EXHIBIT 4.9
FIRST AMENDMENT dated as of April 16, 2004 (this
"Amendment"), to the Amended and Restated Term Loan and
Revolving Credit Agreement dated as of February 19, 2004 (as
amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among THE GOODYEAR TIRE & RUBBER
COMPANY (the "Borrower"), the lenders from time to time party
thereto (the "Lenders"), JPMORGAN CHASE BANK, 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 Credit
Agreement, the Lenders have extended and agreed to extend credit to the
Borrower; and
WHEREAS, the Borrower has 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 (a) inserting after
the phrase "within 110 days after the end of each fiscal year of the Borrower"
the following: "(or, in the case of the fiscal year ended December 31, 2003,
within 140 days after the end of such fiscal year)" and (b) inserting after the
phrase "concurrently with the filing of the Borrower's annual report on Form
10-K" the following: "(or, in the case of the annual operating plan to be
delivered in 2004, no later than May 19, 2004)".
SECTION 3. Amendment to Section 6.02 of the Credit Agreement.
Paragraph (n) of Section 6.02 of the Credit Agreement is hereby amended to read
as follows:
"(n) 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) the Borrower 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 the Borrower's fiscal year ended December 31, 2003 and the Borrower's annual
operating plan to be delivered in 2004), ".
SECTION 6. Representations and Warranties. The Borrower hereby
represents and warrants to the Administrative Agent and the Lenders that:
(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.
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(b) All representations and warranties of the 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, the Borrower 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 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 Credit Agreement in
similar or different circumstances. This Amendment shall be a Credit Document
for all purposes of the Credit Agreement.
SECTION 10. Expenses. The Borrower 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 & Xxxxx 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/ X. X. Xxxxxx
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Name: X. X. Xxxxxx
Title: Chief Financial Officer
JPMORGAN CHASE BANK, individually and
as Administrative Agent and
Collateral Agent,
By
/s/ B. Xxxxxx Xxxxxx
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Name: B. Xxxxxx Xxxxxx
Title: Managing Director
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[Remaining Signature Pages Intentionally Omitted]
