EX-4.1 First Lien Credit Agreement



 





EXHIBIT 4.1


EXECUTION COPY









FIRST LIEN CREDIT AGREEMENT




dated as of




April 8, 2005




among




THE GOODYEAR TIRE & RUBBER COMPANY,

as Borrower,




The LENDERS Party Hereto,




The ISSUING BANKS Party Hereto,




CITICORP USA, INC.,

as Syndication Agent,




BANK OF AMERICA, N.A.,

as Documentation Agent,




THE CIT GROUP/BUSINESS CREDIT, INC.,

as Documentation Agent,




GENERAL ELECTRIC CAPITAL CORPORATION,

as Documentation Agent,




GMAC COMMERCIAL FINANCE LLC,

as Documentation Agent




and




JPMORGAN CHASE BANK, N.A.

as Administrative Agent and Collateral 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]          





 









 








Table of Contents




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I

	 
	 	 	 	 
	Definitions

	 
	 	 	 	 
	SECTION
1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Classification of Loans and Borrowings
	 	 	42	 
	SECTION 1.03. Foreign Currency Translation
	 	 	42	 
	SECTION 1.04. Terms Generally
	 	 	43	 
	SECTION 1.05. Accounting Terms; GAAP
	 	 	44	 
	 
	 	 	 	 
	ARTICLE II

	 
	 	 	 	 
	The Credits

	 
	 	 	 	 
	SECTION 2.01. Deposit Account
	 	 	44	 
	SECTION 2.02. Loans and Borrowings
	 	 	48	 
	SECTION 2.03. Requests for Borrowing
	 	 	49	 
	SECTION 2.04. Letters of Credit
	 	 	50	 
	SECTION 2.05. Funding of Borrowings
	 	 	59	 
	SECTION 2.06. Interest Elections
	 	 	60	 
	SECTION 2.07. Reductions of Commitments
	 	 	61	 
	SECTION 2.08. Repayment of Loans; Evidence of Debt
	 	 	61	 
	SECTION 2.09. Prepayment of Loans
	 	 	62	 
	SECTION 2.10. Fees
	 	 	64	 
	SECTION 2.11. Interest
	 	 	66	 
	SECTION 2.12. Alternate Rate of Interest
	 	 	66	 
	SECTION 2.13. Increased Costs
	 	 	67	 
	SECTION 2.14. Break Funding Payments
	 	 	68	 
	SECTION 2.15. Taxes
	 	 	69	 
	SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Setoffs
	 	 	70	 
	SECTION 2.17. Mitigation Obligations; Replacement of Lenders
	 	 	72	 
	 
	 	 	 	 
	ARTICLE III

	 
	 	 	 	 
	Representations and Warranties

	 
	 	 	 	 
	SECTION 3.01. Organization; Powers
	 	 	73	 
	SECTION 3.02. Authorization; Enforceability
	 	 	74	 
	SECTION 3.03. Governmental Approvals; No Conflicts
	 	 	74	 
	SECTION 3.04. Financial Statements; No Material Adverse Change
	 	 	74	 






 









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 3.05. Litigation and Environmental Matters
	 	 	75	 
	SECTION 3.06. Compliance with Laws and Agreements
	 	 	75	 
	SECTION 3.07. Investment and Holding Company Status
	 	 	75	 
	SECTION 3.08. ERISA and Canadian Pension Plans
	 	 	75	 
	SECTION 3.09. Disclosure
	 	 	76	 
	SECTION 3.10. Security Interests
	 	 	76	 
	SECTION 3.11. Use of Proceeds and Letters of Credit
	 	 	77	 
	 
	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 
	Conditions

	 
	 	 	 	 
	SECTION 4.01. Effective Date
	 	 	78	 
	SECTION 4.02. Each Credit Event
	 	 	81	 
	 
	 	 	 	 
	ARTICLE V

	 
	 	 	 	 
	Affirmative Covenants

	 
	 	 	 	 
	SECTION 5.01. Financial Statements and Other Information
	 	 	82	 
	SECTION 5.02. Notices of Defaults
	 	 	84	 
	SECTION 5.03. Existence; Conduct of Business
	 	 	84	 
	SECTION 5.04. Maintenance of Properties
	 	 	84	 
	SECTION 5.05. Books and Records; Inspection and Audit Rights
	 	 	84	 
	SECTION 5.06. Compliance with Laws
	 	 	85	 
	SECTION 5.07. Insurance
	 	 	85	 
	SECTION 5.08. Guarantees and Collateral
	 	 	86	 
	SECTION 5.09. Borrowing Base Certificate
	 	 	87	 
	 
	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 
	Negative Covenants

	 
	 	 	 	 
	SECTION 6.01. Indebtedness and Preferred Equity Interests
	 	 	88	 
	SECTION 6.02. Liens
	 	 	92	 
	SECTION 6.03. Sale and Leaseback Transactions
	 	 	93	 
	SECTION 6.04. Fundamental Changes
	 	 	94	 
	SECTION 6.05. Investments, Loans, Advances and Guarantees
	 	 	94	 
	SECTION 6.06. Asset Dispositions
	 	 	96	 
	SECTION 6.07. Restricted Payments
	 	 	98	 
	SECTION 6.08. Capital Expenditures
	 	 	99	 
	SECTION 6.09. Interest Expense Coverage Ratio
	 	 	99	 
	SECTION 6.10. Senior Secured Indebtedness Ratio
	 	 	99	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE VII

	 
	 	 	 	 
	Events of Default

	 
	 	 	 	 
	SECTION 7.01. Events of Default
	 	 	100	 
	 
	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 
	The Agents

	 
	 	 	 	 
	ARTICLE IX

	 
	 	 	 	 
	Miscellaneous

	 
	 	 	 	 
	SECTION 9.01. Notices
	 	 	105	 
	SECTION 9.02. Waivers; Amendments
	 	 	106	 
	SECTION 9.03. Expenses; Indemnity; Damage Waiver
	 	 	109	 
	SECTION 9.04. Successors and Assigns
	 	 	110	 
	SECTION 9.05. Survival
	 	 	114	 
	SECTION 9.06. Counterparts; Integration; Effectiveness; Issuing Banks
	 	 	115	 
	SECTION 9.07. Severability
	 	 	115	 
	SECTION 9.08. Right of Setoff
	 	 	115	 
	SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	116	 
	SECTION 9.10. WAIVER OF JURY TRIAL
	 	 	116	 
	SECTION 9.11. Headings
	 	 	117	 
	SECTION 9.12. Confidentiality
	 	 	117	 
	SECTION 9.13. Interest Rate Limitation
	 	 	117	 
	SECTION 9.14. Security Documents
	 	 	118	 
	SECTION 9.15. Additional Financial Covenants
	 	 	118	 
	SECTION 9.16. USA Patriot Act Notice
	 	 	118	 






iii









 






SCHEDULES:




	 	 	 	 	 
	Schedule 1.01A

	 	—
	 	Consent Subsidiaries
	Schedule 1.01B

	 	—
	 	Mortgaged Properties
	Schedule 1.01C

	 	—
	 	Senior Subordinated-Lien Indebtedness
	Schedule 2.01

	 	—
	 	Commitments
	Schedule 2.04

	 	—
	 	Existing Letters of Credit
	Schedule 3.10(b)

	 	—
	 	Mortgaged Properties
	Schedule 3.10(c)

	 	—
	 	Material Intellectual Property
	Schedule 4.01

	 	—
	 	Post-Effective Date Delivery Requirements
	Schedule 6.01

	 	—
	 	Existing Indebtedness
	Schedule 6.02

	 	—
	 	Existing Liens
	Schedule 6.05(j)(ii)

	 	—
	 	Additional Equity Interests
	Schedule 6.06

	 	—
	 	Asset Dispositions
	Schedule 6.08

	 	—
	 	Customer Capital Expenditures






EXHIBITS:




	 	 	 	 	 
	Exhibit A

	 	—
	 	Form of Borrowing Request
	Exhibit B

	 	—
	 	Form of Interest Election Request
	Exhibit C

	 	—
	 	Form of Promissory Note
	Exhibit D

	 	—
	 	Form of Assignment and Assumption
	Exhibit E-1

	 	—
	 	Form of Opinion of Borrower’s Outside Counsel
	Exhibit E-2

	 	—
	 	Form of Opinion of Borrower’s General Counsel
	Exhibit F

	 	—
	 	Form of Lenders Lien Subordination and Intercreditor Agreement
	Exhibit G

	 	—
	 	Form of Guarantee and Collateral Agreement
	Exhibit H

	 	—
	 	Form of Second Lien Guarantee and Collateral Agreement
	Exhibit I

	 	—
	 	Third Lien Collateral Agreement
	Exhibit J

	 	—
	 	Form of European Guarantee and Collateral Agreement
	Exhibit K

	 	—
	 	Form of Borrowing Base Certificate






iv









 







     FIRST LIEN CREDIT AGREEMENT dated as of April 8, 2005 (this
“Agreement”), among THE GOODYEAR TIRE & RUBBER COMPANY; the
LENDERS party hereto; the ISSUING BANKS party hereto; CITICORP USA, INC.,
as Syndication Agent; BANK OF AMERICA, N.A., as Documentation Agent; THE
CIT GROUP/BUSINESS CREDIT, INC., as Documentation Agent; GENERAL ELECTRIC
CAPITAL CORPORATION, as Documentation Agent; GMAC COMMERCIAL FINANCE LLC,
as Documentation Agent and JPMORGAN CHASE BANK, N.A., as Administrative
Agent and Collateral Agent.



          The Borrower has requested the Lenders to extend credit to the Borrower in the form of
Borrowings and Letters of Credit in an aggregate principal or stated amount not in excess of
$1,500,000,000 at any time outstanding. The Lenders are willing to extend such credit to the
Borrower on the terms and subject to the conditions herein set forth. The proceeds of Borrowings
hereunder will be used for working capital and general corporate purposes of the Borrower and the
Subsidiaries. Letters of Credit will be used 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 Agreement” means the Amended and Restated Term Loan and Revolving
Credit Agreement dated as of February 19, 2004, as amended, among the Borrower, certain lenders,
JPMCB, as administrative agent, Citicorp USA, Inc., as syndication agent, and Bank of America, N.A.
and The CIT Group/Business Credit, Inc., as documentation agents.




          “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.




          “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.




 









 








 2




          “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 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 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




     (e) any other reserve as deemed appropriate 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.



          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 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




 









 








 3




adjustment or the establishment of a reserve pursuant to clause (e) 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 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 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 Rate” shall mean, for any day, with respect to (a) any Loan, (b) the
Deposit or (c) the Revolving Commitments, the applicable rate per annum set forth under the
appropriate caption in the table below, in each case based upon the Reference Availability (as
defined below) then in effect, except that if an Event of Default shall have occurred under clause
(a), (b), (h) or (i) of Section 7.01 or as a result of a breach of Section 5.09(a) (for so long as
a new Borrowing Base Certificate has not




 









 








 4




been delivered), 6.09 or 6.10 and shall then be continuing, the Applicable Rate shall be
determined by reference to Category 3 in the table below:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	Eurodollar	 	 	ABR	 	 	 	 	 	Commitment	 
	 	Reference Availability :	 	 	Spread	 	 	Spread	 	 	Deposit Fee	 	 	Fee	 
	 	Category 1


>$400,000,000
	 	 	1.750%	 	 	0.750%	 	 	1.750%	 	 	0.500%	 
	 	Category 2


£$400,000,000

and

>$250,000,000
	 	 	2.000%	 	 	1.000%	 	 	2.000%	 	 	0.400%	 
	 	Category 3


£$250,000,000
	 	 	2.250%	 	 	1.250%	 	 	2.250%	 	 	0.375%	 
	 





The “Reference Availability” for each day shall be the amount determined by the
Administrative Agent as of the second Business Day (the “Applicable Delivery Date”)
following the then most recent delivery of a Borrowing Base Certificate to be the average of the
Available Commitments as of the end of each of the 30 consecutive days immediately preceding the
Applicable Delivery Date; provided that at all times prior to the second Applicable
Delivery Date, the Applicable Rate shall be determined by reference to Category 1 in the table
above.




          “Applicable Rating” shall mean, at any time, each of (a) the public corporate credit
rating assigned to the Borrower at such time by Standard & Poor’s and (b) the public senior implied
rating assigned to the Borrower at such time by Moody’s.




          “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., as Joint Lead Arranger and Joint
Bookrunner, and Citigroup Global Markets Inc., as Joint Lead Arranger and Joint Bookrunner, 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




 









 








 5




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.




          “Available Commitments” means, at the time of any determination, an amount equal to
the difference between (a) the lesser of the Borrowing Base and the aggregate amount of the
Commitments in effect at such time minus (b) the aggregate amount of the Credit Exposures at such
time.




          “Benchmark LIBO Rate” has the meaning set forth in Section 2.01(d).




          “Board” means the Board of Governors of the Federal Reserve System of the United
States of America.




          “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, the Retail
Division, the Engineered Products Division, the Chemical Products Division and Wingfoot,
respectively, plus (z) 35% of Eligible Work in Process 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




 









 








 6




Administrative Agent pursuant to Section 5.09, except
that prior to the first such delivery under Section 5.09, the Borrowing Base shall be determined by
reference to the most recent Borrowing Base Certificate (as defined in the ABL Facilities
Agreement) delivered to the Administrative Agent pursuant to Section 5.09 of the ABL Facilities
Agreement. 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 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
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 the lesser of the Borrowing Base at such time and the aggregate amount of the Commitments at
such time.




          “Borrowing Base Certificate” means a certificate substantially in the form of Exhibit
K 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 K hereto, (b) reasonably requested by the Administrative Agent and (c) provided for in
Section 5.09.




          “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).





 









 








 7




          “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 (A) the aggregate amount of such
reductions in respect of Customer Capital Expenditures under the programs specified in Schedule
6.08 shall not exceed $160,000,000 during the term of this Agreement and (B) the aggregate amount
of such reductions in respect of Customer Capital Expenditures made other than under the program
specified in Schedule 6.08 shall not exceed $50,000,000 in any fiscal year. “Capital Expenditures”
shall also include, without duplication, all Investments made under Section 6.05(k)(ii).




          “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.




          “Cash Equivalent” means, at any time, a financial instrument issued by any permitted
issuer of a Permitted Investment that at such time is immediately convertible to cash at face value
without any penalty, premium or loss of discount.




          “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




 









 








 8




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 or DF Loans and, when used in reference
to any Commitment, refers to whether such Commitment is a Revolving Commitment or a DF 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 all the assets and rights that secure any of the Obligations
pursuant to the Security Documents. 




          “Collateral Agent” means JPMCB, in its capacity as collateral agent for the Lenders
under the Guarantee and Collateral Agreement and the other Security Documents.




          “Commitment” means a Revolving Commitment or a DF Commitment or any combination
thereof (as the context requires).




          “Commitment Termination Date” means April 30, 2010.




          “Consent Subsidiary” means (a) any Subsidiary listed on Schedule 1.01A and (b) any
Subsidiary not on Schedule 1.01A or formed or acquired after the Effective Date, in respect of
which (A) the consent of any Person other than 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 any Affiliate of such Subsidiary in order for such Subsidiary to
execute the Guarantee and Collateral Agreement as a Grantor or a Subsidiary Guarantor and perform
its obligations





 









 








 9




thereunder, or in order for Equity Interests of such Subsidiary to be pledged under the
Security Documents, as the case may be, 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 Schedule 1.01A) that at any time ceases to meet the test
set forth in clause (A) shall cease to be a Consent Subsidiary. No Subsidiary shall be a Consent
Subsidiary if it is a Guarantor or a Grantor under the Second Lien Guarantee and Collateral
Agreement or the Third Lien Collateral Agreement, a US Guarantor or a US Facilities Grantor under
the European Guarantee and Collateral Agreement or a Subsidiary Guarantor or Grantor Subsidiary
Guarantor under the Junior Lien Indenture.




          “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 for the Borrower and its Consolidated Subsidiaries 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 March 31, 2005, (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 of the Borrower and its Consolidated Subsidiaries
for such period, 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.




 









 








10




          “Consolidated Net Secured Indebtedness” means, at any date, (a) the sum for the
Borrower and its Consolidated Subsidiaries for such period, without duplication, of (i) all
Indebtedness (other than obligations in respect of Swap Agreements) that is included on the
Borrower’s consolidated balance sheet and is secured by any assets of the Borrower or a
Consolidated Subsidiary, (ii) all Capital Lease Obligations, (iii) all synthetic lease financings,
(iv) all Indebtedness of South Pacific Tyres that is secured by any of its assets or assets of the
Borrower or a Consolidated Subsidiary and (v) all Securitization Transactions, minus (b) the
aggregate amount of cash, cash equivalents and Permitted Investments in excess of $400,000,000 held
at such time by the Borrower and the Consolidated Subsidiaries, all determined in accordance with
GAAP. For purposes of computing Consolidated Net 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 Revenue” means, for any period, the revenues of the Borrower and its
Consolidated Subsidiaries for such period, determined in accordance with GAAP.




          “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, the Issuing Bank Agreements, any letter of
credit applications referred to in Section 2.04(a) or (b), any promissory notes delivered pursuant
to Section 2.08(e), the Security Documents, the Lenders Lien Subordination and Intercreditor
Agreement and the Lien Subordination and Intercreditor Agreement.




          “Credit Exposure” means, with respect to any Lender at any time, the sum of the
outstanding principal amount of such Lender’s Loans and such Lender’s LC Exposure at such time.




          “Credit Facilities Agreements” means this Agreement, the Second Lien Agreement and the
European Facilities Agreement.




          “Credit Facilities Documents” means the Credit Facilities Agreements, the Guarantee
and Collateral Agreement, the Second Lien Guarantee and Collateral Agreement, the European
Guarantee and Collateral Agreement and the other Security Documents (as such term is defined in any
Credit Facilities Agreement).




 









 








11




          “Credit Party” means the Borrower, each Subsidiary Guarantor and each Grantor.




          “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” means, with respect to each Lender at any time, amounts actually on deposit
in the Deposit Account to the credit of such Lender’s Sub-Account at such time.




          “Deposit Account” means the “Goodyear 2005 First Lien Credit Agreement Deposit
Account” established by the Administrative Agent at JPMCB pursuant to Section 2.01(a).




          “Deposit Return” has the meaning set forth in Section 2.01(d).




          “Deposit-Funded Agreement” means the Deposit-Funded Credit Agreement dated as of
August 17, 2004, among the Borrower, certain lenders, certain issuing banks, BNP Paribas, as
syndication agent, and JPMCB, as administrative agent.




          “Designated Debt” means Indebtedness of the Borrower that matures during any of the
calendar years 2005, 2006, 2007 and 2008.




          “DF Applicable Percentage” means, with respect to any Lender, the percentage of the DF
Total Commitment represented by such Lender’s DF Commitment. If the DF Commitments have been
reduced to zero, the DF Applicable Percentages shall be determined based upon the DF Commitments
most recently in effect, giving effect to any assignments.




          “DF Availability Period” means the period from and including the Effective Date to but
excluding the earlier of (a) the Commitment Termination Date and (b) any other date on which the DF
Commitments are reduced to zero.




          “DF Commitment” means, with respect to each Lender, an amount representing the maximum
permitted aggregate amount of such Lender’s DF Credit Exposure hereunder, as such amount may be (a)
reduced from time to time pursuant to Section 2.07 or increased from time to time pursuant to
Section 9.02(c) and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. For the avoidance of doubt, a Lender’s DF Commitment shall
be deemed “unused” at any time to the extent it exceeds such Lender’s DF Credit Exposure at such
time. The initial amount of each Lender’s DF Commitment is set forth on Schedule 2.01





 









 








12




or in the Assignment and Assumption pursuant to which such Lender shall have assumed its DF
Commitment, as applicable. The initial aggregate amount of the DF Lenders’ Commitments is
$500,000,000.




          “DF Credit Exposure” means, with respect to any Lender at any time, the sum of the
outstanding principal amount of such Lender’s DF Loans and such Lender’s DF LC Exposure at such
time.




          “DF LC Disbursement” means a payment made by any Issuing Bank pursuant to a DF Letter
of Credit.




          “DF LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of
the Dollar Equivalents of all outstanding DF Letters of Credit at such time plus (b) the aggregate
amount of the Dollar Equivalents of all DF LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time (by the borrowing of Loans or otherwise). The DF LC
Exposure of any Lender at any time shall be its DF Applicable Percentage of the total DF LC
Exposure at such time.




          “DF Lender” means a Lender with a DF Commitment or, if the DF Commitments have been
reduced to zero, a Lender with a DF Credit Exposure.




          “DF Letter of Credit” means, at any time, each Letter of Credit outstanding at such
time as a DF Letter of Credit pursuant to Section 2.04(a).




          “DF Loan” means a Loan made pursuant to Section 2.02(a)(ii).




          “DF Total Commitment” means, at any time, the aggregate amount of all the DF
Commitments at such time.




          “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.




 









 








13




          “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 filed with
the Securities and Exchange Commission on or prior to March 24, 2005, or (ii) filed with the
Securities and Exchange Commission after such date and prior to the Effective Date and delivered to
the Administrative Agent prior to the date hereof.




          “Dividend Availability Period” means a period commencing on the first date that the
Applicable Ratings are Ba2 or better and BB or better, respectively, and ending on the first date
thereafter that either Applicable Rating has for a consecutive 12-month period been lower than Ba3
or BB-. If at any time either, but not both, of the Applicable Ratings is not so maintained as a
public rating, the Applicable Rating that is not maintained shall be disregarded and the
commencement, continuance or termination of any Dividend Availability Period shall be based solely
on the Applicable Rating that is maintained as a public rating (i.e., as if the Applicable
Rating not so maintained were Ba2 or better or BB or better, as applicable). At any time that each
of the Applicable Ratings is not maintained as a public rating, each shall be deemed to be lower
than Ba3 or BB-, as applicable.




          “Documentation Agent” means each of Bank of America, N.A., The CIT Group/Business
Credit, Inc., General Electric Capital Corporation and GMAC Commercial Finance LLC, in its capacity
as documentation agent hereunder.




          “Dollar Equivalent” means, on any date of determination, (a) with respect to any
amount in dollars, such amount, and (b) with respect to any amount in Canadian Dollars, Euros or
Pounds Sterling, the equivalent in dollars of such amount, determined by the Administrative Agent
using the Exchange Rate or the LC Exchange Rate, as applicable, with respect to Canadian Dollars,
Euros or Pounds Sterling, as the case may be, in effect for such amount on such date. The Dollar
Equivalent amount at any time of any Letter of Credit or LC Disbursement denominated in Canadian
Dollars, Euros or Pounds Sterling shall be the amount most recently determined as provided in
Section 1.03(b).




          “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 (as defined in the definition of “Borrowing Base”) on such date divided by the
Inventory Value of all Inventory of the Borrower and each other Grantor on such date.




          “Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).




          “Eligible Accounts Receivable” means, at the time of any determination, each Account
that satisfies the following criteria at the time of such determination: such




 









 








14




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 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 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 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 could reasonably be
expected to 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 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 Lenders shall be made by written notice to
the Borrower 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



 









 





15





     (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 dollars and/or Canadian Dollars, the Account Debtor
is not located (or, for purposes of the Quebec Civil Code, if applicable, its principal
place of business or domicile 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 purposes of the Quebec Civil Code, if applicable),
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 or non-trade Account or relates to payments for
rent or interest; or



 









 





16





     (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




     (xvi) such Account does not comply in all material respects with the requirements of
all applicable laws and regulations, whether Federal, State, provincial, territorial or
local, including the Federal Consumer Credit Protection Act, the Federal Truth in Lending
Act and Regulation Z of the Board and applicable Canadian provincial consumer
protection/cost of credit disclosure legislation; 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



 









 





17





     (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 Lockbox Deposit Account in the Lockbox System;
or




     (xxii) such Account relates to the Retail Division, 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 that is rated
Investment Grade by either Moody’s or Standard & Poor’s or (b) 6% 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 all Account Debtors that are unpaid more than
60 days from the due date pursuant to clause (ii) above, any net credit balances relating to
Accounts of any Account Debtor that are unpaid for more than 60 days from the due date shall not be
included, to the extent such net credit balances do not exceed the total Accounts (excluding any
Accounts that are included in the calculation of such net credit balances) that are unpaid from
such Account Debtor.




          “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, 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




 









 








18




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 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
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:





     (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



 









 





19





     (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 (outside the United States or Canada), (iii) goods in transit
from the Borrower or another Grantor to customers of the Borrower or another Grantor, or
(iv) Inventory in transit to the Borrower or another Grantor from a third party vendor; or




     (e) it is Inventory (other than Raw Materials or Work in Process) 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 Work in Process, other than steel cord, that will be reclassified as Raw
Material prior to becoming Finished Goods; 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 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 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



 









 





20





     (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.




          “Eligible Work in Process” means, on any date, the Inventory Value of all Eligible
Inventory of the Borrower and each Grantor defined as Work in Process 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.




          “Equity Proceeds” means Net Cash Proceeds from issuances or sales of Equity Interests
(other than to directors, officers or employees of the Borrower or any Subsidiary in connection
with compensation or incentive arrangements) of the Borrower after the Effective Date.




          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time.




 









 








21




          “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.




          “Euro”
or “ €” means the lawful currency of the member states of the
European Union that have adopted a single currency in accordance with applicable law or treaty.




          “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 Amended and Restated Term Loan and Revolving
Credit Agreement dated as of March 31, 2003, as amended and restated as of the date hereof, among
the European JV, the other borrowers thereunder, certain lenders, certain issuing banks, J.P.
Morgan Europe Limited, as administrative agent, and JPMCB, as collateral agent.




          “European Guarantee and Collateral Agreement” means the amended and restated European
Guarantee and Collateral Agreement among the Borrower, the Subsidiary Guarantors, the Grantors,
certain other Subsidiaries and JPMCB, in its capacity as collateral agent under the credit
agreements described therein, substantially in the form of Exhibit J, as from time to time amended,
supplemented or otherwise modified




 









 








22




(subject to any restrictions on such amendments, supplements or modifications set forth
herein).




          “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 March 31, 2005; provided,
however that for such cash expenditures incurred after March 31, 2005, Excess Cash
Rationalization Charges shall only include the aggregate amount of such cash expenditures which
exceed the sum of $150,000,000 plus 50% of Equity Proceeds received after the Effective Date.




          “Exchange Rate” means, on any day, with respect to Canadian Dollars, Euros or Pounds
Sterling in relation to dollars, the rate at which such currency may be exchanged into dollars, as
set forth at approximately 12:00 noon, New York City time, on such day on the Reuters World
Currency Page for Canadian Dollars, Euros or Pounds Sterling, as applicable. In the event that any
such rate does not appear on the applicable Reuters World Currency Page, the Exchange Rate shall be
determined by reference to such other publicly available service for displaying exchange rates as
may be agreed upon by the Administrative Agent and the Borrower or, in the absence of such
agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange
of the Administrative Agent, at or about 11:00 a.m., New York City time, on such date for the
purchase of dollars with Canadian Dollars, Euros or Pounds Sterling, as the case may be, for
delivery two Business Days later; provided that if at the time of any such determination,
for any reason, no such spot rate is being quoted, the Administrative Agent, after consultation
with the Borrower, may use any reasonable method it deems appropriate to determine such rate, and
such determination shall be conclusive absent manifest error.




          “Excluded Operating Accounts” 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
are 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.
No Subsidiary shall be an Excluded Subsidiary if it is a Guarantor or a Grantor under the Second
Lien Guarantee and Collateral Agreement or the Third Lien Collateral Agreement, a US Guarantor or a
US Facilities Grantor under the European Guarantee and Collateral Agreement or a Subsidiary
Guarantor or Grantor Subsidiary Guarantor under the Junior Lien Indenture.




          “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





 









 








23




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(f).




          “Existing Letters of Credit” means each letter of credit outstanding as a “Letter of
Credit” as of the Effective Date under either the ABL Facilities Agreement or the Deposit-Funded
Agreement, each of which is set forth on Schedule 2.04.




          “Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
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 Lien Agreement” means this Agreement, the First Lien Credit Agreement dated as
of the date hereof, among the Borrower, certain lenders, certain issuing banks, Citicorp USA, Inc.,
as syndication agent, and JPMCB, as administrative agent.




          “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.




 









 








24




          “Foreign Pledge Agreement” means a pledge agreement securing the Obligations or any of
them that is governed by the law of a jurisdiction other than the United States and reasonably
satisfactory in form and substance to the Collateral Agent.




          “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, territorial 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, a Grantor (as defined in the Guarantee and Collateral Agreement) and, if
applicable, a party to any Canadian Security Agreement pursuant to Section 4.01(k) or Section 5.08.




          “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or to purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services for the purpose of
assuring the owner of such Indebtedness of the payment thereof, (c) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness; provided, that
the term Guarantee shall not include endorsements for collection or deposit in the ordinary course
of business. The amount of any Guarantee of any guaranteeing person shall be deemed to be the
lower of (a) an amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee is made and (b) the maximum amount for which such guaranteeing
person may be liable pursuant to the terms of the instrument embodying such Guarantee, unless such
primary obligation and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee shall be such guaranteeing
person’s maximum reasonably anticipated liability (assuming such person is required to perform) in
respect thereof as determined in such person’s good faith.




          “Guarantee and Collateral Agreement” means the Guarantee and Collateral Agreement
among the Borrower, the Subsidiary Guarantors, the Grantors,




 









 








25




certain other Subsidiaries and the Collateral Agent substantially in the form of Exhibit G, as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein).




          “Hazardous Materials” means (a) petroleum products and byproducts, asbestos, urea
formaldehyde foam insulation, polychlorinated biphenyls, radon gas, chlorofluorocarbons and all
other ozone-depleting substances; and (b) any pollutant or contaminant or any hazardous, toxic,
radioactive or otherwise regulated chemical, material, substance or waste that is prohibited,
limited or regulated pursuant to any applicable Environmental Law.




          “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person, (d) all obligations of such
Person in respect of the deferred purchase price of property or services (excluding accounts
payable incurred in the ordinary course of business), (e) all Indebtedness of others secured by (or
for which the holder of such Indebtedness has an existing right to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been
assumed, (f) all Guarantees by such Person of Indebtedness of others, (g) all Capital Lease
Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty, (i) all Securitization
Transactions of such Person and (j) all obligations of such Person in respect of Swap Agreements 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. The Deposits shall
in no event constitute Indebtedness of the Borrower.




          “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 February
2005 relating to the Borrower and the Transactions.




          “Intellectual Property” has the meaning set forth in the Guarantee and Collateral
Agreement.




          “Intercompany Items” means obligations owed by the Borrower or any Subsidiary to the
Borrower or any other Subsidiary.




          “Interest Election Request” means a request by the Borrower to convert or continue a
Borrowing in accordance with Section 2.06 in substantially the form of Exhibit B hereto.




 









 








26




          “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;




     (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.



 









 





27




          “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 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, Bank of America, BNP Paribas, Citicorp USA, Inc., Deutsche
Bank AG, New York Branch, Credit Suisse First Boston, acting through its Cayman Islands Branch, and
any other financial institution that has entered into an Issuing Bank Agreement, each in its
capacity as an issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.04(i). Each Issuing Bank may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates or branches of such Issuing Bank, in which case the
term “Issuing Bank” shall include any such Affiliate or branch with respect to Letters of Credit
issued by such Affiliate or branch.




          “Issuing Bank Agreement” means an agreement in form reasonably satisfactory to the
Borrower, the Administrative Agent and a financial institution pursuant to which such financial
institution agrees to act as an Issuing Bank hereunder.




          “JPMCB” means JPMorgan Chase Bank, N.A., and its successors.




          “Junior Lien Indenture” means the Indenture dated as of March 12, 2004, among the
Borrower, the subsidiary guarantors party thereto and Wells Fargo Bank, N.A., as trustee.




          “Junior Securities” means, collectively, any Senior Subordinated-Lien Indebtedness and
any Indebtedness or preferred Equity Interests issued under Section 6.01(q).




          “LC Commitment” means, as to any Issuing Bank, the maximum permitted amount of the LC
Exposure that may be attributable to Letters of Credit issued by such Issuing Bank, as set forth in
such Issuing Bank’s Issuing Bank Agreement.




          “LC Disbursement” means a payment made by any Issuing Bank pursuant to a Letter of
Credit. The amount of any LC Disbursement made by an Issuing Bank in Canadian Dollars, Euros or
Pounds Sterling and not reimbursed by the Borrower shall be determined as set forth in paragraph
(e) or (l) of Section 2.04, as applicable.




 









 








28




          “LC Exchange Rate” means, on any day, with respect to dollars in relation to Canadian
Dollars, Euros or Pounds Sterling, the rate at which dollars may be exchanged into such currency,
as set forth at approximately 12:00 noon, New York City time, on such day on the applicable Reuters
World Currency Page. In the event that any such rate does not appear on the applicable Reuters
World Currency Page, the LC Exchange Rate shall be determined by reference to such other publicly
available service for displaying exchange rates as may be agreed upon by the Administrative Agent
and the Borrower or, in the absence of such agreement, such LC Exchange Rate shall instead be the
arithmetic average of the spot rates of exchange of the Administrative Agent, at or about 11:00
a.m., New York City time, on such date for the purchase of Canadian Dollars, Euros or Pounds
Sterling, as the case may be, with dollars for delivery two Business Days later; provided
that if at the time of any such determination, for any reason, no such spot rate is being quoted,
the Administrative Agent, after consultation with the Borrower, may use any reasonable method it
deems appropriate to determine such rate, and such determination shall be conclusive absent
manifest error.




          “LC Exposure” means, at any time, the sum of (a) the aggregate amount of the Dollar
Equivalents of the undrawn amounts of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of the Dollar Equivalents of all LC Disbursements that have not yet been
reimbursed by or on behalf of the Borrower at such time (by the borrowing of Loans or otherwise).
The LC Exposure of any Lender at any time shall be the sum of its DF Applicable Percentage of the
total DF LC Exposure at such time plus its Revolving Applicable Percentage of the total Revolving
LC Exposure at such time.




          “LC Participation Calculation Date” means, with respect to any LC Disbursement made in
a currency other than dollars, (a) the date on which the Issuing Bank shall advise the
Administrative Agent that it purchased with dollars the currency used to make such LC Disbursement,
or (b) if the Issuing Bank shall not advise the Administrative Agent that it made such a purchase,
the date on which such LC Disbursement is made.




          “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.




          “Lenders Lien Subordination and Intercreditor Agreement” means the Lenders Lien
Subordination and Intercreditor Agreement between the Collateral Agent and the collateral agent
under the Second Lien Agreement substantially in the form of Exhibit F, as from time to time
amended, supplemented or otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein).




          “Letter of Credit” means each Existing Letter of Credit and any letter of credit
issued pursuant to this Agreement. Each Letter of Credit shall at any time constitute a Revolving
Letter of Credit or a DF Letter of Credit as determined by the provisions of Section 2.04(a) at
such time.




 









 








29




          “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.




          “Lien Subordination and Intercreditor Agreement” means the Lien Subordination and
Intercreditor Agreement dated as of March 12, 2004, among the Collateral Agent, Wilmington Trust
Company, the Borrower and the Subsidiary Guarantors.




          “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 Deposit Account” has the meaning assigned to such term in the Guarantee and
Collateral Agreement.




          “Lockbox Deposit Account Institution” 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.




 









 








30




          “Majority Lenders” means, at any time, Lenders having aggregate Credit Exposures and
unused Commitments representing at least a majority of the sum of the total Credit Exposures 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 or the Issuing Banks under this
Agreement and the other Credit Documents that are material to the interests of the Lenders or the
Issuing Banks.




          “Material Foreign Subsidiary” means, at any time, each Foreign Subsidiary that had
Total Assets with an aggregate book value in excess of $50,000,000 as of December 31, 2004, or if
later, as of the end of the most recent fiscal quarter for which financial statements have been
delivered (or deemed delivered) pursuant to Section 5.01(a) or (b).




          “Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), 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 $50,000,000. 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 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 Intellectual Property” means all Intellectual Property of the Borrower and
the Grantors, other than Intellectual Property that in the aggregate is not material to the
business of the Borrower and the Subsidiaries, taken as a whole.




          “Material Subsidiary” means, at any time, each Subsidiary other than Subsidiaries that
do not represent more than 2.5% 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.




          “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” means, at any time, each parcel of real property listed in
Schedule 1.01B and the improvements thereto.




 









 








31




          “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.




          “NAIC” means the National Association of Insurance Commissioners.




          “Net Cash Proceeds” means, with respect to any Prepayment Event, (a) the cash proceeds
received in respect of such event including (i) any cash received in respect of any non-cash
proceeds (including as a result of any monetization of non-cash proceeds), but only as and when
received, (ii) in the case of a casualty, insurance proceeds received, and (iii) in the case of a
condemnation or similar event, condemnation awards and similar payments received, net of (b) the
sum of (A) all reasonable fees, discounts, commissions and out-of-pocket expenses (including any
legal, title and recording tax expenses) paid by the Borrower and the Subsidiaries to third parties
(other than Affiliates) in connection with such event, (B) in the case of a sale, transfer or other
disposition of any property or asset (including pursuant to a Sale and Leaseback Transaction or a
casualty or a condemnation or similar proceeding), the amount of all payments required to be made
by the Borrower and the Subsidiaries as a result of such event to repay Indebtedness (other than
the Loans) secured by such asset or otherwise subject to mandatory prepayment as a result of such
event, and (C) the amount of all taxes paid (or reasonably estimated to be payable) by the Borrower
and the Subsidiaries (including taxes required to be paid or withheld in respect of the transfer of
amounts from the recipient thereof to a Borrower), and the amount of any reserves established by
the Borrower and the Subsidiaries to fund contingent liabilities reasonably estimated to be
payable, in each case during the year that such event occurred or the next succeeding year and that
are directly attributable to such event (as determined reasonably and in good faith by a Financial
Officer of the Borrower); provided, that to the extent and at the time any such amounts are
released to the Borrower or any Subsidiary from such reserve, such amounts shall constitute Net
Cash Proceeds. Notwithstanding the foregoing, amounts that would otherwise constitute Net Cash
Proceeds shall not constitute Net Cash Proceeds to the extent that (x) currency or foreign exchange
controls prevent the repatriation of such amounts to the United States or (y) the recipient of such
amounts is not a Wholly Owned Subsidiary and (1) 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 non-Wholly Owned Subsidiary or other agreement of such Subsidiary or any Affiliate
of such Subsidiary in order for such Subsidiary to transfer such amounts to the Borrower (whether
by distribution, loan or advance, repayment of intercompany Indebtedness or other commercially
reasonable means) and (2) the Borrower endeavored in good faith to obtain such consents and such
consents shall not have been obtained to permit the transfer of such proceeds by any of such means.
The Net Cash Proceeds received by any non-Wholly Owned Subsidiary shall be deemed to equal the
amount determined as set forth above multiplied by the Borrower’s aggregate direct or indirect
percentage ownership of such Subsidiary. The Net Cash Proceeds of any event that is not a
Prepayment Event shall be determined as if such event were a Prepayment Event.




          “Net Intercompany Items” means, in the case of any Subsidiary, (a) the aggregate
amount of the Intercompany Items owed by the Borrower or any other




 









 








32




Subsidiary to such Subsidiary minus (b) the aggregate amount of the Intercompany Items owed by
such Subsidiary to the Borrower or any other Subsidiary.




          “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.




          “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 by the Borrower 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.




          “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



 









 





33





and other Liens imposed by law, arising in the ordinary course of business and
securing obligations that are not overdue by more than 30 days (or any longer grace period
available under the terms of the applicable underlying obligation) or are being contested;




     (c) Liens created and pledges and deposits made (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 March 31, 2003 in the ordinary course of business to
secure the performance of surety bonds;




     (e) judgment liens;




     (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;



 









 





34





     (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;




     (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 Credit Facilities 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 be made in amounts and jurisdictions consistent with the
Borrower’s policies governing short-term investments.



          “Permitted Preferred Stock” has the meaning assigned to such term in Section 6.01(q).




 









 








35




          “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.




          “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV or Section 302 of ERISA or Section 412 of the Code, and in
respect of which 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.




          “Pounds Sterling” or “£” means the lawful currency of the United Kingdom.




          “Prepayment Event” means:





     (a) any sale, transfer, lease or other disposition (including pursuant to a Sale and
Leaseback Transaction other than a Sale and Leaseback Transaction consummated not more than
180 days after the acquisition or completion of construction of the assets subject thereto)
of any property or assets of the Borrower or any Subsidiary (other than the European JV and
its Subsidiaries) to any Person other than the Borrower or any Credit Party, other than any
sale, transfer, lease or other disposition (i) described in clause (a), (b), (c) or (h) of
Section 6.06 or in Part III of Schedule 6.06 or in subclause (ii) of clause (e) of Section
6.06, or (ii) that results in Net Cash Proceeds not exceeding $15,000,000; and




     (b) any casualty or other insured damage to, or any taking under power of eminent
domain or by condemnation or similar proceeding of, any property or asset of the Borrower
or any Subsidiary (other than the European JV and its Subsidiaries), but only to the extent
that the Net Cash Proceeds from such event exceed $15,000,000 and then, if the Borrower
shall notify the Administrative Agent that it or the applicable Subsidiary intends to apply
such Net Cash Proceeds to repair, restore or replace the property or asset that shall have
been damaged or taken, such event shall constitute a Prepayment Event only if such repair,
restoration or replacement shall not have commenced within 180 days after such event and
the Net Cash Proceeds of such event will be deemed for purposes of Section 2.09 to equal
the amount not so applied.



          “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).




 









 








36




          “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”, and 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, territorial, 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 or processing of
goods to be sold by the Borrower or another Grantor in the ordinary course of business that is not
yet included in Work in Process.




          “Recovery Rate” means (a) the estimated net recovery of all Inventory of the Borrower
and the other Grantors stated in 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.




          “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.




          “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.




 









 








37




          “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 Applicable Percentage” means, with respect to any Lender, the percentage of
the Revolving Total Commitment represented by such Lender’s Revolving Commitment. If the Revolving
Commitments have been reduced to zero, the Revolving Applicable Percentages shall be determined
based upon the Revolving Commitments most recently in effect, giving effect to any assignments.




          “Revolving Availability Period” means the period from and including the Effective Date
to but excluding the earlier of (a) the Commitment Termination Date and (b) any other date on which
the Revolving Commitments have been reduced to zero.




          “Revolving Commitment” means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans and to acquire participations in Revolving 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 from time to
time pursuant to Section 2.07 or increased from time to time pursuant to Section 9.02(c) 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 $1,000,000,000.




          “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 Revolving LC
Exposure at such time.




          “Revolving LC Disbursement” means a payment made by any Issuing Bank pursuant to a
Revolving Letter of Credit.




          “Revolving LC Exposure” means, at any time, the sum of (a) the aggregate undrawn
amount of the Dollar Equivalents of all outstanding Revolving Letters of Credit at such time plus
(b) the aggregate amount of the Dollar Equivalents of all Revolving LC Disbursements that have not
yet been reimbursed by or on behalf of the Borrower at such time (by the borrowing of Loans or
otherwise). The Revolving LC Exposure of any Lender at any time shall be its Revolving Applicable
Percentage of the total Revolving LC Exposure at such time.




          “Revolving Lender” means a Lender with a Revolving Commitment or, if the Revolving
Commitments have been reduced to zero, a Lender with a Revolving Credit Exposure.




          “Revolving Letter of Credit” means, at any time, each Letter of Credit outstanding at
such time as a Revolving Letter of Credit pursuant to Section 2.04(a).




 









 








38




          “Revolving Loan” means a Loan made pursuant to Section 2.02(a)(i).




          “Revolving Total Commitment” means, at any time, the aggregate amount of all the
Revolving Commitments at such time.




          “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.




          “Second Lien Agreement” means the Second Lien Credit Agreement dated as of the date
hereof, among the Borrower, certain lenders and JPMCB, as administrative agent.




          “Second Lien Guarantee and Collateral Agreement” means the Guarantee and Collateral
Agreement among the Borrower, the Subsidiary Guarantors, the Grantors, certain other Subsidiaries
and the collateral agent under the Second Lien Agreement substantially in the form of Exhibit H, as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein).




          “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 operating in a jurisdiction other
than the United States or any of its territories or




 









 








39




possessions or any political subdivision thereof in satisfaction of accounts receivable or
otherwise as consideration for goods sold or services provided to such customer, (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 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 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) or (C) the sale of accounts
receivable or proceeds thereof from customers of the Borrower and its Affiliates to the extent such
sale (x) is initiated by and entered into a the request of such customers, and (y) involves the
sale of such accounts receivable to financial institutions as part of financing programs
established for and at the request of such customers. 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 Foreign Pledge
Agreements, 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 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
Schedule 1.01C. Each of the Borrower’s 11% Senior Secured Notes due 2011 and its Senior Secured
Floating Rate Notes due 2011 issued on March 12, 2004, and the Indebtedness under the Third Lien
Agreement are Senior Subordinated-Lien Indebtedness.




 









 








40




          “Senior Subordinated-Lien Indebtedness 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.




          “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 Indebtedness Security Documents (to the extent such amounts
relate to such Senior Subordinated-Lien Indebtedness) or the applicable Senior Subordinated-Lien
Governing Documents.




          “Specified Jurisdiction” means The United States of America and Canada.




          “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.




          “Sub-Account” has the meaning set forth in Section 2.01(a).




          “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.




 









 








41




          “Subsidiary” means any subsidiary of the Borrower (other than Tire & Wheel Assemblies,
Inc. at any time when not more than 50% of the Equity Interests or 50% of the voting power are, as
of such date, owned or Controlled by the Borrower).




          “Subsidiary Guarantor” means any Subsidiary that has become, or is required to become,
a Guarantor (as defined in the Guarantee and Collateral Agreement) pursuant to Section 4.01(k) or
Section 5.08.




          “Swap Agreement” means any agreement, including any master agreement, with respect to
any swap, forward, future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates or prices for one or more currencies, commodities,
equity or debt instruments or securities, or economic, financial or pricing indices or measures of
economic, financial or pricing risk or value or any similar transaction or any combination of these
transactions.




          “Syndication Agent” means 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.




          “Third Lien Agreement” means the Third Lien Credit Agreement dated as of the date
hereof, among the Borrower, certain Subsidiaries of the Borrower party thereto, certain lenders and
JPMCB, as administrative agent.




          “Third Lien Collateral Agreement” means the Collateral Agreement dated as of March 12,
2004, among the Borrower, the Subsidiaries of the Borrower identified therein and Wilmington Trust
Company, as collateral agent, attached as Exhibit I hereto.




          “Total Assets” of any Subsidiary means (a) in the case of any Subsidiary organized in
a Specified Jurisdiction, (i) the total assets of such Subsidiary, excluding Intercompany Items,
plus (ii) if the Net Intercompany Items of such Subsidiary shall be positive, the amount of such
Net Intercompany Items; and (b) in the case of any other Subsidiary, the total assets of such
Subsidiary, excluding Intercompany Items.




          “Total Commitment” means, at any time, the aggregate amount of all the Commitments at
such time.




          “Transactions” means the execution, delivery and performance by the Borrower of this
Agreement 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.




          “2003 MGCA” means the Amended and Restated Master Guarantee and Collateral Agreement
dated as of March 31, 2003, among the Borrower, the subsidiary guarantors thereunder, the
subsidiary grantors thereunder, certain other Subsidiaries, certain financial institutions, and the
Collateral Agent thereunder.




 









 








42




          “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.




          “Undrawn/Unreimbursed DF LC Exposure” means, at any time, the sum of (a) the aggregate
Dollar Equivalents of the undrawn amounts of all outstanding DF Letters of Credit at such time plus
(b) the aggregate Dollar Equivalents of the amounts of all DF LC Disbursements that have not yet
been (i) reimbursed by or on behalf of the Borrower at such time (by the borrowing of Loans or
otherwise) or (ii) otherwise repaid to the applicable Issuing Banks by the application of the
Deposits pursuant to Section 2.04(e). The Undrawn/Unreimbursed DF LC Exposure of any Lender at any
time shall be its DF Applicable Percentage of the total Undrawn/Unreimbursed DF LC Exposure at such
time.




          “UCC” means Article 9 of the Uniform Commercial Code as from time to time in effect in
the State of New York.




          “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.




          “Work in Process” means Inventory used or consumed in the manufacturing or processing
of goods to be sold by the Borrower or another Grantor in the ordinary course of business
consisting of parts and subassemblies in the process of becoming completed assembly components that
are no longer included in Raw Materials but are not yet included in Finished Goods.




          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 a “DF Loan”)
or by Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar DF
Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving
Borrowing” or a “DF Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and
Type (e.g., a “Eurodollar Revolving Borrowing”).




          SECTION 1.03. Foreign Currency Translation. (a) 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




 









 








43




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 Business Day of the fiscal quarter in which such determination occurs
or in respect of which such determination is being made. For purposes of determining compliance as
of any date with Section 6.08, amounts incurred in Euros during 2005 shall be translated into
dollars at the exchange rate of $1.25 to €1.00, 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).




          (b) The Administrative Agent shall determine the Dollar Equivalent of any Letter of Credit
denominated in Canadian Dollars, Euros or Pounds Sterling (i) as of the date of the issuance
thereof, (ii) as of each subsequent date on which such Letter of Credit shall be renewed or
extended or the stated amount of such Letter of Credit shall be increased, (iii) as of the last
Business day of each calendar month, (iv) as of each date on which amounts are to be withdrawn from
the Deposit Account other than in connection with the making of a DF Loan under Section 2.04(e) or
the reimbursement of a DF LC Disbursement and (v) as of each date on which any Issuing Bank shall
have requested such determination due to fluctuations in applicable currency exchange rates (which
shall not be requested by an Issuing Bank unreasonably), in each case using the Exchange Rate for
the applicable currency in relation to dollars in effect on the date of determination, and each
such amount shall be the Dollar Equivalent of such Letter of Credit until the next required
calculation thereof. The Dollar Equivalent of any LC Disbursement made by any Issuing Bank in
Canadian Dollars, Euros or Pounds Sterling and not reimbursed by the Borrower shall be determined
as set forth in paragraphs (e) or (l) of Section 2.04, as applicable. In addition, the Dollar
Equivalent of the LC Exposures shall be determined as set forth in paragraph (j) of Section 2.04,
at the time and in the circumstances specified therein. The Administrative Agent shall notify the
Borrower, the applicable Lenders and the applicable Issuing Bank of each calculation of the Dollar
Equivalent of each Letter of Credit and LC Disbursement.




          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 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




 









 








44




express reference is made to such subsidiaries, (c) the words “herein”, “hereof” and
“hereunder”, and words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement, and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.




          SECTION 1.05. 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. Deposit Account. (a) Establishment of Deposit Account and
Sub-Accounts. On or prior to the Effective Date, the Administrative Agent shall establish a
bank account with JPMCB as the Deposit Account of the Administrative Agent with the title “Goodyear
2005 First Lien Credit Agreement Deposit Account”. The Administrative Agent shall maintain records
enabling it to determine at any time the amount of the interest of each DF Lender in the Deposit
Account (the interest of each DF Lender in the Deposit Account, as evidenced by such records, being
referred to as such Lender’s “Sub-Account”). The Administrative Agent shall establish such
additional Sub-Accounts for assignee DF Lenders as shall be required pursuant to Section 9.04(b).
No Person (other than the Administrative Agent) shall have the right to make any withdrawal from
the Deposit Account or to exercise any other right or power with respect thereto except as
expressly provided in paragraph (c) below or in Section 9.04(b). Without limiting the generality
of the foregoing, each party hereto acknowledges and agrees that the Deposits are and will at all
times be property of the DF Lenders, and that no amount on deposit at any time in the Deposit
Account shall be the property of any of the Credit Parties, constitute “Collateral” under the
Credit Documents or otherwise be available in any manner to satisfy any Obligations of any of the
Credit Parties under the Credit Documents. Each DF Lender agrees that its right, title and
interest in and to the Deposit Account shall be limited to the right to require amounts in its
Sub-Account to be applied as provided in paragraph (c) below and that it will have no right to
require the return of its Deposit other than as expressly provided in such paragraph (c) (each DF
Lender




 









 








45




hereby acknowledging (i) that its Deposit constitutes payment for its participations in DF
Letters of Credit issued or to be issued hereunder, (ii) that its Deposit and any investments made
therewith shall secure its obligations to the Issuing Banks hereunder (each Lender hereby granting
to the Administrative Agent, for the benefit of the Issuing Banks, a security interest in its
Deposit and agreeing that the Administrative Agent, as holder of the Deposits and any investments
made therewith, will be acting, inter alia, as collateral agent for the Issuing
Banks) and (iii) that the Issuing Banks will be issuing, amending, renewing and extending DF
Letters of Credit in reliance on the availability of such DF Lender’s Deposit to discharge such DF
Lender’s obligations in accordance with Section 2.04(e) in connection with any DF LC Disbursement
thereunder). The funding of the Deposits and the agreements with respect thereto set forth in this
Agreement constitute arrangements among the Administrative Agent, the Issuing Banks and the DF
Lenders with respect to the funding obligations of the DF Lenders under this Agreement, and the
Deposits do not constitute loans or extensions of credit to any Credit Party. No Credit Party
shall have any responsibility or liability to the DF Lenders, the Agents or any other Person in
respect of the establishment, maintenance, administration or misappropriation of the Deposit
Account (or any Sub-Account) or with respect to the investment of amounts held therein, including
pursuant to paragraph (d) below, or the duties and responsibilities of the Administrative Agent
with respect to the foregoing contemplated by paragraph (e) below. JPMCB hereby waives any right
of setoff against the Deposits that it may have under applicable law or otherwise with respect to
amounts owed to it by DF Lenders (it being agreed that such waiver shall not reduce the rights of
JPMCB, in its capacity as an Issuing Bank or otherwise, to apply or require the application of the
Deposits in accordance with the provisions of this Agreement).




          (b) Deposits in Deposit Account. The following amounts will be deposited in the
Deposit Account at the following times:




          (i) On the Effective Date, each DF Lender shall deposit in the Deposit Account an amount in
dollars equal to such DF Lender’s DF Commitment. Thereafter, the Deposits shall be available, on
the terms and subject to the conditions set forth herein, (A) to fund DF Loans by such DF Lender
pursuant to Section 2.02(a) and (B) for application pursuant to Section 2.04(e) to reimburse such
Lender’s DF Applicable Percentage of DF LC Disbursements that are not reimbursed by the Borrower.
The obligations of the DF Lenders to make the deposits required by this clause (i) are several, and
no DF Lender shall be responsible for any other DF Lender’s failure to make its deposit as so
required.




          (ii) On any date prior to the Commitment Termination Date on which the Administrative Agent
receives any payment for the account of any DF Lender with respect to the principal amount of any
of its DF Loans, subject to clause (iv) below, the Administrative Agent shall deposit such amount
in the Deposit Account and credit such amount to the Sub-Account of such DF Lender.




          (iii) On any date prior to the Commitment Termination Date on which the Administrative Agent
or any Issuing Bank receives any reimbursement payment from the Borrower in respect of a DF LC
Disbursement with respect to which amounts were




 









 








46




withdrawn from the Deposit Account to reimburse any Issuing Bank, subject to clause (iv)
below, the Administrative Agent shall deposit in the Deposit Account, and credit to the
Sub-Accounts of the DF Lenders, the portion of such reimbursement payment to be deposited therein,
in accordance with Section 2.04(e).




          (iv) If at any time when any amount is required to be deposited in the Deposit Account under
clause (ii) or (iii) above the sum of such amount and the aggregate amount of the Deposits at such
time would exceed the DF Total Commitment minus the aggregate principal amount of the outstanding
DF Loans, then such excess shall not be deposited in the Deposit Account and the Administrative
Agent shall instead pay to each DF Lender its DF Applicable Percentage of such excess.




          (v) Concurrently with the effectiveness of any assignment by any DF Lender of all or any
portion of its DF Commitment, the Administrative Agent shall transfer into the Sub-Account of the
assignee the corresponding portion of the amount on deposit in the assignor’s Sub-Account in
accordance with Section 9.04(b)(ii)(E).




          (c) Withdrawals From and Closing of Deposit Account. Amounts on deposit in the
Deposit Account shall be withdrawn and distributed (or transferred, in the case of clause (v)
below) as follows:




          (i) On each date on which a DF Borrowing is to be made, the Administrative Agent shall,
pursuant to Section 2.02(a) or Section 2.04(e), as applicable, and subject to the satisfaction of
the conditions applicable thereto set forth in Section 4.02, withdraw from the Deposit Account the
principal amount of such DF Borrowing (and debit the Sub-Account of each DF Lender in the amount of
such Lender’s DF Applicable Percentage of such Borrowing) and make such amount available to the
Borrower.




          (ii) On each date on which an Issuing Bank is to be reimbursed by the DF Lenders pursuant to
Section 2.04(e) for any DF LC Disbursement, the Administrative Agent shall withdraw from the
Deposit Account the amount of such unreimbursed DF LC Disbursement (and debit the Sub-Account of
each DF Lender in the amount of such DF Lender’s Applicable Percentage of such unreimbursed DF LC
Disbursement) and make such amount available to such Issuing Bank in accordance with Section
2.04(e).




          (iii) Concurrently with each voluntary reduction of the DF Total Commitment pursuant to and in
accordance with Section 2.07(b), the Administrative Agent shall withdraw from the Deposit Account
and pay to each DF Lender such DF Lender’s Applicable Percentage of any amount by which the
Deposits, after giving effect to such reduction of the DF Total Commitment, would exceed the DF
Total Commitment minus the aggregate principal amount of the outstanding DF Loans and unreimbursed
DF LC Disbursements that have been funded by the application of Deposits.




          (iv) Concurrently with any reduction of the DF Total Commitment to zero pursuant to and in
accordance with Section 2.07(a) or Article VII, the Administrative Agent shall withdraw from the
Deposit Account and pay to each DF Lender such DF




 









 








47




Lender’s Applicable Percentage of the excess at such time of the aggregate amount of the
Deposits over the Undrawn/Unreimbursed DF LC Exposure.




          (v) Concurrently with the effectiveness of any assignment by any DF Lender of all or any
portion of its DF Commitment, the corresponding portion of the assignor’s Sub-Account shall be
transferred from the assignor’s Sub-Account to the assignee’s Sub-Account in accordance with
Section 9.04(b) and, if required by Section 9.04(b), the Administrative Agent shall close such
assignor’s Sub-Account.




          (vi) Upon the reduction of each of the DF Total Commitment and the Undrawn/Unreimbursed DF LC
Exposure to zero, the Administrative Agent shall withdraw from the Deposit Account and pay to each
DF Lender the entire remaining amount of such DF Lender’s Deposit, and shall close the Deposit
Account.




          Each DF Lender irrevocably and unconditionally agrees that its Deposit may be applied or withdrawn
from time to time as set forth in this paragraph (c).




          (d) Investment of Amounts in Deposit Account. The Administrative Agent shall invest,
or cause to be invested, the Deposit of each DF Lender so as to earn for the account of such DF
Lender a return thereon (the “Deposit Return”) for each day at a rate per annum equal to
(i) the one month LIBOR rate as determined by the Administrative Agent on such day (or if such day
was not a Business Day, the first Business Day immediately preceding such day) based on rates for
deposits in dollars (as set forth by Bloomberg L.P.-page BTMM or any other comparable publicly
available service as may be selected by the Administrative Agent) (the “Benchmark LIBO
Rate”) minus (ii) 0.10% per annum (based on a 365/366 day year). The Benchmark LIBO Rate will
be reset on each Business Day. The Deposit Return accrued through and including the last day of
March, June, September and December of each year shall be payable by the Administrative Agent to
each DF Lender on the third Business Day following such last day, commencing on the first such date
to occur after the Effective Date, and on the date on which each of the DF Total Commitment and the
DF LC Exposure shall have been reduced to zero, and the Administrative Agent agrees to pay to each
DF Lender the amount due to it under this sentence. No Credit Party shall have any obligation
under or in respect of the provisions of this paragraph (d).




          (e) Sub-Agents. As provided in Article VIII, the Administrative Agent may perform any
and all its duties and exercise its rights and powers contemplated by this Section 2.01 by or
through one or more sub-agents appointed by it (which may include any of its Affiliates). The
parties hereto acknowledge that on or prior to the Effective Date the Administrative Agent has
engaged JPMorgan Chase Institutional Trust Services to act as its sub-agent in connection with the
Deposit Account, and that in such capacity JPMorgan Chase Institutional Trust Services shall be
entitled to the benefit of all the provisions of this Agreement contemplated by Article VIII,
including the provisions of Section 9.03.




          (f) Sufficiency of Deposits to Provide for Undrawn/Unreimbursed DF LC Exposure.
Notwithstanding any other provision of this Agreement, including Sections




 









 








48




2.02 and 2.04(a), no DF Loan shall be made, and no DF Letter of Credit shall be issued or the
stated amount thereof increased, if after giving effect thereto the aggregate amount of the
Deposits would be less than the Undrawn/Unreimbursed DF LC Exposure. The Administrative Agent
agrees to provide, at the request of any Issuing Bank, information to such Issuing Bank as to the
aggregate amount of the Deposits and the Undrawn/Unreimbursed DF LC Exposure.




          (g) Satisfaction of DF Lender Funding Obligations. The Borrower and each Issuing Bank
acknowledges and agrees that, notwithstanding any other provision contained herein, the deposit by
each DF Lender in the Deposit Account on the Effective Date of funds equal to its DF Commitment
will (except as provided in the last sentence of Section 2.04(d)) fully discharge the obligation of
such DF Lender to fund DF Loans by such DF Lender pursuant to Section 2.02(a) and to reimburse such
Lender’s DF Applicable Percentage of DF LC Disbursements that are not reimbursed by the Borrower
pursuant to Section 2.04(d) or (e), and that no other or further payments shall be required to be
made by any DF Lender in respect of any such funding or reimbursement obligations.




          SECTION 2.02. Loans and Borrowings. (a) (i) Subject to the terms and conditions set
forth herein, each Revolving Lender agrees to make Revolving Loans to the Borrower from time to
time during the Revolving Availability Period in dollars 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 Credit Exposure exceeding the Borrowing Base Availability then in
effect. Each Revolving Loan shall be part of a Revolving Borrowing consisting of Loans of the same
Type held by the Revolving Lenders ratably in accordance with their respective Revolving Applicable
Percentages. The failure of any Revolving Lender to make any Revolving Loan required to be made by
it shall not relieve any other Revolving Lender of its obligations hereunder; provided that
the Revolving Commitments of the Revolving Lenders are several and no Revolving Lender shall be
responsible for any other Revolving Lender’s failure to make Revolving Loans as required. Within
the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Revolving Loans.




          (ii) Subject to the terms and conditions set forth herein, each DF Lender agrees to make DF
Loans to the Borrower, with amounts in its Sub-Account, from time to time during the DF
Availability Period in an aggregate principal amount that will not after giving effect to any such
DF Loan result in (x) such Lender’s DF Credit Exposure exceeding such Lender’s DF Commitment or (y)
the aggregate Credit Exposure exceeding the Borrowing Base Availability then in effect. Each DF
Loan shall be part of a DF Borrowing consisting of Loans of the same Type held by the DF Lenders
ratably in accordance with their respective DF Applicable Percentages. Each DF Lender hereby
authorizes and directs the Administrative Agent to make its portion of each DF Borrowing available
to the Borrower by withdrawing from the Deposit Account (and debiting such DF Lender’s Sub-Account
in the amount of) such Lender’s DF Applicable Percentage of such DF Borrowing and crediting such
amount to the applicable account of the Borrower as provided in Section 2.05. Within the foregoing
limits and subject to the




 









 








49




terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow DF Loans.




          (b) Subject to Section 2.12, each Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans as the Borrower may request in accordance herewith. Each Revolving Lender at its
option may make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Revolving Lender to make such Revolving Loan, and each DF Lender at its option may by written
notice to the Administrative Agent designate any domestic or foreign branch or Affiliate of such DF
Lender as the holder of any Eurodollar DF 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
$5,000,000. 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 Borrowing may be in an aggregate amount that is equal to the entire unused balance of
the Revolving Total Commitment or the DF Total Commitment, as applicable, 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 Revolving Borrowings or 10 DF 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 Commitment Termination Date.




          SECTION 2.03. Requests for Borrowing. To request a 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 if at any time an LC Disbursement
denominated in dollars shall be made in an amount at least equal to the applicable minimum
borrowing amount, a notice of an ABR Borrowing to finance the reimbursement of such LC Disbursement
shall be deemed to have been timely given as contemplated by Section 2.04(e) unless the Borrower
shall have given notice to the contrary to the Administrative Agent not later than 10:00 a.m., New
York City time, on the Business Day next following the date on which the Borrower shall have been
notified of such LC Disbursement. 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; and provided further that not more than
three DF Borrowings (other than Borrowings contemplated by Section 2.04(e) and other than
Borrowings resulting from new interest elections under Section 2.06 with respect to outstanding




 









 








50




Borrowings) may be requested pursuant to this Section 2.03 during any calendar month. Each
such telephonic and written Borrowing Request shall specify the following information in compliance
with Section 2.02:




          (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. (i) 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 denominated in dollars, Canadian Dollars, Euros or Pounds Sterling
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 (A) in the case of Revolving Letters of Credit,
during the Revolving Availability Period, and (B) in the case of DF Letters of Credit, during the
DF 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.




          (ii) On the Effective Date, each Issuing Bank that has issued an Existing Letter of Credit
shall be deemed, without further action by any party hereto, to have granted in accordance with
paragraph (d) below (1) to each Revolving Lender, and each Revolving Lender shall have been deemed
to have purchased from such Issuing Bank, a participation in each such Letter of Credit designated
on Schedule 2.04 as a Revolving Letter of Credit, and (2) to each DF Lender, and each DF Lender
shall have been deemed to have purchased from such Issuing Bank, a participation in each such
Letter of Credit designated on Schedule 2.04 as a DF Letter of Credit. The Issuing Banks and
Lenders




 









 








51




that are also party to the ABL Facilities Agreement or the Deposit-Funded Agreement agree
that, concurrently with such grant, the participations in the Existing Letters of Credit granted to
the lenders under the ABL Facilities Agreement or the Deposit-Funded Agreement, as applicable,
shall be automatically canceled without further action by any of the parties thereto. On and after
the Effective Date each Existing Letter of Credit shall constitute a Letter of Credit for all
purposes hereof. Any Lender that issued an Existing Letter of Credit but shall not have entered
into an Issuing Bank Agreement shall have the rights of an Issuing Bank as to such Letter of Credit
for purposes of this Section 2.04.




          (iii) The Borrower may at any time redesignate DF Letters of Credit as Revolving Letters of
Credit and Revolving Letters of Credit as DF Letters of Credit; provided, that (A) the
Borrower shall by notice to the Administrative Agent identify the Letters of Credit to be
redesignated hereunder and certify that the conditions to such redesignation set forth in the
following clause (B) are satisfied and that no Default shall have occurred and be continuing; and
(B) no redesignation of a Letter of Credit shall become effective hereunder unless after giving
effect to such redesignation the conditions precedent to the issuance, amendment, renewal or
extension of a Letter of Credit under the third sentence of paragraph (b) below shall be satisfied.
If as a result of any determination under Section 1.03(b) of the Dollar Equivalent of any Letter
of Credit denominated in Canadian Dollars, Euros or Pounds Sterling, the aggregate amount of the DF
Credit Exposures shall exceed the DF Total Commitment, unless the Borrower shall have eliminated
such excess by 5:00 p.m., New York City time, on the Business Day next succeeding the day on which
it shall have received notice of such determination under Section 1.03(b) from the Administrative
Agent, the Borrower hereby irrevocably directs the Administrative Agent to redesignate the DF
Letter of Credit that is permitted to be redesignated in the smallest amount outstanding that will
eliminate such excess as a Revolving Letter of Credit (and if no single such redesignation will
eliminate such excess, to redesignate such number of DF Letters of Credit that are permitted to be
so redesignated as shall be the minimum number thereof required to effect such elimination);
provided, that no redesignation of a Letter of Credit shall become effective under this
sentence unless after giving effect to such redesignation the conditions precedent to the issuance,
amendment, renewal or extension of a Letter of Credit under the third sentence of paragraph (b)
below shall be satisfied. The Revolving Lenders hereby agree that upon the effectiveness of any
redesignation of a DF Letter of Credit as a Revolving Letter of Credit, the Issuing Bank that
issued such Letter of Credit shall be deemed, without further action by any party hereto, to have
granted to each Revolving Lender, and each Revolving Lender shall be deemed to have purchased from
such Issuing Bank, a participation in such Letter of Credit in accordance with paragraph (d) below,
and on and after the effectiveness of any such redesignation, such Letter of Credit shall
constitute a Revolving Letter of Credit for all purposes hereof. The DF Lenders hereby agree that
upon the effectiveness of any redesignation of a Revolving Letter of Credit as a DF Letter of
Credit, the Issuing Bank that issued such Letter of Credit shall be deemed, without further action
by any party hereto, to have granted to each DF Lender, and each DF Lender shall be deemed to have
purchased from such Issuing Bank, a participation in such Letter of Credit in accordance with
paragraph (d) below, and on and after the effectiveness of any such redesignation, such Letter of
Credit shall constitute a DF Letter of Credit for all purposes hereof. No DF Letter of Credit may
be redesignated as a




 









 








52




Revolving Letter of Credit if the Borrower and the Issuing Bank in respect thereof shall have
agreed at the time such Issuing Bank became an Issuing Bank that such Issuing Bank will not be
required to issue Revolving Letters of Credit, or that DF Letters of Credit issued by such Issuing
Bank may not be redesignated by the Borrower as Revolving Letters of Credit, and shall not have
subsequently agreed otherwise.




          (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 and
currency of such Letter of Credit, whether such Letter of Credit is to be a Revolving Letter of
Credit or a DF 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;
provided that any provisions in any such letter of credit application that create Liens
securing the obligations of the Borrower thereunder or that are inconsistent with the provisions of
this Agreement shall be of no force or effect. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of
Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension, (i) the aggregate amount of the Revolving Credit
Exposures shall not exceed the Revolving Total Commitment, (ii) the aggregate amount of the
Revolving LC Exposures shall not exceed $200,000,000, (iii) the aggregate amount of the DF Credit
Exposures shall not exceed the DF Total Commitment, (iv) the aggregate amount of the DF LC
Exposures attributable to DF Letters of Credit denominated in currencies other than dollars shall
not exceed $150,000,000, (v) the aggregate Credit Exposure shall not exceed the Borrowing Base
Availability then in effect and (vi) the portion of the LC Exposure attributable to Letters of
Credit issued by any Issuing Bank shall not exceed the LC Commitment of such Issuing Bank. Each
Issuing Bank shall be entitled to rely on such representation and warranty. The Administrative
Agent agrees, at the request of any Issuing Bank, to provide information to such Issuing Bank as to
the aggregate amount of the Credit Exposures, the Revolving Credit Exposures, the Revolving LC
Exposures, the Revolving Total Commitment, the DF Credit Exposures, the DF Total Commitment and the
Borrowing Base Availability.




          (c) Expiration Date. Each Letter of Credit shall have an expiration date at or prior
to the close of business on the earlier of (i) the date one year after the date of the issuance of
such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such
renewal or extension) and (ii) the date that is five Business Days prior to the Commitment
Termination Date. Any Letter of Credit may provide by its terms that it




 









 








53




may be extended for additional successive one-year periods on terms reasonably acceptable to
the applicable Issuing Bank (but subject to the proviso in the next sentence). Any Letter of
Credit providing for automatic extension shall be extended upon the then current expiration date
without any further action by any Person unless the applicable Issuing Bank shall have given notice
to the applicable beneficiary (with a copy to the applicable Borrower) of the election by such
Issuing Bank not to extend such Letter of Credit, such notice to be given not fewer than 60 days
prior to the then current expiration date of such Letter of Credit, provided that no Letter
of Credit may be extended automatically or otherwise beyond the date that is five Business Days
prior to the Commitment Termination Date.




          (d) Participations. Effective with respect to the Existing Letters of Credit upon the
occurrence of the Effective Date, and effective with respect to each other Letter of Credit (and
each amendment to a Letter of Credit increasing the amount thereof) upon the issuance (or increase)
thereof, and without any further action on the part of the applicable Issuing Bank or the Lenders,
each Issuing Bank hereby grants (i) to each Revolving Lender, and each Revolving Lender hereby
acquires from such Issuing Bank, a participation in each Revolving Letter of Credit equal to such
Lender’s Revolving Applicable Percentage of the aggregate amount available to be drawn under such
Revolving Letter of Credit and (ii) to each DF Lender, and each DF Lender hereby acquires from such
Issuing Bank, a participation in each DF Letter of Credit equal to such Lender’s DF Applicable
Percentage of the aggregate amount available to be drawn under such DF Letter of Credit. In
consideration and in furtherance of the foregoing, (A) each Revolving Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of the applicable
Issuing Bank, such Lender’s Revolving Applicable Percentage of each Revolving LC Disbursement made
by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph
(e) of this Section, or such Lender’s Revolving Applicable Percentage of any reimbursement payment
in respect of a Revolving LC Disbursement required to be refunded to the Borrower for any reason
(or if such Revolving LC Disbursement or reimbursement payment was made in Canadian Dollars, Euros
or Pounds Sterling, the Dollar Equivalent thereof using the LC Exchange Rate in effect on the
applicable LC Participation Calculation Date), and (B) each DF Lender hereby absolutely and
unconditionally authorizes and directs the Administrative Agent, and the Administrative Agent
agrees, to withdraw from the Deposit Account (and debit such Lender’s Sub-Account in the amount of)
such Lender’s DF Applicable Percentage of each DF LC Disbursement made by such Issuing Bank and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or such
Lender’s DF Applicable Percentage of any reimbursement payment in respect of a DF LC Disbursement
required to be refunded to the Borrower for any reason (or if such DF LC Disbursement or
reimbursement payment was made in Canadian Dollars, Euros or Pounds Sterling, the Dollar Equivalent
thereof using the LC Exchange Rate in effect on the applicable LC Participation Calculation Date)
(it being understood and agreed that, except as provided in the last sentence of this paragraph,
each DF Lender’s obligations in respect of participations in DF Letters of Credit shall be payable
solely from, and limited to, such DF Lender’s Deposit). Each Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit
is, subject




 









 








54




in the case of DF Lenders to the preceding sentence, absolute and unconditional and shall not
be affected by any circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or any reduction of its Revolving
Commitment, its DF Commitment, the Revolving Total Commitment or the DF Total Commitment. In the
event any reimbursement payment in respect of a DF LC Disbursement shall be required to be refunded
by an Issuing Bank to the Borrower after the return of the Deposits to the Lenders as provided in
Section 2.01(c), each DF Lender agrees to acquire and fund a participation in such refunded amount
equal to the lesser of its DF Applicable Percentage thereof and the amount of its Deposit that
shall have been so returned.




          (e) Reimbursement. If any Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement, in the currency in which such LC Disbursement is
made, not later than 1:30 p.m., New York City time, on the second Business Day following the date
on which the Borrower shall have received notice of such LC Disbursement (or, in the case of an LC
Disbursement denominated in a currency other than dollars, on the third Business Day following such
date if the Borrower shall not have received notice of such LC Disbursement until after 10:00 a.m.,
New York City time, on such date); provided that, if such LC Disbursement is denominated in
dollars and is at least equal to the applicable minimum borrowing amount, unless the Borrower shall
have notified the Administrative Agent to the contrary not later than 10:00 a.m., New York City
time, on the Business Day next following the date on which the Borrower shall have been notified of
such LC Disbursement, the Borrower will be deemed to have requested in accordance with Section 2.03
that such payment be financed with an ABR Borrowing (which will be a Borrowing of Revolving Loans
in the case of a Revolving Letter of Credit or of DF Loans in the case of a DF Letter of Credit) on
such Business Day in an equivalent amount and, to the extent the Borrower satisfies the condition
precedent to such ABR Borrowing set forth in Section 4.02(B), the Borrower’s obligation to make
such payment shall be discharged with the proceeds of the requested ABR Borrowing. If the Borrower
fails to make such payment when due and the Borrower is not entitled to make a Borrowing in the
amount of such payment, (A) if such payment relates to a Letter of Credit denominated in Canadian
Dollars, Euros or Pounds Sterling, automatically and with no further action required, the
obligation of the Borrower to reimburse the applicable LC Disbursement shall be permanently
converted into an obligation to reimburse the Dollar Equivalent, calculated using the LC Exchange
Rates on the applicable LC Participation Calculation Date, of such LC Disbursement and (B) in the
case of each LC Disbursement, the Administrative Agent shall (1) in the case of a Revolving LC
Disbursement, notify each Revolving Lender of such Revolving LC Disbursement, the Dollar Equivalent
of the payment then due from the Borrower in respect thereof and such Lender’s Revolving Applicable
Percentage thereof, and each Revolving Lender shall pay to the Administrative Agent on the date
such notice is received, its Revolving Applicable Percentage of the payment then due from the
Borrower, in the same manner as provided in Section 2.05 with respect to Revolving Loans made by
such Lender (and Section 2.05 shall apply, mutatis mutandis, to the payment
obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the
applicable Issuing Bank the amounts




 









 








55




so received by it from the Revolving Lenders, and (2) in the case of a DF LC Disbursement,
notify each DF Lender of such DF LC Disbursement, the Dollar Equivalent of the payment then due
from the Borrower in respect thereof and such Lender’s DF Applicable Percentage thereof, and the
Administrative Agent shall withdraw from the Deposit Account (and debit such DF Lender’s
Sub-Account in the amount of) such Lender’s DF Applicable Percentage of the Dollar Equivalent of
such DF LC Disbursement and promptly apply such amount to make payment to the applicable Issuing
Bank. Promptly following receipt by the Administrative Agent of any payment from the Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Bank or, to the extent that (1) Revolving Lenders have made payments pursuant to
this paragraph to reimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their
interests may appear, or (2) amounts have been withdrawn (other than as a Borrowing) from the
Deposit Account to make any payment pursuant to this paragraph to reimburse such Issuing Bank, then
such payment shall be deposited in the Deposit Account. Neither any payment made by a Revolving
Lender pursuant to this paragraph to reimburse any Issuing Bank for any Revolving LC Disbursement
(other than the funding of Revolving ABR Loans as contemplated above) nor any payment made with
amounts withdrawn from the Deposit Account to reimburse any Issuing Bank for any DF LC Disbursement
(other than the funding of DF ABR Loans as contemplated above) shall constitute a Loan or relieve
the Borrower of its obligation to reimburse such LC Disbursement. If the reimbursement by the
Borrower of, or obligation to reimburse, any amounts in Canadian Dollars, Euros or Pounds Sterling
would subject the Administrative Agent, the applicable Issuing Bank or any Lender to any stamp
duty, ad valorem charge or similar tax that would not be payable if such reimbursement were made or
required to be made in dollars, the Borrower shall, at its option, either (x) pay the amount of any
such tax requested by the Administrative Agent, the applicable Issuing Bank or Lender or (y)
reimburse in dollars each LC Disbursement made in Canadian Dollars, Euros or Pounds Sterling, in an
amount equal to the Dollar Equivalent, calculated using the applicable LC Exchange Rate on the date
such LC Disbursement is reimbursed (or on the applicable LC Participation Calculation Date, if such
date shall have occurred), of such LC Disbursement.




          (f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by any
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, (iv) any claim or defense against the
beneficiary of any Letter of Credit, any transferee of any Letter of Credit, the Administrative
Agent, any Lender or any other Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated hereby or any unrelated transactions (including the
underlying transaction between the Borrower or any Subsidiary and the beneficiary of any Letter of
Credit), (v) the occurrence of any Default or (vi) any other event or





 









 






56




circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of or defense against, or
provide a right of setoff against, the Borrower’s obligations hereunder. None of the
Administrative Agent, the Lenders or the Issuing Banks, or any of their Related Parties, shall have
any liability or responsibility by reason of or in connection with the issuance or transfer of any
Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to in the preceding sentence), or any error, omission, interruption,
loss or delay in transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from causes beyond the
control of the Issuing Banks; provided that the foregoing shall not be construed to excuse
any Issuing Bank from liability to the Borrower to the extent of any damages suffered by the
Borrower or any Lender that are caused by such Issuing Bank’s gross negligence or willful
misconduct. In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the applicable Issuing Bank may,
acting in good faith, either accept and make payment upon such documents without responsibility for
further investigation or refuse to accept and make payment upon such documents if such documents
are not in strict compliance with the terms of such Letter of Credit.




          (g) Disbursement Procedures. Each Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. Each Issuing Bank shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether such Issuing Bank has made
or will make an LC Disbursement thereunder; provided that any failure to give or delay in
giving such notice shall not (i) relieve the Borrower of its obligation to reimburse such Issuing
Bank and the Lenders with respect to any such LC Disbursement or (ii) relieve (A) any Lender’s
obligation to acquire participations as required pursuant to paragraph (d) of this Section 2.04 or
(B) in the case of a DF LC Disbursement, the obligation of the Administrative Agent, promptly after
receipt of such notice, to withdraw from the Deposit Account each Lender’s DF Applicable Percentage
of such DF LC Disbursement and apply such amounts to make payment to the Issuing Bank as provided
herein.




          (h) Interim Interest. If any Issuing Bank shall make any LC Disbursement, then,
unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC
Disbursement, (i) in the case of any LC Disbursement denominated in dollars, and at all times
following the conversion to dollars of an LC Disbursement made in Canadian Dollars, Euros or Pounds
Sterling pursuant to paragraph (e) or (l) of this Section, at the rate per annum then applicable to
ABR Loans, and (ii) in the case of any LC Disbursement denominated in Canadian Dollars, Euros or
Pounds Sterling, at all times prior to its conversion to dollars pursuant to paragraph (e) or (l)
of this Section, a rate per annum reasonably determined by the applicable Issuing




 









 








57




Bank (which determination will be conclusive absent manifest error) to represent its cost of
funds plus the Applicable Rate used to determine interest applicable to Eurodollar Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 2.11(c) shall apply. Interest accrued pursuant to this
paragraph shall be for the account of such Issuing Bank, except that interest accrued on and after
the date of payment pursuant to paragraph (e) of this Section to reimburse such Issuing Bank shall
be for the accounts of the Revolving Lenders or the DF Lenders, as applicable, to the extent of
such payment.




          (i) Replacement of the Issuing Bank. Each Issuing Bank may be replaced at any time by
written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement
of such Issuing Bank. At the time any such replacement shall become effective, the Borrower shall
pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.10(b). From and after the effective date of any such replacement, (i) the successor Issuing Bank
shall have all the rights and obligations of such Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank”
shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the replacement of any Issuing
Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have
all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of
Credit issued by it prior to such replacement, but shall not be required to issue additional
Letters of Credit.




          (j) Cash Collateralization. If any Event of Default shall occur and be continuing, on
the earlier of (i) the third Business Day after the Borrower shall receive notice from the
Administrative Agent or the Majority Lenders demanding the deposit of cash collateral pursuant to
this paragraph and (ii) the date on which the maturity of the Loans shall be accelerated or the
Total Commitment reduced to zero, the Borrower shall deposit in an account or accounts with the
Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders,
an amount in cash equal to the sum of (i) the aggregate undrawn amount of all outstanding Letters
of Credit and (ii) the aggregate amount of all unreimbursed LC Disbursements and all interest
accrued and unpaid thereon. Amounts payable under the preceding sentence in respect of any Letter
of Credit or LC Disbursement shall be payable in the currency of such Letter of Credit or LC
Disbursement, except that LC Disbursements in Canadian Dollars, Euros or Pounds Sterling in respect
of which the Borrower’s reimbursement obligations have been converted to obligations in dollars as
provided in paragraph (e) above, and interest accrued thereon, shall be payable in dollars. The
obligation to deposit such cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower described in clause (h) or (i) of
Article VII. Such deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the obligations of the Borrower under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of withdrawal, over such
account or accounts. Other than




 









 








58




any interest earned on the investment of such deposits, which investment shall be in Permitted
Investments and shall be made in the discretion of the Administrative Agent and at the Borrower’s
risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account or accounts. Moneys in such account or accounts shall
be applied by the Administrative Agent to reimburse each Issuing Bank for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with LC
Exposures representing more than 50% of the LC Exposures and the Issuing Banks with outstanding
Letters of Credit), be applied to satisfy other obligations of the Borrower under this Agreement.
If the Borrower is required to provide an amount of cash collateral under this paragraph, then (1)
if the maturity of the Loans has not been accelerated and the LC Exposure shall be reduced to an
amount below the amount so deposited, the Administrative Agent will return to the Borrower any
excess of the amount so deposited over the LC Exposure and (2) such amount (to the extent not
applied as provided above in this paragraph) shall be returned to the Borrower within three
Business Days after all Events of Default have been cured or waived.




          (k) Issuing Bank Reports. Unless otherwise agreed by the Administrative Agent, each
Issuing Bank shall report in writing to the Administrative Agent (i) on or prior to each Business
Day on which such Issuing Bank issues, amends, renews or extends any Letter of Credit, the date of
such issuance, amendment, renewal or extension, and the currency and aggregate face amount of the
Revolving Letters of Credit and the DF Letters of Credit issued, amended, renewed or extended by it
and outstanding after giving effect to such issuance, amendment, renewal or extension (and whether
the amount thereof shall have changed), it being understood that such Issuing Bank shall not effect
any issuance, renewal, extension or amendment resulting in an increase in the amount of any Letter
of Credit without first obtaining written confirmation from the Administrative Agent that such
increase is then permitted under this Agreement, (ii) on each Business Day on which such Issuing
Bank makes any LC Disbursement, the date, currency and amount of such LC Disbursement, (iii) on any
Business Day on which the Borrower fails to reimburse an LC Disbursement required to be reimbursed
to such Issuing Bank on such day, the date of such failure and the currency and amount of such LC
Disbursement and (iv) on any other Business Day, such other information as the Administrative Agent
shall reasonably request as to the Letters of Credit issued by such Issuing Bank.




          (l) Conversion. In the event that the Loans become immediately due and payable on any
date pursuant to Article VII, all amounts (i) that the Borrower is at the time or becomes
thereafter required to reimburse or otherwise pay to the Administrative Agent in respect of LC
Disbursements made under any Letter of Credit denominated in Canadian Dollars, Euros or Pounds
Sterling (other than amounts in respect of which the Borrower has deposited cash collateral, if
such cash collateral was deposited in the applicable currency), (ii) that the Lenders are at the
time or become thereafter required to pay to the Administrative Agent (and the Administrative Agent
is at the time or becomes thereafter required to distribute to the applicable Issuing Bank)
pursuant to paragraph (e)




 









 








59




of this Section in respect of unreimbursed LC Disbursements made under any Letter of Credit
denominated in Canadian Dollars, Euros or Pounds Sterling and (iii) of each Lender’s participation
in any Letter of Credit denominated in Canadian Dollars, Euros or Pounds Sterling under which an LC
Disbursement has been made shall, automatically and with no further action required, be converted
into the Dollar Equivalent, calculated using the LC Exchange Rates on such date (or in the case of
any LC Disbursement made after such date, on the date such LC Disbursement is made), of such
amounts. On and after such conversion, all amounts accruing and owed to the Administrative Agent,
any Issuing Bank or any Lender in respect of the obligations described in this paragraph shall
accrue and be payable in dollars at the rates otherwise applicable hereunder.




          SECTION 2.05. Funding of Borrowings. (a) Each Revolving Lender shall make each
Revolving Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:30 p.m., New York City time, to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the Revolving Lenders. The
Administrative Agent will make such Revolving Loans available to the Borrower by promptly crediting
the amounts so received, in like funds, to an account designated by the Borrower in the applicable
Borrowing Request; provided that ABR Revolving Loans made to finance the reimbursement of a
Revolving LC Disbursement as provided in Section 2.04(e) shall be remitted by the Administrative
Agent to the applicable Issuing Bank.




          (b) Unless the Administrative Agent shall have received notice from a Revolving Lender prior
to the proposed date of any Revolving Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in accordance with paragraph (a) of
this Section and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Revolving Lender has not in fact made its share of the
applicable Revolving Borrowing available to the Administrative Agent, then the applicable Lender
and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the date such amount is
made available to the Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Revolving Lender, the greater of the Federal Funds Effective Rate and a
rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans. If
such Revolving Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender’s Revolving Loan included in such Borrowing. It is agreed that no payment
by the Borrower under this paragraph will be subject to any break-funding payment under Section
2.14.




          (c) The Administrative Agent will make each DF Loan to be made hereunder available to the
Borrower by promptly crediting the amounts withdrawn by it from the Deposit Account in accordance
with Section 2.02(a)(ii), in like funds, to an account designated by the Borrower in the applicable
Borrowing Request; provided that ABR DF Loans made to finance the reimbursement of an LC
Disbursement as provided




 









 








60




in Section 2.04(e) shall be remitted by the Administrative Agent to the applicable Issuing
Bank.




          SECTION 2.06. Interest Elections. (a) Each Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the
case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing.




          (b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone by the time that a Borrowing Request would be required under
Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest Election Request
shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request signed by the Borrower.




          (c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:




          (i) the Borrowing to which such Interest Election Request applies and, if different options
are being elected with respect to different portions thereof, the portions thereof to be allocated
to each resulting Borrowing (in which case the information to be specified pursuant to clauses
(iii) and (iv) below shall be specified for each resulting Borrowing);




          (ii) the effective date of the election made pursuant to such Interest Election Request, which
shall be a Business Day;




          (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and




          (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period contemplated by
the definition of the term “Interest Period”.




If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.




          (d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.




 









 








61




          (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the request of the Majority
Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless
repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.




          SECTION 2.07. Reductions of Commitments. (a) Unless previously reduced to zero, the
Total Commitment and each LC Commitment shall be reduced to zero on the Commitment Termination
Date.




          (b) The Borrower may at any time or from time to time reduce the Revolving Total Commitment or
the DF Total Commitment; provided that (i) each reduction of the Revolving Total Commitment
or the DF Total Commitment (other than a reduction of the Total Commitment to zero) shall be in an
amount that is an integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the
Borrower shall not reduce (A) the Revolving Total Commitment if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.09, the aggregate
Revolving Credit Exposures would exceed the Revolving Total Commitment or (B) the DF Total
Commitment if, after giving effect to any concurrent prepayment of the DF Loans in accordance with
Section 2.09, the aggregate DF Credit Exposures would exceed the DF Total Commitment.




          (c) The Borrower shall notify the Administrative Agent of any election to reduce the Revolving
Total Commitment or the DF Total Commitment under paragraph (b) of this Section at least three
Business Days prior to the effective date of such reduction, specifying such election and the
effective date thereof. Promptly following receipt of any such notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable; provided that a notice of reduction of the Revolving
Total Commitment or the DF Total Commitment to zero delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities or financings, in which
case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior
to the specified effective date) if such condition is not satisfied. Any reduction of the
Revolving Total Commitment or the DF Total Commitment shall be permanent. Each reduction of the
Commitments of any Class shall be made ratably among the Lenders in accordance with their
respective Commitments of such Class.




          SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay on the Commitment Termination Date to the Administrative Agent for
the account of each Revolving Lender the then unpaid




 









 








62




principal amount of each Revolving Loan of such Lender and for the account of each DF Lender
the then unpaid principal amount of each DF Loan of such Lender.




          (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the Indebtedness of the Borrower to such Lender resulting from each Loan made or held by
such Lender, including the amounts of principal and interest payable and paid to such Lender from
time to time hereunder.




          (c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.




          (d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein (including any failure to record the making or
repayment of any Loan) shall not in any manner affect the obligation of the Borrower to repay the
Loans in accordance with the terms of this Agreement or prevent the Borrower’s obligations in
respect of Loans from being discharged to the extent of amounts actually paid in respect thereof.




          (e) Any Lender may request that Loans of any Class made by it be evidenced by a promissory
note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory
note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) in substantially the form set forth in Exhibit C hereto. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such promissory note is a registered note,
to such payee and its registered assigns).




          SECTION 2.09. Prepayment of Loans. (a) The Borrower shall have the right at any time
and from time to time to prepay any Borrowing in whole or in part, subject to paragraph (d) of this
Section.




          (b) The Borrower shall in the event and on each occasion that (i) the aggregate Revolving
Credit Exposures exceed the Revolving Total Commitments, (ii) the aggregate DF Credit Exposures
exceed the DF Total Commitments or (iii) the aggregate Credit Exposures exceed the Borrowing Base
then in effect, not later than the next Business Day, prepay Borrowings in an aggregate amount
equal to such excess or redesignate Letters of Credit pursuant to Section 2.04(a)(iii), and in the
event that after such prepayment of Borrowings or redesignations any such excess shall remain, the
Borrower shall deposit cash in an amount equal to such excess as collateral for the reimbursement
obligations of the Borrower in respect of Revolving Letters of Credit or




 









 








63




DF Letters of Credit, as applicable; provided that in the case of any such excess that
results from any determination under Section 1.03(b) of the Dollar Equivalent of any Letter of
Credit denominated in Canadian Dollars, Euros or Pounds Sterling (i) no prepayment or redesignation
shall be required until the Business Day next succeeding the day on which the Borrower shall have
received notice of such determination under Section 1.03(b) from the Administrative Agent, (ii) no
prepayment shall be required in respect of any excess of the DF Credit Exposures over the DF Total
Commitments if such excess is eliminated by any redesignation provided for under Section
2.04(a)(iii), and (iii) any such prepayment required in respect of any excess of the aggregate
Credit Exposures over the Borrowing Base then in effect may, if such excess is in an amount less
than $10,000,000, be deferred until last day of the nearest maturing Interest Period(s) then in
effect with respect to Loan(s) required to be so repaid except to the extent of any excess of the
Revolving Credit Exposures over the Revolving Total Commitments or the DF Credit Exposures over the
DF Total Commitments. Any cash so deposited (and any cash previously deposited pursuant to this
paragraph) with the Administrative Agent shall be held in an account over which the Administrative
Agent shall have dominion and control to the exclusion of the Borrower and its Subsidiaries,
including the exclusive right of withdrawal. Other than any interest earned on the investment of
such deposits, which investment shall be in Permitted Investments and shall be made in the
discretion of the Administrative Agent (or, at any time when no Default or Event of Default has
occurred and is continuing, shall be made at the direction of the Borrower) and at the Borrower’s
risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse each Issuing Bank for LC Disbursements of the same Class as the
Letters of Credit in respect of which such deposit was made for which it has not been reimbursed
and, to the extent not so applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrower for the LC Exposure of such Class at such time or, if the maturity of
the Loans has been accelerated (but subject to the consent of the Majority Lenders), be applied to
satisfy other obligations of the Borrower under this Agreement. If the Borrower has provided cash
collateral to secure the reimbursement obligations of the Borrower in respect of Letters of Credit
of any Class hereunder, then, so long as no Event of Default shall exist, such cash collateral
shall be released to the Borrower if so requested by the Borrower at any time if and to the extent
that, after giving effect to such release, the aggregate amount of the Credit Exposures of such
Class would not exceed the Total Commitment of such Class and the aggregate Credit Exposures would
not exceed the Borrowing Base then in effect.




          (c) In the event and on each occasion that any Net Cash Proceeds are received by or on behalf
of the Borrower or any Subsidiary in respect of any Prepayment Event, the Borrower shall, not later
than the fifth Business Day after such Net Cash Proceeds are received, prepay Loans in an aggregate
amount equal to the lesser of (i) 50% of such Net Cash Proceeds and (ii) the amount required, if
any, to cause the Available Commitments to be not less than $250,000,000 on the day such Net Cash
Proceeds are received (any excess of the amount in (i) over the amount in (ii) being herein
referred to as the “Available Amount”). To the extent that the Borrower and the
Subsidiaries do not apply all the Available Amount on or prior to the Business Day (the
“Application Date”) next preceding the day that is 365 days after receipt of such Net




 









 








64




Cash Proceeds to acquire assets that constitute Collateral at the time of such acquisition or
will be owned by a Subsidiary, the Equity Interests of which constitute Collateral at the time of
such acquisition, or to prepay loans under the Second Lien Agreement, as required by Section
2.07(b) thereof, then the portion of the Available Amount that has not been so applied by the
Application Date (the “Unused Proceeds”) shall, not later than the Application Date, be
required to be used to prepay Loans in an aggregate amount equal to the lesser of (A) the amount
required, if any, to cause the Available Commitments to be not less than $250,000,000 on the
Application Date and (B) the Unused Proceeds.




          (d) The Borrower shall notify the Administrative Agent by telephone (confirmed by telecopy) of
any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than
3:00 p.m., New York City time, three Business Days before the date of prepayment or (ii) in the
case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business
Day before the date of prepayment; provided that if the Borrower shall be required to make
any prepayment hereunder by reason of Section 2.09(b), such notice shall be delivered not later
than the time at which such prepayment is made. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or portion thereof to be
prepaid; provided that, if a notice of prepayment is given in connection with a conditional
notice of reduction of the Revolving Total Commitment or the DF Total Commitment to zero as
contemplated by Section 2.07(c), then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.07(c). Promptly following receipt of any such
notice relating to a Borrowing, the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing (other than pursuant to Section 2.09(b)) shall
be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type
as provided in Section 2.02. Each prepayment of a Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.11. Prepayments of DF Loans shall be deposited by the Administrative
Agent in the Deposit Account to the extent provided in Section 2.01(b).




          SECTION 2.10. Fees. (a) The Borrower agrees to pay to the Administrative Agent for
the account of each Revolving Lender a commitment fee, accruing at the Applicable Rate on the daily
unused amount of the Revolving Commitment of such Lender during the period from and including the
date hereof to but excluding the date on which such Revolving Commitment is reduced to zero.
Accrued commitment fees shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Revolving Commitments are reduced to zero,
commencing on the first such date to occur after the date hereof. All commitment fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).




          (b) The Borrower agrees to pay to the Administrative Agent for the account of each DF Lender a
fee, accruing at the Applicable Rate, on the daily amount of the Deposit of such Lender during the
period from and including the date hereof to but




 









 








65




excluding the date on which each of the DF Total Commitment and the DF LC Exposure have been
reduced to zero. In addition, the Borrower agrees to pay to the Administrative Agent for the
account of each DF Lender an additional amount, accruing at the rate of 0.10% per annum, on the
daily amount of the Deposit of such Lender during the period from and including the date hereof to
but excluding the date on which each of the DF Total Commitment and the DF LC Exposure have been
reduced to zero. Fees and other amounts under this paragraph accrued through and including the
last day of March, June, September and December of each year shall be payable on the third Business
Day following such last day, commencing on the first such date to occur after the Effective Date,
and on the date on which each of the DF Total Commitment and the DF LC Exposure have been reduced
to zero. All fees and amounts payable under this paragraph shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).




          (c) The Borrower agrees to pay (i) to the Administrative Agent, for the account of each
Revolving Lender a participation fee with respect to its participations in Revolving Letters of
Credit, which shall accrue at the Applicable Rate for Eurodollar Revolving Borrowings on the
average daily amount of such Lender’s Revolving LC Exposure (excluding any portion thereof
attributable to unreimbursed Revolving LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Lender’s Revolving Commitment
is reduced to zero and the date on which such Lender ceases to have any Revolving LC Exposure, and
(ii) to each Issuing Bank a fronting fee, which shall accrue at the rate or rates per annum
separately agreed upon between the Borrower and the applicable Issuing Bank (on the date hereof or
any later date on which such Issuing Bank shall have become an Issuing Bank), on the daily amount
of the LC Exposure attributable to Letters of Credit issued by such Issuing Bank (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period from and including
the Effective Date to but excluding the later of the date each LC Commitment of such Issuing Bank
is reduced to zero and the date on which there ceases to be any LC Exposure attributable to Letters
of Credit issued by such Issuing Bank, as well as such Issuing Bank’s standard fees with respect to
the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings
thereunder. Participation and fronting fees accrued through and including the last day of March,
June, September and December of each year shall be payable on the third Business Day following such
last day, commencing on the first such date to occur after the Effective Date; provided
that (i) all such accrued fees shall be payable in respect of Revolving LC Exposures on the date on
which the Revolving Total Commitment is reduced to zero and any such fees accruing in respect of
Revolving LC Exposures after the date on which the Revolving Total Commitment is reduced to zero
shall be payable on demand and (ii) all such accrued fees shall be payable in respect of DF LC
Exposures on the date on which the DF Total Commitment is reduced to zero and any such fees
accruing in respect of DF LC Exposures after the date on which the DF Total Commitment is reduced
to zero shall be payable on demand. Any other fees payable to the Issuing Banks pursuant to this
paragraph shall be payable within 10 days after demand. All participation and fronting fees shall
be computed on the basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).




 









 








66




          (d) The Borrower agrees to pay to the Administrative Agent, for its own account, fees in the
amounts and at the times separately agreed upon between the Borrower and the Administrative Agent.




          (e) All fees and other amounts payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing Banks, in the case of
fees payable to them) for distribution, where applicable, to the Lenders. Fees paid shall not be
refundable under any circumstances.




          SECTION 2.11. Interest. (a) The Loans comprising each ABR Borrowing shall bear
interest at the Alternate Base Rate plus the Applicable Rate.




          (b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.




          (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2.00% plus
the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2.00% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.




          (d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and shall be payable for each Revolving Loan upon reduction of the Revolving Total
Commitment to zero and for each DF Loan upon reduction of the DF Total Commitment to zero;
provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Loan prior to the end of the Availability Period), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and
(iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of
such conversion.




          (e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be conclusive absent manifest
error.




          SECTION 2.12. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing:




 









 








67




          (a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate for such Interest Period; or




          (b) the Administrative Agent is advised by the Majority Lenders that the Adjusted LIBO Rate
for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or any
Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;




then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and (ii) if any
Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR
Borrowing. In the event, and on each occasion, that prior to the determination of a Benchmark LIBO
Rate for any day the Administrative Agent shall have determined that dollar deposits in the
principal amounts of the Deposits are not generally available in the interbank eurodollar market,
or that the rates at which such dollar deposits are being offered will not adequately and fairly
reflect the cost of maintaining the Benchmark LIBO Rate or the Deposits for such day, or that
reasonable means do not exist for ascertaining the Benchmark LIBO Rate, the Administrative Agent
shall give notice thereof to the Borrower and the DF Lenders by telephone or telecopy as promptly
as practicable thereafter and the Deposit Return shall be equal to a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation minus .10%
per annum. Each determination by the Administrative Agent hereunder shall be conclusive absent
manifest error.




          SECTION 2.13. Increased Costs. (a) If any Change in Law shall:




          (i) impose, modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by, any Lender (except
any such reserve requirement reflected in the Adjusted LIBO Rate) or any Issuing Bank or any
Deposit or the Deposit Account; or




          (ii) impose on any Lender or any Issuing Bank or the London interbank market any other
condition (other than Taxes) affecting this Agreement or Eurodollar Loans made by such Lender or
any Letter of Credit or participation therein or any Deposit or the Deposit Account;




and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining its Deposit or any Eurodollar Loan (or of maintaining the Commitment of such Lender) or
to increase the cost to such Lender or such Issuing Bank of participating in, issuing or
maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such
Lender or such Issuing Bank hereunder (whether of principal, interest or otherwise), in each case
by an amount deemed by such Lender or Issuing Bank, as the case may be, to be material, then the
Borrower will pay to such




 









 








68




Lender or such Issuing Bank such additional amount or amounts as will compensate such Lender or
such Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.




          (b) If any Lender or any Issuing Bank determines that any Change in Law regarding capital
requirements has had or would have the effect of reducing the rate of return on such Lender’s or
such Issuing Bank’s capital or on the capital of such Lender’s or such Issuing Bank’s holding
company, if any, in each case by an amount deemed by such Lender or such Issuing Bank to be
material, as a consequence of this Agreement or the Commitment of such Lender or the Loans or
participations in Letters of Credit held by such Lender or the Deposit or Sub-Account of any
Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such
Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company would have
achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Bank’s
policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender or such Issuing
Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such
Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction
suffered.




          (c) A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary
to compensate such Lender or such Issuing Bank or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower. The Borrower
shall pay such Lender or such Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof, unless such amount is being contested by the
Borrower in good faith.




          (d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant
to this Section shall not constitute a waiver of such Lender’s or such Issuing Bank’s right to
demand such compensation; provided that the Borrower shall not be required to compensate a
Lender or an Issuing Bank pursuant to this Section for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or such Issuing Bank notifies the Borrower of
the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such
Issuing Bank’s intention to claim compensation therefor; provided further that, if
the Change in Law giving rise to such increased costs or reductions is retroactive, then the
180-day period referred to above shall be extended to include the period of retroactive effect
thereof.




          SECTION 2.14. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow,
continue or prepay any Eurodollar Loan, or to convert any Loan to a Eurodollar Loan, on the date
specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.09(c) and is revoked in accordance therewith), or (d) the assignment of any
Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of
a request by the Borrower




 









 








69




pursuant to Section 2.17, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a Eurodollar Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender
to be the excess, if any, of (i) the amount of interest which would have accrued on the principal
amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for
the period that would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the interest rate which
such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower. The Borrower shall pay such Lender the amount shown as
due on any such certificate within 10 days after receipt thereof, unless such amount is being
contested by the Borrower in good faith.




          SECTION 2.15. Taxes. (a) Any and all payments by or on account of any obligation of
the Borrower or any other Credit Party hereunder or under any other Credit Document shall be made
free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided
that if the Borrower or any other Credit Party shall be required to deduct any Indemnified Taxes or
Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions of such Taxes (including deductions applicable to additional
sums payable under this Section) the Administrative Agent, Issuing Bank or Lender (as the case may
be) receives an amount equal to the sum it would have received had no such deductions been made
(and the Borrower shall pay or cause such Credit Party to pay such increased amount), (ii) the
Borrower or such other Credit Party shall make such deductions and (iii) the Borrower or such other
Credit Party shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.




          (b) The Borrower shall indemnify each DF Lender, within 10 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes withheld by the Administrative Agent
with respect to any and all payments of the Deposit Return to the DF Lenders (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section),
whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a DF Lender, or by the Administrative Agent on behalf of the
applicable DF Lender, shall be conclusive absent manifest error.




          (c) The Borrower shall indemnify the Administrative Agent, each Issuing Bank and each Lender,
within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent, such Issuing Bank or such Lender, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower or any other Credit
Party hereunder or under any other Credit Document (including Indemnified Taxes or Other Taxes
imposed or




 









 








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asserted on or attributable to amounts payable under this Section) and any penalties, interest
and reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender, or the applicable Issuing Bank or by the Administrative Agent on its own
behalf or on behalf of the applicable Issuing Bank or a Lender, shall be conclusive absent manifest
error.




          (d) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.




          (e) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower or any other Credit Party to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.




          (f) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time such Foreign Lender first becomes a
party to this Agreement and at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding or at a reduced rate;
provided that such Foreign Lender has received written notice from the Borrower advising it
of the availability of such exemption or reduction and supplying all applicable documentation.




          SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) Except
as required or permitted under Section 2.03, 2.04, 2.13, 2.14, 2.15, 2.17 or 9.03, each Borrowing,
each payment or prepayment of principal of any Borrowing or of any LC Disbursement, each payment of
interest on the Loans or the LC Disbursements, each payment of fees (other than fees payable to the
Issuing Banks), each reduction of the Revolving Total Commitment or the DF Total Commitment and
each refinancing of any Borrowing with a Borrowing of any Type, shall be allocated pro rata among
the Lenders in accordance with their respective Commitments (or, if such Commitments shall have
expired or been reduced to zero, in accordance with the respective principal amounts of their
outstanding Loans, LC Exposures or Deposits, as applicable). Each Lender agrees that in computing
such Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its
discretion, round each Lender’s percentage of such Borrowing to the next higher or lower whole
dollar amount.




          (b) The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section
2.13, 2.14 or 2.15 or otherwise) prior to 1:00 p.m.,




 









 








71




New York City time, on the date when due, in immediately available funds, without setoff,
counterclaim or other deduction. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments shall be made to the
Administrative Agent to the applicable account specified by the Administrative Agent for the
account of the applicable Lenders or, in any such case, to such other account as the Administrative
Agent shall from time to time specify in a notice delivered to the Borrower, except payments to be
made directly to an Issuing Bank as expressly provided herein and except that payments pursuant to
Sections 2.13, 2.14, 2.15, 2.17 and 9.03 shall be made directly to the Persons entitled thereto.
The Administrative Agent shall distribute any such payments received by it for the account of any
other Person in appropriate ratable shares to the appropriate recipient or recipients (or will
deposit such payments in the Deposit Account, as applicable) promptly following receipt thereof.
If any payment hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars, except as otherwise expressly provided. Any payment required
to be made by the Administrative Agent hereunder shall be deemed to have been made by the time
required if the Administrative Agent shall, at or before such time, have taken the necessary steps
to make such payment in accordance with the regulations or operating procedures of the clearing or
settlement system used by the Administrative Agent to make such payment.




          (c) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed
LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of principal and unreimbursed LC Disbursements then due to such parties.




          (d) If any Revolving Lender or DF Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its
Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Loans, participations in LC Disbursements and accrued
interest thereon than the proportion received by any other Revolving Lender or DF Lender, then the
Lender receiving such greater proportion shall purchase (for cash at face value) participations in
the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that
the benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans and participations
in LC Disbursements. If any participations are purchased pursuant to the preceding sentence and
all or any portion of the payments giving rise thereto are recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery, without interest. The
provisions of this paragraph shall not be




 









 








72




construed to apply to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in its Commitment or any of its Loans or participations in
LC Disbursements to any assignee or participant, other than to the Borrower or any Affiliate
thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable law and under this
Agreement, that any Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount of such
participation.




          (e) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders or any
Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or the Issuing Banks, as the case may be
(or, to the extent provided in Section 2.01(b), deposit in the Deposit Account) the amount due. In
such event, if the Borrower has not in fact made such payment, then each of the Lenders or the
Issuing Banks, as the case may be, severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender or Issuing Bank (or, if such amount shall have
been deposited in the Deposit Account, each DF Lender authorizes the Administrative Agent to
withdraw such amount from the Deposit Account), and to pay interest thereon for each day from and
including the date such amount shall have been distributed to it or deposited in the Deposit
Account and credited to its Sub-Account to but excluding the date of payment to or recovery by the
Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on interbank compensation.




          (f) If any Lender shall fail to make any payment required to be made by it hereunder for the
account of the Administrative Agent, any Issuing Bank or any Lender, then the Administrative Agent
may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such Lender to satisfy such
Lender’s obligations in respect of such payment until all such unsatisfied obligations are fully
paid.




          SECTION 2.17. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.13 or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.15, then such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.13 or
2.15, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to




 









 








73




pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.




          (b) If any Lender requests compensation under Section 2.13, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.15, or if any Lender shall become the subject of any insolvency or similar
proceeding or filing or default in its obligation to fund Loans hereunder, then the Borrower may,
at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment); provided that (i) the Borrower shall have received
the prior written consent of the Administrative Agent, which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, participations in LC Disbursements and its Deposit, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the assignee or the
Borrower, as the case may be, and (iii) in the case of any such assignment resulting from a claim
for compensation under Section 2.13 or payments required to be made pursuant to Section 2.15, such
assignment will result in a reduction in such compensation or payments. If any Lender shall become
the subject of any insolvency or similar proceeding or filing, then the Borrower, if requested to
do so by any Issuing Bank, shall use commercially reasonable efforts (which shall not include the
payment of any compensation) to identify an assignee willing to purchase and assume the interests,
rights and obligations of such Lender under this Agreement and to require such Lender to assign and
delegate all such interests, rights and obligations to such assignee in accordance with the
preceding sentence.




ARTICLE III




Representations and Warranties




          The Borrower represents and warrants to the Administrative Agent, the Lenders and the Issuing
Banks that:




          SECTION 3.01. Organization; Powers. The Borrower and each of the other Credit Parties
is duly organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, would not be reasonably likely
to result in a Material Adverse Change, is qualified to do business, and is in good standing, in
every jurisdiction where such qualification is required. Each Subsidiary of the Borrower other
than the Credit Parties is duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, has all requisite power and authority to carry on its
business as now conducted and is qualified to do business, and is in good standing, in every
jurisdiction where such qualification is required, except for failures that, individually or in the
aggregate, would not be materially likely to result in a Material Adverse Change.




 









 








74




          SECTION 3.02. Authorization; Enforceability. The Transactions to be entered into by
each Credit Party are within such Credit Party’s powers and have been duly authorized. This
Agreement has been duly executed and delivered by the Borrower and constitutes, and each other
Credit Document to which any Credit Party is to be a party, when executed and delivered by such
Credit Party, will constitute, a legal, valid and binding obligation of the Borrower or such Credit
Party, as the case may be, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights
generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.




          SECTION 3.03. Governmental Approvals; No Conflicts. (a) Except to the extent that no
Material Adverse Change would be materially likely to result, the Transactions (i) do not require
any consent or approval of, registration or filing with, or any other action by, any Governmental
Authority, except such as are required to perfect Liens created under the Security Documents and
such as have been obtained or made and are in full force and effect, (ii) will not violate any
applicable law or regulation or the charter, by-laws or other organizational documents of the
Borrower or any of the Subsidiaries or any order of any Governmental Authority, (iii) will not
violate or result in a default under any indenture, agreement or other instrument binding upon the
Borrower or any of the Subsidiaries or any of their assets, and (iv) will not result in the
creation or imposition of any Lien on any asset of the Borrower or any of the Subsidiaries, except
Liens created under the Credit Documents.




          (b) The incurrence of each Loan, Letter of Credit and LC Disbursement, each Guarantee thereof
under the Credit Documents and each Lien securing any of the Obligations, is permitted under the
Junior Lien Indenture and each other indenture or other agreement governing any Senior
Subordinated-Lien Indebtedness in effect at the time of such incurrence, and the Loans, Letters of
Credit, LC Disbursements and Guarantees thereof under the Credit Documents constitute Designated
Senior Obligations under the Lien Subordination and Intercreditor Agreement.




          SECTION 3.04. Financial Statements; No Material Adverse Change. (a) The Borrower has heretofore furnished to the Lenders its consolidated balance sheet and
statements of income, stockholders’ equity and cash flows as of and for the fiscal year ended
December 31, 2004. Such financial statements present fairly, in all material respects, the
consolidated financial position and consolidated results of operations and cash flows of the
Borrower and its Consolidated Subsidiaries as of such date and for such fiscal year in accordance
with GAAP.




          (b) Except as disclosed in the Disclosure Documents, since December 31, 2004, there has been
no event or condition that constitutes or would be materially likely to result in a Material
Adverse Change, it being agreed that a reduction in any rating relating to the Borrower issued by
any rating agency shall not, in and of itself, be an event or condition that constitutes or would
be materially likely to result in a Material Adverse Change (but that events or conditions
underlying or resulting from any such reduction may constitute or be materially likely to result in
a Material Adverse Change).




 









 








75




          SECTION 3.05. Litigation and Environmental Matters. (a) Except as set forth in the
Disclosure Documents, there are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any of the Subsidiaries (i) as to which there is a reasonable possibility
of an adverse determination and that if adversely determined would be materially likely,
individually or in the aggregate, to result in a Material Adverse Change or (ii) that involve the
Credit Documents or the Transactions.




          (b) Except as set forth in the Disclosure Documents, and except with respect to matters that,
individually or in the aggregate, would not be materially likely to result in a Material Adverse
Change, neither the Borrower nor any of the Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.




          SECTION 3.06. Compliance with Laws and Agreements. The Borrower and each of the
Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements and other instruments binding upon
it or its property, except where the failure to be in compliance, individually or in the aggregate,
would not be materially likely to result in a Material Adverse Change. No Event of Default has
occurred and is continuing.




          SECTION 3.07. Investment and Holding Company Status. Neither the Borrower nor any of
the Subsidiaries is (a) an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended, or (b) a “holding company” as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935, as amended.




          SECTION 3.08. ERISA and Canadian Pension Plans. (a) Except as disclosed in the
Disclosure Documents, no ERISA Event has occurred or is reasonably expected to occur that, when
taken together with all other ERISA Events that have occurred or are reasonably expected to occur,
would be materially likely to result in a Material Adverse Change.




          (b) Except as would not be materially likely to result in a Material Adverse Change, (i) the
Canadian Pension Plans are duly registered under the Income Tax Act (Canada) and all other
applicable laws which require registration and no event has occurred which is reasonably likely to
cause the loss of such registered status; (ii) all material obligations of each Credit Party
(including fiduciary, funding, investment and administration obligations) required to be performed
in connection with the Canadian Pension Plans and the funding agreements therefor have been
performed in a timely fashion; (iii) to the knowledge of the Credit Parties there have been no
improper withdrawals of the assets of the Canadian Pension Plans or the Canadian Benefit Plans;
(iv) there are no outstanding material disputes concerning the assets of the Canadian Pension Plans
or the Canadian Benefit Plans; and (v) each of the Canadian Pension Plans




 









 








76




is being funded in accordance with the actuarial valuation reports last filed with the
applicable Governmental Authorities and which are consistent with generally accepted actuarial
principles.




          SECTION 3.09. Disclosure. Neither the Information Memorandum nor the reports,
financial statements, certificates or other written information referred to in Section 3.04 or
delivered after the date hereof by or on behalf of any Credit Party to the Administrative Agent,
the Collateral Agent or any Lender pursuant to Section 5.01 (taken together with all other
information so furnished and as modified or supplemented by other information so furnished)
contained or will contain, in each case as of the date delivered, any material misstatement of fact
or omitted or will omit to state, in each case as of the date delivered, any material fact
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial information or
other forward looking information, the Borrower represents only that such information was prepared
in good faith based upon assumptions believed to be reasonable at the time.




          SECTION 3.10. Security Interests. (a) When executed and delivered, each of the
Guarantee and Collateral Agreement and the Canadian Security Agreements will be effective to create
in favor of the Collateral Agent for the benefit of the Secured Parties a valid and enforceable
security interest in the Collateral, to the extent contemplated by the Guarantee and Collateral
Agreement or the Canadian Security Agreements, as the case may be, and (i) when the Collateral
constituting certificated securities (as defined in the Uniform Commercial Code) is delivered to
the Collateral Agent thereunder, together with instruments of transfer duly endorsed in blank, the
Guarantee and Collateral Agreement will create, to the extent contemplated by the Guarantee and
Collateral Agreement, a perfected security interest in all right, title and interest of the
Grantors in such certificated securities to the extent perfection is governed by the Uniform
Commercial Code as in effect in any applicable jurisdiction, subject to no other Lien other than
Liens permitted under Section 6.02 that take priority over security interests in certificated
securities perfected by the possession of such securities under the Uniform Commercial Code as in
effect in the applicable jurisdiction, and (ii) when financing statements in appropriate form are
filed, and any other applicable registrations are made, in the offices specified in the Perfection
Certificate, the Guarantee and Collateral Agreement and the Canadian Security Agreements will
create a perfected security interest (or hypothec, as applicable) in all right, title and interest
of the Grantors in the remaining Collateral to the extent perfection can be obtained by filing
Uniform Commercial Code financing statements and making such other applicable filings and
registrations in such jurisdictions, subject to no other Lien other than Liens permitted under
Section 6.02. The exclusion of the Consent Assets (as defined in the Guarantee and Collateral
Agreement) from the Collateral does not materially reduce the aggregate value of the Collateral.




          (b) Each Mortgage, upon execution and delivery by the parties thereto, will create in favor of
the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable Lien
on all the applicable mortgagor’s right, title and interest in and to the Mortgaged Properties
subject thereto and the proceeds thereof, and when the




 









 








77




Mortgages have been filed or registered in the counties specified in Schedule 3.10(b), the
Mortgages will create perfected Liens on all right, title and interest of the mortgagors in the
Mortgaged Properties and the proceeds thereof, prior and superior in right to Liens in favor of any
other Person (other than Liens or other encumbrances for which exceptions are taken in the policies
of title insurance delivered in respect of the Mortgaged Properties on or prior to the Effective
Date and Liens permitted under Section 6.02).




          (c) Upon (i) the recordation of the Guarantee and Collateral Agreement or a memorandum of such
Agreement with the United States Patent and Trademark Office and (ii) the recordation of the
Canadian Security Agreements with the Canadian Intellectual Property Office, the Guarantee and
Collateral Agreement and the Canadian Security Agreements, as the case may be, will create in favor
of the Collateral Agent, for the benefit of the Secured Parties, a perfected Lien on all right,
title and interest of the Grantors in the Material Intellectual Property in which a security
interest may be perfected by such recordation in the United States Patent and Trademark Office or
the Canadian Intellectual Property Office, as the case may be, in each case (i) prior and superior
in right to any other Person and (ii) subject to no other Lien other than, in the case of (i) and
(ii), Liens permitted under Section 6.02 (it being understood that subsequent recordings in the
United States Patent and Trademark Office or the Canadian Intellectual Property Office, as the case
may be, may be necessary to perfect a Lien on registered trademarks and trademark applications
acquired by the Grantors after the Effective Date). As of the Effective Date, Schedule 3.10(c)
sets forth all the Material Intellectual Property.




          (d) Upon the recordation of the Guarantee and Collateral Agreement with the Federal Aviation
Administration, the Guarantee and Collateral Agreement will create in favor of the Collateral
Agent, for the benefit of the Secured Parties, a perfected Lien on all right, title and interest of
the Grantors in the Aircraft Collateral (as defined in the Guarantee and Collateral Agreement) in
which a security interest may be perfected by such recordation with the Federal Aviation
Administration, in each case prior and superior in right to any other Person, subject to no other
Lien other than Liens permitted under Section 6.02.




          (e) None of the Perfection Certificate or any other written information relating to the
Collateral delivered after the date hereof by or on behalf of any Credit Party to the
Administrative Agent, the Collateral Agent or any Lender pursuant to any provision of any Credit
Document is or will be incorrect when delivered in any respect material to the rights or interests
of the Lenders under the Credit Documents.




          SECTION 3.11. Use of Proceeds and Letters of Credit. The proceeds of the Loans and
the Letters of Credit will be used only for the purposes referred to in the preamble to this
Agreement. No part of the proceeds of any Loan will be used, whether directly or indirectly, for
any purpose that entails a violation of any of the Regulations of the Board, including Regulations
T, U and X.




 









 








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ARTICLE IV




Conditions




          SECTION 4.01. Effective Date. This Agreement shall not become effective until the
date on which each of the following conditions is satisfied (or waived or deferred in accordance
with Section 9.02 or the penultimate paragraph of this Section 4.01):




          (a) The Administrative Agent (or its counsel) shall have received from the Borrower, the
Administrative Agent and each Lender either (i) counterparts of this Agreement signed on behalf of
each such party or (ii) written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this Agreement) that each such party
has signed a counterpart of this Agreement.




          (b) The Administrative Agent shall have received favorable written opinions (addressed to the
Administrative Agent, the Lenders and the Issuing Banks and dated the Effective Date) of (i)
Covington & Burling, counsel for the Borrower, substantially in the form of Exhibit E-1, and (ii)
the General Counsel, the Associate General Counsel or an Assistant General Counsel of the Borrower,
substantially in the form of Exhibit E-2, and covering such other matters relating to the Credit
Parties, the Credit Documents or the Transactions as the Administrative Agent or the Majority
Lenders shall reasonably request.




          (c) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization, existence
and good standing of each Credit Party, the authorization by the Credit Parties of the Transactions
and any other legal matters relating to the Borrower, the other Credit Parties, the Credit
Documents or the Transactions, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.




          (d) The commitments under the ABL Facilities Agreement and the Deposit-Funded Agreement shall
have terminated, all loans thereunder shall have been repaid, all other amounts outstanding or
accrued for the accounts of or owing to the lenders thereunder (including the repayment or
extension premium provided for in the ABL Facilities Agreement) and all letters of credit
thereunder (other than the Existing Letters of Credit) shall have been canceled or returned. The
European Facilities Agreement shall have become effective with a maturity not earlier than the
Commitment Termination Date. The amendment and restatement of the European Guarantee and
Collateral Agreement shall have become effective in substantially the form attached hereto as
Exhibit J.




          (e) The Obligations shall have been designated by the Borrower as, and shall be, “Designated
Senior Obligations” under the Lien Subordination and Intercreditor Agreement.




 









 








79




          (f) The Second Lien Agreement shall have become effective or shall concurrently become
effective in substantially the form thereof most recently posted to IntraLinks prior to the date
hereof with only such changes thereto as shall not be adverse to the Lenders in any material
respect and shall have been approved by the Administrative Agent. All conditions to the
effectiveness of the Second Lien Agreement shall have been satisfied, and the Second Lien Agreement
shall have become effective. The Collateral Agent and the collateral agent under the Second Lien
Agreement shall have entered into the Lenders Lien Subordination and Intercreditor Agreement.




          (g) The representations and warranties set forth in Article III shall be true and correct in
all material respects on the Effective Date and the Administrative Agent shall have received a
certificate signed by a Financial Officer to that effect.




          (h) The Borrower and the other Credit Parties shall be in compliance with all the terms and
provisions set forth herein and in the other Credit Documents in all material respects on their
part to be observed or performed, and at the time of and immediately after the Effective Date, no
Default shall have occurred and be continuing, and the Administrative Agent shall have received a
certificate signed by a Financial Officer to that effect.




          (i) The Administrative Agent shall have received all fees and other amounts due and payable on
or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.




          (j) The Administrative Agent shall have received (i) a completed Perfection Certificate dated
the Effective Date and signed by a Financial Officer, together with all attachments contemplated
thereby, and (ii) the results of a search of the Uniform Commercial Code (or equivalent) filings or
registrations made with respect to the Credit Parties in the jurisdictions referred to in paragraph
1 of the Perfection Certificate and copies of the financing statements (or similar documents)
disclosed by such search.




          (k) The Administrative Agent shall have received from the Borrower and each Domestic
Subsidiary (other than the Excluded Subsidiaries and the Consent Subsidiaries) a counterpart of the
Guarantee and Collateral Agreement duly executed and delivered on behalf of the Borrower or such
Subsidiary as a Guarantor and (in the case of each Subsidiary that is a Grantor under the guarantee
and collateral agreement under the Deposit-Funded Agreement) a Grantor. The Administrative Agent
shall have received from the Canadian Grantors counterparts of the Canadian Security Agreements
duly executed and delivered on behalf of such Canadian Grantors.




          (l) The Collateral Agent shall have received certificates representing all Equity Interests
(other than any uncertificated Equity Interests) pledged pursuant to the Guarantee and Collateral
Agreement, together with undated stock powers or other instruments of transfer with respect thereto
endorsed in blank.




 









 








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          (m) All Uniform Commercial Code financing statements or other personal property security
filings and recordations with the United States Patent and Trademark Office, the Canadian
Intellectual Property Office and the Federal Aviation Administration required by law or reasonably
requested by the Collateral Agent to be filed or recorded to perfect the Liens intended to be
created on the Collateral (to the extent such Liens may be perfected by filings under the Uniform
Commercial Code as in effect in any applicable jurisdiction or by filings or registrations under
applicable Canadian personal property security legislation or by filings with the United States
Patent and Trademark Office or the Federal Aviation Administration) shall have been filed or
recorded or delivered to the Collateral Agent for filing or recording.




          (n) The Collateral Agent shall have received (i) counterparts of a Mortgage with respect to
each Mortgaged Property, duly executed and delivered by the record owner of such Mortgaged
Property, (ii) a policy or policies of title insurance issued by a nationally recognized title
insurance company insuring the Lien of each such Mortgage as a valid first Lien on the Mortgaged
Property described therein, free of any other Liens (other than Liens referred to in such policies
of title insurance and acceptable to the Administrative Agent and Liens permitted by Section 6.02),
together with such endorsements as the Collateral Agent or the Majority Lenders may reasonably
request, and (iii) such legal opinions and other documents as shall reasonably have been requested
by the Collateral Agent with respect to any such Mortgage or Mortgaged Property.




          (o) The Administrative Agent shall have received from each “Deposit Account Institution” that
is required to be party to a “Lockbox Agreement” (as such terms are defined in the Guarantee and
Collateral Agreement) evidence that such agreement has been duly executed by all requisite parties
and has become effective.




          The Collateral Agent may enter into agreements with the Borrower to grant extensions of time
for the perfection of security interests in or the delivery of surveys, title insurance, legal
opinions or other documents with respect to particular assets where it determines that perfection
cannot be accomplished or such documents cannot be delivered without undue effort or expense by the
Effective Date or any later date on which they are required to be accomplished or delivered under
this Agreement or the Security Documents. Any failure of the Borrower to satisfy a requirement of
any such agreement by the date specified therein (or any later date to which the Collateral Agent
may agree) shall constitute a breach of the provision of this Agreement or the Security Document
under which the original requirement was applicable. Without limiting the foregoing, it is
anticipated that the actions listed on Schedule 4.01 will not have been completed by the Effective
Date, and the Borrower covenants and agrees that each of such actions will be completed by the date
specified for such action in such Schedule 4.01 (or any later date to which the Collateral Agent
may agree) and that the Borrower will comply with all of the undertakings set forth in Schedule
4.01.




          The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date in
writing, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the
obligations of the Revolving Lenders to make Loans, the DF Lenders to make the Deposits and the
Issuing Banks to issue Letters of Credit




 









 








81




hereunder shall not become effective unless each of the foregoing conditions shall have been
satisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on
April 30, 2005 (and, in the event such conditions are not so satisfied or waived, the Total
Commitment shall be reduced to zero at such time).




          SECTION 4.02. Each Credit Event. (a) The obligation of each Lender to make a Loan on
the occasion of any Borrowing (other than a conversion or continuation of an outstanding Borrowing
and other than a Borrowing to reimburse an LC Disbursement made pursuant to Section 2.04(e)) and of
each Issuing Bank to issue, amend, renew or extend any Letter of Credit, shall be subject to the
satisfaction of the following conditions:




          (i) The representations and warranties of the Borrower set forth in this Agreement and in the
other Credit Documents (insofar as the representations and warranties in such other Credit
Documents relate to the transactions provided for herein or to the Collateral securing the
Obligations) shall be true and correct in all respects material to the rights or interests of the
Lenders or the Issuing Banks under the Credit Documents on and as of the date of such Borrowing or
the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable, with
the same effect as though made on and as of such date, except to the extent such representations
and warranties expressly relate to an earlier date.




          (ii) After giving effect to such Borrowing or the issuance, amendment, renewal or extension of
such Letter of Credit, as applicable, the aggregate Credit Exposure shall not exceed the Borrowing
Base Availability then in effect.




          (iii) At the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of
Default shall have occurred and be continuing and no breach of the delivery requirements of Section
5.01(a) or (b) shall have occurred and be continuing.




          (b) The obligation of each Lender to make a Loan on the occasion of any Borrowing deemed to
have been requested by the Borrower to reimburse an LC Disbursement pursuant to Section 2.04(e)
shall be subject to the satisfaction of the conditions that (i) at the time of and immediately
after giving effect to such Borrowing, no Event of Default shall have occurred and be continuing,
and (ii) after giving effect to such Borrowing, the aggregate Credit Exposure shall not exceed the
Borrowing Base Availability then in effect.




          (c) Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit
shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as
to the matters specified in clauses (i), (ii) and (iii) of paragraph (a) above or in paragraph (b)
above, as the case may be.




 









 








82




ARTICLE V




Affirmative Covenants




          Until the Commitments shall have been reduced to zero and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Administrative Agent, the Lenders and the Issuing Banks that:




          SECTION 5.01. Financial Statements and Other Information. The Borrower will furnish
to the Administrative Agent and each Lender and Issuing Bank:




          (a) (i) as soon as available and in any event within 110 days after the end of each fiscal
year of the Borrower, its audited consolidated balance sheet and related statements of income,
stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case
in comparative form the figures for the previous fiscal year, all reported on by
PricewaterhouseCoopers or other independent public accountants of recognized national standing
(without any qualification or exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material respects the financial condition
and results of operations of the Borrower and its Consolidated Subsidiaries in accordance with GAAP
consistently applied; and (ii) as soon as available and in any event on or before April 30 of each
fiscal year of the Borrower, an annual operating plan for such fiscal year prepared by management
of the Borrower in a manner consistent with past practice, which annual operating plan shall
include, for such fiscal year, (A) annual and quarterly projected income statements, annual and
quarterly projected statements of cash flow, and a projected year-end balance sheet as of the last
day of such fiscal year, in each case, for the Borrower and its Consolidated Subsidiaries, and (B)
quarterly projections of unit and dollar sales, EBIT and operating cash flow by business unit;




          (b) as soon as available and in any event within 60 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower, its consolidated balance sheet and
related statements of income, stockholders’ equity and cash flows as of the end of and for such
fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or periods of (or, in the case of the
balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition and results of
operations of the Borrower and its Consolidated Subsidiaries in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of footnotes;




          (c) other than in connection with the delivery of financial statements for the fiscal period
ended March 31, 2005, not later than one Business Day after each delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details thereof and any action
taken or proposed to be taken with respect





 









 








83




thereto, (ii) demonstrating compliance with Sections 6.08, 6.09 and 6.10 at the end of the
period to which such financial statements relate and for each applicable period then ended, (iii)
stating whether any change in GAAP or in the application thereof has occurred since the date of the
most recent audited financial statements delivered under clause (a) above (or, prior to the
delivery of any such financial statements, since December 31, 2004) and, if any such change has
occurred, specifying the effect of such change on the financial statements accompanying such
certificate and (iv) specifying the exchange rate determined by the Borrower and used in the annual
operating plan delivered under clause (a) above for the then current fiscal year (which rate the
Borrower agrees to determine reasonably);




          (d) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the
United States Securities and Exchange Commission, or any Governmental Authority succeeding to any
or all of the functions of said Commission, or with any national securities exchange, or
distributed by the Borrower to its shareholders generally, as the case may be;




          (e) other than in connection with the delivery of financial statements for the fiscal period
ended March 31, 2005, not later than one Business Day after each delivery of financial statements
under clause (a) or (b) above, and at such other times as the Borrower may determine, a certificate
of a Financial Officer identifying each Domestic Subsidiary formed or acquired after the Effective
Date and not previously identified in a certificate delivered pursuant to this paragraph, stating
whether each such Domestic Subsidiary is a Consent Subsidiary and describing the factors that shall
have led to the identification of any such Domestic Subsidiary as a Consent Subsidiary;




          (f) from time to time, all information and documentation required to be delivered under
Section 4.04 of the Guarantee and Collateral Agreement;




          (g) other than in connection with the delivery of financial statements for the fiscal period
ended March 31, 2005, not later than one Business Day after each delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower certifying that
the requirements of Section 5.08 have been satisfied in all material respects; and




          (h) promptly following any request therefor, such other information regarding the operations,
business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the
terms of this Agreement or the other Credit Documents, or the perfection of the security interests
created by the Security Documents, as the Administrative Agent or any Lender may reasonably
request.




          Information required to be delivered pursuant to this Section 5.01 shall be deemed to have
been delivered if such information, or one or more annual or quarterly reports containing such
information, shall have been posted by the Administrative Agent on an IntraLinks or similar site to
which the Lenders have been granted access or shall be available on the website of the Securities
and Exchange Commission at




 









 








84




http://www.sec.gov; provided that the Borrower shall deliver paper copies of such
information to any Lender that requests such delivery. Information required to be delivered
pursuant to this Section 5.01 may also be delivered by electronic communications pursuant to
procedures approved by the Administrative Agent.




          SECTION 5.02. Notices of Defaults. The Borrower will furnish to the Administrative
Agent, each Issuing Bank and each Lender prompt written notice of the occurrence of any Default,
together with a statement of a Financial Officer or other executive officer of the Borrower setting
forth the details of the event or development requiring such notice and any action taken or
proposed to be taken with respect thereto.




          SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will cause each
of the Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business, except to the extent that failures to keep in
effect such rights, licenses, permits, privileges and franchises would not be materially likely,
individually or in the aggregate for all such failures, to result in a Material Adverse Change;
provided that the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.04.




          SECTION 5.04. Maintenance of Properties. The Borrower will, and will cause each of
the Subsidiaries to, keep and maintain all its property in good working order and condition,
ordinary wear and tear excepted, except to the extent any failure to do so would not, individually
or in the aggregate, be materially likely to result in a Material Adverse Change (it being
understood that the foregoing shall not prohibit any sale of any assets permitted by Section 6.06).




          SECTION 5.05. Books and Records; Inspection and Audit Rights. (a) The Borrower will, and will cause each of the Subsidiaries to, keep books of record and
account sufficient to enable the Borrower to prepare the financial statements and other information
required to be delivered under Section 5.01. The Borrower will, and will cause each of the
Subsidiaries to, permit any representatives designated by the Administrative Agent (or by any
Lender acting through the Administrative Agent), upon reasonable prior notice, to visit and inspect
its properties (accompanied by a representative of the Borrower) and to discuss its affairs,
finances and condition with its officers, all at such reasonable times and as often as reasonably
requested.




          (b) The Borrower will, and will cause each of the other Grantors to, permit any
representatives designated by the Administrative Agent (including any consultants, accountants,
lawyers and appraisers retained by the Administrative Agent) (or by any Lender acting through the
Administrative Agent) to conduct up to two evaluations and one appraisal in any fiscal year of the
Borrower’s computation of the Borrowing Base and the assets included in the Borrowing Base (and
information relating to Customer Capital Expenditures) and such other assets and properties of the
Borrower or the Subsidiaries as the Administrative Agent or Majority Lenders may reasonably
require, all at reasonable times and upon reasonable advance notice to the Borrower and,




 









 








85




if reasonably requested at any time when Available Commitments shall be less than $250,000,000
or when a Default or Event of Default shall have occurred and shall be continuing, up to one
additional evaluation and up to one additional appraisal in any fiscal year. The Borrower shall
pay the reasonable fees (including reasonable and customary internally allocated fees and expenses
of employees of the Administrative Agent as to which invoices have been furnished) and expenses of
any third party representatives retained by the Administrative Agent as to which invoices have been
furnished to conduct any such evaluation or appraisal, including the reasonable fees and expenses
associated with collateral monitoring services performed by the IB ABL Portfolio Management Group
of the Administrative Agent to the extent not otherwise agreed in writing by the Borrower and the
Administrative Agent. Upon the request of any Lender, the Administrative Agent shall share the
results of any such evaluation or appraisal with such Lender. To the extent required by the
Administrative Agent or the Majority Lenders in their discretion (not to be exercised unreasonably)
as a result of any such evaluation, appraisal or monitoring, the Borrower also agrees to modify or
adjust the computation of the Borrowing Base (which may include maintaining additional reserves or
modifying the eligibility criteria for the components of the Borrowing Base, but not modifying the
specifically enumerated advance rates specified in the definition of the “Borrowing Base”). Any
such modification or adjustment required 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
modification 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.




          (c) In the event that historical accounting practices, systems or reserves relating to the
components of the Borrowing Base are modified in a manner that is adverse to the Lenders in any
material respect, the Borrower will agree to maintain such additional reserves (for purposes of
computing the Borrowing Base) in respect of the components of the Borrowing Base and make such
other adjustments to its parameters for including the components of the Borrowing Base as the
Administrative Agent or the Majority Lenders in their discretion (not to be exercised unreasonably)
shall reasonably require based upon such modifications.




          SECTION 5.06. Compliance with Laws. The Borrower will, and will cause each of the
Subsidiaries to, comply with all laws, including Environmental Laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property, except where the failure to do so,
individually or in the aggregate, would not be materially likely to result in a Material Adverse
Change.




          SECTION 5.07. Insurance. The Borrower will, and will cause each of the Subsidiaries
to, maintain, with financially sound and reputable insurance companies, insurance in such amounts
and against such risks as are customary among companies of established reputation engaged in the
same or similar businesses and operating in the same or similar locations, except to the extent the
failure to do so would not be materially likely to result in a Material Adverse Change. The
Borrower will furnish to the




 









 








86




Administrative Agent or any Lender, upon request, information in reasonable detail as to the
insurance so maintained.




          SECTION 5.08. Guarantees and Collateral. (a) In the event that there shall at any
time exist any North American Subsidiary (other than an Excluded Subsidiary or Consent Subsidiary)
that shall not be a party to the Guarantee and Collateral Agreement or the Canadian Security
Agreements, as the case may be, the Borrower will promptly notify the Collateral Agent (including
in such notice the information that would have been required to be set forth with respect to such
Subsidiary in the Perfection Certificate if such Subsidiary had been one of the Grantors listed
therein) and will, within 30 days (or such longer period as may be reasonable under the
circumstances) after such notification, deliver to the Collateral Agent a supplement to the
Guarantee and Collateral Agreement or the Canadian Security Agreements, as the case may be, in
substantially the form specified therein, duly executed and delivered on behalf of such North
American Subsidiary, pursuant to which such North American Subsidiary will become a party to the
Guarantee and Collateral Agreement and a Subsidiary Guarantor and, if it elects to become a Grantor
or if its Total Assets are greater than $10,000,000 as of December 31, 2004, or if later, as of the
end of the most recent fiscal quarter for which financial statements have been delivered pursuant
to Section 5.01(a) or (b), a Grantor, in each case as defined in the Guarantee and Collateral
Agreement.




          (b) In the event that the Borrower or any other Grantor shall at any time directly own any
Equity Interests of any Subsidiary (other than (i) Equity Interests in any Subsidiary with Total
Assets not greater than $10,000,000 as of December 31, 2004, or if later, as of the end of the most
recent fiscal quarter for which financial statements have been delivered pursuant to Section
5.01(a) or (b), (ii) Equity Interests in any Excluded Subsidiary or Consent Subsidiary and (iii)
Equity Interests already pledged in accordance with this paragraph or Section 4.01(l)), the
Borrower will promptly notify the Collateral Agent and will, within 30 days (or such longer period
as may be reasonable under the circumstances) after such notification, cause such Equity Interests
to be pledged under the Guarantee and Collateral Agreement and cause to be delivered to the
Collateral Agent any certificates representing such Equity Interests, together with undated stock
powers or other instruments of transfer with respect thereto endorsed in blank; provided,
that (A) no Grantor shall be required to pledge more than 65% of outstanding voting Equity
Interests of any Foreign Subsidiary and (B) no Grantor shall be required to pledge any Equity
Interests in any Foreign Subsidiary if a Financial Officer shall have delivered a certificate to
the Administrative Agent certifying that the Borrower has determined, on the basis of reasonable
inquiries in the jurisdiction of such Person, that such pledge would affect materially and
adversely the ability of such Person to conduct its business in such jurisdiction.




          (c) In the event that the Borrower or any other Grantor shall at any time directly own any
Equity Interests of any Material Foreign Subsidiary (other than Equity Interests already pledged in
accordance with this paragraph and Equity Interests in any Consent Subsidiary), the Borrower will
promptly notify the Collateral Agent and will take all such actions as the Collateral Agent shall
reasonably request and as shall be available under applicable law to cause such Equity Interests to
be pledged under a




 









 








87




Foreign Pledge Agreement and cause to be delivered to the Collateral Agent any certificates
representing such Equity Interests, together with undated stock powers or other instruments of
transfer with respect thereto endorsed in blank; provided, that (A) no Grantor shall be
required to pledge more than 65% of outstanding voting Equity Interests of any Foreign Subsidiary
and (B) no Grantor shall be required to pledge any Equity Interests in any Person if a Financial
Officer shall have delivered a certificate to the Administrative Agent certifying that the Borrower
has determined, on the basis of reasonable inquiries in the jurisdiction of such Person, that such
pledge would affect materially and adversely the ability of such Person to conduct its business in
such jurisdiction.




          (d) In the event that the Borrower or any other Grantor shall at any time own any Material
Intellectual Property (other than Material Intellectual Property as to which the actions required
by this paragraph have already been taken), the Borrower will promptly notify the Collateral Agent
and will file all Uniform Commercial Code financing statements or other applicable personal
property security law filings and recordations with the Patent and Trademark Office or the Canadian
Intellectual Property Office as shall be required by law or reasonably requested by the Collateral
Agent to be filed or recorded to perfect the Liens intended to be created on the Collateral (to the
extent such Liens may be perfected by filings under the Uniform Commercial Code or other personal
property security legislation as in effect in any applicable jurisdiction or by filings with the
United States Patent and Trademark Office or the Canadian Intellectual Property Office);
provided, that if the consents of Persons other than the Borrower and the Wholly Owned
Subsidiaries would be required under applicable law or the terms of any agreement in order for a
security interest to be created in any Material Intellectual Property under the Guarantee and
Collateral Agreement or the Canadian Security Agreements, as the case may be, a security interest
shall not be required to be created in such Material Intellectual Property prior to the obtaining
of such consents. The Borrower will endeavor in good faith to obtain any consents required to
permit any security interest in Material Intellectual Property to be created under the Guarantee
and Collateral Agreement or the Canadian Security Agreements, as the case may be.




          (e) The Borrower will, and will cause each Subsidiary to, execute any and all further
documents, financing statements, agreements and instruments, and take all such further actions, as
may be reasonably requested by the Collateral Agent in order to cause the security interests
purported to be created by the Security Documents or required to be created under the terms of this
Agreement to constitute valid security interests, perfected in accordance with this Agreement.




          SECTION 5.09. Borrowing Base Certificate. (a) The Borrower will furnish to the
Administrative Agent, no later than (i) 15 days following the end of each fiscal month (or, if such
day is not a Business Day, the next succeeding Business Day), a completed Borrowing Base
Certificate showing the Borrowing Base as of the close of business on the last day of such
immediately preceding fiscal month as outlined in Exhibit K, (ii) if Available Commitments shall be
$150,000,000 or less for each of five consecutive Business Days, on the Wednesday (or if such
Wednesday is not a Business Day, on the next succeeding Business Day) of the next succeeding week
following the




 









 








88




last day of such five consecutive Business Day period, an interim calculation of Eligible
Accounts Receivable as of Saturday of the immediately preceding week, and (iii) if requested by the
Administrative Agent, at any other time when the Administrative Agent reasonably believes that the
then existing Borrowing Base Certificate is materially inaccurate, as soon as reasonably
practicable but in no event later than five Business Days after such request, a completed Borrowing
Base Certificate showing the Borrowing Base as of the date so requested, in each case with such
supporting documentation and additional reports with respect to the Borrowing Base as the
Administrative Agent may reasonably request.




          (b) The Borrower will furnish to the Administrative Agent at the time of each delivery of the
Borrowing Base Certificate under clause (a) above (and in any event not later than 15 days
following the end of each fiscal month (or, if such day is not a Business Day, the next succeeding
Business day)), a certificate of a Financial Officer in the form attached as Annex I to Exhibit K
hereto specifying, to the best of such Financial Officer’s knowledge, as of the date of the
information reported in such Borrowing Base Certificate (i) the aggregate cash and cash equivalents
of the Borrower and its Subsidiaries held in the United States, (ii) the aggregate cash and cash
equivalents of the Borrower and its Subsidiaries held other than in the United States, (iii) for
each of this Agreement and the European Facilities Agreement, the undrawn amount available to be
drawn hereunder and thereunder, respectively, (iv) the aggregate accounts payable position of the
Borrower and the Domestic Subsidiaries and (v) the unearned income on the Borrower’s balance sheet
that represents funded Customer Capital Expenditures relating to future production.




ARTICLE VI




Negative Covenants




          Until the Commitments shall have been reduced to zero and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Administrative Agent, the Lenders and the Issuing Banks that:




          SECTION 6.01. Indebtedness and Preferred Equity Interests. The Borrower will not, and
will not permit any Consolidated Subsidiary to, create, incur, assume or permit to exist any
Indebtedness, or issue any preferred stock or other preferred Equity Interests, except:




          (a) Indebtedness under this Agreement (and related Indebtedness under the Security Documents);




          (b) Indebtedness under the Second Lien Agreement and the European Facilities Agreement (and
related Indebtedness under the “Security Documents”, as defined in such Agreements) in an amount
for each such Agreement not greater than the




 









 








89




aggregate amount of the outstanding loans and unfunded commitments of the lenders thereunder
on the Effective Date;




          (c) other Indebtedness existing (or incurred pursuant to commitments to lend existing) on the
date hereof, substantially all of which is set forth or described in Schedule 6.01 (which Schedule
6.01 (i) sets forth substantially all such Indebtedness and commitments outstanding on December 31,
2004, and (ii) shall be modified and delivered to the Administrative Agent within 60 days after the
date hereof to reflect substantially all of the Indebtedness and commitments outstanding on the
date hereof);




          (d) Indebtedness owed to the Borrower or any Subsidiary and permitted under Section 6.05(b);




          (e) Guarantees expressly permitted under Section 6.05;




          (f) Indebtedness (including Securitization Transactions) of Foreign Subsidiaries in an
aggregate principal amount (excluding Indebtedness existing or incurred under the other clauses of
this Section 6.01 and under Section 6.05(b)) not greater than $600,000,000 outstanding at any time;




          (g) Securitization Transactions (other than those permitted by paragraphs (f), (j), (l), (r)
and (t) of this Section) in an aggregate amount not greater than
€300,000,000 outstanding at any
time;




          (h) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital Lease Obligations and
any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien
on any such assets prior to the acquisition thereof; provided that such Indebtedness is
incurred prior to or within 180 days after such acquisition or the completion of such construction
or improvement;




          (i) Attributable Debt of the Borrower or any Subsidiary incurred pursuant to Sale and
Leaseback Transactions permitted by Section 6.03;




          (j) Indebtedness of any Person that shall have become a Subsidiary after the date hereof;
provided that such Indebtedness shall have existed at the time such Person became a
Subsidiary and shall not have been created in contemplation of or in connection with such Person
becoming a Subsidiary;




          (k) obligations of the Borrower and the Subsidiaries existing on the date hereof (other than
Guarantees, Securitization Transactions and Sale and Leaseback Transactions), that would not
constitute Indebtedness that would appear as liabilities on a consolidated balance sheet of the
Borrower under GAAP as in effect on the date hereof and that, as a result of changes in GAAP after
the date hereof shall be required to be reflected on such a balance sheet as liabilities;




          (l) Indebtedness of any Subsidiary that is not a Consolidated Subsidiary under GAAP as in
effect on the date hereof (and in the event that any such Subsidiary




 









 








90




shall become a Consolidated Subsidiary, Indebtedness of such Subsidiary existing at the time
it becomes a Consolidated Subsidiary);




          (m) any extension, renewal, refinancing or replacement of any Indebtedness referred to in any
of clauses (a) through (l) above that does not increase the outstanding principal amount thereof
(except to the extent necessary to pay the fees, expenses, underwriting discounts and prepayment
premiums in connection therewith) or change the parties directly or indirectly responsible for the
payment of such Indebtedness; provided that (i) any such refinancing or replacement
Indebtedness shall not shorten the maturity of the Indebtedness refinanced or replaced or add a
requirement not previously applicable to the Indebtedness refinanced or replaced that such
Indebtedness be prepaid, redeemed, repurchased or defeased on one or more scheduled dates or upon
the happening of one or more events (other than events of default or change of control events)
before the maturity of the Indebtedness being refinanced or replaced; (ii) (A) any such refinancing
or replacement of Indebtedness under any revolving credit or similar facility shall be accompanied
by the termination of the portion of the commitments under such facility under which such
refinanced or replaced Indebtedness shall have been outstanding and (B) any extension, renewal,
refinancing or replacement of Indebtedness under any revolving credit or similar facility may be in
an aggregate principal amount equal to the commitments under such facility at the time of such
extension, renewal, refinancing or replacement, whether or not such commitments have been drawn at
the time of such extension, renewal, refinancing or replacement; (iii) in the case of the
refinancing of any Indebtedness that is not permitted to be prepaid, redeemed, defeased or
otherwise discharged prior to its maturity, or in respect of which the Borrower determines in its
sole discretion that the costs or difficulty of extinguishing such Indebtedness at the time such
refinancing Indebtedness is incurred outweigh the advantages to the Borrower of such
extinguishment, any such refinancing Indebtedness may be incurred up to one year in advance of the
maturity of such Indebtedness to be refinanced and the proceeds thereof may, in lieu of being
applied to refinance such Indebtedness, be used for any purpose permitted under this Agreement
prior to the refinancing of such Indebtedness; and (iv) any such refinancing Indebtedness may be
incurred up to six months after the extinguishment of the Indebtedness being refinanced;




          (n) Indebtedness arising from the honoring of a check, draft or similar instrument presented
by the Borrower or a Subsidiary against insufficient funds;




          (o) Indebtedness pursuant to any Swap Agreement entered into to hedge against risks to which
the businesses of the Borrower and the Subsidiaries are exposed, and not for speculative purposes,
or in order to effectively cap, collar or exchange interest rates (from fixed to floating rates,
from one floating rate to another floating rate or otherwise) with respect to any interest-bearing
liability or investment of the Borrower or any Subsidiary;




          (p) unsecured surety and performance bonds entered into in the ordinary course of business and
not securing Indebtedness;




 









 








91




          (q) other unsecured Indebtedness for borrowed money of the Borrower, or preferred Equity
Interests of the Borrower (“Permitted Preferred Stock”), or any combination thereof, not
maturing or required to be prepaid, redeemed, repurchased or defeased prior to the Commitment
Termination Date, whether on one or more scheduled dates or upon the happening of one or more
events (other than events of default (or similar events relating to Equity Interests) or change of
control events), and any Guarantee of such Indebtedness provided by any Subsidiary that is a
Guarantor under the Guarantee and Collateral Agreement that is subordinated to the Obligations on
terms in no material respect less favorable to the Lenders than market terms prevailing at the time
such Guarantee is issued; provided that the aggregate principal or stated amount of such
Indebtedness (or of the Indebtedness it Guarantees) or preferred Equity Interests created or
assumed pursuant to this clause (q) and outstanding at any time, without duplication, shall not,
taken together with the aggregate principal amount of Indebtedness outstanding under clause (s)
below, exceed $2,400,000,000; provided further, that for purposes of this
paragraph, any trust preferred stock or similar preferred Equity Interest issued by a special
purpose entity substantially all the assets of which consist of unsecured Indebtedness or preferred
Equity Interests of the Borrower meeting the requirements of this paragraph will be deemed to be a
preferred Equity Interest of the Borrower;




          (r) a Securitization Transaction in an aggregate amount not greater than $15,000,000
outstanding at any time involving accounts receivable, rights to future lease payments or residuals
or other financial assets, and related property of Goodyear Australia Pty Limited;




          (s) Senior Subordinated-Lien Indebtedness for borrowed money of the Borrower in an aggregate
principal amount outstanding not to exceed $1,400,000,000 at any time, in each case not maturing or
required to be prepaid, redeemed, repurchased or defeased prior to the Commitment Termination 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 the Borrower 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 the
Borrower’s business or used to prepay, redeem or purchase other Indebtedness (including Loans
hereunder) or to provide cash collateral for reimbursement obligations in respect of letters of
credit (including the Letters of Credit)) (it being agreed that provisions comparable to those set
forth in the Junior Lien Indenture or the Third Lien Agreement are customary), and related
Guarantees by the Subsidiary Guarantors; provided that the Senior Subordinated-Lien
Collateral Agent for such Senior Subordinated-Lien Indebtedness shall have executed and delivered
(with a copy to the Administrative Agent), on its own behalf and on behalf of the obligees on such
Senior Subordinated-Lien Indebtedness, an Accession Agreement under the Lien Subordination and
Intercreditor Agreement pursuant to which the obligations of the Borrower and the Subsidiaries in
respect of such Senior Subordinated-Lien Indebtedness shall have become Designated Junior
Obligations under the Lien Subordination and Intercreditor Agreement;




 









 








92




          (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




          (u) other Indebtedness in an aggregate amount at any time outstanding not to exceed
$50,000,000.




          SECTION 6.02. Liens. The Borrower will not, and will not permit any Consolidated
Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned
or hereafter acquired by it, or assign or sell any income or revenues (including accounts
receivable) or rights in respect of any thereof (other than sales of delinquent or doubtful
receivables and other than any transaction excluded from the definition of “Securitization
Transaction” under the proviso thereto), except:




          (a) Liens created under the Credit Facilities Documents;




          (b) Permitted Encumbrances;




          (c) any Lien on any property or asset of the Borrower or any Subsidiary existing on the date
hereof and set forth in Schedule 6.02; provided that (i) such Lien shall not apply to any
other property or asset of the Borrower or any Subsidiary and (ii) such Lien shall secure only
those obligations which it secured on the date hereof and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;




          (d) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or asset of any Person that shall have
become a Subsidiary after the date hereof prior to the time such Person became a Subsidiary;
provided that (i) such Lien secures Indebtedness permitted by clause (h) or (j) of Section
6.01, (ii) such Lien shall not have been created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (iii) such Lien shall not
apply to any other property or assets of the Borrower or any Subsidiary, and (iv) such Lien shall
secure only those obligations which it shall have secured on the date of such acquisition or the
date such Person shall have become a Subsidiary, as the case may be, and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount thereof;




          (e) Liens on assets acquired, constructed or improved by the Borrower or any Subsidiary;
provided that (i) such Liens secure Indebtedness permitted by clause (h) or (j) of Section
6.01, (ii) such Liens and the Indebtedness secured thereby are incurred prior to or within 180 days
after such acquisition or the completion of such construction or improvement, (iii) the
Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such
assets and (iv) such Liens shall not apply to any other property or assets of the Borrower or any
Subsidiary;




          (f) Liens on assets of Foreign Subsidiaries securing Indebtedness incurred under Section
6.01(f), and (ii) in connection with Securitization Transactions permitted under Section 6.01(f) or
(t);




 









 








93




          (g) in connection with Securitization Transactions permitted under Section 6.01(g) and (r);




          (h) Liens in connection with Sale and Leaseback Transactions permitted by Section 6.03;




          (i) Liens on specific items of inventory or other goods (and proceeds thereof) securing
obligations in respect of bankers’ acceptances issued for the account of the Borrower or a
Subsidiary to facilitate the purchase, shipment or storage of such items of inventory or other
goods;




          (j) Liens on specific items of inventory or other goods and related documentation (and
proceeds thereof) securing reimbursement obligations in respect of trade letters of credit issued
to ensure payment of the purchase price for such items of inventory or other goods;




          (k) any interest of a lessor in property subject to an operating lease;




          (l) Liens referred to in policies of title insurance with respect to Mortgaged Property
delivered to the Administrative Agent prior to the Effective Date;




          (m) Liens on assets constituting Collateral (other than any such Collateral constituting
Indenture Properties (as defined in the Guarantee and Collateral Agreement) or “manufacturing
facilities” (as defined in the Swiss Franc Note Agreement), including Liens on the Borrower’s
headquarters facilities in Akron, Ohio, created under any Senior Subordinated-Lien Indebtedness
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 on the terms set forth in the Lien Subordination and Intercreditor Agreement;




          (n) Liens on assets constituting Collateral securing Indebtedness incurred under Section
6.01(m) to refinance Indebtedness under the Second Lien Agreement, but only if any such Liens shall
be subordinated, on the terms set forth in the Lenders Lien Subordination and Intercreditor
Agreement, to the Liens securing the Obligations to the same extent as the Liens on such assets
securing the Indebtedness under the Second Lien Agreement;




          (o) Liens on assets constituting Collateral (as defined in the European Facilities Agreement)
securing Indebtedness incurred under Section 6.01(m) to refinance Indebtedness under the European
Facilities Agreement;




          (p) other Liens on assets not constituting Collateral; provided that the aggregate
amount of the Indebtedness and other obligations secured by such Liens shall at no time exceed
$50,000,000.




          SECTION 6.03. Sale and Leaseback Transactions. The Borrower will not, and will not
permit any of the Consolidated Subsidiaries to, enter into or be party to any Sale and Leaseback
Transaction other than (a) Sale and Leaseback Transactions




 









 








94




existing on the date hereof and any replacement Sale and Leaseback Transactions that do not
involve assets other than those subject to the Sale and Leaseback Transactions they replace and do
not increase the Attributable Debt related thereto and (b) other Sale and Leaseback Transactions
the aggregate outstanding Attributable Debt in respect of which does not exceed $125,000,000.




          SECTION 6.04. Fundamental Changes. The Borrower will not, and will not permit any
Subsidiary to, merge into, amalgamate or consolidate with any other Person, or permit any other
Person to merge into, amalgamate or consolidate with it, or sell, transfer, lease or otherwise
dispose of (in one transaction or in a series of transactions) assets (including capital stock of
Subsidiaries) constituting all or substantially all the assets of the Borrower and its Consolidated
Subsidiaries, taken as a whole, or, in the case of the Borrower, liquidate or dissolve, except
that, if at the time thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing (i) any Subsidiary may merge into the Borrower in a transaction in which
the Borrower is the surviving corporation, (ii) any Subsidiary may merge into any other Subsidiary
in a transaction in which the surviving entity is a Subsidiary; except that no Domestic Subsidiary
may merge into a Foreign Subsidiary, (iii) any sale of a Subsidiary made in accordance with Section
6.06 may be effected by a merger of such Subsidiary and (iv) any Subsidiary may sell, transfer,
lease or otherwise dispose of its assets to the Borrower or to another Subsidiary; provided
that any Investment that takes the form of a merger, amalgamation or consolidation (other than any
merger, amalgamation or consolidation involving the Borrower) that is expressly permitted by
Section 6.05 shall be permitted under this Section 6.04.




          SECTION 6.05. Investments, Loans, Advances and Guarantees. The Borrower will not, and
will not permit any of the Consolidated Subsidiaries to, purchase or acquire (including pursuant to
any merger with any Person that was not a Wholly Owned Subsidiary prior to such merger) any capital
stock, evidences of Indebtedness or securities (including any option, warrant or other right to
acquire any of the foregoing) of, make any loans or advances to, make any Guarantee of any
obligations of, or make any investment in, any other Person, or purchase or otherwise acquire (in
one transaction or a series of transactions) any assets of any other Person constituting a business
unit (each of the foregoing, an “Investment” in such Person), except:




          (a) Permitted Investments;




          (b) Investments by the Borrower and the Subsidiaries in Subsidiaries or the Borrower;
provided that no Investment shall made by any Credit Party in a Subsidiary that is not a
Credit Party pursuant to this clause (b) except Investments (A) to fund working capital needs of
such Subsidiary, (B) to replace amounts available under credit facilities or other financings of
such Subsidiary existing on the date hereof that shall have matured or shall have been terminated
or reduced, (C) to cover losses from operations of such Subsidiary and (D) to provide funds for
Capital Expenditures or acquisitions permitted to be made by such Subsidiary; provided
further, that Equity Interests in the European JV or any subsidiary thereof may not be
transferred to any Subsidiary that is not the European JV or any subsidiary thereof;




 









 








95




          (c) any Investment by a Credit Party in a Consolidated Subsidiary that is not a Credit Party
in the form of a transfer of assets used in or directly relating to any manufacturing process (but
excluding any cash or financial asset) from a jurisdiction having higher manufacturing costs to a
jurisdiction having lower manufacturing costs; provided that after giving effect to any
such transfer or related series of transfers of assets having an aggregate book value in excess of
$5,000,000, the aggregate book value of all assets subject to all such transfers involving assets
having an aggregate book value in excess of $5,000,000 from and after the Effective Date, shall not
exceed $250,000,000; and any Investment by Goodyear Dunlop Tires NA in a Consolidated Subsidiary;




          (d) Guarantees expressly permitted under Section 6.01;




          (e) the acquisition of any Equity Interest; provided that the aggregate consideration
paid by the Borrower and the Subsidiaries in all such acquisitions (including Indebtedness assumed
by the Borrower or any Subsidiary) shall not exceed $400,000,000 plus the aggregate amount of
Equity Proceeds received after the Effective Date that shall not have been used (i) to make Capital
Expenditures under clause (b) of Section 6.08 or (ii) to make other Investments under this clause
(e);




          (f) Guarantees not permitted by any other clause of this Section 6.05 incurred in the ordinary
course of business and consistent with past practice in an aggregate amount for all such Guarantees
at any time outstanding not exceeding $50,000,000;




          (g) Investments received in connection with the bankruptcy or reorganization of, or settlement
of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary
course of business;




          (h) Investments for consideration consisting solely of common stock of the Borrower;




          (i) Equity Interests and debt obligations obtained by the Borrower or any Subsidiary as
consideration for any asset sale permitted under Section 6.06;




          (j) (i) Investments in an aggregate amount not greater than $150,000,000 during the term of
this Agreement in Persons in which the Borrower or any Subsidiary had an Equity Interest on the
date hereof that are (A) required to be made as a result of the exercise by other holders of Equity
Interests in such Persons of put options or (B) required to avoid dilution of the Borrower’s or
such Subsidiary’s percentage ownership interest therein; (ii) Investments in an aggregate amount
not greater than $150,000,000 during the term of this Agreement consisting of the purchase of
Equity Interests in or any business unit owned by or comprising part of the Person specified on
Schedule 6.05(j)(ii); and (iii) Investments in Subsidiaries in which Persons other than the
Borrower or any Subsidiary have minority Equity Interests at the time such Investments are made
consisting of purchases of such minority interests in an aggregate amount not greater than
$100,000,000 during the term of this Agreement;





 










 






96




          (k) any Investment that (i) is included in Capital Expenditures for the period during which
such Investment is made and that is permitted under Section 6.08 or (ii) consists of the
acquisition of all the Equity Interests in a Person (other than such portion of the Equity
Interests in any Foreign Subsidiary as may be required by local law to be or pursuant to local
market practice is customarily owned by a Person other than the Borrower or a Subsidiary) not less
than 90% of the assets of which are capital assets and that is permitted under Section 6.08 (the
amount of the Capital Expenditure in respect thereof for purposes of determining compliance with
Section 6.08 being deemed to be the consideration paid in respect of such acquisition plus the
aggregate amount of the Indebtedness of such Person outstanding immediately after such
acquisition);




          (l) Investments in Tire & Wheel Assemblies, Inc. in an aggregate amount at any time
outstanding not greater than $50,000,000;




          (m) loans and advances to officers and employees of the Borrower and its Subsidiaries in the
ordinary course of business;




          (n) Investments in prepaid expenses in the ordinary course of business or in respect of
required pension fund contributions;




          (o) negotiable instruments held for collection and lease, utility, workers’ compensation,
performance and other similar deposits in the ordinary course of business;




          (p) Investments in any Subsidiary that engages in no activities other than those related to a
Securitization Transaction in order to capitalize such Subsidiary at a level customary for a
securitization vehicle in such a transaction;




          (q) Investments constituting loans or advances by the European JV or any J.V. Subsidiary (as
defined in the European Facilities Agreement) to the Borrower or any of its Subsidiaries as part of
cash management consistent with past practices;




          (r) Investments of the proceeds of any Securitization Transaction under Section 6.01(r) in
South Pacific Tyres; and




          (s) Investments not permitted by any other clause of this Section in an aggregate amount at
any time outstanding not greater than $50,000,000.




          SECTION 6.06. Asset Dispositions. The Borrower will not, and will not permit any of
the Consolidated Subsidiaries to, sell, transfer or otherwise dispose of, including by means of any
lease or license that is in effect a disposition, (each, a “Sale”, which term shall include
any transfer designated by the Borrower as a Sale under Section 12.13(e) of the Guarantee and
Collateral Agreement) any asset, including any Equity Interest, owned by it, nor will the Borrower
permit any of the Subsidiaries to issue any additional Equity Interest in such Subsidiary, except:




          (a) Sales in the ordinary course of business of inventory and worn out or surplus equipment
and Permitted Investments, and Sales in the ordinary course of business and consistent with past
practices of assets other than property, plant,




 









 








97



Investments in Subsidiaries and Intellectual Property; provided that licensing of
Intellectual Property in the ordinary course of business and consistent with past practices shall
be permitted;




          (b) Sales to the Borrower or a Subsidiary; provided that any such sale, transfer or
disposition by a Credit Party to a Subsidiary that is not a Credit Party shall be made in
compliance with Section 6.05;




          (c) Sales of accounts receivable or interests therein in Securitization Transactions permitted
under Sections 6.01(f), (g), (j), (l), (r) and (t) or in transactions excluded from the definition
of “Securitization Transaction” under the proviso thereto;




          (d) Sales of assets in Sale and Leaseback Transactions permitted under Section 6.03;




          (e) (i) Sales of any Equity Interests in any Person that is not a Subsidiary and (ii) Sales,
for tax planning or other business purposes, consistent with the Borrower’s past practices, of any
Equity Interests in Foreign Subsidiaries to any Foreign Subsidiary whose Equity Interests have been
pledged under any of the Security Documents; provided in the case of any Sale under this
clause (ii) that the Collateral Agent is hereby authorized and directed to release any security
interest under any Security Document in any Equity Interest subject to such Sale if (A) the seller
thereof is the Borrower or a Domestic Subsidiary and such release is required in order to obtain
the desired amount of consideration from such Sale or (B) after giving effect to such Sale the
aggregate fair value of all Equity Interests subject to Sales under this clause (ii), other than
those referred to in clause (A), when taken together with all Sales under clause (i)(1)(B) below,
shall not exceed $100,000,000;




          (f) Sales to Persons other than the Borrower or any Subsidiary of assets listed on Schedule
6.06; provided that (i) at least 50% of the consideration received in each such Sale of the
assets listed on Part I of Schedule 6.06 shall consist of cash and (ii) at least 75% of the
consideration received in each such Sale listed on Part II of Schedule 6.06 shall consist of cash;




          (g) Sales to the extent the aggregate value of the consideration received in any such Sale or
series of related Sales does not exceed $10,000,000;




          (h) Investments expressly permitted by Section 6.05; and




          (i) Sales (other than Sales of accounts receivable or inventory that are not sold in
connection with the Sale of a business or line of business) that are not permitted by any other
clause of this Section 6.06; provided that (1) the aggregate consideration received in
respect of all such Sales in reliance upon this clause (i) shall not exceed (A) $600,000,000 in the
aggregate or (B) when taken together with all Sales under clause (e)(ii)(B) above, $100,000,000 in
the aggregate with respect to (x) Sales of Equity Interests in Foreign Subsidiaries pledged as of
the Effective Date pursuant to the Security Documents to secure the Obligations and (y) Sales of
all or substantially all of the assets of Foreign Subsidiaries whose Equity Interests have been
pledged as of the Effective




 









 








98



Date pursuant to the Security Documents to secure the Obligations, (2) all Sales permitted
pursuant to this clause (i) shall be made for fair value, as reasonably determined by the Borrower,
and (3) except with respect to $100,000,000 of consideration (determined net of any cash or Cash
Equivalents subsequently realized on the Sale or the repayment of any portion of non-cash
consideration received in connection with a Sale that represented non-cash consideration in excess
of 25% of the total consideration received in such Sale) for all such Sales in the aggregate, at
least 75% of the consideration received in each such Sale shall consist of cash or Cash
Equivalents.




          SECTION 6.07. Restricted Payments. (a) The Borrower will not, and will not permit
any of the Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except that (i) the Borrower may declare and pay dividends payable solely in
additional shares of its common stock, (ii) so long as no Event of Default shall exist, the
Borrower may declare and pay cash dividends and other regularly scheduled distributions on shares
of its Permitted Preferred Stock, (iii) Subsidiaries may make Restricted Payments with respect to
any class of their respective Equity Interests so long as such Restricted Payments are made ratably
or on a basis more favorable to the Borrower and its Affiliates than ratably, (iv) the Borrower may
make Restricted Payments pursuant to and in accordance with stock option or rights plans or other
benefit plans for management, employees, directors or consultants of the Borrower or any
Subsidiary, (v) the Borrower and its Subsidiaries may make Investments in Subsidiaries expressly
permitted by Section 6.05(b), Section 6.05(e) or Section 6.05(s) and Investments expressly
permitted under Section 6.05(j), (vi) the Borrower may declare, so long as no Event of Default
shall exist, and pay previously declared, cash dividends on its common stock in an aggregate amount
during any fiscal year not to exceed $10,000,000 and (vii) the Borrower may during any Dividend
Availability Period declare, so long as no Event of Default shall exist, and pay previously
declared, cash dividends on its common stock in an aggregate amount during any fiscal year not to
exceed $50,000,000.




          (b) The Borrower will not, nor will it permit any of the Subsidiaries to, make or agree to
make, directly or indirectly, any payment or other distribution (whether in cash, securities or
other property), except payments or distributions made in common stock of the Borrower, to any
Person other than the Borrower or a Subsidiary in respect of principal of or interest on any
Indebtedness the maturity of which is one year or more thereafter, or any payment or other
distribution (whether in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancelation
or termination of any Indebtedness of the Borrower or any Subsidiary the maturity of which is one
year or more thereafter, except:




          (i) payments and prepayments under this Agreement (ratably in accordance with the Revolving
Applicable Percentages and the DF Applicable Percentages of the Lenders) and the other Credit
Facilities Agreements;




 









 








99




          (ii) regularly scheduled and other mandatory interest and principal payments (including
pursuant to sinking fund requirements) as and when due in respect of any Indebtedness;




          (iii) refinancings of Indebtedness to the extent permitted by Section 6.01(m), including the
payment of customary fees, costs and expenses in connection therewith, and including additional
cash payments in an aggregate amount for all such refinancings not to exceed, in the case of any
refinancing, 5% of the principal amount being refinanced;




          (iv) the payment of secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness;




          (v) if no Event of Default shall exist or would exist after giving effect thereto,
repurchases, repayments or prepayments of Designated Debt;




          (vi) if no Event of Default shall exist or would exist after giving effect thereto,
repurchases, repayments or prepayments of Indebtedness of Foreign Subsidiaries in an aggregate
amount not greater than $100,000,000 during the term of this Agreement; and




          (vii) if no Event of Default shall exist, other repurchases, repayments or prepayments of
Indebtedness in an aggregate amount not greater than $25,000,000 in any calendar year.




          SECTION 6.08. Capital Expenditures. The Borrower and the Subsidiaries will not make
Capital Expenditures in any fiscal year in an amount greater than the sum of (a) $700,000,000;
provided that to the extent that Capital Expenditures in any fiscal year are less than
$700,000,000 plus any additional amount carried forward to such fiscal year pursuant to this
proviso, such unused amount may be carried forward to the following fiscal year, plus (b) the
aggregate amount of Equity Proceeds received after the Effective Date that shall not have been used
(i) to make Capital Expenditures under this clause (b) or (ii) to make Investments under Section
6.05(e).




          SECTION 6.09. Interest Expense Coverage Ratio. The Borrower will not permit the ratio
of (a) Consolidated EBITDA to (b) Consolidated Interest Expense for any period of four consecutive
fiscal quarters to be less than 2.00 to 1.00.




          SECTION 6.10. Senior Secured Indebtedness Ratio. The Borrower will not permit the
ratio at the end of any fiscal quarter of (a) Consolidated Net Secured Indebtedness at such date to
(b) Consolidated EBITDA for the period of four consecutive fiscal quarters ended at such date, to
be greater than 3.50 to 1.00.




 









 








100




ARTICLE VII




Events of Default




          SECTION 7.01. Events of Default. If any of the following events (“Events of
Default”) shall occur:




          (a) the Borrower shall fail to pay any principal of any Loan or any reimbursement obligation
in respect of any LC Disbursement when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or otherwise;




          (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount referred to in clause (a) of this Article) payable under this Agreement or
any other Credit Document, when and as the same shall become due and payable, and such failure
shall continue unremedied for a period of (i) in the case of fees and interest payable under
Sections 2.10 and 2.11, respectively, five Business Days, and (ii) in the case of any other fees,
interest or other amounts (other than those referred to in paragraph (a) above), five Business Days
after the earlier of (A) the day on which a Financial Officer first obtains knowledge of such
failure and (B) the day on which written notice of such failure shall have been given to the
Borrower by the Administrative Agent or any Lender or Issuing Bank;




          (c) any representation or warranty made or deemed made by or on behalf of any Credit Party in
any Credit Document or any amendment or modification thereof or waiver thereunder shall prove to
have been incorrect when made or deemed made in any respect material to the rights or interests of
the Lenders under the Credit Documents;




          (d) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, 5.03 (with respect to the Borrower’s existence) or 5.08 or in Article
VI;




          (e) any Credit Party shall fail to observe or perform any covenant, condition or agreement
contained in any Credit Document (other than those specified in clauses (a), (b) and (d) of this
Article), and such failure shall continue unremedied for a period of 30 days after written notice
thereof from the Administrative Agent to the Borrower (which notice will be given at the request of
any Lender); provided that the failure of any Credit Party to perform any covenant,
condition or agreement made in any Credit Document (other than this Agreement) shall not constitute
an Event of Default unless such failure shall be (i) wilful or (ii) material to the rights or
interests of the Lenders under the Credit Documents;




          (f) the Borrower or any Consolidated Subsidiary shall fail to make any payment of principal in
respect of any Material Indebtedness at the scheduled due date thereof and such failure shall
continue beyond any applicable grace period, or any event or condition occurs that results in any
Material Indebtedness (other than any Securitization Transaction existing on March 31, 2003)
becoming due or being required




 









 








101



to be prepaid, repurchased, redeemed, defeased or terminated prior to its scheduled maturity
(other than, in the case of any Securitization Transaction, any event or condition not caused by an
act or omission of the Borrower or any Subsidiary, if the Borrower shall furnish to the
Administrative Agent a certificate to the effect that after the termination of such Securitization
Transaction the Borrower and the Subsidiaries that are a party thereto have sufficient liquidity to
operate their businesses in the ordinary course); provided that this clause (f) shall not
apply to (i) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness in accordance with the terms and conditions of
this Agreement or (ii) Material Indebtedness of any Foreign Subsidiary if the Borrower is unable,
due to applicable law restricting Investments in such Foreign Subsidiary, to make an Investment in
such Foreign Subsidiary to fund the payment of such Material Indebtedness;




          (g) any event or condition occurs that continues beyond any applicable grace period and
enables or permits the holder or holders of any Material Indebtedness (other than any
Securitization Transaction existing on March 31, 2003) or any trustee or agent on its or their
behalf to cause such Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption, defeasance or termination thereof, prior to its scheduled maturity; provided,
that (i) no Event of Default shall occur under this paragraph (g) as a result of any event or
condition relating to any Securitization Transaction, other than any default in the payment of
principal or interest thereunder and (ii) this clause (g) shall not apply to (A) secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness in accordance with the terms and conditions of this Agreement or
(B) Material Indebtedness of any Foreign Subsidiary if the Borrower is unable, due to applicable
law restricting Investments in such Foreign Subsidiary, to make an Investment in such Foreign
Subsidiary to fund the payment of such Material Indebtedness;




          (h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization, moratorium, suspension of payment or other relief in
respect of the Borrower or any Material Subsidiary or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now
or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Material Subsidiary or for a substantial
part of its assets, and, in any such case, such proceeding or petition shall continue undismissed
for 90 days or an order or decree approving or ordering any of the foregoing shall be entered;




          (i) the Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization, bankruptcy, moratorium, suspension of
payment or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in clause (h) of this Article,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Material Subsidiary or for a substantial
part of its assets,




 









 








102



(iv) make a general assignment for the benefit of creditors or (v) take any action for the
purpose of effecting any of the foregoing;




          (j) the Borrower or any Material Subsidiary shall admit in writing its inability or fail
generally to pay its debts as they become due;




          (k) an ERISA Event shall have occurred that, when taken together with all other ERISA Events
that have occurred, would be materially likely to result in a Material Adverse Change;




          (l) Liens created under the Security Documents shall not be valid and perfected Liens on a
material portion of the Collateral;




          (m) any Guarantee of the Obligations under the Guarantee and Collateral Agreement or the
Canadian Security Documents shall fail to be a valid, binding and enforceable Guarantee of one or
more Subsidiary Guarantors where such failure would constitute or be materially likely to result in
a Material Adverse Change; or




          (n) a Change in Control shall occur;



then, and in every such event (other than an event with respect to the Borrower described in clause
(h) or (i) of this Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Majority Lenders shall, by notice to the
Borrower, take any or all of the following actions, at the same or different times: (i) reduce the
Commitments to zero, and thereupon the Commitments and each LC Commitment shall immediately be
reduced to zero, (ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may thereafter be declared
to be due and payable), and thereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower, and (iii) demand cash
collateral with respect to any Letter of Credit pursuant to Section 2.04(j) (it being agreed that
such demand will be deemed to have been made with respect to all Letters of Credit if any Loans are
declared to be due and payable as provided in the preceding clause (ii)); and in case of any event
with respect to the Borrower described in clause (h) or (i) of this Article, the Commitments shall
automatically be reduced to zero, and the principal of the Loans then outstanding, together with
accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder,
shall automatically become due and payable, and the Borrower’s obligation to provide cash
collateral for Letters of Credit shall become effective, in each case without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the Borrower.




 









 








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ARTICLE VIII




The Agents




          Each of the Lenders and Issuing Banks hereby irrevocably appoints the Agents as its agents and
authorizes the Agents to take such actions on its behalf and to exercise such powers as are
delegated to the Agents by the terms hereof and of the other Credit Documents, together with such
actions and powers as are reasonably incidental thereto.




          The bank or banks serving as the Agents hereunder shall have the same rights and powers in
their capacity as Lenders or Issuing Banks as any other Lender or Issuing Bank and may exercise the
same as though they were not Agents, and such bank or banks and their Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if they were not Agents hereunder.




          The Agents shall not have any duties or obligations except those expressly set forth herein.
Without limiting the generality of the foregoing (a) the Agents shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing,
(b) the Agents shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby that the
Agents are required to exercise in writing by the Majority Lenders, and (c) except as expressly set
forth herein, the Agents shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information communicated to the Agents by or relating to the Borrower or
any Subsidiary. The Agents shall not be liable for any action taken or not taken by them with the
consent or at the request of the Majority Lenders or the Lenders, as the case may be, or in the
absence of their own gross negligence or wilful misconduct. In addition, the Agents shall be
deemed not to have knowledge of any Default unless and until written notice thereof is given to the
Agents by the Borrower or a Lender or Issuing Bank, and the Agents shall not be responsible for or
have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or
in connection with any Credit Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition
set forth in Article IV or elsewhere herein or therein, other than to confirm receipt of items
expressly required to be delivered to the Agents.




          The Agents shall be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document or other writing
believed by them to be genuine and to have been signed or sent by the proper Person. The Agents
also may rely upon any statement made to them orally or by telephone and believed by them to be
made by the proper Person, and shall not incur any liability for relying thereon. The Agents may
consult with legal counsel




 









 








104



(who may be counsel for the Borrower), independent accountants and other experts selected by
them with reasonable care, and shall not be liable for any action taken or not taken by them in
accordance with the advice of any such counsel, accountants or experts.




          The Agents may perform any and all their duties and exercise their rights and powers by or
through any one or more sub-agents appointed by the Agents. The Agents and any such sub-agent may
perform any and all their duties and exercise their rights and powers through their respective
Affiliates. The exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Affiliates of the Agents and any such sub-agent.




          Subject to the appointment and acceptance of a successor Agent as provided below, either Agent
may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the
Majority Lenders shall have the right to appoint a successor with the Borrower’s written consent
(which shall not be unreasonably withheld or delayed and shall not be required from the Borrower if
an Event of Default has occurred and is continuing). If no successor shall have been so appointed
by the Majority Lenders and shall have accepted such appointment within 30 days after the retiring
Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, with
the Borrower’s written consent (which shall not be unreasonably withheld or delayed and shall not
be required if an Event of Default has occurred and is continuing), appoint a successor Agent which
shall be a bank or an Affiliate thereof, in each case with a net worth of at least $1,000,000,000
and an office in New York, New York. Upon the acceptance of its appointment as Agent hereunder by
a successor, such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder. After an Agent’s resignation hereunder, the provisions of this
Article and Section 9.03 shall continue in effect for its benefit in respect of any actions taken
or omitted to be taken by it while it was acting as Agent.




          Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon
the Agents or any other Lender or Issuing Bank and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.
Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance
upon the Agents or any other Lender or Issuing Bank and based on such documents and information as
it shall from time to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or any document furnished
hereunder or thereunder.




          Notwithstanding any other provision contained herein, (a) each Lender and each Issuing Bank
acknowledges that the Administrative Agent is not acting as an agent of the Borrower and that the
Borrower will not be responsible for acts or failures to act on the part of the Administrative
Agent and (b) neither the Syndication Agent nor any of the Documentation Agents shall, in its
capacity as such, have any responsibilities under this Agreement or the other Credit Documents.




 









 








105




          Without prejudice to the provisions of this Article VIII, each Lender and Issuing Bank hereby
irrevocably appoints and authorizes the Collateral Agent (and any successor acting as Collateral
Agent) to act as the person holding the power of attorney (in such capacity, the “fondé de
pouvoir”) of the Lenders and Issuing Banks as contemplated under Article 2692 of the Civil Code
of Quebec, and to enter into, to take and to hold on their behalf, and for their benefit, any
hypothec, and to exercise such powers and duties which are conferred upon the fondé de pouvoir
under any hypothec. Moreover, without prejudice to such appointment and authorization to act as
the person holding the power of attorney as aforesaid, each Lender and Issuing Bank hereby
irrevocably appoints and authorizes the Collateral Agent (and any successor acting as Collateral
Agent) (in such capacity, the “Custodian”) to act as agent and custodian for and on behalf
of the Lenders and Issuing Banks to hold and to be the sole registered holder of any debenture
which may be issued under any hypothec, the whole notwithstanding Section 32 of the Act Respecting
the Special Powers of Legal Persons (Quebec) or any other applicable law. In this respect, (i) the
Custodian shall keep a record indicating the names and addresses of, and the pro rata portion of
the obligations and indebtedness secured by any pledge of any such debenture and owing to each
Lender and Issuing Bank, and (ii) each Lender and Issuing Bank will be entitled to the benefits of
any charged property covered by any hypothec and will participate in the proceeds of realization of
any such charged property, the whole in accordance with the terms hereof.




          Each of the fondé de pouvoir and the Custodian shall (a) have the sole and exclusive right and
authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all
rights and remedies given to fondé de pouvoir and the Custodian (as applicable) with respect to the
charged property under any hypothec, any debenture or pledge thereof relating to any hypothec,
applicable laws or otherwise, (b) benefit from and be subject to all provisions hereof with respect
to the Collateral Agent mutatis mutandis, including, without limitation, all such provisions with
respect to the liability or responsibility to and indemnification by the Lenders or the Issuing
Banks, and (c) be entitled to delegate from time to time any of its powers or duties under any
hypothec, any debenture or pledge thereof relating to any hypothec, applicable laws or otherwise
and on such terms and conditions as it may determine from time to time. Any person who becomes a
Lender or an Issuing Bank shall be deemed to have consented to and confirmed: (y) the fondé de
pouvoir as the person holding the power of attorney as aforesaid and to have ratified, as of the
date it becomes a Lender or Issuing Bank, all actions taken by the fondé de pouvoir in such
capacity, (z) the Custodian as the agent and custodian as aforesaid and to have ratified, as of the
date it becomes a Lender or Issuing Bank, all actions taken by the Custodian in such capacity.




ARTICLE IX




Miscellaneous




          SECTION 9.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and
other communications provided for herein shall be in writing




 









 








106



and shall be delivered by hand or overnight courier service, mailed by certified or registered
mail or sent by telecopy or e-mail, as follows:




          (i) if to the Borrower, to it at 1144 East Market Street, Akron, Ohio, 44316-0001, Attention
of the Treasurer (Telecopy No. (330) 796-6502 or (330) 796-8836);




          (ii) if to the Administrative Agent, to JPMorgan Chase Bank, Loan & Agency Services Group,
1111 Fannin, 10th Floor, Houston, Texas 77002, Attention of Debbie Meche and Cliff Trapani
(Telecopy No. (713) 750-2938), with a copy to JPMorgan Chase Bank, N.A., 270 Park Avenue, New York,
NY 10017, Attention of Robert Kellas (Telecopy No. (212) 270-5100);




          (iii) if to a Lender, to it at its address (or telecopy number or e-mail address) set forth in
Schedule 2.01 or its Administrative Questionnaire; and




          (iv) if to any Issuing Bank, to it at the address most recently specified by it in a notice
delivered to the Administrative Agent and the Borrower.




          (b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent
or the Borrower may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or communications.




          (c) Any party hereto may change its address, telecopy number or e-mail address for notices and
other communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.




          SECTION 9.02. Waivers; Amendments. (a) No failure or delay by any of the Agents, any
Issuing Bank or any Lender in exercising any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Agents, the
Issuing Banks and the Lenders hereunder are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this Agreement or consent
to any departure by the Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall




 









 








107



not be construed as a waiver of any Default, regardless of whether any Agent, any Issuing Bank
or any Lender may have had notice or knowledge of such Default at the time.




          (b) No Credit Document (other than any Issuing Bank Agreement or any letter of credit
application referred to in Section 2.04(a) or (b)) or any provision thereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered into by the Credit
Parties party thereto and the Administrative Agent or Collateral Agent, as the case may be, with
the consent of the Majority Lenders; provided, that no such agreement shall (i) increase
the Commitment of any Lender or extend the Commitment Termination Date with respect to any Lender
without the written consent of such Lender, (ii) reduce or forgive all or part of the principal
amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fee
payable hereunder, or reduce the Deposit Return, without the prior written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan,
or the required date of reimbursement of any LC Disbursement, or date for the payment of any
interest on any Loan or any fee, or reduce the amount of, waive or excuse any such payment, without
the prior written consent of each Lender adversely affected thereby, (iv) release all or
substantially all the Subsidiary Guarantors from their Guarantees under the Guarantee and
Collateral Agreement, or release all or substantially all the Collateral from the Liens of the
Security Documents, without the written consent of each Lender, (v) change any provision of the
Guarantee and Collateral Agreement or any other Security Document to alter the amount or allocation
of any payment to be made to the Secured Parties, without the written consent of each adversely
affected Lender, (vi) change Section 2.16 in a manner that would alter the pro rata sharing of any
payment without the written consent of each Lender adversely affected thereby, (vii) change any of
the provisions of this Section or the definition of “Majority Lenders” or any other provision
hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the written consent of
each Lender, (viii) change any provision of any Credit Document in a manner that by its terms
adversely affects the rights in respect of payments due to Lenders holding Loans of any Class
differently from those holding Loans of the other Class, without the written consent of Lenders
holding a majority in interest of the outstanding Loans and unused Commitments of the adversely
affected Class or (ix) at any time amend, modify or otherwise alter in a manner which would
increase the amount of the Borrowing Base Availability (A) the advance rates used in determining
the Borrowing Base, without the prior written consent of Lenders having aggregate Credit Exposures
and unused Commitments representing at least 80% of the sum of the total Credit Exposures and
unused Commitments at such time or (B) the eligibility standards used in determining the Borrowing
Base, without the prior written consent of Lenders having aggregate Credit Exposures and unused
Commitments representing at least 66-2/3% of the sum of the total Credit Exposures and unused
Commitments at such time; provided, further that no such agreement shall amend,
modify or otherwise affect the rights or duties of any Agent or Issuing Bank under any Credit
Document, or any provision of any Credit Document providing for payments by or to the
Administrative Agent or any Issuing Bank (or, in the case of any Issuing Bank, any provision of
Section 2.04 affecting such Issuing Bank or any provision relating to the purchase of
participations in Letters of Credit or requiring that the maintenance of




 









 








108



Deposits at least equal the Undrawn/Unreimbursed DF LC Exposure), in each case without the
prior written consent of such Agent or Issuing Bank, as the case may be; provided
further, that so long as the rights or interests of any Lender shall not be adversely
affected in any material respect, the Guarantee and Collateral Agreement or any other Security
Document may be amended without the consent of the Majority Lenders (A) to cure any ambiguity,
omission, defect or inconsistency, or (B) to provide for the addition of any assets or classes of
assets to the Collateral. Any waiver, amendment or modification of this Agreement that by its
terms affects the rights or duties under this Agreement of the Lenders of a particular Class (but
not the Lenders of any other Class), may be effected by an agreement or agreements in writing
entered into by the Borrower and the requisite percentage in interest of the affected Class of
Lenders that would be required to consent thereto under this Section if such Class of Lenders were
the only Class of Lenders hereunder at the time. Notwithstanding the foregoing, any provision of
this Agreement may be amended by an agreement in writing entered into by the Borrower, the
Administrative Agent (and, if their rights or obligations are affected thereby or if their consent
would be required under the preceding provisions of this paragraph, the Issuing Banks) and the
Lenders that will remain parties hereto after giving effect to such amendment if (1) by the terms
of such agreement the Commitments of each Lender not consenting to the amendment provided for
therein shall be reduced to zero upon the effectiveness of such amendment and (2) at the time such
amendment becomes effective, each Lender not consenting thereto receives payment in full of the
principal of and interest accrued on each Loan made by it and all other amounts owing to it or
accrued for its account under this Agreement.




          (c) Notwithstanding anything in paragraph (b) of this Section to the contrary, this Agreement
and the other Credit Documents may be amended at any time and from time to time to increase the
aggregate Revolving Commitments and/or the aggregate DF Commitments by an agreement in writing
entered into by the Borrower, the Administrative Agent, the Collateral Agent and each Person
(including any Lender) that shall agree to provide any such additional Commitment (but without the
consent of any other Lender), and each such Person that shall not already be a Lender shall, at the
time such agreement becomes effective, become a Lender with the same effect as if it had originally
been a Lender under this Agreement with the Commitment set forth in such agreement;
provided, however, that: (i) the aggregate amount of such additional Commitments
established pursuant to this paragraph shall not exceed $250,000,000; (ii) no Default or Event of
Default shall exist at the time such amendment becomes effective; (iii) in the case of any
additional Revolving Commitment that is to be provided by a Person that is not a Revolving Lender
immediately prior to the effectiveness of such amendment, each Principal Issuing Bank shall have
consented to such Person becoming a Revolving Lender, and (iv) the Administrative Agent shall have
received a favorable written opinion (addressed to the Administrative Agent, the Lenders and the
Issuing Banks) of Covington & Burling, counsel for the Borrower (or other counsel for the Borrower
reasonably satisfactory to the Administrative Agent) in a form reasonably acceptable to the
Administrative Agent but in substance to the effect that the incurrence of each Loan, Letter of
Credit and LC Disbursement under such additional Commitments, and each Lien securing them, will be
permitted under the Junior Lien Indenture and each other indenture or other agreement governing any
Material Indebtedness in effect at the




 









 








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time of the effectiveness of such amendment, and such Loans, Letters of Credit and LC
Disbursements will constitute Designated Senior Obligations under the Lien Subordination and
Intercreditor Agreement. Each Loan, Letter of Credit and LC Disbursement under such additional
Commitments established pursuant to this paragraph shall constitute Loans, Letters of Credit and LC
Disbursements under, and shall be entitled to all the benefits afforded by, this Agreement and the
other Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably from
the Guarantees and security interests and Liens created by the Guarantee and Collateral Agreement
and the other Security Documents. The Borrower shall take any actions reasonably required by the
Administrative Agent to ensure and/or demonstrate that all requirements under the Credit Documents
in respect of the provision and maintenance of Collateral continue to be satisfied after the
establishment of any such additional Commitments. In the event that the Borrower elects to
establish any additional Commitments of either Class pursuant to this paragraph, the Borrower will
afford the then existing Lenders an opportunity to provide such additional Commitments.




          SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Agents, the Arrangers and their Affiliates
(including the reasonable fees, charges and disbursements of Cravath, Swaine & Moore LLP, counsel
for the Agents and the Arrangers, and other local and foreign counsel for the Agents and Arrangers,
limited to one per jurisdiction, in connection with the Security Documents and the creation and
perfection of the Liens created thereby and other local and foreign law matters) in connection with
the arrangement and syndication of the credit facilities provided for herein, the preparation,
execution, delivery and administration of this Agreement and the other Credit Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by any Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or demand for payment thereunder and (iii) all
reasonable out-of-pocket expenses incurred by the Agents, any Issuing Bank or any Lender, including
the fees, charges and disbursements of any counsel for the Agents, any Issuing Bank or any Lender,
in connection with the enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or similar negotiations in respect of such Loans or Letters of Credit. The Borrower
also shall pay all out-of-pocket expenses incurred by the Collateral Agent in connection with the
creation and perfection of the security interests contemplated by this Agreement, including all
filing, recording and similar fees and, as more specifically set forth above, the reasonable fees
and disbursements of counsel (including foreign counsel in connection with Foreign Pledge
Agreements).




          (b) The Borrower shall indemnify each Agent, each Arranger, each Issuing Bank and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the reasonable fees, charges and disbursements
of any counsel for any




 









 








110



Indemnitee), incurred by or asserted against any Indemnitee and arising out of (i) the
execution or delivery of this Agreement or any other Credit Document or other agreement or
instrument contemplated hereby, the syndication and arrangement of the credit facilities provided
for herein, the performance by the parties hereto of their respective obligations or the exercise
by the parties hereto of their rights hereunder or thereunder or the consummation of the
Transactions or any other transactions contemplated hereby or thereby, (ii) any Loan or Letter of
Credit or the use of the proceeds thereof (including any refusal by any Issuing Bank to honor a
demand for payment under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property currently or formerly owned or
operated by the Borrower or any of the Subsidiaries, or any Environmental Liability related in any
way to the Borrower or any of the Subsidiaries, or (iv) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or any other theory
and regardless of whether any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses shall have resulted from the gross negligence or wilful misconduct
of such Indemnitee or the breach by such Indemnitee of obligations set forth herein or in any other
Credit Document.




          (c) To the extent that the Borrower fails to pay any amount required to be paid by it to any
Agent, any Arranger or any Issuing Bank under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to such Agent, Arranger or Issuing Bank, as the case may be, such Lender’s
percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought based on the outstanding Loans and LC Exposures and unused Commitments of such Lender and
the other Lenders (or, if the Commitments of any Class shall have been reduced to zero and there
shall be no outstanding Loans or LC Exposures of such Class, based on the Loans and LC Exposures
and unused Commitments of such Class most recently in effect)) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against such Agent, Arranger or
Issuing Bank in its capacity as such.




          SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto, the Indemnitees and their respective
successors and assigns permitted hereby (including any Affiliate of any Issuing Bank that issues
any Letter of Credit), except that (i) the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, Indemnitees, their respective successors and
assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of
Credit), Participants (to the extent provided in paragraph (c) of this Section) and, to the extent
expressly contemplated hereby, the Related Parties of each of




 









 








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the Agents, the Arrangers, the Issuing Banks and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.




          (b) (i)Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments, the Loans at the time owing to it and its Deposit)
with the prior written consent (such consent not to be unreasonably withheld or delayed) of:




          (A) the Borrower; provided that no consent of the Borrower shall be required for an
assignment to a Lender, an Affiliate of a Lender, an Approved Fund, a Federal Reserve Bank or, if
an Event of Default has occurred and is continuing, any other assignee; provided
further that the consent of the Borrower shall be required for an assignment by any
Revolving Lender to any Person (other than a Revolving Lender or a Federal Reserve Bank);




          (B) the Administrative Agent; provided that no consent of the Administrative Agent
shall be required for an assignment to an assignee that is a Lender, an Affiliate of a Lender, a
Federal Reserve Bank or an Approved Fund; provided further that the consent of the
Administrative Agent shall be required for an assignment by any Revolving Lender to any Person
(other than a Revolving Lender or a Federal Reserve Bank); and




          (C) in the case of any assignment of a Revolving Commitment or any interests in a Revolving
Letter of Credit or Revolving LC Disbursement, each Principal Issuing Bank; provided that
no consent of any Principal Issuing Bank shall be required for an assignment to an assignee that is
a Federal Reserve Bank.




          (ii) Assignments shall be subject to the following additional conditions:




          (A) except in the case of an assignment to a Lender or an Affiliate of a Lender, the amount of
the Commitment of the assigning Lender subject to each such assignment (determined as of the date
the Assignment and Assumption with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $1,000,000 or, if smaller, the entire remaining amount of the
assigning Lender’s applicable Commitment unless each of the Borrower and the Administrative Agent
shall otherwise consent, provided (i) that no such consent of the Borrower shall be
required if an Event of Default has occurred and is continuing and (ii) in the event of concurrent
assignments to two or more assignees that are Affiliates of one another, or to two or more Approved
Funds managed by the same investment advisor or by affiliated investment advisors, all such
concurrent assignments shall be aggregated in determining compliance with this subsection;




          (B) each partial assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement; provided that
this clause shall not be construed to prohibit the assignment of a proportionate part of all the
assigning Lender’s rights and obligations in respect of one




 









 








112



Class of Commitments or Loans




          (C) the parties to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee of $3,500; provided that
in the event of concurrent assignments to two or more assignees that are Affiliates of one another,
or to two or more Approved Funds managed by the same investment advisor or by affiliated investment
advisors, only one such fee shall be payable;




          (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire; and




          (E) in connection with each assignment of a DF Commitment, DF Loan or DF LC Exposure, the
Deposit of the assignor Lender shall not be released, but shall instead be purchased by the
relevant assignee and continue to be held for application (to the extent not already applied) in
accordance with Article II to satisfy such assignee’s obligations in respect of such DF Loans and
such DF LC Exposure. Each Lender agrees that immediately prior to each assignment (i) the
Administrative Agent shall establish a new Sub-Account in the name of the assignee, (ii) a
corresponding portion of the Deposit credited to the Sub-Account of the assignor Lender shall be
purchased by the assignee and shall be transferred from the assignor’s Sub-Account to the
assignee’s Sub-Account and (iii) if after giving effect to such assignment the DF Commitment of the
assignor Lender shall be zero, the Administrative Agent shall close the Sub-Account of such
assignor Lender.




          (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.13, 2.14, 2.15 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section. Each assignment hereunder shall be
deemed to be an assignment of the related rights under the Guarantee and Collateral Agreement and
each other applicable Security Document.




          (iv) The Administrative Agent shall maintain at one of its offices a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitment of, and principal amount of the Loans and LC Disbursements owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, and the




 









 








113



Borrower, the Administrative Agent, the Issuing Banks and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Issuing Bank or Lender, at any reasonable time and
from time to time upon reasonable prior notice.




          (v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in this paragraph.




          (vi) By executing and delivering an Assignment and Assumption, the assigning Lender thereunder
and the assignee thereunder shall be deemed to confirm to and agree with each other and the other
parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse claim; (ii) except as
set forth in clause (i) above, such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or representations made in or
in connection with this Agreement or any other Credit Document or any other instrument or document
furnished pursuant hereto or thereto, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any of the foregoing, or the financial condition of the Credit
Parties or the performance or observance by the Credit Parties of any of their obligations under
this Agreement or under any other Credit Document or any other instrument or document furnished
pursuant hereto or thereto; (iii) each of the assignee and the assignor represents and warrants
that it is legally authorized to enter into such Assignment and Assumption; (iv) such assignee
confirms that it has received a copy of this Agreement, together with copies of any amendments or
consents entered into prior to the date of such Assignment and Assumption and copies of the most
recent financial statements delivered pursuant to Section 5.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Assumption; (v) such assignee will independently and without reliance upon the
Agents, such assigning Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking action under this Agreement; (vi) such assignee appoints and authorizes the Agents to take
such action as agents on its behalf and to exercise such powers under this Agreement and the other
Credit Documents as are delegated to them by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all the obligations that by the terms of this Agreement are required to
be performed by it as a Lender.




 









 








114




          (c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent or any
Issuing Bank, sell participations to one or more banks or other entities (each a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment, the Loans and its Deposit owing to it);
provided that (A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrower, the Administrative Agent, the Issuing Banks and the other
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any amendment, modification
or waiver that affects such Participant and that, under Section 9.02, would require the consent of
each affected Lender. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.13, 2.14 and 2.15 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section 9.08 as though it were a Lender, provided such Participant agrees to be subject to
Section 2.16(d) as though it were a Lender.




          (ii) A Participant shall not be entitled to receive any greater payment under Section 2.13 or
2.15 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent, which consent shall specifically refer to this
exception. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled
to the benefits of Section 2.15 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section
2.15(f) as though it were a Lender.




          (d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.




          SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that any Agent, any Issuing Bank or any Lender may have
had notice or




 









 








115



knowledge of any Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this Agreement is
outstanding and unpaid or any Letter of Credit is outstanding and so long as the Total Commitment
has not been reduced to zero. The provisions of Sections 2.13, 2.14, 2.15 and 9.03 and Article
VIII shall survive and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the reduction of the Total Commitment
to zero, the expiration or termination of the Letters of Credit or the termination of this
Agreement or any provision hereof.




          SECTION 9.06. Counterparts; Integration; Effectiveness; Issuing Banks. This Agreement
may be executed in counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together shall constitute a
single contract. This Agreement, the other Credit Documents, the Issuing Bank Agreements and any
separate letter agreements with respect to fees payable to the Administrative Agent or the
Arrangers constitute the entire contract among the parties relating to the subject matter hereof
and supersede any and all previous agreements and understandings, oral or written, relating to the
subject matter hereof. This Agreement shall become effective as provided in Section 4.01.
Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement. Each financial
institution that shall be party to an Issuing Bank Agreement executed by the Borrower and the
Administrative Agent shall be a party to and an Issuing Bank under this Agreement, and shall have
all the rights and duties of an Issuing Bank hereunder and under its Issuing Bank Agreement. Each
Lender hereby authorizes the Administrative Agent to enter into Issuing Bank Agreements.




          SECTION 9.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. No
failure to obtain any approval required for the effectiveness of any provision of this Agreement
shall affect the validity or enforceability of any other provision of this Agreement.




          SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing and the Loans shall have become due and payable pursuant to Article VII, each Lender,
each Issuing Bank and each Affiliate of any of the foregoing is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time held and other
obligations at any time owing by such Lender, Issuing Bank or Affiliate to or for the credit or the
account of the Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender or such Issuing Bank, irrespective of whether or
not such Lender or such Issuing Bank shall have made any demand under this Agreement and




 









 








116



although such obligations may be unmatured. The rights of each of the Lenders and the Issuing
Banks under this Section are in addition to other rights and remedies (including other rights of
setoff) which such Person may have.




          SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the State of New York.




          (b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in
New York County and of the United States District Court of the Southern District of New York, and
any appellate court from any thereof, in any action or proceeding arising out of or relating to
this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right
that any party hereto may otherwise have to bring any action or proceeding relating to this
Agreement in the courts of any jurisdiction.




          (c) Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it
may legally and effectively do so, any objection which it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this Agreement in any
court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.




          (d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.




          SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE




 









 








117



BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.




          SECTION 9.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.




          SECTION 9.12. Confidentiality. Each of the Agents, the Issuing Banks and the Lenders
agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and
agents, including accountants, legal counsel and other advisors who have been informed of the
confidential nature of such Information and instructed to keep such Information confidential, (b)
to the extent requested by any regulatory authority (including the NAIC), (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any
other party to this Agreement, (e) to the extent necessary or advisable in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or
the enforcement of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the written consent of the Borrower or (h)
to the extent such Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to any Agent, any Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Borrower. For the purposes of this Section,
“Information” means all information received from the Borrower or Persons acting on its
behalf relating to the Borrower or its business, other than any such information that is available
to any Agent, any Issuing Bank or any Lender prior to disclosure by the Borrower on a
nonconfidential basis from a source other than the Borrower that is not known by the recipient to
be bound by a confidentiality agreement or other obligation of confidentiality with respect to such
information.




          SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under applicable law (collectively,
the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may
be contracted for, charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to
the extent lawful, the interest and Charges that would have been payable in respect of such Loan
but were not payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together with interest




 









 








118



thereon at the Alternate Base Rate to the date of repayment, shall have been received by such
Lender.




          SECTION 9.14. Security Documents. Each Lender hereby irrevocably authorizes and
directs the Collateral Agent to execute and deliver the Guarantee and Collateral Agreement, the
Lenders Lien Subordination and Intercreditor Agreement, each other Security Document and the
amendment and restatement as of the Effective Date of the European Guarantee and Collateral
Agreement and to carry out the provisions thereof. Each Lender, by executing and delivering this
Agreement, acknowledges receipt of a copy of the Guarantee and Collateral Agreement and the
amendment and restatement of the European Guarantee and Collateral Agreement and approves and
agrees to be bound by and to act in accordance with the terms and conditions of the Guarantee and
Collateral Agreement and each other Security Document insofar as they relate to or require
performance by the Lenders, specifically including (i) the provisions of Article III of the
Guarantee and Collateral Agreement (providing for the continuation of the Liens securing the “US
Miscellaneous Obligations”, as defined in the 2003 MGCA, as Liens ranking pari
passu with the Liens securing the Obligations), (ii) the provisions of Article VII of the
Guarantee and Collateral Agreement (governing the exercise of remedies under the Security Documents
and the distribution of the proceeds realized from such exercise), (iii) the provisions of Articles
IX and X of the Guarantee and Collateral Agreement (relating to the duties and responsibilities of
the Collateral Agent thereunder and providing for the indemnification and the reimbursement of
expenses of the Collateral Agent thereunder by the Lenders), and (iv) the provisions of Section
12.13 of the Guarantee and Collateral Agreement (providing for releases of Guarantees of and
Collateral securing the Obligations). Each party hereto further agrees that the foregoing
provisions of the Guarantee and Collateral Agreement shall apply to each other Security Document.
In the event that the Borrower shall incur Indebtedness to refinance or replace Indebtedness under
the Second Lien Agreement in compliance with Sections 6.01(m) and 6.02(n), each Lender hereby
irrevocably authorizes and directs the Collateral Agent to enter into an intercreditor agreement on
substantially the same terms as those of the Lenders Lien Subordination and Intercreditor
Agreement (as in effect at the time of such refinancing or replacement) with the holders of such
Indebtedness or their representative.




          SECTION 9.15. Additional Financial Covenants. Notwithstanding anything else contained
herein to the contrary, in the event that any maintenance financial covenant other than the
financial covenants set forth in Sections 6.09 and 6.10 is included in the Second Lien Agreement,
the Third Lien Agreement or any Senior Subordinated-Lien Document (as defined in Schedule 1.01C),
such covenant will be deemed to be added to Article VI of this Agreement automatically, without the
need for any further action whatsoever.




          SECTION 9.16. USA Patriot Act Notice. Each Lender and Issuing Bank and the
Administrative Agent (for itself and not on behalf of any Lender or Issuing Bank) hereby notifies
the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and
record information that identifies the Borrower, which information




 









 








119



includes the name and address of the Borrower and other information that will allow such
Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the
Act.




 









 








          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.




	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	THE GOODYEAR TIRE & RUBBER

COMPANY,
	 
	 	 	 	 	 	 
	

	 	     by
	 	/s/ Darren R. Wells	 	 
	

	 	 	 	 	 	 
	

	 	 	 	     Name: Darren R. Wells	 	 
	

	 	 	 	     Title: Vice President and Treasurer	 	 






	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.,

individually and as Administrative Agent

and Collateral Agent,
	 
	 	 	 	 	 	 
	

	 	     by
	 	/s/ Bernard J. Lillis	 	 
	

	 	 	 	 	 	 
	

	 	 	 	     Name: Bernard J. Lillis	 	 
	

	 	 	 	     Title: Managing Director	 	 






 









 






Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	LENDER: JPMorgan
Chase Bank, N.A.,
	 
	 	 	 	 	 	 
	

	 	     by
	 	/s/ Bernard J. Lillis	 	 
	

	 	 	 	 	 	 
	

	 	 	 	     Name: Bernard J. Lillis	 	 
	

	 	 	 	     Title: Managing Director	 	 






 









 






Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 	 	 
	 	 	LENDER: Allied Irish
Banks p.l.c.,
	 
	 	 	 	 	 	 
	

	 	     by	 	/s/ Martin S. Chin	 	 
	

	 	 	 	 	 	 
	

	 	 	 	     Name: Martin S. Chin	 	 
	

	 	 	 	     Title: Vice President	 	 
	 
	 	 	 	 	 	 
	

	 	     by
	 	/s/ John Parrace	 	 
	

	 	 	 	 	 	 
	

	 	 	 	     Name: John Parrace	 	 
	

	 	 	 	     Title: SVP	 	 






 









 






Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	LENDER: Bank of
America N.A.,
	 
	 	 	 	 	 	 
	

	 	     by
	 	/s/ Debra A. Rathberger	 	 
	

	 	 	 	 	 	 
	

	 	 	 	     Name: Debra A. Rathberger	 	 
	

	 	 	 	     Title: Senior Vice President	 	 






 









 






Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 	 	 
	 	 	LENDER: The Bank of
New York,
	 
	 	 	 	 	 	 
	

	 	     by
	 	/s/ Kenneth R. McOrnnel	 	 
	

	 	 	 	 	 	 
	

	 	 	 	     Name: Kenneth R. McOrnnel	 	 
	

	 	 	 	     Title: Vice President	 	 







 









 






Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	 	LENDER: Bayerische Landesbank,
	 
	 	 	 	 
	

	 	     by
	 	 
	

	 	      
	 	/s/ Oliver Hildenbrand
	

	 	 	 	 
	

	 	 	 	Name: Oliver Hildenbrand
	 

	 	 	 	Title: First Vice President
	 
	 	 	 	 
	

	 	     by
	 	 
	

	 	      
	 	/s/ Norman McClave
	

	 	 	 	 
	

	 	 	 	Name: Norman McClave
	

	 	 	 	Title: First Vice President

















 








Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	 	LENDER: State of California Public Employees’
Retirement System,
	 
	 	 	 	 
	

	 	     by
	 	 
	

	 	 
	 	/s/ Curtis D. Ishii
	

	 	 	 	 
	

	 	 	 	Name: Curtis D. Ishii
	

	 	 	 	Title: Senior Investment Official

















 








Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	 	LENDER: The CIT Group/ Business Credit,
	 
	 	 	 	 
	

	 	     by
	 	 
	

	 	 
	 	/s/ James A. Brennen, Jr.
	

	 	 	 	 
	

	 	 	 	Name: James A. Brennen, Jr.
	

	 	 	 	Title: Vice President















 






Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	 	LENDER: Citicorp USA, Inc.,
	 
	 	 	 	 
	

	 	     by
	 	 
	

	 	 
	 	/s/ James R. Williams
	

	 	 	 	 
	

	 	 	 	Name: James R. Williams
	

	 	 	 	Title: Director and Vice President















 






Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	 	LENDER: Commerzbank Aktiengesellschaft New York and
Grand Cayman Branches
	 
	 	 	 	 
	

	 	     by
	 	 
	

	 	      
	 	/s/ Graham A. Warning
	

	 	 	 	 
	

	 	 	 	Name: Graham A. Warning
	

	 	 	 	Title: Assistant Vice President
	 
	 	 	 	 
	

	 	     by
	 	 
	

	 	 
	 	/s/ John Marlati
	

	 	 	 	 
	

	 	 	 	Name: John Marlati
	

	 	 	 	Title: Senior Vice President















 






Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	 	LENDER: General Electric Capital Corporation,
	 
	 	 	 	 
	

	 	     by
	 	 
	

	 	 
	 	/s/ Donald J. Cavanagh
	

	 	 	 	 
	

	 	 	 	Name: Donald J. Cavanagh
	

	 	 	 	Title: Duly Authorized Signatory

















 






Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	LENDER: GMAC Commercial Finance LLC,
	 
	 	 	 	 
	

	 	by
	 	 
	

	 	 
	 	       /s/ W. Wakefield Smith
	

	 	 	 	 
	

	 	 	 	Name: W. Wakefield Smith
	

	 	 	 	Title: Director








 









 








Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005





	 	 	 	 	 
	 	LENDER: HSBC Business Credit (USA) Inc.,
	 
	 	 	 	 
	

	 	by	 	 
	

	 	 	 	       /s/ Matthew R. Rickert
	

	 	 	 	 
	

	 	 	 	Name: Matthew R. Rickert
	

	 	 	 	Title: Assistant Vice President







 









 








Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	LENDER: ING Capital LLC,
	 
	 
	 	by	 	 
	

	 	 
	 	       /s/ Doug S. Clarida
	

	 	 	 	 
	

	 	 	 	Name: Doug S. Clarida
	

	 	 	 	Title: Vice President







 









 








Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	LENDER: KeyBank National Association,
	 
	 	 	 	 
	

	 	by	 	 
	

	 	 	 	       /s/ Robert F. Pollis, Jr.
	

	 	 	 	 
	

	 	 	 	Name: Robert F. Pollis, Jr.
	

	 	 	 	Title: Senior Vice President








 









 









Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	LENDER: LaSalle Business Credit, LLC,
	 
	

	 	by	 	 
	

	 	 	 	       /s/ C. John Mostofi
	

	 	 	 	 
	

	 	 	 	Name: C. John Mostofi
	

	 	 	 	Title: Senior Vice President








 









 








Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	LENDER: Merrill Lynch Capital, a division of Merrill
Lynch Business Financial Services Inc.,
	 
	 	 	 	 
	

	 	by	 	 
	

	 	 	 	       /s/ Richard Holston
	

	 	 	 	 
	

	 	 	 	Name: Richard Holston
	

	 	 	 	Title: Vice President








 









 










Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	LENDER: MFS Floating Rate High Income Fund,
	 
	 	 	 	 
	

	 	by	 	 
	

	 	 	 	       /s/ Philip Robbins
	

	 	 	 	 
	

	 	 	 	Name: Philip Robbins
	

	 	 	 	Title: Vice President








 









 






Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005





	 	 	 	 	 
	 	LENDER: Natexis Banques Populaires,
	 
	 	 	 	 
	

	 	by	 	 
	

	 	 	 	       /s/ Nicolas Regent
	

	 	 	 	 
	

	 	 	 	Name: Nicolas Regent
	

	 	 	 	Title: Vice president Multinational
	 
	 	 	 	 
	

	 	by	 	 
	

	 	 	 	       /s/
P. J. van Tullen
	

	 	 	 	 
	

	 	 	 	Name: P. J. van Tullen
	

	 	 	 	Title: Group Head







 









 








Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	LENDER: National City Business Credit, Inc.,
	 
	 	 	 	 
	

	 	by	 	 
	

	 	 	 	       /s/ Michael Fine
	

	 	 	 	 
	

	 	 	 	Name: Michael Fine
	

	 	 	 	Title: Director






 









 






Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	LENDER: N.M. Rothschild & Sons Limited,
	 
	 	 	 	 
	

	 	by	 	 
	

	 	 	 	       /s/ C.R. Keay
	

	 	 	 	 
	

	 	 	 	Name: C.R. Keay
	

	 	 	 	Title: Managing Director
	 
	 	 	 	 
	

	 	by	 	 
	

	 	 	 	       /s/ Andrew Radkewick
	

	 	 	 	 
	

	 	 	 	Name: Andrew Radkewick
	

	 	 	 	Title: Director








 









 








Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	LENDER: North Fork Business Capital Corp.,
	 
	 	 	 	 
	

	 	by	 	 
	

	 	 	 	       /s/ Michael S. Burns
	

	 	 	 	 
	

	 	 	 	Name: Michael S. Burns
	

	 	 	 	Title: Senior Vice President








 









 








Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	LENDER: PNC Bank, National Association,
	 
	 	 	 	 
	

	 	by	 	 
	

	 	 	 	       /s/ Sara V. Traberman
	

	 	 	 	 
	

	 	 	 	Name: Sara V. Traberman
	

	 	 	 	Title: Vice President








 









 








Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	LENDER: Protective Life Insurance Company,
	 
	 	 	 	 
	

	 	by	 	 
	

	 	 	 	       /s/ Diane S. Griswold
	

	 	 	 	 
	

	 	 	 	Name: Diane S. Griswold
	

	 	 	 	Title: Assistant Vice President








 









 








Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	LENDER: Siemens Financial Services,
	 
	 	 	 	 
	

	 	by	 	 
	

	 	 	 	       /s/ Frank Amodio
	

	 	 	 	 
	

	 	 	 	Name: Frank Amodio
	

	 	 	 	Title: Vice President Credit









 









 








Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	LENDER: The Royal Bank of Scotland plc,
	 
	 	 	 	 
	

	 	by	 	 
	

	 	 	 	       /s/ Craig Hamrab
	

	 	 	 	 
	

	 	 	 	Name: Craig Hamrab
	

	 	 	 	Title: Senior Vice President










 









 








Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 	 	 
	 	LENDER: UBS Loan Finance LLC,
	 
	 	 	 	 	 	 
	

	 	by	 	 
	 	 	 	 	       /s/ Wilfred V. Sahn

	 	 	 	 	 
	

	 	 	 	Name:
	 	Wilfred V. Sahn
	

	 	 	 	Title:
	 	Director Banking Products
	

	 	 	 	 	 	Services, US
	 
	 	 	 	 	 	 
	

	 	by	 	 
	 	 	 	 	       /s/ Joselin Fernandes

	 	 	 	 	 
	

	 	 	 	Name:
	 	Joselin Fernandes
	

	 	 	 	Title:
	 	Associate Director Banking
	

	 	 	 	 	 	Products Services, US






 









 






Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	LENDER: UFJ Bank Limited,
	 
	 	 	 	 
	

	 	by	 	 
	

	 	 	 	       /s/ Russell Bohner
	

	 	 	 	 
	

	 	 	 	Name: Russell Bohner
	

	 	 	 	Title: Vice President










 









 








Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	LENDER: UPS Capital Corporation,
	 
	 
	 	by	 	 
	

	 	 
	 	       /s/ John P. Holloway
	

	 	 	 	 
	

	 	 	 	Name: John P. Holloway
	

	 	 	 	Title: Director of Portfolio Management









 









 








Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	LENDER: Wachovia Capital Finance Corp. (Central),
	 
	 	 	 	 
	

	 	by	 	 
	

	 	 	 	       /s/ Laura Dixon
	

	 	 	 	 
	

	 	 	 	Name: Laura Dixon
	

	 	 	 	Title: Associate








 









 








Signature Page to

The Goodyear Tire & Rubber Company’s

First Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	 	LENDER: Wells Fargo Foothill, LLC,
	 
	 	 	 	 
	

	 	by	 	 
	

	 	 	 	       /s/ Gary Tachs
	

	 	 	 	 
	

	 	 	 	Name: Gary Tachs
	

	 	 	 	Title: Executive Vice President