Exhibit 4.2
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The Goodyear Tire & Rubber Company
8.625% Senior Notes due 2011
Senior Floating Rate Notes due 2009
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INDENTURE
Dated as of November 21, 2006
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Xxxxx Fargo Bank, N.A.
Trustee
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CROSS-REFERENCE TABLE
TIA Section Indenture Section
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310(a)(1) .................................................. 7.10
(a)(2) .................................................. 7.10
(a)(3) .................................................. N.A.
(a)(4) .................................................. N.A.
(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) .................................................. 7.06
(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.
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
TABLE OF CONTENTS
Page
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ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions............................................... 1
SECTION 1.02. Other Definitions......................................... 33
SECTION 1.03. Incorporation by Reference of Trust Indenture Act......... 33
SECTION 1.04. Rules of Construction..................................... 34
ARTICLE 2
The Securities
SECTION 2.01. Form and Dating........................................... 35
SECTION 2.02. Execution and Authentication.............................. 35
SECTION 2.03. Registrar and Paying Agent................................ 35
SECTION 2.04. Paying Agent To Hold Money in Trust....................... 36
SECTION 2.05. Lists of Holders of Securities............................ 37
SECTION 2.06. Transfer and Exchange..................................... 37
SECTION 2.07. Replacement Securities.................................... 38
SECTION 2.08. Outstanding Securities.................................... 38
SECTION 2.09. Temporary Securities...................................... 38
SECTION 2.10. Cancellation.............................................. 39
SECTION 2.11. Defaulted Interest........................................ 39
SECTION 2.12. CUSIP Numbers and ISINs................................... 39
SECTION 2.13. Issuance of Additional Securities......................... 39
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee........................................ 40
SECTION 3.02. Selection of Securities to Be Redeemed.................... 40
SECTION 3.03. Notice of Redemption...................................... 41
SECTION 3.04. Effect of Notice of Redemption............................ 41
SECTION 3.05. Deposit of Redemption Price............................... 42
SECTION 3.06. Securities Redeemed in Part............................... 42
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities..................................... 42
SECTION 4.02. SEC Reports............................................... 42
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SECTION 4.03. Limitation on Indebtedness................................ 43
SECTION 4.04. Limitation on Restricted Payments......................... 47
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries................................... 50
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock........ 52
SECTION 4.07. Limitation on Transactions with Affiliates................ 56
SECTION 4.08. Change of Control......................................... 57
SECTION 4.09. Limitation on Liens....................................... 58
SECTION 4.10. Limitation on Sale/Leaseback Transactions................. 59
SECTION 4.11. Future Subsidiary Guarantors.............................. 59
SECTION 4.12. Suspension of Certain Covenants........................... 59
SECTION 4.13. Compliance Certificate.................................... 61
SECTION 4.14. Further Instruments and Acts.............................. 61
ARTICLE 5
Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets................. 61
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default......................................... 63
SECTION 6.02. Acceleration.............................................. 65
SECTION 6.03. Other Remedies............................................ 65
SECTION 6.04. Waiver of Past Defaults................................... 65
SECTION 6.05. Control by Majority....................................... 66
SECTION 6.06. Limitation on Suits....................................... 66
SECTION 6.07. Rights of Holders to Receive Payment...................... 67
SECTION 6.08. Collection Suit by Trustee................................ 67
SECTION 6.09. Trustee May File Proofs of Claim.......................... 67
SECTION 6.10. Priorities................................................ 67
SECTION 6.11. Undertaking for Costs..................................... 67
SECTION 6.12. Waiver of Stay or Extension Laws.......................... 68
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee......................................... 68
SECTION 7.02. Rights of Trustee......................................... 69
SECTION 7.03. Individual Rights of Trustee.............................. 70
SECTION 7.04. Trustee's Disclaimer...................................... 70
SECTION 7.05. Notice of Defaults........................................ 70
SECTION 7.06. Reports by Trustee to Holders............................. 70
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SECTION 7.07. Compensation and Indemnity................................ 71
SECTION 7.08. Replacement of Trustee.................................... 71
SECTION 7.09. Successor Trustee by Merger............................... 72
SECTION 7.10. Eligibility; Disqualification............................. 73
SECTION 7.11. Preferential Collection of Claims Against Company......... 73
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance.......... 73
SECTION 8.02. Conditions to Defeasance.................................. 74
SECTION 8.03. Application of Trust Money................................ 75
SECTION 8.04. Repayment to Company...................................... 75
SECTION 8.05. Indemnity for Government Obligations...................... 76
SECTION 8.06. Reinstatement............................................. 76
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders................................ 76
SECTION 9.02. With Consent of Holders................................... 77
SECTION 9.03. Compliance with Trust Indenture Act....................... 78
SECTION 9.04. Revocation and Effect of Consents and Waivers............. 78
SECTION 9.05. Notation on or Exchange of Securities..................... 79
SECTION 9.06. Trustee To Sign Amendments................................ 79
SECTION 9.07. Payment for Consent....................................... 79
ARTICLE 10
Subsidiary Guarantees
SECTION 10.01. Guarantees................................................ 79
SECTION 10.02. Limitation on Liability................................... 81
SECTION 10.03. Successors and Assigns.................................... 81
SECTION 10.04. No Waiver................................................. 81
SECTION 10.05. Modification.............................................. 81
SECTION 10.06. Release of Subsidiary Guarantor........................... 82
SECTION 10.07. Contribution.............................................. 82
ARTICLE 11
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls.............................. 83
SECTION 11.02. Notices................................................... 83
SECTION 11.03. Communication by Holders with Other Holders............... 83
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SECTION 11.04. Certificate and Opinion as to Conditions Precedent........ 84
SECTION 11.05. Statements Required in Certificate or Opinion............. 84
SECTION 11.06. When Securities Disregarded............................... 84
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar.............. 85
SECTION 11.08. Legal Holidays............................................ 85
SECTION 11.09. Governing Law............................................. 85
SECTION 11.10. No Recourse Against Others................................ 85
SECTION 11.11. Successors................................................ 85
SECTION 11.12. Multiple Originals........................................ 85
SECTION 11.13. Table of Contents; Headings............................... 85
Appendix A
Exhibit 1(a) - Form of Initial Fixed Rate Security
Exhibit 1(b) - Form of Fixed Rate Exchange Security
Exhibit 2(a) - Form of Initial Floating Rate Security
Exhibit 2(b) - Form of Floating Rate Exchange Security
Exhibit 3 - Form of Supplemental Indenture
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INDENTURE dated as of November 21, 2006, among The Goodyear
Tire & Rubber Company, an Ohio corporation (the "Company"), the
Subsidiary Guarantors listed on the signature pages hereto and
Xxxxx Fargo Bank, N.A., a national banking association (the
"Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Initial Securities and,
if and when issued pursuant to a registered exchange for Initial Securities, the
Exchange Securities:
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Additional Assets" means:
(1) any property or assets (other than Indebtedness and Capital Stock) to
be used by the Company or a Restricted Subsidiary;
(2) the Capital Stock of a Person that becomes a Restricted Subsidiary as
a result of the acquisition of such Capital Stock by the Company or
another Restricted Subsidiary; or
(3) Capital Stock constituting a minority interest in any Person that at
such time is a Restricted Subsidiary;
provided, however, that any such Restricted Subsidiary described in clauses (2)
or (3) above is primarily engaged in a Permitted Business.
"Additional Fixed Rate Securities" means Fixed Rate Securities issued
under this Indenture after the Closing Date and in compliance with Sections
2.13, and 4.03, it being understood that any Fixed Rate Securities issued in
exchange for or replacement of any Initial Fixed Rate Security issued on the
Closing Date shall not be an Additional Fixed Rate Security, including any such
Fixed Rate Securities issued pursuant to a Registration Rights Agreement (as
defined in Appendix A attached hereto).
"Additional Floating Rate Securities" means Floating Rate Securities
issued under this Indenture after the Closing Date and in compliance with
Sections 2.13 and 4.03, it being understood that any Floating Rate Securities
issued in exchange for or replacement of any Initial Floating Rate Security
issued on the Closing Date shall not be an Additional Floating Rate Security,
including any such Floating Rate Securities issued pursuant to a Registration
Rights Agreement.
"Additional Securities" means, collectively, the Additional Fixed Rate
Securities and the Additional Floating Rate Securities, if any.
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"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 rights or
warrants to purchase such Voting Stock (whether or not currently exercisable)
and any Person who would be an Affiliate of any such beneficial owner pursuant
to the first sentence hereof.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of sales, leases, transfers or dispositions that are part
of a common plan) by the Company or any Restricted Subsidiary, including any
disposition by means of a merger, consolidation, or similar transaction (each
referred to for the purposes of this definition as a "disposition"), of:
(1) any shares of Capital Stock of a Restricted Subsidiary (other than
directors' qualifying shares or shares required by applicable law to
be held by a Person other than the Company or a Restricted
Subsidiary),
(2) all or substantially all the assets of any division or line of
business of the Company or any Restricted Subsidiary, or
(3) any other assets of the Company or any Restricted Subsidiary outside
of the ordinary course of business of the Company or such Restricted
Subsidiary;
other than, in the case of clauses (1), (2) and (3) above,
(A) a disposition by a Restricted Subsidiary to the Company or by the
Company or a Restricted Subsidiary to a Restricted Subsidiary,
(B) for purposes of Section 4.06 only, a disposition subject to
Section 4.04,
(C) a disposition of assets with a Fair Market Value of less than
$5,000,000,
(D) a sale of accounts receivable and related assets of the type
specified in the definition of "Qualified Receivables
Transaction" to a Receivables Entity,
(E) a transfer of accounts receivable and related assets of the type
specified in the definition of "Qualified Receivables
Transaction"
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(or a fractional undivided interest therein) by a Receivables
Entity in a Qualified Receivables Transaction, and
(F) a disposition of all or substantially all the Company's assets
(as determined on a Consolidated basis) in accordance with
Section 5.01.
"Attributable Debt" means, with respect to any Sale/Leaseback
Transaction that does not result in a Capitalized Lease Obligation, the present
value (computed in accordance with GAAP) of the total obligations of the lessee
for rental payments during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such lease has been
extended). In the case of any lease which is terminable by the lessee upon
payment of a penalty, the Attributable Debt shall be the lesser of (i) the
Attributable Debt determined assuming termination upon the first date such lease
may be terminated (in which case the Attributable Debt shall also include the
amount of the penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated) and (ii) the Attributable Debt determined assuming no such
termination.
"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing:
(1) the sum of the products of the number of years from the date of
determination to the dates of each successive scheduled principal
payment of such Indebtedness or scheduled redemption or similar
payment with respect to such Preferred Stock multiplied by the amount
of such payment by
(2) the sum of all such payments.
"Bank Indebtedness" means all obligations under the U.S. Bank
Indebtedness and European Bank Indebtedness.
"Board of Directors" means the board of directors of the Company or
any committee thereof duly authorized to act on behalf of the board of directors
of the Company.
"Business Day" means each day which is not a Legal Holiday.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Capitalized Lease Obligations" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP.
4
"Change of Control" means the occurrence of any of the following
events:
(1) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) becomes the beneficial owner (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that for purposes of this
clause (1) such person shall be deemed to have "beneficial ownership"
of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than 50% of the total voting
power of the Voting Stock of the Company;
(2) during any period of two consecutive years, individuals who at the
beginning of such period constituted the board of directors of the
Company (together with any new directors whose election by such board
of directors of the Company or whose nomination for election by the
shareholders of the Company was approved by a vote of a majority of
the directors of the Company then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the board of directors of the
Company then in office;
(3) the adoption of a plan relating to the liquidation or dissolution of
the Company; or
(4) the merger or consolidation of the Company with or into another Person
or the merger of another Person with or into the Company, or the sale
of all or substantially all the assets of the Company (as determined
on a Consolidated basis) to another Person, and, in the case of any
such merger or consolidation, the securities of the Company that are
outstanding immediately prior to such transaction and which represent
100% of the aggregate voting power of the Voting Stock of the Company
are changed into or exchanged for cash, securities or property, unless
pursuant to such transaction such securities are changed into or
exchanged for, in addition to any other consideration, securities of
the surviving Person or transferee that represent immediately after
such transaction, at least a majority of the aggregate voting power of
the Voting Stock of the surviving Person or transferee.
"Closing Date" means November 21, 2006.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the TIA, each other obligor on
the indenture securities.
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"Consolidated Coverage Ratio" as of any date of determination means
the ratio of:
(1) the aggregate amount of EBITDA for the period of the most recent four
consecutive fiscal quarters ending prior to the date of such
determination for which financial statements have been filed with the
SEC to
(2) Consolidated Interest Expense for such four fiscal quarters;
provided, however, that:
(A) if the Company or any Restricted Subsidiary has Incurred any
Indebtedness since the beginning of such period that remains
outstanding on such date of determination or if the
transaction giving rise to the need to calculate the
Consolidated Coverage Ratio is an Incurrence of
Indebtedness, EBITDA and Consolidated Interest Expense for
such period shall be calculated after giving effect on a pro
forma basis to such Indebtedness as if such Indebtedness had
been Incurred on the first day of such period and the
discharge of any other Indebtedness repaid, repurchased,
defeased or otherwise discharged with the proceeds of such
new Indebtedness as if such discharge had occurred on the
first day of such period,
(B) if the Company or any Restricted Subsidiary has repaid,
repurchased, defeased or otherwise discharged any
Indebtedness since the beginning of such period or if any
Indebtedness is to be repaid, repurchased, defeased or
otherwise discharged (in each case other than Indebtedness
Incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid and has not been
replaced) on the date of the transaction giving rise to the
need to calculate the Consolidated Coverage Ratio, EBITDA
and Consolidated Interest Expense for such period shall be
calculated on a pro forma basis as if such discharge had
occurred on the first day of such period and as if the
Company or such Restricted Subsidiary had not earned the
interest income actually earned during such period in
respect of cash or Temporary Cash Investments used to repay,
repurchase, defease or otherwise discharge such
Indebtedness,
(C) if since the beginning of such period the Company or any
Restricted Subsidiary shall have made any Asset Disposition,
the EBITDA for such period shall be reduced by an amount
equal to the EBITDA (if positive) directly
6
attributable to the assets that are the subject of such
Asset Disposition for such period or increased by an amount
equal to the EBITDA (if negative) directly attributable
thereto for such period and Consolidated Interest Expense
for such period shall be reduced by an amount equal to the
Consolidated Interest Expense directly attributable to any
Indebtedness of the Company or any Restricted Subsidiary
repaid, repurchased, defeased or otherwise discharged with
respect to the Company and its Restricted Subsidiaries in
connection with such Asset Disposition for such period (or,
if the Capital Stock of any Restricted Subsidiary is sold,
the Consolidated Interest Expense for such period directly
attributable to the Indebtedness of such Restricted
Subsidiary to the extent the Company and its continuing
Restricted Subsidiaries are no longer liable for such
Indebtedness after such sale),
(D) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have
made an Investment in any Restricted Subsidiary (or any
Person that becomes a Restricted Subsidiary) or an
acquisition of assets, including any acquisition of assets
occurring in connection with a transaction causing a
calculation to be made hereunder, which constitutes all or
substantially all of an operating unit, division or line of
a business, EBITDA and Consolidated Interest Expense for
such period shall be calculated after giving pro forma
effect thereto (including the Incurrence of any
Indebtedness) as if such Investment or acquisition occurred
on the first day of such period, and
(E) if since the beginning of such period any Person that
subsequently became a Restricted Subsidiary or was merged
with or into the Company or any Restricted Subsidiary since
the beginning of such period shall have made any Asset
Disposition or any Investment or acquisition of assets that
would have required an adjustment pursuant to clause (C) or
(D) above if made by the Company or a Restricted Subsidiary
during such period, EBITDA and Consolidated Interest Expense
for such period shall be calculated after giving pro forma
effect thereto as if such Asset Disposition, Investment or
acquisition of assets occurred on the first day of such
period.
For purposes of this definition, whenever pro forma effect is to be given to an
acquisition of assets, Asset Disposition or other Investment, the amount of
income, EBITDA or
7
earnings relating thereto and the amount of Consolidated Interest Expense
associated with any Indebtedness Incurred in connection therewith, the pro forma
calculations shall be determined in good faith by a responsible Financial
Officer of the Company and shall comply with the requirements of Rule 11-02 of
Regulation S-X, as it may be amended or replaced from time to time, promulgated
by the SEC.
If any Indebtedness bears a floating rate of interest and is being given pro
forma effect, the interest expense on such Indebtedness shall be calculated as
if the rate in effect on the date of determination had been the applicable rate
for the entire period (taking into account any Interest Rate Agreement
applicable to such Indebtedness if such Interest Rate Agreement has a remaining
term as at the date of determination in excess of 12 months). If any
Indebtedness is Incurred or repaid under a revolving credit facility and is
being given pro forma effect, the interest on such Indebtedness shall be
calculated based on the average daily balance of such Indebtedness for the four
fiscal quarters subject to the pro forma calculation.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its Consolidated Restricted Subsidiaries,
plus, to the extent Incurred by the Company and its Consolidated Restricted
Subsidiaries in such period but not included in such interest expense, without
duplication:
(1) interest expense attributable to Capitalized Lease Obligations and the
interest expense attributable to leases constituting part of a
Sale/Leaseback Transaction that does not result in a Capitalized Lease
Obligation,
(2) amortization of debt discount and debt issuance costs,
(3) capitalized interest,
(4) noncash interest expense,
(5) commissions, discounts and other fees and charges attributable to
letters of credit and bankers' acceptance financing,
(6) interest accruing on any Indebtedness of any other Person to the
extent such Indebtedness is Guaranteed by (or secured by the assets
of) the Company or any Restricted Subsidiary and such Indebtedness is
in default under its terms or any payment is actually made in respect
of such Guarantee,
(7) net payments made pursuant to Hedging Obligations (including
amortization of fees),
(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
(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,
and less, to the extent included in such total interest expense, (A) any
breakage costs of Hedging Obligations terminated in connection with the offering
of the Securities on the Closing Date and the application of the net proceeds
therefrom and (B) the amortization during such period of capitalized financing
costs; provided, however, that for any financing consummated after the Closing
Date, the aggregate amount of amortization relating to any such capitalized
financing costs deducted in calculating Consolidated Interest Expense shall not
exceed 5% of the aggregate amount of the financing giving rise to such
capitalized financing costs.
"Consolidated Net Income" means, for any period, the net income of the
Company and its Consolidated Subsidiaries for such period; provided, however,
that there shall not be included in such Consolidated Net Income:
(1) any net income of any Person (other than the Company) if such Person
is not a Restricted Subsidiary, except that:
(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
(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;
(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;
(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
9
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:
(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
(B) the net loss of any such Restricted Subsidiary for such period
shall not be excluded in determining such Consolidated Net
Income;
(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;
(5) any extraordinary gain or loss; and
(6) the cumulative effect of a change in accounting principles.
Notwithstanding the foregoing, for the purpose of Section 4.04 only, there shall
be excluded from Consolidated Net Income any dividends, repayments of loans or
advances or other transfers of assets from Unrestricted Subsidiaries to the
Company or a Restricted Subsidiary to the extent such dividends, repayments or
transfers increase the amount of Restricted Payments permitted under Section
4.04(a)(3)(iv).
"Consolidation" means, unless the context otherwise requires, the
consolidation of (1) in the case of the Company, the accounts of each of the
Restricted Subsidiaries with those of the Company and (2) in the case of a
Restricted Subsidiary, the accounts of each Subsidiary of such Restricted
Subsidiary that is a Restricted Subsidiary with those of such Restricted
Subsidiary, in each case in accordance with GAAP consistently applied; provided,
however, that "Consolidation" will not include consolidation of the accounts of
any Unrestricted Subsidiary, but the interest of the Company or any Restricted
Subsidiary in an Unrestricted Subsidiary will be accounted for as an investment.
The term "Consolidated" has a correlative meaning.
"Credit Agreements" means the U.S. Credit Agreements and the European
Credit Agreement.
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"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 Noncash Consideration" means noncash 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 Noncash
Consideration, less the amount of cash or cash equivalents received in
connection with a subsequent sale of such Designated Noncash 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:
(1) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise,
(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
(3) is redeemable at the option of the holder thereof, in whole or in
part,
in the case of each of clauses (1), (2) and (3), on or prior to 180 days after
the Stated Maturity of any series of the Securities; provided, however, that any
Capital Stock that would not constitute Disqualified Stock but for provisions
thereof giving holders thereof the right to require such Person to repurchase or
redeem such Capital Stock upon the occurrence of an "asset sale" or "change of
control" occurring prior to the first anniversary of the Stated Maturity of any
series of the Securities shall not constitute Disqualified Stock if the "asset
sale" or "change of control" provisions applicable to such Capital Stock are not
more favorable in any material respect to the holders of such Capital Stock than
the provisions of Section 4.06 and Section 4.08; provided further, however, that
if such Capital Stock is issued to any employee or to any plan for the benefit
of employees of the Company or its Subsidiaries or by any such plan to such
employees, such Capital Stock shall not constitute Disqualified Stock solely
because it may be required to be repurchased by the Company in order to satisfy
applicable statutory or regulatory obligations or as a result of such employee's
termination, death or disability.
The amount of any Disqualified Stock that does not have a fixed redemption,
repayment or repurchase price will be calculated in accordance with the terms of
such Disqualified
11
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 Indenture; provided, however, that if such Disqualified Stock could not
be required to be redeemed, repaid or repurchased at the time of such
determination, the redemption, repayment or repurchase price will be the book
value of such Disqualified Stock as reflected in the most recent financial
statements of such Person.
"EBITDA" for any period means the Consolidated Net Income for such
period, plus, without duplication, the following to the extent deducted in
calculating such Consolidated Net Income:
(1) income tax expense of the Company and its Consolidated Restricted
Subsidiaries,
(2) Consolidated Interest Expense,
(3) depreciation expense of the Company and its Consolidated Restricted
Subsidiaries,
(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
(5) all other noncash charges of the Company and its Consolidated
Restricted Subsidiaries (excluding any such noncash charge to the
extent it represents an accrual of or reserve for cash expenditures in
any future period) less all noncash items of income of the Company and
its Restricted Subsidiary in each case for such period (other than
normal accruals in the ordinary course of business).
Notwithstanding the foregoing, the provision for taxes based on the income or
profits of, and the depreciation and amortization and noncash charges of, a
Restricted Subsidiary of the Company shall be added to Consolidated Net Income
to compute EBITDA only to the extent (and in the same proportion) that the net
income of such Restricted Subsidiary was included in calculating Consolidated
Net Income and only if (A) a corresponding amount would be permitted at the date
of determination to be dividended to the Company by such Restricted Subsidiary
without prior approval (that has not been obtained), pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to such Restricted
Subsidiary or its shareholders or (B) in the case of any Foreign Subsidiary, a
corresponding amount of cash is readily procurable by the Company from such
Foreign Subsidiary (as determined in good faith by a Financial Officer of the
Company) pursuant to intercompany loans, repurchases of Capital Stock or
otherwise, provided that to the extent cash of such Foreign Subsidiary provided
the basis for including the net income of such Foreign Subsidiary in
Consolidated Net Income pursuant to clause (3) of the definition of
"Consolidated Net Income," such cash shall not be taken into account for the
purposes of determining readily procurable cash under this clause (B).
12
"Equity Offering" means a public or private offering of Capital Stock
(other than Disqualified Stock) of the Company.
"Euro Equivalent" means with respect to any monetary amount in a
currency other than euros, at any time of determination thereof, the amount of
euros obtained by converting such foreign currency involved in such computation
into euros at the spot rate for the purchase of euros with the applicable
foreign currency as published in The Wall Street Journal in the "Exchange Rates"
column under the heading "Currency Trading" on the date two Business Days prior
to such determination. Except as described in Section 4.03, whenever it is
necessary to determine whether the Company has complied with any covenant in
this Indenture or a Default has occurred and an amount is expressed in a
currency other than euros, such amount will be treated as the Euro Equivalent
determined as of the date such amount is initially determined in such currency.
"European Bank Indebtedness" means any and all amounts payable under
or in respect of the European Credit Agreement and any Refinancing Indebtedness
with respect thereto or with respect to such Refinancing Indebtedness, as
amended from time to time, including principal, premium (if any), 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 European Amended and Restated
Term Loan and Revolving Credit Agreement, dated as April 8, 2005, among the
Company, Goodyear Dunlop Tires Europe B.V., Goodyear Dunlop Tires Germany GMBH,
Goodyear GMBH & Co. KG, Dunlop GMBH & Co. KG and Goodyear Luxembourg Tires S.A.,
the Lenders party thereto, X.X. Xxxxxx Europe Limited, as Administrative Agent,
JPMorgan Chase Bank, N.A., as Collateral Agent, the Mandated Lead Arrangers
therein, X.X. Xxxxxx PLC, as Joint Bookrunner and Mandated Lead Arranger and BNP
Paribas, as Joint Bookrunner and Mandated Lead Arranger, 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 the Indenture,
unless otherwise agreed to by the Holders of at least a majority in aggregate
principal amount of Notes at the time outstanding).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length, free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction as such price is,
unless specified otherwise in this Indenture, determined in good faith by a
Financial Officer of the
13
Company or by the Board of Directors. Fair Market Value (other than of any asset
with a public trading market) of any asset or property (or group of assets or
property subject to an event giving rise to a requirement under this Indenture
that "Fair Market Value" be determined) in excess of $25,000,000 shall be
determined by the Board of Directors or a duly authorized committee thereof.
"Financial Officer" means the Chief Financial Officer, the Treasurer
or the Chief Accounting Officer of the Company.
"Fixed Rate Securities" means the 8.625% Senior Notes due 2011 issued
pursuant to this Indenture, including the Initial Fixed Rate Securities, the
Fixed Rate Exchange Securities and the Additional Fixed Rate Securities, if any,
treated as a single class.
"Floating Rate Securities" means the Senior Floating Rate Notes due
2009 issued pursuant to this Indenture, including the Initial Floating Rate
Securities, the Floating Rate Exchange Securities, and the Additional Fixed Rate
Securities, if any, treated as a single class.
"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.
All ratios and computations based on GAAP contained in this Indenture shall be
computed in conformity with GAAP.
"Goodyear Canada" means Goodyear Canada Inc., an Ontario corporation,
and its successors and permitted assigns.
14
"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
(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 and interest on the
Securities when due, whether at Stated Maturity, by acceleration or otherwise,
and all other obligations, monetary or otherwise, of the Company under this
Indenture and the Securities (including expenses and indemnification).
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement, Currency Agreement or Raw
Materials Hedge Agreement.
"Holder" means the Person in whose name a Security 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;
15
(3) all obligations of such Person for the reimbursement of any obligor on
any letter of credit, bankers' acceptance or similar credit
transaction (other than obligations with respect to letters of credit
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 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);
(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; 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.
16
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 this Indenture as amended or supplemented from time
to time.
"Interest Rate Agreement" means, with respect to any Person, any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement to which such Person is party or of which
it is a beneficiary.
"Investment" in any Person means any direct or indirect advance, loan
or other extension of credit (including by way of Guarantee or similar
arrangement) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the account
or use of others), or any purchase or acquisition of Capital Stock, Indebtedness
or other similar instruments issued by, such Person. For purposes of the
definition of "Unrestricted Subsidiary" and Section 4.04:
(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 and BBB- (or the equivalent) by Standard and
Poor's, or an equivalent rating by any other Rating Agency.
17
"Legal Holiday" means a Saturday, Sunday or other day on which 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 Xxxxx'x Investors Service, Inc. and any successor to
its rating business.
"Net Available Cash" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise and proceeds
from the sale or other disposition of any securities received as consideration,
in each case only as and when received, but excluding any other consideration
received in the form of assumption by the acquiring Person of Indebtedness or
other obligations relating to the properties or assets that are the subject of
such Asset Disposition or received in any other noncash 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.
18
"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 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 is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company, a Subsidiary Guarantor or the Trustee.
"Permitted Business" means any business engaged in by the Company or
any Restricted Subsidiary on the Closing Date and any Related Business.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in:
(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 or advances to 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)
19
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 noncash
portion of the consideration received for an Asset Disposition that
was made pursuant to and in compliance with Section 4.06;
(9) a Receivables Entity or any Investment by a Receivables Entity in any
other Person in connection with a Qualified Receivables Transaction,
including Investments of funds held in accounts permitted or required
by the arrangements governing such Qualified Receivables Transaction
or any related Indebtedness; provided, however, that any Investment in
a Receivables Entity is in the form of a Purchase Money Note,
contribution of additional receivables or an equity interest;
(10) any Person to the extent such Investments consist of prepaid expenses,
negotiable instruments held for collection and lease, utility and
workers' compensation, performance and other similar deposits made in
the ordinary course of business by the Company or any Restricted
Subsidiary;
(11) any Person to the extent such Investments consist of Hedging
Obligations otherwise permitted under Section 4.03;
(12) any Person to the extent such Investment in such Person existed on the
Closing Date and any Investment that replaces, refinances or refunds
such an Investment, provided that the new Investment is in an amount
that does not exceed that amount replaced, refinanced or refunded and
is made in the same Person as the Investment replaced, refinanced or
refunded;
(13) advances to, and Guarantees for the benefit of, customers, dealers or
suppliers made in the ordinary course of business and consistent with
past practice; and
(14) any Person to the extent such Investment, when taken together with all
other Investments made pursuant to this clause (14) and then
outstanding on the date such Investment is made, does not exceed the
greater of (A) the sum of (i) $500,000,000 and (ii) any amounts under
Section 4.04(a)(3)(iv)(x) that were excluded by operation of the
proviso in Section 4.04(a)(3)(iv) and which excluded amounts are not
otherwise included in Consolidated Net Income or intended to be
permitted under any of clauses (1) through (13) of this definition and
(B) 5.0% of Consolidated assets of the Company as of the end of the
most recent fiscal quarter for which financial statements of the
Company have been filed with the SEC.
"Permitted Liens" means, with respect to any Person:
(1) Liens to secure Indebtedness permitted pursuant to Section 4.03(b)(1);
20
(2) Liens to secure Indebtedness permitted pursuant to Section 4.03(a)
(but only to the extent deemed Incurred pursuant to Section
4.03(c)(1)(B)) and Sections 4.03(b)(11), 4.03(b)(12) and 4.03(b)(13);
(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;
(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 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 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,
21
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 clauses (1) and (2));
(10) Liens on property or shares of stock of another Person at the time
such other Person becomes a Subsidiary of such Person; provided,
however, that such Liens are not created, Incurred or assumed in
connection with, or in contemplation of, such other Person becoming
such a Subsidiary; provided further, however, that such Liens do not
extend to any other property owned by such Person or any of its
Subsidiaries, except pursuant to after-acquired property clauses
existing in the applicable agreements at the time such Person becomes
a Subsidiary which do not extend to property transferred to such
Person by the Company or a Restricted Subsidiary;
(11) Liens on property at the time such Person or any of its Subsidiaries
acquires the property, including any acquisition by means of a merger
or consolidation with or into such Person or any Subsidiary of such
Person; provided, however, that such Liens are not created, Incurred
or assumed in connection with, or in contemplation of, such
acquisition; provided further, however, that the Liens do not extend
to any other property owned by such Person or any of its Subsidiaries;
(12) Liens securing Indebtedness or other obligations of a Subsidiary of
such Person owing to such Person or a Restricted Subsidiary of such
Person;
(13) Liens securing Hedging Obligations so long as such Hedging Obligations
are permitted to be Incurred under this 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
22
under clauses (8), (9), (10) or (11) at the time the
original Lien became a Permitted Lien under this 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;
(18) Liens arising from Uniform Commercial Code financing statement filings
regarding leases that do not otherwise constitute Indebtedness entered
into in the ordinary course of business;
(19) leases and subleases of real property which do not materially
interfere with the ordinary conduct of the business of the Company and
its Subsidiaries;
(20) Liens which constitute bankers' Liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained
with any bank or other financial institution, whether arising by
operation of law or pursuant to contract;
(21) Liens on specific items of inventory or other goods and proceeds of
any Person securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or
other goods;
(22) Liens on specific items of inventory or other goods and related
documentation (and proceeds thereof) securing reimbursement
obligations in respect of trade letters of credit issued to ensure
payment of the purchase price for such items of inventory or other
goods; and
(23) other Liens to secure Indebtedness as long as the amount of
outstanding Indebtedness secured by Liens Incurred pursuant to this
clause (23) does not exceed 7.5% of Consolidated assets of the
Company, as determined based on the consolidated balance sheet of the
Company as of the end of the most recent fiscal quarter for which
financial statements have been filed with the SEC; provided, however,
notwithstanding whether this clause (23) would otherwise be available
to secure Indebtedness, Liens securing Indebtedness originally secured
pursuant to this clause (23) may secure Refinancing Indebtedness in
respect of such Indebtedness and such
23
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.
"principal" of a Security means the principal of the Security plus the
premium, if any, payable on the Security which is due or overdue or is to become
due at the relevant time.
"Private Placement Memorandum" means the Offering Circular, dated
November 16, 2006, with respect to the Securities, 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 and
equipment, conditional sale obligations, obligations under any title
retention agreement and other obligations Incurred in connection with
the acquisition, construction or improvement of such asset, in each
case where the amount of such Indebtedness does not exceed the greater
of (A) the cost of the asset being financed and (B) the Fair Market
Value of such asset, and
(2) Incurred to finance such acquisition, construction or improvement by
the Company or a Restricted Subsidiary of such asset;
provided, however, that such Indebtedness is Incurred within 180 days after such
acquisition or the completion of such construction or improvement.
"Purchase Money Note" means a promissory note of a Receivables Entity
evidencing a line of credit, which may be irrevocable, from the Company or any
Subsidiary of the Company to a Receivables Entity in connection with a Qualified
Receivables Transaction, which note
(1) shall be repaid from cash available to the Receivables Entity, other
than
(A) amounts required to be established as reserves,
(B) amounts paid to investors in respect of interest,
24
(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 (a).
"Qualified Receivables Transaction" means any transaction or series of
transactions that may be entered into by the Company or any of its Subsidiaries
pursuant to which the Company or any of its Subsidiaries may sell, convey or
otherwise transfer to:
(1) a Receivables Entity (in the case of a transfer by the Company or any
of its Subsidiaries) or
(2) any other Person (in the case of a transfer by a Receivables Entity),
or may grant a security interest in, any accounts receivable (whether now
existing or arising in the future) of the Company or any of its Subsidiaries,
and any assets related thereto including, without limitation, all collateral
securing such accounts receivable, all contracts and all Guarantees or other
obligations in respect of such accounts receivable, proceeds of such accounts
receivable and other assets which are customarily transferred or in respect of
which security interests are customarily granted in connection with asset
securitization transactions involving accounts receivable; provided, however,
that the financing terms, covenants, termination events and other provisions
thereof shall be market terms (as determined in good faith by a Financial
Officer of the Company).
The grant of a security interest in any accounts receivable of the Company or
any of its Restricted Subsidiaries to secure Bank Indebtedness shall not be
deemed a Qualified Receivables Transaction.
"Rating Agency" means Standard & Poor's and Moody's or if Standard &
Poor's or Moody's or both shall not make a rating on the Securities publicly
available, a nationally recognized statistical rating agency or agencies, as the
case may be, selected by the Company (as certified by a resolution of the Board
of Directors) which shall be substituted for Standard & Poor's or Moody's or
both, as the case may be.
"Receivables Entity" means a (a) Wholly Owned Subsidiary of the
Company which is designated by the Board of Directors (as provided below) as a
Receivables Entity or (b) another Person engaging in a Qualified Receivables
Transaction with the Company which Person engages in the business of the
financing of accounts receivable, and in either of clause (a) or (b):
(1) no portion of the Indebtedness or any other obligations (contingent or
otherwise) of which
(A) is Guaranteed by the Company or any Subsidiary of the Company
(excluding Guarantees of obligations (other than the principal
of,
25
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;
(2) which is not an Affiliate of the Company or with which neither the
Company nor any Subsidiary of the Company has any material contract,
agreement, arrangement or understanding other than on terms which the
Company reasonably believes to be no less favorable to the Company or
such Subsidiary than those that might be obtained at the time from
Persons that are not Affiliates of the Company; and
(3) to which neither the Company nor any Subsidiary of the Company has any
obligation to maintain or preserve such entity's financial condition
or cause such entity to achieve certain levels of operating results.
Any such designation by the Board of Directors shall be evidenced to the Trustee
by filing with the Trustee a certified copy of the resolution of the Board of
Directors giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions.
"Reference Date" means March 12, 2004.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness 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 Indenture (including Indebtedness of
the Company that Refinances Refinancing Indebtedness); provided, however, that:
(1) the Refinancing Indebtedness has a Stated Maturity no earlier than the
Stated Maturity of the Indebtedness being Refinanced,
(2) the Refinancing Indebtedness has an Average Life at the time such
Refinancing Indebtedness is Incurred that is equal to or greater than
the Average Life of the Indebtedness being refinanced,
26
(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 Securities, such Refinancing Indebtedness is
subordinated in right of payment to the Securities at least to the
same extent as the Indebtedness being Refinanced;
provided further, however, that Refinancing Indebtedness shall not include:
(A) Indebtedness of a Restricted Subsidiary that is not a Grantor
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.
"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 a Restricted Subsidiary) or any Capital Stock of a
Restricted Subsidiary held by any affiliate of such Person (other than
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, of any scheduled
repayment or any scheduled sinking fund payment, any Subordinated
Obligations (other than the Purchase for value of Subordinated
27
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.
"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 Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to
property, plant and 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 and equipment or any
improvements thereto at the time of, or within 180 days after, the acquisition
or completion of construction of such property, plant and equipment or such
improvements (or, if later, the commencement of commercial operation of any such
property, plant and equipment), as the case may be, to finance the cost of such
property, plant and equipment or such improvements, as the case may be.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Company secured
by a Lien. "Secured Indebtedness" of a Subsidiary Guarantor has a correlative
meaning.
"Securities" means the Fixed Rate Securities and the Floating Rate
Securities.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Senior Indebtedness" of the Company or any Subsidiary Guarantor, as
the case may be, means the principal of, premium (if any) and accrued and unpaid
interest 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 Securities (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 Securities or
such Subsidiary Guarantor's Subsidiary Guarantee, as applicable;
28
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 of
such Subsidiary Guarantor to the Company or any other Subsidiary of
the Company;
(2) any liability for Federal, state, local or other taxes owed or owing
by the Company or such Subsidiary Guarantor, as applicable;
(3) any accounts payable or other liability to trade creditors arising in
the ordinary course of business (including Guarantees thereof or
instruments evidencing such liabilities);
(4) any Indebtedness or obligation of the Company (and any accrued and
unpaid interest in respect thereof) that by its terms is subordinate
or junior in right of payment to any other Indebtedness or obligation
of the Company or such Subsidiary Guarantor, as applicable, including
any Subordinated Obligations of the Company or such Subsidiary
Guarantor, as applicable;
(5) any obligations with respect to any Capital Stock; or
(6) any Indebtedness Incurred in violation of this Indenture.
"Senior Secured Notes" means the Company's $450,000,000 11% Senior
Secured Notes due 2011 and $200,000,000 Senior Secured Floating Rate Notes due
2011.
"Significant Subsidiary" means any Restricted Subsidiary that would be
a "Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Specified Asset Sale" means the sale of all or a substantial portion
of the assets and liabilities of (i) the Company's Chemical Products strategic
business segment or (ii) the Company's Engineered Products strategic business
segment.
"Standard & Poor's" means Standard & Poor's, a division of The
XxXxxx-Xxxx Companies, Inc., and any successor to its rating business.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Subsidiary of the Company which, taken as a whole, are customary in an accounts
receivable transaction.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the
29
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 Securities.
"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:
(1) such Person,
(2) such Person and one or more Subsidiaries of such Person or
(3) one or more Subsidiaries of such Person.
"Subsidiary Guarantee" means, with respect to each series of
Securities, each Guarantee of the obligations with respect to the Securities of
such series issued by a Subsidiary of the Company pursuant to the terms of this
Indenture.
"Subsidiary Guarantor" means any Subsidiary that has issued a
Subsidiary Guarantee.
"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 by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States of America), in each
case maturing within one year from the date of acquisition thereof;
(2) investments in commercial paper maturing within 270 days from the date
of acquisition thereof, and having, at such date of acquisition,
ratings of A1 from Standard & Poor's and P1 from Moody's;
(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 which has a
short-term deposit rating of A1 from Standard & Poor's and P1 from
Moody's and has a combined capital and surplus and undivided profits
of not less than $500,000,000;
30
(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, (B) are rated AAA
by Standard & Poor's and Aaa by Moody's and (C) have portfolio assets
of at least $5,000,000,000; and
(6) in the case of any Foreign Subsidiary, (A) marketable direct
obligations issued or unconditionally guaranteed by the sovereign
nation in which such Foreign Subsidiary is organized and is conducting
business or issued by any agency of such sovereign nation and backed
by the full faith and credit of such sovereign nation, in each case
maturing within one year from the date of acquisition, so long as the
indebtedness of such sovereign nation is rated at least A by Standard
& Poor's or A2 by Moody's or carries an equivalent rating from a
comparable foreign rating agency, (B) investments of the type and
maturity described in clauses (2) through (5) of foreign obligors,
which investments or obligors have ratings described in such clauses
or equivalent ratings from comparable foreign rating agencies, (C)
investments of the type and maturity described in clause (3) in any
obligor organized under the laws of a jurisdiction other than the
United States that (i) is a branch or subsidiary of a lender or the
ultimate parent company of a lender under any of the Credit Agreements
(but only if such lender meets the ratings and capital, surplus and
undivided profits requirements of such clause (3)) or (ii) carries a
rating at least equivalent to the rating of the sovereign nation in
which it is located, and (D) other investments of the type and
maturity described in clause (3) in obligors organized under the laws
of a jurisdiction other than the United States in any country in which
such Subsidiary is located; provided, however, that the investments
permitted under this subclause (D) shall be made in amounts and
jurisdictions consistent with the Company's policies governing
short-term investments.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
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.
"Trustee" means, with respect to any series of Securities, the party
named as such in this Indenture until a successor replaces it and, thereafter,
means the successor.
31
"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.
"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.
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 filing with the Trustee a copy of the resolution of the Board of
Directors giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing provisions.
"U.S. Bank Indebtedness" means any and all amounts payable under or in
respect of the U.S. Credit Agreements and any Refinancing Indebtedness with
respect thereto or with respect to such Refinancing Indebtedness, as amended
from time to time, including principal, premium (if any), interest (including
interest accruing on or after the
32
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 First Lien Credit Agreement,
dated as of April 8, 2005, among the Company, as Borrower, the Lenders party
thereto, the Issuing Banks party thereto, Citicorp USA, Inc., as Syndication
Agent, Bank of America, N.A., as Documentation Agent, The CIT Group/Business
Credit, Inc., as Documentation Agent, General Electric Capital Corporation, as
Documentation Agent, GMAC Commercial Finance LLC, as Documentation Agent,
JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent, X.X.
Xxxxxx Securities, Inc., as Joint Lead Arranger and Joint Bookrunner, and
Citigroup Global Markets Inc., as Joint Lead Arranger and Joint Bookrunner and
(ii) the Second Lien Credit Agreement, dated as of April 8, 2005, among the
Company, as Borrower, the Lenders Party thereto, Deutsche Bank Trust Company
Americas, as Collateral Agent, JPMorgan Chase Bank, N.A., as Administrative
Agent, X.X. Xxxxxx Securities Inc., as Joint Lead Arranger and Joint Bookrunner
and Deutsche Bank Securities Inc., as Joint Lead Arranger and Joint Bookrunner,
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
the Indenture, unless otherwise agreed to by the Holders of at least a majority
in aggregate principal amount of Notes at the time outstanding.)
"U.S. Dollar Equivalent" means with respect to any monetary amount in
a currency other than U.S. dollars, at any time for determination thereof, the
amount of U.S. dollars obtained by converting such foreign currency involved in
such computation into U.S. dollars at the spot rate for the purchase of U.S.
dollars with the applicable foreign currency as published in The Wall Street
Journal in the "Exchange Rates" column under the heading "Currency Trading" on
the date two Business Days prior to such determination.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
33
"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 1.02. Other Definitions.
Defined in
Term Section
---- ----------
"Affiliate Transaction"............................................ 4.07(a)
"Bankruptcy Law"................................................... 6.01
"Change of Control Offer".......................................... 4.08(b)
"covenant defeasance option"....................................... 8.01(b)
"Custodian"........................................................ 6.01
"Definitive Security".............................................. Appendix A
"Event of Default"................................................. 6.01
"Exchange Securities".............................................. Appendix A
"Fixed Rate Exchange Securities"................................... Appendix A
"Fixed Rate Registration Rights Agreement"......................... Appendix A
"Floating Rate Exchange Securities"................................ Appendix A
"Floating Rate Registration Rights Agreement"...................... Appendix A
"Global Security".................................................. Appendix A
"Initial Lien"..................................................... 4.09
"Initial Securities"............................................... Appendix A
"Initial Fixed Rate Securities".................................... Appendix A
"Initial Floating Rate Securities"................................. Appendix A
"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
"Registration Rights Agreement".................................... Appendix A
"Restricted Payment"............................................... 1.01
"Reversion Date"................................................... 4.12(b)
"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)
SECTION 1.03. Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
34
"Commission" means the SEC;
"indenture securities" means the Securities and the Subsidiary
Guarantees;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company, each
Subsidiary Guarantor and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(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;
(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 noninterest 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
35
(10) all references to the date the Securities were originally issued
shall refer to the Closing Date.
ARTICLE 2
The Securities
SECTION 2.01. Form and Dating. Provisions relating to the Initial
Securities and the Exchange Securities are set forth in Appendix A attached
hereto (the "Appendix") which is hereby incorporated in, and expressly made part
of, this Indenture. The Initial Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit 1(a) or 2(a) to
this Indenture, as applicable, which are hereby incorporated in and expressly
made a part of this Indenture. The Exchange Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit 1(b)
or 2(b) to this Indenture, as applicable, which are hereby incorporated in and
expressly made a part of this Indenture. The Securities 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 Security
shall be dated the date of its authentication. The terms of the Securities set
forth in the Appendix and Exhibits 1(a) and 2(a) are part of the terms of this
Indenture. The Securities shall be issuable only in registered form without
interest coupons and only in denominations of $2,000 and integral multiples of
$1,000 in excess thereof.
SECTION 2.02. Execution and Authentication. One Officer shall sign the
Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities as set forth in Appendix A.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Securities. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as any Registrar, Paying Agent or agent for service of notices and
demands.
SECTION 2.03. Registrar and Paying Agent. (a) The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency, where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the
36
Securities and of their transfer and exchange. The Company may have one or more
co-registrars and one or more additional paying agents provided, however, that
so long as Xxxxx Fargo Bank, National Association, 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 Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any Wholly Owned Subsidiary incorporated or organized within The
United States of America may act as Paying Agent, Registrar, co-registrar or
transfer agent.
The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents, and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Registrar need not register transfers or exchanges of Securities selected
for redemption (except, in the case of Securities to be redeemed in part, the
portion thereof not to be redeemed) or any Securities for a period of 15 days
before a selection of Securities to be redeemed, or any Securities for a period
of 15 days before an interest payment date. The Holder of a Security may be
treated as the owner of such Security for all purposes.
(b) The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the Securities and Securities Custodian with respect to
the Global Securities.
(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 evidence 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.
SECTION 2.04. Paying Agent To Hold Money in Trust. The Company shall
require each Paying Agent (other than the Trustee) to agree in writing that the
Paying Agent shall hold in trust for the benefit of Holders of Securities of a
series or the Trustee all money held by the Paying Agent for the payment of
principal of or interest on the Securities of such series and shall notify the
Trustee of any default by the Company in making any such payment. If the Company
or a Subsidiary acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and to account
for any funds disbursed by the Paying Agent. Upon complying
37
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 Securities. The Trustee shall
preserve in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of Holders of Securities of each
series. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee, in writing at least five Business Days before each interest payment
date with respect to a series of Securities and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders of
Securities of such series.
SECTION 2.06. Transfer and Exchange. (a) The Securities shall be
issued in registered form and shall be transferable only in compliance with
Appendix A and upon the surrender of a Security for registration of transfer.
When a Security is presented to the Registrar or a co-registrar with a request
to register a transfer, the Registrar shall register the transfer as requested
if the requirements of this Indenture and Section 8-401(1) of the Uniform
Commercial Code are met. When Securities are presented to the Registrar or a
co-registrar with a request to exchange them for an equal principal amount of
Securities 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 Securities at the Registrar's
request. The Company may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges in connection with any transfer or
exchange pursuant to this Section. The Company shall not be required to make and
the Registrar need not register transfer or exchanges of Securities selected for
redemption in accordance with the terms of this Indenture (except, in the case
of Securities to be redeemed in part, the portion thereof not to be redeemed) or
any Securities for a period of 15 days before a selection of Securities to be
redeemed or any Securities for a period of 15 days before an interest payment
date.
Prior to the due presentation for registration of transfer of any
Security, the Company, the Subsidiary Guarantors, the Trustee, the Paying Agent
and the Registrar may deem and treat the Person in whose name a Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and (subject to paragraph 2 of the Securities) interest,
if any, on such Security and for all other purposes whatsoever, whether or not
such Security is overdue, and none of the Company, any Subsidiary Guarantor, the
Trustee, the Paying Agent, or the Registrar shall be affected by notice to the
contrary.
Any Holder of a beneficial interest in a Global Security shall, by
acceptance of such beneficial interest, agree that transfers of beneficial
interest in such Global Security may be effected only through a book-entry
system maintained by (a) the Holder of such Global Security (or its agent) or
(b) any Holder of a beneficial interest in
38
such Global Security, and that ownership of a beneficial interest in such Global
Security shall be required to be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant to the
terms of this Indenture shall evidence the same Indebtedness and shall be
entitled to the same benefits under this Indenture as the Securities surrendered
upon such transfer or exchange.
SECTION 2.07. Replacement Securities. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security 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 Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss which any of them
may suffer if a Security is replaced. The Company and the Trustee may charge the
Holder for their expenses in replacing a Security.
Every replacement Security is an additional Obligation of the Company.
The provisions of this Section 2.07 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 Securities.
SECTION 2.08. Outstanding Securities. Securities of a series
outstanding at any time are all Securities of such series authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation
and those described in this Section as not outstanding. Subject to Section
11.06, a Security does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal and interest payable on that date with respect to the Securities
(or portions thereof) of a series to be redeemed or maturing, as the case may
be, then on and after that date such Securities (or portions thereof) cease to
be outstanding and interest on them ceases to accrue.
SECTION 2.09. Temporary Securities. Until definitive Securities are
ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities and
deliver them in exchange for
39
temporary Securities upon surrender of such temporary Securities at the office
or agency of the Company, without charge to the Holder.
SECTION 2.10. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel and
destroy (subject to the record retention requirements of the Exchange Act) all
Securities surrendered for registration of transfer, exchange, payment or
cancellation and deliver a certificate of such destruction to the Company. The
Company may not issue new Securities to replace Securities it has redeemed, paid
or delivered to the Trustee for cancellation. The Trustee shall not authenticate
Securities in place of cancelled Securities other than pursuant to the terms of
this Indenture.
SECTION 2.11. Defaulted Interest. If the Company defaults in a payment
of interest on a series of the Securities, the Company shall pay defaulted
interest (plus interest on such defaulted interest to the extent lawful) on such
series in any lawful manner. The Company may pay the defaulted interest on such
series to the persons who are Holders of Securities of such series on a
subsequent special record date. The Company shall fix or cause to be fixed any
such special record date and payment date to the reasonable satisfaction of the
Trustee and shall promptly mail or cause to be mailed to each Holder of
Securities of such series a notice that states the special record date, the
payment date and the amount of defaulted interest to be paid.
SECTION 2.12. CUSIP Numbers and ISINs. The Company in issuing the
Securities may use "CUSIP" numbers and ISINs (if then generally in use) and, if
so, the Trustee shall use "CUSIP" numbers and ISINs in notices of redemption as
a convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
SECTION 2.13. Issuance of Additional Securities. 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, to issue Additional
Securities of any series under this Indenture, which Securities shall have
identical terms as the applicable series of Initial Securities issued on the
Closing Date, other than with respect to the date of issuance and issue price.
All Fixed Rate Securities issued under this Indenture (including any Additional
Fixed Rate Securities) shall be treated as a single class for all purposes of
this Indenture, including in respect of any amendment, waiver, other
modification or optional redemption by the Company. All Floating Rate Securities
issued under this Indenture (including any Additional Floating Rate Securities)
shall be treated as a single class for all purposes of this Indenture, including
in respect of any amendment, waiver, other modification or optional redemption
by the Company.
40
The Fixed Rate Securities and the Floating Rate Securities shall be
treated as separate classes for all purposes of this Indenture, including in
respect of amendments, waivers, other modifications or optional redemptions and
the application of, and determination of compliance with, the covenants
contained in Article 4 hereof.
With respect to any Additional Securities of a series, 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 Securities of such series), the following
information:
(1) the aggregate principal amount of such Additional Securities to be
authenticated and delivered pursuant to this Indenture and the provision of
Section 4.03 that the Company is relying on to issue such Additional
Securities;
(2) the series, the issue price, the issue date, the CUSIP number and
ISIN of such Additional Securities; provided, however, that no Additional
Fixed Rate Securities may be issued at a price that would cause such Fixed
Rate Additional Securities to have "original issue discount" within the
meaning of Section 1273 of the Code and no Additional Floating Rate
Securities may be issued at a price that would cause such Floating Rate
Securities to have "original issue discount" in excess of the "original
issue discount" at which the Initial Floating Rate Securities were issued
on the Closing Date; and
(3) whether such Additional Securities shall be Initial Securities or
shall be issued in the form of Exchange Securities as set forth in Exhibit
1(b) or 2(b), as the case may be.
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee. If the Company elects to redeem
Securities of any series pursuant to paragraph 6 of such series of Securities,
it shall notify the Trustee in writing of the redemption date, the principal
amount of such series of Securities to be redeemed and the paragraph of such
series of Securities pursuant to which the redemption will occur.
The Company shall give each notice to the Trustee provided for in this
Section at least 45 days before the redemption date unless the Trustee consents
to a shorter period. Such notice shall be accompanied by an Officers'
Certificate to the effect that such redemption will comply with the conditions
herein. Any such notice may be cancelled by the Company at any time prior to
notice of such redemption being mailed to any Holder and shall thereby be void
and of no effect unless the Trustee has sent the notice of redemption pursuant
to Section 3.03 below.
SECTION 3.02. Selection of Securities to Be Redeemed. If fewer than
all the Securities of a series are to be redeemed, the Trustee, subject to the
procedures of DTC, shall select the Securities of such series to be redeemed pro
rata or by lot or by a
41
method that complies with applicable legal and securities exchange requirements,
if any, and that the Trustee in its sole discretion shall deem to be fair and
appropriate. The Trustee shall make the selection from outstanding Securities of
such series not previously called for redemption. The Trustee may select for
redemption portions of the principal amount of Securities of such series that
have denominations larger than $2,000. Securities and portions of them the
Trustee selects shall be in principal amounts of $2,000 or a whole multiple of
$1,000 in excess thereof. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly of the Securities or
portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not more than
60 days before a date for redemption of Securities of a series, the Company, or
the Trustee (at the direction of the Company), shall mail a notice of redemption
by first-class mail to each Holder of Securities of such series to be redeemed
at such Holder's registered address.
The notice shall identify the Securities of such series to be redeemed
and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities of such series are to
be redeemed, the identification and principal amounts of the particular
Securities to be redeemed;
(6) that, unless the Company defaults in making such redemption
payment, interest on Securities (or portion thereof) called for redemption
ceases to accrue on and after the redemption date; and
(7) that no representation is made as to the correctness or accuracy
of the CUSIP number or ISIN, if any, listed in such notice or printed on
the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed to Holders, Securities of a series called for redemption
become due and payable on the redemption date and at the redemption price stated
in the notice.
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Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price stated in the notice, plus accrued interest to the redemption
date (subject to the right of Holders of record on the relevant record date to
receive interest due on the related interest payment date if the redemption date
is after a regular record date and on or prior to the interest payment date).
Failure to give notice or any defect in the notice to any Holder shall not
affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to 11:00 a.m., New
York City time, on the redemption date, the Company shall deposit with the
Paying Agent (or, if the Company or a Subsidiary is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of and
accrued interest on all Securities of a series or portions thereof to be
redeemed on that date other than Securities of such series or portions of
Securities of such series called for redemption which have been delivered by the
Company to the Trustee for cancellation. Interest shall cease to accrue on
Securities or portions thereof called for redemption on and after the date the
Company has deposited with the Paying Agent funds sufficient to pay the
principal of, plus accrued and unpaid interest, on the Securities to be
redeemed, unless the Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities. The Company shall promptly pay
the principal of and interest on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal and interest shall
be considered paid on the date due if as of 1:00 p.m. Eastern Time on such date
the Trustee or the Paying Agent holds in accordance with this 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 Securities, 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
43
shareholders generally. The Company also shall comply with the other provisions
of Section 314(a) of the TIA.
In addition, the Company shall furnish to the Holders of the
Securities and to prospective investors, upon the requests of such Holders, any
information with respect to the Company required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act so long as the Securities are not
freely transferable under the Securities Act.
SECTION 4.03. Limitation on Indebtedness. (a) The Company shall not,
and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided, however, that the Company or any
Subsidiary Guarantor may Incur Indebtedness if on the date of such Incurrence
and after giving effect thereto and the application of the proceeds therefrom
the Consolidated Coverage Ratio would be greater than 2.0:1.0.
(b) Notwithstanding the foregoing paragraph (a), the Company and its
Restricted Subsidiaries may Incur the following Indebtedness:
(1) (x) U.S. Bank Indebtedness in an aggregate principal amount not
to exceed the greater of (A) $3,000,000,000, less the aggregate
amount of all prepayments of principal applied to permanently
reduce any such Indebtedness in satisfaction of the Company's
obligations under Section 4.06 and (B) the sum of (i) 60% of the
book value of the inventory of the Company and its Restricted
Subsidiaries plus (ii) 80% of the book value of the accounts
receivable of the Company and its Restricted Subsidiaries (other
than any accounts receivable pledged, sold or otherwise
transferred or encumbered by the Company or any Restricted
Subsidiary in connection with a Qualified Receivables
Transaction), in each case, as of the end of the most recent
fiscal quarter for which financial statements have been filed
with the SEC and (y) European Bank Indebtedness in an aggregate
principal amount not to exceed E525,000,000; 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;
(2) 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
44
case, to constitute the Incurrence of such Indebtedness by the
issuer thereof;
(3) Indebtedness (A) represented by the Securities issued on the
Closing Date (not including any Additional Securities) and the
Subsidiary Guarantees, (B) outstanding on the Closing Date (other
than the Indebtedness described in clauses (1) and (2) above and
clause (12) below), 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);
(4) (A) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted
Subsidiary was acquired by the Company or a Restricted Subsidiary
(other than Indebtedness Incurred in contemplation of, in
connection with, as consideration in, or to provide all or any
portion of the funds or credit support utilized to consummate,
the transaction or series of related transactions pursuant to
which such Restricted Subsidiary became a Subsidiary of or was
otherwise acquired by the Company); provided, however, that on
the date that such Restricted Subsidiary is acquired by the
Company, (i) the Company would have been able to Incur $1.00 of
additional Indebtedness pursuant to the foregoing paragraph (a)
after giving effect to the Incurrence of such Indebtedness
pursuant to this clause (4) or (ii) the Consolidated Coverage
Ratio immediately after giving effect to such Incurrence and
acquisition would be greater than such ratio immediately prior to
such transaction and (B) Refinancing Indebtedness Incurred by a
Restricted Subsidiary in respect of Indebtedness Incurred by such
Restricted Subsidiary pursuant to this clause (4);
(5) Indebtedness (A) in respect of performance bonds, bankers'
acceptances, letters of credit and surety or appeal bonds entered
into by the Company or any Restricted Subsidiary in the ordinary
course of business, and (B) Hedging Obligations entered into in
the ordinary course of business to hedge risks with respect to
the Company's or a Restricted Subsidiary's interest rate,
currency or raw materials pricing exposure and not entered into
for speculative purposes;
(6) Purchase Money Indebtedness, Capitalized Lease Obligations and
Attributable Debt and Refinancing Indebtedness in respect thereof
in an aggregate principal amount on the date of Incurrence that,
when added to all other Indebtedness Incurred pursuant to this
clause (6) and then outstanding, will not exceed the greater of
(A) $600,000,000 and (B) 5.0% of Consolidated assets of the
45
Company as of the end of the most recent fiscal quarter for which
financial statements have been filed with the SEC;
(7) Indebtedness Incurred by a Receivables Entity in a Qualified
Receivables Transaction;
(8) 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;
(9) 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 Indenture (other than
Indebtedness Incurred pursuant to clause (4) above);
(10) (A) 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) $900,000,000 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
(B) Indebtedness of Foreign Subsidiaries Incurred in connection
with a Qualified Receivables Transaction in an amount not to
exceed E300,000,000 at any one time outstanding;
(11) Indebtedness constituting unsecured Indebtedness or Secured
Indebtedness in an amount not to exceed $850,000,000 and
Refinancing Indebtedness in respect thereof;
(12) Indebtedness represented by the Senior Secured Notes and the
related Guarantees by Subsidiaries of the Company and Refinancing
Indebtedness in respect thereof; and
(13) 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
(13) and then outstanding, will not exceed $150,000,000.
46
(c) For purposes of determining the outstanding principal amount of
any particular Indebtedness Incurred pursuant to this Section 4.03:
(1) 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;
(2) 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
(3) 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)(13) 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)(13) to the extent that such
reclassified Indebtedness could be Incurred pursuant to Section
4.03(a) or one of Sections 4.03(b)(2) through (b)(13), as the
case may be, if it were Incurred at the time of such
reclassification).
(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.
47
SECTION 4.04. Limitation on Restricted Payments. (d) 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:
(1) a Default will have occurred and be continuing (or would result
therefrom);
(2) the Company could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
(3) 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; provided,
however, that with respect to any noncash Restricted Payment in
excess of $25,000,000, the amount so expended shall be determined
in accordance with the provisions of the definition of Fair
Market Value) declared or made subsequent to the Reference Date
would exceed the sum, without duplication, of:
(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 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);
(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;
(iii) 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
48
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
(iv) 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.
(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:
(A) such Restricted Payment shall be excluded in the calculation of
the amount of Restricted Payments, and
(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);
49
(2) any prepayment, repayment or Purchase for value of Subordinated
Obligations of the Company made by exchange for, or out of the proceeds of
the substantially concurrent sale of, other Subordinated Obligations or
Indebtedness Incurred under Section 4.03(a); provided, however, that such
prepayment, repayment or Purchase for value shall be excluded in the
calculation of the amount of Restricted Payments;
(3) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividends would have complied
with this covenant; provided, however, that such dividends shall be
included in the calculation of the amount of Restricted Payments;
(4) any Purchase for value of Capital Stock of the Company or any of
its Subsidiaries from employees, former employees, directors or former
directors of the Company or any of its Subsidiaries (or permitted
transferees of such employees, former employees, directors or former
directors), pursuant to the terms of agreements (including employment
agreements) or plans (or amendments thereto) approved by the Board of
Directors under which such individuals purchase or sell or are granted the
option to purchase or sell, shares of such Capital Stock; provided,
however, that the aggregate amount of such Purchases for value will not
exceed $10,000,000 in any calendar year; provided further, however, that
any of the $10,000,000 permitted to be applied for Purchases under this
Section 4.04(b)(4) in a calendar year (and not so applied) may be carried
forward for use in the following two calendar years; provided further,
however, that such Purchases for value shall be excluded in the calculation
of the amount of Restricted Payments;
(5) so long as no Default has occurred and is continuing, payments of
dividends on Disqualified Stock issued after the Reference Date pursuant to
Section 4.03; provided, however, that such dividends shall be included in
the calculation of the amount of Restricted Payments;
(6) repurchases of Capital Stock deemed to occur upon exercise of
stock options if such Capital Stock represents a portion of the exercise
price of such options; provided, however, that such Restricted Payments
shall be excluded in the calculation of the amount of Restricted Payments;
(7) so long as no Default has occurred and is continuing, any
prepayment, repayment or Purchase for value of Subordinated Obligations
from Net Available Cash to the extent permitted under Section 4.06;
provided, however, that such prepayment, repayment or Purchase for value
shall be excluded in the calculation of the amount of Restricted Payments;
(8) payments to holders of Capital Stock (or to the holders of
Indebtedness that is convertible into or exchangeable for Capital Stock
upon such conversion or exchange) in lieu of the issuance of fractional
shares; provided,
50
however, that such payments shall be excluded in the calculation of the
amount of Restricted Payments; or
(9) any Restricted Payment in an amount which, when taken together
with all Restricted Payments made after the Reference Date pursuant to this
Section 4.04(b)(9), does not exceed $50,000,000; 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 included 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:
(A) 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;
(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;
(C) 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;
51
(D) in the case of Section 4.05(3), any encumbrance or restriction
(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
(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;
(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;
(F) any encumbrance or restriction existing under or by reason of
Indebtedness or other contractual requirements of a Receivables
Entity in connection with a Qualified Receivables Transaction;
provided, however, that such restrictions apply only to such
Receivables Entity;
(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);
(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;
(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
(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:
(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
(ii) at the time such Indebtedness is Incurred, such encumbrance
or restriction is not expected to materially
52
affect the Company's ability to make principal or interest
payments on the Securities, as determined in good faith by a
Financial Officer of the Company, whose determination shall
be conclusive.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock. (d)
The Company shall not, and shall not permit any Restricted Subsidiary to, make
any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary receives consideration
(including by way of relief from, or by any other Person assuming sole
responsibility for, any liabilities, contingent or otherwise) at the time
of such Asset Disposition at least equal to the Fair Market Value of the
shares and assets subject to such Asset Disposition,
(2) at least 75% of the consideration thereof received by the Company
or such Restricted Subsidiary is in the form of cash or Additional Assets;
provided, however, that the 75% consideration requirement of this Section
4.06(a)(2) shall not apply to any Specified Asset Sale, 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):
(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 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;
(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;
(C) 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
53
(c)) to purchase Securities 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 Securities and any Senior Indebtedness of the Company, and
(D) 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 Indenture;
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 will 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 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 Noncash Consideration having an aggregate Fair
Market Value that, when taken together with all other Designated Noncash
Consideration received pursuant to this clause and then outstanding, does
not exceed at the time of the receipt of such Designated Noncash
Consideration (with the Fair Market Value of each item of Designated
Noncash 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
54
assets of the Company as shown on the most recent balance sheet of the
Company filed with the SEC;
(3) securities, notes or similar obligations received by the Company
or any Restricted Subsidiary from the transferee that are promptly
converted by the Company or such Restricted Subsidiary into cash; and
(4) Temporary Cash Investments.
(c) In the event of an Asset Disposition that requires the purchase of
Securities pursuant to Section 4.06(a)(3)(C), the Company shall be required (i)
to purchase Securities tendered pursuant to an offer by the Company for the
Securities (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 Securities (and Senior Indebtedness) tendered
pursuant to the Offer is less than the Net Available Cash allotted to the
purchase of the Securities (and other Senior Indebtedness), the Company will
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 Securities (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 Securities (and other
Senior Indebtedness) tendered pursuant to the Offer exceeds the Net Available
Cash allotted to their purchase, the Company shall select the Securities (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 Securities
and other Senior Indebtedness in denominations of $2,000, or integral multiples
thereof, shall be purchased).
(2) Promptly, and in any event within 10 days after the Company
becomes obligated to make an Offer, the Company shall deliver to the
Trustee and send, by first-class mail to each Holder, a written notice
stating that the Holder may elect to have his Securities 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 $2,000 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").
55
(3) Not later than the date upon which written notice of an Offer is
delivered to the Trustee as provided below, the Company shall deliver to
the Trustee an Officers' Certificate as to (A) the amount of the Offer (the
"Offer Amount"), including information as to any other Senior Indebtedness
included in the Offer for repurchase, (B) the allocation of the Net
Available Cash from the Asset Dispositions pursuant to which such Offer is
being made and (C) the compliance of such allocation with the provisions of
Section 4.06(a) and (c). By 11:00 a.m. New York City time on the Purchase
Date, the Company shall irrevocably deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust) in Temporary Cash Investments, maturing on the
last day prior to the Purchase Date or on the Purchase Date if funds are
immediately available by open of business, an amount equal to the Offer
Amount to be held for payment in accordance with the provisions of this
Section. 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 Securities or
portions thereof which have been properly tendered to and are to be
accepted by the Company. The Trustee shall, on the Purchase Date, mail or
deliver payment (or cause the delivery of payment) to each tendering Holder
in the amount of the purchase price. In the event that the aggregate
purchase price of the Securities delivered by the Company to the Trustee is
less than the Offer Amount applicable to the Securities, 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 Security purchased shall be required to
surrender the Security, with an appropriate form duly completed, to the
Company at the address specified in the notice at least three Business Days
prior to the Purchase Date. A Holder shall be entitled to withdraw its
election if the Trustee or the Company receives not later than one Business
Day prior to the Purchase Date, a telex, facsimile transmission or letter
setting forth the name of such Holder, the principal amount of the Security
which was delivered for purchase by such Holder and a statement that such
Holder is withdrawing its election to have such Security purchased. Holders
whose Securities are purchased only in part shall be issued new Securities
equal in principal amount to the unpurchased portion of the Securities
surrendered.
(5) At the time the Company delivers Securities to the Trustee which
are to be accepted for purchase, the Company shall also deliver an
Officers' Certificate stating that such Securities are to be accepted by
the Company pursuant to and in accordance with the terms of this Section. A
Security 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.
56
(e) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities 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,
(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, 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,
57
(4) loans or advances to employees in the ordinary course of business
of the Company,
(5) the payment of reasonable fees and compensation to, or the
provision of employee benefit arrangements and indemnity for the benefit
of, directors, officers and employees of the Company and its Restricted
Subsidiaries in the ordinary course of business,
(6) any transaction between or among any of the Company, any
Restricted Subsidiary or any joint venture or similar entity which would
constitute an Affiliate Transaction solely because the Company or a
Restricted Subsidiary owns an equity interest in or otherwise controls such
Restricted Subsidiary, joint venture or similar entity,
(7) the issuance or sale of any Capital Stock (other than Disqualified
Stock) of the Company,
(8) any agreement as in effect on the Closing Date and described in
the Private Placement Memorandum 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 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 Securities at a purchase price in cash equal to
101% of the principal amount thereof plus accrued and unpaid interest to the
date of purchase (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date), in
accordance with Section 4.08(b).
(b) Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder with a copy to the Trustee (the "Change of Control
Offer"), stating:
(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
58
Securities at a purchase price in cash equal to 101% of the principal
amount thereof, plus accrued and unpaid interest to the date of purchase
(subject to the right of Holders of record on the relevant record date to
receive interest on the relevant interest payment date);
(2) the circumstances and relevant facts and financial information
regarding such Change of Control;
(3) the purchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); and
(4) the instructions determined by the Company, consistent with this
Section 4.08, that a Holder must follow in order to have its Securities
purchased.
(c) The Company shall not be required to make a Change of Control
Offer with respect to a series of Securities 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
Securities of such series 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 with respect to a series of Securities upon a Change of
Control if any such Securities have been called for redemption to the extent
that the Company mails a valid notice of redemption to Holders prior to the
Change of Control, and thereafter redeems all Securities of such series 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 Securities 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 Securities purchased by the Company
under this Section 4.08 shall be delivered by the Company to the Trustee for
cancellation, and the Company shall pay the purchase price plus accrued and
unpaid interest, if any, to the Holders entitled thereto.
SECTION 4.09. Limitation on Liens. The Company shall not, and shall
not permit any Restricted Subsidiary to, directly or indirectly, Incur or permit
to exist any Lien (the "Initial Lien") of any nature whatsoever on any of its
property or assets (including Capital Stock of a Restricted Subsidiary), whether
owned at the Closing Date or thereafter acquired securing any Indebtedness,
other than Permitted Liens, without effectively providing that the Notes shall
be secured equally and ratably with (or prior to) the obligations so secured for
so long as such obligations are so secured.
59
Any Lien created for the benefit of the Holders of the Notes pursuant
to the preceding sentence shall provide by its terms that such Lien shall be
automatically and unconditionally released and discharged upon the release and
discharge of the Initial Lien.
SECTION 4.10. Limitation on Sale/Leaseback Transactions. The Company
shall not, and shall not permit any Restricted Subsidiary to, enter into any
Sale/Leaseback Transaction with respect to any property unless:
(1) the Company or such Restricted Subsidiary would be entitled to:
(A) Incur Indebtedness with respect to such Sale/Leaseback
Transaction pursuant to Section 4.03 and
(B) create a Lien on such property securing such Indebtedness
without equally and ratably securing the Securities pursuant
to Section 4.09;
(2) 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
(3) 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.
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 3 hereto pursuant to which such Subsidiary shall Guarantee
payment of the Securities. Each Subsidiary Guarantee shall be limited to an
amount not to exceed the maximum amount that can be Guaranteed by that
Subsidiary Guarantor, without rendering the Subsidiary Guarantee, as it relates
to such Subsidiary Guarantor voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally.
SECTION 4.12. Suspension of Certain Covenants. (a) Following the first
day (the "Suspension Date") that:
(1) a series of Securities has an Investment Grade Rating from both
of the Rating Agencies, and
(2) no Default has occurred and is continuing hereunder with respect
to such series of Securities,
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").
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In addition, the Company may elect to suspend the Subsidiary Guarantees with
respect to such series of Securities.
(b) In the event that the Company and its Restricted Subsidiaries are
not subject to the Suspended Covenants for any period of time with respect to a
series of Securities as a result of the foregoing and on any subsequent date
(the "Reversion Date") one or both of the Rating Agencies withdraws its
Investment Grade Rating or downgrades the rating assigned to such Securities
below an Investment Grade Rating, then the Company and its Restricted
Subsidiaries shall thereafter again be subject to the Suspended Covenants with
respect to such series of Securities with respect to future events and the
Subsidiary Guarantees shall be reinstated with respect to such series of
Securities. The period of time between the Suspension Date for such series of
Securities and the Reversion Date for such series of Securities is referred to
herein as the "Suspension Period."
(c) Notwithstanding that the Suspended Covenants may be reinstated
with respect to a series of Securities, no default shall be deemed to have
occurred as a result of a failure to comply with the Suspended Covenants with
respect to such series of Securities during the Suspension Period. During any
Suspension Period with respect to a series of Securities, the Company shall not
designate any Subsidiary to be an Unrestricted Subsidiary with respect to such
series of Securities unless the Company would have been permitted to designate
such Subsidiary to be an Unrestricted Subsidiary with respect to such series of
Securities if a Suspension Period with respect to such series of Securities had
not been in effect for any period.
(d) On the Reversion Date with respect to a series of Securities, all
Indebtedness Incurred during the Suspension Period shall be classified to have
been Incurred with respect to such series of Securities pursuant to Section 4.03
(to the extent such Indebtedness would be permitted to be Incurred thereunder as
of the Reversion Date with respect to such series of Securities and after giving
effect to Indebtedness Incurred prior to the Suspension Period with respect to
such series of Securities and outstanding on the Reversion Date with respect to
such series of Securities). 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 with respect to a series of Securities 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 with respect to such series of
Securities since the Closing Date and throughout the Suspension Period.
Accordingly, Restricted Payments made during the Suspension Period with respect
to a series of Securities shall reduce the amount available to be made as
Restricted Payments with respect to such series of Securities 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) with respect to a series of
Securities, the Net Available Cash from all Asset Dispositions not applied in
accordance with Section 4.06 shall be deemed to be reset to zero with respect to
such series of Securities after the Reversion Date.
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(e) In addition, without causing a Default or Event of Default with
respect to a series of Securities, the Company and the Restricted Subsidiaries
may honor any contractual commitments to take actions after a Reversion Date
with respect to such series of Securities as long as such contractual
commitments were entered into during a Suspension Period with respect to such
series of Securities and not in anticipation of such Securities' no longer
having an Investment Grade Rating from both of the Rating Agencies.
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 an
officers' certificate signed by a Financial Officer complying with TIA Section
314(a)(4) stating (i) that a review of the activities of the Company and the
Subsidiaries during the preceding fiscal year has been made with a view to
determining whether the Company and the Subsidiary Guarantors have fulfilled
their obligations under this Indenture and (ii) that, to the knowledge of such
Financial Officer, no Default or Event of Default occurred during such period
(or, if a Default or Event of Default hereunder shall have occurred, describing
all such Defaults or Events of Default hereunder of which such Financial Officer
may have knowledge and what action the Company has taken, is taking and/or
proposes to take with respect thereto).
SECTION 4.14. 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 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") will be a corporation organized and existing under the laws of
the United States of America, any State thereof or the District of Columbia
and the Successor Company (if not the Company) will expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under the
Securities and this Indenture;
(2) immediately after giving effect to such transaction (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;
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(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 Indenture.
(b) The Successor Company shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture, 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 Securities.
(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 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 or the District of
Columbia, and such Person (if not such Subsidiary Guarantor) shall
expressly assume, by a supplemental indenture, executed and delivered to
the Trustee, in form satisfactory to the Trustee, all the obligations of
such Subsidiary Guarantor under its Subsidiary Guarantee;
(2) immediately after giving effect to such transaction (and treating
any Indebtedness which becomes an obligation of the Successor Guarantor or
any Restricted Subsidiary as a result of such transaction as having been
Incurred by the Successor Guarantor or such Restricted Subsidiary at the
time of such transaction), no Default shall have occurred and be
continuing; and
(3) the Company will have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture.
(d) Notwithstanding the foregoing:
(1) any 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
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(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 with
respect to a series of Securities if:
(1) the Company defaults in any payment of interest on such series of
Securities when the same becomes due and payable, and such default
continues for 30 days;
(2) the Company defaults in the payment of principal of any Security
of such series when the same becomes due and payable at its Stated
Maturity, upon optional redemption or required repurchase, upon declaration
of acceleration or otherwise;
(3) the Company or any Subsidiary Guarantor fails to comply with its
obligations under Section 5.01;
(4) the Company 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 such Securities) 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
agreements with respect to such Securities contained in this Indenture
(other than those referred to in clauses (1), (2), (3) or (4) above) and
such failure continues for 60 days after the notice from the Trustee or the
Holders specified below;
(6) the Company or any Restricted Subsidiary fails to pay any
Indebtedness (other than Indebtedness owing to the Company or a Restricted
Subsidiary) within any applicable grace period after final maturity or the
acceleration of any such Indebtedness by the holders thereof because of a
default if the total amount of such Indebtedness unpaid or accelerated
exceeds $50,000,000 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;
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(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 $50,000,000 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 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 with respect to a series of
Securities 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) (only with respect to any Subsidiary
Guarantor that is not a Significant Subsidiary) shall not constitute an Event of
Default with respect to a series of Securities until the Trustee notifies the
Company or the Holders of at least 25% in principal amount of the outstanding
Securities of such series notify the Company and the Trustee of the default and
the Company or the Subsidiary Guarantor, as applicable, does
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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 Xxxxx 00, Xxxxxx Xxxxxx 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 with respect to a
series of Securities (other than an Event of Default specified in Section
6.01(7) or 6.01(8)) occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the outstanding Securities of such series by
notice to the Company may declare the principal of and accrued but unpaid
interest on all the Securities of such series to be due and payable. Upon such a
declaration, such principal and interest will be due and payable immediately. If
an Event of Default specified in Section 6.01(7) or 6.01(8) with respect to the
Company occurs, the principal of and interest on all the Securities shall become
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders. The Holders of a majority in principal amount of the
Securities of a series of Securities by notice to the Trustee may rescind an
acceleration with respect to such series of Securities and its consequences if
the rescission would not conflict with any judgment or decree and if all
existing Events of Default with respect to such series of Securities have been
cured or waived except nonpayment of principal or interest that has become due
solely because of acceleration. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default with respect to a
series of Securities occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal of or interest on the
Securities of such series or to enforce the performance of any provision of the
Securities of such series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
principal amount of a series of Securities by notice to the Trustee may waive an
existing Default with respect to such series of Securities and its consequences
except (a) a Default
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in the payment of the principal of or interest on a Security of such series (b)
a Default arising from the failure to redeem or purchase any Security of such
series when required pursuant to this Indenture or (c) a Default in respect of a
provision that under Section 9.02 cannot be amended without the consent of each
Holder affected. When a Default is waived with respect to a series of
Securities, it is deemed cured with respect to such series, but no such waiver
shall extend to any subsequent or other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in
principal amount of the Securities of a series 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 with respect to such
series. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture or, subject to Section 7.01, that the Trustee
determines is unduly prejudicial to the rights of any other Holder of a Security
of such series 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
Indenture at the request or direction of any of the Holders of a series of
Securities, unless such Holders have offered to the Trustee reasonable indemnity
against any loss, liability or expense which might be incurred by it in
compliance with such request or direction.
SECTION 6.06. Limitation on Suits. Except to enforce the right to
receive payment of principal, premium (if any) or interest when due, no Holder
of a Security of a series may pursue any remedy with respect to this Indenture
or the Securities of such series 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
Securities of such series make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer to the Trustee reasonable indemnity
against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) the Holders of a majority in principal amount of the Securities of
such series do not give the Trustee a direction inconsistent with the
request during such 60-day period.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
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SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of principal of and interest on the Securities held by such Holder, on
or after the respective due dates expressed in the Securities, or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(1) or 6.01(2) occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Company for the whole amount then due and owing (together with interest on
any unpaid interest to the extent lawful) and the amounts provided for in
Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders allowed in
any judicial proceedings relative to the Company, its creditors or its property
and, unless prohibited by law or applicable regulations, may vote on behalf of
the Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial proceeding
is hereby authorized by each Holder to make payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
property with respect to a series of Securities 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 with respect
to such series;
SECOND: to Holders for amounts due and unpaid on the Securities of
such series for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section. At least 15 days before such record date, the
Company shall mail to each Holder and the Trustee a notice that states the
record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this 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
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its discretion may assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in the suit, having due regard to the merits
and good faith of the claims or defenses made by the party litigant. This
Section does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.07 or a suit by Holders of more than 10% in principal amount of the
Securities of a series.
SECTION 6.12. Waiver of Stay or Extension Laws. The Company (to the
extent it may lawfully do so) shall not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and shall not hinder, delay or impede the execution
of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
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 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 Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
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(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) (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 Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or
powers, if it shall have reasonable grounds to believe that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute wilful
misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the
Securities 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.
(f) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder
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(g) The Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions, or agreements on the
part of the Company, except as otherwise set forth herein, but the Trustee may
require of the Company full information and advice as to the performance of the
covenants, conditions and agreements contained herein.
(h) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and, with respect to such
permissive rights, the Trustee shall not be answerable for other than its
negligence or willful misconduct;
(i) Except for a default under Sections 6.01(1) or (2) hereof, the
Trustee shall not be deemed to have notice or be charged with knowledge of any
Default or Event 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
Securities then outstanding written notice thereof at its address set forth in
Section 11.02 hereof, and such notice references the Securities and this
Indenture. In the absence of any such notice, the Trustee may conclusively
assume that no Default or Event of Default exists.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Company in this Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and is actually known to a Trust Officer, the Trustee shall mail to
each Holder of the Securities of each series to which such Default applies
notice of the Default within the earlier of 90 days after it occurs or 30 days
after it is actually known to a Trust Officer or written notice of it is
received by the Trustee. Except in the case of a Default in the payment of
principal of, premium (if any) or interest on any Security (including payments
pursuant to the redemption provisions of such Security), the Trustee may
withhold notice if and so long as a committee of its Trust Officers in good
faith determines that withholding notice is in the interests of the Holders.
SECTION 7.06. Reports by Trustee to Holders. At the expense of the
Company, as promptly as practicable after each November 30 beginning with
November 30, 2007, and in any event prior to January 1 in each following year,
the Trustee shall mail to each Holder a brief report dated as of such November
30 that complies with TIA Section 313(a). The Trustee also shall comply with TIA
Section 313(b).
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A copy of each report at the time of its mailing to Holders of a
series shall be filed with the SEC and each stock exchange (if any) on which the
Securities of such series are listed. The Company agrees to notify promptly the
Trustee whenever the Securities of either series 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 attorneys' fees) incurred by it in connection
with the administration of this trust and the performance of its duties
hereunder. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend the
claim and the Trustee shall provide reasonable cooperation in such defense. The
Trustee may have separate counsel and the Company shall pay the fees and
expenses of such counsel reasonably acceptable to the Company, provided,
however, that the Company shall not be required to pay such fees and expenses if
the Company assumes such defense unless there is a conflict of interest between
the Company and the Trustee in connection with such defense as determined by
Trustee in consultation with counsel. The Company need not reimburse any expense
or indemnify against any loss, liability or expense incurred by the Trustee
through the Trustee's own wilful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Securities.
The Company's payment obligations pursuant to this Section shall
survive the resignation or removal of the Trustee and the discharge of this
Indenture. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.01(7) or (8) with respect to the Company, the expenses
are intended to constitute expenses of administration under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign at any
time with respect to a series of Securities by so notifying the Company. The
Holders of a majority in principal amount of the Securities of a series may
remove the Trustee with respect to such series by so notifying the Trustee and
may appoint a successor Trustee with respect to such series. The Company shall
remove the Trustee if:
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(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of
a majority in principal amount of the Securities of a series with respect to
such series and such Holders do not reasonably promptly appoint a successor
Trustee with respect to such series, 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 with respect to the applicable
series of Securities shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture with
respect to the applicable series of Securities. The successor Trustee shall mail
a notice of its succession to Holders of such series of Securities. The retiring
Trustee shall promptly transfer all property held by it as Trustee in respect of
the applicable series of Securities to the successor Trustee of such series,
subject to the lien provided for in Section 7.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the applicable series of Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee for
such series of Securities.
If the Trustee fails to comply with Section 7.10, unless the Trustee's
duty to resign is stayed as provided in TIA Section 310(b), any Holder of a
series of Securities may petition any court of competent jurisdiction for the
removal of the Trustee with respect to such series of Securities and the
appointment of a successor Trustee with respect to such series.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of
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the Securities shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Securities so authenticated; and in case
at that time any of the Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor to the Trustee; and in
all such cases such certificates shall have the full force which it is anywhere
in the Securities or in this Indenture provided that the certificate of the
Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section 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
Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 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 Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance. (a)
When (1) the Company delivers to the Trustee all outstanding Securities of a
series (other than Securities replaced pursuant to Section 2.07) for
cancellation or (2) all outstanding Securities of a series have become due and
payable, whether at maturity or on a redemption date as a result of the mailing
of a notice of redemption pursuant to Article 3 hereof and, in the case of
clause (2), the Company irrevocably deposits with the Trustee funds or U.S.
Government Obligations sufficient to pay at maturity or upon redemption all
outstanding Securities of such series, including premium, if any, and interest
thereon to maturity or such redemption date (other than Securities replaced
pursuant to Section 2.07), and if in either case the Company pays all other sums
payable hereunder by the Company with respect to such series, then this
Indenture shall, subject to Section 8.01(c), cease to be of further effect with
respect to such series. Upon satisfaction of the above conditions, the Trustee
shall acknowledge satisfaction and discharge of this Indenture with respect to
such series.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any time may
terminate (1) all its obligations under the Securities of a series and this
Indenture with respect to any such series of Securities ("legal defeasance
option") or (2) its obligations with respect to a series of Securities under
Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11 and 4.12 and
the operation of Sections 6.01(4), 6.01(6), 6.01(7),
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6.01(8) and 6.01(9) (but, in the case of Sections 6.01(7) and (8), with respect
only to Significant Subsidiaries) and the limitations contained in Section
5.01(a)(3) ("covenant defeasance option"). The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance
option.
If the Company exercises its legal defeasance option with respect to a
series of Securities, payment of the Securities of such series may not be
accelerated because of an Event of Default with respect to such series. If the
Company exercises its covenant defeasance option with respect to a series of
Securities, payment of the applicable series of Securities may not be
accelerated because of an Event of Default with respect to such series specified
in Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8) and 6.01(9) (but, in the case of
Sections 6.01(7) and (8), with respect only to Significant Subsidiaries) 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 with respect to a series of Securities, each Subsidiary
Guarantor will be released from all of its obligations with respect to its
Subsidiary Guarantee of such series.
Upon satisfaction of the conditions set forth herein and upon request
of the Company, 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 with respect to a series of Securities shall survive until the
Securities of such series have been paid in full. Thereafter, the Company's
obligations in Sections 7.07, 8.04 and 8.05 with respect to such series shall
survive.
SECTION 8.02. Conditions to Defeasance. The Company may exercise its
legal defeasance option or its covenant defeasance option with respect to a
series of Securities 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 Securities of such series to redemption or maturity, as
the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized 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 Securities of such series to maturity or redemption, as the case
may be;
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(3) 91 days pass after the deposit is made and during the 91-day
period no Default with respect to such series 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 Indenture there has been a
change in the applicable Federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such deposit
and defeasance had not occurred; and
(7) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and covenant defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such deposit
and covenant defeasance had not occurred.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities 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 Indenture to the payment of principal of and interest on the applicable
series of Securities.
SECTION 8.04. Repayment to Company. The Trustee and the Paying Agent
shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal or interest that remains unclaimed for two years, and,
thereafter,
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Holders entitled to the money must look to the Company for payment as general
creditors.
SECTION 8.05. Indemnity for Government Obligations. The Company shall
pay and shall indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against deposited U.S. Government Obligations or the principal
and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's and each Subsidiary
Guarantor's obligations under this Indenture with respect to the applicable
series of Securities, each Subsidiary Guarantee with respect to such Securities
and the Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8; provided, however, that, if the
Company has made any payment of interest on or principal of any Securities of
such series because of the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such series of Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders. The Company, the Subsidiary
Guarantors and the Trustee may amend this Indenture with respect to a series of
Securities or the Securities of such series without notice to or consent of any
Holder of such series:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to provide for the assumption by a successor corporation of the
obligations of the Company under this Indenture in compliance with Article
5;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities of such series; provided, however, that
the uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to add Guarantees with respect to the Securities of such series or
to confirm and evidence the release, termination or discharge of any such
Guarantee with respect to such series when such release, termination or
discharge is permitted under this Indenture;
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(5) to add to the covenants of the Company for the benefit of the
Holders of such series or to surrender any right or power herein conferred
upon the Company with respect to such series;
(6) to make any change that does not adversely affect the rights of
any Holder of such series in any material respect, subject to the
provisions of this Indenture;
(7) to comply with any requirement of the SEC in connection with
qualifying, or maintaining the qualification of, this Indenture under the
TIA;
(8) to make any amendment to the provisions of this Indenture relating
to form, authentication, transfer and legending of Securities; provided,
however, that (A) compliance with this Indenture as so amended would not
result in Securities being transferred in violation of the Securities Act
or any other applicable securities law and (B) such amendment does not
materially affect the rights of Holders to transfer Securities; or
(9) to provide for the issuance of the Exchange Securities or
Additional Securities in accordance with the terms of this Indenture.
After an amendment under this Section becomes effective, the Company
shall mail to Holders a notice briefly describing such amendment. The failure to
give such notice to all Holders, or any defect therein, shall not impair or
affect the validity of an amendment under this Section.
SECTION 9.02. With Consent of Holders. (a) The Company, the Subsidiary
Guarantors and the Trustee may amend this Indenture with respect to a series of
Securities or the Securities of such series with the written consent of the
Holders of at least a majority in principal amount of the Securities of such
series then outstanding voting as a single class (including consents obtained in
connection with a tender offer or exchange for such Securities). Any existing
Default or compliance with any provisions of this Indenture with respect to the
Securities of a series or such Securities may be waived with the consent of the
Holders of at least a majority in principal amount of the Securities of such
series then outstanding voting as a single class, subject to the restrictions of
Section 6.04 and this Section 9.02. Notwithstanding the foregoing, without the
consent of each Holder of a series affected thereby, an amendment or waiver may
not, with respect to such series:
(1) reduce the amount of such Securities whose Holders must consent to
an amendment;
(2) reduce the rate of or extend the time for payment of interest on
any such Security;
(3) reduce the principal of or extend the Stated Maturity of any such
Security;
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(4) reduce the premium payable upon the redemption of any Security or
change the time at which such Security may be redeemed pursuant to Article
3 hereto or paragraph 6 of such Securities;
(5) make any such Security payable in money other than that stated in
such Security;
(6) impair the right of any Holder of such Securities to receive
payment of principal of, and interest on, such Holder's Securities on or
after the due dates therefor or to institute suit for the enforcement of
any payment on or with respect to such Holder's Securities;
(7) make any change in Section 6.04 or 6.07 or the second sentence of
this Section 9.02; or
(8) make any change in, or release other than in accordance with this
Indenture, any Subsidiary Guarantee that would adversely affect the Holders
of such series of Securities.
(b) It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the Company
shall mail to Holders of the applicable series 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 to
this Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A consent
to an amendment or a waiver by a Holder of a Security shall bind the Holder and
every subsequent Holder of that Security or portion of the Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent or waiver is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder's Security
or portion of the Security if the Trustee receives the notice of revocation
before the date the amendment or waiver becomes effective. After an amendment or
waiver with respect to a series of Securities becomes effective, it shall bind
every Holder of such series. An amendment or waiver becomes effective upon the
execution of such amendment or waiver by the Trustee.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to give their consent or take
any other action described above or required or permitted to be taken pursuant
to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent
79
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
SECTION 9.07. Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
of a series of Securities for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture with respect to
such series of Securities or such Securities unless such consideration is
offered to be paid to all Holders of such series that so consent, waive or agree
to amend in the time frame set forth in solicitation documents relating to such
consent, waiver or agreement.
ARTICLE 10
Subsidiary Guarantees
SECTION 10.01. Guarantees. (a) Each Subsidiary Guarantor of a series
of Securities 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 with respect
to such series of Securities, jointly with the other Subsidiary Guarantors of
such series and severally. Each of the Subsidiary Guarantors of a series of
Securities further agrees that its Guaranteed Obligations with respect to such
series of Securities 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 of a series of Securities waives
presentment to, demand of payment from and protest to the Company or any
Subsidiary Guarantor of such series of any of its Guaranteed Obligations with
respect to
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such series of Securities, and also waives notice of acceptance of its
guarantee, notice of protest for nonpayment and all similar formalities.
(b) Each of the Subsidiary Guarantors of a series of Securities
further agrees that its guarantee of such series 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 of such series to
any security held for the payment of its Guaranteed Obligations with respect to
such series or to any balance of any deposit account or credit on the books of
the Trustee or any Holder of such series in favor of the Company.
(c) Except for termination of a Subsidiary Guarantor's obligations
with respect to a series of Securities hereunder or a release of such Subsidiary
Guarantor with respect to such series pursuant to Section 10.06, the obligations
of each Subsidiary Guarantor with respect to such series hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to any defense or set-off, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations of such Subsidiary Guarantor with
respect to such series or otherwise. Without limiting the generality of the
foregoing, the obligations of each Subsidiary Guarantor of a series of
Securities hereunder shall not be discharged or impaired or otherwise affected
by (i) the failure of the Trustee or any Holder of such series to assert any
claim or demand or to enforce any right or remedy under the provisions of this
Indenture with respect to such series or otherwise; (ii) any rescission, waiver,
amendment or modification of, or any release from any of the terms or provisions
of, this Indenture or any other agreement with respect to such series, 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 with respect to such series;
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 with respect to such series as a matter
of law or equity (other than the indefeasible payment in full in cash of all the
Guaranteed Obligations of such Guarantor with respect to such series).
(d) To the fullest extent permitted by applicable law, each Subsidiary
Guarantor of a series of Securities waives any defense based on or arising out
of any defense of the Company or any other Subsidiary Guarantor of such series
or the unenforceability of the Guaranteed Obligations of such Subsidiary
Guarantor with respect to such series or any part thereof from any cause, or the
cessation from any cause of the liability of the Company or any other Subsidiary
Guarantor of such series, other than the indefeasible payment in full in cash of
all the Guaranteed Obligations of such Subsidiary Guarantor with respect to such
series. The Trustee may, at its election, compromise or adjust any part of the
Guaranteed Obligations with respect to a series of Securities, make any other
accommodation with the Company or any Subsidiary Guarantor of such series or
exercise any other right or remedy available to them against the Company or any
Subsidiary Guarantor of such series, in each case without affecting or impairing
in any way the liability of any Subsidiary Guarantor of such series hereunder
except to the
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extent the Guaranteed Obligations of such Subsidiary Guarantor with respect to
such series have been fully and indefeasibly paid in full in cash. To the
fullest extent permitted by applicable law, each Subsidiary Guarantor of a
series of Securities 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
of such series, as the case may be.
(e) Each of the Subsidiary Guarantors of a series of Securities agrees
that its guarantee with respect to such series 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 with
respect to such series is rescinded or must otherwise be restored by the Trustee
upon the bankruptcy or reorganization of the Company, any other Subsidiary
Guarantor of such series or otherwise.
SECTION 10.02. Limitation on Liability. Any term or provision of this
Indenture to the contrary notwithstanding, the maximum aggregate amount of the
Guaranteed Obligations guaranteed hereunder by any Subsidiary Guarantor with
respect to a series of Securities shall not exceed the maximum amount that can
be hereby guaranteed without rendering this Indenture, as it relates to such
Subsidiary Guarantor, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
SECTION 10.03. Successors and Assigns. This Article 10 shall be
binding upon each Subsidiary Guarantor and its successors and assigns and shall
inure to the benefit of the successors, transferees and assigns of the Trustee
and the Holders and, in the event of any transfer or assignment of rights by any
Holder or the Trustee, the rights and privileges conferred upon that party in
this Indenture and in the Securities shall automatically extend to and be vested
in such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 10.04. No Waiver. Neither a failure nor a delay on the part of
either the Trustee or the Holders in exercising any right, power or privilege
under this Article 10 shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article 10 at law,
in equity, by statute or otherwise.
SECTION 10.05. Modification. No modification, amendment or waiver of
any provision of this Article 10, nor the consent to any departure by any
Subsidiary Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Trustee, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Subsidiary Guarantor in any case shall
entitle such Subsidiary Guarantor to any other or further notice or demand in
the same, similar or other circumstances.
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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 a Subsidiary Guarantor,
(2) upon the sale or disposition of all or substantially all the
assets of such Subsidiary Guarantor;
(3) upon the designation of such Subsidiary Guarantor as an
Unrestricted Subsidiary in accordance with the terms of this 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, or
(5) at any time during a Suspension Period with respect to a series of
Securities 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 with respect to such series, or
(6) upon the exercise by the Company of its legal defeasance option or
its covenant defeasance option with respect to a series of Securities or if
the Obligations of the Company under the Indenture with respect to a series
of Securities and such Securities 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
Indenture and (iii) the Company complies with its obligations under Section
4.06.
At the request of the Company, the Trustee shall execute and deliver an
appropriate instrument evidencing such release.
SECTION 10.07. Contribution. Each Subsidiary Guarantor that makes a
payment under its Subsidiary Guarantee with respect to a series of Securities
shall be entitled upon payment in full of all Guaranteed Obligations under this
Indenture with respect to such series to a contribution from each other
Subsidiary Guarantor of such series in an amount equal to such other Subsidiary
Guarantor's pro rata portion of such
83
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
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 11.02. Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company or any Subsidiary Guarantor:
The Goodyear Tire & Rubber Company
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxx 00000
fax: 000-000-0000
Attention of Treasurer
if to the Trustee:
Xxxxx Fargo Bank, N.A.
MAC N9303-120
6th and Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
fax: 000-000-0000
Attention of Xxxxx Fargo Corporate Trust Services
The Company, any Subsidiary Guarantor or the Trustee by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder shall be mailed to the
Holder at the Holder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
SECTION 11.03. Communication by Holders with Other Holders. Holders of
a series of Securities may communicate pursuant to TIA Section 312(b) with other
84
Holders of such series with respect to their rights under this
Indenture with respect to such series of Securities or such Securities. The
Company, any Subsidiary Guarantor, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee, to the extent reasonably requested by the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with (provided, however,
that such counsel may rely as to matters of fact on Officer's
Certificates).
SECTION 11.05. Statements Required in Certificate or Opinion. Each
certificate (other than a certificate delivered pursuant to Section 4.13) or
opinion with respect to compliance with a covenant or condition provided for in
this 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 Securities Disregarded. In determining whether the
Holders of the required principal amount of Securities of a series have
concurred in any direction, waiver or consent, Securities of such series owned
by the Company or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company shall be
disregarded and deemed not to be outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee knows are so
owned shall be so disregarded. Also, subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
85
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 11.08. Legal Holidays. If a payment date is a Legal Holiday,
payment shall be made on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period. If a regular record
date is a Legal Holiday, the record date shall not be affected.
SECTION 11.09. Governing Law. This Indenture and the Securities shall
be governed by, and construed in accordance with, the laws of the State of New
York without giving effect to applicable principles of conflicts of law to the
extent that the application of the law of another jurisdiction would be required
thereby.
SECTION 11.10. No Recourse Against Others. A director, officer,
employee or shareholder, as such, of the Company or any Subsidiary Guarantor
shall not have any liability for any obligations of the Company under the
Securities or this Indenture or of such Subsidiary Guarantor under its
Subsidiary Guarantee or this Indenture, or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Security,
each Holder shall waive and release all such liability. The waiver and release
shall be part of the consideration for the issue of the Securities.
SECTION 11.11. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 11.12. Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 11.13. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
THE GOODYEAR TIRE & RUBBER COMPANY,
by /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President, Business
Development and Treasurer
XXXXX FARGO BANK, N.A., as Trustee,
by /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
SUBSIDIARY GUARANTORS
BELT CONCEPTS OF AMERICA, INC.
by /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
CELERON CORPORATION
by /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
COSMOFLEX, INC.
by /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
DAPPER TIRE CO, INC.
by /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
DIVESTED COMPANIES HOLDING COMPANY
By /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
DIVESTED LITCHFIELD PARK PROPERTIES, INC.
By /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
By /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
GOODYEAR CANADA INC.
By: /s/ X. X. Xxxxxxx
------------------------------------
Name: X. X. Xxxxxxx
Title: President
By: /s/ X. X. Xxxxxxxx
------------------------------------
Name: X. X. Xxxxxxxx
Title: Secretary
GOODYEAR ENGINEERED PRODUCTS
INTERNATIONAL INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
GOODYEAR ENGINEERED PRODUCTS THAILAND
INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
GOODYEAR FARMS, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
GOODYEAR INTERNATIONAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
GOODYEAR WESTERN HEMISPHERE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
THE KELLY-SPRINGFIELD TIRE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
WHEEL ASSEMBLIES INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
WINGFOOT COMMERCIAL TIRE SYSTEMS, LLC
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
WINGFOOT VENTURES EIGHT INC.
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
APPENDIX A
PROVISIONS RELATING TO INITIAL SECURITIES,
ADDITIONAL SECURITIES AND EXCHANGE SECURITIES
1. Definitions
1.1 Definitions
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Regulation S Global Security or beneficial interest
therein, the rules and procedures of the Depository for such Global Security to
the extent applicable to such transaction and as in effect from time to time.
"Definitive Security" means a certificated Initial Security or
Exchange Security (bearing the Restricted Securities Legend if the transfer of
such Security is restricted by applicable law) that does not include the Global
Securities Legend.
"Depository" means The Depository Trust Company, its nominees and
their respective successors.
"Distribution Compliance Period", with respect to any Securities,
means the period of 40 consecutive days beginning on and including the later of
(i) the day on which such Securities are first offered to Persons other than
distributors (as defined in Regulation S under the Securities Act) in reliance
on Regulation S and (ii) the issue date with respect to such Securities.
"Exchange Securities" means, collectively, the Fixed Rate Exchange
Securities and the Floating Rate Exchange Securities.
"Fixed Rate Exchange Securities" means (1) the Fixed Rate Securities
issued pursuant to this Indenture in connection with a Registered Exchange Offer
pursuant to a Registration Rights Agreement and (2) Additional Fixed Rate
Securities, if any, issued pursuant to a registration statement filed with the
SEC under the Securities Act.
"Floating Rate Exchange Securities" means (1) the Floating Rate
Securities issued pursuant to this Indenture in connection with a Registered
Exchange Offer pursuant to a Registration Rights Agreement and (2) Additional
Floating Rate Securities, if any, issued pursuant to a registration statement
filed with the SEC under the Securities Act.
"Global Securities Legend" means the legend set forth under that
caption in Exhibits 1(a), 1(b), 2(a) and 2(b) to this Indenture.
"Initial Fixed Rate Securities" means (1) $500,000,000 aggregate
principal amount of 8.625% Senior Notes due 2011 issued on the Closing Date and
(2) Additional
2
Fixed Rate Securities, if any, issued in a transaction exempt from the
registration requirements of the Securities Act.
"Initial Floating Rate Securities" means (1) $500,000,000 aggregate
principal amount of Senior Floating Rate Notes due 2009 issued on the Closing
Date and (2) Additional Floating Rate Securities, if any, issued in a
transaction exempt from the registration requirements of the Securities Act.
"Initial Purchasers" means (1) in respect of the Initial Securities,
the purchasers listed on Schedule I to the Purchase Agreement, and (2) in
respect of each issuance of Additional Securities, the Persons purchasing such
Additional Securities under the related Purchase Agreement.
"Initial Securities" means, collectively, the Initial Fixed Rate
Securities and the Initial Floating Rate Securities.
"Purchase Agreement" means (a) the Purchase Agreement dated November
16, 2006, among the Company, the Subsidiary Guarantors and the Initial
Purchasers and (b) any other similar Purchase Agreement relating to Additional
Securities.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registered Exchange Offer" means the offer by the Company, pursuant
to a Registration Rights Agreement, to certain Holders of Initial Securities, to
issue and deliver to such Holders, in exchange for their Initial Securities, a
like aggregate principal amount of Exchange Securities registered under the
Securities Act.
"Registration Rights Agreements" means (a) the Registration Rights
Agreement in respect of the Fixed Rate Securities and the Registration Rights
Agreement in respect of the Floating Rate Securities (each, a "Registration
Rights Agreement"), in each case dated November 21, 2006, among the Company, the
Subsidiary Guarantors and the Initial Purchasers and (b) any other similar
Registration Rights Agreement relating to Additional Securities.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Securities" means all Initial Securities offered and
sold outside the United States in reliance on Regulation S.
"Restricted Securities Legend" means the legend set forth in Section
2.3(e)(i) herein.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Securities" means all Initial Securities offered and sold
to QIBs in reliance on Rule 144A.
3
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a Global
Security (as appointed by the Depository) or any successor person thereto, who
shall initially be the Trustee.
"Shelf Registration Statement" means a registration statement filed by
the Company in connection with the offer and sale of Initial Securities pursuant
to a Registration Rights Agreement.
"Transfer Restricted Securities" means Definitive Securities and any
other Securities that bear or are required to bear or are subject to the
Restricted Securities Legend.
1.2 Other Definitions
Term:
Defined in Section:
-------------------
"Agent Members"........................................... 2.1(c)
"Global Security"......................................... 2.1(b)
"Permanent Regulation S Global Security................... 2.1(b)
"Regulation S Global Security"............................ 2.1(b)
"Rule 144A Global Security"............................... 2.1(b)
"Temporary Regulation S Global Security................... 2.1(b)
2. The Securities
2.1 Form and Dating
(a) The Initial Securities issued on the date hereof will be (i)
offered and sold by the Company pursuant to a Purchase Agreement and (ii)
resold, initially only to (1) QIBs in reliance on Rule 144A and (2) Persons
other than U.S. Persons (as defined in Regulation S) in reliance on Regulation
S. Such Initial Securities may thereafter be transferred to, among others, QIBs
and purchasers in reliance on Regulation S. Additional Securities offered after
the date hereof may be offered and sold by the Company from time to time
pursuant to one or more Purchase Agreements in accordance with applicable law.
(b) Global Securities. Initial Fixed Rate Securities and Initial
Floating Rate Securities initially resold pursuant to Rule 144A shall be issued
initially in the form of one or more permanent global Securities in definitive,
fully registered form (the "Rule 144A Global Fixed Rate Security" and the "Rule
144A Global Floating Rate Security", respectively, and each, a "Rule 144A Global
Security") and Initial Fixed Rate Securities and Initial Floating Rate
Securities initially resold pursuant to Regulation S shall be issued initially
in the form of one or more temporary global Securities (the
4
"Temporary Regulation S Global Fixed Rate Security" and the "Temporary
Regulation S Global Floating Rate Security, respectively, and each, a "Temporary
Regulation S Global Security"), in each case without interest coupons and
bearing the Global Securities Legend and Restricted Securities Legend, which
shall be deposited on behalf of the purchasers of the Securities represented
thereby with the Securities Custodian, and registered in the name of the
Depositary or a nominee of the Depositary, duly executed by the Company and
authenticated by the Trustee as provided in this Indenture. Beneficial ownership
interests in a Temporary Regulation S Global Security shall not be exchangeable
for interests in a Rule 144A Global Security, a permanent global security (a
"Permanent Regulation S Global Security") or any other Security without a
Restricted Securities Legend until the expiration of the Distribution Compliance
Period. Any Rule 144A Global Security and any Permanent Regulation S Global
Security are referred to herein as a "Global Security" and are collectively
referred to herein as "Global Securities", provided, that the term "Global
Security" when used in Sections 2.1(b) 2.1(c), 2.3(g)(i), 2.3(h)(i) and 2.4
shall also include any Security in global form issued in connection with a
Registered Exchange Offer. The aggregate principal amount of any Global
Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depositary or its nominee and on the
schedules thereto as hereinafter provided.
(c) Book-Entry Provisions. This Section 2.1(c) shall apply only to a
Global Security 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 Securities
that (i) shall be registered in the name of the Depository for such Global
Security or Global Securities 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 Indenture with respect to any Global Security held on
their behalf by the Depository or by the Trustee as Securities Custodian or
under such Global Security, 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 Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the 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 Security.
(d) Definitive Securities. Except as provided in Section 2.3 or 2.4,
owners of beneficial interests in Global Securities will not be entitled to
receive physical delivery of certificated Securities.
5
2.2 Authentication. The Trustee shall authenticate and make available for
delivery upon a written order of the Company signed by one Officer (a) original
Fixed Rate Securities for original issue on the date hereof in an aggregate
principal amount of $500,000,000 and original Floating Rate Securities for
original issue on the date hereof in an aggregate principal amount of
$500,000,000, (b) subject to the terms of this Indenture, Additional Securities
in an unlimited aggregate principal amount and (c) the Exchange Securities for
issue only in a Registered Exchange Offer pursuant to a Registration Rights
Agreement and for a like principal amount of Initial Securities exchanged
pursuant thereto. Such order shall specify the amount of the Securities to be
authenticated and the date on which the original issue of Securities is to be
authenticated and whether the Securities are to be Initial Securities or
Exchange Securities. Notwithstanding anything to the contrary in this Appendix
or otherwise in this Indenture, any issuance of Additional Securities after the
Closing Date shall be in a principal amount of at least $2,000 and integral
multiples of $1,000 in excess thereof.
2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive
Securities. When Definitive Securities are presented to the Registrar with a
request:
(i) to register the transfer of such Definitive Securities; or
(ii) to exchange such Definitive Securities for an equal principal
amount of Definitive Securities of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Definitive Securities surrendered for transfer or exchange:
(1) 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; and
(2) in the case of Transfer Restricted Securities, are accompanied by
the following additional information and documents, as applicable:
(A) if such Definitive Securities are being delivered to the
Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to that effect (in
the form set forth on the reverse side of the Initial Security); or
(B) if such Definitive Securities are being transferred to the
Company, a certification to that effect (in the form set forth on the
reverse side of the Initial Security); or
(C) if such Definitive Securities are being transferred pursuant
to an exemption from registration in accordance with Rule 144 under
the Securities Act or in reliance upon another exemption from the
registration requirements of the Securities Act, (x) a certification
to that effect (in the form set forth on the reverse side of the
Initial Security) and (y) if the
6
Company so requests, an opinion of counsel or other evidence
reasonably satisfactory to it as to the compliance with the
restrictions set forth in the legend set forth in Section 2.3(e)(i).
(b) Restrictions on Transfer of a Definitive Security for a Beneficial
Interest in a Global Security. A Definitive Security may not be exchanged for a
beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive
Security, duly endorsed or accompanied by a written instrument of transfer in
form reasonably satisfactory to the Company and the Registrar, together with:
(i) certification (in the form set forth on the reverse side of the
Initial Security) that such Definitive Security is being transferred (1) to
a QIB in accordance with Rule 144A or (2) outside the United States in an
offshore transaction within the meaning of Regulation S and in compliance
with Rule 904 under the Securities Act; and
(ii) 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 Security to reflect an increase in
the aggregate principal amount of the Securities represented by such Global
Security, such instructions to contain information regarding the Depository
account to be credited with such increase,
then the Trustee shall cancel such Definitive Security 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 Securities represented by such Global Security to
be increased by the aggregate principal amount of the Definitive Security 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 Security
equal to the principal amount of the Definitive Security so canceled. If no
applicable Global Securities are then outstanding and the applicable Global
Security 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 Security in the appropriate principal amount.
(c) Transfer and Exchange of Global Securities. The transfer and
exchange of Global Securities or beneficial interests therein shall be effected
through the Depository in accordance with this 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 Security
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 Security or
another Global Security and such account shall be credited in accordance with
such order with a beneficial interest in the applicable Global Security and the
account of the Person making the transfer shall be debited by an amount equal to
the beneficial interest
7
in the Global Security being transferred. Transfers by an owner of a beneficial
interest in a Rule 144A Global Security to a transferee who takes delivery of
such interest either through a Temporary Regulation S Global Security or a
Permanent Regulation S Global Security, whether before or after the expiration
of the Distribution Compliance Period, shall be made only upon receipt by the
Trustee of a certification in the form provided on the reverse of the Initial
Securities from the transferor to the effect that such transfer is being made in
accordance with Regulation S or (if available) Rule 144 under the Securities
Act.
(i) If the proposed transfer is a transfer of a beneficial interest in
one Global Security to a beneficial interest in another Global Security,
the Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Global Security 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 Security 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 Security 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.
(iii) In the event that a Global Security is exchanged for Definitive
Securities pursuant to Section 2.4 prior to the consummation of a
Registered Exchange Offer or the effectiveness of a Shelf Registration
Statement with respect to such Securities, such Securities may be exchanged
only in accordance with such procedures as are substantially consistent
with the provisions of this Section 2.3 (including the certification
requirements set forth on the reverse of the Initial Securities intended to
ensure that such transfers comply with Rule 144A, Regulation S or such
other applicable exemption from registration under the Securities Act, as
the case may be) and such other procedures as may from time to time be
adopted by the Company.
(d) Restrictions on Transfer of Temporary Regulation S Global
Securities. (i) Prior to the expiration of the Distribution Compliance Period,
interests in a Temporary Regulation S Global Security may only be sold, pledged
or transferred in accordance with the Applicable Procedures and only (1) to the
Company, (2) when and for so long as such security is eligible for resale
pursuant to Rule 144A, to a person whom the selling holder reasonably believes
is a QIB that purchases for its own account or for the account of a QIB to whom
notice is given that the resale, pledge or transfer is being made in reliance on
Rule 144A, (3) in an offshore transaction in accordance with Regulation S, (4)
pursuant to an exemption from registration under the Securities Act provided by
Rule 144 (if applicable) under the Securities Act or (5) pursuant to an
effective registration statement under the Securities Act, in each case in
accordance with
8
any applicable securities laws of any state of the United States. Prior to the
expiration of the Distribution Compliance Period, transfers by an owner of a
beneficial interest in a Temporary Regulation S Global Security to a transferee
who takes delivery of such interest through a Rule 144A Global Security shall be
made only in accordance with Applicable Procedures and upon receipt by the
Trustee of a written certification from the transferor of the beneficial
interest in the form provided on the reverse of the Initial Security to the
effect that such transfer is being made to a QIB within the meaning of Rule 144A
in a transaction meeting the requirements of Rule 144A. Such written
certification shall no longer be required after the expiration of the
Distribution Compliance Period.
(ii) Upon the expiration of the Distribution Compliance Period,
beneficial ownership interests in a Regulation S Global Security shall be
transferable in accordance with applicable law and the other terms of this
Indenture.
(e) Legend.
(i) Except as permitted by the following paragraphs (ii), (iii) or
(iv), each Security certificate evidencing the Global Securities and the
Definitive Securities (and all Securities issued in exchange therefor or in
substitution thereof) shall bear a legend in substantially the following
form (each defined term in the legend being defined as such for purposes of
the legend only):
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES ON ITS OWN
BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS [IN THE CASE OF
RULE 144A NOTES: TWO YEARS][IN THE CASE OF REGULATION S NOTES: 40 DAYS]
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER OR
ANY OF ITS SUBSIDIARIES, (B) WHEN AND FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
9
AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(C) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (D) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT,
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR (F) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSES (C), (D) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
Each Definitive Security shall also bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted Security that
is a Definitive Security, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for a Definitive Security that
does not bear the legends set forth above and rescind any restriction on
the transfer of such Transfer Restricted Security if the Holder certifies
in writing to the Registrar that its request for such exchange was made in
reliance on Rule 144 (such certification to be in the form set forth on the
reverse of the Initial Security) and, if requested by the Company or the
Trustee, delivers an opinion of counsel or other evidence reasonably
satisfactory to the Registrar and/or the Company as to the compliance with
the restrictions set forth in the legend set forth in Section 2.3(e)(i).
(iii) After a transfer of any Initial Securities during the period of
the effectiveness of a Shelf Registration Statement with respect to such
Initial Securities, all requirements pertaining to the Restricted
Securities Legend on such Initial Securities shall cease to apply and the
requirements that any such Initial Securities be issued in global form
shall continue to apply.
(iv) Upon the consummation of a Distribution Compliance Exchange Offer
with respect to the Initial Securities pursuant to which Holders of such
10
Initial Securities are offered Exchange Securities in exchange for their
Initial Securities, all requirements pertaining to Initial Securities that
Initial Securities be issued in global form shall continue to apply, and
Exchange Securities in global form without the Restricted Securities Legend
shall be available to Holders that exchange such Initial Securities in such
Registered Exchange Offer.
(v) Upon a sale or transfer after the expiration of the Distribution
Compliance Period of any Initial Security acquired pursuant to Regulation
S, all requirements that such Initial Security bear the Restricted
Securities Legend shall cease to apply and the requirements requiring any
such Initial Security be issued in global form shall continue to apply.
(vi) Any Additional Securities sold in a registered offering shall not
be required to bear the Restricted Securities Legend.
(f) Cancellation or Adjustment of Global Security. At such time as all
beneficial interests in a Global Security have either been exchanged for
Definitive Securities, transferred, redeemed, repurchased or canceled, such
Global Security 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 Security is exchanged for
Definitive Securities, transferred in exchange for an interest in another Global
Security, redeemed, repurchased or canceled, the principal amount of Securities
represented by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee (if it is then the Securities
Custodian for such Global Security) with respect to such Global Security, by the
Trustee or the Securities Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of Securities.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate, Definitive Securities and
Global Securities 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 and 9.05 of this Indenture).
(iii) Prior to the due presentation for registration of transfer of
any Security, the Company, the Trustee, the Paying Agent or the Registrar
may deem and treat the person in whose name a Security is registered as the
absolute owner of such Security for the purpose of receiving payment of
principal of and interest on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the
Company, the Trustee, the Paying Agent or the Registrar shall be affected
by notice to the contrary.
11
(iv) All Securities issued upon any transfer or exchange pursuant to
the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Securities
surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, 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 Securities 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 Securities. All notices and communications to be given to
the Holders and all payments to be made to Holders under the Securities
shall be given or made only to the registered Holders (which shall be the
Depository or its nominee in the case of a Global Security). The rights of
beneficial owners in any Global Security 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 Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between
or among the Depository, participants, members or beneficial owners in any
Global Security) 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 Indenture, and to
examine the same to determine substantial compliance as to form with the
express requirements hereof.
2.4 Definitive Securities
(a) A Global Security deposited with the Depository or with the
Trustee as Securities Custodian pursuant to Section 2.1 or issued in connection
with a Registered Exchange Offer shall be transferred to the beneficial owners
thereof in the form of Definitive Securities in an aggregate principal amount
equal to the principal amount of such Global Security, in exchange for such
Global Security, 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 Security 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
12
through the Depository in either case, following an Event of Default under this
Indenture or (iii) the Company, in its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of certificated Securities under
this Indenture.
(b) Any Global Security 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 Security, an equal aggregate principal
amount of Definitive Securities of authorized denominations. Any portion of a
Global Security transferred pursuant to this Section shall be executed,
authenticated and delivered only in denominations of $2,000 and any integral
multiple of $1,000 in excess thereof and registered in such names as the
Depository shall direct. Any certificated Initial Security in the form of a
Definitive Security delivered in exchange for an interest in the Global Security
shall, except as otherwise provided by Section 2.3(e), bear the Restricted
Securities Legend.
(c) Subject to the provisions of Section 2.4(b), the registered Holder
of a Global Security 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
Indenture or the Securities.
(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 Securities in fully registered
form without interest coupons.
EXHIBIT 1(a)
[FORM OF FACE OF INITIAL FIXED RATE SECURITY]
[Global Securities 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 SECURITY 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 SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[[FOR REGULATION S GLOBAL SECURITY ONLY] UNTIL 40 DAYS AFTER THE LATER
OF COMMENCEMENT OR COMPLETION OF THE OFFERING, AN OFFER OR SALE OF SECURITIES
WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY
VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR
SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES ON ITS OWN
BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE
(THE
2
"RESALE RESTRICTION TERMINATION DATE") THAT IS [IN THE CASE OF RULE 144A NOTES:
TWO YEARS][IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (B) WHEN AND
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (C) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (D) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT OR (F) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES
(C), (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
[Temporary Regulation S Global Security Legend]
EXCEPT AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN THIS
TEMPORARY REGULATION S GLOBAL SECURITY WILL NOT BE EXCHANGEABLE FOR INTERESTS IN
THE PERMANENT REGULATION S GLOBAL SECURITY OR ANY OTHER SECURITY REPRESENTING AN
INTEREST IN THE SECURITIES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND
CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE "40-DAY
DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE 903(b)(2) OF
REGULATION S UNDER THE SECURITIES ACT) AND THEN ONLY UPON CERTIFICATION IN FORM
REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH BENEFICIAL INTERESTS ARE OWNED
EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO PURCHASED SUCH INTERESTS IN A
TRANSACTION THAT DID NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT. DURING
SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN
THIS TEMPORARY REGULATION S GLOBAL SECURITY MAY ONLY BE SOLD, PLEDGED OR
TRANSFERRED (I) TO THE COMPANY, (II) OUTSIDE THE UNITED STATES IN A TRANSACTION
IN ACCORDANCE WITH RULE 904 OF REGULATION S
3
UNDER THE SECURITIES ACT, OR (III) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (III) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. HOLDERS OF INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL
NOTIFY ANY PURCHASER OF THIS SECURITY OF THE RESALE RESTRICTIONS REFERRED TO
ABOVE, IF THEN APPLICABLE.
AFTER THE EXPIRATION OF THE DISTRIBUTION COMPLIANCE PERIOD BENEFICIAL
INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY MAY BE EXCHANGED FOR
INTERESTS IN A RULE 144A GLOBAL SECURITY ONLY IF (1) SUCH EXCHANGE OCCURS IN
CONNECTION WITH A TRANSFER OF THE SECURITIES IN COMPLIANCE WITH RULE 144A AND
(2) THE TRANSFEROR OF THE REGULATION S GLOBAL SECURITY FIRST DELIVERS TO THE
TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE
EFFECT THAT THE REGULATION S GLOBAL SECURITY IS BEING TRANSFERRED (A) TO A
PERSON WHO THE TRANSFEROR REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A, (B) TO A PERSON WHO IS PURCHASING FOR ITS
OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, AND (C) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
BENEFICIAL INTERESTS IN A RULE 144A GLOBAL SECURITY MAY BE TRANSFERRED
TO A PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN THE REGULATION S
GLOBAL SECURITY, WHETHER BEFORE OR AFTER THE EXPIRATION OF THE 40-DAY
DISTRIBUTION COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR FIRST DELIVERS TO THE
TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE
EFFECT THAT SUCH TRANSFER IS BEING MADE IN ACCORDANCE WITH RULE 903 OR 904 OF
REGULATION S OR RULE 144 (IF AVAILABLE).
[Definitive Securities Legend]
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS.
No. - $__________
8.625% Senior Note due 2011
CUSIP No. [__________]
ISIN No. [__________]
THE GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation, promises to
pay to [_______], or registered assigns, the principal sum [of $______] [listed
on the Schedule of Increases or Decreases in Global Security attached hereto](1)
on December 1, 2011.
Interest Payment Dates: June 1 and December 1, commencing June 1, 2007
Record Dates: May 15 and November 15
----------
(1) Use the Schedule of Increases and Decreases language if Note is in Global
Form.
2
Additional provisions of this Security are set forth on the other side
of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
THE GOODYEAR TIRE & RUBBER COMPANY,
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated:
------------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
XXXXX FARGO BANK, N.A.,
as Trustee, certifies that this is
one of the Fixed Rate Securities
referred to in the Indenture.
By:
---------------------------------
Authorized Signatory
----------
*/ If the Security is to be issued in global form, add the Global Securities
Legend and the attachment from Exhibit 1 captioned "TO BE ATTACHED TO
GLOBAL SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
3
[FORM OF REVERSE SIDE OF INITIAL FIXED RATE SECURITY]
8.625% Senior Note due 2011
1. Interest
(a) 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 Fixed Rate Security at the rate per annum shown above.
The Company shall pay interest semi-annually on June 1 and December 1 of each
year. Interest on the Fixed Rate Securities 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 November 21, 2006 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 Fixed Rate Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
(b) Additional Interest--Registration. The Holder of this Fixed Rate
Security is entitled to the benefits of a Registration Rights Agreement, dated
as of November 21, 2006, among the Company, the Subsidiary Guarantors and
certain purchasers of the Fixed Rate Securities named therein (the "Registration
Rights Agreement"). Capitalized terms used in this paragraph (b) but not defined
herein have the meanings assigned to them in the Registration Rights Agreement.
Upon the occurrence of a Registration Default, the Company shall notify the
Trustee of such Registration Default and pay additional interest to each Holder
of Registrable Securities, during the period of such Registration Default in
such amounts and subject to such limitations as set forth in the Registration
Rights Agreement. All accrued additional interest shall be paid to Holders in
the same manner as interest payments on the Fixed Rate Securities on semi-annual
payment dates which correspond to interest payment dates for the Fixed Rate
Securities. Following the cure of all outstanding Registration Defaults, the
accrual of additional interest shall cease. The Trustee shall have no
responsibility with respect to the determination of the amount of any such
additional interest.
(c) Additional Interest--General All references to payments of
interest include payments of additional interest, if any.
2. Method of Payment
The Company shall pay interest on the Fixed Rate Securities (except
defaulted interest) to the Persons who are registered Holders at the close of
business on the May 15 or November 15 next preceding the interest payment date
even if Fixed Rate Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities 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 Fixed Rate Securities represented by a Global Security (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
4
payments in respect of a certificated Security (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
Fixed Rate Security will be made by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States of America if such
Holder has elected payment by wire transfer by providing written wire
instructions to the Trustee or the Paying Agent on or after the Closing Date
but, in any event, no later than 30 days immediately preceding the relevant due
date for payment (or such other date as the Trustee may accept in its
discretion).
3. Paying Agent and Registrar
Initially, Xxxxx Fargo Bank, N.A., a national banking association (the
"Trustee"), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent or Registrar without notice. The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent or
Registrar.
4. Indenture
The Company issued the Fixed Rate Securities under an Indenture dated
as of November 21, 2006 (the "Indenture"), among the Company, the Subsidiary
Guarantors and the Trustee. The terms of the Fixed Rate Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on
the date of the Indenture (the "TIA"). Terms defined in the Indenture and not
defined herein have the meanings ascribed thereto in the Indenture. The Fixed
Rate Securities are subject to all terms and provisions of the Indenture, and
Holders (as defined in the Indenture) are referred to the Indenture and the TIA
for a statement of such terms and provisions.
The Fixed Rate Securities are senior unsecured obligations of the
Company. This Fixed Rate Security is one of the Initial Securities referred to
in the Indenture. The Fixed Rate Securities include the Initial Fixed Rate
Securities and any Fixed Rate Exchange Securities issued in exchange for Initial
Fixed Rate Securities pursuant to the Indenture and the Registration Rights
Agreement. The Initial Fixed Rate Securities, any Fixed Rate Exchange Securities
and all other Fixed Rate Securities are treated as a single class of securities
under the Indenture. The 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 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 Fixed
Rate Securities have an Investment Grade Rating from both of the Rating
Agencies, and (ii) no Default with respect to the Fixed Rate Securities has
occurred and is continuing under the Indenture, the Company and its Restricted
Subsidiaries will not be subject to Sections 4.03, 4.04, 4.05, 4.06,
5
4.07, 4.11 and Section 5.01(a)(3) (collectively, the "Suspended Covenants") of
the Indenture with respect to the Fixed Rate Securities. In addition, the
Company may elect to suspend the Subsidiary Guarantees with respect to the Fixed
Rate Securities. Upon and following any Reversion Date, the Company and its
Restricted Subsidiaries shall again be subject to the Suspended Covenants with
respect to the Fixed Rate Securities with respect to future events and the
Subsidiary Guarantees with respect to the Fixed Rate Securities shall be
reinstated.
5. Guarantee
The payment by the Company of the principal of, and premium and
interest on, the Fixed Rate Securities is fully and unconditionally guaranteed
on a joint and several senior unsecured basis by each Subsidiary Guarantor to
the extent set forth in the Indenture. The precise terms of the Guarantee of the
Fixed Rate Securities and the Guaranteed Obligations of the Subsidiary
Guarantors with respect to the Fixed Rate Securities are expressly set forth in
Article 10 of the Indenture.
6. Optional Redemption
Except as set forth below in this paragraph 6 the Company will not be
entitled to redeem the Fixed Rate Securities.
After December 1, 2009, the Company may redeem the Fixed Rate
Securities, in whole or in part, on not less than 30 nor more than 60 days'
prior notice, at the redemption prices (expressed as percentages of principal
amount), plus accrued and unpaid interest to the redemption date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date), if redeemed during the 12 month period
commencing on December 1 of the years set forth below:
Redemption
Year Price
------- ----------
2009... 104.313%
2010... 102.156%
2011... 100.000%
In addition, prior to December 1, 2009, the Company may, on one or
more occasions, redeem up to a maximum of 35% of the original aggregate
principal amount of the Fixed Rate Securities (calculated giving effect to any
issuance of Additional Fixed Rate Securities) with the Net Cash Proceeds of one
or more Equity Offerings by the Company, at a redemption price equal to 108.625%
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 Fixed Rate Securities (calculated giving effect to any issuance of
Additional Fixed Rate Securities) 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 Indenture.
6
In addition, prior to December 1, 2009, the Company may at its option
redeem the Fixed Rate Securities, in whole or in part, at a redemption price
equal to 100% of the principal amount of the Fixed Rate Securities plus the
Applicable Premium as of, and accrued and unpaid interest to, the redemption
date (subject to the right of Holders on the relevant record date to receive
interest due on the relevant interest payment date). Notice of such redemption
must be mailed by first-class mail to each Holder's registered address, not less
than 30 nor more than 60 days prior to the redemption date.
"Applicable Premium" means, with respect to a Fixed Rate Security at
any redemption date, the greater of (1) 1.00% of the principal amount of such
Security and (2) the excess of (A) the present value at such redemption date of
(i) the redemption price of such Fixed Rate Security on December 1, 2009 (such
redemption price being described in the first paragraph in this section
exclusive of any accrued interest), plus (ii) all required remaining scheduled
interest payments due on such Fixed Rate Security through December 1, 2009 (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 December 1, 2009, 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 Fixed Rate Securities from the redemption date to December 1, 2009,
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 December 1, 2009.
"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.
7
"Quotation Agent" means one of the Reference Treasury Dealers selected
by the Company.
"Reference Treasury Dealer" means Xxxxxxx, Xxxxx & Co. and its
successors and assigns and two other nationally recognized investment banking
firms selected by the Company that are primary U.S. Government securities
dealers.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Company, of the bid and asked prices for the Comparable Treasury Issue,
expressed in each case as a percentage of its principal amount, quoted in
writing to the Company by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day immediately preceding such redemption date.
7. Sinking Fund
The Fixed Rate Securities are not subject to any sinking fund.
8. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Fixed Rate Securities to be redeemed at his, her or its registered address.
Fixed Rate Securities in denominations larger than $2,000 may be redeemed in
part but only in whole multiples of $2,000. If money sufficient to pay the
redemption price of and accrued and unpaid interest on all Fixed Rate Securities
(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 Fixed
Rate Securities (or such portions thereof) called for redemption.
9. Repurchase of Securities at the Option of Holders
Upon a Change of Control, any Holder of Fixed Rate Securities will
have the right, subject to certain conditions specified in the Indenture, to
cause the Company to repurchase all or any part of the Fixed Rate Securities of
such Holder at a purchase price equal to 101% of the principal amount of the
Fixed Rate Securities to be repurchased plus accrued and unpaid interest to the
date of repurchase (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date that
is on or prior to the date of purchase) as provided in, and subject to the terms
of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Company will be
required to offer to purchase Fixed Rate Securities upon the occurrence of
certain events.
10. Denominations; Transfer; Exchange
The Fixed Rate Securities are in registered form without coupons in
denominations of $2,000 and whole multiples of $1,000 in excess thereof. A
Holder may transfer or exchange Fixed Rate Securities in accordance with the
Indenture. Upon any transfer
8
or exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Fixed Rate Securities selected for
redemption (except, in the case of a Security to be redeemed in part, the
portion of the Security not to be redeemed) or to transfer or exchange any Fixed
Rate Securities for a period of 15 days prior to a selection of Fixed Rate
Securities to be redeemed or for a period of 15 days prior to an interest
payment date.
11. Persons Deemed Owners
Except as provided in paragraph 2 hereof, the registered Holder of
this Fixed Rate Security may be treated as the owner of it for all purposes.
12. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent shall pay the money back to the
Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
to the Company for payment as general creditors and the Trustee and the Paying
Agent shall have no further liability with respect to such monies.
13. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate
some of or all its obligations under the Fixed Rate Securities and the Indenture
with respect to the Fixed Rate Securities if the Company deposits with the
Trustee money or U.S. Government Obligations for the payment of principal of,
and interest on the Fixed Rate Securities to redemption, or maturity, as the
case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture with respect to the Fixed Rate Securities or the Fixed Rate Securities
may be amended with the written consent of the Holders of at least a majority in
aggregate principal amount of all of the Fixed Rate Securities then outstanding
voting as a single class and (ii) any Default with respect to the Fixed Rate
Securities may be waived with the written consent of the Holders of at least a
majority in principal amount of all of the Fixed Rate Securities then
outstanding voting as a single class.
Subject to certain exceptions set forth in the Indenture, without the
consent of any Holder of Fixed Rate Securities, the Company, the Subsidiary
Guarantors and the Trustee may amend the Indenture with respect to the Fixed
Rate Securities or the Fixed Rate Securities (i) to cure any ambiguity,
omission, defect or inconsistency; (ii) to provide for the assumption by a
successor corporation of the obligations of the Company under the Indenture in
compliance with Article 5 of the Indenture; (iii) to provide for uncertificated
Securities in addition to or in place of certificated Securities; (iv) to add
Guarantees with respect to the Fixed Rate Securities or to confirm and evidence
the release, termination or discharge of any such Guarantee or security with
respect to the Fixed Rate Securities when such release, termination or discharge
is permitted
9
under the Indenture; (v) to add additional covenants for the benefit of the
Fixed Rate Securities or to surrender rights and powers conferred on the
Company; (vi) to make any change that does not adversely affect the rights of
any Holder of Fixed Rate Securities in any material respect, subject to the
provisions of the Indenture; (vii) to comply with the requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the TIA;
(viii) to make any amendment to provisions of the Indenture relating to form,
authentication, transfer and legending of the Fixed Rate Securities; provided,
however, that compliance with the Indenture as so amended would not result in
Fixed Rate Securities being transferred in violation of the Securities Act; or
(ix) to provide for the issuance of the Fixed Rate Exchange Securities or
Additional Fixed Rate Securities in accordance with the terms of the Indenture.
15. Defaults and Remedies
An "Event of Default" with respect to the Fixed Rate Securities occurs
if: (i) the Company defaults in any payment of interest on any Fixed Rate
Security 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 Fixed Rate
Security 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 Indenture with respect to the Fixed
Rate Securities; (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
Indenture (in each case, other than a failure to purchase Securities) with
respect to the Fixed Rate Securities 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 agreements
contained in the Fixed Rate Securities or the Indenture (other than those
referred to in clauses (i), (ii), (iii) or (iv) above) with respect to the Fixed
Rate Securities 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 $50,000,000 or its foreign currency equivalent; (vii)
certain events of bankruptcy, insolvency or reorganization of the Company or a
Significant Subsidiary under Sections 6.01(7) and (8) of the Indenture; (viii)
any final and nonappealable judgment or decree (not covered by insurance) for
the payment of money in excess of $50,000,000 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 Fixed Rate Securities 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 Indenture or any Subsidiary Guarantee with respect to the
Fixed Rate Securities 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
10
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body.
Notwithstanding the foregoing, a default under clause (iv), (v), (vi),
(viii) or (ix) (only with respect to any Subsidiary Guarantor that is not a
Significant Subsidiary) shall not constitute an Event of Default with respect to
the Fixed Rate Securities until the Trustee notifies the Company or the Holders
of at least 25% in principal amount of the outstanding Fixed Rate Securities
notify the Company and the Trustee of the default and the Company or the
Subsidiary Guarantor, as applicable, does not cure such default within any
applicable time specified in clause (iv), (v), (vi), (viii) or (ix) hereof after
receipt of such notice.
If an Event of Default with respect to the Fixed Rate Securities
occurs (other than an Event of Default relating to certain events of bankruptcy,
insolvency or reorganization of the Company) and is continuing, the Trustee or
the Holders of at least 25% in principal amount of all of the outstanding Fixed
Rate Securities may declare the principal of and accrued but unpaid interest on
all the Fixed Rate Securities to be due and payable. If an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Company occurs, the principal of and interest on all the Fixed Rate Securities
shall become immediately due and payable without any declaration or other act on
the part of the Trustee or any Holders. Under certain circumstances, the Holders
of a majority in principal amount of the outstanding Fixed Rate Securities may
rescind any such acceleration with respect to the Securities and its
consequences.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Fixed Rate Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
17. No Recourse Against Others
A director, officer, employee or shareholder, as such, of the Company
or any Subsidiary Guarantor shall not have any liability for any obligations of
the Company under the Fixed Rate Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By
accepting a Fixed Rate Security, each Holder waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Fixed Rate Securities.
18. Authentication
This Fixed Rate Security 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 Security.
19. Abbreviations
11
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).
20. Governing Law
THIS FIXED RATE SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
21. CUSIP Numbers and ISINs
The Company has caused CUSIP numbers and ISINs to be printed on the
Fixed Rate Securities and has directed the Trustee to use CUSIP numbers and
ISINs in notices of redemption as a convenience to Holders. No representation is
made as to the accuracy of such numbers either as printed on the Fixed Rate
Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY HOLDER OF FIXED RATE SECURITIES UPON
WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS FIXED RATE SECURITY.
12
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security 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 Security on the
books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: Your Signature:
---------------- -----------------------------------------
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
13
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER RESTRICTED SECURITIES
This certificate relates to $____________ principal amount of Securities,
CUSIP_________, held in (check applicable space) ____ book-entry or _____
definitive form by the undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Security held by the Depository a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated above);
[ ] has requested the Trustee by written order, in exchange for its Definitive
Securities, to credit the participant account of the Depository specified
by the Holder with a beneficial interest in the Global Security held by the
Depository in an aggregate principal amount equal to the principal amount
represented by its Definitive Securities (or the portion thereof indicated
above);
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act of 1933 after the later of the date of original
issuance of such Securities and the last date, if any, on which such Securities
were owned by the Company or any Affiliate of the Company, the undersigned
confirms that such Securities are being transferred in accordance with its
terms:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] to the Registrar for registration in the name of the Holder,
without transfer; or
(3) [ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(4) [ ] inside the United States to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933) that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that such transfer is
being made in reliance on Rule 144A, in each case pursuant to and
in compliance with Rule 144A under the Securities Act of 1933; or
14
(5) [ ] outside the United States in an offshore transaction within the
meaning of Regulation S under the Securities Act in compliance
with Rule 904 under the Securities Act of 1933; or
(6) [ ] pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any Person
other than the registered Holder thereof; provided, however, that if box
(5) or (6) is checked, the Trustee may require, prior to registering any
such transfer of the Securities, such legal opinions, certifications and
other information as the Company has reasonably requested to confirm that
such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act of 1933.
----------------------------------------
Your Signature
Signature Guarantee:
Date:
------------------------------- ----------------------------------------
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized signature
guaranty medallion program or other
signature guarantor acceptable to the
Trustee
--------------------------------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Dated:
------------------------------ ----------------------------------------
NOTICE: To be executed by an executive
officer
15
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[_____]. The
following increases or decreases in this Global Security have been made:
Amount of decrease Amount of increase Principal amount of Signature of
in Principal Amount in Principal Amount this Global Security authorized signatory
Date of of this Global of this Global following such of Trustee or
Exchange Security Security decrease or increase Securities Custodian
-------- ------------------- ------------------- -------------------- --------------------
16
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.06 (Asset Sale) or 4.08 (Change of Control) of the
Indenture, check the box:
Asset Sale [_____] Change of Control [_____]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.06 or 4.08 of the Indenture, state the amount
($2,000 or an integral multiple thereof):
$______________
Date: Your Signature:
---------------------- -----------------------------------
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee:
-----------------------------------------------------------
Signature must be guaranteed by a participant in a recognized
signature guaranty medallion program or other signature guarantor acceptable to
the Trustee
EXHIBIT 1(b)
[FORM OF FACE OF FIXED RATE EXCHANGE SECURITY]
[Global Securities 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 SECURITY 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 SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
2
No. - $__________
8.625% Senior Note due 2011
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 Security attached
hereto](2) on July 1, 2015.
Interest Payment Dates: June 1 and December 1, commencing June 1, 2009
Record Dates: May 15 or November 15
----------
(2) Use the Schedule of Increases and Decreases language if Note is in Global
Form.
3
Additional provisions of this Security are set forth on the other side
of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
THE GOODYEAR TIRE & RUBBER COMPANY,
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated:
------------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
XXXXX FARGO BANK, N.A.,
as Trustee, certifies that this is
one of the Fixed Rate Securities
referred to in the Indenture.
By:
---------------------------------
Authorized Signatory
----------
*/ If the Security is to be issued in global form, add the Global Securities
Legend and the attachment from Exhibit 2 captioned "TO BE ATTACHED TO
GLOBAL SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
[FORM OF REVERSE SIDE OF FIXED RATE EXCHANGE SECURITY]
8.625% Senior Note due 2011
1. Interest
(a) 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 Fixed Rate Security at the rate per annum shown above.
The Company shall pay interest semi-annually on June 1 and December 1 of each
year. Interest on the Fixed Rate Securities 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 November 21, 2006 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 Fixed Rate Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
(b) Additional Interest--General All references to payments of
interest include payments of additional interest, if any.
2. Method of Payment
The Company shall pay interest on the Fixed Rate Securities (except
defaulted interest) to the Persons who are registered Holders at the close of
business on the May 15 or November 15 next preceding the interest payment date
even if Fixed Rate Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities 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 Fixed Rate Securities represented by a Global Security (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 Security (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 Fixed Rate
Security 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).
2
3. Paying Agent and Registrar
Initially, Xxxxx Fargo Bank, N.A., a national banking association (the
"Trustee"), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent or Registrar without notice. The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent or
Registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of
November 21, 2006 (the "Indenture"), among the Company, the Subsidiary
Guarantors and the Trustee. The terms of the Fixed Rate Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on
the date of the Indenture (the "TIA"). Terms defined in the Indenture and not
defined herein have the meanings ascribed thereto in the Indenture. The Fixed
Rate Securities are subject to all terms and provisions of the Indenture, and
Holders (as defined in the Indenture) are referred to the Indenture and the TIA
for a statement of such terms and provisions.
The Fixed Rate Securities are senior unsecured obligations of the
Company. This Fixed Rate Security is one of the Fixed Rate Exchange Securities
referred to in the Indenture. The Fixed Rate Securities include the Initial
Fixed Rate Securities and the Fixed Rate Exchange Securities issued in exchange
for Initial Fixed Rate Securities pursuant to the Indenture and the Registration
Rights Agreement. The Initial Fixed Rate Securities, the Fixed Rate Exchange
Securities and all other Fixed Rate Securities are treated as a single class of
securities under the Indenture. The 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 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 Fixed
Rate Securities have an Investment Grade Rating from both of the Rating
Agencies, and (ii) no Default with respect to the Fixed Rate Securities has
occurred and is continuing under the 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
Indenture with respect to the Fixed Rate Securities. In addition, the Company
may elect to suspend the Subsidiary Guarantees with respect to the Fixed Rate
Securities. Upon and following any Reversion Date, the Company and its
Restricted Subsidiaries shall again be subject to the Suspended Covenants with
respect to the Fixed
3
Rate Securities with respect to future events and the Subsidiary Guarantees with
respect to the Fixed Rate Securities shall be reinstated.
5. Guarantee
The payment by the Company of the principal of, and premium and
interest on, the Fixed Rate Securities is fully and unconditionally guaranteed
on a joint and several senior unsecured basis by each Subsidiary Guarantor to
the extent set forth in the Indenture. The precise terms of the Guarantee of the
Fixed Rate Securities and the Guaranteed Obligations of the Subsidiary
Guarantors with respect to the Fixed Rate Securities are expressly set forth in
Article 10 of the Indenture.
6. Optional Redemption
Except as set forth below in this paragraph 6 the Company will not be
entitled to redeem the Fixed Rate Securities.
After December 1, 2009, the Company may redeem the Fixed Rate
Securities, in whole or in part, on not less than 30 nor more than 60 days'
prior notice, at the redemption prices (expressed as percentages of principal
amount), plus accrued and unpaid interest to the redemption date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date), if redeemed during the 12 month period
commencing on December 1 of the years set forth below:
Redemption
Year Price
------- ----------
2009... 104.313%
2010... 102.156%
2011... 100.000%
In addition, prior to December 1, 2009, the Company may, on one or
more occasions, redeem up to a maximum of 35% of the original aggregate
principal amount of the Fixed Rate Securities (calculated giving effect to any
issuance of Additional Fixed Rate Securities) with the Net Cash Proceeds of one
or more Equity Offerings by the Company, at a redemption price equal to 108.625%
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 Fixed Rate Securities (calculated giving effect to any issuance of
Additional Fixed Rate Securities) 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 Indenture.
4
In addition, prior to December 1, 2009, the Company may at its option
redeem the Fixed Rate Securities, in whole or in part, at a redemption price
equal to 100% of the principal amount of the Fixed Rate Securities plus the
Applicable Premium as of, and accrued and unpaid interest to, the redemption
date (subject to the right of Holders on the relevant record date to receive
interest due on the relevant interest payment date). Notice of such redemption
must be mailed by first-class mail to each Holder's registered address, not less
than 30 nor more than 60 days prior to the redemption date.
"Applicable Premium" means, with respect to a Fixed Rate Security at
any redemption date, the greater of (1) 1.00% of the principal amount of such
Security and (2) the excess of (A) the present value at such redemption date of
(i) the redemption price of such Fixed Rate Security on December 1, 2009 (such
redemption price being described in the first paragraph in this section
exclusive of any accrued interest), plus (ii) all required remaining scheduled
interest payments due on such Fixed Rate Security through December 1, 2009 (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 December 1, 2009, 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 Fixed Rate Securities from the redemption date to December 1, 2009,
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 December 1, 2009.
"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
5
possible, such lesser number as is obtained by the Company, Reference Treasury
Dealer Quotations for such redemption date.
"Quotation Agent" means one of the Reference Treasury Dealers selected
by the Company.
"Reference Treasury Dealer" means Xxxxxxx, Xxxxx & Co. and its
successors and assigns and two other nationally recognized investment banking
firms selected by the Company that are primary U.S. Government securities
dealers.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Company, of the bid and asked prices for the Comparable Treasury Issue,
expressed in each case as a percentage of its principal amount, quoted in
writing to the Company by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day immediately preceding such redemption date.
7. Sinking Fund
The Fixed Rate Securities are not subject to any sinking fund.
8. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Fixed Rate Securities to be redeemed at his, her or its registered address.
Fixed Rate Securities in denominations larger than $2,000 may be redeemed in
part but only in whole multiples of $2,000. If money sufficient to pay the
redemption price of and accrued and unpaid interest on all Fixed Rate Securities
(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 Fixed
Rate Securities (or such portions thereof) called for redemption.
9. Repurchase of Securities at the Option of Holders
Upon a Change of Control, any Holder of Fixed Rate Securities will
have the right, subject to certain conditions specified in the Indenture, to
cause the Company to repurchase all or any part of the Fixed Rate Securities of
such Holder at a purchase price equal to 101% of the principal amount of the
Fixed Rate Securities to be repurchased plus accrued and unpaid interest to the
date of repurchase (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date that
is on or prior to the date of purchase) as provided in, and subject to the terms
of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Company will be
required to offer to purchase Fixed Rate Securities upon the occurrence of
certain events.
6
10. Denominations; Transfer; Exchange
The Fixed Rate Securities are in registered form without coupons in
denominations of $2,000 and whole multiples of $1,000 in excess thereof. A
Holder may transfer or exchange Fixed Rate Securities in accordance with the
Indenture. Upon any transfer or exchange, the Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any Fixed
Rate Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or to transfer
or exchange any Fixed Rate Securities for a period of 15 days prior to a
selection of Fixed Rate Securities to be redeemed or for a period of 15 days
prior to an interest payment date.
11. Persons Deemed Owners
Except as provided in paragraph 2 hereof, the registered Holder of
this Fixed Rate Security may be treated as the owner of it for all purposes.
12. Unclaimed Money
If money for the payment of principal, interest remains unclaimed for
two years, the Trustee and the Paying Agent shall pay the money back to the
Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
to the Company for payment as general creditors and the Trustee and the Paying
Agent shall have no further liability with respect to such monies.
13. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate
some of or all its obligations under the Fixed Rate Securities and the Indenture
with respect to the Fixed Rate Securities if the Company deposits with the
Trustee money or U.S. Government Obligations for the payment of principal of,
and interest on the Fixed Rate Securities to redemption, or maturity, as the
case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture with respect to the Fixed Rate Securities or the Fixed Rate Securities
may be amended with the written consent of the Holders of at least a majority in
aggregate principal amount of all of the Fixed Rate Securities then outstanding
voting as a single class and (ii) any Default with respect to the Fixed Rate
Securities may be waived with the written consent of the Holders of at least a
majority in principal amount of all of the Fixed Rate Securities then
outstanding voting as a single class.
Subject to certain exceptions set forth in the Indenture, without the
consent of any Holder of Fixed Rate Securities, the Company, the Subsidiary
Guarantors and the
7
Trustee may amend the Indenture with respect to the Fixed Rate Securities or the
Fixed Rate Securities (i) to cure any ambiguity, omission, defect or
inconsistency; (ii) to provide for the assumption by a successor corporation of
the obligations of the Company under the Indenture in compliance with Article 5
of the Indenture; (iii) to provide for uncertificated Securities in addition to
or in place of certificated Securities; (iv) to add Guarantees with respect to
the Fixed Rate Securities or to confirm and evidence the release, termination or
discharge of any such Guarantee or security when such release, termination or
discharge is permitted under the Indenture; (v) to add additional covenants for
the benefit of the Holders of the Fixed Rate Securities or to surrender rights
and powers conferred on the Company; (vi) to make any change that does not
adversely affect the rights of any Holder of Fixed Rate Securities in any
material respect, subject to the provisions of the Indenture; (vii) to comply
with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA; (viii) to make any amendment to
provisions of the Indenture relating to form, authentication, transfer and
legending of the Fixed Rate Securities; provided, however, that compliance with
the Indenture as so amended would not result in Fixed Rate Securities being
transferred in violation of the Securities Act; or (ix) to provide for the
issuance of the Fixed Rate Exchange Securities or Additional Fixed Rate
Securities in accordance with the terms of the Indenture.
15. Defaults and Remedies
An "Event of Default" with respect to the Fixed Rate Securities occurs
if: (i) the Company defaults in any payment of interest on any Fixed Rate
Security 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 Fixed Rate
Security 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 Indenture with respect to the Fixed
Rate Securities ; (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
Indenture (in each case, other than a failure to purchase Securities) with
respect to the Fixed Rate Securities 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 agreements
contained in the Fixed Rate Securities or the Indenture (other than those
referred to in clauses (i), (ii), (iii) or (iv) above) with respect to the Fixed
Rate Securities 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 $50,000,000 or its foreign currency equivalent; (vii)
certain events of bankruptcy, insolvency or reorganization of the Company or a
Significant Subsidiary under Sections 6.01(7) and (8) of the Indenture; (viii)
any final and nonappealable judgment or decree (not covered by insurance) for
the payment of money in excess of $50,000,000 or its foreign currency equivalent
(treating any deductibles, self-insurance or retention as not so covered) is
8
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 Fixed Rate Securities 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 Indenture or any Subsidiary Guarantee with respect to the
Fixed Rate Securities and such Default continues for 10 days after receipt of
the notice specified below.
The foregoing shall constitute Events of Default whatever the reason
for any such Event of Default and whether such Event of Default is voluntary or
involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
Notwithstanding the foregoing, a default under clause (iv), (v), (vi),
(viii) or (ix) (only with respect to any Subsidiary Guarantor that is not a
Significant Subsidiary) shall not constitute an Event of Default with respect to
the Fixed Rate Securities until the Trustee notifies the Company or the Holders
of at least 25% in principal amount of the outstanding Fixed Rate Securities
notify the Company and the Trustee of the default and the Company or the
Subsidiary Guarantor, as applicable, does not cure such default within any
applicable time specified in clause (iv), (v), (vi), (viii) or (ix) hereof after
receipt of such notice.
If an Event of Default with respect to the Fixed Rate Securities
occurs (other than an Event of Default relating to certain events of bankruptcy,
insolvency or reorganization of the Company) and is continuing, the Trustee or
the Holders of at least 25% in principal amount of all of the outstanding Fixed
Rate Securities may declare the principal of and accrued but unpaid interest on
all the Securities to be due and payable. If an Event of Default relating to
certain events of bankruptcy, insolvency or reorganization of the Company
occurs, the principal of and interest on all the Fixed Rate Securities shall
become immediately due and payable without any declaration or other act on the
part of the Trustee or any Holders. Under certain circumstances, the Holders of
a majority in principal amount of the outstanding Fixed Rate Securities may
rescind any such acceleration with respect to the Securities and its
consequences.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Fixed Rate Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
17. No Recourse Against Others
A director, officer, employee or shareholder, as such, of the Company
or any Subsidiary Guarantor shall not have any liability for any obligations of
the Company
9
under the Fixed Rate Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Fixed Rate Security, each Holder waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the Fixed Rate
Securities.
18. Authentication
This Fixed Rate Security 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 Security.
19. Abbreviations
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. Governing Law
THIS FIXED RATE SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
21. CUSIP Numbers and ISINs
The Company has caused CUSIP numbers and ISINs to be printed on the
Fixed Rate Securities and has directed the Trustee to use CUSIP numbers and
ISINs in notices of redemption as a convenience to Holders. No representation is
made as to the accuracy of such numbers either as printed on the Fixed Rate
Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY HOLDER OF FIXED RATE SECURITIES UPON
WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH
HAS IN IT THE TEXT OF THIS FIXED RATE SECURITY.
10
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security 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 Security on the books
of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: Your Signature:
---------------------- -----------------------------------
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security. Signature
must be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor acceptable to the Trustee.
11
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[_____]. The
following increases or decreases in this Global Security have been made:
Amount of decrease Amount of increase Principal amount of Signature of
in Principal Amount in Principal Amount this Global Security authorized signatory
Date of of this Global of this Global following such of Trustee or
Exchange Security Security decrease or increase Securities Custodian
-------- ------------------- ------------------- -------------------- --------------------
12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.06 (Asset Sale) or 4.08 (Change of Control) of the
Indenture, check the box:
Asset Sale [_____] Change of Control [_____]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.06 or 4.08 of the Indenture, state the amount
($2,000 or an integral multiple thereof):
$________________
Date: Your Signature:
------------------ ---------------------------------------
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee:
-----------------------------------------------------------
Signature must be guaranteed by a participant in a recognized signature guaranty
medallion program or other signature guarantor acceptable to the Trustee
EXHIBIT 2(a)
[FORM OF FACE OF INITIAL FLOATING RATE SECURITY]
[Global Securities 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 SECURITY 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 SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[[FOR REGULATION S GLOBAL SECURITY ONLY] UNTIL 40 DAYS AFTER THE LATER
OF COMMENCEMENT OR COMPLETION OF THE OFFERING, AN OFFER OR SALE OF SECURITIES
WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN THE SECURITIES ACT) MAY
VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER OR
SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES ON ITS OWN
BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE
(THE
2
"RESALE RESTRICTION TERMINATION DATE") THAT IS [IN THE CASE OF RULE 144A NOTES:
TWO YEARS][IN THE CASE OF REGULATION S NOTES: 40 DAYS] AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (B) WHEN AND
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (C) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (D) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT OR (F) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES
(C), (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
[Temporary Regulation S Global Security Legend]
EXCEPT AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN THIS
TEMPORARY REGULATION S GLOBAL SECURITY WILL NOT BE EXCHANGEABLE FOR INTERESTS IN
THE PERMANENT REGULATION S GLOBAL SECURITY OR ANY OTHER SECURITY REPRESENTING AN
INTEREST IN THE SECURITIES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND
CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE "40-DAY
DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE 903(b)(2) OF
REGULATION S UNDER THE SECURITIES ACT) AND THEN ONLY UPON CERTIFICATION IN FORM
REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH BENEFICIAL INTERESTS ARE OWNED
EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO PURCHASED SUCH INTERESTS IN A
TRANSACTION THAT DID NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT. DURING
SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN
THIS TEMPORARY REGULATION S GLOBAL SECURITY MAY ONLY BE SOLD, PLEDGED OR
TRANSFERRED (I) TO THE COMPANY, (II) OUTSIDE THE UNITED STATES IN A TRANSACTION
IN ACCORDANCE WITH RULE 904 OF REGULATION S
3
UNDER THE SECURITIES ACT, OR (III) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (III) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. HOLDERS OF INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL
NOTIFY ANY PURCHASER OF THIS SECURITY OF THE RESALE RESTRICTIONS REFERRED TO
ABOVE, IF THEN APPLICABLE.
AFTER THE EXPIRATION OF THE DISTRIBUTION COMPLIANCE PERIOD BENEFICIAL
INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY MAY BE EXCHANGED FOR
INTERESTS IN A RULE 144A GLOBAL SECURITY ONLY IF (1) SUCH EXCHANGE OCCURS IN
CONNECTION WITH A TRANSFER OF THE SECURITIES IN COMPLIANCE WITH RULE 144A AND
(2) THE TRANSFEROR OF THE REGULATION S GLOBAL SECURITY FIRST DELIVERS TO THE
TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE
EFFECT THAT THE REGULATION S GLOBAL SECURITY IS BEING TRANSFERRED (A) TO A
PERSON WHO THE TRANSFEROR REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A, (B) TO A PERSON WHO IS PURCHASING FOR ITS
OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, AND (C) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
BENEFICIAL INTERESTS IN A RULE 144A GLOBAL SECURITY MAY BE TRANSFERRED
TO A PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN THE REGULATION S
GLOBAL SECURITY, WHETHER BEFORE OR AFTER THE EXPIRATION OF THE 40-DAY
DISTRIBUTION COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR FIRST DELIVERS TO THE
TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE
EFFECT THAT SUCH TRANSFER IS BEING MADE IN ACCORDANCE WITH RULE 903 OR 904 OF
REGULATION S OR RULE 144 (IF AVAILABLE).
[Definitive Securities Legend]
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS.
[OID Legend]
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, THE SECURITIES
4
REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT.
TH ISSUE PRICE OF EACH SECURITY IS $990 PER $1000 OF PRINCIPAL AMOUNT, THE ISSUE
DATE IS [__________], [_____] AND THE INITIAL YIELD TO MATURITY OF THIS SECURITY
IS 9.53%.
No. $__________
Floating Rate Senior Note due 2009
CUSIP No. [__________]
ISIN No. [__________]
THE GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation, promises to
pay to [__________], or registered assigns, the principal sum [of $__________]
[listed on the Schedule of Increases or Decreases in Global Security attached
hereto](3) on December 1, 2009.
Interest Payment Dates: June 1 and December 1, commencing June 1, 2007
Record Dates: May 15 and November 15
----------
(3) Use the Schedule of Increases and Decreases language if Note is in Global
Form.
2
Additional provisions of this Security are set forth on the other side
of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
THE GOODYEAR TIRE & RUBBER COMPANY,
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated:
------------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
XXXXX FARGO BANK, N.A.,
as Trustee, certifies that this is one of the Floating Rate Securities
referred to in the Indenture.
By:
---------------------------------
Authorized Signatory
----------
*/ If the Security is to be issued in global form, add the Global Securities
Legend and the attachment from Exhibit 1 captioned "TO BE ATTACHED TO
GLOBAL SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
3
[FORM OF REVERSE SIDE OF INITIAL FLOATING RATE SECURITY]
Floating Rate Senior Note due 2009
1. Interest
(a) 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 Floating Rate Security at the rate per annum equal to
the Applicable Floating Rate. The Applicable Floating Rate will be reset
semi-annually on June 1 and December 1 of each year. The Company shall pay
interest semi-annually on June 1 and December 1 of each year. Interest on the
Floating Rate Securities 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 November 21, 2006 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 Floating Rate Securities, and it shall pay interest on overdue installments
of interest at the same rate to the extent lawful.
"Applicable Floating Rate" means, for each semi-annual period during
which any Floating Rate Security is outstanding subsequent to the initial
semi-annual period, 375 basis points over the rate determined by the Company
(notice of such rate to be sent to the Trustee by the Company on the date of
determination thereof), equal to the British Bankers' Association LIBOR rate for
deposits in U.S. dollars for a period of six months as reported by any generally
recognized financial information service as of 11:00 a.m. (London time) two
Business Days immediately prior to the first day of such semi-annual period;
provided, however, that, if no British Bankers' Association LIBOR rate is
available to the Company, the Applicable Floating Rate for the relevant
semi-annual period shall instead be at the rate at which Xxxxxxx, Sachs & Co. or
one of its affiliate banks offers to place deposits in U.S. dollars with
first-class banks in the London interbank market for a period of six months at
approximately 11:00 a.m. (London time) two Business Days immediately prior to
the first day of such semi-annual period, in amounts equal to $1.0 million. The
semi-annual periods referred to in this definition shall commence on June 1 and
December 1 of each year; provided, however, that the Applicable Floating Rate
for the initial semi-annual period commencing upon original issuance of the
Floating Rate Securities shall be [_____]%.
The interest rate on the Floating Rate Securities will in no event be
higher than the maximum rate permitted by New York law as the same may be
modified by U.S. law of general application.
(b) Additional Interest--Registration. The Holder of this Floating
Rate Security is entitled to the benefits of a Registration Rights Agreement,
dated as of November 21, 2006, among the Company, the Subsidiary Guarantors and
certain purchasers of the Floating Rate Securities named therein (the
"Registration Rights Agreement"). Capitalized terms used in this paragraph (b)
but not defined herein have the meanings assigned to them in the Registration
Rights Agreement. Upon the occurrence of a Registration Default, the Company
shall notify the Trustee of such Registration Default and pay additional
interest to each Holder of Registrable
4
Securities, during the period of such Registration Default in such amounts and
subject to such limitations as set forth in the Registration Rights Agreement.
All accrued additional interest shall be paid to Holders in the same manner as
interest payments on the Floating Rate Securities on semi-annual payment dates
which correspond to interest payment dates for the Floating Rate Securities.
Following the cure of all outstanding Registration Defaults, the accrual of
additional interest shall cease. The Trustee shall have no responsibility with
respect to the determination of the amount of any such additional interest.
(c) Additional Interest--General All references to payments of
interest include payments of additional interest, if any.
2. Method of Payment
The Company shall pay interest on the Floating Rate Securities (except
defaulted interest) to the Persons who are registered Holders at the close of
business on the May 15 or November 15 next preceding the interest payment date
even if Floating Rate Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities 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 Floating Rate Securities represented by a Global Security
(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 Security (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
Floating Rate Security will be made by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States of America if such
Holder has elected payment by wire transfer by providing written wire
instructions to the Trustee or the Paying Agent on or after the Closing Date
but, in any event, no later than 30 days immediately preceding the relevant due
date for payment (or such other date as the Trustee may accept in its
discretion).
3. Paying Agent and Registrar
Initially, Xxxxx Fargo Bank, N.A., a national banking association (the
"Trustee"), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent or Registrar without notice. The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent or
Registrar.
4. Indenture
The Company issued the Floating Rate Securities under an Indenture
dated as of November 21, 2006 (the "Indenture"), among the Company, the
Subsidiary Guarantors and the Trustee. The terms of the Floating Rate Securities
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb)
as in effect on the date of the Indenture (the "TIA"). Terms defined in the
Indenture
5
and not defined herein have the meanings ascribed thereto in the Indenture. The
Floating Rate Securities are subject to all terms and provisions of the
Indenture, and Holders (as defined in the Indenture) are referred to the
Indenture and the TIA for a statement of such terms and provisions.
The Floating Rate Securities are senior unsecured obligations of the
Company. This Floating Rate Security is one of the Initial Floating Rate
Securities referred to in the Indenture. The Floating Rate Securities include
the Initial Floating Rate Securities and any Floating Rate Exchange Securities
issued in exchange for Initial Floating Rate Securities pursuant to the
Indenture and the Registration Rights Agreement. The Initial Floating Rate
Securities, any Floating Rate Exchange Securities and all other Floating Rate
Securities are treated as a single class of securities under the Indenture. The
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
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 Floating
Rate Securities have an Investment Grade Rating from both of the Rating
Agencies, and (ii) no Default with respect to the Floating Rate Securities has
occurred and is continuing under the 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
Indenture with respect to the Floating Rate Securities. In addition, the Company
may elect to suspend the Subsidiary Guarantees with respect to the Floating Rate
Securities. Upon and following any Reversion Date, the Company and its
Restricted Subsidiaries shall again be subject to the Suspended Covenants with
respect to the Floating Rate Securities with respect to future events and the
Subsidiary Guarantees with respect to the Floating Rate Securities shall be
reinstated.
5. Guarantee
The payment by the Company of the principal of, and premium and
interest on, the Floating Rate Securities is fully and unconditionally
guaranteed on a joint and several senior unsecured basis by each Subsidiary
Guarantor to the extent set forth in the Indenture. The precise terms of the
Guarantee of the Floating Rate Securities and the Guaranteed Obligations of the
Subsidiary Guarantors with respect to the Floating Rate Securities are expressly
set forth in Article 10 of the Indenture.
6. Optional Redemption
The Company may redeem the Floating Rate Securities, in whole or in
part, at any time on not less than 30 nor more than 60 days' prior notice, at
100.000% of principal amount thereof, plus accrued and unpaid interest to the
redemption date (subject to the right of Holders
6
of record on the relevant record date to receive interest due on the relevant
interest payment date).
7. Sinking Fund
The Floating Rate Securities are not subject to any sinking fund.
8. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Floating Rate Securities to be redeemed at his, her or its registered address.
Floating Rate Securities in denominations larger than $2,000 may be redeemed in
part but only in whole multiples of $2,000. If money sufficient to pay the
redemption price of and accrued and unpaid interest on all Floating Rate
Securities (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 Floating Rate Securities (or such portions thereof) called for
redemption.
9. Repurchase of Securities at the Option of Holders
Upon a Change of Control, any Holder of Floating Rate Securities will
have the right, subject to certain conditions specified in the Indenture, to
cause the Company to repurchase all or any part of the Floating Rate Securities
of such Holder at a purchase price equal to 101% of the principal amount of the
Floating Rate Securities to be repurchased plus accrued and unpaid interest to
the date of repurchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date that is on or prior to the date of purchase) as provided in, and subject to
the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Company will be
required to offer to purchase Floating Rate Securities upon the occurrence of
certain events.
10. Denominations; Transfer; Exchange
The Floating Rate Securities are in registered form without coupons in
denominations of $2,000 and whole multiples of $1,000 in excess thereof. A
Holder may transfer or exchange Floating Rate Securities in accordance with the
Indenture. Upon any transfer or exchange, the Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any
Floating Rate Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or to transfer or exchange any Floating Rate Securities for a period of 15 days
prior to a selection of Floating Rate Securities to be redeemed or for a period
of 15 days prior to an interest payment date.
7
11. Persons Deemed Owners
Except as provided in paragraph 2 hereof, the registered Holder of
this Floating Rate Security may be treated as the owner of it for all purposes.
12. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent shall pay the money back to the
Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
to the Company for payment as general creditors and the Trustee and the Paying
Agent shall have no further liability with respect to such monies.
13. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate
some of or all its obligations under the Floating Rate Securities and the
Indenture with respect to the Floating Rate Securities if the Company deposits
with the Trustee money or U.S. Government Obligations for the payment of
principal of, and interest on the Floating Rate Securities to redemption, or
maturity, as the case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture with respect to the Floating Rate Securities or the Floating Rate
Securities may be amended with the written consent of the Holders of at least a
majority in aggregate principal amount of all of the Floating Rate Securities
then outstanding voting as a single class and (ii) any Default with respect to
the Floating Rate Securities may be waived with the written consent of the
Holders of at least a majority in principal amount of all of the Floating Rate
Securities then outstanding voting as a single class.
Subject to certain exceptions set forth in the Indenture, without the
consent of any Holder of the Floating Rate Securities, the Company, the
Subsidiary Guarantors and the Trustee may amend the Indenture with respect to
the Floating Rate Securities or the Floating Rate Securities (i) to cure any
ambiguity, omission, defect or inconsistency; (ii) to provide for the assumption
by a successor corporation of the obligations of the Company under the Indenture
in compliance with Article 5 of the Indenture; (iii) to provide for
uncertificated Securities in addition to or in place of certificated Securities;
(iv) to add Guarantees with respect to the Floating Rate Securities or to
confirm and evidence the release, termination or discharge of any such Guarantee
or security with respect to the Floating Rate Securities when such release,
termination or discharge is permitted under the Indenture; (v) to add additional
covenants for the benefit of the Floating Rate Securities or to surrender rights
and powers conferred on the Company; (vi) to make any change that does not
adversely affect the rights of any Holder of Floating Rate Securities in any
material respect, subject to the provisions of the Indenture; (vii) to comply
with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA; (viii) to make any amendment to
provisions of the Indenture relating to form, authentication, transfer and
legending of the Floating Rate Securities; provided, however, that compliance
with the Indenture as so amended would not result in Floating Rate
8
Securities being transferred in violation of the Securities Act; or (ix) to
provide for the issuance of the Floating Rate Exchange Securities or Additional
Floating Rate Securities in accordance with the terms of the Indenture.
15. Defaults and Remedies
An "Event of Default" with respect to the Floating Rate Securities
occurs if: (i) the Company defaults in any payment of interest on any Floating
Rate Security 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
Floating Rate Security 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 Indenture with respect
to the Floating Rate Securities; (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 Indenture (in each case, other than a failure to purchase
Securities) with respect to the Floating Rate Securities 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
agreements contained in the Floating Rate Securities or the Indenture (other
than those referred to in clauses (i), (ii), (iii) or (iv) above) with respect
to the Floating Rate Securities 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 $50,000,000 or its foreign currency equivalent;
(vii) certain events of bankruptcy, insolvency or reorganization of the Company
or a Significant Subsidiary under Sections 6.01(7) and (8) of the Indenture;
(viii) any final and nonappealable judgment or decree (not covered by insurance)
for the payment of money in excess of $50,000,000 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 Floating Rate Securities 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 Indenture or any Subsidiary Guarantee with
respect to the Floating Rate Securities and such Default continues for 10 days
after receipt of the notice specified below.
The foregoing shall constitute Events of Default whatever the reason
for any such Event of Default and whether such Event of Default is voluntary or
involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
Notwithstanding the foregoing, a default under clause (iv), (v), (vi),
(viii) or (ix) (only with respect to any Subsidiary Guarantor that is not a
Significant Subsidiary) shall not constitute an Event of Default with respect to
the Floating Rate Securities until the Trustee notifies the Company or the
Holders of at least 25% in principal amount of the outstanding Floating Rate
Securities notify the Company and the Trustee of the default and the Company or
9
the Subsidiary Guarantor, as applicable, does not cure such default within any
applicable time specified in clause (iv), (v), (vi), (viii) or (ix) hereof after
receipt of such notice.
If an Event of Default with respect to the Floating Rate Securities
occurs (other than an Event of Default relating to certain events of bankruptcy,
insolvency or reorganization of the Company) and is continuing, the Trustee or
the Holders of at least 25% in principal amount of all of the outstanding
Floating Rate Securities may declare the principal of and accrued but unpaid
interest on all the Floating Rate Securities to be due and payable. If an Event
of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Company occurs, the principal of and interest on all the
Floating Rate Securities shall become immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders. Under
certain circumstances, the Holders of a majority in principal amount of the
outstanding Floating Rate Securities may rescind any such acceleration with
respect to the Securities and its consequences.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Floating Rate Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
17. No Recourse Against Others
A director, officer, employee or shareholder, as such, of the Company
or any Subsidiary Guarantor shall not have any liability for any obligations of
the Company under the Floating Rate Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By
accepting a Floating Rate Security, each Holder waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Floating Rate Securities.
18. Authentication
This Floating Rate Security 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 Security.
19. Abbreviations
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
10
20. Governing Law
THIS FLOATING RATE SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
21. CUSIP Numbers and ISINs
The Company has caused CUSIP numbers and ISINs to be printed on the
Floating Rate Securities and has directed the Trustee to use CUSIP numbers and
ISINs in notices of redemption as a convenience to Holders. No representation is
made as to the accuracy of such numbers either as printed on the Floating Rate
Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY HOLDER OF FLOATING RATE SECURITIES
UPON WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE
WHICH HAS IN IT THE TEXT OF THIS FLOATING RATE SECURITY.
11
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security 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 Security on
the books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: Your Signature:
------------------------------- ------------------------
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
12
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER
RESTRICTED SECURITIES
This certificate relates to $____________ principal amount of Securities,
CUSIP_________, held in (check applicable space) ____ book-entry or _____
definitive form by the undersigned.
The undersigned (check one box below):
[ ] has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Security held by the Depository a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated above);
[ ] has requested the Trustee by written order, in exchange for its Definitive
Securities, to credit the participant account of the Depository specified
by the Holder with a beneficial interest in the Global Security held by the
Depository in an aggregate principal amount equal to the principal amount
represented by its Definitive Securities (or the portion thereof indicated
above);
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act of 1933 after the later of the date of original
issuance of such Securities and the last date, if any, on which such Securities
were owned by the Company or any Affiliate of the Company, the undersigned
confirms that such Securities are being transferred in accordance with its
terms:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] to the Registrar for registration in the name of the Holder,
without transfer; or
(3) [ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(4) [ ] inside the United States to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933) that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that such transfer is
being made in reliance on Rule 144A, in each case pursuant to and
in compliance with Rule 144A under the Securities Act of 1933; or
13
(5) [ ] outside the United States in an offshore transaction within the
meaning of Regulation S under the Securities Act in compliance
with Rule 904 under the Securities Act of 1933; or
(6) [ ] pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any Person
other than the registered Holder thereof; provided, however, that if box
(5) or (6) is checked, the Trustee may require, prior to registering any
such transfer of the Securities, such legal opinions, certifications and
other information as the Company has reasonably requested to confirm that
such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act of 1933.
----------------------------------------
Your Signature
Signature Guarantee:
Date:
------------------------------- ----------------------------------------
Signature must be guaranteed Signature of Signature Guarantee
by a participant in a recognized
signature guaranty medallion program
or other signature guarantor
acceptable to the Trustee
_____________________________________
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Dated:
------------------------------ ----------------------------------------
NOTICE: To be executed by an executive
officer
14
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[__________].
The following increases or decreases in this Global Security have been made:
Amount of decrease Amount of increase Principal amount of Signature of
in Principal Amount in Principal Amount this Global Security authorized signatory
Date of of this Global of this Global following such of Trustee or
Exchange Security Security decrease or increase Securities Custodian
-------- ------------------- ------------------- -------------------- --------------------
15
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.06 (Asset Sale) or 4.08 (Change of Control) of the
Indenture, check the box:
Asset Sale [ ] Change of Control [ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.06 or 4.08 of the Indenture, state the amount
($2,000 or an integral multiple thereof):
$____________
Date: Your Signature:
------------------------------- ------------------------
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee:
-----------------------------------------------------------
Signature must be guaranteed by a participant in a recognized
signature guaranty medallion program or other signature guarantor acceptable to
the Trustee
EXHIBIT 2(b)
[FORM OF FACE OF FLOATING RATE EXCHANGE SECURITY]
[Global Securities 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 SECURITY 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 SECURITY 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. TH ISSUE PRICE OF EACH SECURITY IS
$990 PER $1000 OF PRINCIPAL AMOUNT, THE ISSUE DATE IS [__________], [____] AND
THE INITIAL YIELD TO MATURITY OF THIS SECURITY IS 9.53%.
2
No. - $__________
Floating Rate Senior Note due 2009
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 Security attached
hereto](4) on December 1, 2009.
Interest Payment Dates: June 1 and December 1, commencing June 1, 2007
Record Dates: May 15 or November 15
----------
(4) Use the Schedule of Increases and Decreases language if Note is in Global
Form.
3
Additional provisions of this Security are set forth on the other side
of this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
THE GOODYEAR TIRE & RUBBER COMPANY,
by
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
XXXXX FARGO BANK, N.A.,
as Trustee, certifies that this is one of the Floating Rate Securities
referred to in the Indenture.
By:
---------------------------------
Authorized Signatory
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*/ If the Security is to be issued in global form, add the Global Securities
Legend and the attachment from Exhibit 2 captioned "TO BE ATTACHED TO
GLOBAL SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
[FORM OF REVERSE SIDE OF FLOATING RATE EXCHANGE SECURITY]
Floating Rate Senior Note due 2009
1. Interest
(a) 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 Floating Rate Security at the rate per annum equal to
the Applicable Floating Rate. The Applicable Floating Rate will be reset
semi-annually on June 1 and December 1 of each year. The Company shall pay
interest semi-annually on June 1 and December 1 of each year. Interest on the
Floating Rate Securities 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 November 21, 2006 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 Floating Rate Securities, and it shall pay interest on overdue installments
of interest at the same rate to the extent lawful.
"Applicable Floating Rate" means, for each semi-annual period during
which any Floating Rate Security is outstanding subsequent to the initial
semi-annual period, 375 basis points over the rate determined by the Company
(notice of such rate to be sent to the Trustee by the Company on the date of
determination thereof), equal to the British Bankers' Association LIBOR rate for
deposits in U.S. dollars for a period of six months as reported by any generally
recognized financial information service as of 11:00 a.m. (London time) two
Business Days immediately prior to the first day of such semi-annual period;
provided, however, that, if no British Bankers' Association LIBOR rate is
available to the Company, the Applicable Floating Rate for the relevant
semi-annual period shall instead be at the rate at which Xxxxxxx, Sachs & Co. or
one of its affiliate banks offers to place deposits in U.S. dollars with
first-class banks in the London interbank market for a period of six months at
approximately 11:00 a.m. (London time) two Business Days immediately prior to
the first day of such semi-annual period, in amounts equal to $1.0 million. The
semi-annual periods referred to in this definition shall commence on June 1 and
December 1 of each year; provided, however, that the Applicable Floating Rate
for the initial semi-annual period commencing upon original issuance of the
Floating Rate Securities shall be [_____]%.
The interest rate on the Floating Rate Securities will in no event be
higher than the maximum rate permitted by New York law as the same may be
modified by U.S. law of general application.
(b) Additional Interest--General All references to payments of
interest include payments of additional interest, if any.
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2. Method of Payment
The Company shall pay interest on the Floating Rate Securities (except
defaulted interest) to the Persons who are registered Holders at the close of
business on the May 15 or November 15 next preceding the interest payment date
even if Floating Rate Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities 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 Floating Rate Securities represented by a Global Security
(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 Security (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
Floating Rate Security will be made by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States of America if such
Holder has elected payment by wire transfer by providing written wire
instructions to the Trustee or the Paying Agent on or after the Closing Date
but, in any event, no later than 30 days immediately preceding the relevant due
date for payment (or such other date as the Trustee may accept in its
discretion).
3. Paying Agent and Registrar
Initially, Xxxxx Fargo Bank, N.A., a national banking association (the
"Trustee"), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent or Registrar without notice. The Company or any of its
domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent or
Registrar.
4. Indenture
The Company issued the Floating Rate Securities under an Indenture
dated as of November 21, 2005 (the "Indenture"), among the Company, the
Subsidiary Guarantors and the Trustee. The terms of the Floating Rate Securities
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb)
as in effect on the date of the Indenture (the "TIA"). Terms defined in the
Indenture and not defined herein have the meanings ascribed thereto in the
Indenture. The Floating Rate Securities are subject to all terms and provisions
of the Indenture, and Holders (as defined in the Indenture) are referred to the
Indenture and the TIA for a statement of such terms and provisions.
The Floating Rate Securities are senior unsecured obligations of the
Company. This Floating Rate Security is one of the Floating Rate Exchange
Securities referred to in the Indenture. The Floating Rate Securities include
the Initial Floating Rate Securities and the Floating Rate Exchange Securities
issued in exchange for Initial
3
Floating Rate Securities pursuant to the Indenture and the Registration Rights
Agreement. The Initial Floating Rate Securities, the Floating Rate Exchange
Securities and all other Floating Rate Securities are treated as a single class
of securities under the Indenture. The 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 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 Floating
Rate Securities have an Investment Grade Rating from both of the Rating
Agencies, and (ii) no Default with respect to the Floating Rate Securities has
occurred and is continuing under the 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
Indenture with respect to the Floating Rate Securities. In addition, the Company
may elect to suspend the Subsidiary Guarantees with respect to the Floating Rate
Securities. Upon and following any Reversion Date, the Company and its
Restricted Subsidiaries shall again be subject to the Suspended Covenants with
respect to the Floating Rate Securities with respect to future events and the
Subsidiary Guarantees with respect to the Floating Rate Securities shall be
reinstated.
5. Guarantee
The payment by the Company of the principal of, and premium and
interest on, the Floating Rate Securities is fully and unconditionally
guaranteed on a joint and several senior unsecured basis by each Subsidiary
Guarantor to the extent set forth in the Indenture. The precise terms of the
Guarantee of the Floating Rate Securities and the Guaranteed Obligations of the
Subsidiary Guarantors with respect to the Floating Rate Securities are expressly
set forth in Article 10 of the Indenture.
6. Optional Redemption
The Company may redeem the Floating Rate Securities, in whole or in
part, at any time on not less than 30 nor more than 60 days' prior notice, at
100.000% of 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).
7. Sinking Fund
The Floating Rate Securities are not subject to any sinking fund.
4
8. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Floating Rate Securities to be redeemed at his, her or its registered address.
Floating Rate Securities in denominations larger than $2,000 may be redeemed in
part but only in whole multiples of $2,000. If money sufficient to pay the
redemption price of and accrued and unpaid interest on all Floating Rate
Securities (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 Floating Rate Securities (or such portions thereof) called for
redemption.
9. Repurchase of Securities at the Option of Holders
Upon a Change of Control, any Holder of Floating Rate Securities will
have the right, subject to certain conditions specified in the Indenture, to
cause the Company to repurchase all or any part of the Floating Rate Securities
of such Holder at a purchase price equal to 101% of the principal amount of the
Floating Rate Securities to be repurchased plus accrued and unpaid interest to
the date of repurchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date that is on or prior to the date of purchase) as provided in, and subject to
the terms of, the Indenture.
In accordance with Section 4.06 of the Indenture, the Company will be
required to offer to purchase Floating Rate Securities upon the occurrence of
certain events.
10. Denominations; Transfer; Exchange
The Floating Rate Securities are in registered form without coupons in
denominations of $2,000 and whole multiples of $2,000 in excess thereof. A
Holder may transfer or exchange Floating Rate Securities in accordance with the
Indenture. Upon any transfer or exchange, the Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any
Floating Rate Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or to transfer or exchange any Floating Rate Securities for a period of 15 days
prior to a selection of Floating Rate Securities to be redeemed or for a period
of 15 days prior to an interest payment date.
11. Persons Deemed Owners
Except as provided in paragraph 2 hereof, the registered Holder of
this Floating Rate Security may be treated as the owner of it for all purposes.
5
12. Unclaimed Money
If money for the payment of principal, interest remains unclaimed for
two years, the Trustee and the Paying Agent shall pay the money back to the
Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
to the Company for payment as general creditors and the Trustee and the Paying
Agent shall have no further liability with respect to such monies.
13. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate
some of or all its obligations under the Floating Rate Securities and the
Indenture with respect to the Floating Rate Securities if the Company deposits
with the Trustee money or U.S. Government Obligations for the payment of
principal of, and interest on the Floating Rate Securities to redemption, or
maturity, as the case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture with respect to the Floating Rate Securities or the Floating Rate
Securities may be amended with the written consent of the Holders of at least a
majority in aggregate principal amount of all of the Floating Rate Securities
then outstanding voting as a single class and (ii) any Default with respect to
the Floating Rate Securities may be waived with the written consent of the
Holders of at least a majority in principal amount of all of the Floating Rate
Securities then outstanding voting as a single class.
Subject to certain exceptions set forth in the Indenture, without the
consent of any Holder of the Floating Rate Securities, the Company, the
Subsidiary Guarantors and the Trustee may amend the Indenture with respect to
the Floating Rate Securities or the Floating Rate Securities (i) to cure any
ambiguity, omission, defect or inconsistency; (ii) to provide for the assumption
by a successor corporation of the obligations of the Company under the Indenture
in compliance with Article 5 of the Indenture; (iii) to provide for
uncertificated Securities in addition to or in place of certificated Securities;
(iv) to add Guarantees with respect to the Floating Rate Securities or to
confirm and evidence the release, termination or discharge of any such Guarantee
or security with respect to the Floating Rate Securities when such release,
termination or discharge is permitted under the Indenture; (v) to add additional
covenants for the benefit of the Floating Rate Securities or to surrender rights
and powers conferred on the Company; (vi) to make any change that does not
adversely affect the rights of any Holder of Floating Rate Securities in any
material respect, subject to the provisions of the Indenture; (vii) to comply
with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA; (viii) to make any amendment to
provisions of the Indenture relating to form, authentication, transfer and
legending of the Floating Rate Securities; provided, however, that compliance
with the Indenture as so amended would not result in Floating Rate Securities
being transferred in violation of the Securities Act; or (ix) to provide for the
issuance of the Floating Rate Exchange
6
Securities or Additional Floating Rate Securities in accordance with the terms
of the Indenture.
15. Defaults and Remedies
An "Event of Default" with respect to the Floating Rate Securities
occurs if: (i) the Company defaults in any payment of interest on any Floating
Rate Security 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
Floating Rate Security 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 Indenture with respect
to the Floating Rate Securities; (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 Indenture (in each case, other than a failure to purchase
Securities) with respect to the Floating Rate Securities 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
agreements contained in the Floating Rate Securities or the Indenture (other
than those referred to in clauses (i), (ii), (iii) or (iv) above) with respect
to the Floating Rate Securities 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 $50,000,000 or its foreign currency equivalent;
(vii) certain events of bankruptcy, insolvency or reorganization of the Company
or a Significant Subsidiary under Sections 6.01(7) and (8) of the Indenture;
(viii) any final and nonappealable judgment or decree (not covered by insurance)
for the payment of money in excess of $50,000,000 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 Floating Rate Securities 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 Indenture or any Subsidiary Guarantee with
respect to the Floating Rate Securities and such Default continues for 10 days
after receipt of the notice specified below.
The foregoing shall constitute Events of Default whatever the reason
for any such Event of Default and whether such Event of Default is voluntary or
involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
Notwithstanding the foregoing, a default under clause (iv), (v), (vi),
(viii) or (ix) (only with respect to any Subsidiary Guarantor that is not a
Significant Subsidiary) shall not constitute an Event of Default with respect to
the Floating Rate Securities until
7
the Trustee notifies the Company or the Holders of at least 25% in principal
amount of the outstanding Floating Rate Securities notify the Company and the
Trustee of the default and the Company or the Subsidiary Guarantor, as
applicable, does not cure such default within any applicable time specified in
clause (iv), (v), (vi), (viii) or (ix) hereof after receipt of such notice.
If an Event of Default with respect to the Floating Rate Securities
occurs (other than an Event of Default relating to certain events of bankruptcy,
insolvency or reorganization of the Company) and is continuing, the Trustee or
the Holders of at least 25% in principal amount of all of the outstanding
Floating Rate Securities may declare the principal of and accrued but unpaid
interest on all the Floating Rate Securities to be due and payable. If an Event
of Default relating to certain events of bankruptcy, insolvency or
reorganization of the Company occurs, the principal of and interest on all the
Floating Rate Securities shall become immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders. Under
certain circumstances, the Holders of a majority in principal amount of the
outstanding Floating Rate Securities may rescind any such acceleration with
respect to the Securities and its consequences.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Floating Rate Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
17. No Recourse Against Others
A director, officer, employee or shareholder, as such, of the Company
or any Subsidiary Guarantor shall not have any liability for any obligations of
the Company under the Floating Rate Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By
accepting a Floating Rate Security, each Holder waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Floating Rate Securities.
18. Authentication
This Floating Rate Security 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 Security.
19. Abbreviations
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
8
20. Governing Law
THIS FLOATING RATE SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
21. CUSIP Numbers and ISINs
The Company has caused CUSIP numbers and ISINs to be printed on the
Floating Rate Securities and has directed the Trustee to use CUSIP numbers and
ISINs in notices of redemption as a convenience to Holders. No representation is
made as to the accuracy of such numbers either as printed on the Floating Rate
Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY HOLDER OF FLOATING RATE SECURITIES
UPON WRITTEN REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE
WHICH HAS IN IT THE TEXT OF THIS FLOATING RATE SECURITY.
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security 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 Security
on the books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: Your Signature:
------------------------------- ------------------------
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Sign exactly as your name appears on the other side of this Security. Signature
must be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor acceptable to the Trustee.
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[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[__________].
The following increases or decreases in this Global Security have been made:
Amount of decrease Amount of increase Principal amount of Signature of
in Principal Amount in Principal Amount this Global Security authorized signatory
Date of of this Global of this Global following such of Trustee or
Exchange Security Security decrease or increase Securities Custodian
-------- ------------------- ------------------- -------------------- --------------------
11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.06 (Asset Sale) or 4.08 (Change of Control) of the
Indenture, check the box:
Asset Sale [ ] Change of Control [ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.06 or 4.08 of the Indenture, state the amount
($2,000 or an integral multiple thereof):
$__________
Date: Your Signature:
------------------------------- ------------------------
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee:
-----------------------------------------------------------
Signature must be guaranteed by a participant in a recognized signature guaranty
medallion program or other signature guarantor acceptable to the Trustee
EXHIBIT 3
[FORM OF SUPPLEMENTAL INDENTURE]
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture")
dated as of ________________, among [GUARANTOR] (the "New
Guarantor"), a subsidiary of THE GOODYEAR TIRE & RUBBER COMPANY
(or its successor), an Ohio corporation (the "Company"), the
subsidiary guarantors listed on the signature pages hereto (the
"Subsidiary Guarantors") and XXXXX FARGO BANK, N.A., a national
banking association, as trustee under the indenture referred to
below (the "Trustee").
WITNESSETH:
WHEREAS the Company and the Subsidiary Guarantors (the "Existing
Guarantors") have heretofore executed and delivered to the Trustee an Indenture
(the "Indenture") dated as of November 21, 2006, providing for the issuance of
the Company's 8.625% Senior Notes due 2011 and Senior Floating Rate Notes due
2009 (collectively, the "Securities"), each initially in the aggregate principal
amount of $500,000,000.
WHEREAS Section 4.11 of the 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 Securities pursuant to a Subsidiary Guarantee on the terms and conditions
set forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee, the
Company and the Existing Guarantors are authorized to execute and deliver this
Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor, the Company, the Existing Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the
Securities 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 Securities on the terms and subject to the
conditions set forth in Article 10 of the Indenture and to be bound by all other
applicable provisions of the Indenture and the Securities.
2. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full
2
force and effect. This Supplemental Indenture shall form a part of the Indenture
for all purposes, and every holder of Securities heretofore or hereafter
authenticated and delivered shall be bound hereby.
3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
5. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. Effect of Headings. The Section headings herein are for convenience
only and shall not effect the construction thereof.
3
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR],
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THE GOODYEAR TIRE & RUBBER COMPANY,
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[EXISTING GUARANTORS],
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXX FARGO BANK, N.A., as Trustee,
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
