATED OF AMERICA.
THE GOODYEAR TIRE & RUBBER
COMPANY,
By
_________________________
Name:
Title:
X-4.1-92