Exhibit 1.1
EXECUTION VERSION
The Goodyear Tire & Rubber Company
8.250% Senior Notes due 2020
UNDERWRITING AGREEMENT
August 10, 2010
Deutsche Bank Securities Inc.
As Representative of the
Several Underwriters
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
Ladies and Gentlemen:
The Goodyear Tire & Rubber Company, an Ohio corporation (the “Company”), proposes, subject to
the terms and conditions stated herein, to issue and sell to the several underwriters (the
“Underwriters”) named in Schedule I hereto for whom you are acting as representative (the
“Representative”) $900,000,000 in aggregate principal amount of 8.250% Senior Notes due 2020 (the
“Securities”). The respective principal amounts of the Securities to be so purchased by the
several Underwriters are set forth opposite their names in Schedule I hereto. The Securities will
be issued pursuant to an Indenture to be dated as of August 13, 2010, as amended and supplemented
by the Supplemental Indenture to be dated as of August 13, 2010 (as amended and supplemented, the
“Indenture”), among the Company, the subsidiary guarantors signatory hereto (the “Subsidiary
Guarantors”) and Wells Fargo Bank, N.A., as trustee (the “Trustee”), and will be guaranteed on an
unsecured senior basis by each of the Subsidiary Guarantors (the “Guarantees”). The term
“Securities”, when used herein, includes the Guarantees where applicable. Capitalized terms used
but not defined herein shall have the meanings given to such terms in the Registration Statement
(as defined below) and the Prospectus (as defined below).
As the Representative, you have advised the Company (a) that you are authorized to enter into
this Agreement on behalf of the several Underwriters, and (b) that the several Underwriters are
willing, acting severally and not jointly, to purchase the principal amount of Securities set forth
opposite their respective names in Schedule I.
In consideration of the mutual agreements contained herein and of the interests of the parties
in the transactions contemplated hereby, the parties hereto agree as follows:
1.
Representations and Warranties of the Company and the Subsidiary
Guarantors.
The Company and each of the Subsidiary Guarantors, jointly and severally, represent and
warrant to each of the Underwriters as follows:
(a) An “automatic shelf registration statement” as defined in Rule 405 under the Securities
Act of 1933, as amended (the “Act”), on Form S-3 (File No. 333-168704) in respect of the Securities
and the Guarantees, including a form of prospectus (the “Base Prospectus”), has been prepared and
filed by the Company not earlier than three years prior to the date hereof, in conformity with the
requirements of the Act and the rules and regulations (the “Rules and Regulations”) of the
Securities and Exchange Commission (the “Commission”) thereunder and no notice of objection of the
Commission to the use of such registration statement or any post-effective amendment thereto has
been received by the Company. The Company and the transactions contemplated by this Agreement meet
the requirements and comply with the conditions for the use of Form S-3. “Preliminary Prospectus”
means the Base Prospectus, as supplemented by any preliminary prospectus (including any preliminary
prospectus supplement) relating to the Securities and the Guarantees filed with the Commission
pursuant to Rule 424(b) under the Act and including the documents incorporated in the Base
Prospectus by reference. Copies of such registration statement, including any amendments thereto,
the Preliminary Prospectus and the exhibits, financial statements and schedules to such
registration statement, in each case as finally amended and revised, have heretofore been delivered
by the Company to you. Such registration statement, together with any post-effective amendment
thereto filed by the Company and the Subsidiary Guarantors pursuant to Rules 413(b) and 462(f)
under the Act, is herein referred to as the “Registration Statement,” which shall be deemed to
include all information omitted therefrom in reliance upon Rule 430A, 430B or 430C under the Act
and contained in the Prospectus referred to below. The Registration Statement has become effective
under the Act and no post-effective amendment to the Registration Statement has been filed as of
the date of this Agreement. “Prospectus” means the prospectus in the form first used to confirm
sales of Securities and filed with the Commission after the Applicable Time (as defined below)
pursuant to and within the time limits described in Rule 424(b) under the Act and in accordance
with Section 3(a) hereof. Any reference herein to the Registration Statement, any Preliminary
Prospectus or to the Prospectus or to any amendment or supplement to any of the foregoing documents
shall be deemed to refer to and include any documents incorporated by reference therein as of each
effective date of such Registration Statement or the date of such Preliminary Prospectus or the
Prospectus, as applicable, and, in the case of any reference herein to the Prospectus, also shall
be deemed to include any documents incorporated by reference therein, and any supplements or
amendments thereto, filed with the Commission after the date of filing of the Prospectus under Rule
424(b) under the Act, and prior to the termination of the offering of the Securities by the
Underwriters.
(b) As of the Applicable Time and as of the Closing Date (as defined below), neither (i) the
General Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable
Time, the Statutory Prospectus (as defined below) and the information included on Schedule II
hereto, all considered together (collectively, the “General Disclosure Package”), nor (ii) any
individual Limited Use Free Writing Prospectus (as defined below), when considered together with
the General Disclosure Package, included or will include any untrue statement of a
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material fact or omitted or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties as to information
contained in or omitted from the Statutory Prospectus or any Issuer Free Writing Prospectus, in
reliance upon, and in conformity with, written information furnished to the Company by or on behalf
of any Underwriter through the Representative, specifically for use therein. As used in this
subsection and elsewhere in this Agreement:
“Applicable Time” means 4:30 p.m. (New York time) on the date of this Agreement or such other
time as agreed to in writing by the Company and the Representative.
“Statutory Prospectus” means the Preliminary Prospectus, as amended and supplemented by any
document incorporated by reference therein and any prospectus supplement that has not been
superseded, in each case, immediately prior to the Applicable Time.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 under the Act, relating to the Securities and the Guarantees in the form filed or required
to be filed with the Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g) under the Act.
“General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus identified on
Schedule III to this Agreement.
“Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not a
General Use Free Writing Prospectus.
(c) Each of the Company and the Subsidiary Guarantors has been duly organized and is validly
existing and in good standing under the laws of their respective jurisdictions of organization,
with all requisite power and authority (corporate and other) necessary to own its properties and
conduct its business as described in the Registration Statement, the General Disclosure Package and
the Prospectus, and has been duly qualified as a foreign corporation or limited liability company
for the transaction of business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business so as to require such qualification,
or is subject to no liability or disability that is material to the Company and its subsidiaries
taken as a whole by reason of the failure to be so qualified or in good standing in any such
jurisdiction. As used in this Agreement, a “subsidiary” of any person means any corporation,
association, partnership or other business entity of which more than 50% of the total voting power
of shares of capital stock or other interests (including partnership interests) entitled (without
regard to the occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by: (i) such person,
(ii) such person and one or more subsidiaries of such person or (iii) one or more subsidiaries of
such person.
(d) The Company has an authorized capitalization as set forth in the Registration Statement
and the Prospectus (and any similar section or information contained in the General Disclosure
Package) and all of the issued shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable; neither the filing of the
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Registration Statement nor the offering or sale of the Securities and the Guarantees as
contemplated by this Agreement gives rise to any rights, other than those which have been waived or
satisfied for or relating to the registration of any securities of the Company or the Subsidiary
Guarantors; and all of the issued shares of capital stock or other equity interests of each
Significant Subsidiary (for purposes of this Section, as defined in Rule 1-02 of Regulation S-X
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable and (except for
directors’ qualifying shares and except as otherwise set forth in the Registration Statement, the
General Disclosure Package and the Prospectus) the capital stock or other equity interests of each
Significant Subsidiary is owned directly or indirectly by the Company, free and clear of any lien,
charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any
third party, other than those which are “Permitted Liens” as defined in the Indenture. Except as
described in the Registration Statement, the General Disclosure Package and the Prospectus, there
are no outstanding subscriptions, rights, warrants, calls or options to acquire, or instruments
convertible into or exchangeable for, or agreements or understandings with respect to the sale or
issuance of, any shares of capital stock of or other equity or other ownership interest in the
Company or any of its Significant Subsidiaries.
(e) The Commission has not issued an order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus relating to the
proposed offering of the Securities, and no proceeding for that purpose or pursuant to Section 8A
of the Act has been instituted or, to the Company’s knowledge, threatened by the Commission. The
Registration Statement, as of each effective date and at the date hereof and the Closing Date, and
the Prospectus, as of its date and at the date hereof and the Closing Date, complied and will
comply in all material respects with the requirements of the Act and the Rules and Regulations.
The documents incorporated by reference in the Prospectus, at the time filed with the Commission
conformed in all material respects to the requirements of the Exchange Act or the Act, as
applicable, and the rules and regulations of the Commission thereunder. The Registration Statement
and any amendment thereto as of each effective date and at the date hereof and the Closing Date,
did not contain, and will not contain, any untrue statement of a material fact and did not omit,
and will not omit, to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus and any amendments and supplements thereto as
of its date and at the date hereof and the Closing Date, did not contain, and will not contain, any
untrue statement of a material fact and did not omit, and will not omit, to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Company makes no representations or
warranties as to information contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon, and in conformity with, written
information furnished to the Company by or on behalf of any Underwriter through the Representative,
specifically for use therein.
(f) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Securities, did not, does not and will
not include any information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus, including any document incorporated by
reference and any prospectus supplement deemed to be a part thereof that has not been superseded or
modified; provided, however, that the Company makes no representations or
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warranties as to information contained in or omitted from any Issuer Free Writing Prospectus,
or any amendment or supplement thereto, in reliance upon, and in conformity with, written
information furnished to the Company by or on behalf of any Underwriter through the Representative,
specifically for use therein.
(g) The Company has not, directly or indirectly, distributed and will not distribute any
offering material in connection with the offering and sale of the Securities other than any
Preliminary Prospectus, the Prospectus, any General Use Free Writing Prospectuses and other
materials, if any, permitted under the Act and consistent with Section 3(b) below. The Company will
file with the Commission all Issuer Free Writing Prospectuses in the time and manner required under
Rules 163(b)(2) and 433(d) under the Act.
(h) (i) At the time of filing the Registration Statement, (ii) at the time the Company or any
person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the
Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the
Act and (iii) at the date hereof, the Company is a “well-known seasoned issuer” as defined in Rule
405 under the Act
.
The Company has not received from the Commission any notice pursuant to Rule
401(g)(2) under the Act objecting to the use of the automatic shelf registration form.
(i) (i) At the earliest time after the filing of the Registration Statement that the Company
or another offering participant made a
bona fide
offer (within the meaning of Rule 164(h)(2) under
the Act) of the Securities and (ii) as of the date hereof (with such date being used as the
determination date for purposes of this clause (ii)), the Company and each Subsidiary Guarantor was
not and is not an “ineligible issuer” (as defined in Rule 405 under the Act, without taking into
account any determination by the Commission pursuant to Rule 405 under the Act that it is not
necessary that the Company or any Subsidiary Guarantor be considered an ineligible issuer),
including, without limitation, for purposes of Rules 164 and 433 under the Act with respect to the
offering of the Securities as contemplated by the Registration Statement.
(j) The financial statements and the related notes thereto included or incorporated by
reference in the Registration Statement, the General Disclosure Package and the Prospectus present
fairly in all material respects the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of their operations and the
changes in their cash flows for the periods specified, in each case, on a consolidated basis; such
financial statements have been prepared in conformity with United States generally accepted
accounting principles (“GAAP”) applied on a consistent basis (unless otherwise disclosed therein)
throughout the periods covered thereby; and the other financial information included or
incorporated by reference in the Registration Statement, the General Disclosure Package and the
Prospectus has been derived from the accounting records of the Company and its subsidiaries and
presents fairly in all material respects the information shown thereby.
(k) PricewaterhouseCoopers LLP, who have certified certain consolidated financial statements
of the Company and its consolidated subsidiaries incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, are an independent registered public
accounting firm with respect to the Company and its subsidiaries
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as required by the Act and the Rules and Regulations and by the Public Company Accounting
Oversight Board (United States) (the “PCAOB”).
(l) Other than as set forth in the Registration Statement, the General Disclosure Package and
the Prospectus, since the date of the latest audited financial statements included or incorporated
by reference in the Registration Statement, the General Disclosure Package and the Prospectus,
there has been no change in the Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the Company’s internal control
over financial reporting.
(m) Except as would not reasonably be expected to have a material adverse effect on the
business, properties, financial position or results of operations of the Company and its
subsidiaries, taken as a whole (a “Material Adverse Effect”), the Company and its subsidiaries
maintain systems of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only
in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(n) The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) of the Exchange Act) that comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to ensure that material information relating
to the Company and its subsidiaries is made known to the Company’s principal executive officer and
principal financial officer by others within those entities; and such disclosure controls and
procedures are effective.
(o) Except as set forth in the Registration Statement, the General Disclosure Package and the
Prospectus, there are no legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or to which any property of the Company or any of its subsidiaries is
the subject, which would be required to be disclosed pursuant to Item 103 of Regulation S-K under
the Exchange Act in the Company’s Annual Report on Form 10-K if such report were filed on the date
hereof; and, to the best of the Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(p) The Company and its subsidiaries have good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned by them, in each case free
and clear of all liens, encumbrances and defects, except (i) such as are described in the
Registration Statement, the General Disclosure Package and the Prospectus, (ii) such as do not
materially affect the value of such property and do not interfere with the use made and proposed to
be made of such property by the Company and its subsidiaries, (iii) such as could not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect or (iv) Permitted
Liens; and any real property and buildings held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to
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be made of such property and buildings by the Company and its subsidiaries taken as a whole in
any material respect.
(q) The Company and its subsidiaries have paid all federal, state, local and foreign taxes
(except for such taxes that are not yet delinquent or that are being contested in good faith and by
proper proceedings) and filed all tax returns required to be paid or filed through the date hereof,
except in each case where the failure to pay or file would not reasonably be expected to have a
Material Adverse Effect; and except as otherwise disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus or as would not reasonably be expected to have a
Material Adverse Effect, there is no tax deficiency that has been, or could reasonably be expected
to be, asserted against the Company or any of its subsidiaries or any of their respective
properties or assets.
(r) Neither the Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, any loss or interference with its
business that is material to the Company and its subsidiaries, taken as a whole, from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, except as set forth or contemplated in the
Registration Statement, the General Disclosure Package and the Prospectus; and, since the date as
of which information is given in the Registration Statement, the General Disclosure Package and the
Prospectus, there has not been any change in the capital stock (other than issuances pursuant to
equity incentive plans) or increase in long-term debt of the Company or any of its subsidiaries
that is material to the Company and its subsidiaries taken as a whole, or any material adverse
change, or any development that would reasonably be expected to result in a material adverse
change, in or affecting the business, properties, financial position or results of operations of
the Company and its subsidiaries, taken as a whole, except as set forth or contemplated in the
Registration Statement, the General Disclosure Package and the Prospectus.
(s) Since the date of the latest audited financial statements of the Company included or
incorporated by reference in the Registration Statement, the General Disclosure Package and the
Prospectus, neither the Company nor any of its subsidiaries has entered into any transaction or
agreement that is material to the Company and its subsidiaries, taken as a whole, or incurred any
liability or obligation, direct or contingent, that is material to the Company and its
subsidiaries, taken as a whole, other than as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus.
(t) Neither the Company nor any of its subsidiaries is (i) in violation of its Articles of
Incorporation or Code of Regulations or other similar organizational documents, (ii) in default in
the performance or observance of any obligation, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound or (iii) in violation of any statute,
law, rule, regulation, judgment, order or decree applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or such subsidiary or any of its properties,
as applicable, except, in the case of clauses (ii) and (iii), for
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any default or violation
that would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(u) The execution, delivery and performance by each of the Company and the Subsidiary
Guarantors of each of the Transaction Documents (as defined below) to which it is a party, the
issuance and sale of the Securities (including the Guarantees) and the compliance by each of the
Company and the Subsidiary Guarantors with all of the provisions of the Transaction Documents and
the consummation of the transactions herein and therein contemplated will not (i) conflict with or
result in a breach or violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, (ii) result in any violation of the provisions of the Articles of
Incorporation or Code of Regulations or other similar organizational documents of the Company or
any Subsidiary Guarantor or (iii) result in any violation of any law or statute or any judgment,
order, rule or regulation of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or assets, except, in the case of
clauses (i) and (iii) above, for any such conflict, breach or violation that would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and no
consent, approval, authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Securities (including the
Guarantees) or the consummation by the Company and the Subsidiary Guarantors of the transactions
contemplated by this Agreement, except such as have been obtained or made by the Company and the
Subsidiary Guarantors and are in full force and effect under the Act and for such consents,
approvals, authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws or under the securities laws of Canada or any province thereof or from
the Financial Industry Regulatory Authority (“FINRA”) in connection with the purchase and resale of
the Securities by the Underwriters.
(v) Each of the Company and the Subsidiary Guarantors has full right, corporate or limited
liability company power, as applicable, and authority to execute and deliver, as applicable, this
Agreement, the Securities and the Indenture (including each applicable Guarantee set forth therein)
(collectively, the “Transaction Documents”) and to perform their respective obligations hereunder
and thereunder; and all corporate or limited liability company action, as applicable, required to
be taken for the due and proper authorization, execution and delivery of each of the Transaction
Documents and the consummation of the transactions contemplated thereby has been duly and validly
taken.
(w) The Indenture has been duly authorized by the Company and each of the Subsidiary
Guarantors and, when duly executed and delivered in accordance with its terms by each of the
parties thereto, will constitute a valid and legally binding agreement of the Company and each of
the Subsidiary Guarantors enforceable against the Company and each of the Subsidiary Guarantors in
accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general applicability relating to or
affecting creditors’ rights and to general equity principles regardless of whether considered in a
proceeding in equity or at law (collectively, the “Enforceability Exceptions”), and as of the
Closing Date, the Indenture will conform in all material respects to
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the requirements of the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”)
and the rules and regulations of the Commission applicable to an indenture qualified thereunder.
(x) The Securities have been duly authorized by the Company and, when duly executed,
authenticated, issued and delivered as provided in the Indenture and paid for as provided herein,
will be duly and validly issued and outstanding and will constitute valid and legally binding
obligations of the Company enforceable against the Company in accordance with their terms, subject
to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the
Guarantees have been duly authorized by each of the Subsidiary Guarantors and, when the Securities
have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid
for as provided herein, will be valid and legally binding obligations of each of the Subsidiary
Guarantors, enforceable against each of the Subsidiary Guarantors in accordance with their terms,
subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(y) Each Transaction Document conforms in all material respects to the description thereof
contained in the Registration Statement and the Prospectus.
(z) This Agreement has been duly authorized, executed and delivered by the Company and each
of the Subsidiary Guarantors.
(aa) The Company and its subsidiaries own, license or otherwise possess adequate rights to
use all material patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential information, systems
or procedures) necessary for the conduct of their respective businesses, except where the failure
to own, license or otherwise possess such rights would not reasonably be expected to have a
Material Adverse Effect; and the conduct of their respective businesses will not conflict in any
respect with any such rights of others, and the Company and, to the best of the Company’s
knowledge, its subsidiaries, have not received written notice of any claim of infringement of or
conflict with any such rights of others, except in each case such conflicts or infringements that,
if adversely determined against the Company or any of its subsidiaries, would not reasonably be
expected to have a Material Adverse Effect.
(bb) The Company and its subsidiaries possess all licenses, certificates, permits and other
authorizations issued by, and have made all declarations and filings with, the appropriate federal,
state, local or foreign governmental or regulatory authorities that are necessary for the ownership
or lease of their respective properties or the conduct of their respective businesses as described
in the Registration Statement, the General Disclosure Package and the Prospectus, except where the
failure to possess or make the same would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and except as described in the Registration Statement,
the General Disclosure Package and the Prospectus or as would not reasonably be expected to have a
Material Adverse Effect, neither the Company nor any of its subsidiaries has received written
notice of any revocation or modification of any such license, certificate, permit or authorization
or has any reason to believe that any such license, certificate, permit or authorization will not
be renewed in the ordinary course.
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(cc) The statements set forth in the Registration Statement, the General Disclosure Package
and the Prospectus under the caption “Description of Notes,” insofar as they purport to constitute
a summary of the Securities and the Guarantees, and under the caption “Certain Material United
States Federal Income Tax Considerations,” insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and fair in all material
respects.
(dd) Prior to the date hereof, neither the Company nor any of its affiliates (as defined in
Rule 144 under the Act) has taken any action which is designed to or which has constituted or which
might have been expected to cause or result in stabilization or manipulation of the price of any
security of the Company in connection with the offering of the Securities.
(ee) Neither the Company nor any subsidiary of the Company is, and after giving effect to the
offering and sale of the Securities and the issuance of the Guarantees, none of them will be an
“investment company,” as such term is defined in the Investment Company Act of 1940, as amended
(the “1940 Act”).
(ff) Except as would not reasonably be expected to have a Material Adverse Effect, the
Company and its subsidiaries have insurance covering their respective properties, operations,
personnel and businesses, which insurance is in amounts and insures against such losses and risks
as are customary among companies of established reputation engaged in the same or similar
businesses and operating in the same or similar locations; and neither the Company nor, to the best
of the Company’s knowledge, any of the its subsidiaries, has (i) received written notice from any
insurer or agent of such insurer that capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance or (ii) any reason to believe that it will
not be able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage at reasonable cost from similar insurers as may be necessary to continue its
business, except, in the case of clause (ii), as would not reasonably be expected to have a
Material Adverse Effect.
(gg) Except as would not reasonably be expected to have a Material Adverse Effect, (a) each
employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed to by
the Company or any of its affiliates for employees or former employees of the Company and its
affiliates is in compliance in all material respects with its terms and the requirements of any
applicable statutes, orders, rules and regulations, including but not limited to ERISA and the
Internal Revenue Code of 1986, as amended (the “Code”), and (b) no prohibited transaction, within
the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any
such plan excluding transactions effected pursuant to a statutory or administrative exemption; and
for the plans that are subject to the funding rules of Section 412 of the Code or Section 302 of
ERISA, except as set forth in the Registration Statement, the General Disclosure Package and the
Prospectus, the present value of all benefit liabilities under each such plan (based on the
assumptions used for purposes of Accounting Standards Codification Topic 715) did not, as of the
last date the plans were measured for year-end disclosure purposes, exceed by more than $1,226
million the fair market value of the assets of such plan, and the present value of all benefit
liabilities of all underfunded plans (based on the assumptions used for purposes of Accounting
Standards Codification Topic 715) did not, as of
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the last date the plans were measured for year-end disclosure purposes, exceed by more than
$1,843 million the fair market value of the assets of all such underfunded plans, and no such plan
has failed to satisfy the minimum funding standard as defined in Section 412 of the Code or Section
302 of ERISA.
(hh) The Company and its subsidiaries (i) are in compliance with any and all applicable
federal, state, local and foreign laws, rules, regulations, decisions and orders relating to the
protection of human health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (collectively, “Environmental Laws”); (ii) have received and are in
compliance with all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses; and (iii) have not received notice of
any actual or potential liability for the investigation or remediation of any disposal or release
of hazardous or toxic substances or wastes, pollutants or contaminants, except in any such case for
any such failure to comply with, or failure to receive required permits, licenses or approvals, or
liability, as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(ii) None of the information on (or hyperlinked from) the Company’s website at
www.goodyear.com, or any website of any subsidiary of the Company maintained or supported by the
Company, includes or constitutes a “free writing prospectus” as defined in Rule 405 under the Act
(other than any information that has been filed by the Company with the Commission in accordance
with Rule 433 under the Act).
(jj) Except as would not reasonably be expected to have a Material Adverse Effect, neither
the Company nor any of its subsidiaries nor, to the best knowledge of the Company and its
subsidiaries, no director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to political activity; (ii)
made any direct or indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; (iii) violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment.
(kk) Except as described in the Registration Statement, the General Disclosure Package and
the Prospectus, no labor disturbance by or dispute with employees of the Company or any of its
subsidiaries exists or, to the best knowledge of the Company, is contemplated or threatened, in
each case that would be reasonably expected to have a Material Adverse Effect.
(ll) None of the transactions contemplated by this Agreement (including, without limitation,
the use of the proceeds from the sale of the Securities as described in the Prospectus) will
violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated
thereunder, including, without limitation, Regulations T, U and X of the Board of Governors of the
Federal Reserve System.
(mm) On and immediately after the Applicable Time, the Company (after giving effect to the
issuance of the Securities and the other transactions related thereto as described in the
Registration Statement, the Prospectus and the General Disclosure Package) will be Solvent.
11
As used in this paragraph, the term “Solvent” means, with respect to a particular date, that
on such date (i) the present fair market value (or present fair saleable value) of the assets of
the Company is not less than the total amount required to pay the liabilities of the Company on its
total existing debts and liabilities (including contingent liabilities) (which liabilities are
calculated for purposes of this representation in the manner used in the preparation of the
Company’s consolidated financial statements) as they become absolute and matured; (ii) the Company
is able to realize upon its assets and pay its debts and other liabilities, contingent obligations
and commitments as they mature and become due in the normal course of business (assuming the
ability to refinance existing obligations in the normal course of business); (iii) assuming
consummation of the issuance of the Securities as contemplated by this Agreement, the Prospectus
and the General Disclosure Package, the Company is not incurring debts or liabilities beyond its
ability to pay as such debts and liabilities mature (assuming the ability to refinance existing
obligations in the normal course of business); and (iv) the Company is not engaged in any business
or transaction, and does not propose to engage in any business or transaction, for which its
property would constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which the Company is engaged.
(nn) Except as would not reasonably be expected to have a Material Adverse Effect, the
operations of the Company and its subsidiaries are and have been conducted at all times in
compliance with applicable financial recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all
jurisdictions applicable to the Company and its subsidiaries, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency applicable to the Company and its subsidiaries (collectively, the “Money
Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries with respect
to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(oo) None of the Company, any of its subsidiaries or, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Department of the Treasury (“OFAC”); and the Company will not, directly or indirectly, use the
proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
2.
Purchase, Sale and Delivery of the Securities.
(a) On the basis of the representations, warranties and covenants herein contained, and
subject to the conditions herein set forth, the Company agrees to issue and sell to the
Underwriters and each Underwriter agrees, severally and not jointly, to purchase, the respective
principal amount of Securities set forth opposite such Underwriter’s name in Schedule I hereto at a
price equal to 97.288% of the principal amount thereof plus accrued interest, if any, from August
13, 2010 to the Closing Date, subject to adjustments in accordance with Section 9 hereof.
12
(b) Payment for the Securities to be sold hereunder is to be made in Federal (same day) funds
against delivery of one or more global notes in book-entry form representing the Securities
(collectively, the “Global Note”) to the Representative for the several accounts of the
Underwriters, with any transfer taxes payable in connection with the sale of the Securities duly
paid by the Company. Such payment and delivery are to be made through the facilities of The
Depository Trust Company, New York, New York at 10:00 a.m., New York time, on the third business
day after the date of this Agreement or at such other time and date not later than five business
days thereafter as you and the Company shall agree upon, such time and date being herein referred
to as the “Closing Date.” (As used herein, “business day” means a day on which the New York Stock
Exchange is open for trading and on which banks in New York are open for business and are not
permitted by law or executive order to be closed.) The Global Note will be made available for
inspection by the Representative not later than 1:00 p.m., New York time, on the business day prior
to the Closing Date.
(c) It is understood that the Underwriters intend to offer the Securities for sale to the
public at the price set forth in the Prospectus.
(d) Any action by the Underwriters hereunder may be taken by Deutsche Bank Securities Inc. on
behalf of the Underwriters, and any such action taken by Deutsche Bank Securities Inc. shall be
binding upon the Underwriters.
3.
Covenants of the Company and the Subsidiary Guarantors.
The Company and the Subsidiary Guarantors, jointly and severally, covenant and agree with the
several Underwriters that:
(a) The Company will (i) prepare and timely file with the Commission under Rule 424(b)
(without reliance on Rule 424(b)(8)) under the Act the Prospectus in a form approved by the
Representative containing information previously omitted at the time of effectiveness of the
Registration Statement in reliance on Rule 430A, 430B or 430C under the Act, (ii) during the
Prospectus Delivery Period (as defined below), not file any amendment to the Registration Statement
or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or any
document incorporated by reference therein of which the Representative shall not previously have
been advised and furnished with a copy or to which the Representative shall have reasonably
objected in writing or which is not in compliance with the Rules and Regulations and (iii) file on
a timely basis all reports and any definitive proxy or information statements required to be filed
by the Company with the Commission subsequent to the date of the Prospectus and during the
Prospectus Delivery Period.
(b) The Company will (i) not make any offer relating to the Securities that would constitute
an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus”
(as defined in Rule 405 under the Act) required to be filed by the Company with the Commission
under Rule 433 under the Act unless the Representative approves its use in writing prior to first
use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the
Representative shall be deemed to have been given in respect of the Issuer Free Writing
Prospectus(es) included in Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus
as an Issuer Free Writing Prospectus, (iii) comply with the requirements of
13
Rules
163, 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including the
requirements relating to timely filing with the Commission, legending and record keeping and (iv)
not take any action that would result in an Underwriter or the Company being required to file with
the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on
behalf of such Underwriter that such Underwriter otherwise would not have been required to file
thereunder.
(c) The Company will advise the Representative promptly (i) when any post-effective amendment
to the Registration Statement or new registration statement relating to the Securities and the
Guarantees shall have become effective, or any supplement to the Prospectus shall have been filed,
(ii) of the receipt of any comments from the Commission relating to the Registration Statement or
the Prospectus, (iii) of any request of the Commission for amendment of the Registration Statement
or the filing of a new registration statement relating to the Securities or the Guarantees or any
amendment or supplement to the General Disclosure Package or the Prospectus, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or such new registration statement or any order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the institution
of any proceedings for that purpose or pursuant to Section 8A of the Act. The Company will use its
best efforts to prevent the issuance of any such order and to obtain as soon as possible the
lifting thereof, if issued.
(d) If at any time during the Prospectus Delivery Period the Company receives from the
Commission a notice pursuant to Rule 401(g)(2) under the Act or otherwise ceases to be eligible to
use the automatic shelf registration statement form, the Company will (i) promptly notify the
Representative, (ii) promptly file a new registration statement or post-effective amendment on the
proper form relating to the Securities (including the Guarantees), in a form satisfactory to the
Representative, (iii) use its best efforts to cause such registration statement or post-effective
amendment to be declared effective as soon as practicable (if such filing is not otherwise
effective immediately pursuant to Rule 462 under the Act), and (iv) promptly notify the
Representative of such effectiveness. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Securities (including the Guarantees) to
continue as contemplated in the Registration Statement that was the subject of the notice under
Rule 401(g)(2) under the Act or for which the Company has otherwise become ineligible. References
herein to the Registration Statement relating to the Securities and the Guarantees shall include
such new registration statement or post-effective amendment, as the case may be.
(e) The Company agrees to pay the required filing fees to the Commission relating to the
Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso
therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act (including, if
applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule
456(b)(1)(ii), either in a post-effective amendment to the Registration Statement or on the cover
page of a prospectus filed pursuant to Rule 424(b) under the Act).
(f) The Company will promptly from time to time take such action as the Representative may
reasonably request to qualify the Securities (including the Guarantees) for offering and sale under
the securities laws of such jurisdictions as the Representative may reasonably request and to
comply with such laws so as to permit the continuance of sales and
14
dealings therein in such jurisdictions for as long as may be necessary to complete the
offering and resale of the Securities (including the Guarantees), provided that in connection
therewith the Company shall not be required (i) to qualify as a foreign corporation, (ii) to file a
general consent to service of process in any jurisdiction or (iii) to take any action that would
subject itself to taxation in any jurisdiction if it is not otherwise so subject.
(g) The Company will deliver to, or upon the order of, the Representative, from time to time,
as many copies of any Preliminary Prospectus as the Representative may reasonably request. The
Company will deliver to, or upon the order of, the Representative, from time to time, as many
copies of any Issuer Free Writing Prospectus as the Representative may reasonably request. The
Company will deliver to, or upon the order of, the Representative during the period when delivery
of a Prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is
required under the Act (the “Prospectus Delivery Period”), as many copies of the Prospectus in
final form, or as thereafter amended or supplemented, as the Representative may reasonably request.
The Company will deliver to the Representative at or before the Closing Date, such number of
copies of the Registration Statement (including such number of copies of the exhibits filed
therewith that may reasonably be requested), including documents incorporated by reference therein,
and of all amendments thereto, as the Representative may reasonably request.
(h) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act,
and the rules and regulations of the Commission thereunder, so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and the Prospectus. If during the
Prospectus Delivery Period, any event shall occur as a result of which, in the judgment of the
Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light of the
circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or,
if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the
Company promptly will either (i) prepare and file with the Commission an appropriate amendment to
the Registration Statement or supplement to the Prospectus or (ii) prepare and file with the
Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in
the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with
the law.
(i) If the General Disclosure Package is being used to solicit offers to buy the Securities
at a time when the Prospectus is not yet available to prospective purchasers and any event shall
occur as a result of which, in the judgment of the Company or in the reasonable opinion of the
Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order
to make the statements therein, in the light of the circumstances, not misleading, or to make the
statements therein not conflict with the information contained in the Registration Statement then
on file, or if it is necessary at any time to amend or supplement the General Disclosure Package to
comply with any law, the Company promptly will either (i) prepare, file with the Commission (if
required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to
the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing
under the Exchange Act which shall be incorporated by reference in the General Disclosure Package
so that the General
15
Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be
misleading or conflict with the Registration Statement then on file, or so that the General
Disclosure Package will comply with law.
(j) The Company will make generally available to its security holders, as soon as it is
practicable to do so, but in any event not later than 16 months after the effective date of the
Registration Statement, an earnings statement (which need not be audited) in reasonable detail,
covering a period of at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of
the Act and Rule 158 under the Act.
(k) The Company shall not, during the period beginning from the date hereof and continuing
until the date 90 days after the Closing Date, offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any debt securities issued or guaranteed by the Company or any of
the Subsidiary Guarantors that are substantially similar to the Securities without the prior
written consent of the Representative.
(l) The Company shall apply the net proceeds of its sale of the Securities as set forth in
the Registration Statement, the General Disclosure Package and the Prospectus.
(m) The Company shall not be or become, at any time prior to the expiration of two years
after the Closing Time, an open-end investment company, unit investment trust, closed-end
investment company or face-amount certificate company that is or is required to be registered under
Section 8 of the 1940 Act.
(n) The Company will not take, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation of the price of the
Securities.
4.
Covenant of the Underwriters.
Each Underwriter hereby represents
and agrees that:
It has not and will not use, authorize use of, refer to, or participate in the planning for
use of, any “free writing prospectus”, as defined in Rule 405 under the Act (which term includes
use of any written information furnished to the Commission by the Company and not incorporated by
reference into the Registration Statement and any press release issued by the Company) other than
(i) a free writing prospectus that, solely as a result of use by such Underwriter, would not
trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule
433, (ii) any Issuer Free Writing Prospectus listed on Schedule III or prepared pursuant to Section
3(b) above (including any electronic road show), or (iii) any free writing prospectus prepared by
such Underwriter and approved by the Company in advance in writing.
5.
Costs and Expenses.
The Company will pay all costs, expenses and fees incident to the performance of the
obligations of the Company under this Agreement, including, without limiting the generality of the
foregoing, the following: accounting fees of the Company; the fees and disbursements of counsel for
the Company; any roadshow expenses incurred by the Company for airfare, hotel and
16
other travel expenses; the cost of printing and delivering to, or as requested by, the
Underwriters copies of the Registration Statement, Preliminary Prospectuses, the Issuer Free
Writing Prospectuses, the Prospectus, this Agreement, the Blue Sky Survey and any supplements or
amendments thereto; the filing fees of the Commission; the filing fees and expenses (including
legal fees and disbursements) incident to securing any required review by the FINRA of the terms of
the sale of the Securities; and the expenses, including the fees and disbursements of counsel for
the Underwriters, incurred in connection with the qualification of the Securities under State
securities or Blue Sky laws. The Company shall not, however, be required to pay for any of the
Underwriter’s expenses (other than those related to qualification under FINRA regulations and State
securities or Blue Sky laws) except that, if this Agreement shall not be consummated because the
conditions in Section 6 hereof are not satisfied, or because this Agreement is terminated by the
Representative pursuant to Section 11 hereof, or by reason of any failure, refusal or inability on
the part of the Company to perform any undertaking or satisfy any condition of this Agreement or to
comply with any of the terms hereof on its part to be performed, unless such failure, refusal or
inability is due primarily to the default or omission of any Underwriter, the Company shall
reimburse the several Underwriters for reasonable out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred in connection with investigating, marketing and
proposing to market the Securities or in contemplation of performing their obligations hereunder;
but the Company shall not in any event be liable to any of the several Underwriters for damages on
account of loss of anticipated profits from the sale by them of the Securities.
6.
Conditions of Obligations of the Underwriters.
The several obligations of the Underwriters to purchase the Securities on the Closing Date are
subject to the accuracy, as of the date hereof and the Closing Date, as the case may be, of the
representations and warranties of the Company and the Subsidiary Guarantors contained herein, and
to the performance by the Company and the Subsidiary Guarantors of their respective covenants and
obligations hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective amendments thereto shall have become
effective and the Prospectus and each Issuer Free Writing Prospectus shall have been filed as
required by Rules 424, 430A, 430B, 430C or 433 under the Act, as applicable, within the time period
prescribed by, and in compliance with, the Rules and Regulations, and any request of the Commission
for additional information (to be included or incorporated by reference in the Registration
Statement or otherwise) shall have been disclosed to the Representative and complied with to their
reasonable satisfaction. No stop order suspending the effectiveness of the Registration Statement,
as amended from time to time, shall have been issued and no proceedings for that purpose or
pursuant to Section 8A under the Act shall have been taken or, to the knowledge of the Company,
shall be contemplated or threatened by the Commission and no injunction, restraining order or order
of any nature by a Federal or state court of competent jurisdiction shall have been issued as of
the Closing Date which would prevent the issuance of the Securities.
(b) The Representative shall have received on the Closing Date the opinions of Covington &
Burling LLP, counsel for the Company, Fasken Martineau DuMoulin LLP, counsel for Goodyear Canada
Inc., and David L. Bialosky, Esq., Senior Vice President, General Counsel
17
and Secretary of the Company, dated the Closing Date addressed to the Underwriters, in each
case, in form and substance satisfactory to you, substantially in the forms set forth in Annex I,
Annex II and Annex III hereto, respectively.
(c) The Representative shall have received from Cravath, Swaine & Moore LLP, counsel for the
Underwriters, an opinion or opinions dated the Closing Date with respect to such matters as the
Representative may reasonably request.
(d) You shall have received, on each of the date hereof and the Closing Date, a letter dated
the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to you,
of PricewaterhouseCoopers LLP confirming that they are an independent registered public accounting
firm with respect to the Company and its subsidiaries within the meaning of the Act and the
applicable Rules and Regulations and the PCAOB and stating that in their opinion the financial
statements and schedules examined by them and included or incorporated by reference in the
Registration Statement, the General Disclosure Package and the Prospectus comply in form in all
material respects with the applicable accounting requirements of the Act and the related Rules and
Regulations; and containing such other statements and information as is ordinarily included in
accountants’ “comfort letters” to Underwriters with respect to the financial statements and certain
financial and statistical information contained in the Registration Statement, the General
Disclosure Package and the Prospectus.
(e) The Representative shall have received on the Closing Date a certificate or certificates
of an elected officer of the Company with specific knowledge of the Company’s financial affairs to
the effect that, as of the Closing Date, such elected officer represents as follows:
(i) the Registration Statement has become effective under the Act and no stop order
suspending the effectiveness of the Registration Statement and no order preventing or suspending
the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus has
been issued, and no proceedings for such purpose or pursuant to Section 8A of the Act have been
taken or are, to his or her knowledge, contemplated or threatened by the Commission;
(ii) the representations and warranties of the Company and the Subsidiary Guarantors
contained in Section 1 hereof are true and correct as of the Closing Date;
(iii) since the Applicable Time (A) there has not been any downgrading in the rating accorded
the Company’s debt securities by Moody’s Investors Service, Inc. (“Moody’s”) or Standard & Poor’s
Ratings Group (“S&P”), and (B) neither Moody’s nor S&P has publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any of the Company’s
debt securities; and
(iv) since the date as of which information is given in the Registration Statement, the
General Disclosure Package and the Prospectus, there has not been any change in the capital stock
(other than issuances pursuant to equity incentive plans) or increase in long-term debt of the
Company or any of its subsidiaries that is material to the Company and its subsidiaries taken as a
whole, or any material adverse change, or any development that would
18
reasonably be expected to result in a material adverse change, in or affecting the business,
properties, financial position or results of operations of the Company and its subsidiaries, taken
as a whole, except as set forth or contemplated in the Registration Statement, the General
Disclosure Package and the Prospectus.
(f) The Company shall have furnished to the Representative such further certificates and
documents confirming the representations and warranties, covenants and conditions contained herein
and related matters as the Representative may reasonably have requested.
If any of the conditions hereinabove provided for in this Section 6 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, the obligations of the
Underwriters hereunder may be terminated by the Representative by notifying the Company of such
termination in writing at or prior to the Closing Date.
In such event, the Company and the Underwriters shall not be under any obligation to each
other (except to the extent provided in Sections 5 and 8 hereof).
7.
Conditions of the Obligations of the Company.
The obligations of the Company to sell and deliver the Securities required to be delivered as
and when specified in this Agreement are subject to the conditions that at the Closing Date no stop
order suspending the effectiveness of the Registration Statement shall have been issued and be in
effect or proceedings therefor initiated or threatened.
8.
Indemnification.
(a) The Company and each of the Subsidiary Guarantors, jointly and severally, agree:
(1) to indemnify and hold harmless each Underwriter, the directors and officers of each
Underwriter, each affiliate of any Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act, against any losses, claims, damages or liabilities to which such Underwriter, such
affiliate or any such controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, any Preliminary Prospectus,
any Issuer Free Writing Prospectus, the Prospectus or any amendment or supplement thereto,
(ii) with respect to the Registration Statement or any amendment or supplement thereto, the
omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading or (iii) with respect to any
Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus or any amendment
or supplement thereto, the omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading in the light of the circumstances
under which they were made; provided, however, that the Company and each of the Subsidiary
Guarantors will not be liable in any such case to the extent that any such loss, claim,
damage or liability
19
arises out of or is based upon an untrue statement or alleged untrue statement, or
omission or alleged omission made in the Registration Statement, any Preliminary Prospectus,
any Issuer Free Writing Prospectus, the Prospectus, or such amendment or supplement, in
reliance upon and in conformity with written information furnished to the Company by or
through the Representative specifically for use therein; and
(2) to reimburse each Underwriter, each Underwriter’s directors and officers, each
affiliate of any Underwriter and each such controlling person upon demand for any legal or
other out-of-pocket expenses reasonably incurred by such Underwriter, such affiliate or such
controlling person in connection with investigating or defending any such loss, claim,
damage, liability, action or proceeding or in responding to a subpoena or governmental
inquiry related to the offering of the Securities, whether or not such Underwriter or
controlling person is a party to any action or proceeding. In the event that it is finally
judicially determined that the Underwriters were not entitled to receive payments for legal
and other expenses pursuant to this subparagraph, the Underwriters will promptly return all
sums that had been advanced pursuant hereto. This indemnity agreement in this Section 8(a)
will be in addition to any liability which the Company and the Subsidiary Guarantors may
otherwise have.
(b) Each Underwriter severally and not jointly will indemnify and hold harmless the Company,
each of the Subsidiary Guarantors, each of their respective directors, each of their respective
officers who have signed the Registration Statement, and each person, if any, who controls the
Company or any Subsidiary Guarantor within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, against any losses, claims, damages or liabilities to which the Company, any
Subsidiary Guarantor or any such director, officer or controlling person may become subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus, the Prospectus or any amendment or supplement
thereto, (ii) with respect to the Registration Statement or any amendment or supplement thereto,
the omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) with respect to any Preliminary
Prospectus, any Issuer Free Writing Prospectus, the Prospectus or any amendment or supplement
thereto, the omission or alleged omission to state therein a material fact necessary to make the
statements therein not misleading in the light of the circumstances under which they were made; and
will reimburse any legal or other expenses reasonably incurred by the Company, any Subsidiary
Guarantor or any such director, officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding; provided, however, that
each Underwriter will be liable in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the
Prospectus or such amendment or supplement, in reliance upon and in conformity with written
information relating to such Underwriter furnished to the Company by or through the Representative
specifically for use therein. This indemnity agreement will be in addition to any liability which
such Underwriter may otherwise have.
20
(c) In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought pursuant to this
Section 8, such person (the “indemnified party”) shall promptly notify the person against whom such
indemnity may be sought (the “indemnifying party”) in writing. No indemnification provided for in
Section 8(a) or (b) shall be available to any party who shall fail to give notice as provided in
this Section 8(c) if the party to whom notice was not given was unaware of the proceeding to which
such notice would have related and was materially prejudiced by the failure to give such notice,
but the failure to give such notice shall not relieve the indemnifying party or parties from any
liability which it or they may have to the indemnified party for contribution or otherwise than on
account of the provisions of Section 8(a) or (b). In case any such proceeding shall be brought
against any indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party and shall pay as incurred
the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel at its own expense.
Notwithstanding the foregoing, the indemnifying party shall pay as incurred (or within 30 days of
presentation) the fees and expenses of the counsel retained by the indemnified party, reasonably
incurred, in the event (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them or (iii) the indemnifying party shall have failed to
assume the defense and employ counsel acceptable to the indemnified party within a reasonable
period of time after notice of commencement of the action. Such firm shall be designated in
writing by you in the case of parties indemnified pursuant to Section 8(a) and by the Company in
the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by reason of such
settlement or judgment. In addition, the indemnifying party will not, without the prior written
consent of the indemnified party, settle or compromise or consent to the entry of any judgment in
any pending or threatened claim, action or proceeding of which indemnification may be sought
hereunder (whether or not any indemnified party is an actual or potential party to such claim,
action or proceeding) unless such settlement, compromise or consent (x) includes an unconditional
release of each indemnified party from all liability arising out of such claim, action or
proceeding and (y) does not include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party under Section 8(a) or (b) above in respect of
any losses, claims, damages or liabilities (or actions or proceedings in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Subsidiary Guarantors on the one hand and the Underwriters
on the other from the offering of the Securities. If, however, the allocation provided by the
21
immediately preceding sentence is not permitted by applicable law then each indemnifying party
shall contribute to such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of the Company
and the Subsidiary Guarantors on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof), as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Subsidiary Guarantors on the one hand and
the Underwriters on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company and the Subsidiary Guarantors on the one hand or the Underwriters on the other and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in this Section 8(d).
The amount paid or payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to above in this Section 8(d)
shall be deemed to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), (i) no Underwriter shall be required to contribute any amount in
excess of the underwriting discounts and commissions applicable to the Securities purchased by such
Underwriter and (ii) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters’ obligations in this Section 8(d) to
contribute are several in proportion to their respective underwriting obligations and not joint.
(e) In any proceeding relating to the Registration Statement, any Preliminary Prospectus, any
Issuer Free Writing Prospectus, the Prospectus or any supplement or amendment thereto, each party
against whom contribution may be sought under this Section 8 hereby consents to the jurisdiction of
any court having jurisdiction over any other contributing party, agrees that process issuing from
such court may be served upon it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join it as an additional defendant in
any such proceeding in which such other contributing party is a party.
(f) Any losses, claims, damages, liabilities or expenses for which an indemnified party is
entitled to indemnification or contribution under this Section 8 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and contribution agreements contained in this Section 8 shall remain
operative and in full force and effect, regardless of any termination of this
22
Agreement. A successor to any Underwriter, its directors or officers or any person controlling
any Underwriter, or to the Company, its directors or officers, or any person controlling the
Company, shall be entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 8.
9.
Default by Underwriters.
If on the Closing Date any Underwriter shall fail to purchase and pay for the portion of the
Securities which such Underwriter has agreed to purchase and pay for on such date (otherwise than
by reason of any default on the part of the Company), you, as Representative of the Underwriters,
shall use your reasonable efforts to procure within 36 hours thereafter one or more of the other
Underwriters, or any others, to purchase from the Company such amounts as may be agreed upon and
upon the terms set forth herein, the principal amount of the Securities which the defaulting
Underwriter or Underwriters failed to purchase. If during such 36 hours you, as such
Representative, shall not have procured such other Underwriters, or any others, to purchase the
principal amount of the Securities agreed to be purchased by the defaulting Underwriter or
Underwriters, then the Company shall be entitled to a further period of 36 hours within which to
procure another party or parties satisfactory to you to purchase such principal amount of the
Securities on such terms. If, after giving effect to any arrangements for the purchase of
Securities by a defaulting Underwriter by you and the Company provided above, the aggregate
principal amount of Securities with respect to which such default shall occur does not exceed 10%
of the aggregate principal amount of the Securities to be purchased on the Closing Date the other
Underwriters shall be obligated, severally, in proportion to the respective principal amount of
Securities which they are obligated to purchase hereunder, to purchase the Securities which such
defaulting Underwriter or Underwriters failed to purchase. If, after giving effect to any
arrangements for the purchase of the Securities by a defaulting Underwriter by you and the Company
provided above, the aggregate principal amount of Securities with respect to which such default
shall occur exceeds 10% of the aggregate principal amount of the Securities to be purchased on the
Closing Date, the Company or you as the Representative of the Underwriters will have the right, by
written notice given within the next 36-hour period to the parties to this Agreement, to terminate
this Agreement without liability on the part of the non-defaulting Underwriters or of the Company
except to the extent provided in Sections 5 and 8 hereof. In the event of a default by any
Underwriter or Underwriters, as set forth in this Section 9, the Representative or the Company
shall have the right to postpone the Closing Date for a period not exceeding seven days in order
that the required changes in the Registration Statement, the General Disclosure Package or the
Prospectus or in any other documents or arrangements may be effected. The term “Underwriter”
includes any person substituted for a defaulting Underwriter. Any action taken under this Section
9 shall not relieve any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10.
Notices.
All communications hereunder shall be in writing and, except as otherwise provided herein,
will be mailed, delivered, telecopied or telegraphed and confirmed as follows: if to the
Underwriters, to Deutsche Bank Securities Inc., 60 Wall Street, New York, New York 10005,
Attention: Debt Capital Markets Syndicate Desk; if to the Company or any Subsidiary Guarantor, to
the address of the Company set forth in the Prospectus, Attention: Secretary.
23
11.
Termination.
This Agreement may be terminated by you by notice to the Company (a) at any time prior to the
Closing Date if any of the following has occurred: (i) since the date as of which information is
given in the Registration Statement, the General Disclosure Package and the Prospectus, there has
been (A) any change in the capital stock (other than issuances pursuant to equity incentive plans)
or increase in long-term debt of the Company or any of its subsidiaries that is material to the
Company and its subsidiaries taken as a whole, or (B) any material adverse change, or any
development that would reasonably be expected to result in a material adverse change, in or
affecting the business, properties, financial position or results of operations of the Company and
its subsidiaries, taken as a whole, except as set forth or contemplated in the Registration
Statement, the General Disclosure Package and the Prospectus and, in the case of clause (A) or (B),
the effect of which in the judgment of the Representative makes it impracticable or inadvisable to
proceed with the offering, sale or delivery of the Securities on the terms and in the manner
contemplated by this Agreement, the General Disclosure Package and the Prospectus, (ii) since the
Applicable Time there has been any outbreak or escalation of hostilities or declaration of war or
national emergency or other national or international calamity or crisis (including, without
limitation, an act of terrorism) or change in economic or political conditions if the effect of
such outbreak, escalation, declaration, emergency, calamity, crisis or change on the financial
markets of the United States would, in your judgment, materially impair the investment quality of
the Securities, or (iii) since the Applicable Time there has been a suspension of trading in
securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq
National Market or limitation on prices (other than limitations on hours or numbers of days of
trading) for securities on any such Exchange, (iv) since the Applicable Time there has been a
declaration of a banking moratorium by United States or New York State authorities, (v) since the
Applicable Time (A) there has been any downgrading in the rating accorded the Company’s debt
securities by Moody’s or S&P, or (B) either Moody’s or S&P, or both, have publicly announced that
they have under surveillance or review, with possible negative implications, their rating of any of
the Company’s debt securities or (vi) since the Applicable Time there has been the suspension of
trading of any securities issued or guaranteed by the Company by the New York Stock Exchange, the
Commission, or any other governmental or regulatory authority; or
(b) as provided in Sections 6 and 9 of this Agreement.
12.
Successors.
This Agreement has been and is made solely for the benefit of the Underwriters and the Company
and the Subsidiary Guarantors and their respective successors, executors, administrators, heirs and
assigns, and the officers, directors and controlling persons referred to herein, and no other
person will have any right or obligation hereunder. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign merely because of such purchase.
24
13.
[
Reserved
]
14.
Miscellaneous.
(a) The reimbursement, indemnification and contribution agreements contained in this
Agreement and the representations, warranties and covenants in this Agreement shall remain in full
force and effect regardless of (i) any investigation made by or on behalf of any Underwriter or
controlling person thereof, or by or on behalf of the Company, any Subsidiary Guarantor or its
directors or officers and (ii) delivery of and payment for the Securities under this Agreement.
(b) The Company and each Subsidiary Guarantor acknowledges and agrees that the Underwriters
are acting solely in the capacity of an arm’s length contractual counterparty to the Company and
the Subsidiary Guarantors with respect to the offering of the Securities and the Guarantees
contemplated hereby (including in connection with determining the terms of the offering) and not as
a financial advisor or a fiduciary to, or an agent of, the Company, any Subsidiary Guarantor or any
other person. Additionally, neither the Representative nor any other Underwriter is advising the
Company, the Subsidiary Guarantors or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company and the Subsidiary Guarantors
shall consult with their own advisors concerning such matters and shall be responsible for making
their own independent investigation and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the Company or the Subsidiary Guarantors
with respect to the matters covered by this paragraph. Any review by the Underwriters of the
Company, the Subsidiary Guarantors, the transactions contemplated hereby or other matters relating
to such transactions will be performed solely for the benefit of the Underwriters and shall not be
on behalf of the Company or the Subsidiary Guarantors.
(c) This Agreement may be executed in two or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument.
(d) This Agreement shall be governed by, and construed in accordance with, the law of the
State of New York, including, without limitation, Section 5-1401 of the New York General
Obligations Law.
(e) The Underwriters, on the one hand, and the Company (on its own behalf and, to the extent
permitted by law, on behalf of its stockholders) and the Subsidiary Guarantors, on the other hand,
waive any right to trial by jury in any action, claim, suit or proceeding with respect to your
engagement as underwriter or your role in connection herewith.
(f) No amendment or waiver of any provision of this Agreement, nor any consent or approval to
any departure therefrom, shall in any event be effective unless the same shall be in writing and
signed by the parties hereto.
25
If the foregoing letter is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicates hereof, whereupon it will become a binding agreement among
the Company, the Subsidiary Guarantors and the several Underwriters in accordance with its terms.
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Very truly yours,
THE GOODYEAR TIRE & RUBBER COMPANY
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By
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/s/ Scott A. Honnold
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Name:
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Scott A. Honnold
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Title:
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Vice President and Treasurer
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SUBSIDIARY GUARANTORS
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CELERON CORPORATION
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By:
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/s/ Damon J. Audia
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Name:
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Damon J. Audia
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Title:
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Vice President and Treasurer
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DAPPER TIRE CO., INC.
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By:
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/s/ Damon J. Audia
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Name:
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Damon J. Audia
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Title:
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Vice President and Treasurer
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DIVESTED COMPANIES HOLDING
COMPANY
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By:
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/s/ Todd M. Tyler
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Name:
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Todd M. Tyler
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Title:
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Vice President, Treasurer and
Secretary
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By:
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/s/ Randall M. Loyd
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Name:
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Randall M. Loyd
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Title:
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Vice President and Assistant
Secretary
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DIVESTED LITCHFIELD PARK
PROPERTIES, INC.
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By:
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/s/ Todd M. Tyler
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Name:
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Todd M. Tyler
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Title:
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Vice President, Treasurer and
Secretary
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By:
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/s/ Randall M. Loyd
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Name:
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Randall M. Loyd
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Title:
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Vice President and Assistant
Secretary
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GOODYEAR CANADA INC.
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By:
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/s/ Douglas S. Hamilton
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Name:
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Douglas S. Hamilton
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Title:
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President
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By:
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/s/ Robin M. Hunter
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Name:
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Robin M. Hunter
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Title:
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Secretary
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GOODYEAR EXPORT INC.
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By:
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/s/ Damon J. Audia
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Name:
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Damon J. Audia
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Title:
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Vice President and Treasurer
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GOODYEAR FARMS, INC.
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By:
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/s/ Damon J. Audia
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Name:
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Damon J. Audia
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Title:
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Vice President and Treasurer
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GOODYEAR INTERNATIONAL CORPORATION
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By:
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/s/ Damon J. Audia
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Name:
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Damon J. Audia
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Title:
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Vice President and Treasurer
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GOODYEAR WESTERN HEMISPHERE CORPORATION
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By:
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/s/ Damon J. Audia
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Name:
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Damon J. Audia
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Title:
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Vice President and Treasurer
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WHEEL ASSEMBLIES INC.
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By:
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/s/ Damon J. Audia
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Name:
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Damon J. Audia
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Title:
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Vice President and Treasurer
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WINGFOOT COMMERCIAL TIRE
SYSTEMS, LLC
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By:
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/s/ Scott A. Honnold
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Name:
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Scott A. Honnold
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Title:
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Vice President and Treasurer
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WINGFOOT VENTURES EIGHT INC.
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By:
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/s/ Todd M. Tyler
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Name:
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Todd M. Tyler
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Title:
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Vice President, Treasurer and
Secretary
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The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
DEUTSCHE BANK SECURITIES INC.
For itself and as Representative of the several
Underwriters listed on Schedule I
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By:
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/s/ Edwin E. Roland
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Authorized Officer
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By:
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/s/ Jackson Merchant
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Authorized Officer
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SCHEDULE I
Schedule of Underwriters
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Principal Amount of
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Underwriter
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Securities to be Purchased
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Deutsche Bank Securities Inc.
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$
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270,000,000
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Barclays Capital Inc.
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$
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247,500,000
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Morgan Stanley & Co. Incorporated
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$
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247,500,000
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BNP Paribas Securities Corp.
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$
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33,750,000
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HSBC Securities (USA) Inc.
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$
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33,750,000
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Natixis Bleichroeder LLC
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$
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33,750,000
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Wells Fargo Securities, LLC
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$
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33,750,000
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Total
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$
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900,000,000
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SCHEDULE II
Filed Pursuant to Rule 433
Registration No. 333-168704
August 10, 2010
Pricing Term Sheet
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Issuer:
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The Goodyear Tire & Rubber Company
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Security:
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8.250% Senior Notes due 2020
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Maturity:
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August 15, 2020
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Face Amount:
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$900,000,000
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Gross Proceeds:
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$892,467,000
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Gross Spread:
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1.875%
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Net Proceeds (after
deducting underwriting
discounts and commissions
but before offering
expenses):
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$875,592,000
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Coupon:
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8.250%
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Offering Price:
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99.163%
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Yield:
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8.375%
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Trade Date:
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August 10, 2010
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Settlement Date:
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August 13, 2010 (T+3)
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Interest Payment Dates:
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February 15 and August 15, beginning February
15, 2011
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Record Dates:
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February 1 and August 1
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Optional Redemption:
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On or after:
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Price:
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August 15, 2015
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104.125%
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August 15, 2016
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102.750%
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August 15, 2017
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101.375%
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August 15, 2018 and thereafter
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100.000%
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Make Whole:
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Makewhole call @ T+50bps prior to August 15, 2015
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Equity Clawback:
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35% at 108.25% until August 15, 2013
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Spread to Treasury:
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+562 bps
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Reference Treasury:
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UST 3.50% due May 15, 2020
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Joint Book-Running Managers:
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Deutsche Bank Securities Inc., Barclays Capital
Inc. and Morgan Stanley & Co. Incorporated
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Co-Managers:
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BNP Paribas Securities Corp., HSBC Securities
(USA) Inc., Natixis Bleichroeder LLC and Wells
Fargo Securities, LLC
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CUSIP/ISIN:
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382550 BB6 / US382550BB69
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The Issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the Issuer has filed with the SEC for more complete
information about the Issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at www.sec.gov. Alternatively, the Issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by calling
Deutsche Bank Securities Inc. toll free at 1-800-503-4611.
2
SCHEDULE III
The pricing term sheet substantially in the form set forth on Schedule II hereto.
ANNEX I
[Form of Opinion of Covington & Burling LLP]
ANNEX II
[Form of Opinion of Fasken Martineau DuMoulin LLP]
ANNEX III
[Form of Opinion of David L. Bialosky]
Exhibit 4.1
The Goodyear Tire & Rubber Company,
as Issuer,
and
The Subsidiary Guarantors from time to time party hereto,
as Subsidiary Guarantors
INDENTURE
Dated as
of August 13, 2010,
Wells Fargo Bank, N.A.,
as Trustee
CROSS-REFERENCE TABLE
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TIA
|
|
Indenture
|
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Section
|
|
Section
|
|
310(a)
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(1)
|
|
|
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7.10
|
|
(a)
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(2)
|
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7.10
|
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(a)
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(3)
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N.A.
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(a)
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(4)
|
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N.A.
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(b)
|
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7.08; 7.10
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(c)
|
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N.A.
|
|
311(a)
|
|
|
|
|
7.11
|
|
(b)
|
|
|
|
|
7.11
|
|
(c)
|
|
|
|
|
N.A.
|
|
312(a)
|
|
|
|
|
2.06
|
|
(b)
|
|
|
|
|
11.03
|
|
(c)
|
|
|
|
|
11.03
|
|
313(a)
|
|
|
|
|
7.06
|
|
(b)
|
(1)
|
|
|
|
7.06
|
|
(b)
|
(2)
|
|
|
|
7.06
|
|
(c)
|
|
|
|
|
11.02
|
|
(d)
|
|
|
|
|
7.06
|
|
314(a)
|
|
|
|
|
4.02; 4.03; 11.02
|
|
(b)
|
|
|
|
|
N.A.
|
|
(c)
|
(1)
|
|
|
|
11.04
|
|
(c)
|
(2)
|
|
|
|
11.04
|
|
(c)
|
(3)
|
|
|
|
N.A.
|
|
(d)
|
|
|
|
|
N.A.
|
|
(e)
|
|
|
|
|
11.05
|
|
(f)
|
|
|
|
|
4.04
|
|
315(a)
|
|
|
|
|
7.01
|
|
(b)
|
|
|
|
|
7.05; 11.02
|
|
(c)
|
|
|
|
|
7.01
|
|
(d)
|
|
|
|
|
7.01
|
|
(e)
|
|
|
|
|
6.11
|
|
316(a)
|
(last sentence)
|
|
|
|
11.06
|
|
(a)
|
(1)(A)
|
|
|
|
6.05
|
|
(a)
|
(1)(B)
|
|
|
|
6.04
|
|
(a)
|
(2)
|
|
|
|
N.A.
|
|
(b)
|
|
|
|
|
6.07
|
|
317(a)
|
(1)
|
|
|
|
6.08
|
|
(a)
|
(2)
|
|
|
|
6.09
|
|
(b)
|
|
|
|
|
2.05
|
|
318(a)
|
|
|
|
|
11.01
|
N.A. means Not Applicable.
|
|
|
|
|
Note:
|
|
This Cross-Reference Table shall not, for any purpose, be deemed to be part of this
Indenture.
|
TABLE OF CONTENTS
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Page
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|
ARTICLE 1
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Definitions and Incorporation by Reference
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SECTION 1.01. Definitions
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1
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SECTION 1.02. Other Definitions
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6
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SECTION 1.03. Incorporation by Reference of Trust Indenture Act
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6
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SECTION 1.04. Rules of Construction
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6
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|
ARTICLE 2
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The Securities
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SECTION 2.01. Issuable in Series
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7
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|
SECTION 2.02. Establishment of Terms of Series of Securities
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7
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|
SECTION 2.03. Execution and Authentication
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|
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11
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|
SECTION 2.04. Registrar and Paying Agent
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|
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11
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SECTION 2.05. Paying Agent To Hold Money in Trust
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|
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12
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SECTION 2.06. Lists of Holders of Securities
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13
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SECTION 2.07. Transfer and Exchange
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13
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SECTION 2.08. Replacement Securities
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14
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SECTION 2.09. Outstanding Securities
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14
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SECTION 2.10. Temporary Securities
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15
|
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|
SECTION 2.11. Cancellation
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|
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15
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SECTION 2.12. Defaulted Interest
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|
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15
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|
SECTION 2.13. Global Securities
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|
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15
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|
SECTION 2.14. CUSIP Numbers and ISINs
|
|
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17
|
|
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|
|
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|
ARTICLE 3
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|
|
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|
Redemption
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|
SECTION 3.01. Notices to Trustee
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|
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17
|
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SECTION 3.02. Selection of Securities to Be Redeemed
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|
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17
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|
SECTION 3.03. Notice of Redemption
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|
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18
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|
SECTION 3.04. Effect of Notice of Redemption
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|
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18
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|
SECTION 3.05. Deposit of Redemption Price
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|
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19
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|
SECTION 3.06. Securities Redeemed in Part
|
|
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19
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|
|
|
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|
ARTICLE 4
|
|
|
|
|
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|
|
|
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|
Covenants
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SECTION 4.01. Payment of Securities
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|
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19
|
|
i
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|
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Page
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|
SECTION 4.02. SEC Reports
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|
|
19
|
|
|
SECTION 4.03. Compliance Certificate
|
|
|
20
|
|
|
SECTION 4.04. Further Instruments and Acts
|
|
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20
|
|
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|
|
|
|
|
|
ARTICLE 5
|
|
|
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|
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|
Successor Company
|
|
|
|
|
|
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|
SECTION 5.01. When Company May Merge or Transfer Assets
|
|
|
20
|
|
|
|
|
|
|
|
|
ARTICLE 6
|
|
|
|
|
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|
|
Defaults and Remedies
|
|
|
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|
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|
SECTION 6.01. Events of Default
|
|
|
21
|
|
|
SECTION 6.02. Acceleration
|
|
|
23
|
|
|
SECTION 6.03. Other Remedies
|
|
|
24
|
|
|
SECTION 6.04. Waiver of Past Defaults
|
|
|
24
|
|
|
SECTION 6.05. Control by Majority
|
|
|
24
|
|
|
SECTION 6.06. Limitation on Suits
|
|
|
25
|
|
|
SECTION 6.07. Rights of Holders to Receive Payment
|
|
|
25
|
|
|
SECTION 6.08. Collection Suit by Trustee
|
|
|
25
|
|
|
SECTION 6.09. Trustee May File Proofs of Claim
|
|
|
25
|
|
|
SECTION 6.10. Priorities
|
|
|
26
|
|
|
SECTION 6.11. Undertaking for Costs
|
|
|
26
|
|
|
SECTION 6.12. Waiver of Stay or Extension Laws
|
|
|
26
|
|
|
|
|
|
|
|
|
ARTICLE 7
|
|
|
|
|
|
|
|
Trustee
|
|
|
|
|
|
|
|
SECTION 7.01. Duties of Trustee
|
|
|
27
|
|
|
SECTION 7.02. Rights of Trustee
|
|
|
28
|
|
|
SECTION 7.03. Individual Rights of Trustee
|
|
|
29
|
|
|
SECTION 7.04. Trustee’s Disclaimer
|
|
|
29
|
|
|
SECTION 7.05. Notice of Defaults
|
|
|
29
|
|
|
SECTION 7.06. Reports by Trustee to Holders
|
|
|
30
|
|
|
SECTION 7.07. Compensation and Indemnity
|
|
|
30
|
|
|
SECTION 7.08. Replacement of Trustee
|
|
|
31
|
|
|
SECTION 7.09. Successor Trustee by Merger
|
|
|
32
|
|
|
SECTION 7.10. Eligibility; Disqualification
|
|
|
32
|
|
|
SECTION 7.11. Preferential Collection of Claims Against Company
|
|
|
32
|
|
|
|
|
|
|
|
|
ARTICLE 8
|
|
|
|
|
|
|
|
Discharge of Indenture; Defeasance
|
|
|
|
|
|
|
|
SECTION 8.01. Discharge of Liability on Securities; Defeasance
|
|
|
32
|
|
ii
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
SECTION 8.02. Conditions to Defeasance
|
|
|
33
|
|
|
SECTION 8.03. Application of Trust Money
|
|
|
35
|
|
|
SECTION 8.04. Repayment to Company
|
|
|
35
|
|
|
SECTION 8.05. Indemnity for Government Obligations
|
|
|
35
|
|
|
SECTION 8.06. Reinstatement
|
|
|
35
|
|
|
|
|
|
|
|
|
ARTICLE 9
|
|
|
|
|
|
|
|
Amendments
|
|
|
|
|
|
|
|
SECTION 9.01. Without Consent of Holders
|
|
|
35
|
|
|
SECTION 9.02. With Consent of Holders
|
|
|
37
|
|
|
SECTION 9.03. Compliance with Trust Indenture Act
|
|
|
38
|
|
|
SECTION 9.04. Revocation and Effect of Consents and Waivers
|
|
|
38
|
|
|
SECTION 9.05. Notation on or Exchange of Securities
|
|
|
38
|
|
|
SECTION 9.06. Trustee To Sign Amendments
|
|
|
39
|
|
|
SECTION 9.07. Payment for Consent
|
|
|
39
|
|
|
|
|
|
|
|
|
ARTICLE 10
|
|
|
|
|
|
|
|
Subsidiary Guarantees
|
|
|
|
|
|
|
|
SECTION 10.01. Guarantees
|
|
|
39
|
|
|
SECTION 10.02. Limitation on Liability
|
|
|
40
|
|
|
SECTION 10.03. Successors and Assigns
|
|
|
41
|
|
|
SECTION 10.04. No Waiver
|
|
|
41
|
|
|
SECTION 10.05. Modification
|
|
|
41
|
|
|
SECTION 10.06. Release of Subsidiary Guarantor
|
|
|
41
|
|
|
SECTION 10.07. Contribution
|
|
|
42
|
|
|
|
|
|
|
|
|
ARTICLE 11
|
|
|
|
|
|
|
|
Miscellaneous
|
|
|
|
|
|
|
|
SECTION 11.01. Trust Indenture Act Controls
|
|
|
42
|
|
|
SECTION 11.02. Notices
|
|
|
42
|
|
|
SECTION 11.03. Communication by Holders with Other Holders
|
|
|
43
|
|
|
SECTION 11.04. Certificate and Opinion as to Conditions Precedent
|
|
|
43
|
|
|
SECTION 11.05. Statements Required in Certificate or Opinion
|
|
|
43
|
|
|
SECTION 11.06. When Securities Disregarded
|
|
|
44
|
|
|
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar
|
|
|
44
|
|
|
SECTION 11.08. Legal Holidays
|
|
|
44
|
|
|
SECTION 11.09. Governing Law
|
|
|
44
|
|
|
SECTION 11.10. No Recourse Against Others
|
|
|
44
|
|
|
SECTION 11.11. Successors
|
|
|
44
|
|
|
SECTION 11.12. Multiple Originals
|
|
|
44
|
|
|
SECTION 11.13. Table of Contents; Headings
|
|
|
44
|
|
iii
INDENTURE
dated as of August 13, 2010, among The Goodyear Tire & Rubber
Company, an Ohio corporation (the “Company”), the Subsidiary Guarantors
from time to time party hereto and Wells Fargo Bank, N.A., a national
banking association, as trustee (the “Trustee”).
Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders of the Securities:
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01.
Definitions.
“Affiliate” of any specified Person means any other Person, directly or indirectly,
controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition, “control” when used with respect to any Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“Board of Directors” means the board of directors of the Company or any committee thereof duly
authorized to act on behalf of the board of directors of the Company.
“Business Day” means each day which is not a Legal Holiday.
“Capital Stock” of any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
equity of such Person, including any preferred stock, but excluding any debt securities convertible
into such equity.
“Closing
Date” means August 13, 2010, .
“Code” means the Internal Revenue Code of 1986, as amended.
“Company” means the party named as such in this Indenture until a successor replaces it and,
thereafter, means the successor and, for purposes of any provision contained herein and required by
the TIA, each other obligor on the indenture securities.
“Company Order” means a written order signed in the name of the Company by an Officer of the
Company.
“Default” means any event which is, or after notice or passage of time or both would be, an
Event of Default.
“Depositary” means, with respect to the Securities issuable in whole or in part in global
form, the Person specified pursuant to Section 2.13 hereof as the initial Depositary with respect
to the Securities, until a successor shall have been appointed and become such pursuant to the
applicable provisions of this Indenture and thereafter “Depositary” shall mean or include such
successor.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Financial Officer” means the Chief Financial Officer, the Treasurer or the Chief Accounting
Officer of the Company.
“GAAP” means generally accepted accounting principles in the United States of America as in
effect as of the Closing Date set forth in:
|
|
(1)
|
|
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants,
|
|
|
|
|
(2)
|
|
statements and pronouncements of the Financial Accounting Standards Board,
|
|
|
|
|
(3)
|
|
such other statements by such other entities as approved by a significant
segment of the accounting profession, and
|
|
|
|
|
(4)
|
|
the rules and regulations of the SEC governing the inclusion of financial
statements (including pro forma financial statements) in periodic reports required to
be filed pursuant to Section 13 of the Exchange Act, including opinions and
pronouncements in staff accounting bulletins and similar written statements from the
accounting staff of the SEC.
|
All ratios and computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP.
“Global Security” when used with respect to any Series of Securities, means a security in the
form of a global security in definitive, fully registered form and bearing the legend set forth in
Section 2.13(d), which shall be deposited on behalf of the purchasers of Securities of the Series
represented thereby with the Securities Custodian or pursuant to the Depositary’s instruction, and
registered in the name of the Depositary or a nominee of the Depositary, duly executed by the
Company and authenticated by the Trustee as provided in this Indenture.
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or
indirect, contingent or otherwise, of such Person:
2
|
|
(1)
|
|
to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness of such other Person (whether arising by virtue of partnership
arrangements, or by agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement conditions or otherwise),
or
|
|
|
|
|
(2)
|
|
entered into for purposes of assuring in any other manner the obligee of such
Indebtedness of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part);
|
provided
,
however
, that the term “Guarantee” shall not include endorsements for
collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has
a corresponding meaning. The term “Guarantor” shall mean any Person Guaranteeing any obligation.
“Guaranteed Obligations” means the principal of and interest, if any, on the Securities
subject to such Guarantee when due, whether at Stated Maturity, by acceleration or otherwise, and
all other obligations, monetary or otherwise, of the Company under this Indenture (as it relates to
such Guarantee and the Securities subject to the Guarantee) and the Securities subject to such
Guarantee (including expenses and indemnification).
“Holder” means the Person in whose name a Security is registered on the Registrar’s books.
“Indebtedness” has the meaning specified in the applicable Board Resolution, supplemental
indenture or Officers’ Certificate relating to a particular Series of Securities.
“Indenture” means this Indenture as amended or supplemented from time to time.
“Legal Holiday” means a Saturday, Sunday or other day on which the Trustee or banking
institutions are not required by law or regulation to be open in the State of New York.
“Obligations” means with respect to any Indebtedness, all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements and other amounts payable pursuant to
the documentation governing such Indebtedness.
“Officer” means the Chairman of the Board, the Chief Executive Officer, the Chief Financial
Officer, the Chief Accounting Officer, the President, any Vice President, the Treasurer or the
Secretary of the Company. “Officer” of a Subsidiary Guarantor has a correlative meaning.
“Officers’ Certificate” means a certificate signed by two Officers.
3
“Opinion of Counsel” means a written opinion from legal counsel who may be an employee of or
counsel to the Company or a Subsidiary Guarantor, or other counsel who is acceptable to the
Trustee.
“Original Issue Discount Security” means (i) any Security that provides for an amount less
than the stated principal amount thereof to be due and payable upon a declaration of acceleration
of the maturity thereof and (ii) any other security which is issued with “original issue discount”
within the meaning of Section 1271 through 1275 of the Code.
“Person” means any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity.
“principal” of a Security means the principal of such Security (or, in the case of Original
Issue Discount Securities, the portion thereby specified in the terms of such Securities) plus the
premium, if any, payable on the Security which is due or overdue or is to become due at the
relevant time.
“SEC” means the Securities and Exchange Commission.
“Securities” means the securities issued under this Indenture.
“Securities Act” means the Securities Act of 1933, as amended.
“Series” or “Series of Securities” means each series of debentures, notes or other debt
instruments of the Company created pursuant to Sections 2.01 and 2.02 hereof.
“Securities Custodian” means the custodian with respect to a Global Security of any Series of
Securities (as appointed by the Depositary) or any successor person thereto, who shall initially be
the Trustee.
“Significant Subsidiary” means any Subsidiary that would be a “Significant Subsidiary” of the
Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.
“Stated Maturity” means, with respect to any security, the date specified in such security as
the fixed date on which the final payment of principal of such security is due and payable,
including pursuant to any mandatory redemption provision (but excluding any provision providing for
the repurchase of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the Company unless such contingency has occurred).
“Subsidiary” of any Person means any corporation, association, partnership or other business
entity of which more than 50% of the total voting power of shares of Capital Stock or other
interests (including partnership interests) entitled
4
(without regard to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or indirectly, by:
|
|
(1)
|
|
such Person,
|
|
|
|
|
(2)
|
|
such Person and one or more Subsidiaries of such Person, or
|
|
|
|
|
(3)
|
|
one or more Subsidiaries of such Person.
|
“Subsidiary Guarantee” means, with respect to any Series of Securities, each Guarantee of the
obligations with respect to such Series of Securities issued by a Subsidiary of the Company
pursuant to the terms of this Indenture.
“Subsidiary
Guarantor” means, with respect to any Series of Securities, any Subsidiary that has
issued a Subsidiary Guarantee of such Series.
“TIA” means the Trust Indenture Act of 1939, as amended
(15 U.S.C. §§ 77aaa-77bbbb), as in
effect on the Closing Date.
“Trust Officer” means the Chairman of the Board, the President or any other officer or
assistant officer of the Trustee assigned by the Trustee to administer its corporate trust matters,
and any other officer of the Trustee to whom a matter arising under this Indenture may be referred.
“Trustee” means the party named as such in this Indenture until a successor replaces it and,
thereafter, means the successor.
“Uniform Commercial Code” means the New York Uniform Commercial Code as in effect from time to
time.
“U.S. Government Obligations” means direct obligations (or certificates representing an
ownership interest in such obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of the United States of
America is pledged and which are not callable or redeemable at the issuer’s option.
“Wholly Owned Subsidiary” means a Subsidiary of the Company all the Capital Stock of which
(other than directors’ qualifying shares) is owned by the Company or another Wholly Owned
Subsidiary.
5
SECTION 1.02.
Other Definitions.
|
|
|
|
|
|
|
|
|
Defined in
|
|
|
Term
|
|
Section
|
|
|
“Agent Members”
|
|
|
2.13
|
(g)
|
|
“Bankruptcy Law”
|
|
|
6.01
|
|
|
“covenant defeasance option”
|
|
|
8.01
|
(b)
|
|
“Custodian”
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6.01
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“Event of Default”
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6.01
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“legal defeasance option”
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8.01
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(b)
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“Paying Agent”
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2.04
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“Registrar”
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2.04
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“Successor Company”
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5.01
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(a)(1)
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SECTION 1.03.
Incorporation by Reference of Trust Indenture Act
. This Indenture is
subject to the mandatory provisions of the TIA which are incorporated by reference in and made a
part of this Indenture. The following TIA terms have the following meanings:
“Commission” means the SEC;
“indenture securities” means the Securities and the Subsidiary Guarantees;
“indenture security holder” means a Holder;
“indenture to be qualified” means this Indenture;
“indenture trustee” or “institutional trustee” means the Trustee; and
“obligor” on the indenture securities means the Company, each Subsidiary Guarantor and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule have the meanings assigned to them by such
definitions.
SECTION 1.04.
Rules of Construction
. Unless the context otherwise requires:
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(1)
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a term has the meaning assigned to it;
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(2)
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an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
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(3)
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“or” is not exclusive;
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(4)
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“including” means including without limitation;
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(5)
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words in the singular include the plural and words in the
plural include the singular;
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6
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(6)
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unsecured Indebtedness shall not be deemed to be subordinate
or junior to secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
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(7)
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secured Indebtedness shall not be deemed to be subordinate or
junior to any other secured Indebtedness merely because it has a junior
priority with respect to the same collateral;
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(8)
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the principal amount of any non-interest bearing or other
discount security at any date shall be the principal amount thereof that would
be shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP; and
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(9)
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the principal amount of any preferred stock shall be (A) the
maximum liquidation value of such preferred stock or (B) the maximum mandatory
redemption or mandatory repurchase price with respect to such preferred stock,
whichever is greater.
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ARTICLE 2
The Securities
SECTION 2.01.
Issuable in Series
. The aggregate principal amount of Securities that
may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued
in one or more Series as the Company may authorize from time to time. All Securities of a Series
shall be identical except as may be set forth in a resolution of the Board of Directors, a
supplemental indenture or an Officers’ Certificate detailing the adoption of the terms thereof
pursuant to the authority granted under a resolution of the Board of Directors. In the case of
Securities of a Series to be issued from time to time, the resolution of the Board of Directors,
supplemental indenture or Officers’ Certificate may provide for the method by which specified terms
(such as interest rate, maturity date, record date or date from which interest shall accrue) are to
be determined. Securities may differ between Series in respect of any matters.
SECTION 2.02.
Establishment of Terms of Series of Securities
. At or prior to the
issuance of any Securities within a Series, the following shall be established (as to the Series
generally, in the case of Section 2.02(a), and either as to such Securities within the Series or as
to the Series generally, in the case of Sections 2.02(b) through 2.02(aa)) by a resolution of the
Board of Directors, a supplemental indenture or an Officers’ Certificate pursuant to authority
granted under a resolution of the Board of Directors:
(a) the title of the Securities of the Series (which shall distinguish the Securities
of that particular Series from the Securities of any other Series);
(b) the price or prices of the Securities of the Series;
7
(c) any limit upon the aggregate principal amount of the Securities of the Series
which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the Series);
(d) the date or dates on which the principal with respect to the Securities of the
Series is payable;
(e) the rate or rates (which may be fixed or variable) at which the Securities of the
Series shall bear interest, if any, or the method of determining such rate or rates, the
date or dates from which such interest, if any, shall accrue, the dates on which such
interest, if any, shall be payable or the method by which such dates will be determined,
the record dates for the determination of holders thereof to whom such interest, if any, is
payable (in the case of Securities in registered form), and the basis upon which such
interest, if any, will be calculated if other than that of a 360-day year of twelve 30-day
months;
(f) the currency or currencies in which Securities of the Series shall be denominated,
if other than U.S. dollars, and if payments of principal or interest, if any, with respect
to the Securities of the Series are to be made in one or more currencies other than that or
those in which the Securities of the Series are denominated, the manner in which the
exchange rate with respect to such payments will be determined;
(g) the place or places where the principal and interest, if any, with respect to
Securities of such Series shall be payable or the method of such payment, if by wire
transfer, mail or other means; the place or places where the Securities of the Series may
be surrendered for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of Securities of the Series and this Indenture may be served;
(h) the price or prices at which, the period or periods within which, and the terms
and conditions upon which, Securities of the Series may be redeemed, in whole or in part at
the option of the Company or otherwise;
(i) the form of the Securities of the Series, including whether Securities of the
Series are to be issued as Securities in registered form or as Securities in bearer form or
both and, if Securities in bearer form are to be issued, whether coupons will be attached
to them, whether Securities in bearer form of the Series may be exchanged for Securities in
registered form of the Series, and the circumstances under which and the places at which
any such exchanges, if permitted, may be made;
(j) if any Securities of the Series are to be issued as Securities in bearer form or
as one or more Global Securities representing individual Securities in bearer form of the
Series, whether certain provisions for the payment of additional interest or tax
redemptions shall apply; whether interest with respect to any
8
portion of a temporary bearer Security of the Series payable with respect to any
interest payment date prior to the exchange of such temporary bearer Security for
definitive Securities in bearer form of the Series shall be paid to any clearing
organization with respect to the portion of such temporary bearer Security held for its
account and, in such event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by a clearing organization will
be credited to the Persons entitled to interest payable on such interest payment date; and
the terms upon which a temporary Security in bearer form may be exchanged for one or more
definitive Securities in bearer form of the Series;
(k) the Company’s obligation, if any, to redeem, purchase or repay the Securities of
the Series pursuant to any sinking fund or analogous provisions or at the option of a
Holder of such Securities and the price or prices at which, the period or periods within
which, and the terms and conditions upon which, Securities of the Series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligations;
(l) the terms, if any, upon which the Securities of the Series may be convertible into
or exchanged for the Company’s common stock, preferred stock, other debt securities or
Indebtedness, warrants for common stock, preferred stock or other equity securities, or
other securities of any kind and the terms and conditions upon which such conversion or
exchange shall be effected, including the initial conversion or exchange price or rate, the
manner in which the conversion or exchange price or rate may be adjusted, the conversion or
exchange period and any other additional provisions;
(m) if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which the Securities of the Series shall be issuable;
(n) if the amount of principal or interest, if any, with respect to the Securities of
the Series may be determined with reference to an index or pursuant to a formula, the
manner in which such amounts will be determined;
(o) if the principal amount payable at the Stated Maturity of Securities of the Series
will not be determinable as of any one or more dates prior to such Stated Maturity, the
amount that will be deemed to be such principal amount as of any such date for any purpose,
including the principal amount thereof which will be due and payable upon any maturity
other than the Stated Maturity or which will be deemed to be outstanding as of any such
date (or, in any such case, the manner in which such deemed principal amount is to be
determined), and if necessary, the manner of determining the equivalent thereof in U.S.
dollars;
(p) any changes or additions to Article 8;
(q) if other than the principal amount thereof, the portion of the principal amount of
the Securities of the Series that shall be payable upon declaration of
9
acceleration of the maturity thereof pursuant to Section 6.02 or provable in
bankruptcy;
(r) the terms, if any, of the transfer, mortgage, pledge or assignment as security for
the Securities of the Series of any properties, assets, moneys, proceeds, securities or
other collateral, including whether certain provisions of the TIA are applicable and any
corresponding changes to provisions of this Indenture as then in effect;
(s) any addition to or change in the Events of Default with respect to any Securities
of the Series and any change in the right of the Trustee or the Holders of such Series of
Securities to declare the principal and interest, if any, on such Series of Securities due
and payable pursuant to Section 6.02;
(t) if the Securities of the Series shall be issued in whole or in part in the form of
a Global Security, the terms and conditions, if any, upon which such Global Security may be
exchanged in whole or in part for other individual Securities of such Series in definitive
registered form, the depositary for such Global Security and the form of any legend or
legends to be borne by any such Global Security;
(u) any Trustee, authenticating agent, Paying Agent, transfer agent or Registrar;
(v) the applicability of, and any addition to or change in, the covenants, definitions
or other terms set forth in the Indenture which applies to Securities of the Series;
(w) the terms, if any, of any Guarantee of the payment of principal and interest, if
any, with respect to Securities of the Series and any corresponding changes to the
provisions of this Indenture as then in effect;
(x) the subordination, if any, of the Securities of the Series or any related
Subsidiary Guarantee;
(y) with regard to Securities of the Series that do not bear interest, the dates for
certain required reports to the Trustee;
(z) any U.S. Federal income tax consequences applicable to the Securities; and
(aa) any other terms of Securities of the Series (which may modify, amend or delete
any provision of this Indenture insofar as it applies to such Series).
All Securities of any one Series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the
resolution of the Board of Directors, supplemental
10
indenture or Officers’ Certificate referred to above, and the authorized principal amount of
any Series may not be increased to provide for issuances of additional Securities of such Series,
unless otherwise provided in such resolution of the Board of Directors, supplemental indenture or
Officers’ Certificate.
SECTION 2.03.
Execution and Authentication
. One or more Officers shall sign the
Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of the Trustee manually signs the
certificate of authentication on the Security. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture. A Security shall be dated the date of its
authentication, unless otherwise provided by a resolution of the Board of Directors, a supplemental
indenture or an Officers’ Certificate.
The Trustee shall at any time, and from time to time, authenticate Securities for original
issue in the principal amount provided in a resolution of the Board of Directors, supplemental
indenture or Officers’ Certificate, upon receipt by the Trustee of a Company Order.
The aggregate principal amount of Securities of any Series outstanding at any time may not
exceed any limit upon the maximum principal amount for such Series set forth in the resolution of
the Board of Directors, supplemental indenture or Officers’ Certificate delivered pursuant to
Section 2.02, except as provided in Section 2.08.
The Trustee may appoint an authenticating agent reasonably acceptable to the Company to
authenticate the Securities. Unless limited by the terms of such appointment, an authenticating
agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture
to authentication by the Trustee includes authentication by such agent. An authenticating agent
has the same rights as any Registrar, Paying Agent or agent for service of notices and demands.
SECTION 2.04.
Registrar and Paying Agent
. (a) The Company shall maintain, with
respect to each Series of Securities, at the place or places specified with respect to such Series
pursuant to Section 2.02, an office or agency where Securities of such Series may be presented for
registration of transfer or for exchange (the “Registrar”) and an office or agency where Securities
of such Series may be presented for payment (the “Paying Agent”). The Registrar shall keep a
register with respect to each Series of Securities and of their transfer and exchange. The Company
may have one or more co-registrars and one or more additional paying agents; provided, however,
that so long as Wells Fargo Bank, N.A. shall be the Trustee, without the consent of the Trustee,
there shall be no more than one Registrar or Paying Agent for each Series of Securities. The term
“Paying Agent” includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent
or co-registrar not a party to this Indenture, which shall
11
incorporate the terms of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of the name and address
of any such agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall
act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.07.
The Company or any Wholly Owned Subsidiary incorporated or organized within the United States of
America may act as Paying Agent, Registrar, co-registrar or transfer agent.
The Registrar may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents, and the Company may require a Holder to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register transfer or exchanges of
Securities selected for redemption (except, in the case of Securities to be redeemed in part, the
portion thereof not to be redeemed) or any Securities for a period of 15 days before a selection of
Securities to be redeemed, or any Securities for a period of 15 days before a selection of an
interest payment date. The Holder of a Security may be treated as the owner of such Security for
all purposes.
(b) The Company initially appoints the Trustee as Registrar and Paying Agent for each Series
of Securities unless another Registrar or Paying Agent, as the case may be, is appointed prior to
the time Securities of that Series are first issued.
(c) The Company may remove any Registrar or Paying Agent upon written notice to such Registrar
or Paying Agent and to the Trustee;
provided
,
however
, that no such removal shall
become effective until (i) acceptance of an appointment by a successor as evidenced by an
appropriate agreement entered into by the Company and such successor Registrar or Paying Agent, as
the case may be, and delivered to the Trustee or (ii) notification to the Trustee that the Trustee
shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with
clause (i) above.
(d) Except as the Company and the Trustee may otherwise agree or as otherwise provided for a
particular Series of Securities by a resolution of the Board of Directors, a supplemental indenture
or an Officers’ Certificate, the Company shall promptly file with the Trustee by each January 15th
for which original issue discount reporting is required a written notice specifying the amount of
the original issue discount, if any, accrued on the Securities of a Series for the previous
calendar year, including daily rates and accrual periods, and such other information relating to
original issue discount as may be required under the Code and applicable regulations, as amended
from time to time.
SECTION 2.05.
Paying Agent To Hold Money in Trust
. Prior to each due date of the
principal of and interest on the Securities of any Series, the Company shall deposit with the
Paying Agent (or if the Company or a Subsidiary is acting as Paying Agent, segregate and hold in
trust for the benefit of Holders entitled thereto) a sum sufficient to pay such principal and
interest when so becoming due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders
of the applicable Series of
12
Securities or the Trustee all money held by the Paying Agent for the payment of principal of
or interest on the Securities of the applicable Series and shall notify the Trustee of any default
by the Company in making any such payment. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed by the Paying Agent. Upon complying with this Section, the Paying
Agent shall have no further liability for the money delivered to the Trustee.
SECTION 2.06.
Lists of Holders of Securities
. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it of the names and
addresses of Holders of each Series of Securities. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee, in writing at least five Business Days before each interest
payment date and at such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses of Holders of each
Series of Securities.
SECTION 2.07.
Transfer and Exchange
. (a) The Securities shall be issued in
registered form and shall be transferable only in compliance with the Indenture and upon the
surrender of a Security for registration of transfer. When a Security is presented to the
Registrar or a co-registrar with a request to register a transfer, the Registrar shall register the
transfer as requested if the requirements of this Indenture and Section 8-401(1) of the Uniform
Commercial Code are met. When Securities of a Series are presented to the Registrar or a
co-registrar with a request to exchange them for an equal principal amount of Securities of the
same Series in other denominations, the Registrar shall make the exchange as requested if the same
requirements are met.
(b) To permit registration of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Securities at the Registrar’s request. The Company may require payment
of a sum sufficient to pay all taxes, assessments or other governmental charges in connection with
any transfer or exchange pursuant to this Section. The Company shall not be required to make and
the Registrar need not register transfer or exchanges of Securities selected for redemption in
accordance with the terms of this Indenture (except, in the case of Securities to be redeemed in
part, the portion thereof not to be redeemed) or any Securities for a period of 15 days before a
selection of Securities to be redeemed or any Securities for a period of 15 days before an interest
payment date.
Prior to the due presentation for registration of transfer of any Security, the Company, the
Subsidiary Guarantors, the Trustee, the Paying Agent and the Registrar may deem and treat the
Person in whose name a Security is registered as the absolute owner of such Security for the
purpose of receiving payment of principal of and (subject to the terms of the Securities) interest,
if any, on such Security and for all other purposes whatsoever, whether or not such Security is
overdue, and none of the Company, any Subsidiary Guarantor, the Trustee, the Paying Agent, or the
Registrar shall be affected by notice to the contrary.
13
Any Holder of a beneficial interest in a Global Security shall, by acceptance of such
beneficial interest, agree that transfers of beneficial interest in such Global Security may be
effected only through a book-entry system maintained by (a) the Holder of such Global Security (or
its agent) or (b) any Holder of a beneficial interest in such Global Security, and that ownership
of a beneficial interest in such Global Security shall be required to be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant to the terms of this Indenture
shall evidence the same Indebtedness and shall be entitled to the same benefits under this
Indenture as the Securities surrendered upon such transfer or exchange.
SECTION 2.08.
Replacement Securities
. If a mutilated Security is surrendered to the
Registrar or if the Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Security
of the same Series if the requirements of Section 8-405 of the Uniform Commercial Code are met and
the Holder satisfies any other reasonable requirements of the Trustee. If required by the Trustee
or the Company, such Holder shall furnish an indemnity bond sufficient in the judgment of the
Company and the Trustee to protect the Company, the Subsidiary Guarantors, the Trustee, the Paying
Agent, the Registrar and any co-registrar from any loss which any of them may suffer if a Security
is replaced. The Company and the Trustee may charge the Holder for their expenses in replacing a
Security.
Every replacement Security is an additional Obligation of the Company.
The provisions of this Section 2.08 are exclusive and shall preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of mutilated, lost,
destroyed or wrongfully taken Securities.
SECTION 2.09.
Outstanding Securities
. Securities outstanding at any time are all
Securities authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section as not outstanding. Subject to Section 11.06, a
Security does not cease to be outstanding because the Company or an Affiliate of the Company holds
the Security.
If a Security is replaced pursuant to Section 2.08, it ceases to be outstanding unless the
Trustee and the Company receive proof satisfactory to them that the replaced Security is held by a
bona
fide
purchaser.
If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a
redemption date or maturity date money sufficient to pay all principal and interest payable on that
date with respect to such Securities (or portions thereof) to be redeemed or maturing, as the case
may be, then on and after that date such Securities (or portions thereof) cease to be outstanding
and interest on them ceases to accrue.
Unless otherwise provided for a particular Series of Securities by a resolution of the Board
of Directors, a supplemental indenture or an Officers’ Certificate,
14
in determining whether the Holders of the requisite principal amount of outstanding Securities
of any Series have given any request, demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be
outstanding for such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 6.02.
SECTION 2.10.
Temporary Securities
. Until definitive Securities are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary Securities. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate definitive Securities and
deliver them in exchange for temporary Securities of the same Series upon surrender of such
temporary Securities at the office or agency of the Company, without charge to the Holder.
SECTION 2.11.
Cancellation
. The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or payment. The Trustee and
no one else shall cancel all Securities surrendered for registration of transfer, exchange, payment
or cancellation and deliver a certificate of such cancellation to the Company upon request. The
Trustee shall retain all canceled Securities in accordance with its standard procedures (subject to
the record retention requirements of the Exchange Act). The Company may not issue new Securities
to replace Securities it has redeemed, paid or delivered to the Trustee for cancellation. The
Trustee shall not authenticate Securities in place of cancelled Securities other than pursuant to
the terms of this Indenture.
SECTION 2.12.
Defaulted Interest
. If the Company defaults in a payment of interest on
a Series of Securities, the Company shall pay defaulted interest (plus interest on such defaulted
interest to the extent lawful) in any lawful manner. The Company may pay the defaulted interest to
the persons who are Holders of such Series of Securities on a subsequent special record date. The
Company shall fix or cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail or cause to be mailed to each Holder
of Securities of such Series a notice that states the special record date, the payment date and the
amount of defaulted interest to be paid.
SECTION 2.13.
Global Securities.
(a)
Terms of Securities
. A Board Resolution, a supplemental indenture or an Officers’
Certificate shall establish whether the Securities of a Series shall be issued in whole or in part
in the form of one or more Global Securities and the Depositary for such Global Security or
Securities.
(b)
Transfer and Exchange
. Notwithstanding any provisions to the contrary contained
in Section 2.07 of this Indenture and in addition thereto, and unless
15
otherwise provided for a particular Series of Securities by a resolution of the Board of
Directors, a supplemental indenture or an Officers’ Certificate, any Global Security shall be
exchangeable pursuant to Section 2.07 of this Indenture for Securities registered in the names of
Holders other than the Depositary for such Security or its nominee only if (i) such Depositary
notifies the Company that it is unwilling or unable to continue as Depositary for such Global
Security or if at any time such Depositary ceases to be a “clearing agency” registered under the
Exchange Act, and, in either case, the Company fails to appoint a successor Depositary within
120 days of such event, (ii) the Company in its sole discretion notifies the Trustee in writing
that such Global Security shall be so exchangeable or (iii) the Depositary so requests, or any
beneficial owner thereof requests such exchange in writing delivered through the Depositary, in
either case, if an Event of Default with respect to the Securities represented by such Global
Security shall have occurred and be continuing. Any Global Security that is exchangeable pursuant
to the preceding sentence shall be exchangeable for Securities registered in such names as the
Depositary shall direct in writing in an aggregate principal amount equal to the principal amount
of the Global Security with like tenor and terms.
(c) Except as provided in Section 2.13(b), a Global Security may not be transferred except as
a whole by the Depositary with respect to such Global Security to a nominee of such Depositary, by
a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such a successor
Depositary.
(d)
Legend
. Any Global Security issued hereunder shall bear such legend as is
provided for a particular Series of Securities by a resolution of the Board of Directors, a
supplemental indenture or an Officers’ Certificate.
(e)
Acts of Holders
. The Depositary, as a Holder, may appoint agents, grant proxies
and otherwise authorize Agent Members to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action that a Holder is entitled to give or take under
this Indenture.
(f)
Payments
. Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.02, payment of the principal of and interest, if
any, on any Global Security shall be made to the Holder thereof.
(g)
Consents, Declaration and Directions
. Except as provided in Section 2.13(e),
members of, or participants in, the Depository (“Agent Members”) shall have no rights under this
Indenture with respect to any Global Security held on their behalf by the Depositary or by the
Trustee as Securities Custodian or under such Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the Depositary or impair, as
between the Depositary and its Agent Members, the operation of customary
16
practices of such Depositary governing the exercise of the rights of a holder of a beneficial
interest in any Global Security.
SECTION 2.14.
CUSIP Numbers and ISINs
. The Company in issuing any Series of
Securities may use “CUSIP” numbers and ISINs (if then generally in use) and, if so, the Trustee
shall use “CUSIP” numbers and ISINs in notices as a convenience to Holders;
provided
,
however
, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained in any notice
(including a notice of redemption) and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such notice or notice of redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE 3
Redemption
SECTION 3.01.
Notices to Trustee.
If any Series of Securities is redeemable prior to
the Stated Maturity thereof and the Company elects to redeem Securities of such Series pursuant to
the terms of such Securities, it shall notify the Trustee in writing of the redemption date, the
principal amount of Securities of such Series to be redeemed and the redemption price.
Unless otherwise provided for a particular Series of Securities by a resolution of the Board
of Directors, a supplemental indenture or an Officers’ Certificate, the Company shall give each
notice to the Trustee provided for in this Section at least 45 days before the redemption date
unless the Trustee consents to a shorter period. Such notice shall be accompanied by an Officers’
Certificate to the effect that such redemption will comply with the conditions in this Indenture
and the Securities of such Series. Any such notice may be cancelled by the Company at any time
prior to notice of such redemption being mailed to any Holder of Securities of such Series and
shall thereby be void and of no effect unless the Trustee has sent the notice of redemption
pursuant to Section 3.03 below.
SECTION 3.02.
Selection of Securities to Be Redeemed
. Unless otherwise provided for a
particular Series of Securities by a resolution of the Board of Directors, a supplemental indenture
or an Officers’ Certificate, if fewer than all the Securities of a particular Series are to be
redeemed, the Trustee, subject to the procedures of the Depositary, shall select the Securities of
such Series to be redeemed pro rata or by lot or by a method that complies with applicable legal
and securities exchange requirements, if any, and that the Trustee in its sole discretion shall
deem to be fair and appropriate. The Trustee shall make the selection from outstanding Securities
of such Series not previously called for redemption. The Trustee may select for redemption
portions of the principal amount of Securities of such Series that have denominations larger than
$1,000. Securities and portions of them the Trustee selects shall be in principal amounts of
$1,000 or a whole multiple of $1,000 in excess thereof. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of
17
Securities called for redemption. The Trustee shall notify the Company promptly of the
Securities or portions of Securities to be redeemed.
SECTION 3.03.
Notice of Redemption
. Unless otherwise provided for a particular Series
of Securities by a resolution of the Board of Directors, a supplemental indenture or an Officers’
Certificate, at least 30 days but not more than 60 days before a date for redemption of Securities,
the Company, or the Trustee (at the direction of the Company), shall mail a notice of redemption by
first-class mail to each Holder of Securities to be redeemed at such Holder’s registered address.
The notice shall identify the Securities to be redeemed and shall state:
(1)
the redemption date;
(2)
the
redemption price;
(3)
the name and address of the Paying Agent;
(4)
that Securities called for redemption must be surrendered to the Paying Agent to
collect the redemption price;
(5)
if fewer than all the outstanding Securities of such Series are to be redeemed,
the identification and principal amounts of the particular Securities
to be redeemed;
(6) that, unless the Company defaults in making such redemption payment, interest on
Securities (or portion thereof) called for redemption ceases to accrue on and after the
redemption date; and
(7) that no representation is made as to the correctness or accuracy of the CUSIP
number or ISIN, if any, listed in such notice or printed on the Securities.
At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at the Company’s expense. In such event, the Company shall provide the Trustee with the
information required by this Section.
SECTION 3.04.
Effect of Notice of Redemption
. Unless otherwise provided for a
particular Series of Securities by a resolution of the Board of Directors, a supplemental indenture
or an Officers’ Certificate, once notice of redemption is mailed to Holders, Securities called for
redemption shall become due and payable on the redemption date and at the redemption price stated
in the notice. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on the related interest
payment date if the redemption date is after a regular record date and on or prior to the interest
payment date). Failure to give notice or any defect in the notice to any Holder shall not affect
the validity of the notice to any other Holder.
18
SECTION 3.05.
Deposit of Redemption Price
. Unless otherwise provided for a particular
Series of Securities by a resolution of the Board of Directors, a supplemental indenture or an
Officers’ Certificate, prior to 11:00 a.m., New York City time, on the redemption date, the Company
shall deposit with the Paying Agent (or, if the Company or a Subsidiary is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of and accrued interest,
if any, on all Securities or portions thereof to be redeemed on that date other than Securities or
portions of Securities called for redemption which have been delivered by the Company to the
Trustee for cancellation. Interest, if any, shall cease to accrue on Securities or portions
thereof called for redemption on and after the date the Company has deposited with the Paying Agent
funds sufficient to pay the principal of, plus accrued and unpaid interest, if any, on the
Securities to be redeemed, unless the Paying Agent is prohibited from making such payment pursuant
to the terms of this Indenture.
SECTION 3.06.
Securities Redeemed in Part
. Upon surrender of a Security that is
redeemed in part, the Company shall execute and the Trustee shall authenticate for the Holder (at
the Company’s expense) a new Security equal in principal amount to the unredeemed portion of the
Security surrendered.
ARTICLE 4
Covenants
SECTION 4.01.
Payment of Securities
. The Company shall promptly pay the principal of
and interest, if any, on each Series of Securities on the dates and in the manner provided in such
Series of Securities and in this Indenture. Principal and interest, if any, shall be considered
paid on the date due if on such date the Trustee or the Paying Agent holds in accordance with this
Indenture money sufficient to pay all principal and interest, if any, then due.
SECTION 4.02.
SEC Reports
. Unless otherwise provided for a particular Series of
Securities by a resolution of the Board of Directors, a supplemental indenture or an Officers’
Certificate, notwithstanding that the Company may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall file with the SEC and provide the
Trustee and Holders and prospective Holders (upon request) within 15 days after it files them with
the SEC, copies of its annual report and the information, documents and other reports that are
specified in Sections 13 and 15(d) of the Exchange Act. In addition, the Company shall furnish to
the Trustee and the Holders, promptly upon their becoming available, copies of the annual report to
shareholders and any other information provided by the Company to its public shareholders
generally. The Company also shall comply with the other provisions of Section 314(a) of the TIA.
Delivery of such reports, information and documents to the Trustee hereunder is for informational
purposes only and the Trustee’s receipt of such does not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers’ Certificates or certificates delivered pursuant to Section 4.03).
19
SECTION 4.03.
Compliance Certificate
. The Company shall deliver to the Trustee within
120 days after the end of each fiscal year of the Company a certificate signed by a Financial
Officer complying with TIA § 314(a)(4) stating (i) that a review of the activities of the Company
and its Subsidiaries during the preceding fiscal year has been made with a view to determining whether
the Company and the Subsidiary Guarantors have fulfilled their obligations under this Indenture and
(ii) that, to the knowledge of such Financial Officer, no Default or Event of Default occurred
during such period (or, if a Default or Event of Default hereunder shall have occurred, describing
all such Defaults or Events of Default hereunder of which such Financial Officer may have knowledge
and what action the Company has taken, is taking and/or proposes to take with respect thereto).
SECTION 4.04.
Further Instruments and Acts
. Upon request of the Trustee, the Company
will execute and deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this Indenture.
ARTICLE 5
Successor Company
SECTION 5.01.
When Company May Merge or Transfer Assets
. (a) Unless otherwise
provided for a particular Series of Securities by a resolution of the Board of Directors, a
supplemental indenture or an Officers’ Certificate, the Company shall not, directly or indirectly,
consolidate with or merge with or into, or convey, transfer or lease all or substantially all its
assets, in one or a series of related transactions, to, any Person, unless:
(1) the resulting, surviving or transferee Person (the “Successor Company”) shall be a
corporation organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and the Successor Company (if not the Company)
shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee,
in form satisfactory to the Trustee, all the obligations of the Company under the
Securities and this Indenture;
(2) immediately after giving effect to such transaction, no Default shall have
occurred and be continuing; and
(3) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture.
(b) The Successor Company shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture (as modified or supplemented by a resolution
of the Board of Directors, supplemental indenture or an
20
Officers’ Certificate), and the predecessor Company, other than in the case of a lease,
shall be released from the obligation to pay the principal of and interest, if any, on the
Securities.
(c) Unless otherwise provided for a particular Series of Securities by a resolution of the
Board of Directors, a supplemental indenture or an Officers’ Certificate, the Company shall not
permit any Subsidiary Guarantor to, directly or indirectly, consolidate with or merge with or into,
or convey, transfer or lease all or substantially all of its assets, in one or a series of related
transactions, to any Person unless:
(1) except in the case of a Subsidiary Guarantor (i) that has been disposed of in its
entirety to another Person (other than to the Company or an Affiliate of the Company),
whether through a merger, consolidation or sale of Capital Stock or assets or (ii) that, as
a result of the disposition of all or a portion of its Capital Stock, ceases to be a
Subsidiary, the resulting, surviving or transferee Person shall be a corporation organized
and existing under the laws of the United States of America, any State thereof, the
District of Columbia or any other jurisdiction under which such Subsidiary Guarantor was
organized, and such Person (if not such Subsidiary Guarantor) shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee;
(2) immediately after giving effect to such transaction, no Default shall have
occurred and be continuing; and
(3) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture.
(d) Notwithstanding the foregoing:
(1) any Subsidiary may consolidate with, merge into or transfer all or part of its
properties and assets to the Company or any Subsidiary Guarantor and
(2) the Company may merge with an Affiliate incorporated solely for the purpose of
reincorporating the Company in another jurisdiction within the United States of America,
any State thereof or the District of Columbia to realize tax or other benefits.
ARTICLE 6
Defaults and Remedies
SECTION 6.01.
Events of Default
. Unless otherwise provided for a particular Series
of Securities by a resolution of the Board of Directors, a supplemental
21
indenture or an Officers’ Certificate, each of the following constitutes an “Event of Default”
with respect to each Series of Securities:
(1) the Company defaults in any payment of interest on any Security of that Series
when the same becomes due and payable, and such default continues for 30 days;
(2) the Company defaults in the payment of principal of any Security of that Series
when the same becomes due and payable at its Stated Maturity, upon optional redemption or
required repurchase, upon declaration of acceleration or otherwise;
(3) the Company or any Subsidiary Guarantor fails to comply with its obligations under
Section 5.01;
(4) the Company fails to comply with its covenants or agreements with respect to the
Securities of that Series contained in such Securities or in this Indenture (other than
those referred to in clauses (1), (2), or (3) above) and such failure continues for 60 days
after the notice from the Trustee or the Holders specified below;
(5) the Company or any Significant Subsidiary pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an involuntary
case;
(C) consents to the appointment of a Custodian of it or for any substantial
part of its property; or
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to insolvency;
(6) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(A) is for relief against the Company or any Significant Subsidiary in an
involuntary case;
(B) appoints a Custodian of the Company or any Significant Subsidiary or for
any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or any Significant
Subsidiary;
22
or any similar relief is granted under any foreign laws and the order or decree remains
unstayed and in effect for 60 days;
(7) with respect to any Series of Securities that has the benefit of Subsidiary
Guarantees, any such Subsidiary Guarantee ceases to be in full force and effect in all
material respects (except as contemplated by the terms thereof) or any applicable
Subsidiary Guarantor denies or disaffirms such Subsidiary Guarantor’s obligations under
this Indenture or any such Subsidiary Guarantee and such Default continues for 10 days
after receipt of the notice specified below.
The foregoing shall constitute Events of Default whatever the reason for any such Event of Default
and whether such Event of Default is voluntary or involuntary or is effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
Notwithstanding the foregoing, unless otherwise provided for a particular Series of Securities
by a resolution of the Board of Directors, a supplemental indenture or an Officers’ Certificate, a
default under Section 6.01(4) or 6.01(7) (and under Section 6.01(7) only with respect to any
Subsidiary Guarantor that is not a Significant Subsidiary) shall not constitute an Event of Default
with respect to any Series of Securities until the Trustee notifies the Company or the Holders of
at least 25% in principal amount of the outstanding Securities of that Series notify the Company
and the Trustee of the default and the Company or the Subsidiary Guarantor, as applicable, does not
cure such default within any applicable time specified in Section 6.01(4) or 6.01(7) hereof after
receipt of such notice.
The term “Bankruptcy Law” means Title 11, United States Code, or any similar Federal or state
law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee,
liquidator, custodian or similar official under any Bankruptcy Law.
The Company shall deliver to the Trustee, within 30 days after the occurrence thereof, written
notice of any Event of Default under Section 6.01(7) and any event which with the giving of notice
or the lapse of time would become an Event of Default under Section 6.01(4), its status and what
action the Company is taking or proposes to take with respect thereto.
SECTION 6.02.
Acceleration
. If an Event of Default (other than an Event of Default
specified in Section 6.01(5) or 6.01(6)) occurs and is continuing with respect to any Series of
Securities, the Trustee by notice to the Company or the Holders of at least 25% in principal amount
of the outstanding Securities of that Series by notice to the Company and the Trustee may declare
the principal of and accrued but unpaid interest, if any, on all the Securities of that Series to
be due and payable. Upon such a declaration, such principal and interest, if any, will be due and
payable immediately. If an Event of Default specified in Section 6.01(5) or 6.01(6) with respect
to the Company occurs, the principal of and interest, if any, on all the Securities of each Series shall
become immediately due and payable without any declaration or other act on the part of the Trustee
or any
23
Holders. The Holders of a majority in principal amount of the Securities of any Series by
notice to the Trustee may rescind an acceleration of that Series of Securities and its consequences
if the rescission would not conflict with any judgment or decree and if all existing Events of
Default with respect to such Series of Securities have been cured or waived except nonpayment of
principal of or interest, if any,
on all Securities of that Series that has become due solely because of
acceleration. No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
SECTION 6.03.
Other Remedies
. If an Event of Default occurs and is continuing with
respect to any Series of Securities, the Trustee may pursue any available remedy to collect the
payment of principal of or interest, if any, on the Securities of that Series or to enforce the
performance of any provision of the Securities of that Series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Securities of a
Series or does not produce any of them in the proceeding. A delay or omission by the Trustee or
any Holder in exercising any right or remedy accruing upon an Event of Default with respect to any
Series of Securities shall not impair the right or remedy or constitute a waiver of or acquiescence
in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are
cumulative.
SECTION 6.04.
Waiver of Past Defaults
. The Holders of a majority in principal amount
of the Securities of any Series by notice to the Trustee may waive an existing Default and its
consequences with respect to such Series of Securities except (a) a Default in the payment of the
principal of or interest, if any, on a Security of that Series, (b) a Default arising from the
failure to redeem or purchase any Security of that Series when required pursuant to this Indenture
or (c) a Default in respect of a provision that under Section 9.02 cannot be amended without the
consent of each Holder affected. When a Default is waived, it is deemed cured, but no such waiver
shall extend to any subsequent or other Default or impair any consequent right.
SECTION 6.05.
Control by Majority
. The Holders of a majority in principal amount of
the Securities of any Series may, with respect to that Series of Securities, direct the time,
method and place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture or that the Trustee determines is unduly
prejudicial to the rights of any other Holder of Securities of such Series (it being understood
that the Trustee does not have an affirmative duty to ascertain whether or not any such directions
are unduly prejudicial to such Holders), subject to Section 7.01, or that would involve the Trustee
in personal liability;
provided
,
however
, that the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with such direction. Subject to
Section 7.01, if an Event of Default has occurred and is continuing with respect to a Series of
Securities, the Trustee shall be under no obligation to exercise any of the rights or powers under
this Indenture at the request or direction of any of the Holders of such Series of Securities,
unless such Holders have offered to the Trustee indemnity satisfactory to the
24
Trustee against any loss, liability or expense which might be incurred by it in compliance
with such request or direction.
SECTION 6.06.
Limitation on Suits
. Except to enforce the right to receive payment of
principal of or interest, if any, on a Security of any Series when due, no Holder of Securities of
such Series may pursue any remedy with respect to this Indenture or the Securities of that Series
unless:
(1) the Holder gives to the Trustee written notice stating that an Event of Default is
continuing with respect to that Series;
(2) the Holders of at least 25% in principal amount of the outstanding Securities of
that Series make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders of Securities of that Series offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and
(5) the Holders of a majority in principal amount of the Securities of that Series do
not give the Trustee a direction inconsistent with the request during such 60-day period.
A Holder of Securities of any Series may not use this Indenture to prejudice the rights of
another Holder of that Series or to obtain a preference or priority over another Holder of that
Series.
SECTION 6.07.
Rights of Holders to Receive Payment
. Notwithstanding any other
provision of this Indenture, the right of any Holder to receive payment of principal of and
interest, if any, on the Securities held by such Holder, on or after the respective due dates
expressed in the Securities, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08.
Collection Suit by Trustee
. If an Event of Default specified in
Section 6.01(1) or 6.01(2) occurs and is continuing, the Trustee may recover judgment in its own
name and as trustee of an express trust against the Company for the whole amount then due and owing
(together with interest on any unpaid interest to the extent lawful) and the amounts provided for
in Section 7.07.
SECTION 6.09.
Trustee May File Proofs of Claim
. The Trustee may file such proofs of
claim and other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee and the Holders allowed in any judicial proceedings relative to the Company, its
creditors or its property and, unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in
25
any such judicial proceeding is hereby authorized by each Holder to make payments to the
Trustee and, in the event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
SECTION 6.10.
Priorities
. If the Trustee collects any money or property pursuant to
this Article 6 with respect to any Series of Securities, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07 with respect to such Series
of Securities;
SECOND: to Holders for amounts due and unpaid on the Securities of that Series for
principal and interest, if any, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities of that Series for principal and
interest, if any, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section. At least 15 days before such record date, the Company shall mail to each Holder and the
Trustee a notice that states the record date, the payment date and amount to be paid.
SECTION 6.11.
Undertaking for Costs
. In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party litigant in the suit
of an undertaking to pay the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.07 or a suit by Holders of more than 10% in principal amount of the Securities of any
Series.
SECTION 6.12.
Waiver of Stay or Extension Laws
. The Company (to the extent it may
lawfully do so) shall not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and shall not hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as though no such law
had been enacted.
26
ARTICLE 7
Trustee
SECTION 7.01.
Duties of Trustee
. (a) If an Event of Default has occurred and is
continuing with respect to any Series of Securities, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and skill in their exercise
as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s
own affairs.
(b) Except during the continuance of an Event of Default with respect to any Series of
Securities:
(1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture with respect to the Securities of that Series, as
modified or supplemented by a resolution of the Board of Directors, a supplemental
indenture or an Officers’ Certificate, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may, with respect to the
Securities of that Series, conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However, the Trustee
shall examine the certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act or its own wilful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a
Trust Officer unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from other funds except to the
extent required by law.
27
(g) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur financial liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(h) Every provision of this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the provisions of this Section and to
the provisions of the TIA.
SECTION 7.02.
Rights of Trustee
. (a) The Trustee may rely on any document believed
by it to be genuine and to have been signed or presented by the proper person. The Trustee need
not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on the Officers’ Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it believes to be authorized or within its rights or powers;
provided
,
however
, that the Trustee’s conduct does not constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or opinion of counsel with respect
to legal matters relating to this Indenture and the Securities, including any Opinion of Counsel,
shall be full and complete authorization and protection from liability in respect to any action
taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel, including any Opinion of Counsel.
(f) The Trustee shall not be required to give any bond or surety in respect of the
performance of its powers and duties hereunder.
(g) The Trustee shall not be bound to ascertain or inquire as to the performance or
observance of any covenants, conditions, or agreements on the part of the Company, except as
otherwise set forth herein, but the Trustee may require of the Company full information and advice
as to the performance of the covenants, conditions and agreements contained herein.
(h) The permissive rights of the Trustee to do things enumerated in this Indenture shall not
be construed as a duty and, with respect to such permissive rights, the Trustee shall not be
answerable for other than its negligence or willful misconduct;
(i) Except for a default under Sections 6.01(1) or (2) hereof, the Trustee shall not be
deemed to have notice or be charged with knowledge of any Default or Event
28
of Default with respect to the Securities of any Series unless a Trust Officer shall have
received from the Company or the Holders of not less than 25% in aggregate principal amount of the
Securities then outstanding of such Series of Securities written notice thereof at its address set
forth in Section 11.02 hereof, and such notice references such Securities and this Indenture. In
the absence of any such notice, the Trustee may conclusively assume that no Default or Event of
Default exists.
(j) The Trustee shall be under no obligation to exercise any of the rights or powers vested
in it by this Indenture at the request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory
to it against the costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction.
(k) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder.
(l) In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
SECTION 7.03.
Individual Rights of Trustee
. The Trustee in its individual or any
other capacity may become the owner or pledgee of Securities and may otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not Trustee. Any Paying
Agent, Registrar, co-registrar or co-paying agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04.
Trustee’s Disclaimer
. The Trustee shall not be responsible for and
makes no representation as to the validity or adequacy of this Indenture or the Securities, it
shall not be accountable for the Company’s use of the proceeds from the Securities, and it shall
not be responsible for any statement of the Company in this Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the Trustee’s
certificate of authentication.
SECTION 7.05.
Notice of Defaults
. If a Default with respect to Securities of any
Series occurs and is continuing and is actually known to a Trust Officer, the Trustee shall mail to
each Holder of Securities of such Series notice of the Default within the earlier of 90 days after
it occurs or 30 days after it is actually known to a Trust Officer or written notice of it is
received by the Trustee. Except in the case of a Default in the payment of principal of or
interest (if any) on any Security of any Series (including
29
payments pursuant to the redemption provisions of such Security), the Trustee may withhold
notice if and so long as a committee of its Trust Officers in good faith determines that
withholding notice is in the interests of the Holders of that Series of Securities.
SECTION 7.06.
Reports by Trustee to Holders
. Unless otherwise provided for a
particular Series of Securities by a resolution of the Board of Directors, a supplemental indenture
or an Officers’ Certificate, at the expense of the Company, as promptly as practicable after each
January 1 beginning with January 1, 2011, and in any event prior to March 1 in each such year, the
Trustee shall mail to each Holder a brief report dated as of such January 1 that complies with TIA
§ 313(a). The Trustee also shall comply with TIA § 313(b).
A copy of each report at the time of its mailing to Holders shall be filed with the SEC and
each stock exchange (if any) on which the Securities are listed. The Company agrees to notify
promptly the Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.07.
Compensation and Indemnity
. The Company shall pay to the Trustee from
time to time reasonable compensation for its services as shall be agreed to in writing from time to
time by the Company and the Trustee. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the Trustee’s agents, counsel,
accountants and experts. The Company shall indemnify the Trustee, its agents, representatives,
officers, directors, employees and attorneys against any and all loss, liability or expense
(including reasonable compensation and expenses, disbursements and advances of the Trustee’s
counsel) incurred by it in connection with the administration of this trust and the performance of
its duties or in connection with the exercise or performance of any of its rights or powers
hereunder. The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee shall provide reasonable
cooperation in such defense. The Trustee may have separate counsel and the Company shall pay the
fees and expenses of such counsel reasonably acceptable to the Company,
provided
,
however
, that the Company shall not be required to pay such fees and expenses if the
Company assumes such defense unless there is a conflict of interest between the Company and the
Trustee in connection with such defense as determined by Trustee in consultation with counsel. The
Company need not reimburse any expense or indemnify against any loss, liability or expense incurred
by the Trustee through the Trustee’s own wilful misconduct, negligence or bad faith.
To secure the Company’s payment obligations in this Section, the Trustee shall have a lien
prior to the Securities on all money or property held or collected by the
30
Trustee other than money or property held in trust to pay principal of and interest, if any,
on particular Securities.
The Company’s payment obligations pursuant to this Section shall survive the resignation or
removal of the Trustee and the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.01(5) or (6) with respect to the Company, the
expenses are intended to constitute expenses of administration under the Bankruptcy Law.
SECTION 7.08.
Replacement of Trustee
. The Trustee may resign at any time with
respect to any Series of Securities by so notifying the Company. The Holders of a majority in
principal amount of the Securities of any Series may remove the Trustee by so notifying the Trustee
and may appoint a successor Trustee with respect to such Series of Securities. The Company shall
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal
amount of the Securities of any Series and such Holders do not reasonably promptly appoint a
successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in
such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee with respect to any Series of Securities shall
mail a notice of its succession to Holders of Securities of that Series. The retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the
lien provided for in Section 7.07.
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee or the Holders of 10% in principal amount of the Securities of
that Series may petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, unless the Trustee’s duty to resign is
stayed as provided in TIA Section 310(b), any Holder of Securities of any Series may petition any
court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee with respect to that Series of Securities.
31
Notwithstanding the replacement of the Trustee pursuant to this Section, the Company’s
obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.
SECTION 7.09.
Successor Trustee by Merger
. If the Trustee consolidates with, merges
or converts into, or transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion or consolidation to the
Trustee shall succeed to the trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so authenticated; and in
case at that time any of the Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the
name of the successor to the Trustee; and in all such cases such certificates shall have the full
force which it is anywhere in the Securities or in this Indenture provided that the certificate of
the Trustee shall have.
SECTION 7.10.
Eligibility; Disqualification
. The Trustee shall at all times satisfy
the requirements of TIA § 310(a). The Trustee shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of condition. The
Trustee shall comply with TIA § 310(b);
provided
,
however
, that there shall be
excluded from the operation of TIA § 310(b)(1) any Series of Securities and any indenture or
indentures under which other securities or certificates of interest or participation in other
securities of the Company are outstanding if the requirements for such exclusion set forth in TIA §
310(b)(1) are met.
SECTION 7.11.
Preferential Collection of Claims Against Company
. The Trustee shall
comply with TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee
who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated.
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01.
Discharge of Liability on Securities; Defeasance
. (a) Unless otherwise provided for in a resolution of the Board of Directors, a supplemental
indenture or an Officers’ Certificate, when (1) the Company delivers to the Trustee all outstanding
Securities of a Series (other than Securities replaced pursuant to Section 2.08) for cancellation
or (2) all outstanding Securities of a Series have become due and payable, whether at maturity or
on a redemption date as a result of the mailing of a notice of redemption pursuant to Article 3
hereof and, in the case of clause (2), the Company irrevocably deposits with the Trustee funds or
U.S. Government Obligations sufficient to pay at maturity or upon redemption all outstanding
Securities of such Series,
32
including premium, if any, and interest, if any, thereon to maturity or such redemption date
(other than Securities replaced pursuant to Section 2.08), and if in either case the Company pays
all other sums payable under this Indenture by the Company, then this Indenture with respect to
such Series shall, subject to Section 8.01(c), cease to be of further effect with respect to such
Series of Securities. Upon satisfaction of the above conditions, the Trustee shall acknowledge
satisfaction and discharge of this Indenture with respect to such Series of Securities.
(b) Unless otherwise provided for a particular Series of Securities by a resolution of the
Board of Directors, a supplemental indenture or an Officers’ Certificate, subject to Sections
8.01(c) and 8.02, the Company at any time may terminate (1) all its obligations under the
Securities of a Series and this Indenture with respect to such Series of Securities (“legal
defeasance option”) or (2) with respect to a Series of Securities, its obligations under Section
4.02 and the operation of Sections 6.01(5) and 6.01(6) (but, in the case of Sections 6.01(5) and
6.01(6), with respect only to Significant Subsidiaries) (“covenant defeasance option”). The
Company may exercise its legal defeasance option notwithstanding its prior exercise of its covenant
defeasance option.
If the Company exercises its legal defeasance option with respect to a Series, payment of the
Securities of such Series may not be accelerated because of an Event of Default with respect to
such Series. If the Company exercises its covenant defeasance option with respect to any Series of
Securities, payment of the Securities of such Series may not be accelerated because of an Event of
Default with respect to such Series specified in Section 6.01(4) (with respect only to the
Company’s obligations under Section 4.02) and Sections 6.01(5) and 6.01(6) (in the case of Section
6.01(5) and 6.01(6), with respect only to Significant Subsidiaries). In the event that the Company
exercises its legal defeasance option or its covenant defeasance option, each Subsidiary Guarantor
will be released from all of its obligations with respect to its Subsidiary Guarantee.
Upon satisfaction of the conditions set forth herein and upon request of the Company
accompanied by an Officers’ Certificate and an Opinion of Counsel complying with Section 11.04, the
Trustee shall acknowledge in writing the discharge of those obligations that the Company
terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company’s obligations in Sections 2.04,
2.05, 2.06, 2.07, 2.08, 2.09, 7.07 and 7.08 and in this Article 8 shall survive with respect to any
Series of Securities until the Securities of such Series have been paid in full. Thereafter, the
Company’s obligations in Sections 7.07, 8.04 and 8.05 shall survive.
SECTION 8.02.
Conditions to Defeasance
. Unless otherwise provided for a particular
Series of Securities by a resolution of the Board of Directors, a supplemental indenture or an
Officers’ Certificate, the Company may exercise its legal defeasance option or its covenant
defeasance option with respect to any Series of Securities only if:
33
(1) the Company irrevocably deposits in trust with the Trustee money in U.S. dollars
in an amount sufficient or U.S. Government Obligations, the principal of and interest on
which shall be sufficient, or a combination thereof sufficient to pay the principal of and
interest, if any, in respect of the Securities of such Series to redemption or maturity, as
the case may be;
(2) the Company delivers to the Trustee a certificate from a nationally recognized
investment bank, appraisal firm or firm of independent accountants expressing their opinion
that the payments of principal and interest when due and without reinvestment on the
deposited U.S. Government Obligations plus any deposited money without investment will
provide cash at such times and in such amounts as will be sufficient to pay principal and
interest, if any, when due on all the Securities of that Series to maturity or redemption,
as the case may be;
(3) 91 days pass after the deposit is made and during the 91-day period no Default
specified in Sections 6.01(5) or (6) with respect to the Company occurs which is continuing
at the end of the period;
(4) the deposit does not constitute a default under any other material agreement
binding on the Company;
(5) the Company delivers to the Trustee an Opinion of Counsel to the effect that the
trust resulting from the deposit does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of 1940;
(6) in the case of the legal defeasance option, the Company shall have delivered to
the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (B) since the date of this
Indenture there has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall confirm that, the
Holders of Securities of such Series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same times as would
have been the case if such deposit and defeasance had not occurred; and
(7) in the case of the covenant defeasance option, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that the Holders of Securities of such
Series will not recognize income, gain or loss for Federal income tax purposes as a result
of such deposit and covenant defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the case if such
deposit and covenant defeasance had not occurred.
Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for
the redemption of Securities of such Series at a future date in accordance with Article 3.
34
SECTION 8.03.
Application of Trust Money
. The Trustee shall hold in trust money or
U.S. Government Obligations deposited with it in respect of a Series of Securities pursuant to this
Article 8. It shall apply the deposited money and the money from U.S. Government Obligations, as
the case may be, through the Paying Agent and in accordance with this Indenture to the payment of
principal of and interest, if any, on the Securities of such Series.
SECTION 8.04.
Repayment to Company
. The Trustee and the Paying Agent shall promptly
turn over to the Company upon request any excess money or securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay
to the Company upon request any money held by them for the payment of principal or interest that
remains unclaimed for two years, and, thereafter, Holders entitled to the money must look to the
Company for payment as general creditors.
SECTION 8.05.
Indemnity for Government Obligations
. The Company shall pay and shall
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against deposited
U.S. Government Obligations or the principal and interest received on such U.S. Government
Obligations.
SECTION 8.06.
Reinstatement
. If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with this Article 8 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company’s and each Subsidiary
Guarantor’s obligations under this Indenture and each Subsidiary Guarantee with respect to such
Series of Securities shall be revived and reinstated as though no deposit had occurred pursuant to
this Article 8 until such time as the Trustee or Paying Agent is permitted to apply all such money
or U.S. Government Obligations in accordance with this Article 8;
provided
,
however
, that, if the Company has made any payment of interest on or principal of any
Securities of a Series because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such payment from the money
or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
Amendments
SECTION 9.01.
Without Consent of Holders
. The Company, the Subsidiary Guarantors and
the Trustee may amend this Indenture or the Securities of any Series without notice to or consent
of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
35
(2) to provide for the assumption by a successor corporation of the obligations of the
Company or any Subsidiary Guarantor under this Indenture in compliance with Article 5;
(3) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
provided
,
however
, that the uncertificated
Securities are issued in registered form for purposes of Section 163(f) of the Code or in a
manner such that the uncertificated Securities are described in Section 163(f)(2)(B) of the
Code;
(4) to add Guarantees with respect to the Securities of such Series or to confirm and
evidence the release, termination or discharge of any such Guarantee when such release,
termination or discharge is permitted under this Indenture;
(5) to add to the covenants of the Company for the benefit of the Holders of such
Series of Securities or to surrender any right or power herein conferred upon the Company;
(6) to make any change that does not adversely affect the rights of any Holder in any
material respect, subject to the provisions of this Indenture;
(7) to comply with any requirement of the SEC in connection with qualifying, or
maintaining the qualification of, this Indenture under the TIA;
(8) to make any amendment to the provisions of this Indenture relating to form,
authentication, transfer and legending of such Series of Securities;
provided
,
however
, that (A) compliance with this Indenture as so amended would not result in
such Securities being transferred in violation of the Securities Act or any other
applicable securities law and (B) such amendment does not materially affect the rights of
Holders to transfer such Securities;
(9) to convey, transfer, assign, mortgage or pledge as security for the Securities of
such Series any property or assets;
(10) in the case of subordinated Securities, to make any change in the provisions of
this Indenture relating to subordination that would limit or terminate the benefits
available to any holder of senior Indebtedness under such provisions (but only if each such
holder of senior Indebtedness consents to such change);
(11) to add to, change, or eliminate any of the provisions of this Indenture with
respect to one or more Series of Securities, so long as any such addition, change or
elimination not otherwise permitted under this Indenture shall (A) neither apply to any
Security of any Series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor modify the rights of the Holders of any such
Security with respect to the benefit of such provision or (B) become effective only when
there is no such Security outstanding; and
36
(12) to establish the initial form, authentication, transfer, legending or terms of
Securities and coupons of any Series pursuant to Article 2.
After an amendment under this Section becomes effective, the Company shall mail to Holders of
each Series of Securities to which such amendment applies a notice briefly describing such
amendment. The failure to give such notice to all Holders, or any defect therein, shall not impair
or affect the validity of an amendment under this Section.
SECTION 9.02.
With Consent of Holders
. (a) The Company, the Subsidiary Guarantors
and the Trustee may amend this Indenture with respect to any Series of Securities with the written
consent of the Holders of at least a majority in principal amount of the Securities of such Series
then outstanding, voting as a single class (including consents obtained in connection with a tender
offer or exchange for Securities of such Series). Any existing Default or compliance with any
provisions of this Indenture with respect to any Series of Securities may be waived with the
consent of the Holders of at least a majority in principal amount of the Securities of that Series
then outstanding voting as a single class, subject to the restrictions of Section 6.04 and this
Section 9.02. Notwithstanding the foregoing, without the consent of each Holder affected thereby,
an amendment or waiver may not:
(1) reduce the amount of Securities of any Series whose Holders must consent to an
amendment;
(2) reduce the rate of or extend the time for payment of interest on any Security;
(3) reduce the principal of or extend the Stated Maturity of any Security;
(4) reduce the premium, if any, payable upon the redemption of any Security or change
the time at which such Security may be redeemed;
(5) make any Security payable in money or securities other than that stated in such
Security;
(6) impair the right of any Holder to receive payment of principal of and interest on
such Holder’s Securities on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holder’s Securities;
(7) in the case of any subordinated Securities, or coupons appertaining thereto, make
any change in the provisions of this Indenture relating to subordination that adversely
affects the rights of any Holder under such provisions;
(8) make any change in Section 6.04 or 6.07 or the second sentence of this Section
9.02; or
37
(9) make any change in, or release other than in accordance with this Indenture, any
Subsidiary Guarantee that would adversely affect the Holders.
(b) It shall not be necessary for the consent of the Holders of any Series to which an
amendment applies under this Section to approve the particular form of such proposed amendment, but
it shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the Company shall mail to Holders of
any Series to which such amendment applies a notice briefly describing such amendment. The failure
to give such notice to all such Holders, or any defect therein, shall not impair or affect the
validity of an amendment under this Section.
SECTION 9.03.
Compliance with Trust Indenture Act
. Every amendment to this Indenture
or the Securities shall comply with the TIA as then in effect.
SECTION 9.04.
Revocation and Effect of Consents and Waivers
. A consent to an
amendment or a waiver by a Holder of a Security shall bind the Holder and every subsequent Holder
of that Security or portion of the Security that evidences the same debt as the consenting Holder’s
Security, even if notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder’s Security or
portion of the Security if the Trustee receives the notice of revocation before the date the
amendment or waiver becomes effective. After an amendment or waiver becomes effective, it shall
bind every Holder. An amendment or waiver becomes effective upon the execution of such amendment
or waiver by the Trustee.
The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action described above or
required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be entitled to give such
consent or to revoke any consent previously given or to take any such action, whether or not such
Persons continue to be Holders after such record date. No such consent shall be valid or effective
for more than 120 days after such record date.
SECTION 9.05.
Notation on or Exchange of Securities
. If an amendment changes the
terms of a Security, the Trustee may require the Holder of the Security to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Security regarding the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security
that reflects the changed terms. Failure to make the appropriate notation or to issue a new
Security shall not affect the validity of such amendment.
38
SECTION 9.06.
Trustee To Sign Amendments
. The Trustee shall sign any amendment
authorized pursuant to this Article 9 if the amendment does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign
it. In signing such amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully protected in
relying upon, an Officers’ Certificate and an Opinion of Counsel stating that such amendment is
authorized or permitted by this Indenture.
SECTION 9.07.
Payment for Consent
. Neither the Company nor any Affiliate of the
Company shall, directly or indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Securities of any Series
unless such consideration is offered to be paid to all Holders of such Series that so consent,
waive or agree to amend in the time frame set forth in solicitation documents relating to such
consent, waiver or agreement.
ARTICLE 10
Subsidiary Guarantees
SECTION 10.01.
Guarantees
. (a) Notwithstanding any provision in this Article 10 to
the contrary, the provisions of this Article 10 shall be applicable only to, and inure solely to
the benefit of, any Series of Securities designated, pursuant to Section 2.02, to be entitled to
the benefits of Subsidiary Guarantees of the Subsidiary Guarantors provided for in such Series of
Securities.
(b) Each Subsidiary Guarantor hereby irrevocably and unconditionally guarantees, as a primary
obligor and not merely as a surety, the due and punctual payment and performance of all of the
Guaranteed Obligations of such Subsidiary Guarantor, jointly with the other Subsidiary Guarantors
and severally. Each of the Subsidiary Guarantors further agrees that its Guaranteed Obligations
may be extended or renewed, in whole or in part, without notice to or further assent from it, and
that it will remain bound upon its guarantee notwithstanding any extension or renewal of any such
Guaranteed Obligation. Each of the Subsidiary Guarantors waives presentment to, demand of payment
from and protest to the Company or any Subsidiary Guarantor of any of its Guaranteed Obligations,
and also waives notice of acceptance of its guarantee, notice of protest for nonpayment and all
similar formalities.
(c) Each of the Subsidiary Guarantors further agrees that its guarantee hereunder constitutes
a guarantee of payment when due and not of collection, and waives any right to require that any
resort be had by the Trustee or any Holder to any security held for the payment of its Guaranteed
Obligations or to any balance of any deposit account or credit on the books of the Trustee or any
Holder in favor of the Company.
(d) Except for termination of a Subsidiary Guarantor’s obligations hereunder or a release of
such Subsidiary Guarantor pursuant to Section 10.06, to the
39
fullest extent permitted by applicable law, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any
reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the Guaranteed Obligations of such Subsidiary
Guarantor or otherwise. Without limiting the generality of the foregoing, to the fullest extent
permitted by applicable law, the obligations of each Subsidiary Guarantor hereunder shall not be
discharged or impaired or otherwise affected by (i) the failure of the Trustee or any Holder to
assert any claim or demand or to enforce any right or remedy under the provisions of this Indenture
or otherwise; (ii) any rescission, waiver, amendment or modification of, or any release from any of
the terms or provisions of, this Indenture or any other agreement, including with respect to any
other Subsidiary Guarantor under this Agreement; (iii) any default, failure or delay, wilful or
otherwise, in the performance of the Guaranteed Obligations of such Subsidiary Guarantor; or (iv)
any other act or omission that may or might in any manner or to any extent vary the risk of such
Subsidiary Guarantor or otherwise operate as a discharge of such Subsidiary Guarantor as a matter
of law or equity (other than the indefeasible payment in full in cash of all the Guaranteed
Obligations of such Guarantor).
(e) To the fullest extent permitted by applicable law, each Subsidiary Guarantor waives any
defense based on or arising out of any defense of the Company or any other Subsidiary Guarantor or
the unenforceability of the Guaranteed Obligations of such Subsidiary Guarantor or any part thereof
from any cause, or the cessation from any cause of the liability of the Company or any other
Subsidiary Guarantor, other than the indefeasible payment in full in cash of all the Guaranteed
Obligations of such Subsidiary Guarantor. The Trustee may, at its election, compromise or adjust
any part of the Guaranteed Obligations, make any other accommodation with the Company or any
Subsidiary Guarantor or exercise any other right or remedy available to them against the Company or
any Subsidiary Guarantor, in each case without affecting or impairing in any way the liability of
any Subsidiary Guarantor hereunder except to the extent the Guaranteed Obligations of such
Subsidiary Guarantor have been fully and indefeasibly paid in full in cash. To the fullest extent
permitted by applicable law, each Subsidiary Guarantor waives any defense arising out of any such
election even though such election operates, pursuant to applicable law, to impair or to extinguish
any right of reimbursement or subrogation or other right or remedy of such Subsidiary Guarantor
against the Company or any other Subsidiary Guarantor, as the case may be.
(f) Each of the Subsidiary Guarantors agrees that its guarantee hereunder shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of
any Guaranteed Obligation of such Subsidiary Guarantor is rescinded or must otherwise be restored
by the Trustee upon the bankruptcy or reorganization of the Company, any other Subsidiary Guarantor
or otherwise.
SECTION 10.02.
Limitation on Liability
. Any term or provision of this Indenture to
the contrary notwithstanding, the maximum aggregate amount of the Guaranteed Obligations guaranteed
hereunder by any Subsidiary Guarantor shall not exceed the maximum amount that can be hereby
guaranteed without rendering this
40
Indenture, as it relates to such Subsidiary Guarantor, voidable
under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights
of creditors generally.
SECTION 10.03.
Successors and Assigns
. This Article 10 shall be binding upon each
Subsidiary Guarantor and its successors and assigns and shall inure to the benefit of the
successors, transferees and assigns of the Trustee and the Holders and, in the event of any
transfer or assignment of rights by any Holder or the Trustee, the rights and privileges conferred
upon that party in this Indenture and in the Securities shall automatically extend to and be vested
in such transferee or assignee, all subject to the terms and conditions of this Indenture.
SECTION 10.04.
No Waiver
. Neither a failure nor a delay on the part of either the
Trustee or the Holders in exercising any right, power or privilege under this Article 10 shall
operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or
further exercise of any right, power or privilege. The rights, remedies and benefits of the
Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article 10 at law, in equity, by
statute or otherwise.
SECTION 10.05.
Modification
. No modification, amendment or waiver of any provision
of this Article 10, nor the consent to any departure by any Subsidiary Guarantor therefrom, shall
in any event be effective unless the same shall be in writing and signed by the Trustee, and then
such waiver or consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on any Subsidiary Guarantor in any case shall entitle such
Subsidiary Guarantor to any other or further notice or demand in the same, similar or other
circumstances.
SECTION 10.06.
Release of Subsidiary Guarantor
. Unless otherwise provided for a
particular Series of Securities by a resolution of the Board of Directors, a supplemental indenture
or an Officers’ Certificate, a Subsidiary Guarantor shall be released from its obligations under
this Article 10 (other than any obligation that may have arisen under Section 10.07) with respect
to a Series of Securities:
(1) upon the sale (including any sale pursuant to any exercise of remedies by a holder
of Indebtedness of the Company or of such Subsidiary Guarantor) or other disposition
(including by way of consolidation or merger) of a Subsidiary Guarantor;
(2) upon the sale or disposition of all or substantially all the assets of such
Subsidiary Guarantor; or
(3) upon the exercise by the Company of its legal defeasance option or its covenant
defeasance option with respect to such Series of Securities or if the Obligations of the
Company under the Indenture and such Series of Securities are discharged pursuant to
Article 8;
41
provided
,
however
, that in the case of clauses (1) and (2) above, (i) such sale or
other disposition is made to a Person other than the Company or a Subsidiary of the Company and
(ii) such sale or disposition is otherwise permitted by this Indenture.
At the request of the Company, the Trustee shall execute and deliver an appropriate instrument
evidencing such release.
SECTION 10.07.
Contribution
. Each Subsidiary Guarantor that makes a payment under
its Subsidiary Guarantee with respect to any Series of Securities shall be entitled upon payment in
full of all Guaranteed Obligations under this Indenture to a contribution from each other
Subsidiary Guarantor of such Series of Securities in an amount equal to such other Subsidiary
Guarantor’s pro rata portion of such payment based on the respective net assets of all the
Subsidiary Guarantors of such Series of Securities at the time of such payment determined in
accordance with GAAP.
ARTICLE 11
Miscellaneous
SECTION 11.01.
Trust Indenture Act Controls
. If any provision of this Indenture
limits, qualifies or conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
SECTION 11.02.
Notices
. Any notice or communication shall be in writing and
delivered in person or mailed by first-class mail addressed as follows:
if to the Company or any Subsidiary Guarantor:
The Goodyear Tire & Rubber Company
1144 East Market Street
Akron, Ohio 44316
fax: 330-796-2222
Attention of Treasurer
if to the Trustee:
Wells Fargo Bank, N.A.
230 West Monroe Street, Suite 2900
Chicago, Illinois 60606
fax: 312-726-2158
Attention of Wells Fargo Corporate Trust Services
The Company, any Subsidiary Guarantor or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
42
Any notice or communication mailed to a Holder shall be mailed to the Holder at the Holder’s
address as it appears on the registration books of the Registrar and shall be sufficiently given if
so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.
SECTION 11.03.
Communication by Holders with Other Holders
. Holders may communicate
pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or
the Securities of any Series. The Company, any Subsidiary Guarantor, the Trustee, the Registrar
and anyone else shall have the protection of TIA § 312(c).
SECTION 11.04.
Certificate and Opinion as to Conditions Precedent
. Upon any request
or application by the Company to the Trustee to take or refrain from taking any action under this
Indenture, the Company shall furnish to the Trustee, to the extent reasonably requested by the
Trustee:
(1) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of such counsel, all such conditions precedent have been
complied with (
provided
,
however
, that such counsel may rely as to matters
of fact on Officers’ Certificates).
SECTION 11.05.
Statements Required in Certificate or Opinion
. Each certificate
(other than a certificate delivered pursuant to Section 4.03) or opinion with respect to compliance
with a covenant or condition provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or opinion has read such
covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
43
(4) a statement as to whether or not, in the opinion of such individual, such covenant
or condition has been complied with.
SECTION 11.06.
When Securities Disregarded
. In determining whether the Holders of
the required principal amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company shall be disregarded and deemed not
to be outstanding, except that, for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities which the Trustee
knows are so owned shall be so disregarded. Also, subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
SECTION 11.07.
Rules by Trustee, Paying Agent and Registrar
. The Trustee may make
reasonable rules for action by or a meeting of Holders. The Registrar and the Paying Agent may
make reasonable rules for their functions.
SECTION 11.08.
Legal Holidays
. If a payment date is a Legal Holiday, payment shall
be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for
the intervening period. If a regular record date is a Legal Holiday, the record date shall not be
affected.
SECTION 11.09.
Governing Law
. This Indenture and the Securities shall be governed
by, and construed in accordance with, the laws of the State of New York without giving effect to
applicable principles of conflicts of law to the extent that the application of the law of another
jurisdiction would be required thereby.
SECTION 11.10.
No Recourse Against Others
. A director, officer, employee or
shareholder, as such, of the Company or any Subsidiary Guarantor shall not have any liability for
any obligations of the Company under the Securities of any Series or this Indenture or of such
Subsidiary Guarantor under its Subsidiary Guarantee or this Indenture, or for any claim based on,
in respect of or by reason of such obligations or their creation. By accepting a Security, each
Holder shall waive and release all such liability. The waiver and release shall be part of the
consideration for the issue of the Securities.
SECTION 11.11.
Successors
. All agreements of the Company in this Indenture and the
Securities shall bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
SECTION 11.12.
Multiple Originals
. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
SECTION 11.13.
Table of Contents; Headings
. The table of contents, cross-reference
sheet and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part
hereof and shall not modify or restrict any of the terms or provisions hereof.
44
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the
date first written above.
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THE GOODYEAR TIRE & RUBBER
COMPANY
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by
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/s/ Scott A. Honnold
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Name: Scott A. Honnold
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Title: Vice President and Treasurer
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WELLS FARGO BANK, N.A., as Trustee,
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by
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/s/ Gregory S. Clarke
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Name: Gregory S. Clarke
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Title: Vice President
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2
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SUBSIDIARY GUARANTORS
CELERON CORPORATION
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by
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/s/ Damon J. Audia
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Name: Damon J. Audia
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Title: Vice President and Treasurer
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DAPPER TIRE CO., INC.
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by
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/s/ Damon J. Audia
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Name: Damon J. Audia
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Title: Vice President and Treasurer
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DIVESTED COMPANIES HOLDING
COMPANY
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By
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/s/ Todd M. Tyler
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Name: Todd M. Tyler
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Title: Vice President, Treasurer and Secretary
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By
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/s/ Randall M. Loyd
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Name: Randall M. Loyd
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Title: Vice President and Assistant Secretary
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3
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DIVESTED LITCHFIELD PARK
PROPERTIES, INC.
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By
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/s/ Todd M. Tyler
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Name: Todd M. Tyler
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Title: Vice President, Treasurer and Secretary
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By
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/s/ Randall M. Loyd
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Name: Randall M. Loyd
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Title: Vice President and Assistant Secretary
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GOODYEAR CANADA INC.
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By:
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/s/ D. S. Hamilton
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Name: Douglas S. Hamilton
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Title: President
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By:
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/s/ Robin M. Huntes
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Name: Robin M. Huntes
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Title: Secretary
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GOODYEAR EXPORT INC.
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By:
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/s/ Damon J. Audia
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Name: Damon J. Audia
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Title: Vice President and Treasurer
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4
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GOODYEAR FARMS, INC.
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By:
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/s/ Damon J. Audia
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Name: Damon J. Audia
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Title: Vice President and Treasurer
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GOODYEAR INTERNATIONAL
CORPORATION
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By:
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/s/ Damon J. Audia
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Name: Damon J. Audia
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Title: Vice President and Treasurer
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GOODYEAR WESTERN HEMISPHERE
CORPORATION
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By:
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/s/ Damon J. Audia
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Name: Damon J. Audia
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Title: Vice President and Treasurer
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5
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WHEEL ASSEMBLIES INC.
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By:
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/s/ Damon J. Audia
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Name: Damon J. Audia
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Title: Vice President and Treasurer
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WINGFOOT COMMERCIAL TIRE
SYSTEMS, LLC
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By:
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/s/ Scott A. Honnold
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Name: Scott A. Honnold
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Title: Vice President and Treasurer
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WINGFOOT VENTURES EIGHT INC.
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By:
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/s/ Todd M. Tyler
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Name: Todd M. Tyler
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Title: Vice President, Treasurer and Secretary
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6
Exhibit 4.2
EXECUTION VERSION
The Goodyear Tire & Rubber Company
8.250% Senior Notes due 2020
FIRST
SUPPLEMENTAL
INDENTURE
Dated as of August 13, 2010
TO THE INDENTURE
Wells Fargo Bank, N.A.,
as Trustee
CROSS-REFERENCE TABLE
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Supplemental
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TIA
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Indenture
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Section
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Section
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310(a)(1)
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7.10
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(a)(2)
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7.10
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(a)(3)
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N.A.
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(a)(4)
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N.A.
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(b)
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7.08; 7.10
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(c)
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N.A.
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311(a)
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7.11
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(b)
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7.11
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(c)
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N.A.
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312(a)
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2.05
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(b)
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11.03
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(c)
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11.03
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313(a)
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7.06
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(b)(1)
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7.06
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(b)(2)
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7.06
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(c)
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11.02
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(d)
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7.06
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314(a)
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4.02; 4.13; 11.02
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(b)
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N.A.
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(c)(1)
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11.04
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(c)(2)
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11.04
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(c)(3)
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N.A.
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(d)
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N.A.
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(e)
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11.05
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(f)
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4.14
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315(a)
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7.01
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(b)
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7.05; 11.02
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(c)
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7.01
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(d)
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7.01
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(e)
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6.11
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316(a)(last sentence)
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11.06
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(a)(1)(A)
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6.05
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(a)(1)(B)
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6.04
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(a)(2)
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N.A.
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(b)
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6.07
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317(a)(1)
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6.08
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(a)(2)
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6.09
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(b)
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2.04
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318(a)
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11.01
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N.A. means Not Applicable.
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Note:
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This Cross-Reference Table shall not, for any purpose, be deemed to be part of this
Supplemental Indenture.
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TABLE OF CONTENTS
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Page
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ARTICLE 1
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Application of Supplemental Indenture and Creation of Notes;
Definitions and Incorporation by Reference
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SECTION 1.01. Application of this Supplemental Indenture
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1
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SECTION 1.02. Effect of Supplemental Indenture
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2
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SECTION 1.03. Definitions
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3
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SECTION 1.04. Other Definitions
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34
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SECTION 1.05. Incorporation by Reference of Trust Indenture Act
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35
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SECTION 1.06. Rules of Construction
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36
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ARTICLE 2
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The Notes
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SECTION 2.01. Form and Dating
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36
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SECTION 2.02. Execution and Authentication
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37
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SECTION 2.03. Registrar and Paying Agent
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37
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SECTION 2.04. Paying Agent To Hold Money in Trust
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38
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SECTION 2.05. Lists of Holders of Notes
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38
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SECTION 2.06. Transfer and Exchange
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39
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SECTION 2.07. Replacement Notes
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40
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SECTION 2.08. Outstanding Notes
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40
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SECTION 2.09. Temporary Notes
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40
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SECTION 2.10. Cancellation
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40
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SECTION 2.11. Defaulted Interest
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41
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SECTION 2.12. CUSIP Numbers and ISINs
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41
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SECTION 2.13. Issuance of Additional Notes
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41
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ARTICLE 3
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Redemption
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SECTION 3.01. Notices to Trustee
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42
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SECTION 3.02. Selection of Notes to Be Redeemed
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42
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SECTION 3.03. Notice of Redemption
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42
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SECTION 3.04. Effect of Notice of Redemption
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43
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SECTION 3.05. Deposit of Redemption Price
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43
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SECTION 3.06. Notes Redeemed in Part
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43
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i
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Page
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ARTICLE 4
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Covenants
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SECTION 4.01. Payment of Notes
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43
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SECTION 4.02. SEC Reports
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44
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SECTION 4.03. Limitation on Indebtedness
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44
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SECTION 4.04. Limitation on Restricted Payments
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48
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SECTION 4.05. Limitation on Restrictions on Distributions from Restricted Subsidiaries
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51
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SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock
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53
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SECTION 4.07. Limitation on Transactions with Affiliates
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57
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SECTION 4.08. Change of Control
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58
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SECTION 4.09. Limitation on Liens
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59
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SECTION 4.10. Limitation on Sale/Leaseback Transactions
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60
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SECTION 4.11. Future Subsidiary Guarantors
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60
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SECTION 4.12. Suspension of Certain Covenants
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60
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SECTION 4.13. Compliance Certificate
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62
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SECTION 4.14. Further Instruments and Acts
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62
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ARTICLE 5
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Successor Company
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SECTION 5.01. When Company May Merge or Transfer Assets
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62
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ARTICLE 6
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Defaults and Remedies
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SECTION 6.01. Events of Default
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64
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SECTION 6.02. Acceleration
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66
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SECTION 6.03. Other Remedies
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66
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SECTION 6.04. Waiver of Past Defaults
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66
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SECTION 6.05. Control by Majority
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67
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SECTION 6.06. Limitation on Suits
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67
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SECTION 6.07. Rights of Holders to Receive Payment
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67
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SECTION 6.08. Collection Suit by Trustee
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67
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SECTION 6.09. Trustee May File Proofs of Claim
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68
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SECTION 6.10. Priorities
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68
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SECTION 6.11. Undertaking for Costs
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68
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SECTION 6.12. Waiver of Stay or Extension Laws
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68
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ARTICLE 7
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Trustee
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SECTION 7.01. Duties of Trustee
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69
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ii
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Page
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SECTION 7.02. Rights of Trustee
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70
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SECTION 7.03. Individual Rights of Trustee
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71
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SECTION 7.04. Trustee’s Disclaimer
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71
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SECTION 7.05. Notice of Defaults
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72
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SECTION 7.06. Reports by Trustee to Holders
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72
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SECTION 7.07. Compensation and Indemnity
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72
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SECTION 7.08. Replacement of Trustee
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73
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SECTION 7.09. Successor Trustee by Merger
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74
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SECTION 7.10. Eligibility; Disqualification
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74
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SECTION 7.11. Preferential Collection of Claims Against Company
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74
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ARTICLE 8
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Discharge of Supplemental Indenture; Defeasance
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SECTION 8.01. Discharge of Liability on Notes; Defeasance
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74
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SECTION 8.02. Conditions to Defeasance
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75
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SECTION 8.03. Application of Trust Money
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76
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SECTION 8.04. Repayment to Company
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76
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SECTION 8.05. Indemnity for Government Obligations
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77
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SECTION 8.06. Reinstatement
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77
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ARTICLE 9
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Amendments
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SECTION 9.01. Without Consent of Holders
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77
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SECTION 9.02. With Consent of Holders
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78
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SECTION 9.03. Compliance with Trust Indenture Act
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79
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SECTION 9.04. Revocation and Effect of Consents and Waivers
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79
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SECTION 9.05. Notation on or Exchange of Notes
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80
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SECTION 9.06. Trustee To Sign Amendments
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80
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SECTION 9.07. Payment for Consent
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80
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ARTICLE 10
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Subsidiary Guarantees
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SECTION 10.01. Guarantees
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80
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SECTION 10.02. Limitation on Liability
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82
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SECTION 10.03. Successors and Assigns
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82
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SECTION 10.04. No Waiver
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82
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SECTION 10.05. Modification
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82
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SECTION 10.06. Release of Subsidiary Guarantor
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82
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SECTION 10.07. Contribution
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83
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iii
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Page
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ARTICLE 11
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Miscellaneous
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SECTION 11.01. Trust Indenture Act Controls
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83
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SECTION 11.02. Notices
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84
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SECTION 11.03. Communication by Holders with Other Holders
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84
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SECTION 11.04. Certificate and Opinion as to Conditions Precedent
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84
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SECTION 11.05. Statements Required in Certificate or Opinion
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85
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SECTION 11.06. When Notes Disregarded
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85
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SECTION 11.07. Rules by Trustee, Paying Agent and Registrar
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85
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SECTION 11.08. Legal Holidays
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85
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SECTION 11.09. Governing Law
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86
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SECTION 11.10. No Recourse Against Others
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86
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SECTION 11.11. Successors
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86
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SECTION 11.12. Multiple Originals
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86
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SECTION 11.13. Table of Contents; Headings
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86
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Appendix A Provisions Relating to Notes
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Exhibit 1 – Form of Note
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Exhibit 2 – Form of Supplemental Indenture
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iv
FIRST SUPPLEMENTAL INDENTURE dated as of August 13, 2010 to the
Indenture dated as of August 13, 2010, among The Goodyear Tire & Rubber
Company, an Ohio corporation, the Subsidiary Guarantors listed on the
signature pages hereto and Wells Fargo Bank, N.A., a national banking
association, as Trustee.
WHEREAS, the Company and the Subsidiary Guarantors have executed and delivered to the Trustee
the Base Indenture providing for the issuance from time to time of one or more series of the
Securities;
WHEREAS, Section 9.01 of the Base Indenture provides for the Company, the Subsidiary
Guarantors and the Trustee to enter into a supplemental indenture to the Base Indenture without
notice to or the consent of any Holders to establish the forms or terms of Securities of any series
issued thereunder as permitted by Section 2.01 and Section 2.02 of the Base Indenture;
WHEREAS, pursuant to Section 2.02 of the Base Indenture, the Company wishes to provide for the
issuance of the 8.250% Senior Notes due 2020, the forms and terms of such Notes and the terms,
provisions and conditions thereof to be set forth as provided in this Supplemental Indenture; and
WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental
Indenture, and all requirements necessary to make this Supplemental Indenture a valid, binding and
enforceable instrument in accordance with its terms, and to make the Notes and the Subsidiary
Guarantees, when the Notes are executed by the Company and authenticated and delivered by the
Trustee, the valid, binding and enforceable obligations of the Company and the Subsidiary
Guarantors, have been done and performed, and the execution and delivery of this Supplemental
Indenture has been duly authorized in all respects;
NOW, THEREFORE, in consideration of the covenants and agreements set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
Application of Supplemental Indenture and Creation of Notes;
Definitions and Incorporation by Reference
SECTION 1.01.
Application of this Supplemental Indenture
. Notwithstanding any
other provision of this Supplemental Indenture, the provisions of this Supplemental Indenture,
including as provided in Section 1.02, and any amendments or modifications to the terms of the Base
Indenture made herein, are expressly and solely for the benefit of the Holders (and not for the
benefit of any other series of Securities). The Notes constitute a series of Securities as
provided in Section 2.01 of the Base Indenture. Unless otherwise expressly specified, references
in this Supplemental
Indenture to specific Article numbers or Section numbers refer to Articles and Sections
contained in this Supplemental Indenture, and not the Base Indenture or any other document. All
the Notes issued under this Supplemental Indenture shall be treated as a single class for all
purposes of the Indenture, including waivers, amendments, redemptions and offers to purchase.
SECTION 1.02.
Effect of Supplemental Indenture
. With respect to the Notes only, the
Base Indenture shall be supplemented pursuant to Section 9.01 thereof to establish the terms of the
Notes as set forth in this Supplemental Indenture, including as follows:
(a)
Definitions
. The definitions and other provisions of general application set
forth in Article 1 of the Base Indenture are deleted and replaced in their entirety by the
provisions of Sections 1.03, 1.04, 1.05 and 1.06 of this Supplemental Indenture;
(b)
The Notes
. The provisions of Article 2 of the Base Indenture are deleted and
replaced in their entirety by the provisions of Article 2 of this Supplemental Indenture;
(c)
Redemption
. The provisions of Article 3 of the Base Indenture are deleted and
replaced in their entirety by the provisions of Article 3 of this Supplemental Indenture;
(d)
Covenants
. The provisions of Article 4 of the Base Indenture are deleted and
replaced in their entirety by the provisions of Article 4 of this Supplemental Indenture;
(e)
Successors
. The provisions of Article 5 of the Base Indenture are deleted and
replaced in their entirety by the provisions of Article 5 of this Supplemental Indenture;
(f)
Defaults and Remedies
. The provisions of Article 6 of the Base Indenture are
deleted and replaced in their entirety by the provisions of Article 6 of this Supplemental
Indenture;
(g)
Trustee
. The provisions of Article 7 of the Base Indenture are deleted and
replaced in their entirety by the provisions of Article 7 of this Supplemental Indenture;
(h)
Discharge of Indenture; Defeasance
. The provisions of Article 8 of the Base
Indenture are deleted and replaced in their entirety by the provisions of Article 8 of this
Supplemental Indenture;
(i)
Amendments
. The provisions of Article 9 of the Base Indenture are deleted and
replaced in their entirety by the provisions of Article 9 of this Supplemental Indenture;
2
(j)
Subsidiary Guarantors
. The provisions of Article 10 of the Base Indenture are
deleted and replaced in their entirety by the provisions of Article 10 of this Supplemental
Indenture; and
(k)
Miscellaneous
. The provisions of Article 11 of the Base Indenture are deleted and
replaced in their entirety by the provisions of Article 11 of this Supplemental Indenture.
To the extent that the provisions of this Supplemental Indenture (including those referred to
in clauses (a) through (k) above) conflict with any provision of the Base Indenture, the provisions
of this Supplemental Indenture shall govern and be controlling solely with respect to the Notes.
Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders of the Notes:
SECTION 1.03.
Definitions
. For all purposes of this Supplemental Indenture, the
following terms shall have the following meanings:
“Additional Assets” means:
|
|
(1)
|
|
any property or assets (other than Indebtedness and Capital Stock) to be used
by the Company or a Restricted Subsidiary;
|
|
|
|
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(2)
|
|
the Capital Stock of a Person that becomes a Restricted Subsidiary as a
result of the acquisition of such Capital Stock by the Company or another Restricted
Subsidiary; or
|
|
|
|
|
(3)
|
|
Capital Stock constituting a minority interest in any Person that at such
time is a Restricted Subsidiary;
|
provided
,
however
, that any such Restricted Subsidiary described in clauses (2) or
(3) above is primarily engaged in a Permitted Business.
“Additional Notes” means Notes issued under this Supplemental Indenture after the Closing Date
and in compliance with Sections 2.13, 4.03 and 4.09, it being understood that any Notes issued in
exchange for or replacement of any Note issued on the Closing Date shall not be an Additional Note.
“Affiliate” of any specified Person means any other Person, directly or indirectly,
controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition, “control” when used with respect to any Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing. For purposes of Section 4.06 and
Section 4.07 only, “Affiliate” shall also mean any beneficial owner of shares representing 10% or
more of the total voting power of the Voting Stock (on a fully diluted basis) of the Company or of
3
rights or warrants to purchase such Voting Stock (whether or not currently exercisable) and
any Person who would be an Affiliate of any such beneficial owner pursuant to the first sentence
hereof.
“Asset Disposition” means any sale, lease, transfer or other disposition (or series of sales,
leases, transfers or dispositions that are part of a common plan) by the Company or any Restricted
Subsidiary, including any disposition by means of a merger, consolidation, or similar transaction
(each referred to for the purposes of this definition as a “disposition”), of:
|
|
(1)
|
|
any shares of Capital Stock of a Restricted Subsidiary (other than directors’
qualifying shares or shares required by applicable law to be held by a Person other
than the Company or a Restricted Subsidiary),
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|
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(2)
|
|
all or substantially all the assets of any division or line of business of
the Company or any Restricted Subsidiary, or
|
|
|
|
|
(3)
|
|
any other assets of the Company or any Restricted Subsidiary outside of the
ordinary course of business of the Company or such Restricted Subsidiary,
|
other than, in the case of clauses (1), (2) and (3) above,
|
|
(A)
|
|
a disposition by a Restricted Subsidiary to the Company or by
the Company or a Restricted Subsidiary to a Restricted Subsidiary;
|
|
|
|
|
(B)
|
|
for purposes of Section 4.06 only, a disposition subject to
Section 4.04;
|
|
|
|
|
(C)
|
|
a disposition of assets with a Fair Market Value of less than
$10,000,000;
|
|
|
|
|
(D)
|
|
a sale of accounts receivable and related assets of the type
specified in the definition of “Qualified Receivables Transaction” to a
Receivables Entity;
|
|
|
|
|
(E)
|
|
a transfer of accounts receivable and related assets of the
type specified in the definition of “Qualified Receivables Transaction” (or a
fractional undivided interest therein) by a Receivables Entity in a Qualified
Receivables Transaction;
|
|
|
|
|
(F)
|
|
a disposition of all or substantially all the Company’s
assets (as determined on a Consolidated basis) in accordance with
Section 5.01; and
|
|
|
|
|
(G)
|
|
any Specified Asset Sale.
|
4
“Attributable Debt” means, with respect to any Sale/Leaseback Transaction that does not result
in a Capitalized Lease Obligation, the present value (computed in accordance with GAAP) of the
total obligations of the lessee for rental payments during the remaining term of the lease included
in such Sale/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.
“Average Life” means, as of the date of determination, with respect to any Indebtedness or
Preferred Stock, the quotient obtained by dividing:
|
|
(1)
|
|
the sum of the products of the number of years from the date of determination
to the dates of each successive scheduled principal payment of such Indebtedness or
scheduled redemption or similar payment with respect to such Preferred Stock
multiplied by the amount of such payment by
|
|
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|
|
(2)
|
|
the sum of all such payments.
|
“Bank Indebtedness” means all obligations under the U.S. Bank Indebtedness and European Bank
Indebtedness.
“Base Indenture” means the Indenture, dated as of August 13, 2010, as amended or supplemented
from time to time, among the Company, the Subsidiary Guarantors and the Trustee.
“Board of Directors” means the board of directors of the Company or any committee thereof duly
authorized to act on behalf of the board of directors of the Company.
“Business Day” means each day which is not a Legal Holiday.
“Capital Stock” of any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
equity of such Person, including any Preferred Stock, but excluding any debt securities convertible
into such equity.
“Capitalized Lease Obligations” means an obligation that is required to be classified and
accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP, and
the amount of Indebtedness represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP.
5
“Change of Control” means the occurrence of any of the following events:
|
|
(1)
|
|
any “person” (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act, except that for purposes of this clause (1) such person shall be
deemed to have “beneficial ownership” of all shares that any such person has the right
to acquire, whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than 50% of the total voting power of the
Voting Stock of the Company;
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|
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|
(2)
|
|
during any period of two consecutive years, individuals who at the beginning
of such period constituted the board of directors of the Company (together with any
new directors whose election by such board of directors of the Company or whose
nomination for election by the shareholders of the Company was approved by a vote of a
majority of the directors of the Company then still in office who were either
directors at the beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a majority of the board
of directors of the Company then in office;
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(3)
|
|
the adoption of a plan relating to the liquidation or dissolution of the
Company; or
|
|
|
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(4)
|
|
the merger or consolidation of the Company with or into another Person or the
merger of another Person with or into the Company, or the sale of all or substantially
all the assets of the Company (as determined on a Consolidated basis) to another
Person, and, in the case of any such merger or consolidation, the securities of the
Company that are outstanding immediately prior to such transaction and which represent
100% of the aggregate voting power of the Voting Stock of the Company are changed into
or exchanged for cash, securities or property, unless pursuant to such transaction
such securities are changed into or exchanged for, in addition to any other
consideration, securities of the surviving Person or transferee that represent
immediately after such transaction, at least a majority of the aggregate voting power
of the Voting Stock of the surviving Person or transferee.
|
“Closing Date” means August 13, 2010.
“Code” means the Internal Revenue Code of 1986, as amended.
“Company” means The Goodyear Tire & Rubber Company, an Ohio corporation, until a successor
replaces it and, thereafter, means the successor and, for purposes of any provision contained
herein and required by the TIA, each other obligor on the indenture securities.
6
“Consolidated Coverage Ratio” as of any date of determination means the ratio of:
|
|
(1)
|
|
the aggregate amount of EBITDA for the period of the most recent four
consecutive fiscal quarters ending prior to the date of such determination for which
financial statements have been filed with the SEC to
|
|
|
|
|
(2)
|
|
Consolidated Interest Expense for such four fiscal quarters;
|
provided
,
however
, that:
|
|
(A)
|
|
if the Company or any Restricted Subsidiary
has Incurred any Indebtedness since the beginning of such period that
remains outstanding on such date of determination or if the
transaction giving rise to the need to calculate the Consolidated
Coverage Ratio is an Incurrence of Indebtedness, EBITDA and
Consolidated Interest Expense for such period shall be calculated
after giving effect on a pro forma basis to such Indebtedness as if
such Indebtedness had been Incurred on the first day of such period
and the discharge of any other Indebtedness repaid, repurchased,
defeased or otherwise discharged with the proceeds of such new
Indebtedness as if such discharge had occurred on the first day of
such period;
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|
|
|
|
(B)
|
|
if the Company or any Restricted Subsidiary
has repaid, repurchased, defeased or otherwise discharged any
Indebtedness since the beginning of such period or if any
Indebtedness is to be repaid, repurchased, defeased or otherwise
discharged (in each case other than Indebtedness Incurred under any
revolving credit facility unless such Indebtedness has been
permanently repaid and has not been replaced) on the date of the
transaction giving rise to the need to calculate the Consolidated
Coverage Ratio, EBITDA and Consolidated Interest Expense for such
period shall be calculated on a pro forma basis as if such discharge
had occurred on the first day of such period and as if the Company or
such Restricted Subsidiary had not earned the interest income
actually earned during such period in respect of cash or Temporary
Cash Investments used to repay, repurchase, defease or otherwise
discharge such Indebtedness;
|
|
|
|
|
(C)
|
|
if since the beginning of such period the
Company or any Restricted Subsidiary shall have made any Asset
Disposition, the EBITDA for such period shall be reduced by an amount
equal to the EBITDA (if positive) directly
|
7
|
|
|
|
attributable to the assets that are the subject of such Asset
Disposition for such period or increased by an amount equal to the
EBITDA (if negative) directly attributable thereto for such period
and Consolidated Interest Expense for such period shall be reduced
by an amount equal to the Consolidated Interest Expense directly
attributable to any Indebtedness of the Company or any Restricted
Subsidiary repaid, repurchased, defeased or otherwise discharged
with respect to the Company and its Restricted Subsidiaries in
connection with such Asset Disposition for such period (or, if the
Capital Stock of any Restricted Subsidiary is sold, the
Consolidated Interest Expense for such period directly
attributable to the Indebtedness of such Restricted Subsidiary to
the extent the Company and its continuing Restricted Subsidiaries
are no longer liable for such Indebtedness after such sale);
|
|
|
|
|
(D)
|
|
if since the beginning of such period the
Company or any Restricted Subsidiary (by merger or otherwise) shall
have made an Investment in any Restricted Subsidiary (or any Person
that becomes a Restricted Subsidiary) or an acquisition of assets,
including any acquisition of assets occurring in connection with a
transaction causing a calculation to be made hereunder, which
constitutes all or substantially all of an operating unit, division
or line of a business, EBITDA and Consolidated Interest Expense for
such period shall be calculated after giving pro forma effect thereto
(including the Incurrence of any Indebtedness) as if such Investment
or acquisition occurred on the first day of such period; and
|
|
|
|
|
(E)
|
|
if since the beginning of such period any
Person that subsequently became a Restricted Subsidiary or was merged
with or into the Company or any Restricted Subsidiary since the
beginning of such period shall have made any Asset Disposition or any
Investment or acquisition of assets that would have required an
adjustment pursuant to clause (C) or (D) above if made by the Company
or a Restricted Subsidiary during such period, EBITDA and
Consolidated Interest Expense for such period shall be calculated
after giving pro forma effect thereto as if such Asset Disposition,
Investment or acquisition of assets occurred on the first day of such
period.
|
For purposes of this definition, whenever pro forma effect is to be given to an acquisition of
assets, Asset Disposition or other Investment, the amount of income, EBITDA or
8
earnings relating thereto and the amount of Consolidated Interest Expense associated with any
Indebtedness Incurred in connection therewith, the pro forma calculations shall be determined in
good faith by a responsible Financial Officer of the Company and shall comply with the requirements
of Rule 11-02 of Regulation S-X, as it may be amended or replaced from time to time, promulgated by
the SEC.
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 (taking into account any Interest
Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement has a remaining term
as at the date of determination in excess of 12 months). If any Indebtedness is Incurred or repaid
under a revolving credit facility and is being given pro forma effect, the interest on such
Indebtedness shall be calculated based on the average daily balance of such Indebtedness for the
four fiscal quarters subject to the pro forma calculation.
“Consolidated Interest Expense” means, for any period, the total interest expense of the
Company and its Consolidated Restricted Subsidiaries, plus, to the extent Incurred by the Company
and its Consolidated Restricted Subsidiaries in such period but not included in such interest
expense, without duplication:
|
|
(1)
|
|
interest expense attributable to Capitalized Lease Obligations and the
interest expense attributable to leases constituting part of a Sale/Leaseback
Transaction that does not result in a Capitalized Lease Obligation;
|
|
|
|
|
(2)
|
|
amortization of debt discount and debt issuance costs;
|
|
|
|
|
(3)
|
|
capitalized interest;
|
|
|
|
|
(4)
|
|
non-cash interest expense;
|
|
|
|
|
(5)
|
|
commissions, discounts and other fees and charges attributable to letters of
credit and bankers’ acceptance financing;
|
|
|
|
|
(6)
|
|
interest accruing on any Indebtedness of any other Person to the extent such
Indebtedness is Guaranteed by (or secured by the assets of) the Company or any
Restricted Subsidiary and such Indebtedness is in default under its terms or any
payment is actually made in respect of such Guarantee;
|
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|
|
|
(7)
|
|
net payments made pursuant to Hedging Obligations (including amortization of
fees);
|
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|
|
|
(8)
|
|
dividends paid in cash or Disqualified Stock in respect of (A) all Preferred
Stock of Restricted Subsidiaries and (B) all Disqualified Stock of the Company, in
each case held by Persons other than the Company or a Restricted Subsidiary;
|
9
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(9)
|
|
interest Incurred in connection with investments in discontinued operations;
and
|
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(10)
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the cash contributions to any employee stock ownership plan or similar trust
to the extent such contributions are used by such plan or trust to pay interest or
fees to any Person (other than the Company) in connection with Indebtedness Incurred
by such plan or trust;
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and less, to the extent included in such total interest expense, (A) any breakage costs of Hedging
Obligations terminated in connection with the offering of the Notes on the Closing Date and the
application of the net proceeds therefrom and (B) the amortization during such period of
capitalized financing costs;
provided
,
however
, that for any financing consummated
after the Closing Date, the aggregate amount of amortization relating to any such capitalized
financing costs deducted in calculating Consolidated Interest Expense shall not exceed 5% of the
aggregate amount of the financing giving rise to such capitalized financing costs.
“Consolidated Net Income” means, for any period, the net income of the Company and its
Consolidated Subsidiaries for such period;
provided
,
however
, that there shall not
be included in such Consolidated Net Income:
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(1)
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any net income of any Person (other than the Company) if such Person is not a
Restricted Subsidiary, except that:
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(A)
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subject to the limitations contained in clause (4) below, the
Company’s equity in the net income of any such Person for such period shall be
included in such Consolidated Net Income up to the aggregate amount of cash
actually distributed by such Person during such period to the Company or a
Restricted Subsidiary as a dividend or other distribution (subject, in the
case of a dividend or other distribution made to a Restricted Subsidiary, to
the limitations contained in clause (3) below) and
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(B)
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the Company’s equity in a net loss of any such Person for
such period shall be included in determining such Consolidated Net Income to
the extent such loss has been funded with cash from the Company or a
Restricted Subsidiary;
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(2)
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any net income (or loss) of any Person acquired by the Company or a
Subsidiary of the Company in a pooling of interests transaction for any period prior
to the date of such acquisition;
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(3)
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any net income of any Restricted Subsidiary if such Restricted Subsidiary is
subject to restrictions on the payment of dividends or the making of distributions by
such Restricted Subsidiary, directly or indirectly, to the Company (but, in the case
of any Foreign Subsidiary, only to the extent cash equal to such net income (or a
portion thereof) for such period is not readily procurable by the Company from such
Foreign Subsidiary (with
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10
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the amount of cash readily procurable from such Foreign Subsidiary being determined
in good faith by a Financial Officer of the Company) pursuant to intercompany
loans, repurchases of Capital Stock or otherwise), except that:
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(A)
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subject to the limitations contained in clause (4) below, the
Company’s equity in the net income of any such Restricted Subsidiary for such
period shall be included in such Consolidated Net Income up to the aggregate
amount of cash actually distributed by such Restricted Subsidiary during such
period to the Company or another Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution made to
another Restricted Subsidiary, to the limitation contained in this clause) and
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(B)
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the net loss of any such Restricted Subsidiary for such
period shall not be excluded in determining such Consolidated Net Income;
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(4)
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any gain (or loss) realized upon the sale or other disposition of any asset
of the Company or its Consolidated Subsidiaries (including pursuant to any
Sale/Leaseback Transaction) that is not sold or otherwise disposed of in the ordinary
course of business and any gain (or loss) realized upon the sale or other disposition
of any Capital Stock of any Person;
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(5)
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any extraordinary gain or loss; and
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(6)
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the cumulative effect of a change in accounting principles.
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Notwithstanding the foregoing, for the purpose of Section 4.04 only, there shall be excluded from
Consolidated Net Income any dividends, repayments of loans or advances or other transfers of assets
from Unrestricted Subsidiaries to the Company or a Restricted Subsidiary to the extent such
dividends, repayments or transfers increase the amount of Restricted Payments permitted under
Section 4.04(a)(3)(iv).
“Consolidation” means, unless the context otherwise requires, the consolidation of (1) in the
case of the Company, the accounts of each of the Restricted Subsidiaries with those of the Company
and (2) in the case of a Restricted Subsidiary, the accounts of each Subsidiary of such Restricted
Subsidiary that is a Restricted Subsidiary with those of such Restricted Subsidiary, in each case
in accordance with GAAP consistently applied;
provided
,
however
, that
“Consolidation” will not include consolidation of the accounts of any Unrestricted Subsidiary, but
the interest of the Company or any Restricted Subsidiary in an Unrestricted Subsidiary will be
accounted for as an investment. The term “Consolidated” has a correlative meaning.
“Credit Agreements” means the U.S. Credit Agreements and the European Credit Agreement.
11
“Currency Agreement” means with respect to any Person any foreign exchange contract, currency
swap agreements or other similar agreement or arrangement to which such Person is a party or of
which it is a beneficiary.
“Default” means any event which is, or after notice or passage of time or both would be, an
Event of Default.
“Designated Non-cash Consideration” means non-cash consideration received by the Company or
one of its Restricted Subsidiaries in connection with an Asset Sale that is designated by the
Company as Designated Non-cash Consideration, less the amount of cash or cash equivalents received
in connection with a subsequent sale of such Designated Non-cash Consideration, which cash and cash
equivalents shall be considered Net Available Cash received as of such date and shall be applied
pursuant to Section 4.06.
“Disqualified Stock” means, with respect to any Person, any Capital Stock which by its terms
(or by the terms of any security into which it is convertible or for which it is exchangeable or
exercisable) or upon the happening of any event:
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(1)
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matures or is mandatorily redeemable pursuant to a sinking fund obligation or
otherwise;
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(2)
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is convertible or exchangeable for Indebtedness or Disqualified Stock
(excluding Capital Stock convertible or exchangeable solely at the option of the
Company or a Restricted Subsidiary;
provided
,
however
, that any such
conversion or exchange shall be deemed an Incurrence of Indebtedness or Disqualified
Stock, as applicable); or
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(3)
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is redeemable at the option of the holder thereof, in whole or in part;
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in the case of each of clauses (1), (2) and (3), on or prior to 180 days after the Stated Maturity
of the Notes;
provided
,
however
, that any Capital Stock that would not constitute
Disqualified Stock but for provisions thereof giving holders thereof the right to require such
Person to repurchase or redeem such Capital Stock upon the occurrence of an “asset sale” or “change
of control” occurring prior to the first anniversary of the Stated Maturity of the Notes shall not
constitute Disqualified Stock if the “asset sale” or “change of control” provisions applicable to
such Capital Stock are not more favorable in any material respect to the holders of such Capital
Stock than the provisions of Section 4.06 and Section 4.08;
provided further
,
however
, that if such Capital Stock is issued to any employee or to any plan for the
benefit of employees of the Company or its Subsidiaries or by any such plan to such employees, such
Capital Stock shall not constitute Disqualified Stock solely because it may be required to be
repurchased by the Company in order to satisfy applicable statutory or regulatory obligations or as
a result of such employee’s termination, death or disability.
The amount of any Disqualified Stock that does not have a fixed redemption, repayment or repurchase
price will be calculated in accordance with the terms of such Disqualified Stock as if such
Disqualified Stock were redeemed, repaid or repurchased on any date on
12
which the amount of such Disqualified Stock is to be determined pursuant to this Supplemental
Indenture;
provided
,
however
, that if such Disqualified Stock could not be required
to be redeemed, repaid or repurchased at the time of such determination, the redemption, repayment
or repurchase price will be the book value of such Disqualified Stock as reflected in the most
recent financial statements of such Person.
“EBITDA” for any period means the Consolidated Net Income for such period, plus, without
duplication, the following to the extent deducted in calculating such Consolidated Net Income:
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(1)
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income tax expense of the Company and its Consolidated Restricted
Subsidiaries;
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(2)
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Consolidated Interest Expense;
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(3)
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depreciation expense of the Company and its Consolidated Restricted
Subsidiaries;
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(4)
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amortization expense of the Company and its Consolidated Restricted
Subsidiaries (excluding amortization expense attributable to a prepaid cash item that
was paid in a prior period); and
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(5)
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all other non-cash charges of the Company and its Consolidated Restricted
Subsidiaries (excluding any such non-cash charge to the extent it represents an
accrual of or reserve for cash expenditures in any future period) less all non-cash
items of income of the Company and its Restricted Subsidiary in each case for such
period (other than normal accruals in the ordinary course of business).
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Notwithstanding the foregoing, the provision for taxes based on the income or profits of, and the
depreciation and amortization and non-cash charges of, a Restricted Subsidiary of the Company shall
be added to Consolidated Net Income to compute EBITDA only to the extent (and in the same
proportion) that the net income of such Restricted Subsidiary was included in calculating
Consolidated Net Income and only if (A) a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Restricted Subsidiary without prior approval
(that has not been obtained), pursuant to the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its shareholders or (B) in the case of any Foreign Subsidiary, a
corresponding amount of cash is readily procurable by the Company from such Foreign Subsidiary (as
determined in good faith by a Financial Officer of the Company) pursuant to intercompany loans,
repurchases of Capital Stock or otherwise,
provided
that to the extent cash of such Foreign
Subsidiary provided the basis for including the net income of such Foreign Subsidiary in
Consolidated Net Income pursuant to clause (3) of the definition of “Consolidated Net Income”, such
cash shall not be taken into account for the purposes of determining readily procurable cash under
this clause (B).
13
“Equity Offering” means a public or private offering of Capital Stock (other than Disqualified
Stock) of the Company.
“Euro Equivalent” means with respect to any monetary amount in a currency other than euros, at
any time of determination thereof, the amount of euros obtained by converting such foreign currency
involved in such computation into euros at the spot rate for the purchase of euros with the
applicable foreign currency as published in
The Wall Street Journal
in the “Exchange Rates” column
under the heading “Currency Trading” on the date two Business Days prior to such determination.
Except as described in Section 4.03, whenever it is necessary to determine whether the Company has
complied with any covenant in this Supplemental Indenture or a Default has occurred and an amount
is expressed in a currency other than euros, such amount will be treated as the Euro Equivalent
determined as of the date such amount is initially determined in such currency.
“European Bank Indebtedness” means any and all amounts payable under or in respect of the
European Credit Agreement and any Refinancing Indebtedness with respect thereto or with respect to
such Refinancing Indebtedness, as amended from time to time, including principal, premium (if any),
and interest (including interest accruing on or after the filing of any petition in bankruptcy or
for reorganization relating to the Company whether or not a claim for post-filing interest is
allowed in such proceedings), fees, charges, expenses, reimbursement obligations and all other
amounts payable thereunder or in respect thereof.
“European Credit Agreement” means the Amended and Restated Revolving Credit Agreement, dated
as of April 20, 2007 (as amended on July 18, 2008, August 22, 2008 and December 18, 2009), among
the Company, Goodyear Dunlop Tires Europe B.V., Goodyear Dunlop Tires Germany GmbH, Goodyear GmbH &
Co. KG (now merged into Goodyear Dunlop Tires Germany GmbH), Dunlop GmbH & Co. KG (now merged into
Goodyear Dunlop Tires Germany GmbH) and Goodyear Luxembourg Tires S.A., the lenders party thereto,
J.P. Morgan Europe Limited, as Administrative Agent, JPMorgan Chase Bank, N.A., as Collateral
Agent, and the Mandated Lead Arrangers and Joint Bookrunners identified therein, as amended,
restated, supplemented, waived, replaced (whether or not upon termination, and whether with the
original lenders or otherwise), refinanced, restructured or otherwise modified from time to time
(except to the extent that any such amendment, restatement, supplement, waiver, replacement,
refinancing, restructuring or other modification thereto would be prohibited by the terms of this
Supplemental Indenture, unless otherwise agreed to by the Holders of at least a majority in
aggregate principal amount of Notes at the time outstanding).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Fair Market Value” means, with respect to any asset or property, the price which could be
negotiated in an arm’s-length, free market transaction, for cash, between a willing seller and a
willing and able buyer, neither of whom is under undue pressure or compulsion to complete the
transaction as such price is, unless specified
14
otherwise in this Supplemental Indenture, determined in good faith by a Financial Officer of
the Company or by the Board of Directors.
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“Financial Officer” means the Chief Financial Officer, the Treasurer or the Chief Accounting
Officer of the Company.
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“Foreign Subsidiary” means any Restricted Subsidiary of the Company that is not organized
under the laws of the United States of America or any State thereof or the District of Columbia,
other than Goodyear Canada.
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“GAAP” means generally accepted accounting principles in the United States of America as in
effect as of the Closing Date set forth in:
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(1)
|
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the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants,
|
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(2)
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statements and pronouncements of the Financial Accounting Standards Board,
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(3)
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such other statements by such other entities as approved by a significant
segment of the accounting profession, and
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(4)
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the rules and regulations of the SEC governing the inclusion of financial
statements (including pro forma financial statements) in periodic reports required to
be filed pursuant to Section 13 of the Exchange Act, including opinions and
pronouncements in staff accounting bulletins and similar written statements from the
accounting staff of the SEC.
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All ratios and computations based on GAAP contained in this Supplemental Indenture shall be
computed in conformity with GAAP.
“Goodyear Canada” means Goodyear Canada Inc., an Ontario corporation, and its successors and
permitted assigns.
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or
indirect, contingent or otherwise, of such Person:
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(1)
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to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness of such other Person (whether arising by virtue of partnership
arrangements, or by agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement conditions or otherwise),
or
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(2)
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entered into for purposes of assuring in any other manner the obligee of such
Indebtedness of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part);
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15
provided
,
however
, that the term “Guarantee” shall not include endorsements for
collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has
a corresponding meaning. The term “Guarantor” shall mean any Person Guaranteeing any obligation.
“Guaranteed Obligations” means the principal of and interest, if any, on the Notes when due,
whether at Stated Maturity, by acceleration or otherwise, and all other obligations, monetary or
otherwise, of the Company under this Supplemental Indenture and the Notes (including expenses and
indemnification).
“Hedging Obligations” of any Person means the obligations of such Person pursuant to any
Interest Rate Agreement, Currency Agreement or raw materials hedge agreement.
“Holder” means the Person in whose name a Note is registered on the Registrar’s books.
“Incur” means issue, assume, Guarantee, incur or otherwise become liable for;
provided
,
however
, that any Indebtedness or Capital Stock of a Person existing at
the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or
otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Subsidiary. The
term “Incurrence” when used as a noun shall have a correlative meaning. The accretion of principal
of a non-interest bearing or other discount security shall not be deemed the Incurrence of
Indebtedness.
“Indebtedness” means, with respect to any Person on any date of determination, without
duplication:
|
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(1)
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the principal of and premium (if any) in respect of indebtedness of such
Person for borrowed money;
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(2)
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the principal of and premium (if any) in respect of obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments;
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(3)
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all obligations of such Person for the reimbursement of any obligor on any
letter of credit, bank guarantee, bankers’ acceptance or similar credit transaction
(other than obligations with respect to letters of credit, bank guarantees, bankers’
acceptances or similar credit transactions securing obligations (other than
obligations described in clauses (1), (2) and (5)) entered into in the ordinary course
of business of such Person to the extent such letters of credit, bank guarantees,
bankers’ acceptances or similar credit transactions are not drawn upon or, if and to
the extent drawn upon, such drawing is reimbursed no later than the tenth Business Day
following payment on the letter of credit, bank guarantee, bankers’ acceptance or
similar credit transaction);
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(4)
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all obligations of such Person to pay the deferred and unpaid purchase price
of property or services (except Trade Payables), which purchase
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16
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price is due more than six months after the date of placing such property in
service or taking delivery and title thereto or the completion of such services;
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(5)
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all Capitalized Lease Obligations and all Attributable Debt of such Person;
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(6)
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the amount of all obligations of such Person with respect to the redemption,
repayment or other repurchase of any Disqualified Stock or, with respect to any
Subsidiary of such Person, any Preferred Stock (but excluding, in each case, any
accrued and unpaid dividends);
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(7)
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all Indebtedness of other Persons secured by a Lien on any asset of such
Person, whether or not such Indebtedness is assumed by such Person;
provided
,
however
, that the amount of Indebtedness of such Person shall be the lesser
of:
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(A)
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the Fair Market Value of such asset at such date of
determination and
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(B)
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the amount of such Indebtedness of such other Persons;
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(8)
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Hedging Obligations of such Person; and
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(9)
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all obligations of the type referred to in clauses (1) through (8) of other
Persons for the payment of which such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any Guarantee.
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Notwithstanding the foregoing, in connection with the purchase by the Company or any Restricted
Subsidiary of any business, the term “Indebtedness” shall exclude post-closing payment adjustments
to which the seller may become entitled to the extent such payment is determined by a final closing
balance sheet or such payment depends on the performance of such business after the closing;
provided
,
however
, that, at the time of closing, the amount of any such payment is
not determinable and, to the extent such payment thereafter becomes fixed and determined, the
amount is paid within 30 days thereafter.
The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date
of all unconditional obligations as described above;
provided
,
however
, that in the
case of Indebtedness sold at a discount, the amount of such Indebtedness at any time will be the
accreted value thereof at such time.
“Indenture” means the Base Indenture, dated as of August 13, 2010, as amended or supplemented
from time to time, together with this Supplemental Indenture, as amended or supplemented from time
to time, among the Company, the Subsidiary Guarantors and the Trustee.
17
“Interest Rate Agreement” means, with respect to any Person, any interest rate protection
agreement, interest rate future agreement, interest rate option agreement, interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge
agreement or other similar agreement or arrangement to which such Person is party or of which it is
a beneficiary.
“Investment” in any Person means any direct or indirect advance, loan or other extension of
credit (including by way of Guarantee or similar arrangement) or capital contribution to (by means
of any transfer of cash or other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition of Capital Stock, Indebtedness or other
similar instruments issued by, such Person. For purposes of the definition of “Unrestricted
Subsidiary” and Section 4.04:
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(1)
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“Investment” shall include the portion (proportionate to the Company’s equity
interest in such Subsidiary) of the Fair Market Value of the net assets of any
Subsidiary of the Company at the time that such Subsidiary is designated an
Unrestricted Subsidiary;
provided
,
however
, that upon a redesignation
of such Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue
to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if
positive) equal to:
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(A)
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the Company’s “Investment” in such Subsidiary at the time of
such redesignation less
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(B)
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the portion (proportionate to the Company’s equity interest
in such Subsidiary) of the Fair Market Value of the net assets of such
Subsidiary at the time of such redesignation; and
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(2)
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any property transferred to or from an Unrestricted Subsidiary shall be
valued at its Fair Market Value at the time of such transfer.
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In the event that the Company sells Capital Stock of a Restricted Subsidiary such that after giving
effect to such sale, such Restricted Subsidiary would no longer constitute a Restricted Subsidiary,
any Investment in such Person remaining after giving effect to such sale shall be deemed to
constitute an Investment made on the date of such sale of Capital Stock.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by
Moody’s and BBB- (or the equivalent) by Standard and Poor’s, or an equivalent rating by any other
Rating Agency.
“Legal Holiday” means a Saturday, Sunday or other day on which the Trustee or banking
institutions are not required by law or regulation to be open in the State of New York.
“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge in the
nature of an encumbrance of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
18
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating business.
“Net Available Cash” from an Asset Disposition means cash payments received (including any
cash payments received by way of deferred payment of principal pursuant to a note or installment
receivable or otherwise and proceeds from the sale or other disposition of any securities received
as consideration, in each case only as and when received, but excluding any other consideration
received in the form of assumption by the acquiring Person of Indebtedness or other obligations
relating to the properties or assets that are the subject of such Asset Disposition or received in
any other non-cash form) therefrom, in each case net of:
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(1)
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all legal, accounting, investment banking, title and recording tax expenses,
commissions and other fees and expenses incurred, and all Federal, state, provincial,
foreign and local taxes required to be paid or accrued as a liability under GAAP, as a
consequence of such Asset Disposition;
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(2)
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all payments made on any Indebtedness which is secured by any assets subject
to such Asset Disposition, in accordance with the terms of any Lien upon or other
security agreement of any kind with respect to such assets, or which must by its
terms, or in order to obtain a necessary consent to such Asset Disposition, or by
applicable law be repaid out of the proceeds from such Asset Disposition;
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(3)
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all distributions and other payments required to be made to minority interest
holders in Subsidiaries or joint ventures as a result of such Asset Disposition; and
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(4)
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appropriate amounts to be provided by the seller as a reserve, in accordance
with GAAP, against any liabilities associated with the property or other assets
disposed of in such Asset Disposition and retained by the Company or any Restricted
Subsidiary after such Asset Disposition (but only for so long as such reserve is
maintained).
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“Net Cash Proceeds”, with respect to any issuance or sale of Capital Stock, means the cash
proceeds of such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’ or
placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other
fees actually incurred in connection with such issuance or sale and net of taxes paid or payable as
a result thereof.
“Notes” means the 8.250% Senior Notes due 2020 issued pursuant to this Supplemental Indenture.
“Obligations” means with respect to any Indebtedness, all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, and other amounts payable pursuant to
the documentation governing such Indebtedness.
19
“Officer” means the Chairman of the Board, the Chief Executive Officer, the Chief Financial
Officer, the Chief Accounting Officer, the President, any Vice President, the Treasurer or the
Secretary of the Company. “Officer” of a Subsidiary Guarantor has a correlative meaning.
“Officers’ Certificate” means a certificate signed by two Officers.
“Opinion of Counsel” means a written opinion from legal counsel who may be an employee of or
counsel to the Company or a Subsidiary Guarantor, or other counsel who is acceptable to the
Trustee.
“Permitted Business” means any business engaged in by the Company or any Restricted Subsidiary
on the Closing Date and any Related Business.
“Permitted Investment” means an Investment by the Company or any Restricted Subsidiary in:
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(1)
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the Company, a Restricted Subsidiary or a Person that will, upon the making
of such Investment, become a Restricted Subsidiary;
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(2)
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another Person if as a result of such Investment such other Person is merged
or consolidated with or into, or transfers or conveys all or substantially all its
assets to, the Company or a Restricted Subsidiary;
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(3)
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Temporary Cash Investments;
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(4)
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receivables owing to the Company or any Restricted Subsidiary if created or
acquired in the ordinary course of business and payable or dischargeable in accordance
with customary trade terms;
provided
,
however
, that such trade terms
may include such concessionary trade terms as the Company or any such Restricted
Subsidiary deems reasonable under the circumstances;
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(5)
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payroll, travel and similar advances to cover matters that are expected at
the time of such advances ultimately to be treated as expenses for accounting purposes
and that are made in the ordinary course of business;
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(6)
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loans or advances to employees made in the ordinary course of business of the
Company or such Restricted Subsidiary;
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(7)
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stock, obligations or securities received in settlement of disputes with
customers or suppliers or debts (including pursuant to any plan of reorganization or
similar arrangement upon insolvency of a debtor) created in the ordinary course of
business and owing to the Company or any Restricted Subsidiary or in satisfaction of
judgments;
|
20
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|
(8)
|
|
any Person to the extent such Investment represents the non-cash portion of
the consideration received for an Asset Disposition that was made pursuant to and in
compliance with Section 4.06;
|
|
|
|
|
(9)
|
|
a Receivables Entity or any Investment by a Receivables Entity in any other
Person in connection with a Qualified Receivables Transaction, including Investments
of funds held in accounts permitted or required by the arrangements governing such
Qualified Receivables Transaction or any related Indebtedness;
provided
,
however
, that any Investment in a Receivables Entity is in the form of a
Purchase Money Note, contribution of additional receivables or an equity interest;
|
|
|
|
|
(10)
|
|
any Person to the extent such Investments consist of prepaid expenses,
negotiable instruments held for collection and lease, utility and workers’
compensation, performance and other similar deposits made in the ordinary course of
business by the Company or any Restricted Subsidiary;
|
|
|
|
|
(11)
|
|
any Person to the extent such Investments consist of Hedging Obligations
otherwise permitted under Section 4.03;
|
|
|
|
|
(12)
|
|
any Person to the extent such Investment in such Person existed on the
Closing Date and any Investment that replaces, refinances or refunds such an
Investment, provided that the new Investment is in an amount that does not exceed that
amount replaced, refinanced or refunded and is made in the same Person as the
Investment replaced, refinanced or refunded;
|
|
|
|
|
(13)
|
|
advances to, and Guarantees for the benefit of, customers, dealers or
suppliers made in the ordinary course of business and consistent with past practice;
and
|
|
|
|
|
(14)
|
|
any Person to the extent such Investment, when taken together with all other
Investments made pursuant to this clause (14) and then outstanding on the date such
Investment is made, does not exceed the greater of (A) the sum of (i) $500,000,000 and
(ii) any amounts under Section 4.04(a)(3)(iv)(x) that were excluded by operation of
the proviso in Section 4.04(a)(3)(iv)and which excluded amounts are not otherwise
included in Consolidated Net Income or intended to be permitted under any of
clauses (1) through (13) of this definition and (B) 5.0% of Consolidated assets of the
Company as of the end of the most recent fiscal quarter for which financial statements
of the Company have been filed with the SEC.
|
“Permitted Liens” means, with respect to any Person:
|
|
(1)
|
|
Liens to secure Indebtedness permitted pursuant to Section 4.03(b)(1);
|
|
|
|
|
(2)
|
|
Liens to secure Indebtedness permitted pursuant to Sections 4.03(b)(11) and
4.03(b)(12);
|
21
|
|
(3)
|
|
pledges or deposits by such Person under workers’ compensation laws,
unemployment insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of Indebtedness)
or leases to which such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or United States government bonds to
secure surety or appeal bonds to which such Person is a party, or deposits as security
for contested taxes or import duties or for the payment of rent, in each case Incurred
in the ordinary course of business;
|
|
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|
|
(4)
|
|
Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens,
in each case for sums not yet due or being contested in good faith by appropriate
proceedings or other Liens arising out of judgments or awards against such Person with
respect to which such Person shall then be proceeding with an appeal or other
proceedings for review;
|
|
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|
|
(5)
|
|
Liens for taxes, assessments or other governmental charges not yet due or
payable or subject to penalties for non-payment or which are being contested in good
faith by appropriate proceedings;
|
|
|
|
|
(6)
|
|
Liens in favor of issuers of surety or performance bonds or letters of
credit, bank guarantees, bankers’ acceptances or similar credit transactions issued
pursuant to the request of and for the account of such Person in the ordinary course
of its business;
provided
,
however
, that such letters of credit, bank
guarantees, bankers’ acceptances and similar credit transactions do not constitute
Indebtedness;
|
|
|
|
|
(7)
|
|
survey exceptions, encumbrances, easements or reservations of, or rights of
others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone
lines and other similar purposes, or zoning or other restrictions as to the use of
real property or Liens incidental to the conduct of the business of such Person or to
the ownership of its properties which were not Incurred in connection with
Indebtedness for borrowed money and which do not in the aggregate materially adversely
affect the value of said properties or materially impair their use in the operation of
the business of such Person;
|
|
|
|
|
(8)
|
|
Liens securing Indebtedness Incurred to finance the construction, purchase or
lease of, or repairs, improvements or additions to, property of such Person (including
Indebtedness Incurred under Section 4.03(b)(6));
provided
,
however
,
that the Lien may not extend to any other property (other than property related to the
property being financed) owned by such Person or any of its Subsidiaries at the time
the Lien is Incurred, and the Indebtedness (other than any interest thereon) secured
by the Lien may not be Incurred more than 180 days after the later of the acquisition,
completion of construction, repair, improvement, addition or commencement of full
operation of the property subject to the Lien;
|
22
|
|
(9)
|
|
Liens existing on the Closing Date (other than Liens referred to in the
foregoing clauses (1) and (2));
|
|
|
|
|
(10)
|
|
Liens on property or shares of stock of another Person at the time such other
Person becomes a Subsidiary of such Person;
provided
,
however
, that
such Liens are not created, Incurred or assumed in connection with, or in
contemplation of, such other Person becoming such a Subsidiary;
provided
further
,
however
, that such Liens do not extend to any other property
owned by such Person or any of its Subsidiaries, except pursuant to after-acquired
property clauses existing in the applicable agreements at the time such Person becomes
a Subsidiary which do not extend to property transferred to such Person by the Company
or a Restricted Subsidiary;
|
|
|
|
|
(11)
|
|
Liens on property at the time such Person or any of its Subsidiaries acquires
the property, including any acquisition by means of a merger or consolidation with or
into such Person or any Subsidiary of such Person;
provided
,
however
,
that such Liens are not created, Incurred or assumed in connection with, or in
contemplation of, such acquisition;
provided further
,
however
, that
the Liens do not extend to any other property owned by such Person or any of its
Subsidiaries;
|
|
|
|
|
(12)
|
|
Liens securing Indebtedness or other obligations of a Subsidiary of such
Person owing to such Person or a Restricted Subsidiary of such Person;
|
|
|
|
|
(13)
|
|
Liens securing Hedging Obligations so long as such Hedging Obligations are
permitted to be Incurred under this Supplemental Indenture;
|
|
|
|
|
(14)
|
|
Liens on assets of Foreign Subsidiaries securing Indebtedness Incurred under
Section 4.03(b)(10);
|
|
|
|
|
(15)
|
|
Liens to secure any Refinancing (or successive Refinancings) as a whole, or
in part, of any Indebtedness secured by any Lien referred to in the foregoing
clauses (8), (9), (10) and (11);
provided
,
however
, that:
|
|
|
(A)
|
|
such new Lien shall be limited to all or part of the same
property that secured the original Lien (plus improvements, accessions,
proceeds, dividends or distributions in respect thereof) and
|
|
|
|
|
(B)
|
|
the Indebtedness secured by such Lien at such time is not
increased to any amount greater than the sum of:
|
|
|
(i)
|
|
the outstanding principal amount or, if
greater, committed amount of the Indebtedness secured by Liens
described under clauses (8), (9), (10) or (11) hereof at the time the
original Lien became a Permitted Lien under this Supplemental
Indenture; and
|
23
|
|
(ii)
|
|
an amount necessary to pay any fees and
expenses, including premiums, related to such Refinancings;
|
|
|
(16)
|
|
Liens on accounts receivables and related assets of the type specified in the
definition of “Qualified Receivables Transaction” Incurred in connection with a
Qualified Receivables Transaction;
|
|
|
|
|
(17)
|
|
judgment Liens not giving rise to an Event of Default so long as any
appropriate legal proceedings which may have been duly initiated for the review of
such judgment have not been finally terminated or the period within which such
proceedings may be initiated has not expired;
|
|
|
|
|
(18)
|
|
Liens arising from Uniform Commercial Code financing statement filings
regarding leases that do not otherwise constitute Indebtedness entered into in the
ordinary course of business;
|
|
|
|
|
(19)
|
|
leases and subleases of real property which do not materially interfere with
the ordinary conduct of the business of the Company and its Subsidiaries;
|
|
|
|
|
(20)
|
|
Liens which constitute bankers’ Liens, rights of set-off or similar rights
and remedies as to deposit accounts or other funds maintained with any bank or other
financial institution, whether arising by operation of law or pursuant to contract;
|
|
|
|
|
(21)
|
|
Liens on specific items of inventory or other goods and proceeds of any
Person securing such Person’s obligations in respect of bankers’ acceptances issued or
created for the account of such Person to facilitate the purchase, shipment or storage
of such inventory or other goods;
|
|
|
|
|
(22)
|
|
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; and
|
|
|
|
|
(23)
|
|
other Liens to secure Indebtedness as long as the amount of outstanding
Indebtedness secured by Liens Incurred pursuant to this clause (23) does not exceed
7.5% of Consolidated assets of the Company, as determined based on the consolidated
balance sheet of the Company as of the end of the most recent fiscal quarter for which
financial statements have been filed with the SEC;
provided
,
however
,
notwithstanding whether this clause (23) would otherwise be available to secure
Indebtedness, Liens securing Indebtedness originally secured pursuant to this
clause (23) may secure Refinancing Indebtedness in respect of such Indebtedness and
such Refinancing Indebtedness shall be deemed to have been secured pursuant to this
clause (23).
|
24
“Person” means any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity.
“Preferred Stock”, as applied to the Capital Stock of any Person, means Capital Stock of any
class or classes (however designated) that is preferred as to the payment of dividends, or as to
the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Capital Stock of any other class of such Person.
“principal” of a Note means the principal of the Note plus the premium, if any, payable on the
Note which is due or overdue or is to become due at the relevant time.
“Prospectus” means the Prospectus, dated August 10, 2010, as supplemented by the Prospectus
Supplement, dated August 10, 2010, with respect to the Notes, as supplemented or amended and
including all documents incorporated by reference therein.
“Purchase Money Indebtedness” means Indebtedness:
|
|
(1)
|
|
consisting of the deferred purchase price of property, plant or equipment,
conditional sale obligations, obligations under any title retention agreement and
other obligations Incurred in connection with the acquisition, construction or
improvement of such asset, in each case where the amount of such Indebtedness does not
exceed the greater of (A) the cost of the asset being financed and (B) the Fair Market
Value of such asset; and
|
|
|
|
|
(2)
|
|
Incurred to finance such acquisition, construction or improvement by the
Company or a Restricted Subsidiary of such asset;
|
provided
,
however
, that such Indebtedness is Incurred within 180 days after such
acquisition or the completion of such construction or improvement.
“Purchase Money Note” means a promissory note of a Receivables Entity evidencing a line of
credit, which may be irrevocable, from the Company or any Subsidiary of the Company to a
Receivables Entity in connection with a Qualified Receivables Transaction, which note
|
|
(1)
|
|
shall be repaid from cash available to the Receivables Entity, other than
|
|
|
(A)
|
|
amounts required to be established as reserves;
|
|
|
|
|
(B)
|
|
amounts paid to investors in respect of interest;
|
|
|
|
|
(C)
|
|
principal and other amounts owing to such investors; and
|
25
|
|
(D)
|
|
amounts paid in connection with the purchase of newly
generated receivables and
|
|
|
(2)
|
|
may be subordinated to the payments described in clause (a).
|
“Qualified Receivables Transaction” means any transaction or series of transactions that may
be entered into by the Company or any of its Subsidiaries pursuant to which the Company or any of
its Subsidiaries may sell, convey or otherwise transfer to:
|
|
(1)
|
|
a Receivables Entity (in the case of a transfer by the Company or any of its
Subsidiaries) or
|
|
|
|
|
(2)
|
|
any other Person (in the case of a transfer by a Receivables Entity),
|
or may grant a security interest in, any accounts receivable (whether now existing or arising in
the future) of the Company or any of its Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such accounts receivable, all contracts and all
Guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts
receivable and other assets which are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization transactions involving
accounts receivable;
provided
,
however
, that the financing terms, covenants,
termination events and other provisions thereof shall be market terms (as determined in good faith
by a Financial Officer of the Company).
The grant of a security interest in any accounts receivable of the Company or any of its Restricted
Subsidiaries to secure Bank Indebtedness shall not be deemed a Qualified Receivables Transaction.
“Rating Agency” means Standard & Poor’s and Moody’s or if Standard & Poor’s or Moody’s or both
shall not make a rating on the Notes publicly available, a nationally recognized statistical rating
agency or agencies, as the case may be, selected by the Company (as certified by a resolution of
the Board of Directors) which shall be substituted for Standard & Poor’s or Moody’s or both, as the
case may be.
“Receivables Entity” means a (a) Wholly Owned Subsidiary of the Company which is designated by
the Board of Directors (as provided below) as a Receivables Entity or (b) another Person engaging
in a Qualified Receivables Transaction with the Company which Person engages in the business of the
financing of accounts receivable, and in either of clause (a) or (b):
|
|
(1)
|
|
no portion of the Indebtedness or any other obligations (contingent or
otherwise) of which
|
|
|
(A)
|
|
is Guaranteed by the Company or any Subsidiary of the Company
(excluding Guarantees of obligations (other than the principal of, and
interest on, Indebtedness) pursuant to Standard Securitization Undertakings);
|
26
|
|
(B)
|
|
is recourse to or obligates the Company or any Subsidiary of
the Company in any way other than pursuant to Standard Securitization
Undertakings; or
|
|
|
|
|
(C)
|
|
subjects any property or asset of the Company or any
Subsidiary of the Company, directly or indirectly, contingently or otherwise,
to the satisfaction thereof, other than pursuant to Standard Securitization
Undertakings;
|
|
|
(2)
|
|
which is not an Affiliate of the Company or with which neither the Company
nor any Subsidiary of the Company has any material contract, agreement, arrangement or
understanding other than on terms which the Company reasonably believes to be no less
favorable to the Company or such Subsidiary than those that might be obtained at the
time from Persons that are not Affiliates of the Company; and
|
|
|
|
|
(3)
|
|
to which neither the Company nor any Subsidiary of the Company has any
obligation to maintain or preserve such entity’s financial condition or cause such
entity to achieve certain levels of operating results.
|
Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the
Trustee a certified copy of the resolution of the Board of Directors giving effect to such
designation and an Officers’ Certificate certifying that such designation complied with the
foregoing conditions.
“Reference Date” means May 11, 2009.
“Refinance” means, in respect of any Indebtedness, to refinance, extend, renew, refund, repay,
prepay, redeem, defease or retire, or to issue other Indebtedness in exchange or replacement for,
such Indebtedness, including, in any such case from time to time, after the discharge of the
Indebtedness being Refinanced. “Refinanced” and “Refinancing” shall have correlative meanings.
“Refinancing Indebtedness” means Indebtedness that is Incurred to Refinance (including
pursuant to any defeasance or discharge mechanism) any Indebtedness of the Company or any
Restricted Subsidiary existing on the Closing Date or Incurred in compliance with this Supplemental
Indenture (including Indebtedness of the Company that Refinances Refinancing Indebtedness);
provided
,
however
, that:
|
|
(1)
|
|
the Refinancing Indebtedness has a Stated Maturity no earlier than the Stated
Maturity of the Indebtedness being Refinanced,
|
|
|
|
|
(2)
|
|
the Refinancing Indebtedness has an Average Life at the time such Refinancing
Indebtedness is Incurred that is equal to or greater than the Average Life of the
Indebtedness being refinanced,
|
|
|
|
|
(3)
|
|
such Refinancing Indebtedness is Incurred in an aggregate principal amount
(or if Incurred with original issue discount, an aggregate issue
|
27
|
|
|
|
price) that is equal to or less than the aggregate principal amount of the
Indebtedness being refinanced (or if issued with original issue discount, the
aggregate accreted value) then outstanding (or that would be outstanding if the
entire committed amount of any credit facility being Refinanced were fully drawn
(other than any such amount that would have been prohibited from being drawn
pursuant to Section 4.03)) (plus fees and expenses, including any premium and
defeasance costs), and
|
|
|
|
|
(4)
|
|
if the Indebtedness being Refinanced is subordinated in right of payment to
the Notes, such Refinancing Indebtedness is subordinated in right of payment to the
Notes at least to the same extent as the Indebtedness being Refinanced;
|
provided
further
,
however
, that Refinancing Indebtedness shall not include:
|
|
(A)
|
|
Indebtedness of a Restricted Subsidiary that is not a
Subsidiary Guarantor that Refinances Indebtedness of the Company or
|
|
|
|
|
(B)
|
|
Indebtedness of the Company or a Restricted Subsidiary that
Refinances Indebtedness of an Unrestricted Subsidiary.
|
“Related Business” means any business reasonably related, ancillary or complementary to the
businesses of the Company and its Restricted Subsidiaries on the Closing Date.
“Restricted Payment” in respect of any Person means:
|
|
(1)
|
|
the declaration or payment of any dividend, any distribution on or in respect
of its Capital Stock or any similar payment (including any payment in connection with
any merger or consolidation involving the Company or any Restricted Subsidiary) to the
direct or indirect holders of its Capital Stock in their capacity as such, except
(A) dividends or distributions payable solely in its Capital Stock (other than
Disqualified Stock or, in the case of a Restricted Subsidiary, Preferred Stock) and
(B) dividends or distributions payable to the Company or a Restricted Subsidiary (and,
if such Restricted Subsidiary has Capital Stock held by Persons other than the Company
or other Restricted Subsidiaries, to such other Persons on no more than a pro rata
basis),
|
|
|
|
|
(2)
|
|
the purchase, repurchase, redemption, retirement or other acquisition
(“Purchase”) for value of any Capital Stock of the Company held by any Person (other
than Capital Stock held by the Company or a Restricted Subsidiary) or any Capital
Stock of a Restricted Subsidiary held by any affiliate of the Company (other than by a
Restricted Subsidiary) (other than in exchange for Capital Stock of the Company that
is not Disqualified Stock),
|
28
|
|
(3)
|
|
the Purchase for value, prior to scheduled maturity, of any scheduled
repayment or any scheduled sinking fund payment, any Subordinated Obligations (other
than the Purchase for value of Subordinated Obligations acquired in anticipation of
satisfying a sinking fund obligation, principal installment or final maturity, in each
case due within one year of the date of such Purchase), or
|
|
|
|
|
(4)
|
|
any Investment (other than a Permitted Investment) in any Person.
|
“Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted
Subsidiary.
“Sale/Leaseback Transaction” means an arrangement relating to property, plant or equipment now
owned or hereafter acquired by the Company or a Restricted Subsidiary whereby the Company or a
Restricted Subsidiary transfers such property to a Person and the Company or such Restricted
Subsidiary leases it from such Person, other than (i) leases between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries or (ii) any such transaction entered into with
respect to any property, plant or equipment or any improvements thereto at the time of, or within
180 days after, the acquisition or completion of construction of such property, plant or equipment
or such improvements (or, if later, the commencement of commercial operation of any such property,
plant or equipment), as the case may be, to finance the cost of such property, plant or equipment
or such improvements, as the case may be.
“SEC” means the Securities and Exchange Commission.
“Secured Indebtedness” means any Indebtedness of the Company secured by a Lien. “Secured
Indebtedness” of a Subsidiary Guarantor has a correlative meaning.
“Securities” means Securities issued under the Base Indenture.
“Securities Act” means the Securities Act of 1933, as amended.
“Senior Indebtedness” of the Company or any Subsidiary Guarantor, as the case may be, means
the principal of, premium (if any) and accrued and unpaid interest, if any, on (including interest
accruing on or after the filing of any petition in bankruptcy or for reorganization of the Company
or any Subsidiary Guarantor, as applicable, regardless of whether or not a claim for post-filing
interest is allowed in such proceedings), and fees and other amounts owing in respect of, Bank
Indebtedness, the Notes (in the case of the Company), the Subsidiary Guarantees (in the case of the
Subsidiary Guarantors) and all other Indebtedness of the Company or any Subsidiary Guarantor, as
applicable, whether outstanding on the Closing Date or thereafter Incurred, unless in the
instrument creating or evidencing the same or pursuant to which the same is outstanding it is
provided that such obligations are subordinated in right of payment to the Notes or such Subsidiary
Guarantor’s Subsidiary Guarantee, as applicable;
provided
,
however
, that Senior
Indebtedness of the Company or any Subsidiary Guarantor shall not include:
29
|
|
(1)
|
|
any obligation of the Company to any Subsidiary of the Company or of such
Subsidiary Guarantor to the Company or any other Subsidiary of the Company;
|
|
|
|
|
(2)
|
|
any liability for Federal, state, local or other taxes owed or owing by the
Company or such Subsidiary Guarantor, as applicable;
|
|
|
|
|
(3)
|
|
any accounts payable or other liability to trade creditors arising in the
ordinary course of business (including Guarantees thereof or instruments evidencing
such liabilities);
|
|
|
|
|
(4)
|
|
any Indebtedness or obligation of the Company (and any accrued and unpaid
interest in respect thereof) that by its terms is subordinate or junior in right of
payment to any other Indebtedness or obligation of the Company or such Subsidiary
Guarantor, as applicable, including any Subordinated Obligations of the Company or
such Subsidiary Guarantor, as applicable;
|
|
|
|
|
(5)
|
|
any obligations with respect to any Capital Stock; or
|
|
|
|
|
(6)
|
|
any Indebtedness Incurred in violation of this Supplemental Indenture.
|
“Significant Subsidiary” means any Restricted Subsidiary that would be a “Significant
Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the
SEC.
“Specified Asset Sale” means the sale of all or a portion of the Company’s properties in
Akron, Summit County, Ohio held on the date hereof.
“Standard & Poor’s” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.,
and any successor to its rating business.
“Standard Securitization Undertakings” means representations, warranties, covenants and
indemnities entered into by the Company or any Subsidiary of the Company which, taken as a whole,
are customary in an accounts receivable transaction.
“Stated Maturity” means, with respect to any security, the date specified in such security as
the fixed date on which the final payment of principal of such security is due and payable,
including pursuant to any mandatory redemption provision (but excluding any provision providing for
the repurchase of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has occurred).
“Subordinated Obligation” means any Indebtedness of the Company (whether outstanding on the
Closing Date or thereafter Incurred) that by its terms is subordinate or junior in right of payment
to the Notes. “Subordinated Obligation” of a Subsidiary Guarantor has a correlative meaning.
30
“Subsidiary” of any Person means any corporation, association, partnership or other business
entity of which more than 50% of the total voting power of shares of Capital Stock or other
interests (including partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by:
|
|
(1)
|
|
such Person,
|
|
|
|
|
(2)
|
|
such Person and one or more Subsidiaries of such Person or
|
|
|
|
|
(3)
|
|
one or more Subsidiaries of such Person.
|
“Subsidiary Guarantee” means each Guarantee of the obligations with respect to the Notes
issued by a Subsidiary of the Company pursuant to the terms of this Supplemental Indenture.
“Subsidiary Guarantor” means any Subsidiary that has issued a Subsidiary Guarantee.
“Supplemental Indenture” means this First Supplemental Indenture, dated as of August 13, 2010,
as amended or supplemented from time to time, among the Company, the Subsidiary Guarantors and the
Trustee.
“Temporary Cash Investments” means any of the following:
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(1)
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direct obligations of, or obligations the principal of and interest on which
are unconditionally guaranteed by, the United States of America (or by any agency
thereof to the extent such obligations are backed by the full faith and credit of the
United States of America), in each case maturing within one year from the date of
acquisition thereof;
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(2)
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investments in commercial paper maturing within 270 days from the date of
acquisition thereof, and having, at such date of acquisition, ratings of A1 from
Standard & Poor’s and P1 from Moody’s;
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(3)
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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 of America 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;
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(4)
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fully collateralized repurchase agreements with a term of not more than 30
days for securities described in clause (1) above and entered into with a financial
institution described in clause (3) above;
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31
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(5)
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money market funds that (A) comply with the criteria set forth in SEC Rule
2a-7 under the Investment Company Act of 1940, (B) are rated AAA by Standard & Poor’s
and Aaa by Moody’s and (C) have portfolio assets of at least $5,000,000,000; and
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(6)
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in the case of any Foreign Subsidiary, (A) marketable direct obligations
issued or unconditionally guaranteed by the sovereign nation in which such Foreign
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,
(B) investments of the type and maturity described in clauses (2) through (5) of
foreign obligors, which investments or obligors have ratings described in such clauses
or equivalent ratings from comparable foreign rating agencies, (C) investments of the
type and maturity described in clause (3) in any obligor organized under the laws of a
jurisdiction other than the United States that (i) is a branch or subsidiary of a
lender or the ultimate parent company of a lender under any of the Credit Agreements
(but only if such lender meets the ratings and capital, surplus and undivided profits
requirements of such clause (3)) or (ii) carries a rating at least equivalent to the
rating of the sovereign nation in which it is located, and (D) other investments of
the type and maturity described in clause (3) in obligors organized under the laws of
a jurisdiction other than the United States in any country in which such Subsidiary is
located;
provided
,
however
, that the investments permitted under this
subclause (D) shall be made in amounts and jurisdictions consistent with the Company’s
policies governing short-term investments.
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“TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb), as in
effect on the Closing Date.
“Trade Payables” means, with respect to any Person, any accounts payable or any indebtedness
or monetary obligation to trade creditors created, assumed or Guaranteed by such Person arising in
the ordinary course of business in connection with the acquisition of goods or services.
“Trust Officer” means the Chairman of the Board, the President or any other officer or
assistant officer of the Trustee assigned by the Trustee to administer its corporate trust matters,
and any other officer of the Trustee to whom a matter arising under this Supplemental Indenture may
be referred.
“Trustee” means Wells Fargo Bank, N.A., a national banking association, until a successor
replaces it and, thereafter, means the successor.
32
“Uniform Commercial Code” means the New York Uniform Commercial Code as in effect from time to
time.
“Unrestricted Subsidiary” means:
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(1)
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any Subsidiary of the Company that at the time of determination shall be
designated an Unrestricted Subsidiary by the Board of Directors in the manner provided
below and
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(2)
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any Subsidiary of an Unrestricted Subsidiary.
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The Board of Directors may designate any Subsidiary of the Company (including any newly acquired or
newly formed Subsidiary of the Company) to be an Unrestricted Subsidiary unless such Subsidiary or
any of its Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any Lien on any
property of, the Company or any other Subsidiary of the Company that is not a Subsidiary of the
Subsidiary to be so designated;
provided
,
however
, that either:
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(A)
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the Subsidiary to be so designated has total Consolidated
assets of $1,000 or less or
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(B)
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if such Subsidiary has Consolidated assets greater than
$1,000, then such designation would be permitted under Section 4.04.
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The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided
,
however
, that immediately after giving effect to such designation:
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(x)
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(1) the Company could Incur $1.00 of additional Indebtedness under
Section 4.03(a) or (2) the Consolidated Coverage Ratio for
the Company and its Restricted Subsidiaries would be greater after giving effect to
such designation than before such designation and
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(y)
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no Default shall have occurred and be continuing.
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Any such designation of a Subsidiary as a Restricted Subsidiary or Unrestricted Subsidiary by the
Board of Directors shall be evidenced to the Trustee by promptly filing with the Trustee a copy of
the resolution of the Board of Directors giving effect to such designation and an Officers’
Certificate certifying that such designation complied with the foregoing provisions.
“U.S. Bank Indebtedness” means any and all amounts payable under or in respect of the U.S.
Credit Agreements and any Refinancing Indebtedness with respect thereto or with respect to such
Refinancing Indebtedness, as amended from time to time, including principal, premium (if any),
interest (including interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not a claim for post-filing interest is allowed
in such proceedings), fees, charges, expenses, reimbursement obligations and all other amounts
payable thereunder or in respect thereof.
33
“U.S. Credit Agreements” means (i) the Amended and Restated First Lien Credit Agreement,
dated as of April 20, 2007, among the Company, the lenders party thereto, the issuing banks party
thereto, Citicorp USA, Inc., as Syndication Agent, Bank of America, N.A., BNP Paribas, The CIT
Group/Business Credit, Inc., General Electric Capital Corporation, GMAC Commercial Finance LLC,
Wells Fargo Foothill, as Documentation Agents, and JPMorgan Chase Bank, N.A., as Administrative
Agent and Collateral Agent, and (ii) the Amended and Restated Second Lien Credit Agreement, dated
as of April 20, 2007, among the Company, the lenders party thereto, Deutsche Bank Trust Company
Americas, as Collateral Agent, and JPMorgan Chase Bank, N.A., as Administrative Agent, each as
amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether
with the original lenders or otherwise), refinanced, restructured or otherwise modified from time
to time (except to the extent that any such amendment, restatement, supplement, waiver,
replacement, refinancing, restructuring or other modification thereto would be prohibited by the
terms of this Supplemental Indenture, unless otherwise agreed to by the Holders of at least a
majority in aggregate principal amount of Notes at the time outstanding).
“U.S. Dollar Equivalent” means with respect to any monetary amount in a currency other than
U.S. dollars, at any time for determination thereof, the amount of U.S. dollars obtained by
converting such foreign currency involved in such computation into U.S. dollars at the spot rate
for the purchase of U.S. dollars with the applicable foreign currency as published in
The Wall
Street Journal
in the “Exchange Rates” column under the heading “Currency Trading” on the date two
Business Days prior to such determination.
“U.S. Government Obligations” means direct obligations (or certificates representing an
ownership interest in such obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of the United States of
America is pledged and which are not callable or redeemable at the issuer’s option.
“Voting Stock” of a Person means all classes of Capital Stock or other interests (including
partnership interests) of such Person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.
“Wholly Owned Subsidiary” means a Restricted Subsidiary of the Company all the Capital Stock
of which (other than directors’ qualifying shares) is owned by the Company or another Wholly Owned
Subsidiary.
34
SECTION 1.04.
Other Definitions.
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Defined in
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Term
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Section
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“Affiliate Transaction”
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4.07
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(a)
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“Bankruptcy Law”
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6.01
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“Change of Control Offer”
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4.08
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(b)
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“covenant defeasance option”
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8.01
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(b)
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“Custodian”
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6.01
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“Definitive Notes”
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Appendix A
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“Event of Default”
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6.01
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“Global Notes”
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Appendix A
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“Initial Lien”
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4.09
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“legal defeasance option”
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8.01
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(b)
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“Offer”
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4.06
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(c)
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“Offer Amount”
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4.06
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(d)(3)
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“Offer Period”
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4.06
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(d)(3)
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“Paying Agent”
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2.03
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“Purchase Date”
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4.06
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(d)(2)
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“Registrar”
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2.03
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“Reversion Date”
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4.12
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(b)
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“Securities Custodian”
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Appendix A
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“Successor Company”
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5.01
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(a)(1)
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“Successor Guarantor”
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5.01
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(c)(1)
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“Suspended Covenants”
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4.12
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(a)
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“Suspension Date”
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4.12
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(a)
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“Suspension Period”
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4.12
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(b)
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SECTION 1.05.
Incorporation by Reference of Trust Indenture Act
. This Supplemental
Indenture is subject to the mandatory provisions of the TIA which are incorporated by reference in
and made a part of this Supplemental Indenture. The following TIA terms have the following
meanings:
“Commission” means the SEC;
“indenture securities” means the Notes and the Subsidiary Guarantees;
“indenture security holder” means a Holder;
“indenture to be qualified” means this Supplemental Indenture;
“indenture trustee” or “institutional trustee” means the Trustee; and
“obligor” on the indenture securities means the Company, each Subsidiary Guarantor and any
other obligor on the indenture securities.
All other TIA terms used in this Supplemental Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule have the meanings assigned to them by
such definitions.
35
SECTION 1.06.
Rules of Construction
. Unless the context otherwise requires:
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(1)
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a term has the meaning assigned to it;
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(2)
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an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
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(3)
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“or” is not exclusive;
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(4)
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“including” means including without limitation;
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(5)
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words in the singular include the plural and words in the
plural include the singular;
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(6)
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unsecured Indebtedness shall not be deemed to be subordinate
or junior to secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
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(7)
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secured Indebtedness shall not be deemed to be subordinate or
junior to any other secured Indebtedness merely because it has a junior
priority with respect to the same collateral;
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(8)
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the principal amount of any non-interest bearing or other
discount security at any date shall be the principal amount thereof that would
be shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP;
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(9)
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the principal amount of any Preferred Stock shall be (A) the
maximum liquidation value of such Preferred Stock or (B) the maximum mandatory
redemption or mandatory repurchase price with respect to such Preferred Stock,
whichever is greater; and
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(10)
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all references to the date the Notes were originally issued
shall refer to the Closing Date.
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ARTICLE 2
The Notes
SECTION 2.01.
Form and Dating
. Provisions relating to the Notes are set forth in
Appendix A attached hereto (the “Appendix”) which is hereby incorporated in, and expressly made
part of, this Supplemental Indenture. The Notes and the Trustee’s certificate of authentication
shall be substantially in the form of Exhibit 1 to this Supplemental Indenture, which is hereby
incorporated in and expressly made a part of this Supplemental Indenture. The Notes may have
notations, legends or endorsements required by law, stock exchange rule, agreements to which the
Company is subject, if any, or usage (provided that any such notation, legend or endorsement is in
a form
36
acceptable to the Company). Each Note shall be dated the date of its authentication. The
terms of the Notes set forth in Appendix A and Exhibit 1 are part of the terms of this Supplemental
Indenture. The Notes shall be issuable only in registered form without interest coupons and only
in denominations of $1,000 and integral multiples of $1,000 in excess thereof.
SECTION 2.02.
Execution and Authentication
. Two Officers shall sign the Notes for
the Company by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid until an authorized signatory of the Trustee manually signs the
certificate of authentication on the Note. The signature shall be conclusive evidence that the
Note has been authenticated under this Supplemental Indenture.
The Trustee shall authenticate and make available for delivery Notes as set forth in
Appendix A.
The Trustee may appoint an authenticating agent reasonably acceptable to the Company to
authenticate the Notes. Unless limited by the terms of such appointment, an authenticating agent
may authenticate Notes whenever the Trustee may do so. Each reference in this Supplemental
Indenture to authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or agent for service of
notices and demands.
SECTION 2.03.
Registrar and Paying Agent
. (a) The Company shall maintain an office
or agency where Notes may be presented for registration of transfer or for exchange (the
“Registrar”) and an office or agency where Notes may be presented for payment (the “Paying
Agent”). The Registrar shall keep a register of the Notes and of their transfer and exchange. The
Company may have one or more co-registrars and one or more additional paying agents; provided,
however, that so long as Wells Fargo Bank, N.A. shall be the Trustee, without the consent of the
Trustee, there shall be no more than one Registrar or Paying Agent. The term “Paying Agent”
includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent
or co-registrar not a party to this Supplemental Indenture, which shall incorporate the terms of
the TIA. The agreement shall implement the provisions of this Supplemental Indenture that relate
to such agent. The Company shall notify the Trustee of the name and address of any such agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall
be entitled to appropriate compensation therefor pursuant to Section 7.07. The Company or any Wholly Owned Subsidiary incorporated or organized within the United
States of America may act as Paying Agent, Registrar, co-registrar or transfer agent.
37
The Registrar may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents, and the Company may require a Holder to pay any taxes and fees required by
law or permitted by this Supplemental Indenture. The Registrar need not register transfer or
exchanges of Notes selected for redemption (except, in the case of Notes to be redeemed in part,
the portion thereof not to be redeemed) or any Notes for a period of 15 days before a selection of
Notes to be redeemed, or any Notes for a period of 15 days before a selection of an interest
payment date. The Holder of a Note may be treated as the owner of such Note for all purposes.
(b) The Company initially appoints the Trustee as Registrar and Paying Agent in connection
with the Notes and Securities Custodian with respect to the Global Notes.
(c) The Company may remove any Registrar or Paying Agent upon written notice to such
Registrar or Paying Agent and to the Trustee;
provided
,
however
, that no such
removal shall become effective until (i) acceptance of an appointment by a successor as evidenced
by an appropriate agreement entered into by the Company and such successor Registrar or Paying
Agent, as the case may be, and delivered to the Trustee or (ii) notification to the Trustee that
the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in
accordance with clause (i) above.
(d) Except as the Company and the Trustee may otherwise agree, the Company shall promptly
file with the Trustee by each January 15th a written notice specifying the amount of the original
issue discount accrued on the Notes for the previous calendar year for which original issue
discount reporting is required, including daily rates and accrual periods, and such other
information relating to original issue discount as may be required under the Code and applicable
regulations, as amended from time to time.
SECTION 2.04.
Paying Agent To Hold Money in Trust
. Prior to each due date of the
principal of and interest on any Note, the Company shall deposit with the Paying Agent (or if the
Company or a Subsidiary is acting as Paying Agent, segregate and hold in trust for the benefit of
Holders entitled thereto) a sum sufficient to pay such principal and interest when so becoming due.
The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal of or interest on the Notes and shall notify the Trustee
of any default by the Company in making any such payment. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate
trust fund. The Company at any time may require a Paying Agent to pay all money held by it to the
Trustee and to account for any funds disbursed by the Paying Agent. Upon complying with this
Section, the Paying Agent shall have no further liability for the money delivered to the Trustee.
SECTION 2.05.
Lists of Holders of Notes
. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the names and addresses
of Holders. If the Trustee is not the Registrar, the Company shall furnish to the Trustee, in
writing at least five Business Days before each interest payment
38
date and at such other times as the Trustee may request in writing, a list in such form and as
of such date as the Trustee may reasonably require of the names and addresses of Holders.
SECTION 2.06.
Transfer and Exchange
. (a) The Notes shall be issued in registered
form and shall be transferable only in compliance with Appendix A and upon the surrender of a Note
for registration of transfer. When a Note is presented to the Registrar or a co-registrar with a
request to register a transfer, the Registrar shall register the transfer as requested if the
requirements of this Supplemental Indenture and Section 8-401(1) of the Uniform Commercial Code are
met. When Notes are presented to the Registrar or a co-registrar with a request to exchange them
for an equal principal amount of Notes of other denominations, the Registrar shall make the
exchange as requested if the same requirements are met.
(b) To permit registration of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Notes at the Registrar’s request. The Company may require payment of a
sum sufficient to pay all taxes, assessments or other governmental charges in connection with any
transfer or exchange pursuant to this Section. The Company shall not be required to make and the
Registrar need not register transfer or exchanges of Notes selected for redemption in accordance
with the terms of this Supplemental Indenture (except, in the case of Notes to be redeemed in part,
the portion thereof not to be redeemed) or any Notes for a period of 15 days before a selection of
Notes to be redeemed or any Notes for a period of 15 days before an interest payment date.
Prior to the due presentation for registration of transfer of any Note, the Company, the
Subsidiary Guarantors, the Trustee, the Paying Agent and the Registrar may deem and treat the
Person in whose name a Note is registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and (subject to paragraph 2 of the Notes) interest, if any, on
such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of
the Company, any Subsidiary Guarantor, the Trustee, the Paying Agent, or the Registrar shall be
affected by notice to the contrary.
Any Holder of a beneficial interest in a Global Note shall, by acceptance of such beneficial
interest, agree that transfers of beneficial interest in such Global Note may be effected only
through a book-entry system maintained by (a) the Holder of such Global Note (or its agent) or (b)
any Holder of a beneficial interest in such Global Note, and that ownership of a beneficial
interest in such Global Note shall be required to be reflected in a book entry.
All Notes issued upon any transfer or exchange pursuant to the terms of this Supplemental
Indenture shall evidence the same Indebtedness and shall be entitled to the same benefits under
this Supplemental Indenture as the Notes surrendered upon such transfer or exchange.
39
SECTION 2.07.
Replacement Notes
. If a mutilated Note is surrendered to the Registrar
or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Note if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies any other reasonable
requirements of the Trustee. If required by the Trustee or the Company, such Holder shall furnish
an indemnity bond sufficient in the judgment of the Company and the Trustee to protect the Company,
the Subsidiary Guarantors, the Trustee, the Paying Agent, the Registrar and any co-registrar from
any loss which any of them may suffer if a Note is replaced. The Company and the Trustee may
charge the Holder for their expenses in replacing a Note.
Every replacement Note is an additional Obligation of the Company. The provisions of this
Section 2.07 are exclusive and shall preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated, lost, destroyed or wrongfully taken Notes.
SECTION 2.08.
Outstanding Notes
. Notes outstanding at any time are all Notes
authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section as not outstanding. Subject to Section 11.06, a
Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the
Note.
If
a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee
and the Company receive proof satisfactory to them that the replaced Note is held by a
bona
fide
purchaser.
If the Paying Agent segregates and holds in trust, in accordance with this Supplemental
Indenture, on a redemption date or maturity date money sufficient to pay all principal and interest
payable on that date with respect to the Notes (or portions thereof) to be redeemed or maturing, as
the case may be, then on and after that date such Notes (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.09.
Temporary Notes
. Until definitive Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Notes and deliver them in exchange for temporary Notes upon
surrender of such temporary Notes at the office or agency of the Company, without charge to the
Holder.
SECTION 2.10.
Cancellation
. The Company at any time may deliver Notes to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else
shall cancel all Notes surrendered for registration of transfer, exchange, payment or cancellation
and deliver a certificate of such cancellation to the Company upon request. The Trustee shall
retain all canceled
40
securities in accordance with its standard procedures (subject to the record retention
requirements of the Exchange Act). The Company may not issue new Notes to replace Notes it has
redeemed, paid or delivered to the Trustee for cancellation. The Trustee shall not authenticate
Notes in place of cancelled Notes other than pursuant to the terms of this Supplemental Indenture.
SECTION 2.11.
Defaulted Interest
. If the Company defaults in a payment of interest
on the Notes, the Company shall pay defaulted interest (plus interest on such defaulted interest to
the extent lawful) in any lawful manner. The Company may pay the defaulted interest to the persons
who are Holders on a subsequent special record date. The Company shall fix or cause to be fixed
any such special record date and payment date to the reasonable satisfaction of the Trustee and
shall promptly mail or cause to be mailed to each Holder a notice that states the special record
date, the payment date and the amount of defaulted interest to be paid.
SECTION 2.12.
CUSIP Numbers and ISINs
. The Company in issuing the Notes may use
“CUSIP” numbers and ISINs (if then generally in use) and, if so, the Trustee shall use “CUSIP”
numbers and ISINs in notices as a convenience to Holders;
provided
,
however
, that
any such notice may state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice (including a notice of redemption) and
that reliance may be placed only on the other identification numbers printed on the Notes, and any
such notice or notice of redemption shall not be affected by any defect in or omission of such
numbers.
SECTION 2.13.
Issuance of Additional Notes
. After the Closing Date, the Company
shall be entitled, subject to its compliance, at the time of and after giving effect to such
issuance, with Section 4.03 and Section 4.09, to issue Additional Notes
under this Supplemental Indenture, which Notes shall have identical terms as the Notes issued on
the Closing Date, other than with respect to the date of issuance and issue price; provided that
any such Additional Notes will be treated, for U.S. Federal income tax purposes, as fungible with
the Notes. All the Notes issued under this Supplemental Indenture (including any Additional Notes)
shall be treated as a single class for all purposes of this Supplemental Indenture, including in
respect of any amendment, waiver, other modification or optional redemption by the Company.
With respect to any Additional Notes, the Company shall set forth in an Officers’ Certificate,
a copy of which shall be delivered to the Trustee (along with a copy of the resolutions of the
Board of Directors authorizing the Additional Notes), the following information:
(1) the aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to this Supplemental Indenture and the provision of Section 4.03 that the
Company is relying on to issue such Additional Notes; and
(2) the issue price, the issue date, the CUSIP number and ISIN of such Additional
Notes.
41
ARTICLE 3
Redemption
SECTION 3.01.
Notices to Trustee.
If the Company elects to redeem Notes pursuant to
paragraph 6 of the Notes, it shall notify the Trustee in writing of the redemption date, the
principal amount of Notes to be redeemed and the paragraph of the Notes pursuant to which the
redemption will occur.
The Company shall give each notice to the Trustee provided for in this Section at least
45 days before the redemption date unless the Trustee consents to a shorter period. Such notice
shall be accompanied by an Officers’ Certificate to the effect that such redemption will comply
with the conditions herein. Any such notice may be cancelled by the Company at any time prior to
notice of such redemption being mailed to any Holder and shall thereby be void and of no effect
unless the Trustee has sent the notice of redemption pursuant to Section 3.03 below.
SECTION 3.02.
Selection of Notes to Be Redeemed
. If fewer than all the Notes are to
be redeemed, the Trustee, subject to the procedures of DTC, shall select the Notes to be redeemed
pro rata or by lot or by a method that complies with applicable legal and securities exchange
requirements, if any, and that the Trustee in its sole discretion shall deem to be fair and
appropriate. The Trustee shall make the selection from outstanding Notes not previously called for
redemption. The Trustee may select for redemption portions of the principal amount of Notes that
have denominations larger than $1,000. Notes and portions of them the Trustee selects shall be in
principal amounts of $1,000 or a whole multiple of $1,000 in excess thereof. Provisions of this
Supplemental Indenture that apply to Notes called for redemption also apply to portions of Notes
called for redemption. The Trustee shall notify the Company promptly of the Notes or portions of
Notes to be redeemed.
SECTION 3.03.
Notice of Redemption
. At least 30 days but not more than 60 days
before a date for redemption of Notes, the Company, or the Trustee (at the direction of the
Company), shall mail a notice of redemption by first-class mail to each Holder of Notes to be
redeemed at such Holder’s registered address.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to the Paying Agent to
collect the redemption price;
(5) if fewer than all the outstanding Notes are to be redeemed, the identification and
principal amounts of the particular Notes to be redeemed;
42
(6) that, unless the Company defaults in making such redemption payment, interest on
Notes (or portion thereof) called for redemption ceases to accrue on and after the
redemption date; and
(7) that no representation is made as to the correctness or accuracy of the CUSIP
number or ISIN, if any, listed in such notice or printed on the Notes.
At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at the Company’s expense. In such event, the Company shall provide the Trustee with the
information required by this Section.
SECTION 3.04.
Effect of Notice of Redemption
. Once notice of redemption is mailed to
Holders, Notes called for redemption shall become due and payable on the redemption date and at the
redemption price stated in the notice. Upon surrender to the Paying Agent, such Notes shall be
paid at the redemption price stated in the notice, plus accrued interest to the redemption date
(subject to the right of Holders of record on the relevant record date to receive interest due on
the related interest payment date if the redemption date is after a regular record date and on or
prior to the interest payment date). Failure to give notice or any defect in the notice to any
Holder shall not affect the validity of the notice to any other Holder.
SECTION 3.05.
Deposit of Redemption Price
. Prior to 11:00 a.m., New York City time,
on the redemption date, the Company shall deposit with the Paying Agent (or, if the Company or a
Subsidiary is the Paying Agent, shall segregate and hold in trust) money sufficient to pay the
redemption price of and accrued interest on all Notes or portions thereof to be redeemed on that
date other than Notes or portions of Notes called for redemption which have been delivered by the
Company to the Trustee for cancellation. Interest shall cease to accrue on Notes or portions
thereof called for redemption on and after the date the Company has deposited with the Paying Agent
funds sufficient to pay the principal of, plus accrued and unpaid interest on, the Notes to be
redeemed, unless the Paying Agent is prohibited from making such payment pursuant to the terms of
this Supplemental Indenture.
SECTION 3.06.
Notes Redeemed in Part
. Upon surrender of a Note that is redeemed in
part, the Company shall execute and the Trustee shall authenticate for the Holder (at the Company’s
expense) a new Note equal in principal amount to the unredeemed portion of the Note surrendered.
ARTICLE 4
Covenants
SECTION 4.01.
Payment of Notes
. The Company shall promptly pay the principal of and
interest on the Notes on the dates and in the manner provided in the Notes and in this Supplemental
Indenture. Principal and interest shall be considered paid on the date due if on such date the
Trustee or the Paying Agent holds in accordance with this Supplemental Indenture money sufficient
to pay all principal and interest then due.
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The Company shall pay interest on overdue principal at the rate specified therefor in the
Notes, and it shall pay interest on overdue installments of interest at the same rate to the extent
lawful.
SECTION 4.02.
SEC Reports
. Notwithstanding that the Company may not be subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with
the SEC and provide the Trustee and Holders and prospective Holders (upon request) within 15 days
after it files them with the SEC, copies of its annual report and the information, documents and
other reports that are specified in Sections 13 and 15(d) of the Exchange Act. In addition, the
Company shall furnish to the Trustee and the Holders, promptly upon their becoming available,
copies of the annual report to shareholders and any other information provided by the Company to
its public shareholders generally. The Company also shall comply with the other provisions of
Section 314(a) of the TIA. Delivery of such reports, information and documents to the Trustee
hereunder is for informational purposes only and the Trustee’s receipt of such does not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates or certificates delivered
pursuant to Section 4.13).
SECTION 4.03.
Limitation on Indebtedness
. (a) The Company shall not, and shall not
permit any Restricted Subsidiary to, Incur, directly or indirectly, any Indebtedness;
provided
,
however
, that the Company or any Subsidiary Guarantor may Incur
Indebtedness if on the date of such Incurrence and after giving effect thereto and the application
of the proceeds therefrom the Consolidated Coverage Ratio would be greater than 2.0:1.0.
(b) Notwithstanding the foregoing paragraph (a), the Company and its Restricted Subsidiaries
may Incur the following Indebtedness:
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(1)
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(x) U.S. Bank Indebtedness in an aggregate principal amount
not to exceed the greater of (A) $3,000,000,000, less the aggregate amount of
all prepayments of principal applied to permanently reduce any such
Indebtedness in satisfaction of the Company’s obligations under Section 4.06 and (B) the sum of (i) 60% of the book value of
the inventory of the Company and its Restricted Subsidiaries plus (ii) 80% of
the book value of the accounts receivable of the Company and its Restricted
Subsidiaries (other than any accounts receivable pledged, sold or otherwise
transferred or encumbered by the Company or any Restricted Subsidiary in
connection with a Qualified Receivables Transaction), in each case, as of the
end of the most recent fiscal quarter for which financial statements have been
filed with the SEC and (y) European Bank Indebtedness in an aggregate
principal amount not to exceed €525,000,000;
provided
,
however
, that the amount of Indebtedness that may be Incurred pursuant
to this clause (1) shall be reduced by any amount of Indebtedness Incurred and
then
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outstanding pursuant to the election provision of clause (10)(A)(ii)
below;
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(2)
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Indebtedness of the Company owed to and held by any
Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owed to and
held by the Company or any Restricted Subsidiary;
provided
,
however
, that any subsequent event that results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of
any such Indebtedness (except to the Company or a Restricted Subsidiary) shall
be deemed, in each case, to constitute the Incurrence of such Indebtedness by
the issuer thereof;
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(3)
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Indebtedness (A) represented by the Notes issued on the
Closing Date (not including any Additional Notes) and the Subsidiary
Guarantees, (B) outstanding on the Closing Date (other than the Indebtedness
described in clauses (1) and (2) above), and (C) consisting of Refinancing
Indebtedness Incurred in respect of any Indebtedness described in this
clause (3) (including Indebtedness that is Refinancing Indebtedness) or the
foregoing paragraph (a);
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(4)
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(A) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted Subsidiary was
acquired by the Company or a Restricted Subsidiary (other than Indebtedness
Incurred in contemplation of, in connection with, as consideration in, or to
provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of related transactions pursuant to
which such Restricted Subsidiary became a Subsidiary of or was otherwise
acquired by the Company);
provided
,
however
, that on the date
that such Restricted Subsidiary is acquired by the Company, (i) the Company
would have been able to Incur $1.00 of additional Indebtedness pursuant to the
foregoing paragraph (a) after giving effect to the Incurrence of such
Indebtedness pursuant to this clause (4) or (ii) the Consolidated Coverage
Ratio immediately after giving effect to such Incurrence and acquisition would
be greater than such ratio immediately prior to such transaction and
(B) Refinancing Indebtedness Incurred by a Restricted Subsidiary in respect of
Indebtedness Incurred by such Restricted Subsidiary pursuant to this
clause (4);
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(5)
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Indebtedness (A) in respect of performance bonds, bankers’
acceptances, letters of credit and surety or appeal bonds entered into by the
Company or any Restricted Subsidiary in the ordinary course of business, and
(B) Hedging Obligations entered into in the ordinary course of business to
hedge risks with respect to the
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Company’s or a Restricted Subsidiary’s interest rate, currency or raw
materials pricing exposure and not entered into for speculative purposes;
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(6)
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Purchase Money Indebtedness, Capitalized Lease Obligations
and Attributable Debt and Refinancing Indebtedness in respect thereof in an
aggregate principal amount on the date of Incurrence that, when added to all
other Indebtedness Incurred pursuant to this clause (6) and then outstanding,
will not exceed the greater of (A) $600,000,000 and (B) 5.0% of Consolidated
assets of the Company as of the end of the most recent fiscal quarter for
which financial statements have been filed with the SEC;
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(7)
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Indebtedness Incurred by a Receivables Entity in a Qualified
Receivables Transaction;
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(8)
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Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business;
provided
,
however
, that such Indebtedness is extinguished within five Business
Days of a Financial Officer’s becoming aware of its Incurrence;
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(9)
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any Guarantee (other than the Subsidiary Guarantees) by the
Company or a Restricted Subsidiary of Indebtedness or other obligations of the
Company or any of its Restricted Subsidiaries so long as the Incurrence of
such Indebtedness or other obligations by the Company or such Restricted
Subsidiary is permitted under the terms of this Supplemental Indenture (other
than Indebtedness Incurred pursuant to clause (4) above);
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(10)
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(A)
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Indebtedness of Foreign Subsidiaries in an aggregate
principal amount that, when added to all other Indebtedness Incurred pursuant
to this clause (10)(A) and then outstanding, will not exceed
(i) $1,150,000,000
plus
(ii) any amount then permitted to be Incurred
pursuant to clause (1) above that the Company instead elects to Incur pursuant
to this clause (10)(A); and
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(B)
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Indebtedness of Foreign Subsidiaries
Incurred in connection with a Qualified Receivables Transaction in an
amount not to exceed €300,000,000 at any one time outstanding;
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(11)
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Indebtedness constituting unsecured Indebtedness or Secured
Indebtedness in an amount not to exceed $1,300,000,000 and Refinancing
Indebtedness in respect thereof; and
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(12)
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Indebtedness of the Company and the Restricted
Subsidiaries in an aggregate principal amount on the date of Incurrence that,
when added to all other Indebtedness Incurred pursuant to this clause (12)
and then outstanding, will not exceed $150,000,000.
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(b) For purposes of determining the outstanding principal amount of any particular
Indebtedness Incurred pursuant to this Section 4.03:
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(1)
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Outstanding Indebtedness Incurred pursuant to any of the
Credit Agreements prior to or on the Closing Date shall be deemed to have been
Incurred pursuant to clause (1) of paragraph (b) above;
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(2)
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Indebtedness permitted by this Section 4.03 need not be
permitted solely by reference to one provision permitting such Indebtedness
but may be permitted in part by one such provision and in part by one or more
other provisions of this covenant permitting such Indebtedness; and
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(3)
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in the event that Indebtedness meets the criteria of more
than one of the types of Indebtedness described in this Section 4.03, the
Company, in its sole discretion, shall classify such Indebtedness (or any
portion thereof) as of the time of Incurrence and will only be required to
include the amount of such Indebtedness in one of such clauses (provided that
any Indebtedness originally classified as Incurred pursuant to Sections
4.03(b)(2) through (b)(12) may later be reclassified as having been Incurred
pursuant to Section 4.03(a) or any other of Sections 4.03(b)(2) through
(b)(12) to the extent that such reclassified Indebtedness could be Incurred
pursuant to Section 4.03(a) or one of Sections 4.03(b)(2) through (b)(12),
as the case may be, if it were Incurred at the time of such reclassification).
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(c) For purposes of determining compliance with any U.S. dollar or euro denominated
restriction on the Incurrence of Indebtedness where the Indebtedness Incurred is denominated in a
different currency, the amount of such Indebtedness will be the U.S. Dollar Equivalent or Euro
Equivalent, as the case may be, determined on the date of the Incurrence of such Indebtedness;
provided
,
however
, that if any such Indebtedness denominated in a different
currency is subject to a Currency Agreement with respect to U.S. dollars or euros, as the case may
be, covering all principal, premium, if any, and interest payable on such Indebtedness, the amount
of such Indebtedness expressed in U.S. dollars or euros will be as provided in such Currency
Agreement. The principal amount of any Refinancing Indebtedness Incurred in the same currency as
the Indebtedness being Refinanced will be the U.S. Dollar Equivalent or Euro Equivalent, as
appropriate, of the Indebtedness Refinanced determined on the date of the Incurrence of such
Indebtedness, except to the extent that (1) such U.S. Dollar Equivalent or Euro Equivalent was
determined based on a Currency Agreement, in which case the Refinancing Indebtedness will be
determined in accordance with the immediately
47
preceding sentence, and (2) the principal amount of
the Refinancing Indebtedness exceeds the principal amount of the Indebtedness being Refinanced, in
which case the U.S. Dollar Equivalent or Euro Equivalent, as appropriate, of such excess will be
determined on the date such Refinancing Indebtedness is Incurred.
SECTION 4.04.
Limitation on Restricted Payments
. (a) The Company shall not, and
shall not permit any Restricted Subsidiary, directly or indirectly, to make any Restricted Payment
if at the time the Company or such Restricted Subsidiary makes any Restricted Payment:
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(1)
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a Default shall have occurred and be continuing (or would
result therefrom);
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(2)
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the Company could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
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(3)
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the aggregate amount of such Restricted Payment and all other
Restricted Payments (the amount so expended, if other than in cash, to be
determined in good faith by a Financial Officer of the Company, whose
determination will be conclusive) declared or made subsequent to the Reference
Date would exceed the sum, without duplication, of:
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(i)
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50% of the Consolidated Net Income accrued
during the period (treated as one accounting period) from the
beginning of the fiscal quarter immediately following the fiscal
quarter during which the Reference Date occurs to the end of the most
recent fiscal quarter for which financial statements have been filed
with the SEC prior to the date of such Restricted Payment (or, in
case such Consolidated Net Income will be a deficit, minus 100% of
such deficit);
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(ii)
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100% of the aggregate Net Cash Proceeds
received by the Company from the issuance or sale of its Capital
Stock (other than Disqualified Stock) subsequent to the Reference
Date (other than an issuance or sale to a Subsidiary of the Company
and other than an issuance or sale to an employee stock ownership
plan or to a trust established by the Company or any of its
Subsidiaries for the benefit of their employees) and 100% of any cash
capital contribution received by the Company from its shareholders
subsequent to the Reference Date;
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(iii)
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the amount by which Indebtedness of the
Company or its Restricted Subsidiaries is reduced on the Company’s
Consolidated balance sheet upon the conversion or exchange (other
than by a Subsidiary of the Company)
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subsequent to the Reference Date
of any Indebtedness of the Company or its Restricted Subsidiaries
issued after the Reference Date which is convertible or exchangeable
for Capital Stock (other than Disqualified Stock) of the Company
(less the amount of any cash or the Fair Market Value of other
property distributed by the Company or any Restricted Subsidiary upon
such conversion or exchange); and
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(iv)
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an amount equal to the sum of (x) the net
reduction in the Investments (other than Permitted Investments) made
by the Company or any Restricted Subsidiary in any Person resulting
from repurchases, repayments or redemptions of such Investments by
such Person, proceeds realized on the sale of such Investment and
proceeds representing the return of capital (excluding dividends and
distributions), in each case realized by the Company or any
Restricted Subsidiary, and (y) to the extent such Person is an
Unrestricted Subsidiary, the portion (proportionate to the Company’s
equity interest in such Subsidiary) of the Fair Market Value of the
net assets of such Unrestricted Subsidiary at the time such
Unrestricted Subsidiary is designated a Restricted Subsidiary;
provided
,
however
, that the foregoing sum shall not
exceed, in the case of any such Person or Unrestricted Subsidiary,
the amount of Investments (excluding Permitted Investments)
previously made (and treated as a Restricted Payment) by the Company
or any Restricted Subsidiary in such Person or Unrestricted
Subsidiary.
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(b) The provisions of Section 4.04(a) shall not prohibit:
(1) any Restricted Payment made out of the Net Cash Proceeds of the substantially
concurrent sale of, or made by exchange for, Capital Stock of the Company (other than
Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary of the
Company or an employee stock ownership plan or to a trust established by the Company or any
of its Subsidiaries for the benefit of their employees to the extent such sale to such an
employee stock ownership plan or trust is financed by loans from or guaranteed by the
Company or any Restricted Subsidiary unless such loans have been repaid with cash on or
prior to the date of determination) or a substantially concurrent cash capital contribution
received by the Company from its shareholders;
provided
,
however
, that:
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(A)
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such Restricted Payment shall be excluded in the calculation
of the amount of Restricted Payments, and
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(B)
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the Net Cash Proceeds from such sale applied in the manner
set forth in Section 4.04(b)(1) shall be excluded from the calculation of
amounts under Section 4.04(a)(3)(ii);
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(2) any prepayment, repayment or Purchase for value of Subordinated Obligations of the
Company made by exchange for, or out of the proceeds of the substantially concurrent sale
of, other Subordinated Obligations or Indebtedness Incurred under Section 4.03(a);
provided
,
however
, that such prepayment, repayment or Purchase for value
shall be excluded in the calculation of the amount of Restricted Payments;
(3) dividends paid within 60 days after the date of declaration thereof if at such
date of declaration such dividends would have complied with this covenant;
provided
,
however
, that such dividends shall be included in the calculation
of the amount of Restricted Payments;
(4) any Purchase for value of Capital Stock of the Company or any of its Subsidiaries
from employees, former employees, directors or former directors of the Company or any of
its Subsidiaries (or permitted transferees of such employees, former employees, directors
or former directors), pursuant to the terms of agreements (including employment agreements)
or plans (or amendments thereto) approved by the Board of Directors under which such
individuals purchase or sell or are granted the option to purchase or sell, shares of such
Capital Stock;
provided
,
however
, that the aggregate amount of such
Purchases for value will not exceed $10,000,000 in any calendar year;
provided
further
,
however
, that any of the $10,000,000 permitted to be applied for
Purchases under this Section 4.04(b)(4) in a calendar year (and not so applied) may be
carried forward for use in the following two calendar years;
provided further
,
however
, that such Purchases for value shall be excluded in the calculation of the
amount of Restricted Payments;
(5) so long as no Default has occurred and is continuing, payments of dividends on
Disqualified Stock issued after the Reference Date pursuant to Section 4.03;
provided
,
however
, that such dividends shall be included in the calculation
of the amount of Restricted Payments;
(6) repurchases of Capital Stock deemed to occur upon exercise of stock options if
such Capital Stock represents a portion of the exercise price of such options;
provided
,
however
, that such Restricted Payments shall be excluded in the
calculation of the amount of Restricted Payments;
(7) so long as no Default has occurred and is continuing, any prepayment, repayment or
Purchase for value of Subordinated Obligations from Net Available Cash to the extent
permitted under Section 4.06;
provided
,
however
, that such prepayment,
repayment or Purchase for value shall be excluded in the calculation of the amount of
Restricted Payments;
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(8) payments to holders of Capital Stock (or to the holders of Indebtedness that is
convertible into or exchangeable for Capital Stock upon such conversion or exchange) in
lieu of the issuance of fractional shares;
provided
,
however
, that such
payments shall be excluded in the calculation of the amount of Restricted Payments; or
(9) any Restricted Payment in an amount which, when taken together with all Restricted
Payments made after the Reference Date pursuant to this Section 4.04(b)(9), does not exceed
$600,000,000;
provided
,
however
, that (A) at the time of each such
Restricted Payment, no Default shall have occurred and be continuing (or result therefrom)
and (B) such Restricted Payments shall be excluded in the calculation of the amount of
Restricted Payments.
SECTION 4.05.
Limitation on Restrictions on Distributions from Restricted
Subsidiaries
. The Company shall not, and shall not permit any Restricted Subsidiary to, create
or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction
on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock or pay any
Indebtedness or other obligations owed to the Company;
(2) make any loans or advances to the Company; or
(3) transfer any of its property or assets to the Company,
except:
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(A)
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any encumbrance or restriction pursuant to applicable law,
rule, regulation or order or an agreement in effect at or entered into on the
Closing Date;
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(B)
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any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by
such Restricted Subsidiary prior to the date on which such Restricted
Subsidiary was acquired by the Company (other than Indebtedness Incurred as
consideration in, in contemplation of, or to provide all or any portion of the
funds or credit support utilized to consummate the transaction or series of
related transactions pursuant to which such Restricted Subsidiary became a
Restricted Subsidiary or was otherwise acquired by the Company) and
outstanding on such date;
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(C)
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any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an agreement
referred to in Section 4.05(3)(A) or Section 4.05(3)(B) or this Section
4.05(3)(C) or contained in any amendment to an agreement referred to in
Section 4.05(3)(A) or Section 4.05(3)(B) or this Section 4.05(3)(C);
provided
,
however
, that the encumbrances and
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restrictions
contained in any such Refinancing agreement or amendment are no less favorable
in any material respect to the Holders than the encumbrances and restrictions
contained in such predecessor agreements;
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(D)
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in the case of Section 4.05(3), any encumbrance or
restriction
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(i)
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that restricts in a customary manner the
subletting, assignment or transfer of any property or asset that is
subject to a lease, license or similar contract, or the assignment or
transfer of any such lease, license or other contract; or
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(ii)
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contained in mortgages, pledges and other
security agreements securing Indebtedness of a Restricted Subsidiary
to the extent such encumbrance or restriction restricts the transfer
of the property subject to such security agreements;
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(E)
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with respect to a Restricted Subsidiary, any restriction
imposed pursuant to an agreement entered into for the sale or disposition of
all or substantially all the Capital Stock or assets of such Restricted
Subsidiary pending the closing of such sale or disposition;
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(F)
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any encumbrance or restriction existing under or by reason of
Indebtedness or other contractual requirements of a Receivables Entity in
connection with a Qualified Receivables Transaction;
provided
,
however
, that such restrictions apply only to such Receivables Entity;
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(G)
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purchase money obligations for property acquired in the
ordinary course of business and Capitalized Lease Obligations that impose
restrictions on the property purchased or leased of the nature described in
Section 4.05(3);
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(H)
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provisions with respect to the disposition or distribution of
assets or property in joint venture agreements, asset sale agreements, stock
sale agreements and other similar agreements;
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(I)
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restrictions on cash or other deposits or net worth imposed
by customers, suppliers or, in the ordinary course of business, other third
parties; and
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(J)
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with respect to any Foreign Subsidiary, any encumbrance or
restriction contained in the terms of any Indebtedness, or any agreement
pursuant to which such Indebtedness was issued, if:
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(i)
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the encumbrance or restriction applies only
in the event of a payment default or a default with respect to a
financial covenant contained in such Indebtedness or agreement, or
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(ii)
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at the time such Indebtedness is Incurred,
such encumbrance or restriction is not expected to materially affect
the Company’s ability to make principal or interest payments on the
Notes, as determined in good faith by a Financial Officer of the
Company, whose determination shall be conclusive.
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SECTION 4.06.
Limitation on Sales of Assets and Subsidiary Stock
.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, make any
Asset Disposition unless:
(1) the Company or such Restricted Subsidiary receives consideration (including by way
of relief from, or by any other Person assuming sole responsibility for, any liabilities,
contingent or otherwise) at the time of such Asset Disposition at least equal to the Fair
Market Value of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration thereof received by the Company or such
Restricted Subsidiary is in the form of cash or Additional Assets; and
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is
applied by the Company (or such Restricted Subsidiary, as the case may be):
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(A)
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first
, to the extent the Company elects (or is required by
the terms of any applicable Indebtedness) (i) to prepay, repay, purchase,
repurchase, redeem, retire, defease or otherwise acquire for value Senior
Indebtedness of the Company or a Subsidiary Guarantor or Indebtedness of a
Restricted Subsidiary that is not a Subsidiary Guarantor or (ii) to cause any
loan commitment that is available to be drawn under the applicable credit
facility and to be Incurred under this Supplemental Indenture and that when
drawn would constitute Secured Indebtedness, to be permanently reduced by the
amount of Net Available Cash, in each case, other than Indebtedness owed to
the Company or an Affiliate of the Company and other than obligations in
respect of Disqualified Stock, within 365 days after the later of the date of
such Asset Disposition or the receipt of such Net Available Cash;
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(B)
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second
, to acquire Additional Assets (or otherwise to make
capital expenditures), in each case within 365 days after the later of the
date of such Asset Disposition or the receipt of such Net Available Cash;
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(C)
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third
, to the extent of the balance of such Net Available
Cash after application in accordance with Section 4.06(a)(3)(A) and
Section 4.06(a)(3)(B), to make an Offer (as defined in Section 4.06(c)) to
purchase Notes pursuant to and subject to the conditions set forth in Section
4.06(c);
provided
,
however
, that if the Company elects (or is
required by the terms of any other Senior Indebtedness), such Offer may be
made ratably to purchase the Notes and any Senior Indebtedness of the Company;
and
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(D)
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fourth
, to the extent of the balance of such Net Available
Cash after application in accordance with Sections 4.06(a)(3)(A),
4.06(a)(3)(B) and 4.06(a)(3)(C), for any general corporate purpose permitted
by the terms of this Supplemental Indenture;
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provided
,
however,
that in connection with any prepayment,
repayment, purchase, repurchase, redemption, retirement, defeasance or other
acquisition for value of Indebtedness pursuant to Section 4.06(a)(3)(A) or Section
4.06(a)(3)(C), the Company or such Restricted Subsidiary shall retire such
Indebtedness and shall cause the related loan commitment (if any) to be
permanently reduced in an amount equal to the principal amount so prepaid, repaid,
purchased, repurchased, redeemed, retired, defeased or otherwise acquired for
value.
Notwithstanding the foregoing provisions of this Section 4.06(a)(3), the Company
and its Restricted Subsidiaries shall not be required to apply any Net Available
Cash in accordance with this Section 4.06 except to the extent that the aggregate
Net Available Cash from all Asset Dispositions that is not applied in accordance
with this Section 4.06 exceeds $25,000,000. Pending application of Net Available
Cash pursuant to this Section 4.06, such Net Available Cash may be used or
invested in any manner that is not prohibited by this Supplemental Indenture.
(b) For the purposes of this covenant, the following are deemed to be cash:
(1) the assumption of Indebtedness or other obligations of the Company (other than
obligations in respect of Disqualified Stock of the Company) or any Restricted Subsidiary
(other than obligations in respect of Disqualified Stock and Preferred Stock of a
Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Company or
such Restricted Subsidiary from all liability on such Indebtedness or obligations in
connection with such Asset Disposition;
(2) any Designated Non-cash Consideration having an aggregate Fair Market Value that,
when taken together with all other Designated Non-cash Consideration received pursuant to
this clause and then outstanding, does not exceed at the time of the receipt of such
Designated Non-cash Consideration (with
54
the Fair Market Value of each item of Designated
Non-cash Consideration being measured at the time received and without giving effect to
subsequent changes in value) the greater of (1) $200,000,000 and (2) 1.5% of the total
Consolidated assets of the Company as shown on the most recent balance sheet of the Company
filed with the SEC;
(3) securities, notes or similar obligations received by the Company or any Restricted
Subsidiary from the transferee that are promptly converted by the Company or such
Restricted Subsidiary into cash; and
(4) Temporary Cash Investments.
(c) In the event of an Asset Disposition that requires the purchase of Notes pursuant to
Section 4.06(a)(3)(C), the Company shall be required (i) to purchase Notes tendered pursuant to an
offer by the Company for the Notes (the “Offer”) at a purchase price of 100% of their principal
amount plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of
record on the relevant date to receive interest due on the relevant interest payment date) in
accordance with the procedures (including prorating in the event of oversubscription), set forth in
Section 4.06(d) and (ii) to purchase other Senior Indebtedness of the Company on the terms and to
the extent contemplated thereby;
provided
that in no event shall the Company offer to
purchase such Senior Indebtedness of the Company at a purchase price in excess of 100% of its
principal amount (without premium) or, unless otherwise provided for in such Senior Indebtedness,
the accreted amount, if issued with original issue discount, plus accrued and unpaid interest
thereon. If the aggregate purchase price of Notes (and Senior Indebtedness) tendered pursuant to
the Offer is less than the Net Available Cash allotted to the purchase of the Notes (and other
Senior Indebtedness), the Company shall apply the remaining Net Available Cash in accordance with
Section 4.06(a)(3)(D). The Company shall not be required to make an Offer for Notes (and Senior
Indebtedness) pursuant to this covenant if the Net Available Cash available therefor (after
application of the proceeds as provided in Section 4.06(a)(3)(A) and Section 4.06(a)(3)(B)) is less
than $25,000,000 for any particular Asset Disposition (which lesser amount will be carried forward
for purposes of determining whether an Offer is required with respect to the Net Available Cash
from any subsequent Asset Disposition).
(d) (1) If the aggregate purchase price of Notes (and other Senior Indebtedness) tendered
pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the Company shall
select the Notes (and other Senior Indebtedness) to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only Notes and other Senior
Indebtedness in denominations of $1,000, or integral multiples thereof, shall be purchased).
(2) Promptly, and in any event within 10 days after the Company becomes obligated to
make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to
each Holder, a written notice stating that the Holder may elect to have his Notes purchased
by the Company either in whole or in part (subject to prorating as described in Section
4.06(d)(1) in the event the Offer is
55
oversubscribed) in integral multiples of $1,000 of
principal amount at the applicable purchase price. The notice shall specify a purchase
date not less than 30 days nor more than 60 days after the date of such notice (the
“Purchase Date”).
(3) Not later than the date upon which written notice of an Offer is delivered to the
Trustee as provided below, the Company shall deliver to the Trustee an Officers’
Certificate as to (A) the amount of the Offer (the “Offer Amount”), including information
as to any other Senior Indebtedness included in the Offer for repurchase, (B) the
allocation of the Net Available Cash from the Asset Dispositions pursuant to which such
Offer is being made and (C) the compliance of such allocation with the provisions of
Section 4.06(a) and (c). By 11:00 a.m. New York City time on the Purchase Date, the
Company shall irrevocably deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash
Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if
funds are immediately available by open of business, an amount equal to the Offer Amount to
be held for payment in accordance with the provisions of this Section 4.06. If the Offer
includes other Senior Indebtedness, the deposit described in the preceding sentence may be
made with any other paying agent pursuant to arrangements satisfactory to the Trustee.
Upon the expiration of the period for which the Offer remains open (the “Offer Period”),
the Company shall deliver to the Trustee for cancellation the Notes or portions thereof
which have been properly tendered to and are to be accepted by the Company. The Trustee
shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to
each tendering Holder in the amount of the purchase price. In the event that the aggregate
purchase price of the Notes delivered by the Company to the Trustee is less than the Offer
Amount applicable to the Notes, the Trustee shall deliver the excess to the Company
immediately after the expiration of the Offer Period for application in accordance with
this Section 4.06.
(4) Holders electing to have a Note purchased shall be required to surrender the Note,
with an appropriate form duly completed, to the Company at the address specified in the
notice at least three Business Days prior to the Purchase Date. A Holder shall be entitled
to withdraw its election if the Trustee or the Company receives not later than one Business
Day prior to the Purchase Date, a telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of the Note which was delivered for purchase by
such Holder and a statement that such Holder is withdrawing its election to have such Note
purchased. Holders whose Notes are purchased only in part shall be issued new Notes equal
in principal amount to the unpurchased portion of the Notes surrendered.
(5) At the time the Company delivers Notes to the Trustee which are to be accepted for
purchase, the Company shall also deliver an Officers’ Certificate stating that such Notes
are to be accepted by the Company pursuant to and in accordance with the terms of this
Section 4.06. A Note shall be deemed to
56
have been accepted for purchase at the time the
Trustee, directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
(e) The Company shall comply, to the extent applicable, with the requirements of
Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with
the repurchase of Notes pursuant to this Section 4.06. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section 4.06, the Company shall
comply with the applicable securities laws and regulations and shall not be deemed to have breached
its obligations under this Section 4.06 by virtue thereof.
SECTION 4.07.
Limitation on Transactions with Affiliates
. (a) The Company shall
not, and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or
conduct any transaction or series of related transactions (including the purchase, sale, lease or
exchange of any property or the rendering of any service) with any Affiliate of the Company (an
“Affiliate Transaction”) unless such transaction is on terms:
(1) that are no less favorable to the Company or such Restricted Subsidiary, as the
case may be, than those that could be obtained at the time of such transaction in
arm’s-length dealings with a Person who is not such an Affiliate,
(2) that, in the event such Affiliate Transaction involves an aggregate amount in
excess of $25,000,000,
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(A)
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are set forth in writing, and
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(B)
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have been approved by a majority of the members of the Board
of Directors having no personal stake in such Affiliate Transaction and,
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(3) that, in the event such Affiliate Transaction involves an amount in excess of
$75,000,000, have been determined by a nationally recognized appraisal, accounting or
investment banking firm to be fair, from a financial standpoint, to the Company and its
Restricted Subsidiaries.
(b) The provisions of Section 4.07(a) will not prohibit:
(1) any Restricted Payment permitted to be paid pursuant to Section 4.04,
(2) any issuance of securities, or other payments, awards or grants in cash,
securities or otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans approved by the Board of Directors,
57
(3) the grant of stock options or similar rights to employees and directors of the
Company pursuant to plans approved by the Board of Directors,
(4) loans or advances to employees in the ordinary course of business of the Company,
(5) the payment of reasonable fees and compensation to, or the provision of employee
benefit arrangements and indemnity for the benefit of, directors, officers and employees of
the Company and its Restricted Subsidiaries in the ordinary course of business,
(6) any transaction between or among any of the Company, any Restricted Subsidiary or
any joint venture or similar entity which would constitute an Affiliate Transaction solely
because the Company or a Restricted Subsidiary owns an equity interest in or otherwise
controls such Restricted Subsidiary, joint venture or similar entity,
(7) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the
Company,
(8) any agreement as in effect on the Closing Date and described in the Prospectus or
in the Company’s SEC filings as filed on or prior to the Closing Date, or any renewals,
extensions or amendments of any such agreement (so long as such renewals, extensions or
amendments are not less favorable in any material respect to the Company or its Restricted
Subsidiaries) and the transactions evidenced thereby,
(9) transactions with customers, clients, suppliers or purchasers or sellers of goods
or services in each case in the ordinary course of business and otherwise in compliance
with the terms of this Supplemental Indenture which are fair to the Company or its
Restricted Subsidiaries, in the reasonable determination of the Board of Directors or the
senior management thereof, or are on terms at least as favorable as could reasonably have
been obtained at such time from an unaffiliated party, or
(10) any transaction effected as part of a Qualified Receivables Transaction.
SECTION 4.08.
Change of Control
. (a) Upon the occurrence of a Change of Control,
each Holder shall have the right to require the Company to purchase all or any part of such
Holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest payment date), in
accordance with Section 4.08(b).
(b) Within 30 days following any Change of Control, the Company shall mail a notice to each
Holder with a copy to the Trustee (the “Change of Control Offer”), stating:
58
(1) that a Change of Control has occurred and that such Holder has the right to
require the Company to purchase all or a portion of such Holder’s Notes at a purchase price
in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest to
the date of purchase (subject to the right of Holders of record on the relevant record date
to receive interest on the relevant interest payment date);
(2) the circumstances and relevant facts and financial information regarding such
Change of Control;
(3) the purchase date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed); and
(4) the instructions determined by the Company, consistent with this Section 4.08,
that a Holder must follow in order to have its Notes purchased.
(c) The Company shall not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Section 4.08 applicable to a Change
of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn
under such Change of Control Offer. In addition, the Company shall not be required to make a
Change of Control Offer upon a Change of Control if the Notes have been called for redemption to
the extent that the Company mails a valid notice of redemption to Holders prior to the Change of
Control, and thereafter redeems all Notes called for redemption in accordance with the terms set
forth in such redemption notice.
(d) The Company shall comply, to the extent applicable, with the requirements of
Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with
the purchase of Notes pursuant to this Section 4.08. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section 4.08, the Company shall
comply with the applicable securities laws and regulations and shall not be deemed to have breached
its obligations under this Section 4.08 by virtue thereof.
(e) On the purchase date, all Notes purchased by the Company under this Section 4.08 shall be
delivered by the Company to the Trustee for cancellation, and the Company shall pay the purchase
price plus accrued and unpaid interest, if any, to the Holders entitled thereto.
SECTION 4.09.
Limitation on Liens
. The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, Incur or permit to exist any Lien (the “Initial
Lien”) of any nature whatsoever on any of its property or assets (including Capital Stock of a
Restricted Subsidiary), whether owned at the Closing Date or thereafter acquired securing any
Indebtedness, other than Permitted Liens, without effectively providing that the Notes shall be
secured equally and ratably with (or prior to) the obligations so secured for so long as such
obligations are so secured.
59
Any Lien created for the benefit of the Holders pursuant to the preceding sentence shall
provide by its terms that such Lien shall be automatically and unconditionally released and
discharged upon the release and discharge of the Initial Lien.
SECTION 4.10.
Limitation on Sale/Leaseback Transactions
. The Company shall not, and
shall not permit any Restricted Subsidiary to, enter into any Sale/Leaseback Transaction with
respect to any property unless:
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(1)
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(A) the Company or such Restricted Subsidiary would be
entitled to:
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(i)
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Incur Indebtedness with
respect to such Sale/Leaseback Transaction pursuant to
Section 4.03; and
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(ii)
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create a Lien on such
property securing such Indebtedness without equally and
ratably securing the Notes pursuant to Section 4.09;
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(B)
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the gross proceeds payable to the Company
or such Restricted Subsidiary in connection with such Sale/Leaseback
Transaction are at least equal to the Fair Market Value of such
property; and
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(C)
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the transfer of such property is permitted
by, and, if applicable, the Company applies the proceeds of such
transaction in compliance with, Section 4.06; or
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(2)
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the Sale/Leaseback Transaction is with respect to all or a
portion of the Company’s properties in Akron, Summit County, Ohio.
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SECTION 4.11.
Future Subsidiary Guarantors
. The Company shall cause each Restricted
Subsidiary that Guarantees any Indebtedness of the Company or of any Subsidiary Guarantor to become
a Subsidiary Guarantor, and if applicable, execute and deliver to the Trustee a supplemental
indenture in the form set forth in Exhibit 2 hereto pursuant to which such Subsidiary shall
Guarantee payment of the Notes. Each Subsidiary Guarantee shall be limited to an amount not to
exceed the maximum amount that can be Guaranteed by that Subsidiary Guarantor, without rendering
the Subsidiary Guarantee, as it relates to such Subsidiary Guarantor voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
SECTION 4.12.
Suspension of Certain Covenants
. (a) Following the first day (the
“Suspension Date”) that:
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(1)
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the Notes have an Investment Grade Rating from both of the
Rating Agencies, and
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(2)
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no Default has occurred and is continuing hereunder with
respect to the Notes,
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the Company and its Restricted Subsidiaries will not be subject to Sections 4.03, 4.04, 4.05, 4.06,
4.07, 4.11 and Section 5.01(a)(3)(collectively, the “Suspended Covenants”). In addition, the
Company may elect to suspend the Subsidiary Guarantees.
(b) In the event that the Company and its Restricted Subsidiaries are not subject to the
Suspended Covenants for any period of time as a result of the foregoing and on any subsequent date
(the “Reversion Date”) one or both of the Rating Agencies withdraws its Investment Grade Rating or
downgrades the rating assigned to such Notes below an Investment Grade Rating, then the Company and
its Restricted Subsidiaries shall thereafter again be subject to the Suspended Covenants with
respect to future events and the Subsidiary Guarantees shall be reinstated. The period of time
between the Suspension Date and the Reversion Date is referred to herein as the “Suspension
Period.”
(c) Notwithstanding that the Suspended Covenants may be reinstated, no Default shall be
deemed to have occurred as a result of a failure to comply with the Suspended Covenants during the
Suspension Period. During any Suspension Period, the Company shall not designate any Subsidiary to
be an Unrestricted Subsidiary unless the Company would have been permitted to designate such
Subsidiary to be an Unrestricted Subsidiary if a Suspension Period had not been in effect for any
period.
(d) On the Reversion Date, all Indebtedness Incurred during the Suspension Period shall be
classified to have been Incurred pursuant to Section 4.03(to the extent such Indebtedness would be
permitted to be Incurred thereunder as of the Reversion Date and after giving effect to
Indebtedness Incurred prior to the Suspension Period and outstanding on the Reversion Date). To
the extent such Indebtedness would not be so permitted to be Incurred pursuant to Section 4.03(a)
or Section 4.03(b), such Indebtedness shall be deemed to have been outstanding on the Closing Date,
so that it is classified as permitted under Section 4.03(b)(3)(B). Calculations made after the
Reversion Date of the amount available to be made as Restricted Payments under Section 4.04 shall
be made as though Section 4.04 had been in effect since the Closing Date and throughout the
Suspension Period. Accordingly, Restricted Payments made during the Suspension Period shall reduce
the amount available to be made as Restricted Payments under Section 4.04(a) and the items
specified in Section 4.04(a)(3) shall increase the amount available to be made under Section
4.04(a). For purposes of determining compliance with Section 4.06(a) and Section 4.06(b), the Net
Available Cash from all Asset Dispositions not applied in accordance with Section 4.06 shall be
deemed to be reset to zero after the Reversion Date.
(e) In addition, without causing a Default or Event of Default, the Company and the
Restricted Subsidiaries may honor any contractual commitments to take actions after a Reversion
Date as long as such contractual commitments were entered into during a Suspension Period and not
in anticipation of such Notes no longer having an Investment Grade Rating from both of the Rating
Agencies.
61
(f) The Company shall provide written notice to the Trustee of the occurrence of any
Suspension Date or Reversion Date and of any election made pursuant to this Section;
provided
that
the failure to provide such notice shall not affect the operation of this Section 4.12 or
the Company’s rights hereunder.
SECTION 4.13.
Compliance Certificate
. The Company shall deliver to the Trustee
within 120 days after the end of each fiscal year of the Company a certificate signed by a
Financial Officer complying with TIA § 314(a)(4) stating (i) that a review of the activities of the
Company and its Subsidiaries during the preceding fiscal year has been made with a view to
determining whether the Company and the Subsidiary Guarantors have fulfilled their obligations
under this Supplemental Indenture and (ii) that, to the knowledge of such Financial Officer, no
Default or Event of Default occurred during such period (or, if a Default or Event of Default
hereunder shall have occurred, describing all such Defaults or Events of Default hereunder of which
such Financial Officer may have knowledge and what action the Company has taken, is taking and/or
proposes to take with respect thereto).
SECTION 4.14.
Further Instruments and Acts
. Upon request of the Trustee, the Company
will execute and deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this Supplemental Indenture.
ARTICLE 5
Successor Company
SECTION 5.01.
When Company May Merge or Transfer Assets
. (a) The Company shall not,
directly or indirectly, consolidate with or merge with or into, or convey, transfer or lease all or
substantially all its assets, in one or a series of related transactions, to, any Person, unless:
(1) the resulting, surviving or transferee Person (the “Successor Company”) shall be a
corporation organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and the Successor Company (if not the Company)
shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee,
in form satisfactory to the Trustee, all the obligations of the Company under the Notes and
this Supplemental Indenture;
(2) immediately after giving effect to such transaction (and treating any Indebtedness
which becomes an obligation of the Successor Company or any Restricted Subsidiary as a
result of such transaction as having been Incurred by the Successor Company or such
Restricted Subsidiary at the time of such transaction), no Default shall have occurred and
be continuing;
(3) immediately after giving effect to such transaction, (A) the Successor Company
would be able to Incur an additional $1.00 of Indebtedness
62
under Section 4.03(a) or (B) the
Consolidated Coverage Ratio for the Successor Company would be greater than such ratio for
the Company and its Restricted Subsidiaries immediately prior to such transaction; and
(4) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Supplemental Indenture.
(b) The Successor Company shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Supplemental Indenture, and the predecessor Company,
other than in the case of a lease, shall be released from the obligation to pay the principal of
and interest on the Notes.
(c) The Company shall not permit any Subsidiary Guarantor to, directly or indirectly,
consolidate with or merge with or into, or convey, transfer or lease all or substantially all of
its assets, in one or a series of related transactions, to any Person unless:
(1) except in the case of a Subsidiary Guarantor (i) that has been disposed of in its
entirety to another Person (other than to the Company or an Affiliate of the Company),
whether through a merger, consolidation or sale of Capital Stock or assets or (ii) that, as
a result of the disposition of all or a portion of its Capital Stock, ceases to be a
Subsidiary, the resulting, surviving or transferee Person (the “Successor Guarantor”) shall
be a corporation organized and existing under the laws of the United States of America, any
State thereof, the District of Columbia or any other jurisdiction under which such
Subsidiary Guarantor was organized, and such Person (if not such Subsidiary Guarantor)
shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee,
in form satisfactory to the Trustee, all the obligations of such Subsidiary Guarantor under
its Subsidiary Guarantee;
(2) immediately after giving effect to such transaction (and treating any Indebtedness
which becomes an obligation of the Successor Guarantor or any Restricted Subsidiary as a
result of such transaction as having been Incurred by the Successor Guarantor or such
Restricted Subsidiary at the time of such transaction), no Default shall have occurred and
be continuing; and
(3) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Supplemental Indenture.
(d) Notwithstanding the foregoing:
(1) any Restricted Subsidiary may Consolidate with, merge into or transfer all or part
of its properties and assets to the Company or any Subsidiary Guarantor and
63
(2) the Company may merge with an Affiliate incorporated solely for the purpose
of reincorporating the Company in another jurisdiction within the United States of America,
any State thereof or the District of Columbia to realize tax or other benefits.
ARTICLE 6
Defaults and Remedies
SECTION 6.01.
Events of Default
. An “Event of Default” occurs if:
(1) the Company defaults in any payment of interest on any Note when the same becomes
due and payable, and such default continues for 30 days;
(2) the Company defaults in the payment of principal of any Note when the same becomes
due and payable at its Stated Maturity, upon optional redemption or required repurchase,
upon declaration of acceleration or otherwise;
(3) the Company or any Subsidiary Guarantor fails to comply with its obligations under
Section 5.01;
(4) the Company or any Restricted Subsidiary fails to comply with Section 4.03, 4.04,
4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11 or 4.12 (in each case, other than a failure to
purchase Notes) and such failure continues for 30 days after the notice from the Trustee or
the Holders specified below;
(5) the Company or any Restricted Subsidiary fails to comply with its covenants or
agreements with respect to such Notes contained in this Supplemental Indenture (other than
those referred to in clauses (1), (2), (3) or (4) above) and such failure continues for 60
days after the notice from the Trustee or the Holders specified below;
(6) the Company or any Restricted Subsidiary fails to pay any Indebtedness (other than
Indebtedness owing to the Company or a Restricted Subsidiary) within any applicable grace
period after final maturity or the acceleration of any such Indebtedness by the holders
thereof because of a default if the total amount of such Indebtedness unpaid or accelerated
exceeds $100,000,000 or its foreign currency equivalent;
(7) the Company or any Significant Subsidiary pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an involuntary
case;
64
(C) consents to the appointment of a Custodian of it or for any substantial
part of its property; or
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to insolvency;
(8) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(A) is for relief against the Company or any Significant Subsidiary in an
involuntary case;
(B) appoints a Custodian of the Company or any Significant Subsidiary or for
any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or any Significant
Subsidiary;
or any similar relief is granted under any foreign laws and the order or decree remains
unstayed and in effect for 60 days;
(9) any final and nonappealable judgment or decree (not covered by insurance) for the
payment of money in excess of $100,000,000 or its foreign currency equivalent (treating any
deductibles, self-insurance or retention as not so covered) is rendered against the Company
or a Significant Subsidiary and such final judgment or decree remains outstanding and is
not satisfied, discharged or waived within a period of 60 days following such judgment; or
(10) any Subsidiary Guarantee ceases to be in full force and effect in all material
respects (except as contemplated by the terms thereof) or any Subsidiary Guarantor denies
or disaffirms such Subsidiary Guarantor’s obligations under this Supplemental Indenture or
any Subsidiary Guarantee and such Default continues for 10 days after receipt of the notice
specified below.
The foregoing shall constitute Events of Default whatever the reason for any such Event of Default
and whether such Event of Default is voluntary or involuntary or is effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
Notwithstanding the foregoing, a default under Section 6.01(4), 6.01(5), 6.01(6), 6.01(9) or
6.01(10) (and under Section 6.01(10) only with respect to any Subsidiary Guarantor that is not a
Significant Subsidiary) shall not constitute an Event of Default until the Trustee notifies the
Company or the Holders of at least 25% in principal amount of the outstanding Notes notify the
Company and the Trustee of the default and the Company or the Subsidiary Guarantor, as applicable,
does not cure such default within any applicable time specified in Section 6.01(4), 6.01(5),
6.01(6), 6.01(9) or 6.01(10) hereof after receipt of such notice.
65
The term “Bankruptcy Law” means Title 11, United States Code, or any similar Federal or state
law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee,
liquidator, custodian or similar official under any Bankruptcy Law.
The Company shall deliver to the Trustee, within 30 days after the occurrence thereof, written
notice of any Event of Default under Section 6.01(6) or 6.01(10) and any event which with the
giving of notice or the lapse of time would become an Event of Default under Section 6.01(4),
6.01(5) or 6.01(9), its status and what action the Company is taking or proposes to take with
respect thereto.
SECTION 6.02.
Acceleration
. If an Event of Default (other than an Event of Default
specified in Section 6.01(7) or 6.01(8)) occurs and is continuing, the Trustee by notice to the
Company or the Holders of at least 25% in principal amount of the outstanding Notes by notice to
the Company and the Trustee may declare the principal of and accrued but unpaid interest on all the
Notes to be due and payable. Upon such a declaration, such principal and interest will be due and
payable immediately. If an Event of Default specified in Section 6.01(7) or 6.01(8) with respect
to the Company occurs, the principal of and interest on all the Notes shall become immediately due
and payable without any declaration or other act on the part of the Trustee or any Holders. The
Holders of a majority in principal amount of the Notes by notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except nonpayment of principal or
interest that has become due solely because of acceleration. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
SECTION 6.03.
Other Remedies
. If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal of or interest on the
Notes or to enforce the performance of any provision of the Notes or this Supplemental Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive
of any other remedy. All available remedies are cumulative.
SECTION 6.04.
Waiver of Past Defaults
. The Holders of a majority in principal amount
of the Notes by notice to the Trustee may waive an existing Default and its consequences except (a)
a Default in the payment of the principal of or interest on a Note (b) a Default arising from the
failure to redeem or purchase any Note when required pursuant to this Supplemental Indenture or (c)
a Default in respect of a provision that under Section 9.02 cannot be amended without the consent
of each Holder affected. When a Default is waived, it is deemed cured, but no such waiver shall
extend to any subsequent or other Default or impair any consequent right.
66
SECTION 6.05.
Control by Majority
. The Holders of a majority in principal amount of
the Notes may direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that conflicts with law or this Supplemental
Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder
(it being understood that the Trustee does not have an affirmative duty to ascertain whether or not
any such directions are unduly prejudicial to such Holders), subject to Section 7.01, or that would
involve the Trustee in personal liability;
provided
,
however
, that the Trustee may
take any other action deemed proper by the Trustee that is not inconsistent with such direction.
Subject to Section 7.01, if an Event of Default has occurred and is continuing, the Trustee shall
be under no obligation to exercise any of the rights or powers under this Supplemental Indenture at
the request or direction of any of the Holders, unless such Holders have offered to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense which might be
incurred by it in compliance with such request or direction.
SECTION 6.06.
Limitation on Suits
. Except to enforce the right to receive payment of
principal of or interest when due, no Holder may pursue any remedy with respect to this
Supplemental Indenture or the Notes unless:
(1) the Holder gives to the Trustee written notice stating that an Event of Default is
continuing;
(2) the Holders of at least 25% in principal amount of the outstanding Notes make a
written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and
(5) the Holders of a majority in principal amount of the Notes do not give the Trustee
a direction inconsistent with the request during such 60-day period.
A Holder may not use this Supplemental Indenture to prejudice the rights of another Holder or
to obtain a preference or priority over another Holder.
SECTION 6.07.
Rights of Holders to Receive Payment
. Notwithstanding any other
provision of this Supplemental Indenture, the right of any Holder to receive payment of principal
of and interest on the Notes held by such Holder, on or after the respective due dates expressed in
the Notes, or to bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08.
Collection Suit by Trustee
. If an Event of Default specified in
Section 6.01(1) or 6.01(2) occurs and is continuing, the Trustee may recover
67
judgment in its own name and as trustee of an express trust against the Company for the whole
amount then due and owing (together with interest on any unpaid interest to the extent lawful) and
the amounts provided for in Section 7.07.
SECTION 6.09.
Trustee May File Proofs of Claim
. The Trustee may file such proofs of
claim and other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee and the Holders allowed in any judicial proceedings relative to the Company, its
creditors or its property and, unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and
any other amounts due the Trustee under Section 7.07.
SECTION 6.10.
Priorities
. If the Trustee collects any money or property pursuant to
this Article 6, it shall pay out the money or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for amounts due and unpaid on the Notes for principal and interest
ratably, without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal and interest respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section. At least 15 days before such record date, the Company shall mail to each Holder and the
Trustee a notice that states the record date, the payment date and amount to be paid.
SECTION 6.11.
Undertaking for Costs
. In any suit for the enforcement of any right or
remedy under this Supplemental Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in
the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.07 or a suit by Holders of more than 10% in principal amount of the Notes.
SECTION 6.12.
Waiver of Stay or Extension Laws
. The Company (to the extent it may
lawfully do so) shall not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this Supplemental
Indenture; and the Company (to the extent that it
68
may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and
shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE 7
Trustee
SECTION 7.01.
Duties of Trustee
. (a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by this Supplemental
Indenture and use the same degree of care and skill in their exercise as a prudent Person would
exercise or use under the circumstances in the conduct of such Person’s own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Supplemental Indenture and no implied covenants or
obligations shall be read into this Supplemental Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of
this Supplemental Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of this Supplemental
Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act or its own wilful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a
Trust Officer unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05.
(d) Every provision of this Supplemental Indenture that in any way relates to the Trustee is
subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company.
69
(f) Money held in trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(g) No provision of this Supplemental Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to
believe that repayment of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Supplemental Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the provisions of this
Section and to the provisions of the TIA.
SECTION 7.02.
Rights of Trustee
. (a) The Trustee may rely on any document believed
by it to be genuine and to have been signed or presented by the proper person. The Trustee need
not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on the Officers’ Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it believes to be authorized or within its rights or powers;
provided
,
however
, that the Trustee’s conduct does not constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or opinion of counsel with respect
to legal matters relating to this Supplemental Indenture and the Notes, including any Opinion of
Counsel, shall be full and complete authorization and protection from liability in respect to any
action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice
or opinion of such counsel, including any Opinion of Counsel.
(f) The Trustee shall not be required to give any bond or surety in respect of the
performance of its powers and duties hereunder.
(g) The Trustee shall not be bound to ascertain or inquire as to the performance or
observance of any covenants, conditions, or agreements on the part of the Company, except as
otherwise set forth herein, but the Trustee may require of the Company full information and advice
as to the performance of the covenants, conditions and agreements contained herein.
(h) The permissive rights of the Trustee to do things enumerated in this Supplemental
Indenture shall not be construed as a duty and, with respect to such
70
permissive rights, the Trustee shall not be answerable for other than its negligence or
willful misconduct;
(i) Except for a default under Sections 6.01(1)or (2) hereof, the Trustee shall not be deemed
to have notice or be charged with knowledge of any Default or Event of Default unless a Trust
Officer shall have received from the Company or the Holders of not less than 25% in aggregate
principal amount of the Notes then outstanding written notice thereof at its address set forth in
Section 11.02 hereof, and such notice references the Notes and this Supplemental Indenture. In the
absence of any such notice, the Trustee may conclusively assume that no Default or Event of Default
exists.
(j) The Trustee shall be under no obligation to exercise any of the rights or powers vested
in it by this Supplemental Indenture at the request or direction of any of the Holders pursuant to
this Supplemental Indenture, unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
(k) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder.
(l) In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
SECTION 7.03.
Individual Rights of Trustee
. The Trustee in its individual or any
other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar, co-registrar or co-paying agent may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
SECTION 7.04.
Trustee’s Disclaimer
. The Trustee shall not be responsible for and
makes no representation as to the validity or adequacy of this Supplemental Indenture or the Notes
or the Subsidiary Guarantees, it shall not be accountable for the Company’s use of the proceeds
from the Notes, and it shall not be responsible for any statement of the Company in this
Supplemental Indenture or the Prospectus or in any other document issued in connection with the
sale of the Notes or in the Notes other than the Trustee’s certificate of authentication.
71
SECTION 7.05.
Notice of Defaults
. If a Default occurs and is continuing and is
actually known to a Trust Officer, the Trustee shall mail to each Holder notice of the Default
within the earlier of 90 days after it occurs or 30 days after it is actually known to a Trust
Officer or written notice of it is received by the Trustee. Except in the case of a Default in the
payment of principal of or interest on any Note (including payments pursuant to the redemption
provisions of such Note), the Trustee may withhold notice if and so long as a committee of its
Trust Officers in good faith determines that withholding notice is in the interests of the Holders.
SECTION 7.06.
Reports by Trustee to Holders
. At the expense of the Company, as
promptly as practicable after each January 1 beginning with January 1, 2011, and in any event prior
to March 1 in each such year, the Trustee shall mail to each Holder a brief report dated as of such
January 1 that complies with TIA § 313(a). The Trustee also shall comply with TIA § 313(b).
A copy of each report at the time of its mailing to Holders shall be filed with the SEC and
each stock exchange (if any) on which the Notes are listed. The Company agrees to notify promptly
the Trustee whenever the Notes become listed on any stock exchange and of any delisting thereof.
SECTION 7.07.
Compensation and Indemnity
. The Company shall pay to the Trustee from
time to time reasonable compensation for its services as shall be agreed to in writing from time to
time by the Company and the Trustee. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the Trustee’s agents, counsel,
accountants and experts. The Company shall indemnify the Trustee, its agents, representatives,
officers, directors, employees and attorneys against any and all loss, liability or expense
(including reasonable compensation and expenses, disbursements and advances of the Trustee’s
counsel) incurred by it in connection with the administration of this trust and the performance of
its duties or in connection with the exercise or performance of any of its rights or powers
hereunder. The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee shall provide reasonable
cooperation in such defense. The Trustee may have separate counsel and the Company shall pay the
fees and expenses of such counsel reasonably acceptable to the Company,
provided
,
however
, that the Company shall not be required to pay such fees and expenses if the
Company assumes such defense unless there is a conflict of interest between the Company and the
Trustee in connection with such defense as determined by Trustee in consultation with counsel. The
Company need not reimburse any expense or indemnify against any loss, liability or expense incurred
by the Trustee through the Trustee’s own wilful misconduct, negligence or bad faith.
72
To secure the Company’s payment obligations in this Section, the Trustee shall have a lien
prior to the Notes on all money or property held or collected by the Trustee other than money or
property held in trust to pay principal of and interest on particular Notes.
The Company’s payment obligations pursuant to this Section shall survive the resignation or
removal of the Trustee and the discharge of this Supplemental Indenture. When the Trustee incurs
expenses after the occurrence of a Default specified in Section 6.01(7) or (8) with respect to the
Company, the expenses are intended to constitute expenses of administration under the Bankruptcy
Law.
SECTION 7.08.
Replacement of Trustee
. The Trustee may resign at any time by so
notifying the Company. The Holders of a majority in principal amount of the Notes may remove the
Trustee by so notifying the Trustee and may appoint a successor Trustee. The Company shall remove
the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal
amount of the outstanding Notes and such Holders do not reasonably promptly appoint a successor
Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event
being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Supplemental Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in Section 7.07.
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee or the Holders of 10% in principal amount of the outstanding
Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, unless the Trustee’s duty to resign is
stayed as provided in TIA Section 310(b), any Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
73
Notwithstanding the replacement of the Trustee pursuant to this Section, the Company’s
obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.
SECTION 7.09.
Successor Trustee by Merger
. If the Trustee consolidates with, merges
or converts into, or transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion or consolidation to the
Trustee shall succeed to the trusts created by this Supplemental Indenture any of the Notes shall
have been authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated;
and in case at that time any of the Notes shall not have been authenticated, any successor to the
Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name
of the successor to the Trustee; and in all such cases such certificates shall have the full force
which it is anywhere in the Notes or in this Supplemental Indenture provided that the certificate
of the Trustee shall have.
SECTION 7.10.
Eligibility; Disqualification
. The Trustee shall at all times satisfy
the requirements of TIA § 310(a). The Trustee shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of condition. The
Trustee shall comply with TIA § 310(b);
provided
,
however
, that there shall be
excluded from the operation of TIA § 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA § 310(b)(1) are met.
SECTION 7.11.
Preferential Collection of Claims Against Company
. The Trustee shall
comply with TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee
who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated.
ARTICLE 8
Discharge of Supplemental Indenture; Defeasance
SECTION 8.01.
Discharge of Liability on Notes; Defeasance
.
(a) When (1) the Company delivers to the Trustee all outstanding Notes (other than Notes
replaced pursuant to Section 2.07) for cancellation or (2) all outstanding Notes have become due
and payable, whether at maturity or on a redemption date as a result of the mailing of a notice of
redemption pursuant to Article 3 hereof and, in the case of clause (2), the Company irrevocably
deposits with the Trustee funds or U.S. Government Obligations sufficient to pay at maturity or
upon redemption all outstanding Notes, including premium, if any, and interest thereon to maturity
or such redemption date (other than Notes replaced pursuant to Section 2.07), and if in either case
the Company
74
pays all other sums payable under this Supplemental Indenture by the Company, then this
Supplemental Indenture shall, subject to Section 8.01(c), cease to be of further effect. Upon
satisfaction of the above conditions, the Trustee shall acknowledge satisfaction and discharge of
this Supplemental Indenture.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any time may terminate (1) all its
obligations under the Notes and this Supplemental Indenture with respect to any Notes (“legal
defeasance option”) or (2) its obligations under Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08,
4.09, 4.10, 4.11 and 4.12 and the operation of Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8) and
6.01(9) (but, in the case of Sections 6.01(7) and (8), with respect only to Significant
Subsidiaries) and the limitations contained in Section 5.01(a)(3) (“covenant defeasance option”).
The Company may exercise its legal defeasance option notwithstanding its prior exercise of its
covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the Notes may not be
accelerated because of an Event of Default. If the Company exercises its covenant defeasance
option, payment of the Notes may not be accelerated because of an Event of Default specified in
Sections 6.01(4), 6.01(5) (with respect only to the Company’s obligations under Section 4.02),
6.01(6), 6.01(7), 6.01(8) and 6.01(9) (but, in the case of Sections 6.01(7) and (8), with respect
only to Significant Subsidiaries) or because of the failure of the Company to comply with Section
5.01(a)(3). In the event that the Company exercises its legal defeasance option or its covenant
defeasance option, each Subsidiary Guarantor will be released from all of its obligations with
respect to its Subsidiary Guarantee.
Upon satisfaction of the conditions set forth herein and upon request of the Company
accompanied by an Officers’ Certificate and an Opinion of Counsel complying with Section 11.04, the
Trustee shall acknowledge in writing the discharge of those obligations that the Company
terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company’s obligations in Sections 2.03,
2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and 7.08 and in this Article 8 shall survive until the Notes
have been paid in full. Thereafter, the Company’s obligations in Sections 7.07, 8.04 and 8.05
shall survive.
SECTION 8.02.
Conditions to Defeasance
. The Company may exercise its legal
defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee money in U.S. Dollars
in an amount sufficient or U.S. Government Obligations, the principal of and interest on
which shall be sufficient, or a combination thereof sufficient to pay the principal of,
premium (if any) and interest in respect of the Notes to redemption or maturity, as the
case may be;
(2) the Company delivers to the Trustee a certificate from a nationally recognized
investment bank, appraisal firm or firm of independent accountants
75
expressing their opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus any deposited money
without investment will provide cash at such times and in such amounts as will be
sufficient to pay principal and interest when due on all the Notes to maturity or
redemption, as the case may be;
(3) 91 days pass after the deposit is made and during the 91-day period no Default
specified in Sections 6.01(7) or (8) with respect to the Company occurs which is continuing
at the end of the period;
(4) the deposit does not constitute a default under any other material agreement
binding on the Company;
(5) the Company delivers to the Trustee an Opinion of Counsel to the effect that the
trust resulting from the deposit does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of 1940;
(6) in the case of the legal defeasance option, the Company shall have delivered to
the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (B) since the date of this
Supplemental Indenture there has been a change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders will not recognize income, gain or loss for Federal income tax purposes
as a result of such deposit and defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred; and
(7) in the case of the covenant defeasance option, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that the Holders will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such deposit and covenant
defeasance had not occurred.
Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for
the redemption of Notes at a future date in accordance with Article 3.
SECTION 8.03.
Application of Trust Money
. The Trustee shall hold in trust money or
U.S. Government Obligations deposited with it pursuant to this Article 8. It shall apply the
deposited money and the money from U.S. Government Obligations, as the case may be, through the
Paying Agent and in accordance with this Supplemental Indenture to the payment of principal of and
interest on the Notes.
SECTION 8.04.
Repayment to Company
. The Trustee and the Paying Agent shall promptly
turn over to the Company upon request any excess money or securities held by them at any time.
76
Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay
to the Company upon request any money held by them for the payment of principal or interest that
remains unclaimed for two years, and, thereafter, Holders entitled to the money must look to the
Company for payment as general creditors.
SECTION 8.05.
Indemnity for Government Obligations
. The Company shall pay and shall
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against deposited
U.S. Government Obligations or the principal and interest received on such U.S. Government
Obligations.
SECTION 8.06.
Reinstatement
. If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with this Article 8 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company’s and each Subsidiary
Guarantor’s obligations under this Supplemental Indenture and each Subsidiary Guarantee with
respect to such Notes shall be revived and reinstated as though no deposit had occurred pursuant to
this Article 8 until such time as the Trustee or Paying Agent is permitted to apply all such money
or U.S. Government Obligations in accordance with this Article 8;
provided
,
however
, that, if the Company has made any payment of interest on or principal of any Notes
because of the reinstatement of its obligations, the Company shall be subrogated to the rights of
the Holders of such Notes to receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent.
ARTICLE 9
Amendments
SECTION 9.01.
Without Consent of Holders
. The Company, the Subsidiary Guarantors and
the Trustee may amend the Indenture or the Notes without notice to or consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to provide for the assumption by a successor corporation of the obligations of the
Company or any Subsidiary Guarantor under this Supplemental Indenture in compliance with
Article 5;
(3) to provide for uncertificated Notes in addition to or in place of certificated
Notes;
provided
,
however
, that the uncertificated Notes are issued in
registered form for purposes of Section 163(f) of the Code or in a manner such that the
uncertificated Notes are described in Section 163(f)(2)(B) of the Code;
(4) to add Guarantees with respect to the Notes or to confirm and evidence the
release, termination or discharge of any such Guarantee when such release, termination or
discharge is permitted under this Supplemental Indenture;
77
(5) to add to the covenants of the Company for the benefit of the Holders or to
surrender any right or power herein conferred upon the Company;
(6) to make any change that does not adversely affect the rights of any Holder in any
material respect, subject to the provisions of this Supplemental Indenture;
(7) to comply with any requirement of the SEC in connection with qualifying, or
maintaining the qualification of, the Indenture under the TIA;
(8) to make any amendment to the provisions of this Supplemental Indenture relating to
form, authentication, transfer and legending of Notes;
provided
,
however
,
that (A) compliance with this Supplemental Indenture as so amended would not result in
Notes being transferred in violation of the Securities Act or any other applicable
securities law, and (B) such amendment does not materially affect the rights of Holders to
transfer Notes;
(9) to provide for the issuance of Additional Notes in accordance with the terms of
this Supplemental Indenture; or
(10) to convey, transfer, assign, mortgage or pledge as security for the Notes any
property or assets in accordance with Section 4.09.
For the avoidance of doubt, nothing in this Supplemental Indenture shall be construed to
require any consent of any Holder to amend or supplement the Base Indenture in any manner that does
not relate to the Notes.
After an amendment under this Section becomes effective, the Company shall mail to Holders a
notice briefly describing such amendment. The failure to give such notice to all Holders, or any
defect therein, shall not impair or affect the validity of an amendment under this Section.
SECTION 9.02.
With Consent of Holders
. (a) The Company, the Subsidiary Guarantors
and the Trustee may amend the Indenture with respect to the Notes with the written consent of the
Holders of at least a majority in principal amount of the Notes then outstanding voting as a single
class (including consents obtained in connection with a tender offer or exchange for such Notes).
Any existing Default or compliance with any provisions of the Indenture with respect to the Notes
may be waived with the consent of the Holders of at least a majority in principal amount of the
Notes then outstanding voting as a single class, subject to the restrictions of Section 6.04 and
this Section 9.02. Notwithstanding the foregoing, without the consent of each Holder affected
thereby, an amendment or waiver may not:
(1) reduce the amount of Notes whose Holders must consent to an amendment;
(2) reduce the rate of or extend the time for payment of interest on any Note;
78
(3) reduce the principal of or extend the Stated Maturity of any Note;
(4) reduce the premium payable upon the redemption of any Note or change the time at
which such Note may be redeemed pursuant to Article 3 hereto or paragraph 6 of the Notes;
(5) make any Note payable in money other than that stated in such Note;
(6) impair the right of any Holder to receive payment of principal of and interest on
such Holder’s Notes on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holder’s Notes;
(7) make any change in Section 6.04 or 6.07 or the second sentence of this Section
9.02; or
(8) make any change in, or release other than in accordance with this Supplemental
Indenture, any Subsidiary Guarantee that would adversely affect the Holders.
(b) It shall not be necessary for the consent of the Holders under this Section to approve
the particular form of any proposed amendment, but it shall be sufficient if such consent approves
the substance thereof.
After an amendment under this Section becomes effective, the Company shall mail to Holders a
notice briefly describing such amendment. The failure to give such notice to all Holders, or any
defect therein, shall not impair or affect the validity of an amendment under this Section.
SECTION 9.03.
Compliance with Trust Indenture Act
. Every amendment or supplement to
this Supplemental Indenture or the Notes shall comply with the TIA as then in effect.
SECTION 9.04.
Revocation and Effect of Consents and Waivers
. A consent to an
amendment or a waiver by a Holder of a Note shall bind the Holder and every subsequent Holder of
that Note or portion of the Note that evidences the same debt as the consenting Holder’s Note, even
if notation of the consent or waiver is not made on the Note. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder’s Note or portion of the Note
if the Trustee receives the notice of revocation before the date the amendment or waiver becomes
effective. After an amendment or waiver becomes effective, it shall bind every Holder. An
amendment or waiver becomes effective upon the execution of such amendment or waiver by the
Trustee.
The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action described above or
required or permitted to be taken pursuant to this Supplemental
79
Indenture. If a record date is fixed, then notwithstanding the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to give such consent or to revoke any consent previously
given or to take any such action, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 120 days after such record
date.
SECTION 9.05.
Notation on or Exchange of Notes
. If an amendment changes the terms of
a Note, the Trustee may require the Holder of the Note to deliver it to the Trustee. The Trustee
may place an appropriate notation on the Note regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company in exchange for
the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms.
Failure to make the appropriate notation or to issue a new Note shall not affect the validity of
such amendment.
SECTION 9.06.
Trustee To Sign Amendments
. The Trustee shall sign any amendment
authorized pursuant to this Article 9 if the amendment does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign
it. In signing such amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully protected in
relying upon, an Officers’ Certificate and an Opinion of Counsel stating that such amendment is
authorized or permitted by this Supplemental Indenture.
SECTION 9.07.
Payment for Consent
. Neither the Company nor any Affiliate of the
Company shall, directly or indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Supplemental Indenture or the Notes unless such
consideration is offered to be paid to all Holders that so consent, waive or agree to amend in the
time frame set forth in solicitation documents relating to such consent, waiver or agreement.
ARTICLE 10
Subsidiary Guarantees
SECTION 10.01.
Guarantees
. (a) Each Subsidiary Guarantor hereby irrevocably and
unconditionally guarantees, as a primary obligor and not merely as a surety, the due and punctual
payment and performance of all of the Guaranteed Obligations of such Subsidiary Guarantor, jointly
with the other Subsidiary Guarantors and severally. Each of the Subsidiary Guarantors further
agrees that its Guaranteed Obligations may be extended or renewed, in whole or in part, without
notice to or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any such Guaranteed Obligation. Each of the Subsidiary
Guarantors waives presentment to, demand of payment from and protest to the Company or any
Subsidiary Guarantor of any of its Guaranteed Obligations, and also waives notice
80
of acceptance of its guarantee, notice of protest for nonpayment and all similar formalities.
(b) Each of the Subsidiary Guarantors further agrees that its guarantee hereunder constitutes
a guarantee of payment when due and not of collection, and waives any right to require that any
resort be had by the Trustee or any Holder to any security held for the payment of its Guaranteed
Obligations or to any balance of any deposit account or credit on the books of the Trustee or any
Holder in favor of the Company.
(c) Except for termination of a Subsidiary Guarantor’s obligations hereunder or a release of
such Subsidiary Guarantor pursuant to Section 10.06, to the fullest extent permitted by applicable
law, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason, including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to any defense or set-off,
counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations of such Subsidiary Guarantor or otherwise. Without
limiting the generality of the foregoing, to the fullest extent permitted by applicable law, the
obligations of each Subsidiary Guarantor hereunder shall not be discharged or impaired or otherwise
affected by (i) the failure of the Trustee or any Holder to assert any claim or demand or to
enforce any right or remedy under the provisions of this Supplemental Indenture or otherwise; (ii)
any rescission, waiver, amendment or modification of, or any release from any of the terms or
provisions of, this Supplemental Indenture or any other agreement, including with respect to any
other Subsidiary Guarantor under this Agreement; (iii) any default, failure or delay, wilful or
otherwise, in the performance of the Guaranteed Obligations of such Subsidiary Guarantor; or (iv)
any other act or omission that may or might in any manner or to any extent vary the risk of such
Subsidiary Guarantor or otherwise operate as a discharge of such Subsidiary Guarantor as a matter
of law or equity (other than the indefeasible payment in full in cash of all the Guaranteed
Obligations of such Guarantor).
(d) To the fullest extent permitted by applicable law, each Subsidiary Guarantor waives any
defense based on or arising out of any defense of the Company or any other Subsidiary Guarantor or
the unenforceability of the Guaranteed Obligations of such Subsidiary Guarantor or any part thereof
from any cause, or the cessation from any cause of the liability of the Company or any other
Subsidiary Guarantor, other than the indefeasible payment in full in cash of all the Guaranteed
Obligations of such Subsidiary Guarantor. The Trustee may, at its election, compromise or adjust
any part of the Guaranteed Obligations, make any other accommodation with the Company or any
Subsidiary Guarantor or exercise any other right or remedy available to them against the Company or
any Subsidiary Guarantor, in each case without affecting or impairing in any way the liability of
any Subsidiary Guarantor hereunder except to the extent the Guaranteed Obligations of such
Subsidiary Guarantor have been fully and indefeasibly paid in full in cash. To the fullest extent
permitted by applicable law, each Subsidiary Guarantor waives any defense arising out of any such
election even though such election operates, pursuant to applicable law, to impair or to extinguish
any right of
81
reimbursement or subrogation or other right or remedy of such Subsidiary Guarantor against the
Company or any other Subsidiary Guarantor, as the case may be.
(e) Each of the Subsidiary Guarantors agrees that its guarantee hereunder shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of
any Guaranteed Obligation of such Subsidiary Guarantor is rescinded or must otherwise be restored
by the Trustee upon the bankruptcy or reorganization of the Company, any other Subsidiary Guarantor
or otherwise.
SECTION 10.02.
Limitation on Liability
. Any term or provision of this Supplemental
Indenture to the contrary notwithstanding, the maximum aggregate amount of the Guaranteed
Obligations guaranteed hereunder by any Subsidiary Guarantor shall not exceed the maximum amount
that can be hereby guaranteed without rendering this Supplemental Indenture, as it relates to such
Subsidiary Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent
transfer or similar laws affecting the rights of creditors generally.
SECTION 10.03.
Successors and Assigns
. This Article 10 shall be binding upon each
Subsidiary Guarantor and its successors and assigns and shall inure to the benefit of the
successors, transferees and assigns of the Trustee and the Holders and, in the event of any
transfer or assignment of rights by any Holder or the Trustee, the rights and privileges conferred
upon that party in this Supplemental Indenture and in the Notes shall automatically extend to and
be vested in such transferee or assignee, all subject to the terms and conditions of this
Supplemental Indenture.
SECTION 10.04.
No Waiver
. Neither a failure nor a delay on the part of either the
Trustee or the Holders in exercising any right, power or privilege under this Article 10 shall
operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or
further exercise of any right, power or privilege. The rights, remedies and benefits of the
Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article 10 at law, in equity, by
statute or otherwise.
SECTION 10.05.
Modification
. No modification, amendment or waiver of any provision
of this Article 10, nor the consent to any departure by any Subsidiary Guarantor therefrom, shall
in any event be effective unless the same shall be in writing and signed by the Trustee, and then
such waiver or consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on any Subsidiary Guarantor in any case shall entitle such
Subsidiary Guarantor to any other or further notice or demand in the same, similar or other
circumstances.
SECTION 10.06.
Release of Subsidiary Guarantor
. A Subsidiary Guarantor shall be
released from its obligations under this Article 10 (other than any obligation that may have arisen
under Section 10.07):
(1) upon the sale (including any sale pursuant to any exercise of remedies by a holder
of Indebtedness of the Company or of such Subsidiary
82
Guarantor) or other disposition (including by way of consolidation or merger) of a
Subsidiary Guarantor;
(2) upon the sale or disposition of all or substantially all the assets of such
Subsidiary Guarantor;
(3) upon the designation of such Subsidiary Guarantor as an Unrestricted Subsidiary in
accordance with the terms of this Supplemental Indenture;
(4) unless there is then existing an Event of Default, at such time and for so long as
any such Subsidiary Guarantor that became a Subsidiary Guarantor after the Closing Date
pursuant to Section 4.11 does not Guarantee any Indebtedness that would have required such
Subsidiary Guarantor to enter into a Supplemental Indenture pursuant to Section 4.11 and
the Company provides an Officers’ Certificate to the Trustee certifying that no such
Guarantee is outstanding and the Company elects to have such Subsidiary Guarantor released
from this Article 10;
(5) at any time during a Suspension Period if the Company
provides an Officers’ Certificate to the Trustee stating that the Company
elects to have such Subsidiary Guarantor released from this Article 10; or
(6) upon the exercise by the Company of its legal defeasance option or its covenant
defeasance option or if the Obligations of the Company under this Supplemental Indenture
and the Notes are discharged pursuant to Article 8;
provided
,
however
, that in the case of clauses (1) and (2) above, (i) such sale or
other disposition is made to a Person other than the Company or a Subsidiary of the Company, (ii)
such sale or disposition is otherwise permitted by this Supplemental Indenture and (iii) the
Company complies with its obligations under Section 4.06.
At the request of the Company, the Trustee shall execute and deliver an appropriate instrument
evidencing such release.
SECTION 10.07.
Contribution
. Each Subsidiary Guarantor that makes a payment under
its Subsidiary Guarantee shall be entitled upon payment in full of all Guaranteed Obligations under
this Supplemental Indenture to a contribution from each other Subsidiary Guarantor in an amount
equal to such other Subsidiary Guarantor’s pro rata portion of such payment based on the respective
net assets of all the Subsidiary Guarantors at the time of such payment determined in accordance
with GAAP.
ARTICLE 11
Miscellaneous
SECTION 11.01.
Trust Indenture Act Controls
. If any provision of this Supplemental
Indenture limits, qualifies or conflicts with another provision which is
83
required to be included in this Supplemental Indenture by the TIA, the required provision
shall control.
SECTION 11.02.
Notices
. Any notice or communication shall be in writing and
delivered in person or mailed by first-class mail addressed as follows:
if to the Company or any Subsidiary Guarantor:
The Goodyear Tire & Rubber Company
1144 East Market Street
Akron, Ohio 44316
fax: 330-796-2222
Attention of Treasurer
if to the Trustee:
Wells Fargo Bank, N.A.
230 West Monroe Street, Suite 2900
Chicago, Illinois 60606
fax: 312-726-2158
Attention of Wells Fargo Corporate Trust Services
The Company, any Subsidiary Guarantor or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to the Holder at the Holder’s
address as it appears on the registration books of the Registrar and shall be sufficiently given if
so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.
SECTION 11.03.
Communication by Holders with Other Holders
. Holders may communicate
pursuant to TIA § 312(b) with other Holders with respect to their rights under this Supplemental
Indenture or the Notes. The Company, any Subsidiary Guarantor, the Trustee, the Registrar and
anyone else shall have the protection of TIA § 312(c).
SECTION 11.04.
Certificate and Opinion as to Conditions Precedent
. Upon any request
or application by the Company to the Trustee to take or refrain from taking any action under this
Supplemental Indenture, the Company shall furnish to the Trustee, to the extent reasonably
requested by the Trustee:
84
(1) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions precedent, if any,
provided for in this Supplemental Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of such counsel, all such conditions precedent have been
complied with (
provided
,
however
, that such counsel may rely as to matters
of fact on Officers’ Certificates).
SECTION 11.05.
Statements Required in Certificate or Opinion
. Each certificate
(other than a certificate delivered pursuant to Section 4.13) or opinion with respect to compliance
with a covenant or condition provided for in this Supplemental Indenture shall include:
(1) a statement that the individual making such certificate or opinion has read such
covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such individual, such covenant
or condition has been complied with.
SECTION 11.06.
When Notes Disregarded
. In determining whether the Holders of the
required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company or by any Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company shall be disregarded and deemed not to be outstanding,
except that, for the purpose of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Notes which the Trustee knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Notes outstanding at the time shall be
considered in any such determination.
SECTION 11.07.
Rules by Trustee, Paying Agent and Registrar
. The Trustee may make
reasonable rules for action by or a meeting of Holders. The Registrar and the Paying Agent may
make reasonable rules for their functions.
SECTION 11.08.
Legal Holidays
. If a payment date is a Legal Holiday, payment shall
be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for
the intervening period. If a regular record date is a Legal Holiday, the record date shall not be
affected.
85
SECTION 11.09.
Governing Law
. This Supplemental Indenture and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New York without giving
effect to applicable principles of conflicts of law to the extent that the application of the law
of another jurisdiction would be required thereby.
SECTION 11.10.
No Recourse Against Others
. A director, officer, employee or
shareholder, as such, of the Company or any Subsidiary Guarantor shall not have any liability for
any obligations of the Company under the Notes or this Supplemental Indenture or of such Subsidiary
Guarantor under its Subsidiary Guarantee or this Supplemental Indenture, or for any claim based on,
in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder
shall waive and release all such liability. The waiver and release shall be part of the
consideration for the issue of the Notes.
SECTION 11.11.
Successors
. All agreements of the Company in this Supplemental
Indenture and the Notes shall bind its successors. All agreements of the Trustee in this
Supplemental Indenture shall bind its successors.
SECTION 11.12.
Multiple Originals
. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them together represent
the same agreement. One signed copy is enough to prove this Supplemental Indenture.
SECTION 11.13.
Table of Contents; Headings
. The table of contents, cross-reference
sheet and headings of the Articles and Sections of this Supplemental Indenture have been inserted
for convenience of reference only, are not intended to be considered a part hereof and shall not
modify or restrict any of the terms or provisions hereof.
SECTION 11.14.
Ratification of Base Indenture
. The Base Indenture, as supplemented by
this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental
Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and
therein provided.
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IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be duly executed as
of the date first written above.
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THE GOODYEAR TIRE & RUBBER
COMPANY
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by
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/s/
Scott H. Honnold
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Name:
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Scott H. Honnold
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Title:
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Vice President and Treasurer
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WELLS FARGO BANK, N.A., as Trustee,
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by
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/s/
Gregory S. Clarke
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Name:
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Gregory S. Clarke
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Title:
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Vice President
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SUBSIDIARY GUARANTORS
CELERON CORPORATION
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by
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/s/ Damon J. Audia
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Name:
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Damon J. Audia
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Title:
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Vice President and Treasurer
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DAPPER TIRE CO., INC.
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by
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/s/ Damon J. Audia
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Name:
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Damon J. Audia
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Title:
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Vice President and Treasurer
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DIVESTED COMPANIES HOLDING COMPANY
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By
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/s/ Todd M. Tyler
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Name:
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Todd M. Tyler
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Title:
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Vice President, Treasurer and Secretary
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By
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/s/ Randall M. Loyd
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Name:
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Randall M. Loyd
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Title:
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Vice President and Assistant Seceretary
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DIVESTED LITCHFIELD PARK
PROPERTIES, INC.
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By
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/s/ Todd M. Tyler
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Name:
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Todd M. Tyler
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Title:
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Vice President, Treasurer and Secretary
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By
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/s/ Randall M. Loyd
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Name:
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Randall M. Loyd
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Title:
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Vice President and Assistant Secretary
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GOODYEAR CANADA INC.
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By:
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/s/ D. S. Hamilton
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Name:
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Douglas S. Hamilton
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Title:
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President
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By:
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/s/ Robin M. Hunter
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Name:
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Robin M. Hunter
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Title:
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Secretary
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GOODYEAR EXPORT INC.
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By:
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/s/ Damon J. Audia
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Name:
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Damon J. Audia
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Title:
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Vice President and Treasurer
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GOODYEAR FARMS, INC.
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By:
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/s/ Damon J. Audia
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Name:
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Damon J. Audia
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Title:
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Vice President and Treasurer
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GOODYEAR INTERNATIONAL
CORPORATION
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By:
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/s/ Damon J. Audia
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Name:
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Damon J. Audia
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Title:
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Vice President and Treasurer
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GOODYEAR WESTERN HEMISPHERE
CORPORATION
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By:
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/s/ Damon J. Audia
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Name:
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Damon J. Audia
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Title:
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Vice President and Treasurer
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WHEEL ASSEMBLIES INC.
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By:
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/s/ Damon J. Audia
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Name:
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Damon J. Audia
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Title:
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Vice President and Treasurer
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WINGFOOT COMMERCIAL TIRE SYSTEMS, LLC
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By:
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/s/
Scott H. Honnold
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Name:
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Scott H. Honnold
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Title:
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Vice President and Treasurer
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WINGFOOT VENTURES EIGHT INC.
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By:
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/s/ Todd M. Tyler
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Name:
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Todd M. Tyler
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Title:
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Vice President, Treasurer and Secretary
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APPENDIX A
PROVISIONS RELATING TO NOTES
1.
Definitions
1.1
Definitions
For the purposes of this Appendix A the following terms shall have the meanings indicated
below:
“Definitive Note” means a certificated Note that does not include the Global Notes Legend.
“Depository” means The Depository Trust Company, its nominees and their respective successors.
“Global Notes Legend” means the legend set forth under that caption in Exhibit 1 to this
Supplemental Indenture.
“Securities Act” means the Securities Act of 1933, as amended.
“Securities Custodian” means the custodian with respect to a Global Note (as appointed by the
Depository) or any successor person thereto, who shall initially be the Trustee.
1.2
Other Definitions
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Term:
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Defined in Section:
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“Agent Members”
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2.1
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(c)
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“Global Note”
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2.1
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(b)
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2.
The Notes
2.1
Form and Dating
(a) The Notes issued on the date hereof will be offered and sold by the Company pursuant to
the Prospectus. Additional Notes offered after the date hereof may be offered and sold by the
Company from time to time in accordance with applicable law.
(b)
Global Notes
. Notes shall be issued initially in the form of one or more
permanent global securities in definitive, fully registered form (each, a “Global Note”) without
interest coupons and bearing the Global Notes Legend which shall be deposited on behalf of the
purchasers of Notes represented thereby with the Securities Custodian, and registered in the name
of the Depositary or a nominee of the Depositary, duly executed by the Company and authenticated by
the Trustee as provided in this
Supplemental Indenture. The aggregate principal amount of any Global Note may from time to
time be increased or decreased by adjustments made on the records of the Trustee and the Depositary
or its nominee and on the schedules thereto as hereinafter provided.
(c)
Book-Entry Provisions
. This Section 2.1(c) shall apply only to a Global Note
deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance with this Section 2.1(c) and
Section 2.2 and pursuant to an order of the Company signed by one Officer, authenticate and deliver
one or more Global Notes that (i) shall be registered in the name of the Depository for such Global
Note or Global Notes or the nominee of such Depository and (ii) shall be delivered by the Trustee
to such Depository or pursuant to such Depository’s instructions or held by the Trustee as
Securities Custodian.
Members of, or participants in, the Depository (“Agent Members”) shall have no rights under
this Supplemental Indenture with respect to any Global Note held on their behalf by the Depository
or by the Trustee as Securities Custodian or under such Global Note, and the Depository may be
treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization furnished by the
Depository or impair, as between the Depository and its Agent Members, the operation of customary
practices of such Depository governing the exercise of the rights of a holder of a beneficial
interest in any Global Note.
(d)
Definitive Notes
. Except as provided in Section 2.3 or 2.4, owners of beneficial
interests in Global Notes will not be entitled to receive physical delivery of certificated Notes.
2.2
Authentication
. The Trustee shall authenticate and make available for delivery
upon a written order of the Company signed by one Officer original Notes for original issue on the
date hereof in an aggregate principal amount of $900,000,000, and subject to the terms of this
Supplemental Indenture, Additional Notes in an unlimited aggregate principal amount. Such order
shall specify the amount of the Notes to be authenticated and the date on which the original issue
of Notes is to be authenticated. Notwithstanding anything to the contrary in this Appendix or
otherwise in this Supplemental Indenture, any issuance of Additional Notes after the Closing Date
shall be in a principal amount of at least $1,000.
2.3
Transfer and Exchange
. (a)
Transfer and Exchange of Definitive Notes
.
When Definitive Notes are presented to the Registrar with a request:
(i) to register the transfer of such Definitive Notes; or
(ii) to exchange such Definitive Notes for an equal principal amount of Definitive
Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met;
provided
,
however
, that the Definitive
Notes surrendered for transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the
2
Company and the Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
(b)
Restrictions on Transfer of a Definitive Note for a Beneficial Interest in a Global
Note
. A Definitive Note may not be exchanged for a beneficial interest in a Global Note except
upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a Definitive
Note, duly endorsed or accompanied by a written instrument of transfer in form reasonably
satisfactory to the Company and the Registrar, together with written instructions directing the
Trustee to make, or to direct the Securities Custodian to make, an adjustment on its books and
records with respect to the applicable Global Note to reflect an increase in the aggregate
principal amount of the Notes represented by such Global Note, such instructions to contain
information regarding the Depository account to be credited with such increase, then the Trustee
shall cancel such Definitive Note and cause, or direct the Securities Custodian to cause, in
accordance with the standing instructions and procedures existing between the Depository and the
Securities Custodian, the aggregate principal amount of Notes represented by such Global Note to be
increased by the aggregate principal amount of the Definitive Note to be exchanged and shall credit
or cause to be credited to the account of the Person specified in such instructions a beneficial
interest in such Global Note equal to the principal amount of the Definitive Note so canceled. If
no applicable Global Notes are then outstanding and the applicable Global Note has not been
previously exchanged for certificated securities pursuant to Section 2.4, the Company shall issue
and the Trustee shall authenticate, upon written order of the Company in the form of an Officers’
Certificate, a new applicable Global Note in the appropriate principal amount.
(c)
Transfer and Exchange of Global Notes
. The transfer and exchange of Global Notes
or beneficial interests therein shall be effected through the Depository in accordance with this
Supplemental Indenture (including applicable restrictions on transfer set forth herein, if any) and
the procedures of the Depository therefor. A transferor of a beneficial interest in a Global Note
shall deliver a written order given in accordance with the Depository’s procedures containing
information regarding the participant account of the Depository to be credited with a beneficial
interest in such Global Note or another Global Note and such account shall be credited in
accordance with such order with a beneficial interest in the applicable Global Note and the account
of the Person making the transfer shall be debited by an amount equal to the beneficial interest in
the Global Note being transferred.
(i) If the proposed transfer is a transfer of a beneficial interest in one Global Note
to a beneficial interest in another Global Note, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of the Global Note to which
such interest is being transferred in an amount equal to the principal amount of the
interest to be so transferred, and the Registrar shall
reflect on its books and records the date and a corresponding decrease in the
principal amount of the Global Note from which such interest is being transferred.
(ii) Notwithstanding any other provisions of this Appendix (other than the provisions
set forth in Section 2.4), a Global Note may not be transferred as a
3
whole except by the
Depository to a nominee of the Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository, or by the Depository or any such nominee
to a successor Depository or a nominee of such successor Depository.
(d)
Cancellation or Adjustment of Global Note
. At such time as all beneficial
interests in a Global Note have either been exchanged for Definitive Notes, transferred, redeemed,
repurchased or canceled, such Global Note shall be returned by the Depository to the Trustee for
cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for Definitive Notes, transferred in exchange
for an interest in another Global Note, redeemed, repurchased or canceled, the principal amount of
Notes represented by such Global Note shall be reduced and an adjustment shall be made on the
Schedule of Increases and Decreases on such Global Note and on the books and records of the Trustee
(if it is then the Securities Custodian for such Global Note) with respect to such Global Note, by
the Trustee or the Securities Custodian, to reflect such reduction.
(e)
Obligations with Respect to Transfers and Exchanges of Notes
.
(i) To permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate, Definitive Notes and Global Notes at the Registrar’s
request.
(ii) No service charge shall be made for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax, assessments,
or similar governmental charge payable in connection therewith (other than any such
transfer taxes, assessments or similar governmental charge payable upon exchanges pursuant
to Sections 2.06, 3.06, 4.06, 4.08 and 9.05 of this Supplemental Indenture).
(iii) Prior to the due presentation for registration of transfer of any Note, the
Company, the Trustee, the Paying Agent or the Registrar may deem and treat the person in
whose name a Note is registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Note and for all other purposes
whatsoever, whether or not such Note is overdue, and none of the Company, the Trustee, the
Paying Agent or the Registrar shall be affected by notice to the contrary.
(iv) All Notes issued upon any transfer or exchange pursuant to the terms of this
Supplemental Indenture shall evidence the same debt and shall be entitled to the same
benefits under this Supplemental Indenture as the Notes surrendered upon such transfer or
exchange.
(f)
No Obligation of the Trustee
.
(i) The Trustee shall have no responsibility or obligation to any beneficial owner of
a Global Note, a member of, or a participant in the Depository or any other Person with
respect to the accuracy of the records of the Depository
4
or its nominee or of any
participant or member thereof, with respect to any ownership interest in the Notes or with
respect to the delivery to any participant, member, beneficial owner or other Person (other
than the Depository) of any notice (including any notice of redemption or repurchase) or
the payment of any amount, under or with respect to such Notes. All notices and
communications to be given to the Holders and all payments to be made to Holders under the
Notes shall be given or made only to the registered Holders (which shall be the Depository
or its nominee in the case of a Global Note). The rights of beneficial owners in any
Global Note shall be exercised only through the Depository, subject to the applicable rules
and procedures of the Depository. The Trustee may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as
to compliance with any restrictions on transfer imposed under this Supplemental Indenture
or under applicable law with respect to any transfer of any interest in any Note (including
any transfers between or among the Depository, participants, members or beneficial owners
in any Global Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when expressly
required by, the terms of this Supplemental Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
2.4
Definitive Notes
(a) A Global Note deposited with the Depository or with the Trustee as Securities Custodian
pursuant to Section 2.1 shall be transferred to the beneficial owners thereof in the form of
Definitive Notes in an aggregate principal amount equal to the principal amount of such Global
Note, in exchange for such Global Note, only if such transfer complies with Section 2.3 and (i) the
Depository notifies the Company that it is unwilling or unable to continue as a Depository for such
Global Note or if at any time the Depository ceases to be a “clearing agency” registered under the
Exchange Act and, in either case, a successor Depository is not appointed by the Company within 120
days of such notice or after the Company becomes aware of such cessation, or (ii) the Depository so
requests, or any beneficial owner thereof requests such exchange in writing delivered through the
Depository in either case, following an Event of Default under this Supplemental Indenture or (iii)
the Company, in its sole discretion, notifies the Trustee in writing that it elects to cause the
issuance of certificated Notes under this Supplemental Indenture.
(b) Any Global Note that is transferable to the beneficial owners thereof pursuant to this
Section 2.4 shall be surrendered by the Depository to the Trustee, to be so
transferred, in whole or from time to time in part, without charge, and the Trustee shall
authenticate and deliver, upon such transfer of each portion of such Global Note, an equal
aggregate principal amount of Definitive Notes of authorized denominations. Any portion of a
Global Note transferred pursuant to this Section shall be executed,
5
authenticated and delivered
only in denominations of $1,000 and any integral multiple thereof and registered in such names as
the Depository shall direct.
(c) Subject to the provisions of Section 2.4(b), the registered Holder of a Global Note may
grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members to take any action which a Holder is entitled to take under this
Supplemental Indenture or the Notes.
(d) In the event of the occurrence of any of the events specified in Section 2.4(a)(i), (ii)
or (iii), the Company will promptly make available to the Trustee a reasonable supply of Definitive
Notes in fully registered form without interest coupons.
6
EXHIBIT 1
[FORM OF FACE OF SECURITY]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[OID Legend]
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT. THE
ISSUE PRICE OF EACH SECURITY IS $[ ] PER $1,000 OF PRINCIPAL AMOUNT, THE ISSUE DATE IS [ ], [
] AND THE INITIAL YIELD TO MATURITY OF THIS SECURITY IS [ ]%.
8.250% Senior Note due 2020
CUSIP No.
ISIN No.
THE GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation, promises to pay to Cede & Co., or
registered assigns, the principal sum [of $ ] [listed on the Schedule of Increases or Decreases in
Global Note attached hereto]
1
on [
•
], 20[
•
].
Interest Payment Dates: February 15 and August 15, commencing February 15, 2011
Record Dates: February 1 or August 1
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1
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|
Use the Schedule of Increases and Decreases
language if Note is in Global Form.
|
2
Additional provisions of this Note are set forth on the other side of this Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly executed.
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THE GOODYEAR TIRE & RUBBER COMPANY,
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by
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Name:
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Title:
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by
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Name:
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Title:
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Dated:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
WELLS FARGO BANK, N.A.,
as Trustee, certifies that this is one of the Notes referred to in the Indenture.
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*
/
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|
If the Note is to be issued in global form, add the Global Notes Legend and
the attachment from Exhibit 1 captioned “TO BE ATTACHED TO GLOBAL NOTES — SCHEDULE OF
INCREASES OR DECREASES IN GLOBAL NOTE”.
|
3
[FORM OF REVERSE SIDE OF SECURITY]
8.250% Senior Note due 2020
1.
Interest
THE GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation (such corporation, and its successors
and assigns under the Indenture hereinafter referred to, being herein called the “Company”),
promises to pay interest on the principal amount of this Note at the rate per annum shown above.
The Company shall pay interest semi-annually on February 15 and August 15 of each year, commencing
on February 15, 2011. Interest on the Notes shall accrue from the most recent date to which
interest has been paid or duly provided for or, if no interest has been paid or duly provided for,
from August 13, 2010 until the principal hereof is due. Interest shall be computed on the basis of
a 360-day year of twelve 30-day months. The Company shall pay interest on overdue principal at the
rate borne by the Notes, and it shall pay interest on overdue installments of interest at the same
rate to the extent lawful.
2.
Method of Payment
The Company shall pay interest on the Notes (except defaulted interest) to the Persons who are
registered Holders at the close of business on February 1 or August 1 next preceding the interest
payment date even if Notes are canceled after the record date and on or before the interest payment
date. Holders must surrender Notes to a Paying Agent to collect principal payments. The Company
shall pay principal, premium, if any, and interest in money of the United States of America that at
the time of payment is legal tender for payment of public and private debts. Payments in respect
of the Notes represented by a Global Note (including principal, premium, if any, and interest)
shall be made by wire transfer of immediately available funds to the accounts specified by The
Depository Trust Company or any successor Depository. The Company will make all payments in
respect of a certificated Note (including principal, premium, if any, and interest), at the office
of the Paying Agent, except that, at the option of the Company, payment of interest may be made by
mailing a check to the registered address of each Holder thereof;
provided
,
however
, that payments on a Note will be made by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States of America if such Holder has elected
payment by wire transfer by providing written wire instructions to the Trustee or the Paying Agent
on or after the Closing Date but, in any event, no later than 30 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in its discretion).
3.
Paying Agent and Registrar
Initially, Wells Fargo Bank, N.A., a national banking association (the “Trustee”), will act as
Paying Agent and Registrar. The Company may appoint and change any Paying Agent or Registrar
without notice. The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent or Registrar.
4.
Indenture
The Company issued the Notes under an Indenture dated as of August 13, 2010 (the “Base
Indenture”), as supplemented by the First Supplemental Indenture, dated as of August 13, 2010 (the
“Supplemental Indenture”, and, together with the Base Indenture, the “Indenture”), among the
Company, the Subsidiary Guarantors and the Trustee. The terms of the Notes include those stated in
the Supplemental Indenture and those made part of the Supplemental Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date of the
Supplemental Indenture (the “TIA”). Terms defined in the Supplemental Indenture and not defined
herein have the meanings ascribed thereto in the Supplemental Indenture. The Notes are subject to
all terms and provisions of the Supplemental Indenture, and Holders (as defined in the Supplemental
Indenture) are referred to the Supplemental Indenture and the TIA for a statement of such terms and
provisions.
The Notes are senior unsecured obligations of the Company. This Note is one of the Notes
referred to in the Supplemental Indenture. The Supplemental Indenture imposes certain limitations
on the ability of the Company and its Restricted Subsidiaries to, among other things, make certain
Investments and other Restricted Payments, pay dividends and other distributions, incur
Indebtedness, enter into consensual restrictions upon the payment of certain dividends and
distributions by such Restricted Subsidiaries, sell assets, including shares of capital stock of
Restricted Subsidiaries, enter into or permit certain transactions with Affiliates and create or
incur Liens. The Supplemental Indenture also imposes limitations on the ability of the Company and
each Subsidiary Guarantor to consolidate or merge with or into any other Person or convey, transfer
or lease all or substantially all of its property.
Following the first day (the “Suspension Date”) that (i) the Notes have an Investment Grade
Rating from both of the Rating Agencies, and (ii) no Default with respect to the Notes has occurred
and is continuing under the Supplemental Indenture, the Company and its Restricted Subsidiaries
will not be subject to Sections 4.03, 4.04, 4.05, 4.06, 4.07, 4.11 and Section 5.01(a)(3)
(collectively, the “Suspended Covenants”) of the Supplemental Indenture with respect to the Notes.
In addition, the Company may elect to suspend the Subsidiary Guarantees with respect to the Notes.
Upon and following any Reversion Date, the Company and its Restricted Subsidiaries shall again be
subject to the Suspended Covenants with respect to the Notes with respect to future events and the
Subsidiary Guarantees with respect to the Notes shall be reinstated.
5.
Guarantee
The payment by the Company of the principal of, and premium and interest on, the Notes is
fully and unconditionally guaranteed on a joint and several senior unsecured basis by each
Subsidiary Guarantor to the extent set forth in the Supplemental Indenture. The precise terms of
the Guarantee of the Notes and the Guaranteed
2
Obligations of the Subsidiary Guarantors with respect to the Notes are expressly set forth in
Article 10 of the Supplemental Indenture.
6.
Optional Redemption
Except as set forth below in this paragraph 6 the Company will not be entitled to redeem the
Notes.
On or after August 15, 2015, the Company may redeem the Notes, in whole or in part, on not
less than 30 nor more than 60 days’ prior notice, at the redemption prices (expressed as
percentages of principal amount), plus accrued and unpaid interest to the redemption date (subject
to the right of Holders of record on the relevant record date to receive interest due on the
relevant interest payment date), if redeemed during the 12 month period commencing on August 15 of
the years set forth below:
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Redemption
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Year
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Price
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2015
|
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104.125
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%
|
|
2016
|
|
|
102.750
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%
|
|
2017
|
|
|
101.375
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%
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|
2018 and thereafter
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100.000
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%
|
In addition, prior to August 15, 2013, the Company may, on one or more occasions, redeem up to
a maximum of 35% of the original aggregate principal amount of the Notes (calculated giving effect
to any issuance of Additional Notes) with the Net Cash Proceeds of one or more Equity Offerings by
the Company, at a redemption price equal to 108.250% of the principal amount thereof, plus accrued
and unpaid interest to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment date);
provided
,
however
, that (1) at least 65% of the original aggregate principal amount
of the Notes (calculated giving effect to any issuance of Additional Notes) remains outstanding
after giving effect to any such redemption and (2) any such redemption by the Company is made
within 90 days after the closing of such Equity Offering and is made in accordance with certain
procedures set forth in the Supplemental Indenture.
In addition, prior to August 15, 2015, the Company may at its option redeem the Notes, in
whole or in part, at a redemption price equal to 100% of the principal amount of the Notes plus the
Applicable Premium as of, and accrued and unpaid interest to, the redemption date (subject to the
right of Holders on the relevant record date to receive interest due on the relevant interest
payment date). Notice of such redemption must be mailed by first-class mail to each Holder’s
registered address, not less than 30 nor more than 60 days prior to the redemption date.
“Applicable Premium” means, with respect to a Note at any redemption date, the greater of (1)
1.00% of the principal amount of such Note and (2) the excess of
3
(A) the present value at such redemption date of (i) the redemption price of such Note on
August 15, 2015 (such redemption price being described in the first paragraph in this section
exclusive of any accrued interest), plus (ii) all required remaining scheduled interest payments
due on such Note through August 15, 2015 (but excluding accrued and unpaid interest to the
redemption date), computed using a discount rate equal to the Adjusted Treasury Rate, over (B) the
principal amount of such note on such redemption date.
“Adjusted Treasury Rate” means, with respect to any redemption date, (1) the yield, under the
heading which represents the average for the immediately preceding week, appearing in the most
recently published statistical release designated “H.15(519)” or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant maturity under the
caption “Treasury Constant Maturities”, for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after August 15, 2015, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue shall be
determined and the Adjusted Treasury Rate shall be interpolated or extrapolated from such yields on
a straight line basis, rounding to the nearest month) or (2) if such release (or any successor
release) is not published during the week preceding the calculation date or does not contain such
yields, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury
Price for such redemption date, in each case calculated on the third Business Day immediately
preceding the redemption date, in each case of (1) and (2), plus 0.50%.
“Comparable Treasury Issue” means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the Notes from the
redemption date to August 15, 2015 that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of U.S. Dollar denominated
corporate debt securities of a maturity most nearly equal to August 15, 2015.
“Comparable Treasury Price” means, with respect to any redemption date, if clause (2) of the
Adjusted Treasury Rate is applicable, the average of three, or if not possible, such lesser number
as is obtained by the Company, Reference Treasury Dealer Quotations for such redemption date.
“Quotation Agent” means one of the Reference Treasury Dealers selected by the Company.
“Reference Treasury Dealer” means Deutsche Bank Securities Inc. and its successors and assigns
and two other nationally recognized investment banking firms selected by the Company that are
primary U.S. Government securities dealers.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the
4
Company, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case
as a percentage of its principal amount, quoted in writing to the Company by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day immediately preceding
such redemption date.
7.
Sinking Fund
The Notes are not subject to any sinking fund.
8.
Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30 days but not more than 60
days before the redemption date to each Holder of Notes to be redeemed at his, her or its
registered address. Notes in denominations larger than $1,000 may be redeemed in part but only in
whole multiples of $1,000. If money sufficient to pay the redemption price of and accrued and
unpaid interest on all Notes (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Notes (or such portions
thereof) called for redemption.
9.
Repurchase of Notes at the Option of Holders
Upon a Change of Control, any Holder of Notes will have the right, subject to certain
conditions specified in the Supplemental Indenture, to cause the Company to repurchase all or any
part of the Notes of such Holder at a purchase price equal to 101% of the principal amount of the
Notes to be repurchased plus accrued and unpaid interest to the date of repurchase (subject to the
right of Holders of record on the relevant record date to receive interest due on the relevant
interest payment date that is on or prior to the date of purchase) as provided in, and subject to
the terms of, the Supplemental Indenture.
In accordance with Section 4.06 of the Supplemental Indenture, the Company will be required to
offer to purchase Notes upon the occurrence of certain events.
10.
Denominations; Transfer; Exchange
The Notes are in registered form without coupons in denominations of $1,000 and whole
multiples of $1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with
the Supplemental Indenture. Upon any transfer or exchange, the Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements or transfer documents and
to pay any taxes required by law or permitted by the Supplemental Indenture. The Registrar need
not register the transfer or exchange of any Notes selected for redemption (except, in the case of
a Note to be redeemed in part, the portion of the Note not to be redeemed) or to transfer or
exchange any Notes for a period of 15 days prior to a selection of Notes to be redeemed or for a
period of 15 days prior to an interest payment date.
5
11.
Persons Deemed Owners
Except as provided in paragraph 2 hereof, the registered Holder of this Note may be treated as
the owner of it for all purposes.
12.
Unclaimed Money
If money for the payment of principal or interest remains unclaimed for two years, the Trustee
and the Paying Agent shall pay the money back to the Company at its written request unless an
abandoned property law designates another Person. After any such payment, Holders entitled to the
money must look to the Company for payment as general creditors and the Trustee and the Paying
Agent shall have no further liability with respect to such monies.
13.
Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate some of or all its
obligations under the Notes and the Supplemental Indenture with respect to the Notes if the Company
deposits with the Trustee money or U.S. Government Obligations for the payment of principal of, and
interest on the Notes to redemption, or maturity, as the case may be.
14.
Amendment, Waiver
Subject to certain exceptions set forth in the Supplemental Indenture, (i) the Indenture with
respect to the Notes or the Notes may be amended with the written consent of the Holders of at
least a majority in aggregate principal amount of all of the Notes then outstanding voting as a
single class and (ii) any Default with respect to the Notes may be waived with the written consent
of the Holders of at least a majority in principal amount of all of the Notes then outstanding
voting as a single class.
Subject to certain exceptions set forth in the Supplemental Indenture, without the consent of
any Holder of Notes, the Company, the Subsidiary Guarantors and the Trustee may amend the Indenture
with respect to the Notes (i) to cure any ambiguity, omission, defect or inconsistency; (ii) to
provide for the assumption by a successor corporation of the obligations of the Company or any
Subsidiary Guarantor under the Supplemental Indenture in compliance with Article 5 of the
Supplemental Indenture; (iii) to provide for uncertificated Notes in addition to or in place of
certificated Notes; (iv) to add Guarantees with respect to the Notes or to confirm and evidence the
release, termination or discharge of any such Guarantee when such release, termination or discharge
is permitted under the Supplemental Indenture; (v) to add additional covenants for the benefit of
the Holders of the Notes or to surrender rights and powers conferred on the Company; (vi) to make
any change that does not adversely affect the rights of any Holder of Notes in any material
respect, subject to the provisions of the Supplemental Indenture; (vii) to comply with the
requirements of the SEC in order to effect or maintain the qualification of the Indenture under the
TIA; (viii) to make any amendment to provisions of the Supplemental Indenture relating to form,
authentication, transfer and legending of the Notes;
provided
,
however
, that
compliance with the Supplemental
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Indenture as so amended would not result in Notes being transferred in violation of the
Securities Act; (ix) to provide for the issuance of Additional Notes in accordance with the terms
of the Supplemental Indenture; or (x) to convey, transfer, assign, mortgage or pledge as security
for the Notes any property or assets in accordance with Section 4.09 of the Supplemental Indenture.
15.
Defaults and Remedies
An “Event of Default” with respect to the Notes occurs if: (i) the Company defaults in any
payment of interest on any Note when the same becomes due and payable, and such default continues
for 30 days; (ii) the Company defaults in the payment of principal of any Note when the same
becomes due and payable at its Stated Maturity, upon optional redemption or required repurchase,
upon declaration of acceleration or otherwise; (iii) the Company or any Subsidiary Guarantor fails
to comply with its obligations under Section 5.01 of the Supplemental Indenture; (iv) the Company
or any Restricted Subsidiary fails to comply with Section 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09,
4.10, 4.11 or 4.12 of the Supplemental Indenture (in each case, other than a failure to purchase
Notes) and such failure continues for 30 days after the notice from the Trustee or the Holders
specified below; (v) the Company or any Restricted Subsidiary fails to comply with its covenants or
agreements contained in the Notes or the Supplemental Indenture (other than those referred to in
clauses (i), (ii), (iii) or (iv) above) and such failure continues for 60 days after the notice
from the Trustee or the Holders specified below; (vi) the Company or any Restricted Subsidiary
fails to pay any Indebtedness (other than Indebtedness owing to the Company or a Restricted
Subsidiary) within any applicable grace period after final maturity or the acceleration of any such
Indebtedness by the holders thereof because of a default if the total amount of such Indebtedness
unpaid or accelerated exceeds $100,000,000 or its foreign currency equivalent; (vii) certain events
of bankruptcy, insolvency or reorganization of the Company or a Significant Subsidiary under
Sections 6.01(7) and (8) of the Supplemental Indenture; (viii) any final and nonappealable judgment
or decree (not covered by insurance) for the payment of money in excess of $100,000,000 or its
foreign currency equivalent (treating any deductibles, self-insurance or retention as not so
covered) is rendered against the Company or a Significant Subsidiary and such final judgment or
decree remains outstanding and is not satisfied, discharged or waived within a period of 60 days
following such judgment; or (ix) any Subsidiary Guarantee with respect to the Notes ceases to be in
full force and effect in all material respects (except as contemplated by the terms thereof) or any
Subsidiary Guarantor denies or disaffirms such Subsidiary Guarantor’s obligations under the
Supplemental Indenture or any Subsidiary Guarantee and such Default continues for 10 days after
receipt of the notice specified below.
The foregoing shall constitute Events of Default whatever the reason for any such Event of
Default and whether such Event of Default is voluntary or involuntary or is effected by operation
of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body.
Notwithstanding the foregoing, a default under clause (iv), (v), (vi), (viii) or (ix) (only
with respect to any Subsidiary Guarantor that is not a Significant Subsidiary)
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shall not constitute an Event of Default until the Trustee notifies the Company or the Holders
of at least 25% in principal amount of the outstanding Notes notify the Company and the Trustee of
the default and the Company or the Subsidiary Guarantor, as applicable, does not cure such default
within any applicable time specified in clause (iv), (v), (vi), (viii) or (ix) hereof after receipt
of such notice.
If an Event of Default occurs (other than an Event of Default relating to certain events of
bankruptcy, insolvency or reorganization of the Company) and is continuing, the Trustee or the
Holders of at least 25% in principal amount of all of the outstanding Notes may declare the
principal of and accrued but unpaid interest on all the Notes to be due and payable. If an Event
of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company
occurs, the principal of and interest on all the Notes shall become immediately due and payable
without any declaration or other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount of the outstanding Notes may rescind
any such acceleration with respect to the Notes and its consequences.
16.
Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal
with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were not Trustee.
17.
No Recourse Against Others
A director, officer, employee or shareholder, as such, of the Company or any Subsidiary
Guarantor shall not have any liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Note, each Holder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Notes.
18.
Authentication
This Note shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent) manually signs the certificate of authentication on the other side of this
Note.
19.
Abbreviations
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM
(=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
8
20.
Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
21.
CUSIP Numbers and ISINs
The Company has caused CUSIP numbers and ISINs to be printed on the Notes and has directed the
Trustee to use CUSIP numbers and ISINs in notices as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as contained in any
notice or notice of redemption and reliance may be placed only on the other identification numbers
placed thereon.
The Company will furnish to any Holder of Notes upon written request and without charge to the
Holder a copy of the Indenture which has in it the text of this Note.
9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the
Company. The agent may substitute another to act for him.
Sign exactly as your name appears on the other side of this Note. Signature must be guaranteed by
a participant in a recognized signature guaranty medallion program or other signature guarantor
acceptable to the Trustee.
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $[ ]. The following increases or
decreases in this Global Note have been made:
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Signature of
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Principal amount of
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authorized
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this Global Note
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signatory of
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Amount of decrease
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Amount of increase
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following such
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Trustee or
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Date of
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in Principal Amount
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in Principal Amount
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decrease or
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Securities
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Exchange
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of this Global Note
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of this Global Note
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increase
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Custodian
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.06
(Asset Sale) or 4.08 (Change of Control) of the Supplemental Indenture, check the box:
Asset Sale
o
Change of Control
o
If you want to elect to have only part of this Note purchased by the Company pursuant to
Section 4.06 or 4.08 of the Supplemental Indenture, state the amount ($1,000 or an integral
multiple thereof):
$
Date:
Your Signature:
(Sign exactly as your name appears on the other side of the Note)
Signature Guarantee:
Signature must be guaranteed by a participant in a recognized signature guaranty medallion program
or other signature guarantor acceptable to the Trustee
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EXHIBIT 2
[FORM OF SUPPLEMENTAL INDENTURE]
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of
, among [GUARANTOR] (the “New Guarantor”), a subsidiary
of THE GOODYEAR TIRE & RUBBER COMPANY (or its successor), an Ohio
corporation (the “Company”), the subsidiary guarantors listed on the
signature pages hereto (the “Subsidiary Guarantors”) and WELLS FARGO BANK,
N.A., a national banking association, as trustee under the indenture
referred to below (the “Trustee”).
W I T N E S S E T H :
WHEREAS the Company and the Subsidiary Guarantors (the “Existing Guarantors”) have heretofore
executed and delivered to the Trustee the first supplemental indenture dated as of August 13, 2010
(the “First Supplemental Indenture”) to the Indenture dated as of August 13, 2010 (the “Base
Indenture”, and together with the First Supplemental Indenture, the “Indenture”), providing for the
issuance of the Company’s 8.250% Senior Notes due 2020 (the “Notes”), initially in the aggregate
principal amount of $900,000,000.
WHEREAS Section 4.11 of the First Supplemental Indenture provides that under certain
circumstances the Company is required to cause the New Guarantor to execute and deliver to the
Trustee a supplemental indenture pursuant to which the New Guarantor shall unconditionally
guarantee all the Company’s obligations under the Notes pursuant to a Subsidiary Guarantee on the
terms and conditions set forth herein; and
WHEREAS pursuant to Section 9.01 of the First Supplemental Indenture, the Trustee, the Company
and the Existing Guarantors are authorized to execute and deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the New Guarantor, the Company, the
Existing Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit
of the holders of the Notes as follows:
1.
Agreement to Guarantee
. The New Guarantor hereby agrees, jointly and severally
with all Existing Guarantors, to unconditionally guarantee the Company’s obligations under the
Notes on the terms and subject to the conditions set forth in Article 10 of the First Supplemental
Indenture and to be bound by all other applicable provisions of the Indenture with respect to the
Notes and of the Notes themselves.
2.
Ratification of Indenture; Supplemental Indentures Part of Indenture
. Except as
expressly amended hereby, the Indenture with respect to the Notes
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only is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall
remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture
with respect to the Notes only for all purposes, and every holder of Notes heretofore or hereafter
authenticated and delivered shall be bound hereby.
3.
Governing Law
. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4.
Trustee Makes No Representation
. The Trustee makes no representation as to the
validity or sufficiency of this Supplemental Indenture.
5.
Counterparts
. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
6.
Effect of Headings
. The Section headings herein are for convenience only and
shall not effect the construction thereof.
2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.
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[NEW GUARANTOR],
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by
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Name:
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Title:
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THE GOODYEAR TIRE & RUBBER COMPANY,
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by
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Name:
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Title:
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[EXISTING GUARANTORS],
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by
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Name:
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Title:
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WELLS FARGO BANK, N.A., as Trustee,
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by
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Name:
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Title:
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3
