EX-4.1






Exhibit 4.1




 





The Goodyear Tire & Rubber Company




[ ]% Senior Notes due [ ]




 






INDENTURE




Dated as of [ ], [ ]




 






Wells Fargo Bank, N.A.

Trustee




 















 








CROSS-REFERENCE TABLE




	 	 	 
	    TIA	 	Indenture
	  Section	 	Section
	310(a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	N.A.
	(a)(4)
	 	N.A.
	(b)
	 	7.08; 7.10
	(c)
	 	N.A.
	311(a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	N.A.
	312(a)
	 	2.05
	(b)
	 	11.03
	(c)
	 	11.03
	313(a)
	 	7.06
	(b)(1)
	 	7.06
	(b)(2)
	 	7.06
	(c)
	 	11.02
	(d)
	 	7.06
	314(a)
	 	4.02; 4.13; 11.02
	(b)
	 	N.A.
	(c)(1)
	 	11.04
	(c)(2)
	 	11.04
	(c)(3)
	 	N.A.
	(d)
	 	N.A.
	(e)
	 	11.05
	(f)
	 	4.14
	315(a)
	 	7.01
	(b)
	 	7.05; 11.02
	(c)
	 	7.01
	(d)
	 	7.01
	(e)
	 	6.11
	316(a)(last sentence)
	 	11.06
	(a)(1)(A)
	 	6.05
	(a)(1)(B)
	 	6.04
	(a)(2)
	 	N.A.
	(b)
	 	6.07
	317(a)(1)
	 	6.08
	(a)(2)
	 	6.09
	(b)
	 	2.04
	318(a)
	 	11.01






N.A. means Not Applicable.






 




			
	Note:	 	This Cross-Reference Table shall not, for any purpose, be deemed to be part of this
Indenture.















 






TABLE OF CONTENTS




	 	 	 
	 	 	Page






ARTICLE 1




Definitions and Incorporation by Reference




	 	 	 	 	 
	SECTION 1.01. Definitions
	 	 	1	 
	SECTION 1.02. Other Definitions
	 	 	32	 
	SECTION 1.03. Incorporation by Reference of Trust Indenture Act
	 	 	33	 
	SECTION 1.04. Rules of Construction
	 	 	33	 






ARTICLE 2




The Securities




	 	 	 	 	 
	SECTION 2.01. Form and Dating
	 	 	34	 
	SECTION 2.02. Execution and Authentication
	 	 	34	 
	SECTION 2.03. Registrar and Paying Agent
	 	 	35	 
	SECTION 2.04. Paying Agent To Hold Money in Trust
	 	 	36	 
	SECTION 2.05. Lists of Holders of Securities
	 	 	36	 
	SECTION 2.06. Transfer and Exchange
	 	 	36	 
	SECTION 2.07. Replacement Securities
	 	 	37	 
	SECTION 2.08. Outstanding Securities
	 	 	37	 
	SECTION 2.09. Temporary Securities
	 	 	38	 
	SECTION 2.10. Cancellation
	 	 	38	 
	SECTION 2.11. Defaulted Interest
	 	 	38	 
	SECTION 2.12. CUSIP Numbers and ISINs
	 	 	38	 
	SECTION 2.13. Issuance of Additional Securities
	 	 	39	 






ARTICLE 3




Redemption




	 	 	 	 	 
	SECTION 3.01. Notices to Trustee
	 	 	39	 
	SECTION 3.02. Selection of Securities to Be Redeemed
	 	 	39	 
	SECTION 3.03. Notice of Redemption
	 	 	40	 
	SECTION 3.04. Effect of Notice of Redemption
	 	 	40	 
	SECTION 3.05. Deposit of Redemption Price
	 	 	41	 
	SECTION 3.06. Securities Redeemed in Part
	 	 	41	 






ARTICLE 4




Covenants




	 	 	 	 	 
	SECTION 4.01. Payment of Securities
	 	 	41	 
	SECTION 4.02. SEC Reports
	 	 	41	 






i









 






	 	 	 	 	 
	SECTION 4.03. Limitation on Indebtedness
	 	 	41	 
	SECTION 4.04. Limitation on Restricted Payments
	 	 	45	 
	SECTION 4.05. Limitation on Restrictions on Distributions from Restricted Subsidiaries
	 	 	48	 
	SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock
	 	 	50	 
	SECTION 4.07. Limitation on Transactions with Affiliates
	 	 	54	 
	SECTION 4.08. Change of Control
	 	 	56	 
	SECTION 4.09. Limitation on Liens
	 	 	57	 
	SECTION 4.10. Limitation on Sale/Leaseback Transactions
	 	 	57	 
	SECTION 4.11. Future Subsidiary Guarantors
	 	 	58	 
	SECTION 4.12. Suspension of Certain Covenants
	 	 	58	 
	SECTION 4.13. Compliance Certificate
	 	 	59	 
	SECTION 4.14. Further Instruments and Acts
	 	 	59	 






ARTICLE 5




Successor Company




	 	 	 	 	 
	SECTION 5.01. When Company May Merge or Transfer Assets
	 	 	60	 






ARTICLE 6




Defaults and Remedies




	 	 	 	 	 
	SECTION 6.01. Events of Default
	 	 	61	 
	SECTION 6.02. Acceleration
	 	 	63	 
	SECTION 6.03. Other Remedies
	 	 	64	 
	SECTION 6.04. Waiver of Past Defaults
	 	 	64	 
	SECTION 6.05. Control by Majority
	 	 	64	 
	SECTION 6.06. Limitation on Suits
	 	 	64	 
	SECTION 6.07. Rights of Holders to Receive Payment
	 	 	65	 
	SECTION 6.08. Collection Suit by Trustee
	 	 	65	 
	SECTION 6.09. Trustee May File Proofs of Claim
	 	 	65	 
	SECTION 6.10. Priorities
	 	 	65	 
	SECTION 6.11. Undertaking for Costs
	 	 	66	 
	SECTION 6.12. Waiver of Stay or Extension Laws
	 	 	66	 






ARTICLE 7




Trustee




	 	 	 	 	 
	SECTION 7.01. Duties of Trustee
	 	 	66	 
	SECTION 7.02. Rights of Trustee
	 	 	67	 
	SECTION 7.03. Individual Rights of Trustee
	 	 	68	 
	SECTION 7.04. Trustee’s Disclaimer
	 	 	68	 
	SECTION 7.05. Notice of Defaults
	 	 	68	 
	SECTION 7.06. Reports by Trustee to Holders
	 	 	69	 






ii









 






	 	 	 	 	 
	SECTION 7.07. Compensation and Indemnity
	 	 	69	 
	SECTION 7.08. Replacement of Trustee
	 	 	70	 
	SECTION 7.09. Successor Trustee by Merger
	 	 	71	 
	SECTION 7.10. Eligibility; Disqualification
	 	 	71	 
	SECTION 7.11. Preferential Collection of Claims Against Company
	 	 	71	 






ARTICLE 8




Discharge of Indenture; Defeasance




	 	 	 	 	 
	SECTION 8.01. Discharge of Liability on Securities; Defeasance
	 	 	71	 
	SECTION 8.02. Conditions to Defeasance
	 	 	72	 
	SECTION 8.03. Application of Trust Money
	 	 	73	 
	SECTION 8.04. Repayment to Company
	 	 	73	 
	SECTION 8.05. Indemnity for Government Obligations
	 	 	74	 
	SECTION 8.06. Reinstatement
	 	 	74	 






ARTICLE 9




Amendments




	 	 	 	 	 
	SECTION 9.01. Without Consent of Holders
	 	 	74	 
	SECTION 9.02. With Consent of Holders
	 	 	75	 
	SECTION 9.03. Compliance with Trust Indenture Act
	 	 	76	 
	SECTION 9.04. Revocation and Effect of Consents and Waivers
	 	 	76	 
	SECTION 9.05. Notation on or Exchange of Securities
	 	 	76	 
	SECTION 9.06. Trustee To Sign Amendments
	 	 	77	 
	SECTION 9.07. Payment for Consent
	 	 	77	 






ARTICLE 10




Subsidiary Guarantees




	 	 	 	 	 
	SECTION 10.01. Guarantees
	 	 	77	 
	SECTION 10.02. Limitation on Liability
	 	 	78	 
	SECTION 10.03. Successors and Assigns
	 	 	79	 
	SECTION 10.04. No Waiver
	 	 	79	 
	SECTION 10.05. Modification
	 	 	79	 
	SECTION 10.06. Release of Subsidiary Guarantor
	 	 	79	 
	SECTION 10.07. Contribution
	 	 	80	 






ARTICLE 11




Miscellaneous




	 	 	 	 	 
	SECTION 11.01. Trust Indenture Act Controls
	 	 	80	 
	SECTION 11.02. Notices
	 	 	81	 
	SECTION 11.03. Communication by Holders with Other Holders
	 	 	81	 






iii









 







	 	 	 	 	 
	SECTION 11.04. Certificate and Opinion as to Conditions Precedent
	 	 	81	 
	SECTION 11.05. Statements Required in Certificate or Opinion
	 	 	82	 
	SECTION 11.06. When Securities Disregarded
	 	 	82	 
	SECTION 11.07. Rules by Trustee, Paying Agent and Registrar
	 	 	82	 
	SECTION 11.08. Legal Holidays
	 	 	82	 
	SECTION 11.09. Governing Law
	 	 	83	 
	SECTION 11.10. No Recourse Against Others
	 	 	83	 
	SECTION 11.11. Successors
	 	 	83	 
	SECTION 11.12. Multiple Originals
	 	 	83	 
	SECTION 11.13. Table of Contents; Headings
	 	 	83	 






	 	 	 
	Appendix A	 	Provisions Relating to Securities

	 	 	 

	Exhibit 1	–	 Form of Security

	 	 	 

	Exhibit 2	–	 Form of Supplemental Indenture








iv











 







     INDENTURE dated as of [ ], [ ], among The Goodyear Tire & Rubber
Company, an Ohio corporation (the “Company”), the Subsidiary Guarantors
listed on the signature pages hereto and Wells Fargo Bank, N.A., a
national banking association (the “Trustee”).



          Each party agrees as follows for the benefit of the other parties and for the equal and
ratable benefit of the Holders of the Securities:




ARTICLE 1




Definitions and Incorporation by Reference




          SECTION 1.01. Definitions.




     “Additional Assets” means:




	 	(1)	 	any property or assets (other than Indebtedness and Capital Stock) to be used
by the Company or a Restricted Subsidiary;
	 
	 	(2)	 	the Capital Stock of a Person that becomes a Restricted Subsidiary as a
result of the acquisition of such Capital Stock by the Company or another Restricted
Subsidiary; or
	 
	 	(3)	 	Capital Stock constituting a minority interest in any Person that at such
time is a Restricted Subsidiary;




provided, however, that any such Restricted Subsidiary described in clauses (2) or
(3) above is primarily engaged in a Permitted Business.




     “Additional Securities” means Securities issued under this Indenture after the Closing Date
and in compliance with Sections 2.13, 4.03 and 4.09, it being understood that any Securities issued
in exchange for or replacement of any Security issued on the Closing Date shall not be an
Additional Security.



     “Affiliate” of any specified Person means any other Person, directly or indirectly,
controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition, “control” when used with respect to any Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
For purposes of Section 4.06 and Section 4.07
only, “Affiliate” shall also mean any beneficial owner of shares representing 10% or more of the
total voting power of the Voting Stock (on a fully diluted basis) of the Company or of rights or
warrants to purchase such Voting Stock (whether or not currently exercisable) and any Person who
would be an Affiliate of any such beneficial owner pursuant to the first sentence hereof.










 




2




          “Asset Disposition” means any sale, lease, transfer or other disposition (or series of sales,
leases, transfers or dispositions that are part of a common plan) by the Company or any Restricted
Subsidiary, including any disposition by means of a merger, consolidation, or similar transaction
(each referred to for the purposes of this definition as a “disposition”), of:





	 	(1)	 	any shares of Capital Stock of a Restricted Subsidiary (other than directors’
qualifying shares or shares required by applicable law to be held by a Person other
than the Company or a Restricted Subsidiary),
	 
	 	(2)	 	all or substantially all the assets of any division or line of business of
the Company or any Restricted Subsidiary, or
	 
	 	(3)	 	any other assets of the Company or any Restricted Subsidiary outside of the
ordinary course of business of the Company or such Restricted Subsidiary,





     other than, in the case of clauses (1), (2) and (3) above,




	 	(A)	 	a disposition by a Restricted Subsidiary to the Company or by
the Company or a Restricted Subsidiary to a Restricted Subsidiary;
	 
	 	(B)	 	for purposes of Section 4.06 only, a disposition subject to
Section 4.04;
	 
	 	(C)	 	a disposition of assets with a Fair Market Value of less than
$10,000,000;
	 
	 	(D)	 	a sale of accounts receivable and related assets of the type
specified in the definition of “Qualified Receivables Transaction” to a
Receivables Entity;
	 
	 	(E)	 	a transfer of accounts receivable and related assets of the
type specified in the definition of “Qualified Receivables Transaction” (or a
fractional undivided interest therein) by a Receivables Entity in a Qualified
Receivables Transaction;
	 
	 	(F)	 	a disposition of all or substantially all the Company’s
assets (as determined on a Consolidated basis) in accordance with
Section 5.01;
and
	 
	 	(G)	 	any Specified Asset Sale.





          “Attributable Debt” means, with respect to any Sale/Leaseback Transaction that does not result
in a Capitalized Lease Obligation, the present value (computed in accordance with GAAP) of the
total obligations of the lessee for rental payments during the remaining term of the lease included
in such Sale/Leaseback Transaction (including any period for which such lease has been extended).
In the case









 



3


of any lease which is terminable by the lessee upon payment of a penalty, the Attributable
Debt shall be the lesser of:




          (i) the Attributable Debt determined assuming termination upon the first date such lease may
be terminated (in which case the Attributable Debt shall also include the amount of the penalty,
but no rent shall be considered as required to be paid under such lease subsequent to the first
date upon which it may be so terminated) and




          (ii) the Attributable Debt determined assuming no such termination.




          “Average Life” means, as of the date of determination, with respect to any Indebtedness or
Preferred Stock, the quotient obtained by dividing:





	 	(1)	 	the sum of the products of the number of years from the date of determination
to the dates of each successive scheduled principal payment of such Indebtedness or
scheduled redemption or similar payment with respect to such Preferred Stock
multiplied by the amount of such payment by
	 
	 	(2)	 	the sum of all such payments.





          “Bank Indebtedness” means all obligations under the U.S. Bank Indebtedness and European Bank
Indebtedness.




          “Board of Directors” means the board of directors of the Company or any committee thereof duly
authorized to act on behalf of the board of directors of the Company.




          “Business Day” means each day which is not a Legal Holiday.




          “Capital Stock” of any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
equity of such Person, including any Preferred Stock, but excluding any debt securities convertible
into such equity.




          “Capitalized Lease Obligations” means an obligation that is required to be classified and
accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP, and
the amount of Indebtedness represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP.




          “Change of Control” means the occurrence of any of the following events:





	 	(1)	 	any “person” (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act, except that for purposes of this clause (1) such person shall be
deemed to have “beneficial ownership” of all shares that any such person has the right
to acquire, whether such right is exercisable immediately or only after the passage of
time), directly or










 



4


	 	 	 	indirectly, of more than 50% of the total voting power of the Voting Stock of the
Company;
	 
	 	(2)	 	during any period of two consecutive years, individuals who at the beginning
of such period constituted the board of directors of the Company (together with any
new directors whose election by such board of directors of the Company or whose
nomination for election by the shareholders of the Company was approved by a vote of a
majority of the directors of the Company then still in office who were either
directors at the beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a majority of the board
of directors of the Company then in office;
	 
	 	(3)	 	the adoption of a plan relating to the liquidation or dissolution of the
Company; or
	 
	 	(4)	 	the merger or consolidation of the Company with or into another Person or the
merger of another Person with or into the Company, or the sale of all or substantially
all the assets of the Company (as determined on a Consolidated basis) to another
Person, and, in the case of any such merger or consolidation, the securities of the
Company that are outstanding immediately prior to such transaction and which represent
100% of the aggregate voting power of the Voting Stock of the Company are changed into
or exchanged for cash, securities or property, unless pursuant to such transaction
such securities are changed into or exchanged for, in addition to any other
consideration, securities of the surviving Person or transferee that represent
immediately after such transaction, at least a majority of the aggregate voting power
of the Voting Stock of the surviving Person or transferee.
	 
	 	 	 	“Closing Date” means [ ], [ ].
	 
	 	 	 	“Code” means the Internal Revenue Code of 1986, as amended.





          “Company” means the party named as such in this Indenture until a successor replaces it and,
thereafter, means the successor and, for purposes of any provision contained herein and required by
the TIA, each other obligor on the indenture securities.




          “Consolidated Coverage Ratio” as of any date of determination means the ratio of:





	 	(1)	 	the aggregate amount of EBITDA for the period of the most recent four
consecutive fiscal quarters ending prior to the date of such determination for which
financial statements have been filed with the SEC to
	 
	 	(2)	 	Consolidated Interest Expense for such four fiscal quarters;










 



5







     provided, however, that:




	 	(A)	 	if the Company or any Restricted Subsidiary
has Incurred any Indebtedness since the beginning of such period that
remains outstanding on such date of determination or if the
transaction giving rise to the need to calculate the Consolidated
Coverage Ratio is an Incurrence of Indebtedness, EBITDA and
Consolidated Interest Expense for such period shall be calculated
after giving effect on a pro forma basis to such Indebtedness as if
such Indebtedness had been Incurred on the first day of such period
and the discharge of any other Indebtedness repaid, repurchased,
defeased or otherwise discharged with the proceeds of such new
Indebtedness as if such discharge had occurred on the first day of
such period;
	 
	 	(B)	 	if the Company or any Restricted Subsidiary
has repaid, repurchased, defeased or otherwise discharged any
Indebtedness since the beginning of such period or if any
Indebtedness is to be repaid, repurchased, defeased or otherwise
discharged (in each case other than Indebtedness Incurred under any
revolving credit facility unless such Indebtedness has been
permanently repaid and has not been replaced) on the date of the
transaction giving rise to the need to calculate the Consolidated
Coverage Ratio, EBITDA and Consolidated Interest Expense for such
period shall be calculated on a pro forma basis as if such discharge
had occurred on the first day of such period and as if the Company or
such Restricted Subsidiary had not earned the interest income
actually earned during such period in respect of cash or Temporary
Cash Investments used to repay, repurchase, defease or otherwise
discharge such Indebtedness;
	 
	 	(C)	 	if since the beginning of such period the
Company or any Restricted Subsidiary shall have made any Asset
Disposition, the EBITDA for such period shall be reduced by an amount
equal to the EBITDA (if positive) directly attributable to the assets
that are the subject of such Asset Disposition for such period or
increased by an amount equal to the EBITDA (if negative) directly
attributable thereto for such period and Consolidated Interest
Expense for such period shall be reduced by an amount equal to the
Consolidated Interest Expense directly attributable to any
Indebtedness of the Company or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the
Company and its Restricted Subsidiaries in










 



6


	 	 	 	connection with such Asset Disposition for such period (or, if the
Capital Stock of any Restricted Subsidiary is sold, the
Consolidated Interest Expense for such period directly
attributable to the Indebtedness of such Restricted Subsidiary to
the extent the Company and its continuing Restricted Subsidiaries
are no longer liable for such Indebtedness after such sale);
	 
	 	(D)	 	if since the beginning of such period the
Company or any Restricted Subsidiary (by merger or otherwise) shall
have made an Investment in any Restricted Subsidiary (or any Person
that becomes a Restricted Subsidiary) or an acquisition of assets,
including any acquisition of assets occurring in connection with a
transaction causing a calculation to be made hereunder, which
constitutes all or substantially all of an operating unit, division
or line of a business, EBITDA and Consolidated Interest Expense for
such period shall be calculated after giving pro forma effect thereto
(including the Incurrence of any Indebtedness) as if such Investment
or acquisition occurred on the first day of such period; and
	 
	 	(E)	 	if since the beginning of such period any
Person that subsequently became a Restricted Subsidiary or was merged
with or into the Company or any Restricted Subsidiary since the
beginning of such period shall have made any Asset Disposition or any
Investment or acquisition of assets that would have required an
adjustment pursuant to clause (C) or (D) above if made by the Company
or a Restricted Subsidiary during such period, EBITDA and
Consolidated Interest Expense for such period shall be calculated
after giving pro forma effect thereto as if such Asset Disposition,
Investment or acquisition of assets occurred on the first day of such
period.




For purposes of this definition, whenever pro forma effect is to be given to an acquisition of
assets, Asset Disposition or other Investment, the amount of income, EBITDA or earnings relating
thereto and the amount of Consolidated Interest Expense associated with any Indebtedness Incurred
in connection therewith, the pro forma calculations shall be determined in good faith by a
responsible Financial Officer of the Company and shall comply with the requirements of Rule 11-02
of Regulation S-X, as it may be amended or replaced from time to time, promulgated by the SEC.



If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the
interest expense on such Indebtedness shall be calculated as if the rate in effect on the date of
determination had been the applicable rate for the entire period (taking into








 



7


account any Interest Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement
has a remaining term as at the date of determination in excess of 12 months). If any Indebtedness
is Incurred or repaid under a revolving credit facility and is being given pro forma effect, the
interest on such Indebtedness shall be calculated based on the average daily balance of such
Indebtedness for the four fiscal quarters subject to the pro forma calculation.




     “Consolidated Interest Expense” means, for any period, the total interest expense of the
Company and its Consolidated Restricted Subsidiaries, plus, to the extent Incurred by the Company
and its Consolidated Restricted Subsidiaries in such period but not included in such interest
expense, without duplication:




	 	(1)	 	interest expense attributable to Capitalized Lease Obligations and the
interest expense attributable to leases constituting part of a Sale/Leaseback
Transaction that does not result in a Capitalized Lease Obligation;
	 
	 	(2)	 	amortization of debt discount and debt issuance costs;
	 
	 	(3)	 	capitalized interest;
	 
	 	(4)	 	noncash interest expense;
	 
	 	(5)	 	commissions, discounts and other fees and charges attributable to letters of
credit and bankers’ acceptance financing;
	 
	 	(6)	 	interest accruing on any Indebtedness of any other Person to the extent such
Indebtedness is Guaranteed by (or secured by the assets of) the Company or any
Restricted Subsidiary and such Indebtedness is in default under its terms or any
payment is actually made in respect of such Guarantee;
	 
	 	(7)	 	net payments made pursuant to Hedging Obligations (including amortization of
fees);
	 
	 	(8)	 	dividends paid in cash or Disqualified Stock in respect of (A) all Preferred
Stock of Restricted Subsidiaries and (B) all Disqualified Stock of the Company, in
each case held by Persons other than the Company or a Restricted Subsidiary;
	 
	 	(9)	 	interest Incurred in connection with investments in discontinued operations;
and
	 
	 	(10)	 	the cash contributions to any employee stock ownership plan or similar trust
to the extent such contributions are used by such plan or trust to pay interest or
fees to any Person (other than the Company) in connection with Indebtedness Incurred
by such plan or trust;










 



8






and less, to the extent included in such total interest expense, (A) any breakage costs of Hedging
Obligations terminated in connection with the offering of the Securities on the Closing Date and
the application of the net proceeds therefrom and (B) the amortization during such period of
capitalized financing costs; provided, however, that for any financing consummated
after the Closing Date, the aggregate amount of amortization relating to any such capitalized
financing costs deducted in calculating Consolidated Interest Expense shall not exceed 5% of the
aggregate amount of the financing giving rise to such capitalized financing costs.




          “Consolidated Net Income” means, for any period, the net income of the Company and its
Consolidated Subsidiaries for such period; provided, however, that there shall not
be included in such Consolidated Net Income:





	 	(1)	 	any net income of any Person (other than the Company) if such Person is not a
Restricted Subsidiary, except that:






	 	(A)	 	subject to the limitations contained in clause (4) below, the
Company’s equity in the net income of any such Person for such period shall be
included in such Consolidated Net Income up to the aggregate amount of cash
actually distributed by such Person during such period to the Company or a
Restricted Subsidiary as a dividend or other distribution (subject, in the
case of a dividend or other distribution made to a Restricted Subsidiary, to
the limitations contained in clause (3) below) and
	 
	 	(B)	 	the Company’s equity in a net loss of any such Person for
such period shall be included in determining such Consolidated Net Income to
the extent such loss has been funded with cash from the Company or a
Restricted Subsidiary;






	 	(2)	 	any net income (or loss) of any Person acquired by the Company or a
Subsidiary of the Company in a pooling of interests transaction for any period prior
to the date of such acquisition;
	 
	 	(3)	 	any net income of any Restricted Subsidiary if such Restricted Subsidiary is
subject to restrictions on the payment of dividends or the making of distributions by
such Restricted Subsidiary, directly or indirectly, to the Company (but, in the case
of any Foreign Subsidiary, only to the extent cash equal to such net income (or a
portion thereof) for such period is not readily procurable by the Company from such
Foreign Subsidiary (with the amount of cash readily procurable from such Foreign
Subsidiary being determined in good faith by a Financial Officer of the Company)
pursuant to intercompany loans, repurchases of Capital Stock or otherwise), except
that:






	 	(A)	 	subject to the limitations contained in clause (4) below, the
Company’s equity in the net income of any such Restricted










 





9


	 	 	 	Subsidiary for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash actually distributed by such
Restricted Subsidiary during such period to the Company or another
Restricted Subsidiary as a dividend or other distribution (subject, in the
case of a dividend or other distribution made to another Restricted
Subsidiary, to the limitation contained in this clause) and
	 
	 	(B)	 	the net loss of any such Restricted Subsidiary for such
period shall not be excluded in determining such Consolidated Net Income;






	 	(4)	 	any gain (or loss) realized upon the sale or other disposition of any asset
of the Company or its Consolidated Subsidiaries (including pursuant to any
Sale/Leaseback Transaction) that is not sold or otherwise disposed of in the ordinary
course of business and any gain (or loss) realized upon the sale or other disposition
of any Capital Stock of any Person;
	 
	 	(5)	 	any extraordinary gain or loss; and
	 
	 	(6)	 	the cumulative effect of a change in accounting principles.




Notwithstanding
the foregoing, for the purpose of Section 4.04 only, there shall be excluded from
Consolidated Net Income any dividends, repayments of loans or advances or other transfers of assets
from Unrestricted Subsidiaries to the Company or a Restricted Subsidiary to the extent such
dividends, repayments or transfers increase the amount of Restricted Payments permitted under
Section 4.04(a)(3)(iv).




          “Consolidation” means, unless the context otherwise requires, the consolidation of (1) in the
case of the Company, the accounts of each of the Restricted Subsidiaries with those of the Company
and (2) in the case of a Restricted Subsidiary, the accounts of each Subsidiary of such Restricted
Subsidiary that is a Restricted Subsidiary with those of such Restricted Subsidiary, in each case
in accordance with GAAP consistently applied; provided, however, that
“Consolidation” will not include consolidation of the accounts of any Unrestricted Subsidiary, but
the interest of the Company or any Restricted Subsidiary in an Unrestricted Subsidiary will be
accounted for as an investment. The term “Consolidated” has a correlative meaning.




          “Credit Agreements” means the U.S. Credit Agreements and the European Credit Agreement.




          “Currency Agreement” means with respect to any Person any foreign exchange contract, currency
swap agreements or other similar agreement or arrangement to which such Person is a party or of
which it is a beneficiary.




          “Default” means any event which is, or after notice or passage of time or both would be, an
Event of Default.










 




10




          “Designated Noncash Consideration” means noncash consideration received by the Company or one
of its Restricted Subsidiaries in connection with an Asset Sale that is designated by the Company
as Designated Noncash Consideration, less the amount of cash or cash equivalents received in
connection with a subsequent sale of such Designated Noncash Consideration, which cash and cash
equivalents shall be considered Net Available Cash received as of such date and shall be applied
pursuant to Section 4.06.




          “Disqualified Stock” means, with respect to any Person, any Capital Stock which by its terms
(or by the terms of any security into which it is convertible or for which it is exchangeable or
exercisable) or upon the happening of any event:





	 	(1)	 	matures or is mandatorily redeemable pursuant to a sinking fund obligation or
otherwise;
	 
	 	(2)	 	is convertible or exchangeable for Indebtedness or Disqualified Stock
(excluding Capital Stock convertible or exchangeable solely at the option of the
Company or a Restricted Subsidiary; provided, however, that any such
conversion or exchange shall be deemed an Incurrence of Indebtedness or Disqualified
Stock, as applicable); or
	 
	 	(3)	 	is redeemable at the option of the holder thereof, in whole or in part;




in the case of each of clauses (1), (2) and (3), on or prior to 180 days after the Stated Maturity
of the Securities; provided, however, that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders thereof the right to
require such Person to repurchase or redeem such Capital Stock upon the occurrence of an “asset
sale” or “change of control” occurring prior to the first anniversary of the Stated Maturity of
the Securities shall not constitute Disqualified Stock if the “asset sale” or “change of control”
provisions applicable to such Capital Stock are not more favorable in any material respect to the
holders of such Capital Stock than the provisions of
Section 4.06 and Section 4.08; provided
further, however, that if such Capital Stock is issued to any employee or to any plan
for the benefit of employees of the Company or its Subsidiaries or by any such plan to such
employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be
required to be repurchased by the Company in order to satisfy applicable statutory or regulatory
obligations or as a result of such employee’s termination, death or disability.



The amount of any Disqualified Stock that does not have a fixed redemption, repayment or repurchase
price will be calculated in accordance with the terms of such Disqualified Stock as if such
Disqualified Stock were redeemed, repaid or repurchased on any date on which the amount of such
Disqualified Stock is to be determined pursuant to this Indenture; provided,
however, that if such Disqualified Stock could not be required to be redeemed, repaid or
repurchased at the time of such determination, the redemption, repayment or repurchase price will
be the book value of such Disqualified Stock as reflected in the most recent financial statements
of such Person.










 



11




          “EBITDA” for any period means the Consolidated Net Income for such period, plus, without
duplication, the following to the extent deducted in calculating such Consolidated Net Income:





	 	(1)	 	income tax expense of the Company and its Consolidated Restricted
Subsidiaries;
	 
	 	(2)	 	Consolidated Interest Expense;
	 
	 	(3)	 	depreciation expense of the Company and its Consolidated Restricted
Subsidiaries;
	 
	 	(4)	 	amortization expense of the Company and its Consolidated Restricted
Subsidiaries (excluding amortization expense attributable to a prepaid cash item that
was paid in a prior period); and
	 
	 	(5)	 	all other noncash charges of the Company and its Consolidated Restricted
Subsidiaries (excluding any such noncash charge to the extent it represents an accrual
of or reserve for cash expenditures in any future period) less all noncash items of
income of the Company and its Restricted Subsidiary in each case for such period
(other than normal accruals in the ordinary course of business).




Notwithstanding the foregoing, the provision for taxes based on the income or profits of, and the
depreciation and amortization and noncash charges of, a Restricted Subsidiary of the Company shall
be added to Consolidated Net Income to compute EBITDA only to the extent (and in the same
proportion) that the net income of such Restricted Subsidiary was included in calculating
Consolidated Net Income and only if (A) a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Restricted Subsidiary without prior approval
(that has not been obtained), pursuant to the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its shareholders or (B) in the case of any Foreign Subsidiary, a
corresponding amount of cash is readily procurable by the Company from such Foreign Subsidiary (as
determined in good faith by a Financial Officer of the Company) pursuant to intercompany loans,
repurchases of Capital Stock or otherwise, provided that to the extent cash of such Foreign
Subsidiary provided the basis for including the net income of such Foreign Subsidiary in
Consolidated Net Income pursuant to clause (3) of the definition of “Consolidated Net Income”, such
cash shall not be taken into account for the purposes of determining readily procurable cash under
this clause (B).




          “Equity Offering” means a public or private offering of Capital Stock (other than Disqualified
Stock) of the Company.




          “Euro Equivalent” means with respect to any monetary amount in a currency other than euros, at
any time of determination thereof, the amount of euros obtained by converting such foreign currency
involved in such computation into euros at the spot rate for the purchase of euros with the
applicable foreign currency as published









 




12


in The Wall Street Journal in the “Exchange Rates” column under the heading “Currency Trading”
on the date two Business Days prior to such determination. Except as
described in Section 4.03,
whenever it is necessary to determine whether the Company has complied with any covenant in this
Indenture or a Default has occurred and an amount is expressed in a currency other than euros, such
amount will be treated as the Euro Equivalent determined as of the date such amount is initially
determined in such currency.




          “European Bank Indebtedness” means any and all amounts payable under or in respect of the
European Credit Agreement and any Refinancing Indebtedness with respect thereto or with respect to
such Refinancing Indebtedness, as amended from time to time, including principal, premium (if any),
interest (including interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not a claim for post-filing interest is allowed
in such proceedings), fees, charges, expenses, reimbursement obligations and all other amounts
payable thereunder or in respect thereof.




          “European Credit Agreement” means the Amended and Restated Revolving Credit Agreement, dated
as of April 20, 2007 (as amended on July 18, 2008 and August 22, 2008), among the Company, Goodyear
Dunlop Tires Europe B.V., Goodyear Dunlop Tires Germany GmbH, Goodyear GmbH & Co. KG (now merged
into Goodyear Dunlop Tires Germany GmbH), Dunlop GmbH & Co. KG (now merged into Goodyear Dunlop
Tires Germany GmbH) and Goodyear Luxembourg Tires S.A., the lenders party thereto, J.P. Morgan
Europe Limited, as Administrative Agent, JPMorgan Chase Bank, N.A., as Collateral Agent, and the
Mandated Lead Arrangers and Joint Bookrunners identified therein, as amended, restated,
supplemented, waived, replaced (whether or not upon termination, and whether with the original
lenders or otherwise), refinanced, restructured or otherwise modified from time to time (except to
the extent that any such amendment, restatement, supplement, waiver, replacement, refinancing,
restructuring or other modification thereto would be prohibited by the terms of the Indenture,
unless otherwise agreed to by the Holders of at least a majority in aggregate principal amount of
Securities at the time outstanding).




          “Exchange Act” means the Securities Exchange Act of 1934, as amended.




          “Fair Market Value” means, with respect to any asset or property, the price which could be
negotiated in an arm’s-length, free market transaction, for cash, between a willing seller and a
willing and able buyer, neither of whom is under undue pressure or compulsion to complete the
transaction as such price is, unless specified otherwise in this Indenture, determined in good
faith by a Financial Officer of the Company or by the Board of Directors. Fair Market Value (other
than of any asset with a public trading market) of any asset or property (or group of assets or
property subject to an event giving rise to a requirement under this Indenture that “Fair Market
Value” be determined) in excess of $25,000,000 shall be determined by the Board of Directors or a
duly authorized committee thereof.

















 





 13




          “Financial Officer” means the Chief Financial Officer, the Treasurer or the Chief Accounting
Officer of the Company.




          “Foreign Subsidiary” means any Restricted Subsidiary of the Company that is not organized
under the laws of the United States of America or any State thereof or the District of Columbia,
other than Goodyear Canada.




          “GAAP” means generally accepted accounting principles in the United States of America as in
effect as of the Closing Date set forth in:





	 	(1)	 	the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants,
	 
	 	(2)	 	statements and pronouncements of the Financial Accounting Standards Board,
	 
	 	(3)	 	such other statements by such other entities as approved by a significant
segment of the accounting profession, and
	 
	 	(4)	 	the rules and regulations of the SEC governing the inclusion of financial
statements (including pro forma financial statements) in periodic reports required to
be filed pursuant to Section 13 of the Exchange Act, including opinions and
pronouncements in staff accounting bulletins and similar written statements from the
accounting staff of the SEC.




All ratios and computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP.




          “Goodyear Canada” means Goodyear Canada Inc., an Ontario corporation, and its successors and
permitted assigns.




          “Guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or
indirect, contingent or otherwise, of such Person:





	 	(1)	 	to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness of such other Person (whether arising by virtue of partnership
arrangements, or by agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement conditions or otherwise)
or
	 
	 	(2)	 	entered into for purposes of assuring in any other manner the obligee of such
Indebtedness of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part);




provided, however, that the term “Guarantee” shall not include endorsements for
collection or deposit in the ordinary course of business. The term “Guarantee” used as a








 



14


verb has a corresponding meaning. The term “Guarantor” shall mean any Person Guaranteeing any
obligation.




          “Guaranteed Obligations” means the principal and interest on the Securities when due, whether
at Stated Maturity, by acceleration or otherwise, and all other obligations, monetary or otherwise,
of the Company under this Indenture and the Securities (including expenses and indemnification).




          “Hedging Obligations” of any Person means the obligations of such Person pursuant to any
Interest Rate Agreement, Currency Agreement or raw materials hedge agreement.




          “Holder” means the Person in whose name a Security is registered on the Registrar’s books.




          “Incur” means issue, assume, Guarantee, incur or otherwise become liable for;
provided, however, that any Indebtedness or Capital Stock of a Person existing at
the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or
otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Subsidiary. The
term “Incurrence” when used as a noun shall have a correlative meaning. The accretion of principal
of a non-interest bearing or other discount security shall not be deemed the Incurrence of
Indebtedness.




          “Indebtedness” means, with respect to any Person on any date of determination, without
duplication:





	 	(1)	 	the principal of and premium (if any) in respect of indebtedness of such
Person for borrowed money;
	 
	 	(2)	 	the principal of and premium (if any) in respect of obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments;
	 
	 	(3)	 	all obligations of such Person for the reimbursement of any obligor on any
letter of credit, bank guarantee, bankers’ acceptance or similar credit transaction
(other than obligations with respect to letters of credit, bank guarantees, bankers’
acceptances or similar credit transactions securing obligations (other than
obligations described in clauses (1), (2) and (5)) entered into in the ordinary course
of business of such Person to the extent such letters of credit, bank guarantees,
bankers’ acceptances or similar credit transactions are not drawn upon or, if and to
the extent drawn upon, such drawing is reimbursed no later than the tenth Business Day
following payment on the letter of credit, bank guarantee, bankers’ acceptance or
similar credit transaction);
	 
	 	(4)	 	all obligations of such Person to pay the deferred and unpaid purchase price
of property or services (except Trade Payables), which purchase price is due more than
six months after the date of placing such property in










 



15


	 	 	 	service or taking delivery and title thereto or the completion of such services;
	 
	 	(5)	 	all Capitalized Lease Obligations and all Attributable Debt of such Person;
	 
	 	(6)	 	the amount of all obligations of such Person with respect to the redemption,
repayment or other repurchase of any Disqualified Stock or, with respect to any
Subsidiary of such Person, any Preferred Stock (but excluding, in each case, any
accrued and unpaid dividends);
	 
	 	(7)	 	all Indebtedness of other Persons secured by a Lien on any asset of such
Person, whether or not such Indebtedness is assumed by such Person; provided,
however, that the amount of Indebtedness of such Person shall be the lesser
of:






	 	(A)	 	the Fair Market Value of such asset at such date of
determination and
	 
	 	(B)	 	the amount of such Indebtedness of such other Persons;






	 	(8)	 	Hedging Obligations of such Person; and
	 
	 	(9)	 	all obligations of the type referred to in clauses (1) through (8) of other
Persons for the payment of which such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any Guarantee.




Notwithstanding the foregoing, in connection with the purchase by the Company or any Restricted
Subsidiary of any business, the term “Indebtedness” shall exclude post-closing payment adjustments
to which the seller may become entitled to the extent such payment is determined by a final closing
balance sheet or such payment depends on the performance of such business after the closing;
provided, however, that, at the time of closing, the amount of any such payment is
not determinable and, to the extent such payment thereafter becomes fixed and determined, the
amount is paid within 30 days thereafter.



The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date
of all unconditional obligations as described above; provided, however, that in the
case of Indebtedness sold at a discount, the amount of such Indebtedness at any time will be the
accreted value thereof at such time.




          “Indenture” means this Indenture as amended or supplemented from time to time.




          “Interest Rate Agreement” means, with respect to any Person, any interest rate protection
agreement, interest rate future agreement, interest rate option agreement, interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement,










 



16

interest rate hedge agreement or other similar agreement or arrangement to which such Person
is party or of which it is a beneficiary.




          “Investment” in any Person means any direct or indirect advance, loan or other extension of
credit (including by way of Guarantee or similar arrangement) or capital contribution to (by means
of any transfer of cash or other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition of Capital Stock, Indebtedness or other
similar instruments issued by, such Person. For purposes of the definition of “Unrestricted
Subsidiary” and Section 4.04:





	 	(1)	 	“Investment” shall include the portion (proportionate to the Company’s equity
interest in such Subsidiary) of the Fair Market Value of the net assets of any
Subsidiary of the Company at the time that such Subsidiary is designated an
Unrestricted Subsidiary; provided, however, that upon a redesignation
of such Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue
to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if
positive) equal to:






	 	(A)	 	the Company’s “Investment” in such Subsidiary at the time of
such redesignation less
	 
	 	(B)	 	the portion (proportionate to the Company’s equity interest
in such Subsidiary) of the Fair Market Value of the net assets of such
Subsidiary at the time of such redesignation; and






	 	(2)	 	any property transferred to or from an Unrestricted Subsidiary shall be
valued at its Fair Market Value at the time of such transfer.




In the event that the Company sells Capital Stock of a Restricted Subsidiary such that after giving
effect to such sale, such Restricted Subsidiary would no longer constitute a Restricted Subsidiary,
any Investment in such Person remaining after giving effect to such sale shall be deemed to
constitute an Investment made on the date of such sale of Capital Stock.




          “Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by
Moody’s and BBB- (or the equivalent) by Standard and Poor’s, or an equivalent rating by any other
Rating Agency.




          “Legal Holiday” means a Saturday, Sunday or other day on which the Trustee or banking
institutions are not required by law or regulation to be open in the State of New York.




          “Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge in the
nature of an encumbrance of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).




          “Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating business.










 



17




          “Net Available Cash” from an Asset Disposition means cash payments received (including any
cash payments received by way of deferred payment of principal pursuant to a note or installment
receivable or otherwise and proceeds from the sale or other disposition of any securities received
as consideration, in each case only as and when received, but excluding any other consideration
received in the form of assumption by the acquiring Person of Indebtedness or other obligations
relating to the properties or assets that are the subject of such Asset Disposition or received in
any other noncash form) therefrom, in each case net of:





	 	(1)	 	all legal, accounting, investment banking, title and recording tax expenses,
commissions and other fees and expenses incurred, and all Federal, state, provincial,
foreign and local taxes required to be paid or accrued as a liability under GAAP, as a
consequence of such Asset Disposition;
	 
	 	(2)	 	all payments made on any Indebtedness which is secured by any assets subject
to such Asset Disposition, in accordance with the terms of any Lien upon or other
security agreement of any kind with respect to such assets, or which must by its
terms, or in order to obtain a necessary consent to such Asset Disposition, or by
applicable law be repaid out of the proceeds from such Asset Disposition;
	 
	 	(3)	 	all distributions and other payments required to be made to minority interest
holders in Subsidiaries or joint ventures as a result of such Asset Disposition; and
	 
	 	(4)	 	appropriate amounts to be provided by the seller as a reserve, in accordance
with GAAP, against any liabilities associated with the property or other assets
disposed of in such Asset Disposition and retained by the Company or any Restricted
Subsidiary after such Asset Disposition (but only for so long as such reserve is
maintained).





          “Net Cash Proceeds”, with respect to any issuance or sale of Capital Stock, means the cash
proceeds of such issuance or sale net of attorneys’ fees, accountants’ fees, underwriters’ or
placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other
fees actually incurred in connection with such issuance or sale and net of taxes paid or payable as
a result thereof.




          “Obligations” means with respect to any Indebtedness, all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, and other amounts payable pursuant to
the documentation governing such Indebtedness.




          “Officer” means the Chairman of the Board, the Chief Executive Officer, the Chief Financial
Officer, the President, any Vice President, the Treasurer or the Secretary of the Company.
“Officer” of a Subsidiary Guarantor has a correlative meaning.




          “Officers’ Certificate” means a certificate signed by two Officers.










 



18




          “Opinion of Counsel” means a written opinion from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of or counsel to the Company, a Subsidiary Guarantor or
the Trustee.




          “Permitted Business” means any business engaged in by the Company or any Restricted Subsidiary
on the Closing Date and any Related Business.




          “Permitted Investment” means an Investment by the Company or any Restricted Subsidiary in:





	 	(1)	 	the Company, a Restricted Subsidiary or a Person that will, upon the making
of such Investment, become a Restricted Subsidiary;
	 
	 	(2)	 	another Person if as a result of such Investment such other Person is merged
or consolidated with or into, or transfers or conveys all or substantially all its
assets to, the Company or a Restricted Subsidiary;
	 
	 	(3)	 	Temporary Cash Investments;
	 
	 	(4)	 	receivables owing to the Company or any Restricted Subsidiary if created or
acquired in the ordinary course of business and payable or dischargeable in accordance
with customary trade terms; provided, however, that such trade terms
may include such concessionary trade terms as the Company or any such Restricted
Subsidiary deems reasonable under the circumstances;
	 
	 	(5)	 	payroll, travel and similar advances to cover matters that are expected at
the time of such advances ultimately to be treated as expenses for accounting purposes
and that are made in the ordinary course of business;
	 
	 	(6)	 	loans or advances to employees made in the ordinary course of business of the
Company or such Restricted Subsidiary;
	 
	 	(7)	 	stock, obligations or securities received in settlement of disputes with
customers or suppliers or debts (including pursuant to any plan of reorganization or
similar arrangement upon insolvency of a debtor) created in the ordinary course of
business and owing to the Company or any Restricted Subsidiary or in satisfaction of
judgments;
	 
	 	(8)	 	any Person to the extent such Investment represents the noncash portion of
the consideration received for an Asset Disposition that was made pursuant to and in
compliance with Section 4.06;
	 
	 	(9)	 	a Receivables Entity or any Investment by a Receivables Entity in any other
Person in connection with a Qualified Receivables Transaction, including Investments
of funds held in accounts permitted or required by the arrangements governing such
Qualified Receivables Transaction or any related Indebtedness; provided,
however, that any Investment in a










 



19


	 	 	 	Receivables Entity is in the form of a Purchase Money Note, contribution of
additional receivables or an equity interest;
	 
	 	(10)	 	any Person to the extent such Investments consist of prepaid expenses,
negotiable instruments held for collection and lease, utility and workers’
compensation, performance and other similar deposits made in the ordinary course of
business by the Company or any Restricted Subsidiary;
	 
	 	(11)	 	any Person to the extent such Investments consist of Hedging Obligations
otherwise permitted under Section 4.03;
	 
	 	(12)	 	any Person to the extent such Investment in such Person existed on the
Closing Date and any Investment that replaces, refinances or refunds such an
Investment, provided that the new Investment is in an amount that does not exceed that
amount replaced, refinanced or refunded and is made in the same Person as the
Investment replaced, refinanced or refunded;
	 
	 	(13)	 	advances to, and Guarantees for the benefit of, customers, dealers or
suppliers made in the ordinary course of business and consistent with past practice;
and
	 
	 	(14)	 	any Person to the extent such Investment, when taken together with all other
Investments made pursuant to this clause (14) and then outstanding on the date such
Investment is made, does not exceed the greater of (A) the sum of (i) $500,000,000 and
(ii) any amounts under Section 4.04(a)(3)(iv)(x) that were excluded by operation of
the proviso in Section  4.04(a)(3)(iv)and which excluded amounts are not otherwise
included in Consolidated Net Income or intended to be permitted under any of
clauses (1) through (13) of this definition and (B) 5.0% of Consolidated assets of the
Company as of the end of the most recent fiscal quarter for which financial statements
of the Company have been filed with the SEC.
	 
	 	 	 	“Permitted Liens” means, with respect to any Person:
	 
	 	(1)	 	Liens to secure Indebtedness permitted pursuant to Section 4.03(b)(1);
	 
	 	(2)	 	Liens to secure Indebtedness permitted pursuant to Sections  4.03(b)(11)and
4.03(b)(12);
	 
	 	(3)	 	pledges or deposits by such Person under workers’ compensation laws,
unemployment insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of Indebtedness)
or leases to which such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or United States government bonds to
secure surety or appeal bonds to which such Person is a party, or deposits as security
for contested taxes or import










 



20


	 	 	 	duties or for the payment of rent, in each case Incurred in the ordinary course of
business;
	 
	 	(4)	 	Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens,
in each case for sums not yet due or being contested in good faith by appropriate
proceedings or other Liens arising out of judgments or awards against such Person with
respect to which such Person shall then be proceeding with an appeal or other
proceedings for review;
	 
	 	(5)	 	Liens for taxes, assessments or other governmental charges not yet due or
payable or subject to penalties for non-payment or which are being contested in good
faith by appropriate proceedings;
	 
	 	(6)	 	Liens in favor of issuers of surety or performance bonds or letters of
credit, bank guarantees, bankers’ acceptances or similar credit transactions issued
pursuant to the request of and for the account of such Person in the ordinary course
of its business; provided, however, that such letters of credit, bank
guarantees, bankers’ acceptances and similar credit transactions do not constitute
Indebtedness;
	 
	 	(7)	 	survey exceptions, encumbrances, easements or reservations of, or rights of
others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone
lines and other similar purposes, or zoning or other restrictions as to the use of
real property or Liens incidental to the conduct of the business of such Person or to
the ownership of its properties which were not Incurred in connection with
Indebtedness for borrowed money and which do not in the aggregate materially adversely
affect the value of said properties or materially impair their use in the operation of
the business of such Person;
	 
	 	(8)	 	Liens securing Indebtedness Incurred to finance the construction, purchase or
lease of, or repairs, improvements or additions to, property of such Person (including
Indebtedness Incurred under Section 4.03(b)(6); provided, however,
that the Lien may not extend to any other property (other than property related to the
property being financed) owned by such Person or any of its Subsidiaries at the time
the Lien is Incurred, and the Indebtedness (other than any interest thereon) secured
by the Lien may not be Incurred more than 180 days after the later of the acquisition,
completion of construction, repair, improvement, addition or commencement of full
operation of the property subject to the Lien;
	 
	 	(9)	 	Liens existing on the Closing Date (other than Liens referred to in the
foregoing clauses (1) and (2));
	 
	 	(10)	 	Liens on property or shares of stock of another Person at the time such other
Person becomes a Subsidiary of such Person; provided, however, that
such Liens are not created, Incurred or assumed in connection with, or










 



21


	 	 	 	in contemplation of, such other Person becoming such a Subsidiary; provided
further, however, that such Liens do not extend to any other
property owned by such Person or any of its Subsidiaries, except pursuant to
after-acquired property clauses existing in the applicable agreements at the time
such Person becomes a Subsidiary which do not extend to property transferred to
such Person by the Company or a Restricted Subsidiary;
	 
	 	(11)	 	Liens on property at the time such Person or any of its Subsidiaries acquires
the property, including any acquisition by means of a merger or consolidation with or
into such Person or any Subsidiary of such Person; provided, however,
that such Liens are not created, Incurred or assumed in connection with, or in
contemplation of, such acquisition; provided further, however, that
the Liens do not extend to any other property owned by such Person or any of its
Subsidiaries;
	 
	 	(12)	 	Liens securing Indebtedness or other obligations of a Subsidiary of such
Person owing to such Person or a Restricted Subsidiary of such Person;
	 
	 	(13)	 	Liens securing Hedging Obligations so long as such Hedging Obligations are
permitted to be Incurred under this Indenture;
	 
	 	(14)	 	Liens on assets of Foreign Subsidiaries securing Indebtedness Incurred under
Section 4.03(b)(10);
	 
	 	(15)	 	Liens to secure any Refinancing (or successive Refinancings) as a whole, or
in part, of any Indebtedness secured by any Lien referred to in the foregoing
clauses (8), (9), (10) and (11); provided, however, that:






	 	(A)	 	such new Lien shall be limited to all or part of the same
property that secured the original Lien (plus improvements, accessions,
proceeds, dividends or distributions in respect thereof) and
	 
	 	(B)	 	the Indebtedness secured by such Lien at such time is not
increased to any amount greater than the sum of:






	 	(i)	 	the outstanding principal amount or, if
greater, committed amount of the Indebtedness secured by Liens
described under clauses (8), (9), (10) or (11) hereof at the time the
original Lien became a Permitted Lien under this Indenture; and
	 
	 	(ii)	 	an amount necessary to pay any fees and
expenses, including premiums, related to such Refinancings;






	 	(16)	 	Liens on accounts receivables and related assets of the type specified in the
definition of “Qualified Receivables Transaction” Incurred in connection with a
Qualified Receivables Transaction;










 



22


	 	(17)	 	judgment Liens not giving rise to an Event of Default so long as any
appropriate legal proceedings which may have been duly initiated for the review of
such judgment have not been finally terminated or the period within which such
proceedings may be initiated has not expired;
	 
	 	(18)	 	Liens arising from Uniform Commercial Code financing statement filings
regarding leases that do not otherwise constitute Indebtedness entered into in the
ordinary course of business;
	 
	 	(19)	 	leases and subleases of real property which do not materially interfere with
the ordinary conduct of the business of the Company and its Subsidiaries;
	 
	 	(20)	 	Liens which constitute bankers’ Liens, rights of set-off or similar rights
and remedies as to deposit accounts or other funds maintained with any bank or other
financial institution, whether arising by operation of law or pursuant to contract;
	 
	 	(21)	 	Liens on specific items of inventory or other goods and proceeds of any
Person securing such Person’s obligations in respect of bankers’ acceptances issued or
created for the account of such Person to facilitate the purchase, shipment or storage
of such inventory or other goods;
	 
	 	(22)	 	Liens on specific items of inventory or other goods and related documentation
(and proceeds thereof) securing reimbursement obligations in respect of trade letters
of credit issued to ensure payment of the purchase price for such items of inventory
or other goods; and
	 
	 	(23)	 	other Liens to secure Indebtedness as long as the amount of outstanding
Indebtedness secured by Liens Incurred pursuant to this clause (23) does not exceed
7.5% of Consolidated assets of the Company, as determined based on the consolidated
balance sheet of the Company as of the end of the most recent fiscal quarter for which
financial statements have been filed with the SEC; provided, however,
notwithstanding whether this clause (23) would otherwise be available to secure
Indebtedness, Liens securing Indebtedness originally secured pursuant to this
clause (23) may secure Refinancing Indebtedness in respect of such Indebtedness and
such Refinancing Indebtedness shall be deemed to have been secured pursuant to this
clause (23).





          “Person” means any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity.




          “Preferred Stock”, as applied to the Capital Stock of any Person, means Capital
Stock of any class or classes (however designated) that is preferred as to the
payment of dividends, or as to the distribution
of assets upon any voluntary or

















 





23



involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any
other class of such Person.




          “principal” of a Security means the principal of the Security plus the premium, if any,
payable on the Security which is due or overdue or is to become due at the relevant time.




          “Prospectus” means the Prospectus, dated [ ], [ ], as supplemented by the Prospectus
Supplement, dated [ ], [ ], with respect to the Securities, as supplemented or amended and
including all documents incorporated by reference therein.




          “Purchase Money Indebtedness” means Indebtedness:





	 	(1)	 	consisting of the deferred purchase price of property, plant or equipment,
conditional sale obligations, obligations under any title retention agreement and
other obligations Incurred in connection with the acquisition, construction or
improvement of such asset, in each case where the amount of such Indebtedness does not
exceed the greater of (A) the cost of the asset being financed and (B) the Fair Market
Value of such asset; and
	 
	 	(2)	 	Incurred to finance such acquisition, construction or improvement by the
Company or a Restricted Subsidiary of such asset;




provided, however, that such Indebtedness is Incurred within 180 days after such
acquisition or the completion of such construction or improvement.




          “Purchase Money Note” means a promissory note of a Receivables Entity evidencing a line of
credit, which may be irrevocable, from the Company or any Subsidiary of the Company to a
Receivables Entity in connection with a Qualified Receivables Transaction, which note





	 	(1)	 	shall be repaid from cash available to the Receivables Entity, other than






	 	(A)	 	amounts required to be established as reserves;
	 
	 	(B)	 	amounts paid to investors in respect of interest;
	 
	 	(C)	 	principal and other amounts owing to such investors; and
	 
	 	(D)	 	amounts paid in connection with the purchase of newly
generated receivables and






	 	(2)	 	may be subordinated to the payments described in clause (a).





          “Qualified Receivables Transaction” means any transaction or series of transactions that may
be entered into by the Company or any of its Subsidiaries pursuant




 









 








24



to which the Company or any of its Subsidiaries may sell, convey or otherwise transfer to:





	 	(1)	 	a Receivables Entity (in the case of a transfer by the Company or any of its
Subsidiaries) or
	 
	 	(2)	 	any other Person (in the case of a transfer by a Receivables Entity),




or may grant a security interest in, any accounts receivable (whether now existing or arising in
the future) of the Company or any of its Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such accounts receivable, all contracts and all
Guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts
receivable and other assets which are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization transactions involving
accounts receivable; provided, however, that the financing terms, covenants,
termination events and other provisions thereof shall be market terms (as determined in good faith
by a Financial Officer of the Company).



The grant of a security interest in any accounts receivable of the Company or any of its Restricted
Subsidiaries to secure Bank Indebtedness shall not be deemed a Qualified Receivables Transaction.




          “Rating Agency” means Standard & Poor’s and Moody’s or if Standard & Poor’s or Moody’s or both
shall not make a rating on the Securities publicly available, a nationally recognized statistical
rating agency or agencies, as the case may be, selected by the Company (as certified by a
resolution of the Board of Directors) which shall be substituted for Standard & Poor’s or Moody’s
or both, as the case may be.




          “Receivables Entity” means a (a) Wholly Owned Subsidiary of the Company which is designated by
the Board of Directors (as provided below) as a Receivables Entity or (b) another Person engaging
in a Qualified Receivables Transaction with the Company which Person engages in the business of the
financing of accounts receivable, and in either of clause (a) or (b):





	 	(1)	 	no portion of the Indebtedness or any other obligations (contingent or
otherwise) of which






	 	(A)	 	is Guaranteed by the Company or any Subsidiary of the Company
(excluding Guarantees of obligations (other than the principal of, and
interest on, Indebtedness) pursuant to Standard Securitization Undertakings);
	 
	 	(B)	 	is recourse to or obligates the Company or any Subsidiary of
the Company in any way other than pursuant to Standard Securitization
Undertakings; or
	 
	 	(C)	 	subjects any property or asset of the Company or any
Subsidiary of the Company, directly or indirectly, contingently or otherwise,
to




 









 











25





	 	 	 	the satisfaction thereof, other than pursuant to Standard Securitization
Undertakings;






	 	(2)	 	which is not an Affiliate of the Company or with which neither the Company
nor any Subsidiary of the Company has any material contract, agreement, arrangement or
understanding other than on terms which the Company reasonably believes to be no less
favorable to the Company or such Subsidiary than those that might be obtained at the
time from Persons that are not Affiliates of the Company; and
	 
	 	(3)	 	to which neither the Company nor any Subsidiary of the Company has any
obligation to maintain or preserve such entity’s financial condition or cause such
entity to achieve certain levels of operating results.




Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the
Trustee a certified copy of the resolution of the Board of Directors giving effect to such
designation and an Officers’ Certificate certifying that such designation complied with the
foregoing conditions.




          “Refinance” means, in respect of any Indebtedness, to refinance, extend, renew, refund, repay,
prepay, redeem, defease or retire, or to issue other Indebtedness exchange or replacement for, such
Indebtedness, including, in any such case from time to time, after the discharge of the
Indebtedness being Refinanced. “Refinanced” and “Refinancing” shall have correlative meanings.




          “Refinancing Indebtedness” means Indebtedness that is Incurred to Refinance (including
pursuant to any defeasance or discharge mechanism) any Indebtedness of the Company or any
Restricted Subsidiary existing on the Closing Date or Incurred in compliance with this Indenture
(including Indebtedness of the Company that Refinances Refinancing Indebtedness); provided,
however, that:





	 	(1)	 	the Refinancing Indebtedness has a Stated Maturity no earlier than the Stated
Maturity of the Indebtedness being Refinanced,
	 
	 	(2)	 	the Refinancing Indebtedness has an Average Life at the time such Refinancing
Indebtedness is Incurred that is equal to or greater than the Average Life of the
Indebtedness being refinanced,
	 
	 	(3)	 	such Refinancing Indebtedness is Incurred in an aggregate principal amount
(or if Incurred with original issue discount, an aggregate issue price) that is equal
to or less than the aggregate principal amount of the Indebtedness being refinanced
(or if issued with original issue discount, the aggregate accreted value) then
outstanding (or that would be outstanding if the entire committed amount of any credit
facility being Refinanced were fully drawn (other than any such amount that would have
been prohibited from being drawn pursuant to Section 4.03) (plus fees and expenses,
including any premium and defeasance costs), and




 









 











26





	 	(4)	 	if the Indebtedness being Refinanced is subordinated in right of payment to
the Securities, such Refinancing Indebtedness is subordinated in right of payment to
the Securities at least to the same extent as the Indebtedness being Refinanced;




provided further, however, that Refinancing Indebtedness shall not include:





	 	(A)	 	Indebtedness of a Restricted Subsidiary that is not a
Subsidiary Guarantor that Refinances Indebtedness of the Company or
	 
	 	(B)	 	Indebtedness of the Company or a Restricted Subsidiary that
Refinances Indebtedness of an Unrestricted Subsidiary.





          “Related Business” means any business reasonably related, ancillary or complementary to the
businesses of the Company and its Restricted Subsidiaries on the Closing Date.




          “Restricted Payment” in respect of any Person means:





	 	(1)	 	the declaration or payment of any dividend, any distribution on or in respect
of its Capital Stock or any similar payment (including any payment in connection with
any merger or consolidation involving the Company or any Restricted Subsidiary) to the
direct or indirect holders of its Capital Stock in their capacity as such, except (A)
dividends or distributions payable solely in its Capital Stock (other than
Disqualified Stock or, in the case of a Restricted Subsidiary, Preferred Stock) and
(B) dividends or distributions payable to the Company or a Restricted Subsidiary (and,
if such Restricted Subsidiary has Capital Stock held by Persons other than the Company
or other Restricted Subsidiaries, to such other Persons on no more than a pro rata
basis),
	 
	 	(2)	 	the purchase, repurchase, redemption, retirement or other acquisition
(“Purchase”) for value of any Capital Stock of the Company held by any Person (other
than Capital Stock held by the Company or a Restricted Subsidiary) or any Capital
Stock of a Restricted Subsidiary held by any affiliate of the Company (other than by a
Restricted Subsidiary) (other than in exchange for Capital Stock of the Company that
is not Disqualified Stock),
	 
	 	(3)	 	the Purchase for value, prior to scheduled maturity, of any scheduled
repayment or any scheduled sinking fund payment, any Subordinated Obligations (other
than the Purchase for value of Subordinated Obligations acquired in anticipation of
satisfying a sinking fund obligation, principal installment or final maturity, in each
case due within one year of the date of such Purchase), or
	 
	 	(4)	 	any Investment (other than a Permitted Investment) in any Person.




 









 











27




          “Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted
Subsidiary.




          “Sale/Leaseback Transaction” means an arrangement relating to property, plant or equipment now
owned or hereafter acquired by the Company or a Restricted Subsidiary whereby the Company or a
Restricted Subsidiary transfers such property to a Person and the Company or such Restricted
Subsidiary leases it from such Person, other than (i) leases between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries or (ii) any such transaction entered into with
respect to any property, plant or equipment or any improvements thereto at the time of, or within
180 days after, the acquisition or completion of construction of such property, plant or equipment
or such improvements (or, if later, the commencement of commercial operation of any such property,
plant or equipment), as the case may be, to finance the cost of such property, plant or equipment
or such improvements, as the case may be.




          “SEC” means the Securities and Exchange Commission.




          “Secured Indebtedness” means any Indebtedness of the Company secured by a Lien. “Secured
Indebtedness” of a Subsidiary Guarantor has a correlative meaning.




          “Securities” means the [ ]% Senior Notes due [ ] issued pursuant to this Indenture.




          “Securities Act” means the U.S. Securities Act of 1933, as amended.




          “Senior Indebtedness” of the Company or any Subsidiary Guarantor, as the case may be, means
the principal of, premium (if any) and accrued and unpaid interest on (including interest accruing
on or after the filing of any petition in bankruptcy or for reorganization of the Company or any
Subsidiary Guarantor, as applicable, regardless of whether or not a claim for post-filing interest
is allowed in such proceedings), and fees and other amounts owing in respect of, Bank Indebtedness,
the Securities (in the case of the Company), the Subsidiary Guarantees (in the case of the
Subsidiary Guarantors) and all other Indebtedness of the Company or any Subsidiary Guarantor, as
applicable, whether outstanding on the Closing Date or thereafter Incurred, unless in the
instrument creating or evidencing the same or pursuant to which the same is outstanding it is
provided that such obligations are subordinated in right of payment to the Securities or such
Subsidiary Guarantor’s Subsidiary Guarantee, as applicable; provided, however, that
Senior Indebtedness of the Company or any Subsidiary Guarantor shall not include:





	 	(1)	 	any obligation of the Company to any Subsidiary of the Company or of such
Subsidiary Guarantor to the Company or any other Subsidiary of the Company;
	 
	 	(2)	 	any liability for Federal, state, local or other taxes owed or owing by the
Company or such Subsidiary Guarantor, as applicable;




 









 











28





	 	(3)	 	any accounts payable or other liability to trade creditors arising in the
ordinary course of business (including Guarantees thereof or instruments evidencing
such liabilities);
	 
	 	(4)	 	any Indebtedness or obligation of the Company (and any accrued and unpaid
interest in respect thereof) that by its terms is subordinate or junior in right of
payment to any other Indebtedness or obligation of the Company or such Subsidiary
Guarantor, as applicable, including any Subordinated Obligations of the Company or
such Subsidiary Guarantor, as applicable;
	 
	 	(5)	 	any obligations with respect to any Capital Stock; or
	 
	 	(6)	 	any Indebtedness Incurred in violation of this Indenture.





          “Significant Subsidiary” means any Restricted Subsidiary that would be a “Significant
Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the
SEC.




          “Specified Asset Sale” means the sale of all or a portion of the Company’s properties in
Akron, Summit County, Ohio held on the date hereof.




          “Standard & Poor’s” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.,
and any successor to its rating business.




          “Standard Securitization Undertakings” means representations, warranties, covenants and
indemnities entered into by the Company or any Subsidiary of the Company which, taken as a whole,
are customary in an accounts receivable transaction.




          “Stated Maturity” means, with respect to any security, the date specified in such security as
the fixed date on which the final payment of principal of such security is due and payable,
including pursuant to any mandatory redemption provision (but excluding any provision providing for
the repurchase of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has occurred).




          “Subordinated Obligation” means any Indebtedness of the Company (whether outstanding on the
Closing Date or thereafter Incurred) that by its terms is subordinate or junior in right of payment
to the Securities. “Subordinated Obligation” of a Subsidiary Guarantor has a correlative meaning.




          “Subsidiary” of any Person means any corporation, association, partnership or other business
entity of which more than 50% of the total voting power of shares of Capital Stock or other
interests (including partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by:





	 	(1)	 	such Person,




 









 











29





	 	(2)	 	such Person and one or more Subsidiaries of such Person or
	 
	 	(3)	 	one or more Subsidiaries of such Person.





          “Subsidiary Guarantee” means each Guarantee of the obligations with respect to the Securities
issued by a Subsidiary of the Company pursuant to the terms of this Indenture.




          “Subsidiary Guarantor” means any Subsidiary that has issued a Subsidiary Guarantee.




          “Temporary Cash Investments” means any of the following:





	 	(1)	 	direct obligations of, or obligations the principal of and interest on which
are unconditionally guaranteed by, the United States of America (or by any agency
thereof to the extent such obligations are backed by the full faith and credit of the
United States of America), in each case maturing within one year from the date of
acquisition thereof;
	 
	 	(2)	 	investments in commercial paper maturing within 270 days from the date of
acquisition thereof, and having, at such date of acquisition, ratings of A1 from
Standard & Poor’s and P1 from Moody’s;
	 
	 	(3)	 	investments in certificates of deposit, banker’s acceptances and time
deposits maturing within 180 days from the date of acquisition thereof and issued or
guaranteed by or placed with, and money market deposit accounts issued or offered by
any commercial bank organized under the laws of the United States of America or any
state thereof which has a short-term deposit rating of A1 from Standard & Poor’s and
P1 from Moody’s and has a combined capital and surplus and undivided profits of not
less than $500,000,000;
	 
	 	(4)	 	fully collateralized repurchase agreements with a term of not more than 30
days for securities described in clause (1) above and entered into with a financial
institution described in clause (3) above;
	 
	 	(5)	 	money market funds that (A) comply with the criteria set forth in SEC Rule
2a-7 under the Investment Company Act of 1940, (B) are rated AAA by Standard & Poor’s
and Aaa by Moody’s and (C) have portfolio assets of at least $5,000,000,000; and
	 
	 	(6)	 	in the case of any Foreign Subsidiary, (A) marketable direct obligations
issued or unconditionally guaranteed by the sovereign nation in which such Foreign
Subsidiary is organized and is conducting business or issued by any agency of such
sovereign nation and backed by the full faith and credit of such sovereign nation, in
each case maturing within one year from the date of acquisition, so long as the
indebtedness of such sovereign nation is rated at least A by Standard & Poor’s or A2
by Moody’s or




 









 











30





	 	 	 	carries an equivalent rating from a comparable foreign rating agency, (B)
investments of the type and maturity described in clauses (2) through (5) of
foreign obligors, which investments or obligors have ratings described in such
clauses or equivalent ratings from comparable foreign rating agencies, (C)
investments of the type and maturity described in clause (3) in any obligor
organized under the laws of a jurisdiction other than the United States that (i) is
a branch or subsidiary of a lender or the ultimate parent company of a lender under
any of the Credit Agreements (but only if such lender meets the ratings and
capital, surplus and undivided profits requirements of such clause (3)) or (ii)
carries a rating at least equivalent to the rating of the sovereign nation in which
it is located, and (D) other investments of the type and maturity described in
clause (3) in obligors organized under the laws of a jurisdiction other than the
United States in any country in which such Subsidiary is located; provided,
however, that the investments permitted under this subclause (D) shall be
made in amounts and jurisdictions consistent with the Company’s policies governing
short-term investments.





          “TIA” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the
Closing Date.




          “Trade Payables” means, with respect to any Person, any accounts payable or any indebtedness
or monetary obligation to trade creditors created, assumed or Guaranteed by such Person arising in
the ordinary course of business in connection with the acquisition of goods or services.




          “Trustee” means the party named as such in this Indenture until a successor replaces it and,
thereafter, means the successor.




          “Trust Officer” means the Chairman of the Board, the President or any other officer or
assistant officer of the Trustee assigned by the Trustee to administer its corporate trust matters.




          “Uniform Commercial Code” means the New York Uniform Commercial Code as in effect from time to
time.




          “Unrestricted Subsidiary” means:





	 	(1)	 	any Subsidiary of the Company that at the time of determination shall be
designated an Unrestricted Subsidiary by the Board of Directors in the manner provided
below and
	 
	 	(2)	 	any Subsidiary of an Unrestricted Subsidiary.




The Board of Directors may designate any Subsidiary of the Company (including any newly acquired or
newly formed Subsidiary of the Company) to be an Unrestricted Subsidiary unless such Subsidiary or
any of its Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any Lien on any
property of, the Company or any other




 









 








31



Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so designated;
provided, however, that either:





	 	(A)	 	the Subsidiary to be so designated has total Consolidated
assets of $1,000 or less or
	 
	 	(B)	 	if such Subsidiary has Consolidated assets greater than
$1,000, then such designation would be permitted under Section 4.04.




The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided, however, that immediately after giving effect to such designation:





	 	(x)	 	(1) the Company could Incur $1.00 of additional Indebtedness under Section
4.03(a) or (2) the Consolidated Coverage Ratio for the Company and its Restricted
Subsidiaries would be greater after giving effect to such designation than before such
designation and
	 
	 	(y)	 	no Default shall have occurred and be continuing.




Any such designation of a Subsidiary as a Restricted Subsidiary or Unrestricted Subsidiary by the
Board of Directors shall be evidenced to the Trustee by promptly filing with the Trustee a copy of
the resolution of the Board of Directors giving effect to such designation and an Officers’
Certificate certifying that such designation complied with the foregoing provisions.




          “U.S. Bank Indebtedness” means any and all amounts payable under or in respect of the U.S.
Credit Agreements and any Refinancing Indebtedness with respect thereto or with respect to such
Refinancing Indebtedness, as amended from time to time, including principal, premium (if any),
interest (including interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not a claim for post-filing interest is allowed
in such proceedings), fees, charges, expenses, reimbursement obligations and all other amounts
payable thereunder or in respect thereof.




          “U.S. Credit Agreements” means (i) the Amended and Restated First Lien Credit Agreement,
dated as of April 20, 2007, among the Company, the lenders party thereto, the issuing banks party
thereto, Citicorp USA, Inc., as Syndication Agent, Bank of America, N.A., BNP Paribas, The CIT
Group/Business Credit, Inc., General Electric Capital Corporation, GMAC Commercial Finance LLC,
Wells Fargo Foothill, as Documentation Agents, and JPMorgan Chase Bank, N.A., as Administrative
Agent and Collateral Agent, and (ii) the Amended and Restated Second Lien Credit Agreement, dated
as of April 20, 2007, among the Company, the lenders party thereto, Deutsche Bank Trust Company
Americas, as Collateral Agent, and JPMorgan Chase Bank, N.A., as Administrative Agent, each as
amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether
with the original lenders or otherwise), refinanced, restructured or otherwise modified from time
to time (except to the extent that any such amendment, restatement, supplement, waiver,
replacement, refinancing,




 









 








32



restructuring or other modification thereto would be prohibited by the terms of the Indenture,
unless otherwise agreed to by the Holders of at least a majority in aggregate principal amount of
Securities at the time outstanding).




          “U.S. Dollar Equivalent” means with respect to any monetary amount in a currency other than
U.S. dollars, at any time for determination thereof, the amount of U.S. dollars obtained by
converting such foreign currency involved in such computation into U.S. dollars at the spot rate
for the purchase of U.S. dollars with the applicable foreign currency as published in The Wall
Street Journal in the “Exchange Rates” column under the heading “Currency Trading” on the date two
Business Days prior to such determination.




          “U.S. Government Obligations” means direct obligations (or certificates representing an
ownership interest in such obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of the United States of
America is pledged and which are not callable or redeemable at the issuer’s option.




          “Voting Stock” of a Person means all classes of Capital Stock or other interests (including
partnership interests) of such Person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.




          “Wholly Owned Subsidiary” means a Restricted Subsidiary of the Company all the Capital Stock
of which (other than directors’ qualifying shares) is owned by the Company or another Wholly Owned
Subsidiary.




          SECTION 1.02. Other Definitions.




	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Affiliate Transaction”
	 	 	4.07	(a)
	“Bankruptcy Law”
	 	 	6.01	 
	“Change of Control Offer”
	 	 	4.08	(b)
	“covenant defeasance option”
	 	 	8.01	(b)
	“Custodian”
	 	 	6.01	 
	“Definitive Security”
	 	Appendix A
	“Event of Default”
	 	 	6.01	 
	“Global Security”
	 	Appendix A
	“Initial Lien”
	 	 	4.09	 
	“legal defeasance option”
	 	 	8.01	(b)
	“Offer”
	 	 	4.06	(c)
	“Offer Amount”
	 	 	4.06	(d)(3)
	“Offer Period”
	 	 	4.06	(d)(3)
	“Paying Agent”
	 	 	2.03	 






 









 






33




	 	 	 	 	 
	 	 	Defined in	 
	Term	 	Section	 
	“Purchase Date”
	 	 	4.06	(d)(2)
	“Registrar”
	 	 	2.03	 
	“Reversion Date”
	 	 	4.12	(b)
	“Successor Company”
	 	 	5.01	(a)(1)
	“Successor Guarantor”
	 	 	5.01	(c)(1)
	“Suspended Covenants”
	 	 	4.12	(a)
	“Suspension Date”
	 	 	4.12	(a)
	“Suspension Period”
	 	 	4.12	(b)






          SECTION 1.03. Incorporation by Reference of Trust Indenture Act. This Indenture is
subject to the mandatory provisions of the TIA which are incorporated by reference in and made a
part of this Indenture. The following TIA terms have the following meanings:




          “Commission” means the SEC;




          “indenture securities” means the Securities and the Subsidiary Guarantees;




          “indenture security holder” means a Holder;




          “indenture to be qualified” means this Indenture;




          “indenture trustee” or “institutional trustee” means the Trustee; and




          “obligor” on the indenture securities means the Company, each Subsidiary Guarantor and any
other obligor on the indenture securities.




          All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule have the meanings assigned to them by such
definitions.




          SECTION 1.04. Rules of Construction. Unless the context otherwise requires:





	 	(1)	 	a term has the meaning assigned to it;
	 
	 	(2)	 	an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
	 
	 	(3)	 	“or” is not exclusive;
	 
	 	(4)	 	“including” means including without limitation;
	 
	 	(5)	 	words in the singular include the plural and words in the
plural include the singular;






 












 





34





	 	(6)	 	unsecured Indebtedness shall not be deemed to be subordinate
or junior to secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
	 
	 	(7)	 	secured Indebtedness shall not be deemed to be subordinate or
junior to any other secured Indebtedness merely because it has a junior
priority with respect to the same collateral;
	 
	 	(8)	 	the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof that would
be shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP;
	 
	 	(9)	 	the principal amount of any Preferred Stock shall be (A) the
maximum liquidation value of such Preferred Stock or (B) the maximum mandatory
redemption or mandatory repurchase price with respect to such Preferred Stock,
whichever is greater; and
	 
	 	(10)	 	all references to the date the Securities were originally
issued shall refer to the Closing Date.





ARTICLE 2




The Securities




          SECTION 2.01. Form and Dating. Provisions relating to the Securities are set forth
in Appendix A attached hereto (the “Appendix”) which is hereby incorporated in, and expressly made
part of, this Indenture. The Securities and the Trustee’s certificate of authentication shall be
substantially in the form of Exhibit 1 to this Indenture, which is hereby incorporated in and
expressly made a part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule, agreements to which the Company is subject, if
any, or usage (provided that any such notation, legend or endorsement is in a form acceptable to
the Company). Each Security shall be dated the date of its authentication. The terms of the
Securities set forth in Appendix A and Exhibit 1 are part of the terms of this Indenture. The
Securities shall be issuable only in registered form without interest coupons and only in
denominations of $1,000 and integral multiples of $1,000 in excess thereof.




          SECTION 2.02. Execution and Authentication. Two Officers shall sign the Securities
for the Company by manual or facsimile signature.




          If an Officer whose signature is on a Security no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless.




          A Security shall not be valid until an authorized signatory of the Trustee manually signs the
certificate of authentication on the Security. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.




 









 









35




          The Trustee shall authenticate and make available for delivery Securities as set forth in
Appendix A.




          The Trustee may appoint an authenticating agent reasonably acceptable to the Company to
authenticate the Securities. Unless limited by the terms of such appointment, an authenticating
agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture
to authentication by the Trustee includes authentication by such agent. An authenticating agent
has the same rights as any Registrar, Paying Agent or agent for service of notices and demands.




          SECTION 2.03. Registrar and Paying Agent. (a) The Company shall maintain an office
or agency where Securities may be presented for registration of transfer or for exchange (the
“Registrar”) and an office or agency located in the Borough of Manhattan, the City of New York,
where Securities may be presented for payment (the “Paying Agent”). The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company may have one or more
co-registrars and one or more additional paying agents provided, however, that so long as Wells
Fargo Bank, National Association shall be the Trustee, without the consent of the Trustee, there
shall be no more than one Registrar or Paying Agent. The term “Paying Agent” includes any
additional paying agent.




          The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent
or co-registrar not a party to this Indenture, which shall incorporate the terms of the TIA. The
agreement shall implement the provisions of this Indenture that relate to such agent. The Company
shall notify the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.07. The
Company or any Wholly Owned Subsidiary incorporated or organized within The United States of
America may act as Paying Agent, Registrar, co-registrar or transfer agent.




          The Registrar may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents, and the Company may require a Holder to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register transfer or exchanges of
Securities selected for redemption (except, in the case of Securities to be redeemed in part, the
portion thereof not to be redeemed) or any Securities for a period of 15 days before a selection of
Securities to be redeemed, or any Securities for a period of 15 days before a selection of an
interest payment date. The Holder of a Security may be treated as the owner of such Security for
all purposes.




          (b) The Company initially appoints the Trustee as Registrar and Paying Agent in connection
with the Securities and Securities Custodian with respect to the Global Securities.




          (c) The Company may remove any Registrar or Paying Agent upon written notice to such
Registrar or Paying Agent and to the Trustee; provided,
however, that no such removal shall become effective until (i) acceptance of an appointment by a
successor as evidence by an appropriate agreement entered into by the Company and such successor
Registrar or Paying Agent, as the case may be, and delivered to the Trustee or (ii) notification to
the Trustee that the Trustee shall serve as Registrar or Paying Agent until the appointment of a
successor in accordance with clause (i) above.



 









 







36




          (d)
Except as the Company and the Trustee may otherwise agree, the Company shall promptly file with the Trustee by each January
15th a written notice specifying the amount of the original issue discount accrued on the Securities for the previous calendar year, including daily rates and accrual periods, and such other information relating to original issue discount as may be required under the Code and applicable regulations, as amended from time to time.
 

          SECTION 2.04. Paying Agent To Hold Money in Trust. Prior to each due date of the
principal and interest on any Security, the Company shall deposit with the Paying Agent (or if the
Company or a Subsidiary is acting as Paying Agent, segregate and hold in trust for the benefit of
Holders entitled thereto) a sum sufficient to pay such principal and interest when so becoming due.
The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal of or interest on the Securities and shall notify the
Trustee of any default by the Company in making any such payment. If the Company or a Subsidiary
acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying Agent to pay all money held by
it to the Trustee and to account for any funds disbursed by the Paying Agent. Upon complying with
this Section, the Paying Agent shall have no further liability for the money delivered to the
Trustee.




          SECTION 2.05. Lists of Holders of Securities. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it of the names and
addresses of Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee, in writing at least five Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of Holders.




          SECTION 2.06. Transfer and Exchange. (a) The Securities shall be issued in
registered form and shall be transferable only in compliance with Appendix A and upon the surrender
of a Security for registration of transfer. When a Security is presented to the Registrar or a
co-registrar with a request to register a transfer, the Registrar shall register the transfer as
requested if the requirements of this Indenture and Section 8-401(1) of the Uniform Commercial Code
are met. When Securities are presented to the Registrar or a co-registrar with a request to
exchange them for an equal principal amount of Securities of other denominations, the Registrar
shall make the exchange as requested if the same requirements are met.




          (b) To permit registration of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Securities at the Registrar’s request. The Company may require payment
of a sum sufficient to pay all taxes, assessments or other governmental charges in connection with
any transfer or exchange pursuant to this Section. The Company shall not be required to make and
the Registrar need not register transfer or exchanges of Securities selected for redemption in
accordance with the terms of this Indenture (except, in the case of Securities to be redeemed in
part, the portion thereof not to be redeemed) or any Securities for a period of 15 days before a
selection of




 









 









37



Securities to be redeemed or any Securities for a period of 15 days before an interest payment
date.




          Prior to the due presentation for registration of transfer of any Security, the Company, the
Subsidiary Guarantors, the Trustee, the Paying Agent and the Registrar may deem and treat the
Person in whose name a Security is registered as the absolute owner of such Security for the
purpose of receiving payment of principal of and (subject to paragraph 2 of the Securities)
interest, if any, on such Security and for all other purposes whatsoever, whether or not such
Security is overdue, and none of the Company, any Subsidiary Guarantor, the Trustee, the Paying
Agent, or the Registrar shall be affected by notice to the contrary.




          Any Holder of a beneficial interest in a Global Security shall, by acceptance of such
beneficial interest, agree that transfers of beneficial interest in such Global Security may be
effected only through a book-entry system maintained by (a) the Holder of such Global Security (or
its agent) or (b) any Holder of a beneficial interest in such Global Security, and that ownership
of a beneficial interest in such Global Security shall be required to be reflected in a book entry.




          All Securities issued upon any transfer or exchange pursuant to the terms of this Indenture
shall evidence the same Indebtedness and shall be entitled to the same benefits under this
Indenture as the Securities surrendered upon such transfer or exchange.




          SECTION 2.07. Replacement Securities. If a mutilated Security is surrendered to the
Registrar or if the Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Security
if the requirements of Section 8-405 of the Uniform Commercial Code are met and the Holder
satisfies any other reasonable requirements of the Trustee. If required by the Trustee or the
Company, such Holder shall furnish an indemnity bond sufficient in the judgment of the Company and
the Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar and any
co-registrar from any loss which any of them may suffer if a Security is replaced. The Company and
the Trustee may charge the Holder for their expenses in replacing a Security.




          Every replacement Security is an additional Obligation of the Company. The provisions of this
Section 2.07 are exclusive and shall preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated, lost, destroyed or wrongfully taken
Securities.




          SECTION 2.08. Outstanding Securities. Securities outstanding at any time are all
Securities authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section as not outstanding. Subject to Section 11.06, a
Security does not cease to be outstanding because the Company or an Affiliate of the Company holds
the Security.




 









 









38




          If
a Security is replaced pursuant to Section 2.07, it ceases to be outstanding unless the
Trustee and the Company receive proof satisfactory to them that the replaced Security is held by a
bona fide purchaser.




          If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a
redemption date or maturity date money sufficient to pay all principal and interest payable on that
date with respect to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, then on and after that date such Securities (or portions thereof) cease to be outstanding
and interest on them ceases to accrue.




          SECTION 2.09. Temporary Securities. Until definitive Securities are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary Securities. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate definitive Securities and
deliver them in exchange for temporary Securities upon surrender of such temporary Securities at
the office or agency of the Company, without charge to the Holder.




          SECTION 2.10. Cancellation. The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or payment. The Trustee and
no one else shall cancel and destroy (subject to the record retention requirements of the Exchange
Act) all Securities surrendered for registration of transfer, exchange, payment or cancellation and
deliver a certificate of such destruction to the Company. The Company may not issue new Securities
to replace Securities it has redeemed, paid or delivered to the Trustee for cancellation. The
Trustee shall not authenticate Securities in place of cancelled Securities other than pursuant to
the terms of this Indenture.




          SECTION 2.11. Defaulted Interest. If the Company defaults in a payment of interest
on the Securities, the Company shall pay defaulted interest (plus interest on such defaulted
interest to the extent lawful) in any lawful manner. The Company may pay the defaulted interest to
the persons who are Holders on a subsequent special record date. The Company shall fix or cause to
be fixed any such special record date and payment date to the reasonable satisfaction of the
Trustee and shall promptly mail or cause to be mailed to each Holder a notice that states the
special record date, the payment date and the amount of defaulted interest to be paid.




          SECTION 2.12. CUSIP Numbers and ISINs.  The Company in issuing the Securities may use
“CUSIP” numbers and ISINs (if then generally in use) and, if so, the Trustee shall use “CUSIP”
numbers and ISINs in notices of redemption as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or omission of such
numbers.




 









 









39




          SECTION 2.13. Issuance of Additional Securities. After the Closing Date, the Company
shall be entitled, subject to its compliance, at the time of and after giving effect to such
issuance, with Section 4.03 and Section 4.09, to issue Additional
Securities under this Indenture, which Securities shall have identical terms as the Securities
issued on the Closing Date, other than with respect to the date of issuance and issue price. All
the Securities issued under this Indenture (including any Additional Securities) shall be treated
as a single class for all purposes of this Indenture, including in respect of any amendment,
waiver, other modification or optional redemption by the Company.




          With respect to any Additional Securities, the Company shall set forth in an Officers’
Certificate, a copy of which shall be delivered to the Trustee (along with a copy of the
resolutions of the Board of Directors authorizing the Additional Securities), the following
information:





     (1) the aggregate principal amount of such Additional Securities to be authenticated
and delivered pursuant to this Indenture and the provision of
Section 4.03 that the Company is
relying on to issue such Additional Securities; and




     (2) the issue price, the issue date, the CUSIP number and ISIN of such Additional
Securities; provided, however, that no Additional Securities may be issued
at a price that would cause such Additional Securities to have “original issue discount”
within the meaning of Section 1273 of the Code.



ARTICLE 3




Redemption




          SECTION 3.01. Notices to Trustee. If the Company elects to redeem Securities
pursuant to paragraph 6 of the Securities, it shall notify the Trustee in writing of the redemption
date, the principal amount of Securities to be redeemed and the paragraph of the Securities
pursuant to which the redemption will occur.




          The Company shall give each notice to the Trustee provided for in this Section at least
45 days before the redemption date unless the Trustee consents to a shorter period. Such notice
shall be accompanied by an Officers’ Certificate to the effect that such redemption will comply
with the conditions herein. Any such notice may be cancelled by the Company at any time prior to
notice of such redemption being mailed to any Holder and shall thereby be void and of no effect
unless the Trustee has sent the notice of redemption pursuant to
Section 3.03 below.




          SECTION 3.02. Selection of Securities to Be Redeemed. If fewer than all the
Securities are to be redeemed, the Trustee, subject to the procedures of DTC, shall select the
Securities to be redeemed pro rata or by lot or by a method that complies with applicable legal and
securities exchange requirements, if any, and that the Trustee in its sole discretion shall deem to
be fair and appropriate. The Trustee shall make the



 









 







40



selection from outstanding Securities not previously called for redemption. The Trustee may
select for redemption portions of the principal amount of Securities that have denominations larger
than $1,000. Securities and portions of them the Trustee selects shall be in principal amounts of
$1,000 or a whole multiple of $1,000 in excess thereof. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company promptly of the Securities or portions of Securities to be
redeemed.




          SECTION 3.03. Notice of Redemption. At least 30 days but not more than 60 days
before a date for redemption of Securities, the Company, or the Trustee (at the direction of the
Company), shall mail a notice of redemption by first-class mail to each Holder of Securities to be
redeemed at such Holder’s registered address.




          The notice shall identify the Securities to be redeemed and shall state:





     (1) the redemption date;




     (2) the redemption price;




     (3) the name and address of the Paying Agent;




     (4) that Securities called for redemption must be surrendered to the Paying Agent to
collect the redemption price;




     (5) if fewer than all the outstanding Securities are to be redeemed, the
identification and principal amounts of the particular Securities to be redeemed;




     (6) that, unless the Company defaults in making such redemption payment, interest on
Securities (or portion thereof) called for redemption ceases to accrue on and after the
redemption date; and




     (7) that no representation is made as to the correctness or accuracy of the CUSIP
number or ISIN, if any, listed in such notice or printed on the Securities.



          At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at the Company’s expense. In such event, the Company shall provide the Trustee with the
information required by this Section.




          SECTION 3.04. Effect of Notice of Redemption. Once notice of redemption is mailed to
Holders, Securities called for redemption become due and payable on the redemption date and at the
redemption price stated in the notice. Upon surrender to the Paying Agent, such Securities shall
be paid at the redemption price stated in the notice, plus accrued interest to the redemption date
(subject to the right of Holders of record on the relevant record date to receive interest due on
the related interest payment date if the redemption date is after a regular record date and on or
prior to the interest payment date). Failure to give notice or any defect in the notice to any
Holder shall not affect the validity of the notice to any other Holder.




 









 








41




          SECTION 3.05. Deposit of Redemption Price. Prior to 11:00 a.m., New York City time,
on the redemption date, the Company shall deposit with the Paying Agent (or, if the Company or a
Subsidiary is the Paying Agent, shall segregate and hold in trust) money sufficient to pay the
redemption price of and accrued interest on all Securities or portions thereof to be redeemed on
that date other than Securities or portions of Securities called for redemption which have been
delivered by the Company to the Trustee for cancellation. Interest shall cease to accrue on
Securities or portions thereof called for redemption on and after the date the Company has
deposited with the Paying Agent funds sufficient to pay the principal of, plus accrued and unpaid
interest, on the Securities to be redeemed, unless the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture.




          SECTION 3.06. Securities Redeemed in Part. Upon surrender of a Security that is
redeemed in part, the Company shall execute and the Trustee shall authenticate for the Holder (at
the Company’s expense) a new Security equal in principal amount to the unredeemed portion of the
Security surrendered.




ARTICLE 4




Covenants




          SECTION 4.01. Payment of Securities. The Company shall promptly pay the principal of
and interest on the Securities on the dates and in the manner provided in the Securities and in
this Indenture. Principal and interest shall be considered paid on the date due if on such date
the Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all
principal and interest then due.




          The Company shall pay interest on overdue principal at the rate specified therefor in the
Securities, and it shall pay interest on overdue installments of interest at the same rate to the
extent lawful.




          SECTION 4.02. SEC Reports. Notwithstanding that the Company may not be subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall file with
the SEC and provide the Trustee and Holders and prospective Holders (upon request) within 15 days
after it files them with the SEC, copies of its annual report and the information, documents and
other reports that are specified in Sections 13 and 15(d) of the Exchange Act. In addition, the
Company shall furnish to the Trustee and the Holders, promptly upon their becoming available,
copies of the annual report to shareholders and any other information provided by the Company to
its public shareholders generally. The Company also shall comply with the other provisions of
Section 314(a) of the TIA.




          SECTION 4.03. Limitation on Indebtedness. (a) The Company shall not, and shall not
permit any Restricted Subsidiary to, Incur, directly or indirectly, any Indebtedness;
provided, however, that the Company or any Subsidiary Guarantor may Incur
Indebtedness if on the date of such Incurrence and after giving effect thereto and



 









 









42



the application of the proceeds therefrom the Consolidated Coverage Ratio would be greater
than 2.0:1.0.




          (b) Notwithstanding the foregoing paragraph (a), the Company and its Restricted Subsidiaries
may Incur the following Indebtedness:





	 	(1)	 	(x) U.S. Bank Indebtedness in an aggregate principal amount
not to exceed the greater of (A) $3,000,000,000, less the aggregate amount of
all prepayments of principal applied to permanently reduce any such
Indebtedness in satisfaction of the Company’s obligations under
Section  4.06. and (B) the sum of (i) 60% of the book value of
the inventory of the Company and its Restricted Subsidiaries plus (ii) 80% of
the book value of the accounts receivable of the Company and its Restricted
Subsidiaries (other than any accounts receivable pledged, sold or otherwise
transferred or encumbered by the Company or any Restricted Subsidiary in
connection with a Qualified Receivables Transaction), in each case, as of the
end of the most recent fiscal quarter for which financial statements have been
filed with the SEC and (y) European Bank Indebtedness in an aggregate
principal amount not to exceed €525,000,000; provided,
however, that the amount of Indebtedness that may be Incurred pursuant
to this clause (1) shall be reduced by any amount of Indebtedness Incurred and
then outstanding pursuant to the election provision of clause (10)(A)(ii)
below;
	 
	 	(2)	 	Indebtedness of the Company owed to and held by any
Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owed to and
held by the Company or any Restricted Subsidiary; provided,
however, that any subsequent event that results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of
any such Indebtedness (except to the Company or a Restricted Subsidiary) shall
be deemed, in each case, to constitute the Incurrence of such Indebtedness by
the issuer thereof;
	 
	 	(3)	 	Indebtedness (A) represented by the Securities issued on the
Closing Date (not including any Additional Securities) and the Subsidiary
Guarantees, (B) outstanding on the Closing Date (other than the Indebtedness
described in clauses (1) and (2) above), and (C) consisting of Refinancing
Indebtedness Incurred in respect of any Indebtedness described in this
clause (3) (including Indebtedness that is Refinancing Indebtedness) or the
foregoing paragraph (a);
	 
	 	(4)	 	(A) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted






 












 





43





	 	 	 	Subsidiary was acquired by the Company or a Restricted Subsidiary (other
than Indebtedness Incurred in contemplation of, in connection with, as
consideration in, or to provide all or any portion of the funds or credit
support utilized to consummate, the transaction or series of related
transactions pursuant to which such Restricted Subsidiary became a
Subsidiary of or was otherwise acquired by the Company); provided,
however, that on the date that such Restricted Subsidiary is
acquired by the Company, (i) the Company would have been able to Incur
$1.00 of additional Indebtedness pursuant to the foregoing paragraph (a)
after giving effect to the Incurrence of such Indebtedness pursuant to
this clause (4) or (ii) the Consolidated Coverage Ratio immediately after
giving effect to such Incurrence and acquisition would be greater than
such ratio immediately prior to such transaction and (B) Refinancing
Indebtedness Incurred by a Restricted Subsidiary in respect of
Indebtedness Incurred by such Restricted Subsidiary pursuant to this
clause (4);
	 
	 	(5)	 	Indebtedness (A) in respect of performance bonds, bankers’
acceptances, letters of credit and surety or appeal bonds entered into by the
Company or any Restricted Subsidiary in the ordinary course of business, and
(B) Hedging Obligations entered into in the ordinary course of business to
hedge risks with respect to the Company’s or a Restricted Subsidiary’s
interest rate, currency or raw materials pricing exposure and not entered into
for speculative purposes;
	 
	 	(6)	 	Purchase Money Indebtedness, Capitalized Lease Obligations
and Attributable Debt and Refinancing Indebtedness in respect thereof in an
aggregate principal amount on the date of Incurrence that, when added to all
other Indebtedness Incurred pursuant to this clause (6) and then outstanding,
will not exceed the greater of (A) $600,000,000 and (B) 5.0% of Consolidated
assets of the Company as of the end of the most recent fiscal quarter for
which financial statements have been filed with the SEC;
	 
	 	(7)	 	Indebtedness Incurred by a Receivables Entity in a Qualified
Receivables Transaction;
	 
	 	(8)	 	Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business; provided,
however, that such Indebtedness is extinguished within five Business
Days of a Financial Officer’s becoming aware of its Incurrence;










 



44








	 	(9)	 	any Guarantee (other than the Subsidiary Guarantees) by the
Company or a Restricted Subsidiary of Indebtedness or other obligations of the
Company or any of its Restricted Subsidiaries so long as the Incurrence of
such Indebtedness or other obligations by the Company or such Restricted
Subsidiary is permitted under the terms of this Indenture (other than
Indebtedness Incurred pursuant to clause (4) above);
	 
	 	(10)	 	(A) Indebtedness of Foreign Subsidiaries in an aggregate
principal amount that, when added to all other Indebtedness Incurred pursuant
to this clause (10)(A) and then outstanding, will not exceed (i)
$1,150,000,000 plus (ii) any amount then permitted to be Incurred
pursuant to clause (1) above that the Company instead elects to Incur pursuant
to this clause (10)(A); and






	 	(B)	 	Indebtedness of Foreign Subsidiaries
Incurred in connection with a Qualified Receivables Transaction in an
amount not to exceed €300,000,000 at any one time outstanding;






	 	(11)	 	Indebtedness constituting unsecured Indebtedness or Secured
Indebtedness in an amount not to exceed $1,300,000,000 and Refinancing
Indebtedness in respect thereof; and
	 
	 	(12)	 	Indebtedness of the Company and the Restricted Subsidiaries
in an aggregate principal amount on the date of Incurrence that, when added to
all other Indebtedness Incurred pursuant to this clause (12) and then
outstanding, will not exceed $150,000,000.





          (c) For purposes of determining the outstanding principal amount of any particular
Indebtedness Incurred pursuant to this Section 4.03:





	 	(1)	 	Outstanding Indebtedness Incurred pursuant to any of the
Credit Agreements prior to or on the Closing Date shall be deemed to have been
Incurred pursuant to clause (1) of paragraph (b) above;
	 
	 	(2)	 	Indebtedness permitted by this Section 4.03 need not be
permitted solely by reference to one provision permitting such Indebtedness
but may be permitted in part by one such provision and in part by one or more
other provisions of this covenant permitting such Indebtedness; and
	 
	 	(3)	 	in the event that Indebtedness meets the criteria of more
than one of the types of Indebtedness described in this Section 4.03, the
Company, in its sole discretion, shall classify such Indebtedness (or any
portion thereof) as of the time of Incurrence and will only be required to
include the amount of such Indebtedness in one of










 



45


	 	 	 	such clauses (provided that any Indebtedness originally classified as
Incurred pursuant to Sections 4.03(b)(2) through (b)(12) may later be
reclassified as having been Incurred pursuant to Section 4.03(a) or any
other of Sections 4.03(b)(2) through (b)(12) to the extent that such
reclassified Indebtedness could be Incurred pursuant to Section 4.03(a)
or one of Sections 4.03(b)(2) through (b)(12), as the case may be, if it
were Incurred at the time of such reclassification).





          (d) For purposes of determining compliance with any U.S. dollar or euro denominated
restriction on the Incurrence of Indebtedness where the Indebtedness Incurred is denominated in a
different currency, the amount of such Indebtedness will be the U.S. Dollar Equivalent or Euro
Equivalent, as the case may be, determined on the date of the Incurrence of such Indebtedness;
provided, however, that if any such Indebtedness denominated in a different
currency is subject to a Currency Agreement with respect to U.S. dollars or euros, as the case may
be, covering all principal, premium, if any, and interest payable on such Indebtedness, the amount
of such Indebtedness expressed in U.S. dollars or euros will be as provided in such Currency
Agreement. The principal amount of any Refinancing Indebtedness Incurred in the same currency as
the Indebtedness being Refinanced will be the U.S. Dollar Equivalent or Euro Equivalent, as
appropriate, of the Indebtedness Refinanced determined on the date of the Incurrence of such
Indebtedness, except to the extent that (1) such U.S. Dollar Equivalent or Euro Equivalent was
determined based on a Currency Agreement, in which case the Refinancing Indebtedness will be
determined in accordance with the immediately preceding sentence, and (2) the principal amount of
the Refinancing Indebtedness exceeds the principal amount of the Indebtedness being Refinanced, in
which case the U.S. Dollar Equivalent or Euro Equivalent, as appropriate, of such excess will be
determined on the date such Refinancing Indebtedness is Incurred.




          SECTION 4.04. Limitation on Restricted Payments. (a) The Company shall not, and
shall not permit any Restricted Subsidiary, directly or indirectly, to make any Restricted Payment
if at the time the Company or such Restricted Subsidiary makes any Restricted Payment:





	 	(1)	 	a Default shall have occurred and be continuing (or would
result therefrom);
	 
	 	(2)	 	the Company could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
	 
	 	(3)	 	the aggregate amount of such Restricted Payment and all other
Restricted Payments (the amount so expended, if other than in cash, to be
determined in good faith by a Financial Officer of the Company, whose
determination will be conclusive; provided, however, that with
respect to any noncash Restricted Payment in excess of $25,000,000, the amount
so expended shall be determined in accordance with the provisions of the
definition of










 



46


	 	 	 	Fair Market Value) declared or made subsequent to the Closing Date would
exceed the sum, without duplication, of:






	 	(i)	 	50% of the Consolidated Net Income accrued
during the period (treated as one accounting period) from the
beginning of the fiscal quarter immediately following the fiscal
quarter during which the Closing Date occurs to the end of the most
recent fiscal quarter for which financial statements have been filed
with the SEC prior to the date of such Restricted Payment (or, in
case such Consolidated Net Income will be a deficit, minus 100% of
such deficit);
	 
	 	(ii)	 	100% of the aggregate Net Cash Proceeds
received by the Company from the issuance or sale of its Capital
Stock (other than Disqualified Stock) subsequent to the Closing Date
(other than an issuance or sale to a Subsidiary of the Company and
other than an issuance or sale to an employee stock ownership plan or
to a trust established by the Company or any of its Subsidiaries for
the benefit of their employees) and 100% of any cash capital
contribution received by the Company from its shareholders subsequent
to the Closing Date;
	 
	 	(iii)	 	the amount by which Indebtedness of the
Company or its Restricted Subsidiaries is reduced on the Company’s
Consolidated balance sheet upon the conversion or exchange (other
than by a Subsidiary of the Company) subsequent to the Closing Date
of any Indebtedness of the Company or its Restricted Subsidiaries
issued after the Closing Date which is convertible or exchangeable
for Capital Stock (other than Disqualified Stock) of the Company
(less the amount of any cash or the Fair Market Value of other
property distributed by the Company or any Restricted Subsidiary upon
such conversion or exchange); and
	 
	 	(iv)	 	an amount equal to the sum of (x) the net
reduction in the Investments (other than Permitted Investments) made
by the Company or any Restricted Subsidiary in any Person resulting
from repurchases, repayments or redemptions of such Investments by
such Person, proceeds realized on the sale of such Investment and
proceeds representing the return of capital (excluding dividends and
distributions), in each case realized by the Company or any
Restricted Subsidiary, and (y) to the extent such Person is an
Unrestricted Subsidiary, the portion (proportionate to the Company’s
equity interest in such Subsidiary) of the fair










 



47


	 	 	 	market value of the net assets of such Unrestricted Subsidiary at
the time such Unrestricted Subsidiary is designated a Restricted
Subsidiary; provided, however, that the foregoing
sum shall not exceed, in the case of any such Person or
Unrestricted Subsidiary, the amount of Investments (excluding
Permitted Investments) previously made (and treated as a
Restricted Payment) by the Company or any Restricted Subsidiary in
such Person or Unrestricted Subsidiary.






     (b) The provisions of Section 4.04(a) shall not prohibit:




     (1) any Restricted Payment made out of the Net Cash Proceeds of the substantially
concurrent sale of, or made by exchange for, Capital Stock of the Company (other than
Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary of the
Company or an employee stock ownership plan or to a trust established by the Company or any
of its Subsidiaries for the benefit of their employees to the extent such sale to such an
employee stock ownership plan or trust is financed by loans from or guaranteed by the
Company or any Restricted Subsidiary unless such loans have been repaid with cash on or
prior to the date of determination) or a substantially concurrent cash capital contribution
received by the Company from its shareholders; provided, however, that:




	 	(A)	 	such Restricted Payment shall be excluded in the calculation
of the amount of Restricted Payments, and
	 
	 	(B)	 	the Net Cash Proceeds from such sale applied in the manner
set forth in Section 4.04(b)(1) shall be excluded from the calculation of
amounts under Section 4.04(a)(3)(ii);






     (2) any prepayment, repayment or Purchase for value of Subordinated Obligations of the
Company made by exchange for, or out of the proceeds of the substantially concurrent sale
of, other Subordinated Obligations or Indebtedness Incurred under Section 4.03(a);
provided, however, that such prepayment, repayment or Purchase for value
shall be excluded in the calculation of the amount of Restricted Payments;




     (3) dividends paid within 60 days after the date of declaration thereof if at such
date of declaration such dividends would have complied with this covenant;
provided, however, that such dividends shall be included in the calculation
of the amount of Restricted Payments;




     (4) any Purchase for value of Capital Stock of the Company or any of its Subsidiaries
from employees, former employees, directors or former directors of the Company or any of
its Subsidiaries (or permitted transferees of such employees, former employees, directors
or former directors), pursuant to the terms of agreements (including employment agreements)
or plans (or









 



48



amendments thereto) approved by the Board of Directors under which such individuals
purchase or sell or are granted the option to purchase or sell, shares of such Capital
Stock; provided, however, that the aggregate amount of such Purchases for
value will not exceed $10,000,000 in any calendar year; provided further,
however, that any of the $10,000,000 permitted to be applied for Purchases under
this Section 4.04(b)(4)in a calendar year (and not so applied) may be carried forward for
use in the following two calendar years; provided further, however, that
such Purchases for value shall be excluded in the calculation of the amount of Restricted
Payments;




     (5) so long as no Default has occurred and is continuing, payments of dividends on
Disqualified Stock issued after the Closing Date pursuant to Section 4.03;
provided, however, that such dividends shall be included in the calculation
of the amount of Restricted Payments;




     (6) repurchases of Capital Stock deemed to occur upon exercise of stock options if
such Capital Stock represents a portion of the exercise price of such options;
provided, however, that such Restricted Payments shall be excluded in the
calculation of the amount of Restricted Payments;




     (7) so long as no Default has occurred and is continuing, any prepayment, repayment or
Purchase for value of Subordinated Obligations from Net Available Cash to the extent
permitted under Section 4.06; provided, however, that such prepayment,
repayment or Purchase for value shall be excluded in the calculation of the amount of
Restricted Payments;




     (8) payments to holders of Capital Stock (or to the holders of Indebtedness that is
convertible into or exchangeable for Capital Stock upon such conversion or exchange) in
lieu of the issuance of fractional shares; provided, however, that such
payments shall be excluded in the calculation of the amount of Restricted Payments; or




     (9) any Restricted Payment in an amount which, when taken together with all Restricted
Payments made after the Closing Date pursuant to this Section 4.04(b)(9), does not exceed
$600,000,000; provided, however, that (A) at the time of each such
Restricted Payment, no Default shall have occurred and be continuing (or result therefrom)
and (B) such Restricted Payments shall be excluded in the calculation of the amount of
Restricted Payments.



          SECTION 4.05. Limitation on Restrictions on Distributions from Restricted
Subsidiaries. The Company shall not, and shall not permit any Restricted Subsidiary to, create
or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction
on the ability of any Restricted Subsidiary to:





     (1) pay dividends or make any other distributions on its Capital Stock or pay any
Indebtedness or other obligations owed to the Company;




     (2) make any loans or advances to the Company; or









 



49



     (3) transfer any of its property or assets to the Company, except:




	 	(A)	 	any encumbrance or restriction pursuant to applicable law,
rule, regulation or order or an agreement in effect at or entered into on the
Closing Date;
	 
	 	(B)	 	any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by
such Restricted Subsidiary prior to the date on which such Restricted
Subsidiary was acquired by the Company (other than Indebtedness Incurred as
consideration in, in contemplation of, or to provide all or any portion of the
funds or credit support utilized to consummate the transaction or series of
related transactions pursuant to which such Restricted Subsidiary became a
Restricted Subsidiary or was otherwise acquired by the Company) and
outstanding on such date;
	 
	 	(C)	 	any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an agreement
referred to in Section 4.05(3)(A) or Section 4.05(3)(B) or this Section
4.05(3)(C) or contained in any amendment to an agreement referred to in
Section 4.05(3)(A) or Section 4.05(3)(B) or this Section 4.05(3)(C);
provided, however, that the encumbrances and restrictions
contained in any such Refinancing agreement or amendment are no less favorable
in any material respect to the Holders than the encumbrances and restrictions
contained in such predecessor agreements;
	 
	 	(D)	 	in the case of Section 4.05(3), any encumbrance or
restriction






	 	(i)	 	that restricts in a customary manner the
subletting, assignment or transfer of any property or asset that is
subject to a lease, license or similar contract, or the assignment or
transfer of any such lease, license or other contract; or
	 
	 	(ii)	 	contained in mortgages, pledges and other
security agreements securing Indebtedness of a Restricted Subsidiary
to the extent such encumbrance or restriction restricts the transfer
of the property subject to such security agreements;






	 	(E)	 	with respect to a Restricted Subsidiary, any restriction
imposed pursuant to an agreement entered into for the sale or disposition of
all or substantially all the Capital Stock or assets of such Restricted
Subsidiary pending the closing of such sale or disposition;










 



50








	 	(F)	 	any encumbrance or restriction existing under or by reason of
Indebtedness or other contractual requirements of a Receivables Entity in
connection with a Qualified Receivables Transaction; provided,
however, that such restrictions apply only to such Receivables Entity;
	 
	 	(G)	 	purchase money obligations for property acquired in the
ordinary course of business and Capitalized Lease Obligations that impose
restrictions on the property purchased or leased of the nature described in
Section 4.05(3);
	 
	 	(H)	 	provisions with respect to the disposition or distribution of
assets or property in joint venture agreements, asset sale agreements, stock
sale agreements and other similar agreements;
	 
	 	(I)	 	restrictions on cash or other deposits or net worth imposed
by customers, suppliers or, in the ordinary course of business, other third
parties; and
	 
	 	(J)	 	with respect to any Foreign Subsidiary, any encumbrance or
restriction contained in the terms of any Indebtedness, or any agreement
pursuant to which such Indebtedness was issued, if:






	 	(i)	 	the encumbrance or restriction applies only
in the event of a payment default or a default with respect to a
financial covenant contained in such Indebtedness or agreement, or
	 
	 	(ii)	 	at the time such Indebtedness is Incurred,
such encumbrance or restriction is not expected to materially affect
the Company’s ability to make principal or interest payments on the
Securities, as determined in good faith by a Financial Officer of the
Company, whose determination shall be conclusive.





          SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to, make any
Asset Disposition unless:





     (1) the Company or such Restricted Subsidiary receives consideration (including by way
of relief from, or by any other Person assuming sole responsibility for, any liabilities,
contingent or otherwise) at the time of such Asset Disposition at least equal to the Fair
Market Value of the shares and assets subject to such Asset Disposition;




     (2) at least 75% of the consideration thereof received by the Company or such
Restricted Subsidiary is in the form of cash or Additional Assets; and









 



51



     (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is
applied by the Company (or such Restricted Subsidiary, as the case may be):




	 	(A)	 	first, to the extent the Company elects (or is required by
the terms of any applicable Indebtedness) (i) to prepay, repay, purchase,
repurchase, redeem, retire, defease or otherwise acquire for value Senior
Indebtedness of the Company or a Subsidiary Guarantor or Indebtedness of a
Restricted Subsidiary that is not a Subsidiary Guarantor or (ii) to cause any
loan commitment that is available to be drawn under the applicable credit
facility and to be Incurred under this Indenture and that when drawn would
constitute Secured Indebtedness, to be permanently reduced by the amount of
Net Available Cash, in each case, other than Indebtedness owed to the Company
or an Affiliate of the Company and other than obligations in respect of
Disqualified Stock, within 365 days after the later of the date of such Asset
Disposition or the receipt of such Net Available Cash;
	 
	 	(B)	 	second, to acquire Additional Assets (or otherwise to make
capital expenditures), in each case within 365 days after the later of the
date of such Asset Disposition or the receipt of such Net Available Cash;
	 
	 	(C)	 	third, to the extent of the balance of such Net Available
Cash after application in accordance with Section 4.06(a)(3)(A) and Section
4.06(a)(3)(B), to make an Offer (as defined in Section 4.06(c)) to purchase
Securities pursuant to and subject to the conditions set forth in Section
4.06(c); provided, however, that if the Company elects (or is
required by the terms of any other Senior Indebtedness), such Offer may be
made ratably to purchase the Securities and any Senior Indebtedness of the
Company; and
	 
	 	(D)	 	fourth, to the extent of the balance of such Net Available
Cash after application in accordance with Sections 4.06(a)(3)(A),
4.06(a)(3)(B) and 4.06(a)(3)(C), for any general corporate purpose permitted
by the terms of this Indenture;






provided, however, that in connection with any prepayment,
repayment, purchase, repurchase, redemption, retirement, defeasance or other
acquisition for value of Indebtedness pursuant to Section 4.06(a)(3)(A) or Section
4.06(a)(3)(C), the Company or such Restricted Subsidiary shall retire such
Indebtedness and shall cause the related loan commitment (if any) to be
permanently reduced in an amount equal to the principal amount so prepaid, repaid,
purchased, repurchased, redeemed, retired, defeased or otherwise acquired for
value.









 



52



Notwithstanding the foregoing provisions of this Section 4.06(a)(3), the Company
and its Restricted Subsidiaries shall not be required to apply any Net Available
Cash in accordance with this Section 4.06 except to the extent that the aggregate
Net Available Cash from all Asset Dispositions that is not applied in accordance
with this Section 4.06 exceeds $25,000,000. Pending application of Net Available
Cash pursuant to this Section 4.06, such Net Available Cash may be used or
invested in any manner that is not prohibited by this Indenture.



          (b) For the purposes of this covenant, the following are deemed to be cash:





     (1) the assumption of Indebtedness or other obligations of the Company (other than
obligations in respect of Disqualified Stock of the Company) or any Restricted Subsidiary
(other than obligations in respect of Disqualified Stock and Preferred Stock of a
Restricted Subsidiary that is a Subsidiary Guarantor) and the release of the Company or
such Restricted Subsidiary from all liability on such Indebtedness or obligations in
connection with such Asset Disposition;




     (2) any Designated Noncash Consideration having an aggregate Fair Market Value that,
when taken together with all other Designated Noncash Consideration received pursuant to
this clause and then outstanding, does not exceed at the time of the receipt of such
Designated Noncash Consideration (with the Fair Market Value of each item of Designated
Noncash Consideration being measured at the time received and without giving effect to
subsequent changes in value) the greater of (1) $200,000,000 and (2) 1.5% of the total
Consolidated assets of the Company as shown on the most recent balance sheet of the Company
filed with the SEC;




     (3) securities, notes or similar obligations received by the Company or any Restricted
Subsidiary from the transferee that are promptly converted by the Company or such
Restricted Subsidiary into cash; and




     (4) Temporary Cash Investments.



          (c) In the event of an Asset Disposition that requires the purchase of Securities pursuant to
Section 4.06(a)(3)(C), the Company shall be required (i) to purchase Securities tendered pursuant
to an offer by the Company for the Securities (the “Offer”) at a purchase price of 100% of their
principal amount plus accrued and unpaid interest to the date of purchase (subject to the right of
Holders of record on the relevant date to receive interest due on the relevant interest payment
date) in accordance with the procedures (including prorating in the event of oversubscription), set
forth in Section 4.06(d) and (ii) to purchase other Senior Indebtedness of the Company on the terms
and to the extent contemplated thereby; provided that in no event shall the Company offer
to purchase such Senior Indebtedness of the Company at a purchase price in excess of 100% of its
principal amount (without premium) or, unless otherwise provided for in such










 



53

Senior Indebtedness, the accreted amount, if issued with original issue discount, plus accrued
and unpaid interest thereon. If the aggregate purchase price of Securities (and Senior
Indebtedness) tendered pursuant to the Offer is less than the Net Available Cash allotted to the
purchase of the Securities (and other Senior Indebtedness), the Company shall apply the remaining
Net Available Cash in accordance with Section 4.06(a)(3)(D). The Company shall not be required to
make an Offer for Securities (and Senior Indebtedness) pursuant to this covenant if the Net
Available Cash available therefor (after application of the proceeds as provided in Section
4.06(a)(3)(A) and Section 4.06(a)(3)(B)) is less than $25,000,000 for any particular Asset
Disposition (which lesser amount will be carried forward for purposes of determining whether an
Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).




          (d) (1) If the aggregate purchase price of Securities (and other Senior Indebtedness)
tendered pursuant to the Offer exceeds the Net Available Cash allotted to their purchase, the
Company shall select the Securities (and other Senior Indebtedness) to be purchased on a pro rata
basis (with such adjustments as may be deemed appropriate by the Company so that only Securities
and other Senior Indebtedness in denominations of $1,000, or integral multiples thereof, shall be
purchased).





     (2) Promptly, and in any event within 10 days after the Company becomes obligated to
make an Offer, the Company shall deliver to the Trustee and send, by first-class mail to
each Holder, a written notice stating that the Holder may elect to have his Securities
purchased by the Company either in whole or in part (subject to prorating as described in
Section 4.06(d)(1) in the event the Offer is oversubscribed) in integral multiples of
$1,000 of principal amount at the applicable purchase price. The notice shall specify a
purchase date not less than 30 days nor more than 60 days after the date of such notice
(the “Purchase Date”).




     (3) Not later than the date upon which written notice of an Offer is delivered to the
Trustee as provided below, the Company shall deliver to the Trustee an Officers’
Certificate as to (A) the amount of the Offer (the “Offer Amount”), including information
as to any other Senior Indebtedness included in the Offer for repurchase, (B) the
allocation of the Net Available Cash from the Asset Dispositions pursuant to which such
Offer is being made and (C) the compliance of such allocation with the provisions of
Section 4.06(a) and (c). By 11:00 a.m. New York City time on the Purchase Date, the
Company shall irrevocably deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash
Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if
funds are immediately available by open of business, an amount equal to the Offer Amount to
be held for payment in accordance with the provisions of this Section. If the Offer
includes other Senior Indebtedness, the deposit described in the preceding sentence may be
made with any other paying agent pursuant to arrangements satisfactory to the Trustee.
Upon the expiration of the period for which the Offer remains open (the “Offer Period”),
the Company shall deliver to the Trustee for cancellation the Securities or portions
thereof which have been properly tendered to and are to be accepted by the Company.




 











 





 54





The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the
delivery of payment) to each tendering Holder in the amount of the purchase price. In the
event that the aggregate purchase price of the Securities delivered by the Company to the
Trustee is less than the Offer Amount applicable to the Securities, the Trustee shall
deliver the excess to the Company immediately after the expiration of the Offer Period for
application in accordance with this Section 4.06.




     (4) Holders electing to have a Security purchased shall be required to surrender the
Security, with an appropriate form duly completed, to the Company at the address specified
in the notice at least three Business Days prior to the Purchase Date. A Holder shall be
entitled to withdraw its election if the Trustee or the Company receives not later than one
Business Day prior to the Purchase Date, a telex, facsimile transmission or letter setting
forth the name of such Holder, the principal amount of the Security which was delivered for
purchase by such Holder and a statement that such Holder is withdrawing its election to
have such Security purchased. Holders whose Securities are purchased only in part shall be
issued new Securities equal in principal amount to the unpurchased portion of the
Securities surrendered.




     (5) At the time the Company delivers Securities to the Trustee which are to be
accepted for purchase, the Company shall also deliver an Officers’ Certificate stating that
such Securities are to be accepted by the Company pursuant to and in accordance with the
terms of this Section. A Security shall be deemed to have been accepted for purchase at
the time the Trustee, directly or through an agent, mails or delivers payment therefor to
the surrendering Holder.



          (e) The Company shall comply, to the extent applicable, with the requirements of Section 14(e)
of the Exchange Act and any other securities laws or regulations in connection with the repurchase
of Securities pursuant to this Section 4.06. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this Section 4.06, the Company shall comply with
the applicable securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.06 by virtue thereof.




          SECTION 4.07. Limitation on Transactions with Affiliates. (a) The Company shall not,
and shall not permit any Restricted Subsidiary to, directly or indirectly, enter into or conduct
any transaction or series of related transactions (including the purchase, sale, lease or exchange
of any property or the rendering of any service) with any Affiliate of the Company (an “Affiliate
Transaction”) unless such transaction is on terms:





     (1) that are no less favorable to the Company or such Restricted Subsidiary, as the
case may be, than those that could be obtained at the time of such transaction in
arm’s-length dealings with a Person who is not such an Affiliate,



 









 





 55





     (2) that, in the event such Affiliate Transaction involves an aggregate amount in
excess of $25,000,000,




	 	(A)	 	are set forth in writing, and
	 
	 	(B)	 	have been approved by a majority of the members of the Board
of Directors having no personal stake in such Affiliate Transaction and,






     (3) that, in the event such Affiliate Transaction involves an amount in excess of
$75,000,000, have been determined by a nationally recognized appraisal, accounting or
investment banking firm to be fair, from a financial standpoint, to the Company and its
Restricted Subsidiaries.




     (b) The provisions of Section 4.07(a)will not prohibit:




     (1) any Restricted Payment permitted to be paid pursuant to Section 4.04,




     (2) any issuance of securities, or other payments, awards or grants in cash,
securities or otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans approved by the Board of Directors,




     (3) the grant of stock options or similar rights to employees and directors of the
Company pursuant to plans approved by the Board of Directors,




     (4) loans or advances to employees in the ordinary course of business of the Company,




     (5) the payment of reasonable fees and compensation to, or the provision of employee
benefit arrangements and indemnity for the benefit of, directors, officers and employees of
the Company and its Restricted Subsidiaries in the ordinary course of business,




     (6) any transaction between or among any of the Company, any Restricted Subsidiary or
any joint venture or similar entity which would constitute an Affiliate Transaction solely
because the Company or a Restricted Subsidiary owns an equity interest in or otherwise
controls such Restricted Subsidiary, joint venture or similar entity,




     (7) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the
Company,




     (8) any agreement as in effect on the Closing Date and described in the Prospectus or
in the Company’s SEC filings as filed on or prior to the Closing Date, or any renewals,
extensions or amendments of any such agreement (so long as such renewals, extensions or
amendments are not less favorable in any material



 









 





 56





respect to the Company or its Restricted Subsidiaries) and the transactions evidenced
thereby,




     (9) transactions with customers, clients, suppliers or purchasers or sellers of goods
or services in each case in the ordinary course of business and otherwise in compliance
with the terms of this Indenture which are fair to the Company or its Restricted
Subsidiaries, in the reasonable determination of the Board of Directors or the senior
management thereof, or are on terms at least as favorable as could reasonably have been
obtained at such time from an unaffiliated party, or




     (10) any transaction effected as part of a Qualified Receivables Transaction.



          SECTION 4.08. Change of Control. (a) Upon the occurrence of a Change of Control,
each Holder shall have the right to require the Company to purchase all or any part of such
Holder’s Securities at a purchase price in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest payment date), in
accordance with Section 4.08(b).




          (b) Within 30 days following any Change of Control, the Company shall mail a notice to each
Holder with a copy to the Trustee (the “Change of Control Offer”), stating:





     (1) that a Change of Control has occurred and that such Holder has the right to
require the Company to purchase all or a portion of such Holder’s Securities at a purchase
price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid
interest to the date of purchase (subject to the right of Holders of record on the relevant
record date to receive interest on the relevant interest payment date);




     (2) the circumstances and relevant facts and financial information regarding such
Change of Control;




     (3) the purchase date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed); and




     (4) the instructions determined by the Company, consistent with this Section 4.08,
that a Holder must follow in order to have its Securities purchased.



          (c) The Company shall not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Section 4.08 applicable to a Change
of Control Offer made by the Company and purchases all Securities validly tendered and not
withdrawn under such Change of Control Offer. In addition, the Company shall not be required to
make a Change of Control Offer upon a Change of Control if the Securities have been called for
redemption




 









 









 57



to the extent that the Company mails a valid notice of redemption to Holders prior to the
Change of Control, and thereafter redeems all Securities called for redemption in accordance with
the terms set forth in such redemption notice.




          (d) The Company shall comply, to the extent applicable, with the requirements of Section 14(e)
of the Exchange Act and any other securities laws or regulations in connection with the purchase of
Securities pursuant to this Section 4.08. To the extent that the provisions of any securities laws
or regulations conflict with provisions of this Section 4.08, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have breached its obligations
under this Section 4.08 by virtue thereof.




          (e) On the purchase date, all Securities purchased by the Company under this Section 4.08
shall be delivered by the Company to the Trustee for cancellation, and the Company shall pay the
purchase price plus accrued and unpaid interest, if any, to the Holders entitled thereto.




          SECTION 4.09. Limitation on Liens.  The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, Incur or permit to exist any Lien (the “Initial
Lien”) of any nature whatsoever on any of its property or assets (including Capital Stock of a
Restricted Subsidiary), whether owned at the Closing Date or thereafter acquired securing any
Indebtedness, other than Permitted Liens, without effectively providing that the Securities shall
be secured equally and ratably with (or prior to) the obligations so secured for so long as such
obligations are so secured.




          Any Lien created for the benefit of the Holders pursuant to the preceding sentence shall
provide by its terms that such Lien shall be automatically and unconditionally released and
discharged upon the release and discharge of the Initial Lien.




          SECTION 4.10. Limitation on Sale/Leaseback Transactions. The Company shall not, and
shall not permit any Restricted Subsidiary to, enter into any Sale/Leaseback Transaction with
respect to any property unless:





	 	(1)	 	(A) the Company or such Restricted Subsidiary would be
entitled to:






	 	(i)	 	Incur Indebtedness with
respect to such Sale/Leaseback Transaction pursuant to
Section 4.03; and
	 
	 	(ii)	 	create a Lien on such
property securing such Indebtedness without equally and
ratably securing the Securities pursuant to Section 4.09;






	 	(B)	 	the gross proceeds payable to the Company
or such Restricted Subsidiary in connection with such




 









 











 58





	 	 	 	Sale/Leaseback Transaction are at least equal to the Fair Market
Value of such property; and






	 	(C)	 	the transfer of such property is permitted
by, and, if applicable, the Company applies the proceeds of such
transaction in compliance with, Section 4.06; or






	 	(2)	 	the Sale/Leaseback Transaction is with respect to all or a
portion of the Company’s properties in Akron, Summit County, Ohio.





          SECTION 4.11. Future Subsidiary Guarantors. The Company shall cause each Restricted
Subsidiary that Guarantees any Indebtedness of the Company or of any Subsidiary Guarantor to become
a Subsidiary Guarantor, and if applicable, execute and deliver to the Trustee a supplemental
indenture in the form set forth in Exhibit 2 hereto pursuant to which such Subsidiary shall
Guarantee payment of the Securities. Each Subsidiary Guarantee shall be limited to an amount not
to exceed the maximum amount that can be Guaranteed by that Subsidiary Guarantor, without rendering
the Subsidiary Guarantee, as it relates to such Subsidiary Guarantor voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.




          SECTION 4.12. Suspension of Certain Covenants. (a) Following the first day (the
“Suspension Date”) that:





	 	(1)	 	the Securities have an Investment Grade Rating from both of
the Rating Agencies, and
	 
	 	(2)	 	no Default has occurred and is continuing hereunder with
respect to the Securities,




the Company and its Restricted Subsidiaries will not be subject to Sections 4.03, 4.04, 4.05, 4.06,
4.07, 4.11 and Section 5.01(a)(3)(collectively, the “Suspended Covenants”). In addition, the
Company may elect to suspend the Subsidiary Guarantees.




     (b) In the event that the Company and its Restricted Subsidiaries are not subject to the
Suspended Covenants for any period of time as a result of the foregoing and on any subsequent date
(the “Reversion Date”) one or both of the Rating Agencies withdraws its Investment Grade Rating or
downgrades the rating assigned to such Securities below an Investment Grade Rating, then the
Company and its Restricted Subsidiaries shall thereafter again be subject to the Suspended
Covenants with respect to future events and the Subsidiary Guarantees shall be reinstated. The
period of time between the Suspension Date and the Reversion Date is referred to herein as the
“Suspension Period.”



     (c) Notwithstanding that the Suspended Covenants may be reinstated, no default shall be deemed
to have occurred as a result of a failure to comply with the Suspended Covenants during the
Suspension Period. During any Suspension Period, the Company shall not designate any Subsidiary to
be an Unrestricted Subsidiary unless the



 









 





 59



Company would have been permitted to designate such Subsidiary to be an Unrestricted
Subsidiary if a Suspension Period had not been in effect for any period.




          (d) On the Reversion Date, all Indebtedness Incurred during the Suspension Period shall be
classified to have been Incurred pursuant to Section 4.03(to the extent such Indebtedness would be
permitted to be Incurred thereunder as of the Reversion Date and after giving effect to
Indebtedness Incurred prior to the Suspension Period and outstanding on the Reversion Date). To
the extent such Indebtedness would not be so permitted to be Incurred pursuant to Section 4.03(a)or
Section 4.03(b), such Indebtedness shall be deemed to have been outstanding on the Closing Date, so
that it is classified as permitted under Section 4.03(b)(3)(B). Calculations made after the
Reversion Date of the amount available to be made as Restricted Payments under Section 4.04 shall
be made as though Section 4.04 had been in effect since the Closing Date and throughout the
Suspension Period. Accordingly, Restricted Payments made during the Suspension Period shall reduce
the amount available to be made as Restricted Payments under Section 4.04(a)and the items specified
in Section 4.04(a)(3)shall increase the amount available to be made under Section 4.04(a). For
purposes of determining compliance with Section 4.06(a) and Section 4.06(b), the Net Available Cash
from all Asset Dispositions not applied in accordance with Section 4.06 shall be deemed to be reset
to zero after the Reversion Date.




          (e) In addition, without causing a Default or Event of Default, the Company and the Restricted
Subsidiaries may honor any contractual commitments to take actions after a Reversion Date as long
as such contractual commitments were entered into during a Suspension Period and not in
anticipation of such Securities’ no longer having an Investment Grade Rating from both of the
Rating Agencies.




          SECTION 4.13. Compliance Certificate. The Company shall deliver to the Trustee within
120 days after the end of each fiscal year of the Company a certificate signed by a Financial
Officer complying with TIA § 314(a)(4) stating (i) that a review of the activities of the Company
and the Subsidiaries during the preceding fiscal year has been made with a view to determining
whether the Company and the Subsidiary Guarantors have fulfilled their obligations under this
Indenture and (ii) that, to the knowledge of such Financial Officer, no Default or Event of Default
occurred during such period (or, if a Default or Event of Default hereunder shall have occurred,
describing all such Defaults or Events of Default hereunder of which such Financial Officer may
have knowledge and what action the Company has taken, is taking and/or proposes to take with
respect thereto).




          SECTION 4.14. Further Instruments and Acts. Upon request of the Trustee, the Company
will execute and deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this Indenture.





 












 





 60




ARTICLE 5




Successor Company




          SECTION 5.01. When Company May Merge or Transfer Assets.  (a) The Company shall not,
directly or indirectly, consolidate with or merge with or into, or convey, transfer or lease all or
substantially all its assets, in one or a series of related transactions, to, any Person, unless:





     (1) the resulting, surviving or transferee Person (the “Successor Company”) shall be a
corporation organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and the Successor Company (if not the Company)
shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee,
in form satisfactory to the Trustee, all the obligations of the Company under the
Securities and this Indenture;




     (2) immediately after giving effect to such transaction (and treating any Indebtedness
which becomes an obligation of the Successor Company or any Restricted Subsidiary as a
result of such transaction as having been Incurred by the Successor Company or such
Restricted Subsidiary at the time of such transaction), no Default shall have occurred and
be continuing;




     (3) immediately after giving effect to such transaction, (A) the Successor Company
would be able to Incur an additional $1.00 of Indebtedness under Section 4.03(a) or (B) the
Consolidated Coverage Ratio for the Successor Company would be greater than such ratio for
the Company and its Restricted Subsidiaries immediately prior to such transaction; and




     (4) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture.



          (b) The Successor Company shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture, and the predecessor Company, other than in
the case of a lease, shall be released from the obligation to pay the principal of and interest on
the Securities.




          (c) The Company shall not permit any Subsidiary Guarantor to, directly or indirectly,
consolidate with or merge with or into, or convey, transfer or lease all or substantially all of
its assets, in one or a series of related transactions, to any Person unless:





     (1) except in the case of a Subsidiary Guarantor (i) that has been disposed of in its
entirety to another Person (other than to the Company or an Affiliate of the Company),
whether through a merger, consolidation or sale of Capital Stock or assets or (ii) that, as
a result of the disposition of all or a portion









 



61



of its Capital Stock, ceases to be a Subsidiary, the resulting, surviving or
transferee Person (the “Successor Guarantor”) shall be a corporation organized and existing
under the laws of the United States of America, any State thereof or the District of
Columbia, and such Person (if not such Subsidiary Guarantor) shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee;




     (2) immediately after giving effect to such transaction (and treating any Indebtedness
which becomes an obligation of the Successor Guarantor or any Restricted Subsidiary as a
result of such transaction as having been Incurred by the Successor Guarantor or such
Restricted Subsidiary at the time of such transaction), no Default shall have occurred and
be continuing; and




     (3) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture.




     (d) Notwithstanding the foregoing:




     (1) any Restricted Subsidiary may Consolidate with, merge into or transfer all or part
of its properties and assets to the Company or any Subsidiary Guarantor and




     (2) the Company may merge with an Affiliate incorporated solely for the purpose of
reincorporating the Company in another jurisdiction within the United States of America,
any State thereof or the District of Columbia to realize tax or other benefits.



ARTICLE 6




Defaults and Remedies




          SECTION 6.01. Events of Default. An “Event of Default” occurs if:





     (1) the Company defaults in any payment of interest on any Security when the same
becomes due and payable, and such default continues for 30 days;




     (2) the Company defaults in the payment of principal of any Security when the same
becomes due and payable at its Stated Maturity, upon optional redemption or required
repurchase, upon declaration of acceleration or otherwise;




     (3) the Company or any Subsidiary Guarantor fails to comply with its obligations under
Section 5.01;




     (4) the Company or any Restricted Subsidiary fails to comply with Section 4.03, 4.04,
4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11 or 4.12(in each case,









 



62



other than a failure to purchase Securities) and such failure continues for 30 days
after the notice from the Trustee or the Holders specified below;




     (5) the Company or any Restricted Subsidiary fails to comply with its agreements with
respect to such Securities contained in this Indenture (other than those referred to in
clauses (1), (2), (3) or (4) above) and such failure continues for 60 days after the notice
from the Trustee or the Holders specified below;




     (6) the Company or any Restricted Subsidiary fails to pay any Indebtedness (other than
Indebtedness owing to the Company or a Restricted Subsidiary) within any applicable grace
period after final maturity or the acceleration of any such Indebtedness by the holders
thereof because of a default if the total amount of such Indebtedness unpaid or accelerated
exceeds $100,000,000 or its foreign currency equivalent;




     (7) the Company or any Significant Subsidiary pursuant to or within the meaning of any
Bankruptcy Law:




     (A) commences a voluntary case;




     (B) consents to the entry of an order for relief against it in an involuntary
case;




     (C) consents to the appointment of a Custodian of it or for any substantial
part of its property; or




     (D) makes a general assignment for the benefit of its creditors;




     or takes any comparable action under any foreign laws relating to insolvency;




     (8) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:




     (A) is for relief against the Company or any Significant Subsidiary in an
involuntary case;




     (B) appoints a Custodian of the Company or any Significant Subsidiary or for
any substantial part of its property; or




     (C) orders the winding up or liquidation of the Company or any Significant
Subsidiary;




or any similar relief is granted under any foreign laws and the order or decree
remains unstayed and in effect for 60 days;




     (9) any final and nonappealable judgment or decree (not covered by insurance) for the
payment of money in excess of $100,000,000 or its foreign currency equivalent (treating any
deductibles, self-insurance or retention as not so









 



63



covered) is rendered against the Company or a Significant Subsidiary and such final
judgment or decree remains outstanding and is not satisfied, discharged or waived within a
period of 60 days following such judgment; or




     (10) any Subsidiary Guarantee ceases to be in full force and effect in all material
respects (except as contemplated by the terms thereof) or any Subsidiary Guarantor denies
or disaffirms such Subsidiary Guarantor’s obligations under this Indenture or any
Subsidiary Guarantee and such Default continues for 10 days after receipt of the notice
specified below.


The foregoing shall constitute Events of Default whatever the reason for any such Event of Default
and whether such Event of Default is voluntary or involuntary or is effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body.




          Notwithstanding the foregoing, a default under Section 6.01(4), 6.01(5), 6.01(6), 6.01(9)or
6.01(10) (only with respect to any Subsidiary Guarantor that is not a Significant Subsidiary) shall
not constitute an Event of Default until the Trustee notifies the Company or the Holders of at
least 25% in principal amount of the outstanding Securities notify the Company and the Trustee of
the default and the Company or the Subsidiary Guarantor, as applicable, does not cure such default
within any applicable time specified in Section 6.01(4), 6.01(5), 6.01(6), 6.01(9) or 6.01(10)
hereof after receipt of such notice.




          The term “Bankruptcy Law” means Title 11, United States Code, or any similar Federal or state
law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee,
liquidator, custodian or similar official under any Bankruptcy Law.




          The Company shall deliver to the Trustee, within 30 days after the occurrence thereof, written
notice of any Event of Default under Section 6.01(6) or 6.01(10) and any event which with the
giving of notice or the lapse of time would become an Event of Default under Section 6.01(4),
6.01(5) or 6.01(9), its status and what action the Company is taking or proposes to take with
respect thereto.




          SECTION 6.02. Acceleration. If an Event of Default (other than an Event of Default
specified in Section 6.01(7) or 6.01(8)) occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the outstanding Securities by notice to the Company may declare
the principal of and accrued but unpaid interest on all the Securities to be due and payable. Upon
such a declaration, such principal and interest will be due and payable immediately. If an Event
of Default specified in Section 6.01(7) or 6.01(8) with respect to the Company occurs, the
principal of and interest on all the Securities shall become immediately due and payable without
any declaration or other act on the part of the Trustee or any Holders. The Holders of a majority
in principal amount of the Securities by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of principal or









 



64


interest that has become due solely because of acceleration. No such rescission shall affect
any subsequent Default or impair any right consequent thereto.




          SECTION 6.03. Other Remedies. If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal of or interest on the
Securities or to enforce the performance of any provision of the Securities or this Indenture.




          The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive
of any other remedy. All available remedies are cumulative.




          SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in principal amount
of the Securities by notice to the Trustee may waive an existing Default and its consequences
except (a) a Default in the payment of the principal of or interest on a Security (b) a Default
arising from the failure to redeem or purchase any Security when required pursuant to this
Indenture or (c) a Default in respect of a provision that under Section 9.02 cannot be amended
without the consent of each Holder affected. When a Default is waived, it is deemed cured, but no
such waiver shall extend to any subsequent or other Default or impair any consequent right.




          SECTION 6.05. Control by Majority. The Holders of a majority in principal amount of
the Securities may direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to the rights of any
other Holder that would involve the Trustee in personal liability; provided,
however, that the Trustee may take any other action deemed proper by the Trustee that is
not inconsistent with such direction. Subject to Section 7.01, if an Event of Default has occurred
and is continuing, the Trustee shall be under no obligation to exercise any of the rights or powers
under this Indenture at the request or direction of any of the Holders, unless such Holders have
offered to the Trustee reasonable indemnity against any loss, liability or expense which might be
incurred by it in compliance with such request or direction.




          SECTION 6.06. Limitation on Suits. Except to enforce the right to receive payment of
principal, premium (if any) or interest when due, no Holder may pursue any remedy with respect to
this Indenture or the Securities unless:





     (1) the Holder gives to the Trustee written notice stating that an Event of Default is
continuing;




     (2) the Holders of at least 25% in principal amount of the outstanding Securities make
a written request to the Trustee to pursue the remedy;









 



65



     (3) such Holder or Holders offer to the Trustee reasonable indemnity against any loss,
liability or expense;




     (4) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and




     (5) the Holders of a majority in principal amount of the Securities do not give the
Trustee a direction inconsistent with the request during such 60-day period.



          A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder.




          SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Holder to receive payment of principal of and
interest on the Securities held by such Holder, on or after the respective due dates expressed in
the Securities, or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such Holder.




          SECTION 6.08. Collection Suit by Trustee. If an Event of Default specified in
Section 6.01(1) or 6.01(2) occurs and is continuing, the Trustee may recover judgment in its own
name and as trustee of an express trust against the Company for the whole amount then due and owing
(together with interest on any unpaid interest to the extent lawful) and the amounts provided for
in Section 7.07.




          SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file such proofs of
claim and other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee and the Holders allowed in any judicial proceedings relative to the Company, its
creditors or its property and, unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and
any other amounts due the Trustee under Section 7.07.




          SECTION 6.10. Priorities. If the Trustee collects any money or property pursuant to
this Article 6, it shall pay out the money or property in the following order:





     FIRST: to the Trustee for amounts due under Section 7.07;




     SECOND: to Holders for amounts due and unpaid on the Securities for principal and
interest, ratably, without preference or priority of any kind, according to the amounts due
and payable on the Securities for principal and interest, respectively; and









 



66


          THIRD: to the Company.




          The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section. At least 15 days before such record date, the Company shall mail to each Holder and the
Trustee a notice that states the record date, the payment date and amount to be paid.




          SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party litigant in the suit
of an undertaking to pay the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.07 or a suit by Holders of more than 10% in principal amount of the Securities.




          SECTION 6.12. Waiver of Stay or Extension Laws. The Company (to the extent it may
lawfully do so) shall not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and shall not hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as though no such law
had been enacted.




ARTICLE 7




Trustee




          SECTION 7.01. Duties of Trustee. (a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent Person would exercise or use under
the circumstances in the conduct of such Person’s own affairs.





     (b) Except during the continuance of an Event of Default:




     (1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and




     (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall









 




67



examine the certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.



          (c) The Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act or its own wilful misconduct, except that:





     (1) this paragraph does not limit the effect of paragraph (b) of this Section;




     (2) the Trustee shall not be liable for any error of judgment made in good faith by a
Trust Officer unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and




     (3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05.



          (d) Every provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section.




          (e) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company.




          (f) Money held in trust by the Trustee need not be segregated from other funds except to the
extent required by law.




          (g) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur financial liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.




          (h) Every provision of this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the provisions of this Section and to
the provisions of the TIA.




          SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on any document believed
by it to be genuine and to have been signed or presented by the proper person. The Trustee need
not investigate any fact or matter stated in the document.




          (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on the Officers’ Certificate or Opinion of Counsel.




          (c) The Trustee may act through agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.











 



68




          (d) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it believes to be authorized or within its rights or powers; provided,
however, that the Trustee’s conduct does not constitute wilful misconduct or negligence.




          (e) The Trustee may consult with counsel, and the advice or opinion of counsel with respect
to legal matters relating to this Indenture and the Securities, including any Opinion of Counsel,
shall be full and complete authorization and protection from liability in respect to any action
taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel, including any Opinion of Counsel.




          (f) The Trustee shall not be required to give any bond or surety in respect of the
performance of its powers and duties hereunder




          (g) The Trustee shall not be bound to ascertain or inquire as to the performance or
observance of any covenants, conditions, or agreements on the part of the Company, except as
otherwise set forth herein, but the Trustee may require of the Company full information and advice
as to the performance of the covenants, conditions and agreements contained herein.




          (h) The permissive rights of the Trustee to do things enumerated in this Indenture shall not
be construed as a duty and, with respect to such permissive rights, the Trustee shall not be
answerable for other than its negligence or willful misconduct;




          (i) Except for a default under Sections 6.01(1)or (2) hereof, the Trustee shall not be deemed
to have notice or be charged with knowledge of any Default or Event of Default unless a Trust
Officer shall have received from the Company or the Holders of not less than 25% in aggregate
principal amount of the Securities then outstanding written notice thereof at its address set forth
in Section 11.02 hereof, and such notice references the Securities and this Indenture. In the
absence of any such notice, the Trustee may conclusively assume that no Default or Event of Default
exists.




          SECTION 7.03. Individual Rights of Trustee. The Trustee in its individual or any
other capacity may become the owner or pledgee of Securities and may otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not Trustee. Any Paying
Agent, Registrar, co-registrar or co-paying agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.




          SECTION 7.04. Trustee’s Disclaimer. The Trustee shall not be responsible for and
makes no representation as to the validity or adequacy of this Indenture or the Securities, it
shall not be accountable for the Company’s use of the proceeds from the Securities, and it shall
not be responsible for any statement of the Company in this Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the Trustee’s
certificate of authentication.




          SECTION 7.05. Notice of Defaults. If a Default occurs and is continuing and is
actually known to a Trust Officer, the Trustee shall mail to each Holder notice of









 



69


the Default within the earlier of 90 days after it occurs or 30 days after it is actually
known to a Trust Officer or written notice of it is received by the Trustee. Except in the case of
a Default in the payment of principal of, premium (if any) or interest on any Security (including
payments pursuant to the redemption provisions of such Security), the Trustee may withhold notice
if and so long as a committee of its Trust Officers in good faith determines that withholding
notice is in the interests of the Holders.




          SECTION 7.06. Reports by Trustee to Holders. At the expense of the Company, as
promptly as practicable after each January 1 beginning with January 1, 2010, and in any event prior
to March 1 in each such year, the Trustee shall mail to each Holder a brief report dated as of such
January 1 that complies with TIA § 313(a). The Trustee also shall comply with TIA § 313(b).




          A copy of each report at the time of its mailing to Holders shall be filed with the SEC and
each stock exchange (if any) on which the Securities are listed. The Company agrees to notify
promptly the Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.




          SECTION 7.07. Compensation and Indemnity. The Company shall pay to the Trustee from
time to time reasonable compensation for its services as shall be agreed to in writing from time to
time by the Company and the Trustee. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the Trustee’s agents, counsel,
accountants and experts. The Company shall indemnify the Trustee, its agents, representatives,
officers, directors, employees and attorneys against any and all loss, liability or expense
(including reasonable attorneys’ fees) incurred by it in connection with the administration of this
trust and the performance of its duties hereunder. The Trustee shall notify the Company promptly
of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company shall defend the claim and
the Trustee shall provide reasonable cooperation in such defense. The Trustee may have separate
counsel and the Company shall pay the fees and expenses of such counsel reasonably acceptable to
the Company, provided, however, that the Company shall not be required to pay such
fees and expenses if the Company assumes such defense unless there is a conflict of interest
between the Company and the Trustee in connection with such defense as determined by Trustee in
consultation with counsel. The Company need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee through the Trustee’s own wilful misconduct,
negligence or bad faith.




          To secure the Company’s payment obligations in this Section, the Trustee shall have a lien
prior to the Securities on all money or property held or collected by the Trustee other than money
or property held in trust to pay principal of and interest on particular Securities.










 




70




          The Company’s payment obligations pursuant to this Section shall survive the resignation or
removal of the Trustee and the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.01(7) or (8) with respect to the Company, the
expenses are intended to constitute expenses of administration under the Bankruptcy Law.




          SECTION 7.08. Replacement of Trustee. The Trustee may resign at any time by so
notifying the Company. The Holders of a majority in principal amount of the Securities may remove
the Trustee by so notifying the Trustee and may appoint a successor Trustee. The Company shall
remove the Trustee if:




          (1) the Trustee fails to comply with Section 7.10;




          (2) the Trustee is adjudged bankrupt or insolvent;




          (3) a receiver or other public officer takes charge of the Trustee or its property; or




          (4) the Trustee otherwise becomes incapable of acting.




          If the Trustee resigns, is removed by the Company or by the Holders of a majority in principal
amount of the Securities and such Holders do not reasonably promptly appoint a successor Trustee,
or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.




          A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 7.07.




          If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee or the Holders of 10% in principal amount of the Securities may
petition any court of competent jurisdiction for the appointment of a successor Trustee.




          If the Trustee fails to comply with Section 7.10, unless the Trustee’s duty to resign is
stayed as provided in TIA Section 310(b), any Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.




          Notwithstanding the replacement of the Trustee pursuant to this Section, the Company’s
obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.





 












 





 71




          SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates with, merges
or converts into, or transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee.




          In case at the time such successor or successors by merger, conversion or consolidation to the
Trustee shall succeed to the trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so authenticated; and in
case at that time any of the Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the
name of the successor to the Trustee; and in all such cases such certificates shall have the full
force which it is anywhere in the Securities or in this Indenture provided that the certificate of
the Trustee shall have.




          SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all times satisfy
the requirements of TIA § 310(a). The Trustee shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of condition. The
Trustee shall comply with TIA § 310(b); provided, however, that there shall be
excluded from the operation of TIA § 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA § 310(b)(1) are met.




          SECTION 7.11. Preferential Collection of Claims Against Company.  The Trustee shall
comply with TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee
who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated.




ARTICLE 8




Discharge of Indenture; Defeasance




          SECTION 8.01. Discharge of Liability on Securities; Defeasance.
(a) When (1) the Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.07) for cancellation or (2) all outstanding Securities
have become due and payable, whether at maturity or on a redemption date as a result of the mailing
of a notice of redemption pursuant to Article 3 hereof and, in the case of clause (2), the Company
irrevocably deposits with the Trustee funds or U.S. Government Obligations sufficient to pay at
maturity or upon redemption all outstanding Securities, including premium, if any, and interest
thereon to maturity or such redemption date (other than Securities replaced pursuant to Section
2.07), and if in either case the Company pays all other sums payable under this Indenture by the
Company, then this Indenture shall, subject to Section 8.01(c), cease to be of further effect.
Upon satisfaction of the above conditions, the Trustee shall acknowledge satisfaction and discharge
of this Indenture.










 



72




          (b) Subject to Sections 8.01(c) and 8.02, the Company at any time may terminate (1) all its
obligations under the Securities and this Indenture with respect to any Securities (“legal
defeasance option”) or (2) its obligations under Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08,
4.09, 4.10, 4.11 and 4.12 and the operation of Sections 6.01(4), 6.01(6), 6.01(7),6.01(8) and
6.01(9) (but, in the case of Sections 6.01(7) and (8), with respect only to Significant
Subsidiaries) and the limitations contained in Section 5.01(a)(3) (“covenant defeasance option”).
The Company may exercise its legal defeasance option notwithstanding its prior exercise of its
covenant defeasance option.




          If the Company exercises its legal defeasance option, payment of the Securities may not be
accelerated because of an Event of Default. If the Company exercises its covenant defeasance
option, payment of the Securities may not be accelerated because of an Event of Default specified
in Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8) and 6.01(9) (but, in the case of Sections 6.01(7)
and (8), with respect only to Significant Subsidiaries) or because of the failure of the Company to
comply with Section 5.01(a)(3). In the event that the Company exercises its legal defeasance
option or its covenant defeasance option, each Subsidiary Guarantor will be released from all of
its obligations with respect to its Subsidiary Guarantee.




          Upon satisfaction of the conditions set forth herein and upon request of the Company, the
Trustee shall acknowledge in writing the discharge of those obligations that the Company
terminates.




          (c) Notwithstanding clauses (a) and (b) above, the Company’s obligations in Sections 2.03,
2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and 7.08 and in this Article 8 shall survive until the
Securities have been paid in full. Thereafter, the Company’s obligations in Sections 7.07, 8.04
and 8.05 shall survive.




          SECTION 8.02. Conditions to Defeasance. The Company may exercise its legal
defeasance option or its covenant defeasance option only if:





     (1) the Company irrevocably deposits in trust with the Trustee money in U.S. Dollars
in an amount sufficient or U.S. Government Obligations, the principal of and interest on
which shall be sufficient, or a combination thereof sufficient to pay the principal of,
premium (if any) and interest in respect of the Securities to redemption or maturity, as
the case may be;




     (2) the Company delivers to the Trustee a certificate from a nationally recognized
firm of independent accountants expressing their opinion that the payments of principal and
interest when due and without reinvestment on the deposited U.S. Government Obligations
plus any deposited money without investment will provide cash at such times and in such
amounts as will be sufficient to pay principal and interest when due on all the Securities
to maturity or redemption, as the case may be;









 



73


          (3) 91 days pass after the deposit is made and during the 91-day period no Default
specified in Sections 6.01(7) or (8) with respect to the Company occurs which is continuing
at the end of the period;




          (4) the deposit does not constitute a default under any other material agreement
binding on the Company;




          (5) the Company delivers to the Trustee an Opinion of Counsel to the effect that the
trust resulting from the deposit does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of 1940;




          (6) in the case of the legal defeasance option, the Company shall have delivered to
the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (B) since the date of this
Indenture there has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall confirm that, the
Holders will not recognize income, gain or loss for Federal income tax purposes as a result
of such deposit and defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred; and




          (7) in the case of the covenant defeasance option, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that the Holders will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such deposit and covenant
defeasance had not occurred.




          Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for
the redemption of Securities at a future date in accordance with Article 3.




          SECTION 8.03. Application of Trust Money. The Trustee shall hold in trust money
or U.S. Government Obligations deposited with it pursuant to this Article 8. It shall apply the
deposited money and the money from U.S. Government Obligations, as the case may be, through the
Paying Agent and in accordance with this Indenture to the payment of principal of and interest on
the Securities.




          SECTION 8.04. Repayment to Company. The Trustee and the Paying Agent shall promptly
turn over to the Company upon request any excess money or securities held by them at any time.




          Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay
to the Company upon request any money held by them for the payment of principal or interest that
remains unclaimed for two years, and, thereafter, Holders entitled to the money must look to the
Company for payment as general creditors.










 



74


          SECTION 8.05. Indemnity for Government Obligations. The Company shall pay and shall
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest received on such U.S.
Government Obligations.




          SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with this Article 8 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company’s and each Subsidiary
Guarantor’s obligations under this Indenture, each Subsidiary Guarantee with respect to such
Securities shall be revived and reinstated as though no deposit had occurred pursuant to this
Article 8 until such time as the Trustee or Paying Agent is permitted to apply all such money
or U.S. Government Obligations in accordance with this Article 8; provided,
however, that, if the Company has made any payment of interest on or principal of any
Securities because of the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.




ARTICLE 9




Amendments




          SECTION 9.01. Without Consent of Holders. The Company, the Subsidiary Guarantors and
the Trustee may amend this Indenture or the Securities without notice to or consent of any Holder:





     (1) to cure any ambiguity, omission, defect or inconsistency;




     (2) to provide for the assumption by a successor corporation of the obligations of the
Company or any Subsidiary Guarantor under this Indenture in compliance with Article 5;




     (3) to provide for uncertificated Securities in addition to or in place of
certificated Securities; provided, however, that the uncertificated
Securities are issued in registered form for purposes of Section 163(f) of the Code or in a
manner such that the uncertificated Securities are described in Section 163(f)(2)(B) of the
Code;




     (4) to add Guarantees with respect to the Securities or to confirm and evidence the
release, termination or discharge of any such Guarantee when such release, termination or
discharge is permitted under this Indenture;




     (5) to add to the covenants of the Company for the benefit of the Holders or to
surrender any right or power herein conferred upon the Company;




     (6) to make any change that does not adversely affect the rights of any Holder in any
material respect, subject to the provisions of this Indenture;









 



75



     (7) to comply with any requirement of the SEC in connection with qualifying, or
maintaining the qualification of, this Indenture under the TIA;




     (8) to make any amendment to the provisions of this Indenture relating to form,
authentication, transfer and legending of Securities; provided, however,
that (A) compliance with this Indenture as so amended would not result in Securities being
transferred in violation of the Securities Act or any other applicable securities law and
(B) such amendment does not materially affect the rights of Holders to transfer Securities;




     (9) to provide for the issuance of Additional Securities in accordance with the terms
of this Indenture; or




     (10) to convey, transfer, assign, mortgage or pledge as security for the Securities
any property or assets in accordance with Section 4.09.



          After an amendment under this Section becomes effective, the Company shall mail to Holders a
notice briefly describing such amendment. The failure to give such notice to all Holders, or any
defect therein, shall not impair or affect the validity of an amendment under this Section.




          SECTION 9.02. With Consent of Holders. (a) The Company, the Subsidiary Guarantors
and the Trustee may amend this Indenture with respect to the Securities with the written consent of
the Holders of at least a majority in principal amount of the Securities then outstanding voting as
a single class (including consents obtained in connection with a tender offer or exchange for such
Securities). Any existing Default or compliance with any provisions of this Indenture with respect
to the Securities may be waived with the consent of the Holders of at least a majority in principal
amount of the Securities then outstanding voting as a single class, subject to the restrictions of
Section 6.04 and this Section 9.02. Notwithstanding the foregoing, without the consent of each
Holder affected thereby, an amendment or waiver may not:




          (1) reduce the amount of Securities whose Holders must consent to an amendment;




          (2) reduce the rate of or extend the time for payment of interest on any Security;




          (3) reduce the principal of or extend the Stated Maturity of any Security;




          (4) reduce the premium payable upon the redemption of any Security or change the time
at which such Security may be redeemed pursuant to Article 3 hereto or paragraph 6 of the
Securities;




          (5) make any Security payable in money other than that stated in such Security;










 



76




          (6) impair the right of any Holder to receive payment of principal of, and interest
on, such Holder’s Securities on or after the due dates therefor or to institute suit for
the enforcement of any payment on or with respect to such Holder’s Securities;




          (7) make any change in Section 6.04 or 6.07 or the second sentence of this
Section 9.02; or




          (8) make any change in, or release other than in accordance with this Indenture, any
Subsidiary Guarantee that would adversely affect the Holders.




          (b) It shall not be necessary for the consent of the Holders under this Section to approve
the particular form of any proposed amendment, but it shall be sufficient if such consent approves
the substance thereof.




          After an amendment under this Section becomes effective, the Company shall mail to Holders a
notice briefly describing such amendment. The failure to give such notice to all Holders, or any
defect therein, shall not impair or affect the validity of an amendment under this Section.




          SECTION 9.03. Compliance with Trust Indenture Act. Every amendment to this Indenture
or the Securities shall comply with the TIA as then in effect.




          SECTION 9.04. Revocation and Effect of Consents and Waivers.  A consent to an
amendment or a waiver by a Holder of a Security shall bind the Holder and every subsequent Holder
of that Security or portion of the Security that evidences the same debt as the consenting Holder’s
Security, even if notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder’s Security or
portion of the Security if the Trustee receives the notice of revocation before the date the
amendment or waiver becomes effective. After an amendment or waiver becomes effective, it shall
bind every Holder. An amendment or waiver becomes effective upon the execution of such amendment
or waiver by the Trustee.




          The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to give their consent or take any other action described above or
required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be entitled to give such
consent or to revoke any consent previously given or to take any such action, whether or not such
Persons continue to be Holders after such record date. No such consent shall be valid or effective
for more than 120 days after such record date.




          SECTION 9.05. Notation on or Exchange of Securities. If an amendment changes the
terms of a Security, the Trustee may require the Holder of the Security to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Security regarding the changed terms
and return it to the Holder. Alternatively, if the Company or










 



77

the Trustee so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms. Failure to make the
appropriate notation or to issue a new Security shall not affect the validity of such amendment.




          SECTION 9.06. Trustee To Sign Amendments. The Trustee shall sign any amendment
authorized pursuant to this Article 9 if the amendment does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign
it. In signing such amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully protected in
relying upon, an Officers’ Certificate and an Opinion of Counsel stating that such amendment is
authorized or permitted by this Indenture.




          SECTION 9.07. Payment for Consent. Neither the Company nor any Affiliate of the
Company shall, directly or indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Securities unless such
consideration is offered to be paid to all Holders that so consent, waive or agree to amend in the
time frame set forth in solicitation documents relating to such consent, waiver or agreement.




ARTICLE 10




Subsidiary Guarantees




          SECTION 10.01. Guarantees. (a) Each Subsidiary Guarantor hereby irrevocably and
unconditionally guarantees, as a primary obligor and not merely as a surety, the due and punctual
payment and performance of all of the Guaranteed Obligations of such Subsidiary Guarantor, jointly
with the other Subsidiary Guarantors and severally. Each of the Subsidiary Guarantors further
agrees that its Guaranteed Obligations may be extended or renewed, in whole or in part, without
notice to or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any such Guaranteed Obligation. Each of the Subsidiary
Guarantors waives presentment to, demand of payment from and protest to the Company or any
Subsidiary Guarantor of any of its Guaranteed Obligations, and also waives notice of acceptance of
its guarantee, notice of protest for nonpayment and all similar formalities.




          (b) Each of the Subsidiary Guarantors further agrees that its guarantee hereunder constitutes
a guarantee of payment when due and not of collection, and waives any right to require that any
resort be had by the Trustee or any Holder to any security held for the payment of its Guaranteed
Obligations or to any balance of any deposit account or credit on the books of the Trustee or any
Holder in favor of the Company.




          (c) Except for termination of a Subsidiary Guarantor’s obligations hereunder or a release of
such Subsidiary Guarantor pursuant to Section 10.06, the obligations of each Subsidiary Guarantor
hereunder shall not be subject to any reduction,










 



78

limitation, impairment or termination for any reason, including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to any defense or set-off,
counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations of such Subsidiary Guarantor or otherwise. Without
limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor hereunder
shall not be discharged or impaired or otherwise affected by (i) the failure of the Trustee or any
Holder to assert any claim or demand or to enforce any right or remedy under the provisions of this
Indenture or otherwise; (ii) any rescission, waiver, amendment or modification of, or any release
from any of the terms or provisions of, this Indenture or any other agreement, including with
respect to any other Subsidiary Guarantor under this Agreement; (iii) any default, failure or
delay, wilful or otherwise, in the performance of the Guaranteed Obligations of such Subsidiary
Guarantor; or (iv) any other act or omission that may or might in any manner or to any extent vary
the risk of such Subsidiary Guarantor or otherwise operate as a discharge of such Subsidiary
Guarantor as a matter of law or equity (other than the indefeasible payment in full in cash of all
the Guaranteed Obligations of such Guarantor).




          (d) To the fullest extent permitted by applicable law, each Subsidiary Guarantor waives any
defense based on or arising out of any defense of the Company or any other Subsidiary Guarantor or
the unenforceability of the Guaranteed Obligations of such Subsidiary Guarantor or any part thereof
from any cause, or the cessation from any cause of the liability of the Company or any other
Subsidiary Guarantor, other than the indefeasible payment in full in cash of all the Guaranteed
Obligations of such Subsidiary Guarantor. The Trustee may, at its election, compromise or adjust
any part of the Guaranteed Obligations, make any other accommodation with the Company or any
Subsidiary Guarantor or exercise any other right or remedy available to them against the Company or
any Subsidiary Guarantor, in each case without affecting or impairing in any way the liability of
any Subsidiary Guarantor hereunder except to the extent the Guaranteed Obligations of such
Subsidiary Guarantor have been fully and indefeasibly paid in full in cash. To the fullest extent
permitted by applicable law, each Subsidiary Guarantor waives any defense arising out of any such
election even though such election operates, pursuant to applicable law, to impair or to extinguish
any right of reimbursement or subrogation or other right or remedy of such Subsidiary Guarantor
against the Company or any other Subsidiary Guarantor, as the case may be.




          (e) Each of the Subsidiary Guarantors agrees that its guarantee hereunder shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of
any Guaranteed Obligation of such Subsidiary Guarantor is rescinded or must otherwise be restored
by the Trustee upon the bankruptcy or reorganization of the Company, any other Subsidiary Guarantor
or otherwise.




          SECTION 10.02. Limitation on Liability. Any term or provision of this Indenture to
the contrary notwithstanding, the maximum aggregate amount of the Guaranteed Obligations guaranteed
hereunder by any Subsidiary Guarantor shall not exceed the maximum amount that can be hereby
guaranteed without rendering this Indenture, as it relates to such Subsidiary Guarantor, voidable
under applicable law










 



79

relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights
of creditors generally.




          SECTION 10.03. Successors and Assigns. This Article 10 shall be binding upon each
Subsidiary Guarantor and its successors and assigns and shall inure to the benefit of the
successors, transferees and assigns of the Trustee and the Holders and, in the event of any
transfer or assignment of rights by any Holder or the Trustee, the rights and privileges conferred
upon that party in this Indenture and in the Securities shall automatically extend to and be vested
in such transferee or assignee, all subject to the terms and conditions of this Indenture.




          SECTION 10.04. No Waiver. Neither a failure nor a delay on the part of either the
Trustee or the Holders in exercising any right, power or privilege under this Article 10 shall
operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or
further exercise of any right, power or privilege. The rights, remedies and benefits of the
Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article 10 at law, in equity, by
statute or otherwise.




          SECTION 10.05. Modification. No modification, amendment or waiver of any provision
of this Article 10, nor the consent to any departure by any Subsidiary Guarantor therefrom, shall
in any event be effective unless the same shall be in writing and signed by the Trustee, and then
such waiver or consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on any Subsidiary Guarantor in any case shall entitle such
Subsidiary Guarantor to any other or further notice or demand in the same, similar or other
circumstances.




          SECTION 10.06. Release of Subsidiary Guarantor. A Subsidiary Guarantor shall be
released from its obligations under this Article 10 (other than any obligation that may have arisen
under Section 10.07):





     (1) upon the sale (including any sale pursuant to any exercise of remedies by a holder
of Indebtedness of the Company or of such Subsidiary Guarantor) or other disposition
(including by way of consolidation or merger) of a Subsidiary Guarantor;




     (2) upon the sale or disposition of all or substantially all the assets of such
Subsidiary Guarantor;




     (3) upon the designation of such Subsidiary Guarantor as an Unrestricted Subsidiary in
accordance with the terms of this Indenture;




     (4) unless there is then existing an Event of Default, at such time and for so long as
any such Subsidiary Guarantor that became a Subsidiary Guarantor after the Closing Date
pursuant to Section 4.11 does not Guarantee any Indebtedness that would have required such
Subsidiary Guarantor to enter into a Supplemental Indenture pursuant to Section 4.11 and
the Company provides an Officers’ Certificate to the Trustee certifying that no such
Guarantee is









 



80



outstanding and the Company elects to have such Subsidiary Guarantor released from
this Article 10;




     (5) at any time during a Suspension Period if the Company provides an Officers’
Certificate to the Trustee stating that the Company elects to have such Subsidiary
Guarantor released from this Article 10; or




     (6) upon the exercise by the Company of its legal defeasance option or its covenant
defeasance option or if the Obligations of the Company under the Indenture and the
Securities are discharged pursuant to Article 8;


provided, however, that in the case of clauses (1) and (2) above, (i) such sale or
other disposition is made to a Person other than the Company or a Subsidiary of the Company, (ii)
such sale or disposition is otherwise permitted by this Indenture and (iii) the Company complies
with its obligations under Section 4.06.



At the request of the Company, the Trustee shall execute and deliver an appropriate instrument
evidencing such release.




          SECTION 10.07. Contribution. Each Subsidiary Guarantor that makes a payment under
its Subsidiary Guarantee shall be entitled upon payment in full of all Guaranteed Obligations under
this Indenture to a contribution from each other Subsidiary Guarantor in an amount equal to such
other Subsidiary Guarantor’s pro rata portion of such payment based on the respective net assets of
all the Subsidiary Guarantors at the time of such payment determined in accordance with GAAP.




ARTICLE 11




Miscellaneous




          SECTION 11.01. Trust Indenture Act Controls. If any provision of this Indenture
limits, qualifies or conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.





81












 





81




          SECTION 11.02. Notices. Any notice or communication shall be in writing and delivered
in person or mailed by first-class mail addressed as follows:




          if to the Company or any Subsidiary Guarantor:



The Goodyear Tire & Rubber Company

1144 East Market Street

Akron, Ohio 44216

fax: 330-796-2222



Attention of Treasurer



if to the Trustee:



Wells Fargo Bank, N.A.

230 West Monroe Street, Suite 2900

Chicago, Illinois 60606

fax: 312-726-2158



Attention of Wells Fargo Corporate Trust Services




          The Company, any Subsidiary Guarantor or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.




          Any notice or communication mailed to a Holder shall be mailed to the Holder at the Holder’s
address as it appears on the registration books of the Registrar and shall be sufficiently given if
so mailed within the time prescribed.




          Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.




          SECTION 11.03. Communication by Holders with Other Holders. Holders may communicate
pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or
the Securities. The Company, any Subsidiary Guarantor, the Trustee, the Registrar and anyone else
shall have the protection of TIA § 312(c).




          SECTION 11.04. Certificate and Opinion as to Conditions Precedent.  Upon any request
or application by the Company to the Trustee to take or refrain from taking any action under this
Indenture, the Company shall furnish to the Trustee, to the extent reasonably requested by the
Trustee:





     (1) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions



 









 





82





precedent, if any, provided for in this Indenture relating to the proposed action have
been complied with; and




     (2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of such counsel, all such conditions precedent have been
complied with (provided, however, that such counsel may rely as to matters
of fact on Officers’ Certificates).



          SECTION 11.05. Statements Required in Certificate or Opinion. Each certificate (other
than a certificate delivered pursuant to Section 4.13) or opinion with respect to compliance with a
covenant or condition provided for in this Indenture shall include:





     (1) a statement that the individual making such certificate or opinion has read such
covenant or condition;




     (2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




     (3) a statement that, in the opinion of such individual, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and




     (4) a statement as to whether or not, in the opinion of such individual, such covenant
or condition has been complied with.



          SECTION 11.06. When Securities Disregarded. In determining whether the Holders of the
required principal amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company shall be disregarded and deemed not
to be outstanding, except that, for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities which the Trustee
knows are so owned shall be so disregarded. Also, subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.




          SECTION 11.07. Rules by Trustee, Paying Agent and Registrar. The Trustee may make
reasonable rules for action by or a meeting of Holders. The Registrar and the Paying Agent may
make reasonable rules for their functions.




          SECTION 11.08. Legal Holidays. If a payment date is a Legal Holiday, payment shall be
made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period. If a regular record date is a Legal Holiday, the record date shall not be
affected.




 









 








83




          SECTION 11.09. Governing Law. This Indenture and the Securities shall be governed by,
and construed in accordance with, the laws of the State of New York without giving effect to
applicable principles of conflicts of law to the extent that the application of the law of another
jurisdiction would be required thereby.




          SECTION 11.10. No Recourse Against Others. A director, officer, employee or
shareholder, as such, of the Company or any Subsidiary Guarantor shall not have any liability for
any obligations of the Company under the Securities or this Indenture or of such Subsidiary
Guarantor under its Subsidiary Guarantee or this Indenture, or for any claim based on, in respect
of or by reason of such obligations or their creation. By accepting a Security, each Holder shall
waive and release all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.




          SECTION 11.11. Successors. All agreements of the Company in this Indenture and the
Securities shall bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.




          SECTION 11.12. Multiple Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.




          SECTION 11.13. Table of Contents; Headings. The table of contents, cross-reference
sheet and headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not intended to be considered a part hereof and shall not modify
or restrict any of the terms or provisions hereof.




 









 






          IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date
first written above.




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	THE GOODYEAR TIRE & RUBBER COMPANY,	 	 
	 
	 	 	 	 	 	 
	 

	 	by	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 







	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	WELLS FARGO BANK, N.A., as Trustee,	 	 
	 
	 	 	 	 	 	 
	 

	 	by	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 







	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	SUBSIDIARY GUARANTORS	 	 
	 
	 	 	 	 	 	 
	 	CELERON CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	by	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	DAPPER TIRE CO., INC.	 	 
	 

	 	by	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	
DIVESTED COMPANIES
HOLDING COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 







	 	 	 	 	 	 	 
	 	DIVESTED LITCHFIELD PARK
PROPERTIES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	GOODYEAR CANADA INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	GOODYEAR EXPORT INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 







	 	 	 	 	 	 	 
	 	GOODYEAR FARMS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	GOODYEAR INTERNATIONAL
CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 	GOODYEAR WESTERN
HEMISPHERE CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 







	 	 	 	 	 	 	 
	 	WHEEL ASSEMBLIES INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	WINGFOOT COMMERCIAL TIRE SYSTEMS, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	WINGFOOT VENTURES EIGHT INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 







 











 






APPENDIX A




PROVISIONS RELATING TO SECURITIES




     1. Definitions



     1.1 Definitions



     For the purposes of this Appendix A the following terms shall have the meanings indicated
below:



          “Definitive Security” means a certificated Security that does not include the Global
Securities Legend.




          “Depository” means The Depository Trust Company, its nominees and their respective successors.




          “Global Securities Legend” means the legend set forth under that caption in Exhibit 1 to this
Indenture.




          “Securities Act” means the Securities Act of 1933, as amended.




          “Securities Custodian” means the custodian with respect to a Global Security (as appointed by
the Depository) or any successor person thereto, who shall initially be the Trustee.




     1.2 Other Definitions



	 	 	 
	 	 	Term:
	 	 	Defined in Section:
	“Agent Members”

	 	  2.1(c) 
	“Global Security”

	 	2.1(a) 






     2. The Securities



     2.1 Form and Dating



          (a) The Securities issued on the date hereof will be offered and sold by the Company pursuant
to the Prospectus. Additional Securities offered after the date hereof may be offered and sold by
the Company from time to time in accordance with applicable law.




          (b) Global Securities. Securities shall be issued initially in the form of one or
more permanent global securities in definitive, fully registered form (each, a “Global Security”)
without interest coupons and bearing the Global Securities Legend which shall be deposited on
behalf of the purchasers of Securities represented thereby with the Securities Custodian, and
registered in the name of the Depositary or a nominee of the Depositary, duly executed by the
Company and authenticated by the Trustee as provided in this Indenture. The aggregate principal
amount of any Global Security may from time




 









 





2


to time be increased or decreased by adjustments made on the records of the Trustee and the
Depositary or its nominee and on the schedules thereto as hereinafter provided.




          (c) Book-Entry Provisions. This Section 2.1(c) shall apply only to a Global Security
deposited with or on behalf of the Depository.




          The Company shall execute and the Trustee shall, in accordance with this Section 2.1(c) and
Section 2.2 and pursuant to an order of the Company signed by two Officers, authenticate and
deliver one or more Global Securities that (i) shall be registered in the name of the Depository
for such Global Security or Global Securities or the nominee of such Depository and (ii) shall be
delivered by the Trustee to such Depository or pursuant to such Depository’s instructions or held
by the Trustee as Securities Custodian.




          Members of, or participants in, the Depository (“Agent Members”) shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the Depository or by the
Trustee as Securities Custodian or under such Global Security, and the Depository may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the Depository or impair, as
between the Depository and its Agent Members, the operation of customary practices of such
Depository governing the exercise of the rights of a holder of a beneficial interest in any Global
Security.




          (d) Definitive Securities. Except as provided in Section 2.3 or 2.4, owners of
beneficial interests in Global Securities will not be entitled to receive physical delivery of
certificated Securities.




     2.2 Authentication. The Trustee shall authenticate and make available for delivery
upon a written order of the Company signed by one Officer (a) original Securities for original
issue on the date hereof in an aggregate principal amount of $[ ] and subject to the terms of
this Indenture, Additional Securities in an unlimited aggregate principal amount. Such order shall
specify the amount of the Securities to be authenticated and the date on which the original issue
of Securities is to be authenticated. Notwithstanding anything to the contrary in this Appendix or
otherwise in this Indenture, any issuance of Additional Securities after the Closing Date shall be
in a principal amount of at least $1,000.



     2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive
Securities. When Definitive Securities are presented to the Registrar with a request:



          (i) to register the transfer of such Definitive Securities; or




          (ii) to exchange such Definitive Securities for an equal principal amount of
Definitive Securities of other authorized denominations,




 









 





3


the Registrar shall register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however, that the Definitive
Securities surrendered for transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.




          (b) Restrictions on Transfer of a Definitive Security for a Beneficial Interest in a
Global Security. A Definitive Security may not be exchanged for a beneficial interest in a
Global Security except upon satisfaction of the requirements set forth below. Upon receipt by the
Trustee of a Definitive Security, duly endorsed or accompanied by a written instrument of transfer
in form reasonably satisfactory to the Company and the Registrar, together with written
instructions directing the Trustee to make, or to direct the Securities Custodian to make, an
adjustment on its books and records with respect to the applicable Global Security to reflect an
increase in the aggregate principal amount of the Securities represented by such Global Security,
such instructions to contain information regarding the Depository account to be credited with such
increase, then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and procedures existing
between the Depository and the Securities Custodian, the aggregate principal amount of Securities
represented by such Global Security to be increased by the aggregate principal amount of the
Definitive Security to be exchanged and shall credit or cause to be credited to the account of the
Person specified in such instructions a beneficial interest in such Global Security equal to the
principal amount of the Definitive Security so canceled. If no applicable Global Securities are
then outstanding and the applicable Global Security has not been previously exchanged for
certificated securities pursuant to Section 2.4, the Company shall issue and the Trustee shall
authenticate, upon written order of the Company in the form of an Officers’ Certificate, a new
applicable Global Security in the appropriate principal amount.




          (c) Transfer and Exchange of Global Securities. The transfer and exchange of Global
Securities or beneficial interests therein shall be effected through the Depository in accordance
with this Indenture (including applicable restrictions on transfer set forth herein, if any) and
the procedures of the Depository therefor. A transferor of a beneficial interest in a Global
Security shall deliver a written order given in accordance with the Depository’s procedures
containing information regarding the participant account of the Depository to be credited with a
beneficial interest in such Global Security or another Global Security and such account shall be
credited in accordance with such order with a beneficial interest in the applicable Global Security
and the account of the Person making the transfer shall be debited by an amount equal to the
beneficial interest in the Global Security being transferred.





     (i) If the proposed transfer is a transfer of a beneficial interest in one Global
Security to a beneficial interest in another Global Security, the Registrar shall reflect
on its books and records the date and an increase in the principal amount of the Global
Security to which such interest is being transferred in an amount equal to the principal
amount of the interest to be so transferred, and the



 









 





 4



Registrar shall reflect on its books and records the date and a corresponding decrease
in the principal amount of the Global Security from which such interest is being
transferred.




     (ii) Notwithstanding any other provisions of this Appendix (other than the provisions
set forth in Section 2.4), a Global Security may not be transferred as a whole except by
the Depository to a nominee of the Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository, or by the Depository or any such nominee
to a successor Depository or a nominee of such successor Depository.



          (d) Cancellation or Adjustment of Global Security. At such time as all beneficial
interests in a Global Security have either been exchanged for Definitive Securities, transferred,
redeemed, repurchased or canceled, such Global Security shall be returned by the Depository to the
Trustee for cancellation or retained and canceled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Security is exchanged for Definitive
Securities, transferred in exchange for an interest in another Global Security, redeemed,
repurchased or canceled, the principal amount of Securities represented by such Global Security
shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is
then the Securities Custodian for such Global Security) with respect to such Global Security, by
the Trustee or the Securities Custodian, to reflect such reduction.




          (e) Obligations with Respect to Transfers and Exchanges of Securities.





     (i) To permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate, Definitive Securities and Global Securities at the
Registrar’s request.




     (ii) No service charge shall be made for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any transfer tax, assessments,
or similar governmental charge payable in connection therewith (other than any such
transfer taxes, assessments or similar governmental charge payable upon exchanges pursuant
to Sections 2.06, 3.06, 4.06, 4.08 and 9.05 of this Indenture).




     (iii) Prior to the due presentation for registration of transfer of any Security, the
Company, the Trustee, the Paying Agent or the Registrar may deem and treat the person in
whose name a Security is registered as the absolute owner of such Security for the purpose
of receiving payment of principal of and interest on such Security and for all other
purposes whatsoever, whether or not such Security is overdue, and none of the Company, the
Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.




     (iv) All Securities issued upon any transfer or exchange pursuant to the terms of this
Indenture shall evidence the same debt and shall be entitled to the



 









 




5




same benefits under this Indenture as the Securities surrendered upon such transfer or
exchange.



          (f) No Obligation of the Trustee.





     (i) The Trustee shall have no responsibility or obligation to any beneficial owner of
a Global Security, a member of, or a participant in the Depository or any other Person with
respect to the accuracy of the records of the Depository or its nominee or of any
participant or member thereof, with respect to any ownership interest in the Securities or
with respect to the delivery to any participant, member, beneficial owner or other Person
(other than the Depository) of any notice (including any notice of redemption or
repurchase) or the payment of any amount, under or with respect to such Securities. All
notices and communications to be given to the Holders and all payments to be made to
Holders under the Securities shall be given or made only to the registered Holders (which
shall be the Depository or its nominee in the case of a Global Security). The rights of
beneficial owners in any Global Security shall be exercised only through the Depository,
subject to the applicable rules and procedures of the Depository. The Trustee may rely and
shall be fully protected in relying upon information furnished by the Depository with
respect to its members, participants and any beneficial owners.




     (ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as
to compliance with any restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any Security (including any
transfers between or among the Depository, participants, members or beneficial owners in
any Global Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when expressly
required by, the terms of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.



     2.4 Definitive Securities



          (a) A Global Security deposited with the Depository or with the Trustee as Securities
Custodian pursuant to Section 2.1 shall be transferred to the beneficial owners thereof in the form
of Definitive Securities in an aggregate principal amount equal to the principal amount of such
Global Security, in exchange for such Global Security, only if such transfer complies with
Section 2.3 and (i) the Depository notifies the Company that it is unwilling or unable to continue
as a Depository for such Global Security or if at any time the Depository ceases to be a “clearing
agency” registered under the Exchange Act and, in either case, a successor Depository is not
appointed by the Company within 120 days of such notice or after the Company becomes aware of such
cessation, or (ii) the Depository so requests, or any beneficial owner thereof requests such
exchange in writing delivered through the Depository in either case, following an Event of Default
under this Indenture or (iii) the Company, in its sole discretion, notifies




 









 




6


the Trustee in writing that it elects to cause the issuance of certificated Securities under
this Indenture.




          (b) Any Global Security that is transferable to the beneficial owners thereof pursuant to
this Section 2.4 shall be surrendered by the Depository to the Trustee, to be so transferred, in
whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver,
upon such transfer of each portion of such Global Security, an equal aggregate principal amount of
Definitive Securities of authorized denominations. Any portion of a Global Security transferred
pursuant to this Section shall be executed, authenticated and delivered only in denominations of
$1,000 and any integral multiple thereof and registered in such names as the Depository shall
direct.




          (c) Subject to the provisions of Section 2.4(b), the registered Holder of a Global Security
may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members to take any action which a Holder is entitled to take under
this Indenture or the Securities.




          (d) In the event of the occurrence of any of the events specified in Section 2.4(a)(i),
(ii) or (iii), the Company will promptly make available to the Trustee a reasonable supply of
Definitive Securities in fully registered form without interest coupons.





 









 








EXHIBIT 1




[FORM OF FACE OF SECURITY]




[Global Securities Legend]




          UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.




          TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.




[OID Legend]




          FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT. THE
ISSUE PRICE OF EACH SECURITY IS $[     ] PER $1000 OF PRINCIPAL AMOUNT, THE ISSUE DATE IS [     ], [     ] AND THE INITIAL YIELD TO MATURITY OF THIS SECURITY IS [     ]%.




 









 




2





			
	No. -
	 	$                    






[     ]% Senior Note due [     ]




CUSIP No.                     

ISIN No.                     




     THE GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation, promises to pay to Cede & Co., or
registered assigns, the principal sum [of $          ] [listed on the Schedule of Increases or
Decreases in Global Security attached hereto]1 on
[     ].


Interest Payment Dates: [     ] and [     ], commencing [     ], [     ]



Record Dates: [     ] or [     ]






 




			
	1	 	Use the Schedule of Increases and Decreases language if
Note is in Global Form.




 









 







3




     Additional provisions of this Security are set forth on the other side of this Security.



     IN WITNESS WHEREOF, the parties have caused this instrument to be duly executed.



	 	 	 	 	 	 	 
	 	 	THE GOODYEAR TIRE & RUBBER COMPANY,	 	 
	 
	 	 	 	 	 	 
	 

	 	by	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 

	 	by	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






Dated:




TRUSTEE’S CERTIFICATE OF AUTHENTICATION




WELLS FARGO BANK, N.A.,




     as Trustee, certifies that this is one of the Securities referred to in the Indenture.



	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 








 




			
	*/	 	If the Security is to be issued in global form, add the Global Securities
Legend and the attachment from Exhibit 1 captioned “TO BE ATTACHED TO GLOBAL SECURITIES -
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY”.






 











 











[FORM OF REVERSE SIDE OF SECURITY]




[ ]% Senior Note due [ ]




1. Interest




          THE GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation (such corporation, and its successors
and assigns under the Indenture hereinafter referred to, being herein called the “Company”),
promises to pay interest on the principal amount of this Security at the rate per annum shown
above. The Company shall pay interest semi-annually on [ ] and [ ] of each year. Interest on
the Securities shall accrue from the most recent date to which interest has been paid or duly
provided for or, if no interest has been paid or duly provided for, from [ ] until the principal
hereof is due. Interest shall be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal at the rate borne by the Securities, and it
shall pay interest on overdue installments of interest at the same rate to the extent lawful.



2. Method of Payment




          The Company shall pay interest on the Securities (except defaulted interest) to the Persons
who are registered Holders at the close of business on the [ ] or


[ ] next preceding the interest payment date even if Securities are canceled after the
record date and on or before the interest payment date. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company shall pay principal, premium, if any, and
interest in money of the United States of America that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the Securities represented by a Global
Security (including principal, premium, if any, and interest) shall be made by wire transfer of
immediately available funds to the accounts specified by The Depository Trust Company or any
successor Depository. The Company will make all payments in respect of a certificated Security
(including principal, premium, if any, and interest), at the office of the Paying Agent, except
that, at the option of the Company, payment of interest may be made by mailing a check to the
registered address of each Holder thereof; provided, however, that payments on a
Security will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank
in the United States of America if such Holder has elected payment by wire transfer by providing
written wire instructions to the Trustee or the Paying Agent on or after the Closing Date but, in
any event, no later than 30 days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).



3. Paying Agent and Registrar




          Initially, Wells Fargo Bank, N.A., a national banking association (the “Trustee”), will act as
Paying Agent and Registrar. The Company may appoint and change any Paying Agent or Registrar
without notice. The Company or any of its domestically incorporated Wholly Owned Subsidiaries may
act as Paying Agent or Registrar.









 




2


4. Indenture




          The Company issued the Securities under an Indenture dated as of [ ],


 [ ] (the “Indenture”), among the Company, the Subsidiary Guarantors and the Trustee. The
terms of the Securities include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the
date of the Indenture (the “TIA”). Terms defined in the Indenture and not defined herein have the
meanings ascribed thereto in the Indenture. The Securities are subject to all terms and provisions
of the Indenture, and Holders (as defined in the Indenture) are referred to the Indenture and the
TIA for a statement of such terms and provisions.



          The Securities are senior unsecured obligations of the Company. This Security is one of the
Securities referred to in the Indenture. The Indenture imposes certain limitations on the ability
of the Company and its Restricted Subsidiaries to, among other things, make certain Investments and
other Restricted Payments, pay dividends and other distributions, incur Indebtedness, enter into
consensual restrictions upon the payment of certain dividends and distributions by such Restricted
Subsidiaries, sell assets, including shares of capital stock of Restricted Subsidiaries, enter into
or permit certain transactions with Affiliates and create or incur Liens. The Indenture also
imposes limitations on the ability of the Company and each Subsidiary Guarantor to consolidate or
merge with or into any other Person or convey, transfer or lease all or substantially all of its
property.



          Following the first day (the “Suspension Date”) that (i) the Securities have an Investment
Grade Rating from both of the Rating Agencies, and (ii) no Default with respect to the Securities
has occurred and is continuing under the Indenture, the Company and its Restricted Subsidiaries
will not be subject to Sections 4.03, 4.04, 4.05, 4.06, 4.07, 4.11 and Section 5.01(a)(3)
(collectively, the “Suspended Covenants”) of the Indenture with respect to the Securities. In
addition, the Company may elect to suspend the Subsidiary Guarantees with respect to the
Securities. Upon and following any Reversion Date, the Company and its Restricted Subsidiaries
shall again be subject to the Suspended Covenants with respect to the Securities with respect to
future events and the Subsidiary Guarantees with respect to the Securities shall be reinstated.



5. Guarantee




          The payment by the Company of the principal of, and premium and interest on, the Securities is
fully and unconditionally guaranteed on a joint and several senior unsecured basis by each
Subsidiary Guarantor to the extent set forth in the Indenture. The precise terms of the Guarantee
of the Securities and the Guaranteed Obligations of the Subsidiary Guarantors with respect to the
Securities are expressly set forth in Article 10 of the Indenture.









 




3


6. Optional Redemption




          Except as set forth below in this paragraph 6 the Company will not be entitled to redeem the
Securities.



          After [ ], the Company may redeem the Securities, in whole or in part, on not less than 30
nor more than 60 days’ prior notice, at the redemption prices (expressed as percentages of
principal amount), plus accrued and unpaid interest to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on the relevant interest
payment date), if redeemed during the 12 month period commencing on [ ] of the years set forth
below:



	 	 	 
	 	 	Redemption
	Year	 	Price
	[ ]

	 	[ ]%
	[ ]

	 	[ ]%
	[ ]

	 	[ ]%






          In addition, prior to [ ], the Company may, on one or more occasions, redeem up to a maximum
of 35% of the original aggregate principal amount of the Securities (calculated giving effect to
any issuance of Additional Securities) with the Net Cash Proceeds of one or more Equity Offerings
by the Company, at a redemption price equal to [ ]% of the principal amount thereof, plus accrued
and unpaid interest to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment date);
provided, however, that (1) at least 65% of the original aggregate principal amount
of the Securities (calculated giving effect to any issuance of Additional Securities) remains
outstanding after giving effect to any such redemption and (2) any such redemption by the Company
is made within 90 days after the closing of such Equity Offering and is made in accordance with
certain procedures set forth in the Indenture.



          In addition, prior to [ ], the Company may at its option redeem the Securities, in whole or
in part, at a redemption price equal to 100% of the principal amount of the Securities plus the
Applicable Premium as of, and accrued and unpaid interest to, the redemption date (subject to the
right of Holders on the relevant record date to receive interest due on the relevant interest
payment date). Notice of such redemption must be mailed by first-class mail to each Holder’s
registered address, not less than 30 nor more than 60 days prior to the redemption date.



          “Applicable Premium” means, with respect to a Security at any redemption date, the greater of
(1) 1.00% of the principal amount of such Security and (2) the excess of (A) the present value at
such redemption date of (i) the redemption price of such Security on [ ] (such redemption price
being described in the first paragraph in this section exclusive of any accrued interest), plus
(ii) all required remaining scheduled interest payments due on such Security through [ ] (but
excluding accrued and unpaid









 



4



interest to the redemption date), computed using a discount rate equal to the Adjusted
Treasury Rate, over (B) the principal amount of such note on such redemption date.



          “Adjusted Treasury Rate” means, with respect to any redemption date, (1) the yield, under the
heading which represents the average for the immediately preceding week, appearing in the most
recently published statistical release designated “H.15(519)” or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant maturity under the
caption “Treasury Constant Maturities”, for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after [ ], yields for the two published
maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the
Adjusted Treasury Rate shall be interpolated or extrapolated from such yields on a straight line
basis, rounding to the nearest month) or (2) if such release (or any successor release) is not
published during the week preceding the calculation date or does not contain such yields, the rate
per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such
redemption date, in each case calculated on the third Business Day immediately preceding the
redemption date, in each case of (1) and (2), plus [ ]%.



          “Comparable Treasury Issue” means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the Securities from the
redemption date to [ ], that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of U.S. Dollar denominated corporate debt
securities of a maturity most nearly equal to [ ].



          “Comparable Treasury Price” means, with respect to any redemption date, if clause (2) of the
Adjusted Treasury Rate is applicable, the average of three, or if not possible, such lesser number
as is obtained by the Company, Reference Treasury Dealer Quotations for such redemption date.



          “Quotation Agent” means one of the Reference Treasury Dealers selected by the Company.



          “Reference Treasury Dealer” means J.P. Morgan Securities Inc. and its successors and assigns
and two other nationally recognized investment banking firms selected by the Company that are
primary U.S. Government securities dealers.



          “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Company, of the bid and asked prices for
the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount,
quoted in writing to the Company by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third Business Day immediately preceding such redemption date.









 



5


7. Sinking Fund




          The Securities are not subject to any sinking fund.



8. Notice of Redemption




          Notice of redemption will be mailed by first-class mail at least 30 days but not more than
60 days before the redemption date to each Holder of Securities to be redeemed at his, her or its
registered address. Securities in denominations larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000. If money sufficient to pay the redemption price of and accrued
and unpaid interest on all Securities (or portions thereof) to be redeemed on the redemption date
is deposited with the Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date interest ceases to accrue on such Securities (or such
portions thereof) called for redemption.



9. Repurchase of Securities at the Option of Holders 




          Upon a Change of Control, any Holder of Securities will have the right, subject to certain
conditions specified in the Indenture, to cause the Company to repurchase all or any part of the
Securities of such Holder at a purchase price equal to 101% of the principal amount of the
Securities to be repurchased plus accrued and unpaid interest to the date of repurchase (subject to
the right of Holders of record on the relevant record date to receive interest due on the relevant
interest payment date that is on or prior to the date of purchase) as provided in, and subject to
the terms of, the Indenture.



          In accordance with Section 4.06 of the Indenture, the Company will be required to offer to
purchase Securities upon the occurrence of certain events.



10. Denominations; Transfer; Exchange




          The Securities are in registered form without coupons in denominations of $1,000 and whole
multiples of $1,000 in excess thereof. A Holder may transfer or exchange Securities in accordance
with the Indenture. Upon any transfer or exchange, the Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay
any taxes required by law or permitted by the Indenture. The Registrar need not register the
transfer of or exchange any Securities selected for redemption (except, in the case of a Security
to be redeemed in part, the portion of the Security not to be redeemed) or to transfer or exchange
any Securities for a period of 15 days prior to a selection of Securities to be redeemed or for a
period of 15 days prior to an interest payment date.



11. Persons Deemed Owners 




          Except as provided in paragraph 2 hereof, the registered Holder of this Security may be
treated as the owner of it for all purposes.









 



6


12. Unclaimed Money




          If money for the payment of principal or interest remains unclaimed for two years, the Trustee
and the Paying Agent shall pay the money back to the Company at its written request unless an
abandoned property law designates another Person. After any such payment, Holders entitled to the
money must look to the Company for payment as general creditors and the Trustee and the Paying
Agent shall have no further liability with respect to such monies.



13. Discharge and Defeasance




          Subject to certain conditions, the Company at any time may terminate some of or all its
obligations under the Securities and the Indenture with respect to the Securities if the Company
deposits with the Trustee money or U.S. Government Obligations for the payment of principal of, and
interest on the Securities to redemption, or maturity, as the case may be.



14. Amendment, Waiver




          Subject to certain exceptions set forth in the Indenture, (i) the Indenture with respect to
the Securities or the Securities may be amended with the written consent of the Holders of at least
a majority in aggregate principal amount of all of the Securities then outstanding voting as a
single class and (ii) any Default with respect to the Securities may be waived with the written
consent of the Holders of at least a majority in principal amount of all of the Securities then
outstanding voting as a single class.



          Subject to certain exceptions set forth in the Indenture, without the consent of any Holder of
Securities, the Company, the Subsidiary Guarantors and the Trustee may amend the Indenture with
respect to the Securities (i) to cure any ambiguity, omission, defect or inconsistency; (ii) to
provide for the assumption by a successor corporation of the obligations of the Company under the
Indenture in compliance with Article 5 of the Indenture; (iii) to provide for uncertificated
Securities in addition to or in place of certificated Securities; (iv) to add Guarantees with
respect to the Securities or to confirm and evidence the release, termination or discharge of any
such Guarantee or security when such release, termination or discharge is permitted under the
Indenture; (v) to add additional covenants for the benefit of the Holders of the Securities or to
surrender rights and powers conferred on the Company; (vi) to make any change that does not
adversely affect the rights of any Holder of Securities in any material respect, subject to the
provisions of the Indenture; (vii) to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA; (viii) to make any amendment to
provisions of the Indenture relating to form, authentication, transfer and legending of the
Securities; provided, however, that compliance with the Indenture as so amended
would not result in Securities being transferred in violation of the Securities Act; (ix) to
provide for the issuance of Additional Securities in accordance with the terms of the Indenture; or
(x) to convey, transfer, assign, mortgage or pledge as security for the Securities any property or
assets in accordance with Section 4.09 of the Indenture.









 



7


15. Defaults and Remedies




          An “Event of Default” with respect to the Securities occurs if: (i) the Company defaults in
any payment of interest on any Security when the same becomes due and payable, and such default
continues for 30 days; (ii) the Company defaults in the payment of principal of any Security when
the same becomes due and payable at its Stated Maturity, upon optional redemption or required
repurchase, upon declaration of acceleration or otherwise; (iii) the Company or any Subsidiary
Guarantor fails to comply with its obligations under Section 5.01 of the Indenture; (iv) the
Company or any Restricted Subsidiary fails to comply with Section 4.03, 4.04, 4.05, 4.06, 4.07,
4.08, 4.09, 4.10, 4.11 or 4.12 of the Indenture (in each case, other than a failure to purchase
Securities) and such failure continues for 30 days after the notice from the Trustee or the Holders
specified below; (v) the Company or any Restricted Subsidiary fails to comply with its agreements
contained in the Securities or the Indenture (other than those referred to in clauses (i), (ii),
(iii) or (iv) above) and such failure continues for 60 days after the notice from the Trustee or
the Holders specified below; (vi) the Company or any Restricted Subsidiary fails to pay any
Indebtedness (other than Indebtedness owing to the Company or a Restricted Subsidiary) within any
applicable grace period after final maturity or the acceleration of any such Indebtedness by the
holders thereof because of a default if the total amount of such Indebtedness unpaid or accelerated
exceeds $100,000,000 or its foreign currency equivalent; (vii) certain events of bankruptcy,
insolvency or reorganization of the Company or a Significant Subsidiary under Sections 6.01(7) and
(8) of the Indenture; (viii) any final and nonappealable judgment or decree (not covered by
insurance) for the payment of money in excess of $100,000,000 or its foreign currency equivalent
(treating any deductibles, self-insurance or retention as not so covered) is rendered against the
Company or a Significant Subsidiary and such final judgment or decree remains outstanding and is
not satisfied, discharged or waived within a period of 60 days following such judgment; or (ix) any
Subsidiary Guarantee with respect to the Securities ceases to be in full force and effect in all
material respects (except as contemplated by the terms thereof) or any Subsidiary Guarantor denies
or disaffirms such Subsidiary Guarantor’s obligations under the Indenture or any Subsidiary
Guarantee and such Default continues for 10 days after receipt of the notice specified below.



          The foregoing shall constitute Events of Default whatever the reason for any such Event of
Default and whether such Event of Default is voluntary or involuntary or is effected by operation
of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body.



          Notwithstanding the foregoing, a default under clause (iv), (v), (vi), (viii) or (ix) (only
with respect to any Subsidiary Guarantor that is not a Significant Subsidiary) shall not constitute
an Event of Default until the Trustee notifies the Company or the Holders of at least 25% in
principal amount of the outstanding Securities notify the Company and the Trustee of the default
and the Company or the Subsidiary Guarantor, as applicable, does not cure such default within any
applicable time specified in clause (iv), (v), (vi), (viii) or (ix) hereof after receipt of such
notice.









 



8


          If an Event of Default occurs (other than an Event of Default relating to certain events of
bankruptcy, insolvency or reorganization of the Company) and is continuing, the Trustee or the
Holders of at least 25% in principal amount of all of the outstanding Securities may declare the
principal of and accrued but unpaid interest on all the Securities to be due and payable. If an
Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the
Company occurs, the principal of and interest on all the Securities shall become immediately due
and payable without any declaration or other act on the part of the Trustee or any Holders. Under
certain circumstances, the Holders of a majority in principal amount of the outstanding Securities
may rescind any such acceleration with respect to the Securities and its consequences.



16. Trustee Dealings with the Company




          Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Securities and may otherwise
deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise
deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.



17. No Recourse Against Others




          A director, officer, employee or shareholder, as such, of the Company or any Subsidiary
Guarantor shall not have any liability for any obligations of the Company under the Securities or
the Indenture or for any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the Securities.



18. Authentication




          This Security shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent) manually signs the certificate of authentication on the other side of this
Security.



19. Abbreviations




          Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM
(=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).



20. Governing Law




          THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.









 



9


21. CUSIP Numbers and ISINs




          The Company has caused CUSIP numbers and ISINs to be printed on the Securities and has
directed the Trustee to use CUSIP numbers and ISINs in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers either as printed on the
Securities or as contained in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.



          The Company will furnish to any Holder of Securities upon written request and without charge
to the Holder a copy of the Indenture which has in it the text of this Security.




 











 





10




ASSIGNMENT FORM



To assign this Security, fill in the form below:



I or we assign and transfer this Security to





(Print or type assignee’s name, address and zip code)




(Insert assignee’s soc. sec. or tax I.D. No.)


and irrevocably appoint                agent to transfer this Security on the books of
the Company. The agent may substitute another to act for him.



 





	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	Your Signature:	 	 	 	 
	 

	 	 

	 	 	 	 

	 	 





 




Sign exactly as your name appears on the other side of this Security. Signature must be guaranteed
by a participant in a recognized signature guaranty medallion program or other signature guarantor
acceptable to the Trustee.




 









 








11




[TO BE ATTACHED TO GLOBAL SECURITIES]




SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY





               The initial principal amount of this Global Security is $[     ]. The following increases
or decreases in this Global Security have been made:



	 	 	 	 	 	 	 	 	 
	Date of
Exchange

	 	Amount of decrease in
Principal Amount of this
Global Security
	 	Amount of increase in
Principal Amount of this
Global Security
	 	Principal amount of this
Global Security following
such decrease or increase
	 	Signature of authorized
signatory of Trustee or
Securities Custodian






 









 






12




OPTION OF HOLDER TO ELECT PURCHASE




               If you want to elect to have this Security purchased by the Company pursuant to Section 4.06
(Asset Sale) or 4.08 (Change of Control) of the Indenture, check the box:



Asset Sale      o      Change of Control      o




               If you want to elect to have only part of this Security purchased by the Company pursuant to
Section 4.06 or 4.08 of the Indenture, state the amount ($1,000 or an integral multiple thereof):



$                                        




	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	Your Signature:	 	 	 	 
	 

	 	 

	 	 	 	 

	 	 
	(Sign exactly as your name appears on the other side of the Security)






Signature Guarantee:                                                                    
            



Signature must be guaranteed by a participant in a recognized signature guaranty medallion program
or other signature guarantor acceptable to the Trustee





 












 






EXHIBIT 2




[FORM OF SUPPLEMENTAL INDENTURE]





               SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of
        , among [GUARANTOR] (the “New Guarantor”), a subsidiary
of THE GOODYEAR TIRE & RUBBER COMPANY (or its successor), an Ohio
corporation (the “Company”), the subsidiary guarantors listed on the
signature pages hereto (the “Subsidiary Guarantors”) and WELLS FARGO BANK,
N.A., a national banking association, as trustee under the indenture
referred to below (the “Trustee”).



W I T N E S S E T H :




               WHEREAS the Company and the Subsidiary Guarantors (the “Existing Guarantors”) have heretofore
executed and delivered to the Trustee an Indenture (the “Indenture”) dated as of [ ], [ ],
providing for the issuance of the Company’s [ ] % Senior Notes due [ ] (the “Securities”), initially in the aggregate principal amount
of $[ ].



               WHEREAS Section 4.11 of the Indenture provides that under certain circumstances the Company is
required to cause the New Guarantor to execute and deliver to the Trustee a supplemental indenture
pursuant to which the New Guarantor shall unconditionally guarantee all the Company’s obligations
under the Securities pursuant to a Subsidiary Guarantee on the terms and conditions set forth
herein; and



               WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee, the Company and the Existing
Guarantors are authorized to execute and deliver this Supplemental Indenture;



               NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the New Guarantor, the Company, the
Existing Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit
of the holders of the Securities as follows:



               1. Agreement to Guarantee. The New Guarantor hereby agrees, jointly and severally
with all Existing Guarantors, to unconditionally guarantee the Company’s obligations under the
Securities on the terms and subject to the conditions set forth in Article 10 of the Indenture and
to be bound by all other applicable provisions of the Indenture and the Securities.



               2. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as
expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the
terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental
Indenture shall form a part of the Indenture for all









 



2





purposes, and every holder of Securities heretofore or hereafter authenticated and delivered
shall be bound hereby.




               3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



               4. Trustee Makes No Representation. The Trustee makes no representation as to the
validity or sufficiency of this Supplemental Indenture.



               5. Counterparts. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.



               6. Effect of Headings. The Section headings herein are for convenience only and
shall not effect the construction thereof.









 




3





               IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.



	 	 	 	 	 	 	 
	 	[NEW GUARANTOR],	 	 
	 
	 	 	 	 	 	 
	 

	 	by	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	THE GOODYEAR TIRE & RUBBER COMPANY,	 	 
	 
	 	 	 	 	 	 
	 

	 	by	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	[EXISTING GUARANTORS],	 	 
	 
	 	 	 	 	 	 
	 

	 	by	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	WELLS FARGO BANK, N.A., as Trustee,	 	 
	 
	 	 	 	 	 	 
	 

	 	by	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title: