EXHIBIT 4.2
EXECUTION COPY
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The Goodyear Tire & Rubber Company
9.00% Senior Notes due 2015
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INDENTURE
Dated as of June 23, 2005
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Xxxxx Fargo Bank, N.A.
Trustee
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
----------------------- -----------------
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.............................................................. 40
SECTION 3.04. Effect of Notice of Redemption.................................................... 41
SECTION 3.05. Deposit of Redemption Price....................................................... 41
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........................................................ 42
SECTION 4.04. Limitation on Restricted Payments................................................. 46
SECTION 4.05. Limitation on Restrictions on Distributions from Restricted Subsidiaries.......... 49
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock................................ 51
SECTION 4.07. Limitation on Transactions with Affiliates........................................ 55
SECTION 4.08. Change of Control................................................................. 57
SECTION 4.09. Limitation on Liens............................................................... 58
SECTION 4.10. Limitation on Sale/Leaseback Transactions......................................... 58
SECTION 4.11. Future Subsidiary Guarantors...................................................... 59
SECTION 4.12. Suspension of Certain Covenants................................................... 59
SECTION 4.13. Compliance Certificate............................................................ 60
SECTION 4.14. Further Instruments and Acts...................................................... 60
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................................................................. 62
SECTION 6.02. Acceleration...................................................................... 64
SECTION 6.03. Other Remedies.................................................................... 65
SECTION 6.04. Waiver of Past Defaults........................................................... 65
SECTION 6.05. Control by Majority............................................................... 65
SECTION 6.06. Limitation on Suits............................................................... 65
SECTION 6.07. Rights of Holders to Receive Payment.............................................. 66
SECTION 6.08. Collection Suit by Trustee........................................................ 66
SECTION 6.09. Trustee May File Proofs of Claim.................................................. 66
SECTION 6.10. Priorities........................................................................ 66
SECTION 6.11. Undertaking for Costs............................................................. 67
SECTION 6.12. Waiver of Stay or Extension Laws.................................................. 67
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee................................................................. 67
SECTION 7.02. Rights of Trustee................................................................. 68
SECTION 7.03. Individual Rights of Trustee...................................................... 69
SECTION 7.04. Trustee's Disclaimer.............................................................. 69
SECTION 7.05. Notice of Defaults................................................................ 69
SECTION 7.06. Reports by Trustee to Holders..................................................... 70
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SECTION 7.07. Compensation and Indemnity........................................................ 70
SECTION 7.08. Replacement of Trustee............................................................ 71
SECTION 7.09. Successor Trustee by Merger....................................................... 72
SECTION 7.10. Eligibility; Disqualification..................................................... 72
SECTION 7.11. Preferential Collection of Claims Against Company................................. 72
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance.................................. 72
SECTION 8.02. Conditions to Defeasance.......................................................... 73
SECTION 8.03. Application of Trust Money........................................................ 74
SECTION 8.04. Repayment to Company.............................................................. 74
SECTION 8.05. Indemnity for Government Obligations.............................................. 75
SECTION 8.06. Reinstatement..................................................................... 75
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders........................................................ 75
SECTION 9.02. With Consent of Holders........................................................... 76
SECTION 9.03. Compliance with Trust Indenture Act............................................... 77
SECTION 9.04. Revocation and Effect of Consents and Waivers..................................... 77
SECTION 9.05. Notation on or Exchange of Securities............................................. 77
SECTION 9.06. Trustee To Sign Amendments........................................................ 78
SECTION 9.07. Payment for Consent............................................................... 78
ARTICLE 10
Subsidiary Guarantees
SECTION 10.01. Guarantees........................................................................ 78
SECTION 10.02. Limitation on Liability........................................................... 79
SECTION 10.03. Successors and Assigns............................................................ 79
SECTION 10.04. No Waiver......................................................................... 80
SECTION 10.05. Modification...................................................................... 80
SECTION 10.06. Release of Subsidiary Guarantor................................................... 80
SECTION 10.07. Contribution...................................................................... 81
ARTICLE 11
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls...................................................... 81
SECTION 11.02. Notices........................................................................... 81
SECTION 11.03. Communication by Holders with Other Holders....................................... 82
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SECTION 11.04. Certificate and Opinion as to Conditions Precedent................................ 82
SECTION 11.05. Statements Required in Certificate or Opinion..................................... 82
SECTION 11.06. When Securities Disregarded....................................................... 83
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar...................................... 83
SECTION 11.08. Legal Holidays.................................................................... 83
SECTION 11.09. Governing Law..................................................................... 83
SECTION 11.10. No Recourse Against Others........................................................ 83
SECTION 11.11. Successors........................................................................ 83
SECTION 11.12. Multiple Originals................................................................ 83
SECTION 11.13. Table of Contents; Headings....................................................... 84
Appendix A
Exhibit 1 - Form of Initial Security
Exhibit 2 - Form of Exchange Security
Exhibit 3 - Form of Supplemental Indenture
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INDENTURE dated as of June 23, 2005, 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 Securities" means Securities issued under this Indenture
after the Closing Date and in compliance with Sections 2.13, 4.03 and 4.09, it
being understood that any Securities issued in exchange for or replacement of
any Initial Security issued on the Closing Date shall not be an Additional
Security, including any such Securities issued pursuant to a Registration Rights
Agreement (as defined in Appendix A attached hereto).
"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
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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" (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
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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.
"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
4
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 June 23, 2005.
"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.
"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;
5
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 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
6
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 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
7
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,
(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,
8
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 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
9
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.
"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.
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"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 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.
11
"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),
(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), and
(6) cash and non-cash charges reflected on the Consolidated financial
statements of the Company and its Consolidated Restricted
Subsidiaries for any period ending prior to January 1, 2004, related
to (i) anticipated liabilities relating to the pending Entran II
claims described in the Company's Quarterly Report on Form 10-Q for
the quarterly period ended September 30, 2003, filed with the SEC on
November 19, 2003, and (ii) rationalization actions designed to
reduce capacity, eliminate redundancies and reduce costs.
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
12
"Consolidated Net Income," such cash shall not be taken into account for the
purposes of determining readily procurable cash under this clause (B).
"Equity Offering" means a public or private offering of Capital
Stock (other than Disqualified Stock) of the Company.
"Euro Equivalent" means with respect to any monetary amount in a
currency other than euros, at any time of determination thereof, the amount of
euros obtained by converting such foreign currency involved in such computation
into euros at the spot rate for the purchase of euros with the applicable
foreign currency as published in The Wall Street Journal in the "Exchange Rates"
column under the heading "Currency Trading" on the date two Business Days prior
to such determination. 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,
13
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 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.
"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.
"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
14
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;
(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
15
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.
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.
16
"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.
"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.
17
"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.
"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.
18
"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) created in the ordinary course of business and owing to the
Company or any Restricted Subsidiary or in satisfaction of
judgments;
19
(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 Memorandum, dated
June 20, 2005, 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.
"Registration Rights Agreement" means the Registration Rights
Agreement dated the Closing Date, among the Company, the Subsidiary Guarantors
and the initial purchasers of the Securities.
"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),
27
(3) the Purchase for value, prior to scheduled maturity, of any
scheduled repayment or any scheduled sinking fund payment, any
Subordinated Obligations (other than the Purchase for value of
Subordinated Obligations acquired in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in
each case due within one year of the date of such Purchase), or
(4) any Investment (other than a Permitted Investment) in any Person.
"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 securities issued under this Indenture.
"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
28
the Securities or such Subsidiary Guarantor's Subsidiary Guarantee, as
applicable; provided, however, that Senior Indebtedness of the Company or any
Subsidiary Guarantor shall not include:
(1) any obligation of the Company to any Subsidiary of the Company or 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 other than its natural rubber plantation and
processing facility in Indonesia 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
29
excluding any provision providing for the repurchase of such security at the
option of the holder thereof upon the happening of any contingency beyond the
control of the issuer unless such contingency has occurred).
"Subordinated Obligation" means any Indebtedness of the Company
(whether outstanding on the Closing Date or thereafter Incurred) that by its
terms is subordinate or junior in right of payment to the 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 each Guarantee of the obligations with
respect to the Securities 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 not exceed $10,000,000 for all such
Subsidiaries in any such country or $50,000,000 in the aggregate for
all such Subsidiaries and all countries.
"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 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
"Global Security"....................................... Appendix A
"Initial Lien".......................................... 4.09
"Initial 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
"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:
"Commission" means the SEC;
"indenture securities" means the Securities and the Subsidiary
Guarantees;
"indenture security holder" means a Holder;
34
"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
(10) all references to the date the Securities were originally issued
shall refer to the Closing Date.
35
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 to this
Indenture, 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 2 to this Indenture
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
Exhibit 1 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 $1,000 and integral multiples thereof.
SECTION 2.02. Execution and Authentication. Two Officers shall sign
the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
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 located in
the Borough of Manhattan, the City of New York, where Securities may be
presented for payment (the "Paying Agent"). The Registrar shall keep a register
of the 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,
36
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 transfer or exchanges of Securities selected for
redemption (except, in the case of Securities to be redeemed in part, the
portion thereof not to be redeemed) or any Securities for a period of 15 days
before a selection of Securities to be redeemed, or any Securities for a period
of 15 days before a selection of an interest payment date. The Holder of a
Security may be treated as the owner of such Security for all purposes.
(b) The Company initially appoints the Trustee as Registrar and
Paying Agent 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. Prior to each due
date of the principal and interest on any Security, the Company shall deposit
with the Paying Agent (or if the Company or a Subsidiary is acting as Paying
Agent, segregate and hold in trust for the benefit of Holders entitled thereto)
a sum sufficient to pay such principal and interest when so becoming due. The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal of
or interest on the Securities 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
37
money held by it to the Trustee and to account for any funds disbursed by the
Paying Agent. Upon complying with this Section, the Paying Agent shall have no
further liability for the money delivered to the Trustee.
SECTION 2.05. Lists of Holders of 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. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders.
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 outstanding at any
time are all Securities authenticated by the Trustee except for those canceled
by it, those delivered to it for cancellation and those described in this
Section as not outstanding. Subject to Section 11.06, a Security does not cease
to be outstanding because the Company or an Affiliate of the Company holds the
Security.
If a Security is replaced pursuant to Section 2.07, 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) 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 the Securities, the Company shall pay defaulted interest
(plus interest on such defaulted interest to the extent lawful) in any lawful
manner. The Company may pay the defaulted interest to the persons who are
Holders on a subsequent special record date. The Company shall fix or cause to
be fixed any such special record date and payment date to the reasonable
satisfaction of the Trustee and shall promptly mail or cause to be mailed to
each Holder a notice that states the special record date, the payment date and
the amount of defaulted interest to be paid.
SECTION 2.12. CUSIP Numbers and ISINs. The Company in issuing the
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 and Section 4.09, 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 the Securities issued under this Indenture shall be treated as a
single class for all purposes of this Indenture; provided, however, that in
respect of any amendment, waiver, other modification or optional redemption by
the Company that affects only one series of the Securities, such affected series
of Securities shall be treated as a single class under this Indenture.
With respect to any Additional Securities, 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), the following information:
40
(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 issue price, the issue date, the CUSIP number and ISIN of
such Additional Securities; provided, however, that no Additional
Securities may be issued at a price that would cause such Additional
Securities to have "original issue discount" within the meaning of Section
1273 of the Code; 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 2.
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 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 method that complies with applicable legal and securities
exchange requirements, if any, and that the Trustee in its sole discretion shall
deem to be fair and appropriate. The Trustee shall make the selection from
outstanding Securities of such series not previously called for redemption. The
Trustee may select for redemption portions of the principal amount of Securities
of such series that have denominations larger than $1,000. Securities and
portions of them the Trustee selects shall be in principal amounts of $1,000 or
a whole multiple of $1,000. 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
41
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 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. 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
42
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 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 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.
43
(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
(euro)525,000,000; provided, however, that the amount of
Indebtedness that may be Incurred pursuant to this clause (1)
shall be reduced by any amount of Indebtedness Incurred and
then 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 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
44
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 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
45
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 (euro)300,000,000 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.
(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
46
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.
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
47
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 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
48
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);
(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
49
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, 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
50
(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;
(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;
51
(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
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
52
(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 (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.
53
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 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
54
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 $1,000, or integral multiples
thereof, shall be purchased).
(2) Promptly, and in any event within 10 days after the Company
becomes obligated to make an Offer, the Company shall deliver to the
Trustee and send, by first-class mail to each Holder, a written notice
stating that the Holder may elect to have his 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 $1,000 of principal amount at the applicable purchase price.
The notice shall specify a purchase date not less than 30 days nor more
than 60 days after the date of such notice (the "Purchase Date").
(3) Not later than the date upon which written notice of an Offer is
delivered to the Trustee as provided below, the Company shall deliver to
the Trustee an Officers' Certificate as to (A) the amount of the Offer
(the "Offer Amount"), including information as to any other Senior
Indebtedness included in the Offer for repurchase, (B) the allocation of
the Net Available Cash from the Asset Dispositions pursuant to which such
Offer is being made and (C) the compliance of such allocation with the
provisions of Section 4.06(a) and (c). By 11:00 a.m. New York City time on
the Purchase Date, the Company shall irrevocably deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust) in Temporary Cash Investments,
maturing on the last day prior to the Purchase Date or on the Purchase
Date if funds are immediately available by open of business, an amount
equal to the Offer Amount to be held for payment in accordance with the
provisions of this Section. 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.
55
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.
(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,
56
(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,
(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
57
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 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 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 validly tendered and not
withdrawn under such Change of Control Offer. In addition, the Company shall not
be required to make a Change of Control Offer upon a Change of Control in
respect of any Securities called for
58
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
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.
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
59
(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) the Securities have an Investment Grade Rating from both of
the Rating Agencies, and
(2) no Default has occurred and is continuing hereunder, the Company
and its Restricted Subsidiaries will not be subject to Sections 4.03, 4.04,
4.05, 4.06, 4.07, 4.11 and Section 5.01(a)(3) (collectively, the "Suspended
Covenants"). In addition, the Company may elect to suspend the Subsidiary
Guarantees.
(b) In the event that the Company and its Restricted Subsidiaries
are not subject to the Suspended Covenants for any period of time as a result of
the foregoing and on any subsequent date (the "Reversion Date") one or both of
the Rating Agencies withdraws its Investment Grade Rating or downgrades the
rating assigned to the 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 future events, the Subsidiary Guarantees
shall be reinstated. The period of time between the Suspension Date and the
Reversion Date is referred to herein as the "Suspension Period."
(c) Notwithstanding that the Suspended Covenants may be reinstated,
no default shall be deemed to have occurred as a result of a failure to comply
with the Suspended Covenants during the Suspension Period. During any Suspension
Period, the Company shall not designate any Subsidiary to be an Unrestricted
Subsidiary unless the Company would have been permitted to designate such
Subsidiary to be an Unrestricted Subsidiary if a Suspension Period had not been
in effect for any period.
(d) On the Reversion Date, all Indebtedness Incurred during the
Suspension Period shall be classified to have been Incurred pursuant to Section
4.03 (to the extent such Indebtedness would be permitted to be Incurred
thereunder as of the Reversion Date and after giving effect to Indebtedness
Incurred prior to the Suspension
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Period and outstanding on the Reversion Date). To the extent such Indebtedness
would not be so permitted to be Incurred pursuant to Section 4.03(a) or Section
4.03(b), such Indebtedness shall be deemed to have been outstanding on the
Closing Date, so that it is classified as permitted under Section 4.03(b)(3)(B).
Calculations made after the Reversion Date of the amount available to be made as
Restricted Payments under Section 4.04 shall be made as though Section 4.04 had
been in effect since the Closing Date and throughout the Suspension Period.
Accordingly, Restricted Payments made during the Suspension Period shall reduce
the amount available to be made as Restricted Payments under Section 4.04(a) and
the items specified in Section 4.04(a)(3) shall increase the amount available to
be made under Section 4.04(a). For purposes of determining compliance with
Section 4.06(a) and Section 4.06(b), the Net Available Cash from all Asset
Dispositions not applied in accordance with Section 4.06 shall be deemed to be
reset to zero.
(e) In addition, the Company and the Restricted Subsidiaries may
honor any contractual commitments to take actions after a Reversion Date as long
as such contractual commitments were entered into during a Suspension Period and
not in anticipation of the 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.
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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;
(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
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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
(2) the Company may merge with an Affiliate incorporated solely for
the purpose of reincorporating the Company in another jurisdiction within
the United States of America, any State thereof or the District of
Columbia to realize tax or other benefits.
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default" occurs if:
(1) the Company defaults in any payment of interest on any Security
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
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,
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other than a failure to purchase 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 contained in the Securities or 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;
(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
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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 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 until the Trustee notifies the Company or the Holders of at least 25% in
principal amount of the outstanding 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
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), 6.01(10), or 6.01(11) and any event which with the giving of notice or
the lapse of time would become an Event of Default under Section 6.01(4),
6.01(5) or 6.01(9), its status and what action the Company is taking or proposes
to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than an
Event of Default specified in Section 6.01(7) or 6.01(8)) occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the outstanding Securities by notice to the Company may declare the principal of
and accrued but unpaid interest on all the Securities 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 by notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or
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interest that has become due solely because of acceleration. No such rescission
shall affect any subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Securities or to enforce the performance of
any provision of the Securities 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 the Securities by notice to the Trustee may waive an
existing Default and its consequences except (a) a Default in the payment of the
principal of or interest on a Security (b) a Default arising from the failure to
redeem or purchase any Security when required pursuant to this Indenture or (c)
a Default in respect of a provision that under Section 9.02 cannot be amended
without the consent of each Holder affected. When a Default is waived, it is
deemed cured, but no such waiver shall extend to any subsequent or other Default
or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in
principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of any other Holder 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, 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
may pursue any remedy with respect to this Indenture or the Securities 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 make a written request to the Trustee to pursue the
remedy;
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(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
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.
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 pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for amounts due and unpaid on the Securities 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
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THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section. At least 15 days before such record date,
the Company shall mail to each Holder and the Trustee a notice that states the
record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than 10% in principal amount of the Securities.
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
68
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) (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.
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(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
(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 notice of the Default within the earlier of 90 days after it occurs
or 30 days after it is actually
70
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 January 1 beginning with January
1, 2005, and in any event prior to March 1 in each such year, the Trustee shall
mail to each Holder a brief report dated as of such January 1 that complies with
TIA Section 313(a). The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Holders shall be
filed with the SEC and each stock exchange (if any) on which the Securities are
listed. The Company agrees to notify promptly the Trustee whenever the
Securities become listed on any stock exchange and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall pay to
the Trustee from time to time reasonable compensation for its services as shall
be agreed to in writing from time to time by the Company and the Trustee. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company shall indemnify the Trustee, its agents, representatives,
officers, directors, employees and attorneys against any and all loss, liability
or expense (including reasonable 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.
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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 by so notifying the Company. The Holders of a majority in principal amount
of the Securities may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders
of a majority in principal amount of the Securities and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, unless the
Trustee's duty to resign is stayed as provided in TIA Section 310(b), any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
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SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of TIA 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 (other
than Securities replaced pursuant to Section 2.07) for cancellation or (2) all
outstanding Securities 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, 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, then this Indenture shall,
subject to Section 8.01(c), cease to be of further effect. Upon satisfaction of
the above conditions, the Trustee shall acknowledge satisfaction and discharge
of this Indenture.
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(b) Subject to Sections 8.01(c) and 8.02, the Company at any time
may terminate (1) all its obligations under the Securities and this Indenture
with respect to any series of Securities ("legal defeasance option") or (2) its
obligations under Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10,
4.11 and 4.12 and the operation of Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8)
and 6.01(9) (but, in the case of Sections 6.01(7) and (8), with respect only to
Significant Subsidiaries) and the limitations contained in Section 5.01(a)(3)
("covenant defeasance option"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default with respect
thereto. If the Company exercises its covenant defeasance option, payment of the
applicable series of Securities may not be accelerated because of an Event of
Default 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, each Subsidiary Guarantor will be released
from all of its obligations with respect to its Subsidiary Guarantee.
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and 7.08 and in
this Article 8 shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.07, 8.04 and 8.05 shall
survive.
SECTION 8.02. Conditions to Defeasance. The Company may exercise its
legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee money
in U.S. Dollars in an amount sufficient or U.S. Government Obligations,
the principal of and interest on which shall be sufficient, or a
combination thereof sufficient, to pay the principal of, premium (if any)
and interest in respect of the Securities 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 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 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 will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such deposit
and defeasance had not occurred; and
(7) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such deposit and covenant
defeasance had not occurred.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of 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 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, Holders entitled to the money must look to the Company for
payment as general creditors.
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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, each Subsidiary Guarantee and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article 8 until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with this Article 8; provided, however, that, if the Company has made any
payment of interest on or principal of any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders. The Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities
without notice to or consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to provide for the assumption by a successor corporation of the
obligations of the Company under this Indenture in compliance with Article
5;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to add Guarantees with respect to the Securities or to confirm
and evidence the release, termination or discharge of any such Guarantee
when such release, termination or discharge is permitted under this
Indenture;
(5) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company;
(6) to make any change that does not adversely affect the rights of
any Holder in any material respect, subject to the provisions of this
Indenture;
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(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 or the Securities
with the written consent of the Holders of at least a majority in principal
amount of the Securities then outstanding (including consents obtained in
connection with a tender offer or exchange for the Securities). Any existing
Default or compliance with any provisions of this Indenture or the Securities
may be waived with the consent of the Holders of at least a majority in
principal amount of the Securities then outstanding, subject to the restrictions
of Section 6.04 and this Section 9.02. Notwithstanding the foregoing, without
the consent of each Holder affected thereby, an amendment or waiver may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment;
(2) reduce the rate of or extend the time for payment of interest on
any Security;
(3) reduce the principal of or extend the Stated Maturity of any
Security;
(4) reduce the premium payable upon the redemption of any Security
or change the time at which a Security may be redeemed pursuant to Article
3 hereto or paragraph 6 of the Securities;
(5) make any Security payable in money other than that stated in the
Security;
(6) impair the right of any Holder to receive payment of principal
of, and interest on, such Holder's Securities on or after the due dates
therefor or to institute suit for the enforcement of any payment on or
with respect to such Holder's Securities;
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(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.
(b) It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the Company
shall mail to Holders a notice briefly describing such amendment. The failure to
give such notice to all Holders, or any defect therein, shall not impair or
affect the validity of an amendment under this Section.
SECTION 9.03. Compliance with Trust Indenture Act. Every amendment
to this Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Holder. An amendment
or waiver becomes effective upon the execution of such amendment or waiver by
the Trustee.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
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SECTION 9.06. Trustee To Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
SECTION 9.07. Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 10
Subsidiary Guarantees
SECTION 10.01. Guarantees. (a) Each Subsidiary Guarantor hereby
irrevocably and unconditionally guarantees, as a primary obligor and not merely
as a surety, the due and punctual payment and performance of all of the
Guaranteed Obligations of such Subsidiary Guarantor, jointly with the other
Subsidiary Guarantors and severally. Each of the Subsidiary Guarantors further
agrees that its Guaranteed Obligations may be extended or renewed, in whole or
in part, without notice to or further assent from it, and that it will remain
bound upon its guarantee notwithstanding any extension or renewal of any such
Guaranteed Obligation. Each of the Subsidiary Guarantors waives presentment to,
demand of payment from and protest to the Company or any Subsidiary Guarantor of
any of its Guaranteed Obligations, and also waives notice of acceptance of its
guarantee, notice of protest for nonpayment and all similar formalities.
(b) Each of the Subsidiary Guarantors further agrees that its
guarantee hereunder constitutes a guarantee of payment when due and not of
collection, and waives any right to require that any resort be had by the
Trustee or any Holder to any security held for the payment of its Guaranteed
Obligations or to any balance of any deposit account or credit on the books of
the Trustee or any Holder in favor of the Company.
(c) Except for termination of a Subsidiary Guarantor's obligations
hereunder or a release of such Subsidiary Guarantor pursuant to Section 10.06,
the obligations of each Subsidiary Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense or set-off, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Guaranteed Obligations of such Subsidiary Guarantor or otherwise. Without
limiting the generality of the foregoing, the obligations of each
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Subsidiary Guarantor hereunder shall not be discharged or impaired or otherwise
affected by (i) the failure of the Trustee or any Holder to assert any claim or
demand or to enforce any right or remedy under the provisions of this Indenture
or otherwise; (ii) any rescission, waiver, amendment or modification of, or any
release from any of the terms or provisions of, this Indenture or any other
agreement, including with respect to any other Subsidiary Guarantor under this
Agreement; (iii) any default, failure or delay, wilful or otherwise, in the
performance of the Guaranteed Obligations of such Subsidiary Guarantor; or (iv)
any other act or omission that may or might in any manner or to any extent vary
the risk of such Subsidiary Guarantor or otherwise operate as a discharge of
such Subsidiary Guarantor as a matter of law or equity (other than the
indefeasible payment in full in cash of all the Guaranteed Obligations of such
Guarantor).
(d) To the fullest extent permitted by applicable law, each
Subsidiary Guarantor waives any defense based on or arising out of any defense
of the Company or any other Subsidiary Guarantor or the unenforceability of the
Guaranteed Obligations of such Subsidiary Guarantor or any part thereof from any
cause, or the cessation from any cause of the liability of the Company or any
other Subsidiary Guarantor, other than the indefeasible payment in full in cash
of all the Guaranteed Obligations of such Subsidiary Guarantor. The Trustee may,
at its election, compromise or adjust any part of the Guaranteed Obligations,
make any other accommodation with the Company or any Subsidiary Guarantor or
exercise any other right or remedy available to them against the Company or any
Subsidiary Guarantor, in each case without affecting or impairing in any way the
liability of any Subsidiary Guarantor hereunder except to the extent the
Guaranteed Obligations of such Subsidiary Guarantor have been fully and
indefeasibly paid in full in cash. To the fullest extent permitted by applicable
law, each Subsidiary Guarantor waives any defense arising out of any such
election even though such election operates, pursuant to applicable law, to
impair or to extinguish any right of reimbursement or subrogation or other right
or remedy of such Subsidiary Guarantor against the Company or any other
Subsidiary Guarantor, as the case may be.
(e) Each of the Subsidiary Guarantors agrees that its guarantee
hereunder shall continue to be effective or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any Guaranteed Obligation of
such Subsidiary Guarantor is rescinded or must otherwise be restored by the
Trustee upon the bankruptcy or reorganization of the Company, any other
Subsidiary Guarantor or otherwise.
SECTION 10.02. Limitation on Liability. Any term or provision of
this Indenture to the contrary notwithstanding, the maximum aggregate amount of
the Guaranteed Obligations guaranteed hereunder by any Subsidiary Guarantor
shall not exceed the maximum amount that can be hereby guaranteed without
rendering this 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,
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in the event of any transfer or assignment of rights by any Holder or the
Trustee, the rights and privileges conferred upon that party in this Indenture
and in the Securities shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 10.04. No Waiver. Neither a failure nor a delay on the part
of either the Trustee or the Holders in exercising any right, power or privilege
under this Article 10 shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article 10 at law,
in equity, by statute or otherwise.
SECTION 10.05. Modification. No modification, amendment or waiver of
any provision of this Article 10, nor the consent to any departure by any
Subsidiary Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Trustee, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Subsidiary Guarantor in any case shall
entitle such Subsidiary Guarantor to any other or further notice or demand in
the same, similar or other circumstances.
SECTION 10.06. Release of Subsidiary Guarantor. 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 if the Company provides
an Officers' Certificate to the Trustee stating that the Company elects to
have such Subsidiary Guarantor released from this Article 10, or
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(6) upon the exercise by the Company of its legal defeasance option
or its covenant defeasance option or if the Obligations of the Company
under the Indenture and the 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 shall be entitled upon payment in full of
all Guaranteed Obligations under this Indenture to a contribution from each
other Subsidiary Guarantor in an amount equal to such other Subsidiary
Guarantor's pro rata portion of such payment based on the respective net assets
of all the Subsidiary Guarantors at the time of such payment determined in
accordance with GAAP.
ARTICLE 11
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls. If any provision of
this 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:
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
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The Company, any Subsidiary Guarantor or the Trustee by notice to
the other may designate additional or different addresses for subsequent notices
or communications.
Any notice or communication mailed to a Holder shall be mailed to
the Holder at the Holder's address as it appears on the registration books of
the Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 11.03. Communication by Holders with Other Holders. Holders
may communicate pursuant to TIA Section 312(b) with other Holders with respect
to their rights under this Indenture or the 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
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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 have concurred in any
direction, waiver or consent, Securities owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Securities outstanding at the time shall be
considered in any such determination.
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 11.08. Legal Holidays. If a payment date is a Legal Holiday,
payment shall be made on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period. If a regular record
date is a Legal Holiday, the record date shall not be affected.
SECTION 11.09. Governing Law. This Indenture and the Securities
shall be governed by, and construed in accordance with, the laws of the State of
New York without giving effect to applicable principles of conflicts of law to
the extent that the application of the law of another jurisdiction would be
required thereby.
SECTION 11.10. No Recourse Against Others. A director, officer,
employee or shareholder, as such, of the Company or any Subsidiary Guarantor
shall not have any liability for any obligations of the Company under the
Securities 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.
84
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 X. XXXXX
------------------------------
Name: Xxxxxxx X. 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: Vice President
by /s/ X.X. XXXXXXXX
--------------------------------
Name: X.X. Xxxxxxxx
Title: Secretary
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 (1) the Securities issued pursuant to
this Indenture in connection with a Registered Exchange Offer pursuant to a
Registration Rights Agreement and (2) Additional 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 and 2 to this Indenture.
"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 (1) $400,000,000 aggregate principal
amount of 9.00% Senior Notes due 2015 issued on the Closing Date and (2)
Additional Securities, if any, issued in a transaction exempt from the
registration requirements of the Securities Act.
2
"Purchase Agreement" means (a) the Note Purchase Agreement dated
June 20, 2005, 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 Agreement" means (a) the Registration Rights
Agreement dated June 23, 2005 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.
"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 the 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.
3
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 relia nce 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. Rule 144A Securities shall be issued
initially in the form of one or more permanent global Securities in definitive,
fully registered form (collectively, the "Rule 144A Global Security") and
Regulation S Securities shall be issued initially in the form of one or more
temporary global Securities (collectively, the "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 the Temporary
Regulation S Global Security shall not be exchangeable for interests in the Rule
144A Global Security, a permanent global security (the "Permanent Regulation S
Global Security") or any other Security without a Restricted Securities Legend
until the expiration of the Distribution Compliance Period. The Rule 144A Global
Security and the Permanent Regulation S Global Security are each 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 the Global Securities may from time to time be increased or
4
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 two Officers, 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.
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
Securities for original issue on the date hereof in an aggregate principal
amount of $400,000,000, (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
$1,000.
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
5
(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 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 such Global Security to reflect an increase in the
aggregate principal amount of
6
the Securities represented by the 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 the 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 the Global Security equal to
the principal amount of the Definitive Security so canceled. If no Global
Securities are then outstanding and the 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 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 in the Global Security being transferred. Transfers by
an owner of a beneficial interest in the Rule 144A Global Security to a
transferee who takes delivery of such interest either through the Temporary
Regulation S Global Security or the 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
7
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
Security. (i) Prior to the expiration of the Distribution Compliance Period,
interests in the 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 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 the Temporary Regulation S Global
Security to a transferee who takes delivery of such interest through the 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 the 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
8
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" 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.
9
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 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
10
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.
(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
11
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 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 $1,000 and any
integral multiple 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
12
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
[FORM OF FACE OF INITIAL 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. Rfi- $__________
9.00% Senior Note due 2015
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
July 1, 2015.
Interest Payment Dates: January 1 and July 1, commencing January 1, 2006
Record Dates: December 15 and June 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:
by ___________________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
XXXXX FARGO BANK, N.A.,
as Trustee, certifies that this is one of the 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 SECURITY]
9.00% Senior Note due 2015
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 Security at the rate per annum shown above. The Company
shall pay interest semiannually on January 1 and July 1 of each year. Interest
on the 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 June 23, 2005 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 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 Security
is entitled to the benefits of a Registration Rights Agreement, dated as of June
23, 2005, among the Company, the Subsidiary Guarantors and certain purchasers of
the 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 Securities on semi-annual payment dates which correspond to
interest payment dates for the 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 Securities (except defaulted
interest) to the Persons who are registered Holders at the close of business on
the December 15 or June 15 next preceding the interest payment date even if
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
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,
4
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 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 Securities under an Indenture dated as of
June 23, 2005 (the "Indenture"), among the Company, the Subsidiary Guarantors
and the Trustee. The terms of the 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. Section 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 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 Securities are senior unsecured obligations of the Company. This
Security is one of the Initial Securities referred to in the Indenture. The
Securities include the Initial Securities and any Exchange Securities issued in
exchange for Initial Securities pursuant to the Indenture and the Registration
Rights Agreement. The Initial Securities, any Exchange Securities and all other
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
Securities have an Investment Grade Rating from both of the Rating Agencies, and
(ii) no Default 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. In addition, the Company may elect to suspend the
Subsidiary Guarantees. Upon and following any Reversion Date, the Company and
its
5
Restricted Subsidiaries shall again be subject to the Suspended Covenants
with respect to future events and the Subsidiary Guarantees shall be reinstated.
5. Guarantee
The payment by the Company of the principal of, and premium and
interest on, the 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 Securities
and the Guaranteed Obligations of the Subsidiary Guarantors 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 Securities.
After July 1, 2010, the Company may redeem the 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
July 1 of the years set forth below:
Redemption
Year Price
---- ----------
2010............................................................................ 104.500%
2011............................................................................ 103.000%
2012............................................................................ 101.500%
2013 and thereafter............................................................. 100.000%
In addition, prior to July 1, 2008, the Company may, on one or more
occasions, redeem up to a maximum of 35% of the original aggregate principal
amount of the Securities (calculated giving effect to any issuance of Additional
Securities) with the Net Cash Proceeds of one or more Equity Offerings by the
Company, at a redemption price equal to 109.000% of the principal amount
thereof, plus accrued and unpaid interest to the redemption date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date); provided, however, that (1) at least 65%
of the original aggregate principal amount of the Securities (calculated giving
effect to any issuance of Additional 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.
In addition, prior to July 1, 2010, the Company may at its option
redeem the Securities, in whole or in part, at a redemption price equal to 100%
of the principal amount of the 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
6
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 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 Security on July 1, 2010 (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 Security through July 1, 2010 (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 July 1, 2010, 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 Securities from the redemption date to July 1, 2010, 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 July 1, 2010.
"Comparable Treasury Price" means, with respect to any redemption
date, if clause (2) of the Adjusted Treasury Rate is applicable, the average of
three, or if not possible, such lesser number as is obtained by the Company,
Reference Treasury Dealer Quotations for such redemption date.
"Quotation Agent" means one of the Reference Treasury Dealers
selected by the Company.
"Reference Treasury Dealer" means Citigroup Global Markets Inc. and
its successors and assigns and two other nationally recognized investment
banking firms selected by the Company that are primary U.S. Government
securities dealers.
7
"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 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
Securities to be redeemed at his, her or its registered address. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest on all 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 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 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 Securities of such Holder at a
purchase price equal to 101% of the principal amount of the 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 Securities upon the occurrence of certain
events.
10. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange 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 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 Securities for a
period of 15 days prior to a selection of Securities to be redeemed or for a
period of 15 days prior to an interest payment date.
8
11. Persons Deemed Owners
Except as provided in paragraph 2 hereof, the registered Holder of
this 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 Securities and the Indenture if the
Company deposits with the Trustee money or U.S. Government Obligations for the
payment of principal of, and interest on the 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 or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate principal amount of all of the
Securities then outstanding voting as a single class and (ii) any Default may be
waived with the written consent of the Holders of at least a majority in
principal amount of all of the Securities then outstanding voting as a single
class; provided, however, that if any amendment, waiver or other modification
will affect only the Securities, only the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Securities (and
not the consent of the Holders of at least a majority in aggregate principal
amount of all Securities) shall be required.
Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder, the Company, the Subsidiary Guarantors and the
Trustee may amend the Indenture or the 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 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 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
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 Securities; provided, however, that compliance with the Indenture
as so amended would not result in Securities being transferred in violation of
the Securities Act; or (ix) to provide for the
9
issuance of the Exchange Securities or Additional Securities in accordance with
the terms of the Indenture.
15. Defaults and Remedies
An "Event of Default" occurs if: (i) the Company defaults in any
payment of interest on any 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 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; (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) 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 Securities or the Indenture (other than those referred to in
clauses (i), (ii), (iii) or (iv) above) and such failure continues for 60 days
after the notice from the Trustee or the Holders specified below; (vi) the
Company or any Restricted Subsidiary fails to pay any Indebtedness (other than
Indebtedness owing to the Company or a Restricted Subsidiary) within any
applicable grace period after final maturity or the acceleration of any such
Indebtedness by the holders thereof because of a default if the total amount of
such Indebtedness unpaid or accelerated exceeds $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 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 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 until the
Trustee notifies the Company or the Holders of at least 25% in principal amount
of the outstanding 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.
10
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Company) and is continuing, the Trustee or the Holders of at least 25% in
principal amount of all of the outstanding 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
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
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 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 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 Security, each Holder waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Securities.
18. Authentication
This 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 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.
11
21. CUSIP Numbers and ISINs
The Company has caused CUSIP numbers and ISINs to be printed on the
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 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 SECURITIES UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN IT
THE TEXT OF THIS 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 Signature of Signature
by a participant in a Guarantee
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
($1,000 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
[FORM OF FACE OF 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. Fi- $__________
9.00% Senior Note due 2015
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: January 1 and July 1, commencing January 1, 2006
Record Dates: December 15 or June 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:
by _______________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
XXXXX FARGO BANK, N.A.,
as Trustee, certifies that this is one of the 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 EXCHANGE SECURITY]
9.00% Senior Note due 2015
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 Security at the rate per annum shown above. The Company
shall pay interest semiannually on January 1 and July 1 of each year. Interest
on the 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 June 23, 2005 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 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 Securities (except defaulted
interest) to the Persons who are registered Holders at the close of business on
the December 15 or June 15 next preceding the interest payment date even if
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
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 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
June 23, 2005 (the "Indenture"), among the Company, the Subsidiary Guarantors
and the Trustee. The terms of the 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 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 Securities are senior unsecured obligations of the Company. This
Security is one of the Exchange Securities referred to in the Indenture. The
Securities include the Initial Securities and the Exchange Securities issued in
exchange for Initial Securities pursuant to the Indenture and the Registration
Rights Agreement. The Initial Securities, the Exchange Securities and all other
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
Securities have an Investment Grade Rating from both of the Rating Agencies, and
(ii) no Default 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. In addition, the Company may elect to suspend the
Subsidiary Guarantees. Upon and following any Reversion Date, the Company and
its Restricted Subsidiaries shall again be subject to the Suspended Covenants
with respect to future events and the Subsidiary Guarantees shall be reinstated.
3
5. Guarantee
The payment by the Company of the principal of, and premium and
interest on, the 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 Securities
and the Guaranteed Obligations of the Subsidiary Guarantors 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 Securities.
After July 1, 2010, the Company may redeem the 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
July 1 of the years set forth below:
Redemption
Year Price
---- -----
2010............................................................................ 104.500%
2011............................................................................ 103.000%
2012............................................................................ 101.500%
2013 and thereafter............................................................. 100.000%
In addition, prior to July 1, 2008, the Company may, on one or more
occasions, redeem up to a maximum of 35% of the original aggregate principal
amount of the Securities (calculated giving effect to any issuance of Additional
Securities) with the Net Cash Proceeds of one or more Equity Offerings by the
Company, at a redemption price equal to 109.000% of the principal amount
thereof, plus accrued and unpaid interest to the redemption date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date); provided, however, that (1) at least 65%
of the original aggregate principal amount of the Securities (calculated giving
effect to any issuance of Additional 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.
In addition, prior to July 1, 2010, the Company may at its option
redeem the Securities, in whole or in part, at a redemption price equal to 100%
of the principal amount of the 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
4
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 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 Security on July 1, 2010 (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 Security through July 1, 2010 (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 July 1, 2010, 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 from the redemption date to July 1, 2010, 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 July 1, 2010.
"Comparable Treasury Price" means, with respect to any redemption
date, if clause (2) of the Adjusted Treasury Rate is applicable, the average of
three, or if not possible, such lesser number as is obtained by the Company,
Reference Treasury Dealer Quotations for such redemption date.
"Quotation Agent" means one of the Reference Treasury Dealers
selected by the Company.
5
"Reference Treasury Dealer" means Citigroup Global Markets Inc. and
its successors and assigns and two other nationally recognized investment
banking firms selected by the Company that are primary U.S. Government
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 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
Securities to be redeemed at his, her or its registered address. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest on all 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 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 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 Securities of such Holder at a
purchase price equal to 101% of the principal amount of the 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 Securities upon the occurrence of certain
events.
10. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange 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 Securities selected for
6
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
Securities for a period of 15 days prior to a selection of 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 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 Securities and the Indenture if the
Company deposits with the Trustee money or U.S. Government Obligations for the
payment of principal of, and interest on the 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 or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate principal amount of all of the
Securities then outstanding voting as a single class and (ii) any Default may be
waived with the written consent of the Holders of at least a majority in
principal amount of all of the Securities then outstanding voting as a single
class; provided, however, that if any amendment, waiver or other modification
will affect only the Securities, only the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Securities (and
not the consent of the Holders of at least a majority in aggregate principal
amount of all Securities) shall be required.
Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder, the Company, the Subsidiary Guarantors and the
Trustee may amend the Indenture or the 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 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
7
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 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
Securities; provided, however, that compliance with the Indenture as so amended
would not result in Securities being transferred in violation of the Securities
Act; or (ix) to provide for the issuance of the Exchange Securities or
Additional Securities in accordance with the terms of the Indenture.
15. Defaults and Remedies
An "Event of Default" occurs if: (i) the Company defaults in any
payment of interest on any 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 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; (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) 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 Securities or the Indenture (other than those referred to in
clauses (i), (ii), (iii) or (iv) above) and such failure continues for 60 days
after the notice from the Trustee or the Holders specified below; (vi) the
Company or any Restricted Subsidiary fails to pay any Indebtedness (other than
Indebtedness owing to the Company or a Restricted Subsidiary) within any
applicable grace period after final maturity or the acceleration of any such
Indebtedness by the holders thereof because of a default if the total amount of
such Indebtedness unpaid or accelerated exceeds $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 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 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.
8
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 until the
Trustee notifies the Company or the Holders of at least 25% in principal amount
of the outstanding 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 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 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
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
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 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 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 Security, each Holder waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Securities.
18. Authentication
This 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).
9
20. Governing Law
THIS 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
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 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 SECURITIES UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN IT
THE TEXT OF THIS 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.
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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
-------- ------------------- ------------------- -------------------- --------------------
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
($1,000 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").
W I T N E S S E T H :
WHEREAS the Company and the Subsidiary Guarantors (the "Existing
Guarantors") have heretofore executed and delivered to the Trustee an Indenture
(the "Indenture") dated as of June 23, 2005, providing for the issuance of the
Company's 9.00% Senior Notes due 2015 (the "Securities"), initially in the
aggregate principal amount of $400,000,000.
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 force and effect. This Supplemental Indenture shall form a
part of the Indenture for all
2
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:
