EXHIBIT 4.6
SECOND AMENDMENT dated as of April 16, 2004 (this
"Amendment"), to the Term Loan and Revolving Credit Agreement
dated as of March 31, 2003, as amended as of February 19, 2004
(as amended, supplemented or otherwise modified from time to
time, 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" and, together with the European J.V., GDTG, Goodyear KG
and Dunlop KG, the "Borrowers"), the lenders party thereto
(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 the Credit Agreement 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 assigned to them in the Credit Agreement.
SECTION 2. Amendment to Section 5.01 of the Credit Agreement.
Section 5.01(a) of the Credit Agreement is hereby amended by inserting after the
phrase "within 110 days after the end of each fiscal year" the following: "(or,
in the case of the fiscal year ended December 31, 2003, within 140 days after
the end of such fiscal year)".
SECTION 3. Amendment to Section 6.02 of the Credit Agreement.
Paragraph (o) of Section 6.02 of the Credit Agreement is hereby amended to read
as follows:
"(o) Liens on (i) assets constituting US Facilities Pledged
Collateral and US Facilities Article 9 Collateral, and real property
and interests in real property covered by US Facilities Mortgages,
and (ii) assets constituting ABL Facilities Collateral and
Luxembourg Finance Pledged Collateral and any other assets securing
obligations under the US Revolving Facility Agreement at the time
such obligations are refinanced with Indebtedness incurred under
Section 6.01(m), in each case securing Indebtedness incurred under
Section 6.01(m) to refinance the Indebtedness under the US Revolving
Facility Agreement, but only if (A) all Indebtedness under 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, (B) such Liens secure Indebtedness in
an amount not greater than the amount of the Indebtedness under the
US Revolving Facility Agreement repaid with the proceeds of such
Indebtedness and (C) if such refinancing Indebtedness incurred under
Section 6.01(m) is secured by assets referred to in clause (ii)
above, the holders of such Indebtedness or a trustee or other agent
acting on their behalf shall have executed and delivered to the
Administrative Agent an agreement reasonably satisfactory to the
Borrower and the Administrative Agent under which all such Liens on
assets referred to in clause (ii) above are subordinated to the
Liens on such assets securing the ABL Facilities Obligations and the
European Facilities Obligations (as such terms are defined in the
Guarantee and Collateral Agreement) on substantially the terms on
which the Liens on such assets securing the US Revolving Facility
Obligations (as defined in the Guarantee and Collateral Agreement)
are so subordinated under the Guarantee and Collateral Agreement;"
SECTION 4. Amendment to Section 6.07 of the Credit Agreement. Clause
(v) of paragraph (a) of Section 6.07 is hereby amended to read as follows:
"(v) Goodyear and its Subsidiaries may make Investments in
Subsidiaries expressly permitted by Section 6.05(b), Section 6.05(e)
or Section 6.05(s) and Investments expressly permitted under Section
6.05(j)."
SECTION 5. Amendment to Section 7.01 of the Credit Agreement.
Paragraph (d) of Section 7.01 of the Credit Agreement is hereby amended by
inserting after the word "Section" the following: "5.01(a) (solely with respect
to Goodyear's and the European J.V.'s fiscal year ended December 31, 2003),".
SECTION 6. Representations and Warranties. Goodyear and Borrowers
hereby represent and warrant to the Administrative Agent and the Lenders that:
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(a) No Default has occurred and is continuing on the date hereof or
will have occurred and be continuing at the time the amendments provided for
herein become effective under Section 8.
(b) All representations and warranties of Goodyear, the European
J.V., and each other Borrower set forth in the Credit Agreement are true and
correct in all respects material to the rights or interests of the Lenders on
and as of the date hereof, and will be true and correct at the time the
amendments provided for herein become effective under Section 8, except to the
extent such representations and warranties relate to an earlier date.
SECTION 7. Amendment Fee. In consideration of the agreements
contained in this Amendment, Goodyear agrees to pay to the Administrative Agent
on the Effective Date (as defined below), for the account of each Lender that
delivers an executed counterpart of this Amendment prior to noon, New York City
time, on April 16, 2004, an amendment fee equal to 0.03% of the sum of such
Lender's outstanding Term Loans, Revolving Credit Exposure and unused Revolving
Commitment on the Effective Date.
SECTION 8. Conditions Precedent to Effectiveness. This Amendment
shall become effective when the Administrative Agent shall have received
counterparts hereof duly executed and delivered by Lenders representing the
Majority Lenders (the date on which this Amendment becomes effective being
called the "Effective Date").
SECTION 9. 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 as set forth in the Credit Agreement. Nothing
herein shall be deemed to entitle Goodyear or any Borrower to a consent to, or a
waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement in similar or different circumstances. This Amendment shall be a
Credit Document for all purposes of the Credit Agreement.
SECTION 10. 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 11. 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 12. 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.
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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/ ▇. ▇. ▇▇▇▇▇▇
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Name: ▇. ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
GOODYEAR DUNLOP TIRES EUROPE B.V.,
By
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Director
By
/s/ ▇▇▇▇▇▇▇▇ Regnault
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director / Secretary
GOODYEAR DUNLOP TIRES GERMANY GMBH,
By
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
By
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
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GOODYEAR GMBH & CO. KG,
REPRESENTED BY RVM REIFEN
VERTRIEBSMANAGEMENT GMBH
By
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
By
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
DUNLOP GMBH & CO. KG,
REPRESENTED BY RVM REIFEN
VERTRIEBSMANAGEMENT GMBH
By
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
By
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
GOODYEAR LUXEMBOURG TIRES SA,
By
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Finance Director
By
/s/ Loul Reiles
-------------------------------------
Name: Loul Reiles
Title: Authorized Signer
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JPMORGAN CHASE BANK, individually and as
Administrative Agent and Collateral Agent,
By
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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[Remaining Signature Pages Intentionally Omitted]