EX-4.2 Second Lien Credit Agreement



 






EXHIBIT 4.2


EXECUTION COPY




 






SECOND LIEN CREDIT AGREEMENT




dated as of




April 8, 2005




among




THE GOODYEAR TIRE & RUBBER COMPANY,

as Borrower,




The LENDERS Party Hereto,




DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Collateral Agent




and




JPMORGAN CHASE BANK, N.A.

as Administrative Agent




	 	 	 
	J.P. MORGAN SECURITIES INC.,

	 	DEUTSCHE BANK SECURITIES 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. Foreign Currency Translation
	 	 	25	 
	SECTION 1.03. Terms Generally
	 	 	25	 
	SECTION 1.04. Accounting Terms; GAAP
	 	 	26	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	The Credits
	 	 	 	 
	 
	 	 	 	 
	SECTION 2.01. Commitments
	 	 	26	 
	SECTION 2.02. Loans and Borrowings
	 	 	27	 
	SECTION 2.03. Borrowing Procedure
	 	 	27	 
	SECTION 2.04. Funding of Borrowings
	 	 	28	 
	SECTION 2.05. Interest Elections
	 	 	28	 
	SECTION 2.06. Repayment of Loans; Evidence of Debt
	 	 	30	 
	SECTION 2.07. Prepayment of Loans
	 	 	30	 
	SECTION 2.08. Fees

	 	 	32	 
	
SECTION 2.09. Interest
	 	 	32	 
	SECTION 2.10. Alternate Rate of Interest
	 	 	33	 
	SECTION 2.11. Increased Costs
	 	 	33	 
	SECTION 2.12. Break Funding Payments
	 	 	34	 
	SECTION 2.13. Taxes
	 	 	35	 
	
SECTION 2.14. Payments Generally; Pro Rata Treatment; Sharing of Setoffs
	 	 	36	 
	SECTION 2.15. Mitigation Obligations; Replacement of Lenders
	 	 	38	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	Representations and Warranties
	 	 	 	 
	 
	 	 	 	 
	SECTION 3.01. Organization; Powers
	 	 	38	 
	SECTION 3.02. Authorization; Enforceability
	 	 	39	 
	SECTION 3.03. Governmental Approvals; No Conflicts
	 	 	39	 
	SECTION 3.04. Financial Statements; No Material Adverse Change
	 	 	39	 
	SECTION 3.05. Litigation and Environmental Matters
	 	 	40	 
	SECTION 3.06. Compliance with Laws and Agreements
	 	 	40	 
	SECTION 3.07. Investment and Holding Company Status
	 	 	40	 






 









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 3.08. ERISA and Canadian Pension Plans
	 	 	40	 
	SECTION 3.09. Disclosure
	 	 	41	 
	SECTION 3.10. Security Interests
	 	 	41	 
	SECTION 3.11. Use of Proceeds
	 	 	43	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	Conditions
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.01. Effective Date
	 	 	43	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	Affirmative Covenants
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.01. Financial Statements and Other Information
	 	 	46	 
	SECTION 5.02. Notices of Defaults
	 	 	48	 
	SECTION 5.03. Existence; Conduct of Business
	 	 	48	 
	SECTION 5.04. Maintenance of Properties
	 	 	48	 
	SECTION 5.05. Books and Records; Inspection and Audit Rights
	 	 	49	 
	SECTION 5.06. Compliance with Laws
	 	 	49	 
	SECTION 5.07. Insurance
	 	 	49	 
	SECTION 5.08. Guarantees and Collateral
	 	 	49	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	Negative Covenants
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.01. Indebtedness and Preferred Equity Interests
	 	 	51	 
	SECTION 6.02. Liens 
	 	 	55	 
	
SECTION 6.03. Sale and Leaseback Transactions
	 	 	56	 
	SECTION 6.04. Fundamental Changes
	 	 	56	 
	SECTION 6.05. Investments, Loans, Advances and Guarantees
	 	 	57	 
	SECTION 6.06. Asset Dispositions
	 	 	59	 
	SECTION 6.07. Restricted Payments
	 	 	61	 
	SECTION 6.08. Capital Expenditures
	 	 	62	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	Events of Default
	 	 	 	 
	 
	 	 	 	 
	SECTION 7.01. Events of Default
	 	 	62	 






ii 









 






	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	The Agents
	 	 	 	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	Miscellaneous
	 	 	 	 
	 
	 	 	 	 
	SECTION 9.01. Notices
	 	 	67	 
	SECTION 9.02. Waivers; Amendments
	 	 	68	 
	SECTION 9.03. Expenses; Indemnity; Damage Waiver
	 	 	69	 
	SECTION 9.04. Successors and Assigns
	 	 	71	 
	SECTION 9.05. Survival
	 	 	74	 
	SECTION 9.06. Counterparts; Integration; Effectiveness
	 	 	75	 
	SECTION 9.07. Severability
	 	 	75	 
	SECTION 9.08. Right of Setoff
	 	 	75	 
	SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	75	 
	SECTION 9.10. WAIVER OF JURY TRIAL
	 	 	76	 
	SECTION 9.11. Headings
	 	 	76	 
	SECTION 9.12. Confidentiality
	 	 	76	 
	SECTION 9.13. Interest Rate Limitation
	 	 	77	 
	SECTION 9.14. Security Documents
	 	 	77	 
	SECTION 9.15. Additional Financial Covenants
	 	 	78	 
	SECTION 9.16. Lenders Lien Subordination and Intercreditor Agreement
	 	 	78	 
	SECTION 9.17. USA Patriot Act Notice
	 	 	78	 






	 	 	 	 	 	 
	SCHEDULES:
	 	 
	 	 
	 
	 
	 	 
	 	 
	 
	Schedule 1.01A
	 	— 
	 	Consent Subsidiaries

	Schedule 1.01B
	 	—
	 	Mortgaged Properties

	Schedule 1.01C
	 	—
	 	Senior Subordinated-Lien Indebtedness

	Schedule 2.01
	 	—
	 	Commitments

	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(k)(ii)
	 	—
	 	 Additional Equity Interests

	Schedule 6.06
	 	—
	 	Asset Dispositions

	Schedule 6.08
	 	—
	 	Customer Capital Expenditures







iii 









 






	 	 	 	 	 	 
	 	 	 	 	 	
	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 First Lien Guarantee and Collateral Agreement
	 
	Exhibit H
	 	—
	 	Form of Guarantee and Collateral Agreement
	 
	Exhibit I
	 	—
	 	Third Lien Collateral Agreement
	 
	Exhibit J
	 	—
	 	Form of European Guarantee and Collateral Agreement
	 






iv 









 







               SECOND LIEN CREDIT AGREEMENT dated as of April 8, 2005 (this
“Agreement”), among THE GOODYEAR TIRE & RUBBER COMPANY; the
LENDERS party hereto; DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral
Agent; and JPMORGAN CHASE BANK, N.A., as Administrative Agent.



          The Borrower has requested that the Lenders extend credit to the Borrower in the form of Loans
in an aggregate principal amount not to exceed $1,200,000,000. 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.




          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 CIT Financial Group, as documentation agents.




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




          “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal
to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.




          “Administrative Agent” means JPMCB, in its capacity as administrative agent for the
Lenders hereunder, and its successors in such capacity.





          “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.




          “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.




 









 





2




          “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.




          “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 Deutsche Bank Securities Inc., as Joint Lead Arranger and Joint Bookrunner, for the
credit facility established by this Agreement.




          “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit D or any other form approved by
the Administrative Agent.




          “Attributable Debt” means, with respect to any Sale and Leaseback Transaction, the
present value (computed in accordance with GAAP and, in the case of a Sale and Leaseback
Transaction that does not result in Capital Lease Obligations, as if the obligations incurred in
connection with such Sale and Leaseback Transaction were Capital Lease Obligations) of the total
obligations of the lessee for rental payments during the remaining term of the lease included in
such Sale and Leaseback Transaction (including any period for which such lease has been extended).
In the case of any lease which is terminable by the lessee upon payment of a penalty, the
Attributable Debt shall be the lesser of (i) the Attributable Debt determined assuming termination
upon the first date such lease may be terminated (in which case the Attributable Debt shall also
include the amount of the penalty, but no rent shall be considered as required to be paid under
such lease subsequent to the first date upon which it may be so terminated) and (ii) the
Attributable Debt determined assuming no such termination.




          “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 Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.03 in substantially the form of Exhibit A hereto.












 


3








          “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 Pension Plans” means each plan which is a registered pension plan within the
meaning of the Income Tax Act (Canada).




          “Canadian Security Agreements” has the meaning assigned to such term in the Guarantee
and Collateral Agreement.




          “Capital Expenditures” means, for any period, (a) the additions to property, plant and
equipment and other capital expenditures of the Borrower and the Subsidiaries that are (or would
be) set forth in a statement of cash flows of the Borrower and its Consolidated Subsidiaries for
such period prepared in accordance with GAAP, excluding capitalized software expenses, and (b)
Capital Lease Obligations incurred by the Borrower and its Consolidated Subsidiaries during such
period (other than any such Capital Lease Obligations that shall relate to assets acquired in
transactions reflected in Capital Expenditures for any earlier period). For purposes of this
definition, (i) the purchase price of equipment or other fixed assets that are purchased
simultaneously with the trade-in of existing assets or with insurance proceeds shall be included in
Capital Expenditures only to the extent of the gross amount by which such purchase price exceeds
the credit granted by the seller of such assets for the assets being traded in at such time or the
amount of such insurance proceeds, as the case may be, (ii) acquisitions permitted by Section
6.05(f) 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 program 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 programs specified in Schedule 6.08 shall not exceed
$50,000,000 in any fiscal year. “Capital Expenditures” shall also include all Investments made
under Section 6.05(l)(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.












 





4






          “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 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, for purposes of Section 2.11(b), by any lending office of such Lender
or by such Lender’s holding company, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued after the date of this
Agreement.




          “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 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 Deutsche Bank Trust Company Americas, in its capacity as
collateral agent for the Lenders under the Guarantee and Collateral Agreement and the other
Security Documents.




          “Commitment” means, with respect to each Lender, the commitment of such Lender to make
Loans on the Effective Date, expressed as an amount representing the maximum permitted aggregate
amount of the Loans to be made by such Lender. The amount of each Lender’s Commitment is set forth
on Schedule 2.01. The aggregate amount of the Lenders’ Commitments is $1,200,000,000.




          “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










 





5




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 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 First 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.












 





6





          “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.




          “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, any promissory notes delivered pursuant to
Section 2.06(e), the Security Documents, the Lenders Lien Subordination and Intercreditor Agreement
and the Lien Subordination and Intercreditor Agreement.




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




          “Credit Facilities Documents” means the Credit Facilities Agreements, the Guarantee
and Collateral Agreement, the First 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).












 





7





          “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.




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




          “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.




          “dollars” or “$” refers to lawful money of the United States of America.




          “Domestic Subsidiary” means any Subsidiary that is not a Foreign Subsidiary.




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




          “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the presence, the










 





8




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.




          “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










 





9




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 (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.




          “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 First
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.












 





10





          “Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of 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 2.15(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 2.13(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 2.13(e).




          “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.




          “First Lien Agreement” means 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, as amended, restated, waived, replaced
(whether or not upon termination, whether or not pursuant Section 6.01(m) and whether with the
original lenders or otherwise), refinanced, restructured or otherwise modified from time to time
(except to the extent any such amendment, restatement, supplement, waiver, replacement,
refinancing, restructuring or other modification thereto would be prohibited by the terms of this
Agreement).




          “First Lien Guarantee and Collateral Agreement” means the Guarantee and Collateral
Agreement among the Borrower, the Subsidiary Guarantors, the Grantors, certain other Subsidiaries
and JPMCB, 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).




          “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










 





11




definition, the United States, each State thereof and the District of Columbia shall be deemed
to constitute a single jurisdiction.




          “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.












 







12



          “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 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).




          “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.




          “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 Coverage Ratio” means, at the time of each determination under Section
6.01(q) or 6.05(b), the ratio, determined on a pro forma basis, at such time of (i)










 






13



Consolidated EBITDA to (ii) Consolidated Interest Expense for the most recently ended period
of four consecutive fiscal quarters for which financial statements have been delivered under
Section 5.01(a) or (b) (or, at any time prior to the first delivery of such financial statements,
for the fiscal year ended December 31, 2004).




          “Interest Election Request” means a request by the Borrower to convert or continue a
Borrowing in accordance with Section 2.05 in substantially the form of Exhibit B hereto.




          “Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each
March, June, September and December and (b) with respect to any Eurodollar Loan, the last day of
the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a
Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior to
the last day of such Interest Period that occurs at intervals of three months’ duration after the
first day of such Interest Period.




          “Interest Period” means, with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the Borrower may elect;
provided that (i) if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest Period shall end on
the next preceding Business Day and (ii) any Interest Period pertaining to a Eurodollar Borrowing
that commences on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest Period) shall end on the
last Business Day of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made and, in the case of
a Borrowing, thereafter shall be the effective date of the most recent conversion or continuation
of such Borrowing.




          “Investments” has the meaning assigned to such term in Section 6.05.




          “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(r).




          “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.












 





14





          “Lenders Lien Subordination and Intercreditor Agreement” means the Lenders Lien
Subordination and Intercreditor Agreement between the Collateral Agent and the collateral agent
under the First 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).




          “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 JPMCB, Wilmington Trust Company, the
Borrower and the Subsidiary Guarantors.




          “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.












 







15



          “Lockbox System” has the meaning assigned to such term in the Guarantee and Collateral
Agreement.




          “Majority Lenders” means, at any time, Lenders having Loans representing more than 50%
of the aggregate principal amount of the total Loans outstanding (or, if the Loans have not yet
been made, Lenders having Commitments representing more than 50% of the aggregate principal amount
of the total Commitments).




          “Material Adverse Change” means a material adverse change in or effect on (a) the
business, operations, properties, assets or financial condition (including as a result of the
effects of any contingent liabilities thereon) of the Borrower and the Subsidiaries, taken as a
whole, (b) the ability of the Credit Parties, taken as a whole, to perform obligations under this
Agreement and the other Credit Documents that are material to the rights or interests of the
Lenders or (c) the rights of or benefits available to the Lenders under this Agreement and the
other Credit Documents that are material to the interests of the Lenders.




          “Material Foreign Subsidiary” means, at any time, each Foreign Subsidiary that had
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), 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.




          “Maturity Date” means April 30, 2010.




          “Moody’s” means Moody’s Investors Service, Inc., or any successor thereto.












 





16





          “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.




          “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 (it being understood that in the case of a Prepayment Event that results in a reduction of
the amount of the Borrowing Base (as defined in the First Lien Agreement), the Net Cash Proceeds in
respect of such event shall be reduced by this clause (B) by an amount equal to the reduction in
the Borrowing Base that would have resulted had such event occurred on the date of the Borrowing
Base Certificate (as defined in the First Lien Agreement) most recently delivered under the First
Lien Agreement prior to the date 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










 






17



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 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.




          “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 and (ii) all other monetary obligations of the Credit Parties
to any of the Secured Parties under this Agreement and each of the other Credit Documents,
including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent,
fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in
such proceeding), 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:












 






18





          (a) (i) Liens imposed by law for taxes that are not yet due or are being contested and
(ii) deemed trusts and Liens to which the Priority Payables Reserve relates for taxes,
assessments or other charges or levies that are not yet due and payable;




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




          (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 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;











 





19



          (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(r).












 






20




          “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.




          “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 (b), (c), (d) or (i) of
Section 6.06 or in Part III of Schedule 6.06 or in subclause (ii) of clause (f) 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 2.07 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.




          “Priority Payables Reserve” means, at any time, the sum, without duplication, of any
deductions made pursuant to the definitions contained in the First Lien Agreement 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










 





21




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.




          “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, trustee and other
advisors of such Person and such Person’s Affiliates.




          “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in 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.




          “Sale and Leaseback Transaction” means any arrangement whereby the Borrower or a
Subsidiary shall sell or transfer any property, real or personal, used or useful in its business,
whether now owned or hereinafter acquired, and thereafter rent or lease from the buyer or
transferee property that it intends to use for substantially the same purpose or purposes as the
property sold or transferred, other than any such transaction entered into with respect to any
property or any improvements thereto at the time of, or within 180 days after, the acquisition or
completion of construction of such property or such improvements (or, if later, the commencement of
commercial operation of any such property), as the case may be, to finance the cost of such
property or such improvements, as the case may be.




          “Secured Parties” means the Administrative Agent, 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










 





22




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 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 pursuant to Section 5.08 to secure any of the Obligations.




          “Senior Secured Leverage Ratio” means, at the time of each determination under Section
2.07(b) or 6.06(a), the ratio, determined on a pro forma basis, at such time of (a) Consolidated
Net Secured Indebtedness at such time to (b) Consolidated EBITDA for the most recently ended period
of four consecutive fiscal quarters for which financial statements have been delivered under
Section 5.01(a) or (b) (or, at any time prior to the first delivery of such financial statements,
for the fiscal year ended December 31, 2004).




          “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.













 






23




          “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.




          “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.




          “subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the










 





24




accounts of which are consolidated with those of the parent in the parent’s consolidated
financial statements in accordance with GAAP as of such date, as well as any other corporation,
limited liability company, partnership, association or other entity of which securities or other
ownership interests representing more than 50% of the equity or more than 50% of the ordinary
voting power or, in the case of a partnership, more than 50% of the general partnership interests
are, as of such date, owned, controlled or held by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent.




          “Subsidiary” means any subsidiary of the Borrower (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.




          “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 Subsidiary 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.




          “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 creation of the Liens and Guarantees
provided for in the Security Documents and the other transactions contemplated hereby.












 






25




          “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.




          “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.




          “Wholly Owned Subsidiary” of any person shall mean a subsidiary of such person of
which securities (except for directors’ qualifying shares) or other ownership interests
representing 100% of the Equity Interests are, at the time any determination is being made, owned,
controlled or held by such person or one or more wholly owned Subsidiaries of such person or by
such person and one or more wholly owned Subsidiaries of such person.




          “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.




          SECTION 1.02. Foreign Currency Translation. For purposes of determining compliance as
of any date with Section 6.01, 6.02, 6.03, 6.05 or 6.06, amounts incurred or outstanding in
currencies other than dollars shall be translated into dollars at the exchange rates in effect on
the first Business Day of the fiscal quarter in which such determination occurs or in respect of
which such determination is being made, as such exchange rates shall be determined in good faith by
the Borrower. No Default or Event of Default shall arise as a result of any limitation set forth
in dollars in Section 6.01, 6.02, 6.03, 6.05 or 6.06 being exceeded solely as a result of changes
in currency exchange rates from those rates applicable on the first 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).




          SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to










 






26



any restrictions on such amendments, supplements or modifications set forth herein), (b) any
reference herein to any Person shall be construed to include such Person’s successors and assigns,
but shall not be deemed to include the subsidiaries of such Person unless express reference is made
to such subsidiaries, (c) the words “herein”, “hereof” and “hereunder”, and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, and
(e) the words “asset” and “property” shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.




          SECTION 1.04. Accounting Terms; GAAP. (a) 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.




          (b) All pro forma computations required to be made under Section 6.01(q), 6.05(b) or 6.06(a)
or for purposes of determining the Senior Secured Leverage Ratio giving effect to any incurrence of
Indebtedness, Investment or Sale shall reflect on a pro forma basis such event, any related
incurrence or reduction of Indebtedness or acquisition or Sale of assets, and, to the extent
applicable, the historical earnings and cash flows associated with the assets acquired or disposed
of, in each case as if such transaction occurred on the first day of the period in respect of which
such computations are being made, but shall not take into account any projected synergies or
similar benefits expected to be realized as a result of such event. In connection with such
computations, if any Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest expense on such Indebtedness shall be calculated as if the rate in effect on
the date of determination had been the applicable rate for the entire period. Pro forma
computations shall be made in good faith by a Financial Officer of the Borrower.




ARTICLE II




The Credits




          SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, each
Lender agrees to make a Loan to the Borrower on the Effective Date in a principal amount not
exceeding its Commitment. Amounts paid or prepaid in respect of




 









 








27



Loans may not be reborrowed. The Commitments of Lenders shall expire at 5:00 p.m., New York
City time, on the Effective Date.




          SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their respective Commitments.
The failure of any Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender’s failure to make Loans as
required.




          (b) Subject to Section 2.10, each Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans as the Borrower may request in accordance herewith. Each Lender at its option may
make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this Agreement.




          (c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than
$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. Borrowings of more
than one Type may be outstanding at the same time; provided that there shall not at any
time be more than a total of 20 Eurodollar Borrowings outstanding.




          (d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.




          SECTION 2.03. Borrowing Procedure. To request a Borrowing on the Effective Date, the
Borrower shall notify the Administrative Agent of such request by telephone not later than 10:30
a.m., New York City time, on the Effective Date. 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. Such telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:





     (i) the aggregate amount of the requested Borrowing;




     (ii) the proposed Effective Date, which shall be a Business Day;




     (iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;




     (iv) 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



 









 





28





     (v) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.04.


If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar
Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s
duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.




          SECTION 2.04. Funding of Borrowings. (a) Each Lender shall make each Loan to be made
by it hereunder on the Effective Date by wire transfer of immediately available funds by 12:30
p.m., New York City time, to the account of the Administrative Agent most recently designated by it
for such purpose by notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to the account
designated by the Borrower in the Borrowing Request.




          (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
Effective Date 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 Lender
has not in fact made its share of the applicable 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 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 Lender pays such amount to the Administrative Agent, then such
amount shall constitute such Lender’s Loan included in such Borrowing. It is agreed that no
payment by the Borrower under this paragraph will be subject to any break-funding payment under
Section 2.12.




          SECTION 2.05. 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




 









 








29



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 (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 date of the
proposed Borrowing. 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.




          (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




 









 








30



(ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the
end of the Interest Period applicable thereto.




          SECTION 2.06. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of each Lender the then
unpaid principal amount of each Loan on the Maturity Date.




          (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 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 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 2.07. Prepayment of Loans. (a) The Borrower shall have the right at any time
and from time to time after the date that is six months after the Effective Date to voluntarily
prepay any Borrowing in whole or in part, subject to paragraph (d) of this Section and Section
2.08(b). No prepayment may be made under this paragraph (a) at any time prior to the date that is
six months after the Effective Date.




          (b) 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




 









 








31



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 difference, if any, between (i) 50%
of such Net Cash Proceeds and (ii) the portion of such Net Cash Proceeds required under Section
2.09(c) of the First Lien Agreement to be applied to prepay loans (with no corresponding reduction
in commitments) under the First Lien Agreement (the “Available Amount”); provided
that if the Senior Secured Leverage Ratio shall be less than 3.00 to 1.00 on the day such Net Cash
Proceeds are received and no Event of Default shall have occurred and be continuing under clause
(a), (b), (h), (i), (l) or (m) of Section 7.01 or as a result of a breach of Section 5.06, then no
prepayment shall be required pursuant to this paragraph in respect of such Available Amount at such
time. 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 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, the Borrower shall, unless the Senior Secured Leverage
Ratio shall be less than 3.00 to 1.00 on the Application Date, offer to prepay Loans on or prior to
the Application Date in an amount equal to the portion of the Available Amount that shall not have
been so applied; provided that no offer of prepayment shall be required to the extent such
amount is required to be applied to prepay loans (with no corresponding reduction in commitments)
under the First Lien Agreement on the Application Date, as required by Section 2.09(c) thereof. To
effect any such offer, the Borrower shall notify the Administrative Agent by telephone (confirmed
by telecopy) of the amount of the Loans subject to such offer to prepay and shall specify a date
(not sooner than five Business Days after the date on which such notice is delivered but not later
than three Business Days prior to the Application Date) by which each Lender shall be entitled to
elect by written notice to the Administrative Agent to receive a prepayment of its Loan in an
amount equal to such Lender’s ratable share of such prepayment amount based on the respective
outstanding Loans of the Lenders. Promptly following receipt of any such notice relating to such
offer of prepayment, the Administrative Agent shall advise the Lenders of the contents thereof and
the Borrower shall prepay such Loans as the Lenders shall elect to have prepaid not later than the
Application Date (and no prepayment shall be required in respect of amounts offered to Lenders who
did not elect to accept a prepayment).




          (c) If on any date the aggregate principal amount, without duplication, of the outstanding
loans, the undrawn amount of the outstanding letters of credit and the unused commitments under the
First Lien Agreement shall be increased to an amount in excess of $1,750,000,000 (or in excess of
any larger amount to which such outstanding loans, undrawn letters of credit and unused commitments
shall theretofore have been increased if in connection with such increase the Borrower was required
to offer to prepay Loans under this clause (c)), the Borrower shall notify the Administrative Agent
by telephone (confirmed by telecopy) of such excess and shall specify a date not sooner than five
Business Days after the date on which such excess first arises by which each Lender shall be
entitled to elect by written notice to the Administrative Agent to receive a prepayment of its Loan
in an amount equal to such Lender’s ratable share of such excess based on the respective
outstanding Loans of the Lenders. Promptly following receipt of any such notice relating to such
an excess, the Administrative Agent shall advise the




 









 








32



Lenders of the contents thereof and the Borrower shall prepay such Loans as the Lenders shall
elect to have prepaid Loans not later than three Business after the last day by which Lenders are
permitted to elect to receive a prepayment (and no prepayment shall be required in respect of
amounts offered to Lenders who did not elect to accept a prepayment).




          (d) The Borrower shall notify the Administrative Agent by telephone (confirmed by telecopy) of
any prepayment under paragraph (a) or (b) above (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 and (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid. 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 under paragraph (a) 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 2.09.




          SECTION 2.08. Fees. (a) 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.




          (b) All prepayments of Loans made pursuant to Section 2.07(a) on or after the first date on
which such prepayments are permitted to be made under such paragraph (a) but on or prior to the
first anniversary of the Effective Date will be accompanied by a prepayment fee equal to 1.00% of
the aggregate principal amount of such prepayment. Such fee shall be paid by the Borrower to the
Administrative Agent, for the accounts of the Lenders, on the date of any such prepayment.




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




          SECTION 2.09. Interest. (a) The Loans comprising each ABR Borrowing shall bear
interest at the Alternate Base Rate plus 1.75% per annum.




          (b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus 2.75% per annum.




          (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




 









 








33



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; 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, 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 2.10. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing:




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




          (b) the Administrative Agent is advised by the Majority Lenders that the Adjusted LIBO Rate
for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or 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. Each determination by the Administrative Agent hereunder shall be conclusive absent
manifest error.




          SECTION 2.11. 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



 









 





34





extended by, any Lender (except any such reserve requirement reflected in the Adjusted
LIBO Rate); or




     (ii) impose on any Lender or the London interbank market any other condition (other
than Taxes) affecting this Agreement or Eurodollar Loans made by such Lender;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan by an amount deemed by such Lender to be material, then the
Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender
for such additional costs incurred or reduction suffered.




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




          (c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such
Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this
Section shall be delivered to the 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.




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




          SECTION 2.12. 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, or (d) the assignment of any Eurodollar Loan
other than on the last day of the Interest Period




 









 








35



applicable thereto as a result of a request by the Borrower pursuant to Section 2.15, 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 2.13. 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 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 the Administrative Agent and each Lender, within 10 days
after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent or such Lender, as the case may be, on or with respect to any payment by
or on account of any obligation of the Borrower or any other Credit Party hereunder or under any
other Credit Document (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest and reasonable
out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to the Borrower
by a Lender, or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.




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




 









 








36




          (d) 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.




          (e) 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 2.14. Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) Except
as required or permitted under Section 2.07, 2.11, 2.12, 2.13, 2.15 or 9.03, each Borrowing, each
payment or prepayment of principal of any Borrowing, each payment of interest on the Loans, each
payment of fees and each refinancing of any Borrowing with a Borrowing of any Type, shall be
allocated pro rata among the Lenders in accordance with the respective principal amounts of their
outstanding Loans. Each Lender agrees that in computing such Lender’s portion of any Borrowing to
be made hereunder, the Administrative Agent may, in its discretion, round each Lender’s percentage
of such Borrowing to the next higher or lower whole dollar amount.




          (b) The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest or fees, or of amounts payable under Section 2.11, 2.12 or 2.13 or otherwise)
prior to 1:00 p.m., 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
that payments pursuant to Sections 2.11, 2.12, 2.13, 2.15 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 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. Any payment required
to be made by the Administrative Agent hereunder shall be deemed to have been




 









 








37



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, 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 then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal then due to such parties.




          (d) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Loans resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued
interest thereon than the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the Loans of other
Lenders to the extent necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on
their respective Loans. 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 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 any of its Loans 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
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 the amount due. In such event, if the Borrower has not
in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender, and to pay interest thereon for
each day from and including the date such amount shall have been distributed to it to but excluding
the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.




 









 








38




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




          SECTION 2.15. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.11 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 2.13, 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 2.11 or
2.13, 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 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 2.11, 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 2.13, 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, 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 2.11 or payments required to be made pursuant
to Section 2.13, such assignment will result in a reduction in such compensation or payments.




ARTICLE III




Representations and Warranties




          The Borrower represents and warrants to the Administrative Agent and the Lenders 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




 









 








39



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.




          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, 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 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




 









 








40



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).




          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.




 









 








41




          (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 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 (or its sub-agent for perfection) 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




 









 








42



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 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 as provided in the Lenders
Lien Subordination and Intercreditor Agreement and 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), as provided in the Lenders Lien Subordination and Intercreditor Agreement and other than
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, other than as provided in the Lenders Lien Subordination and
Intercreditor Agreement, prior and superior in right to any other Person and subject to no other
Lien other than Liens permitted under Section 6.02.




 









 








43




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




ARTICLE IV




Conditions




          SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans hereunder
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 and the Lenders 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




 









 








44



ABL Facilities Agreement) and all letters of credit thereunder (other than the “Existing
Letters of Credit” as defined in the First Lien Agreement) 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.




          (f) The First 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 First Lien Agreement shall have been satisfied, and the First Lien Agreement
shall have become effective. The Collateral Agent and the collateral agent under the First Lien
Agreement shall have entered into the Lenders Lien Subordination and Intercreditor Agreement.




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




          (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.




 









 








45




          (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 (or its sub-agent for perfection) 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.




          (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




 









 








46



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




ARTICLE V




Affirmative Covenants




          Until the Commitments shall have expired or been terminated and the principal of and interest
on each Loan and all fees payable hereunder shall have been paid in full, the Borrower covenants
and agrees with the Administrative Agent and the Lenders that:




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




          (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




 









 








47



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 thereto, (ii) demonstrating compliance with Sections
6.08 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;




 









 








48




          (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 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 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).




 









 








49




          SECTION 5.05. Books and Records; Inspection and Audit Rights.
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.




          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 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




 









 








50



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 (or its sub-agent for perfection) 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 Foreign Pledge Agreement and cause to be delivered to the Collateral Agent (or
its sub-agent for perfection) 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




 









 








51



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.




ARTICLE VI




Negative Covenants




          Until the Commitments shall have expired or been terminated and the principal of and interest
on each Loan and all fees payable hereunder shall have been paid in full, the Borrower covenants
and agrees with the Administrative Agent and the Lenders 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 First 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 aggregate amount of the outstanding loans and unfunded
commitments of the lenders thereunder on the Effective Date, additional Indebtedness that may be
incurred under the First Lien Agreement that does not result in the aggregate principal amount of
Indebtedness under the First Lien Agreement exceeding $1,750,000,000, and additional Indebtedness
that may be incurred under the First Lien Agreement that results in the aggregate principal amount
of Indebtedness under the First Lien Agreement exceeding $1,750,000,000 if the Borrower shall have
offered to prepay Loans under Section 2.07(c) in an amount not less than such excess;




          (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




 









 








52



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(c);




          (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(c)) 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 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 or (q) below 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




 









 








53



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;




          (q) unsecured Indebtedness of the Borrower or any Grantor if, immediately after giving pro
forma effect to the initial incurrence of such unsecured Indebtedness the Interest Coverage Ratio
shall exceed 2.00 to 1.00;




          (r) 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 Maturity Date,
whether on one or more scheduled dates or upon the




 









 








54



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;




          (s) 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;




          (t) 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 Maturity Date, whether on
one or more scheduled dates or upon the happening of one or more events (other than as a result of
events of default or change of control events or pursuant to customary provisions requiring that
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) (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;




          (u) 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




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




 









 








55




          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
(u);




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




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




 









 








56




          (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(t); 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) (i) to refinance Indebtedness under the First Lien Agreement or (ii) pursuant to
commitments replacing commitments under the First 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 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




 









 








57



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) any Investment by the Borrower or any Subsidiary if immediately after giving pro forma
effect to such Investment the Interest Coverage Ratio shall exceed 2.00 to 1.00;




          (c) 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;




          (d) 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;




 









 








58



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;




          (e) Guarantees expressly permitted under Section 6.01;




          (f) 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);




          (g) 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;




          (h) 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;




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




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




          (k) (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 of 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(k)(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;




          (l) 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




 









 








59



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);




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




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




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




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




          (q) 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;




          (r) 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;




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




          (t) 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) any Sale by the Borrower or any Subsidiary if after immediately giving pro forma effect to
such Sale the Senior Secured Leverage Ratio shall be less than 3.00 to 1.00;




          (b) Sales in the ordinary course of business of inventory and worn out or surplus equipment
and Permitted Investments, and Sales in the ordinary course of business and consistent with past
practices of assets other than property, plant, Investments in Subsidiaries and Intellectual
Property; provided that licensing of


 









 








60



Intellectual Property in the ordinary course of business and consistent with past practices
shall be permitted;




          (c) 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;




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




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




          (f) (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;




          (g) 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, (ii) at least 75% of the
consideration received in each such Sale listed on Part II of Schedule 6.06 shall consist of cash,
and (iii) the Sale listed on Part III of Schedule 6.06 shall be effected in a manner substantially
consistent with one of the transactions in respect thereof described on Part III;




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




          (i) Investments expressly permitted by Section 6.05; and




          (j) Sales (other than Sales of accounts receivable or inventory that are not 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 (f)(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




 









 








61



of Foreign Subsidiaries whose Equity Interests have been pledged as of the Effective 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.




          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(c), Section 6.05(f) or Section 6.05(t) and Investments expressly
permitted under Section 6.05(k), (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 (A) during any fiscal year, in an aggregate amount not
to exceed $50,000,000 and (B) at any time, any additional amount that when taken together with all
other dividends paid under this clause (vii) during the Dividend Availability Period shall not
exceed 50% of the Borrower’s cumulative Consolidated Net Income for each fiscal quarter of the
Borrower for which financial statements shall have been delivered under Section 5.01(a) or (b)
commencing with the fiscal quarter during which the first day of the Dividend Availability Period
occurred.




          (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:




 









 








62





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




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




     (iii) refinancings of Indebtedness to the extent permitted by Section 6.01(m),
including the payment of customary fees, costs and expenses in connection therewith, and
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) $850,000,000;
provided that to the extent that Capital Expenditures in any fiscal year are less than
$850,000,000 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 (c) or (ii) to make Investments under Section
6.05(f).




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 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;




 









 








63




          (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 2.08 and 2.09, 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;




          (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 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 (g) shall not apply to (i) secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such Indebtedness in accordance with
the terms and conditions of this Agreement or (ii) Material Indebtedness of any Foreign Subsidiary
if 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;




 









 








64




          (g) a Change in Control shall occur;




          (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, (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; or




          (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;



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 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




 









 








65



immediately, without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and in case of any event with respect to the Borrower described in
clause (h) or (i) of this Article, 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, in each case without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.




ARTICLE VIII




The Agents




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




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




 









 








66




          The Agents shall be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document or other writing
believed by them to be genuine and to have been signed or sent by the proper Person. The Agents
also may rely upon any statement made to them orally or by telephone and believed by them to be
made by the proper Person, and shall not incur any liability for relying thereon. The Agents may
consult with legal counsel (who may be counsel for 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 acknowledges that it has, independently and without reliance upon the Agents or
any other Lender and based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that
it will, independently and without reliance upon the Agents or any other Lender and based on such
documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any related agreement
or any document furnished hereunder or thereunder.




          Notwithstanding any other provision contained herein, each Lender acknowledges that the
Administrative Agent is not acting as an agent of the Borrower and





 









 








67



that the Borrower will not be responsible for acts or failures to act on the part of the
Administrative Agent.




          Without prejudice to the provisions of this Article VIII, each Lender 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 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 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 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 (ii) each Lender 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, 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 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, 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, 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




 









 








68



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 the Collateral Agent, to Deutsche Bank Trust Company Americas, 222 S.
Riverside Plaza, Suite 2900, Chicago, IL 60606, Attention of Marla Heller (Telecopy No.
(312) 537-1324); and




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



          (b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent
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 or
any Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the Agents and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise
have. No waiver of any provision of this Agreement or consent to any departure by 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




 









 








69



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




          (b) No Credit Document 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 or
extend the expiration date of the Commitment of any Lender without the written consent of such
Lender, (ii) reduce or forgive all or part of the principal amount of any Loan or reduce the rate
of interest thereon, or reduce any fee payable hereunder, without the prior written consent of each
Lender affected thereby, (iii) postpone the scheduled date of payment of the principal amount of
any Loan or date for the 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 2.14 in a manner that would
alter the pro rata sharing of any payment without the written consent of each Lender adversely
affected thereby, (vii) change any of the provisions of this Section or the definition of “Majority
Lenders” or any other provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender or (viii) change any of the provisions of the
second sentence of Section 2.07(a), without the written consent of each Lender; provided,
further that no such agreement shall amend, modify or otherwise affect the rights or duties
of any Agent under any Credit Document, or any provision of any Credit Document providing for
payments by or to the Administrative Agent, in each case without the prior written consent of such
Agent; 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. 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 the Lenders that will remain parties hereto after giving effect to such
amendment if 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.




          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




 









 








70



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) and (ii) all reasonable out-of-pocket expenses incurred by the Agents or any
Lender, including the fees, charges and disbursements of any counsel for the Agents or any Lender,
in connection with the enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or similar negotiations
in respect of such Loans. 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 and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses (including the reasonable fees, charges and disbursements of any counsel for
any Indemnitee), incurred by or asserted against any Indemnitee and arising out of (i) the
execution or delivery of this Agreement or any 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 the use of
the proceeds thereof, (iii) any actual or alleged presence or release of Hazardous Materials on or
from any property currently or formerly owned or operated by the 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 or any Arranger under paragraph (a) or (b) of this Section, each Lender severally agrees to
pay to such Agent or Arranger, as the case may be, such Lender’s percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought based on the
outstanding Loans of such Lender and the




 









 








71



other Lenders) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against such Agent or Arranger in its capacity as such.




          SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto, the Indemnitees and their respective
successors and assigns permitted hereby, except that (i) 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, Participants (to the extent provided in paragraph (c) of
this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the
Agents, the Arrangers 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 and the Loans at the time owing to it) with the
prior written consent (such consent not to be unreasonably withheld or delayed) of:





          (A) the 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;
and




          (B) the Administrative Agent; provided that no consent of the Administrative
Agent shall be required for an assignment to an assignee that is a Lender, an Affiliate of
a Lender, a Federal Reserve Bank or an Approved Fund.




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




          (A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund, the amount of the Commitment or Loans 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 Commitment
or Loans 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



 









 





72





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;




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




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




     (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of
this Section, from and after the effective date specified in each Assignment and Assumption
the assignee thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, 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 2.11, 2.12, 2.13 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
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 Borrower,
the Administrative Agent and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.



 









 





73





          (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.



          (c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell
participations to one or more banks or other entities (each a “Participant”) in all or a
portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion
of its Commitment and the Loans owing to it); provided that (A) such Lender’s obligations
under this Agreement shall remain





 









 








74



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 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 2.11, 2.12 and 2.13 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 2.14(d) as though it were a Lender.





     (ii) A Participant shall not be entitled to receive any greater payment under Section
2.11 or 2.13 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 2.13 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 2.13(e) as though it were a Lender.



               (d) Any Lender may, without the consent of the Borrower or the Administrative Agent, 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, regardless of any investigation made by any such other party or on its behalf and
notwithstanding that any Agent or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended hereunder, and shall
continue in full force and effect as long as the principal of or any accrued interest on any Loan
or any fee or any other amount payable under this Agreement is outstanding and unpaid and so long
as the Commitment has not expired or terminated. The provisions of Sections 2.11, 2.12, 2.13



 









 





75



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 expiration or
termination of the Commitments or the termination of this Agreement or any provision hereof.




          SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement, the other Credit Documents 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.




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




          SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing and the Loans shall have become due and payable pursuant to Article VII, each Lender and
each of its Affiliates is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time owing by such
Lender or Affiliate to or for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each of the Lenders under this Section
are in addition to other rights and remedies (including other rights of setoff) which such Lender
may have.




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




          (b) 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





 









 








76



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




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




          SECTION 9.12. Confidentiality. Each of the Agents and the Lenders agrees to maintain
the confidentiality of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates’ directors, officers, employees and agents, including accountants,
legal counsel and other advisors who have been informed of the confidential nature of such
Information and instructed to keep such




 









 








77



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
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 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
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 VI of the
Guarantee and Collateral Agreement (governing the exercise of remedies under





 









 








78



the Security Documents and the distribution of the proceeds realized from such exercise), (ii)
the provisions of Articles VIII and IX 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 (iii) the provisions of Section 11.13 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 First 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 its representative.




          SECTION 9.15. Additional Financial Covenants. Notwithstanding anything else contained
herein to the contrary, in the event that any maintenance financial covenant is included in 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. Lenders Lien Subordination and Intercreditor Agreement. Reference is
made to the Lenders Lien Subordination and Intercreditor Agreement dated as of April 8, 2005, among
JPMorgan Chase Bank, N.A., as collateral agent for the First Lien Secured Parties referred to
therein; Deutsche Bank Trust Company Americas, as collateral agent for the Second Lien Secured
Parties referred to therein; The Goodyear Tire & Rubber Company; and the subsidiaries of The
Goodyear Tire & Rubber Company named therein (the “Lenders Lien Subordination and Intercreditor
Agreement”). Each Lender (a) hereby consents to the subordination of the Liens securing the
Obligations on the terms set forth in the Lenders Lien Subordination and Intercreditor Agreement,
(b) hereby agrees that it will be bound by and will take no actions contrary to the provisions of
the Lenders Lien Subordination and Intercreditor Agreement and (c) hereby authorizes and instructs
the Collateral Agent to enter into the Lenders Lien Subordination and Intercreditor Agreement and
to subject the Liens securing the Obligations to the provisions thereof. The foregoing provisions
are intended as an inducement to the First Lien Secured Parties (as defined in the Lenders Lien
Subordination and Intercreditor Agreement) to extend credit to The Goodyear Tire & Rubber Company
and its subsidiaries, and such First Lien Secured Parties are intended third party beneficiaries of
such provisions and the provisions of the Lenders Lien Subordination and Intercreditor Agreement.




          SECTION 9.17. USA Patriot Act Notice. Each Lender and the Administrative Agent (for
itself and not on behalf of any Lender) 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




 









 








79



and record information that identifies the Borrower, which information 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,
	 
	 	 	 	 
	

	 	     by	 	 
	

	 	 	 	     /s/ Bernard J. Lillis
	

	 	 	 	 
	

	 	 	 	Name: Bernard J. Lillis
	

	 	 	 	Title:   Managing Director
	 
	 	 	 	 
	 	 	DEUTSCHE BANK TRUST COMPANY AMERICAS,
	 	 	individually and as Collateral Agent,
	 
	 	 	 	 
	

	 	     by	 	 
	

	 	 	 	     /s/ Omayra Laucella
	

	 	 	 	 
	

	 	 	 	Name: Omayra Laucella
	

	 	 	 	Title:   Vice President
	 
	 	 	 	 
	

	 	     by	 	 
	

	 	 	 	     /s/ Paul O’Leary
	

	 	 	 	 
	

	 	 	 	Name: Paul O’Leary
	

	 	 	 	Title:   Vice President






 









 






Signature Page to

The Goodyear Tire & Rubber Company’s

Second 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

Second 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

Second Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	 	LENDER: Deutsche
Bank Trust Company Americas,
	 
	 	 	 	 
	

	 	     by	 	 
	

	 	 	 	     /s/ David Mayhew
	

	 	 	 	 
	

	 	 	 	Name: David Mayhew
	

	 	 	 	Title:   Managing Director
	 
	 	 	 	 
	

	 	     by	 	 
	

	 	 	 	     /s/ Stephen Cayer
	

	 	 	 	 
	

	 	 	 	Name: Stephen Cayer
	

	 	 	 	Title:   Director






 









 






Signature Page to

The Goodyear Tire & Rubber Company’s

Second Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	 	LENDER: K2H Soleil-2 LLC,
	 
	 	 	 	 
	

	 	     by	 	 
	

	 	 	 	     /s/ Dorian Herrera
	

	 	 	 	 
	

	 	 	 	Name: Dorian Herrera
	

	 	 	 	Title:   Authorized Agent






 









 






Signature Page to

The Goodyear Tire & Rubber Company’s

Second Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	 	LENDER: MFS Floating Rate High Income Fund,
	 
	 	 	 	 
	

	 	     by	 	 
	

	 	 	 	     /s/ Philip Robbins
	

	 	 	 	 
	

	 	 	 	Name: Phillip Robbins
	

	 	 	 	Title:   Vice President






 









 






Signature Page to

The Goodyear Tire & Rubber Company’s

Second 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

Second 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

Second Lien Credit Agreement Dated as of

April 8, 2005




	 	 	 	 	 
	 	 	LENDER: UBS AG, Stamford Branch,
	 
	 	 	 	 
	

	 	     by	 	 
	

	 	 	 	     /s/ Pamela Oh
	

	 	 	 	 
	

	 	 	 	Name: Pamela Oh
	

	 	 	 	Title:   Associate Director Banking Products Services, US
	 
	 	 	 	 
	

	 	     by	 	 
	

	 	 	 	     /s/ Janice L. Randolph
	

	 	 	 	 
	

	 	 	 	Name: Janice L. Randolph
	

	 	 	 	Title:   Associate Director Banking Products Services, US