AMENDMENT TO TERM LOAN AND REVOLVING CREDIT AGREEMENT

 

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                                                                     EXHIBIT 4.5

 

 

                        FIRST AMENDMENT dated as of February 19, 2004 (this

                  "Amendment"), to the Term Loan and Revolving Credit Agreement

                   dated as of March 31, 2003 (the "Credit Agreement"), among THE

                  GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation

                  ("Goodyear"); GOODYEAR DUNLOP TIRES EUROPE B.V., a corporation

                  organized under the laws of the Netherlands (the "European

                  J.V."); GOODYEAR DUNLOP TIRES GERMANY GMBH, a corporation

                  organized under the laws of the Federal Republic of Germany

                  ("GDTG"); GOODYEAR GMBH & CO KG, a partnership organized under

                  the laws of the Federal Republic of Germany ("Goodyear KG");

                  DUNLOP GMBH & CO KG, a partnership organized under the laws of

                  the Federal Republic of Germany ("Dunlop KG"); GOODYEAR

                  LUXEMBOURG TIRES SA, a societe anonyme organized under the

                  laws of Luxembourg ("Lux Tires"); the lenders party thereto

                  (together with their successors and permitted assigns

                  thereunder, the "Lenders"); and JPMORGAN CHASE BANK, a New

                  York banking corporation, as administrative agent for the

                  Lenders (in such capacity, the "Administrative Agent").

 

            WHEREAS, pursuant to the terms and conditions of the Credit

Agreement, the Lenders have extended and agreed to extend credit to the

Borrowers; and

 

            WHEREAS, Goodyear and the Borrowers have requested, and the Majority

Lenders are willing to agree, that certain provisions of the Credit Agreement

and of the Security Documents be amended on the terms and subject to the

conditions set forth herein.

 

            NOW, THEREFORE, in consideration of the foregoing and for other good

and valuable consideration, the receipt of which is hereby acknowledged, the

parties hereto hereby agree as follows:

 

            SECTION 1. Defined Terms. Capitalized terms used and not defined

herein shall have the meanings given to them in the Credit Agreement or, if not

defined therein, in the Guarantee and Collateral Agreement, each as amended

hereby or pursuant hereto.

 

            SECTION 2. Amendments to Section 1.01 of the Credit Agreement.

Section 1.01 of the Credit Agreement is hereby amended as follows:

 

                  (a) The definition of "Capital Expenditures" is hereby amended

      by deleting the word "and" immediately before "(ii)" in the second

      sentence thereof and inserting immediately before the period at the end of

      such sentence "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 Goodyear or any Subsidiary shall have received during such

      period from customers in respect of Customer Capital

 

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      Expenditures; provided that the aggregate amount of such reductions shall

      not exceed $50,000,000 in any fiscal year".

 

                  (b) The definition of "Consolidated Net Worth" is hereby

       amended by inserting "(including the $84,700,000 of charges incurred in

      connection with Goodyear'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)" immediately after the phrase "non-cash

      non-recurring charges" in clause (c)(i) of such definition.

 

                  (c) The definition of "Consolidated Senior Secured

      Indebtedness" is hereby amended by inserting "(other than up to

      $2,500,000,000 aggregate principal amount of Senior Subordinated-Lien

      Indebtedness)" immediately after the word "Indebtedness" in clause (a) of

      such definition.

 

                  (d) The definition of "Credit Documents" is hereby amended by

      replacing the word "and" with a comma and by inserting immediately before

      the period at the end thereof "and the Lien Subordination and

      Intercreditor Agreement".

 

                  (e) The definition of "Net Cash Proceeds" is hereby amended by

      inserting at the end thereof, "The Net Cash Proceeds of any event that is

      not a Prepayment Event shall be determined as if such event were a

      Prepayment Event."

 

                  (f) Clause (c) of the definition of "Permitted Encumbrances"

      is hereby amended by inserting therein immediately after the phrase

      "deposits made" the phrase "(including cash deposits to secure obligations

      in respect of letters of credit provided)".

 

                  (g) Clause (f) of the definition of "Permitted Investments" is

      hereby amended by replacing the word "or" immediately before clause (ii)

      thereof with a comma and inserting immediately before the period at the

      end thereof the following:

 

            ", (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".

 

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                  (h) The definition of "Securitization Transaction" is hereby

      amended by inserting immediately before the period at the end of the first

      sentence thereof the following:

 

                  (i) "; 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 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 Goodyear 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 at 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 Goodyear 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 following new definitions are hereby inserted in their

appropriate alphabetical positions:

 

            "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 Goodyear or any Subsidiary that is paid directly, or reimbursed to

Goodyear or any Subsidiary, by customers of Goodyear or any of the Subsidiaries

that are not Affiliates of Goodyear.

 

            "Designated Debt" means Indebtedness of Goodyear that matures during

any of the calendar years 2005, 2006, 2007 and 2008.

 

            "First Amendment" means the First Amendment dated as of February 19,

2004, to this Agreement.

 

            "First Amendment Date" means February 19, 2004.

 

            "Junior Securities" means, collectively, any Senior

Subordinated-Lien Indebtedness and any Indebtedness or preferred Equity

Interests issued under Section 6.01(q).

 

            "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

 

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Collateral Agent, the applicable Senior Subordinated-Lien Collateral Agent,

Goodyear and the US 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.

 

            "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

Goodyear 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 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 provisions 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 Goodyear 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 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 Goodyear

and the US Subsidiary Guarantors to secure the applicable Senior

Subordinated-Lien Obligations.

 

            SECTION 3. Amendments to Section 1.02 of the Credit Agreement.

Section 1.02 of the Credit Agreement is hereby amended by inserting the

following at the end thereof:

 

            (a) "For purposes of determining compliance as of any date with

      Section 6.09, 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 Goodyear and used in its Annual

      Operating Plan for such year

 

 

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      (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 4. Amendments to Section 5.01 of the Credit Agreement.

Paragraph (c) of Section 5.01 of the Credit Agreement is hereby amended by (a)

deleting the words "at the time of" at the beginning of such paragraph and

inserting in their place the words "not later than one Business Day after", (b)

removing the word "and" immediately preceding clause (iii) thereof and (c)

adding at the end of clause (iii) and immediately preceding the semicolon the

following clause: "and (iv) specifying the exchange rate determined by Goodyear

and used in its Annual Operating Plan for the then current fiscal year (which

rate Goodyear agrees to determine reasonably)".

 

            SECTION 5. Amendment to Section 5.08 of the Credit Agreement.

Section 5.08 of the Credit Agreement is hereby amended by adding the following

paragraph at the end thereof:

 

                  "(f) Substantially simultaneously with the initial incurrence,

            issuance or sale of Senior Subordinated-Lien Indebtedness, Goodyear

            will and will cause the US Facilities Grantors (as defined in the

            Guarantee and Collateral Agreement) to create security interests in

            the US Facilities Collateral (as defined in the Guarantee and

            Collateral Agreement) to secure the Guarantee by Goodyear of the

            Revolving Obligations on a pari passu basis with the Liens securing

            such initial Senior Subordinated-Lien Indebtedness and subordinate

            to the other Liens on such Collateral created by the Guarantee and

            Collateral Agreement, all pursuant to documentation reasonably

            satisfactory to the Collateral Agent, and take all such further

            actions as may be reasonably requested by the Collateral Agent in

            order to cause the security interests required to be created under

            the terms of this paragraph (f) to constitute valid security

            interests, perfected in accordance with this Agreement."

 

            SECTION 6. Amendments to Section 6.01 of the Credit Agreement.

 

                  (a) Paragraph (b) of Section 6.01 is hereby amended by

      replacing "$1,600,000,000" with "$1,950,000,000" and by inserting

      immediately at the end thereof the following:

 

                        "or, at any time when (i) the Loans under and as defined

                  in the US Term Facility Agreement have been repaid in full and

                  (ii) no Loans are outstanding under the US Revolving Facility

                  Agreement and the Regular Way Commitments (as defined in such

                  Agreement) have been reduced to zero, $2,000,000,000;

                  provided, that the amount of Indebtedness permitted by this

                  paragraph or any other paragraph of this Section to exist

                  under the US Term Facility Agreement and the US Revolving

                  Facility Agreement shall be reduced (i) in the case of the US

                  Term Facility Agreement, by the

 

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                  aggregate amount of all prepayments of the loans outstanding

                  thereunder and (ii) in the case of the US Revolving Facility

                  Agreement, by the aggregate amount of all permanent reductions

                   of the commitments thereunder (it being agreed, however, that

                  up to $250,000,000 of Indebtedness under the US Revolving

                  Facility Agreement in the form of cash-collateralized letters

                  of credit will in any event be permitted);"

 

                  (b) Paragraph (g) of Section 6.01 of the Credit Agreement is

      hereby amended to read as follows:

 

                        "(g) Securitization Transactions (other than those

            permitted by paragraphs (f), (j), (l), (r) and (u) of this Section)

            in an aggregate amount not greater than (euro)275,000,000

            outstanding at any time;"

 

                  (c) Section 6.01 of the Credit Agreement is hereby further

      amended by deleting the word "and" at the end of clause (r), redesignating

      clause (s) as clause (u) and inserting after clause (r) the following new

      clauses:

 

                        "(s) Senior Subordinated-Lien Indebtedness for borrowed

            money of Goodyear not maturing or required to be prepaid, redeemed,

            repurchased or defeased prior to the Maturity Date, whether on one

            or more scheduled dates or upon the happening of one or more events

            (other than as a result of events of default or change of control

            events or pursuant to customary provisions requiring that Goodyear

            offer to purchase such Senior Subordinated-Lien Indebtedness with

            the proceeds of asset sales to the extent such proceeds have not

            been invested in assets used in Goodyear 's business or used to

            prepay, redeem or purchase other Indebtedness (including Loans under

            and as defined in the US Revolving Facility Agreement and the US

             Term Facility Agreement) or to provide cash collateral for

            reimbursement obligations in respect of letters of credit (including

            the Letters of Credit under and as defined in the US Revolving

            Facility Agreement)) (it being understood that provisions comparable

            to those contained in Annex A hereto are customary), and related

            Guarantees by the US Subsidiary Guarantors; provided that (i)

            Goodyear shall substantially concurrently make any prepayments,

            deposits of cash collateral to secure reimbursement obligations in

            respect of Letters of Credit and reductions of Regular Way

            Commitments (as defined in the US Revolving Facility Agreement) and

             Commitments required in connection with the issuance of such Senior

            Subordinated-Lien Indebtedness under the US Revolving Facility

            Agreement and the US Term Facility Agreement, (ii) the Senior

            Subordinated-Lien Collateral Agent for such Senior Subordinated-Lien

            Indebtedness shall have executed and delivered to the Administrative

            Agent, on its own behalf and on behalf of the obligees on such

            Senior Subordinated-Lien Indebtedness, the Lien Subordination and

            Intercreditor Agreement, and (iii) after no Loans or Regular Way

            Commitments are outstanding under the US Term Facility Agreement and

            the US Revolving Facility Agreement, the portion of the Net Cash

            Proceeds of such Senior Subordinated-Lien Indebtedness in excess of

            required prepayments under the US Term Facility Agreement

 

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            and Commitment reductions and Regular Way Commitment reductions

            under the US Revolving Facility Agreement shall, except to the

            extent a like amount of Net Cash Proceeds of Senior

            Subordinated-Lien Indebtedness shall have been so applied prior to

             the time at which all amounts outstanding under the US Term Facility

            Agreement and the US Revolving Facility Agreement shall have been

            prepaid and the Regular Way Commitments shall have been reduced to

            zero, be applied, within 180 days after the receipt by Goodyear of

            such Net Cash Proceeds, solely (A) to prepay Loans under and as

            defined in the New Facilities Credit Agreements (it being agreed

            that at the time of any such prepayment of revolving loans the

            related commitments will be reduced by the amount of such

            prepayment), (B) to repurchase, repay or prepay Designated Debt or

            (C) to make reasonably anticipated required contributions to Plans

             of Goodyear and the Subsidiaries;

 

                        (t) Securitization Transactions of Foreign Subsidiaries

            (other than those permitted by paragraphs (f), (g), (j), (l) and (r)

            of this Section) in an aggregate amount not greater than $15,000,000

            outstanding at any time; and"

 

            SECTION 7. Amendments to Section 6.02 of the Credit Agreement.

 

                  (a) Section 6.02 of the Credit Agreement is amended by

      deleting from the introductory clause thereof the phrase "(other than

      sales of delinquent receivables and sales of receivables in the ordinary

      course of business (other than Securitization Transactions and factoring

      transactions) for the purpose of accelerating collection of such

      receivables)" and replacing it with the phrase "(other than sales of

      delinquent or doubtful receivables and other than any transaction excluded

      from the definition of "Securitization Transaction" under the proviso

      thereto)".

 

                  (b) Paragraph (a) of Section 6.02 of the Credit Agreement is

      hereby amended by replacing "New Facility Documents" with "New Facilities

      Documents or the Credit Documents".

 

                  (c) Paragraph (f) of Section 6.02 of the Credit Agreement is

      hereby amended to read as follows:

 

                        "(f)(i) Liens on assets of Foreign Subsidiaries (other

            than the European J.V. and the J.V. subsidiaries and Luxembourg

            Finance) securing Indebtedness incurred under Section 6.01(f), and

            (ii) in connection with Securitization Transactions permitted under

            Section 6.01(f) or (t);"

 

                  (d) Section 6.02 of the Credit Agreement is amended by

      deleting the word "and" at the end of clause (l), redesignating clause (m)

      as clause (p) and inserting after clause (l) the following new clauses

      (m), (n) and (o):

 

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                        "(m) Liens on assets constituting ABL Facilities

            Collateral, US Facilities Pledged Collateral, Luxembourg Finance

            Pledged Collateral and US Facilities Article 9 Collateral (other

            than any such US Facilities Article 9 Collateral constituting

            Indenture Properties or "manufacturing facilities", as defined in

            the Swiss Franc Note Agreement) (each such term not defined in this

            Agreement having the meaning assigned to it in the Guarantee and

            Collateral Agreement), and on Goodyear's headquarters building in

            Akron, Ohio, created under any Senior Subordinated-Lien Security

            Documents to secure any Senior Subordinated-Lien Indebtedness

            incurred under Section 6.01(s); provided, that such Liens shall be

            subordinate and junior to the Liens securing the Obligations under

            and as defined in each of the New Facilities Credit Agreements and

            shall be equal in priority to the Liens securing the G