EXHIBIT 4.5
FIRST AMENDMENT dated as of February 19, 2004 (this
"Amendment"), to the Term Loan and Revolving Credit Agreement
dated as of March 31, 2003 (the "Credit Agreement"), among THE
GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation
("Goodyear"); GOODYEAR DUNLOP TIRES EUROPE B.V., a corporation
organized under the laws of the Netherlands (the "European
J.V."); GOODYEAR DUNLOP TIRES GERMANY GMBH, a corporation
organized under the laws of the Federal Republic of Germany
("GDTG"); GOODYEAR GMBH & CO KG, a partnership organized under
the laws of the Federal Republic of Germany ("Goodyear KG");
DUNLOP GMBH & CO KG, a partnership organized under the laws of
the Federal Republic of Germany ("Dunlop KG"); GOODYEAR
LUXEMBOURG TIRES SA, a societe anonyme organized under the
laws of Luxembourg ("Lux Tires"); the lenders party thereto
(together with their successors and permitted assigns
thereunder, the "Lenders"); and JPMORGAN CHASE BANK, a New
York banking corporation, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent").
WHEREAS, pursuant to the terms and conditions of the Credit
Agreement, the Lenders have extended and agreed to extend credit to the
Borrowers; and
WHEREAS, Goodyear and the Borrowers have requested, and the Majority
Lenders are willing to agree, that certain provisions of the Credit Agreement
and of the Security Documents be amended on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used and not defined
herein shall have the meanings given to them in the Credit Agreement or, if not
defined therein, in the Guarantee and Collateral Agreement, each as amended
hereby or pursuant hereto.
SECTION 2. Amendments to Section 1.01 of the Credit Agreement.
Section 1.01 of the Credit Agreement is hereby amended as follows:
(a) The definition of "Capital Expenditures" is hereby amended
by deleting the word "and" immediately before "(ii)" in the second
sentence thereof and inserting immediately before the period at the end of
such sentence "and (iii) "Capital Expenditures" in respect of any period
shall be reduced by the amount of Customer Capital Expenditures that are
directly paid by customers during such period and by the amount of
reimbursements Goodyear or any Subsidiary shall have received during such
period from customers in respect of Customer Capital
Expenditures; provided that the aggregate amount of such reductions shall
not exceed $50,000,000 in any fiscal year".
(b) The definition of "Consolidated Net Worth" is hereby
amended by inserting "(including the $84,700,000 of charges incurred in
connection with Goodyear's restatement of its financial statements from
1998 through the second quarter of 2003, reflected in SEC filings made in
the fourth quarter of 2003)" immediately after the phrase "non-cash
non-recurring charges" in clause (c)(i) of such definition.
(c) The definition of "Consolidated Senior Secured
Indebtedness" is hereby amended by inserting "(other than up to
$2,500,000,000 aggregate principal amount of Senior Subordinated-Lien
Indebtedness)" immediately after the word "Indebtedness" in clause (a) of
such definition.
(d) The definition of "Credit Documents" is hereby amended by
replacing the word "and" with a comma and by inserting immediately before
the period at the end thereof "and the Lien Subordination and
Intercreditor Agreement".
(e) The definition of "Net Cash Proceeds" is hereby amended by
inserting at the end thereof, "The Net Cash Proceeds of any event that is
not a Prepayment Event shall be determined as if such event were a
Prepayment Event."
(f) Clause (c) of the definition of "Permitted Encumbrances"
is hereby amended by inserting therein immediately after the phrase
"deposits made" the phrase "(including cash deposits to secure obligations
in respect of letters of credit provided)".
(g) Clause (f) of the definition of "Permitted Investments" is
hereby amended by replacing the word "or" immediately before clause (ii)
thereof with a comma and inserting immediately before the period at the
end thereof the following:
", (iii) investments of the type and maturity described in clause
(c) in any obligor organized under the laws of a jurisdiction other
than the United States that (A) is a branch or subsidiary of a
Lender or the ultimate parent company of a Lender under one of the
New Facilities Credit Agreements (but only if such Lender meets the
ratings and capital, surplus and undivided profits requirements of
such clause (c)) or (B) carries a rating at least equivalent to the
rating of the sovereign nation in which it is located, and (iv)
other investments of the type and maturity described in clause (c)
in obligors organized under the laws of a jurisdiction other than
the United States in any country in which such Subsidiary is
located; provided, that the investments permitted under this
subclause (iv) shall not exceed $10,000,000 for all such
Subsidiaries in any such country or $50,000,000 in the aggregate for
all such Subsidiaries and all countries".
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(h) The definition of "Securitization Transaction" is hereby
amended by inserting immediately before the period at the end of the first
sentence thereof the following:
(i) "; provided that "Securitization Transaction" shall not
include (A) the sale by any Foreign Subsidiary, in the ordinary course of
its business, of drafts with a bank or other financial institution as the
maker (or otherwise primarily responsible for the payment thereof),
bankers acceptances or similar instruments received by such Foreign
Subsidiary from a customer operating in a jurisdiction other than the
United States or any of its territories or possessions or any political
subdivision thereof in satisfaction of accounts receivable or otherwise as
consideration for goods sold or services provided to such customer or (B)
the sale, in the ordinary course of business, of drafts not payable on
demand received by Goodyear or any Subsidiary from a customer in
satisfaction of accounts receivable or otherwise as consideration for
goods sold or services provided to such customer pursuant to an
arrangement (1) initiated by and entered into at the request of such
customer, and (2) under which a financial institution has agreed as part
of a financing program established for and at the request of such customer
to buy such drafts from such customer's vendors (which arrangements may be
modified by Goodyear or any Subsidiary to contemplate the repurchase of
such drafts by such customer, or other actions by such customer to
reinstate or to pay receivables in respect of which such drafts were
created, in the event of any failure by such financial institution to buy
such drafts)".
The following new definitions are hereby inserted in their
appropriate alphabetical positions:
"Customer Capital Expenditures" shall mean all or any portion of the
purchase price of equipment or other fixed assets purchased for use in the
business of Goodyear or any Subsidiary that is paid directly, or reimbursed to
Goodyear or any Subsidiary, by customers of Goodyear or any of the Subsidiaries
that are not Affiliates of Goodyear.
"Designated Debt" means Indebtedness of Goodyear that matures during
any of the calendar years 2005, 2006, 2007 and 2008.
"First Amendment" means the First Amendment dated as of February 19,
2004, to this Agreement.
"First Amendment Date" means February 19, 2004.
"Junior Securities" means, collectively, any Senior
Subordinated-Lien Indebtedness and any Indebtedness or preferred Equity
Interests issued under Section 6.01(q).
"Lien Subordination and Intercreditor Agreement" means a Lien
Subordination and Intercreditor Agreement, to be dated on or about the first
date on which Senior Subordinated-Lien Indebtedness is incurred, issued or sold,
among the
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Collateral Agent, the applicable Senior Subordinated-Lien Collateral Agent,
Goodyear and the US Subsidiary Guarantors, in substantially the form of the
draft made available to the Lenders prior to the First Amendment Date with such
changes as shall have been approved by the Administrative Agent.
"Senior Subordinated-Lien Collateral Agent" means, as to any Senior
Subordinated-Lien Indebtedness, the collateral agent under the applicable Senior
Subordinated-Lien Indebtedness Security Documents.
"Senior Subordinated-Lien Governing Documents" means each Indenture
or other agreement or instrument providing for the issuance or setting forth the
terms of any Senior Subordinated-Lien Indebtedness.
"Senior Subordinated-Lien Indebtedness" means Indebtedness of
Goodyear issued after the First Amendment Date that (a) is secured by Liens
permitted under Section 6.02(m), but that is not secured by Liens on any
additional assets, (b) constitutes Initial Junior Indebtedness or Designated
Junior Obligations under the Lien Subordination and Intercreditor Agreement, and
the Liens securing which are subordinated under the Lien Subordination and
Intercreditor Agreement to the Liens securing the Obligations and (c) does not
contain provisions inconsistent with the provisions of Annex A to the First
Amendment.
"Senior Subordinated-Lien Obligations" means, as to any Senior
Subordinated-Lien Indebtedness, (a) the principal of and all premium or
make-whole amounts, if any, and interest payable in respect of such Senior
Subordinated-Lien Indebtedness, (b) any amounts payable under Guarantees of such
Senior Subordinated-Lien Indebtedness by Subsidiaries and (c) all other amounts
payable by Goodyear or any Subsidiary under such Senior Subordinated-Lien
Indebtedness, the applicable Senior Subordinated-Lien Security Documents (to the
extent such amounts relate to such Senior Subordinated-Lien Indebtedness) or the
applicable Senior Subordinated-Lien Governing Documents.
"Senior Subordinated-Lien Security Documents" means, as to any
Senior Subordinated-Lien Indebtedness, the security agreements, pledge
agreements, mortgages and other documents creating Liens on assets of Goodyear
and the US Subsidiary Guarantors to secure the applicable Senior
Subordinated-Lien Obligations.
SECTION 3. Amendments to Section 1.02 of the Credit Agreement.
Section 1.02 of the Credit Agreement is hereby amended by inserting the
following at the end thereof:
(a) "For purposes of determining compliance as of any date with
Section 6.09, amounts incurred in euros during 2003 shall be translated
into dollars at the exchange rate in effect on March 31, 2003, and amounts
incurred in euros during any subsequent year shall be translated into
dollars at the exchange rate determined by Goodyear and used in its Annual
Operating Plan for such year
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(which exchange rate shall be determined reasonably and set forth in the
first certificate delivered pursuant to Section 5.01(c) during such
year)."
SECTION 4. Amendments to Section 5.01 of the Credit Agreement.
Paragraph (c) of Section 5.01 of the Credit Agreement is hereby amended by (a)
deleting the words "at the time of" at the beginning of such paragraph and
inserting in their place the words "not later than one Business Day after", (b)
removing the word "and" immediately preceding clause (iii) thereof and (c)
adding at the end of clause (iii) and immediately preceding the semicolon the
following clause: "and (iv) specifying the exchange rate determined by Goodyear
and used in its Annual Operating Plan for the then current fiscal year (which
rate Goodyear agrees to determine reasonably)".
SECTION 5. Amendment to Section 5.08 of the Credit Agreement.
Section 5.08 of the Credit Agreement is hereby amended by adding the following
paragraph at the end thereof:
"(f) Substantially simultaneously with the initial incurrence,
issuance or sale of Senior Subordinated-Lien Indebtedness, Goodyear
will and will cause the US Facilities Grantors (as defined in the
Guarantee and Collateral Agreement) to create security interests in
the US Facilities Collateral (as defined in the Guarantee and
Collateral Agreement) to secure the Guarantee by Goodyear of the
Revolving Obligations on a pari passu basis with the Liens securing
such initial Senior Subordinated-Lien Indebtedness and subordinate
to the other Liens on such Collateral created by the Guarantee and
Collateral Agreement, all pursuant to documentation reasonably
satisfactory to the Collateral Agent, and take all such further
actions as may be reasonably requested by the Collateral Agent in
order to cause the security interests required to be created under
the terms of this paragraph (f) to constitute valid security
interests, perfected in accordance with this Agreement."
SECTION 6. Amendments to Section 6.01 of the Credit Agreement.
(a) Paragraph (b) of Section 6.01 is hereby amended by
replacing "$1,600,000,000" with "$1,950,000,000" and by inserting
immediately at the end thereof the following:
"or, at any time when (i) the Loans under and as defined
in the US Term Facility Agreement have been repaid in full and
(ii) no Loans are outstanding under the US Revolving Facility
Agreement and the Regular Way Commitments (as defined in such
Agreement) have been reduced to zero, $2,000,000,000;
provided, that the amount of Indebtedness permitted by this
paragraph or any other paragraph of this Section to exist
under the US Term Facility Agreement and the US Revolving
Facility Agreement shall be reduced (i) in the case of the US
Term Facility Agreement, by the
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aggregate amount of all prepayments of the loans outstanding
thereunder and (ii) in the case of the US Revolving Facility
Agreement, by the aggregate amount of all permanent reductions
of the commitments thereunder (it being agreed, however, that
up to $250,000,000 of Indebtedness under the US Revolving
Facility Agreement in the form of cash-collateralized letters
of credit will in any event be permitted);"
(b) Paragraph (g) of Section 6.01 of the Credit Agreement is
hereby amended to read as follows:
"(g) Securitization Transactions (other than those
permitted by paragraphs (f), (j), (l), (r) and (u) of this Section)
in an aggregate amount not greater than (euro)275,000,000
outstanding at any time;"
(c) Section 6.01 of the Credit Agreement is hereby further
amended by deleting the word "and" at the end of clause (r), redesignating
clause (s) as clause (u) and inserting after clause (r) the following new
clauses:
"(s) Senior Subordinated-Lien Indebtedness for borrowed
money of Goodyear not maturing or required to be prepaid, redeemed,
repurchased or defeased prior to the Maturity Date, whether on one
or more scheduled dates or upon the happening of one or more events
(other than as a result of events of default or change of control
events or pursuant to customary provisions requiring that Goodyear
offer to purchase such Senior Subordinated-Lien Indebtedness with
the proceeds of asset sales to the extent such proceeds have not
been invested in assets used in Goodyear 's business or used to
prepay, redeem or purchase other Indebtedness (including Loans under
and as defined in the US Revolving Facility Agreement and the US
Term Facility Agreement) or to provide cash collateral for
reimbursement obligations in respect of letters of credit (including
the Letters of Credit under and as defined in the US Revolving
Facility Agreement)) (it being understood that provisions comparable
to those contained in Annex A hereto are customary), and related
Guarantees by the US Subsidiary Guarantors; provided that (i)
Goodyear shall substantially concurrently make any prepayments,
deposits of cash collateral to secure reimbursement obligations in
respect of Letters of Credit and reductions of Regular Way
Commitments (as defined in the US Revolving Facility Agreement) and
Commitments required in connection with the issuance of such Senior
Subordinated-Lien Indebtedness under the US Revolving Facility
Agreement and the US Term Facility Agreement, (ii) the Senior
Subordinated-Lien Collateral Agent for such Senior Subordinated-Lien
Indebtedness shall have executed and delivered to the Administrative
Agent, on its own behalf and on behalf of the obligees on such
Senior Subordinated-Lien Indebtedness, the Lien Subordination and
Intercreditor Agreement, and (iii) after no Loans or Regular Way
Commitments are outstanding under the US Term Facility Agreement and
the US Revolving Facility Agreement, the portion of the Net Cash
Proceeds of such Senior Subordinated-Lien Indebtedness in excess of
required prepayments under the US Term Facility Agreement
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and Commitment reductions and Regular Way Commitment reductions
under the US Revolving Facility Agreement shall, except to the
extent a like amount of Net Cash Proceeds of Senior
Subordinated-Lien Indebtedness shall have been so applied prior to
the time at which all amounts outstanding under the US Term Facility
Agreement and the US Revolving Facility Agreement shall have been
prepaid and the Regular Way Commitments shall have been reduced to
zero, be applied, within 180 days after the receipt by Goodyear of
such Net Cash Proceeds, solely (A) to prepay Loans under and as
defined in the New Facilities Credit Agreements (it being agreed
that at the time of any such prepayment of revolving loans the
related commitments will be reduced by the amount of such
prepayment), (B) to repurchase, repay or prepay Designated Debt or
(C) to make reasonably anticipated required contributions to Plans
of Goodyear and the Subsidiaries;
(t) Securitization Transactions of Foreign Subsidiaries
(other than those permitted by paragraphs (f), (g), (j), (l) and (r)
of this Section) in an aggregate amount not greater than $15,000,000
outstanding at any time; and"
SECTION 7. Amendments to Section 6.02 of the Credit Agreement.
(a) Section 6.02 of the Credit Agreement is amended by
deleting from the introductory clause thereof the phrase "(other than
sales of delinquent receivables and sales of receivables in the ordinary
course of business (other than Securitization Transactions and factoring
transactions) for the purpose of accelerating collection of such
receivables)" and replacing it with the phrase "(other than sales of
delinquent or doubtful receivables and other than any transaction excluded
from the definition of "Securitization Transaction" under the proviso
thereto)".
(b) Paragraph (a) of Section 6.02 of the Credit Agreement is
hereby amended by replacing "New Facility Documents" with "New Facilities
Documents or the Credit Documents".
(c) Paragraph (f) of Section 6.02 of the Credit Agreement is
hereby amended to read as follows:
"(f)(i) Liens on assets of Foreign Subsidiaries (other
than the European J.V. and the J.V. subsidiaries and Luxembourg
Finance) securing Indebtedness incurred under Section 6.01(f), and
(ii) in connection with Securitization Transactions permitted under
Section 6.01(f) or (t);"
(d) Section 6.02 of the Credit Agreement is amended by
deleting the word "and" at the end of clause (l), redesignating clause (m)
as clause (p) and inserting after clause (l) the following new clauses
(m), (n) and (o):
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"(m) Liens on assets constituting ABL Facilities
Collateral, US Facilities Pledged Collateral, Luxembourg Finance
Pledged Collateral and US Facilities Article 9 Collateral (other
than any such US Facilities Article 9 Collateral constituting
Indenture Properties or "manufacturing facilities", as defined in
the Swiss Franc Note Agreement) (each such term not defined in this
Agreement having the meaning assigned to it in the Guarantee and
Collateral Agreement), and on Goodyear's headquarters building in
Akron, Ohio, created under any Senior Subordinated-Lien Security
Documents to secure any Senior Subordinated-Lien Indebtedness
incurred under Section 6.01(s); provided, that such Liens shall be
subordinate and junior to the Liens securing the Obligations under
and as defined in each of the New Facilities Credit Agreements and
shall be equal in priority to the Liens securing the Guarantees by
Goodyear and the US Subsidiary Guarantors of the Obligations, in
each case on the terms set forth in the Lien Subordination and
Intercreditor Agreement;
(n) Liens on assets constituting ABL Facilities
Collateral securing Indebtedness incurred under Section 6.01(m) to
refinance the Indebtedness under the ABL Facilities Agreement, but
only if all Indebtedness under the ABL Facilities Agreement shall
have been repaid and discharged in full and the Commitments under
and as defined in the ABL Facilities Agreement shall have been
terminated not later than the time at which such Liens are incurred;
(o) Liens on assets constituting US Facilities Pledged
Collateral and US Facilities Article 9 Collateral (other than any
such US Facilities Article 9 Collateral constituting Indenture
Properties or "manufacturing facilities", as defined in the Swiss
Franc Note Agreement), and on the Borrower's headquarters building
in Akron, Ohio, securing Indebtedness incurred under Section 6.01(m)
to refinance the Indebtedness under the US Term Facility Agreement
or the US Revolving Facility Agreement, but only if (i) all
Indebtedness under both the US Term Facility Agreement and the US
Revolving Facility Agreement shall have been repaid in full and the
Commitments under and as defined in the US Revolving Facility
Agreement shall have been terminated not later than the time at
which such Liens are incurred and (ii) such Liens secure
Indebtedness in an amount not greater than the amount of the
Indebtedness under the US Term Facility Agreement and/or the US
Revolving Facility Agreement repaid with the proceeds of such
Indebtedness;"
SECTION 8. Amendments to Section 6.05 of the Credit Agreement.
Section 6.05(e) of the Credit Agreement is amended to read as follows:
"(e) on or after June 30, 2003, the acquisition of any
Equity Interest; provided that the aggregate consideration paid by
Goodyear and the Subsidiaries in all such acquisitions (including
Indebtedness assumed by Goodyear or any Subsidiary) shall not exceed
$100,000,000 plus the
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aggregate Net Cash Proceeds from New Facilities Prepayment Events or
incurrences, issuances or sales of Senior Subordinated-Lien
Indebtedness after the date hereof that (i) shall not have been
required to be applied to reduce commitments, prepay loans and/or
cash collateralize reimbursement obligations in respect of letters
of credit under any of the New Facilities Credit Agreements, and
(ii) shall not have been used (and shall not be required to be used)
(A) to make Capital Expenditures that would otherwise have been
prohibited by Section 6.09 or (B) to repurchase, repay or prepay
Designated Debt;"
SECTION 9. Amendments to Section 6.07 of the Credit Agreement.
Paragraph (b) of Section 6.07 of the Credit Agreement is amended by deleting the
word "and" at the end of clause (iii), replacing the period at the end of clause
(iv) with ";" and inserting after clause (iv) the following new clauses (v) and
(vi):
"(v) if the Loans under and as defined in the US Term Facility
Agreement shall have been repaid in full and no Event of Default
shall exist, repurchases, repayments or prepayments of Designated
Debt in an aggregate amount not greater than the portion of the
aggregate Net Cash Proceeds from the issuance and sale of Senior
Subordinated-Lien Indebtedness not required to be applied to reduce
commitments, prepay loans and/or cash collateralize reimbursement
obligations in respect of letters of credit under the US Revolving
Facility Agreement or the US Term Facility Agreement, but only to
the extent that such portion of such Net Cash Proceeds shall not
have been used (A) to make Capital Expenditures that would have been
prohibited by Section 6.09 but for the receipt of such Net Cash
Proceeds or (B) to acquire Equity Interests pursuant to Section
6.05(e); and
(vi) if no Event of Default shall exist, repurchases,
repayments or prepayments of Designated Debt in an aggregate amount
not greater than the portion of the aggregate Net Cash Proceeds of
securities issued and sold pursuant to Section 6.01(q) not required
to be applied to prepay loans under the US Term Facility Agreement,
but only to the extent that such portion of such Net Cash Proceeds
shall not have been used (A) to make Capital Expenditures that would
have been prohibited by Section 6.09 but for the receipt of such Net
Cash Proceeds or (B) to acquire Equity Interests pursuant to Section
6.05(e)."
SECTION 10. Amendments to Section 6.09 of the Credit Agreement.
Section 6.09 of the Credit Agreement is amended (a) by inserting after the words
"Prepayment Events" the words "or incurrences, issuances or sales of Senior
Subordinated-Lien Indebtedness", (b) by inserting after the words "prepay loans"
the words "or cash collateralize letters of credit", (c) by inserting "(A)"
after the words "and shall not have been used" in the parenthetical therein and
(d) by inserting at the end of the parenthetical therein the words "or (B) to
repurchase, repay or prepay Designated Debt".
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SECTION 11. Amendment to Section 6.10 of the Credit Agreement.
Section 6.10 of the Credit Agreement is hereby amended by inserting immediately
following the words "2.25 to 1.00" the words "or, at any time after Goodyear
shall have received gross cash proceeds of at least $500,000,000 from issuances
and sales after the First Amendment Date of Senior Subordinated-Lien
Indebtedness, 2.00 to 1.00".
SECTION 12. Amendment to Article VII of the Credit Agreement. The
final paragraph of Section 7.01 is hereby amended by deleting the words
"Goodyear or" from the phrase "event with respect to Goodyear or any Borrower
described in clause (h) or (i) of this Section" in each of the two occurrences
of such phrase in such final paragraph.
SECTION 13. Amendments to the Guarantee and Collateral Agreement;
Security Documents; Lien Subordination and Intercreditor Agreement. (a) The
undersigned Lenders authorize the Collateral Agent to execute and deliver an
instrument or instruments amending the Guarantee and Collateral Agreement (and,
in the case of clauses (i), (ii) and (vi) below, the other Security Documents)
as follows:
(i) to provide that all ABL Facilities Obligations will be
secured by a second Lien, junior to the Lien securing the US Term
Facility Obligations, the US Revolving Facility Obligations, the US
Miscellaneous Obligations and the Collateral Agent Obligations, by
all the US Facilities Pledged Collateral and the US Facilities
Article 9 Collateral (other than any such US Facilities Article 9
Collateral constituting Indenture Properties or "manufacturing
facilities", as defined in the Swiss Franc Note Agreement, to the
extent the securing of the ABL Facilities Obligations with such
Collateral would require that Indebtedness under the Indentures be
ratably secured), and by the Borrower's headquarters building in
Akron, Ohio;
(ii) to provide that, at such time as any Senior
Subordinated-Lien Indebtedness shall be issued, the Guarantees by
Goodyear and the US Subsidiary Guarantors of the Revolving
Obligations (and, if the Borrower and the Collateral Agent shall at
any time hereafter so agree, the Term Obligations) will be secured,
equally and ratably with the Senior Subordinated-Lien Indebtedness
(and subordinate to the other Liens on such Collateral created by
the Guarantee and Collateral Agreement), by the ABL Facilities
Collateral, the US Facilities Pledged Collateral and the US
Facilities Article 9 Collateral (other than any such US Facilities
Article 9 Collateral constituting Indenture Properties or
"manufacturing facilities", as defined in the Swiss Franc Note
Agreement), and by Goodyear's headquarters building in Akron, Ohio;
(iii) to provide that amounts received by the holders of
Obligations secured by Junior Liens as a result of the subordination
to such Junior Liens of the Liens securing any Senior
Subordinated-Lien Indebtedness will be treated in the same manner
under the subordination provisions of
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the Guarantee and Collateral Agreement as amounts received from
Goodyear;
(iv) to modify Section 11.03(b) to confirm that the Junior
Lien on the ABL Facilities Collateral will be senior to the Lien on
such Collateral securing any Senior Subordinated-Lien Indebtedness
notwithstanding the use of any proceeds of any Senior
Subordinated-Lien Indebtedness to repay amounts outstanding under
the ABL Facilities;
(v) to modify Section 11.04 to provide that the Junior Lien on
the Intellectual Property consisting of Trademarks securing the ABL
Facilities Obligations will be senior to the Lien on such
Intellectual Property securing any Senior Subordinated-Lien
Indebtedness;
(vi) to effect such other changes as the Collateral Agent
shall deem appropriate in connection with the issuance of any Senior
Subordinated-Lien Indebtedness, the creation of the Liens securing
such Indebtedness, the subordination of such Liens to the Liens
created by the Guarantee and Collateral Agreement and the
implementation of the matters set forth in this Section 13;
(vii) to modify Section 13.13 to provide for the release of
the security interests in up to 14% of the stock of C A Goodyear de
Venezuela held by Goodyear in connection with the sale of such stock
by Goodyear to Goodyear do Brasil Productos de Borraca Ltda (Brasil)
in a transaction permitted by the Credit Agreements (as defined
therein) for consideration consisting of up to $10,000,000 of cash;
(b) The undersigned Lenders further authorize and direct the
Collateral Agent to execute and deliver such amendments to the Security
Documents and the New Facilities Documents as may in its judgment be
appropriate for the following purposes:
(i) to provide that the Liens securing the ABL Facilities
Obligations will, insofar as they are applicable to cash deposited
to collateralize Letter of Credit reimbursement obligations pursuant
to Section 2.04(b) of the US Revolving Facility Agreement, be
subordinate to the Liens securing such Letter of Credit
reimbursement obligations;
(ii) to provide that all ABL Facilities Obligations will be
secured by a second Lien on all real property subject to Liens
securing the US Term Facility Obligations, the US Revolving Facility
Obligations, the US Miscellaneous Obligations or the Collateral
Agent Obligations to the extent the securing of the ABL Facilities
Obligations with such Collateral would not require that Indebtedness
under the Indentures be ratably secured; and
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(iii) to confirm that the US Term Facility Obligations, the US
Revolving Facility Obligations, the ABL Facilities Obligations and
the US Miscellaneous Obligations are and will be secured by not more
than 65% of the issued and outstanding voting Equity Interests of
Luxembourg Finance.
(c) The undersigned Lenders further authorize and direct the
Collateral Agent, on or after the Effective Date, to execute and deliver
the Lien Subordination and Intercreditor Agreement. Each Lender party to
the Credit Agreement from time to time will be deemed to have agreed to be
bound by the provisions of the Lien Subordination and Intercreditor
Agreement to the same extent as if it had executed such Agreement as a
party thereto.
SECTION 14. Notices. The address for notices to the Administrative
Agent under each Credit Document is hereby amended to read as follows:
"if to the Administrative Agent, to JPMorgan Chase Bank, Loan &
Agency Services Group, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇), with a copy to JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇);"
SECTION 15. Representations, Warranties and Agreements. Each of
Goodyear and the European J.V. represents and warrants to the Administrative
Agent and the Lenders that:
(a) On the date hereof and at the time the amendments provided
for herein become effective under Section 17, no Default shall have
occurred and be continuing.
(b) The execution, delivery and performance by Goodyear and
each Borrower of this Amendment and the performance by Goodyear and each
Borrower of the Credit Agreement as amended hereby have been duly
authorized by all necessary corporate and other action and, except to the
extent that no Material Adverse Change would be materially likely to
result, do not and will not require any registration with, consent or
approval of, notice to or action by, any Person (including any
Governmental Authority) in order to be effective and enforceable.
(c) This Amendment and the Credit Agreement as amended hereby
constitute the legal, valid and binding obligations of each of Goodyear
and each Borrower, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.
(d) All representations and warranties of Goodyear and the
European J.V. set forth herein, and the representations and warranties of
Goodyear and each Borrower set forth in the Credit Agreement, are true and
correct in all material
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respects on and as of the date hereof, and will be true and correct on the
date hereof and at the time the amendments provided for herein become
effective under Section 16, except to the extent such representations and
warranties relate to an earlier date.
SECTION 16. Amendment Fee. In consideration of the agreements
contained in this Amendment, Goodyear agrees to pay to the Administrative Agent,
for the account of each Lender that delivers an executed counterpart of this
Amendment prior to noon, New York City time, on February 17, 2004, an amendment
fee (the "Amendment Fee") to be agreed upon between Goodyear and ▇.▇. ▇▇▇▇▇▇
Securities Inc., payable on the Effective Date (as defined below).
SECTION 17. Conditions Precedent to Effectiveness. This Amendment
shall become effective upon the satisfaction of the condition set forth in
paragraph (a) below; provided that the amendments set forth in Sections 2
through 12, the authorization set forth in Section 13 and the agreement set
forth in Section 16 shall become effective only upon the satisfaction, on a date
(the "Effective Date") on or prior to February 28, 2004, of each of the
conditions set forth below (and failing such satisfaction by such date, such
amendments, authorization and agreements shall cease to be of any further force
or effect):
(a) The Administrative Agent shall have received counterparts
hereof duly executed and delivered by Goodyear, each Borrower and the
Majority Lenders.
(b) The Administrative Agent shall have received such evidence
as it shall reasonably have requested as to the corporate power and
authority of Goodyear and each of the Borrowers to enter into this
Amendment and to perform its obligations hereunder and under the Credit
Agreement as amended hereby.
(c) The Administrative Agent shall have received a certificate
of an officer of each of Goodyear and the European J.V. to the effect that
the representations and warranties set forth in Section 15 are true and
correct in all material respects on and as of the Effective Date.
(d) The Administrative Agent shall have received the Amendment
Fees payable by Goodyear pursuant to Section 16 and all other fees payable
to the Arrangers and the Administrative Agent.
(e) The US Term Facility Agreement shall have been amended to
require that (i) if proceeds from borrowings under the ABL Facilities
Agreement pursuant to commitments becoming effective substantially
concurrently with the Effective Date shall exceed $300,000,000, Goodyear
shall prepay loans under the US Term Facility Agreement in an aggregate
amount equal to 100% of such proceeds in excess of $300,000,000, net of
the aggregate fees and out-of-pocket expenses paid by Goodyear in
connection with the borrowings under the ABL Facilities and the related
bank agreements and (ii) Goodyear shall apply 50% of the
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Net Cash Proceeds of incurrences or issuances of Senior Subordinated-Lien
Indebtedness to prepay loans under the US Term Facility Agreement.
(f) The US Revolving Facility Agreement shall have been
amended to require that (i) 50% of the Net Cash Proceeds (as defined
therein) of all issuances or incurrences of Senior Subordinated-Lien
Indebtedness be applied to permanently reduce or restrict the Regular Way
Commitments (as defined therein), or, if applicable, the Commitments
thereunder after the US Term Facility has been repaid in full and (ii) if
proceeds from borrowings under the ABL Facilities Agreement pursuant to
commitments becoming effective substantially concurrently with the
Effective Date shall exceed $300,000,000, Goodyear shall apply to the
reduction or restriction of commitments under the US Revolving Facility
after the US Term Facility has been repaid in full an aggregate amount
equal to 100% of such proceeds in excess of $300,000,000, net of the
aggregate fees and out-of-pocket expenses paid by the Borrower in
connection with the borrowings under the ABL Facilities and the related
bank amendments.
(g) The US Revolving Facility Agreement, the US Term Facility
Agreement and the ABL Facilities Agreement shall have been or shall
simultaneously be amended in a manner reasonably satisfactory to the
Administrative Agent to permit the incurrence, issuance and sale of Senior
Subordinated-Lien Indebtedness and the other transactions contemplated
hereby, in each case in a manner substantially corresponding to the
amendments to the Credit Agreement effected hereby, to the extent
applicable.
The Administrative Agent shall notify the Lenders when it determines
that the foregoing conditions have been satisfied and that this Amendment has
become fully effective, and such notice shall be conclusive and binding upon the
Lenders.
SECTION 18. No Other Amendments or Waivers; Confirmation. Except as
expressly amended hereby, the provisions of the Credit Agreement are and shall
remain in full force and effect. Nothing herein shall be deemed to entitle
Goodyear to a consent to, or a waiver, amendment, modification or other change
of, any of the terms, conditions, obligations, covenants or agreements contained
in the Credit Agreement in similar or different circumstances. This Amendment
shall be a Credit Document for all purposes of the Credit Agreement.
SECTION 19. Expenses. Goodyear agrees to pay or reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Amendment, including the reasonable fees, charges and disbursements of
Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Administrative Agent.
SECTION 20. Indemnity. It is agreed that for all purposes of Section
9.03(b) of the Credit Agreement, any offering, incurrence, issuance or sale of
Senior Subordinated-Lien Indebtedness and any other securities issued and sold
pursuant to Section 6.01(q) of the Credit Agreement, the execution, delivery and
performance of this Amendment and of the Lien Subordination and Intercreditor
Agreement, the amendment
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of the Guarantee and Collateral Agreement as contemplated by Section 12 and the
other transactions contemplated hereby shall all be deemed to be transactions
contemplated by the Credit Agreement.
SECTION 21. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 22. Counterparts. This Amendment may be executed by one or
more of the parties hereto on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. This Amendment may be delivered by facsimile transmission of the
signature pages hereof.
SECTION 23. Headings. The section headings used herein are for
convenience of reference only, are not part of this Amendment and are not to
affect the construction of, or to be taken into consideration in interpreting
this Amendment.
SECTION 24. Amendment to Article VIII of the Credit Agreement.
Article VIII of the Credit Agreement is hereby amended by adding the following
at the end thereof:
"Without prejudice to the provisions of this Article VIII,
each Lender hereby irrevocably appoints and authorizes the
Collateral Agent (and any successor acting as Collateral Agent) to
act as the person holding the power of attorney (in such capacity,
the "fonde de pouvoir") of the Lenders as contemplated under Article
2692 of the Civil Code of Quebec, and to enter into, to take and to
hold on their behalf, and for their benefit, any hypothec, and to
exercise such powers and duties which are conferred upon the fonde
de pouvoir under any hypothec. Moreover, without prejudice to such
appointment and authorization to act as the person holding the power
of attorney as aforesaid, each Lender hereby irrevocably appoints
and authorizes the Collateral Agent (and any successor acting as
Collateral Agent) (in such capacity, the "Custodian") to act as
agent and custodian for and on behalf of the Lenders to hold and to
be the sole registered holder of any debenture which may be issued
under any hypothec, the whole notwithstanding Section 32 of the Act
respecting the special powers of legal persons (Quebec) or any other
applicable law. In this respect, (i) the Custodian shall keep a
record indicating the names and addresses of, and the pro rata
portion of the obligations and indebtedness secured by any pledge of
any such debenture and owing to each Lender, and (ii) each Lender
will be entitled to the benefits of any charged property covered by
any hypothec and will participate in the proceeds of realization of
any such charged property, the whole in accordance with the terms
hereof.
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"Each of the fonde de pouvoir and the Custodian shall (a) have
the sole and exclusive right and authority to exercise, except as
may be otherwise specifically restricted by the terms hereof, all
rights and remedies given to fonde de pouvoir and the Custodian (as
applicable) with respect to the charged property under any hypothec,
any debenture or pledge thereof relating to any hypothec, applicable
laws or otherwise, (b) benefit from and be subject to all provisions
hereof with respect to the Collateral Agent mutatis mutandis,
including, without limitation, all such provisions with respect to
the liability or responsibility to and indemnification by the
Lenders, and (c) be entitled to delegate from time to time any of
its powers or duties under any hypothec, any debenture or pledge
thereof relating to any hypothec, applicable laws or otherwise and
on such terms and conditions as it may determine from time to time.
Any person who becomes a Lender shall be deemed to have consented to
and confirmed: (y) the fonde de pouvoir as the person holding the
power of attorney as aforesaid and to have ratified, as of the date
it becomes a Lender, all actions taken by the fonde de pouvoir in
such capacity, (z) the Custodian as the agent and custodian as
aforesaid and to have ratified, as of the date it becomes a Lender,
all actions taken by the Custodian in such capacity."
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their duly authorized officers as of the day
and year first above written.
THE GOODYEAR TIRE & RUBBER
COMPANY,
By
/s/ ▇. ▇. ▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇
Title: Vice President
GOODYEAR DUNLOP TIRES EUROPE B.V.,
By
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director / Secretary
By
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
GOODYEAR DUNLOP TIRES GERMANY GMBH,
By
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
By
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
GOODYEAR GMBH & CO. KG,
By
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
By
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
DUNLOP GMBH & CO. KG,
By
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
By
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
GOODYEAR LUXEMBOURG TIRES SA,
By
/s/ L. Reiles /s/ ▇. ▇▇▇▇▇
------------------------------------
Name: L. Reiles ▇. ▇▇▇▇▇
Title: Authorized ▇▇▇▇▇▇ Finance
Director
JPMORGAN CHASE BANK, individually and as
Administrative Agent and Collateral Agent,
By
/s/ B. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: B. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
[Remaining Signature Pages Intentionally Omitted]
ANNEX A
Senior Subordinated-Lien Indebtedness
- Capitalized terms used and not defined herein shall have
the meanings given to them in the First Amendment, or,
if not defined therein, in the Credit Agreement or, if
not defined therein, in the Guarantee and Collateral
Agreement, each as amended by the First Amendment or
pursuant thereto.
- All Senior Subordinated-Lien Indebtedness and the
related Liens shall satisfy the requirements set forth
in the definition of Senior Subordinated-Lien
Indebtedness and in Sections 6.01(s) and 6.02(m).
- Prior to the date (the "US Facilities Termination Date")
on which all the loans under the US Term Facility
Agreement and the US Revolving Facility Agreement have
been repaid in full and the remaining commitments under
the US Revolving Facility Agreement, if any, are
available only for the issuance of cash collateralized
letters of credit, the documentation establishing or
evidencing any Senior Subordinated-Lien Indebtedness
("SSLI Documentation") shall contain no maintenance
financial covenants (i.e., covenants requiring the
maintenance of any balance sheet, income statement or
other financial level or ratio). After the US Facilities
Termination Date, the SSLI Documentation shall contain
no maintenance financial covenants that are not
contained in the Credit Agreement, and the financial
levels or ratios required to be maintained by any such
covenants shall be no more restrictive than those
required to be maintained by the corresponding covenants
of the Credit Agreement (it being understood that
additional maintenance financial covenants may be
included in any SSLI Documentation and, if they are,
they shall automatically be included in this Agreement).
- The SSLI Documentation shall permit (specifically, and
not through a basket that could be exhausted by other
financings) the refinancing of all Indebtedness under
the New Facilities Credit Agreements or the Credit
Agreement (or any refinancing Indebtedness in respect
thereof) with new Indebtedness having a maturity no
sooner than, a weighted average life no shorter than,
and an aggregate principal amount or accreted value no
greater than the fully drawn amount (plus fees and
expenses, including any premium and defeasance costs of
refinancing) of the refinanced indebtedness or
commitments thereunder and secured on the same basis as
the Indebtedness refinanced.
- The SSLI Documentation shall not restrict (except for
restrictions that a Financial Officer of Goodyear shall
have represented in a
certificate to the Administrative Agent (which shall be
deemed to be a Credit Document) will not materially
interfere with Goodyear's ability to effect) the
securing of Indebtedness under the New Facilities Credit
Agreements or the Credit Agreement or any refinancing
Indebtedness in respect thereof or the cash
collateralization of any letter of credit exposure
thereunder (but may require that if Indebtedness under
any New Facilities Credit Agreement or related
refinancing Indebtedness is secured by assets not
securing the Indebtedness under any of the New
Facilities Credit Agreements or the Credit Agreement on
the First Amendment Date, a junior lien on such assets,
subordinated under the Lien Subordination and
Intercreditor Agreement, (or in the case of any lien
granted by any US Facilities Grantor or ABL Facilities
Grantor (as defined in the Guarantee and Collateral
Agreement) to secure indebtedness under the European
Facility Agreement, a ratable or junior lien on such
assets) must be granted to secure the Senior
Subordinated-Lien Indebtedness).
- The SSLI Documentation shall not restrict (except for
restrictions a Financial Officer of Goodyear shall have
represented in a certificate to the Administrative Agent
(which shall be deemed to be a Credit Document) will not
materially interfere with Goodyear's ability to effect)
the use of proceeds from any sale, transfer or other
disposition of assets owned directly by (a) Goodyear or
any US Facilities Grantor or ABL Facilities Grantor (as
defined in the Guarantee and Collateral Agreement) to
repay or prepay Indebtedness under the New Facilities
Credit Agreements (other than the European Facilities
Agreement) or refinancing Indebtedness in respect
thereof or, until the commitments under the US Revolving
Facility Agreement and the ABL Facilities Agreement have
been terminated and no letter of credit remains
outstanding under either such agreement, to cash
collateralize any letter of credit exposure thereunder,
or (b) the European JV or any of its subsidiaries to
repay or prepay Indebtedness under the European
Facilities Agreement or refinancing Indebtedness in
respect thereof.
- Prior to the US Facilities Termination Date, no SSLI
Documentation shall contain any provision under which a
default or event of default (however denominated) or
requirement to make or offer to make a prepayment or
redemption under any other Indebtedness (the "Other
Debt") would constitute a default or event of default or
result in a requirement to make or offer to make a
prepayment or redemption under such SSLI Documentation,
unless such default or event of default under such Other
Debt is a payment default or the Other Debt is as a
result thereof accelerated.
2