EXHIBIT 4.17
FORM OF
THE GOODYEAR TIRE & RUBBER COMPANY
GUARANTEE AGREEMENT
GOODYEAR CAPITAL TRUST [I] [II] [III]
___________________________
DATED AS OF ____________________, ____
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Page
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Section 1.1 Definitions 1
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application 5
Section 2.2 Lists of Holders of Preferred Securities 6
Section 2.3 Reports by the Guarantee Trustee 6
Section 2.4 Periodic Reports to the Guarantee Trustee 6
Section 2.5 Evidence of Compliance with Conditions Precedent 7
Section 2.6 Events of Default; Waiver 7
Section 2.7 Disclosure of Information 7
Section 2.8 Conflicting Interest 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of the Guarantee Trustee 8
Section 3.2 Certain Rights and Duties of the Guarantee Trustee 8
Section 3.3 Not Responsible for Recitals or Issuance of Guarantee 11
Section 3.4 The Guarantee Trustee May Own Preferred Securities 11
Section 3.5 Moneys Received by the Guarantee Trustee to Be Held in
Trust 11
Section 3.6 Compensation and Expenses of Guarantee Trustee 11
ARTICLE IV
GUARANTEE TRUSTEE
Section 4.1 Qualifications 12
Section 4.2 Appointment, Removal and Resignation of the Guarantee
Trustee 12
ARTICLE V
GUARANTEE
Section 5.1 Guarantee 13
Section 5.2 Waiver of Notice 13
Section 5.3 Obligations Not Affected 14
Section 5.4 Enforcement of Guarantee 15
Section 5.5 Guarantee of Payment 15
Section 5.6 Subrogation 15
Section 5.7 Independent Obligations 15
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.1 Limitation of Transactions 16
Section 6.2 Subordination 16
ARTICLE VII
TERMINATION
Section 7.1 Termination 16
ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
Section 8.1 Exculpation 17
Section 8.2 Indemnification 17
Section 8.3 Survive Termination 17
ARTICLE IX
MISCELLANEOUS
Section 9.1 Successors and Assigns 18
Section 9.2 Amendments 18
Section 9.3 Notices 18
Section 9.4 Genders 19
Section 9.5 Benefit 19
Section 9.6 Governing Law 19
Section 9.7 Counterparts 19
Section 9.8 Limited Liability 19
Section 9.9 [Exercise of Overallotment Option] 19
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of _____________, ______, is
executed and delivered by THE GOODYEAR TIRE & RUBBER COMPANY, an Ohio
corporation (the "Guarantor"), and [ ], a New York banking
corporation, as the initial Guarantee Trustee (as defined herein) for the
benefit of the Holders (as defined herein) from time to time of the Preferred
Securities (as defined herein) of Goodyear Capital Trust [I] [II] [III], a
Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an [Amended and Restated] Declaration of Trust
(the "Declaration"), dated as of _________________, _____ among the trustees of
the Issuer named therein, The Goodyear Tire & Rubber Company, as Sponsor, and
the Holders from time to time of preferred undivided beneficial interests in the
assets of the Issuer, the Issuer may issue up to $_________ aggregate
liquidation amount of its _____% [Convertible] Trust Preferred Securities (the
"Preferred Securities") representing preferred undivided beneficial interests in
the assets of the Issuer and having the terms set forth in the Declaration [, of
which $_________ liquidation amount of Preferred Securities is being issued as
of the date hereof. Up to the remaining $__________ liquidation amount of
Preferred Securities may be issued by the Issuer if and to the extent that the
over-allotment option granted by the Guarantor and the Issuer pursuant to the
Underwriting Agreement (as may be defined in the Declaration) is exercised by
the Underwriters named in the Underwriting Agreement)]; and
WHEREAS, as incentive for the Holders to purchase Preferred Securities,
the Guarantor desires to irrevocably and unconditionally agree, to the extent
set forth herein, to pay to the Holders the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the purchase by the initial
purchasers thereof of Preferred Securities, which purchase the Guarantor hereby
agrees shall benefit the Guarantor, the Guarantor executes and delivers this
Guarantee Agreement for the benefit of the Holders from time to time.
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. In this Guarantee Agreement, unless the
context otherwise requires:
(a) Capitalized terms used in this Guarantee Agreement but not defined
in the preamble or recitals above have the respective meanings assigned to them
in this Section 1.1.
(b) A term defined anywhere in this Guarantee Agreement has the same
meaning throughout.
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(c) All references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time.
(d) All references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless otherwise
specified.
(e) A term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires.
(f) A reference to the singular includes the plural and vice versa.
(g) The term:
"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 purposes of this definition, "control"
of a Person shall mean 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" shall have meanings correlative to the foregoing.
"Business Day" has the meaning set forth in the Indenture.
"Commission" means the Securities and Exchange Commission.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer and having the terms set forth
in Exhibit [ ] to the Declaration.
"Common Stock" means the common stock, without par value, of the
Guarantor, including related preferred stock purchase rights.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the series of [convertible] unsecured [subordinated]
[and unsubordinated] [debentures] [bonds] [notes] issued to the [Property
Trustee] [Trust] by The Goodyear Tire & Rubber Company under the Indenture and
entitled the "____% [Convertible] [Subordinated] [Debentures] [Bonds] [Notes]
due [__________]."
"Declaration" has the meaning set forth in the recitals above.
"Distributions" means the periodic distributions and other payments
payable to Holders in accordance with the terms of the Preferred Securities set
forth in Exhibit [ ] to the Declaration.
"Dollar" has the meaning set forth in the Indenture.
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"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement; provided, however,
that, except with respect to a default in payment of any Guarantee Payment, and
such default shall constitute an Event of Default only if the Guarantor shall
have received notice of such default and shall not have cured such default
within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by or on behalf of the Issuer: (i) any accumulated and unpaid
Distributions, and the Redemption Price, including all accumulated and unpaid
Distributions to the date of redemption, to the Preferred Securities called for
redemption by the Issuer but only if and to the extent that in each case the
Guarantor has made a payment to the Property Trustee of principal of, any
premium or interest on, (including any related amount required by the Indenture)
to the Debentures and (ii) upon a voluntary or involuntary dissolution of the
Issuer (other than in connection with the distribution of Debentures to Holders
in exchange for Preferred Securities or the redemption of the Preferred
Securities in full upon the maturity or redemption of the Debentures as provided
in the Declaration), the lesser of (a) the aggregate of the liquidation amount
and all accumulated and unpaid Distributions on the Preferred Securities to the
date of payment, to the extent the Issuer has funds on hand legally available
therefor, and (b) the amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer as required by applicable
law (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means [ ], a New York banking corporation,
in its capacity as guarantee trustee hereunder, until a Successor Guarantee
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Guarantee Agreement, and thereafter means each such Successor
Guarantee Trustee, in its capacity as guarantee trustee hereunder.
"Holder" means any holder, as registered on the books and records of
the Issuer, of any Preferred Securities; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor; provided further, that
in determining whether the Holders of the requisite liquidation amount of
Preferred Securities have voted on any matter provided for in this Guarantee
Agreement, for purposes of such determination only (and not for any other
purposes hereunder), if the Preferred Securities remain in the form of one or
more Global Certificates (as defined in the Declaration), then the term
"Holders" shall mean the holder of the Global Certificates acting at the
direction of the Preferred Security Beneficial Owners (as defined in the
Declaration).
"Indemnified Person" means the Guarantee Trustee, any Affiliate of the
Guarantee Trustee, and any officers, directors, shareholders, members, partners,
employees, representatives or agents of the Guarantee Trustee.
"Indenture" means the Indenture dated as of _____________, ______
between The Goodyear Tire & Rubber Company and The JPMorgan Chase Bank, as
trustee, as supplemented
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by the [Board Action] [Supplemental Indenture thereto] dated as of ___________,
______ (the "Supplemental Indenture"), pursuant to which the Debentures are to
be issued to the [Property Trustee] [Trust].
"Majority of Outstanding Preferred Securities" means Holder(s) of
outstanding Preferred Securities, voting together as a single class, who are the
record owners of Preferred Securities representing a majority of the outstanding
Preferred Securities.
"Majority in Liquidation Amount of the Preferred Securities" means,
except as otherwise required by the Trust Indenture Act, Holder(s) of
outstanding Preferred Securities voting together as a single class, who are the
record owners of Preferred Securities voting together as a single class who are
record owners of Preferred Securities whose liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid distributions to the date upon which the voting percentages
are determined) represents more than 50% of the liquidation amount of all
outstanding Preferred Securities. In determining whether the Holders of the
requisite amount of Preferred Securities have voted, Preferred Securities owned
by Guarantor or any Affiliate of Guarantor or any other obligor on the Preferred
Securities shall be disregarded (to the extent known to be so owned by the
Guarantee Trustee) for the purpose of such determination.
"Offer" means the offer by the Issuer to sell Preferred Securities in
consideration for the deposit by the Guarantor of Debentures as trust assets of
the Issuer, all as described in the Prospectus dated [ ].
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman of the Board, the President, any Vice
Chairman of the Board, any Executive Vice President, the Chief Financial
Officer, any Senior Vice President, any Vice President, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of such Person,
and delivered to the Guarantee Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 2.4 shall be the principal executive,
financial or accounting officer of the Guarantor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:
(i) statement that the person making such certificate has read
such covenant or condition;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate are based;
(iii) a statement that, in the opinion of such person, he or she has
made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
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"Person" means any individual, corporation, partnership, limited
liability company, joint venture, incorporated or unincorporated association,
joint stock company, trust, unincorporated organization or government or other
agency or political subdivision thereof or other entity of any kind.
"Preferred Securities" has the meaning set forth in the recitals above.
"Property Trustee" means the Person acting as Property Trustee under
the Declaration.
"Redemption Price" means the amount payable on redemption of the
Preferred Securities in accordance with the terms of the Preferred Securities.
"Responsible Officer" means, when used with respect to the Guarantee
Trustee, any officer within the corporate trust department of the Guarantee
Trustee, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the
Guarantee Trustee who customarily performs functions similar to those performed
by the Persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred because of such Person's knowledge of and
familiarity with the particular subject and, in either case, who shall have
direct responsibility for the administration of this Gurantee Agreement.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as a Guarantee Trustee under Section 4.1.
"Supplemental Indenture" has the meaning specified in the definition of
Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. TRUST INDENTURE ACT; APPLICATION.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provisions of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
(c) The application of the Trust Indenture Act to this Guarantee
Agreement shall not affect the nature of the Preferred Securities as equity
securities representing preferred undivided beneficial interests in the assets
of the Issuer.
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SECTION 2.2. LISTS OF HOLDERS OF PREFERRED SECURITIES.
(a) The Guarantor shall provide the Guarantee Trustee with such
information as is required under Section 312(a) of the Trust Indenture Act at
the times and in the manner provided in said Section 312(a), and shall provide
to the Guarantee Trustee (unless the Guarantee Trustee is the registrar of the
Preferred Securities) (i) within 14 days after each record date for payment of
Distributions, a list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders") as of
such date, and (ii) at any other time, within 30 days of receipt by the
Guarantor of a written request for a List of Holders of a date no more than 15
days before such List of Holders is given to the Guarantee Trustee; provided
that in each case the Guarantor shall not be obligated to provide such List of
Holders at any time that the List of Holders does not differ from the most
recent List of Holders given to the Guarantee Trustee by the Guarantor. The
Guarantee Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in the Lists of Holders given to it;
provided that the Guarantee Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Section 312(b) of the Trust Indenture Act.
SECTION 2.3. REPORTS BY THE GUARANTEE TRUSTEE.
Within 60 days after [ ] of each year, commencing [ ],
the Guarantee Trustee shall deliver to the Holders such reports as are required
by Section 313 of the Trust Indenture Act, if any, in the form, in the manner
and at the times provided by Section 313 of the Trust Indenture Act. The
Guarantee Trustee shall also comply with the other requirements of Section 313,
including subsection (d), of the Trust Indenture Act. A copy of each such report
shall, at the time of such transmission to the Holders, be filed by the
Guarantee Trustee with the Guarantor, with each stock exchange or quotation
system upon which any Preferred Securities are listed or traded (if so listed or
traded) and also with the Commission. The Guarantor agrees to notify the
Guarantee Trustee when any Preferred Securities become listed on any stock
exchange or quotation system and of any delisting thereof.
SECTION 2.4. PERIODIC REPORTS TO THE GUARANTEE TRUSTEE.
The Guarantor shall provide to the Guarantee Trustee, the Commission
and the Holders, as applicable, such documents, reports and information (if any)
as required by Section 314(a) (1), (2) and (3) of the Trust Indenture Act and
the compliance certificates required by Section 314(a) (4) and (c) of the Trust
Indenture Act, any such certificates to be provided in the form, in the manner
and at the times required by Section 314(a) (4) and Section 314(c) of the Trust
Indenture Act (provided that any certificate to be provided pursuant to Section
314(a) (4) of the Trust Indenture Act shall be provided within 120 days of the
end of each fiscal year of the Issuer). Delivery of such reports, information
and documents to the Guarantee Trustee is for informational purposes only and
the Guarantee Trustee's receipt of such shall not constitute constructive notice
of any information contained therein, including the Guarantor's compliance
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with any of its covenants hereunder (as to which the Guarantee Trustee is
entitled to rely exclusively on Officers' Certificates or on certificates
provided pursuant to this Section 2.4).
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Guarantee
Agreement which relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to said Section 314(c) shall comply with Section 314(e) of the
Trust Indenture Act and may be given in the form of an Officers' Certificate.
SECTION 2.6. EVENTS OF DEFAULT; WAIVER.
(a) The Holders of a Majority [of Outstanding] [in Liquidation Amounts
of the]Preferred Securities may, by vote (i) on behalf of the Holders, waive any
past Event of Default and its consequences or (ii) direct the time, method and
place of conducting any proceedings for any remedy available to the Guarantee
Trustee. Upon such waiver, any such Event of Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Guarantee Agreement, but no such waiver shall extend to
any subsequent or other default or Event of Default, or impair any right
consequent thereon.
(b) Subject to Section 2.6(a), the right of any Holder to receive
payment of the Guarantee Payments in accordance with this Guarantee Agreement,
or to institute suit for the enforcement of any such payment, shall not be
impaired without the consent of each such Holder.
SECTION 2.7. DISCLOSURE OF INFORMATION.
The disclosure of information as to the names and addresses of the
Holders in accordance with Section 312 of the Trust Indenture Act, regardless of
the source from which such information was derived, shall not be deemed to be a
violation of any existing law, or any law hereafter enacted which does not
specifically refer to Section 312 of the Trust Indenture Act, nor shall the
Guarantee Trustee be held accountable by reason of mailing any material pursuant
to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 2.8. CONFLICTING INTEREST.
(a) The Declaration shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
(b) The Guarantee Trustee shall comply with its obligations under
Sections 310(b) and 311 of the Trust Indenture Act.
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ARTICLE III
POWERS, DUTIES AND RIGHTS
OF THE GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF THE GUARANTEE TRUSTEE.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee in
trust for the benefit of the Holders. The Guarantee Trustee shall not transfer
its right, title and interest in this Guarantee Agreement to any Person except a
Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustees
of its appointment to act as Guarantee Trustee or to a Holder exercising his or
her rights pursuant to Section 5.4(iv). The right, title and interest of the
Guarantee Trustee to this Guarantee Agreement shall vest automatically in each
Person who may hereafter be appointed as Guarantee Trustee in accordance with
Article IV. Such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders [of the Preferred Securities].
(c) This Guarantee Agreement and all moneys received by the Guarantee
Trustee in respect of the Guarantee Payments will not be subject to any right,
charge, security interest, lien or claim of any kind in favor of, or for the
benefit of, the Guarantee Trustee or its agents or their creditors.
(d) The Guarantee Trustee shall, within 90 days after the occurrence of
an Event of Default actually known to a Responsible Officer of the Guarantee
Trustee, transmit by mail, first class postage prepaid, to the Holders, as their
names and addresses appear upon the List of Holders, notice of all such Events
of Default, unless such defaults shall have been cured before the giving of such
notice; provided that the Guarantee Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors and/or Responsible Officers of the Guarantee
Trustee in good faith determine that the withholding of such notice is in the
interests of the Holders. The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default except any Event of Default as to which the
Guarantee Trustee shall have received written notice or a Responsible Officer
charged with the administration of this Guarantee Agreement shall have obtained
written notice of such Event of Default.
(e) The Guarantee Trustee shall not resign and shall continue to serve
as a trustee until a Successor Guarantee Trustee has been appointed and accepted
that appointment in accordance with Article IV.
SECTION 3.2. CERTAIN RIGHTS AND DUTIES OF THE GUARANTEE TRUSTEE.
(a) The Guarantee Trustee, before the occurrence of an Event of Default
and after the curing or waiving of all Events of Default that may have occurred,
shall undertake to perform
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only such duties as are specifically set forth in this Guarantee Agreement, and
no implied covenants shall be read into this Guarantee Agreement against the
Guarantee Trustee. In case an Event of Default has occurred (that has not been
cured or waived pursuant to Section 2.6), the Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Guarantee Agreement, and use
the same degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of
this Guarantee Agreement, and the Guarantee Trustee shall
not be liable except for the performance of such duties
and obligations as are specifically set forth in this
Guarantee Agreement, and no implied covenants or
obligations shall be read into this Guarantee Agreement
against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this
Guarantee Agreement; provided, however, that in the case
of any such certificates or opinions that by any provision
hereof or the Trust Indenture Act are specifically
required to be furnished to the Guarantee Trustee, the
Guarantee Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Guarantee Agreement or the Trust
Indenture Act, as the case may be;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee
Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii)the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a Majority of
Outstanding Preferred Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power conferred upon
the Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the
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performance of any of its duties or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for
believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Guarantee
Agreement or adequate indemnity against such risk or liability is
not reasonably assured to it.
(c) Subject to the provisions of Section 3.2(a) and (b):
(i) whenever in the administration of this Guarantee Agreement, the
Guarantee Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any action
hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its
part, request and rely upon an Officers' Certificate, which shall
comply with the provisions of Section 314(e) of the Trust
Indenture Act and which, upon receipt of such request, shall be
promptly delivered by the Guarantor;
(ii) the Guarantee Trustee (A) may consult with counsel (which may be
counsel to the Guarantor or any of its Affiliates and may include
any of its employees) selected by it in good faith and with due
care and the written advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in
accordance with such advice and opinion and (B) shall have the
right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of
competent jurisdiction;
(iii)the Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, and the Guarantee Trustee shall not
be responsible for any misconduct or negligence on the part of any
agent or attorney appointed by it in good faith and with due care;
(iv) the Guarantee Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Guarantee Agreement
at the request or direction of any Holder, unless such Holder
shall have offered to the Guarantee Trustee security and indemnity
satisfactory to the Guarantee Trustee against the costs, expenses
(including attorneys' fees and expenses) and liabilities that
might be incurred by it in complying with such request or
direction; provided, that nothing contained in this clause (iv)
shall relieve the Guarantee Trustee of the obligation, upon the
occurrence of an Event of Default (which has not been cured or
waived) to exercise such of the rights and powers vested in it by
this Guarantee Agreement, and to use the same degree of care and
skill in this exercise as a prudent person would exercise or use
under the circumstances in the conduct of his own affairs; and
(v) any action taken by the Guarantee Trustee or its agents hereunder
shall bind the Holders, and the signature of the Guarantee Trustee
or its agents alone shall be sufficient and effective to perform
any such action; and no third party shall be required to inquire
as to the authority of the Guarantee Trustee to so act, or as to
its compliance with any of the terms and provisions of this
Guarantee Agreement, both
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of which shall be conclusively evidenced by the Guarantee
Trustee's or its agent's taking such action.
SECTION 3.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE.
The recitals contained in this Guarantee Agreement shall be taken as
the statements of the Guarantor, and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representations as to the validity or sufficiency of this Guarantee Agreement.
SECTION 3.4. THE GUARANTEE TRUSTEE MAY OWN PREFERRED SECURITIES.
The Guarantee Trustee, in its individual or any other capacity, may
become the owner or pledgee of Preferred Securities and may otherwise deal with
the Guarantor with the same rights it would have if it were not the Guarantee
Trustee.
SECTION 3.5. MONEYS RECEIVED BY THE GURANTEE TRUSTEE TO BE HELD IN
TRUST.
All moneys received by the Guarantee Trustee in respect of Guarantee
Payments shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Guarantee Trustee shall be under
no liability for interest on any moneys received by it hereunder except such as
it may agree in writing to pay thereon.
SECTION 3.6. COMPENSATION AND EXPENSES OF GUARANTEE TRUSTEE.
The Guarantor covenants and agrees to pay to the Guarantee Trustee from
time to time, and the Guarantee Trustee shall be entitled to, such compensation
as the Guarantor and the Guarantee Trustee shall from time to time agree in
writing (which shall not be limited by any provision of law in regard to the
compensation of a Guarantee Trustee of an express trust) for all services
rendered by it in the exercise and performance of any of the powers and duties
hereunder of the Guarantee Trustee, and the Guarantor will pay or reimburse the
Guarantee Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Guarantee Trustee in accordance with any of
the provisions of this Guarantee Agreement (including the reasonable
compensation and the reasonable expenses and disbursements of its counsel and of
all persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its negligence, bad faith, or willful misconduct.
The Guarantor also covenants to indemnify each of the Guarantee Trustee or any
predecessor Guarantee Trustee and their officers, agents, directors and
employees for, and to hold them harmless against, any and all loss, liability,
damage, claim or expense including taxes (other than taxes based upon, measured
by or determined by the income, profit, franchise or doing business of the
Guarantee Trustee) incurred without negligence, bad faith, or willful misconduct
on the part of the Guarantee Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the reasonable costs
and expenses of defending itself against any claim (whether asserted by the
Guarantor, any Holder or any other
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Person) of liability in the premises. The provisions of this Section 3.6 shall
survive the termination of this Guarantee Agreement and resignation or removal
of the Guarantee Trustee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. QUALIFICATIONS.
(a) There shall at all times be a Guarantee Trustee that shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a national banking association or corporation
organized and doing business under the laws of the United
States of America or any State or Territory thereof or of
the District of Columbia, or a corporation or Person
permitted by the Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under
such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000, and
subject to supervision or examination by Federal, state,
Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then
for the purposes of this clause (ii), the combined capital
and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published.
If at any time the Guarantee Trustee shall cease to satisfy the
requirements of clauses (i) and (ii) above, the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2. If
the Guarantee Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee and
the Guarantor shall in all respects comply with the provisions of Section 310(b)
of the Trust Indenture Act.
(b) Any corporation into which the Guarantee Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Guarantee Trustee
shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Guarantee Trustee, shall be a Successor
Guarantee Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF THE GUARANTEE
TRUSTEE.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor.
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(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Guarantee Trustee possessing the qualifications
to act as Guarantee Trustee under Section 4.1(a) has been appointed and has
accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the Guarantee Trustee being
removed.
(c) The Guarantee Trustee appointed to office shall hold office until
its successor shall have been appointed or until its removal or resignation.
(d) The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument (a "Resignation Request") in
writing signed by the Guarantee Trustee and delivered to the Guarantor, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that no such resignation of the Guarantee
Trustee shall be effective until a Successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.1(a) has been
appointed and has accepted such appointment by instrument executed by such
Successor Guarantee Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
(e) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of a Resignation Request, the resigning Guarantee
Trustee may petition any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon after such notice, if any,
as it may deem proper, appoint a Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1. GUARANTEE.
The Guarantor irrevocably and unconditionally agrees to pay in full the
Guarantee Payments (without duplication of amounts theretofore paid by the
Issuer), as and when due, to the Holders as of the date upon which such
Guarantee Payments due, regardless of any defense, right of setoff or
counterclaim which the Issuer may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or to the Guarantee Trustee for
remittance to the Holders or by causing the Issuer to pay such amounts to the
Holders. Notwithstanding anything to the contrary herein, the Guarantor retains
all of its rights to (i) extend the interest payment period on the Debentures
and the Guarantor shall not be obligated hereunder to make any Guarantee Payment
during any Extended Interest Payment Period (as defined in the Supplemental
Indenture) with respect to the Distributions on the Preferred Securities and
(ii) redeem or change the maturity date of the Debentures, in each case to the
extent permitted by the Indenture.
SECTION 5.2. WAIVER OF NOTICE.
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to
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require a proceeding first against the Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 5.3. OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that result from any Extended Interest Payment Period), Redemption
Price, Liquidation Distribution (as may be defined in the Declaration) or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions that result from any Extended Interest Payment Period);
(c) any failure, omission, delay or lack of diligence on the part of
the Guarantee Trustee or the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Guarantee Trustee or the Holders
pursuant to the terms hereof or of the Preferred Securities, respectively, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor with respect to the
Guarantee Payments shall be absolute and unconditional under any and all
circumstances. There shall be no obligation of the Guarantee trustee or the
Holders to give notice to, or obtain consent of, the Guarantor with respect to
the happening of any of the foregoing.
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SECTION 5.4. ENFORCEMENT OF GUARANTEE.
The Guarantor and the Guarantee Trustee expressly acknowledge and agree
that (i) this Guarantee Agreement will be deposited with the Guarantee Trustee
to be held for the benefit of the Holders; (ii) the Guarantee Trustee has the
right to enforce this Guarantee Agreement on behalf of the Holders; (iii)
Holders representing not less than a Majority [of Outstanding] [in liquidation
amount of] Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Guarantee
Trustee in respect of this Guarantee Agreement or exercising any trust or other
power conferred upon the Guarantee Trustee under this Guarantee Agreement; and
(iv) if the Guarantee Trustee fails to enforce this Guarantee Agreement as
provided in clauses (ii) and (iii) above, any Holder may institute a legal
proceeding directly against the Guarantor to enforce such Holder's rights under
this Guarantee Agreement, without first instituting a legal proceeding against
the Issuer, the Guarantee Trustee or any other Person. Notwithstanding the
foregoing, if the Guarantor has failed to make a Guarantee Payment, a Holder may
directly institute a proceeding against the Guarantor for enforcement of this
Guarantee Agreement for such payment without first instituting a legal
proceeding against the Issuer, the Guarantee Trustee or any other Person.
SECTION 5.5. GUARANTEE OF PAYMENT.
This Guarantee Agreement creates a guarantee of payment and not merely
of collection. This Guarantee Agreement will not be discharged except by payment
of the Guarantee Payments in full (without duplication of amounts theretofore
paid by the Issuer) or upon the distribution of the Debentures to the Holders as
provided in the Declaration.
SECTION 5.6. SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders or to the Guarantee Trusts for remittance to the
Holders.
SECTION 5.7. INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.3 hereof.
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ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. LIMITATION OF TRANSACTIONS.
So long as any Preferred Securities remain outstanding, the Guarantor
(i) will remain the sole direct or indirect owner of all of the outstanding
Common Securities and shall not cause or permit the Common Securities to be
transferred except to the extent such transfer is permitted under Section [ ] of
the Declaration; provided that any permitted successor of the Guarantor under
the Indenture may succeed to the Guarantor's direct or indirect ownership of the
Common Securities, [(ii) will cause the holder of the Common Securities to
satisfy the requirements of Section [ ] of the Declaration] and (iii) will use
reasonable efforts to cause the Issuer to continue to be treated as a grantor
trust for United States federal income tax purposes, except in connection with a
distribution of Debentures as provided in the Declaration.
SECTION 6.2. SUBORDINATION.
This Guarantee Agreement will constitute an unsecured obligation of the
Guarantor and will rank (i) subordinate and junior in right of payment of all
other liabilities of the Guarantor, including the Debentures, and any guarantees
of the Guarantor relating to such liabilities, except in each case those made
pari passu or subordinate by their terms, and (ii) senior to all capital stock
[(other than the most senior preferred stock issued from time to time, if any,
by the Guarantor, which preferred stock will rank pari passu with this Guarantee
Agreement)] and to any guarantee now or hereafter entered into by the Guarantor
in respect of any of its capital stock [(other than the most senior preferred
stock issued by the guarantor)] now or hereafter issued by the Guarantor. The
Guarantor's obligations under this Guarantee Agreement will rank pari passu with
respect to obligations under other securities (other than capital stock) the
Guarantor may issue from time to time and other guarantee agreements which it
may enter into from time to time to the extent that (i) such agreements shall
provide for comparable guarantees by the Guarantor of payment on preferred
securities issued by other trusts, partnerships or other entities affiliated
with the Guarantor that are financing vehicles of the Guarantor and (ii) the
debentures or other evidences of indebtedness of the Guarantor relating to such
preferred securities are junior subordinated, unsecured indebtedness of the
Guarantor.]
ARTICLE VII
TERMINATION
SECTION 7.1. TERMINATION.
This Guarantee Agreement shall terminate and be of no further force and
effect (i) upon full payment of the Redemption Price of all Preferred
Securities, (ii) upon the distribution of Debentures [, or any securities into
which such Debentures are convertible,] to Holders and holders of Common
Securities in exchange for all of the Preferred Securities and Common Securities
or (iii) upon full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Issuer. Notwithstanding the foregoing, this
Guarantee Agreement will
16
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder must restore payment of any sums paid with respect to the
Preferred Securities or under this Guarantee Agreement.
ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 8.1. EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Holder for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Guarantee Agreement and
in a manner such Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Indemnified Person by this Guarantee
Agreement or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
SECTION 8.2. INDEMNIFICATION.
To the fullest extent permitted by applicable law, the Guarantor shall
indemnify and hold harmless each Indemnified Person from and against any loss,
damage or claim incurred by such Indemnified Person by reason of any act or
omission performed or omitted by such Indemnified Person in good faith in
accordance with this Guarantee Agreement and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Guarantee Agreement, except that no Indemnified
Person shall be entitled to be indemnified in respect of any loss, damage or
claim incurred by such Indemnified Person by reason of negligence or willful
misconduct with respect to such acts or omissions.
SECTION 8.3. SURVIVE TERMINATION.
The provisions of Section 8.1 and 8.2 shall survive the termination of
this Guarantee Agreement or the resignation or removal of the Guarantee Trustee.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.1. SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assignees, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Guarantee Trustee and the
Holders then outstanding. Except in connection with a consolidation, merger or
sale involving the Guarantor that is permitted under Article [ ] of the
Indenture, the Guarantor shall not assign its obligations hereunder.
SECTION 9.2. AMENDMENTS.
Except with respect to any changes which do not adversely affect the
rights of Holders in any material respect (in which case no consent of Holders
will be required), this Guarantee Agreement may only be amended with the prior
approval of the Guarantor, the Guarantee Trustee and the Holders of not less
than a Majority of Outstanding Preferred Securities. The provisions of Section
[ ] of the Declaration concerning meetings, and actions by written
consent without a meeting, of Holders shall apply to the giving of such
approval.
SECTION 9.3. NOTICES.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, in English, duly signed by the party giving
such notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address as the Guarantor may give notice of to the Holders:
The Goodyear Tire & Rubber Company
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxx 00000-0000
Attention: Treasurer
(b) if given to the Guarantee Trustee, to the address set forth below
or such other address as the Guarantee Trustee may give notice of to the
Holders:
[
Attention: ]
(c) if given to any Holder, at the address set forth on the books and
records of the Issuer.
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All notices hereunder shall be deemed to have been given when (i)
received in person, (ii) telecopied with receipt confirmed, or (iii) mailed by
first class mail, postage prepaid, when received, except that if a notice or
other document is refused delivery or cannot be delivered because of a changed
address of which no notice was given, such notice or other document shall be
deemed to have been delivered on the date of such refusal or inability to
deliver.
SECTION 9.4. GENDERS.
The masculine, feminine and neuter genders used herein shall include
the masculine, feminine and neuter genders.
SECTION 9.5. BENEFIT.
This Guarantee Agreement is solely for the benefit of the Guarantee
Trustee and the Holders and, subject to Section 3.1(a), is not separately
transferable from the Preferred Securities.
SECTION 9.6. GOVERNING LAW.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS).
SECTION 9.7. COUNTERPARTS.
This Guarantee Agreement may be executed in counterparts, each of which
shall be an original; but such counterparts shall together constitute one and
the same instrument.
SECTION 9.8. LIMITED LIABILITY.
Neither the Guarantee Trustee nor the Holders, in their capacities as
such, shall be personally liable for any liabilities or obligations of the
Guarantor arising out of this Guarantee Agreement. The parties further hereby
agree that the Holders, in their capacities as such, shall be entitled to the
same limitation of personal liability extended to the stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
SECTION 9.9. [EXERCISE OF OVERALLOTMENT OPTION].
If and to the extent that Preferred Securities are issued by the Issuer
upon exercise of the overallotment option referred to in the first WHEREAS
clause, the Guarantor agrees to give prompt notice thereof to the Guarantee
Trustee but the failure to give such notice shall not relieve the Guarantor of
any of its obligations hereunder.]
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
THE GOODYEAR TIRE & RUBBER COMPANY
By:
------------------------------------
Name:
Title:
[ ],
as Guarantee Trustee
By:
-------------------------------------
Name:
Title:
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