Exhibit 1.1
EXECUTION VERSION
The Goodyear
Tire & Rubber Company
5.000% Senior Notes due 2026
UNDERWRITING AGREEMENT
May
10, 2016
Citigroup Global Markets Inc.
As Representative
of the Several Underwriters
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
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 5.000% Senior Notes due 2026 (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 the Indenture dated as of August 13, 2010 (the “
Base Indenture
”), as amended and
supplemented by the Fifth Supplemental Indenture to be dated as of May 13, 2016 (the “
Fifth Supplemental Indenture
” and, together with the Base Indenture, 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.
R
EPRESENTATIONS
AND
W
ARRANTIES
OF
THE
C
OMPANY
AND
THE
S
UBSIDIARY
G
UARANTORS
.
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. 333-207723) 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 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 2:35 p.m. (New York time) on May 10, 2016 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 its respective jurisdiction 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
4
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. The interactive data in eXtensible Business Reporting
Language included or incorporated by reference in each of the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the
Commission’s rules and published guidance applicable thereto.
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(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 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; (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; and (v) the interactive data in eXtensible Business Reporting Language incorporated or included in the Registration Statement, the General Disclosure Package and the Prospectus is
prepared in accordance with the Commission’s rules and published guidance applicable thereto.
(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,
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(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 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
7
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 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, the Base Indenture and the Fifth Supplemental 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 Base Indenture and the Fifth Supplemental Indenture have each been duly authorized by the Company and each of the Subsidiary
Guarantors and, when the Fifth Supplemental Indenture has been duly executed and delivered in accordance with its terms by each of the parties thereto, the Indenture will constitute a valid and legally binding agreement of
8
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 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
9
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.
(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 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 a 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, (i) 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 (ii) 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
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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 $221 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 the last date the plans were
measured for year-end disclosure purposes, exceed by more than $236 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 United States Foreign Corrupt Practices Act of 1977, as amended, or other anti-bribery or anti-corruption laws in effect in jurisdictions in which the
Company and its subsidiaries do business; 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.
11
(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 General Disclosure Package and 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. 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) The Company and its subsidiaries are not knowingly engaged in any activity that would reasonably be expected to result in the
Company or any of its subsidiaries being listed on any Sanctions-related list of designated persons maintained by the Office of Foreign Assets Control (and any successor performing similar functions) of the U.S. Department of the Treasury
(“
OFAC
”), the U.S. Department of State, the United Nations Security Council or the European Union (collectively, the “
Sanctions-related Lists
”). None of the Company or any of its subsidiaries or, to the knowledge of
the Company, any of their respective directors, officers or employees that will act for the Company or any of its subsidiaries in any capacity in connection with the offering of the Securities contemplated hereby, is listed on any of the
Sanctions-related
12
Lists. The Company will not use, and will procure that its subsidiaries will not use, the proceeds of the offering of the Securities contemplated hereby for the purpose of funding any
activity, business or transaction (i) of or with (a) any person listed in any of the Sanctions-related Lists, (b) any person organized or resident in a country, region or territory which is itself the subject or target of any comprehensive Sanctions
(solely consisting of, at the time of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria) (each, a “
Sanctioned Country
”) or (c) any person owned 50% or more by any person or persons described in the foregoing clauses
(i)(a) or (i)(b), or (ii) in any Sanctioned Country, in each case of the foregoing clauses (i) and (ii), to the extent such activity, business or transaction would be prohibited by Sanctions if conducted by a person organized or formed under the
laws of the United States. The term “
Sanctions
” as used herein means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by OFAC, the U.S. Department of State, the United
Nations Security Council or the European Union.
2.
P
URCHASE
, S
ALE
AND
D
ELIVERY
OF
THE
S
ECURITIES
.
(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 98.75% of the principal amount thereof plus accrued interest, if any, from May 13, 2016 to the Closing Date, subject to adjustments in
accordance with Section 9 hereof.
(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 Citigroup Global Markets Inc. on behalf of the
Underwriters, and any such action taken by Citigroup Global Markets Inc. shall be binding upon the Underwriters.
13
3.
C
OVENANTS
OF
THE
C
OMPANY
AND
THE
S
UBSIDIARY
G
UARANTORS
.
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
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.
14
(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 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.
15
(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 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) Except for the offer, sale, contract to sell or other disposition of debt securities or guarantees for which the primary use of
proceeds is to refinance the outstanding indebtedness of the Company or any of its subsidiaries, 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.
16
(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.
C
OVENANT
OF
THE
U
NDERWRITERS
.
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.
C
OSTS
AND
E
XPENSES
.
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 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 Underwriters’ 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
17
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.
C
ONDITIONS
OF
O
BLIGATIONS
OF
THE
U
NDERWRITERS
.
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 its 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 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. The Representative shall also have received on the Closing Date a reliance letter from Cox & Palmer, counsel for Wingfoot Mold Leasing Company, dated the Closing Date addressed to the Underwriters in substantially the
form set forth in Annex IV hereto permitting the Underwriters to rely on the opinions of Cox & Palmer to the Company in substantially the form set forth in Annex V hereto.
(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
18
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 or incorporated by
reference 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 and the Subsidiary Guarantors’ 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 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.
19
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, the Subsidiary Guarantors and the Underwriters shall not be under any obligation to each other (except to the
extent provided in Sections 5 and 8 hereof).
7.
C
ONDITIONS
OF
THE
O
BLIGATIONS
OF
THE
C
OMPANY
.
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.
I
NDEMNIFICATION
.
(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 selling
agent of any 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 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 selling agent of any Underwriter, each
affiliate of any Underwriter and each such
20
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, director, officer, selling agent, affiliate 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. In
the event that it is finally judicially determined that the Company and the Subsidiary Guarantors were not entitled to receive payments for legal and other expenses pursuant to this subparagraph, the Company and the Subsidiary Guarantors will
promptly return all sums that had been advanced pursuant hereto. This indemnity agreement in this Section 8(b) will be in addition to any liability which such Underwriter may otherwise have.
(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
21
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 and to the extent that 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 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
22
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 Agreement. A successor to any Underwriter, its directors or officers, any person controlling any
Underwriter or any selling agent or affiliate of any Underwriter, or to the Company or any Subsidiary Guarantor, its or their directors or officers, or any person controlling the Company or any Subsidiary Guarantor, shall be entitled to the benefits
of the indemnity, contribution and reimbursement agreements contained in this Section 8.
23
9.
D
EFAULT
BY
U
NDERWRITERS
.
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.
N
OTICES
.
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 Citigroup Global Markets Inc., 388 Greenwich
Street, New York, New York 10013, Attention: General Counsel, facsimile number 1-646-291-1469; if to the Company or any Subsidiary Guarantor, to the address of the Company set forth in the Prospectus, Attention: Secretary.
24
11.
T
ERMINATION
.
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 NASDAQ Global Select Market, the Commission, or any other
governmental or regulatory authority; or
(b) as provided in Sections 6 and 9 of this Agreement.
12.
S
UCCESSORS
.
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 selling agents and affiliates, 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.
25
13.
M
ISCELLANEOUS
.
(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 or any termination of 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 underwriters 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.
(g) In accordance with the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may
include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
26
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,
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THE GOODYEAR TIRE & RUBBER COMPANY
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By
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/s/ Peter R. Rapin
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Peter R. Rapin
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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/ Peter R. Rapin
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|
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Name:
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Peter R. Rapin
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|
|
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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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|
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By:
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/s/ Steven M. Wilton
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Name:
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Steven M. Wilton
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|
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Title:
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Vice President, Treasurer and Secretary
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|
|
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|
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By:
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/s/ Randall M. Loyd
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|
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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/ Steven M. Wilton
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Name:
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Steven M. Wilton
|
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Title:
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Vice President, Treasurer and Secretary
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|
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|
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By:
|
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/s/ Randall M. Loyd
|
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|
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Name:
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Randall M. Loyd
|
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|
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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/ C. Pajot
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Name:
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C. Pajot
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Title:
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President
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|
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By:
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/s/ R. Hunter
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Name:
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R. Hunter
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|
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Title:
|
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Secretary
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GOODYEAR EXPORT INC.
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|
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By:
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/s/ Peter R. Rapin
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Name:
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Peter R. Rapin
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|
|
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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/ Peter R. Rapin
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Name:
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Peter R. Rapin
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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/ Peter R. Rapin
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|
|
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Name:
|
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Peter R. Rapin
|
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|
|
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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/ Peter R. Rapin
|
|
|
|
|
|
Name:
|
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Peter R. Rapin
|
|
|
|
|
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Title:
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Vice President and Treasurer
|
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|
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T&WA, Inc.
|
|
|
|
|
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By:
|
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/s/ Peter R. Rapin
|
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|
|
|
|
Name:
|
|
Peter R. Rapin
|
|
|
|
|
|
Title:
|
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Treasurer
|
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|
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WINGFOOT COMMERCIAL TIRE SYSTEMS, LLC
|
|
|
|
|
|
|
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By:
|
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/s/ Peter R. Rapin
|
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|
|
|
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Name:
|
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Peter R. Rapin
|
|
|
|
|
|
Title:
|
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Vice President and Treasurer
|
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|
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|
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WINGFOOT MOLD LEASING COMPANY
|
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|
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|
|
|
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By:
|
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/s/ Caroline A. Pajot
|
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|
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Name:
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Caroline A. Pajot
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Title:
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Vice President
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The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above
written.
CITIGROUP GLOBAL MARKETS INC.
For itself and as
Representative of the several
Underwriters listed on Schedule I
|
|
|
|
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By:
|
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/s/ Matthew S. Burke
|
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Name:
|
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Matthew S. Burke
|
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Title:
|
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Managing Director
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SCHEDULE I
S
CHEDULE
OF
U
NDERWRITERS
|
|
|
|
|
|
|
Underwriter
|
|
Principal Amount of
Securities to be Purchased
|
|
|
|
|
|
Citigroup Global Markets Inc.
|
|
$
|
160,000,000
|
|
|
Barclays Capital Inc.
|
|
$
|
80,000,000
|
|
|
BNP Paribas Securities Corp.
|
|
$
|
80,000,000
|
|
|
Credit Agricole Securities (USA) Inc.
|
|
$
|
80,000,000
|
|
|
Deutsche Bank Securities Inc.
|
|
$
|
80,000,000
|
|
|
Goldman, Sachs & Co.
|
|
$
|
80,000,000
|
|
|
J.P. Morgan Securities LLC
|
|
$
|
80,000,000
|
|
|
HSBC Securities (USA) Inc.
|
|
$
|
42,400,001
|
|
|
Merrill Lynch, Pierce, Fenner & Smith Incorporated
|
|
$
|
42,400,001
|
|
|
Wells Fargo Securities, LLC
|
|
$
|
42,400,001
|
|
|
Natixis Securities Americas LLC
|
|
$
|
42,400,001
|
|
|
Capital One Securities, Inc.
|
|
$
|
15,066,666
|
|
|
Commerz Markets LLC
|
|
$
|
15,066,666
|
|
|
Mitsubishi UFJ Securities (USA), Inc.
|
|
$
|
15,066,666
|
|
|
PNC Capital Markets LLC
|
|
$
|
15,066,666
|
|
|
UniCredit Capital Markets LLC
|
|
$
|
15,066,666
|
|
|
U.S. Bancorp Investments, Inc.
|
|
$
|
15,066,666
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
900,000,000
|
|
|
|
|
|
|
|
SCHEDULE II
Filed Pursuant to Rule 433
Registration No. 333-207723
May 10,
2016
Pricing Term Sheet
|
|
|
|
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|
|
Issuer:
|
|
The Goodyear Tire & Rubber Company
|
|
|
|
|
Security:
|
|
5.000% Senior Notes due 2026
|
|
|
|
|
Maturity:
|
|
May 31, 2026
|
|
|
|
|
Face Amount:
|
|
$900,000,000
|
|
|
|
|
Gross Proceeds:
|
|
$900,000,000
|
|
|
|
|
Gross Spread:
|
|
1.25%
|
|
|
|
|
|
Net Proceeds exclusive of accrued interest (after deducting underwriting discounts and commissions but before offering expenses):
|
|
$888,750,000
|
|
|
|
|
|
|
|
Coupon:
|
|
5.000%
|
|
|
|
|
|
|
Offering Price:
|
|
100.000% plus accrued interest, if any, from May 13, 2016
|
|
|
|
|
|
Yield:
|
|
5.000%
|
|
|
|
|
|
|
|
Trade Date:
|
|
May 10, 2016
|
|
|
|
|
|
|
|
Settlement Date:
|
|
May 13, 2016 (T+3)
|
|
|
|
|
|
|
Interest Payment Dates:
|
|
May 31 and November 30, beginning November 30, 2016
|
|
|
|
|
|
Record Dates:
|
|
May 15 and November 15
|
|
|
|
|
|
|
|
Optional Redemption:
|
|
On or after:
|
|
Price:
|
|
|
|
|
|
|
|
May 31, 2021
|
|
102.500%
|
|
|
|
May 31, 2022
|
|
101.667%
|
|
|
|
May 31, 2023
|
|
100.833%
|
|
|
|
May 31, 2024 and thereafter
|
|
100.000%
|
|
|
|
|
Make Whole:
|
|
Makewhole call @ T+50bps prior to May 31, 2021
|
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|
|
|
|
Equity Clawback:
|
|
35% at 105.000% prior to May 31, 2019
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|
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|
|
|
Spread to Treasury:
|
|
+ 325bps
|
|
|
|
|
|
|
|
Reference Treasury:
|
|
UST 1.625% due February 15, 2026
|
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Underwriters:
|
|
Citigroup Global Markets Inc.
Barclays Capital Inc.
BNP Paribas Securities Corp.
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|
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Credit Agricole Securities (USA) Inc.
Deutsche Bank Securities Inc.
Goldman, Sachs & Co.
J.P. Morgan Securities LLC
HSBC Securities (USA) Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Wells Fargo Securities, LLC
Natixis Securities Americas LLC
Capital One Securities, Inc.
Commerz Markets LLC
Mitsubishi UFJ Securities (USA), Inc.
PNC Capital Markets LLC
UniCredit Capital Markets LLC
U.S. Bancorp Investments, Inc.
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CUSIP/ISIN:
|
|
382550 BF7 / US382550BF73
|
|
|
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 Citigroup Global
Markets Inc. toll free at 800-831-9146.
2
SCHEDULE III
The pricing term sheet substantially in the form set forth on Schedule II hereto.
Exhibit 4.2
[EXECUTION VERSION]
The Goodyear Tire & Rubber Company
5.000% Senior Notes due 2026
FIFTH
SUPPLEMENTAL
INDENTURE
Dated as of May 13, 2016
TO
THE INDENTURE
Dated as of August 13, 2010
Wells Fargo
Bank, N.A.,
as Trustee
CROSS-REFERENCE TABLE
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|
|
|
|
|
|
TIA
Section
|
|
|
|
Supplemental
Indenture
Section
|
|
|
|
|
|
310(a)(1)
|
|
|
|
7.10
|
|
(a)(2)
|
|
|
|
7.10
|
|
(a)(3)
|
|
|
|
N.A.
|
|
(a)(4)
|
|
|
|
N.A.
|
|
(a)(5)
|
|
|
|
7.10
|
|
(b)
|
|
|
|
7.08; 7.10
|
|
(c)
|
|
|
|
N.A.
|
|
311(a)
|
|
|
|
7.11
|
|
(b)
|
|
|
|
7.11
|
|
(c)
|
|
|
|
N.A.
|
|
312(a)
|
|
|
|
2.05
|
|
(b)
|
|
|
|
11.03
|
|
(c)
|
|
|
|
11.03
|
|
313(a)
|
|
|
|
7.06
|
|
(b)(1)
|
|
|
|
N.A.
|
|
(b)(2)
|
|
|
|
7.06
|
|
(c)
|
|
|
|
11.02
|
|
(d)
|
|
|
|
7.06
|
|
314(a)
|
|
|
|
4.02; 4.13; 11.02
|
|
(b)
|
|
|
|
N.A.
|
|
(c)(1)
|
|
|
|
11.04
|
|
(c)(2)
|
|
|
|
11.04
|
|
(c)(3)
|
|
|
|
N.A.
|
|
(d)
|
|
|
|
N.A.
|
|
(e)
|
|
|
|
11.05
|
|
(f)
|
|
|
|
4.14
|
|
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)
|
|
|
|
2.04
|
|
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 Supplemental Indenture.
TABLE OF CONTENTS
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Page
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|
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|
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ARTICLE 1
|
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|
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Application of Supplemental Indenture and Creation of Notes;
Definitions and Incorporation by Reference
|
|
|
|
|
|
|
SECTION 1.01.
|
|
Application of this Supplemental Indenture
|
|
|
1
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|
|
SECTION 1.02.
|
|
Effect of Supplemental Indenture
|
|
|
2
|
|
|
SECTION 1.03.
|
|
Definitions
|
|
|
3
|
|
|
SECTION 1.04.
|
|
Other Definitions
|
|
|
36
|
|
|
SECTION 1.05.
|
|
Incorporation by Reference of Trust Indenture Act
|
|
|
37
|
|
|
SECTION 1.06.
|
|
Rules of Construction
|
|
|
37
|
|
|
|
|
ARTICLE 2
|
|
|
|
|
The Notes
|
|
|
|
|
|
|
SECTION 2.01.
|
|
Form and Dating
|
|
|
38
|
|
|
SECTION 2.02.
|
|
Execution and Authentication
|
|
|
38
|
|
|
SECTION 2.03.
|
|
Registrar and Paying Agent
|
|
|
39
|
|
|
SECTION 2.04.
|
|
Paying Agent To Hold Money in Trust
|
|
|
40
|
|
|
SECTION 2.05.
|
|
Lists of Holders of Notes
|
|
|
40
|
|
|
SECTION 2.06.
|
|
Transfer and Exchange
|
|
|
40
|
|
|
SECTION 2.07.
|
|
Replacement Notes
|
|
|
41
|
|
|
SECTION 2.08.
|
|
Outstanding Notes
|
|
|
42
|
|
|
SECTION 2.09.
|
|
Temporary Notes
|
|
|
42
|
|
|
SECTION 2.10.
|
|
Cancellation
|
|
|
42
|
|
|
SECTION 2.11.
|
|
Defaulted Interest
|
|
|
42
|
|
|
SECTION 2.12.
|
|
CUSIP Numbers and ISINs
|
|
|
43
|
|
|
SECTION 2.13.
|
|
Issuance of Additional Notes
|
|
|
43
|
|
|
|
|
ARTICLE 3
|
|
|
|
|
Redemption
|
|
|
|
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|
|
SECTION 3.01.
|
|
Notices to Trustee
|
|
|
43
|
|
|
SECTION 3.02.
|
|
Selection of Notes to Be Redeemed
|
|
|
44
|
|
|
SECTION 3.03.
|
|
Notice of Redemption
|
|
|
44
|
|
|
SECTION 3.04.
|
|
Effect of Notice of Redemption
|
|
|
45
|
|
|
SECTION 3.05.
|
|
Deposit of Redemption Price
|
|
|
45
|
|
|
SECTION 3.06.
|
|
Notes Redeemed in Part
|
|
|
45
|
|
i
|
|
|
|
|
|
|
|
|
ARTICLE 4
|
|
|
|
|
Covenants
|
|
|
|
|
|
|
SECTION 4.01.
|
|
Payment of Notes
|
|
|
46
|
|
|
SECTION 4.02.
|
|
SEC Reports
|
|
|
46
|
|
|
SECTION 4.03.
|
|
Limitation on Indebtedness
|
|
|
46
|
|
|
SECTION 4.04.
|
|
Limitation on Restricted Payments
|
|
|
50
|
|
|
SECTION 4.05.
|
|
Limitation on Restrictions on Distributions from Restricted Subsidiaries
|
|
|
54
|
|
|
SECTION 4.06.
|
|
Limitation on Sales of Assets and Subsidiary Stock
|
|
|
56
|
|
|
SECTION 4.07.
|
|
Limitation on Transactions with Affiliates
|
|
|
60
|
|
|
SECTION 4.08.
|
|
Change of Control
|
|
|
61
|
|
|
SECTION 4.09.
|
|
Limitation on Liens
|
|
|
62
|
|
|
SECTION 4.10.
|
|
Limitation on Sale/Leaseback Transactions
|
|
|
63
|
|
|
SECTION 4.11.
|
|
Future Subsidiary Guarantors
|
|
|
63
|
|
|
SECTION 4.12.
|
|
Fall Away of Certain Covenants
|
|
|
63
|
|
|
SECTION 4.13.
|
|
Compliance Certificate
|
|
|
65
|
|
|
SECTION 4.14.
|
|
Further Instruments and Acts
|
|
|
65
|
|
|
|
|
ARTICLE 5
|
|
|
|
|
Successor Company
|
|
|
|
|
|
|
SECTION 5.01.
|
|
When Company May Merge or Transfer Assets
|
|
|
65
|
|
|
|
|
ARTICLE 6
|
|
|
|
|
Defaults and Remedies
|
|
|
|
|
|
|
SECTION 6.01.
|
|
Events of Default
|
|
|
67
|
|
|
SECTION 6.02.
|
|
Acceleration
|
|
|
69
|
|
|
SECTION 6.03.
|
|
Other Remedies
|
|
|
70
|
|
|
SECTION 6.04.
|
|
Waiver of Past Defaults
|
|
|
70
|
|
|
SECTION 6.05.
|
|
Control by Majority
|
|
|
70
|
|
|
SECTION 6.06.
|
|
Limitation on Suits
|
|
|
70
|
|
|
SECTION 6.07.
|
|
Rights of Holders to Receive Payment
|
|
|
71
|
|
|
SECTION 6.08.
|
|
Collection Suit by Trustee
|
|
|
71
|
|
|
SECTION 6.09.
|
|
Trustee May File Proofs of Claim
|
|
|
71
|
|
|
SECTION 6.10.
|
|
Priorities
|
|
|
72
|
|
|
SECTION 6.11.
|
|
Undertaking for Costs
|
|
|
72
|
|
|
SECTION 6.12.
|
|
Waiver of Stay or Extension Laws
|
|
|
72
|
|
ii
|
|
|
|
|
|
|
|
|
ARTICLE 7
|
|
|
|
|
Trustee
|
|
|
|
|
|
|
SECTION 7.01.
|
|
Duties of Trustee
|
|
|
72
|
|
|
SECTION 7.02.
|
|
Rights of Trustee
|
|
|
73
|
|
|
SECTION 7.03.
|
|
Individual Rights of Trustee
|
|
|
75
|
|
|
SECTION 7.04.
|
|
Trustee’s Disclaimer
|
|
|
75
|
|
|
SECTION 7.05.
|
|
Notice of Defaults
|
|
|
76
|
|
|
SECTION 7.06.
|
|
Reports by Trustee to Holders
|
|
|
76
|
|
|
SECTION 7.07.
|
|
Compensation and Indemnity
|
|
|
76
|
|
|
SECTION 7.08.
|
|
Replacement of Trustee
|
|
|
77
|
|
|
SECTION 7.09.
|
|
Successor Trustee by Merger
|
|
|
78
|
|
|
SECTION 7.10.
|
|
Eligibility; Disqualification
|
|
|
78
|
|
|
SECTION 7.11.
|
|
Preferential Collection of Claims Against Company
|
|
|
78
|
|
|
|
|
ARTICLE 8
|
|
|
|
|
Discharge of Supplemental Indenture; Defeasance
|
|
|
|
|
|
|
SECTION 8.01.
|
|
Discharge of Liability on Notes; Defeasance
|
|
|
79
|
|
|
SECTION 8.02.
|
|
Conditions to Defeasance
|
|
|
80
|
|
|
SECTION 8.03.
|
|
Application of Trust Money
|
|
|
81
|
|
|
SECTION 8.04.
|
|
Repayment to Company
|
|
|
81
|
|
|
SECTION 8.05.
|
|
Indemnity for Government Obligations
|
|
|
81
|
|
|
SECTION 8.06.
|
|
Reinstatement
|
|
|
81
|
|
|
|
|
ARTICLE 9
|
|
|
|
|
Amendments
|
|
|
|
|
|
|
SECTION 9.01.
|
|
Without Consent of Holders
|
|
|
82
|
|
|
SECTION 9.02.
|
|
With Consent of Holders
|
|
|
83
|
|
|
SECTION 9.03.
|
|
Compliance with Trust Indenture Act
|
|
|
84
|
|
|
SECTION 9.04.
|
|
Revocation and Effect of Consents and Waivers
|
|
|
84
|
|
|
SECTION 9.05.
|
|
Notation on or Exchange of Notes
|
|
|
84
|
|
|
SECTION 9.06.
|
|
Trustee To Sign Amendments
|
|
|
85
|
|
|
SECTION 9.07.
|
|
Payment for Consent
|
|
|
85
|
|
|
|
|
ARTICLE 10
|
|
|
|
|
Subsidiary Guarantees
|
|
|
|
|
|
|
SECTION 10.01.
|
|
Guarantees
|
|
|
85
|
|
|
SECTION 10.02.
|
|
Limitation on Liability
|
|
|
86
|
|
|
SECTION 10.03.
|
|
Successors and Assigns
|
|
|
87
|
|
|
SECTION 10.04.
|
|
No Waiver
|
|
|
87
|
|
iii
|
|
|
|
|
|
|
|
|
SECTION 10.05.
|
|
Modification
|
|
|
87
|
|
|
SECTION 10.06.
|
|
Release of Subsidiary Guarantor
|
|
|
87
|
|
|
SECTION 10.07.
|
|
Contribution
|
|
|
88
|
|
|
|
|
ARTICLE 11
|
|
|
|
|
Miscellaneous
|
|
|
|
|
|
|
SECTION 11.01.
|
|
Trust Indenture Act Controls
|
|
|
88
|
|
|
SECTION 11.02.
|
|
Notices
|
|
|
89
|
|
|
SECTION 11.03.
|
|
Communication by Holders with Other Holders
|
|
|
89
|
|
|
SECTION 11.04.
|
|
Certificate and Opinion as to Conditions Precedent
|
|
|
89
|
|
|
SECTION 11.05.
|
|
Statements Required in Certificate or Opinion
|
|
|
90
|
|
|
SECTION 11.06.
|
|
When Notes Disregarded
|
|
|
90
|
|
|
SECTION 11.07.
|
|
Rules by Trustee, Paying Agent and Registrar
|
|
|
90
|
|
|
SECTION 11.08.
|
|
Legal Holidays
|
|
|
90
|
|
|
SECTION 11.09.
|
|
Governing Law; Jury Trial Waiver
|
|
|
91
|
|
|
SECTION 11.10.
|
|
No Recourse Against Others
|
|
|
91
|
|
|
SECTION 11.11.
|
|
Successors
|
|
|
91
|
|
|
SECTION 11.12.
|
|
Multiple Originals
|
|
|
91
|
|
|
SECTION 11.13.
|
|
Table of Contents; Headings
|
|
|
91
|
|
|
SECTION 11.14.
|
|
Ratification of Base Indenture
|
|
|
91
|
|
|
SECTION 11.15.
|
|
Consent to Jurisdiction
|
|
|
92
|
|
|
SECTION 11.16.
|
|
U.S.A. Patriot Act
|
|
|
92
|
|
|
|
|
|
|
|
|
Appendix A
|
|
|
|
Provisions Relating to Notes
|
|
|
|
|
|
Exhibit 1
|
|
–
|
|
Form of Note
|
|
|
|
|
|
Exhibit 2
|
|
–
|
|
Form of Supplemental Indenture
|
iv
FIFTH SUPPLEMENTAL INDENTURE dated as of May 13, 2016 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 5.000% Senior Notes due 2026, 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:
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(1)
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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
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(3)
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Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary;
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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.
“Applicable Procedures” means, with respect to any payment, tender, redemption, transfer or exchange of or for
beneficial interests in any Global Note, the rules and procedures of DTC that apply to such payment, tender, redemption, transfer or exchange.
“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:
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(1)
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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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(2)
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all or substantially all the assets of any division or line of business of the Company or any Restricted Subsidiary, or
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(3)
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any other assets of the Company or any Restricted Subsidiary outside of the ordinary course of business of the Company or such Restricted Subsidiary,
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other than, in the case of clauses (1), (2) and (3) above,
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(A)
|
a disposition by a Restricted Subsidiary to the Company or by the Company or a Restricted Subsidiary to a Restricted Subsidiary;
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(B)
|
for purposes of Section 4.06 only, a disposition subject to Section 4.04;
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(C)
|
a disposition of assets with a Fair Market Value of less than $20,000,000;
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(D)
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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) to a Receivables Entity;
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(E)
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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;
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(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
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(G)
|
any Specified Asset Sale.
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“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:
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(1)
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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
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(2)
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the Attributable Debt determined assuming no such termination.
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“Average Life”
means, as of the date of determination, with respect to any Indebtedness or Preferred Stock, the quotient obtained by dividing:
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(1)
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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)
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the sum of all such payments.
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“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.
5
“Capitalized Lease Obligations” means an obligation that is required to be classified
and accounted for as a capital lease for financial reporting purposes in accordance with GAAP (or a finance lease upon adoption by the Company of
ASU No. 2016-02, Leases (Topic 842)
), and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in accordance with GAAP.
“Change of Control” means the
occurrence of any of the following events:
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(1)
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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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(2)
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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)
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the adoption of a plan relating to the liquidation or dissolution of the Company; or
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(4)
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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.
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6
“Closing Date” means May 13, 2016.
“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.
“Consolidated Coverage Ratio” as of any date of determination means the ratio of:
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(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
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(2)
|
Consolidated Interest Expense for such four fiscal quarters;
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provided
,
however
,
that:
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(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)
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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
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7
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period in respect of cash or Temporary Cash Investments used to repay, repurchase, defease or otherwise discharge such Indebtedness;
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(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
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);
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(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
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(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,
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8
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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.
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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 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:
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(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;
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(2)
|
amortization of debt discount and debt issuance costs;
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(3)
|
capitalized interest;
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(4)
|
non-cash interest expense;
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(5)
|
commissions, discounts and other fees and charges attributable to letters of credit and bankers’ acceptance financing;
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(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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9
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(7)
|
net payments made pursuant to Hedging Obligations in respect of interest expense (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;
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(9)
|
interest Incurred in connection with investments in discontinued operations; and
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(10)
|
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, 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 in respect of any such
financing that is deducted in calculating Consolidated Interest Expense shall not exceed 5% of the aggregate amount of such financing.
“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)
|
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)
|
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)
|
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)
|
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;
|
10
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(3)
|
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 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)
|
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)
|
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)
|
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)
|
any extraordinary gain or loss; and
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(6)
|
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).
“Consolidated Net Indebtedness” means, as of any date of determination, an amount equal to (a) the aggregate principal amount
of all outstanding Indebtedness of the Company and its Consolidated Restricted Subsidiaries (but excluding any Attributable Debt and Hedging Obligations (and Guarantees thereof)), minus (b) the aggregate amount of cash and Temporary Cash
Investments held at such time by the Company and its Consolidated Restricted Subsidiaries.
11
“Consolidated Net Leverage Ratio” means, as of any date of determination, the ratio of
(1) Consolidated Net Indebtedness to (2) EBITDA for the period of the most recent four consecutive fiscal quarters ending on or prior to the date of such determination for which financial statements have been filed with the SEC, with such
pro forma adjustments to the Consolidated Net Leverage Ratio as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Consolidated Coverage Ratio”.
“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.
“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)
|
matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise;
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(2)
|
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)
|
is redeemable at the option of the holder thereof, in whole or in part;
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12
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 on or prior to the date that is 180 days after 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, retirement, 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 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.
“DTC” means The Depository Trust Company, its nominees and their respective successors.
“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)
|
income tax expense of the Company and its Consolidated Restricted Subsidiaries;
|
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|
(2)
|
Consolidated Interest Expense;
|
|
|
(3)
|
depreciation expense of the Company and its Consolidated Restricted Subsidiaries;
|
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|
(4)
|
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)
|
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
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13
|
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period) less all non-cash items of income of the Company and its Consolidated Restricted Subsidiaries 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 paid as a dividend 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).
“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.
“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), 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 May 12, 2015,
among the Company, Goodyear Dunlop Tires Europe B.V., Goodyear Dunlop Tires Germany GmbH, Goodyear Dunlop Tires Operations S.A., the lenders party thereto, J.P. Morgan Europe Limited, as Administrative Agent and JPMorgan Chase Bank, N.A., as
Collateral Agent, as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether
14
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).
“European Union” means the European Union, including the countries of Austria, Belgium, Denmark, France,
Finland, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom, but not including any country which becomes a member of the European Union after the Closing Date.
“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 otherwise in this Supplemental Indenture,
determined in good faith by a Financial Officer of the Company or by the Board of Directors.
“Farm Tires Sale” means any sale
or sales of all or a portion of the farm tires business or assets of the Company and its Subsidiaries.
“Financial Officer”
means the Chief Financial Officer, the Treasurer, any Assistant Treasurer or the Chief Accounting Officer of the Company, or any Senior Vice President or higher ranking executive to whom any of the foregoing report.
“Fitch” means Fitch Ratings, Inc., and any successor thereto.
“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.
“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.
|
15
All ratios and computations based on GAAP contained in this Supplemental Indenture shall be computed in
conformity with GAAP. Notwithstanding any other provision contained herein, and for the avoidance of doubt, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein
shall be made, without giving effect to the adoption by the Company of
ASU No. 2016-02, Leases (Topic 842)
, to the extent such adoption would require treating any lease (or similar arrangement conveying the right to use) as a capital
lease where such lease (or similar arrangement) would not have been required to be so treated under generally accepted accounting principles in the United States of America as in effect on December 31, 2015.
“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:
|
|
(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
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|
|
(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 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.
16
“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:
|
|
(1)
|
the principal of and premium (if any) in respect of indebtedness of such Person for borrowed money;
|
|
|
(2)
|
the principal of and premium (if any) in respect of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
|
|
|
(3)
|
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)
|
all obligations of such Person to pay the deferred and unpaid purchase price of property or services (except Trade Payables), which purchase 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;
|
|
|
(5)
|
all Capitalized Lease Obligations and all Attributable Debt of such Person;
|
|
|
(6)
|
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);
|
|
|
(7)
|
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;
|
17
provided
,
however
, that the amount of Indebtedness of such Person shall be the lesser of:
|
|
(A)
|
the Fair Market Value of such asset at such date of determination, and
|
|
|
(B)
|
the amount of such Indebtedness of such other Persons;
|
|
|
(8)
|
Hedging Obligations of such Person; and
|
|
|
(9)
|
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.
|
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.
“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.
18
“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:
|
|
(1)
|
“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:
|
|
|
(A)
|
the Company’s “Investment” in such Subsidiary at the time of such redesignation, less
|
|
|
(B)
|
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
|
|
|
(2)
|
any property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer.
|
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, BBB- (or the equivalent)
by Standard & Poor’s and BBB- (or the equivalent) by Fitch, 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).
“Moody’s” means
Moody’s Investors Service, Inc., and any successor thereto.
19
“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:
|
|
(1)
|
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;
|
|
|
(2)
|
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;
|
|
|
(3)
|
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
|
|
|
(4)
|
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).
|
“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 5.000% Senior Notes due 2026 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.
“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.
20
“Permitted Investment” means an Investment by the Company or any Restricted Subsidiary
in:
|
|
(1)
|
the Company, a Restricted Subsidiary or a Person that will, upon the making of such Investment, become a Restricted Subsidiary;
|
|
|
(2)
|
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;
|
|
|
(3)
|
Temporary Cash Investments;
|
|
|
(4)
|
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;
|
|
|
(5)
|
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;
|
|
|
(6)
|
loans and advances to officers and employees made in the ordinary course of business of the Company or such Restricted Subsidiary;
|
|
|
(7)
|
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;
|
|
|
(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, workers’ compensation, performance and other similar deposits made in the
ordinary course of business by the Company or any Restricted Subsidiary;
|
21
|
|
(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, lessees, lessors 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);
|
|
|
(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;
|
|
|
(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;
|
22
|
|
(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;
|
|
|
(9)
|
Liens existing on the Closing Date (other than Liens referred to in the foregoing clause (1));
|
|
|
(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;
|
23
|
|
(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
|
|
|
(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;
|
24
|
|
(18)
|
Liens arising from uniform commercial code financing statement filings regarding leases that do not otherwise constitute Indebtedness and that are 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 thereof) 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).
|
“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.
25
“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
November 2, 2015, as supplemented by the Prospectus Supplement, dated May 10, 2016, 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 purchase 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
|
|
|
(D)
|
amounts paid in connection with the purchase of newly generated receivables, and
|
|
|
(2)
|
may be subordinated to the payments described in clause (1).
|
26
“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 Moody’s, Standard &
Poor’s and Fitch or, if any one or more of Moody’s, Standard & Poor’s or Fitch 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 any one or more of Moody’s, Standard & Poor’s or Fitch, 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 or a Subsidiary of 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);
|
|
|
(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;
|
27
|
|
(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 furnishing to 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 or any Restricted
Subsidiary 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 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;
|
28
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 Capital Stock held by a Restricted Subsidiary) (other than in exchange for Capital Stock of the Company that is not Disqualified Stock),
|
|
|
(3)
|
the Purchase for value, prior to scheduled maturity, any scheduled repayment or any scheduled sinking fund payment, of 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.
|
29
“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 has
a correlative meaning.
“Securities” means the securities issued under the Base Indenture.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“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:
|
|
(1)
|
any obligation of the Company to any Subsidiary of the Company or any obligation of such Subsidiary Guarantor to the Company or any other Subsidiary of the Company, as applicable;
|
|
|
(2)
|
any liability for Federal, state, local or other taxes owed or owing by the Company or such Subsidiary Guarantor, as applicable;
|
30
|
|
(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 (and any accrued and unpaid interest in respect thereof) of the Company or such Subsidiary Guarantor, as applicable, 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 (i) a Farm Tires Sale or (ii) the sale of all or a portion of the Company’s properties
in Akron, Summit County, Ohio.
“Standard & Poor’s” means Standard & Poor’s Ratings Services, a
division of McGraw Hill Financial, Inc., and any successor thereto.
“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.
“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:
|
|
(2)
|
such Person and one or more Subsidiaries of such Person or
|
|
|
(3)
|
one or more Subsidiaries of such Person.
|
31
“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 Fifth Supplemental Indenture, dated
as of May 13, 2016, 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:
|
|
(1)
|
direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America or a member state of the European Union (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United States of America or a member state of the European Union), in each case maturing within one year from the date of acquisition thereof;
|
|
|
(2)
|
investments in commercial paper maturing within 270 days from the date of acquisition thereof, and having, at such date of acquisition, not less than two of the following ratings: P2 or higher from Moody’s, A2 or
higher from Standard & Poor’s and F2 or higher from Fitch;
|
|
|
(3)
|
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 or a member state of the European Union which has (i) not less than two of the following short-term deposit ratings:
P1 from Moody’s, A1 from Standard & Poor’s and F1 from Fitch, and (ii) a combined capital and surplus and undivided profits of not less than $500,000,000;
|
|
|
(4)
|
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;
|
|
|
(5)
|
money market funds that:
|
|
|
(A)
|
comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940,
|
32
|
|
(B)
|
have not less than two of the following ratings: Aaa from Moody’s, AAA from Standard & Poor’s and AAA from Fitch, and
|
|
|
(C)
|
have portfolio assets of at least $3,000,000,000;
|
|
|
(6)
|
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 (and with respect to clause (5), are not required to comply with the Rule 2a-7 criteria);
|
|
|
(7)
|
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:
|
|
|
(A)
|
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
|
|
|
(B)
|
carries a rating at least equivalent to the rating of the sovereign nation in which it is located; and
|
|
|
(8)
|
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 has not less than two of the following ratings: A2 or higher from
Moody’s, A or higher from Standard & Poor’s and A or higher from Fitch or carries an equivalent rating from a comparable foreign rating agency, and
|
|
|
(B)
|
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 Foreign Subsidiary is located;
provided
that the investments permitted under this subclause (B) shall be made in amounts and jurisdictions consistent with the Company’s policies governing short-term investments.
|
“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.
33
“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 having direct responsibility for administering this Supplemental Indenture, 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.
“2012 Indenture” means the Indenture dated as of August 13,
2010 (the “2010 Indenture”), among the Company, the subsidiary guarantors party thereto and Wells Fargo Bank, N.A., as trustee, as supplemented by the Second Supplemental Indenture dated as of February 28, 2012, among the Company, the
subsidiary guarantors party thereto and Wells Fargo Bank, N.A., as trustee.
“2015 Euro Indenture” means the Indenture dated as
of December 15, 2015 among Goodyear Dunlop Tires Europe B.V., the Company, the subsidiary guarantors party thereto, Deutsche Trustee Company Limited, as trustee, Deutsche Bank AG, London Branch, as principal paying agent and transfer agent, and
Deutsche Bank Luxembourg S.A., as registrar and Luxembourg paying agent and transfer agent.
“2015 Indenture” means the 2010
Indenture as supplemented by the Fourth Supplemental Indenture dated as of November 5, 2015, among the Company, the subsidiary guarantors party thereto and Wells Fargo Bank, N.A., as trustee.
“Uniform Commercial Code” means the New York Uniform Commercial Code as in effect from time to time.
“Unrestricted Subsidiary” means:
|
|
(1)
|
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
|
|
|
(2)
|
any Subsidiary of an Unrestricted Subsidiary.
|
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:
|
|
(A)
|
the Subsidiary to be so designated has total Consolidated assets of $1,000 or less or
|
|
|
(B)
|
if such Subsidiary has Consolidated assets greater than $1,000, then such designation would be permitted under Section 4.04.
|
34
The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided
,
however
, that immediately after giving effect to such designation:
|
|
(x)
|
(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
|
|
|
(y)
|
no Default shall have occurred and be continuing.
|
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 furnishing to 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.
“U.S. Credit Agreements” means (i) the Amended
and Restated First Lien Credit Agreement, dated as of April 7, 2016, among the Company, the lenders party thereto, the issuing banks party thereto 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 19, 2012 and as amended as of June 16, 2015, 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
35
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.
SECTION 1.04.
Other Definitions.
|
|
|
|
|
|
|
Term
|
|
|
|
Defined in
Section
|
|
|
|
|
|
“Affiliate Transaction”
|
|
|
|
4.07(a)
|
|
“Applicable Premium”
|
|
|
|
Exhibit 1
|
|
“Bankruptcy Law”
|
|
|
|
6.01
|
|
“Change of Control Offer”
|
|
|
|
4.08(b)
|
|
“covenant defeasance option”
|
|
|
|
8.01(b)
|
|
“Custodian”
|
|
|
|
6.01
|
|
“Definitive Notes”
|
|
|
|
Appendix A
|
|
“Event of Default”
|
|
|
|
6.01
|
|
“Global Notes”
|
|
|
|
Appendix A
|
|
“Initial Lien”
|
|
|
|
4.09
|
|
“legal defeasance option”
|
|
|
|
8.01(b)
|
|
“Offer”
|
|
|
|
4.06(c)
|
|
“Offer Amount”
|
|
|
|
4.06(d)(3)
|
|
“Offer Period”
|
|
|
|
4.06(d)(3)
|
|
“Paying Agent”
|
|
|
|
2.03
|
|
“Purchase Date”
|
|
|
|
4.06(d)(2)
|
|
“Registrar”
|
|
|
|
2.03
|
|
“Reversion Date”
|
|
|
|
4.12(b)
|
|
“Securities Custodian”
|
|
|
|
Appendix A
|
|
“Successor Company”
|
|
|
|
5.01(a)(1)
|
|
“Successor Guarantor”
|
|
|
|
5.01(c)(1)
|
|
“Suspended Covenants”
|
|
|
|
4.12(a)
|
|
“Suspension Date”
|
|
|
|
4.12(a)
|
|
“Suspension Period”
|
|
|
|
4.12(b)
|
36
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.
SECTION 1.06.
Rules of Construction
. Unless
the context otherwise requires:
|
|
(1)
|
a term has the meaning assigned to it;
|
|
|
(2)
|
an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
|
|
|
(3)
|
“or” is not exclusive;
|
|
|
(4)
|
“including” means including without limitation;
|
|
|
(5)
|
words in the singular include the plural and words in the plural include the singular;
|
|
|
(6)
|
unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness;
|
37
|
|
(7)
|
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;
|
|
|
(8)
|
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;
|
|
|
(9)
|
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
|
|
|
(10)
|
all references to the date the Notes were originally issued shall refer to the Closing Date.
|
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 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.
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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.
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 transfers 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 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. The Company has entered into a letter of representations with DTC in the form provided by DTC, and the Trustee and each such agent are hereby authorized to act in accordance with such letter and
Applicable Procedures.
(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.
39
(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.
(e) The Company shall be responsible for making calculations called for under the Notes and this Supplemental Indenture, including but not
limited to determination of interest, redemption price, Applicable Premium, premium, if any, and any additional amounts or other amounts payable on the Notes. The Company will make the calculations in good faith and, absent manifest error, its
calculations will be final and binding on the Holders. The Company will provide a schedule of its calculations to the Trustee when requested by the Trustee, and the Trustee is entitled to rely conclusively on the accuracy of the Company’s
calculations without independent verification. The Trustee shall forward the Company’s calculations to any Holder of the Notes upon the written request of such Holder.
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 neither the Trustee nor an Affiliate of the Trustee is 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.
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
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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 transfers 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.
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.
41
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 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
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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 send or cause to be mailed or sent 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.
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 redemption price (or manner of calculation if not then known), the
43
principal amount of Notes to be redeemed and the paragraph of the Notes pursuant to which the redemption will occur. If the redemption price is not known at the time such notice is to be given,
the actual redemption price calculated as described in the terms of the Notes will be set forth in an Officers’ Certificate delivered to the Trustee no later than two Business Days prior to the redemption date.
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 (or with respect to Global Notes, to the extent permitted or required by applicable DTC procedures or regulations, sent electronically) 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 request of the Company, pursuant to the terms set forth below), shall mail a notice of redemption by first-class mail to each Holder of Notes to be redeemed at such Holder’s registered address (or with respect to Global
Notes, to the extent permitted or required by applicable DTC procedures or regulations, send such notice electronically).
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;
44
(5) if fewer than all the outstanding Notes are to be redeemed, the
identification and principal amounts of the particular Notes to be redeemed;
(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
its expense;
provided
,
however
, that the Officers’ Certificate delivered to the Trustee pursuant to the second paragraph of Section 3.01 requests that the Trustee give such notice and attaches a form of such notice setting
forth the information to be stated therein as provided in the preceding paragraph.
SECTION 3.04.
Effect of Notice of Redemption
.
Once notice of redemption is mailed to Holders (or with respect to Global Notes, to the extent permitted or required by applicable DTC procedures or regulations, sent electronically), 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 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 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 and unpaid 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.
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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.
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 reports, information and documents 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 or under the Notes (as to which the Trustee is entitled to rely exclusively on Officers’
Certificates or certificates delivered pursuant to Section 4.13). Notwithstanding the foregoing, if the Company has filed the reports and information referred to in this Section 4.02 with the SEC via the EDGAR filing system (or any
successor thereto) and such reports and information are publicly available, then the Company will be deemed to have provided and furnished such reports and information to the Trustee and the Holders in satisfaction of the requirements to
“provide” and “furnish” such applicable reports or information as set forth in this Section 4.02. The Trustee shall not be obligated to (i) monitor or confirm, on a continuing basis or otherwise, the Company’s
compliance with its covenants hereunder or with respect to any reports or other documents filed by the Company with the SEC, the EDGAR filing system (or any successor thereto) or any website, or (ii) participate in any conference calls.
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.
46
(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) $3,500,000,000, less the aggregate amount of all prepayments of principal applied to permanently reduce any such
Indebtedness in satisfaction of the Company’s or any Restricted Subsidiary’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 €550,000,000;
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 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 (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
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47
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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, bank guarantees, letters of credit, surety or appeal bonds or similar credit transactions 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 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) $800,000,000 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) $2,000,000,000
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 €450,000,000 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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(c) 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
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49
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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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(d) 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 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)
|
a Default shall have occurred and be continuing (or would result therefrom);
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(2)
|
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)
|
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
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50
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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)
|
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)
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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51
(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)
|
such Restricted Payment shall be excluded in the calculation of the amount of Restricted Payments under Section 4.04(a)(3), and
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(B)
|
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 or any Subsidiary Guarantor 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;
52
(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 the vesting or exercise of stock options, restricted stock or similar
equity awards, if such Capital Stock represents a portion of the exercise price of such stock options, restricted stock or similar equity awards or the withholding tax related thereto;
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 of the Company or any Subsidiary Guarantor 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;
(8)
so long as no Default has occurred and is continuing, any prepayment, repayment or Purchase for value of Subordinated Obligations of the Company or any Subsidiary Guarantor from Net Available Cash (assuming for purposes of the definition of Net
Available Cash as used in this Section 4.04(b)(8) that the Specified Asset Sale was an Asset Disposition) from the Specified Asset Sale set forth in clause (i) of the definition thereof within 180 days after the receipt of such proceeds;
provided
,
however
, that such prepayment, repayment or Purchase for value shall be excluded in the calculation of the amount of Restricted Payments;
(9) 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;
(10) 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)(10), does not exceed $800,000,000;
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; or
(11) any
Restricted Payment so long as at the time of such Restricted Payment and immediately after giving effect thereto, the Company’s Consolidated
53
Net Leverage Ratio does not exceed 3.75 to 1.00;
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)
|
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 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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54
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(D)
|
in the case of Section 4.05(3), any encumbrance or restriction:
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(i)
|
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)
|
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)
|
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)
|
any encumbrance or restriction existing under or by reason of Indebtedness or other contractual requirements of a Receivables Entity or any other party to a Qualified Receivables Transaction in connection with a
Qualified Receivables Transaction;
provided
,
however
, that such restrictions apply only to such Receivables Entity or such other party, as applicable;
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(G)
|
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)
|
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)
|
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)
|
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)
|
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)
|
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
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55
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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 therefor 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)
|
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)
|
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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56
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 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;
57
(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 (or with respect to Global Notes, to the extent permitted or required by applicable DTC procedures or regulations, send electronically), 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 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”).
58
(3) Not later than the date upon which written notice of an Offer is delivered to
the Trustee as provided above, 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 or a Subsidiary is acting as Paying Agent, segregate and hold in trust) 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 if funds have been provided to the Trustee for such purpose, 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 (or, with respect to Global Notes, pursuant to Applicable Procedures)
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 letter (or, in the case of the Trustee,
a facsimile transmission) 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 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
59
regulations in connection with the purchase 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)
|
are set forth in writing, and
|
|
|
(B)
|
have been approved by a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction and,
|
(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, incentive compensation plans, stock options and stock ownership plans approved by the Board of Directors,
(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,
60
(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 (or with respect to Global Notes, to the extent permitted or required by applicable DTC procedures or regulations, send electronically) a notice to each Holder with a copy to the
Trustee (the “Change of Control Offer”), stating:
(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);
61
(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 or sent); 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 or sends 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.
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.
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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.
Fall Away 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 at least two 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.
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(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”) both (1) one or more of the Rating Agencies withdraws its Investment Grade Rating or downgrades the
rating assigned to the Notes below an Investment Grade Rating resulting in the Notes no longer having an Investment Grade Rating from at least two of the Rating Agencies and (2) the terms of any other debt securities of the Company or any of its
Restricted Subsidiaries then outstanding include previously suspended covenants (that are substantially the same as the Suspended Covenants described in this Supplemental Indenture) that have become applicable upon a substantially concurrent
reversion as a result of substantially the same ratings withdrawal or downgrade with respect to such debt securities (
provided
,
however
, that the aggregate principal amount then outstanding of such debt securities exceeds
$100,000,000), 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 (for the avoidance of doubt, it is
understood and agreed that the “Suspended Covenants” as defined in each of the 2012 Indenture, the 2015 Euro Indenture and the 2015 Indenture are substantially the same as the Suspended Covenants described in this Supplemental Indenture).
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
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reset to zero after the Reversion Date. For purposes of determining compliance with Section 4.06(c), the amount of Net Available Cash carried forward for purposes of determining whether an
Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition 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 the Notes no longer having an Investment Grade Rating from at least two of the Rating
Agencies.
(f) The Company shall provide written notice signed by an Officer to the Trustee of the occurrence of any Suspension Date
or Reversion Date and of any election made pursuant to this Section 4.12; provided that the failure to provide such notice shall not affect the operation of this Section 4.12 or the Company’s rights hereunder. The Trustee shall have no
obligation to independently determine or verify if such events have occurred or to notify the Holders of any Suspension Date or Reversion Date.
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
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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 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;
66
(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
(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;
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(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;
(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.
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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 Restricted Subsidiary, 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.
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) with respect to the Company) 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 accrued but unpaid 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 at least 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. Promptly following any such rescission, the Company shall pay all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel. No such rescission shall affect any subsequent Default or impair any right consequent thereto.
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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 at
least 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.
SECTION
6.05.
Control by Majority
. The Holders of at least 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, including by way of pre-funding, 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 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;
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(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 at least 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 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. To the extent that the payment of any such 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 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.
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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 or send 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 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, the Notes and the Subsidiary Guarantees and no implied covenants or obligations shall be read into this Supplemental Indenture against the Trustee; and
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(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 (but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein).
(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.
(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 (whether in its original or facsimile form) 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.
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(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, or on any written notice, request, order or instruction
from the Company signed by an Officer.
(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 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.
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(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 or other unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility; 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.
(m) The Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to furnish the Trustee with Officers’ Certificates, written notices, requests, orders or instructions from the Company and any other matters or directions pursuant to this Supplemental Indenture.
(n) In no event shall the Trustee be responsible or liable for any special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit), irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
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. The Trustee shall not be accountable for the Company’s use of any money paid to the Company or upon the Company’s direction under any provision of this Supplemental Indenture and it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee. The Trustee shall not be bound to ascertain or inquire as to the
75
performance or observance of any covenants, conditions, or agreements on the part of the Company or the Subsidiary Guarantors but the Trustee may require full information and advice as to the
performance of the aforementioned covenants. Under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Notes or the Subsidiary Guarantees. Neither the Trustee nor any Paying Agent shall
be responsible for monitoring the Company’s rating status, making any request upon any Rating Agency, or determining whether any rating event based upon the rating of the Notes by any Rating Agency has occurred.
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 or deliver to each Holder notice of the Default within 90 days after it occurs. 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, 2017, and in any event prior to March 1 in each such year, the Trustee shall mail or send 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 or sending 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
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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 willful misconduct, negligence or
bad faith as finally adjudicated by a court of competent jurisdiction.
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. “Trustee” for the purposes of this Section 7.07 shall include any predecessor Trustee and each Paying Agent and Registrar;
provided
,
however
, that the negligence, willful misconduct or bad faith of any
Trustee hereunder shall not affect the rights of any other Trustee hereunder.
SECTION 7.08.
Replacement of Trustee
. The
Trustee may resign at any time by so notifying the Company. The Holders of at least 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 at least 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 or send 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.
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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.
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.
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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 or giving 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 (or any combination thereof) 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 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;
provided
,
however
, that if U.S. Government Obligations are deposited, the Company shall deliver 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 when due on all the Notes to maturity or redemption, as the case may
be. 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(5) (with respect only to the Company’s obligations under Section 4.02), 6.01(6), 6.01(7), 6.01(8), 6.01(9) and 6.01(10) (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), 6.01(9) and 6.01(10) (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.
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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 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.
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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.
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. 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.
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.
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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, as set forth in an Officers’ Certificate;
(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 Federal income tax purposes;
(4) to add Guarantees with respect to the Notes or to confirm and evidence the release, termination or discharge of any
Guarantee when such release, termination or discharge is permitted under this Supplemental Indenture;
(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, as set forth in an Officers’ Certificate;
(7) to make any amendment to the
provisions of this Supplemental Indenture relating to the 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;
(8) to provide for the issuance of Additional Notes in accordance with the terms of this Supplemental Indenture;
(9) to comply with any requirement of the SEC in connection with qualifying, or maintaining the qualification of, the Indenture
under the TIA; or
(10) to convey, transfer, assign, mortgage or pledge as security for the Notes any property or assets in
accordance with Section 4.09.
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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 or send 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.
For the avoidance of doubt, the Subsidiary Guarantors shall not be required to sign any amendment or
supplemental indenture hereto pursuant to which a Subsidiary becomes a Subsidiary Guarantor as contemplated by Section 4.11.
SECTION
9.02.
With Consent of Holders
. (a) The Company, the Subsidiary Guarantors and the Trustee may amend the Indenture (as it relates to the Notes) or 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;
(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 third sentence of this Section 9.02(a); 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.
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(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 or send 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 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.
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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 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, suspension of a Subsidiary Guarantor’s obligations hereunder pursuant to Section 4.12 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
85
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 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.
86
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 Guarantor) or other disposition (including by way of consolidation or merger) of such 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;
87
(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, and upon delivery to the Trustee of an Officers’ Certificate and an
Opinion of Counsel each stating that all conditions provided for in this Supplemental Indenture to the release of such Subsidiary Guarantor from its Subsidiary Guarantee have been complied with, the Trustee shall execute and deliver an appropriate
instrument evidencing such release (it being understood that the failure to obtain any such instrument shall not impair any release pursuant to this Section 10.06).
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 required to be included in this Supplemental Indenture by the TIA, the required provision shall control.
88
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 or, other than in the case of notices or communications to the Company or the Subsidiary Guarantors, transmitted by facsimile transmission or other means of unsecured electronic transmission
to the following:
if to the Company or any Subsidiary Guarantor:
The Goodyear Tire & Rubber Company
200 Innovation Way
Akron, Ohio
44316-0001
Attention of Treasurer
if to the Trustee:
Wells Fargo
Bank, N.A.
150 East 42
nd
Street, 40
th
Floor
New York, NY 10017
Attention: Corporate, Municipal and Escrow Solutions
Fax: (866) 297-2015
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. With respect to Global Notes, any notice or communication to a Holder may, to the extent permitted or required by applicable DTC procedures or
regulations, be sent electronically.
Failure to mail (or with respect to Global Notes, to the extent permitted or required by applicable
DTC procedures or regulations, send electronically) 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 or sent 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:
(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),
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except that in the case of any such application or request as to which the furnishing of such documents is
specifically required by any provision of this Supplemental Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
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.
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SECTION 11.09.
Governing Law; Jury Trial Waiver
. (a) 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.
(b) EACH OF THE COMPANY, THE SUBSIDIARY GUARANTORS AND THE TRUSTEE HEREBY, AND EACH HOLDER
OF A NOTE BY ITS ACCEPTANCE THEREOF, IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES, THE
SUBSIDIARY GUARANTEES OR ANY TRANSACTION CONTEMPLATED HEREBY OR 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. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or
PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto
transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
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.
91
SECTION 11.15.
Consent to Jurisdiction
. Any legal suit, action or proceeding arising
out of or based upon this Supplemental Indenture or the transactions contemplated hereby may be instituted in the federal courts of the United States of America located in the City of New York or the courts of the State of New York in each case
located in the City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or
document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties
irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other
proceeding has been brought in an inconvenient forum.
SECTION 11.16.
U.S.A. Patriot Act
. The Company and the Subsidiary
Guarantors acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record
information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Supplemental Indenture agree that they will provide the Trustee with such information as it may request
in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
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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/ Peter R. Rapin
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Name:
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Peter R. Rapin
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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
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CELERON CORPORATION
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By:
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/s/ Peter R. Rapin
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Name:
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Peter R. Rapin
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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/ Steven M. Wilton
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Name:
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Steven M. Wilton
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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/ Steven M. Wilton
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Name:
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Steven M. Wilton
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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 EXPORT INC.
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By:
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/s/ Peter R. Rapin
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Name:
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Peter R. Rapin
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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/ Peter R. Rapin
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Name:
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Peter R. Rapin
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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/ Peter R. Rapin
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Name:
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Peter R. Rapin
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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/ Peter R. Rapin
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Name:
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Peter R. Rapin
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Title:
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Vice President and Treasurer
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T&WA, INC.
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By:
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/s/ Peter R. Rapin
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Name:
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Peter R. Rapin
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Title:
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Treasurer
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WINGFOOT COMMERCIAL TIRE SYSTEMS, LLC
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By:
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/s/ Peter R. Rapin
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Name:
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Peter R. Rapin
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Title:
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Vice President and Treasurer
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GOODYEAR CANADA INC.
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By:
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/s/ C. Pajot
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Name:
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C. Pajot
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Title:
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President
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By:
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/s/ R. Hunter
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Name:
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R. Hunter
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Title:
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Secretary
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WINGFOOT MOLD LEASING COMPANY
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By:
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/s/ Caroline Pajot
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Name:
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Caroline Pajot
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Title:
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Vice President
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By:
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/s/ Paul Braczek
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Name:
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Paul Braczek
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Title:
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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, and the rules and regulations promulgated thereunder.
“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:
Defined in Section:
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“Agent Members”
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2.1(c)
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“Global Note”
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2.1(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 Depository or a nominee of the Depository, 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 Depository 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;
provided
that the Trustee shall be entitled to receive an Officers’ Certificate and an Opinion of Counsel of the Company addressing such matters as the
Trustee may reasonably request in connection with such authentication of such Notes. 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,
2
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 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
3
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 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.
4
(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 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 or any other act or
omission of the Depository. 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.
5
(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, 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 AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $[ ], THE ISSUE DATE IS
[ ], [ ] AND THE INITIAL YIELD TO MATURITY OF THIS SECURITY IS [ ]%.
5.000% Senior Note due 2026
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
May 31, 2026.
Interest Payment Dates: May 31 and November 30, commencing November 30, 2016
Record Dates: May 15 or November 15
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Use the Schedule of Increases and Decreases language if Note is in Global Form.
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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:
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
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WELLS FARGO BANK, N.A.,
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as Trustee, certifies that this is one of the Notes referred to in the Indenture.
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By:
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Authorized Signatory
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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”.
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3
[FORM OF REVERSE SIDE OF SECURITY]
5.000% Senior Note due 2026
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 May 31 and November 30 of each year, commencing on November 30, 2016. 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 May 13, 2016 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.
The Company shall pay interest on the Notes (except defaulted
interest) to the Persons who are registered Holders at the close of business on May 15 or November 15 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).
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3.
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Paying Agent and Registrar
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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 upon written notice to such Paying Agent or Registrar and to the Trustee. The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent or Registrar.
The Company issued the Notes under an Indenture dated as of August 13, 2010
(the “Base Indenture”), as supplemented by the Fifth Supplemental Indenture, dated as of May 13, 2016 (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. To the extent
any provision of this Note conflicts with the express provisions of the Supplemental Indenture, the provisions of the Supplemental Indenture shall govern and be controlling.
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 at least two 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.
2
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 Obligations of the Subsidiary Guarantors with respect to the Notes are expressly set forth in Article 10 of the Supplemental Indenture.
Except as set forth below in this paragraph 6 the Company will not
be entitled to redeem the Notes.
On and after May 31, 2021, 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 following 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 May 31 of the years set forth below:
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Year
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Redemption
Price
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2021
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102.500
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%
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2022
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101.667
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%
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2023
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100.833
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%
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2024 and thereafter
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100.000
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%
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In addition, prior to May 31, 2019, 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, at a redemption price equal to 105.000% 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 May 31, 2021, 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
3
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 (or with respect to Global
Notes, to the extent permitted or required by applicable DTC procedures or regulations, sent electronically), not less than 30 nor more than 60 days prior to the redemption date. With respect to any such redemption, the Company shall notify the
Trustee of the Applicable Premium promptly after it is calculated by the Company and the Trustee shall not be responsible for such calculation.
“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 (A) the present value at such redemption date of (i) the redemption price of such Note on May 31, 2021 (such redemption price being described in the second paragraph in this section exclusive of any
accrued interest), plus (ii) all required remaining scheduled interest payments due on such Note through May 31, 2021 (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 May 31, 2021, 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 May 31, 2021 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 May 31, 2021.
“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.
4
“Quotation Agent” means one of the Reference Treasury Dealers selected by the Company.
“Reference Treasury Dealer” means Citigroup Global Markets Inc. and its successors and assigns and two other nationally
recognized investment banking firms selected by the Company that are primary U.S. Government Obligation securities dealers.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average,
as determined by the 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.
The Notes are not subject to any sinking fund.
At least 30 days but not more than 60 days before the
redemption date, notice of redemption will be mailed by first-class mail
to each Holder of Notes to be redeemed at his, her or its registered address (or with respect to Global Notes, to the extent permitted or required by applicable DTC
procedures or regulations, such notice shall be sent electronically). 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.
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9.
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Purchase of Notes at the Option of Holders
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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 purchase 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 purchased 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 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.
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10.
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Denominations; Transfer; Exchange
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The Notes are in registered form without interest
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 and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Supplemental Indenture. The Registrar need not
register transfers 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 an interest payment date.
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11.
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Persons Deemed Owners
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Except as provided in paragraph 2 hereof, the registered Holder
of this Note may be treated as the owner of it for all purposes.
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. 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.
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13.
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Discharge and Defeasance
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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 (or any combination thereof) for the payment of principal
of, and interest and premium, if any, on, the Notes to redemption, or maturity, as the case may be.
Subject to certain exceptions set forth in the Supplemental
Indenture, (i) the Indenture (as it relates to the Notes) or the Notes may be amended 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 and (ii) 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 certain exceptions set forth in the Supplemental Indenture, without notice to or consent of any Holder of Notes, the Company, the
Subsidiary
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Guarantors and the Trustee may amend the Indenture or the Notes (i) to cure any ambiguity, omission, defect or inconsistency, as set forth in an Officers’ Certificate; (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;
provided
,
however
, that the uncertificated Notes are issued in registered form for Federal income tax purposes; (iv) to add Guarantees with respect to the
Notes or to confirm and evidence the release, termination or discharge of any Guarantee when such release, termination or discharge is permitted under the Supplemental Indenture; (v) to add to the covenants of the Company for the benefit of the
Holders of the Notes or to surrender any right and power conferred upon the Company in the Supplemental Indenture; (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, as set forth in an Officers’ Certificate; (vii) to make any amendment to the provisions of the Supplemental Indenture relating to the form, authentication, transfer and legending of Notes;
provided
,
however
, that (A) compliance with the 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; (viii) to provide for the issuance of Additional Notes in accordance with the terms of the Supplemental Indenture; (ix) to comply with any requirement of the SEC in connection with
qualifying, or maintaining the qualification of, the Indenture under the TIA; 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.
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15.
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Defaults and Remedies
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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 with respect to such Notes contained in 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
7
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) (and under clause (ix) 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 Restricted Subsidiary, 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 (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company
under Sections 6.01(7) and (8) of the Supplemental Indenture) 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. If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Company under Sections 6.01(7) and (8) of the
Supplemental Indenture occurs, the principal of and accrued but unpaid 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 at least a majority in principal amount of the outstanding Notes may rescind any such acceleration with respect to the Notes and its consequences.
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16.
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Trustee Dealings with the Company
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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.
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17.
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No Recourse Against Others
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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 Supplemental Indenture or of such Subsidiary Guarantor under its Subsidiary Guarantee or the 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 waives and releases all such liability. The waiver and release are part of the consideration for the issue of the
Notes.
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.
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).
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20.
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Governing Law; Jury Trial Waiver
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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.
BY ACCEPTING THIS NOTE, THE HOLDER HEREOF IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE, THE SUPPLEMENTAL INDENTURE, THE SUBSIDIARY GUARANTEES OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY.
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21.
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CUSIP Numbers and ISINs
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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.
9
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.
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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.
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Date:
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Your Signature:
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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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11
[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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Date of Exchange
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Amount of decrease in
Principal Amount of this
Global Note
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Amount of increase in
Principal Amount of this
Global Note
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Principal amount of this
Global Note following such
decrease or increase
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Signature of authorized
signatory of Trustee or
Securities 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 Change of Control
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):
$
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Date:
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Your Signature:
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(Sign exactly as your name appears on the other side of the Note)
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Signature Guarantee:
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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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13
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 Company 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 party thereto (the “Existing Guarantors”) have heretofore executed and delivered to the Trustee the fifth supplemental indenture dated as of May 13, 2016 (the “Fifth Supplemental
Indenture”) to the Indenture dated as of August 13, 2010 (the “Base Indenture”, and together with the Fifth Supplemental Indenture, the “Indenture”), providing for the issuance of the Company’s 5.000% Senior Notes
due 2026 (the “Notes”), initially in the aggregate principal amount of $900,000,000.
WHEREAS Section 4.11 of the Fifth
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 Fifth Supplemental Indenture, the Trustee and the Company 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 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 Fifth 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 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 affect 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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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
