EXHIBIT 4.3
EXECUTION COPY
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TERM LOAN AND REVOLVING CREDIT AGREEMENT
dated as of
March 31, 2003
among
THE GOODYEAR TIRE & RUBBER COMPANY
GOODYEAR DUNLOP TIRES EUROPE B.V.
GOODYEAR DUNLOP TIRES GERMANY GMBH
GOODYEAR GMBH & CO KG
DUNLOP GMBH & CO KG
GOODYEAR LUXEMBOURG TIRES SA
The Lenders Party Hereto,
JPMORGAN CHASE BANK,
as Administrative Agent and Collateral Agent
DEUTSCHE BANK AG,
as Syndication Agent
X.X. XXXXXX SECURITIES INC.,
as Sole Bookrunner and Sole Lead Arranger
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[CS&M #6701-315]
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms................................................................ 1
SECTION 1.02. Classification of Loans and Borrowings....................................... 22
SECTION 1.03. Terms Generally.............................................................. 22
SECTION 1.04. Accounting Terms; GAAP....................................................... 22
SECTION 1.05. Foreign Currency Translation................................................. 23
ARTICLE II
The Credits
SECTION 2.01. Commitments.................................................................. 23
SECTION 2.02. Loans and Borrowings......................................................... 23
SECTION 2.03. Requests for Borrowings...................................................... 24
SECTION 2.04. Funding of Borrowings........................................................ 24
SECTION 2.05. Interest Elections........................................................... 25
SECTION 2.06. Termination of Commitments; Reductions of Commitments........................ 26
SECTION 2.07. Repayment of Loans; Evidence of Debt......................................... 27
SECTION 2.08. Prepayment of Loans.......................................................... 27
SECTION 2.09. Fees......................................................................... 28
SECTION 2.10. Interest..................................................................... 29
SECTION 2.11. Alternate Rate of Interest................................................... 29
SECTION 2.12. Increased Costs.............................................................. 30
SECTION 2.13. Break Funding Payments....................................................... 30
SECTION 2.14. Taxes........................................................................ 31
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of Setoffs................... 32
SECTION 2.16. Mitigation Obligations; Replacement of Lenders............................... 33
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers......................................................... 34
SECTION 3.02. Authorization; Enforceability................................................ 34
SECTION 3.03. Governmental Approvals; No Conflicts......................................... 35
SECTION 3.04. Financial Statements; No Material Adverse Change............................. 35
SECTION 3.05. Litigation and Environmental Matters......................................... 35
SECTION 3.06. Compliance with Laws and Agreements.......................................... 36
SECTION 3.07. Investment and Holding Company Status........................................ 36
SECTION 3.08. ERISA........................................................................ 36
SECTION 3.09. Disclosure................................................................... 36
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SECTION 3.10. Subsidiaries................................................................. 36
SECTION 3.11. Security Interests........................................................... 36
SECTION 3.12. Use of Proceeds.............................................................. 37
ARTICLE IV
Conditions
SECTION 4.01. Effective Date............................................................... 37
SECTION 4.02. Each Credit Event............................................................ 39
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information................................... 40
SECTION 5.02. Notices of Defaults.......................................................... 41
SECTION 5.03. Existence; Conduct of Business............................................... 41
SECTION 5.04. Maintenance of Properties.................................................... 42
SECTION 5.05. Books and Records; Inspection and Audit Rights............................... 42
SECTION 5.06. Compliance with Laws......................................................... 42
SECTION 5.07. Insurance.................................................................... 42
SECTION 5.08. Guarantees and Collateral.................................................... 42
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness and Preferred Equity Interests.................................. 45
SECTION 6.02. Liens........................................................................ 47
SECTION 6.03. Sale and Leaseback Transactions.............................................. 48
SECTION 6.04. Fundamental Changes.......................................................... 48
SECTION 6.05. Investments, Loans, Advances and Guarantees.................................. 49
SECTION 6.06. Asset Dispositions........................................................... 51
SECTION 6.07. Restricted Payments.......................................................... 52
SECTION 6.08. Transactions with Affiliates................................................. 53
SECTION 6.09. Capital Expenditures......................................................... 53
SECTION 6.10. Interest Expense Coverage Ratio.............................................. 54
SECTION 6.11. Consolidated Net Worth....................................................... 54
SECTION 6.12. Senior Secured Indebtedness Ratio............................................ 54
SECTION 6.13. Sumitomo Ownership........................................................... 54
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ARTICLE VII
Events of Default and CAM Exchange
SECTION 7.01. Event of Default............................................................. 55
SECTION 7.02. CAM Exchange................................................................. 57
ARTICLE VIII
The Agents
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices...................................................................... 59
SECTION 9.02. Waivers; Amendments.......................................................... 60
SECTION 9.03. Expenses; Indemnity; Damage Waiver........................................... 62
SECTION 9.04. Successors and Assigns....................................................... 63
SECTION 9.05. Survival..................................................................... 66
SECTION 9.06. Counterparts; Integration; Effectiveness..................................... 67
SECTION 9.07. Severability................................................................. 67
SECTION 9.08. Right of Setoff.............................................................. 67
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process................... 67
SECTION 9.10. WAIVER OF JURY TRIAL......................................................... 68
SECTION 9.11. Headings..................................................................... 68
SECTION 9.12. Confidentiality.............................................................. 68
SECTION 9.13. Interest Rate Limitation..................................................... 69
SECTION 9.14. Security Documents........................................................... 69
SECTION 9.15. Collateral Agent as Joint and Several Creditor............................... 69
SECTION 9.16. Conversion of Currencies..................................................... 70
SECTION 9.17. Dutch Banking Act............................................................ 70
SCHEDULES:
Schedule 1.01(a) -- Applicable Assets of the European J.V.
Schedule 1.01(b) -- Applicable Assets of German Grantors
Schedule 1.01(c) -- Applicable Assets of Luxembourg Grantors
Schedule 1.01(d) -- Applicable Assets of UK Grantors
Schedule 1.01(e) -- Applicable Assets of French Grantors
Schedule 1.01A -- US Consent Subsidiaries
Schedule 2.01 -- Commitments
Schedule 3.10 -- Subsidiaries
Schedule 4.01(b) -- Required Opinions
Schedule 4.01(k) -- Pledged J.V. Subsidiaries
Schedule 6.01 -- Existing Indebtedness
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Schedule 6.02 -- Existing Liens
Schedule 6.06 -- Asset Dispositions
EXHIBITS:
Exhibit A -- Form of Borrowing Request
Exhibit B -- Form of Interest Election Request
Exhibit C-1 -- Form of Promissory Note for Revolving Loans
Exhibit C-2 -- Form of Promissory Note for Term Loans
Exhibit D -- Form of Assignment and Assumption
Exhibit E-1 -- Form of Opinion of Goodyear's Outside Counsel
Exhibit E-2 -- Form of Opinion of Goodyear's General Counsel
Exhibit F -- Form of Master Guarantee and Collateral Agreement
exhibit G -- Form of Verification Letter
TERM LOAN AND REVOLVING CREDIT AGREEMENT
dated as of March 31, 2003, among THE GOODYEAR TIRE &
RUBBER COMPANY; GOODYEAR DUNLOP TIRES EUROPE B.V.;
GOODYEAR DUNLOP TIRES GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG; GOODYEAR LUXEMBOURG TIRES
SA; the LENDERS party hereto; JPMORGAN CHASE BANK, as
Administrative Agent and Collateral Agent; and
DEUTSCHE BANK AG, as Syndication Agent.
Goodyear and the Borrowers have requested the Lenders, and the
Lenders are willing, to extend credit to the Borrowers in the form of (a)
Revolving Loans to any Borrower at any time and from time to time during the
Revolving Availability Period in an aggregate principal amount not in excess of
$250,000,000 at any time outstanding and (b) Term Loans to the Term Borrowers on
the Effective Date in an aggregate principal amount not in excess of
$400,000,000. The Lenders are willing to extend such credit to the Borrowers on
the terms and subject to the conditions herein set forth. The proceeds of the
Loans will be used for general corporate purposes of the European J.V. and the
J.V. Subsidiaries.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABL Facilities Agreement" means the Term Loan and Revolving
Credit Agreement dated as of the date hereof among Goodyear, certain lenders,
JPMCB, as administrative agent, Citicorp USA, Inc., as syndication agent, and
Bank of America, N.A. and CIT Financial Group, as documentation agents.
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMCB, in its capacity as
administrative agent for the Lenders hereunder, and its successors in such
capacity.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
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"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agents" means the Administrative Agent and the Collateral
Agent.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Assets" means (a) with respect to the European
J.V., all the assets and rights of the European J.V. listed on Schedule 1.01(a)
, (b) with respect to any Grantor organized under the laws of the Federal
Republic of Germany, all the assets and rights of such Grantor listed on
Schedule 1.01(b), (c) with respect to any Grantor organized under the laws of
Luxembourg, all the assets and rights of such Grantor listed on Schedule
1.01(c), (d) with respect to any Grantor organized under the laws of the United
Kingdom, all the assets and rights of such Grantor listed on Schedule 1.01(d),
and (e) with respect to any Grantor organized under the laws of the Republic of
France, all the assets and rights of such Grantor listed on Schedule 1.01(e).
"Applicable Percentage" means, with respect to any Lender, the
percentage of the aggregate Revolving Credit Exposures, Term Loans and unused
Revolving Commitments of all Lenders represented by such Lender's Revolving
Credit Exposure, Term Loans and unused Revolving Commitments.
"Applicable Secured Obligations" means (a) with respect to
Goodyear, (i) the Revolving Obligations and (ii) the Guarantees by Goodyear and
each US Subsidiary Guarantor of the Revolving Obligations under the Guarantee
and Collateral Agreement, (b) with respect to each Grantor organized under the
laws of any jurisdiction other than the Federal Republic of Germany, (i) the
Revolving Obligations and (ii) the Guarantees of the Revolving Obligations by
each such Grantor under the Guarantee and Collateral Agreement, and (c) with
respect to each Grantor organized under the laws of the Federal Republic of
Germany, (i) the Term Obligations and (ii) the Guarantees by each such Grantor
of the Term Obligations under the Guarantee and Collateral Agreement.
"Applicable Term Percentage" means, with respect to any
Lender, the percentage of the total Term Commitments represented by such
Lender's Term Commitment.
"Approved Fund" means (a) with respect to any Lender, a CLO
managed by such Lender or by an Affiliate of such Lender and (b) with respect to
any Lender that is a fund which invests in bank loans and similar extensions of
credit, any other fund that invests in bank loans and similar extensions of
credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Arranger" means X.X. Xxxxxx Securities Inc., as Sole
Bookrunner and Sole Lead Arranger for the credit facilities established by this
Agreement.
"Assignment and Assumption" means an assignment and assumption
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by
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Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit
D or any other form approved by the Administrative Agent.
"Attributable Debt" means, with respect to any Sale and
Leaseback Transaction, the present value (computed in accordance with GAAP and,
in the case of a Sale and Leaseback Transaction that does not result in Capital
Lease Obligations, as if the obligations incurred in connection with such Sale
and Leaseback Transaction were Capital Lease Obligations) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale and 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 (i) 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) and (ii) the Attributable Debt determined assuming no such
termination.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrowers" means the European J.V., GDTG, Goodyear KG, Dunlop
KG, and Lux Tires.
"Borrowing" means Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect.
"Borrowing Request" means a request by any Borrower for a
Borrowing in accordance with Section 2.03 in substantially the form of Exhibit A
hereto.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City, Germany, The Netherlands
or Luxembourg are authorized or required by law to remain closed; provided that,
when used in connection with a Eurodollar Loan, the term "Business Day" shall
also exclude any day on which banks are not open for dealings in dollar deposits
in the London interbank market.
"CAM Exchange" means the exchange of the Lenders' interests
provided for in Section 7.02.
"CAM Exchange Date" means the date on which any event referred
to in paragraph (h) or (i) of Section 7.01 shall occur in respect of any
Borrower.
"CAM Percentage" means, with respect to each Lender, a
fraction, expressed as a decimal, of which (a) the numerator shall be the
aggregate Designated Obligations owed to such Lender (whether or not at the time
due and payable) and (b) the denominator shall be the aggregate Designated
Obligations owed to all the Lenders (whether or not at the time due and
payable).
"Capital Expenditures" of any Person means, for any period,
(a) the additions to property, plant and equipment and other capital
expenditures of such Person and its subsidiaries that are (or would be) set
forth in a statement of cash flows of such Person and its Consolidated
Subsidiaries for such period prepared in accordance with GAAP, excluding
capitalized software
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expenses, and (b) Capital Lease Obligations incurred by such Person and its
Consolidated Subsidiaries during such period (other than any such Capital Lease
Obligations that shall relate to assets acquired in transactions reflected in
Capital Expenditures for any earlier period). For purposes of this definition,
(i) the purchase price of equipment or other fixed assets that are purchased
simultaneously with the trade-in of existing assets or with insurance proceeds
shall be included in Capital Expenditures only to the extent of the gross amount
by which such purchase price exceeds the credit granted by the seller of such
assets for the assets being traded in at such time or the amount of such
insurance proceeds, as the case may be, and (ii) acquisitions permitted by
Section 6.05(e) shall be excluded.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934, as amended, and the
rules of the United States Securities and Exchange Commission thereunder as in
effect on the date hereof), of Equity Interests representing more than 50% of
the aggregate ordinary voting power represented by the issued and outstanding
Equity Interests of Goodyear, (b) occupation of a majority of the seats (other
than vacant seats) on the board of directors of Goodyear by Persons who were
neither (i) directors on the date hereof or nominated by the board of directors
of Goodyear nor (ii) appointed by directors so nominated, (c) the failure of
Goodyear to own directly or indirectly, beneficially and of record, free and
clear of all Liens (other than Permitted Encumbrances), more than 50% of the
issued and outstanding capital stock of, and to Control, the European J.V., (d)
the failure of Goodyear to own directly or indirectly, beneficially and of
record, free and clear of all Liens (other than Permitted Encumrances and Liens
in favor of the Collateral Agent to secure the Applicable Secured Obligations
and the US Obligations), 100% of the issued and outstanding capital stock of
Luxembourg Finance, or (e) the failure of Goodyear to own directly or
indirectly, beneficially and of record, more than 50% of the issued and
outstanding capital stock of, and to Control, any of GDTG, Goodyear KG, Dunlop
KG or Lux Tires.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.12(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class" when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans or Term Loans and, when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Commitment or Term Loan
Commitment.
"CLO" means any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar
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extensions of credit in the ordinary course of its business and is administered
or managed by a Lender or an Affiliate of such Lender.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral" means all the assets and rights that secure any
of the Obligations pursuant to the Security Documents.
"Collateral Agent" means JPMCB, in its capacity as collateral
agent for the Lenders under the Guarantee and Collateral Agreement and the other
Security Documents.
"Commitment" means a Revolving Commitment or a Term Loan
Commitment, or any combination thereof (as the context requires).
"Consent Assets" has the meaning assigned to such term in the
Guarantee and Collateral Agreement.
"Consent Subsidiary" means (i) with respect to Goodyear or any
US Subsidiary, (a) any Subsidiary listed on Part I or Part II of Schedule 1.01A
and (b) any Subsidiary not on Schedule 1.01A or formed or acquired after the
Effective Date in respect of which (A) the consent of any Person other than
Goodyear or any Wholly Owned Subsidiary of Goodyear is required by applicable
law or the terms of any organizational document of such Subsidiary or other
agreement of such Subsidiary or any Affiliate of such Subsidiary in order for
such Subsidiary to execute the Guarantee and Collateral Agreement as a US
Guarantor (as defined under the Guarantee and Collateral Agreement) and perform
its obligations thereunder and (B) Goodyear endeavored in good faith to obtain
such consents and such consents shall not have been obtained, (ii) with respect
to the European J.V. or a J.V. Subsidiary, any J.V. Subsidiary formed or
acquired after the Effective Date in respect of which (A) the consent of any
Person other than Goodyear, the European J.V. or any Wholly Owned Subsidiary of
Goodyear or the European J.V. is required by applicable law or the terms of any
organizational document of such J.V. Subsidiary or other agreement of such J.V.
Subsidiary or any Affiliate of such J.V. Subsidiary in order for such J.V.
Subsidiary to execute the Guarantee and Collateral Agreement as a European
Facilities Guarantor and perform its obligations thereunder, or in order for
Equity Interests of such J.V. Subsidiary to be pledged under a Security
Agreement, as the case may be, and (B) Goodyear and the European J.V. endeavored
in good faith to obtain such consents and such consents shall not have been
obtained and (iii) with respect to Luxembourg Finance or a subsidiary of
Luxembourg Finance, any subsidiary of Luxembourg Finance formed or acquired
after the Effective Date in respect of which (A) the consent of any Person other
than Goodyear, the European J.V., Luxembourg Finance or any Wholly Owned
Subsidiary of Goodyear, the European J.V. or Luxembourg Finance, is required by
applicable law or the terms of any organizational document of such subsidiary of
Luxembourg Finance or other agreement of such subsidiary of Luxembourg Finance
or any Affiliate of such subsidiary of Luxembourg Finance in order for such
subsidiary of Luxembourg Finance to execute the Guarantee and Collateral
Agreement as a European Facilities Guarantor and perform its obligations
thereunder, or in order for Equity Interests of such subsidiary of Luxembourg
Finance to be pledged under a Security Agreement, as the case may be, and (B)
Goodyear, the European J.V. and Luxembourg Finance endeavored in good faith to
obtain such consents and such consents shall not have been obtained.
Notwithstanding the foregoing, no Subsidiary shall be a Consent Subsidiary at
any time that it is a guarantor of, or has provided any collateral to secure,
Indebtedness for borrowed money of Goodyear or any Borrower, and any Consent
Subsidiary (including a Consent Subsidiary listed in Part I or Part II
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of Schedule 1.01A) that at any time ceases to meet the test set forth in clause
(A) shall cease to be a Consent Subsidiary.
"Consolidated EBITDA" of any Person means, for any period,
Consolidated Net Income of such Person for such period plus (a) without
duplication and to the extent deducted in determining such Consolidated Net
Income, the sum of (i) Consolidated Interest Expense for such period, (ii)
income tax expense for such period, (iii) all amounts attributable to
depreciation and amortization for such period, (iv) all non-cash non-recurring
charges for such period, (v) all Rationalization Charges for such period, (vi)
other expense for such period, (vii) equity in losses of affiliates for such
period, (viii) foreign exchange currency losses for such period and (ix)
minority interest in net income of subsidiaries for such period, minus (b)
without duplication, to the extent included in determining such Consolidated Net
Income (except with respect to (ii) and (iii) below), (i) any non-cash
extraordinary gains for such period, (ii) cash expenditures (other than
Rationalization Charges) during such period in respect of items that resulted in
non-cash non-recurring charges during any prior period after the date hereof,
(iii) Excess Cash Rationalization Charges, (iv) other income for such period,
(v) equity in earnings of affiliates for such period, (vi) foreign exchange
currency gains for such period and (vii) minority interest in net losses of
subsidiaries for such period, all determined on a consolidated basis in
accordance with GAAP. Each item referred to in this definition and not defined
elsewhere in this Agreement will be computed by a method consistent with that
used in preparing the financial statements referred to in Section 3.04.
"Consolidated Interest Expense" of any Person means, for any
period the sum of, without duplication, (a) the consolidated interest expense
(including imputed interest expense in respect of Capital Lease Obligations and
excluding fees and other origination costs included in interest expense and
arising from Indebtedness incurred at any time) of such Person and its
Consolidated Subsidiaries for such period, determined in accordance with GAAP
but excluding capitalized interest, (b) all cash dividends paid during such
period in respect of Permitted Preferred Stock and (c) all finance expense
related to Securitization Transactions, excluding amortization of origination
and other fees.
"Consolidated Net Income" of any Person means, for any period,
the net income or loss of such Person and its Consolidated Subsidiaries for such
period determined in accordance with GAAP.
"Consolidated Net Worth" means, as of the last day of any
fiscal quarter, the sum for Goodyear of (a) the stated value of outstanding
common stock, (b) capital surplus and (c) retained earnings, excluding for
purposes of such calculation the effect of (i) all non-cash non-recurring
charges and all non-cash Rationalization Charges and (ii) all losses and gains
on sales of assets other than in the ordinary course of business and all other
non-cash non-recurring gains, in each case in (i) and (ii) above, after December
31, 2002.
"Consolidated Revenue" means, for any period, the revenues of
Goodyear and its Consolidated Subsidiaries for such period, determined in
accordance with GAAP.
"Consolidated Senior Secured Indebtedness" means, for any
period, the sum for Goodyear and its Consolidated Subsidiaries for such period,
without duplication, of (a) all Indebtedness that is included on Goodyear's
consolidated balance sheet and is secured by any assets of Goodyear or a
Consolidated Subsidiary of Goodyear, (b) all Capital Lease Obligations, (c) all
synthetic lease financings, (d) all Indebtedness of South Pacific Tyres that is
secured by any of its assets or by assets of the Borrower or a Consolidated
Subsidiary and (e) all
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Securitization Transactions, all determined in accordance with GAAP. For
purposes of computing Consolidated Senior Secured Indebtedness, the amount of
any synthetic lease financing shall equal the amount that would be capitalized
in respect of such lease if it were a Capital Lease Obligation.
"Consolidated Subsidiary" means with respect to any Person, at
any date, each Subsidiary of such Person the accounts of which would be
consolidated with those of such Person in such Person's consolidated financial
statements prepared in accordance with GAAP.
"Consolidated Total Assets" means, at any date, the total
assets of Goodyear and its Consolidated Subsidiaries determined in accordance
with GAAP.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Credit Documents" means this Agreement, any promissory notes
delivered pursuant to Section 2.07(e) and the Security Documents.
"Credit Parties" means the J.V. Loan Parties, Goodyear and the
US Subsidiary Guarantors.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Designated Obligations" means (a) with respect to Revolving
Loans, all Revolving Obligations of the Credit Parties in respect of (i) the
principal of and interest on the Revolving Loans, (ii) commitment fees in
respect of unused Revolving Commitments described in Section 2.09(a) and (iii)
fees in respect of Revolving Loans and unused Revolving Commitments described in
Section 2.09(c), in each case regardless of whether then due and payable, and
(b) with respect to Term Loans, all Term Obligations of the Credit Parties in
respect of (i) the principal of and interest on the Term Loans and (ii) fees in
respect of Term Loans described in Section 2.09(c), in each case regardless of
whether then due and payable.
"Disclosure Documents" means (a) the Information Memorandum,
(b) reports of Goodyear on Forms 10-K, 10-Q and 8-K, and any amendments thereto,
that shall have been (i) filed with the Securities and Exchange Commission on or
prior to Xxxxx 00, 0000, xx (xx) filed with the Securities and Exchange
Commission after such date and prior to the Effective Date and delivered to the
Administrative Agent, and (c) the draft Report of Goodyear on Form 10-K for the
fiscal year ended December 31, 2002, delivered to the Lenders prior to the date
hereof, as such Report shall have been modified by any subsequent draft of such
Report delivered to the Administrative Agent prior to the Effective Date.
"dollars" or "$" refers to lawful money of the United States
of America.
"Dunlop KG" means Dunlop GmbH & Co KG, a partnership organized
under the laws of the Federal Republic of Germany.
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"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the presence, the management or release of, or exposure to, any
Hazardous Materials or to health and safety matters.
"Environmental Liability" means all liabilities, obligations,
damages, losses, claims, actions, suits, judgments, orders, fines, penalties,
fees, expenses and costs (including administrative oversight costs, natural
resource damages and remediation costs), whether contingent or otherwise,
arising out of or relating to (a) compliance or non-compliance with any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release of any Hazardous Materials or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in limited liability companies, beneficial
interests in trusts or other equity ownership interests in any Persons, and any
warrants, options or other rights entitling the holders thereof to purchase or
acquire any such equity interests.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with Goodyear or any Subsidiary, is treated as a
single employer under Section 414(b) or (c) of the Code or, solely for purposes
of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to any
Plan (other than an event for which the 30-day notice period is waived or an
event described in Section 4043.33 of Title 29 of the Code of Federal
Regulations); (b) the existence with respect to any Plan of an "accumulated
funding deficiency" (as defined in Section 412 of the Code or Section 302 of
ERISA) as to which a waiver has not been obtained; (c) the incurrence by
Goodyear, a Subsidiary or any ERISA Affiliate of any liability under Title IV of
ERISA with respect to the termination of any Plan; (d) the treatment of a Plan
amendment as a termination under Section 4041 of ERISA; (e) any event or
condition, other than the Transactions, that would be materially likely to
result in the termination of, or the appointment of a trustee to administer, any
Plan or Multiemployer Plan under Section 4042 of ERISA; (f) the receipt by
Goodyear, a Subsidiary or any ERISA Affiliate from the PBGC or a plan
administrator of any notice of an intention to terminate any Plan or to appoint
a trustee to administer any Plan; (g) the incurrence by Goodyear, any Subsidiary
or any ERISA Affiliate of any liability under Title IV of ERISA with respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (h)
the receipt by Goodyear, any Subsidiary or any ERISA Affiliate of any notice, or
the receipt by any Multiemployer Plan from Goodyear, any Subsidiary or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.
9
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"European J.V." means Goodyear Dunlop Tires Europe B.V., a
corporation organized under the laws of The Netherlands.
"Event of Default" has the meaning assigned to such term in
Section 7.01.
"Excess Cash Rationalization Charges" means, for any period,
cash expenditures of Goodyear and its Consolidated Subsidiaries with respect to
Rationalization Charges recorded on Goodyear's consolidated income statement
after the date hereof; provided, however, that for such cash expenditures
incurred after September 1, 2003, Excess Cash Rationalization Charges shall only
include the aggregate amount of such cash expenditures which exceed the sum of
$100,000,000 (or $50,000,000 if incurred prior to December 31, 2003) plus 25% of
the Net Cash Proceeds from the issuance and sale of its Equity Interests or
Indebtedness pursuant to Section 6.01(q).
"Excluded Subsidiary" means any Subsidiary with only nominal
assets and no operations.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender, or any other recipient of any payment to be made by or on
account of any obligation of any Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the jurisdiction under the
laws of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes or any similar tax imposed by any
jurisdiction described in clause (a) above and (c) (i) any withholding tax that
is imposed by the United States on amounts payable to a Foreign Lender (other
than an assignee pursuant to a request by the European J.V. under Section
2.16(b)) at the time such Foreign Lender first becomes a party to this Agreement
(or designates a new lending office), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from such
Borrower with respect to such withholding tax pursuant to Section 2.14(a) or
(ii) any withholding tax that is imposed by the United States on amounts payable
to a Foreign Lender that is attributable to such Foreign Lender's failure to
comply with Section 2.14(e).
"Existing Credit Agreements" means (a) the Amended and
Restated 364-Day Credit Agreement dated as of August 13, 2002 among Goodyear,
the lenders party thereto and JPMorgan Chase Bank, as administrative agent and
(b) the Term Loan Agreement dated as of March 30, 2001, as amended, among
Goodyear, the lenders party thereto, JPMorgan Chase Bank, as administrative
agent for the lenders and JPMorgan Chase International Limited, as London agent
for the Lenders.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received
10
by the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"Financial Officer" of any Person means the chief financial
officer, principal accounting officer, treasurer or any assistant treasurer of
such Person.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than the United States or any political subdivision
thereof.
"Foreign Subsidiary" means any Subsidiary organized under the
laws of a jurisdiction other than the United States or any of its territories or
possessions or any political subdivision thereof.
"GAAP" means generally accepted accounting principles in the
United States or, when reference is made to financial statements of a Person
organized under the laws of a jurisdiction outside of the United States,
generally accepted accounting principles in such jurisdiction.
"Goodyear" means The Goodyear Tire & Rubber Company, an Ohio
corporation.
"Goodyear KG" means Goodyear GmbH & Co KG, a partnership
organized under the laws of the Federal Republic of Germany.
"Governmental Authority" means the government of the United
States, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Grantors" means the European J.V. and the Subsidiary
Guarantors, including each Person listed as a European Facilities Guarantor or
European Facilities Grantor on the signature pages to the Guarantee and
Collateral Agreement or that has become a European Guarantor or European
Facilities Grantor pursuant to Section 13.14 thereof.
"GDTG" means Goodyear Dunlop Tires Germany GmbH, a corporation
organized under the laws of the Federal Republic of Germany.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness of the payment
thereof, (c) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or (d) as an account party in respect
of any letter of credit or letter of guaranty issued to support such
Indebtedness; provided, that the term Guarantee shall not include endorsements
for collection or deposit in the ordinary course of business. The amount of any
Guarantee of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
11
respect of which such Guarantee is made and (b) the maximum amount for which
such guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee, unless such primary obligation and the maximum amount
for which such guaranteeing person may be liable are not stated or determinable,
in which case the amount of such Guarantee shall be such guaranteeing person's
maximum reasonably anticipated liability (assuming such person is required to
perform) in respect thereof as determined in such person's good faith.
"Guarantee and Collateral Agreement" means the Guarantee and
Collateral Agreement among Goodyear, the Subsidiary Guarantors, the Grantors,
certain other Subsidiaries, the Lenders and the Collateral Agent substantially
in the form of Exhibit F hereto.
"Hazardous Materials" means (A) petroleum products and
byproducts, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, radon gas, chlorofluorocarbons and all other ozone-depleting
substances; and (B) any pollutant or contaminant or any hazardous, toxic,
radioactive or otherwise regulated chemical, material, substance or waste that
is prohibited, limited or regulated pursuant to any applicable Environmental
Law.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding accounts payable incurred in the ordinary course of business), (e)
all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right to be secured by) any Lien on property owned
or acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (f) all Guarantees by such Person of Indebtedness of others, (g)
all Capital Lease Obligations of such Person, (h) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit
and letters of guaranty and (i) all Securitization Transactions of such Person.
The Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general partner) to
the extent such Person is liable therefor as a result of such Person's ownership
interest in such entity.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning set forth in Section 9.03.
"Information Memorandum" means the Confidential Information
Memorandum dated March 5, 2003 relating to the Goodyear and the Transactions.
"Intellectual Property" means all intellectual and similar
property of every kind and nature, including inventions, designs, patents,
copyrights, licenses, trademarks, trade secrets, confidential or proprietary
technical and business information, know-how, show-how or other data or
information, software and databases and all embodiments or fixations thereof and
related documentation, registrations and franchises, and all additions,
improvements and accessions to, and books and records describing or used in
connection with, any of the foregoing.
"Interest Election Request" means a request by any Borrower to
convert or continue a Revolving Borrowing or Term Borrowing in accordance with
Section 2.05 in substantially the form of Exhibit B hereto.
12
"Interest Payment Date" means (a) with respect to any ABR
Loan, the last day of each March, June, September and December and (b) with
respect to any Eurodollar Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as any Borrower may elect; provided that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period pertaining to a Eurodollar Borrowing that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and, in the case of a Borrowing, thereafter shall be the
effective date of the most recent conversion or continuation of such Borrowing.
"Investments" has the meaning assigned to such term in Section
6.05.
"JPMCB" means JPMorgan Chase Bank, and its successors.
"J.V. Loan Parties" means the European J.V. and the Subsidiary
Guarantors.
"J.V. Subsidiary" means any Subsidiary of the European J.V.
"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption.
"LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Dow Xxxxx Market
Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason with respect to any
Eurodollar Borrowing, then the "LIBO Rate" with respect to such Eurodollar
Borrowing for such Interest Period shall be the rate (rounded upwards, if
necessary, to the next 1/100 of 1%) at which dollar deposits of $5,000,000 and
for a maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds in the
London interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, French delegation of claims, pledge, hypothecation,
encumbrance, charge or security interest in,
13
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loans" means the loans made by the Lenders to any Borrower
pursuant to this Agreement.
"Luxembourg Finance" means Goodyear Finance Holdings S.A., a
societe anonyme organized under the laws of Luxembourg.
"Lux Tires" means Goodyear Luxembourg Tires S.A., a societe
anonyme organized under the laws of Luxembourg.
"Majority Lenders" shall mean, at any time, Lenders having
aggregate Revolving Credit Exposures, Term Loans and unused Commitments
representing at least a majority of the sum of the total Revolving Credit
Exposures, Term Loans and unused Commitments at such time.
"Material Adverse Change" means a material adverse change in
or effect on (a) the business, operations, properties, assets or financial
condition (including as a result of the effects of any contingent liabilities
thereon) of Goodyear and the Subsidiaries, taken as a whole, (b) the ability of
the Credit Parties, taken as a whole, to perform their obligations under this
Agreement and the other Credit Documents that are material to the rights or
interests of the Lenders or (c) the rights of or benefits available to the
Lenders under this Agreement and the other Credit Documents that are material to
the interests of the Lenders.
"Material Indebtedness" means Indebtedness (other than the
Loans), or obligations in respect of one or more Swap Agreements, of any one or
more of Goodyear and the Subsidiaries in an aggregate principal amount exceeding
$25,000,000. For purposes of determining Material Indebtedness, the "principal
amount" of the obligations of Goodyear or any Subsidiary in respect of any Swap
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that Goodyear or such Subsidiary would be required to
pay if such Swap Agreement were terminated at such time, calculated in
accordance with the terms of such Swap Agreement.
"Material Subsidiary" means, at any time, each Subsidiary
other than Subsidiaries that do not represent more than 1% for any such
individual Subsidiary, or more than 5% in the aggregate for all such
Subsidiaries, of either (a) Consolidated Total Assets or (b) Consolidated
Revenue for the period of four fiscal quarters most recently ended.
"Maturity Date" means April 30, 2005.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"NAIC" means the National Association of Insurance
Commissioners.
"Net Cash Proceeds" means, with respect to any Prepayment
Event, (a) the cash proceeds received in respect of such event including (i) any
cash received in respect of any non-cash proceeds, but only as and when
received, (ii) in the case of a casualty, insurance proceeds received, and (iii)
in the case of a condemnation or similar event, condemnation awards
14
and similar payments received, net of (b) the sum of (i) all reasonable fees and
out-of-pocket expenses (including any legal, title and recording tax expenses)
paid by the European J.V. and the J.V. Subsidiaries to third parties (other than
Affiliates) in connection with such event, (ii) in the case of a sale, transfer
or other disposition of an asset (including pursuant to a sale and leaseback
transaction or a casualty or a condemnation or similar proceeding), the amount
of all payments required to be made by the European J.V. and the J.V.
Subsidiaries as a result of such event to repay Indebtedness (other than Loans)
secured by such asset or otherwise subject to mandatory prepayment as a result
of such event, and (iii) the amount of all taxes paid (or reasonably estimated
to be payable) by the European J.V. and the J.V. Subsidiaries (including taxes
required to be paid or withheld in respect of the transfer of amounts from the
recipient thereof to a Borrower), and the amount of any reserves established by
the European J.V. and the J.V. Subsidiaries to fund contingent liabilities
reasonably estimated to be payable, in each case during the year that such event
occurred or the next succeeding year and that are directly attributable to such
event (as determined reasonably and in good faith by a Financial Officer of the
European J.V. or Goodyear); provided that, to the extent and at the time any
such amounts are released to the European J.V. or any European J.V. Subsidiary
from such reserve, such amounts shall constitute Net Cash Proceeds.
Notwithstanding the foregoing, amounts that would otherwise constitute Net Cash
Proceeds shall not constitute Net Cash Proceeds to the extent that (x) currency
or foreign exchange controls prevent the repatriation of such amounts to the
Term Borrowers, (y) the recipient of such amounts is not a Wholly Owned
Subsidiary and (1) the consent of any Person other than the Goodyear or any
Wholly Owned Subsidiary is required by applicable law or the terms of any
organizational document of such non-Wholly Owned Subsidiary or other agreement
of such Subsidiary or any Affiliate of such Subsidiary in order for such
Subsidiary to transfer such amounts to a Term Borrower (whether by distribution,
loan or advance, repayment of intercompany Indebtedness or other commercially
reasonable means) and (2) Goodyear and the European J.V. endeavored in good
faith to obtain such consents and such consents shall not have been obtained (to
permit the transfer of such proceeds by any of such means) or (z) capital
maintenance, corporate benefit or over collateralization rules prevent the
repayment of such amounts by, or repatriation of such amounts for repayment to,
the Term Borrowers. The Net Cash Proceeds received by any non-Wholly Owned
Subsidiary shall be deemed to equal the amount determined as set forth above
multiplied by the European J.V.'s aggregate direct or indirect percentage
ownership of such Subsidiary.
"New Facilities Credit Agreements" means the US Revolving
Facility Agreement, the US Term Facility Agreement and the ABL Facilities
Agreement.
"New Facilities Documents" means the New Facilities Credit
Agreements, the Guarantee and Collateral Agreement and the other Security
Documents (as such term is defined in any New Facilities Credit Agreement).
"New Facilities Prepayment Event" means any "Prepayment Event"
as defined under any New Facilities Credit Agreement.
"Obligations" means the Revolving Obligations and the Term
Obligations.
"Other Taxes" means any and all present or future stamp,
documentary, excise, recording, transfer, sales, property or similar taxes,
charges or levies arising from any payment made under any Credit Document or
from the execution, delivery or enforcement of, or otherwise with respect to,
any Credit Document.
"Participant" has the meaning assigned to such term in Section
9.04.
15
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by
more than 30 days (or any longer grace period available under the terms
of the applicable underlying obligation) or are being contested;
(c) Liens created and pledges and deposits made in the
ordinary course of business in compliance with workers' compensation,
unemployment insurance and other social security laws or regulations;
(d) Liens created and deposits made to secure the performance
of bids, trade contracts, leases, statutory obligations, appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business, and Liens created and deposits made
prior to the date hereof in the ordinary course of business to secure
the performance of surety bonds;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default;
(f) supplier's liens in inventory, other assets supplied or
accounts receivable that result from retention of title or extended
retention of title arrangements arising in connection with purchases of
goods in the ordinary course of business; and
(g) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property and other Liens incidental to the conduct
of business or ownership of property that arise automatically by
operation of law or arise in the ordinary course of business and that
do not materially detract from the value of the property of Goodyear
and the Subsidiaries or of the Collateral, in each case taken as a
whole, or materially interfere with the ordinary conduct of business of
Goodyear and the Subsidiaries, taken as a whole, or otherwise adversely
affect in any material respect the rights or interests of the Lenders;
provided that (except as provided in clause (d) above) the term "Permitted
Encumbrances" shall not include any Lien securing Indebtedness for borrowed
money.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
(or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States), in each case maturing
within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, ratings of A1 from S&P and P1 from Moody's;
16
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof and issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any commercial bank
organized under the laws of the United States or any State thereof
which has a short term deposit rating of A1 from S&P and P1 from
Moody's and has a combined capital and surplus and undivided profits of
not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution described in clause (c)
above;
(e) money market funds that (i) comply with the criteria set
forth in Securities and Exchange Commission Rule 2a-7 under the
Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by
Moody's and (iii) have portfolio assets of at least $5,000,000,000; and
(f) in the case of any Subsidiary that is not a US Subsidiary,
(i) marketable direct obligations issued or unconditionally guaranteed
by the sovereign nation in which such Subsidiary is organized and is
conducting business or issued by any agency of such sovereign nation
and backed by the full faith and credit of such sovereign nation, in
each case maturing within one year from the date of acquisition, so
long as the indebtedness of such sovereign nation is rated at least A
by S&P or A2 by Moody's or carries an equivalent rating from a
comparable foreign rating agency or (ii) investments of the type and
maturity described in clauses (b) through (e) of foreign obligors,
which investments or obligors have ratings described in such clauses or
equivalent ratings from comparable foreign rating agencies.
"Permitted Preferred Stock" has the meaning assigned to such
term in Section 6.01.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV or Section 302 of
ERISA or Section 412 of the Code, and in respect of which Goodyear, any
Subsidiary or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Prepayment Event" means:
(a) any sale, transfer or other disposition (including
pursuant to a Sale and Leaseback Transaction other than a Sale and
Leaseback Transaction consummated not more than 180 days after the
acquisition or completion of construction of the assets subject
thereto) of any property or assets of the European J.V. or any J.V.
Subsidiary to any Person other than the European J.V. or any J.V.
Subsidiary, other than (i) dispositions described in clauses (a), (b),
(d) and (i) of Section 6.06 and (ii) that results in Net Cash Proceeds
not exceeding $5,000,000 (provided that at all times after the
aggregate Net Cash Proceeds known by a Financial Officer of Goodyear to
have been received in respect of all such transactions is in excess of
$25,000,000, each such
17
transaction under this clause (ii) shall constitute a Prepayment Event
with respect to all such Net Cash Proceeds in excess of $25,000,000);
or
(b) any casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar proceeding
of, any property or asset of the European J.V. or any J.V. Subsidiary,
but only to the extent that the Net Cash Proceeds from such event
exceed $5,000,000 and then, if the European J.V. shall notify the
Administrative Agent that it or the applicable J.V. Subsidiary intends
to apply such Net Cash Proceeds to repair, restore or replace the
property or asset that shall have been damaged or taken, such event
shall constitute a Prepayment Event only if such repair, restoration or
replacement shall not have commenced within 180 days after such event
and the Net Cash Proceeds of such event will be deemed for purposes of
Section 2.08 to equal the amount not so applied; or
(c) the incurrence by the European J.V. or any J.V. Subsidiary
of any Indebtedness, other than Indebtedness permitted by Section 6.01,
or the issuance and sale by the European J.V. or any J.V. Subsidiary of
any Equity Interests.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by JPMCB (or any successor Administrative Agent
appointed or chosen pursuant to Article VIII hereof) as its prime rate in effect
at its principal office in New York City. Each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Principal European Subsidiary" means, (a) any J.V. Subsidiary
(other than a Borrower) organized under the laws of the Federal Republic of
Germany, Luxembourg, the Republic of France or the United Kingdom with
consolidated assets having a book value in excess of $10,000,000 as of December
31, 2002, or if later, as of the end of the most recent fiscal quarter for which
financial statements have been delivered pursuant to Section 5.01(a) or (b)
(other than any Special Excluded Subsidiary) or (b) any subsidiary of Luxembourg
Finance organized under the laws of Luxembourg with consolidated assets having a
book value in excess of $10,000,000 as of December 31, 2002, or if later, as of
the end of the most recent fiscal quarter for which financial statements have
been delivered pursuant to Section 5.01(a) or (b).
"Rationalization Charges" means, for any period, cash and
non-cash charges related to rationalization actions designed to reduce capacity,
eliminate redundancies and reduce costs. Rationalization Charges will be
computed by a method consistent with that used in preparing the financial
statements referred to in Section 3.04.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents, counsel and other advisors of such Person and such Person's Affiliates.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in Goodyear or any Subsidiary, or any payment (whether in cash,
securities or other property) on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of any such Equity Interests
or any option, warrant or other right to acquire any such Equity Interests.
18
"Revolving Availability Period" means the period from and
including the Effective Date to but excluding the earlier of (a) the Maturity
Date and (b) the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans hereunder, expressed as an
amount representing the maximum permitted aggregate amount of such Lender's
Revolving Credit Exposure hereunder, as such commitment may be (a) reduced or
increased from time to time pursuant to Section 2.06 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Revolving
Commitment is set forth on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender shall have assumed its Revolving Commitment, as
applicable. The initial aggregate amount of the Lenders' Revolving Commitments
is $250,000,000.
"Revolving Credit Exposure" means, with respect to any Lender
at any time, the aggregate outstanding principal amount of such Lender's
Revolving Loans at such time.
"Revolving Lender" means a Lender with a Revolving Commitment
or, if the Revolving Commitments have terminated or expired, a Lender with
Revolving Exposure.
"Revolving Loan" means a Loan made pursuant to clause (a) of
Section 2.01.
"Revolving Obligations" means (a) the due and punctual payment
of (i) the principal of and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Revolving Loans, when and as due, whether at maturity, by acceleration, upon
one or more dates set for prepayment or otherwise and (ii) all other monetary
obligations of the Credit Parties to any of the Secured Parties under this
Agreement and each of the other Credit Documents, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), save in each case insofar as
the same relate to, or to any Guarantee of, the Term Loans or any amount payable
in respect thereof (and for the avoidance of doubt, the fee payable by the
European J.V. pursuant to Section 2.09(c) does not relate to the Term Loans),
(b) the due and punctual performance of all other nonmonetary obligations of the
Credit Parties to any of the Secured Parties under this Agreement and the other
Credit Documents (other than the performance of obligations in respect of, or in
respect of any Guarantee in respect of, the Term Loans or any amount payable in
respect thereof), (c) the due and punctual payment and performance of all
obligations of the European J.V., any J.V. Subsidiary, Luxembourg Finance or any
subsidiary of Luxembourg Finance under each Swap Agreement that (i) shall have
been in effect on the Effective Date with a counterparty that shall have been a
Revolving Lender or an Affiliate of a Revolving Lender as of the Effective Date
or (ii) shall have been entered into after the Effective Date with any
counterparty that shall have been a Revolving Lender or an Affiliate of a
Revolving Lender at the time such Swap Agreement was entered into and (d) the
due and punctual payment and performance of all obligations of the European J.V.
or any J.V. Subsidiary arising out of or in connection with cash management or
similar services provided by any Revolving Lender.
"Sale and Leaseback Transaction" means any arrangement whereby
Goodyear or a Subsidiary shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereinafter acquired, and
thereafter rent or lease from the buyer or
19
transferee property that it intends to use for substantially the same purpose or
purposes as the property sold or transferred, other than any such transaction
entered into with respect to any property or any improvements thereto at the
time of, or within 180 days after, the acquisition or completion of construction
of such property or such improvements (or, if later, the commencement of
commercial operation of any such property), as the case may be, to finance the
cost of such property or such improvements, as the case may be.
"SAVA" means Sava Joint Venture Holding d.o.o., a corporation
organized under the laws of the Republic of Slovenia.
"Secured Parties" means the Administrative Agent, the
Collateral Agent and each Lender.
"Securitization Transaction" means, with respect to any
Person, (i) any transfer, assignment or pledge by such Person of accounts
receivable, rights to future lease payments or residuals or other financial
assets, and related property, or interests therein (a) to a trust, partnership,
corporation or other entity, which transfer is funded in whole or in part,
directly or indirectly, by the incurrence or issuance by the transferee or any
successor transferee of Indebtedness or securities that are to receive payments
from, or that represent interests in, the cash flow derived from such accounts
receivable or interests, or (b) directly to one or more investors or other
purchasers, (ii) any Indebtedness of such Person secured substantially entirely
by accounts receivable, rights to future lease payments or residuals or other
financial assets, and related property or (iii) any factoring transaction
involving substantially entirely accounts receivable, rights to future lease
payments or residuals or other financial assets, and related property. The
amount of any Securitization Transaction shall be deemed at any time to be the
aggregate outstanding principal amount of the Indebtedness or securities
referred to in the preceding sentence or, if there shall be no such principal
amount, the equivalent outstanding amount of the funded investment.
"Security Agreement" means any security agreement, pledge
agreement, charge agreement, mortgage, debenture or similar agreement,
instrument or security document, or any supplement thereto creating a Lien on
any assets or rights to secure any of the Obligations.
"Security Documents" means the Guarantee and Collateral
Agreement, the Security Agreements and each other instrument or document
delivered pursuant to Section 5.08 to secure any of the Obligations.
"Special Excluded Subsidiaries" means KDIS Distribution, Vulco
France and Societe Isseenne de Participations.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject, with respect to the Adjusted LIBO Rate, for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation.
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The Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which are consolidated with those of
the parent in the parent's consolidated financial statements in accordance with
GAAP as of such date, as well as any other corporation, limited liability
company, partnership, association or other entity of which securities or other
ownership interests representing more than 50% of the equity or more than 50% of
the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held by
the parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.
"Subsidiary" means any subsidiary of Goodyear.
"Subsidiary Guarantors" means (a) each Borrower (other than
the European J.V.), (b) each J.V. Subsidiary (other than a Borrower) that is, or
is required to be, a party to the Guarantee and Collateral Agreement, (c)
Luxembourg Finance and (d) each subsidiary of Luxembourg Finance that is, or is
required to be, a party to the Guarantee and Collateral Agreement.
"Swap Agreement" means any agreement, including any master
agreement, with respect to any swap, forward, future or derivative transaction
or option or similar agreement involving, or settled by reference to, one or
more rates or prices for one or more currencies, commodities, equity or debt
instruments or securities, or economic, financial or pricing indices or measures
of economic, financial or pricing risk or value or any similar transaction or
any combination of these transactions.
"Syndication Agent" means Deutsche Bank AG, in its capacity as
syndication agent hereunder.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Borrower" means Goodyear KG, Dunlop KG or GDTG.
"Term Lender" means a Lender with a Term Loan Commitment or
any outstanding Term Loan.
"Term Loan" means a Loan made pursuant to clause (b) of
Section 2.01.
"Term Loan Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Term Loans hereunder on the Effective
Date, expressed as amount representing the maximum aggregate principal amount of
the Term Loans to be made by such Lender hereunder, as such commitment may be
(a) reduced or increased from time to time pursuant to Section 2.06 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender's Term Loan
Commitment is set forth on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender shall have assumed its Term Loan Commitment, as
applicable. The initial aggregate amount of the Lenders' Term Loan Commitments
is $400,000,000.
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"Term Obligations" means (a) the due and punctual payment of
(i) the principal of and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Term Loans, when and as due, whether at maturity, by acceleration, upon one
or more dates set for prepayment or otherwise and (ii) all other monetary
obligations of the Credit Parties to any of the Secured Parties under this
Agreement and each of the other Credit Documents, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), save in each case insofar as
the same relate to, or to any Guarantee of, the Revolving Loans or any amount
payable in respect thereof, (b) the due and punctual performance of all other
nonmonetary obligations of the Credit Parties to any of the Secured Parties
under this Agreement and the other Credit Documents (other than the performance
of obligations in respect of, or in respect of any Guarantee in respect of, the
Revolving Loans or any amount payable in respect thereof), (c) the due and
punctual payment and performance of all obligations of the European J.V., any
J.V. Subsidiary, Luxembourg Finance or any subsidiary of Luxembourg Finance
under each Swap Agreement that (i) shall have been in effect on the Effective
Date with a counterparty that shall have been a Term Lender (which is not also a
Revolving Lender) or an Affiliate of such a Lender as of the Effective Date or
(ii) shall have been entered into after the Effective Date with any counterparty
that shall have been a Term Lender (which is not also a Revolving Lender) or an
Affiliate of such a Lender at the time such Swap Agreement was entered into and
(d) the due and punctual payment and performance of all obligations of the
European J.V. or any J.V. Subsidiary arising out of or in connection with cash
management or similar services provided by any Term Lender (which is not also a
Revolving Lender). However, any amount or obligation that is a Revolving
Obligation shall not be a Term Obligation.
"Transactions" means the execution, delivery and performance
by Goodyear and the Borrowers of this Agreement and by Goodyear, the European
J.V., the Subsidiary Guarantors, the US Subsidiary Guarantors and the Grantors,
as applicable, of the other Credit Documents, the borrowing of the Loans, the
creation of the Liens provided for in the Security Documents and the other
transactions contemplated hereby.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"US Obligations" means the Obligations as defined in the US
Term Facility Agreement and the Obligations as defined in the US Revolving
Facility Agreement.
"US Revolving Facility Agreement" means the $750,000,000
Revolving Credit Agreement dated as of the date hereof among Goodyear, certain
lenders, JPMCB, as administrative agent.
"US Subsidiary" means any Subsidiary that is not a Foreign
Subsidiary.
"US Subsidiary Guarantors" means each US Subsidiary (other
than the Excluded Subsidiaries and the Consent Subsidiaries).
22
"US Term Facility Agreement" means the $645,454,545 Term Loan
Agreement dated as of the date hereof among Goodyear, certain lenders, and
JPMCB, as administrative agent and BNP Paribas, as syndication agent.
"Wholly Owned Subsidiary" of any person shall mean a
subsidiary of such person of which securities (except for directors' qualifying
shares) or other ownership interests representing 100% of the Equity Interests
are, at the time any determination is being made, owned, controlled or held by
such person or one or more wholly owned Subsidiaries of such person or by such
person and one or more wholly owned Subsidiaries of such person.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class
and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type
(e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar
Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, but shall not be deemed to include the
subsidiaries of such Person unless express reference is made to such
subsidiaries, (c) the words "herein", "hereof" and "hereunder", and words of
similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e)
the words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the European J.V. notifies the Administrative Agent that the European
J.V. requests an amendment to any provision hereof to eliminate the effect of
any change occurring after the date hereof in GAAP or in the application thereof
on the operation of such provision (or if the Administrative Agent notifies the
European J.V. and Goodyear that the Majority Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
23
SECTION 1.05. Foreign Currency Translation. For purposes of
determining compliance as of any date with Section 6.01, 6.02, 6.03, 6.05 or
6.06, amounts incurred or outstanding in currencies other than dollars shall be
translated into dollars at the exchange rates in effect on the first Business
Day of the fiscal quarter in which such determination occurs or in respect of
which such determination is being made, as such exchange rates shall be
determined in good faith by Goodyear. No Default or Event of Default shall arise
as a result of any limitation set forth in dollars in Section 6.01, 6.02, 6.03,
6.05 or 6.06 being exceeded solely as a result of changes in currency exchange
rates from those rates applicable on the first day of the fiscal quarter in
which such determination occurs or in respect of which such determination is
being made.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions
set forth herein, each Lender agrees (a) to make Revolving Loans to any Borrower
from time to time during the Revolving Availability Period in dollars in an
aggregate principal amount that will not result in such Lender's Revolving
Credit Exposure exceeding such Lender's Revolving Commitment and (b) (i) to make
a Term Loan to Goodyear KG on the Effective Date in dollars in a principal
amount not exceeding its Applicable Term Percentage of $272,000,000, (ii) to
make a Term Loan to Dunlop KG on the Effective Date in a principal amount not
exceeding its Applicable Term Percentage of $70,000,000 and (iii) to make a Term
Loan to GDTG on the Effective Date in a principal amount not exceeding its
Applicable Term Percentage of $58,000,000. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrowers may borrow,
prepay and reborrow Revolving Loans. Amounts repaid in respect of Term Loans may
not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be
made as part of a Borrowing consisting of Loans of the same Class and Type made
by the Lenders ratably in accordance with their respective Commitments of the
applicable Class. The failure of any Lender to make any Loan required to be made
by it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.11, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
applicable Borrower may request in accordance herewith; provided that all
Borrowings made on the Effective Date must be made as ABR Borrowings. Each
Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the relevant Borrower
to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $10,000,000. At the time that
each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $1,000,000 and not less than $5,000,000; provided,
that an ABR Revolving Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Revolving Commitments. Borrowings of more
than one Type and Class may be outstanding at the same time; provided that there
shall not at any time be more than a total of 20 Eurodollar Borrowings
outstanding.
24
(d) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION 2.03. Requests for Borrowings. To request a Revolving
Borrowing or Term Borrowing, the applicable Borrower, or the European J.V. on
behalf of such Borrower, shall notify the Administrative Agent of such request
by telephone (a) in the case of a Eurodollar Borrowing, not later than 3:00
p.m., New York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 3:00 p.m., New
York City time, one Business Day before the date of the proposed Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request signed by the applicable Borrower or by the European J.V. on
behalf of such Borrower. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrower requesting such Borrowing (or on whose
behalf the European J.V. is requesting such Borrowing);
(ii) whether the requested Borrowing is to be a Revolving
Borrowing or a Term Borrowing;
(iii) the aggregate amount of the requested Borrowing;
(iv) the date of such Borrowing, which shall be a Business
Day;
(v) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(vi) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(vii) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.04.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the relevant Borrower shall
be deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:30 p.m., New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will make such Loans
available to the relevant Borrower by promptly crediting the amounts so
received, in like funds, to an account designated by such Borrower in the
applicable Borrowing Request (which account, in the case of Goodyear Luxembourg
Tires S.A., shall be a
25
dollar denominated account held by Goodyear Luxembourg Tires S.A. at a bank in
New York City).
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the relevant
Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and such Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to such Borrower to but excluding the date of payment to the Administrative
Agent, at (i) in the case of such Lender, the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation or (ii) in the case of
such Borrower, the interest rate applicable to ABR Loans. If such Lender pays
such amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing. It is agreed that no payment by any
Borrower under this paragraph will be subject to any break-funding payment under
Section 2.13.
SECTION 2.05. Interest Elections. (a) Each Revolving Borrowing
and Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
relevant Borrower may elect to convert such Borrowing to a different Type or to
continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The relevant
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the European
J.V. on behalf of the applicable Borrower, shall notify the Administrative Agent
of such election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if such Borrower were requesting a Revolving
Borrowing or Term Borrowing of the Type resulting from such election to be made
on the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request
signed by the European J.V. on behalf of the applicable Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
26
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing,
the Interest Period to be applicable thereto after giving effect to
such election, which shall be a period contemplated by the definition
of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the relevant Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the relevant Borrower fails to deliver a timely
Interest Election Request with respect to a Eurodollar Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such Borrowing is
repaid as provided herein, at the end of such Interest Period such Borrowing
shall be converted to an ABR Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Majority Lenders, so notifies the
European J.V., then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing
and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.06. Termination of Commitments; Reductions of
Commitments. (a) Unless previously terminated, (i) the Term Loan Commitments
shall terminate at 5:00 p.m., New York City time, on the Effective Date and (ii)
the Revolving Commitments shall terminate on the Maturity Date.
(b) The European J.V. may at any time terminate, or from time
to time reduce, the Revolving Commitments; provided that (i) each reduction of
the Revolving Commitments shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 and (ii) the European J.V. shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.08,
the total Revolving Credit Exposures would exceed the total Revolving
Commitments.
(c) The European J.V. shall notify the Administrative Agent of
any election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
European J.V. pursuant to this Section shall be irrevocable; provided that a
notice of termination of the Revolving Commitments delivered by the European
J.V. may state that such notice is conditioned upon the effectiveness of other
credit facilities, in which case such notice may be revoked by the European J.V.
(by notice to the Administrative Agent on or prior to the specified effective
date) if such condition is not satisfied. Any termination or reduction of the
Commitments of any Class shall be
27
permanent. Each reduction of the Commitments of any Class shall be made ratably
among the Lenders in accordance with their respective Commitments of such Class.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) Each
Borrower hereby unconditionally promises to pay on the Maturity Date (i) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Revolving Borrowing of such Borrower and (ii) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Term Borrowing of such Borrower.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of each Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein (including any failure to record the making or repayment of
any Loan) shall not in any manner affect the obligation of any Borrower to repay
the Loans in accordance with the terms of this Agreement or prevent any
Borrower's obligations in respect of Loans from being discharged to the extent
of amounts actually paid in respect thereof.
(e) Any Lender may request that Loans of any Class made by it
be evidenced by a promissory note. In such event, each Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) in substantially the form set forth in Exhibit C-1 hereto, in the case
of Revolving Loans, or set forth in Exhibit C-2 hereto, in the case of Term
Loans. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section 9.04)
be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.08. Prepayment of Loans. (a) Any Borrower shall have
the right at any time and from time to time to prepay any Borrowing of such
Borrower in whole or in part, subject to prior notice in accordance with
paragraph (e) of this Section.
(b) In the event and on each occasion that the sum of the
Revolving Credit Exposures exceeds the total Revolving Commitments, the European
J.V. shall (and/or shall cause other Borrowers to) prepay Revolving Borrowings
in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Cash
Proceeds are received by or on behalf of the European J.V. or any J.V.
Subsidiary in respect of any Prepayment Event, any or all the Term Borrowers
shall, not later than the fifth Business Day after such Net Cash Proceeds are
received, prepay Term Borrowings in an aggregate principal amount equal to 75%
28
(or, in the case of any event described in clause (c) of the definition of
Prepayment Event, 50%) of such Net Cash Proceeds.
(d) Prior to any optional or mandatory prepayment of
Borrowings hereunder, the European J.V. shall select the Borrowing or Borrowings
to be prepaid and shall specify such selection in the notice of such prepayment
pursuant to paragraph (e) of this Section.
(e) The European J.V. shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 3:00 p.m., New York City
time, three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment. Each such notice shall be
irrevocable, shall specify the prepayment date and the principal amount of each
Borrowing or portion thereof to be prepaid; provided that, if a notice of
prepayment is given in connection with a conditional notice of termination of
the Revolving Commitments as contemplated by Section 2.06, then such notice of
prepayment may be revoked if such notice of termination is revoked in accordance
with Section 2.06. Promptly following receipt of any such notice relating to a
Borrowing, the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing shall be in an amount that
would be permitted in the case of an advance of a Borrowing of the same Type as
provided in Section 2.02. Each prepayment of a Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.10.
SECTION 2.09. Fees. (a) The European J.V. agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the rate of 0.75% per annum on the daily unused amount of the
Revolving Commitment of such Lender during the period from and including the
date hereof to but excluding the date on which such Revolving Commitment
terminates. Accrued commitment fees shall be payable in arrears on the last day
of March, June, September and December of each year and on the date on which the
Revolving Commitments terminate, commencing on the first such date to occur
after the date hereof. All commitment fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(b) Goodyear agrees to pay (or to cause the European J.V. to
pay) to the Administrative Agent, for its own account, fees in the amounts and
at the times separately agreed upon between Goodyear and the Administrative
Agent.
(c) If Loans remain outstanding under the US Term Loan
Agreement on April 30, 2004, the European J.V. agrees to pay to the
Administrative Agent for the account of each Lender on such date a fee equal to
1.00% (or if the aggregate outstanding principal amount of the loans under the
US Term Loan Agreement shall have been reduced to an amount not greater than
$200,000,000 as of such date, .75%) of the sum of the aggregate principal amount
of such Lender's outstanding Term Loans at such time plus the amount of such
Lender's Revolving Commitment, whether used or unused, at such time.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent for distribution, in
the case of commitment fees and participation fees, to the Lenders. Fees paid
shall not be refundable under any circumstances.
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SECTION 2.10. Interest. (a) The Loans comprising each ABR
Borrowing shall bear interest at the Alternate Base Rate plus 3.00% per annum.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus 4.00% per annum.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by any Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2.00% plus the rate otherwise applicable to such Loan as provided in
the preceding paragraphs of this Section or (ii) in the case of any other
amount, 2.00% plus the rate applicable to ABR Loans as provided in paragraph (a)
of this Section.
(d) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Revolving Commitments; provided that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.11. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate for such
Interest Period; or
(b) the Administrative Agent is advised by the Majority
Lenders that the Adjusted LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (or Lender) of
making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the European J.V. and
the Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the European J.V. and the Lenders that
the circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
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SECTION 2.12. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition (other than Taxes) affecting this Agreement or
Eurodollar Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or
otherwise) in each case by an amount deemed by such Lender to be material, then
the Borrower of such Loan will pay to such Lender such additional amount or
amounts as will compensate such Lender for such additional costs incurred or
reduction suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has had or would have the effect of reducing the rate of
return on such Lender's capital or on the capital of such Lender's holding
company, if any, in each case by an amount deemed by such Lender to be material
as a consequence of this Agreement or the Loans made by such Lender to a level
below that which such Lender or such Lender's holding company would have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the applicable Borrower (being the
Borrower in respect of the affected Commitments or of the affected Loans) will
pay to such Lender such additional amount or amounts as will compensate such
Lender or such Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case
may be, as specified in paragraph (a) or (b) of this Section shall be delivered
to the European J.V. The applicable Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof,
unless such amount is being contested by the European J.V. in good faith.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Borrowers shall
not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than 180 days prior to the date that
such Lender notifies the European J.V. of the Change in Law giving rise to such
increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the 180-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
SECTION 2.13. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section
2.08(e) and is revoked in accordance therewith), or (d) the assignment of any
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the European J.V. pursuant to
31
Section 2.16 or the CAM Exchange, then, in any such event, the Borrower of such
Loan shall compensate each Lender for the loss, cost and expense attributable to
such event. In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the European J.V. The applicable Borrower shall
pay such Lender the amount shown as due on any such certificate within 10 days
after receipt thereof, unless such amount is being contested by the European
J.V. in good faith.
SECTION 2.14. Taxes. (a) Any and all payments by or on account
of any obligation of any Borrower or any other Credit Party hereunder or under
any other Credit Document shall be made free and clear of and without deduction
for any Indemnified Taxes or Other Taxes; provided that if any Borrower or any
other Credit Party shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions of such Taxes (including
deductions applicable to additional sums payable under this Section) the
Administrative Agent or Lender (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made (and such
Borrower or such Credit Party shall pay or Goodyear shall cause such Credit
Party to pay such increased amount), (ii) such Borrower or such other Credit
Party shall make such deductions and (iii) such Borrower or such other Credit
Party shall pay the full amount deducted to the relevant Governmental Authority
in accordance with applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) The relevant Borrower shall indemnify the Administrative
Agent and each Lender within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent
or such Lender, as the case may be, on or with respect to any payment by or on
account of any obligation of such Borrower or any other Credit Party hereunder
or under any other Credit Document (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
and any penalties, interest and reasonable out-of-pocket expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the European J.V. by a Lender or by the Administrative
Agent on its own behalf or on behalf of a Lender shall be conclusive absent
manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by any Borrower or any other Credit Party to a Governmental
Authority, such Borrower shall deliver to the Administrative Agent the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
32
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of United States withholding tax under any treaty to which the
United States is a party, with respect to payments under this Agreement shall
deliver to the European J.V. (with a copy to the Administrative Agent), at the
time such Foreign Lender first becomes a party to this Agreement and at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
European J.V. as will permit such payments to be made without withholding or at
a reduced rate; provided that such Foreign Lender has received written notice
from the European J.V. advising it of the availability of such exemption or
reduction and supplying all applicable documentation.
(f) Any Lender that is entitled to an exemption from
withholding tax under the law of any jurisdiction in which a Borrower is
located, or under any treaty to which such jurisdiction is a party, with respect
to payments under this Agreement shall deliver to the European J.V. for the
account of the relevant Borrower (with a copy to the Administrative Agent), at
the time such Lender first becomes a party to this Agreement and at the time or
times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
European J.V. as will permit such payments to be made without withholding or at
a reduced rate; provided that such Lender has received written notice from the
European J.V. advising it of the availability of such exemption or reduction and
supplying all applicable documentation.
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing
of Setoffs. (a) Except as required or permitted under Section 2.04, 2.12, 2.13,
2.14, 2.16 or 9.03, each Borrowing, each payment or prepayment of principal of
any Borrowing, each payment of interest on the Loans, each payment of fees, each
reduction of the Commitments and each refinancing of any Borrowing with a
Borrowing of any Type, shall be allocated pro rata among the Lenders in
accordance with their respective Commitments (or, if such Commitments shall have
expired or been terminated, in accordance with the respective principal amounts
of their outstanding Loans). Each Lender agrees that in computing such Lender's
portion of any Borrowing to be made hereunder, the Administrative Agent may, in
its discretion, round each Lender's percentage of such Borrowing to the next
higher or lower whole dollar amount.
(b) The relevant Borrower shall make each payment required to
be made by it hereunder (whether of principal, interest or fees, or of amounts
payable under Section 2.12, 2.13 or 2.14 or otherwise) prior to 12:00 noon, New
York City time, on the date when due, in immediately available funds, without
setoff, counterclaim or other deduction. Any amounts received after such time on
any date may, in the discretion of the Administrative Agent, be deemed to have
been received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent at
its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, except that payments
pursuant to Sections 2.12, 2.13, 2.14, 2.16 and 9.03 shall be made directly to
the Persons entitled thereto. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person in appropriate
ratable shares to the appropriate recipient promptly following receipt thereof.
If any payment hereunder shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding Business Day, and, in
the case of any payment accruing interest, interest thereon shall be payable for
the period of such extension. All payments hereunder shall be made in dollars.
(c) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first,
towards payment of interest and fees then due hereunder,
33
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of
principal then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal then due to such parties.
(d) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by any Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the European J.V. or any Affiliate thereof (as to
which the provisions of this paragraph shall apply). Each Borrower consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law and under this Agreement, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Borrower rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of such Borrower in the amount of
such participation.
(e) Unless the Administrative Agent shall have received notice
from the European J.V. prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the relevant
Borrower will not make such payment, the Administrative Agent may assume that
such Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders the amount due. In
such event, if such Borrower has not in fact made such payment, then each of the
Lenders severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(f) If any Lender shall fail to make any payment required to
be made by it hereunder for the account of the Administrative Agent or any
Lender, then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations in respect of such payment until all such unsatisfied obligations
are fully paid.
SECTION 2.16. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.12 or if any Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.14, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such
34
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.12 or 2.14, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The European J.V. hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 2.12, or
if any Credit Party is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section
2.14, or if any Lender defaults in its obligation to fund Loans hereunder, then
the European J.V. may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained
in Section 9.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the European
J.V. shall have received the prior written consent of the Administrative Agent,
which consent shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee or the Borrowers, as the case may be and (iii) in
the case of any such assignment resulting from a claim for compensation under
Section 2.12 or payments required to be made pursuant to Section 2.14, such
assignment will result in a reduction in such compensation or payments.
ARTICLE III
Representations and Warranties
Goodyear represents and warrants to the Lenders as to itself
and the Subsidiaries, the European J.V. represents and warrants to the Lenders
as to itself and the J.V. Subsidiaries and each other Borrower represents and
warrants to the Lenders as to itself and its subsidiaries that:
SECTION 3.01. Organization; Powers. Goodyear and each of the
other Credit Parties is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, has all requisite power
and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, would not be reasonably
likely to result in a Material Adverse Change, is qualified to do business, and
is in good standing, in every jurisdiction where such qualification is required.
Each Subsidiary of Goodyear other than the Credit Parties is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and is qualified to do business, and is in good standing, in every
jurisdiction where such qualification is required, except for failures that,
individually or in the aggregate, would not be materially likely to result in a
Material Adverse Change.
SECTION 3.02. Authorization; Enforceability. The Transactions
to be entered into by each Borrower and each other Credit Party are within such
Borrower's or such Credit Party's powers and have been duly authorized. This
Agreement has been duly executed and delivered by Goodyear and each Borrower and
constitutes, and each other Credit Document to which any Credit Party is to be a
party, when executed and delivered by such Credit Party, will constitute, a
legal, valid and binding obligation of Goodyear, such Borrower or such Credit
Party, as the case may be, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and
35
subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. Except to
the extent that no Material Adverse Change would be materially likely to result,
the Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
are required to perfect Liens created under the Security Documents and such as
have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of Goodyear or any of the Subsidiaries or any order of
any Governmental Authority, (c) will not violate or result in a default under
any indenture, agreement or other instrument binding upon Goodyear or any of the
Subsidiaries or any of their assets and (d) will not result in the creation or
imposition of any Lien on any asset of Goodyear or any of the Subsidiaries,
except Liens created under the Credit Documents.
SECTION 3.04. Financial Statements; No Material Adverse
Change. (a) The European J.V. has heretofore furnished to the Lenders its
consolidated balance sheet and statements of income, stockholders' equity and
cash flows as of and for the fiscal year ended December 31, 2002, reported on by
PricewaterhouseCoopers, independent public accountants. Goodyear has heretofore
furnished to the Lenders a draft in substantially final form of its consolidated
balance sheet and statements of income, stockholders' equity and cash flows as
of and for the fiscal year ended December 31, 2002. Such financial statements of
the European J.V. and Goodyear present fairly, in all material respects, the
consolidated financial position and consolidated results of operations and cash
flows of the European J.V. and its Consolidated Subsidiaries and Goodyear and
its Consolidated Subsidiaries, respectively, as of such dates and for such
fiscal year in accordance with GAAP.
(b) Except as disclosed in the Disclosure Documents, since
December 31, 2002, there has been no event or condition that constitutes or
would be materially likely to result in a Material Adverse Change, it being
agreed that a reduction in any rating relating to Goodyear issued by any rating
agency shall not, in and of itself, be an event or condition that constitutes or
would be materially likely to result in a Material Adverse Change (but that
events or conditions underlying or resulting from any such reduction may
constitute or be materially likely to result in a Material Adverse Change).
(c) Except as disclosed in the Disclosure Documents, since
December 31, 2002, there has been no event or condition that constitutes or
would be materially likely to result in a material adverse change in or effect
on the business, operations, properties, assets or financial condition
(including as a result of the effects of any contingent liabilities thereon) of
the European J.V. and the J.V. Subsidiaries, taken as a whole.
SECTION 3.05. Litigation and Environmental Matters. (a) Except
as set forth in the Disclosure Documents, there are no actions, suits or
proceedings by or before any arbitrator or Governmental Authority pending or, to
the knowledge of Goodyear, threatened against or affecting Goodyear or any of
the Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that if adversely determined would be materially likely,
individually or in the aggregate, to result in a Material Adverse Change or (ii)
that involve the Credit Documents or the Transactions.
(b) Except as set forth in the Disclosure Documents, and
except with respect to matters that, individually or in the aggregate, would not
be materially likely to result in a Material
36
Adverse Change, neither Goodyear nor any of the Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows of any basis for
any Environmental Liability.
SECTION 3.06. Compliance with Laws and Agreements. Each of
Goodyear and the Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to be in compliance, individually or in the aggregate,
would not be materially likely to result in a Material Adverse Change. No Event
of Default has occurred and is continuing.
SECTION 3.07. Investment and Holding Company Status. Neither
Goodyear nor any of the Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940, as
amended, or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935, as amended.
SECTION 3.08. ERISA. Except as disclosed in the Disclosure
Documents, no ERISA Event has occurred or is reasonably expected to occur that,
when taken together with all other ERISA Events that have occurred or are
reasonably expected to occur, would be materially likely to result in a Material
Adverse Change.
SECTION 3.09. Disclosure. Neither the Information Memorandum
nor the reports, financial statements, certificates or other written information
referred to in Section 3.04 or delivered after the date hereof by or on behalf
of any Credit Party to the Administrative Agent, the Collateral Agent or any
Lender pursuant to Section 5.01 (taken together with all other information so
furnished and as modified or supplemented by other information so furnished)
contained or will contain, in each case as of the date delivered, any material
misstatement of fact or omitted or will omit to state in each case as of the
date delivered, any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information or other forward
looking information, Goodyear, the European J.V. and the other Borrowers
represent only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
SECTION 3.10. Subsidiaries. Schedule 3.10 sets forth (a) the
name and jurisdiction of organization of, and the ownership interest of the
European J.V. and its Subsidiaries in, each J.V. Subsidiary, (b) the name and
jurisdiction of organization of, and the ownership interest of Luxembourg
Finance in, each subsidiary of Luxembourg Finance and (c) identifies each J.V.
Subsidiary or subsidiary of Luxembourg Finance that is a Principal European
Subsidiary or a J.V. Loan Party or both, in each case as of the Effective Date.
Each J.V. Subsidiary with consolidated assets greater than $10,000,000 as of
December 31, 2002, is set forth on Schedule 4.01(k).
SECTION 3.11. Security Interests. (a) The Security Agreements
executed and delivered on the Effective Date, together with (i) the actions
taken on the Effective Date pursuant to Section 4.01(m) and (ii) the actions
required to be taken after the Effective Date pursuant to the Post-Closing
Letter Agreement referred to in Section 13.17 of the Guarantee and Collateral
Agreement will, subject only to filings and similar actions that may be taken by
the Collateral Agent without the delivery of any further documents or the taking
of any further actions by any
37
Credit Party, be effective under applicable law to create in favor of the
Collateral Agent for the benefit of the Secured Parties (or in favor of the
Secured Parties, as the case may be) a valid and enforceable security interest
in all the Applicable Assets of each Grantor (other than Consent Assets of the
J.V. Subsidiaries). The exclusion of the Consent Assets of the J.V. Subsidiaries
from the Collateral does not materially reduce the aggregate value of the
Collateral.
(b) None of the written information relating to the Collateral
delivered by or on behalf of any Credit Party to the Administrative Agent, the
Collateral Agent or any Lender pursuant to any provision of any Credit Document
is or will be incorrect when delivered in any respect material to the rights or
interests of the Lenders under the Credit Documents.
SECTION 3.12. Use of Proceeds. The proceeds of the Loans will
be used only for the purposes referred to in the preamble to this Agreement. No
part of the proceeds of any Loan will be used, whether directly or indirectly,
for any purpose that entails a violation of any of the Regulations of the Board,
including Regulations T, U and X.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. This Agreement shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 9.02).
(a) The Administrative Agent (or its counsel) shall have
received from Goodyear, each Borrower, the Administrative Agent, the
Collateral Agent and the Lenders either (i) counterparts of this
Agreement signed on behalf of each such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that each
such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received favorable
written opinions (addressed to the Administrative Agent, the Collateral
Agent and the Lenders and dated the Effective Date) of (i) Xxxxxxxxx &
Xxxxxxx, counsel for Goodyear, substantially in the form of Exhibit
E-1, (ii) the General Counsel, the Associate General Counsel or an
Assistant General Counsel of Goodyear, substantially in the form of
Exhibit E-2, and (iii) each of the counsel set forth in Schedule
4.01(b), in each case in a form satisfactory to the Administrative
Agent, and, in the case of each opinion referred to in this paragraph
(b), covering such other matters relating to the Credit Parties, the
Credit Documents or the Transactions as the Administrative Agent or the
Majority Lenders shall reasonably request.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of each Credit Party, the authorization by the Credit Parties
of the Transactions and any other legal matters relating to Goodyear,
the Borrowers, the other Credit Parties, the Credit Documents or the
Transactions, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.
(d) The Lenders shall have received the European J.V.'s
consolidated statements of income, stockholders' equity and cash flows
as of and for the fiscal year ended
38
December 31, 2002, reported on by PricewaterhouseCoopers, independent
public accountants.
(e) The Lenders shall have received drafts in substantially
final form of Goodyear's Annual Report on Form 10-K for the fiscal year
ended December 31, 2002, containing Goodyear's consolidated balance
sheet and statement of income, stockholders equity and cash flows as of
the end of and for such fiscal year.
(f) The representations and warranties set forth in Article
III shall be true and correct in all material respects on the Effective
Date and the Administrative Agent shall have received a certificate
signed by a Financial Officer of each of Goodyear and the European J.V.
to that effect.
(g) Goodyear, the Borrowers and the other Credit Parties shall
be in compliance with all the terms and provisions set forth herein and
in the other Credit Documents in all material respects on their part to
be observed or performed, 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 signed by a
Financial Officer of each of Goodyear and the European J.V. to that
effect.
(h) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the
European J.V. or Goodyear hereunder.
(i) All loans and other amounts outstanding or accrued for the
accounts of the lenders under the Existing Credit Agreements shall have
been paid in full, and the lenders shall have no further commitments
thereunder. The Convertible Term Loan Agreement dated as February 4,
1998, between Goodyear and Banque Nationale de Paris S.A., Dublin
Branch, as amended and in effect on the date hereof, shall have been
terminated.
(j) The Administrative Agent shall have received from each
Borrower, Luxembourg Finance, each Principal European Subsidiary (other
than the Special Excluded Subsidiaries), Goodyear and each US
Subsidiary Guarantor a counterpart of the Guarantee and Collateral
Agreement duly executed and delivered on behalf of such Person.
(k) All outstanding Equity Interests of any J.V. Subsidiary
directly owned by any Grantor at such time (other than Equity Interests
in any Subsidiary with consolidated assets not greater than $10,000,000
as of December 31, 2002), which J.V. Subsidiaries are set forth on
Schedule 4.01(k), shall have been pledged or otherwise encumbered
pursuant to Security Agreements to secure the Applicable Secured
Obligations of such Grantor.
(l) All outstanding Equity Interests in Luxembourg Finance
shall have been pledged or otherwise encumbered pursuant to a Security
Agreement to secure the Applicable Secured Obligations of Goodyear.
(m) All Security Agreements referred to in the final closing
checklist distributed by counsel for the Agents prior to the execution
of this Agreement shall have been executed and delivered, all other
actions referred to in such closing checklist shall have
39
been taken, and the Collateral Agent shall have received all documents
referred to in such closing checklist.
The Collateral Agent may enter into agreements with the European J.V. to grant
extensions of time for the creation or perfection of security interests in or
the obtaining of legal opinions or other documents with respect to particular
assets (including extensions beyond the Effective Date for the creation and
perfection of security interests in the assets of the Grantors on such date)
where it determines that creation or perfection cannot be accomplished without
undue effort or expense by the time or times at which it would otherwise be
required by this Agreement or the Security Documents. The Loans made, the
application of the proceeds thereof and the termination of existing Indebtedness
on the Effective Date shall be deemed to occur simultaneously.
The Administrative Agent shall notify the European J.V. and the Lenders of the
Effective Date in writing, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions
shall have been satisfied (or waived pursuant to Section 9.02) at or prior to
5:00 p.m., New York City time, on April 1, 2003 (and, in the event such
conditions are not so satisfied or waived, the Commitments shall terminate at
such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender
to make a Loan on the occasion of any Borrowing (other than a conversion or
continuation of an outstanding Borrowing), shall be subject to the satisfaction
of the following conditions:
(a) The representations and warranties of Goodyear, the
European J.V. and each other Borrower set forth in this Agreement and
in the other Credit Documents (insofar as they relate to the
transactions provided for herein or to the Collateral securing the
Obligations) shall be true and correct in all respects material to the
rights or interests of the Lenders under the Credit Documents on and as
of the date of such Borrowing with the same effect as though made on
and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date and except for those
representations and warranties set forth in clauses (b) and (c) of
Section 3.04 and in Sections 3.05 and 3.08.
(b) At the time of and immediately after giving effect to such
Borrowing no Event of Default shall have occurred and be continuing and
no breach of the delivery requirements of Section 5.01(a) or (b) shall
have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
Goodyear, the European J.V. and each other Borrower on the date thereof as to
the matters specified in paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments shall have expired or been terminated
and the principal of and interest on each Loan and all fees payable hereunder
shall have been paid in full, each of Goodyear and the European J.V. and each
other Borrower covenants and agrees with the Lenders that:
40
SECTION 5.01. Financial Statements and Other Information. Each
of Goodyear and the European J.V. will furnish to the Administrative Agent and
each Lender:
(a) as soon as available and in any event within 110 days
after the end of each fiscal year, its audited consolidated balance
sheet and related statements of income, stockholders' equity and cash
flows as of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported
on by PricewaterhouseCoopers or other independent public accountants of
recognized international standing (without any qualification or
exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material
respects the financial condition and results of operations of Goodyear
and its Consolidated Subsidiaries or of the European J.V. and its
Consolidated Subsidiaries, as the case may be, in accordance with GAAP;
(b) as soon as available and in any event within 60 days after
the end of each of the first three fiscal quarters of each fiscal year,
its consolidated balance sheet and related statements of income,
stockholders' equity and cash flows as of the end of and for such
fiscal quarter and the then elapsed portion of the fiscal year, setting
forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by one
of its Financial Officers as presenting fairly in all material respects
the financial condition and results of operations of Goodyear and its
Consolidated Subsidiaries or the European J.V. and its consolidated
J.V. Subsidiaries, as the case may be, on a consolidated basis in
accordance with GAAP, subject to normal year-end audit adjustments and
the absence of footnotes;
(c) at the time of each delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of
Goodyear or the European J.V., as the case may be, (i) certifying as to
whether a Default has occurred and, if a Default has occurred,
specifying the details thereof and any action taken or proposed to be
taken with respect thereto, (ii) demonstrating compliance with Sections
6.09, 6.10, 6.11 and 6.12 at the end of the period to which such
financial statements relate and for each applicable period then ended,
and (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the most recent audited
financial statements delivered under clause (a) above (or, prior to the
delivery of any such financial statements, since December 31, 2002)
and, if any such change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate;
(d) in the case of Goodyear, promptly after the same become
publicly available, copies of all periodic and other reports, proxy
statements and other materials filed by Goodyear or any Subsidiary with
the United States Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of
said Commission, or with any national securities exchange, or
distributed by Goodyear to its shareholders generally, as the case may
be;
(e) at the time of each delivery of financial statements under
clause (a) or (b) above, and at such other times as Goodyear may
determine, a certificate of a Financial Officer of Goodyear identifying
each US Subsidiary, each J.V. Subsidiary and each subsidiary of
Luxembourg Finance formed or acquired after the Effective Date and not
previously identified in a certificate delivered pursuant to this
paragraph, stating (i) whether each such US Subsidiary is a Consent
Subsidiary and describing the factors that
41
shall have led to the identification of any such US Subsidiary as a
Consent Subsidiary, (ii) whether each such J.V. Subsidiary is a
Principal European Subsidiary and, if so, whether such Principal
European Subsidiary is a Consent Subsidiary and describing the factors
that shall have led to the identification of any such Principal
European Subsidiary as a Consent Subsidiary and (iii) whether each
subsidiary of Luxembourg Finance is a Principal European Subsidiary
and, if so, whether such Principal European Subsidiary is a Consent
Subsidiary and describing the factors that shall have led to the
identification of any such Principal European Subsidiary as a Consent
Subsidiary;
(f) from time to time, all information and documentation
required to be delivered under Section 4.04 of the Guarantee and
Collateral Agreement or any provision of any Security Agreement and
each year, at the time of delivery of annual financial statements under
Section 5.01(a), a certificate executed on behalf of the European J.V.
by a Financial Officer and the chief legal officer of the European J.V.
setting forth information sufficient to enable the Lenders to determine
whether the requirements of Section 5.08 have been met at such time;
(g) at the time of each delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer each of
Goodyear and the European J.V. certifying that the requirements of
Section 5.08 have been satisfied in all material respects;
(h) promptly upon becoming available, quarterly and annual
financial statements for GDTG prepared in the ordinary course of
business; and
(i) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of Goodyear, the European J.V. or any other Subsidiary, or
compliance with the terms of this Agreement, or the perfection of the
security interests created by the Security Documents, as the
Administrative Agent or any Lender may reasonably request.
Information required to be delivered pursuant to this Section 5.01 shall be
deemed to have been delivered if such information, or one or more annual or
quarterly reports containing such information, shall have been posted by the
Administrative Agent on an IntraLinks or similar site to which the Lenders have
been granted access or shall be available on the website of the Securities and
Exchange Commission at xxxx://xxx.xxx.xxx; provided that Goodyear shall deliver
paper copies of such information to any Lender that requests such delivery.
Information required to be delivered pursuant to this Section 5.01 may also be
delivered by electronic communications pursuant to procedures approved by the
Administrative Agent.
SECTION 5.02. Notices of Defaults. Goodyear will furnish to
the Administrative Agent and each Lender prompt written notice of the occurrence
of any Default, together with a statement of a Financial Officer or other
executive officer of Goodyear setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto.
SECTION 5.03. Existence; Conduct of Business. Each of Goodyear
and the European J.V. and each other Borrower will, and will cause each of its
respective Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business, except to the extent that failures to keep in effect such rights,
licenses, permits,
42
privileges and franchises would not be materially likely, individually or in the
aggregate for all such failures, to result in a Material Adverse Change;
provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.04.
SECTION 5.04. Maintenance of Properties. Each of Goodyear and
the European J.V. and each other Borrower will, and will cause each of its
respective Subsidiaries to, keep and maintain all its property in good working
order and condition, ordinary wear and tear excepted, except to the extent any
failure to do so would not, individually or in the aggregate, be materially
likely to result in a Material Adverse Change (it being understood that the
foregoing shall not prohibit any sale of any assets permitted by Section 6.06).
SECTION 5.05. Books and Records; Inspection and Audit Rights.
Each of Goodyear and the European J.V. and each other Borrower will, and will
cause each of its respective Subsidiaries to, keep proper books of record and
account sufficient to enable each of Goodyear and the European J.V. to prepare
the financial statements and other information required to be delivered under
Section 5.01. Each of Goodyear, and the European J.V. and each other Borrower
will, and will cause each of its respective Subsidiaries to, permit any
representatives designated by the Administrative Agent (or by any Lender acting
through the Administrative Agent), upon reasonable prior notice, to visit and
inspect its properties (accompanied by a representative of Goodyear or the
European J.V.) and to discuss its affairs, finances and condition with its
officers, all at such reasonable times and as often as reasonably requested.
SECTION 5.06. Compliance with Laws. Each of Goodyear and the
European J.V. and each other Borrower will, and will cause each of its
respective Subsidiaries to, comply with all laws, including Environmental Laws,
rules, regulations and orders of any Governmental Authority applicable to it or
its property, except where the failure to do so, individually or in the
aggregate, would not be materially likely to result in a Material Adverse
Change.
SECTION 5.07. Insurance. Each of Goodyear and the European
J.V. and each other Borrower will, and will cause each of its respective
Subsidiaries to, maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks as are customary
among companies of established reputation engaged in the same or similar
businesses and operating in the same or similar locations, except to the extent
the failure to do so would not be materially likely to result in a Material
Adverse Change. Goodyear will furnish to the Administrative Agent or any Lender,
upon request, information in reasonable detail as to the insurance so
maintained.
SECTION 5.08. Guarantees and Collateral. (a) In the event that
there shall at any time exist any Principal European Subsidiary (other than a
Consent Subsidiary) or any US Subsidiary (other than an Excluded Subsidiary or
Consent Subsidiary) that shall not be a party to the Guarantee and Collateral
Agreement, Goodyear will promptly notify the Collateral Agent and will, within
30 days (or such longer period as may be reasonable under the circumstances)
after such notification, deliver to the Collateral Agent such information as the
Collateral Agent shall have reasonably requested and a supplement to the
Guarantee and Collateral Agreement, in substantially the form specified therein,
duly executed and delivered on behalf of such Principal European Subsidiary or
US Subsidiary, as the case may be, pursuant to which such Principal European
Subsidiary or such US Subsidiary, as the case may be, will become a party to the
Guarantee and Collateral Agreement and, in the case of a Principal European
Subsidiary, a European Facilities Guarantor and European Facilities Grantor, or
in the case of such US Subsidiary, a US Guarantor, in each case as defined in
the Guarantee and Collateral Agreement;
43
provided that if a Financial Officer of Goodyear shall have delivered a
certificate to the Administrative Agent certifying that Goodyear has determined
(i) based upon the advice of French counsel, that the corporate benefit
principles or other applicable law of the Republic of France would prohibit any
Principal European Subsidiary organized under the laws of the Republic of France
from duly authorizing a Guarantee of any of the Obligations, or (ii) based upon
the advice of German counsel, that the applicable law of Germany would prohibit
any Principal European Subsidiary formed or acquired after the Effective Date
and organized under the laws of the Germany from duly authorizing a Guarantee of
any of the Obligations, such Principal European Subsidiary shall not be required
to become a party to the Guarantee and Collateral Agreement. Notwithstanding the
foregoing, no Subsidiary will be required to take any action pursuant to this
paragraph (a) if (i) such Subsidiary shall have received an opinion of counsel
in the applicable jurisdiction that, under circumstances referred to in such
opinion, such action would subject its officers or directors to a material risk
of personal liability and (ii) there shall be a material risk that the
circumstances referred to in such opinion will occur.
(b) In the event that any Grantor shall at any time directly
own any Equity Interests of any J.V. Subsidiary or any subsidiary of Luxembourg
Finance (in each case other than (i) Equity Interests in any Subsidiary with
consolidated assets not greater than $10,000,000 as of December 31, 2002, or if
later, as of the end of the most recent fiscal quarter for which financial
statements have been delivered pursuant to Section 5.01(a) or (b), (ii) Equity
Interests in any Special Excluded Subsidiary or Consent Subsidiary and (iii)
Equity Interests already pledged in accordance with this paragraph or Section
4.01), Goodyear will promptly notify the Collateral Agent and will, within 30
days (or such longer period as may be reasonable under the circumstances) after
such notification, cause such Equity Interests to be pledged under a Security
Agreement and, to the extent that the Collateral Agent determines that
possession of any certificates representing any such Equity Interests would
provide any benefit in respect of priority or otherwise under applicable law and
requests delivery, cause to be delivered to the Collateral Agent any
certificates representing such Equity Interests, together with undated stock
powers or other instruments of transfer with respect thereto endorsed in blank;
provided, that no Grantor shall be required to pledge any Equity Interests in
any Subsidiary organized under the laws of a jurisdiction other than the Federal
Republic of Germany, the Netherlands, Luxembourg, the Republic of France, the
United Kingdom or the Republic of Slovenia if a Financial Officer of Goodyear
shall have delivered a certificate to the Administrative Agent certifying that
Goodyear has determined, on the basis of reasonable inquiries in the
jurisdiction of such Person, that such pledge would affect materially and
adversely the ability of such Person to conduct its business in such
jurisdiction. In the event that SAVA shall at any time become a Wholly Owned
J.V. Subsidiary, or the provisions in its organizing documents or joint venture
agreement prohibiting such pledge shall cease to be in effect, all the Equity
Interests in SAVA held by the European J.V. or any of the J.V. Subsidiaries
shall be pledged under a Security Agreement pursuant to the requirements of this
Section.
(c) In the event that any Grantor shall at any time own any
Applicable Assets (other than Consent Assets and Applicable Assets already
pledged, mortgaged or otherwise encumbered pursuant to any Security Agreement)
consisting of real property with a book value of $10,000,000 or more, the
European J.V. will promptly notify the Collateral Agent and will, within 30 days
(or such longer period as may be reasonable under the circumstances) after such
notification, cause such Applicable Assets to be mortgaged or otherwise
encumbered pursuant to one or more Security Agreements reasonably acceptable to
the Collateral Agent and such Grantor to secure the Applicable Secured
Obligations of such Grantor. In the event that, at the end of any fiscal
quarter, the Grantors, taken together, shall own any Applicable Assets (other
than Consent Assets, Equity Interests in Subsidiaries and Applicable Assets
already pledged, mortgaged or
44
otherwise encumbered pursuant to any Security Agreement) with an aggregate book
value greater than $50,000,000 that shall not have been pledged, mortgaged or
otherwise encumbered pursuant to the Security Agreements, the European J.V.
will, promptly after the delivery of financial statements under Section 5.01(a)
or (b) with respect to such fiscal quarter, notify the Collateral Agent and
will, within 30 days, (or such longer period as may be reasonable under the
circumstances) after such notification, cause such Applicable Assets (other than
assets that in the aggregate are not material) to be pledged, mortgaged or
otherwise encumbered by the Grantors pursuant to one or more Security Agreements
reasonably acceptable to the Collateral Agent and each applicable Grantor to
secure the Applicable Secured Obligations of the respective Grantors; provided,
that if a Financial Officer of Goodyear shall have delivered a certificate to
the Administrative Agent certifying that Goodyear has determined (i) based upon
the advice of French counsel, that the corporate benefit principles or other
applicable law of the Republic of France would prohibit any Principal European
Subsidiary organized under the laws of the Republic of France from duly
authorizing the creation or perfection of any such security interest, or (ii)
based upon the advice of German counsel, that the applicable law of Germany
would prohibit any Principal European Subsidiary formed or acquired after the
Effective Date and organized under the laws of the Germany from duly authorizing
the creation or perfection of any such security interest, such Principal
European Subsidiary shall not be required to create or perfect such security
interest. Notwithstanding the foregoing, no Grantor will be required to take any
action pursuant to this paragraph (c) if (i) such Grantor shall have received an
opinion of counsel in the applicable jurisdiction that, under circumstances
referred to in such opinion, such action would subject its officers or directors
to a material risk of personal liability and (ii) there shall be a material risk
that the circumstances referred to in such opinion will occur.
(d) Goodyear, the European J.V. and each other Borrower will,
and will cause each of their respective Subsidiaries to, execute any and all
further documents, financing statements, agreements and instruments, and take
all such further actions, as may be reasonably requested by the Collateral Agent
in order to cause the security interests purported to be created by the Security
Documents or required to be created under the terms of this Agreement to
constitute valid security interests, perfected in accordance with this
Agreement.
(e) During the period of 45 days after the Effective Date,
Goodyear will endeavor in good faith to obtain any consents of third parties
required in order for each US Subsidiary listed on Part II of Schedule 1.01A
that has consolidated assets in excess of $10,000,000 as of December 31, 2002,
or if later, as of the end of the most recent fiscal quarter for which financial
statements have been delivered pursuant to Section 5.01(a) or (b) to execute the
Guarantee and Collateral Agreement as a US Subsidiary Guarantor and perform its
obligations thereunder and shall advise the Collateral Agent in writing whether
such consents have been obtained, and if such consents have been obtained, will
cause such US Subsidiary to execute the Guarantee and Collateral Agreement as
provided in paragraph (a).
ARTICLE VI
Negative Covenants
Until the Commitments shall have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, each of Goodyear and the European J.V. and each other
Borrower covenants and agrees with the Lenders that:
45
SECTION 6.01. Indebtedness and Preferred Equity Interests.
Each of Goodyear and the European J.V. and each other Borrower will not, and
will not permit any of its respective Consolidated Subsidiaries to, create,
incur, assume or permit to exist any Indebtedness, or issue any preferred stock
or other preferred Equity Interests, except:
(a) Indebtedness under this Agreement (and related
Indebtedness under the Security Documents);
(b) Indebtedness under the other New Facilities Credit
Agreements (and related Indebtedness under the Security Documents) in
an amount for each New Facilities Credit Agreement not greater than the
aggregate amount of the outstanding loans and unfunded commitments of
the lenders thereunder on the Effective Date, and additional
Indebtedness that may be incurred under the ABL Facilities that does
not result in the aggregate principal amount of Indebtedness under the
ABL Facilities exceeding $1,600,000,000;
(c) other Indebtedness existing (or incurred pursuant to
commitments to lend existing) on March 31, 2003, substantially all of
which is set forth or described in Schedule 6.01 (as such Schedule 6.01
shall be modified in connection with the delivery of financial
statements in respect of the fiscal period ended on March 31, 2003);
(d) Indebtedness owed to Goodyear or any Subsidiary and
permitted under Section 6.05(b);
(e) Guarantees expressly permitted under Section 6.05;
(f) Indebtedness of Foreign Subsidiaries (other than the
European J.V. and the J.V. Subsidiaries and Luxembourg Finance (it
being understood that Indebtedness of Goodyear S.A., organized under
the laws of Luxembourg, existing on the date hereof shall be counted
against the limitation set forth in this Section 6.01(f) from and after
the date on which it becomes secured)) in an aggregate principal amount
(excluding Indebtedness existing or incurred under the other clauses of
this Section 6.01 and under Section 6.05(b)) not greater than
$200,000,000 outstanding at any time;
(g) Securitization Transactions (other than those permitted by
Sections 6.01(j) and (l)) in an aggregate amount not greater than
$275,000,000 outstanding at any time;
(h) Indebtedness of Goodyear or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition
thereof; provided that such Indebtedness is incurred prior to or within
180 days after such acquisition or the completion of such construction
or improvement;
(i) Attributable Debt of Goodyear or any Subsidiary incurred
pursuant to Sale and Leaseback Transactions permitted by Section 6.03;
(j) Indebtedness of any Person that becomes a Subsidiary after
the date hereof as a result of a transaction expressly permitted under
Section 6.05(e); provided that such Indebtedness exists at the time
such Person becomes a Subsidiary and is not created in contemplation of
or in connection with such Person becoming a Subsidiary;
46
(k) obligations of Goodyear and the Subsidiaries existing on
the date hereof (other than Guarantees, Securitization Transactions and
Sale and Leaseback Transactions) that would not constitute Indebtedness
that would appear as liabilities on a consolidated balance sheet of
Goodyear under GAAP as in effect on the date hereof and that, as a
result of changes in GAAP after the date hereof, shall be required to
be reflected on such a balance sheet as liabilities;
(l) Indebtedness of any Subsidiary that is not a Consolidated
Subsidiary of Goodyear or the European J.V. under GAAP as in effect on
the date hereof (and in the event that any such Subsidiary shall become
a Consolidated Subsidiary of Goodyear or the European J.V.,
Indebtedness of such Subsidiary existing at the time it becomes such a
Consolidated Subsidiary);
(m) any extension, renewal, refinancing or replacement of any
Indebtedness referred to in any of clauses (a) through (l) above that
does not increase the outstanding principal amount thereof (except to
the extent necessary to pay the fees, expenses, underwriting discounts
and prepayment premiums in connection therewith) or change the parties
directly or indirectly responsible for the payment of such
Indebtedness; provided that (i) any such refinancing or replacement
Indebtedness shall not shorten the maturity of the Indebtedness
refinanced or replaced or add a requirement not previously applicable
to the Indebtedness refinanced or replaced that such Indebtedness be
prepaid, redeemed, repurchased or defeased on one or more scheduled
dates or upon the happening of one or more events (other than events of
default or change of control events) before the maturity of the
Indebtedness being refinanced or replaced and (ii) any such refinancing
or replacement of Indebtedness under any revolving credit or similar
facility shall be accompanied by the termination of the portion of the
commitments under such facility under which such refinanced or replaced
Indebtedness shall have been outstanding;
(n) Indebtedness arising from the honoring of a check, draft
or similar instrument presented by Goodyear or a Subsidiary against
insufficient funds;
(o) Indebtedness pursuant to any Swap Agreement entered into
to hedge against risks to which the businesses of Goodyear and the
Subsidiaries are exposed, and not for speculative purposes;
(p) unsecured surety and performance bonds entered into in the
ordinary course of business and not securing Indebtedness; and
(q) other unsecured Indebtedness for borrowed money of
Goodyear, or preferred Equity Interests of Goodyear ("Permitted
Preferred Stock"), or any combination thereof, 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 events of default (or similar events
relating to Equity Interests) or change of control events), and any
Guarantee of such Indebtedness provided by any Subsidiary that is a US
Guarantor under the Guarantee and Collateral Agreement that is
subordinated to the Obligations on terms in no material respect less
favorable to the Lenders than market terms prevailing at the time such
Guarantee is issued; provided that the aggregate principal or stated
amount of such Indebtedness (or of the Indebtedness it Guarantees) or
preferred Equity Interests created or assumed pursuant to this clause
(q) and outstanding at any time, without duplication, shall not exceed
$1,000,000,000; provided further, that for purposes of this paragraph,
any trust preferred
47
stock or similar preferred Equity Interest issued by a special purpose
entity substantially all the assets of which consist of Indebtedness or
preferred Equity Interests of Goodyear will be deemed to be a preferred
Equity Interest of Goodyear;
(r) a Securitization Transaction in an aggregate amount not
greater than $15,000,000 outstanding at any time involving accounts
receivable, rights to future lease payments or residuals or other
financial assets, and related property of Goodyear Australia Pty
Limited; and
(s) other Indebtedness in an aggregate amount at any time
outstanding not in excess of $25,000,000.
SECTION 6.02. Liens. Each of Goodyear and the European J.V.
and each other Borrower will not, and will not permit any of its respective
Consolidated Subsidiaries to, create, incur, assume or permit to exist any Lien
on any property or asset now owned or hereafter acquired by it, or assign or
sell any income or revenues (including accounts receivable) or rights in respect
of any thereof (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), except:
(a) Liens created under the New Facility Documents;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of Goodyear or any
Subsidiary existing on the Effective Date and set forth in Schedule
6.02; provided that (i) such Lien shall not apply to any other property
or asset of Goodyear or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(d) any Lien existing on any property or asset prior to the
acquisition thereof by Goodyear or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien secures Indebtedness permitted by clause
(h) or (j) of Section 6.01, (ii) such Lien is not created in
contemplation of or in connection with such acquisition or such Person
becoming a Subsidiary, as the case may be, (iii) such Lien shall not
apply to any other property or assets of Goodyear or any Subsidiary and
(iv) such Lien shall secure only those obligations which it secures on
the date of such acquisition or the date such Person becomes a
Subsidiary, as the case may be, and extensions, renewals and
replacements thereof that do not increase the outstanding principal
amount thereof;
(e) Liens on assets acquired, constructed or improved by
Goodyear or any Subsidiary; provided that (i) such Liens secure
Indebtedness permitted by clause (h) or (j) of Section 6.01, (ii) such
Liens and the Indebtedness secured thereby are incurred prior to or
within 180 days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby
does not exceed the cost of acquiring, constructing or improving such
assets and (iv) such Liens shall not apply to any other property or
assets of Goodyear or any Subsidiary;
48
(f) 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);
(g) In connection with Securitization Transactions permitted
under Section 6.01(g) and (r);
(h) Liens in connection with Sale and Leaseback Transactions
permitted by Section 6.03;
(i) Liens on specific items of inventory or other goods (and
proceeds thereof) securing obligations in respect of bankers'
acceptances issued for the account of Goodyear or a Subsidiary to
facilitate the purchase, shipment or storage of such items of inventory
or other goods;
(j) Liens on specific items of inventory or other goods and
related documentation (and proceeds thereof) securing reimbursement
obligations in respect of trade letters of credit issued to ensure
payment of the purchase price for such items of inventory or other
goods;
(k) any interest of a lessor in property subject to an
operating lease;
(l) Liens referred to in policies of title insurance with
respect to Mortgaged Property (as defined in the US Revolving Facility
Agreement) delivered to the Administrative Agent prior to the Effective
Date; and
(m) other Liens on assets not constituting Collateral;
provided that the aggregate amount of the Indebtedness and other
obligations secured by such Liens shall at no time exceed $25,000,000.
SECTION 6.03. Sale and Leaseback Transactions. Each of
Goodyear and the European J.V. and each other Borrower will not, and will not
permit any of its respective Consolidated Subsidiaries to, enter into or be
party to any Sale and Leaseback Transaction other than (a) Sale and Leaseback
Transactions existing on the date hereof and any replacement Sale and Leaseback
Transactions that do not involve assets other than those subject to the Sale and
Leaseback Transactions they replace and do not increase the Attributable Debt
related thereto and (b) other Sale and Leaseback Transactions the aggregate
outstanding Attributable Debt in respect of which does not exceed $100,000,000;
provided that the aggregate outstanding Attributable Debt in respect of Sale and
Leaseback Transactions of the European J.V. and the J.V. Subsidiaries pursuant
to the foregoing clause (b) shall not exceed $50,000,000.
SECTION 6.04. Fundamental Changes. (a) Each of Goodyear and
the European J.V. and each other Borrower will not, and will not permit any of
its respective Consolidated Subsidiaries to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or sell, transfer, lease or otherwise dispose of (in one transaction or in a
series of transactions) assets (including capital stock of Subsidiaries)
constituting all or substantially all the assets of Goodyear and its
Consolidated Subsidiaries, taken as a whole, or all or substantially all the
assets of the European J.V. and its Consolidated Subsidiaries, taken as a whole,
or, in the case of Goodyear or any Borrower, liquidate or dissolve, except that,
if at the time thereof and immediately after giving effect thereto no Default
shall have occurred and be continuing (i) any Subsidiary that is not a J.V. Loan
Party may merge into
49
Goodyear in a transaction in which Goodyear is the surviving corporation, (ii)
any Subsidiary may merge into any other Subsidiary in a transaction in which the
surviving entity is a Subsidiary; except that (A) no US Subsidiary may merge
into a Foreign Subsidiary, (B) neither the European J.V. nor any J.V. Subsidiary
may merge into a Subsidiary that is not the European J.V. or a J.V. Subsidiary
(other than a merger of a J.V. Subsidiary into a Subsidiary that will become a
J.V. Subsidiary upon the consummation of such merger) and (C) no J.V. Loan Party
merge into a Subsidiary that is not a J.V. Loan Party (other than a Subsidiary
that will become a J.V. Loan Party upon the consummation of such merger), (iii)
any sale of a Subsidiary made in accordance with Section 6.06 may be effected by
a merger of such Subsidiary and (iv) any Subsidiary may sell, transfer, lease or
otherwise dispose of its assets to Goodyear or to another Subsidiary; provided
that any Investment that takes the form of a merger or consolidation (other than
any merger or consolidation involving Goodyear) expressly permitted by Section
6.05 shall be permitted to this Section 6.04.
SECTION 6.05. Investments, Loans, Advances and Guarantees.
Each of Goodyear and the European J.V. and each other Borrower will not, and
will not permit any of its respective Consolidated Subsidiaries to, purchase or
acquire (including pursuant to any merger with any Person that was not a Wholly
Owned Subsidiary prior to such merger) any capital stock, evidences of
Indebtedness or securities (including any option, warrant or other right to
acquire any of the foregoing) of, make any loans or advances to, make any
Guarantee of any obligations of, or make any investment in, any other Person, or
purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit (each of the
foregoing, an "Investment" in such Person), except:
(a) Permitted Investments;
(b) Investments by Goodyear and the Subsidiaries in
Subsidiaries; provided that no Investment shall made by any Credit
Party in a Subsidiary that is not a Credit Party or by a J.V. Loan
Party in a Subsidiary that is not a J.V. Loan Party pursuant to this
clause (b) except Investments (A) to fund working capital needs of such
Subsidiary, (B) to replace amounts available under credit facilities or
other financings of such Subsidiary existing on the date hereof that
shall have matured or shall have been terminated or reduced, (C) to
cover losses from operations of such Subsidiary and (D) to provide
funds for Capital Expenditures or acquisitions permitted to be made by
such Subsidiary; provided further, that Equity Interests in the
European J.V. or any J.V. Subsidiary may not be transferred to any
Subsidiary that is not the European J.V. or a J.V. Subsidiary;
(c) any Investment by a Credit Party in a Consolidated
Subsidiary that is not a Credit Party in the form of a transfer of
assets used in or directly relating to any manufacturing process (but
excluding any cash or financial asset) from a jurisdiction having
higher manufacturing costs to a jurisdiction having lower manufacturing
costs; provided that (i) the aggregate book value of all assets subject
to all such transfers from and after the Effective Date shall not
exceed $250,000,000 and (ii) the aggregate book value of all assets of
the European J.V. and the J.V. Subsidiaries subject to all such
transfers from and after the Effective Date shall not exceed
$100,000,000; and any Investment by Goodyear Dunlop Tires NA in a
Consolidated Subsidiary;
(d) Guarantees expressly permitted under Section 6.01;
(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
50
acquisitions (including Indebtedness assumed by Goodyear or any
Subsidiary) shall not exceed $100,000,000 plus the aggregate Net Cash
Proceeds from New Facilities Prepayment Events after the date hereof
that (A) shall not have been required to be applied to prepay loans
under any of the New Facilities Credit Agreements and (B) shall not
have been used to make Capital Expenditures that would otherwise have
been prohibited by Section 6.09;
(f) Guarantees not permitted by any other clause of this
Section 6.05 incurred in the ordinary course of business and consistent
with past practices in an aggregate amount for all such Guarantees at
any time outstanding not exceeding $50,000,000; provided that the
aggregate amount of all such Guarantees by the European J.V. and the
J.V. Subsidiaries shall not exceed $25,000,000 at any time outstanding;
(g) Investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course of
business;
(h) Investments for consideration consisting solely of common
stock of Goodyear;
(i) Equity Interests and debt obligations obtained by Goodyear
or any Subsidiary as consideration for any asset sale permitted under
Section 6.06;
(j) Investments in Persons in which Goodyear or any Subsidiary
has an Equity Interest on the date hereof, including Wingfoot
Commercial Tire Systems LLC, SAVA and South Pacific Tyres, that are (i)
required to be made as a result of the exercise by other holders of
Equity Interests in such joint ventures of put options or (ii) required
to avoid dilution of Goodyear's or such Subsidiary's percentage
ownership interest therein and in an aggregate amount not greater than
$200,000,000 during the term of this Agreement; provided that (A) the
aggregate amount of all such Investments by the European J.V. and the
J.V. Subsidiaries shall not exceed $25,000,000 and (B) each such
Investment by the European J.V. or any J.V. Subsidiary shall be in a
J.V. Subsidiary;
(k) Investments that are included in Capital Expenditures for
the respective periods during which such Investments are made and are
permitted under Section 6.09;
(l) the purchase of Equity Interests in Sava Joint Venture
Holding d.o.o.;
(m) loans and advances to officers and employees of Goodyear
and its Subsidiaries in the ordinary course of business;
(n) Investments in prepaid expenses in the ordinary course of
business or in respect of required pension fund contributions;
(o) negotiable instruments held for collection and lease,
utility, workers' compensation, performance and other similar deposits
in the ordinary course of business;
(p) Investments in any Subsidiary that engages in no
activities other than those related to a Securitization Transaction in
order to capitalize such Subsidiary at a level customary for a
securitization vehicle in such a transaction; and
51
(q) Investments constituting loans or advances by the European
J.V. or any J.V. Subsidiary to Goodyear or any of its Subsidiaries
(other than the European J.V., the J.V. Subsidiaries and Luxembourg
Finance) as part of cash management consistent with past practices in
an aggregate amount for all such Investments at any time outstanding
not exceeding $75,000,000, other than Investments the proceeds of which
are used (i) to repay loans under the US Term Facility Agreement or
(ii) if there are no outstanding loans under the US Term Facility
Agreement, to reduce commitments under the US Revolving Facility in an
amount equal to the amount of such Investments;
(r) Investments of the proceeds of any Securitization
Transaction under Section 6.01(r) in South Pacific Tyres; and
(s) Investments not permitted by any other clause of this
Section in an aggregate amount at any time outstanding not greater than
$25,000,000;
SECTION 6.06. Asset Dispositions. Each of Goodyear and the
European J.V. and each other Borrower will not, and will not permit any of its
respective Consolidated Subsidiaries to, sell, transfer, lease or otherwise
dispose (each, a "Sale") of any asset, including any Equity Interest, owned by
it, nor will Goodyear or the European J.V. or any other Borrower permit any of
its respective Subsidiaries to issue any additional Equity Interest in such
Subsidiary, except:
(a) Sales in the ordinary course of business of inventory and
worn out or surplus equipment and Permitted Investments, and Sales in
the ordinary course of business and consistent with past practices of
assets other than property, plant, Investments in Subsidiaries and
intellectual property; provided that licensing of intellectual property
in the ordinary course of business and consistent with past practices
shall be permitted;
(b) Sales to Goodyear or a Subsidiary; provided that any such
sale, transfer or disposition by a Credit Party to a Subsidiary that is
not a Credit Party or by a J.V. Loan Party to a Subsidiary that is not
a J.V. Loan Party shall be made in compliance with Section 6.05;
(c) the Sale of Equity Interests in Sava to the European J.V.
or any J.V. Subsidiary (and any sale of such Equity Interests to
Goodyear in connection therewith); provided that once such Sale to the
European J.V. or any J.V. Subsidiary occurs, the Equity Interests of
SAVA shall be pledged to secure the Applicable Secured Obligations as
and when required by Section 5.08;
(d) Sales of accounts receivable or interests therein in
Securitization Transactions permitted under Sections 6.01(g) and (r);
(e) Sales of assets in Sale and Leaseback Transactions
permitted under Section 6.03;
(f) Sales of any Equity Interests in any Person that is not a
Subsidiary;
(g) Sales to Persons other than Goodyear or any Subsidiary of
assets listed on Schedule 6.06; provided that (i) at least 50% of the
consideration received in each such Sale of the assets listed on Part I
of Schedule 6.06 shall consist of cash and (ii) at least
52
75% of the consideration received in each such other Sale listed on
Part II of Schedule 6.06 shall consist of cash;
(h) Sales to the extent the aggregate value of the
consideration received in any such Sale or series of related Sales does
not exceed $10,000,000;
(i) Investments expressly permitted by Section 6.05; and
(j) Sales (other than Sales of accounts receivable or
inventory) that are not permitted by any other clause of this Section
6.06; provided that (i) the aggregate consideration received in respect
of all such Sales in reliance upon this clause (j) shall not exceed
$250,000,000 in the aggregate, (ii) the aggregate consideration
received in respect of all such Sales by the European J.V. and the J.V.
Subsidiaries shall not exceed $125,000,000 in the aggregate, (iii) all
Sales permitted pursuant to this clause (j) shall be made for fair
value, as reasonably determined by Goodyear, and (iv) at least 75% of
the consideration received in each such Sale shall consist of cash.
SECTION 6.07. Restricted Payments. (a) Each of Goodyear and
the European J.V. and each other Borrower will not, and will not permit any of
its respective Consolidated Subsidiaries to, declare or make, or agree to pay or
make, directly or indirectly, any Restricted Payment, except that (i) Goodyear
may declare and pay dividends payable solely in additional shares of its common
stock, (ii) so long as no Event of Default shall exist, Goodyear may declare and
pay cash dividends and other regularly scheduled distributions on shares of its
Permitted Preferred Stock, (iii) the European J.V. may declare and pay cash
dividends ratably with respect to its Equity Interests in an aggregate amount
not to exceed $60,600,000 in fiscal year 2003 and thereafter 100% of cumulative
Consolidated Net Income of the European J.V. after January 1, 2003, (iv)
Subsidiaries (other than the European J.V.) may make Restricted Payments ratably
with respect to their Equity Interests, (v) Goodyear may make Restricted
Payments pursuant to and in accordance with stock option or rights plans or
other benefit plans for management, employees, directors or consultants of
Goodyear or any Subsidiary and (v) Goodyear and its Subsidiaries may make
Investments expressly permitted under Section 6.05(j).
(b) Each of Goodyear and the European J.V. and each other
Borrower will not, nor will it permit any of its respective Consolidated
Subsidiaries to, make or agree to make, directly or indirectly, any payment or
other distribution (whether in cash, securities or other property), except
payments or distributions made in common stock of Goodyear to any Person other
than Goodyear or a Subsidiary in respect of principal of or interest on any
Indebtedness, or any payment or other distribution (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, defeasance, acquisition, cancelation or
termination of any Indebtedness of Goodyear or any Subsidiary, except:
(i) payments and prepayments under this Agreement (ratably
in accordance with the Commitments of the Lenders) and the other New
Facilities Credit Agreements;
(ii) regularly scheduled and other mandatory interest and
principal payments (including pursuant to sinking fund requirements) as
and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by
Section 6.01(m), including the payment of customary fees, costs and
expenses in connection therewith, and
53
including additional cash payments in an aggregate amount for all such
refinancings not to exceed, in the case of any refinancing, 5% of the
principal amount being refinanced; and
(iv) the payment of secured Indebtedness that becomes due as
a result of the voluntary sale or transfer of the property or assets
securing such Indebtedness.
SECTION 6.08. Transactions with Affiliates. The European J.V.
will not, nor will it permit any J.V. Subsidiary to, and Goodyear will not
permit Luxembourg Finance or any subsidiary of Luxembourg Finance to, sell,
lease or otherwise transfer any property or assets to, or purchase, lease or
otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) transactions in the
ordinary course of business that are consistent with past practices or are at
prices and on terms and conditions no less favorable to the European J.V., such
J.V. Subsidiary, Luxembourg Finance or such subsidiary of Luxembourg Finance
than could be obtained on an arm's-length basis from unrelated third parties in
the reasonable judgment of the European J.V., (b) transactions between or among
the European J.V. and the J.V. Subsidiaries not involving any other Affiliate
and (c) any Restricted Payment permitted by Section 6.07.
SECTION 6.09. Capital Expenditures. (a) Goodyear and the
Subsidiaries will not make Capital Expenditures in any period set forth below in
an amount greater than (x) the sum of (i) the amount set forth below for such
period and each prior period plus (ii) that portion of the aggregate Net Cash
Proceeds from New Facilities Prepayment Events after the date hereof that shall
not have been required to be applied to prepay loans under any of the New
Facilities Credit Agreements (and shall not have been used to make Investments
under Section 6.05(e) in excess of the $100,000,000 limitation set forth
therein) minus (y) the aggregate amount of Capital Expenditures made during any
prior period set forth below:
Period Capital Expenditure Amount
------ --------------------------
1/1/03 through 12/31/03 $360,000,000
1/1/04 through 12/31/04 $500,000,000
1/1/05 through Maturity Date $200,000,000
(b) The European J.V. and the J.V. Subsidiaries will not, make
Capital Expenditures in any period set forth below in an amount greater than (x)
the sum of (i) the amount set forth below for such period and each prior period
plus (ii) that portion of the aggregate Net Cash Proceeds for Prepayment Events
after the date hereof that shall not have been required to be applied to prepay
Term Loans under this Agreement (and shall not have been applied to make
Investments under Section 6.05(e) in excess of the $100,000,000 limitation set
forth therein) minus (y) the aggregate amount of Capital Expenditures made by
the European J.V. and the J.V. Subsidiaries made during any prior period set
forth below:
Period Capital Expenditure Amount
------ --------------------------
1/1/03 through 12/31/03 $180,000,000
54
1/1/04 through 12/31/04 $250,000,000
1/1/05 through Maturity Date $100,000,000
SECTION 6.10. Interest Expense Coverage Ratio. Goodyear will
not permit the ratio of (x) Consolidated EBITDA of Goodyear to (y) Consolidated
Interest Expense of Goodyear, for any period of four consecutive fiscal quarters
to be less than 2.25 to 1.00.
SECTION 6.11. Consolidated Net Worth. Goodyear will not permit
its Consolidated Net Worth at the end of any fiscal quarter to be less than the
amount set forth below for such date.
Fiscal Quarter Ending Minimum Amount
--------------------- --------------
March 31, 2003 $2,800,000,000
June 30, 2003 $2,800,000,000
September 30, 2003 $2,800,000,000
December 31, 2003 $2,800,000,000
March 31, 2004 $2,500,000,000
June 30, 2004 $2,500,000,000
September 30, 2004 $2,500,000,000
December 31, 2004 $2,500,000,000
March 31, 2005 $2,000,000,000
SECTION 6.12. Senior Secured Indebtedness Ratio. Goodyear will
not at any date permit the ratio of (a) Consolidated Senior Secured Indebtedness
at such date to (b) Consolidated EBITDA for the most recent period of four
consecutive fiscal quarters for which financial statements have been delivered
pursuant to Section 5.01(a) or (b), to be greater than 4.00 to 1.00.
SECTION 6.13. Sumitomo Ownership. Goodyear will not enter into
any agreement, or agree to amend, modify or waive any existing agreement between
it and Sumitomo Rubber Industries or any organizational document of the European
J.V., if the effect therof is to permit Sumitomo Rubber Industries to sell,
transfer or otherwise dispose of any of the issued and outstanding capital stock
of the European J.V. owned by Sumitomo Rubber Industries to any Person other
than Goodyear or a Wholly Owned Subsidiary of Goodyear.
55
ARTICLE VII
Events of Default and CAM Exchange
SECTION 7.01. Event of Default. If any of the following events
("Events of Default") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Section) payable under this Agreement or any other Credit
Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of (i) in the case of
fees and interest payable under Sections 2.09 and 2.10, respectively,
five Business Days, and (ii) in the case of any other fees, interest or
other amounts (other than those referred to in paragraph (a) above),
five Business Days after the earlier of (A) the day on which a
Financial Officer first obtains knowledge of such failure and (B) the
day on which written notice of such failure shall have been given to
the European J.V. by the Administrative Agent or any Lender;
(c) any representation or warranty made or deemed made by or
on behalf of Goodyear or the European J.V. or any other Borrower or any
J.V. Loan Party in any Credit Document or any amendment or modification
thereof or waiver thereunder, shall prove to have been incorrect when
made or deemed made in any respect material to the rights or interests
of the Lenders under the Credit Documents;
(d) Goodyear or the European J.V. or any other Borrower shall
fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, 5.03 (with respect to any Borrower's
existence) or 5.08 or in Article VI;
(e) any Credit Party shall fail to observe or perform any
covenant, condition or agreement contained in any Credit Document
(other than those specified in clauses (a), (b) and (d) of this
Section), and such failure shall continue unremedied for a period of 30
days after written notice thereof from the Administrative Agent to the
European J.V. (which notice will be given at the request of any
Lender); provided, that the failure of any Credit Party to perform any
covenant, condition or agreement made in any Credit Document (other
than this Agreement (except the agreements under Section 5.01(f)) shall
not constitute an Event of Default unless such failure shall be (i)
wilful or (ii) material to the rights or interests of the Lenders under
the Credit Documents;
(f) Goodyear or any Consolidated Subsidiary of Goodyear shall
fail to make any payment of principal in respect of any Material
Indebtedness at the scheduled due date thereof and such failure shall
continue beyond any applicable grace period, or any event or condition
occurs that results in any Material Indebtedness (other than any
Securitization Transaction existing on the date hereof) becoming due or
being required to be prepaid, repurchased, redeemed, defeased or
terminated prior to its scheduled maturity; provided that this clause
(f) shall not apply to (i) secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets
securing such Indebtedness in accordance with the terms and conditions
of this Agreement or (ii)
56
Material Indebtedness of any Foreign Subsidiary if Goodyear is unable,
due to applicable law restricting Investments in such Foreign
Subsidiary, to make an Investment in such Foreign Subsidiary to fund
the payment of such Material Indebtedness;
(g) any event or condition occurs that continues beyond any
applicable grace period and enables or permits the holder or holders of
any Material Indebtedness (other than (i) any Securitization
Transaction existing on the date hereof and (ii) any Material
Indebtedness of any Foreign Subsidiary in an aggregate principal amount
that is less than $50,000,000) or any trustee or agent on its or their
behalf to cause such Material Indebtedness to become due, or to require
the prepayment, repurchase, redemption, defeasance or termination
thereof, prior to its scheduled maturity; provided that (i) no Event of
Default shall occur under this paragraph (g) as a result of any event
or condition relating to the ABL Credit Agreement or any Securitization
Transaction, other than any default in the payment of principal or
interest thereunder that does not result from a change in borrowing
base eligibility criteria or reserves made by the administrative agent
thereunder as to which there is good faith disagreement and (ii) this
clause (g) shall not apply to (i) secured Indebtedness that becomes due
as a result of the voluntary sale or transfer of the property or assets
securing such Indebtedness in accordance with the terms and conditions
of this Agreement or (ii) Material Indebtedness of any Foreign
Subsidiary if Goodyear is unable, due to applicable law restricting
Investments in such Foreign Subsidiary, to make an Investment in such
Foreign Subsidiary to fund the payment of such Material Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization, bankruptcy, moratorium, suspension of payment or other
relief in respect of Goodyear, any Borrower or any Material Subsidiary
or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee in bankruptcy, custodian, sequestrator, conservator
or similar official for Goodyear, any Borrower or any Material
Subsidiary or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 90
days or an order or decree approving or ordering any of the foregoing
shall be entered;
(i) Goodyear, any Borrower or any Material Subsidiary shall
(i) voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization, bankruptcy, moratorium, suspension of
payment or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (h)
of this Section, (iii) apply for or consent to the appointment of a
receiver, trustee in bankruptcy, custodian, sequestrator, conservator
or similar official for Goodyear, any Borrower or any Material
Subsidiary or for a substantial part of its assets, (iv) make a general
assignment for the benefit of creditors or (v) take any action for the
purpose of effecting any of the foregoing;
(j) Goodyear, any Borrower or any Material Subsidiary shall
admit in writing its inability or fail generally to pay its debts as
they become due;
(k) an ERISA Event shall have occurred that, when taken
together with all other ERISA Events that have occurred, would be
materially likely to result in a Material Adverse Change;
57
(l) Liens created under the Security Documents shall not be
valid and perfected Liens on a material portion of the Collateral;
(m) any Guarantee of the Obligations under the Guarantee and
Collateral Agreement shall fail to be a valid, binding and enforceable
Guarantee of one or more Subsidiary Guarantors where such failure would
constitute or be materially likely to result in a Material Adverse
Change; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to Goodyear or
any Borrower described in clause (h) or (i) of this Section), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Majority Lenders shall, by notice to the European
J.V., take any or all of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate
immediately and (ii) declare the Loans then outstanding to be due and payable in
whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the European J.V. and the
other Borrowers accrued hereunder, shall become due and payable immediately,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by Goodyear and each Borrower; and in case of any event with
respect to Goodyear or any Borrower described in clause (h) or (i) of this
Section, the Commitments shall automatically terminate, the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrowers accrued hereunder, shall automatically become
due and payable, in each case without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by Goodyear and each
Borrower.
SECTION 7.02. CAM Exchange. On the CAM Exchange Date, (i) the
Commitments shall automatically and without further act be terminated as
provided in Section 7.01 and (ii) the Lenders shall automatically and without
further act be deemed to have exchanged interests in the Designated Obligations
under each Class of Loans such that, in lieu of the interests of each Lender in
the Designated Obligations under each Class of Loans in which it shall
participate as of such date (including the principal, interest and fee
obligations of each Borrower in respect of the Loans within each such Class),
such Lender shall own an interest equal to such Lender's CAM Percentage in the
Designated Obligations under each such Class of Loans (including the principal,
interest and fee obligations of each Borrower in respect of the Loans within
each such Class). Each Lender, each person acquiring a participation from any
Lender as contemplated by Section 9.04, Goodyear and each Borrower hereby
consents and agrees to the CAM Exchange. After the CAM Exchange Date, Goodyear,
each Borrower and each Lender agrees from time to time to execute and deliver to
the Agents all such promissory notes and other instruments and documents as the
Agents shall reasonably request to evidence and confirm the respective interests
and obligations of the Lenders after giving effect to the CAM Exchange, and each
Lender agrees to surrender any promissory notes originally received by it in
connection with its Loans hereunder to the Administrative Agent against delivery
of any promissory notes so executed and delivered; provided that the failure of
the Goodyear or any Borrower to execute or deliver or of any Lender to accept
any such promissory note, instrument or document shall not affect the validity
or effectiveness of the CAM Exchange.
58
ARTICLE VIII
The Agents
Each of the Lenders hereby irrevocably appoints the Agents as
its agents and authorizes the Agents to take such actions on its behalf and to
exercise such powers as are delegated to the Agents by the terms hereof and of
the other Credit Documents, together with such actions and powers as are
reasonably incidental thereto.
The bank or banks serving as the Agents hereunder shall have
the same rights and powers in their capacity as Lenders as any other Lender and
may exercise the same as though they were not Agents, and such bank or banks and
their Affiliates may accept deposits from, lend money to and generally engage in
any kind of business with Goodyear or any Subsidiary or other Affiliate thereof
as if they were not Agents hereunder.
The Agents shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing (a) the Agents shall not (save as expressly set out in any Credit
Document) be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the Agents shall not have
any duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby that the
Agents are required to exercise in writing by the Majority Lenders, and (c)
except as expressly set forth herein, the Agents shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
communicated to the Agents by or relating to Goodyear or any Subsidiary. The
Agents shall not be liable for any action taken or not taken by them with the
consent or at the request of the Majority Lenders or the Lenders, as the case
may be, or in the absence of their own gross negligence or wilful misconduct. In
addition, the Agents shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Agents by Goodyear, the
European J.V. or a Lender, and the Agents shall not be responsible for or have
any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents
of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article III or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Agents.
The Agents shall be entitled to rely upon, and shall not incur
any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by them to be genuine
and to have been signed or sent by the proper Person. The Agents also may rely
upon any statement made to them orally or by telephone and believed by them to
be made by the proper Person, and shall not incur any liability for relying
thereon. The Agents may consult with legal counsel (who may be counsel for
Goodyear or the European J.V.), independent accountants and other experts
selected by them with reasonable care, and shall not be liable for any action
taken or not taken by them in accordance with the advice of any such counsel,
accountants or experts.
The Agents may perform any and all their duties and exercise
their rights and powers by or through any one or more sub-agents appointed by
the Agents. The Agents and any such sub-agent may perform any and all their
duties and exercise their rights and powers through
59
their respective Affiliates. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Affiliates of the Agents
and any such sub-agent.
Subject to the appointment and acceptance of a successor Agent
as provided below, either Agent may resign at any time by notifying the Lenders
and the European J.V.. Upon any such resignation, the Majority Lenders shall
have the right to appoint a successor with the European J.V.'s written consent
(which shall not be unreasonably withheld or delayed and shall not be required
from the European J.V. if an Event of Default has occurred and is continuing).
If no successor shall have been so appointed by the Majority Lenders and shall
have accepted such appointment within 30 days after the retiring Agent gives
notice of its resignation, then the retiring Agent may, on behalf of the
Lenders, with the European J.V.'s written consent (which shall not be
unreasonably withheld or delayed and shall not be required if an Event of
Default has occurred and is continuing), appoint a successor Agent which shall
be a bank or an Affiliate thereof, in each case with a net worth of at least
$1,000,000,000 and an office in New York, New York. Upon the acceptance of its
appointment as Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After an Agent's resignation hereunder, the provisions of
this Article and Section 9.03 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Agents or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any related agreement or any document
furnished hereunder or thereunder.
Notwithstanding any other provision contained herein, (a) each
Lender (i) acknowledges that the Administrative Agent is not acting as an agent
of Goodyear or any Borrower and that neither Goodyear nor any Borrower will not
be responsible for acts or failures to act on the part of the Administrative
Agent and (ii) exempts each Agent from the restrictions set forth in Section 181
of the German Civil Code (Burgerliches Gesetzbuch) and (b) the Syndication Agent
shall not, in its capacity as such, have any responsibilities under this
Agreement or the other Credit Documents.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Except in the case of notices and
other communications expressly permitted to be given by telephone (and subject
to paragraph (b) below), all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy or e-mail,
as follows:
(i) if to Goodyear, to it at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx,
Xxxx, 00000-0000, Attention of the Treasurer (Telecopy No. (330)
796-1021 or (000) 000-0000);
60
(ii) if to the European J.V., to it, or if to any other
Borrower to it in care of the European J.V., in each case at Xxxx Xxxx
Xxxxxxxxxxxxx 0X, 0000 Xxxxxx, Xxxxxxx, Attention of Chief Financial
Officer (Telecopy No. (00)-000-00000), in each case with a copy to
Goodyear as described in clause (i) above;
(iii) if to the Administrative Agent, to JPMorgan Chase Bank,
Loan and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx Xxxxxx (Telecopy No. (212)
552-5658); and
(iv) if to a Lender, to it at its address (or telecopy number
or e-mail address) set forth in Schedule 2.01 or its Administrative
Questionnaire.
(b) Notices and other communications to the Lenders hereunder
may be delivered or furnished by electronic communications pursuant to
procedures approved by the Administrative Agent; provided that the foregoing
shall not apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent
Goodyear, the European J.V. or any Borrower may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of
such procedures may be limited to particular notices or communications.
(c) Any party hereto may change its address, telecopy number
or e-mail address for notices and other communications hereunder by notice to
the other parties hereto. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement shall be deemed
to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by
any of the Agents or any Lender in exercising any right or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the Agents and
the Lenders hereunder are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by Goodyear, the European J.V. or any
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether any Agent or any
Lender may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any other Credit Document nor
any provision hereof or thereof may be waived, amended or modified except, in
the case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Goodyear, the Borrowers and the Majority Lenders or, in the case
of any other Credit Document, pursuant to an agreement or agreements in writing
entered into by the Administrative Agent or the Collateral Agent and the Credit
Party or Credit Parties that are parties thereto, in each case with the consent
of the Majority Lenders; provided that no such agreement shall (i) increase or
extend the expiration date of the Commitment of any Lender without the written
consent of such Lender, (ii) reduce or forgive all or part of the principal
amount of any Loan or reduce the rate of interest thereon, or reduce any fee
payable hereunder, without the prior written consent of each Lender affected
thereby, (iii) postpone the scheduled date of payment of the principal amount of
any Loan or date for the
61
payment of any interest on any Loan or any fee, or reduce the amount of, waive
or excuse any such payment, without the prior written consent of each Lender
adversely affected thereby, (iv) release all or substantially all the Credit
Parties from their Guarantees under the Guarantee and Collateral Agreement, or
release all or substantially all the Collateral from the Liens of the Security
Documents, without the written consent of each Lender, (v) change any provision
of the Guarantee and Collateral Agreement or any other Security Document to
alter the amount or allocation of any payment to be made to the Secured Parties
without the consent of each adversely affected Lender, (vi) change Section 2.15
in a manner that would alter the pro rata sharing of any payment without the
written consent of each Lender adversely affected thereby, (vii) change any of
the provisions of this Section or the definition of "Majority Lenders" or any
other provision hereof specifying the number or percentage of Lenders required
to waive, amend or modify any rights hereunder or make any determination or
grant any consent hereunder, without the written consent of each Lender or
(viii) change any provision of any Credit Document in a manner that by its terms
adversely affects the rights in respect of payments due to Lenders holding Loans
of any Class differently from those holding Loans of the other Class, without
the written consent of Lenders holding a majority in interest of the outstanding
Loans and unused Commitments of the affected Class; provided further, however,
that any amendment, modification or waiver or modification of this Agreement
that by its terms affects the rights or duties under this Agreement of the
Revolving Lenders (but not the Term Lenders) or the Term Lenders (but not the
Revolving Lenders) may be effected by an agreement or agreements in writing
entered into by Goodyear, the Borrowers and the requisite percentage in interest
of the affected Class of Lenders that would be required to consent thereto under
this Section if such Class of Lenders were the only Class of Lenders hereunder
at the time.
(c) Notwithstanding anything in paragraph (b) of this Section
to the contrary, this Agreement and the other Credit Documents may be amended on
one occasion to establish one or more new Classes of Term Loans and/or Revolving
Commitments by converting the currency in which existing Term Loans or existing
Revolving Commitments are denominated from dollars to like amounts of euro
(based on exchange rates prevailing at or about the date of such conversion, as
determined based on a reference page to be agreed upon), by an agreement in
writing entered into by each applicable Borrower, the Administrative Agent, the
Collateral Agent and each Lender that shall agree to such conversion of all or
part of its Revolving Commitment or Term Loans and treating such converted Term
Loans and/or Revolving Commitments, as applicable, as one or more new Classes.
Any such agreement shall amend the provisions of this Agreement and the other
Credit Documents to set forth the terms of each Class of Term Loans or Revolving
Commitments established thereby and to effect such other changes (including
changes to the provisions of this Section, Section 2.15 and the definition of
"Majority Lenders") as the Borrower and the Administrative Agent shall deem
necessary or advisable in connection with the establishment of any such Class;
provided that no such agreement shall (i) effect any change described in any of
clauses (i), (ii), (iv), (v) or (vii) of paragraph (b) of this Section without
the consent of each Person required to consent to such change under such clause
(it being agreed, however, that any conversion of the currency in which
Revolving Commitments or Term Loans are denominated or the establishment of any
Class of Revolving Commitments or Term Loans in connection therewith and the
amendments in connection therewith that are referred to in this paragraph will
not, of themselves, be deemed to effect any of the changes described in clauses
(i) through (vii) of such paragraph (b)), (ii) amend Article V, VI or VII to
establish any affirmative or negative covenant, Event of Default or remedy that
by its terms benefits one or more Classes, but not all Classes, of Loans or
Borrowings without the prior written consent of Lenders holding a majority in
interest of the Loans and Commitments of each Class not so benefited or (iii)
change any other provision of this Agreement or any other Credit Document that
creates rights in favor of Lenders holding Loans or Commitments of any existing
Class, other than as necessary or
62
advisable in the judgment of the Administrative Agent to cause such provision to
take into account, or to make the benefits of such provision available to,
Lenders holding Term Loans of such new Class or such new Class of Revolving
Commitments. The Loans, Commitments and Borrowings of any Class established
pursuant to this paragraph shall constitute Loans, Commitments and Borrowings
under, and shall be entitled to all the benefits afforded by, this Agreement and
the other Credit Documents, and shall, without limiting the foregoing, benefit
equally and ratably from the Guarantees and security interests created by the
Guarantee and Collateral Agreement and the Security Documents supporting the
respective Classes of Loans of the applicable Borrower or Borrowers, as the case
may be. At any time the Borrower wishes to establish a new Class of Term Loans
or Revolving Commitments pursuant to this paragraph, the Borrower shall offer
each Lender the opportunity to convert its Term Loans or Revolving Commitments,
as applicable. If a greater amount is tendered for conversion than the Borrower
wishes to convert, the Term Loans or Revolving Commitments, as applicable, of
each tendering Lender shall be accepted for conversion on a pro rata basis based
on the percentage of all the Term Loans or Revolving Commitments, as applicable,
tendered by all Lenders represented by the amount tendered by such Lender.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The
European J.V. shall pay (i) all reasonable out-of-pocket expenses incurred by
the Agents, the Arranger and their Affiliates (including the reasonable fees,
charges and disbursements of Cravath, Swaine & Xxxxx, counsel for the Agents and
the Arranger, and Xxxxx & Overy and other local and foreign counsel for the
Agents and Arranger, limited to one per jurisdiction, in connection with the
Security Documents and the creation and perfection of the Liens created thereby
and other local and foreign law matters) in connection with the arrangement and
syndication of the credit facilities provided for herein, the preparation,
execution, delivery and administration of this Agreement and the other Credit
Documents or any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), and (ii) all reasonable out-of-pocket expenses incurred by the
Agents or any Lender, including the fees, charges and disbursements of any
counsel for the Agents or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights
under this Section, or in connection with the Loans made, including all such
out-of-pocket expenses incurred during any workout, restructuring or similar
negotiations in respect of such Loans. The European J.V. shall pay all
out-of-pocket expenses incurred by the Collateral Agent in connection with the
creation and perfection of the security interests contemplated by this
Agreement, including all filing, recording and similar fees and, as more
specifically set forth above, the reasonable fees and disbursements of counsel
(including local counsel in each relevant jurisdiction).
(b) The European J.V. shall indemnify the Administrative
Agent, the Arranger, and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee") against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including the reasonable fees, charges and
disbursements of any counsel for any Indemnitee), incurred by or asserted
against any Indemnitee and arising out of (i) the execution or delivery of this
Agreement or any Credit Document or agreement or instrument contemplated hereby,
the performance by the parties hereto of their respective obligations or the
exercise by the parties hereto of their rights hereunder or thereunder or the
consummation of the Transactions or any other transactions contemplated hereby
or thereby, (ii) any Loan or the use of the proceeds thereof, (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
currently or formerly owned or operated by the European J.V. or any of its
Subsidiaries, or any Environmental Liability related in any way to the European
J.V. or any of its Subsidiaries, or (iv) any claim, litigation, investigation or
63
proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
shall have resulted from the gross negligence or wilful misconduct of such
Indemnitee or the breach by such Indemnitee of obligations set forth herein or
in any other Credit Document.
(c) To the extent that the European J.V. fails to pay any
amount required to be paid by it to any Agent or Arranger under paragraph (a) or
(b) of this Section, each Lender severally agrees to pay to such Agent or
Arranger, as the case may be, such Lender's Applicable Percentage (determined as
of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against such Agent or Arranger in its capacity
as such.
SECTION 9.04. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto, the Indemnitees and their respective successors and assigns permitted
hereby, except that (i) no Borrower may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by any Borrower without such consent
shall be null and void) and (ii) no Lender may assign or otherwise transfer its
rights or obligations hereunder except in accordance with this Section. Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, Indemnitees, their respective successors
and assigns permitted hereby, Participants (to the extent provided in paragraph
(c) of this Section) and, to the extent expressly contemplated hereby, the
Related Parties of each of the Agents, the Arranger, and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may assign to one or more assignees (including any CLO
or other Approved Fund) all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitments and the Loans at
the time owing to it); with the prior written consent (such consent not to be
unreasonably withheld or delayed) of:
(A) the European J.V.; provided that no consent of the
European J.V. shall be required for an assignment to a Lender, an
Affiliate of a Lender (other than an Approved Fund or CLO), a Federal
Reserve Bank or, if an Event of Default has occurred and is continuing,
any other assignee; provided further that the consent of the European
J.V. shall be required for an assignment by any Revolving Lender to any
Person (other than a Revolving Lender); and
(B) the Administrative Agent; provided that no consent of the
Administrative Agent shall be required for an assignment to an assignee
that is a Lender, an Affiliate of a Lender, a Federal Reserve Bank or
an Approved Fund; provided further that the consent of the
Administrative Agent shall be required for an assignment by any
Revolving Lender to any Person (other than a Revolving Lender).
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender, the amount of the Commitment of the assigning
Lender subject to each such assignment
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(determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 or, if smaller, the entire remaining amount of
the assigning Lender's Commitment unless each of the European J.V. and
the Administrative Agent shall otherwise consent, provided (i) that no
such consent of the European J.V. shall be required if an Event of
Default has occurred and is continuing and (ii) in the event of
concurrent assignments to two or more assignees that are Affiliates of
one another, or to two or more Approved Funds managed by the same
investment advisor or by affiliated investment advisors, all such
concurrent assignments shall be aggregated in determining compliance
with this subsection;
(B) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and
obligations under this Agreement; provided that this clause shall not
be construed to prohibit the assignment of a proportionate part of all
the assigning Lender's rights and obligations in respect of one Class
of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee of $3,500; provided that in the event
of concurrent assignments to two or more assignees that are Affiliates
of one another, or to two or more Approved Funds managed by the same
investment advisor or by affiliated investment advisors, only one such
fee shall be payable; and
(D) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Assumption the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement
(including those specified under Section 9.15), and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.12,
2.13, 2.14 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.04
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section. Each assignment hereunder shall be deemed to be an assignment of
the related rights under the Guarantee and Collateral Agreement.
(iv) The Administrative Agent shall maintain at one of its
offices a copy of each Assignment and Assumption delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and the Borrowers, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by any Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire
65
(unless the assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(vi) By executing and delivering an Assignment and
Assumption, the assigning Lender thereunder and the assignee thereunder shall be
deemed to confirm to and agree with each other and the other parties hereto as
follows: (i) such assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse claim
and that its Commitment and the outstanding balances of its Loans, in each case
without giving effect to assignments thereof that have not become effective, are
as set forth in such Assignment and Assumption; (ii) except as set forth in
clause (i) above, such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or any other Credit
Document or any other instrument or document furnished pursuant hereto or
thereto, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of any of the foregoing, or the financial condition of the
Credit Parties or the performance or observance by the Credit Parties of any of
their obligations under this Agreement or under any other Credit Document or any
other instrument or document furnished pursuant hereto or thereto; (iii) each of
the assignee and the assignor represents and warrants that it is legally
authorized to enter into such Assignment and Assumption; (iv) such assignee
confirms that it has received a copy of this Agreement, together with copies of
any amendments or consents entered into prior to the date of such Assignment and
Assumption and copies of the most recent financial statements delivered pursuant
to Section 5.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Assumption; (v) such assignee will independently and without
reliance upon the Agents, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (vi) such assignee appoints and authorizes the Agents to take
such action as agents on its behalf and to exercise such powers under this
Agreement and the other Credit Documents as are delegated to them by the terms
hereof and thereof, together with such powers as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all the obligations that by the terms of this Agreement are required
to be performed by it as a Lender.
(vii) Upon any assignment pursuant to this Section 9.04(b),
the European J.V. (or the Administrative Agent, at the expense of the European
J.V.) shall promptly notify each Subsidiary Guarantor organized under the laws
of the Republic of France of such assignment by bailiff (hussier) in accordance
with Article 1690 of the French Civil Code. If such assignment is made without
the European J.V.'s consent, the Administrative Agent shall provide prompt
written notice of such assignment to the European J.V.
(viii) For the purposes of Article 1278 et seq. of the French
Civil Code, each party hereto agrees that upon any novation under this Section
9.04(b), the security interests created and Guarantees made pursuant to the
Security Documents shall be preserved for the benefit of the assignee and the
other Lenders.
(ix) For the purposes of Italian law only, any assignment made
under an Assignment and Assumption shall be deemed to constitute a cessione del
contratto. Furthermore,
66
the European J.V. hereby expressly consents to any assignment pursuant to this
Section 9.04(b) by any Revolving Lender to any other Revolving Lender.
(c) (i) Any Lender may, without the consent of Goodyear, the
European J.V., any other Borrower or the Administrative Agent, sell
participations to one or more banks or other entities (each a "Participant") in
all or a portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lender's obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (C) the Borrowers, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver that
affects such Participant and that, under Section 9.02, would require the consent
of each affected Lender. Subject to paragraph (c)(ii) of this Section, each
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.12, 2.13 and 2.14 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.15(d) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any
greater payment under Section 2.12 or 2.14 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the European J.V.'s prior written consent, which consent shall specifically
refer to this exception. A Participant that would be a Foreign Lender if it were
a Lender shall not be entitled to the benefits of Section 2.14 unless the
European J.V. is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the European J.V., to comply with Section
2.14(e) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by Goodyear, the European J.V. and each
other Borrower herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the making of any Loans, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that any Agent or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any fee or any other amount payable
under this Agreement is outstanding and unpaid and so long as the Commitments
have not expired or terminated. The provisions of Sections 2.12, 2.13, 2.14 and
9.03 and Article IX shall survive and
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remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective as provided in Section 4.01. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction. No failure to obtain any approval required for the effectiveness
of any provision of this Agreement shall affect the validity or enforceability
of any other provision of this Agreement.
SECTION 9.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing and the Loans shall have become due and payable
pursuant to Article VII, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of any
Borrower against any of and all the obligations of such Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service
of Process. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Goodyear, the European J.V. and each other Borrower hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
hereto may otherwise have to bring any action or proceeding relating to this
Agreement in the courts of any jurisdiction.
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(c) Each party hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 9.10. 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 OR THE TRANSACTIONS CONTEMPLATED HEREBY (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 OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Agents and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors who have been informed of the confidential nature of such
Information and instructed to keep such Information confidential, (b) to the
extent requested by any regulatory authority (including the NAIC), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar
legal process, (d) to any other party to this Agreement, (e) to the extent
necessary or advisable in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
Goodyear or any Borrower and its obligations, (g) with the written consent of
Goodyear or (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
any Agent or any Lender on a nonconfidential basis from a source other than
Goodyear. For the purposes of this Section, "Information" means all information
received from Goodyear or Persons acting on its behalf relating to Goodyear or
its business, other than any such information that is available to any Agent or
any Lender prior to disclosure by Goodyear on a nonconfidential basis from a
source other than Goodyear that is not known by the recipient to be bound by a
confidentiality agreement or other obligation of confidentiality with respect to
such information. Notwithstanding anything herein to the contrary, any party to
this Agreement (and any employee, representative or other agent of such party)
69
may disclose to any and all persons, without limitation of any kind, the tax
treatment and tax structure of the transactions contemplated by this Agreement
and all materials of any kind (including opinions or other tax analyses) that
are provided to it relating to such tax treatment and tax structure, but no
party shall disclose any information relating to such tax treatment or tax
structure to the extent nondisclosure is necessary in order to comply with
applicable securities laws.
SECTION 9.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively, the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Alternate Base Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.14. Security Documents. Each Lender hereby
authorizes and directs the Collateral Agent to execute and deliver the Guarantee
and Collateral Agreement and each other Security Document. Each Lender, by
executing and delivering this Agreement, acknowledges receipt of a copy of the
Guarantee and Collateral Agreement and approves and agrees to be bound by and to
act in accordance with the terms and conditions of the Guarantee and Collateral
Agreement and each other Security Document, specifically including (i) the
provisions of Section 6.03 of the Guarantee and Collateral Agreement (governing
the distribution of proceeds realized from the exercise of remedies under the
Security Documents), (ii) the provisions of Article VIII of the Guarantee and
Collateral Agreement (governing the manner in which Acts of the Secured Parties
are to be evidenced and the manner in which the amounts of the Obligations and
the other Obligations (as defined in the Guarantee and Collateral Agreement) are
to be determined at any time), (iii) the provisions of Articles IX and X of the
Guarantee and Collateral Agreement (relating to the duties and responsibilities
of the Collateral Agent and providing for the indemnification and the
reimbursement of expenses of the Collateral Agent by the Lenders), (iv) the
provisions of Article XI of the Guarantee and Collateral Agreement (providing
for the subordination of certain Junior Liens (as defined therein) in favor of
the Secured Parties to the Applicable Senior Liens (as defined therein)) and (v)
the provisions of Section 13.13 of the Guarantee and Collateral Agreement
(providing for releases of Guarantees of and Collateral securing the
Obligations). Each party hereto further agrees that the parties to the other
Security Documents shall perform their obligations thereunder in accordance with
the foregoing provisions of the Guarantee and Collateral Agreement.
SECTION 9.15. Collateral Agent as Joint and Several Creditor.
(a) Each Secured Party and each Credit Party agrees that the Collateral Agent
shall be the joint and several creditor (together with the relevant other
Secured Parties) of each and every payment obligation of each Credit Party
towards each of the Secured Parties under the Credit Documents or under any Swap
Agreement or arising out of or in connection with cash management or other
similar services provided by any Secured Party and that accordingly the
Collateral Agent will have its own independent rights to demand from each Credit
Party in satisfaction of those obligations and shall hold any security interest
created pursuant to any Security Document to secure those
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obligations in its own name, and not solely as agent or mandatory (lasthebber)
for the Secured Parties, with full and unrestricted entitlement to and authority
in respect of such security interest; provided that it is expressly acknowledged
that any discharge of any payment obligation to either of the Collateral Agent
or the relevant Secured Parties shall to the same extent discharge the
corresponding obligation owing to the other.
(b) Without limiting or effecting the Collateral Agent's
rights against each Credit Party (whether under this Section 9.15 or on any
other provisions of the Credit Documents) the Collateral Agent agrees with each
Secured Party that it will not exercise its right as joint and several creditor
with such Secured Party except with the prior written consent of such Secured
Party; provided, however, that for the avoidance of doubt, nothing in this
sentence in any way limits the Collateral Agent's rights to act in the
protection or preservation of rights under or to enforce any Security Document
as contemplated by this Agreement and the relevant Security Documents. Any
amounts recovered by the Collateral Agent as a result of the operation of this
Section 9.15 shall be held for the benefit of the applicable Secured Party or
Secured Parties to be applied in accordance with the provisions hereof and of
the Security Documents.
SECTION 9.16. Conversion of Currencies. (a) If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum
owing hereunder in one currency into another currency, each party hereto agrees,
to the fullest extent that it may effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.
(b) The obligations of Goodyear or any Borrower in respect of
any sum due to any party hereto or any holder of the obligations owing hereunder
(the "Applicable Creditor") shall, notwithstanding any judgment in a currency
(the "Judgment Currency") other than the currency in which such sum is stated to
be due hereunder (the "Agreement Currency"), be discharged only to the extent
that, on the Business Day following receipt by the Applicable Creditor of any
sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may
in accordance with normal banking procedures in the relevant jurisdiction
purchase the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, each of Goodyear and each
Borrower agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify the Applicable Creditor against such loss. The obligations of
Goodyear and the Borrowers contained in this Section 9.15 shall survive the
termination of this Agreement and the payment of all other amounts owing
hereunder.
SECTION 9.17. Dutch Banking Act. (a) On the date of this
Agreement (i) if the European JV is a credit institution (kredietinstelling)
under the Dutch Banking Act, it is in compliance with the applicable provisions
of the Dutch Banking Act and any implementing regulations including, but not
limited to, the Dutch Exemption Regulation; and (ii) each Person which is a
Lender under this Agreement is either (A) a Professional Market Party under the
Dutch Exemption Regulation or (B) exempted from the re-quirement to be a
Professional Market Party because it forms part of a closed circle (besloten
xxxxx) with the European J.V..
(b) At the time of each assignment under Section 9.04, if at
the time thereof it is a requirement of Dutch law, the assignee shall be a
Professional Market Party. If on the date of an assignment, it is a requirement
of Dutch law that an assignee must be a Professional Market Party, the European
J.V. must make the representation that it has verified the status of each person
which is a Lender under this Agreement either as (i) a Professional Market Party
under the
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Dutch Exemption Regulation; or (ii) exempted from the requirement to be a
Professional Market Party because it forms part of a closed circle (besloten
xxxxx) with the European J.V. On the date that an assignee becomes party to this
Agreement as a Lender that Lender hereby represents and warrants that on that
date it is either (A) a Professional Market Party under the Dutch Exemption
Regulation; or (B) exempted from the requirement to be a Professional Market
Party because it forms part of a closed circle (besloten xxxxx) with the
European J.V., as evidenced by a verification letter delivered to the European
J.V. in substantially the form attached hereto as Exhibit G
(c) For purposes of this Section 9.17:
(i) "Professional Market Party" means a professional market
party (professionele marktpartij) under the Dutch Exemption Regulation
which includes only (a) banks, insurance companies, securities firms,
investment institutions and pension funds that are (i) supervised or
licensed under Dutch law or (ii) established and acting under
supervision in a European Union member state (other than the
Netherlands), Hungary, Monaco, Poland, Puerto Rico, Saudi Arabia,
Slovakia, Czech Republic, Turkey, South Korea, the United States of
America, Japan, Australia, Canada, Mexico, New Zealand or Switzerland;
(b) investment institutions which offer their participation rights
exclusively to professional market parties and are not required to be
supervised or licensed under Dutch law; (c) the State of the
Netherlands, the Dutch Central Bank, a foreign central government body,
a foreign central bank, Dutch regional and local governments and
comparable foreign de-centralised government bodies, international
treaty organisations and supranational organisations; (d) enterprises
or entities with total assets of at least EUR500,000,000 (or the
equivalent thereof in another currency) as per the balance sheet as of
the year end preceding the obtaining of the repayable funds; (e)
enterprises, entities or individuals with net assets (eigen vermogen)
of at least EUR10,000,000 (or the equivalent thereof in another
currency) as of the year end preceding the obtaining of the repayable
funds who or which have been active in the financial markets on average
twice a month over a period of at least two consecutive years preceding
the obtaining of the repayable funds; (f) subsidiaries of the entities
referred to under (a) above provided such subsidiaries are subject to
supervision; and (g) an enterprise or institution that has a rating
from a rating agency that in the opinion of the Dutch Central Bank is
an expert or that issues securities that have a rating from a rating
agency that in the opinion of the Dutch Central Bank is an expert.
(ii) "Dutch Banking Act" means the Dutch Act on the
Supervision of the Credit System 1992 (Wet Toezicht Kredietwezen 1992),
as amended from time to time.
(iii) "Dutch Exemption Regulation" means the Exemption
Regulation of the Minister of Finance of June 26, 2002
(Vrijstellingsregeling WtK 1992), as amended from time to time.
SECTION 9.18. Power of Attorney. Each Lender hereby (i)
authorizes the Collateral Agent to execute and deliver, on behalf of
and in the name of such Lender, all and any Credit Documents (including
without limitation Security Documents) and related documentation, (ii)
authorizes the Collateral Agent to appoint any further agents or
attorneys to execute and deliver, or otherwise to act, on behalf of and
in the name of the Collateral Agent for any such purpose, (iii)
authorizes the Collateral Agent to do any and all acts and to make and
receive all declarations which are deemed necessary or appropriate to
the Collateral Agent. The Lenders hereby relieve the Collateral Agent
from
72
the self-dealing restrictions imposed by Section 181 of the German
Civil Code and the Collateral Agent may also relieve agents and
attorneys appointed pursuant to the powers granted under this Section
9.18 from the restrictions imposed by Section 181 of the German Civil
Code. For the purposes of Italian law, each Lender expressly authorizes
the Collateral Agent (and any agents and attorneys appointed under this
Section 9.18) to act under a conflict of interest and self-dealing
(including, but not limited to a situation in which the Collateral
Agent acts simultaneously in the name and/or on behalf (a) of any
Secured Party, on the one hand, and (b) of any Credit Party, on the
other hand) solely in relation to this Agreement, the Master Guarantee
and Collateral Agreement and the other Security Documents. Any attorney
appointed by the Collateral Agent pursuant to this Section 9.18 may
grant sub-power to a sub-attorney in the same scope
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
THE GOODYEAR TIRE & RUBBER COMPANY,
by
/s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------------------------
Name:
Title:
GOODYEAR DUNLOP TIRES EUROPE B.V.,
by
___________________________________________
Name:
Title:
GOODYEAR DUNLOP TIRES GERMANY GMBH,
by
___________________________________________
Name:
Title:
GOODYEAR GMBH & CO KG,
by
___________________________________________
Name:
Title:
DUNLOP GMBH & CO KG,
by
___________________________________________
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
THE GOODYEAR TIRE & RUBBER COMPANY,
by
___________________________________________
Name:
Title:
GOODYEAR DUNLOP TIRES EUROPE B.V.,
by
/s/ Xxxxxxxx Regnault /s/ Xxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxxxx Xxxxx Scialom
Title: Director Director
GOODYEAR DUNLOP TIRES GERMANY GMBH,
by
___________________________________________
Name:
Title:
GOODYEAR GMBH & CO KG,
by
___________________________________________
Name:
Title:
DUNLOP GMBH & CO KG,
by
___________________________________________
Name:
Title:
73
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
THE GOODYEAR TIRE & RUBBER COMPANY,
by
___________________________________________
Name:
Title:
GOODYEAR DUNLOP TIRES EUROPE B.V.,
by
___________________________________________
Name:
Title:
GOODYEAR DUNLOP TIRES GERMANY GMBH,
by
/s/ Xxxxxxx Xxxxxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: General Manager
by
/s/ Xxxxxxxx Xxxx
-------------------------------------------
Name: Xxxxxxxxx Xxxx
Title: General Manager
GOODYEAR GMBH & CO KG,
by
/s/ Xxxxxxx Xxxxxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: General Manager
by
/s/ Xxxxxxxxx Xxxx
-------------------------------------------
Name: Xxxxxxxxx Xxxx
Title: General Manager
74
DUNLOP GMBH & CO KG,
by
/s/ Xxxxxxx Xxxxxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: General Manager
by
/s/ Xxxxxxxxx Xxxx
-------------------------------------------
Name: Xxxxxxxxx Xxxx
Title: General Manager
GOODYEAR LUXEMBOURG TIRES SA,
by
___________________________________________
Name:
Title:
JPMORGAN CHASE BANK, individually and as
Administrative Agent and Collateral Agent,
by
/s/ B. Xxxxxx Xxxxxx
-------------------------------------------
Name:
Title:
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: ABN AMRO Bank N.V.
by /s/ Xxxx X. Xxxxxx
--------------------------------------------
Name: Xxxx. X. Xxxxxx
Title: Senior Vice President
/s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Group Vice President
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: Banca Intesa S.p.A., New York Branch
by /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
by /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE B.V.;
GOODYEAR DUNLOP TIRES GERMANY
GMBH; GOODYEAR GMBH & CO KG;
DUNLOP GMBH & CO KG; GOODYEAR
LUXEMBOURG TIRES SA; the LENDERS
party hereto; JPMORGAN CHASE BANK, as
Administrative Agent and Collateral Agent; and
DEUTSCHE BANK AG, as Syndication 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/ Xxxxxxxx Xxxxxxxxx
--------------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: First Vice President
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: Bank of America
by /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: The Bank of East Asia, Limited, New York Branch
by /s/ Xxx X. Xxxx
-----------------------------------
Name: Xxx X. Xxxx
Title: Head of Credit
by /s/ Peng Xxx Xxxx
-----------------------------------
Name: Peng Xxx Xxxx
Title: General Manager
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: THE BANK OF NEW YORK
by /s/ Xxxx X. Xxxxx, Xx.
-----------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: Bank One, NA
by /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: First Vice President
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: BANK OF TOYKO-MITSUBISHI TRUST COMPANY
by /s/ Xxxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent
and Collateral Agent; and DEUTSCHE
BANK AG, as Syndication Agent.
Name of Institution: BARCLAYS BANK PLC
by /s/ Xxxxxxxx Xxxx
--------------------------------------------
Name: Xxxxxxxx Xxxx
Title: Director
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE B.V.;
GOODYEAR DUNLOP TIRES GERMANY
GMBH; GOODYEAR GMBH & CO KG;
DUNLOP GMBH & CO KG; GOODYEAR
LUXEMBOURG TIRES SA; the LENDERS
party hereto; JPMORGAN CHASE BANK, as
Administrative Agent and Collateral Agent; and
DEUTSCHE BANK AG, as Syndication Agent.
Name of Institution: BAYERISCHE HYPO-UND VEREINSBANK, AG NEW YORK BRANCH
by /s/ Xxx Xxxxxxxx /s/ Xxxxxxx Xxxxxxxx
---------------- --------------------
Name: Xxx Xxxxxxxx Name: Xxxxxxx Xxxxxxxx
Title: Director Title: Director
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
BNP PARIBAS
By /s/ Xxxxxxxxx X. Xxxxx, Xx.
----------------------------------------------
Name: Xxxxxxxxx X. Xxxxx, Xx.
Title: Managing Director
By /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Central Region Manager
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: CIBC Inc.
by /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Director
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: Citibank, N.A.
by /s/ Xxxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: V.P.
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: Citicorp USA, Inc
by /s/ Xxxxx Xxx
-----------------------------------
Name: Xxxxx Xxx
Title: Director
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
COMMERZEBANK
Aktiengesellschaft
Name of Institution: Cologne Branch
by /s/ Xxxxx Xxx /s/ Konrad Noltenhans
-----------------------------------------------------
Xxxxx Xxx Konrad Noltenhans
(Vice President) (Vice President)
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: Credit Lyonnais New York Branch
by /s/ Guido Van Hauwermeiren
--------------------------------------------
Name: Guido Van Hauwermeiren
Title: Senior Vice President
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: Credit Suisse First Boston, Cayman Islands Branch
by /s/ Xxxx X. Xxxxxxx
--------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director
by /s/ Xxxxxxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Associate
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
DEUTSCHE BANK AG, NEW YORK BRANCH
by /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Director
by /s/ Xxxx-Xxxxx Xxxxxx
-----------------------------------
Name: Xxxx-Xxxxx Xxxxxx
Title: Director
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
DRESDNER BANK AG NEW YORK AND
Name of Institution: GRAND CAYMAN BRANCHES
by /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
by /s/ Xxxxxxx Xxxxxxxx
--------------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Associate
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: Fifth Third Bank
by /s/ Xxxxxx X. XxXxxxx
--------------------------------------------
Name: Xxxxxx X. XxXxxxx
Title: Vice President
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: IKB Capital Corporation
by /s/ Xxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Senior Vice President
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: JPMORGAN CHASE BANK
by /s/ B. Xxxxxx Xxxxxx
-----------------------------------
Name: B. Xxxxxx Xxxxxx
Title: Managing Director
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: KBC BANK N.V.
by /s/ Xxx Xxxxxxxxxxx /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------------------------
Name: Xxx Xxxxxxxxxxx Name: Xxxxxxx Xxxxxxxxx
Title: Sr. Vice President & Title: Vice President
General Manager
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: KeyBank National Association
by /s/ W. Xxxxxx Xxxxxxx
--------------------------------------------
Name: W. Xxxxxx Xxxxxxx
Title: Vice President
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: Mizuho Corp. Bank, Ltd., NY Branch
by /s/ Xxxxxx X. Xxxxxxxxx, Xx.
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: VP & Team Leader
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES
EUROPE B.V.; GOODYEAR DUNLOP
TIRES GERMANY GMBH; GOODYEAR
GMBH & CO KG; DUNLOP GMBH & CO
KG; GOODYEAR LUXEMBOURG TIRES
SA; the LENDERS party hereto;
JPMORGAN CHASE BANK, as
Administrative Agent and Collateral Agent;
and DEUTSCHE BANK AG, as Syndication
Agent.
Name of Institution: Natexis Banques Populaires
by /s/ Nicolas Regent
--------------------------------------------
Name: Nicolas Regent
Title: Vice President Multinational Group
by
/s/ Xxxxxx X. von Tulder
--------------------------------------------
Name: Xxxxxx X. von Tulder
Title: Vice President & Manager
Multinational Group
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: National City Bank
by /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: The Northern Trust Company
by /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: Royal Bank Of Canada
by /s/ Xxxxx Xxxx
--------------------------------------------
Name: Xxxxx Xxxx
Title: Manager
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: SOCIETE GENERALE
by /s/ Xxxx-Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx-Xxxxx Xxxxxxxxx
Title: Vice President
LENDER SIGNATURE PAGE TO THE
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: SUMITOMO MITSUI BANKING CORPORATION
by /s/ Xxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxx X. Xxxxxxxxx
Title: Senior Vice President
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: STANDARD CHARTERED BANK
by /s/ Xxxx XxXxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Executive Vice President
by /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
CREDIT AGREEMENT among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE
B.V.; GOODYEAR DUNLOP TIRES
GERMANY GMBH; GOODYEAR GMBH &
CO KG; DUNLOP GMBH & CO KG;
GOODYEAR LUXEMBOURG TIRES SA;
the LENDERS party hereto; JPMORGAN
CHASE BANK, as Administrative Agent and
Collateral Agent; and DEUTSCHE BANK
AG, as Syndication Agent.
Name of Institution: TAIPEIBANK, NEW YORK AGENCY
by /s/ Xxxxxx Xxxx
--------------------------------------------
Name: Xxxxxx Xxxx
Title: Vice President & General Manager
LENDER SIGNATURE PAGE TO THE CREDIT
AGREEMENT dated as of March ____,2003, among THE
GOODYEAR TIRE & RUBBER COMPANY;
GOODYEAR DUNLOP TIRES EUROPE B.V.;
GOODYEAR DUNLOP TIRES GERMANY GMBH;
GOODYEAR GMBH & CO KG; DUNLOP GMBH &
CO KG; GOODYEAR LUXEMBOURG TIRES SA; the
LENDERS party hereto; JPMORGAN CHASE BANK,
As administrative Agent and Collateral Agent; and
DEUTSCHE BANK AG, as Syndication Agent.
Name of Institution: WACHOVIA BANK, NATIONAL ASSOCIATION
by /s/XXX XXXXXX
--------------------------------------------
Name: XXX XXXXXX
Title: Director
