Exhibit 4.3
Execution Copy
SECOND AMENDMENT dated as of August 13, 2002 (this
"Amendment"), to the Term Loan Agreement dated as of March 30, 2001,
as amended (the "Term Loan 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 (formerly known as
The Chase Manhattan Bank), a New York banking corporation, as
administrative agent for the Lenders (in such capacity, the
"Administrative Agent"); and JPMORGAN CHASE INTERNATIONAL LIMITED,
as London agent for the Lenders (the "London Agent").
WHEREAS, pursuant to the terms and conditions of the Term Loan Agreement,
the Lenders have agreed to make certain loans to the Borrower; and
WHEREAS, the Borrower has requested that certain provisions of the Term
Loan Agreement be modified in the manner provided for in this Amendment, and the
Lenders are willing to agree to such modifications on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used and not defined herein shall have
the meanings given to them in the Term Loan Agreement, as amended hereby.
2. Amendment to Section 1.01 of the Term Loan Agreement. (a) The
definition of "Applicable Spread" in Section 1.01 is hereby amended by deleting
in its entirety the table set forth therein and inserting in its place the
following table:
INDEX DEBT EUROCURRENCY
RATINGS SPREAD CD SPREAD ABR SPREAD
Category 1 1.250% 1.375% 0.250%
BBB/Baa2 or
higher
Category 2 1.500% 1.625% 0.500%
BBB-/Baa3
Category 3 1.750% 1.875% 0.750%
BB+/Ba1
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INDEX DEBT EUROCURRENCY
RATINGS SPREAD CD SPREAD ABR SPREAD
Category 4 2.00% 2.125% 1.000%
lower than
BB+/Ba1 or
unrated
(b) Clause (i) of the text immediately following such table in the
definition of "Applicable Spread" is hereby amended by deleting the text
"Category 3" and replacing it with the text "Category 4".
(c) The definition of "Consolidated Financial Statements of the Borrower"
in Section 1.01 is hereby amended by deleting the text "2000 and 1999" and
replacing it with the text "2001 and 2000" and by deleting the text "December
31, 2000" immediately after the text "in the period ended" and replacing it with
the text "December 31, 2001" and by deleting the text "December 31, 2000"
immediately after the text "for the year ended" and replacing it with the text
"December 31, 2001".
(d) The definition of "Xxxxxx System" in Section 1.01 is hereby deleted
and replaced with the following text:
"Xxxxxx System" shall mean the Xxxxxx Monitor Money Rates Service.
(e) The definition of "Supplemental Amount" in Section 1.01 is hereby
amended by deleting the text "$3,800,000,000" and replacing it with the text
"the Consolidated Net Worth of Borrower as at June 30, 2002".
(f) Section 1.01 of the Term Loan Agreement is hereby amended by adding
the defined terms "Attributable Debt", "Domestic Subsidiary" and "Sale-Leaseback
Transaction" in the appropriate alphabetical order to read in their entirety as
follows:
"Attributable Debt" means, with respect to any Sale-Leaseback Transaction,
the present value (discounted at a rate equal to the prevailing yield at the
date such Sale-Leaseback Transaction is entered into on United States Treasury
obligations having a maturity substantially equal to the term of the lease
included in such Sale-Leaseback Transaction plus 3% per annum) of the total
obligations of the lessee for rental payments (other than amounts required to be
paid on account of taxes, maintenance, repairs, insurance, assessments,
utilities, operating and labor costs
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and other items which do not constitute payments for property rights or amounts
related to contingent rents (such as those based on sales)) during the remaining
term of the lease included in such Sale-Leaseback Transaction (including any
period for which such lease has been extended). In the case of any lease which
is terminable by the lessee upon payment of a penalty, the Attributable Debt
shall be the lesser of the Attributable Debt determined assuming termination
upon the first date such lease may be terminated (in which case the Attributable
Debt shall also include the amount of the penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first date
upon which it may be so terminated) or the Attributable Debt determined assuming
no such termination.
"Domestic Subsidiary" shall mean any Subsidiary incorporated or organized
in, or engaged (directly or through its subsidiaries) primarily in business in,
the United States of America, any state, territory or possession thereof or the
District of Columbia.
"Sale-Leaseback Transaction" means any arrangement whereby the Borrower or
a Domestic Subsidiary shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property that it intends to use
for substantially the same purpose or purposes as the property sold or
transferred.
3. Amendment to Article V of the Term Loan Agreement. (a) Clause (c)(i) of
Article V of the Term Loan Agreement is hereby amended by deleting the text "(a)
and (b)" immediately before the text "of Article VI" and replacing it with the
text "(a), (b), (c) and (d)".
(b) Clause (c)(ii) of Article V of the Term Loan Agreement is hereby
amended by deleting the text "(a) and (b)" immediately before the text "of
Article VI" and replacing it with the text "(a), (b), (c) and (d)".
(c) Clause (d) of Article V of the Term Loan Agreement is hereby amended
by deleting the text "(c)" and replacing it with the text "(e)".
(d) Clause (e) of Article V of the Term Loan Agreement is hereby amended
by inserting the text "Amended and Restated" immediately before the text
"364-Day" and "Five-Year Revolving", respectively, and deleting the two
instances of the text "August 15, 2000" and replacing them with the text "August
13, 2002".
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4. Amendment to Article VI of the Term Loan Agreement. (i) Article VI of
the Term Loan Agreement is hereby amended by deleting the text "(c)" and
replacing it with the text "(e)", deleting the text "(d)" and replacing it with
the text "(f)" and deleting the text "(e)" and replacing it with the text "(g)"
and (ii) Article VI of the Term Loan Agreement is hereby amended by adding the
following text immediately after clause (b):
"(c) Limitation on Secured Debt of Borrower and Domestic Subsidiaries.
Issue, incur, assume or guarantee, or permit any Domestic Subsidiary to issue,
incur, assume or guarantee, Debt secured by a Lien or Liens upon any assets
other than property or other assets constituting Manufacturing Facilities or
accounts receivable (and related rights including, without limitation, rights to
return merchandise) ("Designated Secured Debt") if, immediately after giving
effect 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 Designated Secured Debt of the
Borrower and the Domestic Subsidiaries would exceed $100,000,000.
(d) Limitation on Sale-Leaseback Transactions and Debt of Domestic
Subsidiaries. Permit the sum of (i) the aggregate principal amount of the Debt
of Domestic Subsidiaries, other than Debt secured by a Lien or Liens upon
property or assets constituting Manufacturing Facilities or accounts receivable
(and related rights, including, without limitation, rights to returned
merchandise) and (ii) the aggregate Attributable Debt in connection with all
Sale-Leaseback Transactions of the Borrower and the Domestic Subsidiaries to
exceed $400,000,000 at any time.
5. Amendment to Article VII of the Term Loan Agreement. (a) Article VII of
the Term Loan Agreement is hereby amended by deleting the text "(g)" and
replacing it with the text "(h)" and deleting the text "(h)" and replacing it
with the text "(i)".
(b) clause (d) of Article VII is hereby amended by adding the text ",(c)
or (d)" immediately after the text "paragraph (b)".
(c) Article VII of the Term Loan Agreement is hereby amended by inserting
the following text after clause (f):
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"(g) Any event shall occur that shall constitute an event of default under
any cross-default or cross- acceleration provision contained in any agreement or
instrument governing or evidencing Funded Debt of the Borrower which is then
outstanding in a principal amount in excess of $25,000,000 if such provision
permits the lawful acceleration of such Funded Debt under circumstances that
would not constitute an Event of Default pursuant to clause (f) above; or"
(d) Article VII of the Term Loan Agreement is hereby amended by deleting
the text "(h)" at the end of clause (i) and replacing it with the text "(i)".
6. Amendment to Article IX of the Term Loan Agreement. (a) Clause (a) (ii)
of Section 9.03 of the Term Loan Agreement is hereby amended by deleting the
text "and giving a written notice also signed by the Borrower)" and replacing it
with the following text:
"(which consent shall not be unreasonably withheld; provided that such
consent shall not be required (a) in the case of an assignment or participation
to a Lender or (b) if an Event of Default shall have occurred and be continuing)
and the giving of a written notice (also signed by the Borrower where the
Borrower's consent is required)".
(b) Article IX of the Term Loan Agreement is hereby amended by deleting
the text "SECTION 9.15" and replacing it with the text "SECTION 9.16".
(c) Article IX of the Term Loan Agreement is hereby amended by adding the
following text immediately after the text of SECTION 9.14:
SECTION 9.15. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
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OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
7. Name Change. Simultaneously with the effectiveness of this Amendment,
the Term Loan Agreement shall be amended to change each reference to "The Chase
Manhattan Bank" in such Term Loan Agreement to "JPMorgan Chase Bank".
8. No Other Amendments or Waivers; Confirmation. Except as expressly
amended hereby, the provisions of the Term Loan Agreement are and shall remain
in full force and effect. 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
Term Loan Agreement in similar or different circumstances.
9. Representations and Warranties. The Borrower hereby represents and
warrants to the Administrative Agent and the Lenders that, as of the date
hereof:
(a) No Event of Default has occurred and is continuing.
(b) The execution, and delivery of this Amendment and performance of the
Term Loan Agreement as amended hereby by the Borrower have been duly authorized
by all necessary corporate and other action and do not and will not require any
registration with, consent or approval of, notice to or action by, any Person
(including any Governmental Body) in order to be effective and enforceable.
(c) The Term Loan Agreement as amended by this Amendment constitutes the
legal, valid and binding obligation 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 clauses (a)
through (h), inclusive, of Article III of the Term Loan Agreement are true and
correct in all material respects on and as of the date hereof.
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10. Conditions Precedent to Effectiveness. This Amendment shall become
effective as of and with effect from the date hereof, subject to (a) the receipt
by the Administrative Agent of (i) counterparts hereof duly executed and
delivered by the Borrower and the Majority Lenders, (ii) a certificate of an
officer of the Borrower to the effect that the representations and warranties
set forth in paragraph 9 hereof are true and correct, (iii) a certificate of the
Secretary or an Assistant Secretary of the Borrower certifying the names and the
signatures of the Authorized Officers and (iv) an opinion of the General
Counsel, an Associate General Counsel or the Assistant General Counsel of the
Borrower addressed to the Lenders and the Administrative Agent substantially in
the form of Exhibit A hereto, (b) the Borrower's Amended and Restated 364-Day
Credit Agreement dated as of the date hereof shall have been entered into by the
Borrower and the Agent and the Lenders named therein, and (c) the Borrower's
Amended and Restated Five-Year Revolving Credit Agreement dated as of the date
hereof shall have been entered into by the Borrower and the Agent and the
Majority Lenders named therein.
11. Expenses. The Borrower agrees to pay or reimburse the Administrative
Agent for its out-of-pocket expenses in connection with this Amendment,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
Xxxxx, counsel for the Administrative Agent.
12. 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.
13. Counterparts. This Amendment may be executed by one or more of the
parties to this Amendment 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
relevant 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/ Xxxxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Senior Vice President
JPMORGAN CHASE BANK, individually
and as Administrative Agent,
by /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
SIGNATURE PAGE TO THE AMENDED AND
RESTATED FIVE-YEAR REVOLVING CREDIT
AGREEMENT DATED AS OF AUGUST 13, 2002,
among THE GOODYEAR TIRE & RUBBER
COMPANY, THE LENDERS AND JPMORGAN CHASE
BANK, as Agent.
Name of Institution: BANCA NAZIONALE DEL LAVORO S.p.A.,
New York Branch
by
/s/ Xxxxxxxxx XxXxxxx
--------------------------------------
Name: Xxxxxxxxx XxXxxxx
Title: Vice President
by
/s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A.
by
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK
by
/s/ Xxxx X. Xxxxx, Xx.
--------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
by
/s/ X. Xxxxxxx
--------------------------------------
Name: X. Xxxxxxx
Title: Vice President
BNP PARIBAS
by
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
by
/s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Central Region Manager
CIBC INC.
by
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Director
CIBC World Markets Corp.,
as Agent
CITICORP USA, INC.
by
/s/ Xxxxx X. Xxx
--------------------------------------
Name: Xxxxx X. Xxx
Title: Director
COMMERZBANK AKTIENGESELLSCHAFT
NEW YORK AND GRAND CAYMAN BRANCHES
by
/s/ Xxxxxx X. Warning
--------------------------------------
Name: Xxxxxx X. Warning
Title: Assistant Treasurer
by
/s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
CREDIT LYONNAIS
NEW YORK BRANCH
by
/s/ Xxx X. Xxxxx
--------------------------------------
Name: Xxx X. Xxxxx
Title: First Vice President
CREDIT SUISSE FIRST BOSTON
by
/s/ Xxxxxx Xxxx
--------------------------------------
Name: Xxxxxx Xxxx
Title: Director
by
/s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
Title: Associate
DEUTSCHE BANK SECURITIES INC.
by
/s/ Xx. Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xx. Xxxxxxx X. Xxxxx
Title: Director
by
/s/ Xxxx-Xxxxx Xxxxxx
--------------------------------------
Name: Xxxx-Xxxxx Xxxxxx
Title: Director
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
by
/s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
by
/s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
IBK CAPITAL CORPORATION
by
/s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: President
INTESABCI
New York Branch
by
/s/ X. Xxxxxx
--------------------------------------
Name: X. Xxxxxx
Title: VP
by
/s/ X. Xxxxxxxxx
--------------------------------------
Name: X. Xxxxxxxxx
Title: VP
KBC BANK, N.V.
by
/s/ Xxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: First Vice President
by
/s/ Xxxxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
by
/s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Portfolio Manager
MIZUHO CORPORATE BANK, LTD.
by
/s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Deputy General Manager and Group
Head
THE NORTHERN TRUST COMPANY
by
/s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
ROYAL BANK OF CANADA
by
/s/ Xxxxxx X. XxxXxxxxx
--------------------------------------
Name: Xxxxxx X. XxxXxxxxx
Title: Senior Manager
SOCIETE GENERALE
by
/s/ Xxxx-Xxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxx-Xxxxx Xxxxxxxxx
Title: Vice President
SUMITOMO MITSUI BANKING
CORPORATION
by
/s/ Xxxxxx X. Xxxxxxxxx, Xx.
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Joint General Manager
WACHOVIA BANK, NATIONAL ASSOCIATION
(F/K/A FIRST UNION NATIONAL BANK)
by
/s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Associate
