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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 5, 1999
REGISTRATION NO. 333-67145
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
THE GOODYEAR TIRE & RUBBER COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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OHIO
(STATE OF INCORPORATION)
34-0253240
(I.R.S. EMPLOYER IDENTIFICATION NUMBER)
1144 EAST MARKET STREET
AKRON, OHIO 44316-0001
(330) 796-2121
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, OF REGISTRANT'S PRINCIPAL
EXECUTIVE OFFICES)
------------------------
C. THOMAS HARVIE, ESQ., VICE PRESIDENT AND GENERAL COUNSEL
THE GOODYEAR TIRE & RUBBER COMPANY
1144 EAST MARKET STREET
AKRON, OHIO 44316-0001
(330) 796-2121
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
GERRY V. WITTKAMPER, ESQ.
THE GOODYEAR TIRE & RUBBER COMPANY
1144 EAST MARKET STREET
AKRON, OHIO 44316-0001
JOHN W. WHITE, ESQ.
CRAVATH, SWAINE & MOORE
WORLDWIDE PLAZA
825 EIGHTH AVENUE
NEW YORK, NY 10019-7475
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT BEING OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE REGISTRATION FEE
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Debt Securities..................... $1,250,000,000(1) 100% $1,250,000,000(2) $347,500.00(3)
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</TABLE>
(1) Or, if any Debt Securities are issued at original issue discount, such
greater amount as may result in the initial offering prices for Debt
Securities aggregating $1,250,000,000. Any offering of Debt Securities
denominated in any foreign currencies or foreign currency units will be
treated as the equivalent in U.S. dollars based on the exchange rate
applicable to the purchase of such Debt Securities from the Registrant.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(a) under the Securities Act of 1933.
(3) Calculated on the basis of (i) $250,000,000 of Debt Securities registered
under this Registration Statement on November 12, 1998 at a proposed
aggregate offering price of $250,000,000 and a registration fee of
$69,500.00, which amount was paid on November 12, 1998 with the initial
filing of this Registration Statement, and (ii) an additional $1,000,000,000
of Debt Securities registered by this Amendment to this Registration
Statement and an additional registration fee of $278,000.00 paid with the
filing of this Amendment to the Registration Statement.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
SUBJECT TO COMPLETION, DATED APRIL 5, 1999
$1,250,000,000
THE GOODYEAR TIRE & RUBBER COMPANY
DEBT SECURITIES
------------------------
The Goodyear Tire & Rubber Company may offer and sell from time to time
debt securities consisting of debentures, notes and/or other unsecured evidences
of indebtedness in one or more series at an aggregate initial offering price not
to exceed $1,250,000,000. The debt securities may be offered in separate series
in amounts, at prices and on terms determined at the time of offering.
------------------------
WE WILL PROVIDE SPECIFIC TERMS OF EACH SERIES OF THE DEBT SECURITIES IN
SUPPLEMENTS TO THIS PROSPECTUS. YOU SHOULD READ THIS PROSPECTUS AND ANY
ACCOMPANYING PROSPECTUS SUPPLEMENT CAREFULLY BEFORE YOU INVEST.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
The date of this Prospectus is , 1999
<PAGE> 3
YOU SHOULD RELY ONLY ON THE INFORMATION PROVIDED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT. NO
PERSON HAS BEEN AUTHORIZED BY US TO PROVIDE YOU WITH ANY OTHER INFORMATION. WE
ARE NOT MAKING AN OFFER OF ANY DEBT SECURITIES IN ANY STATE WHERE THE OFFER IS
UNLAWFUL. YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS AND THE
ACCOMPANYING PROSPECTUS SUPPLEMENT IS CORRECT AS OF ANY DATE AFTER THE DATE OF
THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that The Goodyear Tire
& Rubber Company ("Goodyear", or "we" or "us") filed with the Securities and
Exchange Commission using the "shelf" registration process. Under this process,
we may sell debt securities in one or more offerings up to a total amount of
$1,250,000,000. This prospectus provides you with a general description of the
debt securities we may offer. Each time we offer to sell debt securities, we
will provide a supplement to this prospectus that will contain specific
information about the terms of that offering. The supplement may also add
information and/or update and/or change the information contained in this
prospectus. You should read this prospectus and any accompanying prospectus
supplement together with the additional information described under the heading
"Where You Can Find More Information About Goodyear." To find more detail about
certain documents, you should read the exhibits filed with the registration
statement.
WHERE YOU CAN FIND MORE INFORMATION ABOUT GOODYEAR
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any document we file with the
SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington,
D.C. 20549. You may call the SEC at 1-800-SEC-0330 (1-800-732-0330) for
information on the operation of the Public Reference Room. Our filings with the
SEC are also available to the public over the SEC's Internet web site at:
http://www.sec.gov.
This prospectus does not contain all of the information in or the exhibits
to the registration statement, which you may read at the SEC's Public Reference
Room or over its Internet web site.
The SEC allows us to "incorporate by reference" into this prospectus
information included in documents we file with it, which means we can disclose
important information to you by referring you to other documents we file with
the SEC. The information incorporated by reference is considered a part of this
prospectus. Information that we file with the SEC later will automatically
update and supercede the information in this prospectus.
We incorporate by reference into this prospectus:
- Our Annual Report on Form 10-K for the year ended December 31, 1998; and
- Any future filings made by us with the SEC (File No. 1-1927) under
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act of 1934, as
amended, until we have sold all of the debt securities offered by this
prospectus.
YOU MAY REQUEST A COPY OF THESE FILINGS, AT NO COST TO YOU, BY WRITING TO
US AT THE FOLLOWING ADDRESS OR CALLING US AT THE TELEPHONE NUMBER BELOW:
OFFICE OF THE SECRETARY
THE GOODYEAR TIRE & RUBBER COMPANY
1144 EAST MARKET STREET
AKRON, OHIO 44316-0001
TELEPHONE NUMBER: 330-796-2121
THE COMPANY
Goodyear was organized as an Ohio corporation in 1898. Together with its
subsidiary companies, Goodyear is one of the world's leading producers of tires
and rubber products. Our principal business is developing,
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manufacturing, distributing and selling new tires for most applications in most
regions of the world. We also manufacture and sell numerous rubber and other
products for the transportation industry and various industrial and consumer
markets, manufacture and sell rubber-related chemicals for various applications,
provide automotive repair and other services at retail and commercial outlets
and sell various other products.
We maintain our principal executive offices at 1144 East Market Street,
Akron, Ohio 44316-0001. Our telephone number is 330-796-2121.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, the net
proceeds we receive from the sale of the debt securities will be used for
general corporate purposes. General corporate purposes may include repaying
short-term bank borrowings and funding future acquisitions, capital expenditures
and working capital requirements.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's ratio of earnings to fixed
charges for the periods indicated:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges.......................... 5.65 5.08 5.18 5.10 4.96
</TABLE>
For purposes of computing the above ratios: earnings consist of income from
continuing operations before income taxes, plus amortization of capitalized
interest, minority interest in net income of subsidiaries, certain other
adjustments, and fixed charges; and fixed charges include interest expense,
amortization of debt discount, premium or expense, the portion of rents
representative of an interest factor, capitalized interest and our share of
fixed charges of equity investees.
DESCRIPTION OF DEBT SECURITIES
THE FOLLOWING DESCRIPTION SETS FORTH CERTAIN GENERAL TERMS OF THE DEBT
SECURITIES. THE PARTICULAR TERMS OF THE SERIES OF DEBT SECURITIES OFFERED BY A
PROSPECTUS SUPPLEMENT WILL BE DESCRIBED IN THE PROSPECTUS SUPPLEMENT RELATING TO
SUCH SERIES OF DEBT SECURITIES.
The debt securities will be issued under an Indenture, dated as of March 1,
1999 (the "Indenture"), between Goodyear and The Chase Manhattan Bank, as
trustee (the "Trustee"). The following summary of certain provisions of the
Indenture is not complete. Section references below are to sections of the
Indenture. Capitalized terms have the meanings assigned to them in the
Indenture. The referenced sections of the Indenture and the definitions of the
capitalized terms are incorporated by reference. A copy of the Indenture is
filed as an exhibit to the registration statement.
GENERAL
The Indenture provides for the issuance of our debt securities in an
unlimited amount from time to time in one or more separate series. The debt
securities will be unsecured and will have the same rank as all of our other
unsecured and unsubordinated indebtedness.
The prospectus supplement relating to any particular series of debt
securities offered will describe (to the extent applicable) the following terms
with respect to the offered debt securities:
- the title of the debt securities;
- the aggregate principal amount of the debt securities;
- the price at which the debt securities will be issued;
- the dates on which the principal of the debt securities will be due and
payable;
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- the rate or rates (which may be fixed or variable) and/or any method for
determining the rate or rates at which the debt securities will bear
interest, if any;
- the date or dates from which any interest will accrue;
- the date on which payment of interest, if any, will commence, the
interest payment dates, and the regular record dates for determining the
holder to whom such interest will be payable;
- the person to whom any interest will be payable, if other than the person
in whose name the debt security is registered at the close of business on
the regular record date for such interest payment;
- the place or places where payments on the debt securities will be
payable;
- any mandatory or optional sinking fund provisions applicable to the debt
securities;
- any mandatory or optional redemption provisions applicable to the debt
securities;
- if other than U.S. Dollars, the currency or currencies, including
composite currencies, in which payments on the debt securities will be
payable;
- any index used to determine the amount of payments of principal of (and
premium, if any) or interest on the debt securities;
- the portion of the principal amount of the debt securities, if other than
the principal amount thereof, payable upon acceleration of maturity
thereof;
- any right we have to defease the debt securities under the Indenture;
- whether such debt securities will be issued in fully registered form
without coupons or will be issued in the form of one or more global
securities in temporary global form or definitive global form;
- any addition to or change in the covenants or events of default set forth
below which will apply to the debt securities; and
- any other terms of the debt securities, which terms must be consistent
with the Indenture. (Section 3.01)
Debt securities may be issued as original issue discount debt securities.
An original issue discount debt security bears no interest or bears interest at
a below-market rate, is sold at a discount to its stated principal amount and,
ordinarily, provides that less than the stated principal amount will be payable
upon any acceleration of its maturity. (Section 1.01) The applicable prospectus
supplement will describe any special tax, accounting or other information
relating to original issue discount debt securities or relating to certain other
kinds of debt securities then being offered, such as debt securities linked to
an index, payable in currencies other than U.S. dollars, or subject to special
repayment or other provisions.
Unless otherwise specified in the prospectus supplement relating to any
particular series of the debt securities:
- principal of (and premium, if any) and interest, if any, on the debt
securities will be payable at the office of the Trustee maintained for
such purpose, except that we have the option to pay interest by mailing a
check to the address of the person entitled thereto as indicated by the
security register;
- transfers and exchanges of the debt securities may be made at the office
of the Trustee maintained for such purpose;
- payment of any interest due on any debt security will be made to the
person in whose name such debt security is registered at the close of
business on the regular record date for such interest;
- the debt securities will be issued only in fully registered form without
coupons and in denominations of $1,000 or any integral multiples thereof;
and
- no service charge will be made for any transfer or exchange of the debt
securities, but we may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection with a transfer or
exchange. (Sections 3.01, 3.02, 3.05, 3.07 and 10.02)
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COVENANTS
LIMITATION ON SECURED INDEBTEDNESS. The Indenture contains a covenant by
us that, so long as any debt securities are outstanding, neither we nor any
Restricted Subsidiary (as defined below) will issue, assume or guarantee any
Secured Indebtedness (as defined below) secured by a Lien (as defined below) on
Restricted Property (as defined below) without securing the debt securities
equally and ratably with, or prior to, such Secured Indebtedness. The foregoing
limitation on Secured Indebtedness does not apply to:
- any Lien on Restricted Property of a Restricted Subsidiary that exists
when the corporation becomes a Restricted Subsidiary;
- any Lien on Restricted Property that exists when Goodyear or a Restricted
Subsidiary acquires such Restricted Property;
- any Lien on Restricted Property securing payment of all or part of the
purchase price of such Restricted Property;
- any Lien on Restricted Property to secure any indebtedness incurred to
finance all or part of the purchase price of such Restricted Property,
whether incurred before, at the time of, or within one year after, the
acquisition of such Restricted Property;
- any Lien on property of a corporation that exists when such corporation
is merged into or consolidated with Goodyear or a Restricted Subsidiary;
- any Lien on property of a corporation that exists prior to the sale,
lease or other disposition of all or substantially all of the properties
of such corporation to Goodyear or a Restricted Subsidiary;
- any Lien securing Secured Indebtedness owing by any Restricted Subsidiary
to Goodyear or another Restricted Subsidiary;
- any Lien on Restricted Property in favor of any country, any political
subdivision of any country, or any department, agency or instrumentality
of any country or any political subdivision of any country, to secure
progress or other payments to us, or the performance of our obligations,
pursuant to any contract or statute or to secure any indebtedness
incurred to finance all or part of the cost of such Restricted Property,
including Liens to secure pollution control or industrial revenue bonds
or other types of financings;
- any Lien on personal property, other than manufacturing equipment that is
Restricted Property;
- any extension, renewal or replacement of any Secured Indebtedness or any
Lien referred to above, provided that the principal amount of Secured
Indebtedness secured by the Lien shall not exceed the principal amount
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 such Lien (plus
improvements on such Restricted Property); or
- any Lien on Restricted Property that would not otherwise be permitted, if
the aggregate amount of all Secured Indebtedness secured by Liens not
otherwise permitted, determined immediately after the grant of the Lien,
does not exceed 15% of our consolidated stated capital, plus capital
surplus, plus retained earnings as reported on our then most recent
annual or quarterly consolidated balance sheet. (Section 10.05.)
Lien, Restricted Property, Restricted Subsidiary and Secured Indebtedness
are defined in Section 1.01 of the Indenture. For your reference:
- "Lien" means any mortgage, lien, pledge, security interest or title
retention agreement relating to any asset.
- "Restricted Property" means any manufacturing plant or equipment owned by
us or a Restricted Subsidiary which is used primarily to manufacture
tires or other automotive products and is located within the United
States of America, excluding (i) retread plants, (ii) plants, facilities
and equipment used primarily for transportation, marketing or
warehousing, (iii) oil and gas pipeline and related assets, and (iv)
certain other plants and equipment that are not important to our
business.
- "Restricted Subsidiary" means a subsidiary of ours engaged primarily in
manufacturing tires or other automotive products, which (i) has
substantially all of its assets located in, and conducts substantially
all
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of its operations in, the United States of America and (ii) has assets in excess
of 5% of the total consolidated assets of us and our consolidated subsidiaries
(as shown on our then most recent annual or quarterly consolidated balance
sheet), other than a subsidiary primarily engaged in financing accounts
receivable, leasing or owning real estate or transportation or
distribution activities.
- "Secured Indebtedness" means indebtedness of us or any Restricted
Subsidiary for money borrowed (including capital lease obligations and
conditional sales contracts) that matures (or may be extended so as to
mature) more than one year after it was incurred, assumed or guaranteed
and is secured by a Lien on Restricted Property, other than indebtedness
secured by a Lien which is outstanding at March 1, 1999.
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS. We also covenant that
neither we nor any Restricted Subsidiary will enter into any lease covering any
Restricted Property owned at March 1, 1999 that is sold to any other person in
connection with such lease unless we or such Restricted Subsidiary:
- would be entitled under the Indenture to incur Secured Indebtedness
secured by a Lien on the Restricted Property to be leased in an amount
equal to the Attributable Debt (as defined below) with respect to such
transaction without equally and ratably securing the debt securities; or
- use (within 120 days of the effective date of such transaction) an amount
equal to the proceeds from the sale of such Restricted Property to repay
any indebtedness of ours or such Restricted Subsidiary that matures (or
may be extended so as to mature) more than one year after it was incurred
or assumed.
This covenant does not prevent us or any Restricted Subsidiary from
entering into any sale and lease back transaction:
- involving a lease with a term of three years or less; or
- which is entered into within 180 days after the later of the acquisition,
the completion of construction, or the commencement of operation of such
Restricted Property. (Section 10.06)
"Attributable Debt" is the total net amount of rent required to be paid
during the term of the relevant lease, discounted at the rate per annum equal to
the lesser of (i) the prevailing market interest rate at the relevant date on
United States Treasury obligations having a maturity substantially equal to the
average term of the relevant lease, plus 3%, and (ii) the weighted average
interest rate borne by debt securities then outstanding.
CONSOLIDATION, MERGER AND SALE OF ASSETS. We also covenant that we will
not merge into or consolidate with, or sell all or substantially all of our
assets to, any Person, unless (a) the successor is a corporation organized under
the laws of the United States of America or any state thereof, and (b) the
successor corporation assumes all of our obligations under the debt securities
and the Indenture. (Section 8.01) Upon any such merger, consolidation or sale,
the successor corporation will succeed to, and be substituted for, us. (Section
8.02).
NO COVENANTS PROTECTING HOLDERS IN THE EVENT OF HIGHLY LEVERAGED
TRANSACTIONS. In the event of a recapitalization or highly leveraged
transaction involving Goodyear, the Indenture does not and, unless set forth in
the prospectus supplement relating to a particular series of debt securities,
will not:
- contain any covenant (other than those described above) designed to
protect holders of the debt securities;
- limit the total amount of indebtedness that we may incur;
- grant any right of redemption to holders of the debt securities; or
- provide for new covenants or any adjustments to terms and conditions of
the debt securities.
NO REDEMPTION OR AMENDMENT UPON CHANGE IN CONTROL. The Indenture does not
and, unless set forth in the prospectus supplement relating to a particular
series of debt securities, will not require redemption, or any change in the
covenants or other adjustments to the terms and conditions, of the debt
securities in the event of any change in control of Goodyear.
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EVENTS OF DEFAULT
An "Event of Default" under the Indenture (Section 5.01) with respect to
debt securities of any series is the occurrence of any one of the following
events:
- default for 30 days in payment of any interest on any debt security of
that series;
- default in payment of principal of (or premium, if any, on) any debt
security of that series when due;
- failure to deposit when due any sinking fund payment in respect the debt
securities of that series;
- our failure for 60 days after appropriate notice to perform any of the
other covenants in the Indenture (except covenants not applicable to debt
securities of that series);
- certain events of bankruptcy, insolvency or reorganization of Goodyear;
or
- any other Event of Default provided with respect to debt securities of
that series.
If any Event of Default with respect to debt securities of any series
occurs and is continuing, either the Trustee or the holders of not less than 25%
in principal amount of the debt securities of that series then outstanding may
declare the principal amount (or, if applicable, a specified portion of the
principal amount of any original issue discount debt securities) of all debt
securities of that series to be due and payable immediately. Subject to certain
conditions, the declaration may be annulled and past defaults (except uncured
payment defaults and certain other specified defaults) may be waived by the
holders of a majority in principal amount of the debt securities of that series
then outstanding. (Sections 5.02 and 5.13)
The prospectus supplement relating to each series of debt securities that
consists in whole or in part of original issue discount debt securities will
describe any particular provisions relating to acceleration of the maturity of
such original issue discount debt securities when an Event of Default occurs,
including the portion of the stated amount that would be due.
The Trustee is required to give the holders of any series of debt
securities notice of a default known to it (if uncured or not waived) within 90
days after the default occurs. Except in the case of a payment default, the
Trustee may withhold this notice if it determines in good faith that withholding
it is in the interest of the holders of such series. The above notice shall not
be given until at least 60 days after a default occurs in the performance of a
covenant in the Indenture other than a payment default. The term "default" for
this purpose means any event which is, or after notice and/or lapse of time
would become, an Event of Default with respect to debt securities of that
series. (Section 6.02)
Other than the duty to act with the required standard of care, the Trustee
is not obligated to exercise any of its rights or powers under the Indenture at
the request or direction of the holders of debt securities unless the holders
indemnify the Trustee. (Section 6.03)
If the Trustee is indemnified, the holders of a majority in principal
amount of debt securities of any series may direct the time, method and place of
conducting any proceeding for any available remedy or for exercising any trust
or other power conferred on the Trustee. However, the Trustee may decline to act
if such direction is contrary to law or the Indenture. (Section 5.12)
No holder of any debt security of any series may start a lawsuit under the
Indenture, unless:
- the holder has given to the Trustee written notice of a continuing Event
of Default with respect to debt securities of that series;
- the holders of at least 25% in principal amount of the debt securities of
that series then outstanding make a written request to the Trustee to
seek a remedy and offer a reasonable indemnity;
- the Trustee fails to start a lawsuit within 60 days; and
- the Trustee does not receive from the holders of a majority in principal
amount of the debt securities of that series then outstanding a direction
inconsistent with such request during such 60-day period. (Section 5.07)
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However, the holder of any debt security will have an absolute right to receive
payment of the principal of (and premium, if any) and any interest on such debt
security when due and to institute suit for the enforcement of any such payment.
(Section 5.08)
The Indenture requires us to file annually with the Trustee a certificate
stating that no default exists under certain provisions of the Indenture or
specifying any default that exists. (Section 10.08)
DEFEASANCE
The prospectus supplement will state if any defeasance provision will apply
to the offered debt securities.
DEFEASANCE AND COVENANT DEFEASANCE. The Indenture provides that, if made
applicable to any series of debt securities, we may elect to:
- defease and be discharged from all of our obligations (subject to certain
limited exceptions) with respect to any series of debt securities then
outstanding ("Defeasance"); and/or
- be released from our obligations under certain covenants and from the
consequences of an Event of Default resulting from the breach of those
covenants ("Covenant Defeasance").
To elect Defeasance and/or Covenant Defeasance, we must deposit in trust
with the Trustee money and/or U.S. Government Obligations which through the
payment of interest and principal in accordance with their terms will provide
money in an amount sufficient to repay in full when due the debt securities of
such series. As a condition to Defeasance or Covenant Defeasance, we must
deliver to the Trustee an opinion of counsel that holders of the debt securities
of such series will not recognize income, gain or loss for federal income tax
purposes as a result of the Defeasance or Covenant Defeasance and that the debt
securities, if then listed on a national securities exchange under the Exchange
Act, would not be delisted as a result of the defeasance. (Sections 13.02, 13.03
and 13.04) In the case of Defeasance, we may deliver to the Trustee a ruling of
the Internal Revenue Service in lieu of the opinion of counsel.
COVENANT DEFEASANCE AND CERTAIN EVENTS OF DEFAULT. If we implement
Covenant Defeasance for a series of the debt securities and such series is
declared due and payable because of the occurrence of one of certain Events of
Default, the amount of money and U.S. Government Obligations on deposit with the
Trustee will be sufficient to pay amounts due on the Debt Securities of such
series at the time of their stated maturity, but may not be sufficient to pay
amounts due at the time of the acceleration resulting from such Event of
Default. However, we remain liable for such payments.
MODIFICATIONS AND WAIVERS OF THE INDENTURE
Goodyear and the Trustee may modify (by adding, changing or eliminating any
provision of) the Indenture (as provided at Section 9.02) with the consent of
the holders of not less than a majority in principal amount of outstanding debt
securities of each series affected. However, without the consent of each
affected holder, no modification may:
- change the dates fixed in any debt security for the payment of the
principal of and interest on such debt security.
- reduce the principal amount of (or premium, if any) or any interest on
any debt security.
- reduce the rate of interest on any debt security.
- reduce the amount of principal of an original issue discount debt
security payable upon acceleration.
- change the place or currency of payment of principal of (or premium, if
any) or interest on any debt security.
- impair the right to institute suit for the enforcement of any payment on
any debt security on or after such payment is due and payable.
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- reduce the percentage in principal amount of debt securities of any
series required to consent a modification of, or waiver under, the
Indenture.
- effect certain other changes.
The holders of a majority in principal amount of debt securities of any
series then outstanding may waive our compliance with certain restrictive
provisions of the Indenture with respect to that series. (Section 10.09) The
holders of a majority in principal amount of debt securities of any series then
outstanding may waive any past default under the Indenture with respect to that
series, except a default in the payment of the principal of or interest (or
premium, if any) on any debt security of that series or a default under a
covenant which cannot be modified or amended without the consent of all affected
holders of debt securities. (Section 5.13)
PERMANENT GLOBAL DEBT SECURITIES -- BOOK-ENTRY SYSTEM
The following will apply to the debt securities of any series, unless
otherwise indicated in the prospectus supplement relating to that series.
The debt securities of each series will be represented by one or more
permanent global securities (collectively, a "global security") to be deposited
with and registered in the name of a depositary or a nominee of the depositary
identified in the prospectus supplement relating to such series. Unless
otherwise indicated in the prospectus supplement relating to that series of debt
securities, The Depositary Trust Company will act as depositary and the global
security will be deposited with DTC, as depositary, or its nominee and
registered in the name of a nominee of DTC. Except under the limited
circumstances described below, global securities are not exchangeable for
definitive certificated debt securities.
Ownership of beneficial interests in a global security is limited to
institutions that have accounts with DTC or its nominee ("participants") or
persons that may hold interests through participants. Ownership of beneficial
interests by participants in a global security will be evidenced only by, and
the transfer of that ownership interest will be effected only through, records
maintained by DTC or its nominee for that global security. Ownership of
beneficial interests in a global security by a person that holds through a
participant will be evidenced only by, and the transfer of that beneficial
interest within that participant will be effected only through, records
maintained by that participant. DTC has no knowledge of the actual beneficial
owners of the debt securities. Beneficial owners will not receive written
confirmation from DTC of their purchase. Beneficial owners are expected to
receive written confirmations of the details of transactions and periodic
statements of their holdings from the participants through which the beneficial
owners entered into the transactions. The laws of certain jurisdictions require
that certain owners of securities obtain possession of such securities in
definitive form. Such laws may impair the ability to transfer beneficial
interests in a global security.
We have been advised by DTC that upon the issuance of a global security and
the deposit of that global security with DTC, DTC will immediately credit, on
its book-entry registration and transfer system, the respective principal
amounts of the debt securities represented by that global security to the
accounts of its participants.
So long as DTC, or its nominee, is the registered holder and owner of a
global security, it will be considered the sole owner and holder of the debt
securities for all purposes of such debt securities and under the Indenture.
Except as set forth below, owners of beneficial interests in a global security
will not be entitled to have debt securities represented by such global security
registered in their names, will not receive or be entitled to receive physical
delivery of debt securities in definitive form and will not be considered to be
the owners or holders of any debt securities under the Indenture or such global
security. Accordingly, each person owning a beneficial interest in a global
security must rely on the procedures of the DTC and, if such person is not a
participant, on the procedures of the participant through which such person owns
its interest, to exercise any rights of a holder of debt securities under the
Indenture or the global security. The Indenture permits the Depositary to
authorize participants, as its agents, to take any action which the Depositary,
as the holder of a global security, is entitled to take under the Indenture or
such global security.
Payment of principal of and premium, if any, and interest, if any, on debt
securities represented by a global security will be made to DTC or its nominee,
as the case may be, as the registered owner and holder of the global security
representing those debt securities.
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We have been advised by DTC that upon receipt of any payment of principal
of, or premium, if any, or interest on, a global security, DTC will immediately
credit participants' accounts on its book-entry registration and transfer system
with payments in amounts proportionate to their respective beneficial interests
in the principal amount of that global security as shown on the records of DTC.
Payments by participants to owners of beneficial interests in a global security
held through those participants will be governed by standing instructions and
customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the sole
responsibility of such participants, subject to any statutory or regulatory
requirements that may be in effect from time to time.
Neither we nor the Trustee will be responsible for any aspect of the
records of DTC, any nominee or any participant relating to, or payments made on
account of, beneficial ownership interests in a global security for any debt
securities or for maintaining, supervising or reviewing any records of DTC, any
nominee or any participant relating to such beneficial ownership interests.
Further, neither we nor the Trustee will be responsible for any other aspect of
the relationship between the DTC and its participants or the relationship
between such participants and the owners of beneficial interests in such global
security owning through such participants.
A global security is exchangeable for definitive debt securities registered
in the name of, and a transfer of a global security may be registered to, any
person other than DTC or its nominee, only if:
(a) DTC notifies us that it is unwilling or unable to continue as
depositary for that global security or at any time DTC ceases to be a
clearing agency registered under the Exchange Act;
(b) we at any time determine in our discretion that all or a portion
of the global security shall be exchangeable for definitive debt securities
in registered form; or
(c) an Event of Default with respect to the debt securities shall have
occurred and be continuing.
Any global security that is exchangeable pursuant to the preceding sentence
will be exchangeable in whole for definitive debt securities in registered form,
of like tenor and of an equal aggregate principal amount as the global security,
in denominations specified in the applicable prospectus supplement (if other
than $1,000 and integral multiples of $1,000). The definitive debt securities
will be registered by the registrar in the name or names instructed by DTC. We
expect that these instructions may be based upon directions received by DTC from
its participants with respect to ownership of beneficial interests in the global
security. Any principal and interest will be payable, the transfer of the
definitive debt securities will be registerable, and the definitive debt
securities will be exchangeable at the corporate trust office of the Trustee in
the Borough of Manhattan, The City of New York, provided that payment of
interest may be made at our option by check mailed to the address of the person
entitled to that interest payment as of the record date and as shown on the
register for the debt securities.
Except as provided above, owners of the beneficial interests in a global
security will not be entitled to receive physical delivery of debt securities in
definitive form and will not be considered the holders of debt securities for
any purpose under the Indenture. No global security shall be exchangeable except
for another global security of like denomination and tenor to be registered in
the name of DTC or its nominee. Accordingly, each person owning a beneficial
interest in a global security must rely on the procedures of DTC and, if that
person is not a participant, on the procedures of the participant through which
that person owns its interest, to exercise any rights of a holder under the
global security or the Indenture.
We understand that, under existing industry practices, if we request any
action of holders, or an owner of a beneficial interest in a global security
desires to take any action that a holder is entitled to take under the debt
securities or the Indenture, then DTC would authorize the participants holding
the relevant beneficial interests to take that action and those participants
would authorize beneficial owners owning through those participants to take that
action or would otherwise act upon the instructions of beneficial owners owning
through them.
DTC has advised us that DTC is a limited purpose trust company organized
under the laws of the State of New York, a "banking organization" within the
meaning of the New York Banking Law, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial
Code and a "clearing agency" registered under the Exchange Act. DTC was created
to hold securities of its participants and to facilitate the clearance and
settlement of securities transactions among its participants in those securities
through electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. DTC's
participants include securities brokers and dealers, banks,
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trust companies, clearing corporations and certain other organizations. DTC is
owned by a number of its participants and by the New York Stock Exchange, Inc.,
the American Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc. Access to DTC's book-entry system is also available to others,
such as banks, brokers, dealers and trust companies that clear through or
maintain a custodial relationship with a participant, either directly or
indirectly. The rules applicable to DTC and its participants are on file with
the Commission.
DTC has informed its participants and others that it is implementing a
program so that its processing data systems, as they relate to the timely
payment of distributions to securityholders, book-entry deliveries, and
settlement of trades within DTC, will function properly on and after January 1,
2000. DTC has indicated that it has completed a technical assessment and
remediation plan and expects to complete testing within appropriate time frames.
DTC's ability to perform its services is also dependent upon other parties,
including issuers and their agents, vendors of software and hardware, and
information, telecommunication and electrical utility service vendors. DTC has
informed its participants and others that it is contacting its vendors to
determine the extent of their efforts for Year 2000 remediation and testing of
their services and is developing such contingency plans as it deems appropriate.
According to DTC, the foregoing information is not intended as a representation,
warranty, or contract modification of any kind.
SAME-DAY SETTLEMENT AND PAYMENT
Settlement by the purchasers of the debt securities will be made in
immediately available funds. All payments of principal and interest by us to DTC
will be made in immediately available funds.
The debt securities will trade in DTC's Same-Day Funds Settlement System
until maturity. DTC will require secondary trading activity in the debt
securities to be settled in immediately available funds. The settlement of
trades in immediately available funds may affect trading activity in the debt
securities, since secondary trading in long-term notes and debentures of
corporate issuers is generally settled in clearing-house or next-day funds.
INFORMATION CONCERNING THE TRUSTEE
The Chase Manhattan Bank is the Trustee under the Indenture. The Chase
Manhattan Bank is also the Trustee under an indenture, dated as of March 15,
1996, between Goodyear and The Chase Manhattan Bank, as Trustee, which contains
substantially the same covenants and events of default as those set forth in the
Indenture. Under the indenture dated March 15, 1996, Goodyear issued $250
million principal amount of its 6 5/8% Notes due 2006, $150 million principal
amount of its 7% Notes due 2028 and $100 million principal amount of its 6 3/8%
Notes due 2008. We maintain various banking relationships with the Trustee. The
Bank is the agent and a lender under our Revolving Credit Facility Agreement, as
amended by a Second Replacement and Restatement Agreement, dated as of July 13,
1998. The Chase Manhattan Bank and 23 other domestic and international banks
have agreed to lend us up to $700 million at any one time outstanding from time
to time through July 13, 2003 under the Revolving Credit Facility Agreement. The
Chase Manhattan Bank is also the agent and a lender under our Credit Agreement
[364-Day Facility], as amended by a Second Replacement and Restatement Agreement
[364-Day Facility], dated as of July 13, 1998. Under the Credit Agreement, The
Chase Manhattan Bank and 23 other domestic and international banks have agreed
to lend us up to $300 million at any one time outstanding from time to time
through July 12, 1999, when the commitment of each participating bank terminates
unless extended for 364 days on a bank by bank basis. We may obtain a two year
loan from any non-extending bank. The Chase Manhattan Bank is from time to time
the counterparty to certain interest rate exchange transactions and performs
various other banking services for us in the ordinary course of business. The
Chase Manhattan Bank has received and will receive fees and other compensation
in connection with the aforesaid credit agreements and for other transactions
and services.
GOVERNING LAW
The Indenture and the debt securities will be governed by, and construed in
accordance with, the laws of the State of New York.
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PLAN OF DISTRIBUTION
We may offer and sell debt securities from time to time in and/or outside
the United States:
- through underwriters or dealers;
- directly to one or more purchasers;
- through agents; or
- through a combination of such methods.
The applicable prospectus supplement with respect to any particular series
of debt securities offered will set forth:
- the terms of the offering of that series of debt securities.
- the name of each underwriter, dealer or agent, if any.
- the initial public offering price of that series of debt securities.
- the proceeds to us from such sale.
- any delayed delivery arrangement.
- any underwriting discounts and other items constituting underwriters'
compensation.
- any discounts or concessions allowed or re-allowed or paid to dealers.
Any initial public offering price and any discount or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale, the debt securities will be acquired
by the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The debt
securities may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. We will execute an underwriting agreement with
those underwriters which will provide, among other things, that the obligations
of the underwriters will be subject to certain conditions and that the
underwriters must purchase all debt securities then being offered if any are
purchased.
If dealers are used in the sale of debt securities, we will sell the debt
securities to the dealers as principals. The dealers may then resell the debt
securities to the public at varying prices to be determined by the dealers at
the time of resale.
The debt securities may be sold through agents we designate from time to
time. Any agent involved in the offer or sale of the debt securities will be
named, and any commissions payable by us to such agent will be set forth, in the
prospectus supplement relating thereto. Unless otherwise indicated in the
prospectus supplement, any such agent will be acting on a best efforts basis for
the period of its appointment.
We may sell the debt securities directly to institutional investors or
others, who may be deemed to be underwriters within the meaning of the
Securities Act of 1933, as amended, with respect to any resale thereof. The
terms of any such sales, including the terms of any bidding or auction process,
will be described in the prospectus supplement relating thereto.
Underwriters, dealers and agents may be entitled under agreements entered
into with us to indemnification by us against certain liabilities, including
liabilities under the Securities Act. Underwriters, dealers and agents and their
affiliates may have in the past engaged, and may in the future engage, in
transactions with, or perform services for, us and our affiliates in the
ordinary course of business and receive compensation for such transactions and
services.
Each series of debt securities will be a new issue of securities with no
established trading market. Unless otherwise specified in a prospectus
supplement, the debt securities will not be listed on any securities exchange.
No assurance can be given as to the existence or liquidity of a trading market
for any series of debt securities.
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In connection with an offering, certain persons participating in such
offering may engage in transactions that stabilize, maintain or otherwise affect
the price of the debt securities. Specifically, such persons may overallot such
offering, creating a syndicate short position. Such persons may bid for, and
purchase, the debt securities in the open market to cover syndicate shorts or to
stabilize the price of the debt securities. Such person may reclaim selling
concessions allowed for distributing the debt securities in an offering, if such
persons repurchase previously distributed debt securities in syndicate covering
transactions, in stabilization transactions or otherwise. Any of these
activities may stabilize or maintain the market price of the debt securities
above independent market levels. Such activities, if commenced, may be
discontinued at any time.
VALIDITY OF DEBT SECURITIES
Unless otherwise indicated in an accompanying prospectus supplement
relating to any particular series of the debt securities offered, the validity
of the debt securities will be passed upon for us by C. Thomas Harvie, Esq., a
Vice President and the General Counsel of Goodyear, and for any underwriters or
agents by Cravath, Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue, New York,
New York 10019.
EXPERTS
The consolidated financial statements of Goodyear incorporated in this
Prospectus by reference to Goodyear's Annual Report on Form 10-K for the year
ended December 31, 1998 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following list sets forth the expenses (other than underwriting
discounts and commissions) expected to be incurred in connection with the
issuance and distribution of the debt securities being registered by this
Registration Statement. All amounts are estimated except the Commission
registration fee.
<TABLE>
<S> <C>
Commission Registration Fee................................. $ 347,500.00
Printing and Engraving Costs................................ $ 100,000.00*
Accounting Fees and Expenses................................ $ 150,000.00*
Trustee Fees and Expenses................................... $ 20,000.00*
Legal Fees and Expenses..................................... $ 20,000.00*
Rating Agencies' Fees....................................... $ 878,000.00*
Blue Sky Fees and Expenses.................................. $ 10,000.00*
Miscellaneous............................................... $ 50,000.00*
-------------
Total............................................. $1,575,500.00*
=============
</TABLE>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article V of the Code of Regulations of Registrant concerns indemnification
of the Registrant's directors and officers and provides as follows:
INDEMNIFICATION
"The Company shall indemnify each person who is or was a director, officer
or employee of the Company, or of any other corporation which he served as such
at the request of the Company, against any and all liability and reasonable
expense that may be incurred by him in connection with or resulting from any
claim, action, suit or proceeding (whether brought by or in the right of the
Company or such other corporation or otherwise), civil or criminal, or in
connection with an appeal relating thereto, in which he may become involved, as
a party or otherwise, by reason of his being or having been a director, officer,
or employee of the Company or of such other corporation, or by reason of any
past or future action taken or not taken in his capacity as such director,
officer, or employee, whether or not he continues to be such at the time such
liability or expense is incurred, provided such person acted, in good faith, in
what he reasonably believed to be the best interests of the Company or such
other corporation, as the case may be, and, in addition, in any criminal action
or proceeding, had no reasonable cause to believe that his conduct was unlawful.
As used in this Article, the terms "liability" and "expense" shall include, but
shall not be limited to, counsel fees and disbursements and amounts of
judgments, fines, or penalties against, and amounts paid in settlement by, a
director, officer, or employee, other than amounts paid to the Company itself or
to such other corporation served at the Company's request. The termination of
any claim, action, suit, or proceeding, civil or criminal, by judgment,
settlement (whether with or without court approval) or conviction or upon a plea
of guilty or of nolo contendere, or its equivalent, shall not create a
presumption that a director, officer, or employee did not meet the standards of
conduct set forth in the first sentence of this Article. Any such director,
officer, or employee referred to in this Article who has been wholly successful,
on the merits or otherwise, with respect to any claim, action, suit or
proceeding of the character described herein shall be entitled to
indemnification as of right. Except as provided in the preceding sentence, any
indemnification hereunder shall be made at the discretion of the Company, but
only if (1) the Board, acting by a quorum consisting of directors who are not
parties to (or who have been wholly successful with respect to) such claim,
action, suit, or proceeding, shall find that the director, officer, or employee
has met the standards of conduct set forth in the first sentence of this
Article, or (2) independent legal counsel (who may be the regular counsel of the
Company) shall
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deliver to it their written advice that, in their opinion, such director,
officer, or employee has met such standards. Expense incurred with respect to
any such claim action, suit, or proceeding may be advanced by the Company prior
to the final disposition thereof upon receipt of an undertaking by or on behalf
of the recipient to repay such amount unless it shall ultimately be determined
that he is entitled to indemnification under this Article. The rights of
indemnification provided in this Article shall be in addition to any rights to
which any person concerned may otherwise be entitled by contract or as a matter
of law, and shall inure to the benefit of their heirs, executors, and
administrators of any such person."
Indemnification also may be made available by Registrant to its directors,
officers, employees and agents, and may be available as a matter of right, under
Section 1701.13(E) of the Ohio Revised Code. Section 1701.13(E) of the Ohio
Revised Code provides as follows:
"(E)(1) A corporation may indemnify or agree to indemnify
any person who was or is a party, or is threatened to be made a
party, to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or
investigative, other than an action by or in the right of the
corporation, by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director,
trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture,
trust, or other enterprise, against expenses, including
attorney's fees, judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection
with such action, suit, or proceeding, if he acted in good faith
and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to
any criminal action or proceeding, if he had no reasonable cause
to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did
not act in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a
party, to any threatened, pending, or completed action or suit
by or in the right of the corporation to procure a judgment in
its favor, by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director,
trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture,
trust, or other enterprise, against expenses, including
attorney's fees, actually and reasonably incurred by him in
connection with the defense or settlement of such action or
suit, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in
respect of any of the following:
(a) Any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation unless, and only to
the extent that, the court of common pleas or the court in which
such action or suit was brought determines, upon application,
that, despite the adjudication of liability, but in view of all
the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the court
of common pleas or such other court shall deem proper;
(b) Any action or suit which the only liability asserted
against a director is pursuant to Section 1701.95 of the Revised
Code.
(3) To the extent that a director, trustee, officer,
employee, member, manager, or agent has been successful on the
merits or otherwise in defense of any action, suit, or
proceeding referred to in division (E)(1) or (2) of this
section, or in defense of any claim, issue, or matter
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therein, he shall be indemnified against expenses, including
attorney's fees, actually and reasonably incurred by him in
connection with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of
this section, unless ordered by a court, shall be made by the
corporation only as authorized in the specific case, upon a
determination that indemnification of the director, trustee,
officer, employee, member, manager, or agent is proper in the
circumstances because he has met the applicable standard of
conduct set forth in division (E)(1) or (2) of this section.
Such determination shall be made as follows:
(a) By a majority vote of a quorum consisting of directors
of the indemnifying corporation who were not and are not parties
to or threatened with the action, suit, or proceeding referred
to in division (E)(1) or (2) of this section;
(b) If the quorum described in division (E)(4)(a) of this
section is not obtainable or if a majority vote of a quorum of
disinterested directors so directs, in a written opinion by
independent legal counsel other than an attorney, or a firm
having associated with it an attorney, who has been retained by
or who has performed services for the corporation or any person
to be indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the
action, suit, or proceeding referred to in division (E)(1) or
(2) of this section was brought.
Any determination made by the disinterested directors under
division (E)(4)(a) or by independent legal counsel under
division (E)(4)(b) of this section shall be promptly
communicated to the person who threatened or brought the action
or suit by or in the right of the corporation under division
(E)(2) of this section, and, within ten days after receipt of
such notification, such person shall have the right to petition
the court of common pleas or the court in which such action or
suit was brought to review the reasonableness of such
determination.
(5)(a) Unless at the time of a director's act or omission
that is the subject of an action, suit, or proceeding referred
to in division (E)(1) or (2) of this section, the articles or
the regulations of a corporation state, by specific reference to
this division, that the provisions of this division do not apply
to the corporation and unless the only liability asserted
against a director in an action, suit, or proceeding referred to
in division (E)(1) or (2) of this section is pursuant to section
1701.95 of the Revised Code, expenses, including attorney's
fees, incurred by a director in defending this action, suit, or
proceeding shall be paid by the corporation as they are
incurred, in advance of the final disposition of the action,
suit, or proceeding, upon receipt of an undertaking by or on
behalf of the director in which he agrees to do both of the
following:
(i) Repay such amount if it is proved by clear and
convincing evidence in a court of competent jurisdiction that
his action or failure to act involved an act or omission
undertaken with deliberate intent to cause injury to the
corporation or undertaken with reckless disregard for the best
interests of the corporation;
(ii) Reasonably cooperate with the corporation concerning
the action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a
director, trustee, officer, employee, member, manager, or agent
in defending any action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, may be paid by the
corporation as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, as authorized by
the directors in the specific case, upon receipt of an
undertaking by or on behalf of the director,
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trustee, officer, employee, member, manager, or agent to repay
such amount, if it ultimately is determined that he is not
entitled to be indemnified by the corporation.
(6) The indemnification authorized by this section shall
not be the exclusive of, and shall be in addition to, any other
rights granted to those seeking indemnification under the
articles, the regulations, any agreement, a vote of shareholders
or disinterested directors, or otherwise, both as to action in
their official capacities and as to action in another capacity
while holding their offices or positions, and shall continue as
to a person who ceased to be a director, trustee, officer,
employee, member, manager, or agent and shall inure to the
benefit of their heirs, executors, and administrators of such a
person.
(7) A corporation may purchase and maintain insurance or
furnish similar protection, including, but not limited to, trust
funds, letters of credit, or self-insurance, on behalf of or for
any person who is or was a director, officer, employee, or agent
of the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust or other enterprise, against
any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or
not the corporation would have the power to indemnify him
against such liability under this section. Insurance may be
purchased from or maintained with a person in which the
corporation has a financial interest.
(8) The authority of a corporation to indemnify persons
pursuant to division (E)(1) or (2) of this section does not
limit the payment of expenses as they are incurred,
indemnification, insurance, or other protection that may be
provided pursuant to divisions (E)(5), (6), and (7) of this
section. Divisions (E)(1) and (2) of this section do not create
any obligation to repay or return payments made by the
corporation pursuant to division (E)(5), (6), or (7).
(9) As used in division (E) of this section, "corporation"
includes all constituent entities in a consolidation or merger
and the new or surviving corporation, so that any person who is
or was a director, officer, employee, trustee, member, manager,
or agent of such a constituent entity, or is or was serving at
the request of such constituent entity as a director, trustee,
officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture,
trust, or other enterprise, shall stand in the same position
under this section with respect to the new or surviving
corporation as he would if he had served the new or surviving
corporation in the same capacity."
Registrant maintains and pays the premiums on contracts insuring Registrant
(with certain exclusions) against any liability to directors and officers it may
incur under the above provisions for indemnification and insuring each director
and officer of Registrant (with certain exclusions) against liability and
expense, including legal fees, which he or she may incur by reason of his or her
relationship to Registrant, even if Registrant does not have the obligation or
right to indemnify such director or officer against such liability or expense.
Reference is made to Section 7 of the form of Underwriting Agreement, filed
as Exhibit 1.1 to this Registration Statement, for the Registrant's and the
Underwriters' respective agreements to indemnify each other against certain
civil liabilities, including liabilities under the Securities Act, and to
provide contribution in circumstances where indemnification is available.
II-4
<PAGE> 19
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
ITEM NUMBER DESCRIPTION
- ------- ------- -----------
<C> <S> <C>
1 1.1 Form of Underwriting Agreement.**
4 4.1(A) Certificate of Amended Articles of Incorporation of
Registrant, dated December 20, 1954, 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 to date).*
4.1(B) Code of Regulations, adopted November 22, 1955, and amended
April 5, 1965, April 7, 1980, April 6, 1981 and April 13,
1987.*
4.2 Conformed copy of Indenture, dated as of March 1, 1999,
between Registrant and The Chase Manhattan Bank, as
Trustee.**
5 5.1 Opinion of C. Thomas Harvie, Esq., Vice President and
General Counsel of Registrant, as to the validity of the
Debt Securities being offered.**
12 12.1 Computation of Ratios of Earnings to Fixed Charges.**
23 23.1 The consent of PricewaterhouseCoopers LLP, independent
accountants, to the incorporation by reference in this
Registration Statement on Form S-3 of their report dated
February 3, 1999, appearing at page 43 of Registrant's
Annual Report on Form 10-K for the year ended December 31,
1998.**
23.2 The consent of C. Thomas Harvie, Esq., Vice President and
General Counsel of Registrant, is included in his opinion
filed as Exhibit 5.1 to this Registration Statement.
24 24.1 Power of Attorney, dated February 2, 1999, authorizing
Robert W. Tieken, C. Thomas Harvie, Stephanie W. Bergeron,
James Boyazis, and John W. Richardson, or any one of them,
to sign this Registration Statement on behalf of the
Registrant and certain of the directors and officers of
Registrant.**
25 25.1 Statement of Eligibility, dated March 19, 1999, of The Chase
Manhattan Bank on Form T-1 relating to the Indenture, dated
as of March 1, 1999, between Registrant and The Chase
Manhattan Bank.**
</TABLE>
- ---------------
* Previously Filed.
** Filed with this Amendment No. 1.
ITEM 17. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of Prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
change in volume and price represent no more than a 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table set forth in the effective registration
statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement, including (but not limited to) any addition or deletion of a
managing underwriter;
II-5
<PAGE> 20
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
D. The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as a
part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this Registration Statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-6
<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing this Amendment on Form S-3 and has duly caused this
Amendment to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Akron, State of Ohio, on
the 5th day of April, 1999.
THE GOODYEAR TIRE & RUBBER COMPANY
By: /s/ JOHN W. RICHARDSON
------------------------------------
John W. Richardson,
Vice President
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
Samir G. Gibara........................ Chairman of the Board,
Chief Executive
Officer and President
and a Director
(Principal Executive
Officer)
Robert W. Tieken....................... Executive Vice By: /s/ JOHN W. RICHARDSON
President (Principal
Financial Officer) -----------------------------------------
John W. Richardson
John G. Breen.......................... Director Signing individually as a Vice President
William E. Butler...................... Director (Principal Accounting Officer) of
Thomas H. Cruikshank................... Director Registrant and as Attorney-in-Fact for
Katherine G. Farley.................... Director the directors and officers whose names
William J. Hudson, Jr.................. Director appear opposite
Steven A. Minter....................... Director
Agnar A. Pytte......................... Director Dated: April 5, 1999
George H. Schofield.................... Director
William C. Turner...................... Director
Martin D. Walker....................... Director
</TABLE>
II-7
<PAGE> 22
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
ITEM NUMBER DESCRIPTION
- ------- ------- -----------
<C> <C> <S>
1 1.1 Form of Underwriting Agreement.**
4 4.1(A) Certificate of Amended Articles of Incorporation of
Registrant, dated December 20, 1954, 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 to date).*
4.1(B) Code of Regulations, adopted November 22, 1955, and amended
April 5, 1965, April 7, 1980, April 6, 1981 and April 13,
1987.*
4.2 Conformed copy of Indenture, dated as of March 1, 1999,
between Registrant and The Chase Manhattan Bank, as
Trustee.**
5 5.1 Opinion of C. Thomas Harvie, Esq., Vice President and
General Counsel of Registrant, as to the validity of the
Debt Securities being offered.**
12 12.1 Computation of Ratios of Earnings to Fixed Charges.**
23 23.1 The consent of PricewaterhouseCoopers LLP, independent
accountants, to the incorporation by reference in this
Registration Statement on Form S-3 of their report dated
February 3, 1999, appearing at page 43 of Registrant's
Annual Report on Form 10-K for the year ended December 31,
1998.**
23.2 The consent of C. Thomas Harvie, Esq., Vice President and
General Counsel of Registrant, is included in his opinion
filed as Exhibit 5.1 to this Registration Statement.
24 24.1 Power of Attorney, dated February 2, 1999, authorizing
Robert W. Tieken, C. Thomas Harvie, Stephanie W. Bergeron,
James Boyazis and John W. Richardson or any one of them, to
sign this Registration Statement on behalf of the Registrant
and certain of the directors and officers of Registrant.**
25 25.1 Statement of Eligibility, dated March 19, 1999, of The Chase
Manhattan Bank on Form T-1 relating to the Indenture, dated
as of March 1, 1999, between Registrant and The Chase
Manhattan Bank.**
</TABLE>
- ---------------
* Previously Filed.
** Filed with this Amendment No. 1.
<PAGE> 1
EXHIBIT 1.1
THE GOODYEAR TIRE & RUBBER COMPANY
Underwriting Agreement
New York, New York
[date]
To the Representative(s)
named in Schedule I
hereto of the
Underwriters named in
Schedule II hereto
Dear Ladies and Gentlemen:
The Goodyear Tire & Rubber Company, an Ohio corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, the principal amount of its securities identified in Schedule I
hereto (the "Securities"), to be issued under an indenture (the "Indenture")
dated as of March 1, 1999, between the Company and The Chase Manhattan Bank, as
trustee (the "Trustee"). If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein, shall each be deemed to
refer to such firm or firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (c)
hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable and, if
the offering
<PAGE> 2
2
of the Securities is a Non-Delayed Offering (as so specified), paragraph
(ii) below is applicable.
(i) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement (the file number of which is set forth in Schedule I
hereto) on such Form, including a basic prospectus, for registration
under the Act of the offering and sale of the Securities. The
Company may have filed one or more amendments thereto, and may have
used a Preliminary Final Prospectus, each of which has previously
been furnished to you. Such registration statement, as so amended,
has become effective. The offering of the Securities is a Delayed
Offering and, although the Basic Prospectus may not include all the
information with respect to the Securities and the offering thereof
required by the Act and the rules thereunder to be included in the
Final Prospectus, the Basic Prospectus includes all such information
required by the Act and the rules thereunder to be included therein
as of the Effective Date. The Company will next file with the
Commission pursuant to Rules 415 and 424(b)(2) or (5) a final
supplement to the form of prospectus included in such registration
statement relating to the Securities and the offering thereof. As
filed, such final prospectus supplement shall include or incorporate
by reference to other documents all required information with
respect to the Securities and the offering thereof and, except to
the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in
the Basic Prospectus and any Preliminary Final Prospectus) as the
Company has advised you, prior to the Execution Time, will be
included or made therein.
(ii) The Company meets the requirements for the use of Form
S-3 under the Act and has filed with the Commission a registration
statement (the file number of which is set forth in Schedule I
hereto) on such Form, including a basic prospectus, for registration
under the Act of the
<PAGE> 3
3
offering and sale of the Securities. The Company may have filed one
or more amendments thereto, including a Preliminary Final
Prospectus, each of which has previously been furnished to you. The
Company will next file with the Commission either (x) a final
prospectus supplement relating to the Securities in accordance with
Rules 430A and 424(b)(1) or (4), or (y) prior to the effectiveness
of such registration statement, an amendment to such registration
statement, including the form of final prospectus supplement. In the
case of clause (x), the Company has included in such registration
statement, as amended at the Effective Date, all information (other
than Rule 430A Information) required by the Act and the rules
thereunder to be included in the Final Prospectus with respect to
the Securities and the offering thereof. As filed, such final
prospectus supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together with
all other such required information, with respect to the Securities
and the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification, shall be
in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and
other changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you, prior
to the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Securities Exchange Act of 1934
(the "Exchange Act") and the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the respective rules thereunder; on the Effective
Date, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein
not misleading; on the Effective Date and on the Closing Date the
Indenture did or will comply in all material respects with the
requirements of the Trust Indenture
<PAGE> 4
4
Act and the rules thereunder; and, on the Effective Date, the Final
Prospectus, if not filed pursuant to Rule 424(b), did not or will not, and
on the date of any filing pursuant to Rule 424(b) and on the Closing Date,
the Final Prospectus (together with any supplement thereto) will not,
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties
as to (i) that part of the Registration Statement which shall constitute
the Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective and each date after the date
hereof on which a document incorporated by reference in the Registration
Statement is filed. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the prospectus referred to in paragraph (a) above
contained in the Registration Statement at the Effective Date including,
in the case of a Non-Delayed Offering, any Preliminary Final Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus.
"Final Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus or, if, in the case of a
Non-Delayed Offering, no filing pursuant to Rule 424(b) is required, shall
mean the form of final prospectus relating to the Securities, including
the Basic Prospectus, included in the Registration Statement at the
Effective Date. "Registration Statement" shall mean the registration
statement referred to in paragraph (a) above, including
<PAGE> 5
5
incorporated documents, exhibits and financial statements, as amended at
the Execution Time (or, if not effective at the Execution Time, in the
form in which it shall become effective) and, in the event any
post-effective amendment thereto becomes effective prior to the Closing
Date (as hereinafter defined), shall also mean such registration statement
as so amended. Such term shall include any Rule 430A Information deemed to
be included therein at the Effective Date as provided by Rule 430A. "Rule
415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulation under the Act. "Rule 430A Information" means information with
respect to the Securities and the offering thereof permitted to be omitted
from the Registration Statement when it becomes effective pursuant to Rule
430A. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration Statement
or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any reference
herein to the terms "amend", "amendment" or "supplement" with respect to
the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date
of the Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference. A "Non-Delayed
Offering" shall mean an offering of securities which is intended to
commence promptly after the effective date of a registration statement,
with the result that, pursuant to Rules 415 and 430A, all information
(other than Rule 430A Information) with respect to the securities so
offered must be included in such registration statement at the effective
date thereof. A "Delayed Offering" shall mean an offering of securities
pursuant to Rule 415 which does not commence promptly after the effective
date of a registration statement, with the result that only information
required pursuant to Rule 415 need be included in such registration
statement at the effective date thereof with respect to the securities so
offered. Whether the offering of the Securities is a Non-Delayed Offering
or a Delayed Offering shall be set forth in Schedule I hereto.
<PAGE> 6
6
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto, except that, if Schedule I hereto
provides for the sale of Securities pursuant to delayed delivery arrangements,
the respective principal amounts of Securities to be purchased by the
Underwriters shall be as set forth in Schedule II hereto less the respective
amounts of Contract Securities determined as provided below. Securities to be
purchased by the Underwriters are herein sometimes called the "Underwriters'
Securities" and Securities to be purchased pursuant to Delayed Delivery
Contracts as hereinafter provided are herein called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters are authorized
to solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I hereto of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate principal amount of
Contract Securities may not exceed the maximum aggregate principal amount set
forth in Schedule I hereto. The Underwriters will not have any responsibility in
respect of the validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the principal
amount of Securities set forth opposite the name of such Underwriter bears to
the aggregate principal amount set forth in Schedule II hereto, except to the
extent that you
<PAGE> 7
7
determine that such reduction shall be otherwise than in such proportion and so
advise the Company in writing; provided, however, that the total principal
amount of Securities to be purchased by all Underwriters shall be the aggregate
principal amount set forth in Schedule II hereto less the aggregate principal
amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto (or such later date not later than five business days after
such specified date as the Representatives shall designate), which date and time
may be postponed by agreement between the Representatives and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for the
Underwriters' Securities being herein called the "Closing Date"). Payment for
the Underwriters' Securities shall be made by certified or official bank check
or checks payable to the order of the Company, or by wire transfer if so
specified in Schedule I, in the funds and at the time and place set forth in
Schedule I, upon delivery to the Representatives for the respective accounts of
the several Underwriters of the Underwriters' Securities. Unless otherwise
specified in Schedule I, the Underwriters' Securities will be represented by one
or more definitive global Securities in book-entry form which will be deposited
by or on behalf of the Company with The Depository Trust Company (the "DTC") or
its designated custodian. The Company will deliver the Underwriters' Securities
to the Representatives for the account of each Underwriter by causing DTC to
credit the Underwriters' Securities to the account of the Representatives at
DTC. The Company will cause the certificates representing the Underwriters'
Securities to be made available to the Representatives for checking on the
business day prior to the date of delivery at the office of DTC or its
designated custodian.
4. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final Prospectus or
any Preliminary Final Prospectus) to the Basic Prospectus unless the
Company has furnished you a copy for your review prior to filing and will
not file any such proposed amendment or supplement to which you reasonably
object. Subject to
<PAGE> 8
8
the foregoing sentence, the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise
the Representatives (i) when the Registration Statement, if not effective
at the Execution Time, and any amendment thereto, shall have become
effective, (ii) when the Final Prospectus, and any supplement thereto,
shall have been filed with the Commission pursuant to Rule 424(b), (iii)
when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (iv) of any request by the Commission for any amendment of the
Registration Statement or supplement to the Final Prospectus or for any
additional information, (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (vi) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its reasonable efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (i) prepare and file with the Commission, subject to
the second sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (ii) supply any supplemented Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of
<PAGE> 9
9
the Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by
an Underwriter or dealer may be required by the Act, as many copies of any
Preliminary Final Prospectus and the Final Prospectus and any supplement
thereto as the Representatives may reasonably request. The Company will
pay the expenses of printing or other production of all documents relating
to the offering.
(e) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives may
designate and with respect to which the Company does not reasonably
object, will maintain such qualifications in effect so long as required
for the distribution of the Securities and will arrange for the
determination of the legality of the Securities for purchase by
institutional investors.
(f) Until the business date set forth on Schedule I hereto, the
Company will not, without the consent of the Representatives, offer, sell
or contract to sell, or otherwise dispose of, directly or indirectly, or
announce the offering of, any debt securities issued or guaranteed by the
Company (other than the Securities, commercial paper borrowings,
borrowings under credit facilities in existence on the date hereof,
borrowings from banks that replace indebtedness then outstanding, or
borrowings from banks used to finance working capital requirements which
do not increase consolidated debt by more than 5%, in each case in the
ordinary course of business).
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the
<PAGE> 10
10
Registration Statement will become effective not later than (i) 6:00 PM
New York City time, on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 PM New York City
time on such date or (ii) 12:00 Noon on the business day following the day
on which the public offering price was determined, if such determination
occurred after 3:00 PM New York City time on such date; if filing of the
Final Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule 424(b);
and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the
opinion of either C. Thomas Harvie, Esq., a Vice President and the General
Counsel of the Company or Gerry V. Wittkamper, Esq., an Assistant General
Counsel of the Company, dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Ohio,
with full corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus, and is
duly qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction which requires
such qualification wherein it owns or leases material properties or
conducts material business;
(ii) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; the Securities conform to the
description thereof contained in the Final Prospectus; and, if the
Securities are to be listed on any securities exchange,
authorization therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the Company
has filed a preliminary listing application and all required
supporting documents with respect to the Securities with such
securities exchange and such counsel has no reason to believe that
the Securities will not be authorized for listing, subject to
official notice of issuance and evidence of satisfactory
distribution;
<PAGE> 11
11
(iii) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act,
and constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance and other laws now or
hereinafter in effect relating to, affecting or limiting creditors'
rights generally, and subject to general principles of equity
(whether considered in a proceeding at law or in equity) and to the
discretion of the court before which any proceeding may be brought);
and the Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters pursuant to this
Agreement, in the case of the Underwriters' Securities, or by the
purchasers thereof pursuant to Delayed Delivery Contracts, in the
case of any Contract Securities, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture, subject to general principles of equity (whether
considered in a proceeding at law or in equity) and to the
discretion of the court before which any proceeding may be brought;
(iv) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries, of a character required to
be disclosed in the Registration Statement which is not disclosed in
the Registration Statement, and, to the knowledge of such counsel,
there is no franchise, contract or other document of a character
required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit, which is not described or
filed as required; and, to the knowledge of such counsel, the
descriptions of the legal proceedings and material contracts
included in the Final Prospectus are accurate in all material
respects;
(v) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by
<PAGE> 12
12
Rule 424(b); to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued, no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the Final Prospectus
(other than the financial statements and other financial and
statistical information contained therein as to which such counsel
need express no opinion) comply as to form in all material respects
with the applicable requirements of the Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder; and
such counsel has no reason to believe that at the Effective Date the
Registration Statement contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading or that
the Final Prospectus includes any untrue statement of a material
fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(vi) this Agreement and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Company;
(vii) no consent, approval, authorization or order of any
court or governmental agency or body is required to be obtained by
the Company for the consummation by the Company of the transactions
contemplated herein or in any Delayed Delivery Contracts, except (i)
such as have been obtained under the Act, (ii) such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters, and (iii) such other approvals (as may be specified in
such opinion) as have been obtained;
(viii) neither the execution and delivery of the Indenture,
the issue and sale of the Securities, nor the consummation of any
other of the transactions herein contemplated nor the fulfillment of
the terms hereof or of any Delayed Delivery Contracts will conflict
with, result in a breach or violation of, or constitute a default
under any law or the charter or by-laws of the Company or the terms
of any indenture or other
<PAGE> 13
13
agreement or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound or any
judgment, order or decree known to such counsel to be applicable to
the Company or any of its subsidiaries of any court, regulatory
body, administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries; and
(ix) no holders of securities of the Company have rights to
the registration of such securities under the Registration
Statement.
The foregoing opinion may be subject to certain assumptions,
qualifications and exceptions reasonably satisfactory to the
Representatives, and in rendering such opinion, such counsel may rely (A)
as to matters involving the application of laws of any jurisdiction other
than the State of Ohio or the United States, to the extent deemed proper
and specified in such opinion, upon the opinion of other counsel of good
standing believed to be reliable and who are satisfactory to counsel for
the Underwriters (or, on the assumption that, although contrary to the
intent of the parties, the laws of the State of Ohio are to govern) and
(B) as to matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials. References to
the Final Prospectus in this paragraph (b) include any supplements thereto
at the Closing Date.
(c) The Representatives shall have received from Cravath, Swaine &
Moore, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or any
executive vice president or senior vice president and the principal
financial or accounting officer of the Company, dated the Closing Date, to
the effect that the signers of such certificate have carefully examined
the Registration Statement, the
<PAGE> 14
14
Final Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the
Company and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(e) At the Closing Date, PricewaterhouseCoopers LLP shall have
furnished to the Representatives a letter or letters (which may refer to
letters previously delivered to one or more of the Representatives), dated
as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants with
respect to The Goodyear Tire & Rubber Company within the meaning of the
Act and the Exchange Act and the respective applicable published rules and
regulations thereunder and that they have performed a review of the
unaudited interim financial information in accordance with Statement of
Auditing Standards No. 71 and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules and pro forma financial statements
included or incorporated in the Registration Statement and the Final
Prospectus and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the Act and
<PAGE> 15
15
the Exchange Act and the related published rules and
regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; their limited review in accordance with standards
established by the American Institute of Certified Public
Accountants under Statement of Auditing Standards No. 71 of any
unaudited interim financial information as indicated in their
reports, if any, included or incorporated in the Registration
Statement and the Final Prospectus; carrying out certain specified
procedures (but not an examination in accordance with generally
accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in
such letter; a reading of the minutes of the meetings of the
stockholders, directors and any committees of the Company and its
subsidiaries the Representatives may reasonably request; and
inquiries of certain officials of the Company and its subsidiaries
who have responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited financial
statements included or incorporated in the Final Prospectus, nothing
came to their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus do not comply as to form in all material respects
with applicable accounting requirements of the Act and with
the published rules and regulations of the Commission with
respect to financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange Act; and
said unaudited financial statements require modifications that
should be made for such statements to be in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included or incorporated in the Registration
Statement and the Final Prospectus;
<PAGE> 16
16
(2) with respect to the period subsequent to the date of
the most recent financial statements (other than any capsule
information), audited or unaudited, included or incorporated
in the Registration Statement and the Final Prospectus, there
were any changes, at a specified date not more than five
business days prior to the date of the letter, in the long
term debt and capital leases of the Company and its
subsidiaries or capital stock or capital surplus of the
Company or decreases in the shareholders' equity of the
Company or decreases in working capital of the Company and its
subsidiaries as compared with the amounts shown on the most
recent consolidated balance sheet included or incorporated in
the Registration Statement and the Final Prospectus, or for
the period from the date of the most recent financial
statements included or incorporated in the Registration
Statement and the Final Prospectus to such specified date
there were any decreases, as compared with the corresponding
period in the preceding year or the preceding quarter in net
sales or income before income taxes or in total or per share
amounts of net income of the Company and its subsidiaries,
except in all instances for changes or decreases set forth in
such letter, in which case the letter shall be accompanied by
an explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives;
(3) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Final Prospectus do not agree with the
amounts set forth in the unaudited financial statements for
the same periods or were not determined on a basis
substantially consistent with that of the corresponding
amounts in the audited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus; or
(4) the information included in the Registration
Statement and Final Prospectus in response to Regulation S-K,
Item 301 (Selected Financial Data), Item 302 (Supplementary
<PAGE> 17
17
Financial Information), Item 402 (Executive Compensation), and
Item 503 (Ratio of Earnings to Fixed Charges) is not in
conformity with the applicable disclosure requirements of
Regulation S-K;
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the information
included or incorporated in Items 1, 6 and 7 of the Company's Annual
Report on Form 10-K, incorporated in the Registration Statement and
the Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Company's Quarterly
Reports on Form 10-Q, incorporated in the Registration Statement and
the Final Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation; and
(iv) if unaudited pro forma financial statements are included
or incorporated in the Registration Statement and the Final
Prospectus, on the basis of a reading of the unaudited pro forma
financial statements, carrying out certain specified procedures,
inquiries of certain officials of the Company and the acquired
company who have responsibility for financial and accounting
matters, and proving the arithmetic accuracy of the application of
the pro forma adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention which caused
them to believe that the pro forma financial statements do not
comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
<PAGE> 18
18
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
Execution Time, PricewaterhouseCoopers LLP shall have furnished to the
Representatives a letter or letters, dated as of the Execution Time, in form and
substance satisfactory to the Representatives, to the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified
in the letter or letters referred to in paragraph (e) of this Section 5 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), results of operations,
business or properties of the Company and its subsidiaries the effect of
which, in any case referred to in clause (i) or (ii) above, is, in the
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto).
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives may reasonably request and as may be obtained at a
reasonable cost to the Company.
(i) The Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the Underwriters
have been approved by the Company.
<PAGE> 19
19
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancelation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Cravath, Swaine & Moore, counsel for the
Underwriters, at Worldwide Plaza, 825 Eighth Avenue, New York, New York, on the
Closing Date.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained or incorporated by reference to other documents in the
registration statement for the registration of the Securities as originally
filed or in any amendment thereof, or in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein
<PAGE> 20
20
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth in [(i) the last paragraph of the cover page of the Final Prospectus,
(ii) the second paragraph and the second sentence of the third paragraph under
the heading "Underwriting"] and (iii) the last paragraph under the heading "Plan
of Distribution" in any Preliminary Final Prospectus or the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the documents referred to in the foregoing
indemnity, and you, as the Representatives, confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any
<PAGE> 21
21
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company and
of the Underwriters in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses), and benefits
<PAGE> 22
22
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company or the Underwriters, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. Notwithstanding anything herein to the contrary, in no case
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. For purposes of this Section
7, each person who controls an Underwriter within the meaning of either the Act
or the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d). The Underwriters' obligations to contribute as
provided in this paragraph (d) are several in proportion to their respective
underwriting obligations and not joint.
8. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names
<PAGE> 23
23
of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 8, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
9. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange, The Chicago Stock Exchange,
Incorporated or The Pacific Exchange, Incorporated or trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
NASDAQ National Market shall have been suspended or limited or minimum prices
shall have been established on either of such Exchanges or Market System, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis or change in general economic, political or financial
conditions the effect of which on financial markets is such as to make it, in
the judgment of the Representatives, impracticable or inadvisable to proceed
with the offering or delivery of the Securities as contemplated by the Final
Prospectus (exclusive of any supplement thereto).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made
<PAGE> 24
24
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or the Company or any
of the officers, directors or controlling persons referred to in Section 7
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 6 and 7 hereof shall survive the termination or
cancelation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 1144 East Market Street, Akron, Ohio
44316-0001, facsimile number 330-796-8836, attention of the Vice President and
General Counsel.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
15. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
<PAGE> 25
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
THE GOODYEAR TIRE & RUBBER COMPANY
Attest: By:
------------------------ -----------------------------------------
Name: Name:
Title: Title:
<PAGE> 26
26
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[Underwriter]
[Underwriter]
By:
By:
By:
----------------------------------------
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE> 27
27
SCHEDULE I
Underwriting Agreement dated:
Registration Statement No.:
Representatives:
Title, Purchase Price, Offering Price and Description of Securities:
Title:
Principal amount:
Interest Rate:
Interest Payment Dates:
Maturity:
Purchase price (include accrued
interest or amortization, if
any):
Offering Price:
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of Offering:
Delayed Delivery Arrangements: None
Fee: Not applicable
Minimum principal amount of each contract:
Not applicable
<PAGE> 28
28
Maximum aggregate principal amount of all contracts:
Not applicable
Date referred to in Section 4(f) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of the
Representative(s):
Modification of items to be covered by the letter from PricewaterhouseCoopers
LLP delivered pursuant to Section 5(e) at the Execution time:
<PAGE> 29
29
SCHEDULE II
Underwriters Principal Amount
of Securities to
be Purchased
=====================
Total . . . . . . . . . $
=====================
<PAGE> 30
30
SCHEDULE III
Delayed Delivery Contract
___________, 19__
[Insert name and address
of lead representative]
Dear Ladies and Gentlemen:
The undersigned hereby agrees to purchase from The Goodyear Tire & Rubber
Company (the "Company"), and the Company agrees to sell to the undersigned, on
_________, 19__, (the "Delivery Date"), $______ principal amount of the
Company's _________________ (the "Securities") offered by the Company's
Prospectus dated ____________, 19__, and related Prospectus Supplement dated
_____________, 19__, receipt of a copy of which is hereby acknowledged, at a
purchase price of _______% of the principal amount thereof, plus [accrued
interest] [amortization of original issue discount], if any, thereon from
______________, 19__, to the date of payment and delivery, and on the further
terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 AM, New York City time, on the Delivery Date to or upon
the order of the Company in New York Clearing House (next day) funds, at your
office or at such other place as shall be agreed between the Company and the
undersigned, upon delivery to the undersigned of the Securities in definitive
fully registered form and in such authorized denominations and registered in
such names as the undersigned may request by written or telegraphic
communication addressed to the Company not less than five full business days
prior to the Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate principal amount of Securities to be purchased by the undersigned
on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Securities to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such principal
<PAGE> 31
31
amount of the Securities as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Prospectus and Prospectus Supplement mentioned
above. Promptly after completion of such sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
<PAGE> 32
32
This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
___________________________________
(Name of Purchaser)
By
___________________________________
(Signature and Title of
Officer)
___________________________________
(Address)
Accepted:
The Goodyear Tire &
Rubber Company
By
___________________________________
(Authorized Signature)
<PAGE> 1
EXHIBIT 4.2
================================================================================
INDENTURE
Between
THE GOODYEAR TIRE & RUBBER COMPANY
and
THE CHASE MANHATTAN BANK,
as Trustee
---------------------
Dated as of March 1, 1999
---------------------
DEBT SECURITIES
================================================================================
<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)(2) Not Applicable
(a)(3) Not Applicable
(a)(4) 6.08
(b) 6.11
311 (a) 6.13
(b) 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
<PAGE> 3
(b) 5.08
(c) 1.04(c)
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.
<PAGE> 4
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions ................................................. 1
SECTION 1.02. Compliance Certificates and Opinions ........................ 8
SECTION 1.03. Form of Documents Delivered to Trustee ...................... 8
SECTION 1.04. Acts of Holders; Record Dates ............................... 9
SECTION 1.05. Notices, Etc., to Trustee and Company ....................... 11
SECTION 1.06. Notice to Holders; Waiver ................................... 11
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 ....................................... 12
SECTION 1.12. Governing Law ............................................... 12
SECTION 1.13. Legal Holidays .............................................. 12
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally ............................................. 12
SECTION 2.02. Form of Face of Security .................................... 13
SECTION 2.03. Form of Reverse of Security ................................. 14
SECTION 2.04. Form of Legend for Global Securities ........................ 18
SECTION 2.05. Form of Trustee's Certificate of Authentication ............. 18
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount of Securities Issuable Unlimited; Issuable in Series . 19
SECTION 3.02. Denominations ............................................... 21
SECTION 3.03. Execution, Authentication, Delivery and Dating .............. 21
SECTION 3.04. Temporary Securities ........................................ 22
SECTION 3.05. Registration, Registration of Transfer and Exchange ......... 22
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities ............ 24
SECTION 3.07. Payment of Interest; Interest Rights Preserved .............. 24
SECTION 3.08. Persons Deemed Owners ....................................... 25
SECTION 3.09. Cancellation ................................................ 25
SECTION 3.10. Computation of Interest ..................................... 26
(i)
<PAGE> 5
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture ..................... 26
SECTION 4.02. Application of Trust Money .................................. 27
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default ........................................... 27
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment .......... 28
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee ............................................. 29
SECTION 5.04. Trustee May File Proofs of Claim ............................ 29
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities . 30
SECTION 5.06 Application of Money Collected .............................. 30
SECTION 5.07. Limitation on Suits ......................................... 30
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest ................................... 31
SECTION 5.09. Restoration of Rights and Remedies .......................... 31
SECTION 5.10. Rights and Remedies Cumulative .............................. 31
SECTION 5.11. Delay or Omission Not Waiver ................................ 31
SECTION 5.12. Control by Holders .......................................... 31
SECTION 5.13. Waiver of Past Defaults ..................................... 32
SECTION 5.14. Undertaking for Costs ....................................... 32
SECTION 5.15. Waiver of Stay or Extension Laws ............................ 32
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities ......................... 32
SECTION 6.02. Notice of Defaults .......................................... 33
SECTION 6.03. Certain Rights of Trustee ................................... 33
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities ...... 34
SECTION 6.05. May Hold Securities ......................................... 34
SECTION 6.06. Money Held in Trust ......................................... 34
SECTION 6.07. Compensation and Reimbursement .............................. 34
SECTION 6.08. Disqualification; Conflicting Interests ..................... 34
SECTION 6.09. Corporate Trustee Required; Eligibility ..................... 35
SECTION 6.10. Resignation and Removal; Appointment of Successor ........... 35
SECTION 6.11. Acceptance of Appointment by Successor ...................... 36
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business . 37
SECTION 6.13. Preferential Collection of Claims Against Company ........... 37
SECTION 6.14. Appointment of Authenticating Agent ......................... 37
(ii)
<PAGE> 6
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders ... 39
SECTION 7.02. Preservation of Information; Communications to Holders ...... 39
SECTION 7.03. Reports by Trustee .......................................... 39
SECTION 7.04. Reports by Company .......................................... 39
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, etc., Only on Certain Terms ........ 40
SECTION 8.02. Successor Corporation to be Substituted ..................... 40
SECTION 8.03. Opinion of Counsel to be Given Trustee ...................... 40
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders .......... 41
SECTION 9.02. Supplemental Indentures With Consent of Holders ............. 41
SECTION 9.03. Execution of Supplemental Indentures ........................ 42
SECTION 9.04. Effect of Supplemental Indentures ........................... 42
SECTION 9.05. Conformity with Trust Indenture Act ......................... 43
SECTION 9.06. Reference in Securities to Supplemental Indentures .......... 43
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest .................. 43
SECTION 10.02. Maintenance of Office or Agency ............................. 43
SECTION 10.03. Vacancy in the Office of Trustee ............................ 44
SECTION 10.04. Money for Securities Payments to be Held in Trust ........... 44
SECTION 10.05. Limitation on Secured Indebtedness .......................... 44
SECTION 10.06. Limitation on Sale and Lease-back Transactions .............. 46
SECTION 10.07. Existence ................................................... 46
SECTION 10.08. Statement by Officers as to Default ......................... 46
SECTION 10.09. Waiver of Certain Covenants ................................. 46
(iii)
<PAGE> 7
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article..................................... 47
SECTION 11.02. Election to Redeem; Notice to Trustee........................ 47
SECTION 11.03. Selection by Trustee of Securities to be Redeemed............ 47
SECTION 11.04. Notice of Redemption......................................... 47
SECTION 11.05. Deposit of Redemption Price.................................. 48
SECTION 11.06. Securities Payable on Redemption Date........................ 48
SECTION 11.07. Securities Redeemed in Part.................................. 48
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article..................................... 49
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities........ 49
SECTION 12.03. Redemption of Securities for Sinking Fund.................... 49
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. Applicability of Article; Company's Option To Effect
Defeasance or Covenant Defeasance....................... 50
SECTION 13.02. Defeasance and Discharge..................................... 50
SECTION 13.03. Covenant Defeasance.......................................... 50
SECTION 13.04. Conditions to Defeasance or Covenant Defeasance.............. 51
SECTION 13.05. Deposited Money and U.S. Government Obligations to be
Held in Trust........................................... 52
SECTION 13.06. Reinstatement................................................ 53
ARTICLE FOURTEEN
IMMUNITY OF SHAREHOLDERS, OFFICERS
AND DIRECTORS
SECTION 14.01. Exemption from Individual Liability.......................... 53
Testimonium................................................................. 54
Signatures and Seals........................................................ 54
Acknowledgements............................................................ 55
NOTE: This Table of Contents shall not, for any purpose, be deemed to
be a part of the Indenture.
(iv)
<PAGE> 8
INDENTURE dated as of March 1, 1999, 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 THE CHASE MANHATTAN 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.
1
<PAGE> 9
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
"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.
2
<PAGE> 10
"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.
"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.
3
<PAGE> 11
"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.
"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.
4
<PAGE> 12
"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 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
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<PAGE> 13
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.
"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
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<PAGE> 14
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 1, 1999 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.
"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
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<PAGE> 15
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;
(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
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<PAGE> 16
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 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
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<PAGE> 17
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 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
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<PAGE> 18
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.
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.
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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.
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<PAGE> 20
SECTION 2.02. Form of Face of Security.
[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].
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<PAGE> 21
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.
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 1, 1999 (herein called the
"Indenture"), between the Company and The Chase Manhattan 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,
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<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
<S> <C> <C> <C>
</TABLE>
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,
<TABLE>
<CAPTION>
Redemption Price Redemption Price for
for Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
---- ------------------- -------------------
<S> <C> <C>
</TABLE>
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.]
[If applicable, insert - The Securities 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 [ ].]
[If applicable, insert - The holder of this Security shall have the
right to require the Company to pay this Security in full on ____________, __ by
giving the Company or the Registrar written notice of the exercise of such right
not less than 30 or more than 60 days' prior to such date.]
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<PAGE> 23
[If applicable, insert -- 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.]
[If applicable, insert -- 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.]
[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. "Event of Default" means any one of the events specified at clauses
________ and _______ of Section 5.01 of 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.
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<PAGE> 24
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.
[If applicable, insert -- 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.]
[If applicable, insert - The Securities of this series will be
represented by one or more global securities (collectively, the "Global
Security") registered in the name of The Depositary 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
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).]
[If applicable, insert - The Securities represented by this Global
Security are exchangeable for Securities 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 Securities of this
series represented by the Global Security and notifies the Trustee thereof, or
(iii) an Event of Default has occurred and is continuing with respect to the
Securities. Any Security that is exchangeable pursuant to the preceding sentence
is exchangeable only for Securities 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 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
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.
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<PAGE> 25
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.
THE CHASE MANHATTAN BANK, as Trustee
By
------------------------------------
Authorized Officer
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<PAGE> 26
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount of Securities Issuable Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered on original issuance under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions 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 any or all of the following, as applicable:
(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 (which may be fixed or variable) and/or the
method of determination thereof 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
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<PAGE> 27
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;
(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
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<PAGE> 28
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.
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
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<PAGE> 29
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.
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.
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<PAGE> 30
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.
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.
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<PAGE> 31
(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 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
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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 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
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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:
(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;
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(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 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
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(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.
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
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(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.
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
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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 and for any
other amounts due the Trustee under Section 6.07, 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
(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;
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(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.
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.
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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 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.
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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 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
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(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 or by virtue of being the trustee under that certain
indenture, dated as of March 15, 1996, between the Company and the Trustee under
which the Company's 6 5/8% Notes due 2006, 7% Notes due 2028 and 6 3/8% Notes
due 2008 were issued and are outstanding.
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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. 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
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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, 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.
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(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
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.
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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.
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.
THE CHASE MANHATTAN BANK, as Trustee
By:__________________________________________
As Authenticating Agent
By:__________________________________________
Authorized Officer
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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
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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.
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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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
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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
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.
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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 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.
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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 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
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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;
(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
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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.
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
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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 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.
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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.
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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.
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.
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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
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.
51
<PAGE> 59
(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.
(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.
52
<PAGE> 60
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.
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.
53
<PAGE> 61
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/ Robert W. Tieken
------------------------------------------
Name: Robert W. Tieken
Title: Executive Vice President
[Seal]
Attest:
/s/ James Boyazis
- --------------------------------
James Boyazis, Secretary
THE CHASE MANHATTAN BANK
By: /s/ Andrew M. Deck
-----------------------------------------
Name: Andrew M. Deck
Title: Vice President
[Seal]
Attest:
/s/ Robert S. Peschler
- --------------------------------
Robert S. Peschler,
Assistant Vice President
54
<PAGE> 62
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 23rd day of March, 1999 before me personally came Andrew M. Deck,
to me known, who, being by me duly sworn, did depose and say that he is a Vice
President of The Chase Manhattan Bank, 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/ Annabelle DeLuca
--------------------------------------------
Notary Public
Annabelle DeLuca
[Notarial Seal] Notary Public, State of New York
No. 01DE5013759
Qualified in Kings County
Certificate Filed in New York County
Commission Expires July 15, 1999
STATE OF OHIO )
) ss.:
COUNTY OF SUMMIT )
On the 22nd day of March, 1999 before me personally came Robert W. Tieken,
to me known, who, being by me duly sworn, did depose and say that he is an
Executive Vice President 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/ Mary Anne Reiber
--------------------------------------------
Notary Public
Mary Anne Reiber, Notary Public
[Notarial Seal] Residence - Summit County
State Wide Jurisdiction, Ohio
My Commission Expires February 24, 2002
55
<PAGE> 1
EXHIBIT 5.1
[LETTERHEAD OF THE GOODYEAR TIRE & RUBBER COMPANY]
April 5, 1999
The Goodyear Tire & Rubber Company
1144 East Market Street
Akron, Ohio 44316-0001
RE: Registration Statement on Form S-3, File No. 333-67145;
$1,250,000,000 Aggregate Principal Amount of Debt
Securities
Gentlemen:
I am a Vice President and the General Counsel of The Goodyear Tire &
Rubber Company, an Ohio corporation (the "Company"), and, in such capacity, have
acted as counsel to the Company in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of up to
$1,250,000,000 aggregate principal amount of Debt Securities of the Company (the
"Securities") pursuant to the Company's Registration Statement on Form S-3, File
No. 333-67145 (the "Registration Statement"), filed by the Company with the
Securities and Exchange Commission. The Securities would be issued pursuant to
that certain Indenture, dated as of March 1, 1999 (the "Indenture"), entered
into between the Company and The Chase Manhattan Bank, as Trustee (the
"Trustee").
I have examined and am familiar with the Amended Articles of Incorporation
and Code of Regulations of the Company, as each is amended to date, and the
proceedings of the Board of Directors of the Company with respect to the
proposed issuance of the Securities. I have also examined, or caused to be
examined, the Indenture and such other corporate records, documents and
instruments, and I have made, or caused to be made, such investigations of law,
as are in my judgment necessary or appropriate as a basis for the opinions
expressed below.
In rendering the following opinions, I have assumed that the actions
relating to the authorization, registration, offer and issuance of the
Securities taken by the Company's Board of Directors prior to the date of this
opinion will not be revoked by any action of the Company's Board of Directors
after the date hereof.
Based upon the foregoing, I am of the opinion that:
1
<PAGE> 2
1. The Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of Ohio.
2. The Indenture constitutes a valid and binding instrument of the
Company.
3. The Securities have been duly authorized for issuance and, when
each series of Securities is duly executed, authenticated, issued and
delivered in accordance with the terms of the Indenture against payment to
the Company of the purchase price of such series of Securities in
accordance with the authorization of the Company's Board of Directors,
each such series of Securities will have been legally issued and will
constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture.
My opinions set forth in paragraphs (2) and (3) above with respect to the
binding effect of the Indenture and Securities issued pursuant to the Indenture
are subject to (i) bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other laws now or hereafter in effect relating to,
affecting, or limiting creditor's rights, and (ii) general principles of equity
(whether considered in a proceeding at law or in equity) and the discretion of
the court before which any proceeding may be brought.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to me under the caption "Validity of
Debt Securities" in the Prospectus constituting a part of the Registration
Statement.
Very truly yours,
/s/ C. T. Harvie
Vice President and
General Counsel
C. Thomas Harvie
2
<PAGE> 1
EXHIBIT 12.1
THE GOODYEAR TIRE & RUBBER COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------------------
1998 1997 1996 1995 1994
(DOLLARS IN MILLIONS) -------- ------ -------- -------- --------
<S> <C> <C> <C> <C> <C>
EARNINGS
INCOME FROM CONTINUING OPERATIONS BEFORE INCOME
TAXES............................................... $1,002.7 $743.3 $ 811.5 $ 869.8 $ 855.9
Add:
Amortization of previously capitalized interest....... 10.7 11.0 11.6 11.7 10.2
Minority interest in net income of consolidated
subsidiaries with fixed charges..................... 33.6 45.1 45.9 30.1 16.9
Proportionate share of fixed charges of investees
accounted for by the equity method.................. 4.8 6.5 5.1 5.3 2.5
Proportionate share of net loss of investees accounted
for by the equity method............................ 0.2 0.1 2.7 0.5 0.2
-------- ------ -------- -------- --------
Total additions.............................. $ 49.3 $ 62.7 $ 65.3 $ 47.6 $ 29.8
Deduct:
Capitalized interest.................................. $ 6.6 $ 6.2 $ 5.4 $ 5.1 $ 5.7
Minority interest in net loss of consolidated
subsidiaries........................................ 2.9 3.6 4.4 3.3 0.3
Undistributed proportionate share of net income of
investees accounted for by the equity method........ -- -- -- 0.2 7.2
-------- ------ -------- -------- --------
Total deductions............................. $ 9.5 $ 9.8 $ 9.8 $ 8.6 $ 13.2
TOTAL EARNINGS........................................ $1,042.5 $796.2 $ 867.0 $ 908.8 $ 872.5
======== ====== ======== ======== ========
FIXED CHARGES
Interest expense...................................... $ 147.8 $119.5 $ 128.6 $ 135.0 $ 129.4
Capitalized interest.................................. 6.6 6.2 5.4 5.1 5.7
Amortization of debt discount, premium or expense..... 7.1 0.1 0.3 0.4 0.7
Interest portion of rental expense.................... 57.7 63.0 68.2 75.8 81.9
Proportionate share of fixed charges of investees
accounted
for by the equity method............................ 4.8 6.5 5.1 5.3 2.5
-------- ------ -------- -------- --------
TOTAL FIXED CHARGES................................... $ 224.0 $195.3 $ 207.6 $ 221.6 $ 220.2
======== ====== ======== ======== ========
TOTAL EARNINGS BEFORE FIXED CHARGES................... $1,266.5 $991.5 $1,074.6 $1,130.4 $1,092.7
======== ====== ======== ======== ========
RATIO OF EARNINGS TO FIXED CHARGES.................... 5.65 5.08 5.18 5.10 4.96
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
February 3, 1999, appearing on page 43 of The Goodyear Tire & Rubber Company's
Annual Report on Form 10-K for the year ended December 31, 1998. We also consent
to the reference to us under the heading "Experts" in such Prospectus.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Cleveland, Ohio
April 5, 1999
<PAGE> 1
EXHIBIT 24.1
THE GOODYEAR TIRE & RUBBER COMPANY
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, THE GOODYEAR TIRE &
RUBBER COMPANY, a corporation organized and existing under the laws of the State
of Ohio (the "Company"), and the undersigned directors and officers of THE
GOODYEAR TIRE & RUBBER COMPANY, hereby constitute and appoint ROBERT W. TIEKEN,
C. THOMAS HARVIE, STEPHANIE W. BERGERON, JAMES BOYAZIS, and JOHN W. RICHARDSON,
and each and any one of them, their true and lawful attorneys-in-fact and
agents, to do any and all of the acts and things and to execute any and all
instruments which said attorneys and agents may deem necessary and advisable to
enable the said THE GOODYEAR TIRE & RUBBER COMPANY to comply with the Securities
Act of 1933, as amended (the "Securities Act"), and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the registration under the Securities Act of up to a maximum of
$1,250,000,000 in principal amount of notes, bonds, debentures, sinking fund
debentures or similar debt securities, including zero coupon notes, bonds and
debentures, including any options, rights and other similar securities for the
purchase of, or otherwise relating to, such notes, bonds, debentures or similar
debt securities for offer and sale and issuance and delivery from time to time
by THE GOODYEAR TIRE & RUBBER COMPANY, including specifically, but without
limiting the generality of the foregoing, the power and authority to sign the
name of THE GOODYEAR TIRE & RUBBER COMPANY and the names of the undersigned
directors and officers in the capacities indicated below to one: (i) or more
Registration Statements on Form S-3, or such other form or forms of registration
statement as may be required by the Securities and Exchange Commission under the
Securities Act, each said Registration Statement may also provide for the filing
thereof as a shelf Registration Statement pursuant to Rule 415 of the Securities
and Exchange Commission promulgated under the Securities Act, and to any and all
pre-effective amendments, pricing amendments, post-effective amendments and
other amendments to or constituting a part of any of the said Registration
Statements which may be filed from time to time, and to any and all instruments
or documents filed as a part of or in conjunction with any of the said
Registration Statements or any pre-effective, post-effective or other
amendments, prospectuses, prospectus supplements and other instruments filed in
respect of any of the said Registration Statements, and (ii) any pre-effective,
post-effective and other amendments to the Company's Registration Statement on
Form S-3, Securities and Exchange Commission File No. 333-67145, under the
Securities Act, including, without limiting the generality of the foregoing,
amending said Registration Statement on Form S-3, File No. 333-67145, to provide
for the registration of up to $1,250,000,000 in principal amount of notes,
bonds, debentures or similar debt securities for offer and sale by the company
by pre-effective, post-effective or other amendments thereto; including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of The Goodyear Tire & Rubber Company and the
names of the undersigned directors and officers in the capacities indicated in
respect thereof. Each of the undersigned hereby ratifies and confirms all that
the said attorneys-in-fact and agents, or any one or more of them, shall do or
cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned have subscribed or caused to be
subscribed these presents this 2nd day of February, 1999.
<TABLE>
<S> <C>
Attest: THE GOODYEAR TIRE & RUBBER COMPANY
/s/ JAMES BOYAZIS /s/ SAMIR G. GIBARA
- ----------------------------------------------------- -----------------------------------------------------
James Boyazis, Secretary Samir G. Gibara,
Chairman of the Board, Chief
Executive Officer and President
</TABLE>
<PAGE> 2
<TABLE>
<S> <C>
Chairman of the Board, Chief Executive Officer and /s/ SAMIR G. GIBARA
President, Director ------------------------------------------------------
(principal executive officer) Samir G. Gibara
Executive Vice President and /s/ ROBERT W. TIEKEN
Chief Financial Officer ------------------------------------------------------
(principal financial officer) Robert W. Tieken
Vice President /s/ JOHN W. RICHARDSON
(principal accounting officer) ------------------------------------------------------
John W. Richardson
Director /s/ JOHN G. BREEN
------------------------------------------------------
John G. Breen
Director /s/ WILLIAM E. BUTLER
------------------------------------------------------
William E. Butler
Director /s/ THOMAS H. CRUIKSHANK
------------------------------------------------------
Thomas H. Cruikshank
Director /s/ KATHERINE G. FARLEY
------------------------------------------------------
Katherine G. Farley
Director /s/ WILLIAM J. HUDSON, JR.
------------------------------------------------------
William J. Hudson, Jr.
Director /s/ STEVEN A. MINTER
------------------------------------------------------
Steven A. Minter
Director /s/ AGNAR PYTTE
------------------------------------------------------
Agnar Pytte
Director /s/ GEORGE H. SCHOFIELD
------------------------------------------------------
George H. Schofield
Director /s/ WILLIAM C. TURNER
------------------------------------------------------
William C. Turner
Director /s/ MARTIN D. WALKER
------------------------------------------------------
Martin D. Walker
</TABLE>
<PAGE> 1
Exhibit 25.1
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
The Goodyear Tire & Rubber Company
(Exact name of obligor as specified in its charter)
Delaware 34-0253240
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1144 East Market Street
Akron, Ohio 44316
(Address of principal executive offices) (Zip Code)
---------------------------------------------
Debt Securities
(Title of the indenture securities)
-------------------------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject. New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223. Board of Governors of the Federal Reserve System
20th and C Street NW, Washington, D.C., 20551 Federal Reserve Bank of New York,
District No. 2, 33 Liberty Street, New York, N.Y. 10045. Federal Deposit
Insurance Corporation, 550 Seventeenth Street NW Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 19th day of March, 1999.
THE CHASE MANHATTAN BANK
By /s/ Robert S. Peschler
______________________________________
Robert S. Peschler
Assistant Vice President
-3-
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ..................................... $ 11,951
Interest-bearing balances .................................... 4,551
Securities:
Held to maturity securities .......................................... 1,740
Available for sale securities ........................................ 48,537
Federal funds sold and securities purchased under
agreements to resell .............................................. 29,730
Loans and lease financing receivables:
Loans and leases, net of unearned income ......... $127,379
Less: Allowance for loan and lease losses ........ 2,719
Less: Allocated transfer risk reserve ............ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ................................. 124,660
Trading Assets ....................................................... 51,549
Premises and fixed assets (including capitalized
leases) ........................................................... 3,009
Other real estate owned .............................................. 272
Investments in unconsolidated subsidiaries and
associated companies .............................................. 300
Customers' liability to this bank on acceptances
outstanding ....................................................... 1,329
Intangible assets .................................................... 1,429
Other assets ......................................................... 13,563
--------
TOTAL ASSETS ......................................................... $292,620
========
</TABLE>
-4-
<PAGE> 5
LIABILITIES
<TABLE>
<CAPTION>
<S> <C> <C>
Deposits
In domestic offices .......................................... $ 98,760
Noninterest-bearing .............................. $ 39,071
Interest-bearing ................................. 59,689
--------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's ....................................... 75,403
Noninterest-bearing .............................. $ 3,877
Interest-bearing ................................. 71,526
Federal funds purchased and securities sold under agreements
to repurchase ............................................. 34,471
Demand notes issued to the U.S. Treasury ............................. 1,000
Trading liabilities .................................................. 41,589
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ................ 3,781
With a remaining maturity of more than one year
through three years ....................................... 213
With a remaining maturity of more than three years ........... 104
Bank's liability on acceptances executed and outstanding ............. 1,329
Subordinated notes and debentures .................................... 5,408
Other liabilities .................................................... 12,041
TOTAL LIABILITIES .................................................... 274,099
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ........................ 0
Common stock ......................................................... 1,211
Surplus (exclude all surplus related to preferred stock) ............. 10,441
Undivided profits and capital reserves ............................... 6,287
Net unrealized holding gains (losses)
on available-for-sale securities ..................................... 566
Cumulative foreign currency translation adjustments .................. 16
TOTAL EQUITY CAPITAL ................................................. 18,521
--------
TOTAL LIABILITIES AND EQUITY CAPITAL ................................. $292,620
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
