EXHIBIT 4.7
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 "Original Credit Agreement"),
among THE GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation
(the "Borrower"); the lenders party thereto (together with
their successors and permitted assigns thereunder, the
"Lenders"); JPMORGAN CHASE BANK, a New York banking
corporation, as administrative agent for the Lenders (in such
capacity, the "Administrative Agent"); CITICORP USA, INC., as
Syndication Agent; BANK OF AMERICA, N.A., as Documentation
Agent; THE CIT GROUP/BUSINESS CREDIT, INC., as Documentation
Agent; and GENERAL ELECTRIC CAPITAL CORPORATION; as
Documentation Agent.
WHEREAS, pursuant to the terms and conditions of the Original Credit
Agreement, the Lenders have extended and agreed to extend credit to the
Borrower; and
WHEREAS, the Borrower has requested, and the Majority Lenders and
the Tranche B Term Lenders are willing, to agree that the Original Credit
Agreement be amended and restated, and that certain provisions of the Guarantee
and Collateral 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 given to them in the Original Credit Agreement as
amended and restated hereby (as so amended and restated, the "Restated Credit
Agreement") or, if not defined therein, in the Guarantee and Collateral
Agreement, each as amended hereby or pursuant hereto.
SECTION 2. Amendment and Restatement of the Original Credit
Agreement. The Original Credit Agreement is hereby amended and restated in the
form of Exhibit A hereto.
SECTION 3. 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 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 the 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
the Borrower and the Subsidiary Guarantors of the Revolving
Obligations (and, if the Borrower and the Collateral Agent shall at
any time hereafter so agree, the Term Obligations) under and as
defined in the European Facilities Agreement 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 the Borrower'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 the Guarantee and Collateral
Agreement as amounts received from the Borrower;
(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 3; and
(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
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the Borrower in connection with the sale of such stock by the
Borrower 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 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 the 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 Obligations with such Collateral
would not require that Indebtedness under the Indentures be ratably
secured; and
(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 4. Representations and Warranties. The Borrower hereby
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 6, no Default shall have occurred and be
continuing.
(b) The execution, delivery and performance by the Borrower of this
Amendment and the performance by the Borrower of the Restated Credit Agreement
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.
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(c) This Amendment and the Restated Credit Agreement constitute the
legal, valid and binding obligations of the 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 the Borrower set forth
herein, and the representations and warranties of the Borrower set forth in the
Restated Credit Agreement, are true and correct in all material respects on and
as of the date hereof, and will be true and correct at the time the amendment
and restatement of the Original Credit Agreement provided for herein become
effective under Section 6, except to the extent such representations and
warranties relate to an earlier date.
SECTION 5. Amendment Fee. In consideration of the agreements
contained in this Amendment, the Borrower agrees to pay to the Administrative
Agent, for the account of each Lender under the Original Credit Agreement 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
between the Borrower and X.X. Xxxxxx Securities Inc., payable on the Effective
Date (as defined below).
SECTION 6. Conditions Precedent to Effectiveness. This Amendment
shall become effective upon the satisfaction of the condition set forth in
paragraph (a) below; provided that the amendment and restatement of the Original
Credit Agreement provided for in Section 2, the authorization set forth in
Section 3 and the agreement in Section 5 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 amendment and restatement, authorization and agreement shall cease to
be of any further force or effect):
(a) The Administrative Agent shall have received counterparts hereof
duly executed and delivered by each Tranche B Term Lender and by Tranche A Term
Lenders and Revolving Lenders representing the Majority Banks under the Original
Credit Agreement.
(b) The Administrative Agent shall have received such evidence as it
shall reasonably have requested as to the organization, existence and good
standing of each Credit Party, the corporate power and authority of the Borrower
to enter into this Amendment and to perform its obligations hereunder, the
authorization by the Credit Parties of the Transactions and any other legal
matters relating to the Borrower, the other Credit Parties, the Credit Documents
or the Transactions, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.
(c) The Administrative Agent shall have received favorable written
opinions (addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of (i) Xxxxxxxxx & Xxxxxxx, counsel for the Borrower, and (ii)
the General Counsel, the Associate General Counsel or an Assistant General
Counsel of the
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Borrower, in each case in a form reasonably satisfactory to the Administrative
Agent, and covering such matters relating to the Credit Parties, the Credit
Documents or the Transactions as the Administrative Agent or the Majority
Lenders shall reasonably request.
(d) The Administrative Agent shall have received a certificate of an
officer of the Borrower to the effect that the representations and warranties
set forth in Section 4 and in the Restated Credit Agreement are true and correct
in all respects material to the rights or interests of the Lenders on and as of
the Effective Date.
(e) At the time of and immediately after the Effective Date, the
Borrower and the other Credit Parties shall be in compliance with all the terms
and provisions set forth herein, in the Restated Credit Agreement and in the
other Credit Documents in all respects material to the rights or interests of
the Lenders, and at the time of and immediately after the Effective Date, no
Default shall have occurred and be continuing, and the Administrative Agent
shall have received a certificate of an officer of the Borrower to that effect.
(f) The Administrative Agent shall have received the Amendment Fees
payable by the Borrower pursuant to Section 5 and all other fees payable to the
Arrangers and the Administrative Agent.
(g) The Guarantee and Collateral Agreement shall have been amended
to provide that all the 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;
(h) The US Term Facility Agreement and the US Revolving Facility
Agreement shall have been amended to require that (i) if proceeds from
borrowings under the Restated Credit Agreement pursuant to commitments becoming
effective substantially concurrently with the Effective Date shall exceed
$300,000,000, the Borrower shall prepay loans, cash collateralize reimbursement
obligations in respect of letters of credit and reduce commitments under the US
Term Facility Agreement and the US Revolving 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 the Borrower in connection
with the borrowings under the Restated Credit Agreement and the related bank
amendments and (ii) the Borrower shall apply 50% of the Net Cash Proceeds of
incurrences or issuances of Senior Subordinated-Lien Indebtedness to prepay
loans, cash collateralize reimbursement obligations in respect of letters of
credit and reduce commitments under the US Term Facility Agreement and the US
Revolving Facility Agreement.
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(i) The US Term Facility Agreement, the US Revolving Facility
Agreement and the European 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
Original 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 and
the Restated Credit Agreement have become fully effective, and such notice shall
be conclusive and binding upon the Lenders.
SECTION 7. No Other Amendments or Waivers; Confirmation. Except as
expressly amended hereby, the provisions of the Original Credit Agreement are
and shall remain in full force and effect as set forth in the Restated Credit
Agreement. Nothing herein shall be deemed to entitle the 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 Restated
Credit Agreement in similar or different circumstances. This Amendment shall be
a Credit Document for all purposes of the Restated Credit Agreement.
SECTION 8. Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Amendment and the Restated Credit Agreement, including the reasonable
fees, charges and disbursements of Cravath, Swaine & Xxxxx LLP, counsel for the
Administrative Agent.
SECTION 9. Indemnity. It is agreed that for all purposes of Section
9.03(b) of the Restated 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 and restatement of the Original Credit
Agreement as contemplated by Section 2, the amendment of the Guarantee and
Collateral Agreement as contemplated by Section 3 and the other transactions
contemplated hereby shall all be deemed to be transactions contemplated by the
Credit Agreement.
SECTION 10. 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 11. 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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SECTION 12. 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.
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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/ X. X. Xxxxx
--------------------------------------
Name: X. X. Xxxxx
Title: Vice President
JPMORGAN CHASE BANK, individually and as
Administrative Agent and Collateral Agent,
By
/s/ B. Xxxxxx Xxxxxx
---------------------------------------
Name: B. Xxxxxx Xxxxxx
Title: Managing Director
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[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 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 the Borrower
shall have represented in a certificate to the
Administrative Agent (which shall be deemed to be a
Credit Document) will not materially interfere with the
Borrower's ability to effect) the securing of
Indebtedness under the New Facilities Credit Agreements
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 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 the Borrower shall
have represented in a certificate to the Administrative
Agent (which shall be deemed to be a Credit Document)
will not materially interfere with the Borrower's
ability to effect) the use of proceeds from any sale,
transfer or other disposition of assets owned directly
by (a) the Borrower 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.
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