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EXHIBIT 4.8
================================================================================
AMENDED AND RESTATED TERM LOAN AND REVOLVING CREDIT
AGREEMENT
dated as of
February 19, 2004
among
THE GOODYEAR TIRE & RUBBER COMPANY,
as Borrower,
The Lenders Party Hereto,
JPMORGAN CHASE BANK,
as Administrative Agent,
CITICORP USA, INC.,
as Syndication Agent,
Bank of America, N.A.,
as Documentation Agent,
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Documentation Agent
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Documentation Agent
J.P. MORGAN SECURITIES INC.,
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead
Arranger
as Joint Lead Arranger
and Joint
Bookrunner
and Joint Bookrunner
[CS&M #6701-315]
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TABLE OF CONTENTS
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ARTICLE I
Definitions
SECTION 1.01. Defined
Terms............................................................................
1
SECTION 1.02. Classification of Loans and
Borrowings...................................................
37
SECTION 1.03. Foreign Currency
Translation.............................................................
37
SECTION 1.04. Terms
Generally..........................................................................
37
SECTION 1.05. Accounting Terms;
GAAP...................................................................
38
ARTICLE II
The Credits
SECTION 2.01.
Commitments..............................................................................
38
SECTION 2.02. Loans and
Borrowings.....................................................................
39
SECTION 2.03. Requests for
Borrowing...................................................................
39
SECTION 2.04. Letters of
Credit........................................................................
40
SECTION 2.05. Funding of
Borrowings....................................................................
45
SECTION 2.06. Interest
Elections.......................................................................
45
SECTION 2.07. Termination of Commitments;
Reductions of Commitments....................................
47
SECTION 2.08. Repayment of Loans; Evidence of
Debt.....................................................
47
SECTION 2.09. Prepayment of
Loans......................................................................
48
SECTION 2.10.
Fees.....................................................................................
50
SECTION 2.11.
Interest.................................................................................
51
SECTION 2.12. Alternate Rate of
Interest...............................................................
52
SECTION 2.13. Increased
Costs..........................................................................
52
SECTION 2.14. Break Funding
Payments...................................................................
53
SECTION 2.15.
Taxes....................................................................................
54
SECTION 2.17. Mitigation Obligations;
Replacement of Lenders...........................................
57
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization;
Powers.....................................................................
58
SECTION 3.02. Authorization;
Enforceability............................................................
58
SECTION 3.03. Governmental Approvals; No
Conflicts.....................................................
58
SECTION 3.04. Financial Statements; No Material
Adverse Change.........................................
59
SECTION 3.05. Litigation and Environmental
Matters.....................................................
59
SECTION 3.06. Compliance with Laws and
Agreements......................................................
59
SECTION 3.07. Investment and Holding Company
Status....................................................
60
SECTION 3.08.(a) ERISA and Canadian Pension
Plans......................................................
60
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SECTION 3.09.
Disclosure...............................................................................
60
SECTION 3.10. Security
Interests.......................................................................
60
SECTION 3.11. Use of Proceeds. The proceeds of
the Loans will be used only for the purposes
referred to in the preamble to this
Agreement..................................
61
ARTICLE IV
Conditions
SECTION 4.01. Each Credit
Event........................................................................
61
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other
Information...............................................
62
SECTION 5.02. Notices of
Defaults......................................................................
64
SECTION 5.03. Existence; Conduct of
Business...........................................................
64
SECTION 5.04. Maintenance of
Properties................................................................
64
SECTION 5.05. Books and Records; Inspection and
Audit Rights; Access Rights............................
65
SECTION 5.06. Compliance with
Laws.....................................................................
66
SECTION 5.07.
Insurance................................................................................
66
SECTION 5.08. Guarantees and
Collateral................................................................
66
SECTION 5.09. Borrowing Base
Certificate...............................................................
68
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness and Preferred Equity
Interests..............................................
69
SECTION 6.02.
Liens....................................................................................
72
SECTION 6.03. Sale and Leaseback
Transactions..........................................................
75
SECTION 6.04. Fundamental
Changes......................................................................
75
SECTION 6.05. Investments, Loans, Advances and
Guarantees..............................................
76
SECTION 6.06. Asset
Dispositions.......................................................................
78
SECTION 6.07. Restricted
Payments......................................................................
79
SECTION 6.08. Capital
Expenditures.....................................................................
80
SECTION 6.09. Interest Expense Coverage
Ratio..........................................................
81
SECTION 6.10. Consolidated Net
Worth...................................................................
81
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ARTICLE VII
Events of Default; Inter-Tranche Agreements With Respect to
Collateral
SECTION 7.01. Events of
Default........................................................................
81
SECTION 7.02. Inter-Tranche Agreements With
Respect to Collateral......................................
84
ARTICLE VIII
The Agents
ARTICLE IX
Miscellaneous
SECTION 9.01.
Notices.................................................................................
89
SECTION 9.02. Waivers;
Amendments.....................................................................
89
SECTION 9.03. Expenses; Indemnity; Damage
Waiver......................................................
91
SECTION 9.04. Successors and
Assigns..................................................................
93
SECTION 9.05.
Survival................................................................................
97
SECTION 9.06. Counterparts; Integration;
Effectiveness................................................
97
SECTION 9.07.
Severability............................................................................
97
SECTION 9.08. Right of
Setoff.........................................................................
97
SECTION 9.09. Governing Law; Jurisdiction;
Consent to Service of Process..............................
98
SECTION 9.10. WAIVER OF JURY
TRIAL....................................................................
98
SECTION 9.11.
Headings................................................................................
99
SECTION 9.12.
Confidentiality.........................................................................
99
SECTION 9.13. Interest Rate
Limitation................................................................
99
SECTION 9.14. Security
Documents......................................................................
100
SECTION 9.15. Additional Financial
Covenants..........................................................
100
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SCHEDULES:
Schedule 1.01 --
Consent
Subsidiaries
Schedule 2.01 --
Commitments
Schedule 3.10(b) -- Material Trademarks
Schedule 6.01 --
Existing
Indebtedness
Schedule 6.02 --
Existing
Liens
Schedule 6.06 --
Asset
Dispositions
EXHIBITS:
Exhibit A -- Form of
Borrowing Request
iii
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Exhibit B -- Form of Interest Election
Request
Exhibit C -- Form of
Promissory Note
Exhibit D -- Form of
Assignment and Assumption
Exhibit E -- Form of
Borrowing Base Certificate
Exhibit F-1 -- Form of Opinion of
Borrower's Outside Counsel
Exhibit F-2 -- Form of Opinion of
Borrower's General Counsel
Exhibit G -- Form of
Master Guarantee and Collateral Agreement
Exhibit H --
Permitted Asset Sale Provision for Senior Subordinated-Lien
Indebtedness
iv
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AMENDED AND RESTATED TERM LOAN AND REVOLVING
CREDIT AGREEMENT dated as of February 19, 2004 (this
"Agreement"), among THE GOODYEAR TIRE & RUBBER COMPANY;
the LENDERS party hereto; JPMORGAN CHASE BANK, as
Administrative Agent; CITICORP USA, INC., as Syndication
Agent; BANK OF AMERICA, N.A., as Documentation Agent;
THE CIT GROUP/BUSINESS CREDIT, INC., as Documentation
Agent; and GENERAL ELECTRIC CAPITAL CORPORATION, as
Documentation Agent.
As part of a refinancing and restructuring of certain bank
credit
and receivables securitization facilities
of the Borrower and the Subsidiaries
(the "Refinancing") the Borrower, certain
of the Lenders party hereto, the
Administrative Agent, the Syndication Agent
and the Documentation Agents entered
into a Term Loan and Revolving Credit
Agreement dated as of March 31, 2003 (the
"Original Credit Agreement"). The Borrower
has requested, and the other parties
hereto have agreed, to amend and restate
the Original Credit Agreement in the
form of this Agreement, under which the
Lenders are willing to maintain and
extend credit to the Borrower on the terms
and subject to the conditions herein
set forth in the form of (a) Tranche A Term
Loans that were made on the Original
Effective Date in an aggregate principal
amount of $800,000,000, (b) Tranche B
Term Loans to be made on the Restatement
Effective Date in an aggregate
principal amount of $650,000,000 and (c)
Revolving Loans available at any time
and from time to time prior to the Maturity
Date in an aggregate principal
amount not in excess of $500,000,000 at any
time outstanding. The proceeds of
the Term Loans and the Revolving Loans have
been used or will be used, as the
case may be, for general corporate purposes
of the Borrower and the
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 Collateral" has the meaning assigned to such term
in
the Guarantee and Collateral Agreement.
"ABL Facilities Grantor" has the meaning assigned to such term
in
the Guarantee and Collateral Agreement.
"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.
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"Access Agreement" means a written agreement granting access
rights
with respect to any Accounts or Inventory
of the Borrower or any of the other
Grantors located at any third party
location, in form and substance reasonably
satisfactory to the Administrative
Agent.
"Account" has the meaning specified in the UCC.
"Account Debtor" means the Person who is primarily obligated
under,
with respect to or on account of an
Account.
"Accounts Receivable Reserves" means, on any date, an amount
(calculated in accordance with the current
and historical accounting practices
of the Borrower) equal to the sum of
reserves for volume rebates, cash
discounts, Federal excise taxes and
warranties maintained on the Borrower's
general ledger with respect to Eligible
Accounts Receivable, in each case
without duplication of any amounts that are
included in the Dilution Factors for
such period or excluded from the value of
Eligible Accounts Receivable pursuant
to the definition thereof, and each such
reserve to be subject to adjustment by
the Administrative Agent or the Majority
Borrowing Base Lenders in their
discretion (not to be exercised
unreasonably) based on the results of collateral
and borrowing base evaluations (including
with respect to Customer Capital
Expenditures) and monitoring conducted by
the Administrative Agent and its
designated representatives. Any such
adjustment by the Administrative Agent or
the Majority Borrowing Base Lenders shall
be made by written notice to the
Borrower setting forth in reasonable detail
the basis for such adjustment, and
shall become effective for purposes of the
first Borrowing Base Certificate that
is delivered pursuant to Section 5.09 at
least five Business Days after the date
of receipt by the Borrower of such written
notice.
"Additional Inventory Reserves" means, on any date, an amount
equal
to the sum of the following reserves
established by the Administrative Agent
with respect to Eligible Inventory, without
duplication of any deductions made
pursuant to the definitions of "Eligible
Inventory", "Inventory Reserves" and
"Inventory Value":
(a) a reserve for "slow moving" Eligible Inventory equal to
75% of the amount in excess of a 12 month supply on hand;
(b) a reserve for (i) private label Eligible Inventory
relating to the North America Tire Division and (ii) private
label
Eligible Inventory relating to the Engineered Products
Division;
(c) a reserve for freight, duties and insurance for Eligible
Inventory representing in transit Inventory equal to
$5,000,000;
(d) a reserve for shrink or discrepancies that arise
pertaining to Eligible Inventory quantities on hand between the
Borrower's perpetual accounting system and physical counts of
the
Eligible Inventory which will be equal to the amount of any
such
discrepancy, if any, that is in excess of 2.0%; and
2
<PAGE>
(e) any other reserve as deemed appropriate by the
Administrative Agent or the Majority Borrowing Base Lenders in
their
discretion (not to be exercised unreasonably) based on the
results
of collateral and borrowing base evaluations and monitoring
conducted by the Administrative Agent and its designated
representatives.
The reserves described in clauses (a), (b), (c), (d) and (e)
above
shall be subject to adjustment (and, in the
case of clause (e), establishment)
by the Administrative Agent or the Majority
Borrowing Base Lenders in their
discretion (not to be exercised
unreasonably) based on the results of collateral
and borrowing base evaluations and
monitoring conducted by the Administrative
Agent and its designated representatives.
Any such adjustment or the
establishment of a reserve pursuant to
clause (e) by the Administrative Agent or
the Majority Borrowing Base Lenders shall
be made by written notice to the
Borrower setting forth in reasonable detail
the basis for such adjustment or
reserve, and shall become effective for
purposes of the first Borrowing Base
Certificate that is delivered pursuant to
Section 5.09 at least five Business
Days after the date of receipt by the
Borrower of such written notice.
"Adjusted Eligible Accounts Receivable" means, on any date, an
amount equal to (a) Eligible Accounts
Receivable minus (b) the sum of, without
duplication, (i) the Dilution Reserve and
(ii) the Accounts Receivable Reserves.
"Adjusted Eligible Finished Goods" means, on any date and with
respect to any division of the Borrower, an
amount equal to (a) Eligible
Finished Goods relating to such division
minus (b) the Inventory Reserves with
respect to the Eligible Inventory included
in such Eligible Finished Goods minus
(c) the Additional Inventory Reserves with
respect to the Eligible Inventory
included in such Eligible Finished
Goods.
"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.
"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
3
<PAGE>
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 Percentage" means, with respect to any Lender, the
percentage of the total unused Revolving
Commitments and outstanding Revolving
Loans and LC Exposures represented by such
Lender's unused Revolving Commitment
and outstanding Revolving Loans and LC
Exposure. If the Revolving Commitments
have terminated or expired and there remain
no outstanding Revolving Loans or LC
Exposures, the Applicable Percentages shall
be determined based upon the
Revolving Commitments most recently in
effect and/or the Revolving Loans and LC
Exposures most recently outstanding, giving
effect to any assignments.
"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.
"Arrangers" means J.P. Morgan Securities Inc. and Citigroup
Global
Markets Inc., as Joint Lead Arrangers and
Joint Bookrunners 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 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.
"Availability Block" means an amount equal to $50,000,000.
"Board" means the Board of Governors of the Federal Reserve
System
of the United States of America.
4
<PAGE>
"Borrower" means The Goodyear Tire & Rubber Company, an
Ohio
corporation.
"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 Base" means, at the time of any determination, an
amount
equal to the sum of, without duplication,
(a) 85% of Adjusted Eligible Accounts
Receivable and (b) (i) if the Effective
Advance Rate is equal to or greater than
the percentage equal to 85% of the Recovery
Rate, 85% multiplied by the Recovery
Rate multiplied by the Inventory Value of
all Inventory of the Borrower and each
other Grantor or (ii) if the Effective
Advance Rate is less than the percentage
equal to 85% of the Recovery Rate, (A) the
sum of (x) 35% of Eligible Raw
Materials plus (y) 65% of Adjusted Eligible
Finished Goods relating to the North
American Tire Division plus (z) 60% of
Adjusted Eligible Finished Goods relating
to the Retail Division, the Engineered
Products Division, the Chemical Products
Division and the Wingfoot Division,
respectively, minus (B) the Rent Reserve,
minus (C) the Priority Payables Reserve
(the amount in clause (ii) collectively,
the "Inventory Advance Amount"). The
Borrowing Base at any time shall be
determined by reference to the most recent
Borrowing Base Certificate delivered
to the Administrative Agent pursuant to
Section 5.09. Subject to the provisions
of Section 9.02(b)(ix), standards of
eligibility and reserves relating to the
components of the Borrowing Base may be
revised and adjusted from time to time
by the Administrative Agent or the Majority
Borrowing Base Lenders in their
discretion (not to be exercised
unreasonably) based on the results of collateral
and borrowing base evaluations and
monitoring conducted by the Administrative
Agent and its designated representatives.
Any such revision or adjustment by the
Administrative Agent or the Majority
Borrowing Base Lenders shall be made by
written notice to the Borrower setting
forth in reasonable detail the basis for
such revision or adjustment, and shall
become effective for purposes of the
first Borrowing Base Certificate that is
delivered pursuant to Section 5.09 at
least five Business Days after the date of
receipt by the Borrower of such
written notice.
"Borrowing Base Availability" means, at the time of any
determination, an amount equal to (a) the
lesser of (i) the Borrowing Base at
such time minus the aggregate principal
amount of the outstanding Tranche A Term
Loans at such time and (ii) the aggregate
amount of the Revolving Commitments at
such time, minus (b) the Availability
Block.
"Borrowing Base Certificate" means a certificate substantially
in
the form of Exhibit E hereto (with such
changes therein as may be reasonably
requested by the Administrative Agent from
time to time to reflect the
components of and reserves against the
Borrowing Base as provided for hereunder
from time to time), executed and certified
on behalf of the Borrower as accurate
and complete in all material respects by a
Financial Officer of the Borrower,
which shall include appropriate exhibits,
schedules, supporting documentation
and additional reports as (a) outlined in
Exhibit E hereto, (b) reasonably
requested by the Administrative Agent and
(c) provided for in Section 5.09.
5
<PAGE>
"Borrowing Request" means a request by the 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 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.
"Canadian Benefit Plans" means all material employee benefit
plans
of any nature or kind whatsoever that are
not Canadian Pension Plans and are
maintained or contributed to by any Credit
Party having employees in Canada.
"Canadian Dollars" refers to lawful money of Canada.
"Canadian Pension Plans" means each plan which is a registered
pension plan within the meaning of the
Income Tax Act (Canada).
"Canadian Security Agreements" has the meaning assigned to
such term in the Guarantee and Collateral
Agreement.
"Capital Expenditures" means, for any period, (a) the
additions to property, plant and equipment
and other capital expenditures of the
Borrower and the Subsidiaries that are (or
would be) set forth in a statement of
cash flows of the Borrower and its
Consolidated Subsidiaries for such period
prepared in accordance with GAAP, excluding
capitalized software expenses, and
(b) Capital Lease Obligations incurred by
the Borrower 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,
(ii) acquisitions permitted by Section
6.05(e) shall be excluded and (iii)
"Capital Expenditures" in respect of any
period shall be reduced by the amount of
Customer Capital Expenditures that are
directly paid by customers during such
period and by the amount of
reimbursements the Borrower or any
Subsidiary shall have received during such
period from customers in respect of
Customer Capital Expenditures; provided that
the aggregate amount of such reductions
shall not exceed $50,000,000 in any
fiscal year.
"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.
6
<PAGE>
"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 the Borrower; or (b) occupation of a
majority of the seats (other than vacant
seats) on the board of directors of the
Borrower by Persons who were neither (i)
directors on the date hereof or nominated
by the board of directors of the
Borrower nor (ii) appointed by directors so
nominated.
"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
any Issuing Bank (or, for purposes of
Section 2.13(b), by any lending office of
such Lender or by such Lender's or such
Issuing Bank'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.
"Chemical Products Division" means those standard business units
of
the Borrower and the other Grantors
classified as the "Chemical Products
Division" on the Borrower's perpetual
inventory records.
"Class" when used in reference to any Loan or Borrowing, refers
to
whether such Loan, or the Loans comprising
such Borrowing, are Revolving Loans,
Tranche A Term Loans or Tranche B Term
Loans and, when used in reference to any
Commitment, refers to whether such
Commitment is a Revolving Commitment, a
Tranche A Term Loan Commitment or a Tranche
B 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 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 that portion of the "Collateral", as defined
in
the Guarantee and Collateral Agreement,
that secures the Obligations.
"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).
7
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"Consent Subsidiary" means (a) any Subsidiary listed on Part I
or
Part II of Schedule 1.01 and (b) any
Subsidiary not on Schedule 1.01A or formed
or acquired after the Original Effective
Date in respect of which (A) the
consent of any Person other than the
Borrower or any Wholly Owned Subsidiary is
required by applicable law or the terms of
any organizational document of such
Subsidiary or other agreement of such
Subsidiary or an Affiliate of such
Subsidiary in order for such Subsidiary to
execute the Guarantee and Collateral
Agreement as an ABL Facilities Grantor or a
Subsidiary Guarantor and perform its
obligations thereunder, and (B) the
Borrower 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 the Borrower, and any
Consent Subsidiary (including a Consent
Subsidiary listed in Part I or Part II of
Schedule 1.01) that at any time ceases
to meet the test set forth in clause (A)
shall cease to be a Consent Subsidiary.
"Consolidated EBITDA" means, for any period, Consolidated Net
Income
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" means, for any period, the sum,
without duplication, of (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 the
Borrower 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" means, for any period, the net income
or
loss of the Borrower and its Consolidated
Subsidiaries for such period
determined in accordance with GAAP.
8
<PAGE>
"Consolidated Net Worth" means, as of the last day of any
fiscal
quarter, the sum for the Borrower 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 (including
the $84,700,000 of charges incurred in
connection with the Borrower's
restatement of its financial statements
from 1998 through the second quarter of
2003, reflected in SEC filings made in the
fourth quarter of 2003), 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
the
Borrower and its Consolidated Subsidiaries
for such period, determined in
accordance with GAAP.
"Consolidated Senior Secured Indebtedness" means, for any
period,
the sum for the Borrower and its
Consolidated Subsidiaries for such period,
without duplication, of (a) all
Indebtedness (other than up to $2,500,000,000
aggregate principal amount of Senior
Subordinated-Lien Indebtedness) that is
included on the Borrower's consolidated
balance sheet and is secured by any
assets of the Borrower or a Consolidated
Subsidiary, (b) all Capital Lease
Obligations and (c) all synthetic lease
financings, (d) all Indebtedness of
South Pacific Tyres that is secured by any
of its assets or assets of the
Borrower or a Consolidated Subsidiary and
(e) all 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, at any date, each Subsidiary
the
accounts of which would be consolidated
with those of the Borrower in the
Borrower's consolidated financial
statements in accordance with GAAP.
"Consolidated Total Assets" means, at any date, the total assets
of
the Borrower 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 2.08(e), the
Security Documents, the Lien
Subordination and Intercreditor Agreement
and, for purposes of Articles III, IV
and VII only, each Borrowing Base
Certificate delivered pursuant to Section
5.09.
"Credit Party" means the Borrower, each Subsidiary Guarantor
and
each Grantor.
9
<PAGE>
"Customer Capital Expenditures" shall mean all or any portion of
the
purchase price of equipment or other fixed
assets purchased for use in the
business of the Borrower or any Subsidiary
that is paid directly, or reimbursed
to the Borrower or any Subsidiary, by
customers of the Borrower or any of the
Subsidiaries that are not Affiliates of the
Borrower.
"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.
"Deposit Account" has the meaning assigned to such term in the
Guarantee and Collateral Agreement.
"Deposit Account Institution" has the meaning assigned to such
term
in the Guarantee and Collateral
Agreement.
"Designated Debt" means Indebtedness of the Borrower that
matures
during any of the calendar years 2005,
2006, 2007 and 2008.
"Dilution Factors" means, with respect to any period, the
aggregate
amount recorded (in a manner consistent
with current and historical accounting
practices of the Borrower) to reduce
Eligible Accounts Receivable on account of
deductions, credit memos (net of related
re-bills), returns, incorrect billings,
adjustments, allowances, bad debt
write-offs and other non-cash credits, in each
case without duplication of any amounts
relating to reserves for volume rebates
or cash discounts or any other items that
are included in the Accounts
Receivable Reserves for such period or
excluded from the value of Eligible
Accounts Receivable pursuant to the
definition thereof.
"Dilution Ratio" means, on any date, the amount (expressed as a
percentage) equal to (a) the aggregate
amount of the applicable Dilution Factors
for the 12 most recently ended fiscal
months divided by (b) total gross sales
for the 12 most recently ended fiscal
months.
"Dilution Reserve" means, on any date, (a) the applicable
Dilution
Ratio on such date multiplied by (b) (i)
Eligible Accounts Receivable on such
date minus (ii) the Accounts Receivable
Reserves on such date.
"Disclosure Documents" means (a) the Information Memorandum,
(b)
reports of the Borrower 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 March 21, 2003, or (ii) filed with
the Securities and Exchange
Commission after such date and prior to the
Original Effective Date and
delivered to the Administrative Agent, and
(c) the draft Report of the Borrower
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 Original Effective Date.
10
<PAGE>
"Documentation Agent" means each of Bank of America, N.A., The
CIT
Group/Business Credit, Inc. and General
Electric Capital Corporation, in its
capacity as documentation agent
hereunder.
"dollars" or "$" refers to lawful money of the United States of
America.
"Domestic Subsidiary" means any Subsidiary that is not a
Foreign
Subsidiary.
"Effective Advance Rate" means, on any date, the percentage equal
to
the Inventory Advance Amount on such date
divided by the Inventory Value of all
Inventory of the Borrower and each other
Grantor on such date.
"Eligible Accounts Receivable" means, at the time of any
determination, each Account that satisfies
the following criteria at the time of
such determination: such Account (a) has
been invoiced to, and represents the
bona fide amounts due to the Borrower or
another Grantor from, the purchaser of
goods or services, in each case originated
in the ordinary course of business of
the Borrower or such Grantor and (b) is not
ineligible for inclusion in the
calculation of the Borrowing Base pursuant
to any of clauses (i) through (xxii)
below or otherwise deemed by the
Administrative Agent or the Majority Borrowing
Base Lenders in their discretion (not to be
exercised unreasonably) to be
ineligible for inclusion in the calculation
of the Borrowing Base based on the
results of collateral and borrowing base
evaluations and monitoring conducted by
the Administrative Agent and its designated
representatives; any such decision
by the Administrative Agent or the Majority
Borrowing Base Lenders shall be made
by written notice to the Borrower setting
forth in reasonable detail the basis
for such decision, and shall become
effective for purposes of the first
Borrowing Base Certificate that is
delivered pursuant to Section 5.09 at least
five Business Days after the date of
receipt by the Borrower of such written
notice. Without limiting the generality of
foregoing, to qualify as Eligible
Accounts Receivable an Account shall
indicate no Person other than the Borrower
or another Grantor as payee or remittance
party. In determining the amount to be
so included, the face amount of an Account
shall be reduced by, without
duplication, to the extent not reflected in
such face amount, (a) the amount of
all accrued and actual discounts, claims,
credits or credits pending,
promotional program allowances, price
adjustments, finance charges or other
allowances (including any amount that the
Borrower or another Grantor may be
obligated to rebate to a customer pursuant
to the terms of any agreement or
understanding (written or oral)), in each
case without duplication of any
amounts that are included in the Accounts
Receivable Reserves or the Dilution
Factors for such period, (b) the aggregate
amount of all limits and deductions
provided for in this definition and (c) the
aggregate amount of all cash
received in respect of such Account but not
yet applied by the Borrower or
another Grantor to reduce the amount of
such Account. Standards of eligibility
may be fixed from time to time by the
Administrative Agent or the Majority
Borrowing Base Lenders in their discretion
(not to be exercised unreasonably)
based on the results of collateral and
borrowing base evaluations and monitoring
conducted by the Administrative Agent and
its designated representatives. Any
changes to such standards by the
Administrative Agent or the Majority Borrowing
Base Lenders shall be made by written
notice to the Borrower
11
<PAGE>
setting forth in reasonable detail the
basis for such change, and shall become
effective for purposes of the first
Borrowing Base Certificate that is delivered
pursuant to Section 5.09 at least five
Business Days after the date of receipt
by the Borrower of such written notice.
Unless otherwise approved from time to
time in writing by the Administrative
Agent, an Account shall not be an Eligible
Account Receivable (or, in the case of
clauses (vii) and (xv) below, the
affected portion of such Account shall be
deemed not to be an Eligible Account
Receivable) if, without duplication:
(i) the Borrower or another Grantor does not have good and
valid
title to
such Account; or
(ii) such Account (x) is unpaid more than 60 days from the
original
due date
or (y) has been written off the books of the Borrower or
another
Grantor or
has been otherwise designated on such books as uncollectible;
or
(iii) more than 35% in face amount of all Accounts of the same
Account
Debtor (x) are unpaid more than 60 days from the original due
date
or (y)
have been written off the books of the Borrower or another
Grantor
or have
been otherwise designated on such books as uncollectible; or
(iv) the Account Debtor is insolvent or the subject of any
bankruptcy
case or insolvency proceeding of any kind; or
(v) such Account is not payable in U.S. Dollars and/or Canadian
Dollars,
the Account Debtor is not located inside the United States or
Canada,
the Account Debtor does not have significant assets inside the
United
States or Canada or the enforceability of such Account is not
governed
by the laws of the United States or Canada or any of their
respective
states, provinces, territories or possessions or any political
subdivision of any thereof; or
(vi) the Account Debtor is the United States of America or Canada
or
any
department, agency or instrumentality thereof, unless the Borrower
or
the other
applicable Grantor duly assigns its rights to payment of such
Account to
the Administrative Agent pursuant to the Assignment of Claims
Act of
1940, as amended, or the Financial Administration Act (Canada),
as
amended,
as applicable, which assignment and related documents and
filings
shall be
in form and substance satisfactory to the Administrative Agent;
or
(vii) to the extent of any security deposit, progress payment,
retainage
or other similar advance made by or for the benefit of the
applicable
Account Debtor to which such Account is subject; or
(viii) such Account (x) is not subject to a valid and perfected
first
priority Lien in favor of the Administrative Agent for the
benefit
of the
Secured Parties to the extent that such a Lien may be perfected
by
filing UCC
financing statements or making such other personal property
security
filings or registrations as may be required under the laws of
the
applicable
jurisdiction in which such Account Debtor is located or has its
principal
place of business or domicile (for the
12
<PAGE>
purposes
of the Quebec Civil Code), subject to no other Liens other than
Permitted
Encumbrances (other than those described in clause (f) of the
definition
thereof) or (y) does not otherwise conform in all material
respects
to the applicable representations and warranties contained in
the
Credit
Documents; or
(ix) (x) such Account was invoiced or payment was received
thereon
(A) in
advance of goods or services provided or (B) more than once or
(y)
the
associated income has not been earned; or
(x) such Account is a note receivable, non-trade Account or
relates
to
payments for rent or interest; or
(xi) the sale to the Account Debtor is on a bill-and-hold, sale
on
approval
or consignment (it being understood and agreed that an Account
that
arises in connection with a sale of such goods by the consignee
thereof
shall not be deemed to be ineligible by reason of this clause
(xi)) or
other similar basis or made pursuant to any other agreement
(other
than an ordinary course customer warranty) providing for
repurchases or return of any merchandise which has been claimed to
be
defective
or otherwise unsatisfactory; or
(xii) the goods giving rise to such Account have not been
shipped
and title
has not been transferred to the Account Debtor or such Account
represents
a progress-billing; for purposes hereof, progress-billing means
any
invoice for goods sold or leased or services rendered under a
contract
or
agreement pursuant to which the Account Debtor's obligation to pay
such
invoice is
conditioned upon the Borrower's or the other applicable
Grantor's
completion of any further performance under such contract or
agreement;
or
(xiii) such Account arises out of a sale made by the Borrower
or
another
Grantor to an Affiliate (other than an Eligible Affiliate) of
the
Borrower
or such Grantor; or
(xiv) such Account was created by the Borrower or another Grantor
as
a new
receivable for the unpaid portion of an outstanding Account; or
(xv) the Account Debtor (x) is a creditor, (y) has or has asserted
a
right of
set-off against the Borrower or another Grantor with respect to
such
Account (unless such Account Debtor has entered into a written
agreement
reasonably acceptable to the Administrative Agent to waive such
set-off
rights) or (z) has disputed its liability (whether by
chargeback,
dispute or
otherwise) or made any asserted or unasserted claim with
respect to
such Account or any other Account of the Borrower or such other
Grantor
(as applicable) which has not been resolved, in each case,
without
duplication, to the extent of the amount owed by the Borrower or
such
other
Grantor (as applicable) to the Account Debtor, the amount of
such
actual or
asserted right of set-off or the amount of such dispute or
claim, as
the case may be; or
13
<PAGE>
(xvi) such Account does not comply in all material respects with
the
requirements of all applicable laws and regulations, whether
Federal,
State,
provincial or local, including the Federal Consumer Credit
Protection
Act, the Federal Truth in Lending Act and Regulation Z of the
Board;
or
(xvii) such Account is for goods that have been sold under a
purchase
order or pursuant to the terms of a contract or other agreement
or
understanding (written or oral) that indicates that any Person
other
than the
Borrower or another Grantor has or has had or has purported to
have or
have had an ownership interest in such goods and in the Account
resulting
from the sale of such goods; or
(xviii) such Account is an extended terms account, which is not
due
and
payable within 180 days from the original date of invoice; or
(xix) such Account is created on cash on delivery terms or is
payment
for freight claims; or
(xx) to the extent that such Account has been reclassified, as
a
result of
a workout or other similar situation relating to the credit
worthiness
of the applicable Account Debtor, from an account receivable to
a note receivable;
or
(xxi) the Account Debtor has not been instructed by the Borrower
or
any of the
other Grantors to pay such Account directly into a Deposit
Account in
the Lockbox System; or
(xxii) such Account relates to the Retail Division or Wingfoot,
unless
such Account meets certain criteria and is deemed eligible by
the
Administrative Agent in its sole discretion.
Notwithstanding the foregoing, at the time of any determination
of
Eligible Accounts Receivable, an amount
equal to all Eligible Accounts
Receivable of any single Account Debtor and
its Affiliates which in the
aggregate exceed (a) 12% in respect of an
Account Debtor whose unsecured short
term debt is rated A3 or better by Moody's
or A- or better by Standard & Poor's,
(b) 6% in respect of an Account Debtor
whose unsecured short term debt does not
have the rating described in clause (a) but
are rated Investment Grade by either
Moody's or Standard & Poor's and (c) 3%
in respect of any other Account Debtor,
in each case of the total amount of all
Eligible Accounts Receivable at such
time of determination shall be deemed not
to be Eligible Accounts Receivable to
the extent of such excess. In determining
the aggregate amount of Accounts from
the same Account Debtor that are unpaid
more than 60 days from the due date
pursuant to clause (ii) above there shall
be excluded the amount of any net
credit balances relating to Accounts with
invoice dates more than 60 days from
the due date.
"Eligible Affiliate" means any Affiliate of the Borrower,
provided
that (a) the Borrower or any of its other
Affiliates does not Control such
Affiliate, (b) the Borrower and the
Subsidiaries do not own, control or hold,
directly or indirectly, individually or in
the aggregate, Equity Interests of
such Affiliate representing 50% or more of
the equity or 50% or more of the
voting power or, in the case of a
partnership,
14
<PAGE>
50% or more of the general partnership
interests of such Affiliate, (c) the
accounts of such Affiliate are not
consolidated with those of the Borrower in
the Borrower's consolidated financial
statements (and are not required to be so
consolidated in accordance with GAAP), (d)
each Account due to the Borrower or
another Grantor from such Affiliate
requires payment for the goods sold or
leased or the services rendered to such
Affiliate in cash and on terms that are
no less favorable to the Borrower or such
Grantor, as the case may be, than
those that could be obtained at such time
in arm's-length dealings with a Person
who is not such an Affiliate and (e) such
Affiliate meets any other eligibility
standard or requirement that is imposed by
the Administrative Agent or the
Majority Lenders in their discretion (not
to be exercised unreasonably) based on
the results of collateral and borrowing
base evaluations and monitoring
conducted by the Administrative Agent and
its designated representatives; any
changes to such standards or requirements
or the imposition of any additional
standard or requirement by the
Administrative Agent or the Majority Lenders
shall be made by written notice to the
Borrower setting forth in reasonable
detail the basis for such change or
addition, and shall become effective for
purposes of the first Borrowing Base
Certificate that is delivered pursuant to
Section 5.09 at least five Business Days
after the date of receipt by the
Borrower of such written notice.
"Eligible Finished Goods" means, on any date, the Inventory Value
of
all Eligible Inventory of the Borrower and
each other Grantor defined as
Finished Goods by the Borrower on such date
as shown on the Borrower's perpetual
inventory records in accordance with its
current and historical accounting
practices.
"Eligible Inventory" means, at the time of any determination
thereof, without duplication, the Inventory
Value of the Inventory of the
Borrower and each other Grantor at the time
of such determination that is not
ineligible for inclusion in the calculation
of the Borrowing Base pursuant to
any of clauses (a) through (n) below or
otherwise deemed by the Administrative
Agent or the Majority Borrowing Base
Lenders in their discretion (not to be
exercised unreasonably) to be ineligible
for inclusion in the calculation of the
Borrowing Base based on the results of
collateral and borrowing base evaluations
and monitoring conducted by the
Administrative Agent and its designated
representatives; any such decision by the
Administrative Agent or the Majority
Borrowing Base Lenders shall be made by
written notice to the Borrower setting
forth in reasonable detail the basis for
such decision, and shall become
effective for purposes of the first
Borrowing Base Certificate that is delivered
pursuant to Section 5.09 at least five
Business Days after the date of receipt
by the Borrower of such written notice.
Without limiting the generality of the
foregoing, to qualify as "Eligible
Inventory" no Person other than the Borrower
or another Grantor shall have any direct or
indirect ownership, interest or
title to such Inventory and no Person other
than the Borrower or another Grantor
shall be indicated on any purchase order or
invoice with respect to such
Inventory as having or purporting to have
an interest therein. Unless otherwise
approved from time to time in writing by
the Administrative Agent, no Inventory
shall be deemed Eligible Inventory to the
extent that such Inventory is
accounted for in the Borrower's perpetual
inventory balance and, without
duplication:
15
<PAGE>
(a) it is not owned solely by the Borrower or another Grantor or
the
Borrower
or another Grantor does not have good and valid title thereto;
or
(b) it is not located in the United States or Canada; or
(c) it (i) is not either (x) located on a Permitted Inventory
Location
or (y) in transit from a Permitted Inventory Location to
another
Permitted
Inventory Location or (ii) is located at a dormant facility
that
is no
longer operated by the Borrower or another Grantor; or
(d) it is (i) goods returned or rejected by the Borrower's or
another
Grantor's customers and is not saleable in the ordinary course
of
business
of the Borrower or another Grantor, (ii) Inventory in transit
on
the water
via ship or other marine vessel to the Borrower or another
Grantor or
(iii) goods in transit from the Borrower or another Grantor to
customers
of the Borrower or another Grantor; or
(e) it is Inventory (other than Raw Materials) not sold in the
ordinary
course of business of the Borrower or another Grantor,
including
engineering stores, miscellaneous supplies, packaging or
shipping
materials,
cartons, repair parts, fuel, labels, miscellaneous spare parts,
samples,
prototypes, displays or display items; or
(f) it is not subject to a valid and perfected first priority
Lien
in favor
of the Administrative Agent for the benefit of the Secured
Parties to
the extent that such a Lien may be perfected by filing UCC
financing
statements or such other personal property security filings or
registrations as may be required under the laws of the
applicable
jurisdiction in which such Inventory is located, subject to no
other Liens
other than
Permitted Encumbrances (other than those described in clause
(f) of the
definition thereof); or
(g) it is classified by the Borrower or another Grantor as work
in
process;
or
(h) it is consigned or at a customer location (other than
Inventory
consigned
to original equipment manufacturers at no more than 20
locations
in total,
each of which have Inventory of the Borrower and the other
Grantors
with an Inventory Value in excess of $300,000 and with respect
to
which, on
or after the fifteenth day following the Original Effective
Date, an
Access Agreement has been obtained); or
(i) it is (i) being processed offsite at a third party processor
at
premises
neither reflected in the Rent Reserve nor subject to a Lien
Waiver or
(ii) in transit to or from any such third party processor; or
(j) it is classified by the Borrower or another Grantor as
"obsolete", "unmerchantable" or "off spec without a ready market",
or does
not
otherwise
16
<PAGE>
conform in
all material respects to the applicable representations and
warranties
contained in the Credit Documents; or
(k) it is marked for return by the Borrower or another Grantor
to
the vendor
of such Inventory; or
(l) it does not meet in all material respects all materials
standards
imposed by any Governmental Authority having regulatory
authority
over it; or
(m) it is classified by the Borrower or another Grantor as
casings
used for
the retreading of commercial truck tires; or
(n) it is classified by the Borrower or another Grantor as
"shipped
but not
billed".
"Eligible Raw Materials" means, on any date, the Inventory Value
of
all Eligible Inventory of the Borrower and
each Grantor defined as Raw Materials
on such date as shown on the Borrower's
perpetual inventory records in
accordance with its current and historical
accounting practices.
"Engineered Products Division" means those standard business
units
of the Borrower and the other Grantors
classified as "Engineered Products
Division" on the Borrower's perpetual
inventory records.
"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.
17
<PAGE>
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the
Borrower 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 the
Borrower, 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 the
Borrower, 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 the Borrower, 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 the Borrower,
any Subsidiary or any ERISA Affiliate
of any notice, or the receipt by any
Multiemployer Plan from the Borrower, 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.
"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 Facilities Agreement" means the $650,000,000 Term Loan
and
Revolving Credit Agreement dated as of the
date hereof among the European JV,
the other borrowers thereunder, certain
lenders and JPMCB, as administrative
agent.
"European JV" means Goodyear Dunlop Tires Europe B.V.
"Event of Default" has the meaning assigned to such term in
Article
VII.
"Excess Cash Rationalization Charges" means, for any period,
cash
expenditures of the Borrower and its
Consolidated Subsidiaries in such period
with respect to Rationalization Charges
recorded on the Borrower'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 Net Cash Proceeds
18
<PAGE>
from the issuance and sale of its Equity
Interests or Indebtedness pursuant to
Section 6.01(q).
"Excluded Operating Account" means payroll and other operating
accounts of the Borrower or any other
Grantor that are not used to receive (a)
payments from any Account Debtor in respect
of Accounts or (b) payments in
respect of Inventory, and containing only
such amounts as required in the
Borrower's or such other Grantor's good
faith judgment for near-term operational
purposes.
"Excluded Subsidiary" means any Subsidiary with only nominal
assets
and no operations.
"Excluded Taxes" means, with respect to the Administrative
Agent,
any Lender, any Issuing Bank or any other
recipient of any payment to be made by
or on account of any obligation of the
Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by)
its net income by the United States
or 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 imposed
by the United States or any similar tax
imposed by any other 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 Borrower under
Section 2.17(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 the Borrower with respect to
such withholding tax pursuant to Section
2.15(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 2.15(e).
"Existing Securitization Facilities" means (a) the
securitization
facility made available pursuant to the
Series 2001-1 Indenture Supplement dated
as of April 27, 2001 to the Base Indenture
dated as of April 27, 2001 among
Wingfoot A/R LLC, as issuer, The Goodyear
Tire & Rubber Company, as collection
agent, The Chase Manhattan Bank, as
administrative agent, certain CP Conduit
Purchasers, certain APA Banks, certain
Funding Agents and The Chase Manhattan
Bank, as indenture trustee and (b) the
securitization facility made available
pursuant to the Receivables Purchase
Agreement dated July 27, 2001 between
Goodyear Canada Inc., as seller and initial
servicer, Montreal Trust Company, as
trustee of Bay Street Funding Trust, as
issuer, and Scotia Capital Inc., as
administrator.
"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
19
<PAGE>
the quotations for such day for such
transactions received by the Administrative
Agent from three Federal funds brokers of
recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal
accounting officer, treasurer or any
assistant treasurer of the Borrower.
"Finished Goods" means completed goods that require no
additional
processing or manufacturing to be sold by
the Borrower or another Grantor in the
ordinary course of business.
"First Amendment" means the First Amendment dated as of February
19,
2004, to the Original Credit Agreement,
amending and restating such the Original
Credit Agreement in the form of this
Agreement.
"First Amendment Date" means February 19, 2004.
"Foreign Lender" means any Lender that is organized under the
laws
of a jurisdiction other than that in which
the Borrower is located. For purposes
of this definition, the United States, each
State thereof and the District of
Columbia shall be deemed to constitute a
single jurisdiction.
"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.
"Governmental Authority" means the government of the United
States,
Canada, any other nation or any political
subdivision thereof, whether state,
provincial 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 Borrower and each North American
Subsidiary
that has become, or is required to become,
an ABL Facilities Grantor (as defined
in the Guarantee and Collateral Agreement)
and, if applicable, a party to any
Canadian Security Agreement pursuant to
Section 4.01(j) of the Original Credit
Agreement or Section 5.08 hereof.
"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
20
<PAGE>
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
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 Master Guarantee
and
Collateral Agreement among the Borrower,
the Subsidiary Guarantors, the
Grantors, certain other Subsidiaries and
the Collateral Agent substantially in
the form of Exhibit G.
"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.
"Improved Ratings Day" means a day on which (a) Moody's has in
effect a rating for the Tranche B Term
Loans of B1 or better and (b) Standard &
Poor's has in effect a rating for the
Tranche B Term Loans of B+ or better.
"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.
21
<PAGE>
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning set forth in Section 9.03.
"Information" has the meaning set forth in Section 9.12.
"Information Memorandum" means the Confidential Information
Memorandum dated March 5, 2003 relating to
the Borrower and the Transactions.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing
or Term Borrowing in accordance with
Section 2.06 in substantially the form of
Exhibit B hereto.
"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 the 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.
"Inventory" has the meaning specified in the UCC.
"Inventory Reserves" means, on any date, an amount equal to the
sum
of the following reserves maintained on the
Borrower's general ledger
(calculated in each case in accordance with
the current and historical
accounting practices of the Borrower) with
respect to Eligible Inventory,
without duplication of any deductions made
pursuant to the definitions of
"Additional Inventory Reserves," "Eligible
Inventory" and "Inventory Value":
(a) a reserve for Inventory that is damaged;
22
<PAGE>
(b) a revaluation reserve to reflect capitalized manufacturing
variances
whereby aggregate net variances (if favorable) shall be
deducted
from
Eligible Inventory and aggregate net variances (if unfavorable)
shall
not be
added to Eligible Inventory;
(c) a reserve equal to the aggregate Inventory Value of
Eligible
Inventory
attributable to intercompany or intracompany profit among the
Borrower
and its Affiliates (other than Eligible Affiliates); and
(d) a lower of cost or market reserve for any differences
between
the
Borrower's actual cost to produce versus the Borrower's sale price
to
third
parties, determined on a product line basis.
"Inventory Value" means, with respect to any Inventory of the
Borrower or any other Grantor at the time
of any determination thereof, an
amount equal to such Inventory carried on
the perpetual inventory records of the
Borrower stated on a basis consistent with
its current and historical accounting
practices, in U.S. Dollars, determined in
accordance with the standard cost
method of accounting, which shall be, in
the case of Inventory imported by the
Borrower or another Grantor into the United
States of America or Canada, the
acquisition cost thereof plus
transportation and freight charges plus import
duties.
"Investment Grade" means, in the case of Moody's, a credit rating
of
Baa3 or better and, in the case of Standard
& Poor's, a credit rating of BBB- or
better.
"Investments" has the meaning assigned to such term in Section
6.05.
"Issuing Bank" means JPMCB and each other Lender that has
entered
into an Issuing Bank Agreement, each in its
capacity as the issuer of Letters of
Credit hereunder, and its successors in
such capacity as provided in Section
2.05(i). Each Issuing Bank may, in its
discretion, arrange for one or more
Letters of Credit to be issued by
Affiliates of such Issuing Bank, in which case
the term "Issuing Bank" shall include any
such Affiliate with respect to Letters
of Credit issued by such Affiliate.
Notwithstanding the foregoing provisions of
this definition or any other provision of
this Agreement, any financial
institution that is an Issuing Bank under
and as defined in the US Revolving
Facility Agreement and is not a Lender
hereunder may, in connection with the
redesignation of any letter of credit
issued by it under such agreement as a
Letter of Credit hereunder as provided in
Section 2.04, become a party to this
Agreement and an Issuing Bank hereunder by
executing an instrument satisfactory
to the Borrower and the Administrative
Agent for the limited purpose of
obtaining the rights and assuming the
responsibilities of an Issuing Bank with
respect to such Letter of Credit, but shall
not issue any other Letters of
Credit hereunder.
"Issuing Bank Agreement" means an agreement in form reasonably
satisfactory to the Borrower and the
Administrative Agent pursuant to which a
Lender agrees to act as an Issuing
Bank.
"JPMCB" means JPMorgan Chase Bank, and its successors.
23
<PAGE>
"Junior Securities" means, collectively, any Senior
Subordinated-Lien Indebtedness and any
Indebtedness or preferred Equity
Interests issued under Section 6.01(q).
"LC Disbursement" means a payment made by any Issuing Bank
pursuant
to a Letter of Credit.
"LC
Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters
of Credit at such time plus (b) the
aggregate amount of all LC Disbursements
that have not yet been reimbursed by or
on behalf of the Borrower at such time. The
LC Exposure of any Lender at any
time shall be its Applicable Percentage of
the total LC Exposure at such time.
"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.
"Letter of Credit" means any letter of credit issued pursuant
to
this Agreement or any letter of credit
issued under the US Revolving Facility
Agreement that has been redesignated as a
Letter of Credit hereunder.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for
any
Interest Period, the rate appearing on Page
3750 of the Dow Jones 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, French delegation of claims, lien,
pledge, hypothecation, encumbrance,
charge or security interest in, 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.
24
<PAGE>
"Lien Subordination and Intercreditor Agreement" means a Lien
Subordination and Intercreditor Agreement,
to be dated on or about the first
date on which Senior Subordinated-Lien
Indebtedness is incurred, issued or sold,
among the Collateral Agent, the applicable
Senior Subordinated-Lien Collateral
Agent, the Borrower and the Subsidiary
Guarantors, in substantially the form of
the draft made available to the Lenders
prior to the First Amendment Date with
such changes as shall have been approved by
the Administrative Agent.
"Lien Waiver" means a written waiver of statutory or
contractual
Liens on Inventory for unpaid rent or
charges of a warehouseman or bailee in
form and substance reasonably satisfactory
to the Administrative Agent.
"Loans" means the loans made by the Lenders to the Borrower
pursuant
to this Agreement.
"Lockbox Agreements" has the meaning assigned to such term in
the
Guarantee and Collateral Agreement.
"Lockbox System" has the meaning assigned to such term in the
Guarantee and Collateral Agreement.
"Luxembourg Finance" means Goodyear Finance Holding S.A., a
corporation organized in Luxembourg.
"Majority Borrowing Base Lenders" means, at any time, Lenders
having
aggregate Revolving Credit Exposures,
Tranche A Term Loans and unused Revolving
Commitments representing at least a
majority of the sum of the total Revolving
Credit Exposures, Tranche A Term Loans and
unused Revolving Commitments at such
time.
"Majority Lenders" means, 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 the Borrower and the
Subsidiaries, taken as a whole, (b) the ability
of the Credit Parties, taken as a whole, to
perform 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
the Borrower 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 the Borrower
or any Subsidiary in respect of any
Swap Agreement at any
25
<PAGE>
time shall be the maximum aggregate amount
(giving effect to any netting
agreements) that the Borrower 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.
"Material Trademarks" has the meaning assigned to such term in
the
Guarantee and Collateral Agreement.
"Maturity Date" means March 31, 2006.
"Moody's" means Moody's Investors Service, Inc., or any
successor
thereto.
"Mortgage" means a mortgage or deed of trust, assignment of
leases
and rents, or other security documents
reasonably satisfactory in form and
substance to the Collateral Agent granting
a Lien on any Mortgaged Property to
secure the Obligations.
"Mortgaged Property" has the meaning assigned to such term in the
US
Revolving Facility Agreement.
"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" shall have the meaning assigned to such term
in
the US Term Facility Agreement; provided,
that the Net Cash Proceeds of any
event that is not a Prepayment Event shall
be determined as if such event were a
Prepayment Event.
"New Facilities Credit Agreements" means this Agreement, the US
Revolving Facility Agreement, the US Term
Facility Agreement and the European
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).
"North American Subsidiary" means any Subsidiary organized under
the
laws of the United States or Canada or any
of their respective states,
provinces, territories or possessions or
any political subdivision of any
thereof.
26
<PAGE>
"North American Tire Division" means those standard business
units
of the Borrower and the other Grantors
classified as "North American Tire
Division" on the Borrower's perpetual
inventory records.
"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 Loans, when and as
due, whether at maturity, by acceleration,
upon one or more dates set for
prepayment or otherwise, (ii) each payment
required to be made under this
Agreement in respect of any Letter of
Credit, when and as due, including
payments in respect of reimbursements of LC
Disbursements and interest thereon
and (iii) 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), and
(b) the due and punctual performance of all
other obligations of the Credit
Parties to any of the Secured Parties under
this Agreement and the other Credit
Documents.
"Original Effective Date" means April 1, 2003.
"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.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to
and defined in ERISA and any successor
entity performing similar functions.
"Perfection Certificate" means a certificate in the form of
Exhibit
II to the Guarantee and Collateral
Agreement or any other form approved by the
Collateral Agent.
"Permitted Encumbrances" means:
(a) (i) Liens imposed by law for taxes that are not yet due or
are
being
contested and (ii) deemed trusts and Liens to which the
Priority
Payables
Reserve relates for taxes, assessments or other charges or
levies
that are
not yet due and payable;
(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;
27
<PAGE>
(c) Liens created and pledges and deposits made (including cash
deposits
to secure obligations in respect of letters of credit provided)
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 the Borrower and the
Subsidiaries or of the Collateral, in each case taken as a whole,
or
materially
interfere with the ordinary conduct of business of the Borrower
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 Inventory Location" means (a) property owned or leased
by
the Borrower or a Grantor in the United
States of America or Canada or (b) a
third party warehouse or dock in the United
States of America or Canada where
Inventory of the Borrower or any Grantor is
stored.
"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 Standard & Poor's and P1 from Moody's;
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<PAGE>
(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 Standard & Poor's 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 Standard & Poor's 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 Domestic
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
Standard &
Poor's or
A2 by Moody's or carries an equivalent rating from a comparable
foreign
rating agency, (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, (iii) investments of the type and
maturity
described in clause (c) in any obligor organized under the laws
of a
jurisdiction other than the United States that (A) is a branch
or
subsidiary
of a Lender or the ultimate parent company of a Lender under
one of the New Facilities Credit
Agreements (but only if such Lender meets
the
ratings and capital, surplus and undivided profits requirements
of
such
clause (c)) or (B) carries a rating at least equivalent to the
rating
of the
sovereign nation in which it is located, and (iv) other
investments
of the
type and maturity described in clause (c) in obligors organized
under the
laws of a jurisdiction other than the United States in any
country in
which such Subsidiary is located; provided, that the
investments permitted under this subclause (iv) shall not
exceed
$10,000,000 for all such Subsidiaries in any such country or
$50,000,000
in the
aggregate for all such Subsidiaries and all countries.
"Permitted Preferred Stock" has the meaning assigned to such term
in
Section 6.01(q).
"Person" means any natural person, corporation, limited
liability
company, trust, joint venture, association,
company, partnership, Governmental
Authority or other entity.
29
<PAGE>
"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 the Borrower, 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" shall have the meaning assigned to such term
in
the US Term Facility Agreement.
"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 Issuing Bank" means JPMCB and any other Issuing Bank
whom
the Borrower and JPMCB agree will be a
Principal Issuing Bank (or any of their
Affiliates that shall act as Issuing Banks
hereunder).
"Priority Payables Reserve" means, at any time, the sum of,
without
duplication of any deductions made pursuant
to the definitions of "Additional
Inventory Reserves", "Inventory Reserves",
"Eligible Inventory" and "Inventory
Value", the full amount of the liabilities
at such time which have a trust
imposed to provide for payment thereof or a
security interest, Lien or charge
ranking or capable of ranking, in each case
senior to or pari passu with the
Liens created under the Security Documents
under Canadian federal, provincial,
county, municipal or local law with respect
to claims for goods and services
taxes, sales tax, income tax, workers'
compensation obligations, vacation pay or
pension fund obligations.
"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.
"Raw Material" means Inventory used or consumed in the
manufacturing
of goods to be sold by the Borrower or
another Grantor in the ordinary course of
business.
"Recovery Rate" means (a) the estimated net recovery of all
Inventory of the Borrower and the other
Grantors stated in U.S. Dollars as
determined on a net orderly liquidation
basis by the most recent analysis
conducted by outside inventory
consultants/appraisers retained or approved by
the Administrative Agent and disclosed to
the Borrower divided by (b) the
Inventory Value of all Inventory of the
Borrower and each other Grantor as of
the date of such most recent analysis.
"Register" has the meaning set forth in Section 9.04.
30
<PAGE>
"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.
"Rent Reserve" means, on any date, with respect to any retail
store,
distribution center, warehouse,
manufacturing facility or other Permitted
Inventory Location where any Eligible
Inventory that is subject to Liens arising
by operation of law is located and with
respect to which no Lien Waiver is in
effect, a reserve equal to three months'
rent and charges at such retail store,
distribution center, warehouse,
manufacturing facility or other Permitted
Inventory Location.
"Restatement Effective Date" means the date on which the
conditions
specified in Section 6 of the First
Amendment are satisfied.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other
property) with respect to any Equity
Interests in the Borrower 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.
"Retail Division" means those standard business units of the
Borrower and the other Grantors classified
as "Retail Division" on the
Borrower's perpetual inventory records.
"Revolving Availability Period" means the period from and
including
the Original 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 and to acquire participations
in Letters of Credit 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 2.07 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
$500,000,000.
"Revolving Credit Exposure" means, with respect to any Lender at
any
time, the sum of the outstanding principal
amount of such Lender's Revolving
Loans and such Lender's LC Exposure 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
Credit Exposure.
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<PAGE>
"Revolving Loan" means a Loan made pursuant to clause (iii) of
Section 2.01(a).
"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 Revolving Lenders 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), and (b) the due and punctual
performance of all other obligations of the
Credit Parties to any of the
Revolving Lenders under this Agreement and
the other Credit Documents.
"Sale and Leaseback Transaction" means any arrangement whereby
the
Borrower 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
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.
"Secured Parties" means the Administrative Agent, each Issuing
Bank,
the Collateral Agent and each Lender.
"Securitization Transaction" means, with respect to any Person,
(i)
any transfer 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; provided that
"Securitization Transaction" shall not
include (A) the sale by any Foreign
Subsidiary, in the ordinary course of its
business, of drafts with a bank or
other financial institution as the maker
(or otherwise primarily responsible for
the payment thereof), bankers acceptances
or similar instruments received by
such Foreign Subsidiary from a customer
32
<PAGE>
operating in a jurisdiction other than the
United States or any of its
territories or possessions or any political
subdivision thereof in satisfaction
of accounts receivable or otherwise as
consideration for goods sold or services
provided to such customer or (B) the sale,
in the ordinary course of business,
of drafts not payable on demand received by
the Borrower or any Subsidiary from
a customer in satisfaction of accounts
receivable or otherwise as consideration
for goods sold or services provided to such
customer pursuant to an arrangement
(1) initiated by and entered into a the
request of such customer, and (2) under
which a financial institution has agreed as
part of a financing program
established for and at the request of such
customer to buy such drafts from such
customer's vendors (which arrangements may
be modified by the Borrower or any
Subsidiary to contemplate the repurchase of
such drafts by such customer, or
other actions by such customer to reinstate
or to pay receivables in respect of
which such drafts were created, in the
event of any failure by such financial
institution to buy such drafts). 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 Documents" means the Guarantee and Collateral
Agreement,
the Canadian Security Agreements, the
Mortgages and each other instrument or
document delivered in connection with the
cash collateralization of Letters of
Credit or pursuant to Section 5.08, in each
case to secure any of the
Obligations.
"Senior Subordinated-Lien Collateral Agent" means, as to any
Senior
Subordinated-Lien Indebtedness, the
collateral agent under the applicable Senior
Subordinated-Lien Indebtedness Security
Documents.
"Senior Subordinated-Lien Governing Documents" means each
Indenture
or other agreement or instrument providing
for the issuance or setting forth the
terms of any Senior Subordinated-Lien
Indebtedness.
"Senior Subordinated-Lien Indebtedness" means Indebtedness of
the
Borrower issued after the First Amendment
Date that (a) is secured by Liens
permitted under Section 6.02(m), but that
is not secured by Liens on any
additional assets, (b) constitutes Initial
Junior Indebtedness or Designated
Junior Obligations under and as defined in
the Lien Subordination and
Intercreditor Agreement, and the Liens
securing which are subordinated under the
Lien Subordination and Intercreditor
Agreement to the Liens securing the
Obligations and (c) does not contain
provisions inconsistent with the
restrictions of Annex A to the First
Amendment.
"Senior Subordinated-Lien Obligations" means, as to any Senior
Subordinated-Lien Indebtedness, (a) the
principal of and all premium or
make-whole amounts, if any, and interest
payable in respect of such Senior
Subordinated-Lien Indebtedness, (b) any
amounts payable under Guarantees of such
Senior Subordinated-Lien Indebtedness by
Subsidiaries and (c) all other amounts
payable by the Borrower or any Subsidiary
under such Senior Subordinated-Lien
Indebtedness, the applicable Senior
Subordinated-Lien Security Documents (to the
extent such amounts relate to such
Senior
33
<PAGE>
Subordinated-Lien Indebtedness) or the
applicable Senior Subordinated-Lien
Governing Documents.
"Senior Subordinated-Lien Security Documents" means, as to any
Senior Subordinated-Lien Indebtedness, the
security agreements, pledge
agreements, mortgages and other documents
creating Liens on assets of the
Borrower and the Subsidiary Guarantors to
secure the applicable Senior
Subordinated-Lien Obligations.
"Standard & Poor's" means Standard & Poor's Ratings
Services, a
division of The McGraw-Hill Companies,
Inc., or any successor thereto.
"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. 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 the Borrower.
"Subsidiary Guarantor" means any Subsidiary that has become, or
is
required to become, a US Guarantor (as
defined in the Guarantee and Collateral
Agreement) pursuant to Section 4.01(j) of
the Original Credit Agreement or
Section 5.08 hereof.
"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
34
<PAGE>
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 Citicorp USA, Inc., 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 Borrowing"
means a Tranche A Term Borrowing or a Tranche B
Term Borrowing.
"Term Lender" means a Tranche A Term Lender or a Tranche B Term
Lender.
"Term Loans" means Tranche A Term Loans and Tranche B Term
Loans.
"Term Loan Commitment" means a Tranche A Term Loan Commitment or
a
Tranche B Term Loan Commitment.
"Tranche A Term Lender" means a Lender with an outstanding Tranche
A
Term Loan.
"Tranche A Term Loan" means a Loan made pursuant to clause (i)
of
Section 2.01(a).
"Tranche A Term Loan Commitment" means, with respect to each
Tranche
A Term Lender, the commitment pursuant to
which such Lender made its Tranche A
Term Loan hereunder on the Original
Effective Date. The aggregate amount of the
Lenders' Tranche A Term Loan Commitments
was $800,000,000.
"Tranche A 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 Tranche A 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 Tranche A Term Lenders
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), and (b) the due
and punctual performance of all other
obligations of the Credit Parties to any
of the Tranche A Term Lenders under this
Agreement and the other Credit
Documents.
"Tranche B Term Lender" means a Lender with a Tranche B Term
Loan
Commitment or an outstanding Tranche B Term
Loan.
35
<PAGE>
"Tranche B Term Loan" means a Loan made pursuant to clause (ii)
of
Section 2.01(a).
"Tranche B Term Loan Commitment" means, with respect to each
Tranche
B Term Lender, the commitment of such
Lender to make a Tranche B Term Loan
hereunder on the Restatement Effective
Date, expressed as an amount representing
the maximum principal amount of the Tranche
B Term Loan to be made by such
Lender hereunder, as such commitment may be
(a) reduced or increased from time
to time pursuant to Section 2.07 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 Tranche B Term
Lender's Tranche B 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 Tranche
B Term Loan Commitment, as
applicable. The initial aggregate amount of
the Tranche B Term Lenders' Tranche
B Term Loan Commitments is
$650,000,000.
"Tranche B 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 Tranche B 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 Tranche B Term Lenders
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), and (b) the due
and punctual performance of all other
obligations of the Credit Parties to any
of the Tranche B Term Lenders under this
Agreement and the other Credit
Documents.
"Transactions" means the execution, delivery and performance by
the
Borrower of this Agreement and the First
Amendment and by the Borrower, the
Subsidiary Guarantors and the Grantors, as
applicable, of the other Credit
Documents, the borrowing of the Loans, the
obtaining and use of the Letters of
Credit, the creation of the Liens and
Guarantees 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.
"UCC" means Article 9 of the Uniform Commercial Code as from time
to
time in effect in the State of New
York.
"US Revolving Facility Agreement" means the $750,000,000
Revolving
Loan Agreement dated as of the date hereof
among the Borrower, certain lenders
and JPMCB, as administrative agent.
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<PAGE>
"US Term Facility Agreement" means the $645,545,454 Term Loan
Agreement dated as of the date hereof among
the Borrower, certain lenders,
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.
"Wingfoot" means Wingfoot Commercial Systems LLC.
"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"). For purposes of determining
compliance as of any date with Section
6.08, amounts incurred in euros during 2003
shall be translated into dollars at
the exchange rate in effect on March 31,
2003, and amounts incurred in euros
during any subsequent year shall be
translated into dollars at the exchange rate
determined by the Borrower and used in its
Annual Operating Plan for such year
(which exchange rate shall be determined
reasonably and set forth in the first
certificate delivered pursuant to Section
5.01(c) during such year).
SECTION 1.03. 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 the Borrower.
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.
SECTION 1.04. 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
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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, (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 and (f)
references herein to "the date hereof" or
"the date of this Agreement" shall be
deemed to be references to March 31, 2003,
the date of the Original Credit
Agreement.
SECTION 1.05. 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 Borrower notifies the
Administrative Agent that the Borrower
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
Borrower 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.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the terms and
conditions
set forth herein, (i) each Tranche A Term
Lender made a Tranche A Term Loan to
the Borrower on the Original Effective Date
in a principal amount equal to its
Tranche A Term Loan Commitment, (ii) each
Tranche B Term Lender agrees to make a
Tranche B Term Loan to the Borrower on the
Restatement Effective Date in a
principal amount equal to its Tranche B
Term Loan Commitment and (iii) each
Revolving Lender has made and agrees to
make Revolving Loans to the Borrower
from time to time during the Revolving
Availability Period in an aggregate
principal amount that will not result in
(x) such Lender's Revolving Credit
Exposure exceeding such Lender's Revolving
Commitment or (y) the aggregate
Revolving Credit Exposure exceeding the
Borrowing Base Availability then in
effect.
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(a) Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower
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 2.12, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of
ABR Loans or Eurodollar Loans as the
Borrower may request in accordance
herewith. 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 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 or that is required to
finance the reimbursement of an LC
Disbursement as contemplated by Section
2.04(e). 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.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not 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 Borrowing. To request a Revolving
Borrowing or Term Borrowing, the 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
10:30 a.m., New York City time, on the day
of the proposed Borrowing; provided
that any such notice of an ABR Borrowing to
finance reimbursement of an LC
Disbursement as contemplated by Section
2.04(e) may be given not later than
10:00 a.m., New York City time, on 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 Borrower.
Each such telephonic and written
Borrowing Request shall specify the
following information in compliance with
Section 2.02:
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(i) the Class of the requested Borrowing;
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business
Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar
Borrowing;
(v) 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
(vi) the location and number of the Borrower's account to which
funds are
to be disbursed, which shall comply with the requirements of
Section
2.05.
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 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. Letters of Credit. (a) General. Subject to the
terms
and conditions set forth herein, the
Borrower may request the issuance (or the
amendment, renewal or extension) of Letters
of Credit for its own account, in a
form reasonably acceptable to the
Administrative Agent and the applicable
Issuing Bank, at any time and from time to
time during the Revolving
Availability Period. In the event of any
inconsistency between the terms and
conditions of this Agreement and the terms
and conditions of any form of letter
of credit application or other agreement
submitted by the Borrower to, or
entered into by the Borrower with, any
Issuing Bank relating to any Letter of
Credit, the terms and conditions of this
Agreement shall control. The Borrower
may at any time redesignate letters of
credit issued and outstanding under the
US Revolving Facility Agreement as Letters
of Credit hereunder; provided, that
(i) the Borrower shall by notice to the
Administrative Agent identify the
letters of credit to be redesignated as
Letters of Credit hereunder (each of
which shall have been issued by a Lender
that is an Issuing Bank under this
Agreement) and certify that the conditions
to such redesignation set forth in
the following clause (ii) are satisfied;
and (ii) no redesignation of a letter
of credit shall become effective hereunder
unless after giving effect to such
redesignation no Default shall have
occurred and be continuing and the
conditions precedent to the issuance,
amendment, renewal or extension of a
Letter of Credit under clause (b) below
shall be satisfied. The Revolving
Lenders hereby agree that upon the
effectiveness of any such redesignation, each
Issuing Bank that has issued any such
letter of credit under the US Revolving
Facility Agreement shall be deemed, without
further action by any party hereto,
to have granted to each Revolving Lender,
and each such Lender shall be deemed
to have purchased from such Issuing Bank,
a
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participation in such Letter of Credit in
accordance with paragraph (d) below.
On and after the effectiveness of any such
redesignation, such letter of credit
shall constitute a Letter of Credit for all
purposes hereof.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a
Letter of Credit (or the amendment,
renewal or extension of an outstanding
Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by
electronic communication, if
arrangements for doing so have been
approved by the applicable Issuing Bank) to
an Issuing Bank and the Administrative
Agent (reasonably in advance of the
requested date of issuance, amendment,
renewal or extension) a notice requesting
the issuance of a Letter of Credit, or
identifying the Letter of Credit to be
amended, renewed or extended, and
specifying the date of issuance, amendment,
renewal or extension (which shall be a
Business Day), the date on which such
Letter of Credit is to expire (which shall
comply with paragraph (c) of this
Section), the amount of such Letter of
Credit, the name and address of the
beneficiary thereof and such other
information as shall be necessary to prepare,
amend, renew or extend such Letter of
Credit. If requested by any Issuing Bank,
the Borrower also shall submit a letter of
credit application on such Issuing
Bank's standard form in connection with any
request for a Letter of Credit;
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