<PAGE> 1
==============================================================================
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
QUARTERLY REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended March 31, 1998
Commission File Number: 1-1927
THE GOODYEAR TIRE & RUBBER COMPANY
(Exact name of Registrant as specified in its charter)
OHIO 34-0253240
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1144 EAST MARKET STREET, AKRON, OHIO 44316-0001
(Address of Principal Executive Offices) (Zip Code)
(330) 796-2121
(Registrant's Telephone Number, Including Area Code)
-----------------------------------
Indicate by check mark whether the Registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months, and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
--- -----
-----------------------------------
Indicate the number of shares outstanding of each of the Registrant's classes of
common stock, as of the latest practicable date.
Number of Shares of Common Stock,
Without Par Value, Outstanding at March 31, 1998: 157,238,980
==============================================================================
<PAGE> 2
THE GOODYEAR TIRE & RUBBER COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF INCOME AND RETAINED EARNINGS
Unaudited
<TABLE>
<CAPTION>
(In millions, except per share) Three Months Ended
March 31,
1998 1997
--------- ---------
<S> <C> <C>
NET SALES $ 3,094.0 $ 3,208.7
Cost of Goods Sold 2,331.2 2,453.1
Selling, Administrative and General Expense 459.0 466.3
Interest Expense 30.3 31.0
Other (Income) and Expense (54.0) 7.6
Foreign Currency Exchange (5.3) (3.1)
Minority Interest in Net Income of Subsidiaries 8.8 11.5
--------- ---------
Income from Continuing Operations before Income Taxes 324.0 242.3
United States and Foreign Taxes on Income 112.5 82.1
--------- ---------
INCOME FROM CONTINUING OPERATIONS 211.5 160.2
Discontinued Operations (34.7) 10.2
--------- ---------
NET INCOME 176.8 170.4
Retained Earnings at Beginning of Period 2,983.4 2,603.0
CASH DIVIDENDS (47.0) (43.9)
--------- ---------
Retained Earnings at End of Period $ 3,113.2 $ 2,729.5
========= =========
PER SHARE OF COMMON STOCK - BASIC:
INCOME FROM CONTINUING OPERATIONS $ 1.35 $ 1.02
Discontinued Operations (0.22) 0.07
--------- ---------
NET INCOME $ 1.13 $ 1.09
========= =========
Average Shares Outstanding 156.8 156.4
PER SHARE OF COMMON STOCK - DILUTED:
INCOME FROM CONTINUING OPERATIONS $ 1.33 $ 1.01
Discontinued Operations (0.22) 0.07
--------- ---------
NET INCOME $ 1.11 $ 1.08
========= =========
Average Shares Outstanding 159.0 158.0
CASH DIVIDENDS PER SHARE $ 0.30 $ 0.28
========= =========
</TABLE>
The accompanying notes are an integral part of this financial statement.
-1-
<PAGE> 3
THE GOODYEAR TIRE & RUBBER COMPANY AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
Unaudited
<TABLE>
<CAPTION>
(Dollars in millions)
March 31, December 31,
1998 1997
ASSETS: ----------- ---------
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 160.3 $ 258.6
Accounts and notes receivable,
less allowance (1998-$51.5, 1997-$49.5) 1,876.8 1,733.6
Inventories:
Raw materials 374.9 307.0
Work in process 87.2 87.1
Finished product 1,614.4 1,441.1
--------- ---------
2,076.5 1,835.2
Prepaid expenses and other current assets 367.9 336.5
Net assets held for sale 393.7 --
--------- ---------
TOTAL CURRENT ASSETS 4,875.2 4,163.9
Long Term Accounts and Notes Receivable 188.2 201.9
Investments in Affiliates, at equity 126.7 124.6
Other Assets 64.1 134.1
Deferred Charges 1,189.1 1,143.2
Properties and Plants,
less accumulated depreciation (1998-$5,010.9, 1997-$5,084.3) 3,741.8 4,149.7
--------- ---------
TOTAL ASSETS $10,185.1 $ 9,917.4
========= =========
LIABILITIES:
CURRENT LIABILITIES:
Accounts payable - trade $ 1,031.5 $ 1,177.8
Compensation and benefits 743.4 782.7
Other current liabilities 415.3 421.8
United States and foreign taxes 375.3 362.0
Notes payable to banks 726.1 440.2
Long term debt due within one year 16.1 66.5
--------- ---------
TOTAL CURRENT LIABILITIES 3,307.7 3,251.0
Compensation and Benefits 1,949.5 1,945.7
Long Term Debt 974.5 844.5
Other Long Term Liabilities 211.9 224.5
Minority Equity in Subsidiaries 208.3 256.2
--------- ---------
TOTAL LIABILITIES 6,651.9 6,521.9
SHAREHOLDERS' EQUITY:
Preferred Stock, no par value:
Authorized 50,000,000 shares, unissued -- --
Common Stock, no par value:
Authorized 300,000,000 shares
Outstanding shares 157,238,980 (156,588,783 in 1997)
after deducting 38,439,688 treasury shares (39,089,885 in 1997) 157.2 156.6
Capital Surplus 1,085.6 1,061.6
Retained Earnings 3,113.2 2,983.4
Accumulated Other Comprehensive Income (822.8) (806.1)
--------- ---------
TOTAL SHAREHOLDERS' EQUITY 3,533.2 3,395.5
--------- ---------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $10,185.1 $ 9,917.4
========= =========
</TABLE>
The accompanying notes are an integral part of this financial statement.
-2-
<PAGE> 4
THE GOODYEAR TIRE & RUBBER COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
Unaudited
<TABLE>
<CAPTION>
(In millions) Accumulated Other
Comprehensive Income
---------------------
Common Capital Retained Foreign Minimum Total
Stock Surplus Earnings Currency Pension Shareholders'
Translation Liability Equity
-----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1997 $ 156.6 $ 1,061.6 $ 2,983.4 $ (778.0) $ (28.1) $ 3,395.5
COMPREHENSIVE INCOME FOR 1998:
NET INCOME 176.8
FOREIGN CURRENCY TRANSLATION (15.0)
MINIMUM PENSION LIABILITY (1.7)
TOTAL COMPREHENSIVE INCOME 160.1
Cash dividends (47.0) (47.0)
Common stock transactions 0.6 24.0 24.6
-----------------------------------------------------------------------
Balance at March 31, 1998 $ 157.2 $ 1,085.6 $ 3,113.2 $ (793.0) $ (29.8) $ 3,533.2
=======================================================================
</TABLE>
<TABLE>
<CAPTION>
Accumulated Other
Comprehensive Income
----------------------
Common Capital Retained Foreign Minimum Total
Stock Surplus Earnings Currency Pension Shareholders'
Translation Liability Equity
-----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1996 $ 156.1 $ 1,059.4 $ 2,603.0 $ (508.4) $ (31.0) $ 3,279.1
COMPREHENSIVE INCOME FOR 1997:
NET INCOME 170.4
FOREIGN CURRENCY TRANSLATION (18.7)
MINIMUM PENSION LIABILITY 1.3
TOTAL COMPREHENSIVE INCOME 153.0
Cash dividends (43.9) (43.9)
Common stock transactions (0.1) (18.1) (18.2)
-----------------------------------------------------------------------
Balance at March 31, 1997 $ 156.0 $ 1,041.3 $ 2,729.5 $ (527.1) $ (29.7) $ 3,370.0
=======================================================================
</TABLE>
The accompanying notes are an integral part of this financial statement.
-3-
<PAGE> 5
THE GOODYEAR TIRE & RUBBER COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
Unaudited
<TABLE>
<CAPTION>
(In millions) Three Months Ended
March 31,
1998 1997
CASH FLOWS FROM OPERATING ACTIVITIES: ----- -----
<S> <C> <C>
NET INCOME $176.8 $170.4
Adjustments to reconcile net income to cash flows
from operating activities:
Depreciation 124.4 111.8
Discontinued operations 42.9 --
Asset sales (61.1) --
Accounts and notes receivable (195.5) (300.7)
Inventories (268.8) (103.8)
Accounts payable-trade (102.9) 41.9
Other assets and liabilities (67.8) 27.6
------ ------
Total adjustments (528.8) (223.2)
------ ------
TOTAL CASH FLOWS FROM OPERATING ACTIVITIES (352.0) (52.8)
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (118.3) (93.7)
Asset sales 73.5 --
Asset acquisitions (58.9) (85.0)
Other transactions (0.8) (2.2)
------ ------
TOTAL CASH FLOWS FROM INVESTING ACTIVITIES (104.5) (180.9)
CASH FLOWS FROM FINANCING ACTIVITIES:
Short term debt incurred 185.3 377.5
Short term debt paid (9.6) (35.6)
Long term debt incurred 309.5 2.8
Long term debt paid (103.7) (36.5)
Common stock issued 24.6 35.5
Common stock acquired -- (42.8)
Dividends paid (47.0) (43.9)
------ ------
TOTAL CASH FLOWS FROM FINANCING ACTIVITIES 359.1 257.0
Effect of Exchange Rate Changes on Cash and Cash Equivalents (0.9) (5.6)
------ ------
Net Change in Cash and Cash Equivalents (98.3) 17.7
Cash and Cash Equivalents at Beginning of the Period 258.6 238.5
------ ------
Cash and Cash Equivalents at End of the Period $160.3 $256.2
====== ======
</TABLE>
The accompanying notes are an integral part of this financial statement.
-4-
<PAGE> 6
THE GOODYEAR TIRE & RUBBER COMPANY AND SUBSIDIARIES
NOTES TO FINANCIAL STATEMENTS
DISCONTINUED OPERATIONS
- -----------------------
On March 21, 1998 the Company reached an agreement to sell substantially
all of the assets and liabilities of its oil transportation business segment to
Plains All American Inc., a subsidiary of Plains Resources Inc. Proceeds from
the sale are expected to be $422.2 million, which includes distributions to the
Company prior to closing of approximately $25.1 million. The proceeds are
subject to adjustment as provided in the Stock Purchase Agreement. The sale is
expected to be completed by July 1998. The principal assets of the Oil
Transportation segment include the All American Pipeline System, a heated crude
oil pipeline system consisting primarily of a 1,225 mile mainline segment
extending from Gaviota, California, to McCamey, Texas and related terminal and
storage facilities, and a crude oil gathering system located in California's San
Joaquin Valley.
The transaction has been accounted for as a sale of discontinued
operations, and accordingly, the accompanying financial information has been
restated where required. The net assets held for sale are reported on the
Consolidated Balance Sheet at net realizable value less estimated costs of
disposal.
Operating results and the loss on sale of discontinued operations follow:
<TABLE>
<CAPTION>
(In millions, except per share) Three Months Ended
March 31,
1998 1997
---- ----
<S> <C> <C>
NET SALES $ 22.4 $ 24.5
====== ======
Income before Income Taxes $ 12.9 $ 15.9
United States Taxes on Income 4.7 5.7
------ ------
Income from Discontinued Operations 8.2 10.2
Loss on Sale of Discontinued Operations, including
estimated income from operations during the
disposal period of $10.0 (net of tax of $24.1) (42.9) --
------ ------
DISCONTINUED OPERATIONS $(34.7) $ 10.2
====== ======
INCOME (LOSS) PER SHARE - BASIC:
Income from Discontinued Operations $ .05 $ .07
Loss on Sale of Discontinued Operations (.27) --
------ ------
DISCONTINUED OPERATIONS $ (.22) $ .07
====== ======
INCOME (LOSS) PER SHARE - DILUTED:
Income from Discontinued Operations $ .05 $ .07
Loss on Sale of Discontinued Operations (.27) --
------ ------
DISCONTINUED OPERATIONS $ (.22) $ .07
====== ======
</TABLE>
-5-
<PAGE> 7
THE GOODYEAR TIRE & RUBBER COMPANY AND SUBSIDIARIES
NOTES TO FINANCIAL STATEMENTS (continued)
NON-CONSOLIDATED OPERATIONS - SOUTH PACIFIC TYRE
- ------------------------------------------------
In addition to its consolidated operations in the Asia region, the Company
also owns a 50% interest in South Pacific Tyres Ltd (SPT), a partnership with
Pacific Dunlop Ltd of Australia. SPT is the largest tire manufacturer, marketer
and exporter in Australia and New Zealand. The Company is required to use the
equity method to account for its interest in the results of operations and
financial position of SPT.
The following table presents sales and operating income of the Company's
consolidated Asian operations and 100% of the operations of SPT:
<TABLE>
<CAPTION>
(In millions) Three Months Ended March 31
----------------------------
Asia
Segment SPT Total
------- ------ -------
<S> <C> <C> <C> <C>
NET SALES:
1998 $137.5 $161.5 $299.0
1997 199.3 183.6 382.9
OPERATING INCOME:
1998 $ 9.7 $ 9.2 $ 18.9
1997 27.5 14.8 42.3
</TABLE>
OTHER (INCOME) AND EXPENSE
- --------------------------
Other (income) and expense in 1998 included a gain of $61.1 million on the
sale of the Company's Calhoun, Georgia latex processing facility.
SUPPLEMENTAL INFORMATION ABOUT NONCASH INVESTING ACTIVITIES
- -----------------------------------------------------------
In the first quarter of 1997 the Company acquired a 60% equity interest in
a South African tire and industrial rubber products business, and assumed $29
million of debt under the terms of the purchase agreement.
PER SHARE OF COMMON STOCK
- -------------------------
Basic per share amounts have been computed based on the average number of
common shares outstanding. Diluted per share amounts reflect the increase in
average common shares outstanding that would result from the assumed exercise of
outstanding stock options, computed using the treasury stock method.
ADJUSTMENTS
- -----------
All adjustments, consisting of normal recurring adjustments, necessary for
a fair statement of the results of these unaudited interim periods have been
included.
RECLASSIFICATION
- ----------------
Certain items previously reported in specific financial statement captions
have been reclassified to conform with the 1998 presentation.
-6-
<PAGE> 8
THE GOODYEAR TIRE & RUBBER COMPANY AND SUBSIDIARIES
SEGMENT INFORMATION
Unaudited
<TABLE>
<CAPTION>
(In millions) Three Months Ended
March 31,
1998 1997
-------- --------
<S> <C> <C>
INDUSTRY SEGMENTS
Sales to Unaffiliated Customers:
Tires $2,448.8 $2,541.6
Related products and services 209.9 210.6
-------- --------
Total Tires 2,658.7 2,752.2
General products 435.3 456.5
-------- --------
NET SALES $3,094.0 $3,208.7
======== ========
Income:
Tires $ 279.2 $ 266.9
General products 109.9 46.3
-------- --------
OPERATING INCOME 389.1 313.2
Exclusions from operating income (65.1) (70.9)
-------- --------
Income from continuing operations $ 324.0 $ 242.3
before income taxes ========= =========
GEOGRAPHIC SEGMENTS
Sales to Unaffiliated Customers:
United States $1,669.4 $1,687.7
Europe 733.6 764.5
Latin America 375.7 383.1
Asia 137.5 199.3
Canada 177.8 174.1
-------- --------
NET SALES $3,094.0 $3,208.7
======== ========
Operating Income:
United States $ 207.1 $ 126.4
Europe 90.1 79.6
Latin America 68.5 68.3
Asia 9.7 27.5
Canada 13.7 11.4
-------- --------
OPERATING INCOME $ 389.1 $ 313.2
======== ========
</TABLE>
-7-
<PAGE> 9
THE GOODYEAR TIRE & RUBBER COMPANY AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
---------------------
CONSOLIDATED
- ------------
Sales in the first quarter of 1998 were $3.09 billion, decreasing 3.6% from
$3.21 billion in the 1997 quarter. Net income in the first quarter of 1998 was
$176.8 million or $1.11 per share-diluted, compared to net income in the 1997
quarter of $170.4 million or $1.08 per share-diluted. Basic net income per share
was $1.13 and $1.09 in the 1998 and 1997 periods, respectively. Unless otherwise
indicated, all per share amounts in this discussion refer to diluted earnings
per share.
Net income in the 1998 quarter included an after tax gain of $37.9 million
or $.24 per share from the sale of the Calhoun, Georgia latex processing
facility, and an after tax loss of $34.7 million or $.22 per share on the
anticipated sale of the assets of the oil transportation segment. In addition,
after tax charges of $6.9 million or $.04 per share were recorded related to the
transition to seven-day operations at certain production facilities in North
America. These items are discussed further below.
Tire unit sales rose 3.0% in the worldwide original equipment market
compared to the first quarter of 1997, although worldwide replacement unit sales
were down slightly. Revenues decreased due primarily to the strengthening of the
U.S. dollar versus European and Asian currencies and continued worldwide
competitive pricing pressures.
Cost of goods sold decreased to 75.3% of sales from 76.5% in the 1997
period, reflecting lower raw material costs and improved worldwide productivity.
Cost of goods sold was adversely affected in the 1998 quarter by the previously
mentioned costs related to the transition to seven-day operations at certain
North American production facilities, which totaled $10.4 million ($6.9 million
after tax or $.04 per share). Selling, administrative and general expense (SAG)
rose to 14.8% of sales from 14.5% in the year-ago quarter, due primarily to
lower revenues.
Other income and expense in 1998 included the previously mentioned gain on
the sale of the Calhoun, Georgia latex processing facility totaling $61.1
million ($37.9 million after tax or $.24 per share).
-8-
<PAGE> 10
On March 21, 1998 the Company reached an agreement to sell substantially
all of the assets and liabilities of its oil transportation business segment to
Plains All American Inc., a subsidiary of Plains Resources Inc. for $422.2
million, which includes distributions prior to closing of approximately $25.1
million. The proceeds are subject to adjustment as provided in the Stock
Purchase Agreement. The sale is expected to be completed by July 1998. The
principal assets of the oil transportation segment include the All American
Pipeline System, a heated crude oil pipeline system consisting primarily of a
1,225 mile mainline segment extending from Gaviota, California, to McCamey,
Texas and related terminal and storage facilities, and a crude oil gathering
system located in California's San Joaquin Valley. The net loss on the expected
sale totaled $34.7 million or $.22 per share, and was comprised of net income
from operations in the first quarter of 1998 of $8.2 million or $.05 per share,
the loss on the sale of the net assets of $49.3 million or $.31 per share and
the estimated net income from operations from April 1, 1998 to closing of sale
totaling $6.4 million or $.04 per share. This transaction has been accounted for
as a sale of discontinued operations, and accordingly, the accompanying
financial information has been restated where required. For further information,
refer to the note to the financial statements, Discontinued Operations.
SEGMENT INFORMATION
- -------------------
Segment operating income of $389.1 million increased 24.2% from $313.2
million in the 1997 period. Segment operating margin was 12.6% of sales,
compared to 9.8% in the 1997 period. Segment results in 1998 included the gain
of $61.1 million on the sale of the Calhoun, Georgia latex processing facility.
INDUSTRY SEGMENTS
- -----------------
Tires
- -----
Sales of $2.66 billion decreased 3.4% from $2.75 billion in the 1997
period. Operating income of $279.2 million increased 4.6% from $266.9 million in
the 1997 period. Operating margin rose to 10.5% of sales from 9.7%.
Revenues decreased despite higher unit sales in North America and Latin
America, due primarily to the adverse impact of the strengthening of the U.S.
dollar versus currencies in Europe and Asia and worldwide competitive pricing
pressures.
-9-
<PAGE> 11
The following table presents changes in tire unit sales:
% Increase in Company Tire Unit Sales - First Quarter
-----------------------------------------------------
1998 vs. 1997
-------------
U.S. 2.2%
International (0.6)
Worldwide 0.8
Operating income increased due to lower raw material costs, improved
productivity and the effects of cost containment measures. Operating income in
the 1998 quarter was reduced by the previously mentioned $10.4 million of costs
associated with the transition to seven-day operations at certain North American
production facilities.
GENERAL PRODUCTS
- ----------------
Sales of $435.3 million decreased 4.6% from $456.5 million in the 1997
period. Operating income was $109.9 million in the 1998 quarter, compared to
$46.3 million in the 1997 period. Operating margin rose to 25.2% of sales from
10.1%. The 1998 quarter included the gain of $61.1 million on the sale of the
Calhoun, Georgia latex processing facility.
Sales in engineered products decreased due primarily to lower volume
resulting from the sale of the Jackson, Ohio automotive trim plant in the third
quarter of 1997 and lower sales of certain industrial rubber products. Operating
income increased due to improved margins resulting from the effects of cost
containment measures.
Sales in chemical products decreased due to reduced unit volume and lower
selling prices. Operating income increased due to the gain on the sale of the
Calhoun facility.
GEOGRAPHIC SEGMENTS
- -------------------
In the United States, sales of $1.67 billion decreased 1.1% from $1.69
billion in the 1997 period. Operating income of $207.1 million increased 63.8%
from $126.4 million in 1997. Operating margin rose to 12.4% of sales from 7.5%.
The 1998 quarter included the gain of $61.1 million on the sale of the Calhoun,
Georgia facility.
Sales in the U.S. decreased despite higher tire unit sales, due primarily
to competitive tire pricing pressures and reduced volume in engineered and
chemical products. Operating income increased due to lower raw material costs,
improved productivity, and the effects of cost containment measures. Operating
income in the 1998 quarter was reduced by the previously mentioned $10.4 million
of costs associated with the transition to seven-day operations at certain North
American production facilities.
-10-
<PAGE> 12
In Europe, sales of $733.6 million decreased 4.0% from $764.5 million in
the 1997 period. Operating income of $90.1 million increased 13.2% from $79.6
million in the 1997 period. Operating margin rose to 12.3% of sales from 10.4%.
Sales in Europe decreased due to the effects of currency translation and
lower tire unit sales. Operating income increased due primarily to improved mix,
productivity improvements, lower raw material costs and the effects of cost
containment measures.
In Latin America, sales of $375.7 million decreased 1.9% from $383.1
million in the 1997 period. Operating income of $68.5 million increased slightly
from $68.3 million in the 1997 period. Operating margin rose to 18.2% of sales
from 17.8%.
Despite higher tire unit volume, sales in Latin America decreased due to
the effects of currency translations and competitive pricing pressures, which
also adversely affected operating income. Operating income increased slightly
due primarily to lower raw material costs and the effects of cost containment
measures.
In Asia, sales of $137.5 million decreased 31.0% from $199.3 million in the
1997 period. Operating income of $9.7 million decreased 64.6% from $27.5 million
in the 1997 period. Operating margin decreased to 7.1% of sales from 13.8%.
Sales and operating income in Asia decreased due primarily to the effects
of currency translation and lower tire unit sales resulting from severe economic
turmoil and competitive pricing conditions. Sales and operating income in Asia
in future periods may be adversely affected by continued unfavorable economic
conditions in the region.
Sales and operating income of the Asia segment reflect the results of the
Company's majority-owned tire business and other operations in the region,
principally the engineered products and natural rubber businesses. In addition,
the Company owns a 50% interest in South Pacific Tyres Ltd. (SPT), the largest
tire manufacturer, marketer and exporter in Australia and New Zealand. Results
of operations of SPT are not reported in segment results, and are reflected in
the Company's consolidated statement of income using the equity method.
The following table presents the sales and operating income of the
Company's Asian segment together with 100% of the sales and operating income of
SPT:
-11-
<PAGE> 13
(In millions) Three Months Ended March 31,
<TABLE>
<CAPTION>
Asia
Segment SPT Total
------- --- -----
<S> <C> <C> <C> <C>
Net Sales:
1998 $137.5 $161.5 $299.0
1997 199.3 183.6 382.9
Operating Income:
1998 $ 9.7 $ 9.2 $ 18.9
1997 27.5 14.8 42.3
</TABLE>
In Canada, sales of $177.8 million increased 2.2% from $174.1 million in
the 1997 period. Operating income was $13.7 million, compared to $11.4 million
in the 1997 period. Operating margin rose to 7.7% of sales from 6.5%. Sales and
operating income reflected higher unit sales volume of tires and engineered
products and the effects of cost containment measures.
LIQUIDITY AND CAPITAL RESOURCES
-------------------------------
Net cash used in operating activities was $352.0 million during the first
three months of 1998, as reported on the Consolidated Statement of Cash Flows.
Working capital requirements increased for accounts receivable, inventories and
payables.
Net cash used in investing activities was $104.5 million during the first
three months of 1998. Capital expenditures were $118.3 million, primarily for
plant modernizations and expansions and new tire molds.
Three Months Ended
March 31,
(In millions) 1998 1997
- ------------- ---- ----
Capital Expenditures $118.3 $ 93.7
Depreciation $124.4 $111.8
Other investing activities included the Company's acquisition of the
remaining minority shares of the tire and engineered products manufacturing and
distribution subsidiary in South Africa and the sale of the Calhoun, Georgia
latex processing facility. The decrease in Minority equity in subsidiaries on
the Consolidated Balance Sheet was due primarily to the South Africa stock
acquisition. The decrease in Property, plant and equipment and Other assets on
the Consolidated Balance Sheet was due primarily to the reclassification of the
net assets of the oil transportation segment to Net assets held for sale.
Net cash provided by financing activities was $359.1 million during the
first three months of 1998, which was used primarily to support the previously
mentioned working capital requirements.
-12-
<PAGE> 14
(Dollars in millions) 3/31/98 12/31/97 3/31/97
-------- -------- -------
Consolidated Debt $1,716.7 $1,351.2 $1,725.2
Debt/Debt+Equity 32.7% 28.5% 33.9%
During the first quarter of 1998, the Company issued domestic long term
fixed rate debt totaling $250 million.
Substantial short term and long term credit sources are available to the
Company globally under normal commercial practices. At March 31, 1998 the
Company had short term uncommitted credit arrangements totaling $1.6 billion, of
which $.8 billion were unused. The Company also had available long term credit
arrangements at March 31, 1998 totaling $2.2 billion, of which $1.2 billion were
unused.
Funds generated by operations, together with funds available under existing
credit arrangements, are expected to exceed the Company's currently anticipated
funding requirements.
The Company utilizes financial instruments in managing interest rate and
currency exchange risks. Refer to the section entitled "Quantitative and
Qualitative Disclosures About Market Risk".
FORWARD-LOOKING INFORMATION - SAFE HARBOR STATEMENT
---------------------------------------------------
Certain information set forth herein (other than historical data and
information) may constitute forward-looking statements regarding events and
trends which may affect the Company's future operating results and financial
position. The words "estimate," "expect," "intend" and "project," as well as
other words or expressions of similar meaning, are intended to identify
forward-looking statements. Readers are cautioned not to place undue reliance on
forward-looking statements, which speak only as of the date of this quarterly
report. Such statements are based on current expectations, are inherently
uncertain, are subject to risks and should be viewed with caution. Actual
results and experience may differ materially from the forward-looking statements
as a result of many factors, including: changes in economic conditions in the
various markets served by the Company's operations; increased competitive
activity; fluctuations in the prices paid for raw materials and energy; changes
in the monetary policies of various countries where the Company has significant
operations; and other unanticipated events and conditions. It is not possible to
foresee or identify all such factors. The Company makes no commitment to update
any forward-looking statement, or to disclose any facts, events or circumstances
after the date hereof that may affect the accuracy of any forward-looking
statement.
-13-
<PAGE> 15
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
----------------------------------------------------------
The Company actively manages its fixed and floating rate debt mix, within
defined limitations, using refinancings and unleveraged interest rate swaps. The
Company enters into fixed and floating interest rate swaps to alter its exposure
to the impact of changing interest rates. At March 31, 1998 the interest rate on
58% of the Company's debt was fixed by either the nature of the obligation or
through the interest rate contracts. At March 31, 1998 the fair value of the
contracts amounted to a $.5 million payable. The Company estimates that a 10%
change in market interest rates would have changed the fair value of the
contracts to a $1.9 million payable at that date.
Contracts in place and related weighted average interest rates follow:
(Dollars in millions) Fixed Rate
Contracts
-----------
March 31, 1998:
- Notional principal amount $100.0
- Pay fixed rate 6.17%
- Receive variable LIBOR 5.74
- Pay variable LIBOR -
- Receive fixed rate -
- Average years to maturity 2.9
- Carrying amount: (liability) (0.1)
First quarter - Rate paid 6.92%
- Rate received 5.66
A fixed rate contract with notional principal amount of $50 million matured
in the first quarter of 1998.
At March 31, 1998 the fair value of the Company's fixed rate debt amounted
to a liability of $828.7 million, compared to its carrying amount of $809.5
million. The Company estimates that a 100 basis point decrease in market
interest rates would have changed the fair value of the Company's fixed rate
debt to a liability of $882.8 million at that date.
The sensitivity to changes in interest rates of the Company's fixed rate
debt and interest rate contracts was determined with a valuation model based
upon net modified duration analysis.
In order to reduce the impact of changes in foreign exchange rates on
consolidated results of operations and future foreign currency denominated cash
flows, the Company was a party to various forward exchange contracts at March
31, 1998. These contracts reduce exposure to currency movements affecting
existing foreign currency denominated assets, liabilities and firm commitments.
The contract maturities match the maturities
-14-
<PAGE> 16
of the currency positions. At March 31, 1998 the fair value of contracts to buy
currency amounted to $354.8 million, and the fair value of contracts to sell
currency amounted to $353.9 million. The Company estimates that a 10% change in
foreign exchange rates would have changed the combined fair value of the
contracts by $14.3 million at that date. Changes in the fair value of forward
exchange contracts are substantially offset by changes in the fair value of the
hedged positions.
The sensitivity to changes in exchange rates of the Company's foreign
currency positions was determined using current market pricing models.
-15-
<PAGE> 17
PART II. OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
- ------- ---------------------------------------------------
The Annual Meeting of Shareholders of Registrant was held on April 6,
1998 (the "Annual Meeting"). Proxies for the Annual Meeting were solicited
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Act"), there was no solicitation in opposition to the three nominees of
the Board of Directors listed in the Proxy Statement of Registrant, dated
February 26, 1998, for the Annual Meeting (the "Proxy Statement"), filed with
the Securities and Exchange Commission, and said three nominees were elected.
The following matters were acted upon by the shareholders of Registrant
at the Annual Meeting, at which 138,459,282 shares of the Common Stock, without
par value, of Registrant (the "Common Stock", the only class of voting
securities of Registrant outstanding), or approximately 88.293 percent of the
156,817,956 shares of Common Stock outstanding and entitled to vote at the
Annual Meeting, were present in person or by proxies:
1. ELECTION OF DIRECTORS. Three persons were nominated by the Board of
Directors of Registrant for election as directors of Registrant. John G. Breen,
William E. Butler and George H. Schofield were nominated as Class II directors,
each to hold office for a three year term expiring at the 2001 Annual Meeting of
Shareholders and until his successor shall have been duly elected and qualified.
Each nominee was an incumbent director. No other person was nominated. Each
nominee was elected. The votes cast for, or withheld or abstained with respect
to, each nominee were as follows:
<TABLE>
<CAPTION>
Shares of Common Shares of Common Stock
Name of Director Stock Voted For Withheld or Abstained
---------------- --------------- ---------------------
<S> <C> <C>
John G. Breen 132,310,090 6,149,192
William E. Butler 136,717,919 1,741,363
George H. Schofield 136,738,777 1,720,505
</TABLE>
The eight directors whose terms of office continue after the Annual Meeting are:
(A) Samir G. Gibara, William J. Hudson, Jr., William C. Turner and Martin D.
Walker, whose terms expire in 1999; and (B) Thomas H. Cruikshank, Katherine G.
Farley, Steven A. Minter and Agnar Pytte, whose terms expire in 2000.
-16-
<PAGE> 18
2. RATIFICATION OF APPOINTMENT OF INDEPENDENT ACCOUNTANTS. A resolution
proposed by the Board of Directors of Registrant that the shareholders ratify
the action of the Board of Directors in selecting and appointing Price
Waterhouse LLP as independent accountants for Registrant for the year ending
December 31, 1998 was submitted to, and voted upon by, the shareholders of
Registrant. There were 137,698,197 shares of Common Stock voted in favor of, and
306,651 shares of Common Stock voted against, said resolution. The holders of
454,434 shares of Common Stock abstained. There were no "broker non-votes". The
resolution, having received the affirmative vote of the holders of a majority of
the shares of Common Stock outstanding and entitled to vote at the Annual
Meeting, was adopted and the appointment of Price Waterhouse LLP as the
independent accountants for Registrant for 1998 was ratified by the
shareholders.
ITEM 5. OTHER INFORMATION
- ------- -----------------
(A) ISSUANCE OF $150,000,000 OF 7% NOTES DUE 2028. On March 16, 1998,
Registrant issued $150,000,000 in principal amount of its 7% Notes due 2028 (the
"7% Notes") pursuant to that certain Indenture, dated March 15, 1996 (the
"Indenture"), between Registrant and The Chase Manhattan Bank (formerly Chemical
Bank). The net proceeds to Registrant from the sale of the 7% Notes were
$147,514,500, before deducting expenses payable by Registrant which are
estimated to be approximately $259,225. The net proceeds will be used for
general corporate purposes. The terms and conditions of the 7% Notes are set
forth in the Indenture and the supplement thereto evidenced by that certain
Officers' Certificate, dated March 16, 1998, and in the form of Global Note
attached as Annex A to said Officers' Certificate, all of which are filed as
Exhibit 4.1 to this Quarterly Report on Form 10-Q and are hereby incorporated by
reference herein and made an integral part hereof.
(B) ISSUANCE OF $100,000,000 OF 6 3/8% NOTES DUE 2008. On March 20,
1998, Registrant issued $100,000,000 in principal amount of its 6 3/8% Notes due
2008 (the "6 3/8% Notes") pursuant to the Indenture (as defined above). The net
proceeds to Registrant from the sale of the 6 3/8% Notes were $98,918,000,
before deducting expenses payable by Registrant which are estimated to be
approximately $181,000. The net proceeds will be used for general corporate
purposes. The terms and conditions of the 6 3/8% Notes are set forth in the
Indenture and the supplement thereto evidenced by that certain Officers'
Certificate, dated March 20, 1998, and in the form of Global Note attached to
said Officers' Certificate as Annex A, all of which are filed as Exhibit 4.1 to
this Quarterly Report on Form 10-Q and are hereby incorporated by reference
herein and made an integral part hereof.
(C) AGREEMENT TO SELL CELERON COMPANIES. On March 21, 1998, Wingfoot
Ventures Seven Inc., a wholly-owned subsidiary of Registrant ("WVS"), entered
into a Stock Purchase Agreement with Plains Resources Inc and Plains All
American Inc., a wholly-owned subsidiary of PRI ("Plains All American"),
whereunder WVS agreed to sell to Plains All American all of the capital stock of
All American Pipeline Company ("AAPL"), Celeron Gathering Corporation ("CGC")
and Celeron Trading & Transportation Company ("CT&T"). AAPL, CGC and CT&T (the
"Celeron Companies") are wholly-owned subsidiaries of WVS. WVS will receive cash
proceeds in respect of the sale aggregating approximately $422 million, subject
to certain adjustments as provided in the Stock Purchase Agreement.
-17-
<PAGE> 19
AAPL owns and operates a heated crude oil pipeline system which extends
1,233 miles from two locations on the central California coast to western Texas,
and related terminal and oil storage facilities. CGC owns and operates a 43 mile
crude oil gathering system in the San Joaquin Valley in California. CT&T engages
in crude oil trading activities.
The transaction is expected to be completed in the third quarter after
various regulatory approvals have been obtained. The Celeron Companies, which
constitute substantially all of Registrant's Oil Transportation Segment, are
reported as discontinued operations at Part I of this Quarterly Report on Form
10-Q. As set forth at Part I of this Quarterly Report on Form 10-Q, in the first
quarter of 1998 Registrant recorded a $34.7 million after tax loss on the
expected sale transaction.
Reference is made to the financial statements set forth at Part I of this
Quarterly Report on Form 10-Q and to the Note thereto captioned "Discontinued
Operations", set forth at page 5 of this Quarterly Report. Reference is also
made to Exhibits 99.1 through 99.5, inclusive, to this Quarterly Report on Form
10-Q, wherein unaudited Restated Consolidated Statements of Income for
Registrant and Subsidiaries in respect of each year in the five year period
ended December 31, 1997 and each fiscal quarter during 1997 and unaudited
Restated Segment Information for Registrant and Subsidiaries are set forth, in
each case restated to reflect the Celeron Companies (and, therefore,
Registrant's Oil Transportation business segment) as discontinued operations.
(D) RESTATED FINANCIAL DATA SCHEDULES. In the first quarter of 1998,
Registrant reported certain discontinued operations (see paragraph (C) of this
Item 5). Effective December 31, 1997, Registrant adopted Statement of Financial
Accounting Standards No. 128 - "Earnings Per Share" ("SFAS No. 128"). Accounting
Principles Board Opinion No. 30 - "Reporting the Results of Operations -
Reporting the Effects of Disposal of a Segment of a Business, and Extraordinary,
Unusual and Infrequently Occurring Events and Transactions" and SFAS No. 128
require the restatement of certain income statement information, including per
share data, for each year in the three year period ended December 31, 1997, and
for each of the three quarterly interim periods in each year of the two year
period ended December 31, 1997. In accordance with Item 601(c) of Regulation
S-K, Registrant is filing as Exhibits 27.2 through 27.10, inclusive, Restated
Financial Data Schedules for the fiscal years ended December 31, 1997, December
31, 1996 and December 31, 1995 and for the quarterly periods ended March 31,
1997, June 30, 1997, September 30, 1997, March 31, 1996, June 30, 1996 and
September 30, 1996. The Restated Financial Data Schedules filed as Exhibits 27.2
through 27.10, inclusive, to this Quarterly Report on Form 10-Q conform to the
restated prior-period earnings per share data presented in Registrant's Annual
Report on Form 10-K for the year ended December 31, 1997 and in this Quarterly
Report on Form 10-Q.
- 18 -
<PAGE> 20
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
- ------- ---------------------------------
(a) EXHIBITS. See the Index of Exhibits at page E-1, which is by
specific reference incorporated into and made a part of this Quarterly Report on
Form 10-Q.
(b) REPORTS ON FORM 8-K. No Current Report on Form 8-K was filed by The
Goodyear Tire & Rubber Company during the quarter ended March 31, 1998.
S I G N A T U R E S
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
THE GOODYEAR TIRE & RUBBER COMPANY
(Registrant)
Date: April 16, 1998 By /s/ John W Richardson
-----------------------------------
John W Richardson, Vice President
(Signing on behalf of Registrant as a duly
authorized officer of Registrant and signing as
the Principal Accounting Officer of Registrant.)
-19-
<PAGE> 21
THE GOODYEAR TIRE & RUBBER COMPANY
Quarterly Report on Form 10-Q
For the Quarter Ended March 31, 1998
<TABLE>
<CAPTION>
INDEX OF EXHIBITS (1)
EXHIBIT EXHIBIT
------- -------
Table Item No. * Description of Exhibit Number Page
---------------- ---------------------- ------ ----
<S> <C> <C>
3 ARTICLES OF INCORPORATION AND BY-LAWS
-------------------------------------
(a) Certificate of Amended Articles of
Incorporation of Registrant, dated December 20,
1954, and Certificate of Amendment to Amended
Articles of Incorporation of Registrant, dated
April 6, 1993, and Certificate of Amendment to
Amended Articles of Incorporation of Registrant
dated June 4, 1996, three documents comprising
Registrant's Articles of Incorporation as
amended (incorporated by reference, filed with
the Securities and Exchange Commission as
Exhibit 3.1 to Registrant's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1996).
(b) Code of Regulations of The Goodyear Tire &
Rubber Company, adopted November 22, 1955, as
amended April 5, 1965, April 7, 1980, April 6,
1981 and April 13, 1987 (incorporated by
reference, filed as Exhibit 4.1(B) to
Registrant's Registration Statement on Form
S-3, File No. 333-1995).
4 INSTRUMENTS DEFINING
THE RIGHTS OF SECURITY HOLDERS,
INCLUDING INDENTURES
-------------------------------
(a) Conformed copy of Rights Agreement, dated
as of June 4, 1996, between Registrant and
First Chicago Trust Company of New York, rights
Agent (incorporated by reference, filed with
the Securities and Exchange Commission as
Exhibit 1 to Registrant's Registration
Statement on Form 8-A dated June 11, 1996 and
as Exhibit 4(a) to Registrant's Current Report
on Form 8-K dated June 4, 1996, File No.
1-1927).
</TABLE>
- -------------------------
*Pursuant to Item 601 of Registration S-K.
E-1
<PAGE> 22
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
------- -------
TABLE ITEM NO. * DESCRIPTION OF EXHIBIT NUMBER PAGE
---------------- ---------------------- ------ ----
<S> <C> <C>
4 (b) Specimen nondenominational Certificate for
shares of the Common Stock, Without Par Value,
of Registrant; First Chicago Trust Company of
New York as transfer agent and registrar
(incorporated by reference, filed with the
Securities and Exchange Commission as Exhibit
4.3 to Registrant's Quarterly Report on Form
10-Q for the quarter ended September 30, 1996,
File No. 1-1927).
(c) Conformed copy of Revolving Credit Facility
Agreement, dated as of July 15, 1994, among
Registrant, the Lenders named therein and
Chemical Bank, as Agent (incorporated by
reference, filed with the Securities and
Exchange Commission as Exhibit A to
Registrant's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1994, File No.
1-1927).
(d) Conformed copy of Replacement and
Restatement Agreement, dated as of July 15,
1996, among Registrant, the Lenders named
therein and The Chase Manhattan Bank (formerly
Chemical Bank), as Agent (incorporated by
reference, filed with the Securities and
Exchange Commission as Exhibit 4.5 to
Registrant's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1996, File 1-1927).
(e) Conformed copy of First Amendment to
Replacement and Restatement Agreement, dated as
of March 31, 1997, among Registrant, the
Lenders named therein and The Chase Manhattan
Bank (formerly Chemical Bank), as Agent
(incorporated by reference, filed as Exhibit
4.5 to Registrant's Quarterly Report on Form
10-Q for the quarter ended June 30, 1997, File
1-1927).
(f) Form of Indenture, dated as of 4.1 X-4.1-1
March 15, 1996, between Registrant and Chemical
Bank (now The Chase Manhattan Bank), as Trustee,
as supplemented on December 3, 1996, March 11,
1998 and March 17, 1998.
</TABLE>
- -----------------------
*Pursuant to Item 601 of Regulation S-K.
E-2
<PAGE> 23
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
------- -------
TABLE ITEM NO. * DESCRIPTION OF EXHIBIT NUMBER PAGE
---------------- ---------------------- ------ ----
<S> <C> <C>
4 No instrument defining the rights of holders of
long-term debt which relates to securities
having an aggregate principal amount in excess
of 10% of the consolidated assets of Registrant
and its subsidiaries was entered into during the
quarter ended March 31, 1998. In accordance with
paragraph (iii) to Part 4 of Item 601 of
Regulation S-K, agreements and instruments
defining the rights of holders of certain items of
long term debt entered into during the quarter
ended March 31, 1998 which relate to securities
having an aggregate principal amount less than
10% of the consolidated assets of Registrant and
its Subsidiaries are not filed herewith. The
Registrant hereby agrees to furnish a copy of
any such agreements or instruments to the
Securities and Exchange Commission upon request.
12 STATEMENT RE COMPUTATION
OF RATIOS
------------------------
Statement setting forth the computation of 12 X-12-1
Ratio of Earnings to Fixed Charges.
27 FINANCIAL DATA SCHEDULE
-----------------------
(a) Financial Data Schedule (for quarter ended 27.1 X-27.1-1
March 31, 1998)
(b) Restated Financial Data Schedule (for year
ended December 31, 1997) 27.2 X-27.2-1
(c) Restated Financial Data Schedule (for year
ended December 31, 1996) 27.3 X-27.3-1
(d) Restated Financial Data Schedule (for year
ended December 31, 1995) 27.4 X-27.4-1
(e) Restated Financial Data Schedule (for quarter
ended March 31, 1997) 27.5 X-27.5-1
(f) Restated Financial Data Schedule (for quarter
ended June 30, 1997) 27.6 X-27.6-1
</TABLE>
E-3
<PAGE> 24
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
------- -------
TABLE ITEM NO. * DESCRIPTION OF EXHIBIT NUMBER PAGE
---------------- ---------------------- ------ ----
<S> <C> <C>
27 (g) Restated Financial Data Schedule (for quarter
ended September 30, 1997) 27.7 X-27.7-1
(h) Restated Financial Data Schedule (for quarter
ended March 31, 1996) 27.8 X-27.8-1
(i) Restated Financial Data Schedule (for quarter
ended June 30, 1996) 27.9 X-27.9-1
(j) Restated Financial Data Schedule (for quarter
ended September 30, 1996) 27.10 X-27.10-1
99 ADDITIONAL EXHIBITS
-------------------
(a) Restated Consolidated Statement of Income 99.1 X-99.1.1
and Retained Earnings of Registrant and
Subsidiaries (unaudited) for the (i) three
months ended March 31, 1997; (ii) six months
ended June 30, 1997; (iii) nine months ended
September 30, 1997; and (iv) twelve months ended
December 31, 1997.
(b) Restated Consolidated Statement of Income of Registrant and 99.2 X-99.2-1
Subsidiaries (unaudited) for the three months ended March 31,
1997, June 30, 1997, September 30, 1997 and December 31, 1997,
respectively.
(c) Restated Consolidated Statement of Income of Registrant and 99.3 X-99.3-1
Subsidiaries (unaudited) for the twelve months ended December 31,
1997, December 31, 1996, December 31, 1995, December 31, 1994 and
December 31, 1993, respectively.
(d) Restated Segment Information for Registrant and Subsidiaries 99.4 X-99.4-1
(unaudited) for the: (i) three months ended March 31, 1997; (ii)
six months ended June 30, 1997; (iii) nine months ended September
30, 1997; and (iv) twelve months ended December 31, 1997.
(e) Restated Segment Information for Registrant and Subsidiaries 99.5 X-99.5-1
(unaudited) for the three months ended March 31, 1997, June 30,
1997, September 30, 1997 and December 31, 1997, respectively.
</TABLE>
- ----------------------
*Pursuant to Item 601 of Regulation S-K.
E-4
<PAGE> 1
Exhibit 4.1
================================================================================
INDENTURE
Between
THE GOODYEAR TIRE & RUBBER COMPANY
and
CHEMICAL BANK,
as Trustee
--------
Dated as of March 15, 1996
--------
DEBT SECURITIES
================================================================================
X-4.1-1
<PAGE> 2
THE GOODYEAR TIRE & RUBBER COMPANY
Certain Sections of This Indenture Relating to
----------------------------------------------
Sections 310 Through 318, Inclusive, of the
-------------------------------------------
Trust Indenture Act of 1939.
----------------------------
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
310 (a)(1) 6.09
(a)(2) 6.09
(a)(3) Not Applicable
(a)(4) Note Applicable
(b) 6.08
6.11
311 (a) (b)
6.13 6.13
312 (a) 7.01
7.02(a)
(b) 7.02(b)
(c) 7.02(c)
313 (a) 7.03(a)
(b) 7.03(a)
(c) 7.03(a)
(d) 7.03(b)
314 (a) 7.04
(a)(4) 1.01
10.05
(b) Not Applicable
(c)(1) 1.02
(c)(2) 1.02
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.02
315 (a) 6.01
(b) 6.02
(c) 6.01
(d) 6.01
(e) 5.14
316 (a) 1.01
(a)(1)(A) 5.02
5.12
(a)(2)(B) 5.13
(a)(2) Not Applicable
(b) 5.08
(c) 1.04(c)
1
X-4.1-2
<PAGE> 3
317 (a)(1) 5.03
(a)(2) 5.04
(b) 10.04
318 (a) 1.07
NOTE:This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
X-4.1-3
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
<S> <C> <C>
SECTION 1.01. Definitions ..................................................................................1
SECTION 1.02. Compliance Certificates and Opinions .........................................................7
SECTION 1.03. Form of Documents Delivered to Trustee .......................................................8
SECTION 1.04. Acts of Holders; Record Dates ................................................................8
SECTION 1.05. Notices, Etc., to Trustee and Company .......................................................10
SECTION 1.06. Notice to Holders; Waiver ...................................................................10
SECTION 1.07. Conflict with Trust Indenture Act ...........................................................11
SECTION 1.08. Effect of Headings and Table of Contents ....................................................11
SECTION 1.09. Successors and Assigns ......................................................................11
SECTION 1.10. Separability Clause .........................................................................11
SECTION 1.11. Benefits of Indenture .......................................................................11
SECTION 1.12. Governing Law ...............................................................................11
SECTION 1.13. Legal Holidays ..............................................................................11
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally .............................................................................11
SECTION 2.02. Form of Face of Security ....................................................................12
SECTION 2.03. Form of Reverse of Security .................................................................13
SECTION 2.04. Form of Legend for Global Securities ........................................................16
SECTION 2.05. Form of Trustee's Certificate of Authentication .............................................16
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount of Securities Issuable; Issuable in Series ...........................................17
SECTION 3.02. Denominations ...............................................................................19
SECTION 3.03. Execution, Authentication, Delivery and Dating ..............................................19
SECTION 3.04. Temporary Securities ........................................................................20
SECTION 3.05. Registration, Registration of Transfer and Exchange .........................................20
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities ............................................22
SECTION 3.07. Payment of Interest; Interest Rights Preserved ..............................................22
SECTION 3.08. Persons Deemed Owners .......................................................................23
SECTION 3.09. Cancellation ................................................................................23
SECTION 3.10. Computation of Interest .....................................................................24
</TABLE>
(i)
X-4.1-4
<PAGE> 5
<TABLE>
<CAPTION>
ARTICLE FOUR
SATISFACTION AND DISCHARGE
<S> <C> <C>
SECTION 4.01. Satisfaction and Discharge of Indenture .....................................................24
SECTION 4.02. Application of Trust Money ..................................................................25
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default ...........................................................................25
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment ..........................................26
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee .............................26
SECTION 5.04. Trustee May File Proofs of Claim ............................................................27
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities .................................27
SECTION 5.06. Application of Money Collected ..............................................................28
SECTION 5.07. Limitation on Suits .........................................................................28
SECTION 5.08 Unconditional Right of Holders to Receive Principal,
Premium and Interest ...................................................................28
SECTION 5.09. Restoration of Rights and Remedies ..........................................................29
SECTION 5.10. Rights and Remedies Cumulative ..............................................................29
SECTION 5.11. Delay or Omission Not Waiver ................................................................29
SECTION 5.12. Control by Holders ..........................................................................29
SECTION 5.13. Waiver of Past Defaults .....................................................................29
SECTION 5.14. Undertaking for Costs .......................................................................29
SECTION 5.15. Waiver of Stay or Extension Laws ............................................................30
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities .........................................................30
SECTION 6.02. Notice of Defaults ..........................................................................30
SECTION 6.03. Certain Rights of Trustee ...................................................................30
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities ......................................31
SECTION 6.05. May Hold Securities .........................................................................31
SECTION 6.06. Money Held in Trust .........................................................................31
SECTION 6.07. Compensation and Reimbursement ..............................................................31
SECTION 6.08. Disqualification; Conflicting Interests .....................................................32
SECTION 6.09. Corporate Trustee Required; Eligibility .....................................................32
SECTION 6.10. Resignation and Removal; Appointment of Successor ...........................................32
SECTION 6.11. Acceptance of Appointment by Successor ......................................................33
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business .................................34
SECTION 6.13. Preferential Collection of Claims Against Company ...........................................34
SECTION 6.14. Appointment of Authenticating Agent .........................................................34
</TABLE>
(ii)
X-4.1-5
<PAGE> 6
<TABLE>
<CAPTION>
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
<S> <C> <C>
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders ...................................36
SECTION 7.02. Preservation of Information; Communications to Holders ......................................36
SECTION 7.03. Reports by Trustee ..........................................................................36
SECTION 7.04. Reports by Company ..........................................................................36
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, etc., Only on Certain Terms ........................................37
SECTION 8.02. Successor Corporation to be Substituted .....................................................37
SECTION 8.03. Opinion of Counsel to be Given Trustee ......................................................37
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders ..........................................38
SECTION 9.02. Supplemental Indentures With Consent of Holders .............................................38
SECTION 9.03. Execution of Supplemental Indentures ........................................................39
SECTION 9.04. Effect of Supplemental Indentures ...........................................................39
SECTION 9.05. Conformity with Trust Indenture Act .........................................................39
SECTION 9.06. Reference in Securities to Supplemental Indentures ..........................................40
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest .......................................................40
SECTION 10.02. Maintenance of Office or Agency ..................................................................40
SECTION 10.03. Vacancy in the Office of Trustee .................................................................40
SECTION 10.04. Money for Securities Payments to be Held in Trust ................................................41
SECTION 10.05. Limitation on Secured Indebtedness ...............................................................41
SECTION 10.06. Limitation on Sale and Lease-back Transactions ...................................................43
SECTION 10.07. Existence ........................................................................................43
SECTION 10.08. Statement by Officers as to Default. .............................................................43
SECTION 10.09. Waiver of Certain Covenants ......................................................................43
ARTICLE ELEVEN
</TABLE>
(iii)
X-4.1-6
<PAGE> 7
<TABLE>
<CAPTION>
REDEMPTION OF SECURITIES
<S> <C> <C>
SECTION 11.01. Applicability of Article .........................................................................44
SECTION 11.02. Election to Redeem; Notice to Trustee ............................................................44
SECTION 11.03. Selection by Trustee of Securities to be Redeemed ................................................44
SECTION 11.04. Notice of Redemption .............................................................................44
SECTION 11.05. Deposit of Redemption Price ......................................................................45
SECTION 11.06. Securities Payable on Redemption Date ............................................................45
SECTION 11.07. Securities Redeemed in Part ......................................................................45
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article .........................................................................46
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities ............................................46
SECTION 12.03. Redemption of Securities for Sinking Fund ........................................................46
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. Applicability of Article; Company's Option To Effect
Defeasance or Covenant Defeasance ...........................................................46
SECTION 13.02. Defeasance and Discharge .........................................................................47
SECTION 13.03. Covenant Defeasance ..............................................................................47
SECTION 13.04. Conditions to Defeasance or Covenant Defeasance ..................................................47
SECTION 13.05. Deposited Money and U.S. Government Obligations to be
Held in Trust ...............................................................................49
SECTION 13.06. Reinstatement ....................................................................................49
ARTICLE FOURTEEN
IMMUNITY OF SHAREHOLDERS, OFFICERS
AND DIRECTORS
SECTION 14.01. Exemption from Individual Liability ..............................................................50
Testimonium .....................................................................................................50
Signatures and Seals ............................................................................................50
Acknowledgements ................................................................................................51
</TABLE>
NOTE:This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
(iv)
X-4.1-7
<PAGE> 8
INDENTURE dated as of March 15, 1996, between THE GOODYEAR TIRE &
RUBBER COMPANY, a corporation duly organized and existing under the laws of the
State of Ohio (herein called the "Company"), having its principal offices at
1144 East Market Street, Akron, Ohio 44316-0001, and CHEMICAL BANK, a banking
corporation duly organized and existing under the laws of the State of New York,
as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation;
(d) Unless the context otherwise requires, any reference to an
"Article" or "Section" refers to an Article or a Section, as the case
may be, of this Indenture; and
(e) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
1
X-4.1-8
<PAGE> 9
"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 specified 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.
"Attributable Debt" means, as to any particular lease under
which any Person is at the time liable, at any date as of which the amount
thereof is to be determined, the total net amount of rent required to be paid by
such Person under such lease during the remaining term thereof (excluding
renewals at the option of lessee), discounted from the respective due dates
thereof at a rate per annum equal to the lesser of (i) prevailing market
interest rate, at the date as of which the amount of such discounted net rent is
being or to be determined, on United States Treasury obligations having a
maturity substantially equal to the average term of all payments due under such
lease, plus 3%, or (ii) weighted average rate per annum interest rate borne by
Outstanding Securities at the date as of which the amount of such discounted net
rent is being or to be determined. The net amount of rent required to be paid
under any such lease for any such period shall be the amount of the rent payable
by the lessee, reduced by the amount of any income from any sublease under such
lease, with respect to such period, excluding amounts required to be paid on
account of maintenance and repairs, insurance, taxes, assessments, water rates
and similar charges and contingent rents such as those based on sales. In the
case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such 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.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the Board of Directors of
the Company or any duly authorized committee of that board or any directors or
officers of the Company to whom such board of directors shall have delegated its
authority to act hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President and by its Treasurer, its Comptroller, an
Assistant Comptroller, an Assistant Treasurer, its Secretary or an Assistant
Secretary and delivered to the Trustee.
"Company Sale" has the meaning specified in Section 8.01.
2
X-4.1-9
<PAGE> 10
"Consolidated Assets of the Company and Subsidiaries" means,
as at the date as of which any determination is being or to be made, the total
consolidated assets of the Company and Subsidiaries as shown on the consolidated
balance sheet of the Company for the then most recently ended fiscal quarter of
the Company (as such consolidated balance sheet is filed with the Securities and
Exchange Commission pursuant to the Exchange Act).
"Consolidated Subsidiary" means, as at the date as of which
any determination is being or to be made, each Subsidiary included in the
Company's consolidated statement of income and consolidated balance sheet for
the then most recently completed fiscal quarter of the Company.
"Corporate Trust Office" means the office of the Trustee in
the Borough of Manhattan, the City of New York, at which at any particular time
its corporate trust business shall be principally administered.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Defaulted Interest" has the meaning specified in Section
3.07.
"Defeasible Covenant" has the meaning specified in Section
13.03.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary for such series by the Company
pursuant to Section 3.01, which Person shall be a clearing agency registered
under the Exchange Act; and, if at any time there is more than one such Person,
"Depositary", as used with respect to the Securities of any series, shall mean
the Depositary with respect to the Securities of such series.
"Dollars", "dollars", "U.S.$", or "$" shall mean lawful money
of the United States of America.
"Dollar Equivalent" shall mean, in respect of any amount of
any currency, and as at the date and time as of which any determination thereof
is being or to be made, that number of Dollars into which such amount of
currency may be converted on such date, which shall be equal to the product of
(a) the principal amount of such currency (expressed in standard units of such
currency) multiplied by (b) the prevailing spot rate for exchanging such
currency into Dollars as quoted on page "Spot" of the Reuter System (or on a
comparable page of the Telerate System or the Bloomberg Business Information
System) as at such date and time as of which the determination of Dollar
Equivalent is being or to be made, or, if no rate is quoted in respect of such
currency on the Reuter System (or the Telerate System or the Bloomberg Business
Information System, as applicable) display designated page "Spot" (or such
comparable page, as applicable) as at such date and time, the prevailing spot
rate for exchanging such currency into Dollars in the New York City foreign
currency exchange market (or, if a more substantial and liquid market for the
exchange of such currency, the London currency exchange market or the currency
exchange market in the principal financial center of such currency) as at such
date and time.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934 and
any successor act thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section
1.04(c).
"Funded Debt" of any Person means, as at any date as of which
any determination thereof is being or to be made, any Indebtedness of such
Person that by its terms (i) will mature more than one year after the date it
was issued, incurred, assumed or guaranteed by such Person, or (ii) will mature
one year or less after the date it was issued, incurred, assumed or guaranteed
which at such date of determination may be renewed or extended at the election
or option of such Person so as to mature more than one year after such date of
determination.
3
X-4.1-10
<PAGE> 11
"GAAP" means generally accepted accounting principles in the
United States.
"Global Security" means a Security bearing the legend
prescribed in Section 2.04 (or such legend as may be specified as contemplated
by Section 3.01 for such Securities) evidencing all or part of a series of
Securities, authenticated and delivered to the Depositary for such series or its
nominee and registered in the name of such Depositary or nominee.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indebtedness" of any Person means, as at the date as of which
any determination thereof is being or is to be made and in respect of any
Person, (without duplication and excluding in the case of the Company and the
Restricted Subsidiaries intercorporate debt solely between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries) all (i) indebtedness
of such Person for borrowed money, (ii) obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (iii) obligations of such
Person to pay the deferred purchase price of property or services under
conditional sales or other similar agreements which provide for the deferral of
the payment of the purchase price for a period in excess of one year following
the date of such Person's receipt and acceptance of the complete delivery of
such property and/or services, and (iv) obligations of such Person as lessee
under leases which obligations are, in accordance with GAAP, recorded as capital
lease obligations. Whenever any determination of the amount of Indebtedness is
required or permitted to be, or is otherwise being or to be, made for any
purpose under this Indenture, the amount of any such Indebtedness denominated in
any currency other than Dollars shall be calculated at the Dollar Equivalent of
such Indebtedness as at the date as of which such determination of the amount of
Indebtedness is being or to be made, except that, if all or any portion of the
principal amount of any such Indebtedness which is payable in a currency other
than Dollars is hedged into Dollars, the principal amount of such hedged
Indebtedness, or the hedged portion thereof, shall be deemed to be equal to the
amount of Dollars specified in, or determined pursuant to, the applicable
hedging contract.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.01.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Lien" means, with respect to an asset of any Person, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
in or on such asset, other than for (i) taxes or any other obligation or
liability imposed under any law or regulation of the United States of America,
any State thereof or any political subdivision, department, agency, bureau or
instrumentality of any thereof, or (ii) mechanics', materialmen's, repairmen's
or other similar liens incurred in the ordinary course of business, or (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital
lease or title retention agreement relating to such asset.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind
specified in Section 5.01(d).
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, the Chief Financial
Officer or the Comptroller of the Company and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company and delivered
to the Trustee. One of the officers
4
X-4.1-11
<PAGE> 12
signing an Officers' Certificate given pursuant to Section 10.08 shall be the
principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.02.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(c) Securities as to which defeasance has been effected
pursuant to Section 13.02; and
(d) Securities which have been paid pursuant to Section 3.06
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that, in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder, (i) the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof pursuant to Section
5.02, (ii) the principal amount of a Security denominated in one or more foreign
currencies or currency units shall be the Dollar Equivalent, determined in the
manner provided as contemplated by Section 3.01 on the date of original issuance
of such Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar Equivalent on the date of original issuance of
such Security of the amount determined as provided in (i) above) of such
Security and (iii) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
5
X-4.1-12
<PAGE> 13
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of and any premium
and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 3.01.
"Responsible Officer", when used with respect to the Trustee,
means any officer in the Corporate Trust Office of the Trustee or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Property" means any manufacturing plant or
equipment owned by the Company or a Restricted Subsidiary which is used
primarily to manufacture tires or other automotive products and is located
within any one or more of the States of the United States of America, but shall
not include (i) tire retreading plants, facilities or equipment, (ii)
manufacturing plants, facilities or equipment which, in the opinion of the Board
of Directors, are not of material importance to the total business conducted by
the Company and its Subsidiaries, taken as a whole, (iii) plants, facilities or
equipment which, in the opinion of the Board of Directors, are used primarily
for transportation, marketing or warehousing, or (iv) any gas or oil pipeline or
related assets.
"Restricted Subsidiary" means a Subsidiary engaged primarily
in manufacturing tires or other automotive products (i) substantially all the
assets of which are located within, and substantially all the operations of
which are conducted within, any one or more of the States of the United States
of America, and (ii) which has assets in excess of 5% of the total amount of
Consolidated Assets of the Company and Subsidiaries, as shown on the
consolidated balance sheet for the then most recently ended fiscal quarter of
the Company; except that such term shall not include any Subsidiary the
principal business of which is financing accounts receivable, leasing, owning
and developing real estate, engaging in transportation activities, or engaging
in distribution and related activities.
"Secured Indebtedness" means Indebtedness of the Company or
any Restricted Subsidiary secured by a Lien on Restricted Property, but
excluding Indebtedness which is either (i) outstanding on March 15, 1996 and is
secured by one or more Liens existing on that date, including any renewals or
extensions thereof, or (ii) not Funded Debt.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.05.
6
X-4.1-13
<PAGE> 14
"Shareholders' Equity" means, at any date as of which any
determination thereof is being or to be made, the sum of the stated capital,
capital surplus and retained earnings of the Company and its Subsidiaries at
such date, determined on a consolidated basis in accordance with GAAP.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means a Person (other than an individual or a
government or any agency or political subdivision thereof) more than 50% of the
outstanding voting interest of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries, or the Company, in accordance with GAAP, otherwise
consolidates as a Subsidiary of the Company.
"Successor Company" has the meaning specified in Section 8.01.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in
Section 13.04.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president"; but shall not
include any assistant vice president.
"Yield to Maturity", when used with respect to any Original
Issue Discount Security, means the yield to maturity, if any, set forth in the
prospectus supplement relating thereto, which shall be equal to the yield to
maturity, if any, set forth on the face of such Security.
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
7
X-4.1-14
<PAGE> 15
(b) 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;
(c) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any
case where several matters are required to be certified by, or covered by, an
opinion of any specified Person, such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or covered by
only one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be
based insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.04. ACTS OF HOLDERS; RECORD DATES. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
Without limiting the generality of the foregoing, a Holder,
including a Depositary that is a Holder of a Global Security, may make, give or
take, by a proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other Act provided or
permitted in this Indenture to be made, given or taken by Holders, and a
Depositary that is a Holder of a Global Security may provide its proxy or
proxies to the beneficial owners of interest in any such Global Security.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and
8
X-4.1-15
<PAGE> 16
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other Act, or to vote on any action, authorized or permitted by this Indenture
to be given, made or taken by Holders of Securities of such series, provided
that the Company may not set a record date for, and the provisions of this
paragraph shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If not set
by the Company prior to the first solicitation of a Holder of Securities of such
series made by any Person in respect of any such action, or, in the case of any
such vote, prior to such vote, the record date for any such action or vote shall
be the 30th day (or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 7.01) prior to such first
solicitation or vote, as the case may be. With regard to any record date for
action to be taken by the Holders of one or more series of Securities, only the
Holders of Securities of such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action. If
any record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be canceled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of any Outstanding Securities of the relevant series on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Trustee in writing and to each Holder of Securities of the relevant
series in the manner set forth in Section 1.06.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any series entitled to
join in the giving or making of (i) any Notice of Default, (ii) any declaration
of acceleration referred to in Section 5.02, (iii) any request to institute
proceedings referred to in Section 5.07(b) or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.06.
With respect to any record date set pursuant to this Section,
the party hereto which set such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities of the relevant series in the manner
set forth in Section 1.06, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with
9
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<PAGE> 17
respect to any record date set pursuant to this Section, the party hereto which
set such record date shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject to
its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th
day after the applicable record date.
(d) The ownership of Securities shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the principal amount of
such Security or by one or more duly appointed agents, each of which may do so
pursuant to such appointment with regard to all or any different part of such
principal amount.
SECTION 1.05. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, or dispatched for delivery (prepaid by the sender) by an
overnight courier service with written evidence of delivery required,
to the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument, marked "Attention:
Vice President and General Counsel", or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.06. NOTICE TO HOLDERS; WAIVER. Where this Indenture
provides for any notice to Holders, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder entitled to receive such notice, at
his address as it appears in the Security Register, not later than the latest
date (if any), and not earlier than the earliest date (if any), prescribed for
the giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
indenture Act that is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
10
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<PAGE> 18
SECTION 1.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.09. SUCCESSORS AND ASSIGNS. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 1.10. SEPARABILITY CLAUSE. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 1.11. BENEFITS OF INDENTURE. Nothing in this Indenture
or in the Securities, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder and the Holders, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. GOVERNING LAW. This Indenture and the Securities
shall be governed by and construed in accordance with the laws of the State of
New York.
SECTION 1.13. LEGAL HOLIDAYS. In any case where any Interest
Payment Date, Redemption Date or Stated Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Securities (other than a provision of the Securities
of any series which specifically states that such provision shall apply in lieu
of this Section)) payment of interest or principal (and premium, if any) need
not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity; provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. FORMS GENERALLY. The Securities of each series
shall be in substantially the form set forth in this Article, or in such other
form as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistent herewith, be determined by the officers executing such Securities, as
evidenced by their execution of the Securities. If the form of Securities of any
series is established by action taken pursuant to a Board Resolution, a copy of
an appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth at Section 2.05.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officer or officers of the Company executing such
Securities, as evidenced by their execution of such Securities.
SECTION 2.02. FORM OF FACE OF SECURITY.
11
X-4.1-18
<PAGE> 19
[Insert any legend required by the Internal Revenue Code and
the regulations thereunder.]
THE GOODYEAR TIRE & RUBBER COMPANY
----------------------------
No. $__________
The Goodyear Tire & Rubber Company, a corporation duly
organized and existing under the laws of the State of Ohio (herein called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_____________________, or registered assigns, the principal sum of
_______________ Dollars on __________, ___ [if the Security is to bear interest
prior to Maturity, insert-, and to pay interest thereon from __________ or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semiannually on _________ and _________ in each year, commencing
________ , at the rate of ___% per annum, until the principal hereof is paid or
made available for payment] [if applicable, insert-, and (to the extent that the
payment of such interest shall be legally enforceable) at the rate of ___% per
annum on any overdue principal and premium and on any overdue installment of
interest]. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the ________ or ________ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity,
insert-- The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in such coin or
currency of [the United States of America] [insert other currency, if
applicable] as at the time of payment is legal tender for payment of public and
private debts [if applicable, insert-; provided, however, that at the option of
the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register].
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
12
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<PAGE> 20
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated: THE GOODYEAR TIRE & RUBBER COMPANY
By
-----------------------------------------
[Seal]
Attest:
- --------------------------------------------
SECTION 2.03. FORM OF REVERSE OF SECURITY.
----------------------------
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of March 15, 1996 (herein called the
"Indenture"), between the Company and Chemical Bank, as Trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof[, limited in aggregate principal amount to $ ].
[If applicable, insert--The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, [if
applicable, insert--(1) on __________ in any year commencing with the year ____
and ending with the year ____ through operation of the sinking fund for this
series at a Redemption Price equal to 100% of the principal amount, and (2)] at
any time on or after __________, 19__], as a whole or in part, at the election
of the Company, at the following Redemption Prices (expressed as percentages of
the principal amount): if redeemed [on or before ________, ___%, and if
redeemed] during the 12-month period beginning __________ of the years
indicated,
13
X-4.1-20
<PAGE> 21
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption [if applicable, insert-- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert--the Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, (1) on
________ in any year commencing with the year ____ and ending with the year
________ through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at
any time [on or after ________], as a whole or in part, at the election of the
Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below: If redeemed during the 12-month period beginning
- -------- of the years indicated,
Redemption Price Redemption Price for
for Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
- ---- ------------------- -------------------
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Date referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
________ redeem any Securities of this series as contemplated by [Clause (2) of]
the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than ___% per annum.]
[The sinking fund for this series provides for the redemption
on ________ in each year beginning with the year _____ and ending with the year
of ____ [not less than $ ________ ("mandatory sinking fund") and not more than]
$ ________ aggregate principal amount of Securities of this series. Securities
of this series acquired or redeemed by the Company otherwise than through
[mandatory] sinking fund payments may be credited against subsequent [mandatory]
sinking fund payments otherwise required to be made [if applicable, insert--in
the inverse order in which they become due].]
[If the Security is subject to redemption. insert--In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert--This Security is not subject to
redemption prior to maturity.]
14
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<PAGE> 22
[If applicable, insert--The Indenture contains provisions for
defeasance at any time of [(a)] (the entire indebtedness evidenced by this
Security] [and (b)] [certain restrictive covenants,] [in each case] upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.]
[If the Security is not an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture. Such amount shall be equal to [--insert formula for determining
the amount]. Upon payment [if applicable, insert--(i)] of the amount of
principal so declared due and payable [if applicable, insert--and (ii) of
interest on any overdue principal and overdue interest (in each case to the
extent that the payment of such interest shall be legally enforceable)], all of
the Company's obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of all series to be affected (voting as a
single class). The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registerable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of and any premium and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $ __________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
15
X-4.1-22
<PAGE> 23
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
SECTION 2.04. FORM OF LEGEND FOR GLOBAL SECURITY. Unless
otherwise specified as contemplated by Section 3.01 for the Securities evidenced
thereby, any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED,
WHETHER IN WHOLE OR IN PART, TO, OR REGISTERED OR EXCHANGED FOR SECURITIES
REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A
NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN
EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY
SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES."
SECTION 2.05. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
CHEMICAL BANK, as Trustee
by
-----------------------------------
Authorized Officer
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<PAGE> 24
ARTICLE THREE
THE SECURITIES
SECTION 3.01. AMOUNT OF SECURITIES ISSUABLE; ISSUABLE IN SERIES. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is FIVE HUNDRED MILLION DOLLARS ($500,000,000).
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and, subject to
Section 3.03, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 and except for
any Securities which, pursuant to Section 3.03, are deemed never to have
been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities
of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which any such interest shall
be payable and the Regular Record Date for any interest payable on any
Interest Payment Date;
(6) the place or places where the principal of and any premium
and interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which any Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the period
or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $l,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) if the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any Securities
of the series shall be other than the currency of the United States of
America, such currency, currencies or currency units and the manner of
determining the equivalent thereof in the currency of the United States of
America for purposes of the definition of "Outstanding" in Section 1.01;
17
X-4.1-24
<PAGE> 25
(11) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined by reference
to an index or formula, the manner in which such amounts shall be
determined;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company
or a Holder thereof, in one or more currencies or currency units other
than that or those in which the Securities are stated to be payable, the
currency, currencies or currency units in which payment of the principal
of and any premium and interest on Securities of such series as to which
such election is made shall be payable, and the periods within which and
the term and conditions upon which such election is to be made;
(13) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.02;
(14) the application, if any, of either or both of Section
13.02 and Section 13.03 to the Securities of the series;
(15) whether the Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such
case, the Depositary or Depositaries for such Global Security or Global
Securities and any circumstances other than those set forth in Section
3.05 in which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name of, a
Person other than the Depositary for such Global Security or a nominee
thereof and in which any such transfer may be registered;
(16) if other than as specified in Section 5.01, the Events of
Default applicable with respect to the Securities of the series;
(17) if other than as specified in Section 5.02, the Events of
Default the occurrence of which would permit the declaration of the
acceleration of maturity pursuant to Section 5.02;
(18) any addition to or change in the covenants set forth in
Article Ten which applies to Securities of the series, and any other
covenant or warranty included for the benefit of Securities of the series
in addition to (and not inconsistent with) those included in this
Indenture for the benefit of Securities of all series, or any other
covenant or warranty included for the benefit of Securities of the series
in lieu of any covenant or warranty included in this Indenture for the
benefit of Securities of all series, or any provision that any covenant or
warranty included in this Indenture for the benefit of Securities of all
series shall not be for the benefit of Securities of such series, or any
combination of such covenants, warranties or provisions; and
(19) any other term of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.01(e)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to Section
3.03) set forth, or determined in the manner provided, in the Officers'
Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of a series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
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<PAGE> 26
SECTION 3.02. DENOMINATIONS. The Securities of each series
shall be issuable in registered form without coupons in such denominations as
shall be specified as contemplated by Section 3.01. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such
series shall be issuable in denominations of $1,000 and any integral multiple
thereof.
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.01 and 3.01, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.01, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 3.01, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original issuance
of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
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<PAGE> 27
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature of an Authorized Officer, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.09, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
SECTION 3.04. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series may be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
SECTION 3.05. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE. The Company shall cause to the kept at the Corporate Trust Office a
register (the register maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
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No service charge shall be made to a Holder for any
registration of transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.07 not
involving any transfer.
The Company shall not be required (a) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
11.03 and ending at the close of business on the day of such mailing or (b) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
If the Securities of any series (or any series and specified
tenor) are to be redeemed in part, the Company shall not be required (i) to
issue, register the transfer of or exchange Securities of that series (or that
series and tenor, as the case may be) during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 11.03 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall
apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall constitute a
single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered in
the name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (A) such Depositary (i) has notified the Company that it
is unwilling or unable to continue as Depositary for such Global Security or
(ii) has ceased to be a clearing agency registered under the Exchange Act, (B)
there shall have occurred and be continuing an Event of Default with respect to
such Global Security or (C) there shall exist such circumstances, if any, in
addition to or in lieu of the foregoing as have been specified for this purpose
as contemplated by Section 3.01.
(3) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion thereof shall
be registered in such name as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global Security
or any portion thereof, whether pursuant to this Section, Section 3.04, 3.06,
9.06 or 11.07 or otherwise, shall be authenticated and delivered in the form of,
and shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
Upon the occurrence in respect of any Global Security of any
series of any one or more of the conditions specified in clause (2) of the
preceding paragraph or such other conditions as may be specified as contemplated
by Section 3.01 for such series, such Global Security may be exchanged for
Securities registered in the names of, and the transfer of such Global Security
may be registered to, such Persons (including Persons other than the Depositary
with respect to such series and its nominees) as such Depositary shall direct.
Notwithstanding any other provision of this Indenture, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any Global Security shall also be a Global Security and
shall bear the legend specified
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<PAGE> 29
in Section 2.04 except for any Security authenticated and delivered in exchange
for, or upon registration of transfer of, a Global Security pursuant to the
preceding sentence.
SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES. If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (b) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise provided as contemplated by Section 3.01 with respect to any
series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the
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<PAGE> 30
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange or which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. PERSONS DEEMED OWNERS. Prior to due presentment
of a Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to Section 3.07)
any interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 3.09. CANCELLATION. All Securities surrendered for
payment, redemption, registration of transfer or exchange or for credit against
any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation any securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be disposed of as
directed by a Company Order, which shall be effected consistent with such
Company Order in accordance with the standard procedures of the Trustee. The
Trustee shall deliver a certificate of each such disposal to the Company.
SECTION 3.10. COMPUTATION OF INTEREST. Except as otherwise
specified as contemplated by Section 3.01 for Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture shall upon Company Request cease to be of further effect (except as to
any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture when:
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<PAGE> 31
(a) either:
(i) all Securities theretofore authenticated and
delivered (other than (x) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.06 and (y) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 10.04) have been delivered to the Trustee
for cancellation; or
(ii) all such Securities not theretofore delivered to
the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their
Stated Maturity within one year, or
(C) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (A), (B) or (C) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.07, the
obligations of the Trustee to any Authenticating Agent under Section 6.14 and,
if money shall have been deposited with the Trustee pursuant to subclause (ii)
of clause (a) of this Section, the obligations of the Trustee under Section 4.02
and the last paragraph of Section 10.04 shall survive.
SECTION 4.02. APPLICATION OF TRUST MONEY. Subject to the
provisions of the last paragraph of Section 10.04, all money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and any premium and interest for whose
payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 5.01. EVENTS OF DEFAULT. "Event of Default", wherever
used herein with respect to Securities of any particular series, means any one
of the following events (whatever the reason for such Event of
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<PAGE> 32
Default and whether it shall be voluntary or involuntary or be 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):
(a) default in the due and punctual payment of any installment
of interest upon any of the Securities of that series as and when the
same shall become due and payable and continuance of such default for a
period of 30 days; or
(b) default in the due and punctual payment of the principal
of (or premium, if any, on) any of the Securities of that series at
Maturity; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company set forth in the Securities of that series or in this Indenture
(other than those set forth exclusively in the terms of Securities of
any series other than that series, or those which have been included in
this Indenture for the benefit of Securities of any series other than
that series) continued for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the Trustee,
or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Securities of that series at the time
Outstanding, a written notice specifying such failure and requiring the
same to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(e) the entry of a decree or order by a court having
jurisdiction in the premises granting relief in respect of the Company
in an involuntary case under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law adjudging
the Company as being bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable
Federal or state Law, or appointing a receiver, liquidator, custodian,
assignee, trustee, sequestrator (or other similar official) of the
Company, or of substantially all of its properties, or ordering the
winding up or liquidation of the affairs of the Company, and the
continuance of any such decree or order unstayed and in effect for a
period of 90 consecutive days; or
(f) the institution by the Company of proceedings to be
adjudicated as being bankrupt or insolvent, or the consent by the
Company to the institution of bankruptcy or insolvency proceedings
against it, or the filing by the Company of a petition or answer or
consent seeking reorganization or relief under any applicable Federal
or state bankruptcy, insolvency, reorganization or other similar law,
or the consent by the Company to the filing of any such petition or to
the appointment of a receiver, liquidator, custodian, assignee,
trustee, sequestrator (or other similar official) of the Company, or of
any substantial part of its properties, or the making by the Company of
an assignment for the benefit of creditors, or the admission by the
Company in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(g) any other Event of Default provided with respect to
Securities of that series.
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT. If one or more of the Events of Default specified in Section 5.01
shall have occurred and be continuing with respect to any particular series of
Securities, then in each and every such case, unless the principal of all the
Securities of that series shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Securities of that series then Outstanding hereunder, by notice in writing to
the Company (and to the Trustee if given by Holders), may declare the principal
amount (or, if the Securities of that series are Original Issue Discount
Securities, such amount of principal as may be specified by the terms of that
series) of all the Securities of that series to be due and payable immediately,
and upon any such declaration the same shall become and shall be immediately due
and payable.
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Notwithstanding the foregoing, at any time after such a
declaration of acceleration with respect to Securities of any series has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in the principal amount of the Outstanding Securities of that series,
by written notice to the Company and the Trustee, may rescind and annul such
declarations and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor
in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and other amounts due to Trustee under
Section 6.07;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of (and premium, if
any) and accrued interest on the Securities of that series which have
become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE. The Company covenants that if:
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon written demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and other amounts due to Trustee under
Section 6.07.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of any
judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized:
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such 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 counsel, and any other
amounts due the Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may vote on behalf of the Holders for the
election of a trustee in bankruptcy or similar official and may be a member of a
creditors' or other similar committee.
SECTION 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.06. APPLICATION OF MONEY COLLECTED. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or any premium or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
(a) First: To the payment of all amounts due the Trustee under
Section 6.07; and
(b) Second: To the payment of the amounts then due and unpaid
for principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any premium
and interest, respectively.
SECTION 5.07. LIMITATION ON SUITS. No Holder of any Security
of any series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless
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(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(b) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST. Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of and any premium and
(subject to Section 3.07) any interest on such Security on the Stated Maturity
or Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 5.09. RESTORATION OF RIGHTS AND REMEDIES. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11. DELAY OR OMISSION NOT WAIVER. No delay or
omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or By-Law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
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SECTION 5.12. CONTROL BY HOLDERS. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Securities of such series, provided that: (a)
such direction shall not be in conflict with any rule of law or with this
Indenture, and (b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. WAIVER OF PAST DEFAULTS. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default: (a) in the payment of the principal of or any premium or interest on
any Security of such series, or (b) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14. UNDERTAKING FOR COSTS. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require 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, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit in the manner and to the extent provided in the Trust
Indenture Act, having due regard to the merits and good faith of the claims or
defenses made by such party litigant, but the provisions of this Section shall
not apply to any suit instituted by the Company, to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Security on
or after the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date); provided that neither
this Section nor the Trust Indenture Act shall be deemed to authorize any court
to require such an undertaking or to make such an assessment in any suit
instituted by the Company.
SECTION 5.15. WAIVER OF STAY OR EXTENSION LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will 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 covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. CERTAIN DUTIES AND RESPONSIBILITIES. The duties
and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the
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performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it. Whether or not therein expressly so provided,
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.
SECTION 6.02. NOTICE OF DEFAULTS. If a default occurs
hereunder with respect to Securities of any series, the Trustee shall give the
Holders of Securities of such series notice of such default as and to the extent
provided by the Trust Indenture Act; provided, however, that in the case of any
default of the character specified in Section 5.01(d) with respect to Securities
of such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE. Subject to the
provisions of Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be charged with knowledge of any
default or Event of Default with respect to the Securities of any series for
which it is acting as Trustee unless either (1) a Responsible Officer shall
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<PAGE> 38
have actual knowledge of such default or Event of Default or (2) written notice
of such default or Event of Default shall have been given to the Trustee by the
Company or any other obligor on such Securities or by any Holder of such
Securities; and
(i) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion of rights or powers conferred upon it by this Indenture.
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained in this Indenture and in the Securities,
except the Trustee's certificates of authentication, shall be taken as the
statements of the Company, and the Trustee or any Authenticating Agent assumes
no responsibility for their correctness. Neither the Trustee nor the
Authenticating Agent makes any representation as to the validity or sufficiency
of this Indenture or of the Securities. The Trustee or any Authenticating Agent
shall not be accountable for the use or application by the Company of Securities
or the proceeds thereof.
SECTION 6.05. MAY HOLD SECURITIES. The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 6.06. Money Held in Trust. Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 6.07. COMPENSATION AND REIMBURSEMENT. The Company
agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
SECTION 6.08. DISQUALIFICATION; CONFLICTING INTERESTS. If the
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture. To the extent permitted by the Trust
Indenture Act, the Trustee shall not be deemed to have a conflicting interest by
virtue of being a trustee under this Indenture with respect to Securities of
more than one series.
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000 and its Corporate Trust Office is in
the Borough of Manhattan, New York, New York, or, with the written consent of
the Company, the United States or any State or Territory thereof or the District
of Columbia, and subject to supervision or examination by Federal or State
authority.
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If such Person publishes reports of condition at least annually, pursuant to law
or to the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR. (a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged as being bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purposes of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.11,
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<PAGE> 40
any Holder who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all Holders of Securities of such series in the manner provided in Section
1.06. Each notice shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust Office.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every successor Trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one of more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any
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<PAGE> 41
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIM AGAINST
COMPANY. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT. The Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.06, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
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The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.07.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
CHEMICAL BANK, as Trustee
By:
--------------------------------------
As Authenticating Agent
By:
--------------------------------------
Authorized Officer
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<PAGE> 43
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES
OF HOLDERS. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after each Regular
Record Date for each series of Securities at the time outstanding, a
list for each series of Securities, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of
Securities of such series on such Regular Record Date (or on a date to
be determined pursuant to Section 3.01 for any series of Original Issue
Discount Securities); and
(b) at such other times as the Trustee may request in writing,
within 15 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 10 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar, if it is acting as such.
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar, if it is acting as such. The Trustee may destroy any list furnished
to it as provided in Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 7.03. REPORTS BY TRUSTEE. (a) The Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto. To the extent that any such
report is required by the Trust Indenture Act with respect to any 12-month
period, such report shall cover the 12-month period ending May 15 and shall be
transmitted by the next succeeding July 15.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 7.04. REPORTS BY COMPANY. The Company shall file with
the Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
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<PAGE> 44
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS. Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other
Person, or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety to any other Person authorized to acquire and
operate the same (with each of the foregoing transactions referred to as a
"Company Sale"); provided, however, (a) the Person formed by such consolidation
or into which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety (the "Successor Company") shall be a corporation,
shall be organized and validly existing under the laws of the United States of
America, any state thereof or the District of Columbia, and (b) the Company
hereby covenants and agrees that, as a condition precedent to any such
consolidation, merger, sale or conveyance, the due and punctual payment of the
principal of (and premium, if any) and interest, if any, on all of the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Company shall be expressly assumed by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee, by
the Successor Company.
Nothing contained in this Indenture or in any of the
Securities shall prevent the Company from merging into itself any other Person
or acquiring by purchase or otherwise all or any part of the property of any
other Person.
SECTION 8.02. SUCCESSOR CORPORATION TO BE SUBSTITUTED. In case
of any such Company Sale, such Successor Company shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
as the Company. Such Successor Company thereupon may cause to be signed, and may
issue either in its own name or in the name of The Goodyear Tire & Rubber
Company or in the name of any corporation which previously shall have become the
Company in accordance with the provisions of this Article any or all of the
Securities issuable hereunder, which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such Successor
Company instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver, any Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Securities which such Successor Company thereafter shall cause to be signed
and delivered to the Trustee for that purpose; and, thereafter the predecessor
Person shall be relieved of all obligations and covenants under this Indenture
and the Securities. All of the Securities of a particular series so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Securities of such series theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date or the execution hereof.
SECTION 8.03. OPINION OF COUNSEL TO BE GIVEN TRUSTEE. The
Trustee, subject to Sections 6.01 and 6.03, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale or conveyance and
any such assumption complies with the provisions of this Article.
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<PAGE> 45
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS. Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(b) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(c) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series); or
(d) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
(e) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (i) shall neither (A)
apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such
provision nor (B) modify the rights of the Holder of any such Security
with respect to such provision or (ii) shall become effective only when
there is no such Security outstanding; or
(f) to secure the Securities pursuant to the requirements of
Section 10.05; or
(g) to establish the form or terms of Securities of any series
as permitted by Sections 2.01 and 3.01; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11(b); or
(i) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (i) shall not adversely affect the interests of
the Holders of Securities of any series in any material respect.
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in principal amount
of the Outstanding Securities of all series affected by such supplemental
indenture (voting as a single class), by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures
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<PAGE> 46
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of each such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02, or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or interest
thereon is payable or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(b) reduce the percentage in principal amount of the
outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(c) modify any of the provisions of this Section or Section
5.13 or Section 10.09, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, provided, however, that this
clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant
changes in this Section and Section 10.09, or the deletion of this
proviso, in accordance with the requirements of Sections 6.11(b) and
9.01(h).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes, and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
SECTION 9.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
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<PAGE> 47
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 10.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The
Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay or cause to be paid the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture. Interest on Securities shall be
payable without presentment of such Securities and only to the registered
Holders thereof determined as provided in Section 3.07. The Company shall have
the right to require a Holder, in connection with the payment of the principal
of and any premium and interest on a Security, to present at the office or
agency of the Company at which such payment is made a certificate, in such form
as the Company may from time to time prescribe, to enable the Company to
determine its duties and liabilities with respect to any taxes, assessments or
governmental charges which it may be required to deduct or withhold therefrom
under any present or future law of the United States of America or of any state,
county, municipality or taxing or withholding authority therein, and the Company
shall be entitled to determine its duties and liabilities with respect to such
deduction or withholding on the basis of information contained in such
certificate or, if no such certificate shall be so presented, on the basis of
any presumption created by any such law and shall be entitled to act in
accordance with such determination.
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY. So long as any
Securities remain outstanding, the Company will maintain in each Place of
Payment for any series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment, where Securities of
that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 10.03. VACANCY IN THE OFFICE OF TRUSTEE. The Company,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Article Six, a Trustee, so that there shall
at all times be a Trustee hereunder.
SECTION 10.04. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN
TRUST. If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for
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<PAGE> 48
the benefit of the Persons entitled thereto a sum sufficient to pay the
principal and any premium and interest so becoming due until such sum shall be
paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the principal of or
any premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (a) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (b)
during the continuance of any default by the Company (or any other obligor upon
the Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent, and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium or interest has become due and payable
shall be paid to the Company on Company Request or (if then held by the Company)
shall be discharged from such trust, and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 10.05. LIMITATION ON SECURED INDEBTEDNESS. The Company
will not, nor will it permit any Restricted Subsidiary to, issue, assume or
guarantee any Secured Indebtedness if such Secured Indebtedness is secured by a
Lien upon Restricted Property of the Company or a Restricted Subsidiary without
in any such case effectively providing, concurrently with the issuance,
assumption or guarantee of any such Secured Indebtedness, that the Securities of
any series then or thereafter outstanding (together with, if the Company shall
so determine, any other Indebtedness of the Company or such Restricted
Subsidiary ranking equally and ratably with such Securities and then existing or
thereafter created) shall be secured by such Lien equally and ratably with any
and all such Secured Indebtedness; provided, however, that the foregoing shall
not apply to:
(a) any Lien on Restricted Property of any corporation if such
Lien is in existence at the time such corporation becomes a Restricted
Subsidiary;
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<PAGE> 49
(b) any Lien on Restricted Property if such Lien is in
existence at the time of acquisition by the Company or a Restricted
Subsidiary of such Restricted Property;
(c) any Lien on Restricted Property to secure the payment of
all or any part of the purchase price (or other acquisition cost) of
such Restricted Property or to secure any Indebtedness incurred (prior
to, at the time of, or within one year after, the acquisition by the
Company or a Restricted Subsidiary of such Restricted Property) for the
purpose of, or in connection with, financing all or any part of the
purchase price (or other acquisition cost) thereof;
(d) any Lien on property of a corporation if such Lien was in
existence prior to the time such corporation is merged into or
consolidated with the Company or a Restricted Subsidiary or prior to
the time of a sale, lease or other disposition of the properties of a
corporation or firm as an entirety or substantially as an entirety to
the Company or a Restricted Subsidiary;
(e) any Lien securing Secured Indebtedness owing by any
Restricted Subsidiary to the Company or to any other Restricted
Subsidiary;
(f) any Lien on Restricted Property in favor of the United
States of America or any State thereof, or any department, agency or
instrumentality or political subdivision of the United States of
America or any State thereof, or in favor of any other country, or any
political subdivision thereof, to secure partial, progress, advance or
other payments, or performance of any other obligations, pursuant to
any contract or statute or to secure any Indebtedness incurred for the
purpose of financing all or any part of the purchase price or cost of
construction of the Restricted Property subject to such Lien,
including, without limiting the generalities of the foregoing, Liens to
secure pollution control or industrial revenue bonds or other types of
financings;
(g) any Lien on personal property (other than manufacturing
equipment); or
(h) any extension or renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
Secured Indebtedness or any Lien referred to in clauses (a) through
(g), inclusive, of this Section 10.05; provided, however, that the
principal amount of Secured Indebtedness secured by the Lien shall not
exceed the principal amount of Secured Indebtedness so secured at the
time of such extension, renewal or replacement, and that such
extension, renewal or replacement Lien shall be limited to all or a
part of the Restricted Property which secured the Lien so extended,
renewed or replaced (plus improvements on such Restricted Property).
Notwithstanding the foregoing provisions of this Section
10.05, the Company or any one or more Restricted Subsidiaries may issue, assume
or guarantee Secured Indebtedness that would (but for the provision of clauses
(a) through (h), inclusive, of the preceding paragraph) otherwise be subject to
the foregoing restrictions in an aggregate amount which, together with the
aggregate principal amount of all other such Secured Indebtedness of the Company
and Restricted Subsidiaries outstanding at the time of such issuance, assumption
or guarantee (but excluding Secured Indebtedness permitted by clauses (a)
through (h), inclusive, of the preceding paragraph), does not at such time
exceed 15% of the Shareholders' Equity of the Company as at the last day of the
then most recently ended fiscal quarter of the Company, as reported on the
applicable consolidated balance sheet of the Company.
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<PAGE> 50
SECTION 10.06. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
So long as the Securities of any Series are Outstanding, the Company will not,
and will not permit any Restricted Subsidiary to, enter into any arrangement,
directly or indirectly, with any Person providing for the leasing by the Company
or a Restricted Subsidiary of any Restricted Property owned at the date hereof,
which Restricted Property has been or is to be sold or transferred by the
Company or such Restricted Subsidiary to such Person or to any other Person
where funds have been or are to be advanced to such Person subject to a Lien on
the Restricted Property to be leased (a "Sale and Leaseback Transaction"),
unless (a) the Company or such Restricted Subsidiary would be entitled, pursuant
to the provisions of Section 10.05, to incur Secured Indebtedness secured by a
Lien on the Restricted Property to be leased in an amount equal to the
Attributable Debt with respect to such Sale and Leaseback Transaction without
equally and ratably securing the Outstanding Securities, or (b) the Company or
such Restricted Subsidiary shall apply an amount equal to the proceeds from the
sale of such Restricted Property to the retirement, within 120 days of the
effective date of any such Sale and Leaseback Transaction, of Funded Debt of the
Company or such Restricted Subsidiary; provided, however, that this Section
10.06 shall not prevent the Company or any Restricted Subsidiary from: (a)
entering into any Sale and Leaseback Transaction not involving a lease with a
term of more than three years, or (b) entering into any Sale and Leaseback
Transaction in respect of any Restricted Property owned at the date hereof by
the Company or a Restricted Subsidiary, if such Sale and Leaseback Transaction
is entered into within 180 days after the later of the acquisition, completion
of construction or commencement of operation of such Restricted Property.
SECTION 10.07. EXISTENCE. Subject to Article Eight, the
Company will do or cause to be done all things necessary to preserve and keep in
full force and effect its existence, rights (charter and statutory) and
franchises to carry on its business; provided, however, that nothing in this
Section 10.07 shall prevent (a) any consolidation or merger of the Company, or
any conveyance, transfer or lease of its property and assets substantially as an
entirety, permitted by Article Eight, or (b) the liquidation or dissolution of
the Company after such conveyance, transfer or lease of its property and assets
substantially as an entirety permitted by Article Eight.
SECTION 10.08. STATEMENT BY OFFICERS AS TO DEFAULT. The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of Sections 10.01 to 10.07, inclusive, and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 10.09. WAIVER OF CERTAIN COVENANTS. The Company may
omit in any particular instance to comply with any term, provision or condition
set forth in Sections 10.05 to 10.07, inclusive, with respect to the Securities
of any series if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. APPLICABILITY OF ARTICLE. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 3.01 for Securities of any series) in accordance with this Article.
SECTION 11.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The
election of the Company to redeem any Securities shall be evidenced by a Board
Resolution or in any other manner specified, as contemplated by Section 3.01 for
such Securities or series of Securities. In the case of any redemption at the
election of the Company of less than all the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities to
be redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 11.03. SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED. If less than all the Securities of any series are to be redeemed in
accordance with this Article (unless all of the Securities of such series and of
a specified tenor are to be redeemed), the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series, provided
that the unredeemed portion of the principal amount of any Security shall be in
an authorized denomination or a denomination larger than the minimum authorized
denomination for Securities of that series. If less than all of the Securities
of such series and of a specified tenor are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee from the Outstanding Securities of such series
and specified tenor not previously called for redemption in accordance with the
preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 11.04. NOTICE OF REDEMPTION. Notice of redemption
shall be given by first-class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date, to each Holder of Securities to
be redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price and accrued interest, if
any,
(c) if less than all the Outstanding Securities of
any series are to be redeemed, the identification (and, in the
case of partial redemption of any Securities, the principal
amounts) of the particular Securities to be redeemed and, if
less than all the Outstanding Securities of any series
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<PAGE> 52
consisting of a single Security are to be redeemed, the
principal amount of the Security to be redeemed,
(d) that on the Redemption Date the Redemption Price
and accrued interest, if any, will become due and payable upon
each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(e) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and accrued
interest, if any, and
(f) that the redemption is for a sinking fund, if
such is the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and shall
be irrevocable.
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE. Prior to any
Redemption Date, the Company shall 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 as provided in Section 10.04) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date.
SECTION 11.06. SECURITIES PAYABLE ON REDEMPTION DATE. Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 3.01, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, required as such at the close
of business on the relevant Record Dates according to their terms and the
provisions of Section 3.07.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.07. SECURITIES REDEEMED IN PART. Any Security which
is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Security Registrar so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the
Security Registrar shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series and of
like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
45
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<PAGE> 53
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. APPLICABILITY OF ARTICLE. The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 12.02. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES. The Company (1) may deliver outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the term of such Securities or through the application of
permitted optional sinking fund payments pursuant to the term of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the term of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.03. REDEMPTION OF SECURITIES FOR SINKING FUND. Not
less than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 12.02 and will also deliver to the Security Registrar any Securities to
be so delivered. Not less than 60 days before each such sinking fund payment
date, the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.03 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 11.05, 11.06 and 11.07.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE. If pursuant to Section 3.01 provision
is made for either or both of (a) defeasance of the Securities of a series under
Section 13.02, or (b) covenant defeasance of the Securities of a series under
Section 13.03, then the provisions of such Section or Sections, as the case may
be, together with the other provisions of this Article Thirteen, shall be
applicable to the Securities of such series, and the Company may at any time
elect (such election to be evidenced by a Board Resolution), with respect to the
Securities of such series, either to effect such defeasance pursuant to Section
13.02 (if applicable) or to effect such covenant defeasance pursuant to Section
13.03 (if applicable) in respect of the Outstanding Securities of such series
upon compliance with the conditions set forth below in this Article Thirteen.
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<PAGE> 54
SECTION 13.02. DEFEASANCE AND DISCHARGE. Upon the Company's
exercise of the above option applicable to this Section, the Company shall be
deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series on and after the date the conditions
precedent set forth below are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities of
such series and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
outstanding Securities of such series to receive, solely from the trust fund
described in Section 13.05 as more fully set forth in such Section, payments of
the principal of (and premium, if any) and interest on such Securities when such
payments are due, (B) the Company's obligations with respect to such Securities
under Sections 3.04, 3.05, 3.06, 10.02 and 10.04 and such obligations as shall
be ancillary thereto, (C) the rights, powers, trusts, duties, immunities and
other provisions in respect of the Trustee hereunder and (D) this Article
Thirteen. Subject to compliance with this Article Thirteen, the Company may
exercise its option under this Section 13.02 notwithstanding the prior exercise
of its option under Section 13.03 with respect to the Securities of such series.
Following a defeasance, payment of the Securities of such series may not be
accelerated because of the occurrence and continuance of an Event of Default.
SECTION 13.03. COVENANT DEFEASANCE. Upon the Company's
exercise of the above option applicable to this Section and after the date the
conditions set forth below are satisfied, the Company shall be released from its
obligations under Section 10.05 and Section 10.06 and under any additional or
substitute covenant established with respect to the Securities of any series
pursuant to Section 3.01(18) if the Securities of such series have been
determined pursuant to Section 3.01 to be subject to this provision (with
Section 10.05, Section 10.06 and any such additional or substitute covenant
referred to herein as a "Defeasable Covenant"), and the occurrence of an event
specified in Section 5.01(d) with respect to such Defeasable Covenant shall not
be deemed to be an Event of Default with respect to the Outstanding Securities
of such series (hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities of
such series, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Defeasable
Covenant whether directly or indirectly by reason of any reference elsewhere
herein to any such Defeasable Covenant or by reason of any reference in any such
Defeasable Covenant to any other provision herein or in any other document, but
the remainder of this Indenture and such Securities shall be unaffected thereby.
Following a covenant defeasance, payment of the Securities of such series may
not be accelerated because of an Event of Default specified in Section 5.01(e)
or Section 5.01(f) or by reference to Section 5.01(d) and such Defeasable
Covenant.
SECTION 13.04. CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE. The following shall be the conditions precedent to application of
either Section 13.02 or Section 13.03 to the outstanding Securities of such
series:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.09 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to the benefit of the
Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, without
reinvestment, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of (and premium, if any) and interest on the
Outstanding Securities of such series on the Maturity of such
principal, premium, if any, or interest and any mandatory sinking fund
payments or analogous payments applicable to the Outstanding Securities
of such series on the due dates thereof.
Before such a deposit, the Company may make
47
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<PAGE> 55
arrangements satisfactory to the Trustee for the redemption of
Securities at a future date or dates in accordance with Article Eleven,
which shall be given effect in applying the foregoing. For this
purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (y) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America, the payment of which
is unconditionally guaranteed as a full faith and credit obligation by
the United States of America, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act of 1933, as amended) as custodian with
respect to any such U.S. Government Obligation or a specific payment of
principal of or interest on any such U.S. Government Obligation held by
such custodian for the account of the holder of such depository
receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government Obligation
evidenced by such depository receipt.
(2) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing (A) on
the date of such deposit or (B) insofar as subsections 5.01(e) and (f)
are concerned, at any time during the period ending on the 91st day
after the date of such deposit or, if longer, ending on the day
following the expiration of the longest preference period applicable to
the Company in respect of such deposit (it being understood that the
condition in this Clause (B) shall not be deemed satisfied until the
expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) cause
the Trustee for the Securities of such series to have a conflicting
interest as defined in Section 6.08 or for purposes of the Trust
Indenture Act with respect to any securities of the Company or (B)
result in the trust arising from such deposit constituting, unless it
is qualified as, a regulated investment company under the Investment
Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is a party or
by which it is bound.
(5) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national
securities exchange under the Exchange Act to be delisted.
(6) In the case of an election under Section 13.02, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) 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 shall confirm that, the Holders of the outstanding
Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such 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 defeasance
had not occurred.
(7) In the case of an election under Section 13.03, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such 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 covenant defeasance had
not occurred.
48
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<PAGE> 56
(8) Such defeasance or covenant defeasance shall be effected
in compliance with any additional terms, conditions or limitations
which may be imposed on the Company in connection therewith pursuant to
Section 3.01.
(9) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 13.02 or the covenant defeasance under Section 13.03 (as
the case may be) have been complied with.
SECTION 13.05. DEPOSITED MONEY AND U.S. GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the
provisions of the last paragraph of Section 10.04, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee collectively, for purposes of this Section 13.05, the
"Trustee") pursuant to Section 13.04 in respect of the Outstanding Securities of
such series shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this Indenture, to the payment,
either directly or through any Paying Agent (but not including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the money or U.S.
Government Obligations deposited pursuant to Section 13.04 or the principal and
interest received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 13.04
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance, as the case
may be, with respect to such Securities.
SECTION 13.06. REINSTATEMENT. If the Trustee or the Paying
Agent is unable to apply any money in accordance with Section 13.05 by reason of
any order or judgment or any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
obligations under the Securities of such series shall be revived and reinstated
as though no deposit had occurred pursuant to this Article Thirteen until such
time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 13.05; provided, however, that, if the Company makes any
payment of principal of (and premium, if any) or interest on any such Security
following 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 so held in trust by the Trustee or the Paying Agent.
49
X-4.1-56
<PAGE> 57
ARTICLE FOURTEEN
IMMUNITY OF SHAREHOLDERS,
OFFICERS AND DIRECTORS
SECTION 14.01. EXEMPTION FROM INDIVIDUAL LIABILITY. No
recourse under or upon any obligation, covenant or agreement of this Indenture,
or of any Security, or for any claim based thereon or otherwise in respect
thereof, shall be had against any shareholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, either
directly or indirectly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations of the Company,
that no such liability whatever shall attach to, or is or shall be incurred by,
the shareholders, officers or directors, as such, of the Company or of any
successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom, and that any and all such liability, either at common law
or in equity or by constitution or statute is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of the Securities.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
THE GOODYEAR TIRE & RUBBER COMPANY
By /s/Richard W Hauman
-------------------------------------
Name: Richard W Hauman,
Title: Vice President and Treasurer
[Seal]
Attest:
/s/J Boyazis
- --------------------------
CHEMICAL BANK
By: /s/Frank J Grippo
-------------------------------------
Name: Frank J Grippo,
Title: Vice President
[Seal]
Attest:
/s/Glen G McKeever
- --------------------------
50
X-4.1-57
<PAGE> 58
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 3rd day of July , 1996 before me personally came Frank
J. Grippo, to me known, who, being by me duly sworn, did depose and say that he
is a Vice President of Chemical Bank (to be known as The Chase Manhattan Bank
beginning July 15, 1996), a banking corporation described in and which executed
the foregoing instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation; and that he signed
his name thereto by like authority.
/s/ Robert J Stanislaro
-------------------------------------
Notary Public
[Notarial Seal] ROBERT J. STANISLARO
Notary Public, State of New York
No. 43-4968897
Qualified in Richmond County
Certificate Filed in New York County
Commission Expires July 2, 1998
STATE OF OHIO )
) ss.:
COUNTY OF SUMMIT )
On the 18th day of June , 1996 before me personally came
Richard W. Hauman, to me known, who, being by me duly sworn, did depose and say
that he is a Vice President and the Treasurer of The Goodyear Tire & Rubber
Company, the corporation described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
/s/Tina M Diller
-------------------------------------
Notary Public
[Notarial Seal] TINA M. DILLER, Notary Public
Residence - Summit County
State Wide Jurisdiction, Ohio
My Commission Expires January 2, 1999
51
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<PAGE> 59
THE GOODYEAR TIRE & RUBBER COMPANY
OFFICERS' CERTIFICATE
---------------------
Robert W Tieken, Executive Vice President and Chief Financial Officer,
and Richard W Hauman, Vice President and Treasurer, of The Goodyear Tire &
Rubber Company, an Ohio corporation (the "Company", pursuant to Sections 2.01,
3.01 and 3.03 of the Indenture, dated as of March 15, 1996 (the "Indenture"),
between the Company and Chase Manhattan Bank (formerly Chemical Bank), as
Trustee (the "Trustee"), each hereby certifies to the Trustee that:
I. In accordance with resolutions adopted by the Board of Directors of
the Company on January 9, 1996 (the "Board Resolutions") and with resolutions
adopted by the Special Finance Committee of the Board of Directors of the
Company on December 3, 1996 (the "Committee Resolutions"), the Company has
established a series of Securities (as defined in the Indenture) for issuance,
authentication and delivery pursuant to the Indenture. Capitalized terms used
herein shall have the meaning specified in the Indenture unless otherwise
defined herein. Such series of Securities shall have the following terms and
conditions:
1. The series of Securities shall be known as the 6 5/8% Notes
due 2006 (herein the "Notes").
2. The aggregate principal amount of Notes which may be
authenticated and delivered under the Indenture (other than pursuant to
Sections 3.04, 3.05, 3.06, 3.09 or 11.07 of the Indenture and other
than any Notes which, pursuant to Section 3.03 of the Indenture, are
deemed never to have been authenticated and delivered under the
Indenture) is $250,000,000.00.
3. Interest on the Notes shall be paid to The Depository Trust
Company, provided that the Company may pay interest by check mailed to
the address of the Person entitled thereto at such address as shall
appear in the Security Register at the relevant Interest Payment Date.
4. The principal amount of the Notes shall be payable on
December 1, 2006.
5. The interest rate to be borne by the Notes shall be 6 5/8%
per annum, payable from December 9, 1996, commencing on June 1, 1997,
and on each June 1 and December 1 thereafter to and including December
1, 2006 ("Interest Payment Dates") and the Regular Record Date (as
defined in the Indenture) in respect of each Interest Payment Date
shall be the May 15 immediately preceding
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X-4.1-59
<PAGE> 60
a June 1 Interest Payment Date and the November 15 immediately
preceding a December 1 Interest Payment Date. Interest will be computed
as provided in Section 3.10 of the Indenture.
6. The payment of the principal of and any premium and
interest on the Notes shall be payable at the office or agency of the
Company, New York, New York; provided that the Company may, at its
option, make payment of interest by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security
Register at the relevant Interest Payment Date.
7. The Notes are subject to redemption, as a whole at any time
or in part from time to time, at the sole election of the Company, upon
not less than 30 or more than 60 days prior notice by mail to the
Trustee at a Redemption Price equal to the greater of (1) 100% of their
principal amount, and (2) the sum of the present values of the
remaining scheduled payments of principal and interest thereon
discounted to the Redemption Date, on a semiannual basis, at the
Treasury Rate (as defined herein) plus ten basis points (.10%), plus in
each case accrued interest thereon to the Redemption Date calculated on
the basis of a 360-day year consisting of twelve 30-day months. As used
herein and in the Notes, the term: (a) "Treasury Rate" means, with
respect to any Redemption Date, the rate per annum equal to the
semiannual equivalent yield to maturity of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury
Price for such Redemption Date; (b) "Comparable Treasury Issue" means
the United States Treasury security selected by an Independent
Investment Banker as having a maturity comparable to the remaining term
of the Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity
to the remaining term of such Notes; (c) "Independent Investment
Banker" means one of the Reference Treasury Dealers appointed by the
Trustee after consultation with the Company; (d) "Comparable Treasury
Price" means, with respect to any Redemption Date, (A) the average of
the Reference Treasury Dealer Quotations for such Redemption Date,
after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such
Quotations; (e) "Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any Redemption Date, the
average, as determined by the Trustee, 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 Trustee by such
Reference Treasury Dealer at 5:00 p.m. on the third business day
preceding such Redemption Date; and (f) "Reference Treasury Dealer"
means each of Chase Securities Inc., Morgan Stanley & Co. Incorporated
and their respective successors and, at the option of the Company,
additional Primary Treasury Dealers; provided, however,
2
X-4.1-60
<PAGE> 61
that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer. If money sufficient to pay the redemption price of and
accrued interest on all Notes (or the portions thereof) to be redeemed
on the Redemption Date is deposited with the Trustee on or before the
Redemption Date and certain other conditions are satisfied, on and
after such date interest will cease to accrue on such Notes (or such
portions thereof) called for redemption.
8. There shall be no provision obligating the Company to
redeem or purchase the Notes pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof.
9. The Notes are issuable in denominations of $1,000 and any
integral multiple thereof. The Notes will be represented by one or more
global securities (collectively, the "Global Securities") registered in
the name of Cede & Co., a partnership nominee of The Depository Trust
Company, New York, New York (the "Depositary"), or another nominee of
the Depositary. The Global Securities may be transferred, in whole and
not in part, only to the Depositary or another nominee of the
Depositary.
The Depositary will credit, on its book-entry registration and
transfer system, the respective principal amounts of the Notes
represented by such Global Securities to the accounts of institutions
that have accounts with the Depositary or its nominee ("participants").
Ownership of beneficial interests in the Global Securities will be
limited to participants or persons that may hold interests through
participants. Ownership of interest in such Global Securities will be
shown on, and the transfer of those ownership interests will be
effected through, records maintained by the Depositary (with respect to
participants' interests) and such participants (with respect to the
owners of beneficial interests in such Global Securities).
So long as the Depositary, or its nominee, is the registered
holder and owner of the Global Securities, the Depositary or such
nominee, as the case may be, will be considered the sole owner and
holder of the Notes for all purposes under the Indenture.
The Global Securities are exchangeable for Notes in definitive
form of like tenor as such Global Securities in denominations of $1,000
and in any greater amount that is an integral multiple thereof if (i)
the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for the Global Securities or if at any time the
Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (ii) the Company in its
discretion at any time determines not to have all of the Notes
3
X-4.1-61
<PAGE> 62
represented by the Global Securities and notifies the Trustee thereof,
or (iii) an Event of Default has occurred and is continuing with
respect to the Notes.
10. The Notes shall be denominated in, and the principal of
and interest and premium, if any, on the Notes shall be payable only
in, United States Dollars.
11. The Redemption Price in respect of the Notes shall be
determined as follows:
That amount equal to the greater of (1) 100% of the
principal amount, and (2) the sum of the present values of the
remaining scheduled payments of principal and interest thereon
discounted to the date of redemption, on a semiannual basis,
at the Treasury Rate (as defined herein) plus ten basis points
(.10%), plus in each case accrued interest thereon to the
Redemption Date. As used herein, the term: (a) "Treasury Rate"
means, with respect to any Redemption Date, the rate per annum
equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such
Redemption Date; (b) "Comparable Treasury Issue" means the
United States Treasury security selected by an Independent
Investment Banker as having a maturity comparable to the
remaining term of the Notes to be redeemed that would be
utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the
remaining term of such Notes; (c) "Independent Investment
Banker" means one of the Reference Treasury Dealers appointed
by the Trustee after consultation with the Company; (d)
"Comparable Treasury Price" means, with respect to any
Redemption Date, (A) the average of the Reference Treasury
Dealer Quotations for such Redemption Date, after excluding
the highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such
Quotations; (e) "Reference Treasury Dealer Quotations" means,
with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Trustee, 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 Trustee by such Reference
Treasury Dealer at 5:00 p.m. on the third business day
preceding such Redemption Date; and (f) "Reference
4
X-4.1-62
<PAGE> 63
Treasury Dealer" means each of Chase Securities Inc., Morgan
Stanley & Co. Incorporated and their respective successors
and, at the option of the Company, additional Primary
Treasury Dealers; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer.
12. The principal of and any premium or interest on the Notes
shall be payable only in United States Dollars.
13. The entire principal amount of the Notes shall be payable
upon the declaration of acceleration of the Maturity of the Notes
pursuant to Section 5.02 of the Indenture in the manner and with the
effect provided in the Indenture.
14. Sections 13.02 and 13.03 of the Indenture shall apply to
the Notes.
15. The Notes shall be issuable in the form of, and will be
represented by one or more, global securities (collectively, the
"Global Securities") registered in the name of Cede & Co., a
partnership nominee of The Depository Trust Company, New York, New York
(the "Depositary"), or a nominee of the Depositary. The Global
Securities may be transferred, in whole and not in part, only to the
Depositary or another nominee of the Depositary.
The Depositary will credit, on its book-entry registration and
transfer system, the respective principal amounts of the Notes
represented by such Global Securities to the accounts of institutions
that have accounts with the Depositary or its nominee ("participants").
Ownership of beneficial interests in the Global Securities will be
limited to participants or persons that may hold interests through
participants. Ownership of interests in such Global Securities will be
shown on, and the transfer of those ownership interests will be
effected through, records maintained by the Depositary (with respect to
participants' interests) and such participants (with respect to the
owners of beneficial interests in such Global Securities).
So long as the Depositary, or its nominee, is the registered
holder and owner of the Global Securities, the Depositary or such
nominee, as the case may be, will be considered the sole owner and the
holder of the Notes for all purposes under the Indenture.
The Global Securities are exchangeable for Notes in definitive
form of like tenor as such Global Securities in denominations of $1,000
and in any greater amount that is an integral multiple thereof if (i)
the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for the Global Securities or if at any time the
Depositary ceases to be a clearing agency
5
X-4.1-63
<PAGE> 64
registered under the Securities Exchange Act of 1934, as amended, (ii)
the Company in its discretion at any time determines not to have all of
the Notes represented by the Global Securities and notifies the Trustee
thereof, or (iii) an Event of Default has occurred and is continuing
with respect to the Notes.
16. The Events of Default applicable to the Notes are set
forth at clauses (a), (b), (d), (e) and (f) of Sections 5.01 of the
Indenture; clauses (c) and (g) of Section 5.01 of the Indenture shall
not apply to the Notes.
17. Section 5.02 of the Indenture shall apply without
variation, except that clauses (c) and (g) of Section 5.01 of the
Indenture shall not be operative with respect to, and shall not apply
to, the Notes or to Section 5.02 of the Indenture.
18. There shall be no addition to or change in the covenants
set forth in Article Ten of the Indenture which shall be operative in
respect of or apply to the Notes; there shall be no other covenant or
warranty included for the benefit of the Notes in addition to those
included in the Indenture for the benefit of all Securities of all
series issued or to be issued pursuant to the Indenture; there shall be
no other covenant or warranty included for the benefit of the Notes and
there shall be no provision that any covenant or warranty included in
the Indenture for the benefit of all Securities issued pursuant to the
Indenture shall not be for the benefit of the Notes, or any combination
of such covenants, warranties or provisions.
19. There are no other terms of the Notes which are not
otherwise specified for all Securities issued pursuant to the
Indenture.
20. The terms and conditions of the Notes are set forth in the
form of Global Note attached to this certificate as Annex A.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands this
9th day of December, 1996.
/s/Robert W Tieken
------------------------------
Robert W Tieken,
Executive Vice President and
Chief Financial Officer
/s/Richard W Hauman
------------------------------
Richard W Hauman,
Vice President and Treasurer
6
X-4.1-64
<PAGE> 65
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in 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 therein.
ANNEX A
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY MAY NOT BE TRANSFERRED, WHETHER IN WHOLE OR IN PART, TO, OR
REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON
OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE
REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR
IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT
TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
THE GOODYEAR TIRE & RUBBER COMPANY
6 5/8% NOTE DUE 2006
CUSIP 382550 AC 5
No. GNS1-1 $250,000,000.00
THE GOODYEAR TIRE & RUBBER COMPANY, a corporation duly organized
and existing under the laws of the State of Ohio (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to CEDE & Co., or
registered assigns, the principal sum of TWO HUNDRED FIFTY MILLION DOLLARS
($250,000,000.00) on December 1, 2006, and to pay interest thereon from December
9, 1996, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semiannually on June 1 and December 1 in each
year, commencing June 1, 1997, at the rate of 6 5/8% per annum, until the
principal hereof is paid or made available for payment. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Note (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the May 15 or November 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Notes of this series not
less than 10 days prior to such Special Record Date, or be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes of this series may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture.
Payment of the principal of (and premium, if any) and interest on
this Note will be made at the office or agency of the Company maintained for
that purpose in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated: December 9, 1996 THE GOODYEAR TIRE & RUBBER COMPANY
By
----------------------------------------
[Seal] Robert W Tieken, Executive Vice President
Attest:
James Boyazis, Secretary
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
by
----------------------------------
Authorized Officer
X-4.1-65
<PAGE> 66
This Note is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of March 15, 1996 (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank (formerly
Chemical Bank), as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all Indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Note is one of
the series designated on the face hereof as the Company's 6 5/8% Notes due 2006,
limited in aggregate principal amount to $250,000,000.00 (herein referred to as
the "Notes").
The Notes are subject to redemption, as a whole at any time or in
part from time to time, at the sole election of the Company, upon not less than
30 or more than 60 days' notice by mail to the Trustee at a Redemption Price
equal to the greater of (1) 100% of the principal amount, and (2) the sum of the
present values of the remaining scheduled payments of principal and interest
thereon discounted to the Redemption Date, on a semiannual basis, at the
Treasury Rate (as defined herein) plus ten basis points (.10%), plus accrued
interest thereon to the Redemption Date. As used herein, the term: (a) "Treasury
Rate" means, with respect to any Redemption Date, the rate per annum equal to
the semiannual equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as a percentage of
its principal amount) equal to the Comparable Treasury Price for such Redemption
Date; (b) "Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes; (c) "Independent Investment Banker" means one of
the Reference Treasury Dealers appointed by the Trustee after consultation with
the Company; (d) "Comparable Treasury Price" means, with respect to any
Redemption Date, (A) the average of the Reference Treasury Dealer Quotations for
such Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such Quotations; (e)
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any Redemption Date, the average, as determined by the
Trustee, 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 Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such Redemption Date; and (f) "Reference Treasury
Dealer" means each of Chase Securities Inc., Morgan Stanley & Co. Incorporated
and their respective successors and, at the option of the Company, additional
Primary Treasury Dealers; provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities dealer in New York City (a
"Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer. If money sufficient to pay the redemption price of and
accrued interest on all Notes (or the portions thereof) to be redeemed on the
Redemption Date is deposited with the Trustee on or before the Redemption Date
and certain other conditions are satisfied, on and after such date interest will
cease to accrue on such Notes (or such portions thereof) called for redemption.
In the event of redemption of this Note in part only, a new Note or
Notes of like tenor for the unredeemed portion hereof will be issued in the name
of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness evidenced by this Security and (b) certain restrictive
covenants, in each case upon compliance by the Company with certain conditions
set forth therein, which provisions apply to this Note.
If an Event of Default with respect to the Notes of this series shall
occur and be continuing, the principal of the Notes of this Series may be
declared due and payable in the manner and with the effect provided in the
Indenture. "Event of Default" means any one of the events specified at clauses
(a), (b), (d), (e) and (f) of Section 5.01 of the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected (voting as a single class).
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registerable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes of this series will be represented by one or more global
securities (collectively, the "Global Security") registered in the name of The
Depository Trust Company, New York, New York (the "Depositary"), or a nominee of
the Depositary. So long as the Depositary, or its nominee, is the registered
holder and owner of this Global Note, the Depositary or such nominee, as the
case may be, will be considered the sole owner and holder of the Notes for all
purposes under the Indenture. The Global Security may be transferred, in whole
and not in part, only to the Depositary or another nominee of the Depositary.
The Depositary will credit, on its book-entry registration and transfer system,
the respective principal amounts of the Notes represented by such Global
Security to the accounts of institutions that have accounts with the Depositary
or its nominee ("participants"). Ownership of beneficial interests in a Global
Security will be limited to participants or persons that may hold interests
through participants. Ownership of interests in such Global Security will be
shown on, and the transfer of those ownership interests will be effected
through, records maintained by the Depositary (with respect to participants'
interests) and such participants (with respect to the owners of beneficial
interests in such Global Security).
The Global Security are exchangeable for Notes in definitive form of
like tenor as such Global Security in denominations of $1,000 and in any greater
amount that is an integral multiple thereof if (i) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for this Global
Security or if at any time the Depositary ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, (ii) the
Company in its discretion at any time determines not to have all of the Notes of
this series represented by a Global Security and notifies the Trustee thereof,
or (iii) an Event of Default has occurred and is continuing with respect to the
Notes. Any Note that is exchangeable pursuant to the preceding sentence is
exchangeable only for Notes of this series.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
X-4.1-66
<PAGE> 67
THE GOODYEAR TIRE & RUBBER COMPANY
OFFICERS' CERTIFICATE
---------------------
Robert W Tieken, Executive Vice President and Chief Financial Officer,
and Richard W Hauman, Vice President and Treasurer, of The Goodyear Tire &
Rubber Company, an Ohio corporation (the "Company"), pursuant to Sections 2.01,
3.01 and 3.03 of the Indenture, dated as of March 15, 1996 (the "Indenture"),
between the Company and Chase Manhattan Bank (formerly Chemical Bank), as
Trustee (the "Trustee"), each hereby certifies to the Trustee that:
I. In accordance with resolutions adopted by the Board of Directors of
the Company on January 9, 1996, December 3, 1996 and August 5, 1997 (the "Board
Resolutions") and with resolutions adopted by the Special Finance Committee of
the Board of Directors of the Company on March 11, 1998 (the "Committee
Resolutions"), the Company has established a series of Securities (as defined in
the Indenture) for issuance, authentication and delivery pursuant to the
Indenture. Capitalized terms used herein shall have the meaning specified in the
Indenture unless otherwise defined herein. Such series of Securities shall have
the following terms and conditions:
1. The series of Securities shall be known as the 7% Notes due
2028 (herein the "Notes").
2. The aggregate principal amount of Notes which may be
authenticated and delivered under the Indenture (other than pursuant to
Sections 3.04, 3.05, 3.06, 3.09 or 11.07 of the Indenture and other
than any Notes which, pursuant to Section 3.03 of the Indenture, are
deemed never to have been authenticated and delivered under the
Indenture) is $150,000,000.00.
3. Interest on the Notes shall be paid to The Depository Trust
Company, provided that the Company may pay interest by check mailed to
the address of the Person entitled thereto at such address as shall
appear in the Security Register at the relevant Interest Payment Date.
4. The principal amount of the Notes shall be payable on March
15, 2028.
5. The interest rate to be borne by the Notes shall be 7% per
annum, payable from March 16, 1998, commencing on September 15, 1998,
and on each March 15 and September 15 thereafter to and including March
15, 2028 ("Interest Payment Dates") and the Regular Record Date (as
defined in the Indenture) in respect of each Interest Payment Date
shall be the March 1 immediately preceding a March 15 Interest Payment
Date and the September 1 immediately preceding a
1
X-4.1-67
<PAGE> 68
September 15 Interest Payment Date. Interest will be computed as
provided in Section 3.10 of the Indenture.
6. The payment of the principal of and any premium and
interest on the Notes shall be payable at the office or agency of the
Company, New York, New York; provided that the Company may, at its
option, make payment of interest by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security
Register at the relevant Interest Payment Date.
7. The Notes are subject to redemption, as a whole at any time
or in part from time to time, at the sole election of the Company, upon
not less than 30 or more than 60 days prior notice by mail to the
Trustee at a Redemption Price equal to the greater of (1) 100% of their
principal amount, and (2) the sum of the present values of the
remaining scheduled payments of principal and interest thereon
discounted to the Redemption Date, on a semiannual basis, at the
Treasury Rate (as defined herein) plus 15 basis points (.15%), plus in
each case accrued interest thereon to the Redemption Date calculated on
the basis of a 360-day year consisting of twelve 30-day months. As used
herein and in the Notes, the term: (a) "Treasury Rate" means, with
respect to any Redemption Date, the rate per annum equal to the
semiannual equivalent yield to maturity of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury
Price for such Redemption Date; (b) "Comparable Treasury Issue" means
the United States Treasury security selected by an Independent
Investment Banker as having a maturity comparable to the remaining term
of the Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity
to the remaining term of such Notes; (c) "Independent Investment
Banker" means one of the Reference Treasury Dealers appointed by the
Trustee after consultation with the Company; (d) "Comparable Treasury
Price" means, with respect to any Redemption Date, (i) the average of
the bid and asked prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations
for U.S. Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such prices on
such business day, (A) the average of the Reference Treasury Dealer
Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (B) if the Trustee
obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such Quotations; (e) "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer and
any Redemption Date, the average, as determined by the Trustee, 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 Trustee by such Reference Treasury Dealer at 5:00 p.m. on the third
business day preceding such Redemption Date; (f) "Reference Treasury
Dealer" means each of Chase
2
X-4.1-68
<PAGE> 69
Securities Inc., BancAmerica Robertson Stephens and Salomon Brothers
Inc and their respective successors and, at the option of the Company,
additional Primary Treasury Dealers; provided, however, that if any of
the foregoing shall cease to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), the Company
shall substitute therefor another Primary Treasury Dealer; and (g)
"Remaining Scheduled Payments" means, with respect to any Note, the
remaining scheduled payments of the principal thereof to be redeemed
and interest thereon that would be due after the related redemption
date but for such redemption; provided, however, that, if such
redemption date is not an interest payment date with respect to such
Note, the amount of the next succeeding scheduled interest payment
thereon will be reduced by the amount of interest accrued thereon to
such redemption date. If money sufficient to pay the redemption price
of and accrued interest on all Notes (or the portions thereof) to be
redeemed on the Redemption Date is deposited with the Trustee on or
before the Redemption Date and certain other conditions are satisfied,
on and after such date interest will cease to accrue on such Notes (or
such portions thereof) called for redemption.
8. There shall be no provision obligating the Company to
redeem or purchase the Notes pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof.
9. The Notes are issuable in denominations of $1,000 and any
integral multiple thereof. The Notes will be represented by one or more
global securities (collectively, the "Global Securities") registered in
the name of Cede & Co., a partnership nominee of The Depository Trust
Company, New York, New York (the "Depositary"), or another nominee of
the Depositary. The Global Securities may be transferred, in whole and
not in part, only to the Depositary or another nominee of the
Depositary.
The Depositary will credit, on its book-entry registration and
transfer system, the respective principal amounts of the Notes
represented by such Global Securities to the accounts of institutions
that have accounts with the Depositary or its nominee ("participants").
Ownership of beneficial interests in the Global Securities will be
limited to participants or persons that may hold interests through
participants. Ownership of interests in such Global Securities will be
shown on, and the transfer of those ownership interests will be
effected through, records maintained by the Depositary (with respect to
participants' interests) and such participants (with respect to the
owners of beneficial interests in such Global Securities).
So long as the Depositary, or its nominee, is the registered
holder and owner of the Global Securities, the Depositary or such
nominee, as the case may be, will be considered the sole owner and
holder of the Notes for all purposes under the Indenture.
The Global Securities are exchangeable for Notes in definitive
form of like tenor as such Global Securities in denominations of $1,000
and in any greater
3
X-4.1-69
<PAGE> 70
amount that is an integral multiple thereof if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as
Depositary for the Global Securities or if at any time the Depositary
ceases to be a clearing agency registered under the Securities Exchange
Act of 1934, as amended, (ii) the Company in its discretion at any time
determines not to have all of the Notes represented by the Global
Securities and notifies the Trustee thereof, or (iii) an Event of
Default has occurred and is continuing with respect to the Notes.
10. The Notes shall be denominated in, and the principal of
and interest and premium, if any, on the Notes shall be payable only
in, United States Dollars.
11. The Redemption Price in respect of the Notes shall be
determined as follows:
That amount equal to the greater of (1) 100% of the
principal amount, and (2) the sum of the present values of the
remaining scheduled payments of principal and interest thereon
discounted to the date of redemption, on a semiannual basis,
at the Treasury Rate (as defined herein) plus 15 basis points
(.15%), plus in each case accrued interest thereon to the
Redemption Date. As used herein, the term: (a) "Treasury Rate"
means, with respect to any Redemption Date, the rate per annum
equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such
Redemption Date; (b) "Comparable Treasury Issue" means the
United States Treasury security selected by an Independent
Investment Banker as having a maturity comparable to the
remaining term of the Notes to be redeemed that would be
utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the
remaining term of such Notes; (c) "Independent Investment
Banker" means one of the Reference Treasury Dealers appointed
by the Trustee after consultation with the Company; (d)
"Comparable Treasury Price" means, with respect to any
Redemption Date, (i) the average of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) on the third business day
preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by
the Federal Reserve Bank of New York and designated "Composite
3:30 p.m. Quotations for U.S. Government Securities" or (ii)
if such release (or any successor release) is not published or
does not contain such prices on such business day, (A) the
average of the Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such
Reference Treasury Dealer
4
X-4.1-70
<PAGE> 71
Quotations, or (B) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of a11 such
Quotations; (e) "Reference Treasury Dealer Quotations" means,
with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Trustee, 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 Trustee by such Reference
Treasury Dealer at 5:00 p.m. on the third business day
preceding such Redemption Date; (f) "Reference Treasury
Dealer" means each of Chase Securities Inc., BancAmerica
Robertson Stephens and Salomon Brothers Inc and their
respective successors and, at the option of the Company,
additional Primary Treasury Dealers; provided, however, that
if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor
another Primary Treasury Dealer; and (g) "Remaining Scheduled
Payments" means, with respect to any Note, the remaining
scheduled payments of the principal thereof to be redeemed and
interest thereon that would be due after the related
redemption date but for such redemption; provided, however,
that, if such redemption date is not an interest payment date
with respect to such Note, the amount of the next succeeding
scheduled interest payment thereon will be reduced by the
amount of interest accrued thereon to such redemption date.
12. The principal of and any premium or interest on the Notes
shall be payable only in United States Dollars.
13. The entire principal amount of the Notes shall be payable
upon the declaration of acceleration of the Maturity of the Notes
pursuant to Section 5.02 of the Indenture in the manner and with the
effect provided in the Indenture.
14. Sections 13.02 and 13.03 of the Indenture shall apply to
the Notes.
15. The Notes shall be issuable in the form of, and will be
represented by one or more, global securities (collectively, the
"Global Securities") registered in the name of Cede & Co., a
partnership nominee of The Depository Trust Company, New York, New York
(the "Depositary"), or a nominee of the Depositary. The Global
Securities may be transferred, in whole and not in part, only to the
Depositary or another nominee of the Depositary.
The Depositary will credit, on its book-entry registration and
transfer system, the respective principal amounts of the Notes
represented by such Global Securities to the accounts of institutions
that have accounts with the Depositary or its nominee ("participants").
Ownership of beneficial interests in the Global Securities will be
limited to participants or persons that may hold interests through
5
X-4.1-71
<PAGE> 72
participants. Ownership of interests in such Global Securities will be
shown on, and the transfer of those ownership interests will be
effected through, records maintained by the Depositary (with respect to
participants' interests) and such participants (with respect to the
owners of beneficial interests in such Global Securities).
So long as the Depositary, or its nominee, is the registered
holder and owner of the Global Securities, the Depositary or such
nominee, as the case may be, will be considered the sole owner and
holder of the Notes for all purposes under the Indenture.
The Global Securities are exchangeable for Notes in definitive
form of like tenor as such Global Securities in denominations of $1,000
and in any greater amount that is an integral multiple thereof if (i)
the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for the Global Securities or if at any time the
Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (ii) the Company in its
discretion at any time determines not to have all of the Notes
represented by the Global Securities and notifies the Trustee thereof,
or (iii) an Event of Default has occurred and is continuing with
respect to the Notes.
16. The Events of Default applicable to the Notes are set
forth at clauses (a), (b), (d), (e) and (f) of Sections 5.01 of the
Indenture; clauses (c) and (g) of Section 5.01 of the Indenture shall
not apply to the Notes.
17. Section 5.02 of the Indenture shall apply without
variation, except that clauses (c) and (g) of Section 5.01 of the
Indenture shall not be operative with respect to, and shall not apply
to, the Notes or to Section 5.02 of the Indenture.
18. There shall be no addition to or change in the covenants
set forth in Article Ten of the Indenture which shall be operative in
respect of or apply to the Notes; there shall be no other covenant or
warranty included for the benefit of the Notes in addition to those
included in the Indenture for the benefit of all Securities of all
series issued or to be issued pursuant to the Indenture; there shall be
no other covenant or warranty included for the benefit of the Notes and
there shall be no provision that any covenant or warranty included in
the Indenture for the benefit of all Securities issued or to be issued
pursuant to the Indenture shall not be for the benefit of the Notes, or
any combination of such covenants, warranties or provisions.
19. There are no other terms of the Notes which are not
otherwise specified for all Securities issued pursuant to the
Indenture.
6
X-4.1-72
<PAGE> 73
20. The terms and conditions of the Notes are set forth in the
form of Global Note attached to this certificate as Annex A.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands this
16th day of March, 1998.
/s/ Robert W Tieken
------------------------------------
Robert W Tieken,
Executive Vice President and
Chief Financial Officer
/s/Richard W Hauman
------------------------------------
Richard W Hauman,
Vice President and Treasurer
7
X-4.1-73
<PAGE> 74
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in 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 therein.
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY MAY NOT BE TRANSFERRED, WHETHER IN WHOLE OR IN PART, TO, OR
REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON
OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE
REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR
IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT
TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
THE GOODYEAR TIRE & RUBBER COMPANY
7% NOTE DUE 2028
CUSIP 382550 AD 3
No. GNS2-1 $150,000,000.00
THE GOODYEAR TIRE & RUBBER COMPANY, a corporation duly organized and
existing under the laws of the State of Ohio (herein called the "Company", which
term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to CEDE & Co., or registered assigns,
the principal sum of ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000.00) on
March 15, 2028, and to pay interest thereon from March 16, 1998, or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semiannually on March 15 and September 15 in each year, commencing
September 15, 1998, at the rate of 7% per annum, until the principal hereof is
paid or made available for payment. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the March 1 or September 1 whether
or not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Notes of this series not less than 10 days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Note will be made at the office or agency of the Company maintained for that
purpose in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: March 16, 1998 THE GOODYEAR TIRE & RUBBER COMPANY
By______________________________________
[Seal] Richard W. Hauman, Vice President
and Treasurer
Attest:
Patricia A. Kemph, Assistant Secretary
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
by__________________________________
Authorized Officer
X-4.1-74
<PAGE> 75
This Note is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of March 15, 1996 (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank (formerly
Chemical Bank), as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all Indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Note is one of
the series designated on the face hereof as the Company's 7% Notes due 2028,
limited in aggregate principal amount to $150,000,000.00 (herein referred to as
the "Notes").
The Notes are subject to redemption, as a whole at any time or in part
from time to time, at the sole election of the Company, upon not less than 30 or
more than 60 days' notice by mail to the Trustee at a Redemption Price equal to
the greater of (1) 100% of the principal amount, and (2) the sum of the present
values of the Remaining Scheduled Payments (as herein defined) thereon
discounted to the Redemption Date, on a semiannual basis, at the Treasury Rate
(as defined herein) plus 15 basis points (.15%), plus accrued interest thereon
to the Redemption Date. As used herein, the term: (a) "Treasury Rate" means,
with respect to any Redemption Date, the rate per annum equal to the semiannual
equivalent yield to maturity of the Comparable Treasury Issue, assuming a price
for the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such Redemption Date; (b)
"Comparable Treasury Issue" means the United States Treasury security selected
by an Independent Investment Banker as having a maturity comparable to the
remaining term of the Notes to be redeemed that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Notes; (c) "Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Trustee after consultation with the Company;
(d) "Comparable Treasury Price" means, with respect to any Redemption Date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A) the average
of the Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Quotations; (e) "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Trustee, 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 Trustee by such Reference
Treasury Dealer at 5:00 p.m. on the third business day preceding such Redemption
Date; (f) "Reference Treasury Dealer" means each of Chase Securities Inc.,
BancAmerica Robertson Stephens and Salomon Brothers Inc and their respective
successors and, at the option of the Company, additional Primary Treasury
Dealers; provided, however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary Treasury Dealer;
and (g) "Remaining Scheduled Payments" means, with respect to any Note, the
remaining scheduled payments of the principal thereof to be redeemed and
interest thereon that would be due after the related redemption date but for
such redemption; provided,, however, that, if such redemption date is not an
interest payment date with respect to such Note, the amount of the next
succeeding scheduled interest payment thereon will be reduced by the amount of
interest accrued thereon to such redemption date. If money sufficient to pay the
redemption price of and accrued interest on allNotes (or the portions thereof)
to be redeemed on the Redemption Date is deposited with the Trustee on or before
the Redemption Date and certain other conditions are satisfied, on and after
such date interest will cease to accrue on such Notes (or such portions thereof)
called for redemption.
In the event of redemption of this Note in part only, a new Note or
Notes of like tenor for the unredeemed portion hereof will be issued in the name
of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness evidenced by this Security and (b) certain restrictive
covenants, in each case upon compliance by the Company with certain conditions
set forth therein, which provisions apply to this Note.
If an Event of Default with respect to the Notes of this series shall
occur and be continuing, the principal of the Notes of this Series may be
declared due and payable in the manner and with the effect provided in the
Indenture. "Event of Default" means any one of the events specified at clauses
(a), (b), (d), (e) and (f) of Section 5.01 of the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected (voting as a single class).
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registerable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes of this series will be represented by one or more global
securities (collectively, the "Global Security") registered in the name of The
Depository Trust Company, New York, New York (the "Depositary"), or a nominee of
the Depositary. So long as the Depositary, or its nominee, is the registered
holder and owner of this Global Note, the Depositary or such nominee, as the
case may be, will be considered the sole owner and holder of the Notes for all
purposes under the Indenture. The Global Security may be transferred, in whole
and not in part, only to the Depositary or another nominee of the Depositary.
The Depositary will credit, on its book-entry registration and transfer system,
the respective principal amounts of the Notes represented by such Global
Security to the accounts of institutions that have accounts with the Depositary
or its nominee ("participants"). Ownership of beneficial interests in a Global
Security will be limited to participants or persons that may hold interests
through participants. Ownership of interests in such Global Security will be
shown on, and the transfer of those ownership interests will be effected
through, records maintained by the Depositary (with respect to participants'
interests) and such participants (with respect to the owners of beneficial
interests in such Global Security).
The Global Security are exchangeable for Notes in definitive form of
like tenor as such Global Security in denominations of $1,000 and in any greater
amount that is an integral multiple thereof if (i) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for this Global
Security or if at any time the Depositary ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, (ii) the
Company in its discretion at any time determines not to have all of the Notes of
this series represented by a Global Security and notifies the Trustee thereof,
or (iii) an Event of Default has occurred and is continuing with respect to the
Notes. Any Note that is exchangeable pursuant to the preceding sentence is
exchangeable only for Notes of this series.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
X-4.1-75
<PAGE> 76
THE GOODYEAR TIRE & RUBBER COMPANY
OFFICERS' CERTIFICATE
---------------------
Robert W Tieken, Executive Vice President and Chief Financial Officer,
and Richard W Hauman, Vice President and Treasurer, of The Goodyear Tire &
Rubber Company, an Ohio corporation (the "Company"), pursuant to Sections 2.01,
3.01 and 3.03 of the Indenture, dated as of March 15, 1996 (the "Indenture"),
between the Company and Chase Manhattan Bank (formerly Chemical Bank), as
Trustee (the "Trustee"), each hereby certifies to the Trustee that:
I. In accordance with resolutions adopted by the Board of Directors of
the Company on January 9, 1996, December 3, 1996 and August 5, 1997 (the "Board
Resolutions") and with resolutions adopted by the Special Finance Committee of
the Board of Directors of the Company on March 17, 1998 (the "Committee
Resolutions"), the Company has established a series of Securities (as defined in
the Indenture) for issuance, authentication and delivery pursuant to the
Indenture. Capitalized terms used herein shall have the meaning specified in the
Indenture unless otherwise defined herein. Such series of Securities shall have
the following terms and conditions:
1. The series of Securities shall be known as the 6 3/8% Notes
due 2008 (herein the "Notes").
2. The aggregate principal amount of Notes which may be
authenticated and delivered under the Indenture (other than pursuant to
Sections 3.04, 3.05, 3.06, 3.09 or 11.07 of the Indenture and other
than any Notes which, pursuant to Section 3.03 of the Indenture, are
deemed never to have been authenticated and delivered under the
Indenture) is $100,000,000.00.
3. Interest on the Notes shall be paid to The Depository Trust
Company, provided that the Company may pay interest by check mailed to
the address of the Person entitled thereto at such address as shall
appear in the Security Register at the relevant Interest Payment Date.
4. The principal amount of the Notes shall be payable on March
15, 2008.
5. The interest rate to be borne by the Notes shall be 6 3/8%
per annum, payable from March 20, 1998, commencing on September 15,
1998, and on each March 15 and September 15 thereafter to and including
March 15, 2008 ("Interest Payment Dates") and the Regular Record Date
(as defined in the Indenture) in respect of each Interest Payment Date
shall be the March 1immediately preceding a March 15 Interest Payment
Date and the September 1 immediately preceding a September 15 Interest
Payment Date. Interest will be computed as provided in Section 3.10 of
the Indenture.
1
X-4.1-76
<PAGE> 77
6. The payment of the principal of and any premium and
interest on the Notes shall be payable at the office or agency of the
Company, New York, New York; provided that the Company may, at its
option, make payment of interest by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security
Register at the relevant Interest Payment Date.
7. The Notes are subject to redemption, as a whole at any time
or in part from time to time, at the sole election of the Company, upon
not less than 30 or more than 60 days prior notice by mail to the
Trustee at a Redemption Price equal to the greater of (1) 100% of their
principal amount, and (2) the sum of the present values of the
remaining scheduled payments of principal and interest thereon
discounted to the Redemption Date, on a semiannual basis, at the
Treasury Rate (as defined herein) plus 15 basis points (.15%), plus in
each case accrued interest thereon to the Redemption Date calculated on
the basis of a 360-day year consisting of twelve 30-day months. As used
herein and in the Notes, the term: (a) "Treasury Rate" means, with
respect to any Redemption Date, the rate per annum equal to the
semiannual equivalent yield to maturity of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury
Price for such Redemption Date; (b) "Comparable Treasury Issue" means
the United States Treasury security selected by an Independent
Investment Banker as having a maturity comparable to the remaining term
of the Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity
to the remaining term of such Notes; (c) "Independent Investment
Banker" means one of the Reference Treasury Dealers appointed by the
Trustee after consultation with the Company; (d) "Comparable Treasury
Price" means, with respect to any Redemption Date, (i) the average of
the bid and asked prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations
for U.S. Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such prices on
such business day, (A) the average of the Reference Treasury Dealer
Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (B) if the Trustee
obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such Quotations; (e) "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer and
any Redemption Date, the average, as determined by the Trustee, 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 Trustee by such Reference Treasury Dealer at 5:00 p.m. on the third
business day preceding such Redemption Date; (f) "Reference Treasury
Dealer" means each of Goldman,
2
X-4.1-77
<PAGE> 78
Sachs & Co., Citicorp Securities, Inc. and NationsBanc Montgomery
Securities LLC and their respective successors and, at the option of
the Company, additional Primary Treasury Dealers; provided, however,
that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer; and (g) "Remaining Scheduled Payments" means, with
respect to any Note, the remaining scheduled payments of the principal
thereof to be redeemed and interest thereon that would be due after the
related redemption date but for such redemption; provided, however,
that, if such redemption date is not an interest payment date with
respect to such Note, the amount of the next succeeding scheduled
interest payment thereon will be reduced by the amount of interest
accrued thereon to such redemption date. If money sufficient to pay the
redemption price of and accrued interest on all Notes (or the portions
thereof) to be redeemed on the Redemption Date is deposited with the
Trustee on or before the Redemption Date and certain other conditions
are satisfied, on and after such date interest will cease to accrue on
such Notes (or such portions thereof) called for redemption.
8. There shall be no provision obligating the Company to
redeem or purchase the Notes pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof.
9. The Notes are issuable in denominations of $1,000 and any
integral multiple thereof. The Notes will be represented by one or more
global securities (collectively, the "Global Securities") registered in
the name of Cede & Co., a partnership nominee of The Depository Trust
Company, New York, New York (the "Depositary"), or another nominee of
the Depositary. The Global Securities may be transferred, in whole and
not in part, only to the Depositary or another nominee of the
Depositary.
The Depositary will credit, on its book-entry registration and
transfer system, the respective principal amounts of the Notes
represented by such Global Securities to the accounts of institutions
that have accounts with the Depositary or its nominee ("participants").
Ownership of beneficial interests in the Global Securities will be
limited to participants or persons that may hold interests through
participants. Ownership of interests in such Global Securities will be
shown on, and the transfer of those ownership interests will be
effected through, records maintained by the Depositary (with respect to
participants' interests) and such participants (with respect to the
owners of beneficial interests in such Global Securities).
So long as the Depositary, or its nominee, is the registered
holder and owner of the Global Securities, the Depositary or such
nominee, as the case may be, will be considered the sole owner and
holder of the Notes for all purposes under the Indenture.
The Global Securities are exchangeable for Notes in definitive
form of like tenor as such Global Securities in denominations of $1,000
and in any greater
3
X-4.1-78
<PAGE> 79
amount that is an integral multiple thereof if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as
Depositary for the Global Securities or if at any time the Depositary
ceases to be a clearing agency registered under the Securities Exchange
Act of 1934, as amended, (ii) the Company in its discretion at any time
determines not to have all of the Notes represented by the Global
Securities and notifies the Trustee thereof, or (iii) an Event of
Default has occurred and is continuing with respect to the Notes.
10. The Notes shall be denominated in, and the principal of
and interest and premium, if any, on the Notes shall be payable only
in, United States Dollars.
11. The Redemption Price in respect of the Notes shall be
determined as follows:
That amount equal to the greater of (1) 100% of the
principal amount, and (2) the sum of the present values of the
remaining scheduled payments of principal and interest thereon
discounted to the date of redemption, on a semiannual basis,
at the Treasury Rate (as defined herein) plus 15 basis points
(.15%), plus in each case accrued interest thereon to the
Redemption Date. As used herein, the term: (a) "Treasury Rate"
means, with respect to any Redemption Date, the rate per annum
equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such
Redemption Date; (b) "Comparable Treasury Issue" means the
United States Treasury security selected by an Independent
Investment Banker as having a maturity comparable to the
remaining term of the Notes to be redeemed that would be
utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the
remaining term of such Notes; (c) "Independent Investment
Banker" means one of the Reference Treasury Dealers appointed
by the Trustee after consultation with the Company; (d)
"Comparable Treasury Price" means, with respect to any
Redemption Date, (i) the average of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) on the third business day
preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by
the Federal Reserve Bank of New York and designated "Composite
3:30 p.m. Quotations for U.S. Government Securities" or (ii)
if such release (or any successor release) is not published or
does not contain such prices on such business day, (A) the
average of the Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such
Reference Treasury Dealer
4
X-4.1-79
<PAGE> 80
Quotations, or (B) if the Trustee obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all
such Quotations; (e) "Reference Treasury Dealer Quotations"
means, with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Trustee,
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 Trustee by such Reference
Treasury Dealer at 5:00 p.m. on the third business day
preceding such Redemption Date; (f) "Reference Treasury
Dealer" means each of Goldman, Sachs & Co., Citicorp
Securities, Inc. and NationsBanc Montgomery Securities LLC
and their respective successors and, at the option of the
Company, additional Primary Treasury Dealers; provided,
however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City (a
"Primary Treasury Dealer"), the Company shall substitute
therefor another Primary Treasury Dealer; and (g) "Remaining
Scheduled Payments" means, with respect to any Note, the
remaining scheduled payments of the principal thereof to be
redeemed and interest thereon that would be due after the
related redemption date but for such redemption; provided,
however, that, if such redemption date is not an interest
payment date with respect to such Note, the amount of the
next succeeding scheduled interest payment thereon will be
reduced by the amount of interest accrued thereon to such
redemption date.
12. The principal of and any premium or interest on the Notes
shall be payable only in United States Dollars.
13. The entire principal amount of the Notes shall be payable
upon the declaration of acceleration of the Maturity of the Notes
pursuant to Section 5.02 of the Indenture in the manner and with the
effect provided in the Indenture.
14. Sections 13.02 and 13.03 of the Indenture shall apply to
the Notes.
15. The Notes shall be issuable in the form of, and will be
represented by one or more, global securities (collectively, the
"Global Securities") registered in the name of Cede & Co., a
partnership nominee of The Depository Trust Company, New York, New York
(the "Depositary"), or a nominee of the Depositary. The Global
Securities may be transferred, in whole and not in part, only to the
Depositary or another nominee of the Depositary.
The Depositary will credit, on its book-entry registration and
transfer system, the respective principal amounts of the Notes
represented by such Global Securities to the accounts of institutions
that have accounts with the Depositary or its nominee ("participants").
Ownership of beneficial interests in the Global Securities will be
limited to participants or persons that may hold interests through
5
X-4.1-80
<PAGE> 81
participants. Ownership of interests in such Global Securities will be
shown on, and the transfer of those ownership interests will be
effected through, records maintained by the Depositary (with respect to
participants' interests) and such participants (with respect to the
owners of beneficial interests in such Global Securities).
So long as the Depositary, or its nominee, is the registered
holder and owner of the Global Securities, the Depositary or such
nominee, as the case may be, will be considered the sole owner and
holder of the Notes for all purposes under the Indenture.
The Global Securities are exchangeable for Notes in definitive
form of like tenor as such Global Securities in denominations of $1,000
and in any greater amount that is an integral multiple thereof if (i)
the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for the Global Securities or if at any time the
Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (ii) the Company in its
discretion at any time determines not to have all of the Notes
represented by the Global Securities and notifies the Trustee thereof,
or (iii) an Event of Default has occurred and is continuing with
respect to the Notes.
16. The Events of Default applicable to the Notes are set
forth at clauses (a), (b), (d), (e) and (f) of Sections 5.01 of the
Indenture; clauses (c) and (g) of Section 5.01 of the Indenture shall
not apply to the Notes.
17. Section 5.02 of the Indenture shall apply without
variation, except that clauses (c) and (g) of Section 5.01 of the
Indenture shall not be operative with respect to, and shall not apply
to, the Notes or to Section 5.02 of the Indenture.
18. There shall be no addition to or change in the covenants
set forth in Article Ten of the Indenture which shall be operative in
respect of or apply to the Notes; there shall be no other covenant or
warranty included for the benefit of the Notes in addition to those
included in the Indenture for the benefit of all Securities of all
series issued or to be issued pursuant to the Indenture; there shall be
no other covenant or warranty included for the benefit of the Notes and
there shall be no provision that any covenant or warranty included in
the Indenture for the benefit of all Securities issued or to be issued
pursuant to the Indenture shall not be for the benefit of the Notes, or
any combination of such covenants, warranties or provisions.
19. There are no other terms of the Notes which are not
otherwise specified for all Securities issued pursuant to the
Indenture.
20. The terms and conditions of the Notes are set forth in the
form of Global Note attached to this certificate as Annex A.
6
X-4.1-81
<PAGE> 82
IN WITNESS WHEREOF, the undersigned have hereunto set their hands this
20th day of March, 1998.
/s/ Robert W Tieken
------------------------------------
Robert W Tieken,
Executive Vice President and
Chief Financial Officer
/s/Richard W Hauman
------------------------------------
Richard W Hauman,
Vice President and Treasurer
7
X-4.1-82
<PAGE> 83
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in 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 therein.
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY MAY NOT BE TRANSFERRED, WHETHER IN WHOLE OR IN PART, TO, OR
REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON
OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE
REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR
IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT
TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
THE GOODYEAR TIRE & RUBBER COMPANY
6 3/8% NOTE DUE 2008
CUSIP 382550 AE 1
No. GNS3-1 $100,000,000.00
THE GOODYEAR TIRE & RUBBER COMPANY, a corporation duly organized and
existing under the laws of the State of Ohio (herein called the "Company", which
term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to CEDE & Co., or registered assigns,
the principal sum of ONE HUNDRED MILLION DOLLARS ($100,000,000.00) on March 15,
2008, and to pay interest thereon from March 20, 1998, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semiannually on March 15 and September 15 in each year, commencing September 15,
1998, at the rate of 6 3/8% per annum, until the principal hereof is paid or
made available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the March 1 or September 1 whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Notes of this series not less than 10 days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Note will be made at the office or agency of the Company maintained for that
purpose in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: March 20, 1998 THE GOODYEAR TIRE & RUBBER COMPANY
By_________________________________________
[Seal] Richard W. Hauman, Vice President
and Treasurer
Attest:
James Boyazis, Secretary
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
by__________________________________
Authorized Officer
X-4.1-83
<PAGE> 84
This Note is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of March 15, 1996 (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank (formerly
Chemical Bank), as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all Indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Note is one of
the series designated on the face hereof as the Company's 6 3/8% Notes due 2008,
limited in aggregate principal amount to $100,000,000.00 (herein referred to as
the "Notes").
The Notes are subject to redemption, as a whole at any time or in part
from time to time, at the sole election of the Company, upon not less than 30 or
more than 60 days' notice by mail to the Trustee at a Redemption Price equal to
the greater of (1) 100% of the principal amount, and (2) the sum of the present
values of the Remaining Scheduled Payments (as herein defined) thereon
discounted to the Redemption Date, on a semiannual basis, at the Treasury Rate
(as defined herein) plus 15 basis points (.15%), plus accrued interest thereon
to the Redemption Date. As used herein, the term: (a) "Treasury Rate" means,
with respect to any Redemption Date, the rate per annum equal to the semiannual
equivalent yield to maturity of the Comparable Treasury Issue, assuming a price
for the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such Redemption Date; (b)
"Comparable Treasury Issue" means the United States Treasury security selected
by an Independent Investment Banker as having a maturity comparable to the
remaining term of the Notes to be redeemed that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Notes; (c) "Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Trustee after consultation with the Company;
(d) "Comparable Treasury Price" means, with respect to any Redemption Date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A) the average
of the Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Quotations; (e) "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Trustee, 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 Trustee by such Reference
Treasury Dealer at 5:00 p.m. on the third business day preceding such Redemption
Date; (f) "Reference Treasury Dealer" means each of Goldman, Sachs & Co.,
Citicorp Securities, Inc. and NationsBanc Montgomery Securities LLC and their
respective successors and, at the option of the Company, additional Primary
Treasury Dealers; provided, however, that if any of the foregoing shall cease to
be a primary U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer; and (g) "Remaining Scheduled Payments" means, with respect to
any Note, the remaining scheduled payments of the principal thereof to be
redeemed and interest thereon that would be due after the related redemption
date but for such redemption; provided,, however, that, if such redemption date
is not an interest payment date with respect to such Note, the amount of the
next succeeding scheduled interest payment thereon will be reduced by the amount
of interest accrued thereon to such redemption date. If money sufficient to pay
the redemption price of and accrued interest on allNotes (or the portions
thereof) to be redeemed on the Redemption Date is deposited with the Trustee on
or before the Redemption Date and certain other conditions are satisfied, on and
after such date interest will cease to accrue on such Notes (or such portions
thereof) called for redemption.
In the event of redemption of this Note in part only, a new Note or
Notes of like tenor for the unredeemed portion hereof will be issued in the name
of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness evidenced by this Security and (b) certain restrictive
covenants, in each case upon compliance by the Company with certain conditions
set forth therein, which provisions apply to this Note.
If an Event of Default with respect to the Notes of this series shall
occur and be continuing, the principal of the Notes of this Series may be
declared due and payable in the manner and with the effect provided in the
Indenture. "Event of Default" means any one of the events specified at clauses
(a), (b), (d), (e) and (f) of Section 5.01 of the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected (voting as a single class).
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registerable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes of this series will be represented by one or more global
securities (collectively, the "Global Security") registered in the name of The
Depository Trust Company, New York, New York (the "Depositary"), or a nominee of
the Depositary. So long as the Depositary, or its nominee, is the registered
holder and owner of this Global Note, the Depositary or such nominee, as the
case may be, will be considered the sole owner and holder of the Notes for all
purposes under the Indenture. The Global Security may be transferred, in whole
and not in part, only to the Depositary or another nominee of the Depositary.
The Depositary will credit, on its book-entry registration and transfer system,
the respective principal amounts of the Notes represented by such Global
Security to the accounts of institutions that have accounts with the Depositary
or its nominee ("participants"). Ownership of beneficial interests in a Global
Security will be limited to participants or persons that may hold interests
through participants. Ownership of interests in such Global Security will be
shown on, and the transfer of those ownership interests will be effected
through, records maintained by the Depositary (with respect to participants'
interests) and such participants (with respect to the owners of beneficial
interests in such Global Security).
The Global Security are exchangeable for Notes in definitive form of
like tenor as such Global Security in denominations of $1,000 and in any greater
amount that is an integral multiple thereof if (i) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for this Global
Security or if at any time the Depositary ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, (ii) the
Company in its discretion at any time determines not to have all of the Notes of
this series represented by a Global Security and notifies the Trustee thereof,
or (iii) an Event of Default has occurred and is continuing with respect to the
Notes. Any Note that is exchangeable pursuant to the preceding sentence is
exchangeable only for Notes of this series.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
X-4.1-84
<PAGE> 1
EXHIBIT 12
THE GOODYEAR TIRE & RUBBER COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in millions)
<TABLE>
<CAPTION>
3 MONTHS
ENDED
3/31/98 1997 1996 1995 1994 1993
------- ---- ---- ---- ---- ----
EARNINGS
<S> <C> <C> <C> <C> <C> <C>
Income from continuing operations before income taxes,
extraordinary items and cumulative effect of
accounting changes $324.0 $743.3 $811.5 $869.8 $855.9 $797.4
Add:
Amortization of previously capitalized interest $2.8 $11.0 $11.6 $11.7 $10.2 $10.1
Minority interest in net income of
consolidated subsidiaries with fixed charges 8.2 45.1 45.9 30.1 16.9 19.0
Proportionate share of fixed charges of investees
accounted for by the equity method 1.6 6.5 5.1 5.3 2.5 2.3
Proportionate share of net loss of investees
accounted for by the equity method 0.4 0.1 2.7 0.5 0.2 0.3
-------------------------------------------------------------------
Total additions $13.0 $62.7 $65.3 $47.6 $29.8 $31.7
Deduct:
Capitalized interest $1.2 $6.2 $5.4 $5.1 $5.7 $5.0
Minority interest in net loss of
consolidated subsidiaries 0.9 3.6 4.4 3.3 0.3 0.3
Undistributed proportionate share of net income
of investees accounted for by the equity method 2.7 -- -- 0.2 7.2 4.0
-------------------------------------------------------------------
Total deductions $4.8 $9.8 $9.8 $8.6 $13.2 $9.3
TOTAL EARNINGS $332.2 $796.2 $867.0 $908.8 $872.5 $819.8
===================================================================
FIXED CHARGES
Interest expense $30.3 $119.5 $128.6 $135.0 $129.4 $162.4
Capitalized interest 1.2 6.2 5.4 5.1 5.7 5.0
Amortization of debt discount, premium or expense 1.8 0.1 0.3 0.4 0.7 0.4
Interest portion of rental expense 15.8 63.3 69.5 77.0 83.0 83.7
Proportionate share of fixed charges of investees
accounted for by the equity method 1.6 6.5 5.1 5.3 2.5 2.3
-------------------------------------------------------------------
TOTAL FIXED CHARGES $50.7 $195.6 $208.9 $222.8 $221.3 $253.8
===================================================================
TOTAL EARNINGS BEFORE FIXED CHARGES $382.9 $991.8 $1,075.9 $1,131.6 $1,093.8 $1,073.6
===================================================================
RATIO OF EARNINGS TO FIXED CHARGES 7.55 5.07 5.15 5.08 4.94 4.23
</TABLE>
The years 1993-1997 have been restated to reflect the sale of the net
assets of the oil transportation segment, which was accounted for as
discontinued operations.
X-12-1
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION FOR THE GOODYEAR TIRE &
RUBBER COMPANY AND SUBSIDIARIES EXTRACTED FROM THE CONSOLIDATED STATEMENT OF
INCOME AND THE CONSOLIDATED BALANCE SHEET AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<CASH> 259
<SECURITIES> 0
<RECEIVABLES> 1,783
<ALLOWANCES> 50
<INVENTORY> 1,835
<CURRENT-ASSETS> 4,164
<PP&E> 9,234
<DEPRECIATION> 5,084
<TOTAL-ASSETS> 9,917
<CURRENT-LIABILITIES> 3,251
<BONDS> 845
0
0
<COMMON> 157
<OTHER-SE> 3,239
<TOTAL-LIABILITY-AND-EQUITY> 9,917
<SALES> 13,065
<TOTAL-REVENUES> 13,065
<CGS> 10,016
<TOTAL-COSTS> 10,016
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 120
<INCOME-PRETAX> 743
<INCOME-TAX> 220
<INCOME-CONTINUING> 523
<DISCONTINUED> 36
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 559
<EPS-PRIMARY> 3.58
<EPS-DILUTED> 3.53
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION FOR THE GOODYEAR TIRE &
RUBBER COMPANY AND SUBSIDIARIES EXTRACTED FROM THE CONSOLIDATED STATEMENT OF
INCOME AND THE CONSOLIDATED BALANCE SHEET AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 239
<SECURITIES> 0
<RECEIVABLES> 1,764
<ALLOWANCES> 58
<INVENTORY> 1,774
<CURRENT-ASSETS> 4,025
<PP&E> 9,004
<DEPRECIATION> 4,936
<TOTAL-ASSETS> 9,672
<CURRENT-LIABILITIES> 2,766
<BONDS> 1,132
0
0
<COMMON> 156
<OTHER-SE> 3,123
<TOTAL-LIABILITY-AND-EQUITY> 9,672
<SALES> 12,986
<TOTAL-REVENUES> 12,986
<CGS> 9,969
<TOTAL-COSTS> 9,969
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 129
<INCOME-PRETAX> 812
<INCOME-TAX> 253
<INCOME-CONTINUING> 559
<DISCONTINUED> (457)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 102
<EPS-PRIMARY> 0.66
<EPS-DILUTED> 0.65
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION FOR THE GOODYEAR TIRE &
RUBBER COMPANY AND SUBSIDIARIES EXTRACTED FROM THE CONSOLIDATED STATEMENT OF
INCOME AND THE CONSOLIDATED BALANCE SHEET AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> DEC-31-1995
<CASH> 268
<SECURITIES> 0
<RECEIVABLES> 1,671
<ALLOWANCES> 56
<INVENTORY> 1,765
<CURRENT-ASSETS> 3,842
<PP&E> 9,350
<DEPRECIATION> 4,789
<TOTAL-ASSETS> 9,790
<CURRENT-LIABILITIES> 2,736
<BONDS> 1,320
0
0
<COMMON> 154
<OTHER-SE> 3,128
<TOTAL-LIABILITY-AND-EQUITY> 9,790
<SALES> 13,039
<TOTAL-REVENUES> 13,039
<CGS> 10,028
<TOTAL-COSTS> 10,028
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 135
<INCOME-PRETAX> 870
<INCOME-TAX> 295
<INCOME-CONTINUING> 575
<DISCONTINUED> 36
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 611
<EPS-PRIMARY> 4.02
<EPS-DILUTED> 3.97
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION FOR THE GOODYEAR TIRE &
RUBBER COMPANY AND SUBSIDIARIES EXTRACTED FROM THE CONSOLIDATED STATEMENT OF
INCOME AND RETAINED EARNINGS AND THE CONSOLIDATED BALANCE SHEET AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
<CASH> 256
<SECURITIES> 0
<RECEIVABLES> 2,085
<ALLOWANCES> 59
<INVENTORY> 1,915
<CURRENT-ASSETS> 4,496
<PP&E> 9,043
<DEPRECIATION> 4,957
<TOTAL-ASSETS> 10,245
<CURRENT-LIABILITIES> 3,099
<BONDS> 1,264
0
0
<COMMON> 156
<OTHER-SE> 3,214
<TOTAL-LIABILITY-AND-EQUITY> 10,245
<SALES> 3,209
<TOTAL-REVENUES> 3,209
<CGS> 2,453
<TOTAL-COSTS> 2,453
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 31
<INCOME-PRETAX> 242
<INCOME-TAX> 82
<INCOME-CONTINUING> 160
<DISCONTINUED> 10
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 170
<EPS-PRIMARY> 1.09
<EPS-DILUTED> 1.08
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION FOR THE GOODYEAR TIRE &
RUBBER COMPANY AND SUBSIDIARIES EXTRACTED FROM THE CONSOLIDATED STATEMENT OF
INCOME AND RETAINED EARNINGS AND THE CONSOLIDATED BALANCE SHEET AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> JUN-30-1997
<CASH> 241
<SECURITIES> 0
<RECEIVABLES> 1,985
<ALLOWANCES> 54
<INVENTORY> 1,873
<CURRENT-ASSETS> 4,413
<PP&E> 9,107
<DEPRECIATION> 5,032
<TOTAL-ASSETS> 10,151
<CURRENT-LIABILITIES> 3,102
<BONDS> 1,084
0
0
<COMMON> 156
<OTHER-SE> 3,336
<TOTAL-LIABILITY-AND-EQUITY> 10,151
<SALES> 6,499
<TOTAL-REVENUES> 6,499
<CGS> 4,978
<TOTAL-COSTS> 4,978
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 64
<INCOME-PRETAX> 501
<INCOME-TAX> 159
<INCOME-CONTINUING> 342
<DISCONTINUED> 21
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 363
<EPS-PRIMARY> 2.32
<EPS-DILUTED> 2.30
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION FOR THE GOODYEAR TIRE &
RUBBER COMPANY AND SUBSIDIARIES EXTRACTED FROM THE CONSOLIDATED STATEMENT OF
INCOME AND RETAINED EARNINGS AND THE CONSOLIDATED BALANCE SHEET AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> SEP-30-1997
<CASH> 227
<SECURITIES> 0
<RECEIVABLES> 1,999
<ALLOWANCES> 53
<INVENTORY> 1,815
<CURRENT-ASSETS> 4,361
<PP&E> 9,063
<DEPRECIATION> 5,052
<TOTAL-ASSETS> 10,051
<CURRENT-LIABILITIES> 3,125
<BONDS> 927
0
0
<COMMON> 156
<OTHER-SE> 3,385
<TOTAL-LIABILITY-AND-EQUITY> 10,051
<SALES> 9,797
<TOTAL-REVENUES> 9,797
<CGS> 7,514
<TOTAL-COSTS> 7,514
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 92
<INCOME-PRETAX> 760
<INCOME-TAX> 233
<INCOME-CONTINUING> 527
<DISCONTINUED> 30
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 557
<EPS-PRIMARY> 3.57
<EPS-DILUTED> 3.52
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION FOR THE GOODYEAR TIRE &
RUBBER COMPANY AND SUBSIDIARIES EXTRACTED FROM THE CONSOLIDATED STATEMENT OF
INCOME AND RETAINED EARNINGS AND THE CONSOLIDATED BALANCE SHEET AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> MAR-31-1996
<CASH> 322
<SECURITIES> 0
<RECEIVABLES> 2,006
<ALLOWANCES> 60
<INVENTORY> 1,981
<CURRENT-ASSETS> 4,454
<PP&E> 9,537
<DEPRECIATION> 4,880
<TOTAL-ASSETS> 10,483
<CURRENT-LIABILITIES> 3,248
<BONDS> 1,305
0
0
<COMMON> 155
<OTHER-SE> 3,279
<TOTAL-LIABILITY-AND-EQUITY> 10,483
<SALES> 3,214
<TOTAL-REVENUES> 3,214
<CGS> 2,467
<TOTAL-COSTS> 2,467
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 32
<INCOME-PRETAX> 217
<INCOME-TAX> 76
<INCOME-CONTINUING> 141
<DISCONTINUED> 11
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 152
<EPS-PRIMARY> 0.98
<EPS-DILUTED> 0.97
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION FOR THE GOODYEAR TIRE &
RUBBER COMPANY AND SUBSIDIARIES EXTRACTED FROM THE CONSOLIDATED STATEMENT OF
INCOME AND RETAINED EARNINGS AND THE CONSOLIDATED BALANCE SHEET AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> JUN-30-1996
<CASH> 279
<SECURITIES> 0
<RECEIVABLES> 2,089
<ALLOWANCES> 61
<INVENTORY> 1,956
<CURRENT-ASSETS> 4,444
<PP&E> 9,677
<DEPRECIATION> 4,953
<TOTAL-ASSETS> 10,516
<CURRENT-LIABILITIES> 3,142
<BONDS> 1,292
0
0
<COMMON> 155
<OTHER-SE> 3,412
<TOTAL-LIABILITY-AND-EQUITY> 10,516
<SALES> 6,509
<TOTAL-REVENUES> 6,509
<CGS> 4,987
<TOTAL-COSTS> 4,987
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 67
<INCOME-PRETAX> 471
<INCOME-TAX> 154
<INCOME-CONTINUING> 317
<DISCONTINUED> 23
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 340
<EPS-PRIMARY> 2.20
<EPS-DILUTED> 2.17
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION FOR THE GOODYEAR TIRE &
RUBBER COMPANY AND SUBSIDIARIES EXTRACTED FROM THE CONSOLIDATED STATEMENT OF
INCOME AND RETAINED EARNINGS AND THE CONSOLIDATED BALANCE SHEET AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> SEP-30-1996
<CASH> 324
<SECURITIES> 0
<RECEIVABLES> 2,035
<ALLOWANCES> 63
<INVENTORY> 1,891
<CURRENT-ASSETS> 4,388
<PP&E> 9,777
<DEPRECIATION> 5,047
<TOTAL-ASSETS> 10,503
<CURRENT-LIABILITIES> 3,041
<BONDS> 1,235
0
0
<COMMON> 155
<OTHER-SE> 3,556
<TOTAL-LIABILITY-AND-EQUITY> 10,503
<SALES> 9,746
<TOTAL-REVENUES> 9,746
<CGS> 7,481
<TOTAL-COSTS> 7,481
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 101
<INCOME-PRETAX> 710
<INCOME-TAX> 233
<INCOME-CONTINUING> 477
<DISCONTINUED> 33
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 510
<EPS-PRIMARY> 3.29
<EPS-DILUTED> 3.26
</TABLE>
<PAGE> 1
EXHIBIT 99.1
THE GOODYEAR TIRE & RUBBER COMPANY AND SUBSIDIARIES
RESTATED CONSOLIDATED STATEMENT OF INCOME AND RETAINED EARNINGS
UNAUDITED
<TABLE>
<CAPTION>
Three Months Six Months Nine Months Twelve Months
(In millions, except per share) Ended Ended Ended Ended
Mar 31, Jun 30, Sep 30, Dec 31,
1997 1997 1997 1997
---------- ---------- ---------- -----------
<S> <C> <C> <C> <C>
NET SALES $ 3,208.7 $ 6,498.6 $ 9,797.3 $ 13,065.3
Cost of Goods Sold 2,453.1 4,977.7 7,514.0 10,015.6
Selling, Administrative and General Expense 466.3 928.7 1,394.5 1,886.7
Asset Writedown and Other Rationalizations - - - 265.2
Interest Expense 31.0 63.5 91.9 119.5
Other Expense 7.6 10.9 18.2 24.5
Foreign Currency Exchange (3.1) (6.2) (16.3) (34.1)
Minority Interest in Net Income of Subsidiaries 11.5 23.2 35.1 44.6
---------- ---------- ---------- -----------
Income from Continuing Operations before Income Taxes 242.3 500.8 759.9 743.3
United States and Foreign Taxes on Income 82.1 158.9 233.2 220.9
---------- ---------- ---------- -----------
INCOME FROM CONTINUING OPERATIONS 160.2 341.9 526.7 522.4
Discontinued Operations 10.2 20.7 30.0 36.3
---------- ---------- ---------- -----------
NET INCOME 170.4 362.6 556.7 558.7
Retained Earnings at Beginning of Period 2,603.0 2,603.0 2,603.0 2,603.0
Cash Dividends (43.9) (87.6) (131.3) (178.3)
---------- ---------- ---------- -----------
Retained Earnings at End of Period $ 2,729.5 $ 2,878.0 $ 3,028.4 $ 2,983.4
========== ========== ========== ===========
PER SHARE OF COMMON STOCK - BASIC:
Income from Continuing Operations $1.02 $2.19 $3.37 $3.34
Discontinued Operations $0.07 $0.13 $0.20 $0.24
----- ----- ----- -----
Net Income $1.09 $2.32 $3.57 $3.58
===== ===== ===== =====
Average Shares Outstanding 156.4 156.1 156.1 156.2
PER SHARE OF COMMON STOCK - DILUTED:
Income from Continuing Operations $1.01 $2.17 $3.33 $3.30
Discontinued Operations $0.07 $0.13 $0.19 $0.23
----- ----- ----- -----
Net Income $1.08 $2.30 $3.52 $3.53
===== ===== ===== =====
Average Shares Outstanding 158.0 157.9 158.0 158.2
CASH DIVIDENDS PER SHARE $0.28 $0.56 $0.84 $1.14
===== ===== ===== =====
</TABLE>
X-99.1-1
<PAGE> 1
EXHIBIT 99.2
THE GOODYEAR TIRE & RUBBER COMPANY AND SUBSIDIARIES
RESTATED CONSOLIDATED STATEMENT OF INCOME
UNAUDITED
<TABLE>
<CAPTION>
(In millions, except per share) Three Months Ended
--------------------------------------------------------------
Mar 31, Jun 30, Sep 30, Dec 31,
1997 1997 1997 1997
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
NET SALES $ 3,208.7 $ 3,289.9 $ 3,298.7 $ 3,268.0
Cost of Goods Sold 2,453.1 2,524.6 2,536.3 2,501.6
Selling, Administrative and General Expense 466.3 462.4 465.8 492.2
Asset Writedown and Other Rationalizations -- -- -- 265.2
Interest Expense 31.0 32.5 28.4 27.6
Other Expense 7.6 3.3 7.3 6.3
Foreign Currency Exchange (3.1) (3.1) (10.1) (17.8)
Minority Interest in Net Income of Subsidiaries 11.5 11.7 11.9 9.5
--------- --------- --------- ---------
Income (Loss) from Continuing Operations before Income Taxes 242.3 258.5 259.1 (16.6)
United States and Foreign Taxes on Income 82.1 76.8 74.3 (12.3)
--------- --------- --------- ---------
INCOME (LOSS) FROM CONTINUING OPERATIONS 160.2 181.7 184.8 (4.3)
Discontinued Operations 10.2 10.5 9.3 6.3
--------- --------- --------- ---------
NET INCOME $ 170.4 $ 192.2 $ 194.1 $ 2.0
========= ========= ========= =========
PER SHARE OF COMMON STOCK - BASIC:
Income (Loss) from Continuing Operations $1.02 $1.17 $1.18 ($0.03)
Discontinued Operations $0.07 $0.06 $0.07 $0.04
----- ----- ----- -----
Net Income $1.09 $1.23 $1.25 $0.01
===== ===== ===== =====
Average Shares Outstanding 156.4 155.8 156.2 156.5
PER SHARE OF COMMON STOCK - DILUTED:
Income (Loss) from Continuing Operations $1.01 $1.16 $1.16 ($0.03)
Discontinued Operations $0.07 $0.06 $0.06 $0.04
----- ----- ----- -----
Net Income $1.08 $1.22 $1.22 $0.01
===== ===== ===== =====
Average Shares Outstanding 158.0 157.7 158.3 158.6
CASH DIVIDENDS PER SHARE $0.28 $0.28 $0.28 $0.30
===== ===== ===== =====
</TABLE>
X-99.2-1
<PAGE> 1
EXHIBIT 99.3
THE GOODYEAR TIRE & RUBBER COMPANY AND SUBSIDIARIES
RESTATED CONSOLIDATED STATEMENT OF INCOME
UNAUDITED
<TABLE>
<CAPTION>
(In millions, except per share)
Twelve Months Ended December 31,
------------------------------------------------------------------------
1997 1996 1995 1994 1993
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
NET SALES $13,065.3 $12,985.7 $13,039.2 $12,209.2 $11,582.0
Cost of Goods Sold 10,015.6 9,968.9 10,027.7 9,209.0 8,645.8
Selling, Administrative and General Expense 1,886.7 1,887.2 1,932.1 1,953.9 1,915.4
Asset Writedown and Other Rationalizations 265.2 116.4 - - -
Interest Expense 119.5 128.6 135.0 129.4 162.4
Other Expense 24.5 22.6 21.0 (40.4) (79.1)
Foreign Currency Exchange (34.1) 7.4 17.4 77.6 113.1
Minority Interest in Net Income of Subsidiaries 44.6 43.1 36.2 23.8 27.0
--------- --------- --------- --------- ---------
Income from Continuing Operations before Income Taxes 743.3 811.5 869.8 855.9 797.4
United States and Foreign Taxes on Income 220.9 253.0 294.6 295.2 300.5
--------- --------- --------- --------- ---------
INCOME FROM CONTINUING OPERATIONS 522.4 558.5 575.2 560.7 496.9
Discontinued Operations 36.3 (456.8) 35.8 6.3 (8.2)
--------- --------- --------- --------- ---------
INCOME BEFORE EXTRAORDINARY ITEM AND
CUMULATIVE EFFECT OF ACCOUNTING CHANGE 558.7 101.7 611.0 567.0 488.7
Extraordinary Item-Early Extinguishment of Debt - - - - (14.6)
Accounting Change-Adoption of SFAS No. 112 - - - - (86.3)
--------- --------- --------- --------- ---------
NET INCOME $ 558.7 $ 101.7 $ 611.0 $ 567.0 $ 387.8
========= ========= ========= ========= =========
PER SHARE OF COMMON STOCK - BASIC:
Income from Continuing Operations $3.34 $3.60 $3.78 $3.71 $3.38
Discontinued Operations $0.24 ($2.94) $0.24 $0.04 ($0.05)
----- ----- ----- ----- -----
Income before Extraordinary Item and
Cumulative Effect of Accounting Change $3.58 $0.66 $4.02 $3.75 $3.33
Extraordinary Item-Early Extinguishment of Debt - - - - ($0.10)
Accounting Change-Adoption of SFAS No. 112 - - - - ($0.59)
----- ----- ----- ----- -----
Net Income $3.58 $0.66 $4.02 $3.75 $2.64
===== ===== ===== ===== =====
Average Shares Outstanding 156.2 155.1 152.1 151.2 147.1
PER SHARE OF COMMON STOCK - DILUTED:
Income from Continuing Operations $3.30 $3.56 $3.74 $3.66 $3.30
Discontinued Operations $0.23 ($2.91) $0.23 $0.04 ($0.05)
----- ----- ----- ----- -----
Income before Extraordinary Item and
Cumulative Effect of Accounting Change $3.53 $0.65 $3.97 $3.70 $3.25
Extraordinary Item-Early Extinguishment of Debt - - - - ($0.10)
Accounting Change-Adoption of SFAS No. 112 - - - - ($0.57)
----- ----- ----- ----- -----
Net Income $3.53 $0.65 $3.97 $3.70 $2.58
===== ===== ===== ===== =====
Average Shares Outstanding 158.2 156.8 153.9 153.1 151.7
</TABLE>
X-99.3-1
<PAGE> 1
EXHIBIT 99.4
THE GOODYEAR TIRE & RUBBER COMPANY AND SUBSIDIARIES
RESTATED SEGMENT INFORMATION
UNAUDITED
<TABLE>
<CAPTION>
THREE MONTHS SIX MONTHS NINE MONTHS TWELVE MONTHS
(In millions) ENDED ENDED ENDED ENDED
MAR 31, JUN 30, SEP 30, DEC 31,
1997 1997 1997 1997
------------ ------------ ------------ ------------
INDUSTRY SEGMENTS
- -----------------
<S> <C> <C> <C> <C>
Sales to Unaffiliated Customers:
Tires $ 2,541.6 $ 5,112.4 $ 7,729.3 $ 10,357.7
Related products and services 210.6 468.8 701.2 911.6
------------ ------------ ------------ ------------
Total Tires 2,752.2 5,581.2 8,430.5 11,269.3
General Products 456.5 917.4 1,366.8 1,796.0
------------ ------------ ------------ ------------
NET SALES $ 3,208.7 $ 6,498.6 $ 9,797.3 $ 13,065.3
============ ============ ============ ============
Income:
Tires $ 266.9 $ 532.0 $ 796.0 $ 780.4
General Products 46.3 104.8 159.5 208.2
------------ ------------ ------------ ------------
OPERATING INCOME 313.2 636.8 955.5 988.6
Exclusions from operating income (70.9) (136.0) (195.6) (245.3)
------------ ------------ ------------ ------------
Income from Continuing Operations $ 242.3 $ 500.8 $ 759.9 $ 743.3
before Income Taxes ============ ============ ============ ============
GEOGRAPHIC SEGMENTS
- -------------------
Sales to Unaffiliated Customers:
United States $ 1,687.7 $ 3,382.5 $ 5,156.6 $ 6,831.0
Europe 764.5 1,569.8 2,320.3 3,160.8
Latin America 383.1 785.0 1,188.2 1,575.0
Asia 199.3 408.7 610.3 772.7
Canada 174.1 352.6 521.9 725.8
------------ ------------ ------------ ------------
NET SALES $ 3,208.7 $ 6,498.6 $ 9,797.3 $ 13,065.3
============ ============ ============ ============
Income:
United States $ 126.4 $ 249.4 $ 404.1 $ 435.4
Europe 79.6 171.3 233.7 214.9
Latin America 68.3 140.1 205.5 224.2
Asia 27.5 50.3 71.9 65.3
Canada 11.4 25.7 40.3 48.8
------------ ------------ ------------ ------------
OPERATING INCOME $ 313.2 $ 636.8 $ 955.5 $ 988.6
============ ============ ============ ============
</TABLE>
X-99.4-1
<PAGE> 1
EXHIBIT 99.5
THE GOODYEAR TIRE & RUBBER COMPANY AND SUBSIDIARIES
RESTATED SEGMENT INFORMATION
UNAUDITED
<TABLE>
<CAPTION>
(In millions) THREE MONTHS ENDED
--------------------------------------------------------------------------
MAR 31, JUN 30, SEP 30, DEC 31,
1997 1997 1997 1997
------------ ------------ ------------ ------------
INDUSTRY SEGMENTS
- -----------------
<S> <C> <C> <C> <C>
Sales to Unaffiliated Customers:
Tires $ 2,541.6 $ 2,570.9 $ 2,616.9 $ 2,628.4
Related products and services 210.6 258.2 232.4 210.4
------------ ------------ ------------ ------------
Total Tires 2,752.2 2,829.1 2,849.3 2,838.8
General Products 456.5 460.8 449.4 429.2
------------ ------------ ------------ ------------
NET SALES $ 3,208.7 $ 3,289.9 $ 3,298.7 $ 3,268.0
============ ============ ============ ============
Income (Loss):
Tires $ 266.9 $ 265.1 $ 264.0 $ (15.6)
General Products 46.3 58.5 54.7 48.7
------------ ------------ ------------ ------------
OPERATING INCOME 313.2 323.6 318.7 33.1
Exclusions from operating income (70.9) (65.1) (59.6) (49.7)
------------ ------------ ------------ ------------
Income from Continuing Operations $ 242.3 $ 258.5 $ 259.1 $ (16.6)
before Income Taxes ============ ============ ============ ============
GEOGRAPHIC SEGMENTS
- -------------------
Sales to Unaffiliated Customers:
United States $ 1,687.7 $ 1,694.8 $ 1,774.1 $ 1,674.4
Europe 764.5 805.3 750.5 840.5
Latin America 383.1 401.9 403.2 386.8
Asia 199.3 209.4 201.6 162.4
Canada 174.1 178.5 169.3 203.9
------------ ------------ ------------ ------------
NET SALES $ 3,208.7 $ 3,289.9 $ 3,298.7 $ 3,268.0
============ ============ ============ ============
Income (Loss):
United States $ 126.4 $ 123.0 $ 154.7 $ 31.3
Europe 79.6 91.7 62.4 (18.8)
Latin America 68.3 71.8 65.4 18.7
Asia 27.5 22.8 21.6 (6.6)
Canada 11.4 14.3 14.6 8.5
------------ ------------ ------------ ------------
OPERATING INCOME $ 313.2 $ 323.6 $ 318.7 $ 33.1
============ ============ ============ ============
</TABLE>
X-99.5-1
