EXHIBIT 10.1
EXECUTION COPY
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AMENDED AND RESTATED FIRST LIEN CREDIT AGREEMENT
dated as of April 20, 2007
among
THE GOODYEAR TIRE & RUBBER COMPANY,
as Borrower,
The LENDERS Party Hereto,
The ISSUING BANKS Party Hereto,
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
J.P. MORGAN SECURITIES INC., CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arranger as Joint Lead Arranger
and Joint Bookrunner and Joint Bookrunner
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[CS&M 6701-315]
IMPORTANT NOTE:
EACH PARTY HERETO MUST EXECUTE THIS CREDIT AGREEMENT OUTSIDE THE REPUBLIC OF
AUSTRIA AND EACH LENDER MUST BOOK ITS LOAN AND RECEIVE ALL PAYMENTS OUTSIDE THE
REPUBLIC OF AUSTRIA. TRANSPORTING OR SENDING THE ORIGINAL OR ANY CERTIFIED COPY
OF THIS CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR ANY NOTICE OR OTHER
COMMUNICATION (INCLUDING BY EMAIL OR OTHER ELECTRONIC TRANSMISSION) INTO OR FROM
THE REPUBLIC OF AUSTRIA MAY RESULT IN THE IMPOSITION OF AN AUSTRIAN STAMP DUTY
ON THE CREDIT FACILITY PROVIDED FOR HEREIN, WHICH MAY BE FOR THE ACCOUNT OF THE
PARTY WHOSE ACTIONS RESULT IN SUCH IMPOSITION. COMMUNICATIONS REFERENCING THIS
CREDIT AGREEMENT SHOULD NOT BE ADDRESSED TO RECIPIENTS IN, OR SENT BY PERSONS
LOCATED IN, THE REPUBLIC OF AUSTRIA AND PAYMENTS SHOULD NOT BE MADE TO BANK
ACCOUNTS IN THE REPUBLIC OF AUSTRIA. SEE ALSO SECTION 9.18 AND A MEMORANDUM FROM
AUSTRIAN COUNSEL FOR THE GOODYEAR TIRE & RUBBER COMPANY WHICH IS AVAILABLE UPON
REQUEST FROM THE ADMINISTRATIVE AGENT.
Table of Contents
Page
----
ARTICLE I
Definitions
SECTION 1.01. Defined Terms ............................................. 1
SECTION 1.02. Classification of Loans and Borrowings .................... 56
SECTION 1.03. Foreign Currency Translation .............................. 56
SECTION 1.04. Terms Generally ........................................... 56
SECTION 1.05. Accounting Terms; GAAP .................................... 57
ARTICLE II
The Credits
SECTION 2.01. Loans and Borrowings ...................................... 57
SECTION 2.02. Requests for Borrowing .................................... 58
SECTION 2.03. Letters of Credit ......................................... 58
SECTION 2.04. Funding of Borrowings ..................................... 65
SECTION 2.05. Interest Elections ........................................ 66
SECTION 2.06. Reductions of Commitments ................................. 67
SECTION 2.07. Repayment of Loans; Evidence of Debt ...................... 68
SECTION 2.08. Prepayment of Loans ....................................... 68
SECTION 2.09. Fees ...................................................... 70
SECTION 2.10. Interest .................................................. 71
SECTION 2.11. Alternate Rate of Interest ................................ 72
SECTION 2.12. Increased Costs ........................................... 72
SECTION 2.13. Break Funding Payments .................................... 73
SECTION 2.14. Taxes ..................................................... 74
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of
Setoffs ................................................... 75
SECTION 2.16. Mitigation Obligations; Replacement of Lenders ............ 77
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers ...................................... 78
SECTION 3.02. Authorization; Enforceability ............................. 78
SECTION 3.03. Governmental Approvals; No Conflicts ...................... 78
SECTION 3.04. Financial Statements; No Material Adverse Change .......... 79
SECTION 3.05. Litigation and Environmental Matters ...................... 79
SECTION 3.06. Compliance with Laws and Agreements ....................... 80
SECTION 3.07. Investment Company Status ................................. 80
SECTION 3.08. ERISA and Canadian Pension Plans .......................... 80
SECTION 3.09. Disclosure ................................................ 80
SECTION 3.10. Security Interests ........................................ 80
SECTION 3.11. Use of Proceeds and Letters of Credit ..................... 82
ARTICLE IV
Conditions
SECTION 4.01. Restatement Date .......................................... 82
SECTION 4.02. Each Credit Event ......................................... 85
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information ................ 86
SECTION 5.02. Notices of Defaults ....................................... 88
SECTION 5.03. Existence; Conduct of Business ............................ 88
SECTION 5.04. Maintenance of Properties ................................. 89
SECTION 5.05. Books and Records; Inspection and Audit Rights ............ 89
SECTION 5.06. Compliance with Laws ...................................... 90
SECTION 5.07. Insurance ................................................. 90
SECTION 5.08. Guarantees and Collateral ................................. 90
SECTION 5.09. Borrowing Base Certificate ................................ 92
ARTICLE VI
Negative Covenants
SECTION 6.01. Limitation on Indebtedness ................................ 93
SECTION 6.02. Limitation on Restricted Payments ......................... 97
SECTION 6.03. Limitation on Restrictions on Distributions from
Restricted Subsidiaries ................................... 101
SECTION 6.04. Limitation on Sales of Assets and Subsidiary Stock ........ 103
SECTION 6.05. Limitation on Transactions with Affiliates ................ 104
SECTION 6.06. Limitation on Liens ....................................... 106
SECTION 6.07. Limitation on Sale/Leaseback Transactions ................. 109
SECTION 6.08. Fundamental Changes ....................................... 110
SECTION 6.09. Consolidated Coverage Ratio ............................... 110
ii
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default ......................................... 110
ARTICLE VIII
The Agents
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices ................................................... 116
SECTION 9.02. Waivers; Amendments ....................................... 117
SECTION 9.03. Expenses; Indemnity; Damage Waiver ........................ 119
SECTION 9.04. Successors and Assigns .................................... 121
SECTION 9.05. Survival .................................................. 124
SECTION 9.06. Counterparts; Integration; Effectiveness; Issuing Banks ... 125
SECTION 9.07. Severability .............................................. 125
SECTION 9.08. Right of Setoff ........................................... 126
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process ................................................... 126
SECTION 9.10. WAIVER OF JURY TRIAL ...................................... 126
SECTION 9.11. Headings .................................................. 127
SECTION 9.12. Confidentiality ........................................... 127
SECTION 9.13. Interest Rate Limitation .................................. 127
SECTION 9.14. Security Documents ........................................ 128
SECTION 9.15. Additional Financial Covenants ............................ 128
SECTION 9.16. Effect of Restatement ..................................... 129
SECTION 9.17. USA Patriot Act Notice .................................... 129
SECTION 9.18. Austrian Matters .......................................... 129
iii
SCHEDULES:
Schedule 1.01A -- Consent Subsidiaries
Schedule 1.01B -- Mortgaged Properties
Schedule 1.01C -- Senior Subordinated-Lien Indebtedness
Schedule 1.01D -- Specified Account Debtor
Schedule 2.01 -- Commitments
Schedule 2.03 -- Existing Letters of Credit
Schedule 3.10(b) -- Mortgaged Properties
Schedule 3.10(c) -- Material Intellectual Property
Schedule 4.01 -- Post Restatement Date Delivery Requirements
Schedule 6.06 -- Existing Liens on the Restatement Date
EXHIBITS:
Exhibit A -- Form of Borrowing Request
Exhibit B -- Form of Interest Election Request
Exhibit C -- Form of Promissory Note
Exhibit D -- Form of Assignment and Assumption
Exhibit E-1 -- Form of Opinion of Borrower's Outside Counsel
Exhibit E-2 -- Form of Opinion of the General Counsel, the Associate General
Counsel or an Assistant General Counsel of the Borrower
Exhibit F -- Form of Borrowing Base Certificate
Exhibit G -- Form of Restatement Date Perfection Certificate
Exhibit H -- Form of Reaffirmation Agreement
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AMENDED AND RESTATED FIRST LIEN CREDIT AGREEMENT dated as of
April 20, 2007 (this "Agreement"), among THE GOODYEAR TIRE &
RUBBER COMPANY; the LENDERS party hereto; the ISSUING BANKS party
hereto; CITICORP USA, INC., as Syndication Agent; BANK OF
AMERICA, N.A., as Documentation Agent; BNP PARIBAS, as
Documentation Agent; THE CIT GROUP/BUSINESS CREDIT, INC., as
Documentation Agent; GENERAL ELECTRIC CAPITAL CORPORATION, as
Documentation Agent; GMAC COMMERCIAL FINANCE LLC, as
Documentation Agent, WELLS FARGO FOOTHILL, as Documentation
Agent, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and
Collateral Agent.
The Borrower has requested that the Lenders agree to amend and restate
the Existing Credit Agreement (such term and each other capitalized term used
but not otherwise defined herein having the meaning assigned to it in Article I)
in order to continue the revolving credit facility provided for therein and to
extend credit in the form of revolving Loans and Letters of Credit in an
aggregate principal or stated amount not in excess of $1,500,000,000 at any time
outstanding. The Lenders are willing to continue such revolving credit facility,
and to amend and restate the Existing Credit Agreement in the form hereof, upon
the terms and subject to the conditions set forth herein. The proceeds of
Borrowings hereunder will be used for working capital and general corporate
purposes of the Borrower and the Subsidiaries. Letters of Credit will be used
for general corporate purposes of the Borrower and the Subsidiaries.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Access Agreement" means a written agreement granting access rights
with respect to any Accounts or Inventory of the Borrower or any of the other
Grantors located at any third party location, in form and substance reasonably
satisfactory to the Administrative Agent.
"Account" has the meaning specified in the UCC.
"Account Debtor" means the Person who is primarily obligated under,
with respect to or on account of an Account.
2
"Accounts Receivable Reserves" means, on any date, an amount
(calculated in accordance with the current and historical accounting practices
of the Borrower) equal to the sum of reserves for volume rebates, cash
discounts, Federal excise taxes and warranties maintained on the Borrower's
general ledger with respect to Eligible Accounts Receivable, in each case
without duplication of any amounts that are included in the Dilution Factors for
such period or excluded from the value of Eligible Accounts Receivable pursuant
to the definition thereof, and each such reserve to be subject to adjustment by
the Administrative Agent or the Majority Lenders in their discretion (not to be
exercised unreasonably) based on the results of collateral and borrowing base
evaluations and monitoring conducted by the Administrative Agent and its
designated representatives. Any such adjustment by the Administrative Agent or
the Majority Lenders shall be made by written notice to the Borrower setting
forth in reasonable detail the basis for such adjustment, and shall become
effective for purposes of the first Borrowing Base Certificate that is delivered
pursuant to Section 5.09 at least five Business Days after the date of receipt
by the Borrower of such written notice.
"Additional Assets" means:
(a) any property or assets (other than Indebtedness and Capital Stock)
to be used by the Borrower or a Restricted Subsidiary;
(b) the Capital Stock of a Person that becomes a Restricted Subsidiary
as a result of the acquisition of such Capital Stock by the Borrower or
another Restricted Subsidiary; or
(c) 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 (b)
or (c) above is primarily engaged in a Permitted Business.
"Additional Inventory Reserves" means, on any date, an amount equal to
the sum of the following reserves established by the Administrative Agent with
respect to Eligible Inventory, without duplication of any deductions made
pursuant to the definitions of "Eligible Inventory", "Inventory Reserves" and
"Inventory Value":
(a) a reserve for "slow moving" Eligible Inventory equal to 75% of the
amount in excess of a 12 month supply on hand;
(b) a reserve for (i) private label Eligible Inventory relating to the
North America Tire Division and (ii) private label Eligible Inventory
relating to the Engineered Products Division;
(c) a reserve for freight, duties and insurance for Eligible Inventory
representing in transit Inventory equal to $5,000,000;
(d) a reserve for shrink or discrepancies that arise pertaining to
Eligible Inventory quantities on hand between the Borrower's perpetual
accounting system
3
and physical counts of the Eligible Inventory which will be equal to the
amount of any such discrepancy, if any, that is in excess of 2.0%; and
(e) any other reserve as deemed appropriate by the Administrative
Agent or the Majority Lenders in their discretion (not to be exercised
unreasonably) based on the results of collateral and borrowing base
evaluations and monitoring conducted by the Administrative Agent and its
designated representatives.
The reserves described in clauses (a), (b), (c), (d) and (e) above
shall be subject to adjustment (and, in the case of clause (e), establishment)
by the Administrative Agent or the Majority Lenders in their discretion (not to
be exercised unreasonably) based on the results of collateral and borrowing base
evaluations and monitoring conducted by the Administrative Agent and its
designated representatives. Any such adjustment or the establishment of a
reserve pursuant to clause (e) by the Administrative Agent or the Majority
Lenders shall be made by written notice to the Borrower setting forth in
reasonable detail the basis for such adjustment or reserve, and shall become
effective for purposes of the first Borrowing Base Certificate that is delivered
pursuant to Section 5.09 at least five Business Days after the date of receipt
by the Borrower of such written notice.
"Adjusted Eligible Accounts Receivable" means, on any date, an amount
equal to (a) Eligible Accounts Receivable minus (b) the sum of, without
duplication, (i) the Dilution Reserve and (ii) the Accounts Receivable Reserves.
"Adjusted Eligible Finished Goods" means, on any date and with respect
to any division of the Borrower, an amount equal to (a) Eligible Finished Goods
relating to such division minus (b) the Inventory Reserves with respect to the
Eligible Inventory included in such Eligible Finished Goods minus (c) the
Additional Inventory Reserves with respect to the Eligible Inventory included in
such Eligible Finished Goods.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMCB, in its capacity as administrative
agent for the Lenders hereunder, and its successors in such capacity.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Affiliate Transaction" has the meaning set forth in Section 6.05(a).
"Agents" means the Administrative Agent and the Collateral Agent.
4
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the Total Commitment represented by such Lender's Commitment. If
the Commitments have been reduced to zero, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" shall mean, for any day, with respect to (a) any
Loan or (b) the Commitments, the applicable rate per annum set forth under the
appropriate caption in the table below, in each case based upon the Reference
Availability (as defined below) then in effect, except (x) on or prior to the
date that is 270 days after the Restatement Date, the Applicable Rate for any
Loan shall be determined by reference to Category 1 and (y) that,
notwithstanding clause (x), if an Event of Default shall have occurred under
clause (a), (b), (h) or (i) of Section 7.01 or as a result of a breach of
Section 5.09(a) (for so long as a new Borrowing Base Certificate has not been
delivered), or 6.09 and shall then be continuing, the Applicable Rate shall be
determined by reference to Category 2 in the table below:
EURODOLLAR ABR
REFERENCE AVAILABILITY: SPREAD SPREAD COMMITMENT FEE
- ----------------------- ---------- ------ --------------
CATEGORY 1
>$400,000,000 1.250% 0.250% 0.375%
CATEGORY 2
< or =$400,000,000 1.500% 0.500% 0.250%
The "Reference Availability" for each day shall be the amount determined by the
Administrative Agent as of the second Business Day (the "Applicable Delivery
Date") following the then most recent delivery of a Borrowing Base Certificate
to be the average of the Available Commitments as of the end of each of the 30
consecutive days immediately preceding the Applicable Delivery Date. Solely for
purposes of determining the Reference Availability, Available Cash for any day
during any applicable period shall be the Available Cash specified on the most
recent certificate delivered under Section 5.09(a) or (b) specifying Available
Cash.
5
"Approved Fund" means (a) with respect to any Lender, a CLO managed by
such Lender or by an Affiliate of such Lender and (b) with respect to any Lender
that is a fund which invests in bank loans and similar extensions of credit, any
other fund that invests in bank loans and similar extensions of credit and is
managed by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"Arrangers" means J.P. Morgan Securities Inc., as Joint Lead Arranger
and Joint Bookrunner, and Citigroup Global Markets Inc., as Joint Lead Arranger
and Joint Bookrunner, for the credit facilities established by this Agreement.
"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 Borrower 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:
(a) 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 Borrower or a Restricted Subsidiary);
(b) all or substantially all the assets of any division or line of
business of the Borrower or any Restricted Subsidiary; or
(c) any other assets of the Borrower or any Restricted Subsidiary
outside of the ordinary course of business of the Borrower or such
Restricted Subsidiary;
other than, in the case of clauses (a), (b) and (c) above,
(1) a disposition by a Restricted Subsidiary to the Borrower or
by the Borrower or a Restricted Subsidiary to a Restricted Subsidiary;
(2) for purposes of Section 6.04 only, a disposition subject to
Section 6.02;
(3) a disposition of assets with a Fair Market Value of less than
$10,000,000;
(4) a sale of accounts receivable and related assets of the type
specified in the definition of "Qualified Receivables Transaction" to
a Receivables Entity;
(5) a transfer of accounts receivable and related assets of the
type specified in the definition of "Qualified Receivables
Transaction" (or a fractional undivided interest therein) by a
Receivables Entity in a Qualified Receivables Transaction; and
(6) any Specified Asset Sale.
6
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit D or any other form approved by the Administrative Agent.
"Attributable Debt" means, with respect to any Sale/Leaseback
Transaction that does not result in a Capitalized Lease Obligation, the present
value (computed in accordance with GAAP) of the total obligations of the lessee
for rental payments during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such lease has been
extended). In the case of any lease which is terminable by the lessee upon
payment of a penalty, the Attributable Debt shall be the lesser of (i) the
Attributable Debt determined assuming termination upon the first date such lease
may be terminated (in which case the Attributable Debt shall also include the
amount of the penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated) and (ii) the Attributable Debt determined assuming no such
termination.
"Availability Period" means the period from and including the
Restatement Date to but excluding the earlier of (a) the Commitment Termination
Date and (b) any other date on which the Commitments have been reduced to zero.
"Available Cash" means, with respect to any date, the aggregate amount
of cash and Temporary Cash Investments held on such date by the Borrower and the
Subsidiary Guarantors, other than cash and Temporary Cash Investments (a) held
in accounts outside the United States of America or (b) to the extent subject to
any Lien (other than Liens permitted pursuant to Section 6.06(t)) securing
Indebtedness or other obligations or to any other restriction on availability.
"Available Commitments" means, at the time of any determination, an
amount equal to Available Cash plus the difference between (a) the lesser of (i)
the Borrowing Base and (ii) the aggregate amount of the Commitments in effect at
such time minus (b) the aggregate amount of the Credit Exposures at such time.
"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing (a) 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 (b) the sum of all such payments.
"Bank Indebtedness" means all obligations under the U.S. Bank
Indebtedness and European Bank Indebtedness.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
7
"Board of Directors" means the board of directors of the Borrower or
any committee thereof duly authorized to act on behalf of the board of directors
of the Borrower.
"Borrower" means The Goodyear Tire & Rubber Company, an Ohio
corporation.
"Borrowing" means Loans of the same Type made, converted or continued
on the same date and, in the case of Eurodollar Loans, as to which a single
Interest Period is in effect.
"Borrowing Base" means, at the time of any determination, an amount
equal to the sum of, without duplication, (a) 85% of Adjusted Eligible Accounts
Receivable and (b) (i) if the Effective Advance Rate is equal to or greater than
the percentage equal to 85% of the Recovery Rate, 85% multiplied by the Recovery
Rate multiplied by the Inventory Value of all Inventory of the Borrower and each
other Grantor or (ii) if the Effective Advance Rate is less than the percentage
equal to 85% of the Recovery Rate, (A) the sum of (x) 40% of Eligible Raw
Materials plus (y) 70% of Adjusted Eligible Finished Goods relating to the North
American Tire Division, the Retail Division, the Engineered Products Division
and Wingfoot, respectively, plus (z) 40% of Eligible Work in Process minus (B)
the Rent Reserve, minus (C) the Priority Payables Reserve (the amount in clause
(ii) collectively, the "Inventory Advance Amount"). The Borrowing Base at any
time shall be determined by reference to the most recent Borrowing Base
Certificate delivered to the Administrative Agent on the Restatement Date or
pursuant to Section 5.09, as applicable. Subject to the provisions of Section
9.02(b)(viii), standards of eligibility and reserves relating to the components
of the Borrowing Base may be revised and adjusted from time to time by the
Administrative Agent or the Majority Lenders in their discretion (not to be
exercised unreasonably) based on the results of collateral and borrowing base
evaluations and monitoring conducted by the Administrative Agent and its
designated representatives. Any such revision or adjustment by the
Administrative Agent or the Majority Lenders shall be made by written notice to
the Borrower setting forth in reasonable detail the basis for such revision or
adjustment, and shall become effective for purposes of the first Borrowing Base
Certificate that is delivered pursuant to Section 5.09 at least five Business
Days after the date of receipt by the Borrower of such written notice.
"Borrowing Base Availability" means, at the time of any determination,
an amount equal to the lesser of the Borrowing Base at such time and the
aggregate amount of the Commitments at such time.
"Borrowing Base Certificate" means a certificate substantially in the
form of Exhibit F hereto (with such changes therein as may be reasonably
requested by the Administrative Agent from time to time to reflect the
components of and reserves against the Borrowing Base as provided for hereunder
from time to time), executed and certified on behalf of the Borrower as accurate
and complete in all material respects by a Financial Officer of the Borrower,
which shall include appropriate exhibits, schedules, supporting
8
documentation and additional reports as (a) outlined in Exhibit F hereto, (b)
reasonably requested by the Administrative Agent and (c) provided for in Section
5.09.
"Borrowing Request" means a request by the Borrower for a Borrowing in
accordance with Section 2.02 in substantially the form of Exhibit A hereto.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Canadian Benefit Plans" means all material employee benefit plans of
any nature or kind whatsoever that are not Canadian Pension Plans and are
maintained or contributed to by any Credit Party having employees in Canada.
"Canadian Dollars" refers to lawful money of Canada.
"Canadian Pension Plans" means each plan which is a registered pension
plan within the meaning of the Income Tax Act (Canada).
"Canadian Security Agreements" has the meaning assigned to such term
in the Guarantee and Collateral Agreement.
"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.
"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 entity.
"Change in Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934, as amended, and the rules of the
United States Securities and Exchange Commission thereunder as in effect on the
date hereof), of Capital Stock representing more than 50% of the aggregate
ordinary voting power represented by the issued and outstanding Capital Stock of
the Borrower; or (b) occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons who were neither (i)
directors on the date hereof or nominated by the board of directors of the
Borrower nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this
9
Agreement or (c) compliance by any Lender or any Issuing Bank (or, for purposes
of Section 2.12(b), by any lending office of such Lender or by such Lender's or
such Issuing Bank's holding company, if any) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"CLO" means any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course and is
administered or managed by a Lender or an Affiliate of such Lender.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means all the assets and rights that secure any of the
Obligations pursuant to the Security Documents.
"Collateral Agent" means JPMCB, in its capacity as collateral agent
for the Lenders under the Guarantee and Collateral Agreement and the other
Security Documents.
"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Loans and to acquire participations in Letters of Credit
hereunder, expressed as an amount representing the maximum permitted aggregate
amount of such Lender's Credit Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.06 or increased from time to
time pursuant to Section 9.02(c) and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Commitment is set forth on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender shall have assumed
its Commitment, as applicable. The initial aggregate amount of the Lenders'
Commitments is $1,500,000,000.
"Commitment Termination Date" means April 30, 2013.
"Consent Subsidiary" means (a) any Subsidiary listed on Schedule 1.01A
and (b) any Subsidiary not on Schedule 1.01A or formed or acquired after the
Restatement Date, in respect of which (A) the consent of any Person other than
the Borrower or any Wholly Owned Subsidiary is required by applicable law or the
terms of any organizational document of such Subsidiary or other agreement of
such Subsidiary or any Affiliate of such Subsidiary in order for such Subsidiary
to execute the Guarantee and Collateral Agreement as a Grantor or a Subsidiary
Guarantor and perform its obligations thereunder, or in order for Capital Stock
of such Subsidiary to be pledged under the Security Documents, as the case may
be, and (B) the Borrower endeavored in good faith to obtain such consents, and
such consents shall not have been obtained. Notwithstanding the foregoing, no
Subsidiary shall be a Consent Subsidiary at any time that it is a guarantor of,
or has provided any collateral to secure, Indebtedness for borrowed money of the
Borrower, and any Consent Subsidiary (including a Consent
10
Subsidiary listed in Schedule 1.01A) that at any time ceases to meet the test
set forth in clause (A) shall cease to be a Consent Subsidiary. No Subsidiary
shall be a Consent Subsidiary if it is a Guarantor or a Grantor under the Second
Lien Guarantee and Collateral Agreement or the Third Lien Collateral Agreement,
a US Guarantor under the European Guarantee and Collateral Agreement or a
Subsidiary Guarantor or Grantor Subsidiary Guarantor under the Junior Lien
Indenture or the 2006 Indenture.
"Consolidated Coverage Ratio" as of any date of determination means
the ratio of:
(1) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters ending prior to the date of
such determination for which financial statements have been filed with
the SEC to
(2) Consolidated Interest Expense for such four fiscal quarters;
provided, however, that:
(A) if the Borrower 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 Borrower 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 Borrower 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,
11
(C) if since the beginning of such period the Borrower 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 Borrower or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the
Borrower and its Restricted Subsidiaries in connection with such
Asset Disposition for such period (or, if the Capital Stock of
any Restricted Subsidiary is sold, the Consolidated Interest
Expense for such period directly attributable to the Indebtedness
of such Restricted Subsidiary to the extent the Borrower and its
continuing Restricted Subsidiaries are no longer liable for such
Indebtedness after such sale),
(D) if since the beginning of such period the Borrower 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 Borrower 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
Borrower 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
12
Borrower and shall comply with the requirements of Rule 11-02 of Regulation S-X,
as it may be amended or replaced from time to time, promulgated by the SEC.
If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest expense on such Indebtedness shall be
calculated as if the rate in effect on the date of determination had been the
applicable rate for the entire period (taking into account any Interest Rate
Agreement applicable to such Indebtedness if such Interest Rate Agreement has a
remaining term as at the date of determination in excess of 12 months). If any
Indebtedness is Incurred or repaid under a revolving credit facility and is
being given pro forma effect, the interest on such Indebtedness shall be
calculated based on the average daily balance of such Indebtedness for the four
fiscal quarters subject to the pro forma calculation.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Borrower and its Consolidated Restricted Subsidiaries,
plus, to the extent Incurred by the Borrower 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 Borrower 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 Borrower, in each case held by Persons other
than the Borrower or a Restricted Subsidiary;
(9) interest Incurred in connection with investments in
discontinued operations; and
13
(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
Borrower) in connection with Indebtedness Incurred by such plan or
trust;
and less, to the extent included in such total interest expense, (A) any
breakage costs of Hedging Obligations terminated in connection with the
Incurrence of Indebtedness on the 2006 Indenture 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 Restatement 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
Borrower and its Consolidated Subsidiaries for such period; provided, however,
that there shall not be included in such Consolidated Net Income:
(a) any net income of any Person (other than the Borrower) if such
Person is not a Restricted Subsidiary, except that:
(1) subject to the limitations contained in clause (d) below, the
Borrower'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 Borrower 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 (c) below);
(2) the Borrower'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
Borrower or a Restricted Subsidiary;
(b) any net income (or loss) of any Person acquired by the Borrower or
a Subsidiary of the Borrower in a pooling of interests transaction for any
period prior to the date of such acquisition;
(c) 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 Borrower (but, in the case of any Foreign Restricted
Subsidiary, only to the extent cash equal to such net income (or a portion
thereof) for such period is not readily procurable by the Borrower from
such Foreign Restricted Subsidiary (with the amount of cash readily
procurable from such Foreign Restricted Subsidiary being determined in good
faith by a Financial Officer of the Borrower) pursuant to intercompany
loans, repurchases of Capital Stock or otherwise), except that:
14
(1) subject to the limitations contained in clause (d) below, the
Borrower's equity in the net income of any such Restricted Subsidiary
for such period shall be included in such Consolidated Net Income up
to the aggregate amount of cash actually distributed by such
Restricted Subsidiary during such period to the Borrower 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
(2) the net loss of any such Restricted Subsidiary for such
period shall not be excluded in determining such Consolidated Net
Income;
(d) any gain (or loss) realized upon the sale or other disposition of
any asset of the Borrower 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;
(e) any extraordinary gain or loss;
(f) the effect of the 2006 strike, as disclosed in the Borrower's
filings with the SEC, which for purposes of determining Consolidated Net
Income shall be deemed to be (i) for the fiscal quarter ended December 31,
2006, a loss of operating income of $363,000,000, and (ii) for each fiscal
quarter thereafter, a loss of operating income in an amount determined by
the Borrower, provided that the aggregate amount of all such losses of
operating income for such fiscal quarters ended after December 31, 2006,
shall not exceed $250,000,000; and
(g) the cumulative effect of a change in accounting principles.
Notwithstanding the foregoing, for the purpose of Section 6.02 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 Borrower or a Restricted Subsidiary to the extent such dividends,
repayments or transfers increase the amount of Restricted Payments permitted
under Section 6.02(a)(3)(iv).
"Consolidated Revenue" means, for any period, the revenues for such
period, determined in accordance with GAAP, of the Borrower and the Subsidiaries
the accounts of which would be consolidated with those of the Borrower in the
Borrower's consolidated financial statements in accordance with GAAP.
"Consolidated Total Assets" means, at any date, the total assets,
determined in accordance with GAAP, of the Borrower and the Subsidiaries the
accounts of which would be consolidated with those of the Borrower in the
Borrower's consolidated financial statements in accordance with GAAP.
"Consolidation" means, unless the context otherwise requires, the
consolidation of (1) in the case of the Borrower, the accounts of each of the
Restricted
15
Subsidiaries with those of the Borrower 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 Borrower or any Restricted
Subsidiary in an Unrestricted Subsidiary will be accounted for as an investment.
The term "Consolidated" has a correlative meaning.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Documents" means this Agreement, the Issuing Bank Agreements,
any letter of credit applications referred to in Section 2.03(a), any promissory
notes delivered pursuant to Section 2.07(e), the Security Documents, the Lenders
Lien Subordination and Intercreditor Agreement and the Lien Subordination and
Intercreditor Agreement.
"Credit Exposure" means, with respect to any Lender at any time, the
sum of the outstanding principal amount of such Lender's Loans and such Lender's
LC Exposure at such time.
"Credit Facilities Agreements" means this Agreement, the Second Lien
Agreement and the European Facilities Agreement.
"Credit Party" means the Borrower, each Subsidiary Guarantor and each
Grantor.
"Currency Agreement" means with respect to any Person any foreign
exchange contract, currency swap agreement or other similar agreement or
arrangement to which such Person is a party or of which it is a beneficiary.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Designated Noncash Consideration" means noncash consideration
received by the Borrower or one of its Restricted Subsidiaries in connection
with an Asset Disposition that is designated by the Borrower 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 6.04.
"Dilution Factors" means, with respect to any period, the aggregate
amount recorded (in a manner consistent with current and historical accounting
practices of the Borrower) to reduce Eligible Accounts Receivable on account of
deductions, credit
16
memos (net of related re-bills), returns, incorrect billings, adjustments,
allowances, bad debt write-offs and other non-cash credits, in each case without
duplication of any amounts relating to reserves for volume rebates or cash
discounts or any other items that are included in the Accounts Receivable
Reserves for such period or excluded from the value of Eligible Accounts
Receivable pursuant to the definition thereof.
"Dilution Ratio" means, on any date, the amount (expressed as a
percentage) equal to (a) the aggregate amount of the applicable Dilution Factors
for the 12 most recently ended fiscal months divided by (b) total gross sales
for the 12 most recently ended fiscal months.
"Dilution Reserve" means, on any date, (a) the applicable Dilution
Ratio on such date minus 5% multiplied by (b) (i) Eligible Accounts Receivable
on such date minus (ii) the Accounts Receivable Reserves on such date.
"Disclosure Documents" means reports of the Borrower on Forms 10-K,
10-Q and 8-K, and any amendments thereto, that shall have been (i) filed with
the SEC on or prior to April 5, 2007, or (ii) filed with the SEC after such date
and prior to the Restatement Date and delivered to the Administrative Agent
prior to the date hereof.
"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:
(a) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise;
(b) is convertible or exchangeable for Indebtedness or Disqualified
Stock (excluding Capital Stock convertible or exchangeable solely at the
option of the Borrower 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
(c) is redeemable at the option of the holder thereof, in whole or in
part;
in the case of each of clauses (a), (b) and (c), on or prior to 180 days after
the Commitment Termination Date; 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 Commitment Termination Date
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 of the 2006 Indenture; provided further, however,
that if such Capital Stock is issued to any employee or to any plan for the
benefit of employees of the Borrower 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 Borrower in order to
satisfy applicable statutory
17
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 Agreement; 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.
"Documentation Agent" means each of Bank of America, N.A., BNP
Paribas, The CIT Group/Business Credit, Inc., General Electric Capital
Corporation, GMAC Commercial Finance LLC and Wells Fargo Foothill, in its
capacity as documentation agent hereunder.
"Dollar Equivalent" means, on any date of determination, (a) with
respect to any amount in dollars, such amount, and (b) with respect to any
amount in Canadian Dollars, Euros or Pounds Sterling, the equivalent in dollars
of such amount, determined by the Administrative Agent using the Exchange Rate
or the LC Exchange Rate, as applicable, with respect to Canadian Dollars, Euros
or Pounds Sterling, as the case may be, in effect for such amount on such date.
The Dollar Equivalent amount at any time of any Letter of Credit or LC
Disbursement denominated in Canadian Dollars, Euros or Pounds Sterling shall be
the amount most recently determined as provided in Section 1.03.
"dollars" or "$" refers to lawful money of the United States of
America.
"Domestic Subsidiary" means any Subsidiary that is not a Foreign
Subsidiary.
"EBITDA" means, for any period, the Consolidated Net Income for such
period, plus, without duplication, the following, to the extent deducted in
calculating such Consolidated Net Income:
(a) income tax expense of the Borrower and its Consolidated Restricted
Subsidiaries;
(b) Consolidated Interest Expense;
(c) depreciation expense of the Borrower and its Consolidated
Restricted Subsidiaries;
(d) amortization expense of the Borrower and its Consolidated
Restricted Subsidiaries (excluding amortization expense attributable to a
prepaid cash item that was paid in a prior period);
18
(e) cash restructuring charges; provided that the aggregate amount of
such cash restructuring charges incurred on or after the Restatement Date
that may be added back in determining EBITDA pursuant to this clause (e)
for all periods reported on during the term of this Agreement shall not
exceed $120,000,000; and
(f) all other noncash charges of the Borrower 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 Borrower and its Restricted
Subsidiaries 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 Borrower 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 Borrower 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 Restricted
Subsidiary, a corresponding amount of cash is readily procurable by the Borrower
from such Foreign Restricted Subsidiary (as determined in good faith by a
Financial Officer of the Borrower) pursuant to intercompany loans, repurchases
of Capital Stock or otherwise, provided that to the extent cash of such Foreign
Restricted Subsidiary provided the basis for including the net income of such
Foreign Subsidiary in Consolidated Net Income pursuant to clause (c) 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).
"EEMEA Subsidiary" means a Subsidiary (other than any Subsidiary of
the European JV) organized under the laws of any jurisdiction in Africa, Eastern
Europe (including each of Albania, Belarus, Bosnia and Herzegovina, Bulgaria,
Croatia, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Macedonia,
Moldova, Poland, Romania, Russia, Serbia and Montenegro, Slovakia, Slovenia, and
Ukraine) and the Middle East (including each of Bahrain, Egypt, Iran, Iraq,
Israel, Jordan, Kuwait, Lebanon, Palestine, Oman, Qatar, Saudi Arabia, Syria,
Turkey, the United Arab Emirates, and Yemen).
"Effective Advance Rate" means, on any date, the percentage equal to
the Inventory Advance Amount (as defined in the definition of "Borrowing Base")
on such date divided by the Inventory Value of all Inventory of the Borrower and
each other Grantor on such date.
"Effective Date" means April 8, 2005.
"Eligible Accounts Receivable" means, at the time of any
determination, each Account that satisfies the following criteria at the time of
such determination: such
19
Account (a) has been invoiced to, and represents the bona fide amounts due to
the Borrower or another Grantor from, the purchaser of goods or services, in
each case originated in the ordinary course of business of the Borrower or such
Grantor and (b) is not ineligible for inclusion in the calculation of the
Borrowing Base pursuant to any of clauses (i) through (xxii) below or otherwise
deemed by the Administrative Agent or the Majority Lenders in their discretion
(not to be exercised unreasonably) to be ineligible for inclusion in the
calculation of the Borrowing Base based on the results of collateral and
borrowing base evaluations and monitoring conducted by the Administrative Agent
and its designated representatives; any such decision by the Administrative
Agent or the Majority Lenders shall be made by written notice to the Borrower
setting forth in reasonable detail the basis for such decision, and shall become
effective for purposes of the first Borrowing Base Certificate that is delivered
pursuant to Section 5.09 at least five Business Days after the date of receipt
by the Borrower of such written notice. Without limiting the generality of the
foregoing, to qualify as Eligible Accounts Receivable an Account shall indicate
no Person other than the Borrower or another Grantor as payee or remittance
party. In determining the amount to be so included, the face amount of an
Account shall be reduced by, without duplication, to the extent not reflected in
such face amount, (a) the amount of all accrued and actual discounts, claims,
credits or credits pending, promotional program allowances, price adjustments,
finance charges or other allowances (including any amount that the Borrower or
another Grantor could reasonably be expected to be obligated to rebate to a
customer pursuant to the terms of any agreement or understanding (written or
oral)), in each case without duplication of any amounts that are included in the
Accounts Receivable Reserves or the Dilution Factors for such period, (b) the
aggregate amount of all limits and deductions provided for in this definition
and (c) the aggregate amount of all cash received in respect of such Account but
not yet applied by the Borrower or another Grantor to reduce the amount of such
Account. Standards of eligibility may be fixed from time to time by the
Administrative Agent or the Majority Lenders in their discretion (not to be
exercised unreasonably) based on the results of collateral and borrowing base
evaluations and monitoring conducted by the Administrative Agent and its
designated representatives. Any changes to such standards by the Administrative
Agent or the Majority Lenders shall be made by written notice to the Borrower
setting forth in reasonable detail the basis for such change, and shall become
effective for purposes of the first Borrowing Base Certificate that is delivered
pursuant to Section 5.09 at least five Business Days after the date of receipt
by the Borrower of such written notice. Unless otherwise approved from time to
time in writing by the Administrative Agent, an Account shall not be an Eligible
Account Receivable (or, in the case of clauses (vii) and (xv) below, the
affected portion of such Account shall be deemed not to be an Eligible Account
Receivable) if, without duplication:
(i) the Borrower or another Grantor does not have good and valid title
to such Account; or
(ii) such Account (x) is unpaid more than 60 days from the original
due date or (y) has been written off the books of the Borrower or another
Grantor or has been otherwise designated on such books as uncollectible; or
20
(iii) more than 50% in face amount of all Accounts of the same Account
Debtor (x) are unpaid more than 60 days from the original due date or (y)
have been written off the books of the Borrower or another Grantor or have
been otherwise designated on such books as uncollectible; or
(iv) the Account Debtor is insolvent or the subject of any bankruptcy
case or insolvency proceeding of any kind; or
(v) such Account is not payable in dollars and/or Canadian Dollars,
the Account Debtor is not located (or, for purposes of the Quebec Civil
Code, if applicable, its principal place of business or domicile is not
located) inside the United States or Canada, the Account Debtor does not
have significant assets inside the United States or Canada or the
enforceability of such Account is not governed by the laws of the United
States or Canada or any of their respective states, provinces, territories
or possessions or any political subdivision of any thereof; or
(vi) the Account Debtor is the United States of America or Canada or
any department, agency or instrumentality thereof, unless the Borrower or
the other applicable Grantor duly assigns its rights to payment of such
Account to the Administrative Agent pursuant to the Assignment of Claims
Act of 1940, as amended, or the Financial Administration Act (Canada), as
amended, as applicable, which assignment and related documents and filings
shall be in form and substance satisfactory to the Administrative Agent; or
(vii) to the extent of any security deposit, progress payment,
retainage or other similar advance made by or for the benefit of the
applicable Account Debtor to which such Account is subject; or
(viii) such Account (x) is not subject to a valid and perfected first
priority Lien in favor of the Administrative Agent for the benefit of the
Secured Parties to the extent that such a Lien may be perfected by filing
UCC financing statements or making such other personal property security
filings or registrations as may be required under the laws of the
applicable jurisdiction in which such Account Debtor is located or has its
principal place of business or domicile (for the purposes of the Quebec
Civil Code, if applicable), subject to no other Liens other than Permitted
Encumbrances or (y) does not otherwise conform in all material respects to
the applicable representations and warranties contained in the Credit
Documents; or
(ix) (x) such Account was invoiced or payment was received thereon (A)
in advance of goods or services provided or (B) more than once or (y) the
associated income has not been earned; or
(x) such Account is a note receivable or non-trade Account or relates
to payments for rent or interest; or
21
(xi) the sale to the Account Debtor is on a bill-and-hold, sale on
approval or consignment (it being understood and agreed that an Account
that arises in connection with a sale of such goods by the consignee
thereof shall not be deemed to be ineligible by reason of this clause (xi))
or other similar basis or made pursuant to any other agreement (other than
an ordinary course customer warranty) providing for repurchases or return
of any merchandise which has been claimed to be defective or otherwise
unsatisfactory; or
(xii) the goods giving rise to such Account have not been shipped and
title has not been transferred to the Account Debtor or such Account
represents a progress-billing; for purposes hereof, progress-billing means
any invoice for goods sold or leased or services rendered under a contract
or agreement pursuant to which the Account Debtor's obligation to pay such
invoice is conditioned upon the Borrower's or the other applicable
Grantor's completion of any further performance under such contract or
agreement; or
(xiii) such Account arises out of a sale made by the Borrower or
another Grantor to an Affiliate (other than an Eligible Affiliate) of the
Borrower or such Grantor; or
(xiv) such Account was created by the Borrower or another Grantor as a
new receivable for the unpaid portion of an outstanding Account; or
(xv) the Account Debtor (x) is a creditor, (y) has or has asserted a
right of set-off against the Borrower or another Grantor with respect to
such Account (unless such Account Debtor has entered into a written
agreement reasonably acceptable to the Administrative Agent to waive such
set-off rights) or (z) has disputed its liability (whether by chargeback,
dispute or otherwise) or made any asserted or unasserted claim with respect
to such Account or any other Account of the Borrower or such other Grantor
(as applicable) which has not been resolved, in each case, without
duplication, to the extent of the amount owed by the Borrower or such other
Grantor (as applicable) to the Account Debtor, the amount of such actual or
asserted right of set-off or the amount of such dispute or claim, as the
case may be; or
(xvi) such Account does not comply in all material respects with the
requirements of all applicable laws and regulations, whether Federal,
State, provincial, territorial or local, including the Federal Consumer
Credit Protection Act, the Federal Truth in Lending Act and Regulation Z of
the Board and applicable Canadian provincial consumer protection/cost of
credit disclosure legislation; or
(xvii) such Account is for goods that have been sold under a purchase
order or pursuant to the terms of a contract or other agreement or
understanding (written or oral) that indicates that any Person other than
the Borrower or another Grantor has or has had or has purported to have or
have had an ownership interest in such goods and in the Account resulting
from the sale of such goods; or
22
(xviii) such Account is an extended terms account, which is not due
and payable within 180 days from the original date of invoice; or
(xix) such Account is created on cash on delivery terms or is payment
for freight claims; or
(xx) to the extent that such Account has been reclassified, as a
result of a workout or other similar situation relating to the credit
worthiness of the applicable Account Debtor, from an account receivable to
a note receivable; or
(xxi) the Account Debtor has not been instructed by the Borrower or
any of the other Grantors to pay such Account directly into a Lockbox
Deposit Account in the Lockbox System; or
(xxii) such Account relates to the Retail Division, unless such
Account meets certain criteria and is deemed eligible by the Administrative
Agent in its sole discretion.
Notwithstanding the foregoing, at the time of any determination of
Eligible Accounts Receivable, an amount equal to all Eligible Accounts
Receivable of any single Account Debtor and its Affiliates which in the
aggregate exceed (a) 20% in respect of an Account Debtor that is rated
Investment Grade by either Moody's or Standard & Poor's or (b) 12% (15% in the
case of the company identified on Schedule 1.01D) in respect of any other
Account Debtor, in each case of the total amount of all Eligible Accounts
Receivable at such time of determination shall be deemed not to be Eligible
Accounts Receivable to the extent of such excess. In determining the aggregate
amount of Accounts from all Account Debtors that are unpaid more than 60 days
from the due date pursuant to clause (ii) above, any net credit balances
relating to Accounts of any Account Debtor that are unpaid for more than 60 days
from the due date shall not be included, to the extent such net credit balances
do not exceed the total Accounts (excluding any Accounts that are included in
the calculation of such net credit balances) that are unpaid from such Account
Debtor.
"Eligible Affiliate" means any Affiliate of the Borrower, provided
that (a) the Borrower or any of its other Affiliates does not Control such
Affiliate, (b) the Borrower and the Subsidiaries do not own, control or hold,
directly or indirectly, individually or in the aggregate, Capital Stock of such
Affiliate representing 50% or more of the equity or 50% or more of the voting
power or, in the case of a partnership, 50% or more of the general partnership
interests of such Affiliate, (c) the accounts of such Affiliate are not
consolidated with those of the Borrower in the Borrower's consolidated financial
statements (and are not required to be so consolidated in accordance with GAAP),
(d) each Account due to the Borrower or another Grantor from such Affiliate
requires payment for the goods sold or leased or the services rendered to such
Affiliate in cash and on terms that are no less favorable to the Borrower or
such Grantor, as the case may be, than those that could be obtained at such time
in arm's-length dealings with a Person who is not such an Affiliate and (e) such
Affiliate meets any other eligibility standard or requirement that is imposed by
the Administrative Agent or the Majority
23
Lenders in their discretion (not to be exercised unreasonably) based on the
results of collateral and borrowing base evaluations and monitoring conducted by
the Administrative Agent and its designated representatives; any changes to such
standards or requirements or the imposition of any additional standard or
requirement by the Administrative Agent or the Majority Lenders shall be made by
written notice to the Borrower setting forth in reasonable detail the basis for
such change or addition, and shall become effective for purposes of the first
Borrowing Base Certificate that is delivered pursuant to Section 5.09 at least
five Business Days after the date of receipt by the Borrower of such written
notice.
"Eligible Finished Goods" means, on any date, the Inventory Value of
all Eligible Inventory of the Borrower and each other Grantor defined as
Finished Goods by the Borrower on such date as shown on the Borrower's perpetual
inventory records in accordance with its current and historical accounting
practices.
"Eligible Inventory" means, at the time of any determination thereof,
without duplication, the Inventory Value of the Inventory of the Borrower and
each other Grantor at the time of such determination that is not ineligible for
inclusion in the calculation of the Borrowing Base pursuant to any of clauses
(a) through (n) below or otherwise deemed by the Administrative Agent or the
Majority Lenders in their discretion (not to be exercised unreasonably) to be
ineligible for inclusion in the calculation of the Borrowing Base based on the
results of collateral and borrowing base evaluations and monitoring conducted by
the Administrative Agent and its designated representatives; any such decision
by the Administrative Agent or the Majority Lenders shall be made by written
notice to the Borrower setting forth in reasonable detail the basis for such
decision, and shall become effective for purposes of the first Borrowing Base
Certificate that is delivered pursuant to Section 5.09 at least five Business
Days after the date of receipt by the Borrower of such written notice. Without
limiting the generality of the foregoing, to qualify as "Eligible Inventory" no
Person other than the Borrower or another Grantor shall have any direct or
indirect ownership, interest or title to such Inventory and no Person other than
the Borrower or another Grantor shall be indicated on any purchase order or
invoice with respect to such Inventory as having or purporting to have an
interest therein. Unless otherwise approved from time to time in writing by the
Administrative Agent, no Inventory shall be deemed Eligible Inventory to the
extent that such Inventory is accounted for in the Borrower's perpetual
inventory balance and, without duplication:
(a) it is not owned solely by the Borrower or another Grantor or the
Borrower or another Grantor does not have good and valid title thereto; or
(b) it is not located in the United States or Canada; or
(c) it (i) is not either (x) located on a Permitted Inventory Location
or (y) in transit from a Permitted Inventory Location to another Permitted
Inventory Location or (ii) is located at a dormant facility that is no
longer operated by the Borrower or another Grantor; or
24
(d) it is (i) goods returned or rejected by the Borrower's or another
Grantor's customers and is not saleable in the ordinary course of business
of the Borrower or another Grantor, (ii) Inventory in transit on the water
via ship or other marine vessel to the Borrower or another Grantor (outside
the United States or Canada), (iii) goods in transit from the Borrower or
another Grantor to customers of the Borrower or another Grantor, or (iv)
Inventory in transit to the Borrower or another Grantor from a third party
vendor; or
(e) it is Inventory (other than Raw Materials or Work in Process) not
sold in the ordinary course of business of the Borrower or another Grantor,
including engineering stores, miscellaneous supplies, packaging or shipping
materials, cartons, repair parts, fuel, labels, miscellaneous spare parts,
samples, prototypes, displays or display items; or
(f) it is not subject to a valid and perfected first priority Lien in
favor of the Administrative Agent for the benefit of the Secured Parties to
the extent that such a Lien may be perfected by filing UCC financing
statements or such other personal property security filings or
registrations as may be required under the laws of the applicable
jurisdiction in which such Inventory is located, subject to no other Liens
other than Permitted Encumbrances; or
(g) it is Work in Process, other than steel cord, that will be
reclassified as Raw Material prior to becoming Finished Goods; or
(h) it is consigned or at a customer location (other than Inventory
consigned to original equipment manufacturers at no more than 20 locations
in total, each of which has Inventory of the Borrower and the other
Grantors with an Inventory Value in excess of $300,000 and with respect to
which an Access Agreement has been obtained); or
(i) it is (i) being processed offsite at a third party processor at
premises neither reflected in the Rent Reserve nor subject to a Lien Waiver
or (ii) in transit to or from any such third party processor; or
(j) it is classified by the Borrower or another Grantor as "obsolete",
"unmerchantable" or "off spec without a ready market", or does not
otherwise conform in all material respects to the applicable
representations and warranties contained in the Credit Documents; or
(k) it is marked for return by the Borrower or another Grantor to the
vendor of such Inventory; or
(l) it does not meet in all material respects all materials standards
imposed by any Governmental Authority having regulatory authority over it;
or
(m) it is classified by the Borrower or another Grantor as casings
used for the retreading of commercial truck tires; or
25
(n) it is classified by the Borrower or another Grantor as "shipped
but not billed".
"Eligible Raw Materials" means, on any date, the Inventory Value of
all Eligible Inventory of the Borrower and each Grantor defined as Raw Materials
on such date as shown on the Borrower's perpetual inventory records in
accordance with its current and historical accounting practices.
"Eligible Work in Process" means, on any date, the Inventory Value of
all Eligible Inventory of the Borrower and each Grantor defined as Work in
Process on such date as shown on the Borrower's perpetual inventory records in
accordance with its current and historical accounting practices.
"Engineered Products Division" means those standard business units of
the Borrower and the other Grantors classified as "Engineered Products Division"
on the Borrower's perpetual inventory records.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the presence, the management or release of, or exposure to, any
Hazardous Materials or to health and safety matters.
"Environmental Liability" means all liabilities, obligations, damages,
losses, claims, actions, suits, judgments, orders, fines, penalties, fees,
expenses and costs (including administrative oversight costs, natural resource
damages and remediation costs), whether contingent or otherwise, arising out of
or relating to (a) compliance or non-compliance with any Environmental Law, (b)
the generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release of any Hazardous Materials or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower or any Subsidiary, is treated as
a single employer under Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder, with respect to any Plan
(other than an event for which the 30-day notice period is waived or an event
described in Section 4043.33 of Title 29 of the Code of Federal Regulations);
(b) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of
26
the Code or Section 302 of ERISA) as to which a waiver has not been obtained;
(c) the incurrence by the Borrower, a Subsidiary or any ERISA Affiliate of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(d) the treatment of a Plan amendment as a termination under Section 4041 of
ERISA; (e) any event or condition, other than the Transactions, that would be
materially likely to result in the termination of, or the appointment of a
trustee to administer, any Plan or Multiemployer Plan under Section 4042 of
ERISA; (f) the receipt by the Borrower, a Subsidiary or any ERISA Affiliate from
the PBGC or a plan administrator of any notice of an intention to terminate any
Plan or to appoint a trustee to administer any Plan; (g) the incurrence by the
Borrower, any Subsidiary or any ERISA Affiliate of any liability under Title IV
of ERISA with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (h) the receipt by the Borrower, any Subsidiary or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower, any Subsidiary or any ERISA Affiliate of any notice, concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA.
"Euro" or "E" means the lawful currency of the member states of the
European Union that have adopted a single currency in accordance with applicable
law or treaty.
"Euro Equivalent" means with respect to any monetary amount in a
currency other than Euros, at any time of determination thereof, the amount of
Euros obtained by converting such foreign currency involved in such computation
into Euros at the spot rate for the purchase of Euros with the applicable
foreign currency as published in The Wall Street Journal in the "Exchange Rates"
column under the heading "Currency Trading" on the date two Business Days prior
to such determination.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"European Bank Indebtedness" means any and all amounts payable under
or in respect of the European Facilities 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 Borrower, 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 Facilities Agreement" means the Amended and Restated Term
Loan and Revolving Credit Agreement dated as of the date hereof, among the
European JV, the other borrowers thereunder, certain lenders, certain issuing
banks, J.P. Morgan Europe Limited, as administrative agent, and JPMCB, as
collateral agent, as amended, restated, supplemented, waived, replaced (whether
or not upon termination, and whether with the original lenders or otherwise),
refinanced, restructured or otherwise modified
27
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 this Agreement, unless
otherwise agreed to by the Majority Lenders).
"European Guarantee and Collateral Agreement" means the amended and
restated Master Guarantee and Collateral Agreement among the Borrower, the
Subsidiaries party thereto and JPMCB, in its capacity as collateral agent under
the credit agreements described therein, dated as of April 8, 2005, as from time
to time amended, supplemented or otherwise modified (subject to any restrictions
on such amendments, supplements or modifications set forth herein).
"European JV" means Goodyear Dunlop Tires Europe B.V.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Exchange Rate" means, on any day, with respect to Canadian Dollars,
Euros or Pounds Sterling in relation to dollars, the rate at which such currency
may be exchanged into dollars, as set forth at approximately 12:00 noon, New
York City time, on such day on the Reuters World Currency Page for Canadian
Dollars, Euros or Pounds Sterling, as applicable. In the event that any such
rate does not appear on the applicable Reuters World Currency Page, the Exchange
Rate shall be determined by reference to such other publicly available service
for displaying exchange rates as may be agreed upon by the Administrative Agent
and the Borrower or, in the absence of such agreement, such Exchange Rate shall
instead be the arithmetic average of the spot rates of exchange of the
Administrative Agent, at or about 11:00 a.m., New York City time, on such date
for the purchase of dollars with Canadian Dollars, Euros or Pounds Sterling, as
the case may be, for delivery two Business Days later; provided that if at the
time of any such determination, for any reason, no such spot rate is being
quoted, the Administrative Agent, after consultation with the Borrower, may use
any reasonable method it deems appropriate to determine such rate, and such
determination shall be conclusive absent manifest error.
"Excluded Subsidiary" means any Subsidiary with only nominal assets
and no operations. No Subsidiary shall be an Excluded Subsidiary if it is a
Guarantor or a Grantor under the Second Lien Guarantee and Collateral Agreement
or the Third Lien Collateral Agreement or a US Guarantor under the European
Guarantee and Collateral Agreement or a Subsidiary Guarantor or Grantor
Subsidiary Guarantor under the Junior Lien Indenture or the 2006 Indenture.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, any Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States or any similar tax imposed by
28
any other jurisdiction described in clause (a) above and (c) (i) any withholding
tax that is imposed by the United States on amounts payable to a Foreign Lender
(other than an assignee pursuant to a request by the Borrower under Section
2.16(b)) at the time such Foreign Lender first becomes a party to this Agreement
(or designates a new lending office), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.14(a) or
(ii) any withholding tax that is imposed by the United States on amounts payable
to a Foreign Lender that is attributable to such Foreign Lender's failure to
comply with Section 2.14(e).
"Existing Credit Agreement" means the First Lien Credit Agreement
dated as of April 8, 2005, among the Borrower, the lenders party thereto, the
issuing banks party thereto, the documentation agents party thereto, Citicorp
USA, Inc., as syndication agent, and JPMCB, as administrative agent and
collateral agent.
"Existing Letters of Credit" means each letter of credit outstanding
as a "Letter of Credit" as of the Restatement Date under the Existing Credit
Agreement, each of which is set forth on Schedule 2.03.
"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 Agreement, determined in good faith by a
Financial Officer of the Borrower 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 Agreement 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.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or any assistant treasurer of the Borrower, or any
senior vice president or higher ranking executive to whom any of the foregoing
report.
"Finished Goods" means completed goods that require no additional
processing or manufacturing to be sold by the Borrower or another Grantor in the
ordinary course of business.
29
"First Lien Agreement" means this Agreement, the Amended and Restated
First Lien Credit Agreement dated as of the date hereof, among the Borrower,
certain lenders, certain issuing banks, Citicorp USA, Inc., as syndication
agent, and JPMCB, as administrative agent, 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.
"Foreign Lender" means any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States, each State thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Pledge Agreement" means a pledge agreement securing the
Obligations or any of them that is governed by the law of a jurisdiction other
than the United States and reasonably satisfactory in form and substance to the
Collateral Agent.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary that
is not organized under the laws of the United States or any State thereof or the
District of Columbia, other than Goodyear Canada.
"Foreign Subsidiary" means any Subsidiary organized under the laws of
a jurisdiction other than the United States or any of its territories or
possessions or any political subdivision thereof.
"GAAP" means generally accepted accounting principles in the United
States.
"Goodyear Canada" means Goodyear Canada Inc., an Ontario corporation,
and its successors and permitted assigns.
"Governmental Authority" means the government of the United States,
Canada, any other nation or any political subdivision thereof, whether state,
provincial, territorial or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"Grantors" means the Borrower and each North American Subsidiary that
is, or is required pursuant to Section 5.08 to become, a Grantor (as defined in
the Guarantee and Collateral Agreement) and, if applicable, a party to any
Canadian Security Agreement.
"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
30
purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise) or
(2) entered into for purposes of assuring in any other manner the
obligee of such Indebtedness of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning. The term "Guarantor" shall mean any
Person Guaranteeing any obligation.
"Guarantee and Collateral Agreement" means the Guarantee and
Collateral Agreement among the Borrower, the Subsidiary Guarantors, the
Grantors, certain other Subsidiaries and the Collateral Agent, dated as of April
8, 2005, as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein).
"Hazardous Materials" means (a) petroleum products and byproducts,
asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, radon
gas, chlorofluorocarbons and all other ozone-depleting substances; and (b) any
pollutant or contaminant or any hazardous, toxic, radioactive or otherwise
regulated chemical, material, substance or waste that is prohibited, limited or
regulated pursuant to any applicable Environmental Law.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement, Currency Agreement or raw
materials hedge agreement.
"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;
31
(3) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, bankers' acceptance, bank guarantee
or similar credit transaction (other than obligations with respect to
letters of credit or bank guarantees 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 or bank guarantees 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 or bank
guarantee);
(4) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables), which
purchase price is due more than six months after the date of placing
such property in service or taking delivery and title thereto or the
completion of such services;
(5) all Capitalized Lease Obligations and all Attributable Debt
of such Person;
(6) the amount of all obligations of such Person with respect to
the redemption, repayment or other repurchase of any Disqualified
Stock or, with respect to any Subsidiary of such Person, any Preferred
Stock (but excluding, in each case, any accrued and unpaid dividends);
(7) all Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by
such Person; provided, however, that the amount of Indebtedness of
such Person shall be the lesser of:
(A) the Fair Market Value of such asset at such date of
determination and
(B) the amount of such Indebtedness of such other Persons;
(8) Hedging Obligations of such Person; and
(9) all obligations of the type referred to in clauses (1)
through (8) of other Persons for the payment of which such Person is
responsible or liable, directly or indirectly, as obligor, guarantor
or otherwise, including by means of any Guarantee.
Notwithstanding the foregoing, in connection with the purchase by the
Borrower 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
32
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.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning set forth in Section 9.03.
"Information" has the meaning set forth in Section 9.12.
"Intellectual Property" has the meaning set forth in the Guarantee and
Collateral Agreement.
"Intercompany Items" means obligations owed by the Borrower or any
Subsidiary to the Borrower or any other Subsidiary.
"Interest Election Request" means a request by the Borrower to convert
or continue a Borrowing in accordance with Section 2.05 in substantially the
form of Exhibit B hereto.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December and (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter or ending on the same day of the week that is one, two or three weeks
thereafter, as the Borrower may elect; provided that (i) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (ii) any Interest Period
pertaining to a Eurodollar Borrowing that commences on the last Business Day of
a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and, in the case of a Borrowing, thereafter shall be the
effective date of the most recent conversion or continuation of such Borrowing.
33
"Interest Rate Agreement" means, with respect to any Person, any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement to which such Person is a party or of
which it is a beneficiary.
"Inventory" has the meaning specified in the UCC.
"Inventory Reserves" means, on any date, an amount equal to the sum of
the following reserves maintained on the Borrower's general ledger (calculated
in each case in accordance with the current and historical accounting practices
of the Borrower) with respect to Eligible Inventory, without duplication of any
deductions made pursuant to the definitions of "Additional Inventory Reserves,"
"Eligible Inventory" and "Inventory Value":
(a) a reserve for Inventory that is damaged;
(b) a revaluation reserve to reflect capitalized manufacturing
variances whereby aggregate net variances (if favorable) shall be deducted
from Eligible Inventory and aggregate net variances (if unfavorable) shall
not be added to Eligible Inventory;
(c) a reserve equal to the aggregate Inventory Value of Eligible
Inventory attributable to intercompany or intracompany profit among the
Borrower and its Affiliates (other than Eligible Affiliates); and
(d) a lower of cost or market reserve for any differences between the
Borrower's actual cost to produce versus the Borrower's sale price to third
parties, determined on a product line basis.
"Inventory Value" means, with respect to any Inventory of the Borrower
or any other Grantor at the time of any determination thereof, an amount equal
to such Inventory carried on the perpetual inventory records of the Borrower
stated on a basis consistent with its current and historical accounting
practices, in dollars, determined in accordance with the standard cost method of
accounting, which shall be, in the case of Inventory imported by the Borrower or
another Grantor into the United States of America or Canada, the acquisition
cost thereof plus transportation and freight charges plus import duties.
"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 6.02:
(1) "Investment" shall include the portion (proportionate to the
Borrower's equity interest in such Subsidiary) of the Fair Market
Value of
34
the net assets of any Subsidiary of the Borrower 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 Borrower shall be deemed to continue to have a
permanent "Investment" in an Unrestricted Subsidiary in an amount (if
positive) equal to:
(A) the Borrower's "Investment" in such Subsidiary at the
time of such redesignation less
(B) the portion (proportionate to the Borrower'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 Borrower 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" means, in the case of Moody's, a credit rating of
Baa3 or better and, in the case of Standard & Poor's, a credit rating of BBB- or
better.
"Issuing Bank" means JPMCB, Bank of America, BNP Paribas, Citicorp
USA, Inc., Deutsche Bank AG, New York Branch, and any other financial
institution that has entered into an Issuing Bank Agreement, each in its
capacity as an issuer of Letters of Credit hereunder, and its successors in such
capacity as provided in Section 2.03(i). Each Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by Affiliates
or branches of such Issuing Bank, in which case the term "Issuing Bank" shall
include any such Affiliate or branch with respect to Letters of Credit issued by
such Affiliate or branch.
"Issuing Bank Agreement" means an agreement in form reasonably
satisfactory to the Borrower, the Administrative Agent and a financial
institution pursuant to which such financial institution agrees to act as an
Issuing Bank hereunder.
"JPMCB" means JPMorgan Chase Bank, N.A., and its successors.
"Junior Lien Indenture" means the Indenture dated as of March 12,
2004, among the Borrower, the subsidiary guarantors party thereto and Wells
Fargo Bank, N.A., as trustee.
"LC Commitment" means, as to any Issuing Bank, the maximum permitted
amount of the LC Exposure that may be attributable to Letters of Credit issued
by such Issuing Bank, as set forth in such Issuing Bank's Issuing Bank
Agreement.
35
"LC Disbursement" means a payment made by any Issuing Bank pursuant to
a Letter of Credit. The amount of any LC Disbursement made by an Issuing Bank in
Canadian Dollars, Euros or Pounds Sterling and not reimbursed by the Borrower
shall be determined as set forth in paragraph (e) or (l) of Section 2.03, as
applicable.
"LC Exchange Rate" means, on any day, with respect to dollars in
relation to Canadian Dollars, Euros or Pounds Sterling, the rate at which
dollars may be exchanged into such currency, as set forth at approximately 12:00
noon, New York City time, on such day on the applicable Reuters World Currency
Page. In the event that any such rate does not appear on the applicable Reuters
World Currency Page, the LC Exchange Rate shall be determined by reference to
such other publicly available service for displaying exchange rates as may be
agreed upon by the Administrative Agent and the Borrower or, in the absence of
such agreement, such LC Exchange Rate shall instead be the arithmetic average of
the spot rates of exchange of the Administrative Agent, at or about 11:00 a.m.,
New York City time, on such date for the purchase of Canadian Dollars, Euros or
Pounds Sterling, as the case may be, with dollars for delivery two Business Days
later; provided that if at the time of any such determination, for any reason,
no such spot rate is being quoted, the Administrative Agent, after consultation
with the Borrower, may use any reasonable method it deems appropriate to
determine such rate, and such determination shall be conclusive absent manifest
error.
"LC Exposure" means, at any time, the sum of (a) the aggregate amount
of the Dollar Equivalents of the undrawn amounts of all outstanding Letters of
Credit at such time plus (b) the aggregate amount of the Dollar Equivalents of
all LC Disbursements that have not yet been reimbursed by or on behalf of the
Borrower at such time (by the borrowing of Loans or otherwise). The LC Exposure
of any Lender at any time shall be its Applicable Percentage of the total LC
Exposure at such time.
"LC Participation Calculation Date" means, with respect to any LC
Disbursement made in a currency other than dollars, (a) the date on which the
Issuing Bank shall advise the Administrative Agent that it purchased with
dollars the currency used to make such LC Disbursement, or (b) if the Issuing
Bank shall not advise the Administrative Agent that it made such a purchase, the
date on which such LC Disbursement is made.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption.
"Lenders Lien Subordination and Intercreditor Agreement" means the
Lenders Lien Subordination and Intercreditor Agreement between the Collateral
Agent and the collateral agent under the Second Lien Agreement, dated as of
April 8, 2005, as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein).
36
"Letter of Credit" means each Existing Letter of Credit and any letter
of credit issued pursuant to this Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Jones Market Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason with respect to any Eurodollar Borrowing,
then the "LIBO Rate" with respect to such Eurodollar Borrowing for such Interest
Period shall be the rate (rounded upwards, if necessary, to the next 1/100 of
1%) at which dollar deposits of $5,000,000 and for a maturity comparable to such
Interest Period are offered by the principal London office of the Administrative
Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, French delegation of claims, lien, pledge, hypothecation, encumbrance,
charge or security interest in, on or of such asset, and (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset.
"Lien Subordination and Intercreditor Agreement" means the Lien
Subordination and Intercreditor Agreement dated as of March 12, 2004, among the
Collateral Agent, Wilmington Trust Company, the Borrower and the Subsidiary
Guarantors.
"Lien Waiver" means a written waiver of statutory or contractual Liens
on Inventory for unpaid rent or charges of a warehouseman or bailee in form and
substance reasonably satisfactory to the Administrative Agent.
"Loan" means a Loan made pursuant to Section 2.01(a).
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Lockbox Agreements" has the meaning assigned to such term in the
Guarantee and Collateral Agreement.
"Lockbox Deposit Account" has the meaning assigned to such term in the
Guarantee and Collateral Agreement.
37
"Lockbox Deposit Account Institution" has the meaning assigned to such
term in the Guarantee and Collateral Agreement.
"Lockbox System" has the meaning assigned to such term in the
Guarantee and Collateral Agreement.
"Majority Lenders" means, at any time, Lenders having aggregate Credit
Exposures and unused Commitments representing at least a majority of the sum of
the total Credit Exposures and unused Commitments at such time.
"Material Adverse Change" means a material adverse change in or effect
on (a) the business, operations, properties, assets or financial condition
(including as a result of the effects of any contingent liabilities thereon) of
the Borrower and the Subsidiaries, taken as a whole, (b) the ability of the
Credit Parties, taken as a whole, to perform obligations under this Agreement
and the other Credit Documents that are material to the rights or interests of
the Lenders or (c) the rights of or benefits available to the Lenders or the
Issuing Banks under this Agreement and the other Credit Documents that are
material to the interests of the Lenders or the Issuing Banks.
"Material Foreign Subsidiary" means, at any time, each Foreign
Subsidiary that had Total Assets with an aggregate book value in excess of
$50,000,000 as of December 31, 2006, or if later, as of the end of the most
recent fiscal quarter for which financial statements have been delivered (or
deemed delivered) pursuant to Section 5.01(a) or (b).
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Swap Agreements, of
any one or more of the Borrower and the Subsidiaries in an aggregate principal
amount exceeding $100,000,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of the Borrower or any
Subsidiary in respect of any Swap Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that the Borrower or
such Subsidiary would be required to pay if such Swap Agreement were terminated
at such time, calculated in accordance with the terms of such Swap Agreement.
"Material Intellectual Property" means all Intellectual Property of
the Borrower and the Grantors, other than Intellectual Property that in the
aggregate is not material to the business of the Borrower and the Subsidiaries,
taken as a whole.
"Material Subsidiary" means, at any time, each Subsidiary other than
Subsidiaries that do not represent more than 5% for any such individual
Subsidiary, or more than 10% in the aggregate for all such Subsidiaries, of
either (a) Consolidated Total Assets or (b) Consolidated Revenue for the period
of four fiscal quarters most recently ended.
"Moody's" means Moody's Investors Service, Inc., or any successor
thereto.
38
"Mortgage" means a mortgage or deed of trust, assignment of leases and
rents, or other security documents reasonably satisfactory in form and substance
to the Collateral Agent granting a Lien on any Mortgaged Property to secure the
Obligations, and shall include each amendment and restatement of any existing
Mortgage in connection with the amendment and restatement of the Existing Credit
Agreement.
"Mortgaged Property" means, at any time, each parcel of real property
listed in Schedule 1.01B and the improvements thereto.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"NAIC" means the National Association of Insurance Commissioners.
"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 Borrower or any Restricted Subsidiary
after such Asset Disposition (but only for so long as such reserve is
maintained).
"Net Cash Proceeds" means, with respect to any issuance or sale of
Capital Stock, the cash proceeds of such issuance or sale net of attorneys'
fees,
39
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.
"Net Intercompany Items" means, in the case of any Subsidiary, (a) the
aggregate amount of the Intercompany Items owed by the Borrower or any other
Subsidiary to such Subsidiary minus (b) the aggregate amount of the Intercompany
Items owed by such Subsidiary to the Borrower or any other Subsidiary.
"North American Subsidiary" means any Subsidiary organized under the
laws of the United States or Canada or any of their respective states,
provinces, territories or possessions or any political subdivision of any
thereof.
"North American Tire Division" means those standard business units of
the Borrower and the other Grantors classified as "North American Tire Division"
on the Borrower's perpetual inventory records.
"Obligations" means (a) the due and punctual payment of (i) the
principal of and interest (including interest accruing during the pendency of
any bankruptcy, insolvency, receivership or other similar proceeding, regardless
of whether allowed or allowable in such proceeding) on the Loans, when and as
due, whether at maturity, by acceleration, upon one or more dates set for
prepayment or otherwise, (ii) each payment required to be made by the Borrower
under this Agreement in respect of any Letter of Credit, when and as due,
including payments in respect of reimbursements of LC Disbursements and interest
thereon and (iii) all other monetary obligations of the Credit Parties to any of
the Secured Parties under this Agreement and each of the other Credit Documents,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), and
(b) the due and punctual performance of all other obligations of the Credit
Parties to any of the Secured Parties under this Agreement and the other Credit
Documents.
"Other Taxes" means any and all present or future stamp, documentary,
excise, recording, transfer, sales, property or similar taxes, charges or levies
arising from any payment made under any Credit Document or from the execution,
delivery or enforcement of, or otherwise with respect to, any Credit Document.
"Participant" has the meaning assigned to such term in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Business" means any business engaged in by the Borrower or
any Restricted Subsidiary on the Restatement Date and any Related Business.
40
"Permitted Encumbrances" means:
(a) (i) Liens imposed by law for taxes that are not yet due or are
being contested and (ii) deemed trusts and Liens to which the Priority
Payables Reserve relates for taxes, assessments or other charges or levies
that are not yet due and payable;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other Liens imposed by law, arising in the ordinary course of business
and securing obligations that are not overdue by more than 30 days (or any
longer grace period available under the terms of the applicable underlying
obligation) or are being contested;
(c) Liens created and pledges and deposits made (including cash
deposits to secure obligations in respect of letters of credit provided) in
the ordinary course of business in compliance with workers' compensation,
unemployment insurance and other social security laws or regulations;
(d) Liens created and deposits made to secure the performance of bids,
trade contracts, leases, statutory obligations, appeal bonds, performance
bonds and other obligations of a like nature, in each case in the ordinary
course of business, and Liens created and deposits made prior to March 31,
2003 in the ordinary course of business to secure the performance of surety
bonds;
(e) judgment liens; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property and other Liens incidental to the conduct of
business or ownership of property that arise automatically by operation of
law or arise in the ordinary course of business and that do not materially
detract from the value of the property of the Borrower and the Subsidiaries
or of the Collateral, in each case taken as a whole, or materially
interfere with the ordinary conduct of business of the Borrower and the
Subsidiaries, taken as a whole, or otherwise adversely affect in any
material respect the rights or interests of the Lenders;
provided that (except as provided in clause (d) above) the term "Permitted
Encumbrances" shall not include any Lien securing Indebtedness for borrowed
money.
"Permitted Inventory Location" means (a) property owned or leased by
the Borrower or a Grantor in the United States of America or Canada or (b) a
third party warehouse or dock in the United States of America or Canada where
Inventory of the Borrower or any Grantor is stored.
"Permitted Investment" means an Investment by the Borrower or any
Restricted Subsidiary in:
(1) the Borrower, a Restricted Subsidiary or a Person that will,
upon the making of such Investment, become a Restricted Subsidiary;
41
(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 Borrower or a Restricted
Subsidiary;
(3) Temporary Cash Investments;
(4) receivables owing to the Borrower 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 Borrower 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 Borrower 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
Borrower or any Restricted Subsidiary or in satisfaction of judgments;
(8) any Person to the extent such Investment represents the non
cash portion of the consideration received for an Asset Disposition
that was made pursuant to and in compliance with Section 6.04;
(9) a Receivables Entity or any Investment by a Receivables
Entity in any other Person in connection with a Qualified Receivables
Transaction, including Investments of funds held in accounts permitted
or required by the arrangements governing such Qualified Receivables
Transaction or any related Indebtedness; provided, however, that any
Investment in a Receivables Entity is in the form of a Purchase Money
Note, contribution of additional receivables or an equity interest;
(10) any Person to the extent such Investments consist of prepaid
expenses, negotiable instruments held for collection and lease,
utility and workers' compensation, performance and other similar
deposits made in the ordinary course of business by the Borrower or
any Restricted Subsidiary;
(11) any Person to the extent such Investments consist of Hedging
Obligations otherwise permitted under Section 6.01;
42
(12) any Person to the extent such Investment in such Person
existed on the Restatement 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 6.02(a)(3)(iv)(x) that were excluded by
operation of the proviso in Section 6.02(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 Borrower as of
the end of the most recent fiscal quarter for which financial
statements of the Borrower have been filed with the SEC.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV or Section 302 of
ERISA or Section 412 of the Code, and in respect of which the Borrower, any
Subsidiary or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Pounds Sterling" or "L" means the lawful currency of the United
Kingdom.
"Preferred Stock," as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated) that is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over shares of Capital Stock of any other class of such Person.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMCB (or any successor Administrative Agent appointed or
chosen pursuant to Article VIII hereof) as its prime rate in effect at its
principal office in New York City. Each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
43
"Principal Issuing Bank" means JPMCB and any other Issuing Bank whom
the Borrower and JPMCB agree will be a Principal Issuing Bank (or any of their
Affiliates that shall act as Issuing Banks hereunder).
"Priority Payables Reserve" means, at any time, the sum of, without
duplication of any deductions made pursuant to the definitions of "Additional
Inventory Reserves", "Inventory Reserves", "Eligible Inventory" and "Inventory
Value", and the full amount of the liabilities at such time which have a trust
imposed to provide for payment thereof or a security interest, Lien or charge
ranking or capable of ranking, in each case senior to or pari passu with the
Liens created under the Security Documents under Canadian federal, provincial,
territorial, county, municipal or local law with respect to claims for goods and
services taxes, sales tax, income tax, workers' compensation obligations,
vacation pay or pension fund obligations.
"Purchase Money Indebtedness" means Indebtedness:
(1) consisting of the deferred purchase price of property, plant
and equipment, conditional sale obligations, obligations under any
title retention agreement and other obligations Incurred in connection
with the acquisition, construction or improvement of such asset, in
each case where the amount of such Indebtedness does not exceed the
greater of (A) the cost of the asset being financed and (B) the Fair
Market Value of such asset; and
(2) Incurred to finance such acquisition, construction or
improvement by the Borrower 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 Borrower or any
Subsidiary of the Borrower 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).
44
"Qualified Receivables Transaction" means any transaction or series of
transactions that may be entered into by the Borrower or any of its Subsidiaries
pursuant to which the Borrower or any of its Subsidiaries may sell, convey or
otherwise transfer to:
(1) a Receivables Entity (in the case of a transfer by the
Borrower 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 Borrower 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 Borrower); and provided further, however, that no such
transaction or series of transactions shall be a Qualified Receivables
Transaction if any of the accounts receivable subject thereto is or would absent
such transaction or series of transactions otherwise be subject to a Lien
securing any U.S. Bank Indebtedness.
The grant of a security interest in any accounts receivable of the
Borrower or any of its Restricted Subsidiaries to secure Bank Indebtedness shall
not be deemed a Qualified Receivables Transaction.
"Raw Material" means Inventory used or consumed in the manufacturing
or processing of goods to be sold by the Borrower or another Grantor in the
ordinary course of business that is not yet included in Work in Process.
"Reaffirmation Agreement" shall mean the Reaffirmation of Guarantee
and Security Documents substantially in the form of Exhibit H, among the Credit
Parties and the Collateral Agent, pursuant to which the Credit Parties shall
reaffirm their obligations under the Guarantee and Collateral Agreement and the
Security Documents to which they are a party.
"Receivables Entity" means a (a) Wholly Owned Subsidiary of the
Borrower which is a Restricted Subsidiary and 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 Borrower 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
45
(A) is Guaranteed by the Borrower or any Subsidiary of the
Borrower (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 Borrower or any
Subsidiary of the Borrower in any way other than pursuant to
Standard Securitization Undertakings; or
(C) subjects any property or asset of the Borrower or any
Subsidiary of the Borrower, directly or indirectly, contingently
or otherwise, to the satisfaction thereof, other than pursuant to
Standard Securitization Undertakings;
(2) which is not an Affiliate of the Borrower or with which
neither the Borrower nor any Subsidiary of the Borrower has any
material contract, agreement, arrangement or understanding other than
on terms which the Borrower reasonably believes to be no less
favorable to the Borrower or such Subsidiary than those that might be
obtained at the time from Persons that are not Affiliates of the
Borrower; and
(3) to which neither the Borrower nor any Subsidiary of the
Borrower 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 Administrative Agent by filing with the Administrative Agent a certified
copy of the resolution of the Board of Directors giving effect to such
designation and a certificate of a Financial Officer certifying that such
designation complied with the foregoing conditions.
"Recovery Rate" means (a) the estimated net recovery of all Inventory
of the Borrower and the other Grantors stated in dollars as determined on a net
orderly liquidation basis by the most recent analysis conducted by outside
inventory consultants/appraisers retained or approved by the Administrative
Agent and disclosed to the Borrower divided by (b) the Inventory Value of all
Inventory of the Borrower and each other Grantor as of the date of such most
recent analysis.
"Reference Date" means March 12, 2004.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in 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
46
Indebtedness of the Borrower or any Restricted Subsidiary existing on the
Restatement Date or Incurred in compliance with this Agreement (including
Indebtedness of the Borrower 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 6.01) (plus fees and expenses, including any
premium and defeasance costs);
(4) if the Indebtedness being Refinanced is subordinated in right
of payment to the Obligations, such Refinancing Indebtedness is
subordinated in right of payment to the Obligations at least to the
same extent as the Indebtedness being Refinanced; and
(5) if Incurred by the Borrower or any Domestic Subsidiary, the
Refinancing Indebtedness is not secured by Liens on any assets other
than the assets that secured the Indebtedness being refinanced, and
any such Liens have no greater priority than the Liens securing 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
Borrower; or
(B) Indebtedness of the Borrower or a Restricted Subsidiary
that Refinances Indebtedness of an Unrestricted Subsidiary.
"Register" has the meaning set forth in Section 9.04.
"Related Business" means any business reasonably related, ancillary or
complementary to the business of the Borrower and its Restricted Subsidiaries on
the Restatement Date.
47
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents,
counsel, trustees and other advisors of such Person and such Person's
Affiliates.
"Rent Reserve" means, on any date, with respect to any retail store,
distribution center, warehouse, manufacturing facility or other Permitted
Inventory Location where any Eligible Inventory that is subject to Liens arising
by operation of law is located and with respect to which no Lien Waiver is in
effect, a reserve equal to three months' rent and charges at such retail store,
distribution center, warehouse, manufacturing facility or other Permitted
Inventory Location.
"Restatement Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Restatement Date Perfection Certificate" means a certificate in the
form of Exhibit G or any other form approved by the Collateral Agent.
"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 Borrower 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 Borrower or a Restricted Subsidiary (and, if such
Restricted Subsidiary has Capital Stock held by Persons other than the
Borrower 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
Borrower held by any Person (other than the Borrower or a Restricted
Subsidiary) or any Capital Stock of a Restricted Subsidiary held by
any affiliate of such Person (other than by a Restricted Subsidiary)
(other than in exchange for Capital Stock of the Borrower that is not
Disqualified Stock);
(3) the Purchase for value, prior to scheduled maturity, any
scheduled repayment or any scheduled sinking fund payment, of 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.
48
"Restricted Subsidiary" means any Subsidiary of the Borrower other
than an Unrestricted Subsidiary.
"Retail Division" means those standard business units of the Borrower
and the other Grantors classified as "Retail Division" on the Borrower's
perpetual inventory records.
"Sale/Leaseback Transaction" means an arrangement relating to
property, plant and equipment now owned or hereafter acquired by the Borrower or
a Restricted Subsidiary whereby the Borrower or a Restricted Subsidiary
transfers such property to a Person and the Borrower or such Restricted
Subsidiary leases it from such Person, other than (i) leases between the
Borrower and a Restricted Subsidiary or between Restricted Subsidiaries or (ii)
any such transaction entered into with respect to any property, plant and
equipment or any improvements thereto at the time of, or within 180 days after,
the acquisition or completion of construction of such property, plant and
equipment or such improvements (or, if later, the commencement of commercial
operation of any such property, plant and equipment), as the case may be, to
finance the cost of such property, plant and equipment or such improvements, as
the case may be.
"SEC" means the Securities and Exchange Commission.
"Second Lien Agreement" means the Amended and Restated Second Lien
Credit Agreement dated as of the date hereof, among the Borrower, certain
lenders and JPMCB, as administrative agent, 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 this Agreement, unless otherwise agreed to
by the Majority Lenders).
"Second Lien Guarantee and Collateral Agreement" means the Guarantee
and Collateral Agreement among the Borrower, the Subsidiary Guarantors, the
Grantors, certain other Subsidiaries and the collateral agent under the Second
Lien Agreement, dated as of April 8, 2005, as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein).
"Second Lien Indebtedness" means any and all amounts payable under or
in respect of the Second Lien 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 Borrower 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.
49
"Secured Indebtedness" means any Indebtedness of the Borrower secured
by a Lien. "Secured Indebtedness" of a Subsidiary has a correlative meaning.
"Secured Parties" means the Administrative Agent, each Issuing Bank,
the Collateral Agent and each Lender.
"Security Documents" means the Reaffirmation Agreement, the Guarantee
and Collateral Agreement, the Foreign Pledge Agreements, the Canadian Security
Agreements, the Mortgages and each other instrument or document delivered in
connection with the cash collateralization of Letters of Credit or pursuant to
Section 5.08, in each case to secure any of the Obligations.
"Senior Indebtedness" of the Borrower 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 Borrower 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, Indebtedness under the 2006 Indenture (in the case of the
Borrower) and Guarantees thereof (in the case of the Subsidiary Guarantors) and
all other Indebtedness of the Borrower or any Subsidiary Guarantor, as
applicable, whether outstanding on the 2006 Indenture 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 Indebtedness under the 2006 Indenture or
such Subsidiary Guarantor's Guarantee thereof, as applicable; provided, however,
that Senior Indebtedness of the Borrower or any Subsidiary Guarantor shall not
include: (a) any obligation of the Borrower to any Subsidiary of the Borrower or
of such Subsidiary Guarantor to the Borrower or any other Subsidiary of the
Borrower; (b) any liability for Federal, state, local or other taxes owed or
owing by the Borrower or such Subsidiary Guarantor, as applicable; (c) any
accounts payable or other liability to trade creditors arising in the ordinary
course of business (including Guarantees thereof or instruments evidencing such
liabilities); (d) any Indebtedness or obligation of the Borrower (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
Borrower or such Subsidiary Guarantor, as applicable, including any Subordinated
Obligations (as defined in the 2006 Indenture) of the Borrower or such
Subsidiary Guarantor, as applicable; (e) any obligations with respect to Capital
Stock; or (f) any Indebtedness Incurred in violation of this Agreement.
"Senior Subordinated-Lien Collateral Agent" means, as to any Senior
Subordinated-Lien Indebtedness, the collateral agent under the applicable Senior
Subordinated-Lien Indebtedness Security Documents.
"Senior Subordinated-Lien Governing Documents" means each Indenture or
other agreement or instrument providing for the issuance or setting forth the
terms of any Senior Subordinated-Lien Indebtedness.
50
"Senior Subordinated-Lien Indebtedness" means Indebtedness of the
Borrower that (a) is secured by Liens permitted under Section 6.06(b), but that
is not secured by Liens on any additional assets, (b) constitutes Initial Junior
Indebtedness or Designated Junior Obligations under and as defined in the Lien
Subordination and Intercreditor Agreement, and the Liens securing which are
subordinated under the Lien Subordination and Intercreditor Agreement to the
Liens securing the Obligations and (c) does not contain provisions inconsistent
with the restrictions of Schedule 1.01C. Each of the Borrower's 11% Senior
Secured Notes due 2011 and its Senior Secured Floating Rate Notes due 2011
issued on March 12, 2004, and the Indebtedness under the Third Lien Agreement
are Senior Subordinated-Lien Indebtedness.
"Senior Subordinated-Lien Indebtedness Security Documents" means, as
to any Senior Subordinated-Lien Indebtedness, the security agreements, pledge
agreements, mortgages and other documents creating Liens on assets of the
Borrower and the Subsidiary Guarantors to secure the applicable Senior
Subordinated-Lien Obligations.
"Senior Subordinated-Lien Obligations" means, as to any Senior
Subordinated-Lien Indebtedness, (a) the principal of and all premium or
make-whole amounts, if any, and interest payable in respect of such Senior
Subordinated-Lien Indebtedness, (b) any amounts payable under Guarantees of such
Senior Subordinated-Lien Indebtedness by Subsidiaries and (c) all other amounts
payable by the Borrower or any Subsidiary under such Senior Subordinated-Lien
Indebtedness, the applicable Senior Subordinated-Lien Indebtedness Security
Documents (to the extent such amounts relate to such Senior Subordinated-Lien
Indebtedness) or the applicable Senior Subordinated-Lien Governing Documents.
"Specified Asset Sale" means (i) the sale of all or a substantial
portion of the assets and liabilities of the Borrower's Engineered Products
Division or (ii) the sale of all or a portion of the Borrower's properties in
Akron, Summit County, Ohio.
"Specified Jurisdiction" means The United States of America and
Canada.
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., or any successor thereto.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Borrower or any
Subsidiary of the Borrower which, taken as a whole, are customary in an accounts
receivable transaction.
"Stated Maturity" means, with respect to any Indebtedness, the date
specified in the documentation governing such Indebtedness as the fixed date on
which the final payment of principal of such Indebtedness is due and payable,
including pursuant to any mandatory redemption provision (but excluding any
provision providing for the repurchase of such Indebtedness at the option of the
holder thereof upon the happening of any contingency beyond the control of the
Borrower unless such contingency has occurred). The "Stated Maturity" of the
Obligations means the Commitment Termination Date.
51
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject, with
respect to the Adjusted LIBO Rate, for Eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute Eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Subordinated Obligation" means any Indebtedness of the Borrower
(whether outstanding on the Restatement Date or thereafter Incurred) (a) that by
its terms is subordinate or junior in right of payment to the Obligations or (b)
that is not Secured Indebtedness or (c) that is secured subject to an agreement
subordinating its Liens to those securing the Obligations. For the avoidance of
doubt, "Subordinated Obligations" shall include the Second Lien Indebtedness,
the Senior Subordinated-Lien Obligations and any unsecured Indebtedness of the
Borrower and the Subsidiary Guarantors (including the Borrower's 4% Convertible
Senior Notes due 2034 and Floating Rate Notes due 2009). "Subordinated
Obligation" of a Subsidiary Guarantor has a correlative meaning.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which are consolidated with those of the parent in
the parent's consolidated financial statements in accordance with GAAP as of
such date, as well as any other corporation, limited liability company,
partnership, association or other entity of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held by
the parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower (other than Tire &
Wheel Assemblies, Inc. at any time when not more than 50% of the Capital Stock
or 50% of the voting power are, as of such date, owned or Controlled by the
Borrower).
"Subsidiary Guarantor" means any Subsidiary that is, or is required
pursuant to Section 5.08 to become, a Guarantor (as defined in the Guarantee and
Collateral Agreement).
"Swap Agreement" means any agreement in respect of any Hedging
Obligations.
52
"Syndication Agent" means Citicorp USA, Inc., in its capacity as
syndication agent hereunder.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Temporary Cash Investments" means any of the following:
(a) 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;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof, and having, at such date of acquisition,
ratings of A2 or higher from Standard & Poor's and P2 or higher from
Moody's;
(c) 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;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution described in clause (c) above;
(e) money market funds that (i) comply with the criteria set forth in
SEC Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA
by Standard & Poor's and Aaa by Moody's and (iii) have portfolio assets of
at least $3,000,000,000;
(f) investments of the type and maturity described in clauses (b)
through (e) of foreign obligors, which investments or obligor have ratings
described in such clauses or equivalent ratings from comparable foreign
rating agencies (and with respect to clause (e), are not required to comply
with the Rule 2a-7 criteria);
(g) investments of the type and maturity described in clause (c) in
any obligor organized under the laws of a jurisdiction other than the
United States that (A) is a branch or subsidiary of a Lender or the
ultimate parent company of a Lender under any of the Credit Facilities
Agreements (but only if such Lender meets the ratings and capital, surplus
and undivided profits requirements of such clause (c)) or (B) carries a
rating at least equivalent to the rating of the sovereign nation in which
it is located; and
53
(h) in the case of any Foreign Subsidiary, (i) 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 an agency of such sovereign nation and backed by the full faith
and credit of such sovereign nation, in each case maturing within one year
from the date of acquisition, so long as the indebtedness of such sovereign
nation is rated at least A by Standard & Poor's or A2 by Moody's or carries
an equivalent rating from a comparable foreign rating agency, and (ii)
other investments of the type and maturity described in clause (c) 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 (ii) shall be
made in amounts and jurisdictions consistent with the Borrower's policies
governing short-term investments.
"Third Lien Agreement" means the Third Lien Credit Agreement dated as
of April 8, 2005, among the Borrower, certain Subsidiaries of the Borrower party
thereto, certain lenders and JPMCB, as administrative agent, 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
this Agreement, unless otherwise agreed to by the Majority Lenders).
"Third Lien Collateral Agreement" means the Collateral Agreement dated
as of March 12, 2004, among the Borrower, the Subsidiaries of the Borrower
identified therein and Wilmington Trust Company, as collateral agent, as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein).
"Total Assets" of any Subsidiary means (a) in the case of any
Subsidiary organized in a Specified Jurisdiction, (i) the total assets of such
Subsidiary, excluding Intercompany Items, plus (ii) if the Net Intercompany
Items of such Subsidiary shall be positive, the amount of such Net Intercompany
Items; and (b) in the case of any other Subsidiary, the total assets of such
Subsidiary, excluding Intercompany Items.
"Total Commitment" means, at any time, the aggregate amount of all the
Commitments at such time.
"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.
"Transactions" means the execution, delivery and performance by the
Borrower of this Agreement and by the Borrower, the Subsidiary Guarantors and
the Grantors, as applicable, of the Reaffirmation Agreement and the other Credit
Documents, the borrowing of the Loans, the obtaining and use of the Letters of
Credit, the creation
54
and the continuation of the Liens and Guarantees provided for in the Security
Documents and the other transactions contemplated hereby.
"2003 MGCA" means the Master Guarantee and Collateral Agreement dated
as of March 31, 2003, among the Borrower, the subsidiary guarantors thereunder,
the subsidiary grantors thereunder, certain other Subsidiaries, certain
financial institutions, and the Collateral Agent thereunder.
"2006 Indenture Closing Date" means November 21, 2006.
"2006 Indenture" means the Indenture dated as of November 21, 2006,
between the Borrower and Wells Fargo Bank, N.A., as Trustee.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"UCC" means Article 9 of the Uniform Commercial Code as from time to
time in effect in the State of New York.
"Unrestricted Subsidiary" means:
(a) any Subsidiary of the Borrower that at the time of determination
shall be designated an Unrestricted Subsidiary by the Board of Directors in
the manner provided below and
(b) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary of the Borrower
(including any newly acquired or newly formed Subsidiary of the Borrower) 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 Borrower or any other Subsidiary of the Borrower 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 total Consolidated assets greater than
$1,000, then such designation would be permitted under Section 6.02.
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 Borrower could Incur $1.00 of additional Indebtedness
under Section 6.01(a) or (2) the Consolidated Coverage Ratio for the Borrower
and its Restricted Subsidiaries would be greater after giving effect to such
designation than before such designation and
55
(2) 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 Administrative
Agent by promptly filing the Administrative Agent a copy of the resolution of
the Board of Directors giving effect to such designation and a certificate of a
Financial Officer 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 Borrower whether or not a claim for post-filing
interest is allowed in such proceedings), fees, charges, expenses, reimbursement
obligations and all other amounts payable thereunder or in respect thereof.
"U.S. Credit Agreements" means (i) the First Lien Agreement and (ii)
the Second Lien Agreement, each as amended, restated, supplemented, waived,
replaced (whether or not upon termination, and whether with the original lenders
or otherwise), refinanced, restructured or otherwise modified from time to time
(except to the extent that any such amendment, restatement, supplement, waiver,
replacement, refinancing, restructuring or other modification thereto would be
prohibited by the terms of this Agreement, unless otherwise agreed to by the
Majority Lenders).
"U.S. Dollar Equivalent" means with respect to any monetary amount in
a currency other than dollars, at any time for determination thereof, the amount
of dollars obtained by converting such foreign currency involved in such
computation into dollars at the spot rate for the purchase of 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.
"Wholly Owned Subsidiary" of any Person shall mean a subsidiary of
such Person of which securities (except for directors' qualifying shares) or
other ownership interests representing 100% of the Capital Stock are, at the
time any determination is being made, owned, controlled or held by such Person
or one or more wholly owned Subsidiaries of such Person or by such Person and
one or more wholly owned Subsidiaries of such Person.
"Wingfoot" means Wingfoot Commercial Systems LLC.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Work in Process" means Inventory used or consumed in the
manufacturing or processing of goods to be sold by the Borrower or another
Grantor in the ordinary course of business consisting of parts and subassemblies
in the process of
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becoming completed assembly components that are no longer included in Raw
Materials but are not yet included in Finished Goods.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Type (e.g., a
"Eurodollar Loan"). Borrowings also may be classified and referred to by Type
(e.g., a "Eurodollar Borrowing").
SECTION 1.03. Foreign Currency Translation. The Administrative Agent
shall determine the Dollar Equivalent of any Letter of Credit denominated in
Canadian Dollars, Euros or Pounds Sterling (i) as of the date of the issuance
thereof, (ii) as of each subsequent date on which such Letter of Credit shall be
renewed or extended or the stated amount of such Letter of Credit shall be
increased, (iii) as of the last Business day of each calendar month and (iv) as
of each date on which any Issuing Bank shall have requested such determination
due to fluctuations in applicable currency exchange rates (which shall not be
requested by an Issuing Bank unreasonably), in each case using the Exchange Rate
for the applicable currency in relation to dollars in effect on the date of
determination, and each such amount shall be the Dollar Equivalent of such
Letter of Credit until the next required calculation thereof. The Dollar
Equivalent of any LC Disbursement made by any Issuing Bank in Canadian Dollars,
Euros or Pounds Sterling and not reimbursed by the Borrower shall be determined
as set forth in paragraphs (e) or (l) of Section 2.03, as applicable. In
addition, the Dollar Equivalent of the LC Exposures shall be determined as set
forth in paragraph (j) of Section 2.03, at the time and in the circumstances
specified therein. The Administrative Agent shall notify the Borrower, the
applicable Lenders and the applicable Issuing Bank of each calculation of the
Dollar Equivalent of each Letter of Credit and LC Disbursement.
SECTION 1.04. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, but shall not be deemed to include the subsidiaries of such Person
unless express reference is made to such subsidiaries, (c) the words "herein",
"hereof" and "hereunder", and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, this Agreement, and (e) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
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SECTION 1.05. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Majority Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Loans and Borrowings. (a) Subject to the terms and
conditions set forth herein, each Lender agrees to make Loans to the Borrower
from time to time during the Availability Period in dollars in an aggregate
principal amount that will not result in (x) such Lender's Credit Exposure
exceeding such Lender's Commitment or (y) the aggregate Credit Exposure
exceeding the Borrowing Base Availability then in effect. Each Loan shall be
part of a Borrowing consisting of Loans of the same Type held by the Lenders
ratably in accordance with their respective Applicable Percentages. The failure
of any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required. Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Loans.
(b) Subject to Section 2.11, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make, convert or continue any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make, convert or continue such Loan; provided that any exercise of
such option shall not affect the obligation of the Borrower to repay such Loan
in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000; provided that an
ABR Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the Total Commitment, or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.03(e).
Borrowings of more than one Type may be outstanding at the same time; provided
that there shall not at any time be more than a total of 30 Eurodollar
Borrowings outstanding.
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(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Commitment Termination Date.
SECTION 2.02. Requests for Borrowing. To request a Borrowing, the
Borrower shall notify the Administrative Agent of such request by telephone (a)
in the case of a Eurodollar Borrowing, not later than 3:00 p.m., New York City
time, three Business Days before the date of the proposed Borrowing or (b) in
the case of an ABR Borrowing, not later than 10:30 a.m., New York City time, on
the day of the proposed Borrowing; provided that if at any time an LC
Disbursement denominated in dollars shall be made in an amount at least equal to
the applicable minimum borrowing amount, a notice of an ABR Borrowing to finance
the reimbursement of such LC Disbursement shall be deemed to have been timely
given as contemplated by Section 2.03(e) unless the Borrower shall have given
notice to the contrary to the Administrative Agent not later than 10:00 a.m.,
New York City time, on the Business Day next following the date on which the
Borrower shall have been notified of such LC Disbursement. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
signed by the Borrower. Each such telephonic and written Borrowing Request shall
specify the following information in compliance with Section 2.01:
(1) the aggregate amount of the requested Borrowing;
(2) the date of such Borrowing, which shall be a Business Day;
(3) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(4) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Interest Period"; and
(5) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.04.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.03. Letters of Credit. (a) General.
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(i) Subject to the terms and conditions set forth herein, the
Borrower may request the issuance (or the amendment, renewal or
extension) of Letters of Credit denominated in dollars, Canadian
Dollars, Euros or Pounds Sterling for its own account, in a form
reasonably acceptable to the Administrative Agent and the applicable
Issuing Bank, at any time and from time to time during the
Availability Period. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of
any form of letter of credit application or other agreement submitted
by the Borrower to, or entered into by the Borrower with, any Issuing
Bank relating to any Letter of Credit, the terms and conditions of
this Agreement shall control.
(ii) On the Restatement Date, each Issuing Bank that has issued
an Existing Letter of Credit shall be deemed, without further action
by any party hereto, to have granted in accordance with paragraph (d)
below to each Lender, and each Lender shall be deemed to have
purchased from such Issuing Bank, a participation in each such Letter
of Credit. The Issuing Banks and Lenders that are also party to the
Existing Credit Agreement agree that, concurrently with such grant,
the participations in the Existing Letters of Credit granted to the
lenders under the Existing Credit Agreement shall be automatically
canceled without further action by any of the parties thereto. On and
after the Restatement Date each Existing Letter of Credit shall
constitute a Letter of Credit for all purposes hereof. Any Lender that
issued an Existing Letter of Credit but shall not have entered into an
Issuing Bank Agreement shall have the rights of an Issuing Bank as to
such Letter of Credit for purposes of this Section 2.03.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to
an Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting
the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance, amendment,
renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount and currency of such Letter of Credit, the name and address
of the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by any
Issuing Bank, the Borrower also shall submit a letter of credit application on
such Issuing Bank's standard form in connection with any request for a Letter of
Credit; provided that any provisions in any such letter of credit application
that create Liens securing the obligations of the Borrower thereunder or that
are inconsistent with the provisions of this Agreement shall be of no force or
effect. A Letter of Credit shall be issued, amended, renewed or extended only if
(and upon issuance, amendment, renewal or extension of each Letter of Credit the
Borrower shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment,
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renewal or extension, (i) the aggregate amount of the Credit Exposures shall not
exceed the Total Commitment, (ii) the aggregate amount of the LC Exposures shall
not exceed $800,000,000, (iii) the aggregate Credit Exposure shall not exceed
the Borrowing Base Availability then in effect and (iv) the portion of the LC
Exposure attributable to Letters of Credit issued by any Issuing Bank shall not
exceed the LC Commitment of such Issuing Bank. Each Issuing Bank shall be
entitled to rely on such representation and warranty. The Administrative Agent
agrees, at the request of any Issuing Bank, to provide information to such
Issuing Bank as to the aggregate amount of the Credit Exposures, the Credit
Exposures, the LC Exposures, the Total Commitment and the Borrowing Base
Availability.
(c) Expiration Date. Each Letter of Credit shall have an expiration
date at or prior to the close of business on the earlier of (i) the date one
year after the date of the issuance of such Letter of Credit (or, in the case of
any renewal or extension thereof, one year after such renewal or extension) and
(ii) the date that is five Business Days prior to the Commitment Termination
Date. Any Letter of Credit may provide by its terms that it may be extended for
additional successive one-year periods on terms reasonably acceptable to the
applicable Issuing Bank (but subject to the proviso in the next sentence). Any
Letter of Credit providing for automatic extension shall be extended upon the
then current expiration date without any further action by any Person unless the
applicable Issuing Bank shall have given notice to the applicable beneficiary
(with a copy to the applicable Borrower) of the election by such Issuing Bank
not to extend such Letter of Credit, such notice to be given not fewer than 60
days prior to the then current expiration date of such Letter of Credit;
provided that no Letter of Credit may be extended automatically or otherwise
beyond the date that is five Business Days prior to the Commitment Termination
Date.
(d) Participations. Effective with respect to the Existing Letters of
Credit upon the occurrence of the Restatement Date, and effective with respect
to each other Letter of Credit (and each amendment to a Letter of Credit
increasing the amount thereof) upon the issuance (or increase) thereof, and
without any further action on the part of the applicable Issuing Bank or the
Lenders, each Issuing Bank hereby grants to each Lender, and each Lender hereby
acquires from such Issuing Bank, a participation in each Letter of Credit equal
to such Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for the account of the applicable Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by such Issuing Bank
and not reimbursed by the Borrower on the date due as provided in paragraph (e)
of this Section, or such Lender's Applicable Percentage of any reimbursement
payment in respect of an LC Disbursement required to be refunded to the Borrower
for any reason (or if such LC Disbursement or reimbursement payment was made in
Canadian Dollars, Euros or Pounds Sterling, the Dollar Equivalent thereof using
the LC Exchange Rate in effect on the applicable LC Participation Calculation
Date). Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter
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of Credit or the occurrence and continuance of a Default or any reduction of its
Commitment, or the Total Commitment.
(e) Reimbursement. If any Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement, in the currency in which such LC Disbursement is made, not later
than 1:30 p.m., New York City time, on the second Business Day following the
date on which the Borrower shall have received notice of such LC Disbursement
(or, in the case of an LC Disbursement denominated in a currency other than
dollars, on the third Business Day following such date if the Borrower shall not
have received notice of such LC Disbursement until after 10:00 a.m., New York
City time, on such date); provided that, if such LC Disbursement is denominated
in dollars and is at least equal to the applicable minimum borrowing amount,
unless the Borrower shall have notified the Administrative Agent to the contrary
not later than 10:00 a.m., New York City time, on the Business Day next
following the date on which the Borrower shall have been notified of such LC
Disbursement, the Borrower will be deemed to have requested in accordance with
Section 2.02 that such payment be financed with an ABR Borrowing on such
Business Day in an equivalent amount and, to the extent the Borrower satisfies
the condition precedent to such ABR Borrowing set forth in Section 4.02(b), the
Borrower's obligation to make such payment shall be discharged with the proceeds
of the requested ABR Borrowing. If the Borrower fails to make such payment when
due and the Borrower is not entitled to make a Borrowing in the amount of such
payment, (A) if such payment relates to a Letter of Credit denominated in
Canadian Dollars, Euros or Pounds Sterling, automatically and with no further
action required, the obligation of the Borrower to reimburse the applicable LC
Disbursement shall be permanently converted into an obligation to reimburse the
Dollar Equivalent, calculated using the LC Exchange Rates on the applicable LC
Participation Calculation Date, of such LC Disbursement and (B) in the case of
each LC Disbursement, the Administrative Agent shall notify each Lender of such
LC Disbursement, the Dollar Equivalent of the payment then due from the Borrower
in respect thereof and such Lender's Applicable Percentage thereof, and each
Lender shall pay to the Administrative Agent on the date such notice is
received, its Applicable Percentage of the payment then due from the Borrower,
in the same manner as provided in Section 2.04 with respect to Loans made by
such Lender (and Section 2.04 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to
the applicable Issuing Bank the amounts so received by it from the Lenders.
Promptly following receipt by the Administrative Agent of any payment from the
Borrower pursuant to this paragraph, the Administrative Agent shall distribute
such payment to the applicable Issuing Bank or, to the extent that Lenders have
made payments pursuant to this paragraph to reimburse such Issuing Bank, then to
such Lenders and such Issuing Bank as their interests may appear. No payment
made by a Lender pursuant to this paragraph to reimburse any Issuing Bank for
any LC Disbursement (other than the funding of ABR Loans as contemplated above)
shall constitute a Loan or relieve the Borrower of its obligation to reimburse
such LC Disbursement. If the reimbursement by the Borrower of, or obligation to
reimburse, any amounts in Canadian Dollars, Euros or Pounds Sterling would
subject the Administrative Agent, the applicable Issuing Bank or any Lender to
any stamp duty, ad valorem charge
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or similar tax that would not be payable if such reimbursement were made or
required to be made in dollars, the Borrower shall, at its option, either (x)
pay the amount of any such tax requested by the Administrative Agent, the
applicable Issuing Bank or Lender or (y) reimburse in dollars each LC
Disbursement made in Canadian Dollars, Euros or Pounds Sterling, in an amount
equal to the Dollar Equivalent, calculated using the applicable LC Exchange Rate
on the date such LC Disbursement is reimbursed (or on the applicable LC
Participation Calculation Date, if such date shall have occurred), of such LC
Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by any Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, (iv) any claim or defense against the
beneficiary of any Letter of Credit, any transferee of any Letter of Credit, the
Administrative Agent, any Lender or any other Person, whether in connection with
this Agreement, any Letter of Credit, the transactions contemplated hereby or
any unrelated transactions (including the underlying transaction between the
Borrower or any Subsidiary and the beneficiary of any Letter of Credit), (v) the
occurrence of any Default or (vi) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of or
defense against, or provide a right of setoff against, the Borrower's
obligations hereunder. None of the Administrative Agent, the Lenders or the
Issuing Banks, or any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Banks; provided that the foregoing
shall not be construed to excuse any Issuing Bank from liability to the Borrower
to the extent of any damages suffered by the Borrower or any Lender that are
caused by such Issuing Bank's gross negligence or willful misconduct. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
applicable Issuing Bank may, acting in good faith, either accept and make
payment upon such documents without responsibility for further investigation or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.
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(g) Disbursement Procedures. Each Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. Each Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether such Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not (i) relieve the Borrower of its obligation
to reimburse such Issuing Bank and the Lenders with respect to any such LC
Disbursement or (ii) relieve any Lender's obligation to acquire participations
as required pursuant to paragraph (d) of this Section 2.03.
(h) Interim Interest. If any Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, (i) in the case of any LC Disbursement denominated in dollars, and
at all times following the conversion to dollars of an LC Disbursement made in
Canadian Dollars, Euros or Pounds Sterling pursuant to paragraph (e) or (l) of
this Section, at the rate per annum then applicable to ABR Loans, and (ii) in
the case of any LC Disbursement denominated in Canadian Dollars, Euros or Pounds
Sterling, at all times prior to its conversion to dollars pursuant to paragraph
(e) or (l) of this Section, a rate per annum reasonably determined by the
applicable Issuing Bank (which determination will be conclusive absent manifest
error) to represent its cost of funds plus the Applicable Rate used to determine
interest applicable to Eurodollar Loans; provided that, if the Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.10(c) shall apply. Interest accrued pursuant to this
paragraph shall be for the account of such Issuing Bank, except that interest
accrued on and after the date of payment pursuant to paragraph (e) of this
Section to reimburse such Issuing Bank shall be for the account of the Lenders
to the extent of such payment.
(i) Replacement of the Issuing Bank. Each Issuing Bank may be replaced
at any time by written agreement among the Borrower, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of such Issuing Bank. At
the time any such replacement shall become effective, the Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.09(b). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of such
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of any Issuing Bank hereunder, the replaced Issuing Bank shall
remain a party hereto and shall continue to have all the rights and obligations
of an Issuing Bank under this Agreement with respect to Letters of Credit issued
by it prior to such replacement, but shall not be required to issue additional
Letters of Credit.
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(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the earlier of (i) the third Business Day after the Borrower
shall receive notice from the Administrative Agent or the Majority Lenders
demanding the deposit of cash collateral pursuant to this paragraph and (ii) the
date on which the maturity of the Loans shall be accelerated or the Total
Commitment reduced to zero, the Borrower shall deposit in an account or accounts
with the Administrative Agent, in the name of the Administrative Agent and for
the benefit of the Lenders, an amount in cash equal to the sum of (i) the
aggregate undrawn amount of all outstanding Letters of Credit and (ii) the
aggregate amount of all unreimbursed LC Disbursements and all interest accrued
and unpaid thereon. Amounts payable under the preceding sentence in respect of
any Letter of Credit or LC Disbursement shall be payable in the currency of such
Letter of Credit or LC Disbursement, except that LC Disbursements in Canadian
Dollars, Euros or Pounds Sterling in respect of which the Borrower's
reimbursement obligations have been converted to obligations in dollars as
provided in paragraph (e) above, and interest accrued thereon, shall be payable
in dollars. The obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to the Borrower described in clause (h) or (i) of
Article VII. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrower
under this Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account or
accounts. Other than any interest earned on the investment of such deposits,
which investment shall be in Temporary Cash Investments and shall be made in the
discretion of the Administrative Agent and at the Borrower's risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account or accounts. Moneys in such account
or accounts shall be applied by the Administrative Agent to reimburse each
Issuing Bank for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated (but subject to the consent of
Lenders with LC Exposures representing more than 50% of the LC Exposures and the
Issuing Banks with outstanding Letters of Credit), be applied to satisfy other
obligations of the Borrower under this Agreement. If the Borrower is required to
provide an amount of cash collateral under this paragraph, then (1) if the
maturity of the Loans has not been accelerated and the LC Exposure shall be
reduced to an amount below the amount so deposited, the Administrative Agent
will return to the Borrower any excess of the amount so deposited over the LC
Exposure and (2) such amount (to the extent not applied as provided above in
this paragraph) shall be returned to the Borrower within three Business Days
after all Events of Default have been cured or waived.
(k) Issuing Bank Reports. Unless otherwise agreed by the
Administrative Agent, each Issuing Bank shall report in writing to the
Administrative Agent (i) on or prior to each Business Day on which such Issuing
Bank issues, amends, renews or extends any Letter of Credit, the date of such
issuance, amendment, renewal or extension, and the currency and aggregate face
amount of the Letters of Credit issued, amended, renewed or extended by it and
outstanding after giving effect to such issuance,
65
amendment, renewal or extension (and whether the amount thereof shall have
changed), it being understood that such Issuing Bank shall not effect any
issuance, renewal, extension or amendment resulting in an increase in the amount
of any Letter of Credit without first obtaining written confirmation from the
Administrative Agent that such increase is then permitted under this Agreement,
(ii) on each Business Day on which such Issuing Bank makes any LC Disbursement,
the date, currency and amount of such LC Disbursement, (iii) on any Business Day
on which the Borrower fails to reimburse an LC Disbursement required to be
reimbursed to such Issuing Bank on such day, the date of such failure and the
currency and amount of such LC Disbursement and (iv) on any other Business Day,
such other information as the Administrative Agent shall reasonably request as
to the Letters of Credit issued by such Issuing Bank.
(l) Conversion. In the event that the Loans become immediately due and
payable on any date pursuant to Article VII, all amounts (i) that the Borrower
is at the time or becomes thereafter required to reimburse or otherwise pay to
the Administrative Agent in respect of LC Disbursements made under any Letter of
Credit denominated in Canadian Dollars, Euros or Pounds Sterling (other than
amounts in respect of which the Borrower has deposited cash collateral, if such
cash collateral was deposited in the applicable currency), (ii) that the Lenders
are at the time or become thereafter required to pay to the Administrative Agent
(and the Administrative Agent is at the time or becomes thereafter required to
distribute to the applicable Issuing Bank) pursuant to paragraph (e) of this
Section in respect of unreimbursed LC Disbursements made under any Letter of
Credit denominated in Canadian Dollars, Euros or Pounds Sterling and (iii) of
each Lender's participation in any Letter of Credit denominated in Canadian
Dollars, Euros or Pounds Sterling under which an LC Disbursement has been made
shall, automatically and with no further action required, be converted into the
Dollar Equivalent, calculated using the LC Exchange Rates on such date (or in
the case of any LC Disbursement made after such date, on the date such LC
Disbursement is made), of such amounts. On and after such conversion, all
amounts accruing and owed to the Administrative Agent, any Issuing Bank or any
Lender in respect of the obligations described in this paragraph shall accrue
and be payable in dollars at the rates otherwise applicable hereunder.
SECTION 2.04. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:30 p.m., New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to
an account designated by the Borrower in the applicable Borrowing Request;
provided that ABR Loans made to finance the reimbursement of an LC Disbursement
as provided in Section 2.03(e) shall be remitted by the Administrative Agent to
the applicable Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such
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assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing
available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the date
of payment to the Administrative Agent, at (i) in the case of such Lender, the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrower, the interest rate applicable
to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender's Loan included in such Borrowing. It
is agreed that no payment by the Borrower under this paragraph will be subject
to any break-funding payment under Section 2.13.
SECTION 2.05. Interest Elections. (a) Each Borrowing initially shall
be of the Type specified in the applicable Borrowing Request and, in the case of
a Eurodollar Borrowing, shall have an initial Interest Period as specified in
such Borrowing Request. Thereafter, the Borrower may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in the case of
a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in
this Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate
Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.02 if the Borrower were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request
signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.01:
(1) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each
resulting Borrowing (in which case the information to be specified
pursuant to clauses (3) and (4) below shall be specified for each
resulting Borrowing);
(2) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(3) whether the resulting Borrowing is to be an ABR Borrowing or
a Eurodollar Borrowing; and
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(4) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of
the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Majority Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.06. Reductions of Commitments. (a) Unless previously reduced
to zero, the Total Commitment and each LC Commitment shall be reduced to zero on
the Commitment Termination Date.
(b) The Borrower may at any time or from time to time reduce the Total
Commitment; provided that (i) each reduction of the Total Commitment (other than
a reduction of the Total Commitment to zero) shall be in an amount that is an
integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the
Borrower shall not reduce the Total Commitment if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.08, the
aggregate Credit Exposures would exceed the Total Commitment.
(c) The Borrower shall notify the Administrative Agent of any election
to reduce the Total Commitment under paragraph (b) of this Section at least
three Business Days prior to the effective date of such reduction, specifying
such election and the effective date thereof. Promptly following receipt of any
such notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of reduction of the Total Commitment to zero
delivered by the Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities or financings, in which case such
notice may be revoked by the Borrower (by notice to the Administrative Agent on
or prior to the specified effective date) if such condition is not satisfied.
Any reduction of
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the Total Commitment shall be permanent. Each reduction of the Commitments shall
be made ratably among the Lenders in accordance with their respective
Commitments.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay on the Commitment Termination Date to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Loan of such Lender.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the Indebtedness of the Borrower to such
Lender resulting from each Loan made or held by such Lender, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein (including any failure to record the making or repayment of any Loan)
shall not in any manner affect the obligation of the Borrower to repay the Loans
in accordance with the terms of this Agreement or prevent the Borrower's
obligations in respect of Loans from being discharged to the extent of amounts
actually paid in respect thereof.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) in
substantially the form set forth in Exhibit C hereto. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.08. Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to paragraph (c) of this Section.
(b) The Borrower shall in the event and on each occasion that (i) the
aggregate Credit Exposures exceed the Total Commitments or (ii) the aggregate
Credit Exposures exceed the Borrowing Base then in effect, not later than the
next Business Day, prepay Borrowings in an aggregate amount equal to such
excess, and in the event
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that after such prepayment of Borrowings any such excess shall remain, the
Borrower shall deposit cash in an amount equal to such excess as collateral for
the reimbursement obligations of the Borrower in respect of Letters of Credit;
provided that in the case of any such excess that results from any determination
under Section 1.03 of the Dollar Equivalent of any Letter of Credit denominated
in Canadian Dollars, Euros or Pounds Sterling (i) no prepayment or redesignation
shall be required until the Business Day next succeeding the day on which the
Borrower shall have received notice of such determination under Section 1.03
from the Administrative Agent, and (ii) any such prepayment required in respect
of any excess of the aggregate Credit Exposures over the Borrowing Base then in
effect may, if such excess is in an amount less than $10,000,000, be deferred
until last day of the nearest maturing Interest Period(s) then in effect with
respect to Loan(s) required to be so repaid except to the extent of any excess
of the Credit Exposures over the Total Commitments. Any cash so deposited (and
any cash previously deposited pursuant to this paragraph) with the
Administrative Agent shall be held in an account over which the Administrative
Agent shall have dominion and control to the exclusion of the Borrower and its
Subsidiaries, including the exclusive right of withdrawal. Other than any
interest earned on the investment of such deposits, which investment shall be in
Temporary Cash Investments and shall be made in the discretion of the
Administrative Agent (or, at any time when no Default or Event of Default has
occurred and is continuing, shall be made at the direction of the Borrower) and
at the Borrower's risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Administrative Agent to
reimburse each Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the satisfaction
of the reimbursement obligations of the Borrower for the LC Exposure at such
time or, if the maturity of the Loans has been accelerated (but subject to the
consent of the Majority Lenders), be applied to satisfy other obligations of the
Borrower under this Agreement. If the Borrower has provided cash collateral to
secure the reimbursement obligations of the Borrower in respect of Letters of
Credit hereunder, then, so long as no Event of Default shall exist, such cash
collateral shall be released to the Borrower if so requested by the Borrower at
any time if and to the extent that, after giving effect to such release, the
aggregate amount of the Credit Exposures would not exceed the Total Commitment
and the aggregate Credit Exposures would not exceed the Borrowing Base then in
effect.
(c) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 3:00 p.m., New York City
time, three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment; provided that if the Borrower
shall be required to make any prepayment hereunder by reason of Section 2.08(b),
such notice shall be delivered not later than the time at which such prepayment
is made. Each such notice shall be irrevocable and shall specify the prepayment
date and the principal amount of each Borrowing or portion thereof to be
prepaid; provided that, if a notice of prepayment is given in connection with a
conditional notice of reduction of the Total Commitment to zero as contemplated
by Section 2.06(c), then such notice of prepayment may be revoked if such notice
of
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termination is revoked in accordance with Section 2.06(c). Promptly following
receipt of any such notice relating to a Borrowing, the Administrative Agent
shall advise the Lenders of the contents thereof. Each partial prepayment of any
Borrowing (other than pursuant to Section 2.08(b)) shall be in an amount that
would be permitted in the case of an advance of a Borrowing of the same Type as
provided in Section 2.01. Each prepayment of a Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.10.
SECTION 2.09. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, accruing
at the Applicable Rate on the daily unused amount of the Commitment of such
Lender during the period from and including the date hereof to but excluding the
date on which such Commitment is reduced to zero. Commitment fees accrued
through and including the last day of March, June, September and December of
each year shall be payable on the third Business Day following such date and on
the date on which the Commitments are reduced to zero, commencing on the first
such date to occur after the date hereof. All commitment fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(b) The Borrower agrees to pay (i) to the Administrative Agent, for
the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the Applicable Rate
for Eurodollar Borrowings on the average daily amount of such Lender's LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Restatement Date to but
excluding the later of the date on which such Lender's Commitment is reduced to
zero and the date on which such Lender ceases to have any LC Exposure, and (ii)
to each Issuing Bank a fronting fee, which shall accrue at the rate or rates per
annum separately agreed upon between the Borrower and the applicable Issuing
Bank (on the date hereof or any later date on which such Issuing Bank shall have
become an Issuing Bank), on the daily amount of the LC Exposure attributable to
Letters of Credit issued by such Issuing Bank (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Restatement Date to but excluding the later of the date each LC
Commitment of such Issuing Bank is reduced to zero and the date on which there
ceases to be any LC Exposure attributable to Letters of Credit issued by such
Issuing Bank, as well as such Issuing Bank's standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. Participation and fronting fees accrued through and
including the last day of March, June, September and December of each year shall
be payable on the third Business Day following such last day, commencing on the
first such date to occur after the Restatement Date; provided that all such
accrued fees shall be payable in respect of LC Exposures on the date on which
the Total Commitment is reduced to zero and any such fees accruing in respect of
LC Exposures after the date on which the Total Commitment is reduced to zero
shall be payable on demand. Any other fees payable to the Issuing Banks pursuant
to this paragraph shall be payable within 10 days after demand. All
participation and fronting fees shall be computed on the basis
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of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees in the amounts and at the times separately agreed upon between
the Borrower and the Administrative Agent.
(d) All fees and other amounts payable hereunder shall be paid on the
dates due, in immediately available funds, to the Administrative Agent (or to
the Issuing Banks, in the case of fees payable to them) for distribution, where
applicable, to the Lenders. Fees paid shall not be refundable under any
circumstances.
SECTION 2.10. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2.00% plus
the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (ii) in the case of any other amount, 2.00% plus
the rate applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and shall be payable for each Loan upon
reduction of the Total Commitment to zero; provided that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
(e) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
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SECTION 2.11. Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Majority Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or any Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing. Each determination by the
Administrative Agent hereunder shall be conclusive absent manifest error.
SECTION 2.12. Increased Costs. (a) If any Change in Law shall:
(1) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or any
Issuing Bank; or
(2) impose on any Lender or any Issuing Bank or the London
interbank market any other condition (other than Taxes) affecting this
Agreement or Eurodollar Loans made by such Lender or any Letter of
Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining the
Commitment of such Lender) or to increase the cost to such Lender or such
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or such
Issuing Bank hereunder (whether of principal, interest or otherwise), in each
case by an amount deemed by such Lender or Issuing Bank, as the case may be, to
be material, then the Borrower will pay to such Lender or such Issuing Bank such
additional amount or amounts as will compensate such Lender or such Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or any Issuing Bank determines that any Change in
Law regarding capital requirements has had or would have the effect of reducing
the rate of return on such Lender's or such Issuing Bank's capital or on the
capital of such Lender's or such Issuing Bank's holding company, if any, in each
case by an amount deemed by
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such Lender or such Issuing Bank to be material, as a consequence of this
Agreement or the Commitment of such Lender or the Loans or participations in
Letters of Credit held by such Lender, or the Letters of Credit issued by such
Issuing Bank, to a level below that which such Lender or such Issuing Bank or
such Lender's or such Issuing Bank's holding company would have achieved but for
such Change in Law (taking into consideration such Lender's or such Issuing
Bank's policies and the policies of such Lender's or such Issuing Bank's holding
company with respect to capital adequacy), then from time to time the Borrower
will pay to such Lender or such Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or such Issuing Bank
or such Lender's or such Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or such Issuing Bank or
its holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower. The Borrower shall pay such
Lender or such Issuing Bank, as the case may be, the amount shown as due on any
such certificate within 10 days after receipt thereof, unless such amount is
being contested by the Borrower in good faith.
(d) Failure or delay on the part of any Lender or Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or such Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender or an Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or such Issuing Bank
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's or such Issuing Bank's intention to claim
compensation therefor; provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the 180-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
SECTION 2.13. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, continue
or prepay any Eurodollar Loan, or to convert any Loan to a Eurodollar Loan, on
the date specified in any notice delivered pursuant hereto (regardless of
whether such notice may be revoked under Section 2.08(c) and is revoked in
accordance therewith), or (d) the assignment of any Eurodollar Loan other than
on the last day of the Interest Period applicable thereto as a result of a
request by the Borrower pursuant to Section 2.16, then, in any such event, the
Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost or
expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that
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would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower. The Borrower shall pay such Lender
the amount shown as due on any such certificate within 10 days after receipt
thereof, unless such amount is being contested by the Borrower in good faith.
SECTION 2.14. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower or any other Credit Party hereunder or under any
other Credit Document shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided that if the Borrower or any other
Credit Party shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions of such Taxes (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, Issuing Bank or Lender (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made (and the
Borrower shall pay or cause such Credit Party to pay such increased amount),
(ii) the Borrower or such other Credit Party shall make such deductions and
(iii) the Borrower or such other Credit Party shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) The Borrower shall indemnify the Administrative Agent, each
Issuing Bank and each Lender, within 10 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Issuing Bank or such Lender, as the case may be, on
or with respect to any payment by or on account of any obligation of the
Borrower or any other Credit Party hereunder or under any other Credit Document
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable out-of-pocket expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender,
or the applicable Issuing Bank or by the Administrative Agent on its own behalf
or on behalf of the applicable Issuing Bank or a Lender, shall be conclusive
absent manifest error.
(c) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower or any other Credit Party to a Governmental
Authority, the Borrower shall deliver to the Administrative Agent the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
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(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time such Foreign Lender first becomes
a party to this Agreement and at the time or times prescribed by applicable law,
such properly completed and executed documentation prescribed by applicable law
or reasonably requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate; provided that such Foreign Lender has
received written notice from the Borrower advising it of the availability of
such exemption or reduction and supplying all applicable documentation; and
provided further that no such written notice shall be required with respect to
the applicable IRS Form W-8 a Foreign Lender is required to deliver to the
Borrower to permit payments to be made without withholding of U.S. Federal
income tax (or at a reduced rate of U.S. withholding tax).
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of
Setoffs. (a) Except as required or permitted under Section 2.02, 2.03, 2.12,
2.13, 2.14, 2.16 or 9.03, each Borrowing, each payment or prepayment of
principal of any Borrowing or of any LC Disbursement, each payment of interest
on the Loans or the LC Disbursements, each payment of fees (other than fees
payable to the Issuing Banks), each reduction of the Total Commitment and each
refinancing of any Borrowing with a Borrowing of any Type, shall be allocated
pro rata among the Lenders in accordance with their respective Commitments (or,
if such Commitments shall have expired or been reduced to zero, in accordance
with the respective principal amounts of their outstanding Loans or LC
Exposures, as applicable). Each Lender agrees that in computing such Lender's
portion of any Borrowing to be made hereunder, the Administrative Agent may, in
its discretion, round each Lender's percentage of such Borrowing to the next
higher or lower whole dollar amount.
(b) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.12, 2.13 or 2.14 or
otherwise) prior to 1:00 p.m., New York City time, on the date when due, in
immediately available funds, without setoff, counterclaim or other deduction.
Any amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent to the applicable account specified by
the Administrative Agent for the account of the applicable Lenders or, in any
such case, to such other account as the Administrative Agent shall from time to
time specify in a notice delivered to the Borrower, except payments to be made
directly to an Issuing Bank as expressly provided herein and except that
payments pursuant to Sections 2.12, 2.13, 2.14, 2.16 and 9.03 shall be made
directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
in appropriate ratable shares to the appropriate recipient or recipients
promptly following receipt thereof. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day and, in the case of any payment accruing interest,
interest
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thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars, except as otherwise expressly provided. Any
payment required to be made by the Administrative Agent hereunder shall be
deemed to have been made by the time required if the Administrative Agent shall,
at or before such time, have taken the necessary steps to make such payment in
accordance with the regulations or operating procedures of the clearing or
settlement system used by the Administrative Agent to make such payment.
(c) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(d) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or participations in LC Disbursements resulting in
such Lender receiving payment of a greater proportion of the aggregate amount of
its Loans, participations in LC Disbursements and accrued interest thereon than
the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Loans and participations in LC Disbursements of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and participations in LC
Disbursements. If any participations are purchased pursuant to the preceding
sentence and all or any portion of the payments giving rise thereto are
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest. The provisions of
this paragraph shall not be construed to apply to any payment made by the
Borrower pursuant to and in accordance with the express terms of this Agreement
or any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in its Commitment or any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower
or any Affiliate thereof (as to which the provisions of this paragraph shall
apply). The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law and under this Agreement, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or any Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made
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such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the Issuing Banks, as the case may be
the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or the Issuing Banks, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or Issuing Bank, and to pay interest
thereon for each day from and including the date such amount shall have been
distributed to it to but excluding the date of payment to or recovery by the
Administrative Agent, at the greater of the Federal Funds Effective Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
(f) If any Lender shall fail to make any payment required to be made
by it hereunder for the account of the Administrative Agent, any Issuing Bank or
any Lender, then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy
such Lender's obligations in respect of such payment until all such unsatisfied
obligations are fully paid.
SECTION 2.16. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.12 or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.14, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.12 or 2.14, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.12, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.14,
or if any Lender shall become the subject of any insolvency or similar
proceeding or filing or default in its obligation to fund Loans hereunder, then
the Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee or the Borrower, as
the case may be, and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.12 or payments required to be
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made pursuant to Section 2.14, such assignment will result in a reduction in
such compensation or payments. If any Lender shall become the subject of any
insolvency or similar proceeding or filing, then the Borrower, if requested to
do so by any Issuing Bank, shall use commercially reasonable efforts (which
shall not include the payment of any compensation) to identify an assignee
willing to purchase and assume the interests, rights and obligations of such
Lender under this Agreement and to require such Lender to assign and delegate
all such interests, rights and obligations to such assignee in accordance with
the preceding sentence.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent, the
Lenders and the Issuing Banks that:
SECTION 3.01. Organization; Powers. The Borrower and each of the other
Credit Parties is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, would not be reasonably
likely to result in a Material Adverse Change, is qualified to do business, and
is in good standing, in every jurisdiction where such qualification is required.
Each Subsidiary of the Borrower other than the Credit Parties is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and is qualified to do business, and is in good standing, in every
jurisdiction where such qualification is required, except for failures that,
individually or in the aggregate, would not be materially likely to result in a
Material Adverse Change.
SECTION 3.02. Authorization; Enforceability. The Transactions to be
entered into by each Credit Party are within such Credit Party's powers and have
been duly authorized. This Agreement has been duly executed and delivered by the
Borrower and constitutes, and each other Credit Document to which any Credit
Party is or is to be a party constitutes or, when executed and delivered by such
Credit Party, will constitute, a legal, valid and binding obligation of the
Borrower or such Credit Party, as the case may be, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. (a) Except to the
extent that no Material Adverse Change would be materially likely to result, the
Transactions (i) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
are required to perfect Liens created under the Security Documents and such as
have been obtained or made and are in full force and effect, (ii) do not and
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of the Borrower or
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any of the Subsidiaries or any order of any Governmental Authority, (iii) do not
and will not violate or result in a default under any indenture, agreement or
other instrument binding upon the Borrower or any of the Subsidiaries or any of
their assets, and (iv) do not and will not result in the creation or imposition
of any Lien on any asset of the Borrower or any of the Subsidiaries, except
Liens created under the Credit Documents.
(b) The incurrence of each Loan, Letter of Credit and LC Disbursement,
each Guarantee thereof under the Credit Documents and each Lien securing any of
the Obligations, is permitted under the Junior Lien Indenture and each other
indenture or other agreement governing any Senior Subordinated-Lien Indebtedness
in effect at the time of such incurrence, and the Loans, Letters of Credit, LC
Disbursements and Guarantees thereof under the Credit Documents constitute
Designated Senior Obligations under the Lien Subordination and Intercreditor
Agreement.
SECTION 3.04. Financial Statements; No Material Adverse Change. (a)
The Borrower has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, stockholders' equity and cash flows as of and
for the fiscal year ended December 31, 2006. Such financial statements present
fairly, in all material respects, the consolidated financial position and
consolidated results of operations and cash flows of the Borrower and its
Consolidated Subsidiaries as of such date and for such fiscal year in accordance
with GAAP.
(b) Except as disclosed in the Disclosure Documents, since December
31, 2006, there has been no event or condition that constitutes or would be
materially likely to result in a Material Adverse Change, it being agreed that a
reduction in any rating relating to the Borrower issued by any rating agency
shall not, in and of itself, be an event or condition that constitutes or would
be materially likely to result in a Material Adverse Change (but that events or
conditions underlying or resulting from any such reduction may constitute or be
materially likely to result in a Material Adverse Change).
SECTION 3.05. Litigation and Environmental Matters. (a) Except as set
forth in the Disclosure Documents, there are no actions, suits or proceedings by
or before any arbitrator or Governmental Authority pending or, to the knowledge
of the Borrower, threatened against or affecting the Borrower or any of the
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that if adversely determined would be materially likely,
individually or in the aggregate, to result in a Material Adverse Change or (ii)
as of the Restatement Date, that involve the Credit Documents or the
Transactions.
(b) Except as set forth in the Disclosure Documents, and except with
respect to matters that, individually or in the aggregate, would not be
materially likely to result in a Material Adverse Change, neither the Borrower
nor any of the Subsidiaries (i) has failed to comply with any Environmental Law
or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received notice of any claim with respect to
any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
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SECTION 3.06. Compliance with Laws and Agreements. The Borrower and
each of the Subsidiaries is in compliance with all laws, regulations and orders
of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to be in compliance, individually or in the aggregate,
would not be materially likely to result in a Material Adverse Change. No Event
of Default has occurred and is continuing.
SECTION 3.07. Investment Company Status. Neither the Borrower nor any
of the Subsidiaries is an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended.
SECTION 3.08. ERISA and Canadian Pension Plans. (a) Except as
disclosed in the Disclosure Documents, no ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other ERISA
Events that have occurred or are reasonably expected to occur, would be
materially likely to result in a Material Adverse Change.
(b) Except as would not be materially likely to result in a Material
Adverse Change, (i) the Canadian Pension Plans are duly registered under the
Income Tax Act (Canada) and all other applicable laws which require registration
and no event has occurred which is reasonably likely to cause the loss of such
registered status; (ii) all material obligations of each Credit Party (including
fiduciary, funding, investment and administration obligations) required to be
performed in connection with the Canadian Pension Plans and the funding
agreements therefor have been performed in a timely fashion; (iii) to the
knowledge of the Credit Parties there have been no improper withdrawals of the
assets of the Canadian Pension Plans or the Canadian Benefit Plans; (iv) there
are no outstanding material disputes concerning the assets of the Canadian
Pension Plans or the Canadian Benefit Plans; and (v) each of the Canadian
Pension Plans is being funded in accordance with the actuarial valuation reports
last filed with the applicable Governmental Authorities and which are consistent
with generally accepted actuarial principles.
SECTION 3.09. Disclosure. None of the reports, financial statements,
certificates or other written information referred to in Section 3.04 or
delivered after the date hereof by or on behalf of any Credit Party to the
Administrative Agent, the Collateral Agent or any Lender pursuant to Section
5.01 (taken together with all other information so furnished and as modified or
supplemented by other information so furnished) contained or will contain, in
each case as of the date delivered, any material misstatement of fact or omitted
or will omit to state, in each case as of the date delivered, any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information or other forward looking information, the
Borrower represents only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time.
SECTION 3.10. Security Interests. (a) Each of the Guarantee and
Collateral Agreement, the Reaffirmation Agreement and the Canadian Security
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Agreements is or, when executed and delivered, will be, effective to create or
continue in favor of the Collateral Agent for the benefit of the Secured Parties
a valid and enforceable security interest in the Collateral, to the extent
contemplated by the Guarantee and Collateral Agreement, the Reaffirmation
Agreement or the Canadian Security Agreements, as the case may be, and (i) when
the Collateral constituting certificated securities (as defined in the
applicable Uniform Commercial Code) was or is delivered to the Collateral Agent
thereunder, together with instruments of transfer duly endorsed in blank, the
Guarantee and Collateral Agreement created or will create, to the extent
contemplated by the Guarantee and Collateral Agreement, a perfected security
interest in all right, title and interest of the Grantors in such certificated
securities to the extent perfection is governed by the applicable Uniform
Commercial Code as in effect in any applicable jurisdiction, subject to no other
Lien other than Liens permitted under Section 6.06 that take priority over
security interests in certificated securities perfected by the possession of
such securities under the Uniform Commercial Code as in effect in the applicable
jurisdiction, and (ii) when financing statements in appropriate form were or are
filed, and any other applicable registrations were or are made, in the offices
specified in the Restatement Date Perfection Certificate, the Guarantee and
Collateral Agreement, the Reaffirmation Agreement and the Canadian Security
Agreements created or will create or continue a perfected security interest (or
hypothec, as applicable) in all right, title and interest of the Grantors in the
remaining Collateral to the extent perfection can be obtained by filing Uniform
Commercial Code financing statements and making such other applicable filings
and registrations in such jurisdictions, subject to no other Lien other than
Liens permitted under Section 6.06. The exclusion of the Consent Assets (as
defined in the Guarantee and Collateral Agreement) from the Collateral does not
materially reduce the aggregate value of the Collateral.
(b) Each Mortgage creates or, upon execution and delivery by the
parties thereto, will create in favor of the Collateral Agent, for the benefit
of the Secured Parties, a legal, valid and enforceable Lien on all the
applicable mortgagor's right, title and interest in and to the Mortgaged
Properties subject thereto and the proceeds thereof, and the Mortgages create
or, when the Mortgages have been filed or registered in the counties specified
in Schedule 3.10(b), will create perfected Liens on all right, title and
interest of the mortgagors in the Mortgaged Properties and the proceeds thereof,
prior and superior in right to Liens in favor of any other Person (other than
Liens or other encumbrances for which exceptions are taken in the policies of
title insurance delivered in respect of the Mortgaged Properties on or prior to
the Restatement Date and Liens permitted under Section 6.06).
(c) The Guarantee and Collateral Agreement currently on file with the
United States Patent and Trademark Office and the Canadian Security Agreements
currently on file with the Canadian Intellectual Property Office, create in
favor of the Collateral Agent, for the benefit of the Secured Parties, a
perfected Lien on all right, title and interest of the Grantors in the Material
Intellectual Property in which a security interest may be perfected by such
recordation in the United States Patent and Trademark Office or the Canadian
Intellectual Property Office, as the case may be, in each case (i) prior and
superior in right to any other Person and (ii) subject to no other Lien other
than, in the case of (i) and (ii), Liens permitted under Section 6.06 (it being
understood
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that subsequent recordings in the United States Patent and Trademark Office or
the Canadian Intellectual Property Office, as the case may be, may be necessary
to perfect a Lien on registered trademarks and trademark applications acquired
by the Grantors after the Restatement Date). As of the Restatement Date,
Schedule 3.10(c) sets forth all the Material Intellectual Property.
(d) The Guarantee and Collateral Agreement currently on file with the
Federal Aviation Administration creates in favor of the Collateral Agent, for
the benefit of the Secured Parties, a perfected Lien on all right, title and
interest of the Grantors in the Aircraft Collateral (as defined in the Guarantee
and Collateral Agreement) in which a security interest may be perfected by such
recordation with the Federal Aviation Administration, in each case prior and
superior in right to any other Person, subject to no other Lien other than Liens
permitted under Section 6.06.
(e) None of the Restatement Date Perfection Certificate or any other
written information relating to the Collateral delivered after the date hereof
by or on behalf of any Credit Party to the Administrative Agent, the Collateral
Agent or any Lender pursuant to any provision of any Credit Document is or will
be incorrect when delivered in any respect material to the rights or interests
of the Lenders under the Credit Documents.
SECTION 3.11. Use of Proceeds and Letters of Credit. The proceeds of
the Loans and the Letters of Credit will be used only for the purposes referred
to in the preamble to this Agreement. No part of the proceeds of any Loan will
be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations T, U and
X.
ARTICLE IV
Conditions
SECTION 4.01. Restatement Date. This Agreement shall not become
effective until the date on which each of the following conditions is satisfied
(or waived or deferred in accordance with Section 9.02 or the penultimate
paragraph of this Section 4.01):
(a) The Administrative Agent shall have received favorable written
opinions (addressed to the Administrative Agent, the Lenders and the
Issuing Banks and dated the Restatement Date) of (i) Covington & Burling
LLP, counsel for the Borrower, substantially in the form of Exhibit E-1,
and (ii) the General Counsel, the Associate General Counsel or an Assistant
General Counsel of the Borrower, substantially in the form of Exhibit E-2,
and covering such other matters relating to the Credit Parties, the Credit
Documents or the Transactions as the Administrative Agent or the Majority
Lenders shall reasonably request.
(b) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request
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relating to the organization, existence and good standing of each Credit
Party, the authorization by the Credit Parties of the Transactions and any
other legal matters relating to the Borrower, the other Credit Parties, the
Credit Documents or the Transactions, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.
(c) The DF Commitments (as defined in the Existing Credit Agreement)
shall have terminated, all DF Loans (as defined in the Existing Credit
Agreement) shall have been repaid, all other amounts outstanding or accrued
for the accounts of or owing to the DF Lenders (as defined in the Existing
Credit Agreement), including their Deposits (as defined in the Existing
Credit Agreement) shall have been paid and all DF Letters of Credit (as
defined in the Existing Credit Agreement) shall have been canceled or
returned or continued hereunder as Existing Letters of Credit.
(d) The Obligations shall have been designated by the Borrower as, and
shall be, "Designated Senior Obligations" under the Lien Subordination and
Intercreditor Agreement.
(e) The amendment and restatement of the Second Lien Agreement shall
have become effective or shall concurrently become effective in
substantially the form thereof most recently posted to IntraLinks prior to
the date hereof with only such changes thereto as shall not be adverse to
the Lenders in any material respect and shall have been approved by the
Administrative Agent. All conditions to the effectiveness of the amendment
and restatement of the Second Lien Agreement shall have been satisfied. The
Collateral Agent and the collateral agent for the Second Lien Agreement
shall have reaffirmed application of the Lenders Lien Subordination
Agreement in respect of the Obligations and the obligations under the
amended and restated Second Lien Agreement.
(f) The representations and warranties set forth in Article III shall
be true and correct in all material respects on the Restatement Date and
the Administrative Agent shall have received a certificate signed by a
Financial Officer to that effect.
(g) The Borrower and the other Credit Parties shall be in compliance
with all the terms and provisions set forth herein and in the other Credit
Documents in all material respects on their part to be observed or
performed, and at the time of and immediately after the Restatement Date,
no Default shall have occurred and be continuing, and the Administrative
Agent shall have received a certificate signed by a Financial Officer to
that effect.
(h) The Administrative Agent shall have received all fees and other
amounts due and payable or accrued on or prior to the Restatement Date
hereunder or under the Existing Credit Agreement, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Borrower.
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(i) The Administrative Agent shall have received (i) a completed
Restatement Date Perfection Certificate dated the Restatement Date and
signed by a Financial Officer, together with all attachments contemplated
thereby, and (ii) the results of a search of the Uniform Commercial Code
(or equivalent) filings or registrations made with respect to the Credit
Parties in the jurisdictions referred to in paragraph 1 of the Restatement
Date Perfection Certificate and copies of the financing statements (or
similar documents) disclosed by such search.
(j) The Administrative Agent shall have received from the Borrower and
each Subsidiary Guarantor (other than the Excluded Subsidiaries and the
Consent Subsidiaries) a counterpart of the Reaffirmation Agreement duly
executed and delivered on behalf of the Borrower or such Subsidiary as a
Guarantor and (in the case of each Subsidiary that is a Grantor under the
Guarantee and Collateral Agreement or a Canadian Grantor under any Canadian
Security Agreement) a Grantor.
(k) The Collateral Agent shall have received certificates representing
all Capital Stock (other than any uncertificated Capital Stock) pledged
pursuant to the Guarantee and Collateral Agreement, together with undated
stock powers or other instruments of transfer with respect thereto endorsed
in blank.
(l) All Uniform Commercial Code financing statements or other personal
property security filings and recordations with the United States Patent
and Trademark Office, the Canadian Intellectual Property Office and the
Federal Aviation Administration required by law or reasonably requested by
the Collateral Agent to be filed or recorded to perfect or continue the
Liens intended to be created on the Collateral (to the extent such Liens
may be perfected or continued by filings under the Uniform Commercial Code
as in effect in any applicable jurisdiction or by filings or registrations
under applicable Canadian personal property security legislation or by
filings with the United States Patent and Trademark Office or the Federal
Aviation Administration) shall have been filed or recorded or delivered to
the Collateral Agent for filing or recording.
(m) The Collateral Agent shall have received (i) counterparts of an
amended and restated Mortgage with respect to each Mortgaged Property, duly
executed and delivered by the record owner of such Mortgaged Property, (ii)
endorsements issued by the applicable nationally recognized title insurance
company to each applicable policy of title insurance insuring the Lien of
each such Mortgage as amended and restated as a valid first Lien on the
Mortgaged Property described therein, free of any other Liens (other than
Liens referred to in such policies of title insurance and acceptable to the
Administrative Agent and Liens permitted by Section 6.06), together with
such other endorsements as the Collateral Agent or the Majority Lenders may
reasonably request, and (iii) such legal opinions and other documents as
shall reasonably have been requested by the Collateral Agent with respect
to any such amended and restated Mortgage or Mortgaged Property.
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(n) The Administrative Agent shall have received from each "Deposit
Account Institution" that is required to be party to a "Lockbox Agreement"
(as such terms are defined in the Guarantee and Collateral Agreement)
evidence that such agreement has been duly executed by all requisite
parties and has become effective.
(o) The Administrative Agent shall have received a Borrowing Base
Certificate and the related certificate of a Financial Officer in
accordance with the provisions of Section 5.09 of this Agreement after
giving effect to the amendment and restatement hereof on the Restatement
Date in replacement of the last monthly Borrowing Base Certificate
delivered prior to the Restatement Date.
The Collateral Agent may enter into agreements with the Borrower to
grant extensions of time for the perfection of security interests in or the
delivery of surveys, title insurance, legal opinions or other documents with
respect to particular assets where it determines that perfection cannot be
accomplished or such documents cannot be delivered without undue effort or
expense by the Restatement Date or any later date on which they are required to
be accomplished or delivered under this Agreement or the Security Documents. Any
failure of the Borrower to satisfy a requirement of any such agreement by the
date specified therein (or any later date to which the Collateral Agent may
agree) shall constitute a breach of the provision of this Agreement or the
Security Document under which the original requirement was applicable. Without
limiting the foregoing, it is anticipated that the actions listed on Schedule
4.01 will not have been completed by the Restatement Date, and the Borrower
covenants and agrees that each of such actions will be completed by the date
specified for such action in such Schedule 4.01 (or any later date to which the
Collateral Agent may agree) and that the Borrower will comply with all of the
undertakings set forth in Schedule 4.01.
The Administrative Agent shall notify the Borrower and the Lenders of
the Restatement Date in writing, and such notice shall be conclusive and
binding. Notwithstanding the foregoing, the obligations of the Lenders to make
Loans and the Issuing Banks to issue Letters of Credit hereunder shall not
become effective unless each of the foregoing conditions shall have been
satisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New
York City time, on April 30, 2007 (and, in the event such conditions are not so
satisfied or waived, the Total Commitment shall be reduced to zero at such
time).
SECTION 4.02. Each Credit Event. (a) The obligation of each Lender to
make a Loan on the occasion of any Borrowing (other than a conversion or
continuation of an outstanding Borrowing and other than a Borrowing to reimburse
an LC Disbursement made pursuant to Section 2.03(e)) and of each Issuing Bank to
issue, amend, renew or extend any Letter of Credit, shall be subject to the
satisfaction of the following conditions:
(1) The representations and warranties of the Borrower set forth
in this Agreement and in the other Credit Documents (insofar as the
representations and warranties in such other Credit Documents relate
to
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the transactions provided for herein or to the Collateral securing the
Obligations) shall be true and correct in all respects material to the
rights or interests of the Lenders or the Issuing Banks under the
Credit Documents on and as of the date of such Borrowing or the date
of issuance, amendment, renewal or extension of such Letter of Credit,
as applicable, with the same effect as though made on and as of such
date, except to the extent such representations and warranties
expressly relate to an earlier date.
(2) After giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as
applicable, the aggregate Credit Exposure shall not exceed the
Borrowing Base Availability then in effect.
(3) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default or Event of Default shall
have occurred and be continuing and no breach of the delivery
requirements of Section 5.01(a) or (b) shall have occurred and be
continuing.
(b) The obligation of each Lender to make a Loan on the occasion of
any Borrowing deemed to have been requested by the Borrower to reimburse an LC
Disbursement pursuant to Section 2.03(e) shall be subject to the satisfaction of
the conditions that (i) at the time of and immediately after giving effect to
such Borrowing, no Event of Default shall have occurred and be continuing, and
(ii) after giving effect to such Borrowing, the aggregate Credit Exposure shall
not exceed the Borrowing Base Availability then in effect.
(c) Each Borrowing and each issuance, amendment, renewal or extension
of a Letter of Credit shall be deemed to constitute a representation and
warranty by the Borrower on the date thereof as to the matters specified in
clauses (1), (2) and (3) of paragraph (a) above or in paragraph (b) above, as
the case may be.
ARTICLE V
Affirmative Covenants
Until the Commitments shall have been reduced to zero and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Administrative Agent, the Lenders and the Issuing Banks that:
SECTION 5.01. Financial Statements and Other Information. The Borrower
will furnish to the Administrative Agent and each Lender and Issuing Bank:
(a) as soon as available and in any event within 110 days after the
end of each fiscal year of the Borrower, its audited consolidated balance
sheet and
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related statements of income, stockholders' equity and cash flows as of the
end of and for such year, setting forth in each case in comparative form
the figures for the previous fiscal year, all reported on by
PricewaterhouseCoopers or other independent public accountants of
recognized national standing (without any qualification or exception as to
the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition
and results of operations of the Borrower and its Consolidated Subsidiaries
in accordance with GAAP consistently applied;
(b) as soon as available and in any event within 60 days after the end
of each of the first three fiscal quarters of each fiscal year of the
Borrower, its consolidated balance sheet and related statements of income,
stockholders' equity and cash flows as of the end of and for such fiscal
quarter and the then elapsed portion of the fiscal year, setting forth in
each case in comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its Consolidated Subsidiaries in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) other than in connection with the delivery of financial statements
for the fiscal period ended March 31, 2007, not later than one Business Day
after each delivery of financial statements under clause (a) or (b) above,
a certificate of a Financial Officer (i) certifying as to whether a Default
has occurred and, if a Default has occurred, specifying the details thereof
and any action taken or proposed to be taken with respect thereto, (ii)
demonstrating compliance with Section 6.09 at the end of the period to
which such financial statements relate and for each applicable period then
ended, and (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the most recent audited financial
statements delivered under clause (a) above (or, prior to the delivery of
any such financial statements, since December 31, 2006) and, if any such
change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the SEC, or any Governmental Authority
succeeding to any or all of the functions of the SEC, or with any national
securities exchange, or distributed by the Borrower to its shareholders
generally, as the case may be;
(e) other than in connection with the delivery of financial statements
for the fiscal period ended March 31, 2007, not later than one Business Day
after each delivery of financial statements under clause (a) or (b) above,
and at such other times as the Borrower may determine, a certificate of a
Financial Officer identifying each Domestic Subsidiary formed or acquired
after the Restatement
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Date and not previously identified in a certificate delivered pursuant to
this paragraph, stating whether each such Domestic Subsidiary is a Consent
Subsidiary and describing the factors that shall have led to the
identification of any such Domestic Subsidiary as a Consent Subsidiary;
(f) from time to time, all information and documentation required to
be delivered under Section 4.04 of the Guarantee and Collateral Agreement;
(g) other than in connection with the delivery of financial statements
for the fiscal period ended March 31, 2007, not later than one Business Day
after each delivery of financial statements under clause (a) or (b) above,
a certificate of a Financial Officer of the Borrower certifying that the
requirements of Section 5.08 have been satisfied in all material respects;
and
(h) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of this Agreement
or the other Credit Documents, or the perfection of the security interests
created by the Security Documents, as the Administrative Agent or any
Lender may reasonably request.
Information required to be delivered pursuant to this Section 5.01
shall be deemed to have been delivered if such information, or one or more
annual or quarterly reports containing such information, shall have been posted
by the Administrative Agent on an IntraLinks or similar site to which the
Lenders have been granted access or shall be available on the website of the SEC
at http://www.sec.gov; provided that the Borrower shall deliver paper copies of
such information to any Lender that requests such delivery. Information required
to be delivered pursuant to this Section 5.01 may also be delivered by
electronic communications pursuant to procedures approved by the Administrative
Agent.
SECTION 5.02. Notices of Defaults. The Borrower will furnish to the
Administrative Agent, each Issuing Bank and each Lender prompt written notice of
the occurrence of any Default, together with a statement of a Financial Officer
or other executive officer of the Borrower setting forth the details of the
event or development requiring such notice and any action taken or proposed to
be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and
will cause each of the Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business, except to the extent that failures to keep in
effect such rights, licenses, permits, privileges and franchises would not be
materially likely, individually or in the aggregate for all such failures, to
result in a Material Adverse Change; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 6.08.
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SECTION 5.04. Maintenance of Properties. The Borrower will, and will
cause each of the Subsidiaries to, keep and maintain all its property in good
working order and condition, ordinary wear and tear excepted, except to the
extent any failure to do so would not, individually or in the aggregate, be
materially likely to result in a Material Adverse Change (it being understood
that the foregoing shall not prohibit any sale of any assets permitted by
Section 6.04).
SECTION 5.05. Books and Records; Inspection and Audit Rights. (a) The
Borrower will, and will cause each of the Subsidiaries to, keep books of record
and account sufficient to enable the Borrower to prepare the financial
statements and other information required to be delivered under Section 5.01.
The Borrower will, and will cause each of the Subsidiaries to, permit any
representatives designated by the Administrative Agent (or by any Lender acting
through the Administrative Agent), upon reasonable prior notice, to visit and
inspect its properties (accompanied by a representative of the Borrower) and to
discuss its affairs, finances and condition with its officers, all at such
reasonable times and as often as reasonably requested.
(b) The Borrower will, and will cause each of the other Grantors to,
permit any representatives designated by the Administrative Agent (including any
consultants, accountants, lawyers and appraisers retained by the Administrative
Agent) (or by any Lender acting through the Administrative Agent) to conduct one
evaluation and one appraisal in any fiscal year of the Borrower's computation of
the Borrowing Base and the assets included in the Borrowing Base and such other
assets and properties of the Borrower or the Subsidiaries as the Administrative
Agent or Majority Lenders may reasonably require, all at reasonable times and
upon reasonable advance notice to the Borrower and, if reasonably requested at
any time when Available Commitments shall be less than $150,000,000 or when a
Default or Event of Default shall have occurred and shall be continuing, up to
one additional evaluation and up to one additional appraisal in any fiscal year.
The Borrower shall pay the reasonable fees (including reasonable and customary
internally allocated fees and expenses of employees of the Administrative Agent
as to which invoices have been furnished) and expenses of any third party
representatives retained by the Administrative Agent as to which invoices have
been furnished to conduct any such evaluation or appraisal, including the
reasonable fees and expenses associated with collateral monitoring services
performed by the IB ABL Portfolio Management Group of the Administrative Agent
to the extent not otherwise agreed in writing by the Borrower and the
Administrative Agent. Upon the request of any Lender, the Administrative Agent
shall share the results of any such evaluation or appraisal with such Lender. To
the extent required by the Administrative Agent or the Majority Lenders in their
discretion (not to be exercised unreasonably) as a result of any such
evaluation, appraisal or monitoring, the Borrower also agrees to modify or
adjust the computation of the Borrowing Base (which may include maintaining
additional reserves or modifying the eligibility criteria for the components of
the Borrowing Base, but not modifying the specifically enumerated advance rates
specified in the definition of the "Borrowing Base"). Any such modification or
adjustment required by the Administrative Agent or the Majority Lenders shall be
made by written notice to the Borrower setting forth in reasonable detail the
basis for such modification or adjustment, and shall become effective for
purposes of the first Borrowing Base Certificate that is delivered pursuant to
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Section 5.09 at least five Business Days after the date of receipt by the
Borrower of such written notice.
(c) In the event that historical accounting practices, systems or
reserves relating to the components of the Borrowing Base are modified in a
manner that is adverse to the Lenders in any material respect, the Borrower will
agree to maintain such additional reserves (for purposes of computing the
Borrowing Base) in respect of the components of the Borrowing Base and make such
other adjustments to its parameters for including the components of the
Borrowing Base as the Administrative Agent or the Majority Lenders in their
discretion (not to be exercised unreasonably) shall reasonably require based
upon such modifications.
SECTION 5.06. Compliance with Laws. The Borrower will, and will cause
each of the Subsidiaries to, comply with all laws, including Environmental Laws,
rules, regulations and orders of any Governmental Authority applicable to it or
its property, except where the failure to do so, individually or in the
aggregate, would not be materially likely to result in a Material Adverse
Change.
SECTION 5.07. Insurance. The Borrower will, and will cause each of the
Subsidiaries to, maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks as are customary
among companies of established reputation engaged in the same or similar
businesses and operating in the same or similar locations, except to the extent
the failure to do so would not be materially likely to result in a Material
Adverse Change. The Borrower will furnish to the Administrative Agent or any
Lender, upon request, information in reasonable detail as to the insurance so
maintained.
SECTION 5.08. Guarantees and Collateral. (a) In the event that there
shall at any time exist any North American Subsidiary (other than an Excluded
Subsidiary or Consent Subsidiary) that shall not be a party to the Guarantee and
Collateral Agreement or the Canadian Security Agreements, as the case may be,
the Borrower will promptly notify the Collateral Agent (including in such notice
the information that would have been required to be set forth with respect to
such Subsidiary in the Restatement Date Perfection Certificate if such
Subsidiary had been one of the Grantors listed therein) and will, within 30 days
(or such longer period as may be reasonable under the circumstances) after such
notification, deliver to the Collateral Agent a supplement to the Guarantee and
Collateral Agreement or the Canadian Security Agreements, as the case may be, in
substantially the form specified therein, duly executed and delivered on behalf
of such North American Subsidiary, pursuant to which such North American
Subsidiary will become a party to the Guarantee and Collateral Agreement and a
Subsidiary Guarantor and, if it elects to become a Grantor or if its Total
Assets are greater than $10,000,000 as of December 31, 2006, or if later, as of
the end of the most recent fiscal quarter for which financial statements have
been delivered pursuant to Section 5.01(a) or (b), a Grantor, in each case as
defined in the Guarantee and Collateral Agreement.
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(b) In the event that the Borrower or any other Grantor shall at any
time directly own any Capital Stock of any Subsidiary (other than (i) Capital
Stock in any Subsidiary with Total Assets not greater than $10,000,000 as of
December 31, 2006, or if later, as of the end of the most recent fiscal quarter
for which financial statements have been delivered pursuant to Section 5.01(a)
or (b), (ii) Capital Stock in any Excluded Subsidiary or Consent Subsidiary and
(iii) Capital Stock already pledged in accordance with this paragraph or Section
4.01(k)), the Borrower will promptly notify the Collateral Agent and will,
within 30 days (or such longer period as may be reasonable under the
circumstances) after such notification, cause such Capital Stock to be pledged
under the Guarantee and Collateral Agreement and cause to be delivered to the
Collateral Agent any certificates representing such Capital Stock, together with
undated stock powers or other instruments of transfer with respect thereto
endorsed in blank; provided, that (A) no Grantor shall be required to pledge
more than 65% of outstanding voting Capital Stock of any Foreign Subsidiary and
(B) no Grantor shall be required to pledge any Capital Stock in any Foreign
Subsidiary if a Financial Officer shall have delivered a certificate to the
Administrative Agent certifying that the Borrower has determined, on the basis
of reasonable inquiries in the jurisdiction of such Person, that such pledge
would affect materially and adversely the ability of such Person to conduct its
business in such jurisdiction.
(c) In the event that the Borrower or any other Grantor shall at any
time directly own any Capital Stock of any Material Foreign Subsidiary (other
than Capital Stock already pledged in accordance with this paragraph and Capital
Stock in any Consent Subsidiary), the Borrower will promptly notify the
Collateral Agent and will take all such actions as the Collateral Agent shall
reasonably request and as shall be available under applicable law to cause such
Capital Stock to be pledged under a Foreign Pledge Agreement and cause to be
delivered to the Collateral Agent any certificates representing such Capital
Stock, together with undated stock powers or other instruments of transfer with
respect thereto endorsed in blank; provided, that (A) no Grantor shall be
required to pledge more than 65% of outstanding voting Capital Stock of any
Foreign Subsidiary and (B) no Grantor shall be required to pledge any Capital
Stock in any Person if a Financial Officer shall have delivered a certificate to
the Administrative Agent certifying that the Borrower has determined, on the
basis of reasonable inquiries in the jurisdiction of such Person, that such
pledge would affect materially and adversely the ability of such Person to
conduct its business in such jurisdiction.
(d) In the event that the Borrower or any other Grantor shall at any
time own any Material Intellectual Property (other than Material Intellectual
Property as to which the actions required by this paragraph have already been
taken), the Borrower will promptly notify the Collateral Agent and will file all
Uniform Commercial Code financing statements or other applicable personal
property security law filings and recordations with the Patent and Trademark
Office or the Canadian Intellectual Property Office as shall be required by law
or reasonably requested by the Collateral Agent to be filed or recorded to
perfect the Liens intended to be created on the Collateral (to the extent such
Liens may be perfected by filings under the Uniform Commercial Code or other
personal property security legislation as in effect in any applicable
jurisdiction or by filings with the United States Patent and Trademark Office or
the Canadian
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Intellectual Property Office); provided, that if the consents of Persons other
than the Borrower and the Wholly Owned Subsidiaries would be required under
applicable law or the terms of any agreement in order for a security interest to
be created in any Material Intellectual Property under the Guarantee and
Collateral Agreement or the Canadian Security Agreements, as the case may be, a
security interest shall not be required to be created in such Material
Intellectual Property prior to the obtaining of such consents. The Borrower will
endeavor in good faith to obtain any consents required to permit any security
interest in Material Intellectual Property to be created under the Guarantee and
Collateral Agreement or the Canadian Security Agreements, as the case may be.
(e) The Borrower will, and will cause each Subsidiary to, execute any
and all further documents, financing statements, agreements and instruments, and
take all such further actions, as may be reasonably requested by the Collateral
Agent in order to cause the security interests purported to be created by the
Security Documents or required to be created under the terms of this Agreement
to constitute valid security interests, perfected in accordance with this
Agreement.
SECTION 5.09. Borrowing Base Certificate. (a) The Borrower will
furnish to the Administrative Agent, no later than (i) 15 days following the end
of each fiscal month (or, if such day is not a Business Day, the next succeeding
Business Day), a completed Borrowing Base Certificate showing the Borrowing Base
as of the close of business on the last day of such immediately preceding fiscal
month as outlined in Exhibit F, (ii) if Available Commitments shall be
$150,000,000 or less for each of five consecutive Business Days, on the
Wednesday (or if such Wednesday is not a Business Day, on the next succeeding
Business Day) of the next succeeding week following the last day of such five
consecutive Business Day period a Borrowing Base Certificate calculating
"Available accounts receivable" and Available Cash as of Saturday of the
immediately preceding week and showing "Available inventory" as of the most
recently delivered month-end Borrowing Base Certificate, and (iii) if requested
by the Administrative Agent, at any other time when the Administrative Agent
reasonably believes that the then existing Borrowing Base Certificate is
materially inaccurate, as soon as reasonably practicable but in no event later
than five Business Days after such request, a completed Borrowing Base
Certificate showing the Borrowing Base and Available Cash as of the date so
requested, in each case with such supporting documentation and additional
reports with respect to the Borrowing Base as the Administrative Agent may
reasonably request.
(b) The Borrower will furnish to the Administrative Agent at the time
of each delivery of the Borrowing Base Certificate under clause (a) above (and
in any event not later than 15 days following the end of each fiscal month (or,
if such day is not a Business Day, the next succeeding Business day)), a
certificate of a Financial Officer in the form attached as Annex I to Exhibit F
hereto specifying, to the best of such Financial Officer's knowledge, as of the
date of the information reported in such Borrowing Base Certificate (i) the
aggregate cash and cash equivalents of the Borrower and its Subsidiaries held in
the United States, (ii) the aggregate cash and cash equivalents of the Borrower
and its Subsidiaries held other than in the United States, (iii) for each of
this Agreement and the European Facilities Agreement, the undrawn amount
available to be
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drawn hereunder and thereunder, respectively, (iv) the aggregate accounts
payable position of the Borrower and the Domestic Subsidiaries and (v) Available
Cash.
ARTICLE VI
Negative Covenants
Until the Commitments shall have been reduced to zero and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Administrative Agent, the Lenders and the Issuing Banks that:
SECTION 6.01. Limitation on Indebtedness. (a) The Borrower shall not,
and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided, however, that the Borrower or any
Subsidiary Guarantor may Incur Indebtedness if on the date of such Incurrence
and after giving effect thereto and the application of the proceeds therefrom
the Consolidated Coverage Ratio would be greater than 2.0:1.0.
(b) Notwithstanding the foregoing paragraph (a), the Borrower 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 Borrower's obligations
under Section 6.04 of the Second Lien Agreement (as in effect on the
date hereof), and (B) the sum of (i) 60% of the book value of the
inventory of the Borrower and its Restricted Subsidiaries plus (ii)
80% of the book value of the accounts receivable of the Borrower and
its Restricted Subsidiaries (other than any accounts receivable
pledged, sold or otherwise transferred or encumbered by the Borrower
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; provided that not more than $1,750,000,000 of the
Indebtedness outstanding at any time under this clause (x) shall
benefit from first priority security interests in the Collateral, and
(y) European Bank Indebtedness in an aggregate principal amount not to
exceed E525,000,000; provided, however, that the amount of
Indebtedness that may be Incurred pursuant to this clause (1) shall be
reduced by any amount of Indebtedness Incurred and then outstanding
pursuant to the election provision of clause (10)(A)(ii) below;
(2) Indebtedness of the Borrower owed to and held by any
Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owed
to and held by the Borrower or any Restricted Subsidiary; provided,
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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 Borrower or a
Restricted Subsidiary) shall be deemed, in each case, to constitute
the Incurrence of such Indebtedness by the issuer thereof;
(3) Indebtedness (A) outstanding on the Restatement Date (other
than the Indebtedness described in clauses (1) and (2) above and
clause (12) below), and (B) consisting of Refinancing Indebtedness
Incurred in respect of any Indebtedness described in this clause (3)
(including Indebtedness that is Refinancing Indebtedness) or the
foregoing paragraph (a);
(4) (A) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted
Subsidiary was acquired by the Borrower 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
Borrower); provided, however, that on the date that such Restricted
Subsidiary is acquired by the Borrower, (i) the Borrower 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 Borrower 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 Borrower'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 Borrower as of the end of
the most recent fiscal quarter for which financial statements have
been filed with the SEC;
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(7) Indebtedness Incurred by a Receivables Entity in a Qualified
Receivables Transaction;
(8) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business;
provided, however, that such Indebtedness is extinguished within five
Business Days of a Financial Officer's becoming aware of its
Incurrence;
(9) any Guarantee by the Borrower or a Restricted Subsidiary of
Indebtedness or other obligations of the Borrower or any of its
Restricted Subsidiaries so long as the Incurrence of such Indebtedness
or other obligations by the Borrower or such Restricted Subsidiary is
permitted under the terms of this Agreement (other than Indebtedness
Incurred pursuant to clause (4) above);
(10) (A) Indebtedness of Foreign Restricted Subsidiaries in an
aggregate principal amount that, when added to all other Indebtedness
Incurred pursuant to this clause (10)(A) and then outstanding, will
not exceed (i) $900,000,000 plus (ii) any amount then permitted to be
Incurred pursuant to clause (1) above that the Borrower instead elects
to Incur pursuant to this clause (10)(A);
(B) Indebtedness of EEMEA Subsidiaries in an aggregate
principal amount not to exceed $500,000,000; and
(C) Indebtedness of Foreign Restricted Subsidiaries Incurred
in connection with a Qualified Receivables Transaction in an
amount not to exceed E350,000,000 at any one time
outstanding;
(11) Indebtedness constituting unsecured Indebtedness or Secured
Indebtedness in an amount not to exceed $850,000,000 and Refinancing
Indebtedness in respect thereof; provided that any such Secured
Indebtedness may be secured solely with assets that do not constitute
Collateral;
(12) Senior Subordinated-Lien Indebtedness and the related
Guarantees by Subsidiaries of the Borrower and Refinancing
Indebtedness in respect thereof; and
(13) Indebtedness of the Borrower and the Restricted Subsidiaries
in an aggregate principal amount on the date of Incurrence that, when
added to all other Indebtedness Incurred pursuant to this clause (13)
and then outstanding, will not exceed $150,000,000.
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(c) For purposes of determining the outstanding principal amount of
any particular Indebtedness Incurred pursuant to this Section 6.01:
(1) Outstanding Indebtedness Incurred pursuant to this Agreement,
the Second Lien Agreement or the European Facilities Agreement prior
to or on the Restatement Date shall be deemed to have been Incurred
pursuant to clause (1) of paragraph (b) above;
(2) Indebtedness permitted by this Section 6.01 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 6.01,
the Borrower, in its sole discretion, shall classify such Indebtedness
(or any portion thereof) as of the time of Incurrence and will only be
required to include the amount of such Indebtedness in one of such
clauses (provided that any Indebtedness originally classified as
Incurred pursuant to Sections 6.01(b)(2) through (b)(13) may later be
reclassified as having been Incurred pursuant to Section 6.01(a) or
any other of Sections 6.01(b)(2) through (b)(13) to the extent that
such reclassified Indebtedness could be Incurred pursuant to Section
6.01(a) or one of Sections 6.01(b)(2) through (b)(13), as the case may
be, if it were Incurred at the time of such reclassification).
(d) For purposes of determining compliance as of any date with any
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 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 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 (i) 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 (ii) 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.
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SECTION 6.02. Limitation on Restricted Payments. (a) The Borrower
shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to make any Restricted Payment if at the time the Borrower or such
Restricted Subsidiary makes any Restricted Payment:
(1) a Default will have occurred and be continuing (or would
result therefrom);
(2) the Borrower could not Incur at least $1.00 of additional
Indebtedness under Section 6.01(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 Borrower,
whose determination will be conclusive; provided, however, that with
respect to any noncash Restricted Payment in excess of $25,000,000,
the amount so expended shall be determined in accordance with the
provisions of the definition of Fair Market Value) declared or made
subsequent to the Reference Date would exceed the sum, without
duplication, of:
(i) 50% of the Consolidated Net Income accrued during the
period (treated as one accounting period) from the beginning of
the fiscal quarter immediately following the fiscal quarter
during which the Reference Date occurs to the end of the most
recent fiscal quarter for which financial statements have been
filed with the SEC prior to the date of such Restricted Payment
(or, in case such Consolidated Net Income will be a deficit,
minus 100% of such deficit);
(ii) 100% of the aggregate Net Cash Proceeds received by the
Borrower from the issuance or sale of its Capital Stock (other
than Disqualified Stock) subsequent to the Reference Date (other
than an issuance or sale to a Subsidiary of the Borrower and
other than an issuance or sale to an employee stock ownership
plan or to a trust established by the Borrower or any of its
Subsidiaries for the benefit of their employees) and 100% of any
cash capital contribution received by the Borrower from its
shareholders subsequent to the Reference Date;
(iii) the amount by which Indebtedness of the Borrower or
its Restricted Subsidiaries is reduced on the Borrower's
Consolidated balance sheet upon the conversion or exchange (other
than by a Subsidiary of the Borrower) subsequent to the Reference
Date of any Indebtedness of the Borrower or its Restricted
Subsidiaries issued after the Reference Date which is convertible
or exchangeable for capital stock (other than Disqualified Stock)
of the Borrower (less the amount of any cash or the Fair Market
98
Value of other property distributed by the Borrower 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
Borrower 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 Investments
and proceeds representing the return of capital (excluding
dividends and distributions), in each case realized by the
Borrower or any Restricted Subsidiary, and (y) to the extent such
Person is an Unrestricted Subsidiary, the portion (proportionate
to the Borrower's Capital Stock in such Subsidiary) of the fair
market value of the net assets of such Unrestricted Subsidiary at
the time such Unrestricted Subsidiary is designated a Restricted
Subsidiary; provided, however, that the foregoing sum shall not
exceed, in the case of any such Person or Unrestricted
Subsidiary, the amount of Investments (excluding Permitted
Investments) previously made (and treated as a Restricted
Payment) by the Borrower or any Restricted Subsidiary in such
Person or Unrestricted Subsidiary.
(b) The provisions of Section 6.02(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 Borrower (other than Disqualified Stock and other than
Capital Stock issued or sold to a Subsidiary of the Borrower or an
employee stock ownership plan or to a trust established by the
Borrower 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 Borrower 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 Borrower from its
shareholders; provided, however, that:
(A) such Restricted Payment shall be excluded in the
calculation of the amount of Restricted Payments under Section
6.02(a)(3), and
(B) the Net Cash Proceeds from such sale applied in the
manner set forth in Section 6.02(b)(1) shall be excluded from the
calculation of amounts under Section 6.02(a)(3)(ii);
(2) any prepayment, repayment or Purchase for value of
Subordinated Obligations (i) that are made by exchange for, or out of
the proceeds of the sale of, other Subordinated Obligations (which (x)
satisfy each of clauses (4) and (5) of the definition of Refinancing
Indebtedness in
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respect of the Subordinated Obligations being prepaid, repaid or
Purchased and (y) may include Indebtedness Incurred under Section
6.01(a)) or the Net Cash Proceeds of a sale of Capital Stock of the
Borrower; provided, in each case, that the public announcement of the
launch of such prepayment, repayment or Purchase for value is made
within three months of such sale of Subordinated Obligations or
Capital Stock, or (ii) if, at the time thereof, the Borrower shall, on
a pro forma basis after giving effect to such prepayment, repayment or
Purchase for value, have $150,000,000 or more of Available
Commitments; provided, however, that each such prepayment, repayment
or Purchase for value under this paragraph (2) shall be excluded in
the calculation of the amount of Restricted Payments under Section
6.02(a)(3);
(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 under Section 6.02(a)(3);
(4) any Purchase for value of Capital Stock of the Borrower or
any of its Subsidiaries from employees, former employees, directors or
former directors of the Borrower or any of its Subsidiaries (or
permitted transferees of such employees, former employees, directors
or former directors), pursuant to the terms of agreements (including
employment agreements) or plans (or amendments thereto) approved by
the Board of Directors under which such individuals purchase or sell
or are granted the option to purchase or sell, shares of such Capital
Stock; provided, however, that the aggregate amount of such Purchases
for value will not exceed $10,000,000 in any calendar year; provided
further, however, that any of the $10,000,000 permitted to be applied
for Purchases under this Section 6.02(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 under Section 6.02(a)(3);
(5) so long as no Default has occurred and is continuing,
payments of dividends on Disqualified Stock issued after the Reference
Date pursuant to Section 6.01; provided, however, that such dividends
shall be included in the calculation of the amount of Restricted
Payments under Section 6.02(a)(3);
(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 under Section 6.02(a)(3);
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(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; provided, however, that such
prepayment, repayment or Purchase for value shall be excluded in the
calculation of the amount of Restricted Payments under Section
6.02(a)(3);
(8) so long as no Default has occurred and is continuing, any
prepayment, repayment or Purchase for value of Subordinated
Obligations from Net Available Cash (assuming for purposes of the
definition of Net Available Cash as used in this clause (8) that the
Specified Asset Sale was an Asset Disposition) from the Specified
Asset Sale set forth in clause (i) of the definition thereof within
180 days after the receipt of such proceeds; provided, however, that
such prepayment, repayment or Purchase for value shall be excluded in
the calculation of the amount of Restricted Payments under Section
6.02(a)(3);
(9) so long as no Default has occurred and is continuing, any
prepayment, repayment or Purchase for value of any Indebtedness within
365 days of the Stated Maturity of such Indebtedness; provided,
however, that such prepayment, repayment or Purchase for value shall
be excluded in the calculation of the amount of Restricted Payments
under Section 6.02(a)(3);
(10) 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 under
Section 6.02(a)(3);
(11) so long as no Default has occurred and is continuing, any
prepayment, repayment or Purchase for value of Second Lien
Indebtedness or Indebtedness under or in respect of the Third Lien
Agreement or the Borrower's 11% Senior Secured Notes due 2011, Senior
Secured Floating Rate Notes due 2011, 4% Convertible Senior Notes due
2034 or Floating Rate Notes due 2009; provided, however, that such
prepayment, repayment or Purchase for value shall be excluded in the
calculation of the amount of Restricted Payments under Section
6.02(a)(3); or
(12) any Restricted Payment in an amount which, when taken
together with all Restricted Payments made after the Reference Date
pursuant to this Section 6.02(b)(12), does not exceed $50,000,000;
provided, however, that
(A) at the time of each such Restricted Payment, no Default
shall have occurred and be continuing (or result therefrom); and
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(B) such Restricted Payments shall be included in the
calculation of the amount of Restricted Payments under Section
6.02(a)(3).
SECTION 6.03. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Borrower 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 Borrower;
(2) make any loans or advances to the Borrower; or
(3) transfer any of its property or assets to the Borrower, 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 Restatement 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 Borrower (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 Borrower) 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 6.03(3)(A) or Section 6.03(3)(B) or
this Section 6.03(3)(C) or contained in any amendment to an agreement
referred to in Section 6.03(3)(A) or Section 6.03(3)(B) or this
Section 6.03(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 Lenders than the
encumbrances and restrictions contained in such predecessor
agreements;
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(D) in the case of Section 6.03(3), any encumbrance or
restriction:
(i) that restricts in a customary manner the subletting,
assignment or transfer of any property or asset that is subject to a
lease, license or similar contract, or the assignment or transfer of
any such lease, license or other contract; or
(ii) contained in mortgages, pledges and other security
agreements securing Indebtedness of a Restricted Subsidiary to the
extent such encumbrance or restriction restricts the transfer of the
property subject to such security agreements;
(E) with respect to a Restricted Subsidiary, any restriction
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets of
such Restricted Subsidiary pending the closing of such sale or
disposition;
(F) any encumbrance or restriction existing under or by reason of
Indebtedness or other contractual requirements of a Receivables Entity
in connection with a Qualified Receivables Transaction; provided,
however, that such restrictions apply only to such Receivables Entity;
(G) purchase money obligations for property acquired in the
ordinary course of business and Capitalized Lease Obligations that
impose restrictions on the property purchased or leased of the nature
described in Section 6.03(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 Restricted 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
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(ii) at the time such Indebtedness is Incurred, such encumbrance
or restriction is not expected to materially affect the Borrower's
ability to make principal or interest payments on the Obligations, as
determined in good faith by a Financial Officer of the Borrower, whose
determination shall be conclusive.
SECTION 6.04. Limitation on Sales of Assets and Subsidiary Stock. (a)
The Borrower shall not, and shall not permit any Restricted Subsidiary to, make
any Asset Disposition unless:
(1) the Borrower 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; and
(2) at least 75% of the consideration therefor received by the
Borrower or such Restricted Subsidiary is in the form of cash or
Additional Assets.
(b) For the purposes of this covenant, the following are deemed to be
cash:
(1) the assumption of Indebtedness or other obligations of the
Borrower (other than obligations in respect of Disqualified Stock of
the Borrower) 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
Borrower 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 Borrower as shown on the most recent balance sheet of
the Borrower filed with the SEC;
(3) securities, notes or similar obligations received by the
Borrower or any Restricted Subsidiary from the transferee that are
promptly converted by the Borrower or such Restricted Subsidiary into
cash; and
(4) Temporary Cash Investments.
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(c) Upon receipt of written notice from the Borrower to the Collateral
Agent, the Collateral Agent is hereby authorized and directed to release any
security interest under any Security Document in any Capital Stock of any
Foreign Subsidiary transferred, for tax planning or other business purposes,
consistent with the Borrower's past practices, to any Foreign Subsidiary whose
Capital Stock has been pledged under any of the Security Documents if either (i)
the transferor of such Capital Stock is the Borrower or a Domestic Subsidiary
and such release is required in order to obtain the desired amount of
consideration from such transfer, or (ii) after giving effect to such transfer,
the aggregate fair value of all such Capital Stock (other than Capital Stock
transferred in a transaction described in the immediately preceding clause (i)),
determined as of the date of each respective transfer, does not exceed, for all
such transfers, $250,000,000.
SECTION 6.05. Limitation on Transactions with Affiliates. (a) The
Borrower 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 Borrower (an "Affiliate
Transaction") unless such transaction is on terms:
(1) that are no less favorable to the Borrower or such Restricted
Subsidiary, as the case may be, than those that could be obtained at
the time of such transaction in arm's-length dealings with a Person
who is not such an Affiliate,
(2) that, in the event such Affiliate Transaction involves an
aggregate amount in excess of $25,000,000,
(A) are set forth in writing, and
(B) have been approved by a majority of the members of the
Board of Directors having no personal stake in such Affiliate
Transaction; and
(3) that, in the event such Affiliate Transaction involves an
amount in excess of $75,000,000, have been determined by a nationally
recognized appraisal, accounting or investment banking firm to be
fair, from a financial standpoint, to the Borrower and its Restricted
Subsidiaries.
(b) The provisions of Section 6.05(a) will not prohibit:
(1) any Restricted Payment permitted to be paid pursuant to
Section 6.02;
(2) any issuance of securities, or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding
of, employment
105
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 Borrower pursuant to plans approved by the Board of
Directors,
(4) loans or advances to employees in the ordinary course of
business of the Borrower;
(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 Borrower and its
Restricted Subsidiaries in the ordinary course of business;
(6) any transaction between or among any of the Borrower, any
Restricted Subsidiary or any joint venture or similar entity which
would constitute an Affiliate Transaction solely because the Borrower
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 Borrower;
(8) any agreement as in effect on the Restatement Date described
in the Borrower's SEC filings as filed on or prior to the Restatement
Date, or any renewals, extensions or amendments of any such agreement
(so long as such renewals, extensions or amendments are not less
favorable in any material respect to the Borrower 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 Agreement
which are fair to the Borrower 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.
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SECTION 6.06. Limitation on Liens. The Borrower shall not, and shall
not permit any Restricted Subsidiary to, directly or indirectly, Incur or permit
to exist any Lien of any nature whatsoever on any of its property or assets
(including Capital Stock of a Restricted Subsidiary), whether owned at the
Restatement Date or thereafter acquired, securing any Indebtedness, except:
(a) Liens to secure Indebtedness permitted pursuant to Section
6.01(b)(1); provided that any collateral securing Second Lien Indebtedness shall
also constitute Collateral and any Lien securing Second Lien Indebtedness shall
be subordinated to the Liens securing the Obligations, on the terms set forth in
the Lenders Lien Subordination and Intercreditor Agreement;
(b) Liens to secure Indebtedness permitted pursuant to Section
6.01(b)(12); provided that any Liens to secure Indebtedness permitted pursuant
to Section 6.01(b)(12) shall be subordinate and junior to the Liens securing the
Obligations on the terms set forth in the Lien Subordination and Intercreditor
Agreement;
(c) pledges or deposits by such Person under workers' compensation
laws, unemployment insurance laws or similar legislation, or good faith deposits
in connection with bids, tenders, contracts (other than for the payment of
Indebtedness) or leases to which such Person is a party, or deposits to secure
public or statutory obligations of such Person or deposits of cash or United
States government bonds to secure surety or appeal bonds to which such Person is
a party, or deposits as security for contested taxes or import duties or for the
payment of rent, in each case Incurred in the ordinary course of business;
(d) 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;
(e) 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;
(f) Liens on assets not constituting Collateral under this Agreement
which secure obligations under undrawn letters of credit and bank guarantees or
are in favor of issuers of surety or performance bonds 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 and bank guarantees do
not constitute Indebtedness;
(g) 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
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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;
(h) 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 6.01(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;
(i) Liens existing on the Restatement Date and set forth in Schedule
6.06; provided that (x) such Lien shall not apply to any other property or asset
of the Borrower or any Restricted Subsidiary and (y) such Lien shall secure only
those obligations which it secured on the date hereof and extensions, renewals
and replacements thereof that do not increase the outstanding principal amount
hereof (other than Liens referred to in the foregoing clauses (a) and (b));
(j) Liens on property or shares of stock of another Person at the time
such other Person becomes a Subsidiary of such Person; provided, however, that
such Liens are not created, Incurred or assumed in connection with, or in
contemplation of, such other Person becoming such a Subsidiary; provided
further, however, that such Liens do not extend to any other property owned by
such Person or any of its Subsidiaries, except pursuant to after-acquired
property clauses existing in the applicable agreements at the time such Person
becomes a Subsidiary which do not extend to property transferred to such Person
by the Borrower or a Restricted Subsidiary;
(k) 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;
(l) Liens securing Indebtedness or other obligations of a Subsidiary
of such Person owing to such Person or a Restricted Subsidiary of such Person;
(m) Liens securing Hedging Obligations so long as such Hedging
Obligations are permitted to be Incurred under this Agreement;
(n) Liens on assets not constituting Collateral under this Agreement
which secure Indebtedness of any Foreign Restricted Subsidiary Incurred under
Section 6.01(b)(10);
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(o) Liens to secure any Refinancing (or successive Refinancings) as a
whole, or in part, of any Indebtedness secured by any Lien referred in the
foregoing clauses (h), (i), (j) and (k); provided, however, that:
(1) 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
(2) the Indebtedness secured by such Lien at such time is not
increased to any amount greater than the sum of:
(A) the outstanding principal amount or, if greater,
committed amount of the Indebtedness secured by Liens described
under clauses (h), (i), (j) or (k) at the time the original Lien
became a permitted Lien under this Agreement; and
(B) an amount necessary to pay any fees and expenses,
including premiums, related to such Refinancings;
(p) Liens on accounts receivables and related assets of the type
specified in the definition of "Qualified Receivables Transaction" not
constituting Collateral under this Agreement Incurred in connection with a
Qualified Receivables Transaction;
(q) 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;
(r) 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;
(s) leases and subleases of real property which do not materially
interfere with the ordinary conduct of the business of the Borrower and its
Subsidiaries;
(t) 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;
(u) 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;
(v) 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;
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(w) Liens on assets not constituting Collateral under this Agreement
which secure Indebtedness Incurred under Section 6.01(b)(11) or (13);
(x) Liens on assets subject to Sale/Leaseback Transactions; provided
that the aggregate outstanding Attributable Debt in respect thereof shall not at
any time exceed $125,000,000; and
(y) other Liens on assets that do not constitute Collateral to secure
Indebtedness as long as the amount of outstanding Indebtedness secured by Liens
Incurred pursuant to this clause (x) does not exceed 5.0% of Consolidated assets
of the Borrower, as determined based on the consolidated balance sheet of the
Borrower as of the end of the most recent fiscal quarter for which financial
statements have been filed with the SEC; provided, however, that notwithstanding
whether this clause (y) would otherwise be available to secure Indebtedness,
Liens securing Indebtedness originally secured pursuant to this clause (y) may
secure Refinancing Indebtedness in respect of such Indebtedness and such
Refinancing Indebtedness shall be deemed to have been secured pursuant to this
clause (y).
For the avoidance of doubt, each reference in this Section or any
other provision of this Agreement to "assets not constituting Collateral" (or
any similar phrase) means assets that (a) are not subject to any Lien securing
the Obligations and (b) are not and (absent a change in facts) will not be
required under the terms of this Agreement or the Security Documents to be made
subject to any Lien securing the Obligations by reason of the nature of, or the
identity of the Subsidiary owning, such assets (and not as a result of the
existence of any other Lien or any legal or contractual provision preventing
such assets from being made subject to Liens securing the Obligations).
SECTION 6.07. Limitation on Sale/Leaseback Transactions. The Borrower
shall not, and shall not permit any Restricted Subsidiary to, enter into any
Sale/Leaseback Transaction with respect to any property unless:
(a) the Borrower or such Restricted Subsidiary would be entitled to:
(i) Incur Indebtedness with respect to such Sale/Leaseback
Transaction pursuant to Section 6.01; and
(ii) create a Lien on such property securing such Indebtedness
pursuant to Section 6.06(x) or, to the extent the assets subject to
such Sale/Leaseback do not constitute Collateral under this Agreement,
create a Lien on such property pursuant to the provisions of Section
6.06;
(iii) the gross proceeds payable to the Borrower or such
Restricted Subsidiary in connection with such Sale/Leaseback
Transaction are at least equal to the Fair Market Value of such
property; and
(iv) the transfer of such property is permitted by, and, if
applicable, the Borrower applies the proceeds of such transaction in
compliance with, Section 6.04; or
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(b) the Sale/Leaseback Transaction is with respect to all or a portion
of the Borrower's properties in Akron, Summit County, Ohio.
SECTION 6.08. Fundamental Changes. The Borrower will not, and will not
permit any Restricted Subsidiary to, merge into, amalgamate or consolidate with
any other Person, or permit any other Person to merge into, amalgamate or
consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) assets (including Capital Stock of
Subsidiaries) constituting all or substantially all the assets of the Borrower
and its Consolidated Subsidiaries, taken as a whole, or, in the case of the
Borrower, liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be
continuing (i) any Restricted Subsidiary may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation, (ii) any
Restricted Subsidiary may merge into any other Restricted Subsidiary in a
transaction in which the surviving entity is a Restricted Subsidiary; except
that no Domestic Subsidiary may merge into a Foreign Subsidiary, (iii) any sale
of a Restricted Subsidiary made in accordance with Section 6.04 may be effected
by a merger of such Restricted Subsidiary and (iv) any Restricted Subsidiary may
sell, transfer, lease or otherwise dispose of its assets to the Borrower or to
another Restricted Subsidiary; provided that any Investment that takes the form
of a merger, amalgamation or consolidation (other than any merger, amalgamation
or consolidation involving the Borrower) that is expressly permitted by Section
6.02 shall be permitted under this Section 6.08.
SECTION 6.09. Consolidated Coverage Ratio. The Borrower will not at
any time when the requirements of this Section 6.09 apply permit the
Consolidated Coverage Ratio for the most recent period of four consecutive
fiscal quarters ending on the last day of the most recent fiscal quarter for
which financial statements have been filed with the SEC prior to such time to be
less than 2.00 to 1.00. On each occasion that the Available Commitments shall
for five consecutive Business Days be less than $150,000,000, the requirements
of this Section 6.09 shall apply from such fifth Business Day to the first day
thereafter as of which Available Commitments shall for 10 consecutive Business
Days have been equal to or greater than $150,000,000.
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. If any of the following events
("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
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(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement or any other Credit Document, when and as
the same shall become due and payable, and such failure shall continue
unremedied for a period of (i) in the case of fees and interest payable under
Sections 2.09 and 2.10, respectively, five Business Days, and (ii) in the case
of any other fees, interest or other amounts (other than those referred to in
paragraph (a) above), five Business Days after the earlier of (A) the day on
which a Financial Officer first obtains knowledge of such failure and (B) the
day on which written notice of such failure shall have been given to the
Borrower by the Administrative Agent or any Lender or Issuing Bank;
(c) any representation or warranty made or deemed made by or on behalf
of any Credit Party in any Credit Document or any amendment or modification
thereof or waiver thereunder shall prove to have been incorrect when made or
deemed made in any respect material to the rights or interests of the Lenders
under the Credit Documents;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to the
Borrower's existence) or 5.08 or in Article VI;
(e) any Credit Party shall fail to observe or perform any covenant,
condition or agreement contained in any Credit Document (other than those
specified in clauses (a), (b) and (d) of this Article), and such failure shall
continue unremedied for a period of 30 days after written notice thereof from
the Administrative Agent to the Borrower (which notice will be given at the
request of any Lender); provided that the failure of any Credit Party to perform
any covenant, condition or agreement made in any Credit Document (other than
this Agreement) shall not constitute an Event of Default unless such failure
shall be (i) wilful or (ii) material to the rights or interests of the Lenders
under the Credit Documents;
(f) the Borrower or any Consolidated Subsidiary shall fail to make any
payment of principal in respect of any Material Indebtedness at the scheduled
due date thereof and such failure shall continue beyond any applicable grace
period, or any event or condition occurs that results in any Material
Indebtedness (other than any Qualified Receivables Transaction existing on March
31, 2003) becoming due or being required to be prepaid, repurchased, redeemed,
defeased or terminated prior to its scheduled maturity (other than, in the case
of any Qualified Receivables Transaction, any event or condition not caused by
an act or omission of the Borrower or any Subsidiary, if the Borrower shall
furnish to the Administrative Agent a certificate to the effect that after the
termination of such Qualified Receivables Transaction the Borrower and the
Subsidiaries that are a party thereto have sufficient liquidity to operate their
businesses in the ordinary course); provided that this clause (f) shall not
apply to (i) secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of the property or assets securing such Indebtedness in
accordance with the terms and conditions of this Agreement or (ii) Material
Indebtedness of any Foreign Subsidiary if the Borrower is unable, due to
applicable law restricting Investments in such Foreign Subsidiary, to make an
Investment in such Foreign Subsidiary to fund the payment of such Material
Indebtedness;
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(g) any event or condition occurs that continues beyond any applicable
grace period and enables or permits the holder or holders of any Material
Indebtedness (other than any Qualified Receivables Transaction existing on March
31, 2003) or any trustee or agent on its or their behalf to cause such Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption, defeasance or termination thereof, prior to its scheduled maturity;
provided, that (i) no Event of Default shall occur under this paragraph (g) as a
result of any event or condition relating to any Qualified Receivables
Transaction, other than any default in the payment of principal or interest
thereunder and (ii) this clause (g) shall not apply to (A) secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness in accordance with the terms and conditions
of this Agreement or (B) Material Indebtedness of any Foreign Subsidiary if the
Borrower is unable, due to applicable law restricting Investments in such
Foreign Subsidiary, to make an Investment in such Foreign Subsidiary to fund the
payment of such Material Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization, moratorium,
suspension of payment or other relief in respect of the Borrower or any Material
Subsidiary or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or any
Material Subsidiary or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 90 days or an
order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization, bankruptcy, moratorium, suspension of payment or other relief
under any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect, (ii) consent to the institution of, or
fail to contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Material Subsidiary or for a
substantial part of its assets, (iv) make a general assignment for the benefit
of creditors or (v) take any action for the purpose of effecting any of the
foregoing;
(j) the Borrower or any Material Subsidiary shall admit in writing its
inability or fail generally to pay its debts as they become due;
(k) an ERISA Event shall have occurred that, when taken together with
all other ERISA Events that have occurred, would be materially likely to result
in a Material Adverse Change;
(l) Liens created under the Security Documents shall not be valid and
perfected Liens on a material portion of the Collateral;
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(m) any Guarantee of the Obligations under the Guarantee and
Collateral Agreement or the Canadian Security Documents shall fail to be a
valid, binding and enforceable Guarantee of one or more Subsidiary Guarantors
where such failure would constitute or be materially likely to result in a
Material Adverse Change; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Majority Lenders shall, by notice to the Borrower, take any or
all of the following actions, at the same or different times: (i) reduce the
Commitments to zero, and thereupon the Commitments and each LC Commitment shall
immediately be reduced to zero, (ii) declare the Loans then outstanding to be
due and payable in whole (or in part, in which case any principal not so
declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower, and (iii) demand cash collateral
with respect to any Letter of Credit pursuant to Section 2.03(j) (it being
agreed that such demand will be deemed to have been made with respect to all
Letters of Credit if any Loans are declared to be due and payable as provided in
the preceding clause (ii)); and in case of any event with respect to the
Borrower described in clause (h) or (i) of this Article, the Commitments shall
automatically be reduced to zero, and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall automatically become due
and payable, and the Borrower's obligation to provide cash collateral for
Letters of Credit shall become effective, in each case without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
ARTICLE VIII
The Agents
Each of the Lenders and Issuing Banks hereby irrevocably appoints the
Agents as its agents and authorizes the Agents to take such actions on its
behalf and to exercise such powers as are delegated to the Agents by the terms
hereof and of the other Credit Documents, together with such actions and powers
as are reasonably incidental thereto.
The bank or banks serving as the Agents hereunder shall have the same
rights and powers in their capacity as Lenders or Issuing Banks as any other
Lender or Issuing Bank and may exercise the same as though they were not Agents,
and such bank or banks and their Affiliates may accept deposits from, lend money
to and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if they were not Agents hereunder.
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The Agents shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the foregoing (a)
the Agents shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) the Agents
shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Agents are required to exercise in writing by the
Majority Lenders, and (c) except as expressly set forth herein, the Agents shall
not have any duty to disclose, and shall not be liable for the failure to
disclose, any information communicated to the Agents by or relating to the
Borrower or any Subsidiary. The Agents shall not be liable for any action taken
or not taken by them with the consent or at the request of the Majority Lenders
or the Lenders, as the case may be, or in the absence of their own gross
negligence or wilful misconduct. In addition, the Agents shall be deemed not to
have knowledge of any Default unless and until written notice thereof is given
to the Agents by the Borrower or a Lender or Issuing Bank, and the Agents shall
not be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with any Credit
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii)
the performance or observance of any of the covenants, agreements or other terms
or conditions set forth herein or therein, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein or therein, other than to confirm receipt of
items expressly required to be delivered to the Agents.
The Agents shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by them to be genuine
and to have been signed or sent by the proper Person. The Agents also may rely
upon any statement made to them orally or by telephone and believed by them to
be made by the proper Person, and shall not incur any liability for relying
thereon. The Agents may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by them with
reasonable care, and shall not be liable for any action taken or not taken by
them in accordance with the advice of any such counsel, accountants or experts.
The Agents may perform any and all their duties and exercise their
rights and powers by or through any one or more sub-agents appointed by the
Agents. The Agents and any such sub-agent may perform any and all their duties
and exercise their rights and powers through their respective Affiliates. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Affiliates of the Agents and any such sub-agent.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such resignation, the Majority Lenders shall have the
right to appoint a successor with the Borrower's written consent (which shall
not be unreasonably withheld or delayed and shall not be required from the
Borrower if an Event of Default has occurred and is continuing). If no successor
shall have been so appointed by the
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Majority Lenders and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders, with the Borrower's written consent (which shall not
be unreasonably withheld or delayed and shall not be required if an Event of
Default has occurred and is continuing), appoint a successor Agent which shall
be a bank or an Affiliate thereof, in each case with a net worth of at least
$1,000,000,000 and an office in New York, New York. Upon the acceptance of its
appointment as Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After an Agent's resignation hereunder, the provisions of
this Article and Section 9.03 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
Each Lender and Issuing Bank acknowledges that it has, independently
and without reliance upon the Agents or any other Lender or Issuing Bank and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender and
Issuing Bank also acknowledges that it will, independently and without reliance
upon the Agents or any other Lender or Issuing Bank and based on such documents
and information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any related agreement or any document furnished hereunder or
thereunder.
Notwithstanding any other provision contained herein, (a) each Lender
and each Issuing Bank acknowledges that the Administrative Agent is not acting
as an agent of the Borrower and that the Borrower will not be responsible for
acts or failures to act on the part of the Administrative Agent and (b) neither
the Syndication Agent nor any of the Documentation Agents shall, in its capacity
as such, have any responsibilities under this Agreement or the other Credit
Documents.
Without prejudice to the provisions of this Article VIII, each Lender
and Issuing Bank hereby irrevocably appoints and authorizes the Collateral Agent
(and any successor acting as Collateral Agent) to act as the Person holding the
power of attorney (in such capacity, the "fonde de pouvoir") of the Lenders and
Issuing Banks as contemplated under Article 2692 of the Civil Code of Quebec,
and to enter into, to take and to hold on their behalf, and for their benefit,
any hypothec, and to exercise such powers and duties which are conferred upon
the fonde de pouvoir under any hypothec. Moreover, without prejudice to such
appointment and authorization to act as the Person holding the power of attorney
as aforesaid, each Lender and Issuing Bank hereby irrevocably appoints and
authorizes the Collateral Agent (and any successor acting as Collateral Agent)
(in such capacity, the "Custodian") to act as agent and custodian for and on
behalf of the Lenders and Issuing Banks to hold and to be the sole registered
holder of any debenture which may be issued under any hypothec, the whole
notwithstanding Section 32 of the Act Respecting the Special Powers of Legal
Persons (Quebec) or any other applicable law. In this respect, (i) the Custodian
shall keep a record indicating the names and addresses of, and the pro rata
portion of the obligations and indebtedness secured by any pledge of any such
debenture and owing to each Lender
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and Issuing Bank and (ii) each Lender and Issuing Bank will be entitled to the
benefits of any charged property covered by any hypothec and will participate in
the proceeds of realization of any such charged property, the whole in
accordance with the terms hereof.
Each of the fonde de pouvoir and the Custodian shall (a) have the sole
and exclusive right and authority to exercise, except as may be otherwise
specifically restricted by the terms hereof, all rights and remedies given to
fonde de pouvoir and the Custodian (as applicable) with respect to the charged
property under any hypothec, any debenture or pledge thereof relating to any
hypothec, applicable laws or otherwise, (b) benefit from and be subject to all
provisions hereof with respect to the Collateral Agent mutatis mutandis,
including, without limitation, all such provisions with respect to the liability
or responsibility to and indemnification by the Lenders or the Issuing Banks,
and (c) be entitled to delegate from time to time any of its powers or duties
under any hypothec, any debenture or pledge thereof relating to any hypothec,
applicable laws or otherwise and on such terms and conditions as it may
determine from time to time. Any Person who becomes a Lender or an Issuing Bank
shall be deemed to have consented to and confirmed: (y) the fonde de pouvoir as
the Person holding the power of attorney as aforesaid and to have ratified, as
of the date it becomes a Lender or Issuing Bank, all actions taken by the fonde
de pouvoir in such capacity, (z) the Custodian as the agent and custodian as
aforesaid and to have ratified, as of the date it becomes a Lender or Issuing
Bank, all actions taken by the Custodian in such capacity.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy or e-mail, as
follows:
(i) if to the Borrower, to it at 1144 East Market Street, Akron, Ohio,
44316-0001, Attention of the Treasurer (Telecopy No. (330) 796-6502);
(ii) if to the Administrative Agent, to JPMorgan Chase Bank, Loan &
Agency Services Group, 1111 Fannin, 10th Floor, Houston, Texas 77002,
Attention of Alice Telles (Telecopy No. (713) 750-2938), with a copy to
JPMorgan Chase Bank, N.A., 270 Park Avenue, New York, NY 10017, Attention
of Robert Kellas (Telecopy No. (212) 270-5100);
(iii) if to a Lender, to it at its address (or telecopy number or
e-mail address) set forth in Schedule 2.01 or its Administrative
Questionnaire; and
(iv) if to any Issuing Bank, to it at the address most recently
specified by it in a notice delivered to the Administrative Agent and the
Borrower.
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(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
(c) Any party hereto may change its address, telecopy number or e-mail
address for notices and other communications hereunder by notice to the other
parties hereto. All notices and other communications given to any party hereto
in accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by any of
the Agents, any Issuing Bank or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Agents, the Issuing Banks and the Lenders hereunder are cumulative and are
not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether any Agent, any Issuing Bank or any Lender may
have had notice or knowledge of such Default at the time.
(b) No Credit Document (other than any Issuing Bank Agreement or any
letter of credit application referred to in Section 2.03(a) or (b)) or any
provision thereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Credit Parties party
thereto and the Administrative Agent or Collateral Agent, as the case may be,
with the consent of the Majority Lenders; provided, that no such agreement shall
(i) increase the Commitment of any Lender or extend the Commitment Termination
Date with respect to any Lender without the written consent of such Lender, (ii)
reduce or forgive all or part of the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fee payable
hereunder, without the prior written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any
Loan, or the required date of reimbursement of any LC Disbursement, or date for
the payment of any interest on any Loan or any fee, or reduce the amount of,
waive or excuse any such payment, without the prior written consent of each
Lender adversely affected thereby, (iv) release all or substantially all the
Subsidiary Guarantors from their Guarantees under the Guarantee and Collateral
Agreement, or release all or substantially all the Collateral from the Liens of
the Security Documents, without the written consent of each Lender, (v) change
any
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provision of the Guarantee and Collateral Agreement or any other Security
Document to alter the amount or allocation of any payment to be made to the
Secured Parties, without the written consent of each adversely affected Lender,
(vi) change Section 2.15 in a manner that would alter the pro rata sharing of
any payment without the written consent of each Lender adversely affected
thereby, (vii) change any of the provisions of this Section or the definition of
"Majority Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender or (viii) at any time amend, modify or otherwise alter in
a manner which would increase the amount of the Borrowing Base Availability (A)
the advance rates used in determining the Borrowing Base, without the prior
written consent of Lenders having aggregate Credit Exposures and unused
Commitments representing at least 66-2/3% of the sum of the total Credit
Exposures and unused Commitments at such time or (B) the eligibility standards
used in determining the Borrowing Base, without the prior written consent of
Lenders having aggregate Credit Exposures and unused Commitments representing at
least 66-2/3% of the sum of the total Credit Exposures and unused Commitments at
such time; provided, further that no such agreement shall amend, modify or
otherwise affect the rights or duties of any Agent or Issuing Bank under any
Credit Document, or any provision of any Credit Document providing for payments
by or to the Administrative Agent or any Issuing Bank (or, in the case of any
Issuing Bank, any provision of Section 2.03 affecting such Issuing Bank or any
provision relating to the purchase of participations in Letters of Credit), in
each case without the prior written consent of such Agent or Issuing Bank, as
the case may be; provided further, that so long as the rights or interests of
any Lender shall not be adversely affected in any material respect, the
Guarantee and Collateral Agreement or any other Security Document may be amended
without the consent of the Majority Lenders (A) to cure any ambiguity, omission,
defect or inconsistency, or (B) to provide for the addition of any assets or
classes of assets to the Collateral. Notwithstanding the foregoing, any
provision of this Agreement may be amended by an agreement in writing entered
into by the Borrower, the Administrative Agent (and, if their rights or
obligations are affected thereby or if their consent would be required under the
preceding provisions of this paragraph, the Issuing Banks) and the Lenders that
will remain parties hereto after giving effect to such amendment if (1) by the
terms of such agreement the Commitments of each Lender not consenting to the
amendment provided for therein shall be reduced to zero upon the effectiveness
of such amendment and (2) at the time such amendment becomes effective, each
Lender not consenting thereto receives payment in full of the principal of and
interest accrued on each Loan made by it and all other amounts owing to it or
accrued for its account under this Agreement.
(c) Notwithstanding anything in paragraph (b) of this Section to the
contrary, this Agreement and the other Credit Documents may be amended at any
time and from time to time to increase the aggregate Commitments by an agreement
in writing entered into by the Borrower, the Administrative Agent, the
Collateral Agent and each Person (including any Lender) that shall agree to
provide any such additional Commitment (but without the consent of any other
Lender), and each such Person that shall not already be a Lender shall, at the
time such agreement becomes effective, become a Lender with the same effect as
if it had originally been a Lender under this
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Agreement with the Commitment set forth in such agreement; provided, however,
that: (i) the aggregate amount of such additional Commitments established
pursuant to this paragraph shall not exceed $250,000,000; (ii) no Default or
Event of Default shall exist at the time such amendment becomes effective; (iii)
in the case of any additional Commitment that is to be provided by a Person that
is not a Lender immediately prior to the effectiveness of such amendment, each
Principal Issuing Bank shall have consented to such Person becoming a Lender,
and (iv) the Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent, the Lenders and the Issuing
Banks) of Covington & Burling LLP, counsel for the Borrower (or other counsel
for the Borrower reasonably satisfactory to the Administrative Agent) in a form
reasonably acceptable to the Administrative Agent but in substance to the effect
that the incurrence of each Loan, Letter of Credit and LC Disbursement under
such additional Commitments, and each Lien securing them, will be permitted
under the Junior Lien Indenture and each other indenture or other agreement
governing any Material Indebtedness in effect at the time of the effectiveness
of such amendment, and such Loans, Letters of Credit and LC Disbursements will
constitute Designated Senior Obligations under the Lien Subordination and
Intercreditor Agreement and First Lien Obligations under the Lenders Lien
Subordination and Intercreditor Agreement. Each Loan, Letter of Credit and LC
Disbursement under such additional Commitments established pursuant to this
paragraph shall constitute Loans, Letters of Credit and LC Disbursements under,
and shall be entitled to all the benefits afforded by, this Agreement and the
other Credit Documents, and shall, without limiting the foregoing, benefit
equally and ratably from the Guarantees and security interests and Liens created
by the Guarantee and Collateral Agreement and the other Security Documents. The
Borrower shall take any actions reasonably required by the Administrative Agent
to ensure and/or demonstrate that all requirements under the Credit Documents in
respect of the provision and maintenance of Collateral continue to be satisfied
after the establishment of any such additional Commitments. In the event that
the Borrower elects to establish any additional Commitments pursuant to this
paragraph, the Borrower will afford the then existing Lenders an opportunity to
provide such additional Commitments.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the Agents, the
Arrangers and their Affiliates (including the reasonable fees, charges and
disbursements of Cravath, Swaine & Moore LLP, counsel for the Agents and the
Arrangers, and other local and foreign counsel for the Agents and Arrangers,
limited to one per jurisdiction, in connection with the Security Documents and
the creation and perfection of the Liens created thereby and other local and
foreign law matters) in connection with the arrangement and syndication of the
credit facilities provided for herein, the preparation, execution, delivery and
administration of this Agreement and the other Credit Documents or any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by any Issuing
Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by the Agents, any Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for the Agents, any
Issuing Bank or any Lender, in connection with the
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enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or similar negotiations in respect of
such Loans or Letters of Credit. The Borrower also shall pay all out-of-pocket
expenses incurred by the Collateral Agent in connection with the creation and
perfection of the security interests contemplated by this Agreement, including
all filing, recording and similar fees and, as more specifically set forth
above, the reasonable fees and disbursements of counsel (including foreign
counsel in connection with Foreign Pledge Agreements).
(b) The Borrower shall indemnify each Agent, each Arranger, each
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses (including the reasonable fees, charges and disbursements of
any counsel for any Indemnitee), incurred by or asserted against any Indemnitee
and arising out of (i) the execution or delivery of this Agreement or any other
Credit Document or other agreement or instrument contemplated hereby, the
syndication and arrangement of the credit facilities provided for herein, the
performance by the parties hereto of their respective obligations or the
exercise by the parties hereto of their rights hereunder or thereunder or the
consummation of the Transactions or any other transactions contemplated hereby
or thereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof
(including any refusal by any Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
currently or formerly owned or operated by the Borrower or any of the
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of the Subsidiaries, or (iv) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
shall have resulted from the gross negligence or wilful misconduct of such
Indemnitee or the breach by such Indemnitee of obligations set forth herein or
in any other Credit Document.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to any Agent, any Arranger or any Issuing Bank under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to such Agent,
Arranger or Issuing Bank, as the case may be, such Lender's percentage
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought based on the outstanding Loans and LC Exposures and unused
Commitments of such Lender and the other Lenders (or, if the Commitments shall
have been reduced to zero and there shall be no outstanding Loans or LC
Exposures of such Class, based on the Loans and LC Exposures and unused
Commitments most recently in effect)) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or
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related expense, as the case may be, was incurred by or asserted against such
Agent, Arranger or Issuing Bank in its capacity as such.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto,
the Indemnitees and their respective successors and assigns permitted hereby
(including any Affiliate of any Issuing Bank that issues any Letter of Credit),
except that (i) the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by the Borrower without such consent
shall be null and void) and (ii) no Lender may assign or otherwise transfer its
rights or obligations hereunder except in accordance with this Section. Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, Indemnitees, their respective successors
and assigns permitted hereby (including any Affiliate of any Issuing Bank that
issues any Letter of Credit), Participants (to the extent provided in paragraph
(c) of this Section) and, to the extent expressly contemplated hereby, the
Related Parties of each of the Agents, the Arrangers, the Issuing Banks and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans at the time owing to it) with the prior written
consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Borrower; provided that no consent of the Borrower
shall be required for an assignment to a Lender or a Federal
Reserve Bank;
(B) the Administrative Agent; provided that no consent of
the Administrative Agent shall be required for an assignment to
an assignee that is a Lender or a Federal Reserve Bank; and
(C) each Principal Issuing Bank; provided that no consent of
any Principal Issuing Bank shall be required for an assignment to
an assignee that is a Federal Reserve Bank.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as
of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be
less than $1,000,000 or, if smaller, the entire remaining amount
of the assigning Lender's applicable Commitment unless each of
the Borrower and the Administrative Agent shall otherwise
consent,
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provided (i) that no such consent of the Borrower shall be
required if an Event of Default has occurred and is continuing
and (ii) in the event of concurrent assignments to two or more
assignees that are Affiliates of one another, or to two or more
Approved Funds managed by the same investment advisor or by
affiliated investment advisors, all such concurrent assignments
shall be aggregated in determining compliance with this
subsection;
(B) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement;
(C) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500;
provided that in the event of concurrent assignments to two or
more assignees that are Affiliates of one another, or to two or
more Approved Funds managed by the same investment advisor or by
affiliated investment advisors, only one such fee shall be
payable; and
(D) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Assumption the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.12, 2.13, 2.14 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 9.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section. Each assignment hereunder shall be deemed to be
an assignment of the related rights under the Guarantee and Collateral Agreement
and each other applicable Security Document.
(iv) The Administrative Agent shall maintain at one of its offices a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent,
the Issuing Banks and the Lenders may treat
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each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower
and any Issuing Bank or Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(vi) By executing and delivering an Assignment and Assumption, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim; (ii)
except as set forth in clause (i) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Credit Document or any other instrument or document
furnished pursuant hereto or thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of any of the foregoing, or
the financial condition of the Credit Parties or the performance or observance
by the Credit Parties of any of their obligations under this Agreement or under
any other Credit Document or any other instrument or document furnished pursuant
hereto or thereto; (iii) each of the assignee and the assignor represents and
warrants that it is legally authorized to enter into such Assignment and
Assumption; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of any amendments or consents entered into prior
to the date of such Assignment and Assumption and copies of the most recent
financial statements delivered pursuant to Section 5.01 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Assumption; (v) such assignee will
independently and without reliance upon the Agents, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (vi) such assignee appoints and
authorizes the Agents to take such action as agents on its behalf and to
exercise such powers under this Agreement and the other Credit Documents as are
delegated to them by the terms hereof and thereof, together with such powers as
are reasonably incidental thereto; (vii) such assignee agrees that it will not
book any Loan or hold any participation in any Letter of Credit or LC
Disbursement at an Austrian branch or through an Austrian Affiliate and will
comply with Section 9.18 of this Agreement; and (viii) such assignee agrees that
it will perform in accordance with their terms all the
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obligations that by the terms of this Agreement are required to be performed by
it as a Lender.
(c) (i) Any Lender may, without the consent of the Borrower or the
Administrative Agent or any Issuing Bank, sell participations to one or more
banks or other entities (each a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and the Loans); provided that (A) such Lender's
obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrower, the Administrative Agent, the Issuing
Banks and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver that affects such Participant and that,
under Section 9.02, would require the consent of each affected Lender. Subject
to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 9.08 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.15(d)
as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.12 or 2.14 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent, which consent shall specifically refer to this
exception. A Participant that would be a Foreign Lender if it were a Lender
shall not be entitled to the benefits of Section 2.14 unless the Borrower is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.14(f) as
though it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery
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of this Agreement and the making of any Loans and issuance of any Letters of
Credit, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that any Agent, any Issuing Bank or any Lender may
have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is outstanding
and unpaid or any Letter of Credit is outstanding and so long as the Total
Commitment has not been reduced to zero. The provisions of Sections 2.12, 2.13,
2.14 and 9.03 and Article VIII shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the reduction of the Total Commitment to zero, the
expiration or termination of the Letters of Credit or the termination of this
Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness; Issuing Banks.
This Agreement may be executed in counterparts (and by different parties hereto
on different counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract. This Agreement,
the other Credit Documents, the Issuing Bank Agreements and any separate letter
agreements with respect to fees payable to the Administrative Agent or the
Arrangers constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
(or its counsel) shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto (or written
evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that each such party
has signed a counterpart of this Agreement), and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement. Each financial institution that shall be
party to an Issuing Bank Agreement executed by the Borrower and the
Administrative Agent shall be a party to and an Issuing Bank under this
Agreement, and shall have all the rights and duties of an Issuing Bank hereunder
and under its Issuing Bank Agreement. Each Lender hereby authorizes the
Administrative Agent to enter into Issuing Bank Agreements.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction. No failure to obtain any approval required for the effectiveness
of any provision of this Agreement shall affect the validity or enforceability
of any other provision of this Agreement.
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SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing and the Loans shall have become due and payable
pursuant to Article VII, each Lender, each Issuing Bank and each Affiliate of
any of the foregoing is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other obligations at any time owing by such Lender, Issuing Bank or Affiliate to
or for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender or such Issuing Bank, irrespective of whether or not such Lender
or such Issuing Bank shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each of the Lenders
and the Issuing Banks under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Person may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each party hereto hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party hereto may
otherwise have to bring any action or proceeding relating to this Agreement in
the courts of any jurisdiction.
(c) Each party hereto hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
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LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Agents, the Issuing Banks
and the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors who have been informed of the confidential
nature of such Information and instructed to keep such Information confidential,
(b) to the extent requested by any regulatory or self-regulatory authority
(including the NAIC), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) to the extent necessary or advisable in connection with
the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with
the written consent of the Borrower or (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to any Agent, any Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Borrower. For the purposes of
this Section, "Information" means all information received from the Borrower or
Persons acting on its behalf relating to the Borrower or its business, other
than any such information that is available to any Agent, any Issuing Bank or
any Lender prior to disclosure by the Borrower on a nonconfidential basis from a
source other than the Borrower that is not known by the recipient to be bound by
a confidentiality agreement or other obligation of confidentiality with respect
to such information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively, the "Charges"), shall exceed
the maximum lawful rate (the
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"Maximum Rate") which may be contracted for, charged, taken, received or
reserved by the Lender holding such Loan in accordance with applicable law, the
rate of interest payable in respect of such Loan hereunder, together with all
Charges payable in respect thereof, shall be limited to the Maximum Rate and, to
the extent lawful, the interest and Charges that would have been payable in
respect of such Loan but were not payable as a result of the operation of this
Section shall be cumulated and the interest and Charges payable to such Lender
in respect of other Loans or periods shall be increased (but not above the
Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Alternate Base Rate to the date of repayment, shall have been
received by such Lender.
SECTION 9.14. Security Documents. Each Lender hereby irrevocably
authorizes and directs the Collateral Agent to execute and deliver the
Reaffirmation Agreement, the Guarantee and Collateral Agreement, the Lenders
Lien Subordination and Intercreditor Agreement (and any reaffirmation thereof),
each other Security Document and the European Guarantee and Collateral Agreement
and to carry out the provisions thereof. Each Lender, by executing and
delivering this Agreement, acknowledges receipt of a copy of the Reaffirmation
Agreement, the Guarantee and Collateral Agreement and the European Guarantee and
Collateral Agreement and approves and agrees to be bound by and to act in
accordance with the terms and conditions of the Reaffirmation Agreement, the
Guarantee and Collateral Agreement and each other Security Document insofar as
they relate to or require performance by the Lenders, specifically including (i)
the provisions of Article III of the Guarantee and Collateral Agreement
(providing for the continuation of the Liens securing the "US Miscellaneous
Obligations", as defined in the 2003 MGCA, as Liens ranking pari passu with the
Liens securing the Obligations), (ii) the provisions of Article VII of the
Guarantee and Collateral Agreement (governing the exercise of remedies under the
Security Documents and the distribution of the proceeds realized from such
exercise), (iii) the provisions of Articles IX and X of the Guarantee and
Collateral Agreement (relating to the duties and responsibilities of the
Collateral Agent thereunder and providing for the indemnification and the
reimbursement of expenses of the Collateral Agent thereunder by the Lenders),
and (iv) the provisions of Section 12.13 of the Guarantee and Collateral
Agreement (providing for releases of Guarantees of and Collateral securing the
Obligations). Each party hereto further agrees that the foregoing provisions of
the Guarantee and Collateral Agreement shall apply to each other Security
Document. In the event that the Borrower shall incur Indebtedness to refinance
or replace Indebtedness under the Second Lien Agreement in compliance with
Sections 6.01 and 6.06, each Lender hereby irrevocably authorizes and directs
the Collateral Agent to enter into an intercreditor agreement on substantially
the same terms as those of the Lenders Lien Subordination and Intercreditor
Agreement (as in effect at the time of such refinancing or replacement) with the
holders of such Indebtedness or their representative.
SECTION 9.15. Additional Financial Covenants. Notwithstanding anything
else contained herein to the contrary, in the event that any maintenance
financial covenant other than the financial covenant set forth in Section 6.09
is included in the Second Lien Agreement, the Third Lien Agreement or any SSLI
Documentation (as
129
defined in Schedule 1.01C), such covenant will be deemed to be added to Article
VI of this Agreement automatically, without the need for any further action
whatsoever.
SECTION 9.16. Effect of Restatement. This Agreement shall supersede
the Existing Credit Agreement from and after the Restatement Date with respect
to the transactions hereunder and with respect to the loans and letters of
credit outstanding under the Existing Credit Agreement as of the Restatement
Date. The parties hereto acknowledge and agree, however, that (a) this Agreement
and all other Credit Documents executed and delivered herewith do not constitute
a novation, payment and reborrowing or termination of the Obligations under the
Existing Credit Agreement and the other Credit Documents as in effect prior to
the Restatement Date, (b) such Obligations are in all respects continuing with
only the terms being modified as provided in this Agreement and the other Credit
Documents, (c) the liens and security interests in favor of the Collateral Agent
for the benefit of the Credit Parties securing payment of such Obligations are
in all respects continuing and in full force and effect with respect to all
Obligations and (d) all references in the other Credit Documents to the Credit
Agreement shall be deemed to refer without further amendment to this Agreement.
SECTION 9.17. USA Patriot Act Notice. Each Lender and Issuing Bank and
the Administrative Agent (for itself and not on behalf of any Lender or Issuing
Bank) hereby notifies the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act.
SECTION 9.18. Austrian Matters.
(a) Notices with respect to Austria. Each party to this Agreement
agrees that it will (i) only send notices and other written references to this
Agreement or any other Credit Document (the Agreement, the Credit Documents and
any notices or other written references to the Agreement or any other Credit
Document, each, a "Stamp Duty Sensitive Document") to or from Austria by email
which do not contain the signature of any party (whether manuscript or
electronic, including, for the avoidance of doubt, the name of an individual or
other entity) and (ii) not send fax or scanned copies of a signed Stamp Duty
Sensitive Document to or from Austria.
(b) Agreement to be Kept Outside Austria. No party to this Agreement
shall bring or send to or otherwise produce in Austria (x) an original copy,
notarised copy or certified copy of any Stamp Duty Sensitive Document, or (y) a
copy of any Stamp Duty Sensitive Document signed or endorsed by one or more
parties other than in the event that:
(1) this does not cause a liability of a party to this Agreement
to pay stamp duty in Austria;
130
(2) a party to this Agreement wishes to enforce any of its rights
under or in connection with such Stamp Duty Sensitive Document in
Austria and is only able to do so by bringing, sending to or otherwise
producing in Austria (x) an original copy, notarised copy or certified
copy of the relevant Stamp Duty Sensitive Document or (y) a copy of
any Stamp Duty Sensitive Document signed or endorsed by one or more
parties and it would not be sufficient for that party to bring, send
to or otherwise produce in Austria a simple copy (i.e. a copy which is
not an original copy, notarised copy or certified copy) of the
relevant Stamp Duty Sensitive Document for the purposes of such
enforcement. In connection with the foregoing, each party to this
Agreement agrees that in any form of proceedings in Austria simple
copies may be submitted by either party to this Agreement and
undertakes to refrain from (I) objecting to the introduction into
evidence of a simple copy of any Stamp Duty Sensitive Document or
raising a defence to any action or to the exercise of any remedy for
the reason of an original or certified copy of any Stamp Duty
Sensitive Document not having been introduced into evidence, unless
such simple copy actually introduced into evidence does not accurately
reflect the content of the original document and (II) contesting the
authenticity (Echtheit) of a simple copy of any such Stamp Duty
Sensitive Document before an Austrian court or authority, unless such
simple copy does not accurately reflect the content of the original
document; or
(3) a party to this Agreement is required by law, governmental
body, court, authority or agency pursuant to any law or legal
requirement (whether for the purposes of initiating, prosecuting,
enforcing or executing any claim or remedy or enforcing any judgment
or otherwise), to bring an original, notarised copy or certified copy
of any Stamp Duty Sensitive Document into Austria.
(c) Austrian Stamp Duty. Notwithstanding any other provisions in any
of the Credit Documents, if any liability to pay Austrian stamp duties is
triggered:
(1) as a result of a party to this Agreement (i) breaching its
obligations under paragraph (a), (b) or (d) of this Section, or (ii)
booking its Loans or making or accepting performance of any rights or
obligations under this Agreement or any of the other Credit Documents
through an entity organized under the laws of the Republic of Austria
or a branch or an Affiliate, located or organized in the Republic of
Austria, of an entity organized under the laws of a jurisdiction other
than the Republic of Austria, that party shall pay such stamp duties;
and
(2) in circumstances other than those described in clause (1) of
this paragraph (c), the Borrower shall be liable for the payment of
all such stamp duties.
131
(d) Place of Performance Outside Austria. Each of the parties hereto
agrees that the exclusive place of performance (Erfullungsort) for all rights
and obligations under this Agreement and the other Credit Documents shall be
outside the Republic of Austria, and the payment of amounts under this Agreement
must be made to a bank account outside the Republic of Austria. The
Administrative Agent, the Collateral Agent and each Lender agrees to designate
and maintain one or more accounts at one or more lending offices located outside
the Republic of Austria to which all amounts payable to such party under this
Agreement and the other Credit Documents shall be made.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
THE GOODYEAR TIRE & RUBBER COMPANY,
by /s/ Damon J. Audia
-------------------------------------
Name: Damon J. Audia
Title: Vice President and Treasurer
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent
and Collateral Agent,
by /s/ Bernard J. Lillis
-------------------------------------
Name: Bernard J. Lillis
Title: Managing Director
THE GOODYEAR TIRE & RUBBER COMPANY
AMENDED AND RESTATED
FIRST LIEN CREDIT AGREEMENT
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
ALLIED IRISH BANKS, P.L.C.
by /s/ Martin Chin
-------------------------------------
Name: Martin Chin
Title: Senior Vice President
by /s/ Mia Bolln
-------------------------------------
Name: Mia Bolln
Title: Assistant Vice President
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
BANK OF AMERICA, N.A.
by /s/ Thomas H. Herron
-------------------------------------
Name: Thomas H. Herron
Title: Senior Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
BNP PARIBAS
by /s/ Andrew Shapiro
-------------------------------------
Name: Andrew Shapiro
Title: Managing Director
by /s/ Jordan Schweon
-------------------------------------
Name: Jordan Schweon
Title: Managing Director
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
BURDALE FINANCIAL LIMITED
by /s/ Steven Chait
-------------------------------------
Name: Steven Chait
Title: Director
by /s/ N.B. Hoge
-------------------------------------
Name: N.B. Hoge
Title: Director
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
CALYON NEW YORK BRANCH
by /s/ Corey Billups
-------------------------------------
Name: Corey Billups
Title: Managing Director
by /s/ Blake Wright
-------------------------------------
Name: Blake Wright
Title: Managing Director
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
CHARTER ONE BANK, N.A.
by /s/ G. Timothy O'Rourke
-------------------------------------
Name: G. Timothy O'Rourke
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
THE CIT GROUP/ BUSINESS CREDIT, INC.
by /s/ Eustachio Bruno
-------------------------------------
Name: Eustachio Bruno
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
CITIBANK, N.A.
by /s/ Christine M. Kanicki
-------------------------------------
Name: Christine M. Kanicki
Title: Attorney
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
COMMERZBANK
by /s/ Graham A. Warnine
-------------------------------------
Name: Graham A. Warnine
Title: Assistant Vice President
by /s/ John Marlati
-------------------------------------
Name: John Marlati
Title: Senior Vice President
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
DEUTSCHE BANK TRUST COMPANY AMERICAS
by /s/ Carin Keegan
-------------------------------------
Name: Carin Keegan
Title: Vice President
by /s/ Evelyn Thierry
-------------------------------------
Name: Evelyn Thierry
Title: Vice President
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
GENERAL ELECTRIC CAPITAL CORPORATION
by /s/ Rebecca A. Ford
-------------------------------------
Name: Rebecca A. Ford
Title: Duly Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
GMAC COMMERCIAL FINANCE, LLC
by /s/ Robert J. Brandon
-------------------------------------
Name: Robert J. Brandon
Title: Director
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
GOLDMAN SACHS CREDIT PARTNERS, L.P.
by /s/ Mark Walton
-------------------------------------
Name: Mark Walton
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
GRUPO SANTANDER
by /s/ Ignacio Campillo
-------------------------------------
Name: Ignacio Campillo
Title: Executive Director
by /s/ Carlos F. de Paula
-------------------------------------
Name: Carlos F. de Paula
Title: Executive Director
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
HSBC BUSINESS CREDIT (USA) INC.
by /s/ Matthew W. Rickert
-------------------------------------
Name: Matthew W. Rickert
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
KEYBANK NATIONAL ASSOCIATION
by /s/ Roger F. Reeder
-------------------------------------
Name: Roger F. Reeder
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
LASALLE BANK NATIONAL ASSOCIATION
by /s/ Lawrence B. McDonald
-------------------------------------
Name: Lawrence B. McDonald
Title: First Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
LLOYDS TSB COMMERCIAL FINANCE LTD
by /s/ Jeremy Harrison
-------------------------------------
Name: Jeremy Harrison
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
MERRIL LYNCH CAPITAL
by /s/ Andrew C. Sepe
-------------------------------------
Name: Andrew C. Sepe
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
NATIONAL CITY BUSINESS CREDIT, INC.
by /s/ Michael P. Gutien
-------------------------------------
Name: Michael P. Gutien
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
NATIXIS, NEW YORK BRANCH
by /s/ Nicolas Regent
-------------------------------------
Name: Nicolas Regent
Title: Director
by /s/ PJ van Tuldey
-------------------------------------
Name: PJ van Tuldey
Title: Managing Director
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
NORTH FORK BUSINESS CAPITAL CORPORATION
by /s/ Michael S. Burns
-------------------------------------
Name: Michael S. Burns
Title: Senior Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
PNC BANK, N.A.
by /s/ A. Roger Craig, Jr.
-------------------------------------
Name: A. Roger Craig, Jr.
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
REGIONS BANK
by /s/ Mark McNally
-------------------------------------
Name: Mark McNally
Title: Attorney
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
SIEMANS FINANCIAL SERVICES, INC.
by /s/ Douglas Schoch
-------------------------------------
Name: Douglas Schoch
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
UBS LOAN FINANCE LLC
by /s/ Richard L. Tavrow
-------------------------------------
Name: Richard L. Tavrow
Title: Director
by /s/ David B. Julle
-------------------------------------
Name: David B. Julle
Title: Associate Director
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
UNION BANK OF CALIFORNIA, N.A.
by /s/ Brent Housteau
-------------------------------------
Name: Brent Housteau
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
UPS CAPITAL CORPORATION
by /s/ Michael O'Neal
-------------------------------------
Name: Michael O'Neal
Title: Senior Credit Officer
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
WACHOVIA CAPITAL FINANCE COPORATION
(CENTRAL)
by /s/ Laura Dixon
-------------------------------------
Name: Laura Dixon
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
WEBSTER BUSINESS CREDIT CORPORATION
by /s/ Joseph Zautla
-------------------------------------
Name: Joseph Zautla
Title: Senior Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
WELLS FARGO FOOTHILL, LLC
by /s/ David P. Hill
-------------------------------------
Name: David P. Hill
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Schedule 1.01A to
Amended and Restated
First Lien Credit Agreement
Consent Subsidiaries
- - Goodyear Dunlop Tires North America, Ltd.
- - Utica Converters, Inc.
- - Goodyear-SRI Global Purchasing Company
- - Goodyear-SRI Global Technology LLC
- - Goodyear Australia Pty Limited
- - Goodyear Lastikleri Turk Anonim Sirketi
- - Goodyear Dalian Tire Company Ltd.
- - Goodyear South Asia Tyres Private Ltd
- - Goodyear India Limited
- - Goodyear Maroc S.A.
Schedule 1.01B to
Amended and Restated
First Lien Credit Agreement
Mortgaged Properties
1. Amended and Restated First Priority Fee and Leasehold Mortgage, Assignment
of Leases and Rents, Security Agreement and Financing Statement, dated as
of April 20, 2007 by and between the Company, as Mortgagor, and JPMorgan
Chase Bank, N.A., as Mortgagee, for certain improved real property and a
leasehold interest as more fully described therein and located in or about
Gadsden, Etowah County, Alabama.
2. Amended and Restated First Priority Mortgage, Assignment of Leases and
Rents, Security Agreement and Financing Statement, dated as of April 20,
2007 by and between the Company, as Mortgagor, and JPMorgan Chase Bank,
N.A., as Mortgagee, for certain improved real property as more fully
described therein and located in or about Topeka, Shawnee County, Kansas.
3. Amended and Restated First Priority Deed of Trust, Assignment of Leases
and Rents, Security Agreement and Financing Statement, dated as of April
20, 2007 by and between The Kelly-Springfield Tire Corporation, as
Grantor, and First American Title Insurance Company, as Trustee for the
benefit of JPMorgan Chase Bank, N.A., as Beneficiary, for certain improved
real property as more fully described therein and located in or about
Fayetteville, Cumberland County, North Carolina.
4. Amended and Restated First Priority Deed of Trust, Assignment of Leases
and Rents, Security Agreement and Financing Statement, dated as of April
20, 2007 by and between the Company, as Grantor, and First American Title
Insurance Company, as Trustee for the benefit of JPMorgan Chase Bank,
N.A., as Beneficiary, for certain undeveloped real property as more fully
described therein and located at or about State Road 1503 in Caswell
County, North Carolina.
5. Amended and Restated First Priority Open-End Mortgage, Assignment of
Leases and Rents, Security Agreement and Financing Statement, dated as of
April 20, 2007 by and between the Company, as Mortgagor, and JPMorgan
Chase Bank, N.A., as Mortgagee, for certain improved real property as more
fully described therein and located in or about Akron, Summit County,
Ohio.
6. Amended and Restated First Priority Mortgage (With Power of Sale),
Assignment of Leases and Rents, Security Agreement and Financing
Statement, dated as of April 20, 2007 by and between the Company, as
Mortgagor, and JPMorgan Chase Bank, N.A., as Mortgagee, for certain
improved real property as more fully described therein and located in or
about Lawton, Comanche County, Oklahoma.
7. Amended and Restated First Priority Deed of Trust, Assignment of Leases
and Rents, Security Agreement and Financing Statement, dated as of April
20, 2007 by and between the Company, as Grantor, and Mark A. Rosser, as
Trustee for the benefit of JPMorgan Chase Bank, N.A., as Beneficiary, for
certain improved real property as more fully described therein and located
in or about Union City, Obion County, Tennessee.
8. Amended and Restated First Priority Deed of Trust, Assignment of Leases
and Rents, Security Agreement and Financing Statement, dated as of April
20, 2007 by and between the Company, as Grantor, and James DeBoer, as
Trustee for the benefit of JPMorgan Chase Bank, N.A., as Beneficiary, for
certain improved real property as more fully described therein and located
in or about Danville, Pittsylvania County, Virginia.
Schedule 1.01C to
Amended and Restated
First Lien Credit Agreement
Senior Subordinated-Lien Indebtedness
- - All Senior Subordinated-Lien Indebtedness and the related Liens shall
satisfy the requirements set forth in the definition of Senior
Subordinated-Lien Indebtedness.
- - The documentation establishing or evidencing any Senior Subordinated-Lien
Indebtedness ("SSLI Documentation") shall contain no maintenance financial
covenants that are not contained in this Agreement, and the financial
levels or ratios requited to be maintained by any such covenants shall be
no more restrictive than those required to be maintained by corresponding
covenants of this Agreement (it being understood that additional
maintenance financial covenants may be included in any SSLI Documentation
and, if they are, they shall automatically be included in this Agreement).
- - The SSLI Documentation shall permit (specifically, and not through a
basket that could be exhausted by other financings) the refinancing of all
Indebtedness under this Agreement, the Second Lien Agreement and the
European Facilities Agreement (or any refinancing Indebtedness in respect
thereto) with new Indebtedness having a maturity no sooner than, a
weighted average life no shorter than, and an aggregate principal amount
or accreted value no greater than the fully drawn amount (plus fees and
expenses, including any premium and defeasance costs of refinancing) of
the refinanced indebtedness or commitments thereunder and secured on the
same basis as the Indebtedness refinanced.
- - The SSLI Documentation shall not restrict (except for restrictions that a
Financial Officer of the Borrower shall have represented in a certificate
to the Administrative Agent (which shall be deemed to be a Credit
Document) will not materially interfere with the Borrower's ability to
effect) the securing of Indebtedness under this Agreement, the Second Lien
Agreement or the European Facilities Agreement or any refinancing
Indebtedness in respect thereof or the cash collateralization of any
letter of credit exposure thereunder (but may require that if Indebtedness
under this Agreement, the Second Lien Agreement or the European Facilities
Agreement or related refinancing Indebtedness is secured by assets not
securing the Indebtedness under this Agreement, the Second Lien Agreement
or the European Facilities Agreement on the Effective Date, a junior lien
on such assets, subordinated under the Lien Subordination and
Intercreditor Agreement, (or in the case of any lien granted by any
Grantor to secure indebtedness under the European Facility Agreement, a
ratable or junior lien on such assets) must be granted to secure the
Senior Subordinated-Lien Indebtedness).
- - The SSLI Documentation shall not restrict (except for restrictions that a
Financial Officer of the Borrower shall have represented in a certificate
to the
Administrative Agent (which shall be deemed to be a Credit Document) will
not materially interfere with the Borrower's ability to effect) the use of
proceeds from any sale, transfer or other disposition of assets owned
directly by (a) the Borrower or any Grantor to repay or prepay
Indebtedness under this Agreement or the Second Lien Agreement or
refinancing Indebtedness in respect thereof or to cash collateralize any
letter of credit exposure thereunder, or (b) the European JV or any of its
subsidiaries to repay or prepay Indebtedness under the European Facilities
Agreement or refinancing Indebtedness in respect thereof or to cash
collateralize any letter of credit exposure thereunder.
Schedule 1.01D to
Amended and Restated
First Lien Credit Agreement
Specified Account Debtor
General Motors Corporation
SCHEDULE 2.01 TO
AMENDED AND RESTATED
FIRST LIEN CREDIT AGREEMENT
LENDER COMMITMENT
- ---------------------------------------- -------------------
JPMorgan Chase Bank, N.A. $ 90,000,000
Citibank, N.A. 90,000,000
Bank of America, N.A. 85,000,000
General Electric Capital Corporation 85,000,000
The CIT Group/Business Credit, Inc. 85,000,000
GMAC Commercial Finance, LLC 85,000,000
Wells Fargo Foothill, LLC 85,000,000
BNP Paribas 85,000,000
Deutsche Bank Trust Company Americas 65,000,000
Wachovia Capital Finance Corporation (Central) 65,000,000
Charter One Bank, N.A. 65,000,000
Burdale Financial Limited 46,000,000
Natixis, New York Branch 40,000,000
Calyon New York Branch 40,000,000
Goldman Sachs Credit Partners, L.P. 40,000,000
National City Business Credit, Inc. 40,000,000
Allied Irish Banks, P.L.C. 40,000,000
Lloyds TSB Commercial Finance LTD 40,000,000
Merrill Lynch Capital 40,000,000
UBS Loan Finance LLC 30,000,000
HSBC Business Credit (USA) Inc. 30,000,000
LaSalle Bank National Association 26,000,000
PNC Bank, N.A. 26,000,000
UPS Capital Corporation 26,000,000
Regions Bank 26,000,000
Commerzbank 20,000,000
Key Bank National Association 20,000,000
North Fork Business Capital Corporation 20,000,000
Union Bank of California, N.A. 20,000,000
Banco Santander Central Hispano SA New York Branch 20,000,000
Siemens Financial Services, Inc. 15,000,000
Webster Business Credit Corporation 10,000,000
---------------
TOTAL $ 1,500,000,000
===============
Schedule 2.03 to
Amended and Restated
First Lien Credit Agreement
Existing Letters of Credit
OUTSTANDING LETTERS OF CREDIT BY ISSUING BANK THE GOODYEAR TIRE & RUBBER COMPANY
LC# Issuing Bank Beneficiary Currency Type Outstanding Percentage of Total
- ---------- ------------- ---------------------------- ----------- ----------------------- ---------------- --------------------
91863615 BNP Travelers Casualty and USD Appeal/Surety Bonds $ 66,648,504.00
Surety Company of America
91864601 BNP Liberty Mutual Insurance USD Workers Compensation $ 35,000,000.00
Company
BNP Total $ 101,648,504.00 20.15%
3050517 BOA Travelers Indemnity Company USD Auto, Asbestos & Prod $ 16,500,000.00
Liab Claims
3050672 BOA Royal Indemnity Company USD Workers Compensation $ 5,000,000.00
BOA Total $ 21,500,000.00 4.26%
P-236446 JPMorgan Executive Director Texas USD Remediation Funding $ 2,000,000.00
Commision on Environmental
Quality
P-236851 JPMorgan Executive Director Texas USD Remediation Funding $ 741,117.00
Commision on Environmental
Quality
P-237807 JPMorgan Barclays Bank PLC GBP Collateral - custom $ 391,800.00
(200,000) duties
P-237808 JPMorgan Barclays Bank PLC GBP Collateral - custom $ 3,134,400.00
(1,600,000) duties
P-238161 JPMorgan Blue Cross & Blue Shield of USD Healthcare/Benefits $ 67,000.00
Western NY, Inc
SB236351 JPMorgan Regional Administrator, USD Remediation Funding $ 511,094.00
Region V, US EPA
SB236854 JPMorgan Regional Administrator, USD Remediation Funding $ 3,400,000.00
Revion II, US EPA
SB236958 JPMorgan Regional Administrator, USD Remediation Funding $ 16,000,000.00
Region V, US EPA
SB237673 JPMorgan Various Regional USD Remediation Funding $ 1,000,000.00
Administrators of EPA
SB238162 JPMorgan iStar GT, LP USD Lease $ 20,000,000.00
SB238165 JPMorgan Siemens Financial Services, USD Lease $ 500,000.00
Inc
SB238567 JPMorgan Travelers Indemnity Company USD Workers Compensation $ 72,187,623.00
SB238852 JPMorgan Liberty Mutual Insurance USD Workers Compensation $ 65,908,713.00
Company
SB238877 JPMorgan Commerzbank AG-Krefeld EUR Collateral - Cash Mgmt $ 9,318,400.00
(7,000,000) (Guarantees & FX Credit
Lines)
SB238925 JPMorgan Liberty Mutual Insurance USD Workers Compensation $ 52,583,624.00
Company
SB244799 JPMorgan Ohio Bureau of Workers' USD Workers Compensation $ 7,274,000.00
Compensation
SB247308 JPMorgan ACE INA Overseas Insurance USD Auto, General & Product $ 21,977,689.00
Company Liab Claims (Non-US)
SB249660 JPMorgan Liberty Mutual Insurance USD Workers Compensation $ 4,779,000.00
Company (Dunlop)
SB249661 JPMorgan Liberty Mutual Insurance USD Workers Compensation $ 59,937,721.00
Company
SB750732 JPMorgan Liberty Mutual Insurance USD Workers Compensation $ 12,133,148.00
Company
SBP236135 JPMorgan Citibank NA USD Collateral - various $ 1,200,000.00
dealer guarantees
SBP236422 JPMorgan The Insurance Company of USD General & Product Liab $ 16,084,667.00
the State of Pennsylvania Claims (Non-US)
TPTS251995 JPMorgan ENI Gas BV - Libyan Branch EUR Financial Assurance $ 108,285.13
(81,344)
TPTS254548 JPMorgan ACE American Insurance USD Auto, General & Product $ 10,000,000.00
Company Liab Claims
----------------
JPMorgan
Total $ 381,238,281.13 75.58%
----------------
Grand Total $ 504,386,785.13
================
Schedule 3.10(b) to
Amended and Restated
First Lien Credit Agreement
Mortgaged Properties
Etowah County, Alabama
Shawnee County, Kansas
Caswell County, North Carolina
Cumberland County, North Carolina
Summit County, Ohio
Comanche County, Oklahoma
Union City, Obion County, Tennessee
Pittsylvania, Virginia
Schedule 3.10(c) to
Amended and Restated
First Lien Credit Agreement
Material Intellectual Property
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- -------- --- ------- -------- ---------- -------------- ----- ----------------------------- -----------------------------
1987-325 USA 4823855 04/25/89 11/23/07 Tire-Passenger GTR WRANGLER MT - PNEUMATIC TIRE GALANTE R L; GOERGEN R;
& Truck TREAD PATTERN HITZKY L J; KOLOWSKI M A;
MILLER F W; HOPKINS W M;
WAIBEL T J
1988-022 USA 4832101 05/23/89 02/17/08 Tire-Passenger GTR PNEUMATIC TIRES WELTER T N H
& Truck
1987-034 USA 4832103 05/23/89 02/17/08 Tire-Passenger GTR PNEUMATIC TIRE HAVING PLURAL SLIVKA J J; WELTER T N H
& Truck ARAMID CARCASS PLIES
1987-409 USA 4854446 08/08/89 08/03/08 Engineered GTR ELECTRICAL CONDUCTOR STRADER D S
Products
1986-227 USA 4854612 08/08/89 04/11/08 Engineering GTR TIRE BUILDING DRUM SHAFT CUBRIC R; ROEDSETH J K
Components, CONNECTION
Processe
1986-288 USA 4855008 08/08/89 05/09/08 Engineering GTR EXPANDABLE TIRE BUILDING DRUM TERRADO A R
Components,
Processe
1986-171 USA 4856571 08/15/89 06/11/07 Tire-Passenger GTR EAGLE GA - PNEUMATIC TIRE LARDO C; COLLETTE J J M V;
& Truck DAUVISTER P M J; JONETTE B
1987-282 USA 4859272 08/22/89 06/22/08 Engineering GTR RADIAL TIRE BELT FOLDING DRUM LOVELL J A; MEDVED G E; WHITE
Components, J R
Processe
1991-481 USA 4871409 10/03/89 11/05/07 Engineering GTR APPARATUS FOR LAYING A PERKINS D J B
Components, CONTINUOUS STRIP OF
Processe ELASTOMERIC MATERIAL ONTO A
SURFACE [HOWDINS]
1986-349 USA 4877072 10/31/89 12/17/07 Tire-Passenger GTR TREAD FOR LEFT AND RIGHT FONTAINE J F L
& Truck VEHICLE TIRES
1987-116 USA 4877073 10/31/89 02/17/08 Tire-Passenger GTR CABLES AND TIRES REINFORCED THISE-FOURGON M-R C A; REUTER
& Truck BY SAID CABLES R F
1987-366 USA 4903998 02/27/90 08/31/08 Engineered GTR BRANCHED HOSE CONSTRUCTION STANLEY J H
Products
1985-109 USA 4909876 03/20/90 03/20/07 Engineering GTR APPARATUS AND METHOD FOR BAKER D E; BOWEN G L; THIELE
Components, ROLLING BEAD RINGS J R
Processe
1985-130 USA 4922985 05/08/90 05/08/07 Tire-Passenger GTR PNEUMATIC TIRES GASOWSKI C J; KOLOWSKI M A;
& Truck SMITHKEY J C JR; FORD T L
1988-143 USA 4926918 05/22/90 02/21/09 Tire OTR, GTR PNEUMATIC TIRE DEMOR E J III; LUKICH L T;
Farm, HINKEL W W
Aircraft
Specialty
1988-270 USA 4926919 05/22/90 11/14/08 Tire-Passenger GTR WRANGLER HT - VEHICLE TIRE HOPKINS W M; BRIGHTWELL R A;
& Truck WITH RIB TYPE TREAD PATTERN YOUNG R A; CLARK J K; MILLER
HAVING SIPES ACROSS THE RIBS F W; GALANTE R L; WAIBEL T J;
KOLOWSKI M A
1986-242 USA 4929298 05/29/90 05/13/08 Engineering GTR TIRE BUILDING DRUM INCLUDING WANTZ A; VAN DER POEL R J
Components, AN EXPANDABLE SEGMENTAL
Processe CYLINDER ASSEMBLY AND A
VACUUM CHAMBER
1988-355 USA 4957970 09/18/90 01/23/09 Compound GTR PACKAGE FOR COMPOUNDING HOLSAPPLE R L; KAY J A
Technology RUBBER AND COMPOUNDED RUBBER
1984-227 USA 4962803 10/16/90 10/16/07 Tire OTR, GTR A PNEUMATIC TIRE WELTER T N H
Farm,
Aircraft,
Specialty
1986-320 USA 4976804 12/11/90 05/05/09 Engineering GTR EXPANDABLE TIRE BUILDING DRUM KNEIP F
Components,
Processe
1988-369 USA 4989658 02/05/91 06/09/09 Tire-Passenger GTR BELT OVERLAY STRUCTURE FOR MAATHIUS A G; SPIELMANN J;
& Truck PNEUMATIC TIRES BEER K; OARE T R
1985-135 USA 5005613 04/09/91 04/09/08 Engineered GTR LIGHT WEIGHT FLEXIBLE STANLEY J H
Products COAXIAL VAPOR RECOVERY HOSE
Page 1 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- -------- --- ------- -------- ---------- -------------- ----- ----------------------------- -----------------------------
1986-173 USA 5005808 04/09/91 04/09/08 Engineered GTR AIRSPRING END MEMBER AND MOEGLIN S J; WARMUTH I J II
Products AIRSPRING ASSEMBLY
1988-369 USA 5007974 04/16/91 06/09/09 Tire-Passenger GTR BELT OVERLAY STRUCTURE FOR MAATHIUS A G; SPIELMANN J;
& Truck PNEUMATIC TIRES BEER K; OARE T R
1987-269 USA 5014762 05/14/91 05/26/09 Tire-Passenger GTR ANGLED OVERLAY FOR TIRES BEER K; RICHARDS G W; OARE T
& Truck R; BROWN T A; WELLS T H
1988-385 USA 5017118 05/21/91 06/16/09 Engineering GTR APPARATUS FOR FORMING A LOOMAN E W JR; WOLBERT H A
Components, COEXTRUSION FROM
Processe EXTRUDED STRIPS
1986-133 USA 5042546 08/27/91 08/27/08 Tire-Passenger GTR RADIAL-PLY PNEUMATIC TIRE GOLDSTEIN A A; FORNEY J M;
& Truck WITH REVERSE CURVATURE LOSER R P
CARCASS PLY
1987-023 USA 5053246 10/01/91 03/30/10 Tire Fabric GTR PROCESS FOR THE SURFACE SHUTTLEWORTH D; MOWDOOD S K;
& Fiber TREATMENT OF POLYMERS FOR WADDELL W H; BRENNER J L;
Reinforcement REINFORCEMENT-TO-RUBBER OFSTEAD E A; RICHARDS J L
ADHESION
1989-442 USA 5085259 02/04/92 07/16/10 Tire-Passenger GTR WRANGLER AT - TIRE TREAD GOERGEN R; KUMMER P
& Truck
1989-186 USA 5087668 02/11/92 10/19/10 Compound GTR RUBBER BLEND AND TIRE WITH SANDSTROM P H; MASSIE J D;
Technology TREAD THEREOF VERTHE J J A; HOLTZAPPLE G
M; DIROSSI R R
1989-651 USA 5088536 02/18/92 05/10/10 Tire-Passenger GTR VECTOR 2 - ALL SEASON TYPE GRAAS M; CONSTANT M M W G
& Truck TIRE TREAD
1989-240 USA 5095963 03/17/92 02/22/10 Tire-Passenger GTR TIRE TREADS MAITRE B P
& Truck
1991-486 USA 5108527 04/28/92 04/28/09 Engineering GTR A METHOD OF MANUFACTURE OF A GLOVER C J; GOODFELLOW A G
Components, TIRE AND APPARATUS
Processe THEREFOR
1987-312 USA 5118367 06/02/92 09/25/09 Tire Fabric GTR PROCESS FOR TREATING A STARINSHAK T W
& Fiber BRASS-PLATED STEEL WIRE
Reinforcement
1991-487 USA 5178714 01/12/93 01/12/10 Engineering GTR APPARATUS FOR THE MANUFACTURE GLOVER C J; GOODFELLOW A G
Components, OF A PNEUMATIC TIRE [HOWDINS]
Processe
1987-073 USA 5205546 04/27/93 02/10/12 Engineered GTR HYDRO-ELASTIC ENGINE MOUNT SCHISLER R C; EISENZIMMER G W
Products
1990-001 USA 5209705 05/11/93 05/29/12 Engineered GTR SYNCHRONOUS DRIVE BELT WITH GREGG M J W
Products OBLIQUE AND OFFSET TEETH
1988-525 USA 5211609 05/18/93 02/06/12 Engineered GTR ELASTOMERIC DRIVE BELT HAINES E L
Products
1988-136 USA 5215613 06/01/93 06/01/10 Tire Fabric GTR METHOD FOR MAKING KNOTLESS SHEMENSKI R M; RIGGENBACH
& Fiber BEAD BUNDLE, A BEAD E F; PRAKASH A
Reinforcement BUNDLE MADE THEREBY, AND A
TIRE INCORPORATING SAID
BEADBUNDLE
1988-553 USA 5223061 06/29/93 10/01/10 Tire OTR, GTR MICROREINFORCEMENT IN THE NAVAUX S
Farm, FOLDED BELT
Aircraft,
Specialty
1991-127 USA 5262213 11/16/93 09/14/12 Chemical R&D GTR STYRENE-BUTADIENE RUBBERS FOR RODGERS M B; HALASA A F;
TRUCK TIRES HSU W-L; MATRANA B A;
MEZYNSKI S M
1991-350 USA 5286011 02/15/94 12/04/12 Engineered GTR BUSH TYPE HYDRAULICALLY STRAND M E
Products DAMPED MOUNTING DEVICE
Page 2 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- -------- --- ------- -------- ---------- -------------- ----- ----------------------------- -----------------------------
1992-344 USA 5300599 04/05/94 04/08/13 Chemical GTR MODIFIED FOR ANIONIC HSU W-L; HALASA A F.
R&D POLYMERIZATION OF DIENE
MONOMERS
1988-286 USA 5303537 04/19/94 04/19/11 Tire GTR APPARATUS FOR MAKING METALLIC KOT K M; SEYLL R
Fabric & CORD
Fiber
Reinforcement
1987-119 USA 5332018 07/26/94 07/26/11 Tire-Passenger GTR BELT REINFORCING ASSEMBLY FOR ROESGEN A E F; KUMMER P
& Truck A PNEUMATIC TIRE
1992-142 USA 5337815 08/16/94 10/05/12 Tire-Passenger GTR PNEUMATIC TIRE HAVING GRAAS M
& Truck IMPROVED WET TRACTION
1988-164 USA 5358191 10/25/94 10/25/11 Engineering GTR STORAGE AND SPLICING OF STRIP SMITH M W; LUNDELL D A;
Components, MATERIAL ROMAN J P
Processe
1992-373 USA 5368082 11/29/94 09/30/12 Tire-Passenger GTR RADIAL PLY PNEUMATIC TIRE OARE T R; BRAYER R R;
& Truck KAHRS J W; TRARES K C;
ROBINSON B A; MCQUATE R D;
KAHRS J W
1993-132 USA 5382198 01/17/95 01/26/14 Engineered GTR HELICALLY GROOVED MULTI- JANNE M L
Products RIBBED POWER TRANSMISSION
BELT
1992-200 USA 5385621 01/31/95 09/23/13 Engineering GTR TIRE BEAD WINDING APPARATUS GOLIGHTLY RW
Components, AND METHOD
Processe
1992-182 USA 5389187 02/14/95 06/30/13 Engineering GTR METHOD AND APPARATUS FOR TIRE MARKS P D; SMITH M W
Components, TREAD APPLICATION
Processe
1992-104 USA 5407005 04/18/95 04/04/14 Tire-Passenger GTR EAGLE RSA - A TREAD FOR A CONSOLACION R E; BRAYER R
& Truck TIRE R; CROYLE W L
1990-001 USA 5421789 06/06/95 06/06/12 Engineered GTR SYNCHRONOUS DRIVE PULLEY AND GREGG M J W
Products ITS COMBINATION WITH A BELT
HAVING OBLIQUE AND OFFSET
TEETH
1993-015 USA 5429168 07/04/95 11/16/13 Tire OTR, GTR AN IMPROVED OFF-THE-ROAD LOBB J F; COOK M W; WELLS
Farm, PNEUMATIC TIRE D E; LEWKOWICZ S Z
Aircraft,
Specialty
1993-043 USA 5451646 09/19/95 12/05/14 Chemical GTR TECHNIQUE FOR REDUCING THE CASTNER K F
R&D MOLECULAR WEIGHT AND
IMPROVING THE PROCESSABILITY
OF HIGH CIS-1,4 POLYBUTADIENE
1993-066 USA 5509455 04/23/96 04/12/14 Tire OTR, GTR AIRCRAFT TIRE INCLUDING WARCHOL J T; BRYANT G B;
Farm, REINFORCEMENT INSERTS MILLMIER R W
Aircraft,
Specialty
1994-304C USA 5513560 05/07/96 01/05/15 Engineering GTR QUICK CHANGEOVER METHOD AND DOWNING D R; HEAD W J;
Components, APPARATUS FOR A CALENDER BENZING J A II
Processe APPARATUS
1993-150 USA 5524688 06/11/96 06/29/13 Tire-Passenger GTR PNEUMATIC TIRE HAVING A HIGH TRARES K C; KOLOWSKI M A;
& Truck ENDING TURNUP LOCKED BEAD KAHRS J W
CONSTRUCTION
1992-182 USA 5534093 07/09/96 07/09/13 Engineering GTR METHOD FOR TIRE TREAD MARKS P D; SMITH M W
Components, APPLICATION
Processe
1991-544 USA 5535994 07/16/96 11/30/13 Engineered GTR COMPOSITE AIR SPRING PISTON SAFREED C K JR
Products
1994-064 USA 5536348 07/16/96 06/30/15 Engineering GTR METHOD OF ASSEMBLY OF A CHLEBINA L E; TUBB G E;
Components, PRECURED TIRE TREAD TO AN LAURICH T A
Processe UNVULCANIZED CASING
Page 3 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ---------- --- ------- -------- ---------- -------------- ----- ----------------------------- -----------------------------
1983-154 USA 5554242 09/10/96 09/10/13 Engineering GTR METHOD FOR MAKING A COOK M W; BROWN T E;
Components, MULTI-COMPONENT TIRE CARLSON J D; DAVISSON J A;
Processe MIHALIK M
1992-200 USA 5567269 10/22/96 10/22/13 Engineering GTR TIRE BEAD MAKING APPARATUS GOLIGHTLY R W
Components, WITH TWO WINDING TENSION
Processe LEVELS
1992-315 USA 5591288 01/07/97 01/07/14 Engineering GTR CONTOURED TIRE BUILDING DRUM CONGER K D; BECKER M L;
Components, AND METHOD OF BUILDING AN BEER K
Processe EXTENDED MOBILITY TIRE
DN1996-027 USA 5605951 02/25/97 02/20/16 Compound GTR SILICA REINFORCED RUBBER SANDSTROM P H; WIDEMAN L G
Technology COMPOSITION AND TIRE WITH
TREAD THEREOF
1993-178 USA 5609242 03/11/97 07/12/15 Engineered GTR STEEL CABLE CONVEYOR BELT HUTCHINS T G; TERREAU H L
Products WITH IMPROVED PENETRATION AND
RIP RESISTANCE
1993-382 USA 5620939 04/15/97 09/22/15 Chemical GTR HIGH PERFORMANCE BLEND FOR HALASA A F; HSU W-L;
R&D TIRE TREADS ZANZIG D J; SANDSTROM P
H; HENNING S K; LUCAS D
1993-015 USA 5622576 04/22/97 11/16/13 Tire OTR, GTR OFF-THE-ROAD PNEUMATIC TIRE LOBB J F; COOK M W; WELLS
Farm, WITH SPECIFIED BEAD AREA D E; LEWKOWICZ S Z
Aircraft, DESIGN
Specialty
1993-423 USA 5638732 06/17/97 09/02/14 Engineering GTR APPARATUS FOR CUTTING OF BECKER M L; BEER K;
Components, ELASTOMERIC MATERIALS DOWNING D R; DUNN W F;
Processe HART J M; LUNDELL D A
1992-373 USA 5639320 06/17/97 06/17/14 Tire-Passenger GTR A RADIAL PLY PNEUMATIC TIRE OARE T R; BRAYER R R;
& Truck ROBINSON B A; KAHRS J W;
TRARES K C; MCQUATE R D
1994-252 USA 5645660 07/08/97 06/28/15 Tire-Passenger GTR DESIGN PATTERNS FOR A TIRE ATTINELLO J S; LANDERS S P
& Truck SIDEWALL
1995-358 USA 5645661 07/08/97 11/18/11 Tire-Passenger GTR TIRE SIDEWALL CLEMENTZ M; FELLER G;
& Truck MERX R
1988-545 USA 5648153 07/15/97 07/15/14 Tire Fabric GTR TIRE WITH HIGH STRENGTH HELFER F B; KIM D K;
& Fiber REINFORCEMENT MORGAN J G; SHEMENSKI R
Reinforcement M; SINOPOLI I M; NGUYEN G V
1993-382 USA 5654384 08/05/97 09/22/15 Chemical GTR PROCESS FOR PREPARING HIGH HALASA A F; HSU W-L;
R&D VINYL POLBUTADIENE RUBBER SEE ZANZIG D J; SANDSTROM P
ALSO DN1996-125 (08/685762), H; HENNING S K; LUCAS D
WHICH IS A CIP OF THIS CASE
1993-318 USA 5658404 08/19/97 01/01/10 Tire-Passenger GTR A RADIAL PNEUMATIC LIGHT SCARPITTI A J; KOLOWSKI
& Truck TRUCK OR AUTOMOBILE TIRE M A; MILLER F W; GILLIAM
D W; TRARES K C; BROWN S
C; HOANG A N
1995-235 USA 5660652 08/26/97 07/14/15 Tire-Passenger GTR G357 - TRUCK TIRE AND TREAD YOUNG D L; YOUNG A G
& Truck FOR STEER AXLES
DN1996-037 USA 5672639 09/30/97 03/12/16 Tire GTR STARCH COMPOSITE REINFORCED CORVASCE F G; LINSTER
Compounding RUBBER COMPOSITION AND TIRE T D; THIELEN G M V
WITH AT LEAST ONE COMPONENT
THEREOF
Page 4 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ---------- --- ------- -------- ---------- -------------- ----- ----------------------------- -----------------------------
DN1996-021 USA 5679751 10/21/97 02/12/16 Chemical GTR SOLUTION POLYMERIZATION HALASA A F; AUSTIN L E;
R&D PROCESS FOR SYNTHESIS OF HSU W-L; GROSS B B
STYRENE-BUTADIENE OR STYRENE
-1SOPRENE RUBBER
DN1996-246 USA 5704862 01/06/98 01/13/17 Engineered GTR DUAL SIDED POLY-V DRIVE BELT JANNE M L; ANDERSON S M
Products AND PULLEY THEREFOR
DN1996-201 USA 5704999 01/06/98 10/04/16 Tire GTR RUBBER WEAR INDICATOR FOR LUKICH L T; ROENNAU
Compounding MILITARY AIRCRAFT TIRES R B; SANDSTROM P H
1995-068 USA 5709760 01/20/98 10/18/15 Engineering GTR THIN GAUGE, FINE DIAMETER PRAKASH A; HEAD W J;
Components, STEEL CORD REINFORCED TIRE TUBB G E; WOODS T K
Processe PLY FABRIC WHICH IS LAP
SPLICED
DN1996-030 USA 5725701 03/10/98 03/13/16 Tire GTR LOW PRESSURE ALL TERRAIN ROONEY T M; OARE T R
OTR, VEHICLE TIRE
Farm,
Aircraft,
Specialty
DN1996-072 USA 5730829 03/24/98 03/26/16 Engineering GTR TWO DRUM TURRET FOR TIRE CONGER K D; TESTA D C
Components, ASSEMBLY
Processe
1994-035 USA 5733399 03/31/98 12/15/15 Engineered GTR METHOD AND APPARATUS OF WOOD D B
Products MANUFACTURING SYNCHRONOUS
DRIVE BELT WITH TEETH WHICH
ARE AXIALLY INTERLOCKED WITH
A MOLD SURFACE
1994-193 USA 5743974 04/28/98 09/05/15 Testing, GTR PNEUMATIC TIRE HAVING PITCH WESOLOWSKI P J
Evaluation, SEQUENCING
Computer
1995-290 USA 5753057 05/19/98 09/05/15 Testing, GTR PNEUMATIC TIRE HAVING WESOLOWSKI P J
Evaluation, IMPROVED PITCH SEQUENCING
Computer
1995-289 USA 5759312 06/02/98 09/05/15 Testing, GTR PNEUMATIC TIRE HAVING PITCH WESOLOWSKI P J
Evaluation, SEQUENCING
Computer
1995-335 USA 5762740 06/09/98 12/15/15 Engineering GTR METHOD FOR BUILDING A BENZING J A II; HEAD W J;
Components, LAMINATE FROM AN ASSEMBLY OF DOWNING D R
Processe TIRE COMPONENTS TO FORM A
CASING
1995-122 USA 5779829 07/14/98 08/24/15 Tire GTR PNEUMATIC TIRE HAVING A PRAKASH A; GILLIAM D W;
Fabric & SINGLE CARCASS PLY REINFORCED TUBB GE
Fiber WITH METALLIC CORDS, HIGH
Reinforcement ENDING, PLY TURNUP AND LOCKED
BEAD CONSTRUCTION
1994-064 USA 5827380 10/27/98 06/30/15 Engineering GTR PRECURED TIRE TREAD HAVING CHLEBINA L E; TUBB G E;
Components, SEALING PROJECTION FOR A LAURICH T A
Processe TRUCK TIRE FILE WRAPPER
CONTINUATION OF 94064-D-01
(APP NO. 08/642290)
1992-373 USA 5851324 12/22/98 12/22/15 Tire-Passenger GTR A RADIAL PLY PNEUMATIC TIRE OARE T R; BRAYER R R;
& Truck ROBINSON B A;
KAHRS J W; TRARES K C;
MCQUATE R D
DN1997-119 USA 5871600 02/16/99 05/29/17 Tire-Passenger GTR RUNFLAT TIRE WITH DIFFERENT OARE T R; PRAKASH A;
& Truck MODULUS OR ELONGATION CARCASS HALL R E; TUBB G E
CORDS
Page 5 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ---------- ---- ------- -------- ---------- ------------------------- ----- ------------------------------ -------------------------
DN1997-108 USA 5871602 02/16/99 05/29/17 Tire-Passenger & Truck GTR TIRE WITH CARCASS TURN UP ENDS PAONESSA A C; SELOOVER
UNDER BELT STRUCTURE M H; BECK J J JR; OARE T
R; DANCY J G
1995-207 USA 5872179 02/16/99 06/07/15 Tire Compounding GTR TIRE WITH SILICA REINFORCED HUBBELL J K
TREAD
DN1996-031 USA 5879482 03/09/99 03/13/16 Tire OTR, Farm, Aircraft, GTR RUN-FLAT LOW-PRESSURE ALL ROONEY T M; OARE T R
Specialty TERRAIN VEHICLE (ATV) TIRE
1995-089 USA 5886086 03/23/99 06/07/15 Tire Compounding GTR TIRE HAVING SILICA REINFORCED HUBBELL J K; CRAWFORD M J
TREAD
DN1997-118 USA 5908685 06/01/99 05/29/17 Tire Fabric & Fiber GTR ELASTOMERIC COMPOSITE PRAKASH A; OARE T R; TUBB
Reinforcement STRUCTURE G E; HALL R E
DN1998-103 USA 5934652 08/10/99 05/28/18 Engineered Products GTR AIR SPRING BUMPER AND METHOD HOFACRE G D; TROWBRIDGE M
OF MOUNTING G; SAFREED C K JR
DN1996-113 USA 6021829 02/08/00 07/18/16 Tire OTR, Farm, Aircraft, GTR MUD RUNNER - ALL-TERRAIN- ROONEY T M
Specialty VEHICLE TIRE
DN1997-107 USA 6026878 02/22/00 05/29/17 Tire-Passenger & Truck GTR AN INEXTENSIBLE HIGH ZHANG Z; OARE T R;
TEMPERATURE RESISTANT RUNFLAT PRAKASH A
TIRE
DN1998-001 USA 6041839 03/28/00 01/19/18 Tire Fabric & Fiber GTR METALLIC 4+3 CORD FOR THE SUSUTOGLU Y A M
Reinforcement REINFORCEMENT OF ELASTOMERS
DN1999-036 USA 6051178 04/18/00 02/19/19 Engineered Products GTR METHOD AND APPARATUS FOR FIKE L T
MAKING AN ENDLESS RUBBER
TRACTOR TRACK
DN1996-030 USA 6070633 06/06/00 03/13/16 Tire OTR, Farm, Aircraft, GTR LOW PRESSURE ALL TERRAIN ROONEY T M; OARE T R
Specialty VEHICLE TIRE
DN1998-016 USA 6075095 06/13/00 11/18/18 Chemical R&D GTR PROCESS FOR MAKING TIN-COUPLED FIEDLER R D; JOHNSON E L
RUBBERY POLYMERS
DN1997-120 USA 6082423 07/04/00 06/09/17 Tire-Passenger & Truck GTR LOW COST LIGHT WEIGHT RADIAL ROESGEN A E F; SMITS A;
TIRE THISE-FOURGON M-R C A;
PACKBIER E G M; CRAIG D P
DN1999-034 USA 6086811 07/11/00 04/29/18 Engineered Products GTR MOLDING SYSTEM FOR RUBBER FIKE L T
TRACTOR TRACKS GDYR ACQUIRED
RIGHTS FOR THIS APPLICATION
(OHIO 44278)
1994-064 USA 6089290 07/18/00 10/31/17 Engineering Components, GTR PRECURED TIRE TREAD FOR A CHLEBINA L E;
Processe TRUCK TIRE AND THE METHOD OF TUBB G E; LAURICH T A
ASSEMBLY
DN1996-107 USA 6105643 08/22/00 09/04/18 Tire-Passenger & Truck GTR ON/OFF ROAD RADIAL PNEUMATIC ROHWEDER E E; MILLER F W;
LIGHT TRUCK OR AUTOMOBILE KOLOWSKI M A; BROWN S C
TIRE
1994-304D USA 6109322 08/29/00 01/05/15 Engineering Components, GTR LAMINATE COMPOSITE STRUCTURE BENZING J A II; HEAD W J;
Processe FOR MAKING AN UNVULCANIZED DOWNING D R; VANNAN F F
CARCASS FOR A RADIAL PLY JR
TIRE AS AN INTERMEDIATE
ARTICLE OF MANUFACTURE
DN1997-091 USA 6112789 09/05/00 04/18/17 Tire Fabric & Fiber GTR PNEUMATIC TIRES MADE WITH REUTER R F
Reinforcement TEXTILE CARDS COMPRISING TWO
PORTIONS, THE FILAMENTS IN
THE SECOND RADIALLY INNER
PORTION BEING COMPACTED OR
FUSED
Page 6 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ---------- ---- ------- -------- ---------- ------------------------- ----- ------------------------------ -------------------------
DN1998-099 USA 6123325 09/26/00 05/26/18 Engineered Products GTR AIRTIGHT END RETAINER FOR BUCHANAN K M; STRICKLER
AN AIRSPRING R A
1995-335 USA 6126780 10/03/00 12/15/15 Engineering Components, GTR APPARATUS FOR BUILDING A BENZING J A II; HEAD W
Processe LAMINATE AND FORMING A J; DOWNING D R
SUBASSEMBLY FOR A TIRE
DN1996-167 USA 6131633 10/17/00 11/30/18 Tire OTR, Farm, Aircraft, GTR PNEUMATIC TIRE WITH BREAKER SLIVKA J J
Specialty ASSEMBLY INCLUDING RUBBER/
FABRIC WEAR STRIP
DN1997-108 USA 6135181 10/24/00 05/29/17 Tire-Passenger & Truck GTR TIRE WITH BEAD FILLER RUNFLAT PAONESSA A C; SELOOVER M
INSERTS H; BECK J J JR; OARE T R;
DANCY J G
DN1997-119 USA 6135183 10/24/00 05/29/17 Tire-Passenger & Truck GTR RUNFLAT TIRE WITH DIFFERENT OARE T R; PRAKASH A; HALL
MODULUS OR ELONGATION CARCASS R E; TUBB G E
CORDS
DN1999-029 USA 6140434 10/31/00 01/08/19 Chemical R&D GTR SYNTHESIS OF HIGH VINYL RUBBER HALASA A F; HSU W-L
DN1998-047 USA 6142205 11/07/00 03/13/18 Tire-Passenger & Truck GTR TIRE WITH COMPOSITE PLY BECK J J JR; TUBB G E;
STRUCTURE ABBOTT J R; LANDERS S P;
PRAKASH A; VANNAN F F JR;
BROYLES H D; BEER K
DN1997-048 USA 6153686 11/28/00 03/13/17 Engineered Products GTR HIGH MODULUS BELT COMPOSITION GRANATOWICZ D S; MORRIS M
AND BELTS MADE THEREWITH T; PILKINGTON M V;
TOMPKIN G R
DN1999-035 USA 6177042 01/23/01 11/23/18 Engineered Products GTR METHOD AND APPARATUS FOR FIKE L T
MAKING RUBBER TRACTOR TRACKS
GDYR ACQUIRED THE RIGHTS TO
THIS APPLICATION (OHIO 48235)
DN1996-146 USA 6180210 01/30/01 09/26/16 Engineered Products GTR ABRASION RESISTANT ENERGY DEBUS J W
ABSORBING TREADMILL
WALKING/RUNNING BELT
DN1996-145 USA 6183582 02/06/01 08/22/16 Engineered Products GTR METHOD AND APPARATUS FOR GREGG M J W
PRODUCING SYNCHRONOUS BELTS
WITH TWO OR MORE TRACKS OF
HELICAL TEETH
DN1998-059 USA 6230773 05/15/01 03/17/18 Compound Technology GTR TIRE WITH SIDEWALL CARCASS SANDSTROM P H; MCQUATE R
REINFORCEMENT D; SINSKY M S
DN1999-177 USA 6234460 05/22/01 08/23/19 Engineered Products GTR PUSH-ON AIR SPRING BUMPER ARNOLD J E
DN1999-229 USA 6250353 06/26/01 10/20/19 Tire-Passenger & Truck GTR AN ON/OFF ROAD TREAD FOR A MAXWELL P B
TIRE
DN1997-233 USA 6260594 07/17/01 01/24/20 Tire OTR, Farm, GTR INDUSTRIAL SERVICE PNEUMATIC BONKO M L; ROONEY T M
Aircraft, Specialty TIRE
DN1999-100 USA 6261657 07/17/01 04/26/19 Engineered Products GTR HOSE CONSTRUCTION CONTAINING AINSWORTH C L; HENRY B
FLOUROPLASTIC TERPOLYMERS
1992-373 USA 6263935 07/24/01 05/06/14 Tire-Passenger & Truck GTR RADIAL PLY PNEUMATIC RUNFLAT OARE T R; BRAYER R R;
TIRE THIS IS THE FIRST ROBINSON B A; KAHRS J W;
CONTINUATION OF 1992-373-D-02 TRARES K C; MCQUATE R D
DN1996-122 USA 6264577 07/24/01 08/23/16 Engineered Products GTR SMART SPLICE HUTCHINS T G
Page 7 Of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ---------- ---- ------- -------- ---------- ------------------------- ----- ------------------------------ -------------------------
1994-064 USA 6264779 07/24/01 11/25/17 Engineering Components, GTR METHOD OF CURING TIES CAPPELLI M R; LAURICH T
Processe A; REX W A; VANNAN F F JR
1988-545 USA 6273160 08/14/01 03/21/10 Tire Fabric & Fiber GTR TIRES WITH HIGH STRENGTH HELFER F B; KIM D K;
Reinforcement REINFORCEMENT MORGAN J G; SCHEMSKI R M;
SINOPOLI I M; JEANPIERRE
G; NGUYEN G V
DN1997-215 USA 6277317 08/21/01 12/02/17 Engineering Components, GTR METHOD FOR BUILDING PNEUMATIC VANNAN F F JR; REX W
Processe TIRES IN AN IMPROVED TIRE MOLD A; YOVICHIN A J;
STOILA G M JR; WOLBERT
H A
DN1997-100 USA 6284180 09/04/01 05/16/17 Engineered Products GTR METHOD TO CURE ENDLESS TRACK
BELTS AND APPARATUS THEREFOR
1994-064 USA 6290810 09/18/01 10/27/18 Engineering Components, GTR MOLD FOR CURING PRECURED YOVICHIN A J; LAURICH T A
Processe TREADS TO TIRE CASINGS
DN1999-101 USA 6296329 10/02/01 05/12/19 Engineered Products GTR ENDLESS RUBBER TRACK AND RODGERS M B; KRISHNAN R
VEHICLE CONTAINING SUCH TRACK M; SANDSTROM P H; MALY N
A; GORDON L A
DN2000-178 USA 6307467 10/23/01 10/30/20 Tire-Passenger & Truck GTR PROCESS AND APPARATUS FOR STARKEY G R; POLLACK R S
RESETTING A MICRO-MECHANICAL
CONDITION SENSOR
DN2000-180 USA 6307477 10/23/01 10/30/20 Tire-Passenger & Truck GTR PROCESS AND APPARATUS FOR STARKEY G R; POLLACK R S
RESETTING A DIRECTLY
RESETTABLE MICRO-MECHANICAL
TEMPERATURE MEMORY SWITCH
DN2000-213 USA 6310152 10/30/01 10/24/20 Compound Technology GTR SYNTHESIS OF ELASTOMERIC HIGH CASTNER K F
TRANS-1,4-POLYBUTADIENE
DN1999-271 USA 6330984 12/18/01 12/30/19 Engineering Components, GTR METHOD AND APPARATUS FOR BARKER B C; KUBINSKI D C;
Processe STORING STRIP MATERIAL MOFFATT R T; DYRLUND C D
DN1998-061 USA 6338374 01/15/02 05/15/20 Tire-Passenger & Truck GTR RUNFLAT TIRE WITH FABRIC NGUYEN G V; CLOSE R P;
UNDERLAY AND TREAD INSERT LANDERS S P
DN1998-185 USA 6341476 01/29/02 10/30/18 Engineering Components, GTR APPARATUS FOR BUNDLING LAYERED GOLIGHTLY R W
Processe MATERIAL
DN1996-167 USA 6343637 02/05/02 11/30/18 Tire OTR, Farm, Aircraft, GTR PNEUMATIC TIRE WITH BREAKER SLIVKA J J
Specialty ASSEMBLY INCLUDING RUBBER/
FABRIC WEAR STRIP
DN1996-200 USA 6351933 03/05/02 10/04/16 Tire Fabric & Fiber GTR PNEUMATIC TIRE REUTER R F
Reinforcement
DN1997-112 USA 6352090 03/05/02 11/18/19 Tire OTR, Farm, Aircraft, GTR TIRE WITH REVERSED CARCASS PLY RAYMAN W E
Specialty TURNUP CONFIGURATION
DN2000-131 USA 6352149 03/05/02 08/25/20 Engineered Products GTR CONVEYOR BELT WITH GARTLAND J J
MICROCOIL SPRINGWIRE SENSOR
DN2000-096 USA 6352320 03/05/02 06/19/20 Engineered Products GTR DIRECTIONAL ANNULAR ELASTIC BONKO M L; THOMAS R A
TRACK
DN1996-167 USA 6354350 03/12/02 11/30/18 Tire OTR, Farm, Aircraft, GTR PNEUMATIC TIRE WITH SLIVKA J J
Specialty BREAKER ASSEMBLY INCLUDING
RUBBER/FABRIC WEAR STRIP
Page 8 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ---------- ---- ------- -------- ---------- ------------------------- ----- ------------------------------ -------------------------
DN1998-181 USA 6357499 03/19/02 08/27/19 Compound Technology GTR POLYMERIC RESINOUS MATERIAL KRALEVICH M L JR; BLOK E
DERIVED FROM LIMONENE, J; SANDSTROM P H; WIDEMAN
DICYCLOPENTADIENE, INDENE AND L G; RUSCAK J M
TERTIARY-BUTYL STYRENE
PROVISIONAL FILED 02OC1998
DN1998-047 USA 6358346 03/19/02 03/13/18 Tire-Passenger & Truck GTR METHOD OF BUILDING TIRE WITH BECK J J JR; TUBB G E;
COMPOSITE PLY STRUCTURE ABBOTT J R; LANDERS S P;
PRAKASH A; VANNAN F F JR;
BROYLES H D; BEER K
DN1999-250 USA 6364981 04/02/02 12/14/19 Engineering Components, GTR FORMING AND APPLICATION OF SMITH M W; KUBINSKI D C;
Processe TIRE PLY CHOATE B T
DN2000-189 USA 6369712 04/09/02 12/21/20 Tire-Passenger & Truck GTR RESPONSE ADJUSTABLE LETKOMILLER J M; YONES D
TEMPERATURE SENSOR FOR L; POLLACK R S
TRANSPONDER
DN2000-034 USA 6371182 04/16/02 02/24/20 Tire-Passenger & Truck GTR RUNFLAT TIRE WITH DUAL-MODULUS PHILPOTT F; COLANTONIO L
UNDERLAY L D; NGUYEN G V; ROESGEN
A E F
DN1999-161 USA 6372863 04/16/02 07/18/20 Chemical R&D GTR SYNTHESIS OF STYRENE-BUTADIENE KERNS M L; XU Z;
RUBBER (THIS CASE WAS CHRISTIAN S M
ORIGINALLY FILED AS A
PROVISIONIAL 12AU1999)
DN2000-216 USA 6374891 04/23/02 11/09/20 Tire OTR, Farm, GTR BIAS AIRCRAFT TIRES ALLMOND D V; SOBHANIE M
Aircraft, Specialty E; KING K S
DN1997-122 USA 6379603 04/30/02 06/09/19 Engineering Components, GTR LATTICE GATE FOR INJECTION WHITE J R; VOGLIANO R H
Processe MOLDING OF RUBBER COMPOUNDS
DN1999-072 USA 6386237 05/14/02 04/12/19 Engineered Products GTR ABRASIVE MATERIAL TRANSPORT CHEVALIER R M; COOK A G;
HOSE WITH WEAR DETECTING HUTCHINS T G
SENSORS
DN1998-026 USA 6386258 05/14/02 03/27/18 Tire-Passenger & GTR TIRE HAVING A GEODESIC PLY AND DYER D K; BRAYER R R;
Truck A METHOD OF FABRICATING PRAKASH A
DN1998-135 USA 6386652 05/14/02 09/02/18 Tire OTR, Farm, Aircraft, GTR PNEUMATIC DRIVER FOR TRACKED BONKO M L
Specialty VEHICLE
DN1998-096 USA 6390136 05/21/02 05/21/18 Engineered Products GTR METHOD OF PRODUCING A HUTCHINS T G; CULHAM A J
HOSE/CLAMP COMBINATION AND A
HOSE/CLAMP ASSEMBLY PRODUCED
THEREBY
DN1997-111 USA 6390165 05/21/02 05/20/17 Tire OTR, Farm, GTR TIRE WITH IMPROVED CARCASS PLY RAYMAN W E
Aircraft, Specialty TURNUP CONFIGURATION
DN2000-028 USA 6401783 06/11/02 04/12/20 Engineering Components, GTR TWO DRUM TURRET FOR TIRE LAMMLEIN R A JR; HART J M
Processe BUILDING
DN2001-036 USA 6402077 06/11/02 02/14/21 Engineering Components, GTR WINDER WITH VARIABLE TENSION VARGO R D; VOGLIANO R H
Processe ZONES
DN1998-010 USA 6408909 06/25/02 05/11/20 Tire-Passenger & Truck GTR RADIAL RUNFLAT PASSENGER TIRE NGUYEN G V
WITH IMPROVED TREAD CONTOUR
WITH DECOUPLING GROOVES
DN2000-176 USA 6416013 07/09/02 09/15/20 Engineering Components, GTR SELF-ALIGNING SPOOL AND METHOD BENZING J A II
Processe FOR STORING STRIP COMPONENTS
Page 9 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ---------- ---- ------- -------- ---------- ------------------------- ----- ------------------------------- ------------------------
DN1997-237 USA 6422733 07/23/02 04/20/20 Engineering Components, GTR INTERNAL MIXER WITH WIDE ADAMS J R; CAIN W J;
Processe THROAT AND WEAR PLATES FELITSKY R M; WATTS W A
DN1998-205 USA 6427728 08/06/02 12/14/19 Engineered Products GTR CONVEYOR BELTING WITH MAGUIRE D J; YU J Z;
REINFORCING FABRIC FORMED FROM ANDRESEN F P
THREE INTERLACED LAYERS
DN1998-182 USA 6427742 08/06/02 11/02/18 Tire-Passenger & Truck GTR PNEUMATIC TIRE HAVING SPECIFIED OARE T R; HUGHES E D
BEAD STRUCTURE
DN1998-072 USA 6439283 08/27/02 07/18/20 Tire-Passenger & Truck GTR RUNFLAT TIRE WITH TREAD PAONESSA A C; SELOOVER
STIFFENING MEMBER M H; ROWEDER S C; ALLEN
W D; BECK J J JR
DN2000-008 USA 6443201 09/03/02 06/13/20 Tire-Passenger & Truck GTR PNEUMATIC TIRE WITH EXTENDED COLANTONIO L L D;
LOAD CARRYING CAPACITY PHILPOTT F; NGUYEN G V;
ROESGEN A E F
DN2000-093 USA 6450223 09/17/02 05/23/20 Tire-Passenger & Truck GTR PNEUMATIC TIRE HAVING IMPROVED LANDERS S P; RATLIFF B J
WET TRACTION JR; MILLER C D; CLARK
J K
DN1999-284 USA 6453961 09/24/02 06/01/20 Tire-Passenger & Truck GTR VARIABLE-STIFFNESS WEDGE INSERT COLANTONIO L L D;
FOR RUNFLAT TIRE ROESGEN A E F;
CORVASCE F G
DN1997-190 USA 6460588 10/08/02 09/26/17 Tire Fabric & Fiber GTR PEN REINFORCEMENT FOR RUBBER WESTGATE W K; SYKORA J C
Reinforcement COMPOSITES
DN2000-036 USA 6465560 10/15/02 02/14/20 Tire Compounding GTR TIRE WITH TREAD OF SPATIALLY ZANZIG D J; PUHALA A S
DEFINED ELASTOMER COMPOSITION
DN2001-149 USA 6478387 11/12/02 07/13/21 Tire OTR, Farm, GTR HEAVY DUTY DUAL TIRE ASSEMBLY RAYMAN W E
Aircraft, Specialty
DN1997-144 USA 6481479 11/19/02 01/06/20 Tire OTR, Farm, GTR HIGH ASPECT AGRICULTURAL WEED D B; SHORTER
Aircraft, Specialty OR OFF-ROAD TIRE A C; BISHEL S G
DN1996-103 USA 6481480 11/19/02 06/07/16 Tire-Passenger & Truck GTR CONVERTIBLE TREAD FOR A SCHUSTER D E; SERICH J J
RADIAL TRUCK OR TRAILER
TIRE
DN2000-049 USA 6487900 12/03/02 04/28/20 Tire-Passenger & Truck GTR METHOD OF TIRE BEAD FLANGE LEE C-C
PROFILING
DN1999-291 USA 6489415 12/03/02 12/05/20 Compound Technology GTR PROCESS FOR SYNTHESIZING HSU W-L; HALASA A F
TRANS-1,4-POLYBUTADIENE
PROVISIONAL FILED 31DE1999
DN2000-163 USA 6491076 12/10/02 10/23/20 Tire-Passenger & Truck GTR TRIANGULAR BEAD CONFIGURATION COLANTONIO L L D;
FOR PNEUMATIC TIRE WITH ROESGEN A E F; PHILPOTT
EXTENDED LOAD CARRYING CAPACITY F; NGUYEN G V
DN1998-075 USA 6497834 12/24/02 04/21/18 Engineering Components, GTR FLOW CHANNEL BLOCK AND METHOD VARGO R D; BURG G R
Processe OF MAKING
DN2001-186 USA 6498967 12/24/02 01/25/22 Tire-Passenger & Truck GTR A TIRE INITIATED VEHICLE HOPKINS W M; LANDERS S
CONTROL SYSTEM PROVISION P; ROTH S F
FILED 10SE2001
DN1998-212 USA 6499980 12/31/02 12/16/18 Engineering Components, GTR AUTOMATED GREEN TIRE CONVEYANCE FLEDDERJOHANN P F;
Processe SYSTEM ElZENZIMMER G W; MCKEE
D J
DN1998-148 USA 6510617 01/28/03 08/26/18 Engineered Products GTR BELT ELONGATION MEASUREMENT GERDES B J; DEBUS J W
DEVICE
DN1998-161 USA 6524416 02/25/03 10/20/18 Engineering Components, GTR STRESS NEUTRALIZATION OF AN KUBINSKI D C; SMITH M W
Processe APEX FILLER FOR A TIRE BEAD
SUBASSEMBLY
Page 10 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ----------- ----- ------- -------- ---------- -------------------- ----- ------------------------------ -------------------------
DN1999-059 USA 6530405 03/11/03 03/02/19 Tire-Passenger & GTR ON/OFF-ROAD TREAD BROWN S C; KOLOWSKI M
Truck A; MAXWELL P B; RATLIFF
B J JR
DN2002-017 USA 6530609 03/11/03 02/05/22 Engineered Products GTR HOSE AND CLAMP ASSEMBLY CHATTERTON A M
DN1998-226 USA 6533891 03/18/03 02/03/19 Engineering GTR BUTT SPLICING OF ELASTOMERIC KUBINSKI D C
Components, Processe SHEETS
DN1999-045 USA 6546984 04/15/03 03/12/19 Engineering GTR TIRE BEAD AND ITS METHOD OF GOLIGHTLY R W
Components, Processe MANUFACTURE
DN1999-047 USA 6554934 04/29/03 03/10/19 Engineered Products GTR PREFORMED STRIP AND METHOD FOR STEVEN R B; MAGUIRE D
SPLICING CONVEYOR BELTS J; LEDERER S A; HEAD W
J; GEHRETT L J; BENZING
J A II
DN2001-067 USA 6561241 05/13/03 04/23/21 Tire OTR, Farm, GTR TWO PIECE TIRE WITH IMPROVED RAYMAN W E
Aircraft, Specialty TIRE TREAD BELT AND CARCASS
DN2001-228 USA 6584836 07/01/03 12/10/21 Testing, Evaluation, GTR BIAS METHOD FOR IDENTIFYING SHTEINHAUZ G D;
Computer AND REMOVING MACHINE JOHANNING G S
CONTRIBUTION TO TEST DATA
DN1999-060 USA 6592704 07/15/03 03/03/19 Engineering GTR FORMING SPLICE JOINTS FOR BENZING J A II
Components, Processe ELASTOMERIC MATERIALS
DN2002-044 USA 6619357 09/16/03 04/24/22 Tire-Passenger & GTR BELT PACKAGE FOR SUPER SINGLE GILLARD J-M; HELT J-N;
Truck TRUCK TIRES BAWIN C JMR
DN1999-063 USA 6630045 10/07/03 03/25/19 Engineering GTR COMBINED BEAD LOADING AND APEX ROEDSETH J K
Components, Processe APPLICATION SYSTEM
DN2001-177 USA 6648041 11/18/03 08/31/21 Tire OTR, Farm, GTR AIRCRAFT TIRE WITH IMPROVED UEYOKO K
Aircraft, Specialty BEAD STRUCTURE
DN2000-218 USA 6655430 12/02/03 11/09/20 Tire OTR, Farm, GTR LOW PRESSURE TIRE WITH A LOW HOPKINS W M; LUKICH L
Aircraft, Specialty ANGLE RESTRICTOR BELT T; WAIBEL T J
DN1999-126 USA 6689247 02/10/04 07/21/19 Engineered Products GTR PREFORMED STRIP AND METHOD STEVEN R B; BROWN H C
FOR SPLICING CONVEYOR BELTS
DN1999-047 USA 6695133 02/24/04 03/10/19 Engineered Products GTR PREFORMED STRIP AND METHOD STEVEN R B; MAGUIRE D
FOR SPLICING CONVEYOR BELTS J; LEDERER S A; HEAD W
J; GEHRETT L J; BENZING
J A II
DN2001-154 USA 6701968 03/09/04 08/02/21 Engineered Products GTR FLEXIBLE PVC HELICAL HOSE BOLONHEZI M
PROVISIONAL FILED 02AU2001
DN2002-015 USA 6702977 03/09/04 01/28/22 Engineering GTR EXPANDABLE BEAD MOLDING RING GIRARD J-C; KASPER B A
Components, Processe FOR A TIRE MOLD
DN2001-124 USA 6755105 06/29/04 06/01/21 Engineering GTR METHOD AND APPARATUS FOR DOWNING D R
Components, Processe CUTTING ELASTOMERIC MATERIALS
AND THE ARTICLE MADE BY THE
METHOD
DN1999-061 USA 6761198 07/13/04 03/02/19 Tire Compounding GTR PNEUMATIC TIRE HAVING LUG AND ZANZIG D J; BEZILLA B M
GROOVE CONFIGURATION EXTENDING JR; SANDSTROM P H
FROM TREAD OVER AT LEAST 30
PERCENT OF SIDEWALL
Page 11 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ----------- ----- ------- -------- ---------- -------------------- ----- ------------------------------- ---------------------------
DN2001-175 USA 6769468 08/03/04 09/21/21 Engineering GTR TIRE BUILDING DRUM HAVING CURRIE W D; REDING E;
Components, Processe EXPANDABLE CENTER SECTION AND ROEDSETH J K
INDEPENDENTLY EXPANDABLE BEAD
LOCK ASSEMBLIES IN THE END
SECTIONS
DN2003-037 USA 6772626 08/10/04 03/31/23 Engineering GTR APPARATUS AND METHOD FOR ENGEL J; SANNA E; BLOCK J M
Components, Processe MEASURING TIRE BALANCE ON A
FORCE VARIATION MACHINE
DN2001-164 USA 6793752 09/21/04 09/21/21 Engineering GTR PRECISION LONGITUDINAL LEMAIRE M; ROEDSETH J K;
Components, Processe REGISTRATION OF TIRE BUILDING CORNET F
DRUM TO AUTOMATED TIRE BUILDING
SYSTEM WORK STATION
DN2002-217 USA 6799618 10/05/04 12/18/22 Tire Fabric & Fiber GTR PNEUMATIC TIRE HAVING AN REUTER R F; SCHMITZ F;
Reinforcement OVERLAY REINFORCEMENT IMHOFF S J A; DONCKELS Y
DN2001-183 USA 6799815 10/05/04 05/12/19 Engineered Products GTR COLD ENVIRONMENT ENDLESS RUBBER KRISHNAN R M; LUKICH L T;
TRACK AND VEHICLE CONTAINING RODGERS M B; BEERY R E;
SUCH TRACK PROVISIONAL FILED RABATIN G C
12SE2001
DN2002-211 USA 6843744 01/18/05 12/19/22 Engineered Products GTR SPLICING JOINT AND METHOD FOR GREGG M J W; NGUYEN H X
SYNCHRONOUS DRIVE BELT
DN2001-180 USA 6855082 02/15/05 08/06/22 Engineered Products GTR POWER TRANSMISSION BELT MONCRIEF D B; STORK D M
PROVISIONAL FILED 06SE2001
DN2002-044 USA 6868882 03/22/05 04/24/22 Tire-Passenger & GTR BELT PACKAGE FOR SUPER SINGLE GILLARD J-M; HELT J-N;
Truck TRUCK TIRES BAWIN C J M R
DN2003-054 USA 6896021 05/24/05 03/31/23 Tire-Passenger & GTR TIRE BEAD GEOMETRY KACHNER M D; GOBINATH T;
Truck WINTER D L; KING K S;
KULTON M C; ROMAN J P;
BIRT J A; BRAYER R R; LEE
C-C; LOSEY R A
DN2003-097 USA 7028733 04/18/06 12/31/23 Tire-Passenger & GTR PNEUMATIC TIRE HAVING RATLIFF B J JR
Truck CIRCUMFERENTIALLY EXTENDING RIB
WITH CHAMFERS
DN2003-096 USA 7143798 12/05/06 12/31/23 Tire-Passenger & GTR PNEUMATIC TIRE HAVING TREAD RATLIFF B J JR
Truck WITH AXIALLY ADJACENT BLOCK
CHAMFER AND RIB CHAMFER
DN2003-182 USA 7143799 12/05/06 03/23/24 Tire-Passenger & GTR THREE-DIMENSIONAL SIPES FOR COLLETTE J J M V; MANNE P
Truck TREADS M; DOMANGE A;
BRIEY-TERLINDEN P D
1990-202 USA D334360 03/30/93 03/30/07 Tire Designs GTR EAGLE GS-N - TREAD FOR A GRAAS M; DEWIT E
PNEUMATIC TIRE
1990-246 USA D334361 03/30/93 03/30/07 Tire Designs GTR G267 - TREAD FOR A PNEUMATIC CROISSANT B
TIRE
1989-372 USA D334909 04/20/93 04/20/07 Tire Designs GTR EAGLE GSC - TREAD FOR A BRAYER R R; CROYLE W L;
PNEUMATIC TIRE GRAAS M
1991-115 USA D335842 05/25/93 05/25/07 Tire Designs GTR G-171 - TIRE TREAD BAUS A E J; SCHUSTER D E
1991-042 USA D336065 06/01/93 06/01/07 Tire Designs GTR G186 ALT - TIRE TREAD PATEL A U
Page 12 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ----------- ----- ------- -------- ---------- -------------------- ----- ------------------------------- ---------------------------
1991-043 USA D336453 06/15/93 06/15/07 Tire Designs GTR G386 - TIRE TREAD PATEL A U
1989-252 USA D338179 08/10/93 08/10/07 Tire Designs GTR WRANGLER AP - TIRE TREAD MILLER F W; LAWRENCE J
K; PAN E D-R
1990-141 USA D338437 08/17/93 08/17/07 Tire Designs GTR G22 - TIRE TREAD MAXWELL P B; HAMMOND P S;
EGAN W E; COVERT D E
1991-342 USA D340436 10/19/93 10/19/07 Tire Designs GTR G177 UNISTEEL - DESIGN FOR A BAUS A E J
TIRE TREAD
1991-302 USA D340683 10/26/93 10/26/07 Tire Designs GTR STINNES POWER VAN S3000 - TIRE HITZKY L J; SCHEUREN D
TREAD
1991-041 USA D340891 11/02/93 11/02/07 Tire Designs GTR ECOTRAC [FULDA] - TIRE TREAD PATEL A U
1991-248 USA D340892 11/02/93 11/02/07 Tire Designs GTR G314 - DESIGN FOR A TIRE TREAD LOEFFLER R L
1989-372 USA D342224 12/14/93 12/14/07 Tire Designs GTR EAGLE GSC - TREAD FOR A BRAYER R R; CROYLE W L;
PNEUMATIC TIRE GRAAS M
1991-323 USA D342705 12/28/93 12/28/07 Tire Designs GTR GT80 - TIRE TREAD GRAAS M
1992-257 USA D344049 02/08/94 02/08/08 Tire Designs GTR WORKHORSE EXTRA GRIP - TIRE BROWN S C; TRARES K C;
TREAD MILLER F W; GILLIAM D W;
SCARPITTI A J; HOANG A N;
KOLOWSKI M A; MONTAG S D
1992-391 USA D344052 02/08/94 02/08/08 Tire Designs GTR GOODYEAR WEATHERHANDLER - TIRE ATTINELLO J S; FREYGANG D
TREAD G; ANDERSON N D; LANDERS
S P
1990-444 USA D344054 02/08/94 02/08/08 Tire Designs GTR AQUATRED - TREAD FOR A ATTINELLO J S; GLOVER W
PNEUMATIC TIRE E; LANDERS S P; MAXWELL P B
1991-456 USA D344056 02/08/94 02/08/08 Tire Designs GTR STEELMARK K - TIRE TREAD GRAAS M; VAN TUYL J H
1992-090 USA D344477 02/22/94 02/22/08 Tire Designs GTR G-26 - TIRE TREAD LARDO C
1992-027 USA D344478 02/22/94 02/22/08 Tire Designs GTR GT+4A - TIRE TREAD CONSOLACION R E; BRAYER R R
1992-261 USA D344918 03/08/94 03/08/08 Tire Designs GTR EAGLE AQUATRED - AQUATREAD GRAAS M
CONCEPT RD712
1991-520 USA D345131 03/15/94 03/15/08 Tire Designs GTR CT266 [HI-MILER] - TIRE TREAD BAUS A E J; ELS R T
1992-423 USA D345722 04/05/94 04/05/08 Tire Designs GTR CARGO VECTOR - TIRE TREAD HITZKY L J; LARDO C
1989-616 USA D346142 04/19/94 04/19/08 Tire Designs GTR EAGLE GT+4; EAGLE RSA - DESIGN CONSOLACION R E; BRAYER R R
FOR A TIRE TREAD
1992-028 USA D346774 05/10/94 05/10/08 Tire Designs GTR GT+4(D) - TIRE TREAD BRAYER R R; CONSOLACION R E
1992-121 USA D346993 05/17/94 05/17/08 Tire Designs GTR TI 3 IRRIGATION - DESIGN FOR BONKO M L; LOPP L C JR
A TIRE
1991-511 USA D347811 06/14/94 06/14/08 Tire Designs GTR [CARGO] G24 - TIRE TREAD LABBE C; LARDO C
1987-138 USA D347814 06/14/94 06/14/08 Tire Designs GTR GT4D - DESIGN FOR A TIRE TREAD BRAYER R R
1992-209 USA D348241 06/28/94 06/28/08 Tire Designs GTR GT2 - TIRE TREAD GRAAS M; HEINEN R;
KLEPPER A A Z S
1990-316 USA D349080 07/26/94 07/26/08 Tire Designs GTR G362 - TREAD FOR A PNEUMATIC LOSER R P
TIRE
1992-474 USA D350092 08/30/94 08/30/08 Tire Designs GTR EAGLE GT II - TIRE TREAD BRAYER R R; CONSOLACION
R E; GRAAS M; ROBINSON B A
1992-161 USA D350098 08/30/94 08/30/08 Tire Designs GTR REGATTA - TIRE TREAD ATTINELLO J S; GLOVER W E
Page 13 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ----------- ----- ------- -------- ---------- -------------------- ----- ------------------------------ ----------------------------
1992-403 USA D350715 09/20/94 09/20/08 Tire Designs GTR G32 - TIRE TREAD LABBE C; LARDO C
1992-155 USA D350716 09/20/94 09/20/08 Tire Designs GTR EAGLE F-1 - TIRE TREAD BELL P W; GAMMON N A;
SCHMALIX C K; WEBER M J
1993-003 USA D350719 09/20/94 09/20/08 Tire Designs GTR RADIAL SPORT - TIRE TREAD GRAAS M; MAITRE B P
1991-458 USA D351368 10/11/94 10/11/08 Tire Designs GTR FULDA KRISTALL 3000 - TIRE GRAAS M; VAN TUYL J H
TREAD
1992-317 USA D352018 11/01/94 11/01/08 Tire Designs GTR CLASSIC 75 - TIRE TREAD ROBERT M P C; VEREECKEN H
J A
1992-220 USA D352489 11/15/94 11/15/08 Tire Designs GTR EAGLE NCT-3 - TIRE TREAD BRENY M A; GRAAS M; POWELL
K J
1993-187 USA D355151 02/07/95 02/07/09 Tire Designs GTR G314 RETREAD - TIRE TREAD HAGMAIER R A
1992-444 USA D355152 02/07/95 02/07/09 Tire Designs GTR WRANGLER RT/S - TIRE TREAD BRIGHTWELL R A; GALANTE R
AND BUTTRESS L; LEGGE K C; WAIBEL T J
1992-287 USA D360858 08/01/95 08/01/09 Tire Designs GTR EAGLE LS - TIRE TREAD BRAYER R R; ROBINSON B A;
WEIMER A F
1993-165 USA D360859 08/01/95 08/01/09 Tire Designs GTR SPECTRA - TIRE TREAD ATTINELLO J S; GLOVER W E;
REID K A
1993-436 USA D360864 08/01/95 08/01/09 Tire Designs GTR UG300 ULTRA GRIP 300 - TIRE MUNSTER J C M; VAN TUYL J H
TREAD
1993-435 USA D361966 09/05/95 09/05/09 Tire Designs GTR STEELMARK 400 - TIRE TREAD GRAAS M; MUNSTER J C M; VAN
TUYL J H
1993-438 USA D362420 09/19/95 09/19/09 Tire Designs GTR ULTRA GRIP 400 UG400 - TlRE HEINEN R; MUNSTER J C M
TREAD
1994-037 USA D364367 11/21/95 11/21/09 Tire Designs GTR GT2 - TIRE TREAD KLEPPER A A Z S; MAITRE B P
1993-408 USA D364368 11/21/95 11/21/09 Tire Designs GTR SAFARI OTR - TIRE TREAD VAN DER MEER A; LARDO C
1992-296 USA D365051 12/12/95 12/12/09 Tire Designs GTR EAGLE GA - TIRE TREAD BRAYER R R; GRAAS M;
ROBINSON B A; WEIMER A F
1993-251 USA D365062 12/12/95 12/12/09 Tire Designs GTR EAGLE NCT - TIRE TREAD POWELL K J
1993-401 USA D365065 12/12/95 12/12/09 Tire Designs GTR WRANGLER AP - TIRE TREAD GALANTE R L; WINDHAM T D;
AND BUTTRESS WAIBEL T J
1994-224 USA D365794 01/02/96 01/02/10 Tire Designs GTR EAGLE F1- TIRE TREAD WEBER M J; SCHMALIX C K;
BELL P W; GAMMON N A;
MCELFRESH J J
1993-447 USA D366858 02/06/96 02/06/10 Tire Designs GTR CONQUEST - TIRE TREAD ATTINELLO J S; GRAAS M;
SUNDKVIST K E
1993-080 USA D367447 02/28/96 02/28/10 Tire Designs GTR G357 - TIRE TREAD HAMMOND P S; LOEFFLER R L;
YOUNG D L
1993-312 USA D367450 02/27/96 02/27/10 Tire Designs GTR TRACKER - TIRE TREAD KOLOWSKI M A; MILLER F W;
SCHAD H H JR
1994-009 USA D367454 02/27/96 02/27/10 Tire Designs GTR WRANGLER HP -TIRE TREAD VAN DER MEER A; LARDO C
1993-148 USA D367455 02/27/96 02/27/10 Tire Designs GTR G286 - TIRE TREAD HERBERGER J R SR; SCHUSTER
D E
1994-212 USA D370197 05/28/96 05/28/10 Tire Designs GTR EAGLE DIPLOMAT FOR GRAAS M; VAN TUYL J H
GOODYEAR AND AS POWER
3000GT FOR CBI STINNES
TIRE TREAD DESIGN
1992-440 USA D370439 06/04/96 06/04/10 Tire Designs GTR DUNLOP SP360 - TIRE FEIDER G G; GILLARD J-M;
TREAD MULLER E P M; SCHEUREN D
Page 14 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ----------- ----- ------- -------- ---------- -------------------- ----- ------------------------------ ----------------------------
1994-084 USA D370648 06/11/96 06/11/10 Tire Designs GTR TRACKER ST - TREAD FOR A ROONEY T M
TIRE
1993-447 USA D373338 09/03/96 09/03/10 Tire Designs GTR CONQUEST - TIRE TREAD ATTINELLO J S; GRAAS M;
SUNDKVIST K E
1993-447 USA D373556 09/10/96 09/10/10 Tire Designs GTR CONQUEST - TIRE TREAD ATTINELLO J S; GRAAS M;
SUNDKVIST K E
1994-358 USA D379340 05/20/97 05/20/11 Tire Designs GTR EAGLE RH - TIRE TREAD CONSOLACION R E; GRABO K E
1994-287 USA D379444 05/27/97 05/27/11 Tire Designs GTR ULTRA GRIP 5 UG5 - TIRE GRAAS M; MUNSTER J C M
TREAD
1994-363 USA D379447 05/27/97 05/27/11 Tire Designs GTR TRAMP 4X4 YUKON - TIRE LABBE C; LARDO C
TREAD
DN1996-064 USA D379448 05/27/97 05/27/11 Tire Designs GTR KRISTALL GRAVITO - TIRE GRAAS M; HEINEN R
TREAD
1994-288 USA D379449 05/27/97 05/27/11 Tire Designs GTR KRISTALL ROTEGO - TIRE GRAAS M; MUNSTER J C M
TREAD DESIGN
1995-002 USA D379785 06/10/97 06/10/11 Tire Designs GTR WRANGLER RT/2 - TIRE TREAD GALANTE R L; LEGGE K C;
AND BUTTRESS WAIBEL T J
1995-322 USA D379786 06/10/97 06/10/11 Tire Designs GTR WRANGLER APT - TIRE TREAD BROWN S C; ROHWEDER E E;
KOLOWSKI M A; MILLER F W
1995-036 USA D379789 06/10/97 06/10/11 Tire Designs GTR G302 - TIRE TREAD SCHUSTER D E; HERMANN R
J; NELSON R B; LOEFFLER R L
DN1996-063 USA D379791 06/10/97 06/10/11 Tire Designs GTR WINTERMARK 5 - TIRE TREAD HEINEN R; KLEPPER A A Z S
DN1996-001 USA D380427 07/01/97 07/01/11 Tire Designs GTR INTEGRITY - TIRE TREAD HUBBELL D R JR
DN1996-049 USA D380715 07/08/97 07/08/11 Tire Designs GTR G244 MSD - TIRE TREAD HARRIS R T; ROLLINGS R B;
SCHUSTER D E; SCHEUREN D;
HARDEN R W JR
1995-125 USA D380717 07/08/97 07/08/11 Tire Designs GTR WRANGLER AQUATRED SUCCESSOR ROHWEDER E E; MILLER F W;
- TIRE TREAD KOLWOSKI M A; BROWN S C
DN1996-048 USA D381606 07/29/97 07/29/11 Tire Designs GTR OLYMPIC MARATHON - TIRE GRAAS M; BRENY M A;
TREAD VILLAMIZAR W U J;
VEREECKEN H J A
1995-155 USA D382520 08/19/97 08/19/11 Tire Designs GTR DIADEM DIRIGO - TIRE TREAD HARPES P; HEINEN R;
KLEPPER A A Z S
1994-359 USA D382521 08/19/97 08/19/11 Tire Designs GTR EAGLE GPS - TIRE TREAD CONSOLACION R E; GRABO K E
1995-186 USA D383422 09/09/97 09/09/11 Tire Designs GTR CONQUEST GA - TIRE TREAD KUNOS A A; BUENGER J R;
SUNDKVIST K E; DOUDS D E
DN1996-085 USA D383424 09/09/97 09/09/11 Tire Designs GTR EAGLE F-1 GS - TIRE TREAD CROYLE W L
DN1996-051 USA D383427 09/09/97 09/09/11 Tire Designs GTR ULTRA TORQUE - TRACTOR TIRE BONKO M L
DN1996-005 USA D383714 09/16/97 09/16/11 Tire Designs GTR CARAT ASSURO - TIRE TREAD GRAAS M; EICHER M J; VAN
TUYL J H
DN1996-120 USA D383718 09/16/97 09/16/11 Tire Designs GTR CARAT EXTREMO - TIRE TREAD GRAAS M; EICHER M J; VAN
TUYL J H
DN1996-138 USA D384308 09/30/97 09/30/11 Tire Designs GTR VECTOR 3 - TIRE TREAD HEINEN R
1994-257 USA D384309 09/30/97 09/30/11 Tire Designs GTR VECTOR 3 - TIRE TREAD HEINEN R
DN1996-100 USA D384312 09/30/97 09/30/11 Tire Designs GTR EAGLE TOURING ENCT3 - TIRE POWELL K J; VILLAMIZAR W U J
TREAD
DN1996-156 USA D384314 09/30/97 09/30/11 Tire Designs GTR EAGLE VECTOR - TIRE TREAD HEINEN R
Page 15 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ---------- --- ------- -------- ---------- ---------------- ----- ----------------------------- ----------------------------
DN1996-128 USA D384612 10/07/97 10/07/11 Tire Designs GTR G397 - TIRE TREAD YOUNG D L; SEVART J L
DN1996-098 USA D384620 10/07/97 10/07/11 Tire Designs GTR ECO CONTROL - TIRE TREAD GILLARD J-M; FEIDER G G;
ALIE J. C
1995-306 USA D384920 10/14/97 10/14/11 Tire Designs GTR G443 - TIRE TREAD DESIGN DEBARSY O
DN1996-152 USA D385234 10/21/97 10/21/11 Tire Designs GTR G169 -TIRE TREAD YOUNG A G
DN1996-016 USA D386132 11/11/97 11/11/11 Tire Designs GTR POS-A-TRACTION VILLAMIZAR W U J; BRENY M A;
[REMINGTON] - TIRE TREAD VEREECKEN H J A; GRAAS M
DN1996-187 USA D386135 11/11/97 11/11/11 Tire Designs GTR G-159A - TIRE TREAD MAXWELL P B
DN1996-078 USA D386470 11/18/97 11/18/11 Tire Designs GTR MAXIMA BT - TIRE TREAD SCHEUREN D; ROBERT M P C
DN1996-095 USA D386471 11/18/97 11/18/11 Tire Designs GTR INTREPID - TIRE TREAD ATTINELLO J S
DN1996-001 USA D386730 11/25/97 11/25/11 Tire Designs GTR INTEGRITY - TIRE TREAD HUBBELL D R JR
1994-257 USA D387714 12/16/97 12/16/11 Tire Designs GTR EAGLE VECTOR -TIRE TREAD HEINEN R
DN1996-214 USA D387717 12/16/97 12/16/11 Tire Designs GTR ESA SUPERGRIP 5 M AND S HEINEN R
- TIRE TREAD
DN1997-001 USA D388030 12/23/97 12/23/11 Tire Designs GTR G149 -TIRE TREAD SCHUSTER D E
DN1996-188 USA D388033 12/23/97 12/23/11 Tire Designs GTR OMNITRAC MSD G201 - SCHEUREN D;
TIRE TREAD CAZIN-BOURGUIGNON J-F;
ROBERT M P C; DE BARSY O
DN1996-252 USA D388034 12/23/97 12/23/11 Tire Designs GTR TIRE TREAD (RMT LE P T; COLLETTE J M X J
REGIONAL DRIVE MCT
TREAD DESIGN RT379A)
1994-178 USA D388035 12/23/97 12/23/11 Tire Designs GTR CLUB - TIRE TREAD HEINEN R; HARPES P; KLEPPER
A A Z S; CROISSANT B
DN1996-115 USA D388036 12/23/97 12/23/11 Tire Designs GTR CARGO G49 - TIRE TREAD LABBE C; LARDO C
DN1996-007 USA D388037 12/23/97 12/23/11 Tire Designs GTR WRANGLER AT/S - TIRE ROHWEDER E E; MILLER F W;
TREAD KOLOWSKI M A; BROWN S C;
MAXWELL P B
DN1996-239 USA D388040 12/23/97 12/23/11 Tire Designs GTR C113 - TIRE TREAD DE BARSY O
DN1996-155 USA D388369 12/30/97 12/30/11 Tire Designs GTR CONQUEST AT - TIRE TREAD HARDEN R W JR
DN1996-127 USA D388370 12/30/97 12/30/11 Tire Designs GTR G334 LHT - TIRE TREAD YOUNG A G; SCHUSTER D E
DN1996-017 USA D388373 12/30/97 12/30/11 Tire Designs GTR KWIK-FIT CENTAUR BRENY M A; VILLAMIZAR W U J
SUPREME 2000; OLYMPIC
JAVELIN; CLASSIC 70;
DUNLOP STEELTRAK II -
TIRE TREAD
DN1996-212 USA D388375 12/30/97 12/30/11 Tire Designs GTR LEE CONQUEST SPIRIT - HARPES P; HEINEN R
TIRE TREAD
DN1996-241 USA D388380 12/30/97 12/30/11 Tire Designs GTR STEELMARK 5 - TIRE HARPES P; HEINEN R
TREAD (RG027B)
DN1997-012 USA D388381 12/30/97 12/30/11 Tire Designs GTR SUPER DUCARO F1 - TIRE HEINEN R; GRAAS M
TREAD
DN1996-116 USA D389441 01/20/98 01/20/12 Tire Designs GTR MUD RUNNER (TRACKER MR) ROONEY T M
-ORNAMENTAL DESIGN FOR
A TREAD FOR A TIRE
DN1996-020 USA D389788 01/27/98 01/27/12 Tire Designs GTR WRANGLER AT/S WRANGLER GALANTE R L; WINDHAM T D;
SRT - TIRE TREAD NOWACKI C A; LAWRENCE J K
DN1996-226 USA D390818 02/17/98 02/17/12 Tire Designs GTR G301 LHD - TIRE TREAD DE BARSY O; SCHEUREN D;
CAZIN-BOURGUIGNON J-F
Page 16 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ---------- --- ------- -------- ---------- ---------------- ----- ----------------------------- ----------------------------
DN1997-033 USA D391203 02/24/98 02/24/12 Tire Designs GTR G647 RSA - G107 RHS - TIRE GILLARD J-M; FEIDER G
TREAD G; SPAETH S M
DN1996-228 USA D391204 02/24/98 02/24/12 Tire Designs GTR EAGLE SA COMFORT - TIRE TREAD HARPES P; GRAAS M
DN1996-222 USA D391205 02/24/98 02/24/12 Tire Designs GTR WRANGLER AT/D - TIRE TREAD SCHAD H H JR; ROHWEDER
E E; BROWN S C; MILLER
F W; KOLOWSKI M A
DN1997-003 USA D391209 02/24/98 02/24/12 Tire Designs GTR GRAND PRIX - TIRE TREAD VILLAMIZAR W U J; GRAAS
M
DN1996-118 USA D391533 03/03/98 03/03/12 Tire Designs GTR CONVEO TOUR - TIRE TREAD LABBE C; LARDO C
DN1997-049 USA D392226 03/17/98 03/17/12 Tire Designs GTR CONQUEST GL [911LH5C] - TIRE HOWALD J A; BUENGER J
TREAD R; SUNDKVIST K E
DN1997-050 USA D392605 03/24/98 03/24/12 Tire Designs GTR ECODRIVE 2 - TIRE TREAD LE P T; ROBERT M P C
DN1997-036 USA D392922 03/31/98 03/31/12 Tire Designs GTR CONQUEST SPORT - TIRE TREAD HEINEN R
DN1996-017 USA D393434 04/14/98 04/14/12 Tire Designs GTR KWIK-FIT CENTAUR SUPREME BRENY M A; VILLAMIZAR W
2000; OLYMPIC JAVELIN; U J
CLASSIC 70; DUNLOP STEELTRAK
II - TIRE TREAD
DN1997-044 USA D393435 04/14/98 04/14/12 Tire Designs GTR CONQUEST WINTER - TIRE TREAD GRAAS M
DN1997-071 USA D394029 05/05/98 05/05/12 Tire Designs GTR G311 LHS- TIRE TREAD GILLARD J-M; FEIDER G G
DN1996-020 USA D394031 05/05/98 05/05/12 Tire Designs GTR WRANGLER AT/S WRANGLER SRT - GALANTE R L; WINDHAM T D;
TIRE TREAD (THIS CASE IS A NOWACKI C A;
CIP OF DN1996-020) LAWRENCE J K
DN1997-070 USA D394034 05/05/98 05/05/12 Tire Designs GTR MARATHON LHS / G313 LR8 - TIRE FEIDER G G; GILLARD
TREAD J-M; SPAETH S M
DN1996-085 USA D396676 08/04/98 08/04/12 Tire Designs GTR EAGLE F-1 GS EMT - EAGLE F-1 CROYLE W L
STEEL -EAGLE F-1 STEEL EMT -
TIRE TREAD
DN1996-118 USA D397646 09/01/98 09/01/12 Tire Designs GTR CONVEO TOUR - TIRE TREAD LABBE C; LARDO C
DN1997-073 USA D397651 09/01/98 09/01/12 Tire Designs GTR G359 SHS - TIRE TREAD SCHUSTER D E
DN1997-079 USA D397652 09/01/98 09/01/12 Tire Designs GTR OMNITRACT MST G203 - TIRE LE P T; MARQUET M E J
TREAD
DN1997-011 USA D398890 09/29/98 09/29/12 Tire Designs GTR ESA TECAR CONFORT - TIRE HARPES P; HEINEN R
TREAD
DN1997-094 USA D399460 10/13/98 10/13/12 Tire Designs GTR 4EVER D660 - TIRE TREAD ALBERT M
DN1997-151 USA D400131 10/27/98 10/27/12 Tire Designs GTR FRIGO DIRECTIONAL - TIRE GRAAS M
TREAD
DN1997-147 USA D400137 10/27/98 10/27/12 Tire Designs GTR PRESTO FURIO - TIRE TREAD HEINEN R;
BRIEY-TERLINDEN P D
DN1997-080 USA D400140 10/27/98 10/27/12 Tire Designs GTR CBI H - TIRE TREAD GRAAS M
DN1996-235 USA D400479 11/03/98 11/03/12 Tire Designs GTR TREAD FOR AN INDUSTRIAL BAUS A E J
TRACTION TIRE
DN1997-148 USA D400832 11/10/98 11/10/12 Tire Designs GTR EAGLE HP - TIRE TREAD DIXON M H; RECKLEY S E;
LACO J H; GRABO K E;
GLOVER W E
DN1997-041 USA D400833 11/10/98 11/10/12 Tire Designs GTR WRANGLER SR - TIRE TREAD LEGGE K C; LOPP L C JR;
LAWRENCE J K; BERGSTROM K J;
MILLER F W
DN1997-196 USA D402239 12/08/98 12/08/12 Tire Designs GTR G109 RHD - TIRE TREAD LE P T; BAWIN C J M R
DN1997-197 USA D402241 12/08/98 12/08/12 Tire Designs GTR EAGLE GA PLUS - TIRE TREAD VILLAMIZAR W U J
DN1997-141 USA D402243 12/08/98 12/08/12 Tire Designs GTR ULTRA GRIP ICE NAVI - TIRE HEINEN R
TREAD
Page 17 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ---------- --- ------- -------- ---------- ---------------- ----- ----------------------------- ----------------------------
DN1997-163 USA D402245 12/08/98 12/08/12 Tire Designs GTR IT323 [SKID STEER) - BONKO M L; ROONEY T M
TREAD FOR A TIRE
DN1997-214 USA D402932 12/22/98 12/22/12 Tire Designs GTR METRO MCS G601 - TIRE TREAD GILLARD J-M;
COLLETTE J M X J
DN1997-205 USA D402933 12/22/98 12/22/12 Tire Designs GTR 4EVER S D640 AND 4EVER T GILLARD J-M
D670 - TIRE TREAD
DN1997-212 USA D402937 12/22/98 12/22/12 Tire Designs GTR G111 RHD - TIRE TREAD ROBERT M P C
DN1997-227 USA D402938 12/22/98 12/22/12 Tire Designs GTR LE MANS A5 - TIRE TREAD VILLAMIZAR W U J
DN1997-206 USA D403275 12/29/98 12/29/12 Tire Designs GTR 4 EVER B D685 - TIRE TREAD GILLARD J-M; FEIDER G G
DN1997-018 USA D403633 01/05/99 01/05/13 Tire Designs GTR TRACKER - TIRE TREAD LEGGE K C; BERGSTROM K J;
NOWACKI C A
DN1997-208 USA D403997 01/12/99 01/12/13 Tire Designs GTR G105 RHS - TIRE TREAD ALBERT M
DN1997-204 USA D405035 02/02/99 02/02/13 Tire Designs GTR PRESTO - TIRE TREAD GRAAS M
DN1998-025 USA D405736 02/16/99 02/16/13 Tire Designs GTR TIRE TREAD BRIGHTWELL R A; MILLER F W;
KULLMAN J R; NOWACKI M C;
VERGINIS D
DN1998-030 USA D405737 02/16/99 02/16/13 Tire Designs GTR ECOTRANS - TIRE TREAD DE BARSY O
DN1997-148 USA D407678 04/06/99 04/06/13 Tire Designs GTR EAGLE HP ULTRA, HP ULTRA DIXON M H; RECKLEY S E;
PLUS - TIRE TREAD LACO J H; GRABO K E;
GLOVER W E
DN1998-086 USA D407679 04/06/99 04/06/13 Tire Designs GTR D121- TIRE TREAD WEBER M J; LANDERS S P
DN1998-097 USA D409123 05/04/99 05/04/13 Tire Designs GTR EAGLE VENTURA - TIRE TREAD HEINEN R; POWELL K J;
HARPES P; HENIN B M
1995-016 USA D409535 05/11/99 05/11/13 Tire Designs GTR SEARS AQUAHANDLER -TIRE ATTINELLO J S
TREAD
DN1998-087 USA D410218 05/25/99 05/25/13 Tire Designs GTR WRANGLER F1 - TIRE TREAD HITZKY L J; LABBE C
DN1998-088 USA D410420 06/01/99 06/01/13 Tire Designs GTR 4EVER D-652 - TIRE TREAD DE BARSY O
DN1998-085 USA D412144 07/20/99 07/20/13 Tire Designs GTR INTEGRITY - TIRE TREAD DEMAGALL C A; LOVELL T P;
KUNOS A A
DN1998-133 USA D412473 08/03/99 08/03/13 Tire Designs GTR G107 - TIRE TREAD LE P T; COLLETTE J M X J;
SPAETH S M
DN1998-098 USA D412870 08/17/99 08/17/13 Tire Designs GTR REGATTA 2 - TIRE TREAD WEBER M J; COVERT D E;
LANDERS S P
1995-016 USA D412872 08/17/99 08/17/13 Tire Designs GTR SEARS AQUAHANDLER -TIRE ATTINELLO J S
TREAD DESIGN
DN1998-118 USA D413087 08/24/99 08/24/13 Tire Designs GTR ALL TERRAIN VEHICLE TREAD ROONEY T M
DESIGN
DN1998-132 USA D413286 08/31/99 08/31/13 Tire Designs GTR NAVIGATOR GOLD - TIRE UMSTOT D E; DIXON M H; DOM
TREAD D W; PARSONS T L; LACO J H;
RIFFLE R R
DN1998-138 USA D413287 08/31/99 08/31/13 Tire Designs GTR WRANGLER MT/R - TIRE TREAD BROWN S C; KOLOWSKI M A;
RATLIFF B J JR
DN1998-122 USA D413557 09/07/99 09/07/13 Tire Designs GTR TRACKMAN CG - TRACTION TIRE BONKO M L
DN1998-117 USA D413844 09/14/99 09/14/13 Tire Designs GTR EAGLE NCT 5 - TIRE TREAD GRAAS M
DN1998-136 USA D414449 09/28/99 09/28/13 Tire Designs GTR G372 LHD - TIRE TREAD SCHUSTER D E
DN1998-199 USA D415451 10/19/99 10/19/13 Tire Designs GTR ALLEGRA - TIRE TREAD WEBER M J; MILLER C D;
LANDERS S P; STROBLE J C
DN1998-196 USA D415721 10/26/99 10/26/13 Tire Designs GTR G670RV - TIRE TREAD ZURITA L E
Page 18 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ---------- --- ------- -------- ---------- ---------------- ----- ----------------------------- ----------------------------
1994-360 USA D415982 11/02/99 11/02/13 Tire Designs GTR EAGLE T/R - TIRE TREAD CONSOLACION R E; GRABO K E;
REID K A
DN1998-197 USA D416216 11/09/99 11/09/13 Tire Designs GTR G670RV - TIRE TREAD ZURITA L E
DN1999-009 USA D417421 12/07/99 12/07/13 Tire Designs GTR VARIODRIVE - TIRE TREAD CAZIN-BOURGUIGNON J-F; DE
CONINCK P J G; ROBERT M P C
DN1999-032 USA D418459 01/04/00 01/04/14 Tire Designs GTR WRANGLER D-SPORT - TIRE TREAD GRAAS M; HITZKY L J;
SIMEON A; LABBE C
DN1999-037 USA D418785 01/11/00 01/11/14 Tire Designs GTR EAGLE RSA- TIRE TREAD LOVELL T P; KUNOS A A; WEBER
M J; MARAZZI E J
DN1999-007 USA D420952 02/22/00 02/22/14 Tire Designs GTR SPT'S AUSTRALIAN ALL VILLAMIZAR W U J; HEINEN R
ROUNDER - TIRE TREAD
DN1999-006 USA D420953 02/22/00 02/22/14 Tire Designs GTR G647RSS - TIRE TREAD POLING D C
DN1999-142 USA D423421 04/25/00 04/25/14 Tire Designs GTR TIRE TREAD YOUNG A G
DN1999-014 USA D423422 04/25/00 04/25/14 Tire Designs GTR EAGLE F1 SUPERCAR - SELOOVER M H; MARAZZI E J;
TIRE TREAD DEMAGALL C A; WEBER M J
DN1999-141 USA D425830 05/30/00 05/30/14 Tire Designs GTR TIRE TREAD YOUNG A G
DN1999-147 USA D425831 05/30/00 05/30/14 Tire Designs GTR FULDA DIADEM LINERO - HEINEN R
TIRE TREAD
DN1999-090 USA D426501 06/13/00 06/13/14 Tire Designs GT3 GTS - TIRE TREAD HEINEN R; POWELL K J;
HARPES P; HENIN B M
DN1999-143 USA D427552 07/04/00 07/04/14 Tire Designs GTR TIRE TREAD YOUNG A G
DN1999-082 USA D427952 07/11/00 07/11/14 Tire Designs GTR REMINGTON/CENTENNIAL LOEFFLER R L; WOLSKI T T;
-TIRE TREAD MIYAZAKI T
DN1999-130 USA D428368 07/18/00 07/18/14 Tire Designs GTR WINGFOOT APR - TIRE TREAD HARRIS R T; BLACKISTON P K
III; WILLIAMS J M JR;
LACO J H
DN1999-222 USA D428586 07/25/00 07/25/14 Tire Designs GTR ALL TERRAIN VEHICLE TREAD ROONEY T M
DN1999-145 USA D429189 08/08/00 08/08/14 Tire Designs GTR SAVA EFFECTA - TIRE TREAD BOZNAR S; HEINEN R;
CAMBRON A F G J M;
BRIEY-TERLINDEN P D
DN1999-152 USA D429479 08/15/00 08/15/14 Tire Designs GTR WRANGLER AT/S - TIRE TREAD FIERRO A J; ROHWEDER E E;
SYKORA J C; MILLER F W
DN1999-236 USA D429666 08/22/00 08/22/14 Tire Designs GTR TIRE TREAD ROONEY T M
DN1999-259 USA D429667 08/22/00 08/22/14 Tire Designs GTR O.E. INTEGRITY - TIRE TREAD FIERRO A J; HINDI R M;
GARBER G B
DN1999-182 USA D430080 08/29/00 08/29/14 Tire Designs GTR CARGO ULTRA GRIP G124 - GRAAS M; HITZKY L J
TIRE TREAD
DN1999-257 USA D431800 10/10/00 10/10/14 Tire Designs GTR ULTRA GRIP 6 - TIRE TREAD HEINEN R; HILBERT G N
DN1998-100 USA D432960 10/31/00 10/31/14 Tire Designs GTR ECOCONTROL - TIRE TREAD FEIDER G G; GILLARD J-M
DN1999-224 USA D433355 11/07/00 11/07/14 Tire Designs GTR INTEGRITY - TIRE TREAD MARKOFF M S; NOWACKI M C;
RACKE J M; MARAZZI E J
DN1999-082 USA D433356 11/07/00 11/07/14 Tire Designs GTR REMINGTON/CENTENNIAL LOEFFLER R L; WOLSKI T T;
-TIRE TREAD MIYAZAKI T
DN1999-037 USA D439870 04/03/01 04/03/15 Tire Designs GTR EAGLE RSA - TIRE TREAD LOVELL T P; KUNOS A A;
WEBER M J; MARAZZI E J
DN1999-265 USA D441327 05/01/01 05/01/15 Tire Designs GTR FULDA CARAT ATTIRO - GRAAS M
TIRE TREAD
Page 19 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ---------- --- ------- -------- ---------- ---------------- ----- ----------------------------- ----------------------------
DN2000-007 USA D444426 07/03/01 07/03/15 Tire Designs GTR TIRE TREAD MARAZZI E J; ECKELS M R;
LAWRENCE J K; LEGGE K C;
SEVARTJ L
DN2000-069 USA D445070 07/17/01 07/17/15 Tire Designs GTR G302 FED SR - TIRE TREAD SCHUSTER D E
DN2000-112 USA D445071 07/17/01 07/17/15 Tire Designs GTR WRANGLER HP - TIRE TREAD BRIGHTWELL R A; MARAZZI E J;
WRIGHT T A; LEGGE K C;
TAKATA H; MAXWELL P B
DN2000-089 USA D445729 07/31/01 07/31/15 Tire Designs GTR TIRE TREAD (DUNLOP DSR096) BROWN R; JOHNSON R D
DN2000-006 USA D448707 10/02/01 10/02/15 Tire Designs GTR MARATHON LHT - TIRE TREAD MAZIARKA M B; ALIE J-C
DN2000-072 USA D448709 10/02/01 10/02/15 Tire Designs GTR G113 RHD - TIRE TREAD LE P T
DN2000-004 USA D449022 10/09/01 10/09/15 Tire Designs GTR ULTRA GRIP WTS - TIRE TREAD CAZIN-BOURGUIGNON J-F;
RODICQ C; KRIER R W
DN2000-082 USA D449258 10/16/01 10/16/15 Tire Designs GTR AS-3A - TIRE TREAD RAYMAN W E
DN2000-061 USA D450032 11/06/01 11/06/15 Tire Designs GTR SAVA INTENSA - TIRE TREAD HEINEN R
DN2000-068 USA D450274 11/13/01 11/13/15 Tire Designs GTR AQUATRED 3+ - TIRE SIDEWALL RATLIFF B J JR; SCHOTT R W;
MILLER C D
DN2001-020 USA D451455 12/04/01 12/04/15 Tire Designs GTR DEBICA 4EVERS S D620 - HELT J-N
TIRE TREAD
DN2000-225 USA D451853 12/11/01 12/11/15 Tire Designs GTR FULDA KRISTALL SUPREMO - HEINEN R; HILBERT G N
TIRE TREAD
DN2000-119 USA D451856 12/11/01 12/11/15 Tire Designs GTR ESKIMO S3 - TIRE TREAD GRAAS M
DN2000-118 USA D451857 12/11/01 12/11/15 Tire Designs GTR DUCARO Gdi (Asia) - TIRE HEINEN R
TREAD
DN2000-171 USA D451860 12/11/01 12/11/15 Tire Designs GTR TIRE TREAD SCHUSTER D E; YOUNG A G;
LOEFFLER R L
DN2001-011 USA D451867 12/11/01 12/11/15 Tire Designs GTR EAGLE GT-HP - TIRE TREAD CLARK J K; SCHMALIX C K;
MAST L S; BRAYER R R;
AULL J L
DN2001-013 USA D451868 12/11/01 12/11/15 Tire Designs GTR ESA+TECAR SUPER GRIP 6 - GRAAS M; LARDO C
TIRE TREAD
DN2000-238 USA D452199 12/18/01 12/18/15 Tire Designs GTR FULDA REGIOFORCE - TIRE ROBERT M P C; DE
TREAD CONINCK P J G
DN2001-019 USA D453009 01/22/02 01/22/16 Tire Designs GTR FULDA ECOCONTROL - TIRE HELT J-N
TREAD
DN2001-076 USA D453729 02/19/02 02/19/16 Tire Designs GTR TIRE TREAD DEMAGALL C A; SELOOVER M H;
WEBER M J
DN2001-096 USA D453730 02/19/02 02/19/16 Tire Designs GTR EAGLE RS-A - TIRE TREAD WEBER M J
DN2000-120 USA D454330 03/12/02 03/12/16 Tire Designs GTR TIRE TREAD GALANTE R L; SPAETH S M
DN2001-023 USA D454832 03/26/02 03/26/16 Tire Designs GTR KWIK-FIT CENTAUR SUPREME HEINEN R
2000 / OLYMPIC JAVELIN -
TIRE TREAD
DN2000-194 USA D455116 04/02/02 04/02/16 Tire Designs GTR EAGLE ULTRA GRIP GW-3 - GRAAS M; LARDO C
TIRE TREAD
DN2001-079 USA D455120 04/02/02 04/02/16 Tire Designs GTR STEELMARK AHT 1 - TIRE DIXON M H; HERMANN R J;
TREAD BLACKISTON P K III
DN2001-080 USA D455709 04/16/02 04/16/16 Tire Designs GTR KSR1 - TIRE TREAD DIXON M H; HERMANN R J;
BLACKISTON P K III
DN2000-146 USA D455997 04/23/02 04/23/16 Tire Designs GTR FORTERA HL - TIRE TREAD FIERRO A J; SCARPITTI A J;
WAGNER D C; SUNDKVIST K E;
SEVART J L
Page 20 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ---------- --- -------- -------- ---------- ------------ ----- --------------------- ----------------------------------------
DN2001-024 USA D455998 04/23/02 04/23/16 Tire Designs GTR KELLY WINTERMARK 6 - HEINEN R; HILBERT G N
TIRE TREAD
DN2001-085 USA D456345 04/30/02 04/30/16 Tire Designs GTR SAVA AVANT A3 - BAWIN C J M R; BEAUGUITTE H M H;
TIRE TREAD GILLARD J-M
DN2001-072 USA D456765 05/07/02 05/07/16 Tire Designs GTR EAGLE F1 GS2 - WEBER M J; SCHMALIX C K; NELSON R B;
TIRE TREAD BRAYER R R
DN2001-078 USA D456769 05/07/02 05/07/16 Tire Designs GTR KELLY KTSA - TIRE DIXON M H; HERMANN R J; BLACKISTON
TREAD P K III
DN2001-090 USA D457126 05/14/02 05/14/16 Tire Designs GTR G633 RSD - TIRE ALLISON W B; BLACKISTON P K III
TREAD
DN2001-016 USA D457128 05/14/02 05/14/16 Tire Designs GTR FULDA REGIOFORCE - ROBERT M P C; LE P T
TIRE TREAD
DN2000-068 USA D457130 05/14/02 05/14/16 Tire Designs GTR AQUATRED 3+ - TIRE RATLIFF B J JR; SCHOTT R W; MILLER C D
SIDEWALL PATTERN
DN2001-021 USA D457855 05/28/02 05/28/16 Tire Designs GTR FULDA REGIOCONTROL - BAWIN C J M R; BEAUGUITTE H M H;
TIRE TREAD GILLARD J-M
DN2000-130 USA D459290 06/25/02 06/25/16 Tire Designs GTR EAGLE F1 GSD 3M - WEBER M J; HUBBELL J K; SKURICH M S;
TIRE TREAD PLAUNY J L
DN2001-083 USA D459296 06/25/02 06/25/16 Tire Designs GTR MULTI MILE EPIC PLUS UMSTOT D E; ALLISON W B; ADAMS W T JR;
AND CLASSIC CE - NOPPER T M
TIRE TREAD
DN2001-097 USA D462655 09/10/02 09/10/16 Tire Designs GTR G622 RSD - ZURITA L E
TlRE TREAD
DN2001-083 USA D465763 11/19/02 11/19/16 Tire Designs GTR MULTI MILE EPIC PLUS UMSTOT D E; ALLISON W B; ADAMS W T JR;
AND CLASSIC CE - NOPPER T M
TIRE TREAD
DN2001-082 USA D469396 01/28/03 04/03/15 Tire Designs GTR EAGLE RS-A PLUS - HUTSON D D; MURPHY D T; NOWACKI M C;
TIRE TREAD KUNOS A A
DN2002-027 USA D470100 02/11/03 02/11/17 Tire Designs GTR TIRE TREAD JOHENNING C P; WEBER M J; TAUBE J J
DN2002-054 USA D470453 02/18/03 02/18/17 Tire Designs GTR DUNLOP ELITE III - JACKSON M
TIRE TREAD
DN2002-022 USA D470454 02/18/03 02/18/17 Tire Designs GTR MARATHON LHD - HELT J-N
TIRE TREAD
DN2002-080 USA D471146 03/04/03 03/04/17 Tire Designs GTR DUNLOP ELITE III - JACKSON M
TIRE TREAD
DN2002-098 USA D471148 03/04/03 03/04/17 Tire Designs GTR VOYAGER HP2 - HEINEN R
TIRE TREAD
DN2001-145 USA D471152 03/04/03 03/04/17 Tire Designs GTR TIRE TREAD GRAAS M; EICHER M J
DN2002-047 USA D471509 03/11/03 03/11/17 Tire Designs GTR IGLU - TIRE TREAD GRAAS M
DN2002-046 USA D471511 03/11/03 03/11/17 Tire Designs GTR ESKIMO S3 - GRAAS M
TIRE TREAD
DN2002-062 USA D472200 03/25/03 03/25/17 Tire Designs GTR GOODYEAR TRACTION BONKO M L; KAPITANCHUK G R
IMPLEMENT - TIRE
TREAD
DN2002-039 USA D473513 04/22/03 04/22/17 Tire Designs GTR MARATHON CARGO - WELBES P
TIRE TREAD
DN2002-050 USA D473514 04/22/03 04/22/17 Tire Designs GTR WRANGLER HP All HITZKY L J; LABBE C; LARDO C
Weather - TIRE TREAD
DN2002-003 USA D474147 05/06/03 05/06/17 Tire Designs GTR G392 SSD - TIRE TREAD ZURITA L E
DN2002-163 USA D477810 07/29/03 07/29/17 Tire Designs GTR KELLY CHARGER - TIRE BUDICH T M; SMATANA S C
SIDEWALL
DN2002-055 USA D478862 08/26/03 08/26/17 Tire Designs GTR G365 - TIRE TREAD GILLARD J-M; FEIDER G G; ALIE J-C;
ZURITA L E; WELKER W L
DN2002-097 USA D478865 08/26/03 08/26/17 Tire Designs GTR KELLY CHARGER - TIRE DIXON M H; UMSTOT D E; LACO J H
TREAD
DN2002-040 USA D479190 09/02/03 09/02/17 Tire Designs GTR FORTERA - TIRE MAXWELL P B
SIDEWALL
Page 21 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ---------- --- -------- -------- ---------- ------------ ----- --------------------- ----------------------------------------
DN2002-096 USA D482323 11/18/03 11/18/17 Tire Designs GTR EAGLE LS2 - CORBIN E N; PEEPLES T L JR; CANANKAMP
TIRE TREAD M A; LUNDELL R S
DN2003-024 USA D482651 11/25/03 12/11/15 Tire Designs GTR TIRE TREAD AULL J L; SCHMALIX C K; BRAYER R R
DN2002-182 USA D483004 12/02/03 12/02/17 Tire Designs GTR DUNLOP SP SPORT 01 - SCHOMBURG J; LOEWENHAUPT B
TIRE TREAD
DN2003-007 USA D483007 12/02/03 12/02/17 Tire Designs GTR ASSURANCE WITH BRAYER R R; SCHMALIX C K; RUSSELL N E;
COMFORTRED TECHNOLOGY REID K A
- TIRE TREAD
DN2002-040 USA D483010 12/02/03 12/02/17 Tire Designs GTR FORTERA - TIRE MAXWELL P B
SIDEWALL
DN2003-040 USA D491518 06/15/04 06/15/18 Sumitomo GTR TIRE TREAD - SP9000 MIYABE S; FEHL H W; WINDISCH C;
Rubber REPLACEMENT IWAMURA W; MATSUMOTO T; MINAMI N
Industries - SPORTMAXX 01
DN2003-087 USA D491883 06/22/04 06/22/18 Tire Designs GTR TIRE TREAD LANDERS S P; SCHMALIX C K; POLING D C;
RATLIFF B J JR; LOSEY R A
DN2003-106 USA D492247 06/29/04 06/29/18 Tire Designs GTR ASSURANCE WITH SCHMALIX C K; BRAVER R R; RUSSELL N E;
COMFORT TREAD - REID K A
TIRE TREAD
DN2004-056 USA D500474 01/04/05 01/04/19 Tire Designs GTR TIRE SIDEWALL MAXWELL P B; FONTAINE S W
DN2003-087 USA D501180 01/25/05 01/25/19 Tire Designs GTR ASSURANCE - LANDERS S P; SCHMALIX C K; POLING D C;
INTERMEDIATE TREAD RATLIFF B J JR; LOSEY R A
FOR A TIRE
DN2004-009 USA D503146 03/22/05 03/22/19 Tire Designs GTR WRANGLER WITH SILENT MAXWELL P B; FONTAINE S W
ARMOR - TIRE SIDEWALL
DN2004-055 USA D503374 03/29/05 03/29/19 Tire Designs GTR FORTERA - TIRE TREAD MAXWELL P B; FONTAINE S W; UMSTOT D E;
NOPPER T M
DN2003-087 USA D504105 04/19/05 04/19/19 Tire Designs GTR ASSURANCE - CENTRAL LANDERS S P; SCHMALIX C K; POLING D C;
CIRCUMFERENTIAL TREAD RATLIFF B J JR; LOSEY R A
FOR A TIRE
DN2004-029 USA D506435 06/21/05 07/06/18 Tire Designs GTR ASSURANCE -TIRE MAXWELL P B; REID K A; SCHOTT R W;
SIDEWALL CICCHIANI M G
DN2004-170 USA D512012 11/29/05 11/29/19 Tire Designs GTR EXCELLENCE - TIRE DELU J M G; ROBINET E C R A; HEINEN R;
TREAD LABBE C; CLOSE R P; FRAIPONT X S B
DN2004-171 USA D512013 11/29/05 11/29/19 Tire Designs GTR EXCELLENCE - TIRE DELU J M G; ROBINET E C R A; HEINEN R;
TREAD LABBE C; CLOSE R P; FRAIPONT X S B
DN2004-118 USA D515021 02/14/06 02/14/20 Tire Designs GTR EXCELLENCE - TIRE DELU J M G; ROBINET E C R A; MAITRE B P
TREAD
DN2004-119 USA D517000 03/14/06 03/14/20 Tire Designs GTR TIRE TREAD ALLEN P B; MILLER C D; MAXWELL P B;
BURNWORTH K L; DIGMAN B D
Page 22 of 23
MATERIAL U.S. PATENTS
DOCKET PATENT GRANT EXPIRATION
NUMBER CTY NUMBER DATE DATE CLIENT OWNER TITLE INVENTORS
- ---------- --- -------- -------- ---------- ------------ ----- --------------------- ----------------------------------------
DN2004-095 USA D519916 05/02/06 05/02/20 Tire Designs GTR ASSURANCE - SHOULDER POLING D C; SCHMALIX C K; MARAZZI E J;
TREAD FOR A TIRE BRAYER R R; LOSEY R A; ALLEN W D;
LANDERS S P; RATLIFF B J JR
DN2005-002 USA D526956 08/22/06 08/22/20 Tire Designs GTR WRANGLER F1 - TIRE WELBES P; VAN DER MEER A; LABBE C
TREAD
DN2005-005 USA D528068 09/12/06 09/12/20 Tire Designs GTR KELLY SAFARI TREX - UMSTOT D E; NOPPER T M; LACO J H;
TIRE TREAD THUM T F; CANDILIOTIS J C; BOORE R E;
KING P J
DN2005-021 USA D530267 10/17/06 09/12/20 Tire Designs GTR KELLY SAFARI TREX - UMSTOT D E; NOPPER T M; LACO J H;
TIRE TREAD THUM T F; CANDILIOTIS J C; BOORE R E;
KING P J
DN2005-004 USA D531572 11/07/06 11/07/20 Tire Designs GTR FORTERA WITH SILENT SCHMALIX C K; GRIFFIN D A; GRABO K E;
ARMOR TECHNOLOGY - SUNDKVIST K E; PAN E D-R
TIRE TREAD
Page 23 of 23
TRADEMARKS
TRADEMARK REGISTRATION NUMBER REGISTRATION DATE GOODS OR SERVICES
- -------------------------------------------- ------------------- ------------------ ------------------------------------------
MATERIAL U.S. TRADEMARKS
ASSURANCE 2890408 September 28, 2004 Tires
EAGLE 679617 June 2, 1959 Tires
FORTERA 2586420 June 25, 2002 Tires
GEMINI 2574113 May 28, 2002 Retail Tire Store Services and Automotive
Repair Services
GOODYEAR 873220 July 15, 1969 Automotive Repair Services
GOODYEAR (stylized) 504296 November 30, 1948 Pneumatic Tires
GOODYEAR & Winged Foot Design 883095 December 23, 1969 Automotive Repair Services
GOODYEAR & Winged Foot Design 909784 March 9, 1971 Distributorship Services and Retail Store
Services in the Field of Automobile
Supplies
GOODYEAR & Winged Foot Design 507923 March 22, 1949 Tires and Inner Tubes Therefor; Hose and
Belting Composed Wholly or Principally of
Rubber; and Rubber Packing for Machinery
GOODYEAR & Winged Foot Design 1167180 September 1, 1981 Rubber Treads for Retreading Tires
GOODYEAR & Winged Foot Design 1202797 July 27, 1982 Clothing, namely, Jackets, Caps and Hats,
T-Shirts, Sweatshirts, Knit Shirts,
Athletic Suits and Shorts, Uniforms and
Sweaters
GOODYEAR & Winged Foot Design 1294932 September 11, 1984 Credit Card Services
GOODYEAR & Winged Foot Design 56752 October 16, 1906 Rubber Tires
GOODYEAR & Winged Foot Design & Blimp Design 1202796 July 27, 1982 Clothing, namely Caps, T-Shirts,
Sweatshirts and Jackets
GOODYEAR & Winged Foot Design in Rectangular
Design, w/claim to colors Blue & Gold 2149230 April 7, 1998 Retail Tire Store Services and Automotive
Repair Services
GOODYEAR & Winged Foot Design in Rectangular
Design, w/claim to colors Blue & Gold 2149231 April 7, 1998 Tires
GOODYEAR & Winged Foot Design Tire Center 933686 May 9, 1972 Retail Stores Services in the Field of
Automobile Supplies
JUST TIRES & Design 1991629 August 6, 1996 Automotive Repair Services and Retail Tire
Store Services
KELLY 1120958 June 26, 1979 Tires
KELLY-SPRINGFIELD 920205 September 14, 1971 Tires
UNISTEEL 649325 July 30, 1957 Tires
WRANGLER 811711 July 26, 1966 Tires
MATERIAL U.S. COPYRIGHTS
None.
MATERIAL CANADIAN TRADEMARKS
OWNED BY THE GOODYEAR TIRE & RUBBER COMPANY
ASSURANCE TMA-617222 August 20, 2004 Tires
EAGLE TMA-165505 October 3, 1969 Tires for vehicles of all types
FORTERA TMA-572377 December 16, 2002 Tires
Page 1 of 2
TRADEMARKS
TRADEMARK REGISTRATION NUMBER REGISTRATION DATE GOODS OR SERVICES
- -------------------------------------------- ------------------- ------------------ ------------------------------------------
KELLY TMA-333062 October 16, 1987 Tires
KELLY-SPRINGFIELD TMA-184607 July 28, 1972 Tires, Inner Tubes and Tread Rubber
UNISTEEL TMA-111430 September 5, 1958 Tires
WRANGLER TMA-152964 September 8, 1967 Tires
OWNED BY GOODYEAR CANADA INC.
GOODYEAR TMDA-023543 May 11, 1918 Pneumatic and solid tires, pneumatic
tubes, tire accessories, hose, belting,
packing, tubing, molded goods, cements,
leather substitutes, rubber or
composition heels or soles
GOODYEAR TMA-196320 December 21, 1973 Automotive repair service
GOODYEAR & Design TMDA-027267 September 30, 1920 Rubber and balata goods, manufactured
goods containing other materials used to
effect the adhesion or moisture proofing
of fabrics, such as pneumatic and solid
tires, pneumatic tubes, tire accessories,
hose, belting, packing, tubing, moulded
goods, cement or leather substitutes
GOODYEAR & Winged Foot Design TMA-331529 September 4, 1987 Operation of a business dealing in retail
services relating to the sale of tires and
automotive accessories and the servicing
and repair of motor vehicles
GOODYEAR & Design TMA-395503 March 13, 1992 Clothing; namely, jackets, sweat pants,
shirts, suspenders and wrist bands
GOODYEAR [and Winged Foot Design] #1 in Tires TMA-507526 February 2, 1999 Tires
GOODYEAR TIRE CENTRE & Design TMA-204339 January 3, 1975 Distributorship services and retail store
services in the field of automobile
supplies, home appliances, sporting
goods, furniture, power and hand tools,
cooking utensil, dishware and glassware,
clothing, cosmetics, toys and electrical
appliances
Page 2 of 2
Schedule 4.01
to Amended and Restated
First Lien Credit Agreement
Post-Restatement Date Delivery Requirements
1. With respect to the following Subsidiaries, the Borrower
(a) will use commercially reasonable efforts to (i) execute and deliver
new Foreign Pledge Agreements or, if satisfactory to foreign
counsel, amendments, restatements, reaffirmations or notifications
of existing Foreign Pledge Agreements (each, an "Ancillary Foreign
Pledge Document"), in each case in a form satisfactory to foreign
counsel and (ii) perfect pledges of 65% of the Equity Interests to
secure the Obligations as soon as practicably possible; and
(b) in any event shall (i) execute and deliver such new Foreign Pledge
Agreements or such Ancillary Foreign Pledge Documents within 45 days
following the Restatement Date, and (ii) perfect such Equity
Interests within 120 days following the Restatement Date; provided,
however, that in the event that the Borrower fails to satisfy such
obligations within such time limits and such failure is attributable
to events, conditions or circumstances that are outside of the
Borrower's reasonable control, then such periods shall be extended
(without further action by any party) for an amount of time that is
reasonable under the circumstances, subject to paragraph 5 below:
Corporacion Industrial Mercurio, S.A. de C.V. (Mexico)
Compania Goodyear del Peru S.A.
Goodyear Orient Company (Private) Limited (Singapore)
Goodyear Engineered Products Canada Inc.
2. With respect to the following Subsidiary, the Borrower
(a) will use commercially reasonable efforts to execute and deliver new
Foreign Pledge Agreements or, if satisfactory to foreign counsel,
Ancillary Foreign Pledge Documents, in each case in a form
satisfactory to foreign counsel, and perfect pledges of 65% of the
Equity Interests to secure the Obligations as soon as practicably
possible; and
(b) in any event shall execute and deliver such new Foreign Pledge
Agreements or such Ancillary Foreign Pledge Documents, in each case
in a form satisfactory to foreign counsel, within 60 days following
the Restatement Date, and perfect such Equity Interests within 120
days following the Restatement Date; provided, however, that in the
event that the Borrower fails to satisfy such obligations within
such time limits and such failure is attributable to events,
conditions or circumstances that are outside of the Borrower's
reasonable control, then such periods shall be extended (without
further action by any party) for an amount of time as is reasonable
under the circumstances, subject to paragraph 5 below:
Goodyear de Chile S.A.I.C.
3. With respect to the following Subsidiaries, the Borrower
(a) will use commercially reasonable efforts to execute and deliver new
Foreign Pledge Agreements or, if satisfactory to foreign counsel,
Ancillary Foreign Pledge Documents, in each case in a form
satisfactory to foreign counsel, and perfect pledges of 65% of the
Equity Interests to secure the Obligations as soon as practicably
possible; and
(b) and in any event shall execute and deliver such Foreign Pledge
Agreements or such Ancillary Foreign Pledge Documents within 45 days
following the Restatement Date, and the Borrower will provide a
report on the status of the perfection of the pledge under each such
Foreign Pledge Agreement or such Ancillary Foreign Pledge Document
not later than 75 days following the Restatement Date; provided,
however, that in the event that the Borrower fails to satisfy such
obligations within such time limits and such failure is attributable
to events, conditions or circumstances that are outside of the
Borrower's reasonable control, then such periods shall be extended
(without further action by any party) for an amount of time as is
reasonable under the circumstances, subject to paragraph 5 below:
Goodyear Malaysia Berhad
Goodyear (Thailand) Public Company Limited
Goodyear do Brasil Produtos de Borracha Ltda.
4. With respect to the following Subsidiaries, the Borrower will use
commercially reasonable efforts to procure a favorable written opinion by
local counsel on the continuing validity of the existing Foreign Pledge
Agreements, and in any event shall procure such written opinion within 120
days following the Restatement Date; provided, however, that in the event
that the Borrower fails to satisfy such obligations within such time
limits and such failure is attributable to events, conditions or
circumstances that are outside of the Borrower's reasonable control, then
such periods shall be extended (without further action by any party) for
an amount of time that is reasonable under the circumstances, subject to
paragraph 5 below:
Goodyear de Colombia S.A.
C.A. Goodyear de Venezuela
5. The foreign subsidiaries referred to in paragraphs 1, 2, 3 and 4 above are
collectively called the "Foreign Subsidiaries", and the Foreign
Subsidiaries other than Goodyear Malaysia Berhad, Goodyear (Thailand)
Public Company Limited and Goodyear do Brasil Produtos de Borracha Ltda.
are collectively called the "Designated Foreign Subsidiaries".
Notwithstanding the provisos in paragraphs 1, 2, 3 and 4 above, the
Borrower will (a) within 60 days following the Restatement Date execute
and deliver new Foreign Pledge Agreements or, if satisfactory to foreign
counsel, Ancillary Foreign Pledge Documents, in each case in a form
satisfactory to foreign counsel, covering 65% of the Equity Interests of
Foreign Subsidiaries representing at least
75% of the total EBITDA of all the Foreign Subsidiaries for the then most
recent 12 month period for which financial statements of the Foreign
Subsidiaries shall be available, (b) within 120 days following the
Restatement Date execute and deliver new Foreign Pledge Agreements or, if
satisfactory to foreign counsel, Ancillary Foreign Pledge Documents, in
each case in a form satisfactory to foreign counsel, and perfect pledges
of 65% of the Equity Interests of Designated Foreign Subsidiaries
representing at least 75% of the total EBITDA of all the Designated
Foreign Subsidiaries for the then most recent 12 month period for which
financial statements of the Foreign Subsidiaries shall be available, and
(c) within 180 days following the Restatement Date execute and deliver new
Foreign Pledge Agreements or, if satisfactory to foreign counsel,
Ancillary Foreign Pledge Documents, in each case in a form satisfactory to
foreign counsel, and perfect pledges of 65% of the Equity Interests of
Foreign Subsidiaries representing at least 75% of the total EBITDA of all
the Foreign Subsidiaries for the then most recent 12 month period for
which financial statements of the Foreign Subsidiaries shall be available.
For purposes of this paragraph 5, (y) the "EBITDA" of each Foreign
Subsidiary for the period of calculation shall equal (i) the segment
operating income of such Foreign Subsidiary for such period, as determined
for purposes of presenting in the audited financial statements of the
Borrower and its Consolidated Subsidiaries the business segment operating
income of the business segment of which such Foreign Subsidiary is a part,
plus (ii) without duplication, all amounts attributable to depreciation
and amortization of such Foreign Subsidiary for such period to the extent
such depreciation and amortization was deducted in the determination of
segment operating income of such Foreign Subsidiary, and (z) the EBITDA of
each Foreign Subsidiary in respect of which the Borrower shall have
procured the legal opinion required pursuant to paragraph 4 above shall be
included in determining the Borrower's compliance with each of clauses
(a), (b) and (c) of this paragraph 5 as if the Borrower had executed and
delivered a new Foreign Pledge Agreement satisfactory to foreign counsel
with respect to such Foreign Subsidiary and perfected pledges of 65% of
the Equity Interests of such Foreign Subsidiary.
5. The obligations of the Borrower under the preceding paragraphs are subject
to the reasonable cooperation of the Collateral Agent and its US counsel.
Any reference herein to "65% of the Equity Interests" of a Person shall mean the
lesser of 65% of the Equity Interests of such Person or all Equity Interests of
such Person held by the Borrower.
Schedule 6.06
to Amended and Restated
First Lien Credit Agreement
Existing Liens
1. Liens evidenced by the UCC financing statements set forth in Annex A hereto.
2. Liens evidenced by the PPSA financing statements set forth in Annex B hereto.
3. Liens encumbering the property of certain Subsidiaries of the Borrower set
forth in Annex C hereto.
4. Liens set forth in Annex D hereto.
5. Liens encumbering the following bank accounts of the Borrower or a
Subsidiary, as the case may be:
(a) SalomonSmithBarney Account Number 6193212013164 of The Goodyear Tire &
Rubber Company, pledged as security to the Remediation Trust Fund as Secured
Party in connection with satisfying certain state or federal financial assurance
requirements.
(b) SalomonSmithBarney Account Number 6193214514164 of The Goodyear Tire &
Rubber Company, pledged as security to the Ohio Environmental Protection Agency
as Secured Party in connection with satisfying certain state financial assurance
requirements.
6. Any Liens on any property or asset of the Borrower or any Subsidiary existing
on the date hereof that are not in the aggregate material to the business of the
Borrower and the Subsidiaries.
Annex A
to Schedule 6.06
BELT CONCEPTS OF AMERICA, INC.
CSC Search through 3/30/07
Delaware
Filing Date File Number Type of Filing Secured Party Description of Collateral
- ----------- ------------- -------------- ------------------------------------ ------------------------------------
6/10/2002 21681281 UCC1 Tennant Financial Services Equipment under lease
4/03/2003 30877798 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
3/15/2004 40717753 UCC1 Wilmington Trust Company All assets of Debtor
8/18/2004 42336784 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
4/12/2005 51117416 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
4/13/2005 51135202 UCC1 Deutsche Bank Trust Company Americas Accounts, Inventory, Equipment, etc.
4/14/2005 51150805 UCC1 Wilmington Trust Company All assets of Debtor
COSMOFLEX, INC.
CSC Search through 3/30/07
Delaware
Filing Date File Number Type of Filing Secured Party Description of Collateral
- ----------- ------------- -------------- ------------------------------------ ------------------------------------
4/03/2003 30877871 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
3/15/2004 40717779 UCC1 Wilmington Trust Company All assets of Debtor
8/18/2004 42336867 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
4/12/2005 51117531 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
4/13/2005 51135285 UCC1 Deutsche Bank Trust Company Americas Accounts, Inventory, Equipment, etc.
4/14/2005 51150847 UCC1 Wilmington Trust Company All assets of Debtor
DAPPER TIRE CO., INC.
CSC Search through 3/30/07
California
Filing Date File Number Type of Filing Secured Party Description of Collateral
- ----------- ------------- -------------- ------------------------------------ ------------------------------------
3/04/2003 20030640359 UCC1 GELCO Corporation DBA GE Capital Equipment under lease
Fleet Services
4/03/2003 200309760535 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
5/19/2003 200313960875 UCC1 GELCO Corporation DBA GE Capital Equipment under lease
Fleet Services
7/25/2003 200321060098 UCC1 GELCO Corporation DBA GE Capital Equipment under lease
Fleet Services
3/15/2004 407860422 UCC1 Wilmington Trust Company All assets of Debtor
8/18/2004 41002094313 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
4/12/2005 057022709850 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
4/13/2005 057022881720 UCC1 Deutsche Bank Trust Company Americas Accounts, Inventory, Equipment, etc.
4/14/2005 057023025165 UCC1 Wilmington Trust Company All assets of Debtor
4/05/2006 067065125557 UCC1 CitiCorp Leasing, Inc. One Caterpillar Model #C3000LP
DIVESTED COMPANIES HOLDING COMPANY
CSC Search through 3/30/07
Delaware
Filing Date File Number Type of Filing Secured Party Description of Collateral
- ----------- ------------- -------------- ------------------------------------ ------------------------------------
4/03/2003 30877988 UCC1 JPMorgan Chase Bank Account, Inventory, Equipment, etc.
3/15/2004 40717795 UCC1 Wilmington Trust Company All assets of Debtor
8/18/2004 42336693 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
4/12/2005 51117705 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
4/13/2005 51135343 UCC1 Deutsche Bank Trust Company Americas Accounts, Inventory, Equipment, etc.
4/14/2005 51150896 UCC1 Wilmington Trust Company All assets of Debtor
DIVESTED LITCHFIELD PARK PROPERTIES, INC.
CSC Search through 3/30/07
Arizona
Filing Date File Number Type of Filing Secured Party Description of Collateral
- ----------- ------------- -------------- ------------------------------------ ------------------------------------
4/04/2003 200312557243 UCC1 JPMorgan Chase Bank Account, Inventory, Equipment, etc.
3/15/2004 200413049402 UCC1 Wilmington Trust Company All assets of Debtor
8/19/2004 200413301103 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
GOODYEAR ENGINEERED PRODUCTS THAILAND INC.
CSC Search through 3/30/07
Delaware
Filing Date File Number Type of Filing Secured Party Description of Collateral
- ----------- ------------- -------------- ------------------------------------ ------------------------------------
8/29/2006 63011269 UCC1 JPMorgan Chase Bank Account, Inventory, Equipment, etc.
8/29/2006 63011327 UCC1 Deutsche Bank Trust Company Americas Account, Inventory, Equipment, etc.
GOODYEAR FARMS, INC.
CSC Search through 3/30/07
Arizona
Filing Date File Number Type of Filing Secured Party Description of Collateral
- ----------- ------------- -------------- ------------------------------------ ------------------------------------
4/03/2003 200312557254 UCC1 JPMorgan Chase Bank Account, Inventory, Equipment, etc.
3/15/2004 200413051848 UCC1 Wilmington Trust Company All assets of Debtor
8/19/2004 200413301090 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
GOODYEAR DUNLOP TIRES NORTH AMERICA, LTD.
CSC Search through 3/30/07
Ohio
Filing Date File Number Type of Filing Secured Party Description of Collateral
- ----------- ------------- -------------- ------------------------------------ ------------------------------------
2/06/2003 OH00059778622 UCC1 New York Job Development Authority Equipment under lease
GOODYEAR INTERNATIONAL CORPORATION
CSC Search through 3/30/07
Delaware
Filing Date File Number Type of Filing Secured Party Description of Collateral
- ----------- ------------- -------------- ------------------------------------ ------------------------------------
4/03/2003 30878051 UCC1 JPMorgan Chase Bank Account, Inventory, Equipment, etc.
3/15/2004 40717803 UCC1 Wilmington Trust Company All assets of Debtor
8/18/2004 42336602 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
4/12/2005 51117796 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
4/13/2005 51135426 UCC1 Deutsche Bank Trust Company Americas Accounts, Inventory, Equipment, etc.
4/14/2005 51150920 UCC1 Wilmington Trust Company All assets of Debtor
THE KELLY-SPRINGFIELD TIRE CORPORATION
CSC Search through 3/30/07
Delaware
Filing Date File Number Type of Filing Secured Party Description of Collateral
- ----------- ------------- -------------- ------------------------------------ ------------------------------------
4/03/2003 30878143 UCC1 JPMorgan Chase Bank Account, Inventory, Equipment, etc.
3/15/2004 40717837 UCC1 Wilmington Trust Company All assets of Debtor
8/18/2004 42336529 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
4/12/2005 51117952 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
4/13/2005 51135475 UCC1 Deutsche Bank Trust Company Americas Accounts, Inventory, Equipment, etc.
4/14/2005 51150995 UCC1 Wilmington Trust Company All assets of Debtor
1/06/2006 60066654 AMEND Wilmington Trust Company All assets of Debtor
1/06/2006 60066696 AMEND JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
1/06/2006 60066688 AMEND JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
1/06/2006 60066670 AMEND Deutsche Bank Trust Company Americas Accounts, Inventory, Equipment, etc.
1/06/2006 60066662 AMEND Wilmington Trust Company All assets of Debtor
1/18/2006 60196642 AMEND JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
UTICA CONVERTERS, INC.
CSC Search through 3/30/07
Delaware
Filing Date File Number Type of Filing Secured Party Description of Collateral
- ----------- ------------- -------------- ------------------------------------ ------------------------------------
12/23/2003 33388231 UCC1 Alter Moneta Corporation Equipment under lease
3/01/2004 40582181 UCC1 Alter Moneta Corporation Equipment under lease
Ohio
3/28/2007 20070870580 AMEND Zions Credit Corporation Equipment under lease
3/28/2007 20070870582 AMEND Zions Credit Corporation Equipment under lease
WINGFOOT COMMERCIAL TIRE SYSTEMS, LLC
CSC Search through 3/30/07
Ohio
Filing Date File Number Type of Filing Secured Party Description of Collateral
- ----------- ------------- -------------- ------------------------------------ ------------------------------------
2/27/2002 OH00045734149 UCC1 Lease Corporation of America Equipment under lease
12/05/2002 OH00057430432 UCC1 TCF Leasing, Inc. Equipment under lease
4/10/2003 OH00062208973 UCC1 Kyocera Mita America, Inc. Equipment under lease
6/20/2003 OH00065323091 UCC1 Lease Corporation of America Equipment under lease
7/22/2003 20032040242 AMEND Lease Corporation of America Equipment under lease
12/10/2003 OH00071698012 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
3/15/2004 OH00074875899 UCC1 Wilmington Trust Company All assets of Debtor
8/19/2004 OH00080690926 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
4/13/2005 OH00088297829 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
4/14/2005 OH00088359477 UCC1 Deutsche Bank Trust Company Americas Accounts, Inventory, Equipment, etc.
4/15/2005 OH00088389399 UCC1 Wilmington Trust Company All assets of Debtor
7/31/2006 OH00104949186 UCC1 NMHG Financial Services, Inc. All equipment etc. of the Debtor
3/09/2007 OH0012694034 UCC1 Main Street Bank Equipment and property
WINGFOOT VENTURES EIGHT, INC.
CSC Search through 3/30/07
Delaware
Filing Date File Number Type of Filing Secured Party Description of Collateral
- ----------- ------------- -------------- ------------------------------------ ------------------------------------
4/03/2003 30878077 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
3/15/2004 40717902 UCC1 Wilmington Trust Company All assets of Debtor
8/18/2004 42336404 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
4/12/2005 51118067 UCC1 JPMorgan Chase Bank Accounts, Inventory, Equipment, etc.
4/13/2005 51135509 UCC1 Deutsche Bank Trust Company Americas Accounts, Inventory, Equipment, etc.
4/14/2005 51151027 UCC1 Wilmington Trust Company All assets of Debtor
THE GOODYEAR TIRE & RUBBER COMPANY
CSC Search through 3/30/07
Ohio
TYPE OF
FILING DATE FILE NUMBER FILING SECURED PARTY DESCRIPTION OF COLLATERAL
- -------------- -------------- ------- ----------------------------------------------------------- ------------------------------
3/12/1991 AE0055607 UCC1 Meridian Leasing Corporation Equipment under lease
12/3/1991 1045786 ASGN The CIT Group/Equipment Financing, Inc. Equipment under lease
11/2/1995 11029504002 CONT The CIT Group/Equipment Financing, Inc. Equipment under lease
2/28/1996 2299600124 CONT The CIT Group/Equipment Financing, Inc. Equipment under lease
AK67354
12/23/1993 (12239321001) UCC1 Hewlett-Packard Company Equipment under lease
9/8/1998 19982600134 CONT Hewlett-Packard Company Equipment under lease
6/3/1994 AL04804 UCC1 National City Bank No description of collateral
5/25/1999 19991760003 CONT National City Bank No description of collateral
11/17/1998 AP0105531 UCC1 Hinsbrook Bank & Trust Equipment under lease
11/17/1998 AP0105538 UCC1 Hinsbrook Bank & Trust Equipment under lease
11/17/1998 AP0105533 UCC1 Hinsbrook Bank & Trust Equipment under lease
11/17/1998 AP0105535 UCC1 Hinsbrook Bank & Trust Equipment under lease
11/18/1998 AP0105035 UCC1 AT&T Systems Leasing Corporation Equipment under lease
1/4/1999 19990060007 ASGN First Bank of Highland Park Equipment under lease
11/18/1998 AP0105872 UCC1 AT&T Systems Leasing Corporation Equipment under lease
11/23/1998 AP0101351 UCC1 TechTeam Capital Group Inc Equipment under lease
12/2/1998 AP0103063 UCC1 AT&T Systems Leasing Corporation Equipment under lease
12/11/1998 AP0105094 UCC1 Sequel Capital Corporation Equipment under lease
12/11/1998 AP0105095 UCC1 Sequel Capital Corporation Equipment under lease
12/12/1998 AP0104871 UCC1 TechTeam Capital Group Inc Equipment under lease
10/5/1999 19992460125 ASGN Sentry Financial Corporation Equipment under lease
12/14/1998 AP0106957 UCC1 Meridian Leasing Corporation Equipment under lease
2/9/1999 19990490335 ASGN Park National Bank & Trust of Chicago Equipment under lease
12/17/1998 AP0108198 UCC1 Ameritech Credit Corporation Equipment under lease
12/22/1998 AP011067 UCC1 Information Leasing Corporation Equipment under lease
1/12/1999 AP0114932 UCC1 TechTeam Capital Group Inc Equipment under lease
1/29/1999 AP0119114 UCC1 Meridian Leasing Corporation Equipment under lease
2/8/1999 AP0121823 UCC1 TechTeam Capital Group Inc Equipment under lease
10/5/1999 19992460127 ASGN Sentry Financial Corporation Equipment under lease
2/11/1999 AP0120662 UCC1 Barrington Bank & Trust Company, N.A. Equipment under lease
2/22/1999 AP0125837 UCC1 TechTeam Capital Group Inc Equipment under lease
2/24/1999 AP0126266 UCC1 Hewlett-Packard Company Equipment under lease
3/2/1999 AP0128759 UCC1 Leasing Solutions, Inc. Equipment under lease
5/27/1999 19991520006 ASGN First Union National Bank Equipment under lease
3/15/1999 AP0127462 UCC1 Barrington Bank & Trust Company, N.A. Equipment under lease
3/16/1999 AP0133146 UCC1 El Camino Resources, Ltd. Equipment under lease
3/18/1999 AP0133341 UCC1 TechTeam Capital Group Inc Equipment under lease
3/19/1999 AP0133756 UCC1 Meridian Leasing Corporation Equipment under lease
3/19/1999 AP0133757 UCC1 Meridian Leasing Corporation Equipment under lease
3/22/1999 AP0129008 UCC1 The CIT Group/Equipment Financing, Inc. Equipment under lease
12/31/2003 20033650146 CONT The CIT Group / Equipment Financing Inc. Equipment under lease
4/14/1999 AP0133853 UCC1 Barrington Bank & Trust Company, N.A. Equipment under lease
4/14/1999 AP0133854 UCC1 Barrington Bank & Trust Company, N.A. Equipment under lease
TYPE OF
FILING DATE FILE NUMBER FILING SECURED PARTY DESCRIPTION OF COLLATERAL
- -------------- -------------- ------- ----------------------------------------------------------- ------------------------------
4/22/1999 AP0136117 UCC1 The CIT Group/Equipment Financing, Inc. Equipment under lease
4/23/1999 AP0136581 UCC1 Hewlett-Packard Company Equipment under lease
5/6/1999 AP0141302 UCC1 Fleet Business Credit Corporation Equipment under lease
5/10/1999 AP0142121 UCC1 Barrington Bank & Trust Company, N.A. Equipment under lease
5/10/1999 AP0142122 UCC1 Barrington Bank & Trust Company, N.A. Equipment under lease
5/10/1999 AP0147639 UCC1 International Bank of Chicago Equipment under lease
5/10/1999 AP0147641 UCC1 International Bank of Chicago Equipment under lease
5/17/1999 AP0150824 UCC1 TechTeam Capital Group Inc Equipment under lease
6/4/1999 AP0148438 UCC1 Newcourt Technologies Corporation Equipment under lease
6/4/1999 AP0155182 UCC1 TechTeam Capital Group Inc Equipment under lease
6/15/1999 AP0152016 UCC1 Information Leasing Corporation Equipment under lease
6/22/1999 AP0159696 UCC1 Meridian Leasing Corporation Equipment under lease
7/1/1999 AP0162521 UCC1 Synleaseco Delaware Business Trust Land and Fixtures
7/6/1999 AP0186816 UCC1 National City Bank Equipment under lease
7/27/1999 AP0164521 UCC1 Barrington Bank & Trust Company, N.A. Equipment under lease
7/27/1999 AP0164522 UCC1 Barrington Bank & Trust Company, N.A. Equipment under lease
7/30/1999 AP0165330 UCC1 Ameritech Credit Corporation Equipment under lease
8/9/1999 AP0174222 UCC1 El Camino Resources, Ltd. Equipment under lease
8/13/1999 AP0168632 UCC1 Barrington Bank & Trust Company, N.A. Equipment under lease
8/13/1999 AP0168634 UCC1 Barrington Bank & Trust Company, N.A. Equipment under lease
8/20/1999 AP0177166 UCC1 Barrington Bank & Trust Company, N.A. Equipment under lease
8/31/1999 AP0178489 UCC1 TechTeam Capital Group LLC Equipment under lease
9/2/1999 AP0185720 UCC1 Meridian Leasing Corporation Equipment under lease
9/20/1999 AP0182112 UCC1 Pitney Bowes Credit Corporation Equipment under lease
9/20/1999 AP0182422 UCC1 Pitney Bowes Credit Corporation Equipment under lease
2/28/2000 20000820053 AMEND Pitney Bowes Credit Corporation Equipment under lease
4/21/2000 20001150097 ASGN General Electric Capital Business Asset Equipment under lease
Funding Corporation
9/20/1999 AP0182423 UCC1 Pitney Bowes Credit Corporation Equipment under lease
9/20/1999 AP0182424 UCC1 Pitney Bowes Credit Corporation Equipment under lease
2/29/2000 20000820099 AMEND Pitney Bowes Credit Corporation Equipment under lease
4/21/2000 20001150096 ASGN General Electric Capital Business Equipment under lease
Asset Funding Corporation
9/20/1999 AP0182425 UCC1 Pitney Bowes Credit Corporation Equipment under lease
9/20/1999 AP0182426 UCC1 Pitney Bowes Credit Corporation Equipment under lease
2/29/2000 20000820100 AMEND Pitney Bowes Credit Corporation Equipment under lease
6/9/2000 20001650115 AMEND Pitney Bowes Credit Corporation Equipment under lease
10/1/1999 AP0183631 UCC1 Michigan Heritage Bank Equipment under lease
10/7/1999 AP0186582 UCC1 GTE Leasing Corporation Equipment under lease
10/8/1999 AP0187849 UCC1 Norwest Financial Leasing Inc. Equipment under lease
10/8/1999 AP0187850 UCC1 Norwest Financial Leasing Inc. Equipment under lease
10/12/1999 AP0185402 UCC1 Ameritech Credit Corporation Equipment under lease
10/13/1999 AP0185810 UCC1 Alexander Capital Corporation Equipment under lease
11/3/1999 AP0193228 UCC1 National City Leasing Corporation Equipment under lease
2/14/2002 20020460634 AMEND National City Leasing Corporation Equipment under lease
11/15/1999 AP0197603 UCC1 Pitney Bowes Credit Corporation Equipment under lease
4/21/2000 20001150095 ASGN General Electric Capital Business Equipment under lease
Asset Funding Corporation
12/13/1999 AP0202305 UCC1 Fleet Business Credit Corporation Equipment under lease
12/23/1999 AP0204977 UCC1 TechTeam Capital Group LLC Equipment under lease
12/23/1999 AP0204978 UCC1 TechTeam Capital Group LLC Equipment under lease
12/23/1999 AP0204979 UCC1 TechTeam Capital Group LLC Equipment under lease
1/25/2000 AP0208947 UCC1 Synleaseco Delaware Business Trust Land and Fixtures
09/12/03 20032590192 AMEND Synleaseco Delaware Business Trust Land and Fixtures
TYPE OF
FILING DATE FILE NUMBER FILING SECURED PARTY DESCRIPTION OF COLLATERAL
- -------------- -------------- ------- ----------------------------------------------------------- ------------------------------
2/28/2000 AP0222729 UCC1 Meridian Leasing Corporation Equipment under lease
3/6/2000 AP0237205 UCC1 El Camino Resources, Ltd. Equipment under lease
3/7/2000 AP0219120 UCC1 Park National Bank & Trust of Chicago Equipment under lease
3/7/2000 AP0219121 UCC1 Park National Bank & Trust of Chicago Equipment under lease
3/7/2000 AP0219122 UCC1 Park National Bank & Trust of Chicago Equipment under lease
3/9/2000 AP0219845 UCC1 The CIT Group/Equipment Financing, Inc. Equipment under lease
4/6/2000 AP0230439 UCC1 Fleet Business Credit Corporation Equipment under lease
4/14/2000 AP0233065 UCC1 Meridian Leasing Corporation Equipment under lease
6/13/2000 20001660123 ASGN Manufacturers Bank Equipment under lease
4/17/2000 AP0233365 UCC1 El Camino Resources, Ltd. Equipment under lease
4/18/2000 AP0233976 UCC1 Fleet Business Credit Corporation Equipment under lease
5/24/2000 AP0242377 UCC1 Citicorp Del Lease, Inc. Equipment under lease
5/31/2000 AP0265076 UCC1 Newcourt Technologies Corporation Equipment under lease
6/5/2000 AP0245998 UCC1 Meridian Leasing Corporation Equipment under lease
6/5/2000 AP0246377 UCC1 TechTeam Capital Group LLC Equipment under lease
8/8/2000 20002240006 ASGN Manufacturers Bank Equipment under lease
6/19/2000 AP0248542 UCC1 Newcourt Technologies Corporation Equipment under lease
6/23/2000 AP0250668 UCC1 Information Leasing Corporation Equipment under lease
6/28/2000 AP0251758 UCC1 Meridian Leasing Corporation Equipment under lease
9/13/2000 20002930216 ASGN Manufacturers Bank Equipment under lease
7/18/2000 AP0255194 UCC1 Manufacturers Bank Equipment under lease
7/26/2000 AP0267596 UCC1 Park National Bank & Trust of Chicago Equipment under lease
7/26/2000 AP0267597 UCC1 Park National Bank & Trust of Chicago Equipment under lease
7/31/2000 AP0260813 UCC1 Manufacturers Bank Equipment under lease
7/31/2000 AP0261210 UCC1 El Camino Resources, Ltd. Equipment under lease
7/31/2000 AP0260815 UCC1 Manufacturers Bank Equipment under lease
8/3/2000 AP0259222 UCC1 Meridian Leasing Corporation Equipment under lease
8/10/2000 AP0261701 UCC1 Manufacturers Bank Equipment under lease
8/22/2000 AP0265235 UCC1 Meridian Leasing Corporation Equipment under lease
10/27/2000 20003460460 AMEND Meridian Leasing Corporation Equipment under lease
12/4/2000 20003570068 ASGN Manufacturers Bank Equipment under lease
9/18/2000 AP280557 UCC1 StorageTek Financial Services Corporation Equipment under lease
9/18/2000 AP285793 UCC1 International Bank of Chicago Equipment under lease
9/18/2000 AP285794 UCC1 International Bank of Chicago Equipment under lease
9/20/2000 AP286264 UCC1 El Camino Resources, Ltd. Equipment under lease
10/6/2000 AP291661 UCC1 Meridian Leasing Corporation Equipment under lease
10/18/2000 AP286900 UCC1 Citicorp Del Lease, Inc. Equipment under lease
10/20/2000 AP288325 UCC1 Manufacturers Bank Equipment under lease
10/24/2000 AP288707 UCC1 Park National Bank & Trust of Chicago Equipment under lease
11/2/2000 AP290058 UCC1 Information Leasing Corporation Equipment under lease
11/2/2000 AP290059 UCC1 Information Leasing Corporation Equipment under lease
11/2/2000 AP290062 UCC1 Information Leasing Corporation Equipment under lease
11/2/2000 AP290063 UCC1 Information Leasing Corporation Equipment under lease
11/6/2000 AP298467 UCC1 Pitney Bowes Credit Corporation Equipment under lease
11/13/2000 AP300330 UCC1 General Electric Capital Business Equipment under lease
Asset Funding Corporation
12/22/2000 AP302820 UCC1 Park National Bank & Trust of Chicago Equipment under lease
12/27/2000 AP304319 UCC1 Programlease.com Software
1/3/2001 AP309100 UCC1 Fleet Business Credit Corporation Equipment under lease
1/3/2001 AP309101 UCC1 Fleet Business Credit Corporation Equipment under lease
1/8/2001 AP306058 UCC1 Information Leasing Corporation Equipment under lease
1/10/2001 AP312517 UCC1 Park National Bank & Trust of Chicago Equipment under lease
2/5/2001 AP311871 UCC1 Manufacturers Bank Equipment under lease
TYPE OF
FILING DATE FILE NUMBER FILING SECURED PARTY DESCRIPTION OF COLLATERAL
- -------------- -------------- ------- ----------------------------------------------------------- ------------------------------
2/5/2001 AP311888 UCC1 Albany Bank & Trust Company N.A. Equipment under lease
2/8/2001 AP312361 UCC1 IBM Credit Corporation Equipment under lease
3/8/2001 AP317510 UCC1 Information Leasing Corporation Equipment under lease
3/19/2001 AP321699 UCC1 Hewlett-Packard Company Equipment under lease
3/23/2001 AP322222 UCC1 IBM Credit Corporation Equipment under lease
3/23/2001 AP322495 UCC1 O/E Systems, Inc.dba M/C Leasing Equipment under lease
3/23/2001 AP322511 UCC1 Park National Bank & Trust of Chicago Equipment under lease
3/26/2001 AP333491 UCC1 Pitney Bowes Credit Corporation Equipment under lease
4/5/2001 AP337632 UCC1 ICX Corporation Equipment under lease
4/5/2001 AP337635 UCC1 ICX Corporation Equipment under lease
4/12/2001 AP337097 UCC1 Mellon Leasing Equipment under lease
4/17/2001 AP328497 UCC1 Manufacturers Bank Equipment under lease
4/30/2001 AP331651 UCC1 Manufacturers Bank Equipment under lease
4/30/2001 AP349317 UCC1 Pitney Bowes Credit Corporation Equipment under lease
8/6/2001 20012200508 ASGN The Goodyear Tire & Rubber Company Equipment under lease
5/17/2001 AP346928 UCC1 Meridian Leasing Corporation Equipment under lease
5/17/2001 AP346932 UCC1 Meridian Leasing Corporation Equipment under lease
7/16/2001 OH00035988144 UCC1 Manufacturers Bank Equipment under lease
7/16/2001 OH00035988588 UCC1 Meridian Leasing Corporation Equipment under lease
7/30/2001 OH00036585636 UCC1 Meridian Leasing Corporation Equipment under lease
8/8/2001 OH00037016298 UCC1 Meridian Leasing Corporation Equipment under lease
8/23/2001 OH00037626605 UCC1 Meridian Leasing Corporation Equipment under lease
9/17/2001 20012610516 ASGN Manufacturers Bank Equipment under lease
10/9/2001 20012840574 ASGN Manufacturers Bank Equipment under lease
8/24/2001 OH00037728631 UCC1 Information Leasing Corporation Equipment under lease
8/24/2001 OH00037773292 UCC1 Park National Bank & Trust of Chicago Equipment under lease
8/27/2001 OH00037865984 UCC1 Alexander Capital Corporation Equipment under lease
10/5/2001 20012820042 ASGN Manufacturers Bank Equipment under lease
8/31/2001 OH00038051526 UCC1 Manufacturers Bank Equipment under lease
8/31/2001 OH00038052205 UCC1 Manufacturers Bank Equipment under lease
9/26/2001 20012710206 ASGN Manufacturers Bank Equipment under lease
9/10/2001 OH00038406347 UCC1 Manufacturers Bank Equipment under lease
9/10/2001 OH00038406458 UCC1 Manufacturers Bank Equipment under lease
9/10/2001 OH00038406569 UCC1 Manufacturers Bank Equipment under lease
9/10/2001 OH00038431431 UCC1 O/E Systems, Inc. Equipment under lease
3/12/2002 20020730170 ASGN Park National Bank & Trust of Chicago Equipment under lease
5/7/2002 20021290152 ASGN General Electric Capital Corporation Equipment under lease
5/8/2002 20021300246 AMEND General Electric Capital Corporation Equipment under lease
5/13/2002 20021340846 AMEND General Electric Capital Corporation Equipment under lease
5/21/2002 20021430494 ASGN General Electric Capital Corporation Equipment under lease
5/21/2002 20021430494 AMEND General Electric Capital Corporation Equipment under lease
7/23/2002 20022050928 ASGN General Electric Capital Corporation Equipment under lease
8/7/2002 20022210024 ASGN General Electric Capital Corporation Equipment under lease
8/20/2002 20022340394 ASGN General Electric Capital Corporation Equipment under lease
10/8/2002 20022830134 ASGN General Electric Capital Corporation Equipment under lease
10/15/2002 20022890368 AMEND General Electric Capital Corporation Equipment under lease
10/15/2002 20022890368 ASGN General Electric Capital Corporation Equipment under lease
11/19/2002 20023250136 ASGN General Electric Capital Corporation Equipment under lease
11/19/2002 20023250252 ASGN General Electric Capital Corporation Equipment under lease
2/18/2003 20030510284 ASGN First Bank of Highland Park Equipment under lease
9/17/2001 OH00038629531 UCC1 Manufacturers Bank Equipment under lease
9/17/2001 OH00038630009 UCC1 Manufacturers Bank Equipment under lease
9/17/2001 OH00038630221 UCC1 Manufacturers Bank Equipment under lease
9/18/2001 OH00038742379 UCC1 ICX Corporation Equipment under lease
TYPE OF
FILING DATE FILE NUMBER FILING SECURED PARTY DESCRIPTION OF COLLATERAL
- -------------- -------------- ------- ----------------------------------------------------------- ------------------------------
9/19/2001 OH00038783547 UCC1 Relational Funding Corporation Equipment under lease
9/19/2001 OH00038783658 UCC1 Relational Funding Corporation Equipment under lease
9/26/2001 OH00039058501 UCC1 Information Leasing Corporation Equipment under lease
9/26/2001 OH00039105532 UCC1 Meridian Leasing Corporation Equipment under lease
9/28/2001 OH00039171894 UCC1 Park National Bank & Trust of Chicago Equipment under lease
10/3/2001 OH00039461475 UCC1 Key Equipment Finance, a Division of Equipment under lease
Key Corporate Capital, Inc.
2/28/2002 20020630002 AMEND Key Equipment Finance, a Division of Equipment under lease
Key Corporate Capital, Inc.
10/15/2001 OH00039886263 UCC1 Alexander Capital Corporation Equipment under lease
12/19/2001 20013380144 AMEND Manufacturers Bank Equipment under lease
10/23/2001 OH00040349884 UCC1 Hewlett-Packard Company Equipment under lease
10/24/2001 OH00040365979 UCC1 Park National Bank & Trust of Chicago Equipment under lease
10/26/2001 OH00040458673 UCC1 Park National Bank & Trust of Chicago Equipment under lease
11/6/2001 OH00040962672 UCC1 National City Leasing Corp. Equipment under lease
11/14/2001 OH00041356436 UCC1 Meridian Leasing Corporation Equipment under lease
11/14/2001 OH00041356981 UCC1 Meridian Leasing Corporation Equipment under lease
11/26/2001 OH00041763237 UCC1 National City Leasing Corp. Equipment under lease
11/28/2001 OH00041890024 UCC1 Hewlett-Packard Company Equipment under lease
11/30/2001 OH00041991937 UCC1 Goodyear Aircraft Trust 2001-1 Aircraft
12/3/2001 OH00042189826 UCC1 Harwick Standard Distributing Corporation Chemicals
1/9/2002 20020110032 AMEND Harwick Standard Distribution Corporation Equipment under lease
12/4/2001 OH00042166323 UCC1 Alexander Capital Corporation Equipment under lease
1/30/2002 20020310432 ASGN MB Financial Bank, N.A., F/K/A Manufactures Bank Equipment under lease
12/4/2001 OH00042166545 UCC1 Alexander Capital Corporation Equipment under lease
1/25/2002 20020290386 ASGN MB Financial Bank, N.A., F/K/A Manufactures Bank Equipment under lease
12/13/2001 OH00042660200 UCC1 Hewlett-Packard Company Equipment under lease
12/13/2001 OH00042662335 UCC1 Meridian Leasing Corporation Equipment under lease
12/13/2001 OH00042662446 UCC1 Meridian Leasing Corporation Equipment under lease
12/13/2001 OH00042662557 UCC1 Meridian Leasing Corporation Equipment under lease
12/26/2001 OH00043159793 UCC1 Relational Funding Corporation Equipment under lease
12/26/2001 OH00043159915 UCC1 Relational Funding Corporation Equipment under lease
12/31/2001 OH00043318105 UCC1 Alexander Capital Corporation Equipment under lease
1/31/2002 20020320616 ASGN MB Financial Bank, N.A. Equipment under lease
1/2/2002 OH00043437238 UCC1 NCR Corporation Equipment under lease
1/2/2002 OH00043440831 UCC1 CIT Communications Finance Corporation Equipment under lease
1/8/2002 OH00043698220 UCC1 Meridian Leasing Corporation Equipment
1/8/2002 OH00043698664 UCC1 Meridian Leasing Corporation Equipment under lease
2/25/2002 20020580140 ASGN MB Financial Bank, N.A. Equipment under lease
1/11/2002 OH00043853472 UCC1 Lasalle National Leasing Corporation Equipment under lease
2/11/2002 OH00045129126 UCC1 Hewlett-Packard Company Equipment under lease
2/12/2002 OH00045182774 UCC1 CIT Communications Finance Corporation Equipment under lease
2/25/2002 OH00045609821 UCC1 Information Leasing Corporation Equipment under lease
2/25/2002 OH00045645483 UCC1 Meridian Leasing Corporation Equipment under lease
3/1/2002 OH00045821992 UCC1 Hewlett-Packard Company Equipment under lease
3/5/2002 OH00045991860 UCC1 Alexander Capital Corporation Equipment under lease
3/5/2002 OH00046004153 UCC1 Alexander Capital Corporation Equipment under lease
4/9/2002 20021010062 ASGN MB Financial Bank, N.A. Equipment under lease
TYPE OF
FILING DATE FILE NUMBER FILING SECURED PARTY DESCRIPTION OF COLLATERAL
- -------------- -------------- ------- ----------------------------------------------------------- ------------------------------
3/7/2002 OH00046117980 UCC1 IBM Credit Corporation Equipment under lease
3/12/2002 20020710080 AMEND IBM Credit Corporation Equipment under lease
3/7/2002 OH00046132396 UCC1 Gatx Technology Services Corporation Equipment under lease
3/7/2002 OH00046132518 UCC1 Gatx Technology Services Corporation Equipment under lease
3/18/2002 OH00046594536 UCC1 Meridian Leasing Corporation Equipment
3/18/2002 OH00046608608 UCC1 ICX Corporation Equipment under lease
3/21/2002 OH00046764850 UCC1 Alexander Capital Corporation Equipment under lease
5/20/2002 20021420226 ASGN MB Financial Bank, N.A. Equipment under lease
3/22/2002 OH00046822137 UCC1 Hewlett-Packard Company Equipment under lease
4/15/2002 OH00047909768 UCC1 Meridian Leasing Corporation Equipment under lease
6/26/2002 20021790486 ASGN MB Financial Bank, N.A. Equipment under lease
6/26/2002 20021790488 AMEND The Goodyear Tire & Rubber Company Equipment under lease
4/18/2002 OH00048044886 UCC1 Lasalle National Leasing Corporation Equipment under lease
4/30/2002 OH00048606595 UCC1 CIT Communications Finance Corporation Equipment under lease
5/6/2002 OH00048882771 UCC1 IBM Credit Corporation Equipment under lease
5/6/2002 OH00048922383 UCC1 Alexander Capital Corporation Equipment under lease
5/22/2002 OH00049706518 UCC1 Alexander Capital Corporation Equipment under lease
5/29/2002 OH00049932072 UCC1 Lasalle National Leasing Corporation Equipment under lease
6/12/2002 OH00050482434 UCC1 Sentry Financial Corporation Equipment under lease
9/24/2002 20022690252 ASGN MB Financial Bank, N.A. Equipment under lease
6/12/2002 OH00050485026 UCC1 Sentry Financial Corporation Equipment under lease
9/24/2002 20022690266 ASGN MB Financial Bank, N.A. Equipment under lease
6/17/2002 OH00050697075 UCC1 Alexander Capital Corporation Equipment under lease
6/17/2002 OH00050713627 UCC1 IBM Credit Corporation Equipment under lease
6/18/2002 OH00050757043 UCC1 IBM Credit Corporation Equipment under lease
6/25/2002 OH00051043708 UCC1 Relational Funding Corporation Equipment under lease
12/6/2002 20023440222 ASGN First Bank of Highland Park Equipment under lease
6/25/2002 OH00051048192 UCC1 IBM Credit Corporation Equipment under lease
6/27/2002 OH00051190739 UCC1 IBM Credit Corporation Equipment under lease
7/1/2002 OH00051313145 UCC1 Lasalle National Leasing Corporation Equipment under lease
7/8/2002 OH00051611046 UCC1 ICX Corporation Equipment under lease
7/12/2002 OH00051757498 UCC1 Information Leasing Corporation Equipment under lease
7/24/2002 OH00052287159 UCC1 Hewlett-Packard Company Equipment under lease
7/24/2002 OH00052319774 UCC1 IBM Credit Corporation Equipment under lease
7/25/2002 OH00052334857 UCC1 CIT Communications Finance Corporation Equipment under lease
7/29/2002 OH00052476049 UCC1 Meridian Leasing Corporation Equipment under lease
8/1/2002 OH00052632192 UCC1 IBM Credit Corporation Equipment under lease
8/2/2002 OH00052683715 UCC1 IBM Credit Corporation Equipment under lease
8/5/2002 OH00052749523 UCC1 IBM Credit Corporation Equipment under lease
8/12/2002 OH00053015266 UCC1 Barrington Bank & Trust Company, N.A. Equipment under lease
8/12/2002 OH00053017280 UCC1 Lasalle National Leasing Corporation Equipment under lease
8/14/2002 OH00053168148 UCC1 Alexander Capital Corporation Equipment under lease
10/25/2002 20023020190 UCC3 MB Financial Bank, N.A. Equipment under lease
8/16/2002 OH00053238894 UCC1 Meridian Leasing Corporation Equipment under lease
9/9/2002 20022530096 ASGN MB Financial Bank, N.A. Equipment under lease
10/21/2002 20022960166 ASGN MB Financial Bank, N.A. Equipment
9/3/2002 OH00053820081 UCC1 Toyota Motor Credit Corporation Equipment
9/9/2002 OH00054005600 UCC1 Meridian Leasing Corporation Equipment under lease
9/10/2002 OH00054085466 UCC1 Lasalle National Leasing Corporation Equipment under lease
9/10/2002 OH00054085799 UCC1 Lasalle National Leasing Corporation Equipment under lease
9/10/2002 OH00054085911 UCC1 Lasalle National Leasing Corporation Equipment under lease
9/11/2002 OH00054123165 UCC1 Relational Funding Corporation Equipment under lease
TYPE OF
FILING DATE FILE NUMBER FILING SECURED PARTY DESCRIPTION OF COLLATERAL
- -------------- -------------- ------- ----------------------------------------------------------- ------------------------------
12/6/2002 20023440236 ASGN First Bank of Highland Park Equipment under lease
9/11/2002 OH00054123943 UCC1 Relational Funding Corporation Equipment under lease
12/6/2002 20023440246 ASGN First Bank of Highland Park Equipment under lease
9/11/2002 OH00054124400 UCC1 Relational Funding Corporation Equipment under lease
12/6/2002 20023440228 ASGN First Bank of Highland Park Equipment under lease
9/12/2002 OH00054152631 UCC1 Key Equipment Finance, a Division of Equipment under lease
Key Corporate Capital, Inc.
9/12/2002 OH00054184244 UCC1 ICX Corporation Equipment under lease
9/17/2002 OH00054331621 UCC1 Alexander Capital Corporation Equipment under lease
10/25/2002 20023020184 ASGN MB Financial Bank, N.A. Equipment under lease
9/19/2002 OH00054440076 UCC1 Fleet Business Credit, LLC Equipment under lease
9/19/2002 OH00054440521 UCC1 Fleet Business Credit, LLC Equipment under lease
9/20/2002 OH00054463024 UCC1 Tennant Financial Services Equipment under lease
9/23/2002 OH00054509810 UCC1 Alexander Capital Corporation Equipment under lease
9/30/2002 OH00054787909 UCC1 Pacific Century Leasing, Inc. Equipment under lease
1/3/2003 20030060608 AMEND Bank of Hawaii Leasing, Inc. Equipment under lease
9/30/2002 OH00054788244 UCC1 Pacific Century Leasing, Inc. Equipment under lease
8/29/2003 20032460212 AMEND Bank of Hawaii Leasing, Inc. Equipment under lease
10/3/2002 OH00054928535 UCC1 StorageTek Financial Services Corporation Equipment under lease
10/3/2002 OH00054950259 UCC1 Siemens Financial Services, Inc. Equipment under lease
8/11/2003 20032240540 AMEND Siemens Financial Services, Inc. Equipment under lease
10/3/2002 OH00054950471 UCC1 Siemens Financial Services, Inc. Equipment under lease
10/15/2002 OH00055330519 UCC1 Sequel Capital, LLC Equipment under lease
10/17/2002 OH00055496094 UCC1 ICX Corporation Equipment under lease
10/17/2002 OH00055527930 UCC1 UPS Capital Corporation Equipment under lease
10/21/2002 OH00055577329 UCC1 Meridian Leasing Corporation Equipment under lease
1/13/2003 20030140572 ASGN First Bank of Highland Park Equipment under lease
10/24/2002 OH00055758888 UCC1 Information Leasing Corporation Equipment under lease
10/24/2002 OH00055766097 UCC1 Alexander Capital Corporation Equipment under lease
11/22/2002 20023290564 ASGN MB Financial Bank, N.A. Equipment under lease
10/24/2002 OH00055776331 UCC1 IBM Credit Corporation Equipment under lease
10/28/2002 OH00055924508 UCC1 Fleet Business Credit, LLC Equipment under lease
11/4/2002 OH00056181341 UCC1 Meridian Leasing Corporation Equipment under lease
11/4/2002 OH00056213300 UCC1 Information Leasing Corporation Equipment under lease
11/26/2002 OH00057124988 UCC1 General Electric Capital Corporation Equipment under lease
12/3/2002 OH00057323778 UCC1 Gatx Technology Services Corporation Equipment under lease
12/10/2002 OH00057656985 UCC1 D.L. Peterson Trust Equipment under lease
12/19/2002 OH00058092829 UCC1 Siemens Financial Services, Inc. Equipment under lease
12/23/2002 OH00058198015 UCC1 Meridian Leasing Corporation Equipment under lease
12/26/2002 OH00058297671 UCC1 Ameritech Credit Corporation Equipment under lease
12/31/2002 OH00058466549 UCC1 Gatx Technology Services Corporation Equipment under lease
1/6/2003 OH00058613582 UCC1 Ameritech Credit Corporation Equipment under lease
1/10/2003 OH00058905965 UCC1 Yale Financial Services, Inc. Equipment under lease
TYPE OF
FILING DATE FILE NUMBER FILING SECURED PARTY DESCRIPTION OF COLLATERAL
- -------------- -------------- ------- ----------------------------------------------------------- ------------------------------
1/13/2003 OH00058969181 UCC1 Lasalle National Leasing Corporation Equipment under lease
1/17/2003 OH00059144922 UCC1 Lasalle National Leasing Corporation Equipment under lease
1/22/2003 OH00059271719 UCC1 Ameritech Credit Corporation Equipment under lease
1/22/2003 OH00059272276 UCC1 Ameritech Credit Corporation Equipment under lease
1/27/2003 OH00059398595 UCC1 Ameritech Credit Corporation Equipment under lease
1/29/2003 OH00059486794 UCC1 Alexander Capital Corporation Equipment under lease
1/29/2003 OH00059492989 UCC1 Alexander Capital Corporation Equipment under lease
1/31/2003 OH00059559921 UCC1 Cupertino National Bank c/o Greater Bay Capital Equipment under lease
2/6/2003 OH00059796620 UCC1 Zions Credit Corporation Equipment under lease
2/6/2003 OH00059796842 UCC1 Zions Credit Corporation Equipment under lease
2/10/2003 OH00059864463 UCC1 Ameritech Credit Corporation Equipment under lease
4/2/2003 20030940160 AMEND Ameritech Credit Corporation Equipment under lease
2/10/2003 OH00059868734 UCC1 IBM Credit LLC Equipment under lease
2/11/2003 OH00059956822 UCC1 IBM Credit LLC Equipment under lease
2/12/2003 OH00060007036 UCC1 Ameritech Credit Corporation Equipment under lease
2/12/2003 OH00060007147 UCC1 Ameritech Credit Corporation Equipment under lease
2/14/2003 OH00060087458 UCC1 Meridian Leasing Corporation Equipment under lease
5/13/2003 20031350328 ASGN MB Financial Bank, N.A. Equipment under lease
2/21/2003 OH00060294679 UCC1 CIT Communications Finance Corporation Equipment under lease
2/21/2003 OH00060322701 UCC1 United Defense, L.P. Inventory
3/6/2003 OH00060726121 UCC1 IBM Credit LLC Equipment under lease
3/11/2003 OH00060912530 UCC1 Alexander Capital Corporation Equipment under lease
5/2/2003 20031180254 ASGN MB Financial Bank, N.A. Equipment under lease
3/12/2003 OH00060987224 UCC1 Alexander Capital Corporation Equipment under lease
5/2/2003 20031180256 ASGN MB Financial Bank, N.A. Equipment under lease
3/18/2003 OH00061178816 UCC1 Ameritech Credit Corporation Equipment under lease
3/21/2003 OH00061352856 UCC1 Ameritech Credit Corporation Equipment under lease
4/2/2003 OH00061817256 UCC1 Ameritech Credit Corporation Equipment under lease
4/2/2003 OH00061825354 UCC1 Ameritech Credit Corporation Equipment under lease
5/2/2003 20031250302 AMEND Ameritech Credit Corporation Equipment under lease
4/2/2003 OH00061825687 UCC1 Ameritech Credit Corporation Equipment under lease
TYPE OF
FILING DATE FILE NUMBER FILING SECURED PARTY DESCRIPTION OF COLLATERAL
- -------------- -------------- ------- ----------------------------------------------------------- ------------------------------
4/2/2003 OH00061826033 UCC1 Ameritech Credit Corporation Equipment under lease
4/4/2003 OH00061895876 UCC1 JPMorgan Chase Bank Accounts, Inventory,
Equipment, etc.
8/22/2003 20032370294 AMEND JPMorgan Chase Bank Partial release on assets sold
8/22/2003 20032370294 RELEASE JPMorgan Chase Bank Partial release on assets sold
4/7/2003 OH00061945944 UCC1 IBM Credit LLC Equipment under lease
4/25/2003 OH00062869236 UCC1 Meridian Leasing Corporation Equipment under lease
4/25/2003 OH00062870360 UCC1 Meridian Leasing Corporation Equipment under lease
5/8/2003 OH00063457507 UCC1 UPS Capital Corporation Equipment under lease
5/9/2003 OH00063534349 UCC1 Siemens Financial Services, Inc. Equipment under lease
5/12/2003 OH00063648411 UCC1 Alexander Capital Corporation Equipment under lease
5/30/2003 OH00064435350 UCC1 Meridian Leasing Corporation Equipment under lease
5/30/2003 OH00064435572 UCC1 Meridian Leasing Corporation Equipment under lease
8/18/2003 20032180336 AMEND Meridian Leasing Corporation Equipment under lease
5/30/2003 OH00064435794 UCC1 Meridian Leasing Corporation Equipment under lease
5/30/2003 OH00064435916 UCC1 Meridian Leasing Corporation Equipment under lease
8/4/2003 20032180338 AMEND Meridian Leasing Corporation Equipment under lease
6/12/2003 OH00064974998 UCC1 Meridian Leasing Corporation Equipment under lease
6/12/2003 OH00064975344 UCC1 Meridian Leasing Corporation Equipment under lease
8/4/2003 20032180330 AMEND Meridian Leasing Corporation Equipment under lease
6/23/2003 OH00065417030 UCC1 Meridian Leasing Corporation Equipment under lease
6/23/2003 OH00065417141 UCC1 Meridian Leasing Corporation Equipment under lease
7/1/2003 OH00065784885 UCC1 CIT Communications Finance Corporation Equipment under lease
7/8/2003 OH00065988281 UCC1 IBM Credit LLC Equipment under lease
8/5/2003 OH00067036791 UCC1 Alexander Capital Corporation Equipment under lease
9/9/2003 20032530484 ASGN MB Financial Bank, N.A. Equipment under lease
8/29/2003 OH00067942429 UCC1 Gatx Technology Services Corporation Equipment under lease
9/2/2003 OH00068024000 UCC1 Bank of Hawaii Leasing, Inc. Equipment under lease
9/4/2003 OH00068112643 UCC1 Fleet Business Credit LLC Equipment under lease
9/16/2003 OH00068545751 UCC1 Synleaseco Delaware Business Trust Land and Fixtures
9/16/2003 OH00068545862 UCC1 Synleaseco Delaware Business Trust Land and Fixtures
9/22/2003 OH00068751637 UCC1 Meridian Leasing Corporation Equipment under lease
9/22/2003 OH00068763228 UCC1 Ontario Credit Corporation Equipment under lease
10/3/2003 OH00069530589 UCC1 Siemens Financial Services, Inc. Equipment under lease
10/14/2003 OH00069467796 UCC1 Meridian Leasing Corporation Equipment under lease
10/20/2003 OH00069725986 UCC1 EMC Corporation Equipment under lease
10/20/2003 OH00069728023 UCC1 EMC Corporation Equipment under lease
10/20/2003 OH00069763895 UCC1 Meridian Leasing Corporation Equipment under lease
10/20/2003 OH00069798323 UCC1 Toyota Motor Credit Corporation Equipment under lease
11/4/2003 OH00070260054 UCC1 ExxonMobil Chemical Company a Division of Chemicals
Exxon Mobil Corporation
12/5/2003 OH00071524651 UCC1 D.L. Peterson Trust Equipment under lease
12/22/2003 OH00072134079 UCC1 Meridian Leasing Corporation Equipment under lease
12/23/2003 OH00072086581 UCC1 Rhein Chemie Corporation Raw Materials
12/29/2003 20033630444 AMEND Rhein Chemie Corporation Raw Materials
12/29/2003 OH00072236227 UCC1 Rhein Chemie Corporation Raw Materials
TYPE OF
FILING DATE FILE NUMBER FILING SECURED PARTY DESCRIPTION OF COLLATERAL
- -------------- -------------- ------- ----------------------------------------------------------- ------------------------------
1/2/2004 OH00072485517 UCC1 The CIT Group / Equipment Financing Inc. Equipment under lease
1/21/2004 OH00073084801 UCC1 Xerox Corporation Equipment under lease
2/2/2004 OH00073453137 UCC1 Alliance Bank, N.A. Equipment under lease
2/10/2004 OH00073795010 UCC1 Alliance Bank, N.A.
2/10/2004 OH00073794886 UCC1 Alliance Bank, N.A.
2/23/2004 OH00074136126 UCC1 Information Leasing Corporation
3/5/2004 OH00074602983 UCC1 Toyota Motor Credit Corporation
3/15/2004 OH00074875900 UCC1 Wilmington Trust Company
3/18/2004 OH00075044889 UCC1 Barloworld Fleet Leasing, LLC
3/22/2004 OH00075139729 UCC1 Meridian Leasing Corporation
3/22/2004 OH00075139618 UCC1 Meridian Leasing Corporation
3/22/2004 OH00075139507 UCC1 Meridian Leasing Corporation
3/22/2004 OH00075139496 UCC1 Meridian Leasing Corporation
3/30/2004 OH00075489366 UCC1 Meridian Leasing Corporation
3/30/2004 OH00075489669 UCC1 Meridian Leasing Corporation
3/30/2004 OH00075489811 UCC1 Meridian Leasing Corporation
3/30/2004 OH00075490501 UCC1 Meridian Leasing Corporation
3/30/3004 OH00075489033 UCC1 Meridian Leasing Corporation
3/30/2004 OH0007590167 UCC1 Meridian Leasing Corporation
3/30/2004 OH00075490389 UCC1 Meridian Leasing Corporation
3/30/2004 OH00075490490 UCC1 Meridian Leasing Corporation
4/2/2004 OH00075627633 UCC1 Information Leasing Corporation
4/12/2004 20041050716 AMEND Information Leasing Corporation
4/14/2004 OH00075909449 UCC1 Technology Investment Partners, L.L.C.
4/15/2004 OH00076103745 UCC1 Ontario Credit Corporation
4/16/2004 OH00076179774 UCC1 Alliance Bank, N.A.
4/16/2004 OH00076179774 UCC1 Ontario Credit Corporation
4/19/2004 OH00076252023 UCC1 Meridian Leasing Corporation
TYPE OF
FILING DATE FILE NUMBER FILING SECURED PARTY DESCRIPTION OF COLLATERAL
- -------------- -------------- ------- ----------------------------------------------------------- ------------------------------
4/19/2004 OH00076251900 UCC1 Meridian Leasing Corporation
4/28/2004 OH00076551047 UCC1 Herc Exchange, LLC
5/14/2004 OH00077299931 UCC1 Alliance Bank, N.A.
5/14/2004 OH00077299931 UCC1 Ontario Credit Corporation
5/20/2004 OH00077343714 UCC1 Technology Investment Partners, L.L.C.
5/26/2004 OH00077519434 UCC1 Technology Investment Partners, L.L.C.
5/26/2004 OH00077686598 UCC1 Alexander Capital Corporation
6/1/2004 OH00077868170 UCC1 Meridian Leasing Corporation
6/2/2004 OH00077950195 UCC1 Ameritech Credit Corporation
6/17/2004 OH00078549923 UCC1 Springs Leasing Corporation
6/24/2004 20041760706 ASGN MB Financial Bank, N.A.
7/13/2004 OH00079372424 UCC1 EMC Corporation
7/13/2004 OH00079372424 UCC1 Fleet Business Credit LLC
7/14/2004 OH00079457808 UCC1 EMC Corporation
7/14/2004 OH00079457808 UCC1 Fleet Business Credit LLC
7/29/2004 OH00080030564 UCC1 Alexander Capital Corporation
8/4/2004 20042180630 ASGN National City Leasing Corporation Equipment under lease
8/19/2004 OH00080690815 UCC1 JPMorgan Chase Bank Accounts, Inventory,
Equipment, etc.
8/23/2004 OH00080790049 UCC1 Ameritech Credit Corporation Equipment under lease
8/27/2004 OH00080974534 UCC1 Ameritech Credit Corporation Equipment under lease
8/27/2004 OH00080974645 UCC1 Ameritech Credit Corporation Equipment under lease
8/27/2004 OH00080974867 UCC1 Ameritech Credit Corporation Equipment under lease
8/27/2004 OH00080975767 UCC1 Ameritech Credit Corporation Equipment under lease
8/27/2004 OH00080975324 UCC1 Ameritech Credit Corporation Equipment under lease
8/27/2004 OH00080975980 UCC1 Ameritech Credit Corporation Equipment under lease
8/27/2004 OH00080976992 UCC1 Ameritech Credit Corporation Equipment under lease
8/27/2004 OH00080977237 UCC1 Ameritech Credit Corporation Equipment under lease
8/27/2004 OH00080977671 UCC1 Ameritech Credit Corporation Equipment under lease
8/27/2004 OH00080977893 UCC1 Ameritech Credit Corporation Equipment under lease
8/27/2004 OH00080978138 UCC1 Ameritech Credit Corporation Equipment under lease
8/27/2004 OH00080975091 UCC1 Ameritech Credit Corporation Equipment under lease
8/27/2004 OH00080975768 UCC1 Ameritech Credit Corporation Equipment under lease
8/31/2004 OH00081012911 UCC1 Ameritech Credit Corporation Equipment under lease
8/30/2004 OH00081020908 UCC1 Ameritech Credit Corporation Equipment under lease
8/30/2004 OH00081020231 UCC1 Ameritech Credit Corporation Equipment under lease
8/30/2004 OH00081021021 UCC1 Ameritech Credit Corporation Equipment under lease
8/30/2004 OH00081020564 UCC1 Ameritech Credit Corporation Equipment under lease
8/30/2004 OH00081020897 UCC1 Ameritech Credit Corporation Equipment under lease
8/31/2004 OH00081013034 UCC1 Ameritech Credit Corporation Equipment under lease
TYPE OF
FILING DATE FILE NUMBER FILING SECURED PARTY DESCRIPTION OF COLLATERAL
- -------------- -------------- ------- ----------------------------------------------------------- ------------------------------
9/21/2004 OH00081703653 UCC1 Alexander Capital Corporation Equipment under lease
9/27/2004 OH00081863732 UCC1 Meridian Leasing Corporation Equipment under lease
9/29/2004 OH00081965324 UCC1 Citicorp Leasing, Inc.
10/4/2004 20042800228 ASGN Meridian Leasing Corporation Equipment under lease
10/8/2004 OH00082283036 UCC1 Ameritech Credit Corporation Equipment under lease
10/8/2004 OH00082283470 UCC1 Ameritech Credit Corporation Equipment under lease
10/8/2004 OH00082283581 UCC1 Ameritech Credit Corporation Equipment under lease
10/8/2004 OH00082283814 UCC1 Ameritech Credit Corporation Equipment under lease
10/8/2004 OH00082284048 UCC1 Ameritech Credit Corporation Equipment under lease
10/8/2004 OH00082284260 UCC1 Ameritech Credit Corporation Equipment under lease
10/15/2004 20042930272 ASGN Meridian Leasing Corporation Equipment under lease
10/24/2004 20042990122 ASGN MB Financial Bank, N.A. Equipment under lease
10/28/2004 OH00082950718 UCC1 Ameritech Credit Corporation Equipment under lease
10/29/2004 OH00083008328 UCC1 Ameritech Credit Corporation Equipment under lease
11/1/2004 OH00083092688 UCC1 Alexander Capital Corporation Equipment under lease
11/1/2004 OH00083092911 UCC1 Alexander Capital Corporation Equipment under lease
11/2/2004 20043090148 AMEND Ameritech Credit Corporation Equipment under lease
11/2/2004 20043090126 AMEND Ameritech Credit Corporation Equipment under lease
11/2/2004 OH00083120719 UCC1 Ameritech Credit Corporation Equipment under lease
11/2/2004 OH00083122390 UCC1 Ameritech Credit Corporation Equipment under lease
11/2/2004 OH00083122512 UCC1 Ameritech Credit Corporation Equipment under lease
11/2/2004 OH00083122845 UCC1 Ameritech Credit Corporation Equipment under lease
11/3/2004 OH00083171333 UCC1 Alexander Capital Corporation Equipment under lease
11/4/2004 OH00083199886 UCC1 IBM credit LLC
11/5/2004 OH00083236028 UCC1 Ameritech Credit Corporation Equipment under lease
11/5/2004 OH00083236917 UCC1 Ameritech Credit Corporation Equipment under lease
11/8/2004 OH00083343560 UCC1 Meridian Leasing Corporation Equipment under lease
11/24/2004 OH00083838660 UCC1 Meridian Leasing Corporation Equipment under lease
11/24/2004 OH00083838882 UCC1 Meridian Leasing Corporation Equipment under lease
12/3/2004 OH00084164692 UCC1 Ameritech Credit Corporation Equipment under lease
12/3/2004 OH00084164703 UCC1 Ameritech Credit Corporation Equipment under lease
12/3/2004 OH00084164814 UCC1 Ameritech Credit Corporation Equipment under lease
12/17/2004 OH00084683218 UCC1 Meridian Leasing Corporation Equipment under lease
12/22/2004 OH00084839350 UCC1 Ameritech Credit Corporation Equipment under lease
12/27/2004 OH00084889416 UCC1 Ameritech Credit Corporation Equipment under lease
12/27/2004 OH00084890095 UCC1 Ameritech Credit Corporation Equipment under lease
12/30/2004 OH00085078428 UCC1 Citibank, N.A. Accounts Receivable
1/5/2005 OH00085277874 UCC1 Alexander Capital Corporation Equipment under lease
2/2/2005 20050330788 ASGN Alexander Capital Corporation Equipment under lease
1/11/2005 OH00085455418 UCC1 Ameritech Credit Corporation Equipment under lease
1/11/2005 OH00085455741 UCC1 Ameritech Credit Corporation Equipment under lease
1/19/2005 OH00085687156 UCC1 Toyota Motor Credit Corporation Equipment under lease
1/19/2005 OH00085687156 UCC1 Prolift Industrial Equipment Co., LLC Equipment under lease
1/24/2005 OH00085809449 UCC1 CSA Financial Corporation Accounts, Contract
Rights and Equipment
2/2/2005 OH00086090253 UCC1 Ameritech Credit Corporation Equipment under lease
2/8/2005 OH00086266317 UCC1 AIR LIQUIDE INDUSTRIAL U S LP Equipment under lease
2/24/2005 OH00086699203 UCC1 Crown Credit Company Equipment under lease
2/25/2005 OH00086770861 UCC1 CSA Financial Corporation Equipment under lease
2/28/2005 OH00086844000 UCC1 CSA Financial Corporation Equipment under lease
2/28/2005 OH00086844111 UCC1 CSA Financial Corporation Equipment under lease
3/1/2005 OH00086881907 UCC1 Alexander Capital Corporation Equipment under lease
3/1/2005 OH00086882020 UCC1 MB Financial N.A. Equipment under lease
3/2/2005 OH00086885490 UCC1 Meridian Leasing Corporation Equipment under lease
TYPE OF
FILING DATE FILE NUMBER FILING SECURED PARTY DESCRIPTION OF COLLATERAL
- -------------- -------------- ------- ----------------------------------------------------------- ------------------------------
3/2/2005 OH00086935457 UCC1 Alexander Capital Corporation Equipment under lease
3/2/2005 OH00086936358 UCC1 Alexander Capital Corporation Equipment under lease
3/2/2005 OH00086936681 UCC1 Alexander Capital Corporation Equipment under lease
3/3/2004 OH00086874700 UCC1 Ameritech Credit Corporation Equipment under lease
3/9/2005 OH00087119286 UCC1 Alexander Capital Corporation Equipment under lease
3/10/2005 OH00087164625 UCC1 Alexander Capital Corporation Equipment under lease
3/11/2005 OH00087208275 UCC1 Alexander Capital Corporation Equipment under lease
3/11/2005 OH00087208497 UCC1 Alexander Capital Corporation Equipment under lease
3/14/2005 OH00087291856 UCC1 CSA Financial Corporation Equipment under lease
3/16/2005 OH00087331913 UCC1 Ameritech Credit Corporation Equipment under lease
3/18/2005 OH00087452282 UCC1 Alexander Capital Corporation Equipment under lease
3/18/2005 OH00087452393 UCC1 Alexander Capital Corporation Equipment under lease
3/22/2005 20050810574 ASGN MB Financial Bank, N.A. Equipment under lease
3/22/2005 20050810654 ASGN MB Financial Bank, N.A. Equipment under lease
3/22/2005 20050810610 ASGN MB Financial Bank, N.A. Equipment under lease
3/24/2005 20050830116 ASGN MB Financial Bank, N.A. Equipment under lease
3/24/2005 20050830408 ASGN MB Financial Bank, N.A. Equipment under lease
3/24/2005 20050830410 ASGN MB Financial Bank, N.A. Equipment under lease
3/24/2005 20050830118 ASGN MB Financial Bank, N.A. Equipment under lease
3/30/2005 OH00087813298 UCC1 Alexander Capital Corporation Equipment under lease
4/4/2005 OH00087980807 UCC1 CSA Financial Corporation Equipment under lease
4/4/2005 OH00087981031 UCC1 CSA Financial Corporation Equipment under lease
4/4/2005 OH00087981142 UCC1 CSA Financial Corporation Equipment under lease
4/4/2005 OH00087981253 UCC1 CSA Financial Corporation Equipment under lease
4/4/2005 OH00087981475 UCC1 CSA Financial Corporation Equipment under lease
4/4/2005 OH00087981586 UCC1 CSA Financial Corporation Equipment under lease
4/5/2005 20050950360 ASGN MB Financial Bank, N.A. Equipment under lease
4/6/2005 OH00088052700 UCC1 Raymond Leasing Corporation Equipment
4/13/2005 OH00088235738 UCC1 PolyOne Corporation Equipment
4/13/2005 OH00088255083 UCC1 De Lage Landen Financial Services, Inc. Equipment under lease
4/13/2005 OH00088298053 UCC1 JPMorgan Chase Bank Accounts, Inventory,
Equipment, etc.
4/14/2005 OH00088318532 UCC1 Relational, LLC Present and future goods
4/14/2005 OH00088359255 UCC1 Deutsche Bank Trust Company Americas Accounts, Inventory,
Equipment, etc.
4/15/2005 OH00088388943 UCC1 Wilmington Trust Company All assets of the debtor
4/18/2005 OH00088369600 UCC1 Ameritech Credit Corporation Equipment under lease
4/18/2005 OH00088375017 UCC1 Ameritech Credit Corporation Equipment under lease
4/18/2005 OH00088376463 UCC1 Ameritech Credit Corporation Equipment under lease
4/18/2005 OH00088387820 UCC1 Ameritech Credit Corporation Equipment under lease
4/29/2005 OH00088962709 UCC1 Alexander Capital Corporation Equipment under lease
4/29/2005 OH00088962810 UCC1 Alexander Capital Corporation Equipment under lease
5/5/2005 20051250158 ASGN MB Financial Bank, N.A. Equipment under lease
5/6/2005 OH00089083423 UCC1 Ameritech Credit Corporation Equipment under lease
5/6/2005 OH00089083534 UCC1 Ameritech Credit Corporation Equipment under lease
5/6/2005 OH00089083756 UCC1 Ameritech Credit Corporation Equipment under lease
5/6/2005 OH00089094446 UCC1 Ameritech Credit Corporation Equipment under lease
5/6/2005 OH00089096137 UCC1 Ameritech Credit Corporation Equipment under lease
5/6/2005 OH00089096248 UCC1 Ameritech Credit Corporation Equipment under lease
5/6/2005 OH00089096359 UCC1 Ameritech Credit Corporation Equipment under lease
5/9/2005 OH00089151933 UCC1 Ameritech Credit Corporation Equipment under lease
5/16/2005 OH00089438799 UCC1 Ameritech Credit Corporation Equipment under lease
5/16/2005 OH00089465685 UCC1 Summit County Port Authority Equipment under lease
TYPE OF
FILING DATE FILE NUMBER FILING SECURED PARTY DESCRIPTION OF COLLATERAL
- -------------- -------------- ------- ----------------------------------------------------------- ------------------------------
5/20/2005 20051400528 ASGN MB Financial Bank, N.A. Equipment under lease
5/20/2005 20051400504 ASGN MB Financial Bank, N.A. Equipment under lease
5/20/2005 OH00089692584 UCC1 Meridian Leasing Corporation Equipment under lease
5/23/2005 OH00089760772 UCC1 Alexander Capital Corporation Equipment under lease
5/23/2005 OH00089761784 UCC1 Alexander Capital Corporation Equipment under lease
5/24/2005 OH00089696422 UCC1 Ameritech Credit Corporation Equipment under lease
5/25/2005 OH00089860017 UCC1 Alexander Capital Corporation Equipment under lease
5/25/2005 OH00089860340 UCC1 Alexander Capital Corporation Equipment under lease
5/25/2005 OH00089860895 UCC1 Alexander Capital Corporation Equipment under lease
6/6/2005 20051570562 ASGN Alexander Capital Corporation Equipment under lease
6/6/2005 20051570080 ASGN MB Financial Bank, N.A. Equipment under lease
6/9/2005 20051600420 ASGN MB Financial Bank, N.A. Equipment under lease
6/9/2005 20051600156 ASGN MB Financial Bank, N.A. Equipment under lease
6/9/2005 20051600410 ASGN MB Financial Bank, N.A. Equipment under lease
6/10/2005 OH00090269066 UCC1 Ameritech Credit Corporation Equipment under lease
6/15/2005 20051660214 AMEND Ameritech Credit Corporation Equipment under lease
6/16/2005 OH00090537823 UCC1 Alexander Capital Corporation Equipment under lease
6/16/2005 OH00090538279 UCC1 Alexander Capital Corporation Equipment under lease
6/17/2005 OH00090576077 UCC1 Alexander Capital Corporation Equipment under lease
6/20/2005 OH00090563818 UCC1 CIT Technologies Corporation Equipment under lease
6/27/2005 20051790446 TERM Springs Leasing Corporation
6/29/2005 20051800064 AMEND D.L. Peterson trust Equipment under lease
6/30/2005 20051810306 ASGN MB Financial Bank, N.A. Equipment under lease
6/30/2005 20051810032 ASGN MB Financial Bank, N.A. Equipment under lease
7/1/2005 OH00090997938 UCC1 Meridian Leasing Corporation Equipment under lease
7/5/2005 OH00091004158 UCC1 Ameritech Credit Corporation Equipment under lease
7/5/2005 OH00091054981 UCC1 Alexander Capital Corporation Equipment under lease
7/6/2005 OH00091160188 UCC1 Alexander Capital Corporation Equipment under lease
7/8/2005 20051890076 AMEND D.L. Peterson trust Equipment under lease
7/8/2005 OH00091139709 UCC1 Ameritech Credit Corporation Equipment under lease
7/8/2005 OH00091163114 UCC1 Ameritech Credit Corporation Equipment under lease
7/8/2005 OH00091163225 UCC1 Ameritech Credit Corporation Equipment under lease
7/11/2005 OH00091243548 UCC1 Merrill Lynch Capital Equipment under lease
7/22/2005 OH00091599036 UCC1 Ameritech Credit Corporation Equipment under lease
7/29/2005 2005100444 AMEND D.L. Peterson trust Equipment under lease
8/1/2005 OH00091913812 UCC1 Alexander Capital Corporation Equipment under lease
8/4/2005 OH00091971076 UCC1 Ameritech Credit Corporation Equipment under lease
8/4/2005 OH00091969930 UCC1 Ameritech Credit Corporation Equipment under lease
8/4/2005 OH00091956337 UCC1 Banc of America Leasing & Capital LLC Equipment under lease
8/8/2005 OH00092011699 UCC1 Ameritech Credit Corporation Equipment under lease
8/8/2005 OH00092011700 UCC1 Ameritech Credit Corporation Equipment under lease
8/8/2005 OH00092022834 UCC1 Ameritech Credit Corporation Equipment under lease
8/8/2005 OH00092011588 UCC1 Ameritech Credit Corporation Equipment under lease
8/8/2005 OH00092011477 UCC1 Ameritech Credit Corporation Equipment under lease
8/11/2005 20052270236 AMEND Wilmington Trust Company Common stock
8/11/2005 20052270234 AMEND Wilmington Trust Company Common stock
8/12/2005 OH00092218354 UCC1 Merc Exchange, LLC Equipment under lease
8/22/2005 20052340574 AMEND D.L. Peterson trust Equipment under lease
8/22/2005 20052340734 ASGN MB Financial Bank, N.A. Equipment under lease
8/24/2005 20052380148 AMEND JPMorgan Chase Bank Accounts, Inventory,
Equipment, etc.
9/1/2005 OH00092903923 UCC1 Meridian Leasing Corporation Equipment under lease
9/2/2005 20052500016 AMEND JPMorgan Chase Bank Accounts, Inventory,
Equipment, etc.
TYPE OF
FILING DATE FILE NUMBER FILING SECURED PARTY DESCRIPTION OF COLLATERAL
- -------------- -------------- ------- ----------------------------------------------------------- ------------------------------
9/2/2005 20052500018 AMEND JPMorgan Chase Bank Accounts, Inventory,
Equipment, etc.
9/2/2005 20052500022 AMEND JPMorgan Chase Bank Accounts, Inventory,
Equipment, etc.
9/2/2005 20052500020 AMEND Deutsche Bank Trust Company Americas Accounts, Inventory,
Equipment, etc.
9/8/2005 OH00093109465 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
9/8/2005 OH00093109910 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
9/8/2005 OH00093110155 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
9/13/2005 OH00093244683 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
9/14/2005 20052640404 AMEND Wilmington Trust Company Purchased Assets
9/14/2005 20052590274 AMEND Wilmington Trust Company Purchased Assets
9/15/2005 OH00093240312 UCC1 Ameritech Credit Corporation Equipment under lease
9/15/2005 OH00093255373 UCC1 Ameritech Credit Corporation Equipment under lease
9/21/2005 OH00093521661 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
9/21/2005 OH00093521772 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
9/21/2005 OH00093522017 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
9/22/2005 OH00093536844 UCC1 Alexander Capital Corporation Equipment under lease
9/29/2005 OH00093810018 UCC1 CIT Technologies Corporation Equipment under lease
9/29/2005 OH00093810341 UCC1 CIT Technologies Corporation Equipment under lease
9/29/2005 OH00093810674 UCC1 CIT Technologies Corporation Equipment under lease
10/4/2005 OH00093919230 UCC1 Ameritech Credit Corporation Equipment under lease
10/4/2005 OH00093926871 UCC1 Ameritech Credit Corporation Equipment under lease
10/10/2005 OH00094093724 UCC1 NMHG Financial Services, Inc. Equipment under lease
10/10/2005 20052830148 AMEND D.L. Peterson trust Equipment under lease
10/11/2005 20052850732 ASGN Meridian Leasing Corporation Equipment under lease
10/12/2005 OH00094193069 UCC1 Ameritech Credit Corporation Equipment under lease
10/13/2005 20052860064 AMEND D.L. Peterson trust Equipment under lease
10/27/2005 OH00094828349 UCC1 Air Liquide Industrial US LP Plant and equipment
10/27/2005 OH00094832287 UCC1 Merrill Lynch Capital Equipment under lease
10/28/2005 OH00094865468 UCC1 Bharat Forge America, Inc. Inventory and property
10/31/2005 OH00094959518 UCC1 Barloworld Fleet Leasing LLC Equipment under lease
11/2/2005 OH00095056272 UCC1 Alexander Capital Corporation Equipment under lease
11/3/2005 OH00095057062 UCC1 Ameritech Credit Corporation Equipment under lease
11/3/2005 OH00095057173 UCC1 Ameritech Credit Corporation Equipment under lease
11/3/2005 OH00095058963 UCC1 Ameritech Credit Corporation Equipment under lease
11/3/2005 OH00095063035 UCC1 Ameritech Credit Corporation Equipment under lease
11/4/2005 OH00095198919 UCC1 Alexander Capital Corporation Equipment under lease
11/8/2005 OH00095356531 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
11/9/2005 OH00095422916 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
11/17/2005 OH00095684576 UCC1 Toyota Motor Credit Corporation Equipment under lease
11/17/2005 OH00095747358 UCC1 Alexander Capital Corporation Equipment under lease
11/18/2005 20053220104 AMEND D.L. Peterson trust Equipment under lease
11/28/2005 OH00096007573 UCC1 Alexander Capital Corporation Equipment under lease
12/2/2005 OH00096164171 UCC1 Ameritech Credit Corporation Equipment under lease
TYPE OF
FILING DATE FILE NUMBER FILING SECURED PARTY DESCRIPTION OF COLLATERAL
- -------------- -------------- ------- ----------------------------------------------------------- ------------------------------
12/5/2005 OH00096257653 UCC1 Toyota Motor Credit Corporation Equipment under lease
12/5/2005 20053390348 ASGN MB Financial Bank, N.A. Equipment under lease
12/9/2005 OH00096495708 UCC1 Alexander Capital Corporation Equipment under lease
12/9/2005 OH00096501127 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
12/9/2005 OH00096501349 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
12/16/2005 OH00096750639 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
12/16/2005 20053500672 ASGN MB Financial Bank, N.A. Equipment under lease
12/19/2005 OH00096807660 UCC1 ICX Corporation, now RBS Asset Finance Equipment under lease
12/20/2005 20053540912 ASGN MB Financial Bank, N.A. Equipment under lease
12/21/2005 20053550262 AMEND D.L. Peterson trust Equipment under lease
1/3/2006 OH00097350379 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
1/6/2006 OH00097445986 UCC1 QA Group LLC Equipment under lease
1/6/2006 OH00097449257 UCC1 Wells Fargo Foothill Equipment under lease
1/6/2006 OH00097449368 UCC1 Wells Fargo Foothill Equipment under lease
1/6/2006 20060090368 ASGN MB Financial Bank, N.A. Equipment under lease
1/10/2006 20060110672 AMEND Wilmington Trust Company Accounts, Inventory,
Equipment, etc.
1/10/2006 20060110674 AMEND Wilmington Trust Company Accounts, Inventory,
Equipment, etc.
1/10/2006 20060110666 AMEND JPMorgan Chase Bank Accounts, Inventory,
Equipment, etc.
1/10/2006 20060110668 AMEND JPMorgan Chase Bank Accounts, Inventory,
Equipment, etc.
1/10/2006 20060110670 AMEND JPMorgan Chase Bank Accounts, Inventory,
Equipment, etc.
1/10/2006 20060110676 AMEND Deutsche Bank Trust Company Americas Accounts, Inventory,
Equipment, etc.
1/18/2006 OH00097847504 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
1/20/2006 OH00097895646 UCC1 Herc Exchange, LLC Equipment under lease
1/23/2006 OH00098010976 UCC1 Alexander Capital Corporation Equipment under lease
1/31/2006 OH00098247664 UCC1 Butler Capital Corporation Equipment under lease
2/2/2006 20060330746 ASGN MB Financial Bank, N.A. Equipment under lease
2/14/2006 20060450176 ASGN MB Financial Bank, N.A. Equipment under lease
2/28/2006 OH00099167685 UCC1 Hewlett-Packard Financial Services Company Equipment under lease
3/1/2006 OH00099194137 UCC1 Toyota Motor Credit Corporation Equipment under lease
3/2/2006 20060610644 AMEND D.L. Peterson trust Equipment under lease
3/13/2006 OH00099690361 UCC1 Bostrom Seating, Inc. Equipment under lease
3/14/2006 OH00099707025 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
3/14/2006 OH00099707469 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
3/14/2006 OH00099707803 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
3/14/2006 OH00099708037 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
3/15/2006 20060740220 AMEND D.L. Peterson trust Equipment under lease
3/24/2006 OH00100052202 UCC1 CIT Technologies Corporation Equipment under lease
TYPE OF
FILING DATE FILE NUMBER FILING SECURED PARTY DESCRIPTION OF COLLATERAL
- -------------- -------------- ------- ----------------------------------------------------------- ------------------------------
3/28/2006 OH00100212515 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
4/7/2006 20060970234 AMEND Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
4/11/2006 20061010318 AMEND D.L. Peterson trust Equipment under lease
4/17/2006 20061080514 AMEND ICX Corporation, now RBS Asset Finance Equipment under lease
5/1/2006 OH00101691085 UCC1 Alexander Capital Corporation Equipment under lease
5/9/2006 OH00101918552 UCC1 Meridian Leasing Corporation Equipment under lease
5/9/2006 OH00101920810 UCC1 Meridian Leasing Corporation Equipment under lease
5/19/2006 20061390888 AMEND MB Financial Bank, N.A. Equipment under lease
5/24/2006 20061450674 ASGN MB Financial Bank, N.A. Equipment under lease
5/24/2006 OH00102582974 UCC1 General Electric Capital Corporation Property and equipment
5/26/2006 OH00102657569 UCC1 Air Liquide Industrial US LP Equipment under lease
6/6/2006 20061570954 AMEND MB Financial Bank, N.A. Equipment under lease
6/13/2006 OH00103256308 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
6/14/2006 OH00103238299 UCC1 CIT Technologies Corporation Equipment under lease
6/15/2006 20061670576 AMEND Merrill Lynch Capital Equipment under lease
6/19/2006 20061700492 AMEND D.L. Peterson trust Equipment under lease
6/20/2006 20061711012 AMEND Alexander Capital Corporation Equipment under lease
6/20/2006 20061710936 AMEND MB Financial Bank, N.A. Equipment under lease
6/20/2006 20061710424 AMEND MB Financial Bank, N.A. Equipment under lease
6/20/2006 20061711002 AMEND MB Financial Bank, N.A. Equipment under lease
6/20/2006 20061711004 AMEND MB Financial Bank, N.A. Equipment under lease
6/20/2006 20061711006 AMEND MB Financial Bank, N.A. Equipment under lease
6/20/2006 20061711008 AMEND MB Financial Bank, N.A. Equipment under lease
6/20/2006 20061711010 AMEND MB Financial Bank, N.A. Equipment under lease
6/20/2006 20061710428 AMEND MB Financial Bank, N.A. Equipment under lease
6/23/2006 OH00103634855 UCC1 De Lage Landen Financial Services, Inc. Equipment under lease
6/23/2006 OH00103636879 UCC1 De Lage Landen Financial Services, Inc. Equipment under lease
6/26/2006 20061770506 AMEND Harwick Standard Distribution Corporation Chemicals
6/27/2006 OH00103744767 UCC1 Dell Financing Services L.P. Equipment under lease
6/30/2006 20061810230 AMEND Alexander Capital Corporation Equipment under lease
6/30/2006 20061810412 AMEND Alexander Capital Corporation Equipment under lease
7/7/2006 20061880154 AMEND D.L. Peterson trust Equipment under lease
7/19/2006 20062001042 AMEND D.L. Peterson trust Equipment under lease
7/21/2006 20062020322 AMEND D.L. Peterson trust Equipment under lease
7/24/2006 20062051088 AMEND D.L. Peterson trust Equipment under lease
7/24/2006 OH00104701708 UCC1 AT&T Capital Services, Inc. Equipment under lease
7/26/2006 OH00104847938 UCC1 Alexander Capital Corporation Equipment under lease
7/26/2006 OH00104848940 UCC1 Alexander Capital Corporation Equipment under lease
7/28/2006 OH00104867405 UCC1 AT&T Capital Services, Inc. Equipment under lease
7/28/2006 OH00104872466 UCC1 AT&T Capital Services, Inc. Equipment under lease
7/28/2006 OH00104872577 UCC1 AT&T Capital Services, Inc. Equipment under lease
8/3/2006 20062160472 AMEND Merrill Lynch Capital Equipment under lease
8/8/2006 OH00105309191 UCC1 Alexander Capital Corporation Equipment under lease
8/8/2006 OH00105309202 UCC1 Alexander Capital Corporation Equipment under lease
8/8/2006 OH00105309313 UCC1 Alexander Capital Corporation Equipment under lease
8/8/2006 OH00105309424 UCC1 Alexander Capital Corporation Equipment under lease
8/11/2006 20062260764 ASGN Bank Financial, F.S.B. Equipment under lease
8/11/2006 20062260762 ASGN Bank Financial, F.S.B. Equipment under lease
8/11/2006 20062260760 ASGN Bank Financial, F.S.B. Equipment under lease
8/11/2006 20062260758 ASGN Bank Financial, F.S.B. Equipment under lease
8/11/2006 OH00105422151 UCC1 Meridian Leasing Corporation Equipment under lease
TYPE OF
FILING DATE FILE NUMBER FILING SECURED PARTY DESCRIPTION OF COLLATERAL
- -------------- -------------- ------- ----------------------------------------------------------- ------------------------------
8/14/2006 OH00105449581 UCC1 AT&T Capital Services, Inc. Equipment under lease
8/14/2006 OH00105451738 UCC1 AT&T Capital Services, Inc. Equipment under lease
8/15/2006 20062280704 ASGN Alexander Capital Corporation Equipment under lease
8/15/2006 20062280706 ASGN Alexander Capital Corporation Equipment under lease
8/17/2006 20062290672 AMEND D.L. Peterson trust Equipment under lease
9/5/2006 OH00106227976 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
9/5/2006 OH00106227865 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
9/6/2006 20062490796 AMEND De Lage Landen Financial Services, Inc. Equipment under lease
9/6/2006 20062490792 AMEND De Lage Landen Financial Services, Inc. Equipment under lease
9/6/2006 OH00106275674 UCC1 Commonwealth Capital Corp. Accounts, Inventory,
Equipment, etc.
9/6/2006 OH00106276020 UCC1 Commonwealth Capital Corp. Accounts, Inventory,
Equipment, etc.
9/6/2006 OH00106278599 UCC1 Commonwealth Capital Corp. Accounts, Inventory,
Equipment, etc.
9/6/2006 OH00106279490 UCC1 Commonwealth Capital Corp. Accounts, Inventory,
Equipment, etc.
9/13/2006 OH00106544554 UCC1 Alexander Capital Corporation Equipment under lease
9/13/2006 OH00106544665 UCC1 Alexander Capital Corporation Equipment under lease
9/15/2006 OH00106644900 UCC1 Commonwealth Capital Corp. Accounts, Inventory,
Equipment, etc.
9/15/2006 OH00106645467 UCC1 Commonwealth Capital Corp. Accounts, Inventory,
Equipment, etc.
9/15/2006 OH00106649516 UCC1 Commonwealth Capital Corp. Accounts, Inventory,
Equipment, etc.
9/29/2006 20062720762 ASGN IBM Credit LLC Equipment under lease
10/23/2006 OH00107972512 UCC1 Meridian Leasing Corporation Equipment under lease
10/25/2005 OH00107977895 UCC1 Chesapeake Funding LLC Equipment under lease
11/1/2006 OH00108292248 UCC1 Cisco Systems Capital Corporation Equipment under lease
11/16/2006 20063200480 AMEND Chesapeake Funding LLC Equipment under lease
11/20/2006 OH00109084359 UCC1 CSA Financial Corporation Equipment under lease
11/21/2006 OH00109137897 UCC1 General Electric Capital Corporation Property and equipment
12/11/2006 OH00109825836 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
12/22/2006 OH00110214096 UCC1 CIT Financial USA, Inc. Equipment under lease
12/27/2006 20063610736 AMEND Chesapeake Funding LLC Equipment under lease
1/2/2007 20070040326 AMEND Wilmington Trust Company Accounts, Inventory,
Equipment, etc.
1/2/2007 20070040324 AMEND Wilmington Trust Company Accounts, Inventory,
Equipment, etc.
1/2/2007 20070040322 AMEND JPMorgan Chase Bank Accounts, Inventory,
Equipment, etc.
1/2/2007 20070040320 AMEND JPMorgan Chase Bank Accounts, Inventory,
Equipment, etc.
1/2/2007 20070040318 AMEND JPMorgan Chase Bank Accounts, Inventory,
Equipment, etc.
1/2/2007 20070040316 AMEND Deutsche Bank Trust Company Americas Accounts, Inventory,
Equipment, etc.
1/19/2007 OH00111131869 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
1/19/2007 OH00111131970 UCC1 Ontario Credit Corporation Accounts, Inventory,
Equipment, etc.
TYPE OF
FILING DATE FILE NUMBER FILING SECURED PARTY DESCRIPTION OF COLLATERAL
- -------------- -------------- ------- ----------------------------------------------------------- ------------------------------
2/5/2007 OH00111657459 UCC1 CSA Financial Corporation Equipment under lease
2/12/2007 OH00111863113 UCC1 Chesapeake Funding LLC Equipment under lease
2/22/2007 OH00112157743 UCC1 EMC Corporation Equipment under lease
3/5/2007 OH00112544300 UCC1 General Electric Capital Corporation Equipment under lease
3/5/2007 OH00112544522 UCC1 General Electric Capital Corporation Equipment under lease
3/5/2007 OH00112544633 UCC1 General Electric Capital Corporation Equipment under lease
3/5/2007 OH00112544855 UCC1 General Electric Capital Corporation Equipment under lease
3/19/2007 20070780164 AMEND Chesapeake Funding LLC Equipment under lease
3/23/2007 OH00113192748 UCC1 Zeon Chemicals L.P. Equipment under lease
Annex B
to Schedule 6.06
1
GOODYEAR CANADA INC. - LIST OF PPSA (ALBERTA) REGISTRATIONS
DATE SEARCHED: APRIL 18, 2007
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- -------------------- --------------------- -------------------- --------------------------------------------- -------------
Goodyear Canada Inc. PHH Vehicle 98060125253 Various motor vehicles June 1, 2008
Management Services 03021007327
Inc. (amendment)
03042803910
(amendment)
03051428989
(renewal)
04032201487
(amendment)
04061003135
(amendment)
04090123276
(amendment)
05101926805
(amendment)
06053102072
(amendment)
06082819886
(amendment)
Goodyear Canada Inc. Imperial Oil 94011715854 Inventory January 17, 2019
04010817627 Proceeds: All present and after-acquired
(amendment & personal property of the debtor of whatever
renewal) description or kind.
Imperial Oil Limited
McColl-Frontenac
Petroleum Inc. THIS REGISTRATION IS
LISTED TWICE IN THE
Imperial Oil, a SEARCH RESULTS.
Partnership of
Imperial Oil
2
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- -------------------- --------------------- -------------------- --------------------------------------------- ------------------
Goodyear Canada Inc. Onset Capital 04091432015 Various equipment September 14, 2010
Corporation
Goodyear Canada Inc. Neon Products Ltd. 97080506682 Various signage August 5, 2007
Goodyear Canada Inc. Neon Products Ltd. 98022605111 Various signage February 26, 2008
Goodyear Canada Inc. Neon Products Ltd. 98022604940 Various signage February 26, 2008
Goodyear Canada Inc. Neon Products Ltd. 98022605467 Various signage February 26, 2008
Goodyear Canada Inc. Neon Products Ltd. 99030904793 Various signage March 9,2009
Goodyear Canada Inc. Neon Products 99030904835 Various signage March 9,2008
Goodyear Canada Inc. Dell Financial 99072707732 Various computer equipment Proceeds: All July 27, 2008
Services Canada Ltd. present and after-acquired personal property
Goodyear Canada Inc. Neon Products Ltd. 00011805918 Various signage January 18, 2010
Goodyear Canada Inc. Neon Products 00121901771 Various signage December 19, 2010
Goodyear Canada Inc. Neon Products 00121902027 Various signage December 19, 2010
Goodyear Canada Inc. IBM Canada Ltd. 01020513022 All present and after-acquired goods supplied February 5, 2008
05012615513 by the secured party, including without
(renewal) limitation, all office machines, office
equipment, computer hardware, software and
ancillary products supplied by the secured
party, and all proceeds therefrom regardless
of the form of the proceeds.
Goodyear Canada Inc. Pattison Sign Group 02091813002 Various signage September 18, 2012
Goodyear Canada Inc. JP Morgan Chase Bank, 03032019329 All of the debtor's present and after- March 20, 2008
N.A. 04081908230 acquired right, title and interest in the
(amendment) "ABL Facilities Collateral" which is defined.
05040614926
(amendment)
Goodyear Canada Inc. Praxair Canada Inc. 03031709110 Various equipment March 17, 2009
03041524863
(amendment)
Goodyear Canada Inc. Pattison Sign Group 03051632663 Various signage May 16, 2003
Goodyear Canada Inc. Blanchette Neon 04010701813 Various signage January 7, 2009
Limited
Goodyear Canada Inc. Pattison Sign Group 04020427508 Various signage February 4, 2014
Goodyear Canada Inc. Wilmington Trust 04030923116 All of the debtor's present and after- March 9, 2014
Company acquired right, title and interest in the
"Current Assets Collateral" which is defined.
Goodyear Canada Inc. Pattison Sign Group 04052836253 Various signage May 28, 2014
Goodyear Canada Inc. JP Morgan Chase Bank, 04081120919 All of the debtor's present and after- August 11, 2009
N.A. 04081908446 acquired right, title and interest in the
"ABL Facilities Collateral" which is defined.
3
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- -------------------- --------------------- -------------------- --------------------------------------------- ------------------
(amendment)
05040614967
(amendment)
Goodyear Canada Inc. CSI Leasing Canada 04082305717 Various equipment August 23, 2009
Ltd.
Goodyear Canada Inc. Pattison Sign Group 04110130319 Signage as per contracts LGY101900 and LGY November 1, 2014
101910 located at Fountain Tire Leduc 7126
Sparrow Drive, Leduc, AB T9E 8A5
Goodyear Canada Inc. CSI Leasing Canada 04110507201 Various equipment November 5, 2009
Ltd.
Goodyear Canada Inc. CSI Leasing Canada 04121616488 Various equipment December 16, 2009
Ltd.
Goodyear Canada Inc. General Electric 04122017991 Various motor vehicles December 20, 2007
Capital Leaseholder
CDA Inc.
Goodyear Canada Inc. JPMorgan Chase Bank, 05040703901 All of the debtor's present and after- April 7, 2010
N.A. acquired right, title and interest in the
following property: Refer to search.
Goodyear Canada Inc. Deutsche Bank Trust 05040703943 All of the debtor's present and after- April 7, 2010
Company Americas acquired right, title and interest in the
following property: Refer to search.
Goodyear Canada Inc. Wilmington Trust 05040703976 All of the debtor's present and after- April 7, 2010
Company acquired right, title, and interest in the
following property: Refer to search.
Goodyear Canada Inc. CSI Leasing Canada 05061023932 (1) Infocu LP70 projector, serial number June 10, 2010
Ltd. ACAN40900345 (including all repairs,
accessories and replacements) leased to
lessee pursuant to equipment schedule seven
to master lease 190760 between the parties.
Equipment location: 20 Meadow Court,
Cochrane, Alberta T4C 1N5
Goodyear Canada Inc. Pattison Sign Group 05061437801 Signage as per contract 1GY100310 located June 14, 2015
at Fountain Tire Northland 4911 Northland
Drive NW, Calgary, AB T2L 2K3
Goodyear Canada Inc. Pattison Sign Group 05122211310 Signage as per contract 1TN192250 December 22, 2015
Goodyear Canada Inc. Pattison Sign Group 05122211393 Signage as per contracts LGY101950 and December 22, 2015
LGY101960 located at Fountain Tire Westlock
10843 100th Street, Westlock, AB T7P 2S2
Goodyear Canada Inc. Pattison Sign Group 06041737120 Signage as per contract LGY101990 located at April 17, 2016
Fountain Tire 13450 97th Street NW, Edmonton,
AB T5E 4E1
Goodyear Canada Inc. Pattison Sign Group 06092622452 Signage as per contract LGY101970 located September 26, 2016
at Fountain Tire (Woodbine) Calgary, Alberta
Goodyear Canada Inc. Pattison Sign Group 06092622742 Signage as per contract LGY102020 located at September 26, 2016
Fountain Tire (Redcliff) 206 Dirkson Road NE,
Redcliff, Alberta
Goodyear Canada Inc. Goodyear Engineered 06120823239 All of the debtor's right of title and December 8, 2016
Products Canada Inc. interest in a general security agreement
dated December 9, 1991 granted by Belterra
Corporation, formerly know as Northern
Belting Co. Ltd. to the debtor, such general
4
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- -------------------- --------------------- -------------------- --------------------------------------------- ------------------
SECURITY AGREEMENT ASSIGNED BY THE DEBTOR
TO THE SECURED PARTY.
GOODYEAR ENGINEERED PRODUCTS CANADA INC. PRODUITS D'INGENIERIE
GOODYEAR CANADA INC.
GOODYEAR ENGINEERED PRODUCTS CANADA INC.
PRODUITS D'INGENIERIE GOODYEAR CANADA INC.
PRODUITS D'INGENIERIE GOODYEAR CANADA INC. GOODYEAR ENGINEERED
PRODUCTS CANADA INC.
- LIST OF PPSA (ALBERTA) REGISTRATIONS
DATE SEARCHED: APRIL 18, 2007
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- -------------------- --------------------- -------------------- --------------------------------------------- ------------------
Goodyear Engineered PHH Vehicle 06111504178 All present and future motor vehicles November 15, 2011
Products Canada Inc. Management Services (including, without limitation, passenger
Inc. automobiles, vans, trucks, truck-tractors,
07041600839 truck-trailers, truck-chassis and truck
Produits (amendment) bodies), automotive equipment (including,
D'Ingenierie without limitation, trailers, boxes and
Goodyear Canada Inc. refrigeration units), material-handling
equipment and other goods (whether similar or
Goodyear Engineered dissimilar to the foregoing) leased from time
Products Canada to time by the secured party to the debtor,
Inc./Produits together with in each case, all present and
D'Ingenierie future parts, attachments, accessories and
Goodyear Canada Inc. accessions attached thereto or installed
therein, and all proceeds as defined below)
Produits or of relating to any of the foregoing.
D'Ingenierie Proceeds: all proceeds of any of the above
Goodyear Canada collateral in any form (including, without
Inc./Goodyear limitation, goods, documents of title,
Engineered Products chattel paper, securities, instruments,
Canada Inc money and intangibles (as each such term is
defined in the Personal Property Security
Act) derived directly or indirectly from any
dealing with any of the above collateral or
any proceeds therof.
2007 Ford Explorer
5
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- -------------------- --------------------- -------------------- --------------------------------------------- ------------------
VIN: 1FMEU73E67UB20443
2007 Ford Explorer
VIN: 1FMEU73E87UB20444
2005 Ford Explorer
VIN: 1FMZU72K95UB83090
2004 Ford Explorer
VIN: 1FMEU73E46UA87019
GOODYEAR CANADA INC. - LIST OF PPSA (BRITISH COLUMBIA) REGISTRATIONS
DATE SEARCHED: APRIL 18, 2007
BASE
REGISTRATION REGISTRATION
DEBTOR SECURED PARTY NUMBER CONTROL NUMBER GENERAL COLLATERAL DESCRIPTION LENGTH (YEARS) EXPIRY
- -------------------- ------------------- ------------ -------------- ------------------------------ -------------- -----------
Goodyear Canada Inc. Neon Products Ltd. 7206354 B2459218 Double faced pylon, size 3'6"x 11 August 25,
l7'9", reading "Goodyear"; 2008
located at 525 North Road,
Coquitlam, B.C.
Goodyear Canada Inc. PHH Vehicle 7682563 B2771167 5 June 1,
Management Services 875395A B5137144 See search. 2008
Inc. (amendment)
037002B B5304128
(renewal)
602423B B5887842
(amendment)
690986C B701682
(amendment)
038961D B7369301
(addition of
6
BASE
REGISTRATION REGISTRATION
DEBTOR SECURED PARTY NUMBER CONTROL NUMBER GENERAL COLLATERAL DESCRIPTION LENGTH (YEARS) EXPIRY
- -------------------- ------------------- ------------ -------------- ------------------------------ -------------- -----------
collateral)
204913D B7504184
(amendment)
Goodyear Canada Inc. Dell Financial 8382228 B3263975 See search. 5 July 27,
Services Canada 176408B B5447795 2008
(renewal)
Goodyear Canada Inc. Neon Products Ltd. 8469451 B3331966 See search. 10 September
20, 2009
Goodyear Canada Inc. Neon Products Ltd. 8734506 B3543986 See search. 10 February
23, 2010
Goodyear Canada Inc. Neon Products Ltd. 8734900 B3544247 See search. 11 February
23, 2011
Goodyear Canada Inc. Neon Products Ltd. 9268108 B3972947 See search. 9 January 17,
2010
Goodyear Canada Inc. Neon Products Ltd. 9268126 B3972968 See search. 9 January 17,
2010
Goodyear Canada Inc. Neon Products Ltd. 033929A B4370066 See search. 10 October 26,
2011
Goodyear Canada Inc. Pattison Sign 524786B B5807659 Signage as per contract 10 February 9,
Group, A division LGY101880 located at Fountain 2014
of Jim Pattison Tire, PO Box 619, 150 Mile
Industries Ltd. House, BC
Goodyear Canada Inc. Pattison Sign 651257B B5938328 Signage as per contract 10 April 19,
Group, A Division LGY101890 located at 4931 2014
of Jim Pattison Wellington Road, Nanaimo, BC
Industries Ltd. V9T 2H5
Goodyear Canada Inc. Pattison Sign 651278B B5938352 Signage as per contracts 10 April 19,
Group, A Division LGY100391 and LGY100481 2014
of Jim Pattison located at Fountain Tire, 610
Industries Ltd. Herald St., Victoria, BC V8W
1S7
Goodyear Canada Inc. Pattison Sign 034861C B6334277 Signage as per contract 10 November
Group, A Division LGY101920 located at Fountain 11, 2014
of Jim Pattison Tire 690 Lansdowne St.,
Industries Ltd. Kamloops, BC V2C 1Y4
Goodyear Canada Inc. Pattison Sign 034921C B6334338 Signage as per contract 10 November
Group, A Division LGY618310 located at Costal 11, 2014
of Jim Pattison Tire 1498 Burton Road,
Industries Ltd. Gibsons, BC V0N 1V2
Goodyear Canada Inc. Pattison Sign 343930C B6652983 Signage as per contract 10 May 12,2015
Group, A Division LGY101940 located at Fountain
of Jim Pattison Tire, 1039 Great Street,
Industries Ltd. Prince George, BC V2N 2K8
Goodyear Canada Inc. Pattison Sign 948827C B7276360 Signage as per contract 10 April 17,
Group, A Division LGY658730 located at Fountain 2016
of Jim Pattison Tire, 100 Pine Crest Road,
Industries Ltd. Quesnel, BC V2J 5W6
7
BASE
REGISTRATION REGISTRATION
DEBTOR SECURED PARTY NUMBER CONTROL NUMBER GENERAL COLLATERAL DESCRIPTION LENGTH (YEARS) EXPIRY
- -------------------- ------------------- ------------ -------------- ------------------------------ -------------- -----------
Goodyear Canada Inc. Pattison Sign 130530D B7463538 Signage as per contract 10 July 19,
Group, A Division LGYI02000 located at Fountain 2016
of Jim Pattison Tire, BC Store, Quesnel, BC
Industries Ltd.
Goodyear Canada Inc. Pattison Sign 526376D B7871006 Signage as per contract 10 February
Group, A Division LGW666910 located at Fountain 27, 2017
of Jim Pattison Tire, 45960 Airport Road,
Industries Ltd. Chilliwack, BC V2P 1A2
Goodyear Canada Inc. Pattison Sign 526401D B7871047 Signage as per contract 10 February
Group, A Division LGW670970 located at Fountain 27, 2017
of Jim Pattison Tire, 1620 Tamarac Street,
Industries Ltd. Campbell River, BC V9W 3M6
GOODYEAR ENGINEERED PRODUCTS CANADA INC.
PRODUITS D'INGENIERIE GOODYEAR CANADA INC.
- LIST OF PPSA (BRITISH COLUMBIA) REGISTRATIONS
DATE SEARCHED: APRIL 18, 2007
BASE
REGISTRATION REGISTRATION
DEBTOR SECURED PARTY NUMBER CONTROL NUMBER GENERAL COLLATERAL DESCRIPTION LENGTH (YEARS) EXPIRY
- -------------------- ------------------- ------------ -------------- ------------------------------ -------------- -----------
Goodyear Engineered PHH Vehicle 349504D B7689009 All present and future motor 5 November
Products Canada Inc. Management Services 613559D B7960869 vehicles (including, without 15, 2011
Inc. (amendment) limitation, passenger
automobiles, vans, trucks,
Produits D'Ingeniere truck-tractors, truck-
Goodyear Canada Inc. trailers, truck-chassis and
truck bodies), automotive
equipment (including, without
limitation, trailers, boxes
and refrigeration units),
materials-handling equipment
and other goods (whether
similar or dissimilar to the
foregoing) leased from time to
time by the Secured Party to
the Debtor, together with in
each case, all present and
8
BASE
REGISTRATION REGISTRATION
DEBTOR SECURED PARTY NUMBER CONTROL NUMBER GENERAL COLLATERAL DESCRIPTION LENGTH (YEARS) EXPIRY
- -------------------- ------------------- ------------ -------------- ------------------------------ -------------- -----------
future parts, attachments,
accessories and accessions
attached thereto or installed
therein, and all proceeds (as
defined below) of or relating
to any of the foregoing.
Proceeds: All proceeds of any
of the above collateral in any
form (including, without
limitation, goods, documents
of title, chattel paper,
securities, instruments, money
and intangibles (as each such
term is defined in the
Personal Property Security
Act)) derived directly or
indirectly from any dealing
with any of the above
collateral or any proceeds
thereof.
Motor Vehicle Description:
2004 Ford Explorer
V.I.N.: 1FMZU72K14ZA64371
GOODYEAR ENGINEERED PRODUCTS CANADA INC. PRODUITS D'INGENIERIE
GOODYEAR CANADA INC.
PRODUITS D'INGENIERIE GOODYEAR CANADA INC. GOODYEAR ENGINEERED
PRODUCTS CANADA INC.
- LIST OF PPSA (BRITISH COLUMBIA) REGISTRATIONS
DATE SEARCHED: APRIL 18, 2007
No registrations found.
9
GOODYEAR CANADA INC. - LIST OF PPSA (MANITOBA) REGISTRATIONS DATE
SEARCHED: APRIL 18, 2007
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- -------------------- --------------------- -------------------- --------------------------------------------- ------------------
Goodyear Canada Inc. Pattison Sign Group, 200522797900 Signage as per contract 1TN192260 located at December 20, 2015
A Division of Jim 11 Fultz Blvd., Winnipeg, Manitoba R3Y 1G4
Pattison Industries
Ltd.
Goodyear Canada Inc. CSI Leasing 200506806908 (2) Lexmark E332TN Laser Printers, serial January 31, 2010
Canada Ltd. numbers S380DRWZ and S380DRXW, and (1)
Lexmark 4227 Plus Forms 4227
Plus Dot Matrix Printer, serial number
S2729717, (including all repairs,
accessories, accessions and replacements)
leased to Lessee pursuant to Equipment
Schedule Six to Master Lease No. 190760
between the parties
Equipment Location: 11 Fultz Blvd; Fort
Garry, MB R37 1G4
Goodyear Canada Inc. Pattison Sign Group, 200402060700 Signage as per contract LGY101840 located at February 9, 2014
A Division of Jim Fountain Tire, 103 Main Street North, Gilbert
Pattison Industries Plains, MB ROL 0X0
Ltd.
Goodyear Canada Inc. Pattison Sign Group, 200309915908 Signage as per contract LGY 101320 located at May 15, 2007
A Division of Jim Neepawa Tire, Hwy. #4, Neepawa, Manitoba ROJ
Pattison Industries 1HO
Ltd.
Goodyear Canada Inc. Pattison Sign Group, 200300584607 Signage as per contract LGY 101610 located at January 10, 2010
A Division of Jim Wes's Tire, 215 Main Street, Carman, MB ROG
Pattison Industries OJO
Ltd.
Goodyear Canada Inc. Pattison Sign Group, 200300559602 Signage as per contracts LGY 101310, LGY January 9, 2013
A Division of Jim 101820 & LGY 101830 located at Pitre Tire,
Pattison Industries 134 17th Street, The Pas, MB R9A 1K3
Ltd.
Goodyear Canada Inc. IBM Canada Limited 200124303507 All present and after-acquired goods supplied July 16, 2008
200511230712 by the secured party, including without
(amendment) limitation, all office machines, office
equipment, computer hardware, software and
ancillary products supplied by the secured
party, and all proceeds therefrom regardless
of the form of the proceeds.
10
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- -------------------- --------------------- -------------------- --------------------------------------------- ------------------
Goodyear Canada Inc. Wilmington Trust 200505425200 See search for description. April 6, 2010
Company
Goodyear Canada Inc. Deutsche Bank Trust 200505425005 See search for description. April 6, 2010
Company Americas 200505560611
(amendment)
Goodyear Canada Inc. JPMorgan Chase Bank, 200505424602 See search for description. April 6, 2010
N.A.
Goodyear Canada Inc. JPMorgan Chase Bank, 200414407403 See search for description. August 12, 2009
N.A. 200414836312
(amendment)
200505403117
(amendment)
Goodyear Canada Inc. Wilmington Trust 200403857601 See search for description. March 9, 2014
Company 200415300114
(amendment)
Goodyear Canada Inc. JPMorgan Chase Bank, 200305452407 See search for description. March 20, 2008
N.A. 200505403516
(amendment)
200414841014
(amendment)
Goodyear Canada Inc. Neon Products 200205187900 One(l)3'xl2' display March 31, 2010
Russell Tire
Goodyear Canada Inc. Neon Products 200117352705 One double face pylon 5'xl8' display, one October 31, 2007
single faced 3'xl2' display
Russell Tire
Goodyear Canada Inc. Neon Products 200117352403 One single face 3'xl2' display March 31, 2008
Killarney Tire
Goodyear Canada Inc. Pattison Sign Group 991004105555 One (1) 24'x3' horizontal display May 31, 2009
GP Tire 200220668214
(amendment)
Goodyear Canada Inc. Dell Financial 990728106549 See search for description. July 28, 2010
Services Canada Ltd. 200315735814
(amendment)
11
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- -------------------- --------------------- -------------------- --------------------------------------------- ------------------
200119506416
(amendment)
Goodyear Canada Inc. PHH Vehicle 980602108559 See search for description. June 2, 2011
Management Services 200706352316
Inc. (amendment)
200608639917
(amendment)
200520581811
(amendment)
200409227510
(amendment)
200404623914
(amendment)
200302703719
(amendment)
200204409616
(amendment)
200119479613
(amendment)
200001160515
(amendment)
000802102682
(amendment)
990302101540
(amendment)
12
GOODYEAR ENGINEERED PRODUCTS CANADA INC. PRODUITS D'INGENIERIE
GOODYEAR CANADA INC.
GOODYEAR ENGINEERED PRODUCTS CANADA INC.
PRODUITS D'INGENIERIE GOODYEAR CANADA INC.
PRODUITS D'INGENIERIE GOODYEAR CANADA INC. GOODYEAR ENGINEERED
PRODUCTS CANADA INC.
- LIST OF PPSA (MANITOBA) REGISTRATIONS
DATE SEARCHED: APRIL 18, 2007
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- -------------------- --------------------- -------------------- --------------------------------------------- ------------------
Goodyear Engineered PHH Vehicle 200620776105 All present and future motor vehicles November 12, 2011
Products Canada Inc. Management Services 200706358918 (including, without limitation, passenger
Inc. (amendment) automobiles, vans, trucks, truck-tractors,
truck-trailers, truck-chassis and truck
Produits bodies), automotive equipment (including,
D'Ingenierie without limitation, trailers, boxes and
Goodyear Canada Inc. refrigeration units), materials-handling
equipment and other goods (whether similar or
Goodyear Engineered dissimilar to the foregoing) leased from time
Products Canada to time by the Secured Party to the Debtor,
Inc. / together with in each case, all present and
Produits future parts, attachments, accessories and
D'Ingenierie accessions attached thereto or installed
Goodyear Canada Inc. therein, and all proceeds (as defined below)
of or relating to any of the foregoing.
Produits Proceeds: All proceeds of any of the above
D'Ingenierie collateral in any form (including, without
Goodyear Canada limitation, goods, documents of title,
Inc. / chattel paper, securities, instruments, money
Goodyear Engineered and intangibles (as each such term is defined
Products Canada Inc. in the Personal Property Security Act)}
derived directly or indirectly from any
dealing with any of the above collateral or
any proceeds thereof.
Motor Vehicle Description:
2004 Ford Explorer
V.I.N.: 1FMZU72K64ZA80534
2005 Ford Explorer
V.I.N.: 1FMZU72K65UB83077
2007 Ford Explorer
V.I.N.: 1FMEU73E77UA57000
13
GOODYEAR CANADA INC. - LIST OF PPSA (NEW BRUNSWICK) REGISTRATIONS
DATE SEARCHED: APRIL 18, 2007
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- -------------------- --------------------- -------------------- --------------------------------------------- ------------------
Goodyear Canada Inc. Dell Financial 4983744 All Dell computer equipment and peripherals July 27, 2008
Services Canada 9961543 wherever located heretofore or hereafter
Limited (renewal) leased to Debtor by Secured Party pursuant to
a mater lease agreement no. 76467 together
with all substitutions, additions, accessions
and replacements thereto and thereof now and
hereafter installed in, affixed to, or used
in conjunction with such equipment and
proceeds thereof together with all rental or
instalment payments, insurance proceeds,
other proceeds and payments due or to become
due and arising from or relating to such
equipment. Proceeds: all present and after-
acquired personal property.
Goodyear Canada Inc. PHH Vehicle 3571548 All present and future motor vehicles June 1, 2008
Management 9308377 (amendment) (including, without limitation, passenger
Services Inc. 9675425 (renewal) automobiles, trucks, truck tractors, truck
10767101 (amendment) trailers, truck chassis or bodies),
12841284 (amendment) automotive equipment (including, without
limitation, trailers, boxes and refrigeration
units) and materials-handling equipment
leased from time to time by the Secured Party
to the Debtor, together with all present and
future attachments, accessions,
appurtenances, accessories and replacement
parts and all proceeds of or relating to the
foregoing.
Serial Numbered Collateral
2004 Ford Freestar
V.I.N. 2FMZA55214BA98158
2005 Ford Explorer
V.I.N. 1FMZU72K45UB24061
14
2005 Ford Freestyle
V.I.N. 1FMZK04145GA75721
GOODYEAR ENGINEERED PRODUCTS CANADA INC. PRODUITS D'INGENIERIE
GOODYEAR CANADA INC.
GOODYEAR ENGINEERED PRODUCTS CANADA INC.
PRODUITS D'INGENIERIE GOODYEAR CANADA INC.
PRODUITS D'INGENIERIE GOODYEAR CANADA INC. GOODYEAR ENGINEERED
PRODUCTS CANADA INC.
- LIST OF PPSA (NEW BRUNSWICK) REGISTRATIONS
DATE SEARCHED: APRIL 18, 2007
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- -------------------- --------------------- -------------------- --------------------------------------------- ------------------
Goodyear Engineered PHH Vehicle 14237432 All present and future motor vehicles November 15, 2011
Products Canada Inc. Management Services (including, without limitation, passenger
Inc. automobiles, vans, trucks, truck-tractors,
truck-trailers, truck-chassis and truck
Produits bodies), automotive equipment (including,
D'Ingenierie without limitation, trailers, boxes and
Goodyear Canada Inc. refrigeration units), materials-handling
equipment and other goods (whether similar or
Goodyear Engineered dissimilar to the foregoing) leased from time
Products Canada Inc. / to time by the Secured Party to the Debtor,
Produits together with in each case, all
D'Ingenierie present and future parts, attachments,
Goodyear Canada Inc. accessories and accessions attached thereto
or installed therein, all all proceeds (as
Produits defined below) or of relating to any of the
D'Ingenierie foregoing. Proceeds: All proceeds of any of
Goodyear Canada the above collateral in any form (including,
Inc. / without limitation, goods, documents of
Goodyear Engineered title, chattel paper, securities,instruments,
Products Canada Inc. money and intangibles (as each such term is
defined in the Personal Property Security
Act}) derived directly of indirectly from any
dealing with any of the above collateral or
any proceeds thereof.
16
GOODYEAR ENGINEERED PRODUCTS CANADA INC. PRODUITS D'INGENIERIE
GOODYEAR CANADA INC.
GOODYEAR ENGINEERED PRODUCTS CANADA INC.
PRODUITS D'INGENIERIE GOODYEAR CANADA INC.
PRODUITS D'INGENIERIE GOODYEAR CANADA INC. GOODYEAR ENGINEERED
PRODUCTS CANADA INC.
- LIST OF PPSA (NEWFOUNDLAND) REGISTRATIONS
DATE SEARCHED: APRIL 18, 2007
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- -------------------- --------------------- -------------------- --------------------------------------------- ------------------
Goodyear Engineered PHH Vehicle 5341622 All present and future motor vehicles November 15, 2011
Products Canada Inc. Management Services (including, without limitation, passenger
Inc. automobiles, vans, trucks, truck-tractors,
truck-trailers, truck-chassis and truck
Produits bodies), automotive equipment (including,
D'Ingenierie without limitation, trailers, boxes and
Goodyear Canada Inc. refrigeration units), materials-handling
equipment and other goods (whether similar or
Goodyear Engineered dissimilar to the foregoing) leased from time
Products Canada to time by the Secured Party to the Debtor,
Inc./ together with, in each case, all present and
Produits future parts, attachments, accessories and
D'Ingenierie accessions attached thereto or installed
Goodyear Canada Inc. therein, all proceeds (as defined below) of
or relating to any of the foregoing. Proceeds:
Produits All proceeds of any of the above collateral
D'Ingenierie in any form (including, without limitation,
Goodyear Canada goods, documents of title, chattel paper,
Inc./ securities, instruments, money and
Goodyear Engineered intangibles (as each such term is defined in
Products Canada Inc. the Personal Property Security Act) derived
directly of indirectly from any dealing with
any of the above collateral or any proceeds
thereof.
15
GOODYEAR CANADA INC. - LIST OF PPSA (NEWFOUNDLAND) REGISTRATIONS
DATE SEARCHED: APRIL 18, 2007
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- -------------------- --------------------- -------------------- --------------------------------------------- ------------------
Goodyear Canada Inc. PHH Vehicle 29392 Motor Vehicles (including without limitation, January 5, 2010
Management Services 2405310 truck tractors, truck trailers, truck chasis
Inc. (amendment) or truck bodies), automotive equipment
2777588 (including without limitation, trailers,
(amendment) boxes and refrigeration units) and materials
3832151 -handling equipment leased by the Debtor from
(renewal) the Secured Party together with all
4530653 attachments, accessions, appurtances,
(amendment) accessories or replacement parts. Proceeds;
all of the Debtor's present and after
acquired personal property including, without
limitation, goods, securities, instruments,
documents of title, chattel paper,
intangibles and money.
Serial Numbered Collateral
2005 Ford Explorer
V.I.N. 1FMZU77KX5UB3180
Goodyear Canada Inc. Enseignes Pattison 5514990 One (1) Double Face Pylone measuring: 23'-l" February 22, 2017
Sign Group x 18'-0" Location: 3840 Manitoba Road,
Clarenville, NL Contract: LNF141508
17
GOODYEAR CANADA INC. - LIST OF PPSA (NOVA SCOTIA) REGISTRATIONS
DATE SEARCHED: APRIL 18, 2007
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- --------------------- ---------------------- ------------ ------------------------------------------ -----------------
Goodyear Canada Inc. Bank of Montreal 1138272 See search for description. November 13, 2008
Goodyear Canada Inc. Dell Financial 2041864 All Dell computer equipment and July 27, 2008
Services Canada 7095662 peripherals wherever located heretofore
Limited (renewal) or hereafter leased to Debtor by Secured
Party pursuant to a master lease agreement
no. 76467 together with all substitutions,
additions, accessions and replacements
thereto and thereof now and hereafter
installed in, affixed to, or used in
conjunction with such equipment and
proceeds thereof together with all rental
or instalment payments, insurance proceeds,
other proceeds and payments due or to
become due and arising from or relating to
such equipment. Proceesd: all present and
after-acquired personal property.
Goodyear Canada Inc. PHH Vehicle 6423159 All present and future motor vehicles February 10, 2008
Management Services 7966338 (including, without limitation, passenger
Inc. (amendment) automobiles, trucks, truck tractors, truck
trailers, truck chassis oro truck bodies),
automotive equipment (including, without
limitation, trailers, boxes and
refrigeration units) and
materials-handling equipment leased from
time to time by the Secured Party to the
Debtor, together with all present and
future attachments, accessions,
appurtenances, accessories and replacement
parts, and all proceeds of or relating
to any of the foregoing.
Serial Numbered Collateral
2000 Ford Explorer
V.I.N. 1FMZU72E6YZC68888
Goodyear Canada Inc. PHH Vehicle 12355 5991830 All present and future motor vehicles November 4, 2007
Management Services (renewal) (including, without limitation, passenger
Inc. 7095975 automobiles, trucks, truck tractors, truck
(amendment) trailers, truck chassis or truck bodies),
automotive equipment (including, without
18
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- --------------------- ---------------------- ------------ ------------------------------------------ -----------------
limitation, trailers, boxes and
refrigeration units) and
materials-handling equipment leased from
time to time by the Secured Party to the
Debtor, together with all present and
future attachments, accessions,
appurtenances, accessories and
replacement parts, and all proceeds of or
relating to any of the foregoing
Goodyear Canada Inc. GE Capital Vehicle 4703075 Serial Numbered Collateral October 31, 2007
and Equipment Leasing 11459922 2002 Ford F-250 4x2 SD
Inc. (renewal) V.I.N. 1FDNF20FX2EB42149
GOODYEAR ENGINEERED PRODUCTS CANADA INC. PRODUITS D'INGENIERIE
GOODYEAR CANADA INC.
GOODYEAR ENGINEERED PRODUCTS CANADA INC.
PRODUITS D'INGENIERIE GOODYEAR CANADA INC.
PRODUITS D'INGENIERIE GOODYEAR CANADA INC. GOODYEAR
ENGINEERED PRODUCTS CANADA INC.
- LIST OF PPSA (NOVA SCOTIA) REGISTRATIONS
DATE SEARCHED: APRIL 18,2007
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- --------------------- ---------------------- ------------ ------------------------------------------ -----------------
Goodyear Engineered PHH Vehicle 11764958 All present and future motor vehicles November 15, 2011
Products Canada Inc. Management Services 12294344 (including, without limitation, passenger
Inc. (amendment) automobiles, vans, trucks, truck-
tractors, truck-trailers, truck-chassis
Produits D'lngenierie and truck bodies), automotive equipment
Goodyear Canada Inc. (including, without limitation, trailers,
boxes and refrigeration units),
materials-handling equipment and other
Goodyear Engineered goods (whether similar or dissimilar to
Products Canada Inc. / the foregoing) leased from time to time by
Produits D'lngenierie the Secured Party to the Debtor, together
Goodyear Canada Inc. with in each case, all present and future
parts, attachments, accessories and
accessions attached thereto or installed
therein, all proceeds (as defined
19
Produits D'Ingenierie below) of or relating to any of the
Goodyear Canada Inc. / foregoing. Proceeds: All proceeds of any
Goodyear Engineered of the above collateral in any form
Products Canada Inc. (including, without limitation, goods,
documents of title, chattel paper,
securities, instruments, money and
intangibles (as each such term is defined
in the Personal Property Security Act)
derived directly of indirectly from any
dealing with any of the above collateral
or any proceeds therof.
Motor Vehicle Description:
2005 Ford Explorer
V.I.N.: 1FMZU72K45UB24061
GOODYEAR CANADA INC. - LIST OF PPSA (ONTARIO) REGISTRATIONS
FILE CURRENCY DATE: APRIL 16, 2007
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ------------------------ ------------------ -------------------- ---------------
Hewlett-Packard Financial 633095442 20070227 1436 8077 0443 Equipment, Other Lease Agreement. Any 4 years
Services Canada Company and all equipment,
tangible and Expiry:
intangible, pursuant February 27,
to Lease No. 80034, 2011
and all amounts
owing thereunder
Pattison Sign Group, a Division 633095982 20070227 1535 2073 2377 Equipment, Other Signage as per 5 years
of Jim Pattison Industries Ltd. contract LGC194000
Expiry:
February 27,
2012
Pattison Sign Group, a Division 632582298 20070202 1519 2073 2366 Equipment, Other Signage as per 10 years
of Jim Pattison Industries Ltd. contract 2GY183430
located at CD A Hose Expiry:
Plant 101 Mountain February 2,
Road, Collingwood, 2017
Ontario
20
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ------------------------ ------------------ -------------------- ---------------
L9Y 3Z9
Citicorp Vendor Finance, Ltd. 631622313 20061221 1156 1862 6726 Equipment, Yes. Refer to 2 years
20061227 1555 1862 6972 Other, Motor search.
20070115 1202 1862 7985 Vehicle Included Expiry:
December 21,
2008
Citicorp Vendor Finance, Ltd. 630829224 20061123 1018 1862 4447 Equipment, Other, Yes. Refer to search 4 years
Motor Vehicle
Included Expiry:
November 23,
2010
Pattison Sign Group, a Division of 628918749 20060914 1636 2073 2341 Equipment, Other Signage as per 10 years
Jim Pattison Industries Ltd. contract LGY661910
located at Royal Expiry:
Tire, 450 2nd Avenue September 14,
North, Sudbury, 2016
Ontario P3B 4A4
Tandet Nationalease Ltd. 628928721 20060914 1944 1531 3599 Inventory, This registration 7 years
Equipment, Motor covers the units
Vehicle Included listed along with Expiry:
all attachments September 14,
thereto and the 2013
associated lease
agreement and
insurance policies
and proceeds
thereof. Complete
description of
serial collateral
should read as 2007
Kenworth T800 TS
Sleeper w crane S/N
1XKDDB9X27J930959
Motor Vehicle
21
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ------------------------ ------------------ -------------------- ---------------
Description:
2007 Kenworth T800
TA Sleeper
V.I.N.:
1XKDDB9X27J930959
National Leasing Group Inc. 628516053 20060831 1619 6005 0050 Equipment All floor sweeper of 4 years
20070215 1414 6005 2110 every nature or kind
described in lease Expiry:
number 2342720 August 31,
between the secured 2010
party, as lessor
and the debtor as
lessee, as amended
from time to time,
together with all
attachments,
accessories
and substitutions.
TRANSFER BY DEBTOR
WAS REGISTERED
FEBRUARY 15, 2007
TO TRANSFER THE
DEBTOR TO GOODYEAR
ENGINEERED PRODUCTS
CANADA INC.
PHH Vehicle Management Services 628385103 20060828 1942 1531 3570 Equipment, Other, All present and 5 years
Inc. 20060829 1949 1531 6403 Motor Vehicle future motor
20061129 1939 1531 7172 Included vehicles (including, Expiry: August
20070416 1048 1529 2952 without limitation, 28,2011
passenger
automobiles, vans,
trucks,
truck-tractors,
truck-trailers,
truck chassis, and
truck bodies),
automotive
22
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ------------------------ ------------------ -------------------- ---------------
equipment (including,
without limitation,
trailers, boxes and
refrigeration
units),
materials-handling
equipment and other
goods (whether
similar or
dissimilar) to the
foregoing) leased
from time to time by
the secured party to
the debtor, together
with, in each case,
all present and
future parts,
attachments,
accessories and
accessions attached
thereo or installed
therein, and all
proceeds of or
relating to any of
the foregoing.
An amendment was
registered August
29, 2006 to add 37
motor vehicles.
Refer to search.
An amendment was
registered November
29, 2006 to add 2
motor vehicles.
Refer to search.
An amendment was
23
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ------------------------ ------------------ -------------------- ---------------
registered April 16,
2007 to add a motor
vehicle. Refer to
search.
Pattison Sign Group, a Division of 624487644 20060421 1524 2073 2298 Equipment, Other Signage as per 10 years
Jim Pattison Industries Ltd. contract LGY656900
located at 370 Main
Street N., Brampton, Expiry: April
Ontario L6V 4A4 21, 2016
Master Lift Truck Service Inc. 624065238 20060406 1713 1462 5158 Equipment, Other, All goods supplied 6 years
Motor Vehicle by the secured party
Included pursuant to a lease Expiry: April
between the debtor 6, 2012
and the secured
party, together with
all parts and
accessories
thereto and
accessions
thereto and all
replacements or
substitutions
for such goods
and proceeds
thereof (proceeds
as defined in the
Personal Property
Security Act (ON))
and any insurance
proceeds resulting
there from.
Masterlift Truck Service Inc. 623803383 20060329 1544 1869 0303 Equipment, Other, Yes. Refer to search 5 years
Motor Vehicle
Included Expiry: March
29, 2011
BDL Capital Inc. 622191438 20060123 1420 1869 0301 Equipment, Other, Yes. Refer to search 5 years
Motor Vehicle
Description Expiry:
January 23,
2011
24
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ------------------------ ------------------ -------------------- ---------------
Pitney Bowes Global Credit Services 621712728 20060103 1608 1651 2368 Inventory, Meter, mailer, 2 years
Equipment, scale, rates, power
Accounts, Other stacker. All items Expiry: January
as listed and 3, 2008
defined under Pitney
Bowes contract
numbers 486219 &
486221.
Pattison Sign Group, a Division 621393165 20051216 1610 2073 2259 Equipment, Other Signage as per 10 years
of Jim Pattison Industries Ltd. contract LGY203170
located at 370 Expiry:
Industrial Road, December 16,
Cambridge, Ontario, 2015
N3H 5T7
National Leasing Group Inc. 620028999 20051027 1722 6005 6297 Equipment All forklifts of 6 years
every nature or kind
described in lease Expiry: October
number 2313714, 27, 2011
between the secured
party, as lessor and
the debtor as
lessee, as amended
from time to time,
together with all
attachments,
accessories and
substitutions.
Pattison Sign Group, a Division 618312024 20050826 1039 2073 2218 Equipment, Other Signage as per 10 years
of Jim Pattison Industries Ltd. contract LGY203 160
located at Expiry: August
Industrial Road, 26, 2015
Cambridge, Ontario
Pattison Sign Group, a Division 618317208 20050826 1106 2073 2219 Equipment, Other Signage as per 10 years
of Jim Pattison Industries Ltd. contract LGY203180
located at 2090 Expiry: August
Riverside Drive, 26, 2015
Timmins, Ontario,
P4R 1M9
25
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ------------------------ ------------------ -------------------- ---------------
CSI Leasing Canada Ltd. 615979494 20050610 1952 1531 7458 Equipment (1) Lexmark X634 5 years
printer, serial
number 9914RLC Expiry: June
(including all 10, 2010
repairs, accessories
and replacements)
leased to lessee
pursuant to
equipment schedule
seven to
master lease no.
190760 between the
parties. Equipment
location: 450
Kipling Avenue,
Etobicoke,
Ontario M8Z 5E1
National Leasing Group Inc. 615867318 20050608 1100 6005 4696 Equipment All photocopies of 6 years
every nature or
kind described in Expiry: June 8,
lease number 2011
2301824 between
Upper Canada Office
Systems as original
lessor and the
debtor, as lessee,
which lease was
assigned by the
original lessor
to the secured
party, as amended
from time to time,
together with all
attachments,
accessories
and substitutions.
Pattison Sign Group, A Division 615023955 20050511 1202 2073 2197 Equipment, Other Signage as per 10 years
of Jim Pattison Industries Ltd. contract LGY203150
located at Expiry: May
902A & 902B 11, 2015
Wallbridge-Loyalist
26
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ------------------------ ------------------ -------------------- ---------------
Road, Belleville,
Ontario K8N 4Z5
Deutsche bank Trust Company 613947726 20050406 0953 1590 6619 Inventory, No 5 years
Americas 20050407 1041 1590 6690 Accounts, Other
20061211 0851 1590 6756 An amendment was Expiry:
registered April 7, April 6,
2005 to amend 2010
the secured party
address.
A PARTIAL TRANSFER
WAS REGISTERED
DECEMBER 11, 2006 TO
TRANSFER THE DEBTOR
TO GOODYEAR
ENGINEERED PRODUCTS
CANADA INC. PRODUITS
D'INGENIERIE
GOODYEAR CANADA
INC., GOODYEAR
ENGINEERED PRODUCTS
CANADA INC. AND
PRODUITS
D'INGENIERIE
GOODYEAR CANADA INC.
Wilmington Trust Company 613947906 20050406 1012 1590 6620 Inventory, No 5 years
20061211 0852 1590 6757 Accounts, Other
A PARTIAL TRANSFER Expiry: April
WAS REGISTERED 6, 2010
DECEMBER 11, 2006 TO
TRANSFER THE DEBTOR
TO GOODYEAR
ENGINEERED PRODUCTS
CANADA INC. PRODUITS
D'INGENIERIE
GOODYEAR CANADA
INC., GOODYEAR
27
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ------------------------ ------------------ -------------------- ---------------
ENGINEERED PRODUCTS
CANADA INC. AND
PRODUITS
D'INGENIERIE
GOODYEAR CANADA INC.
JPMorgan Chase Bank, N.A. 613760868 20050331 0922 1590 6330 Inventory, No 5 years
20061211 0850 1590 6755 Accounts, Other
A PARTIAL TRANSFER Expiry: March
WAS REGISTERED 31, 2010
DECEMBER 11, 2006 TO
TRANSFER THE DEBTOR
TO GOODYEAR
ENGINEERED PRODUCTS
CANADA INC. PRODUITS
D'INGENIERIE
GOODYEAR CANADA
INC., GOODYEAR
ENGINEERED PRODUCTS
CANADA INC. AND
PRODUITS
D'INGENIERIE
GOODYEAR CANADA INC.
CSI Leasing Canada Ltd. 611429337 20041216 451 1530 4562 Equipment Yes 5
Pattison Sign Group, A Division 611251371 20041209 1419 2073 2146 Equipment, Other Yes 10
of Jim Pattison Industries Ltd.
Pattison Sign Group, A Division 611251866 20041209 1455 2073 2148 Equipment, Other Yes 10
of Jim Pattison Industries Ltd.
CSI Leasing Canada Ltd. 611034651 20041201 1456 1530 9753 Equipment Yes 5
CSI Leasing Canada Ltd. 610392735 20041105 1450 1530 2904 Equipment Yes 5
Pattison Sign Group, a Division 610084782 20041026 1324 2073 2123 Equipment, Other Signage as per 10 years
of Jim Pattison Industries Ltd. contracts LGY202601
and LGY615130 Expiry:
located at Benson October 26,
Commercial 2014
Tire/Jiffy Tire
RR#5, Belleville,
28
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ------------------------ ------------------ -------------------- ---------------
Ontario
Pattison Sign Group, a Division 610085088 20041026 1354 2073 2130 Equipment, Other Signage as per 10 years
of Jim Pattison Industries Ltd. contract LGY615020
located at Expiry:
135 Davis Drive, October 26,
Newmarket, Ontario 2014
L3Y 2N3
CSI Leasing Canada Ltd. 609996582 20041021 1946 1531 8263 Equipment (1) IBM 9406-520, 5 years
(1) IBM 3581-L2 and
(l) IBM 6400-1 Expiry:
10, (including all October 21,
repairs, 2009
accessories,
accessions and
replacements) leased
to lessee pursuant
to equipment
schedule three to
master lease no.
190760 between the
parties. Equipment
location - R.R.
#7, Napanee,
Ontario, K7R 3L2
Xerox Canada Ltd. 608889015 20040910 1406 1462 3660 Equipment, Other No 6 years
Expiry:
September 10,
2010
29
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ------------------------ ------------------ -------------------- ---------------
JPMorgan Chase Bank, N.A. 608054499 20040811 1043 1590 5932 Inventory, No 5 years
20050331 0923 1590 6332 Accounts, Other
20061211 0849 1590 6754 An amendment was Expiry:
registered March August 11,
31, 2005 to amend 2009
the secured party
name and
address.
A PARTIAL TRANSFER
WAS REGISTERED
DECEMBER 11, 2006
TO TRANSFER THE
DEBTOR TO GOODYEAR
ENGINEERED PRODUCTS
CANADA INC. PRODUITS
D'INGENIERIE
GOODYEAR CANADA
INC., GOODYEAR
ENGINEERED PRODUCTS
CANADA INC. AND
PRODUITS
D'INGENIERIE
GOODYEAR CANADA INC.
Sharp Electronics of Canada Ltd. 605293227 20040507 1407 7029 7040 Equipment, Other No 7 years
Expiry: May 7,
2011
CSI Leasing Canada Ltd. 605232567 20040505 1948 1531 4618 Equipment (1) Lexmark X634, 5 years
20040823 1446 1530 6535 serial number 99-
14RLC, (including Expiry: May 5,
all repairs, 2009
accessories and
replacements) leased
to lessee pursuant
to equipment
schedule two to
master lease no.
30
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ------------------------ ------------------ -------------------- ---------------
190760. Equipment
location - 450
Kipling Avenue,
Etobicoke, ON M8Z
5E1
An amendment was
registered August
23, 2004 to amend
the general
collateral
description.
Tandet Nationalease Ltd. 603823248 20040316 1949 1531 4748 Equipment Yes 8
Tandet Nationalease Ltd. 603823257 20040316 1949 1531 4749 Equipment Yes 8
Pattison Sign Group, A Division 603782712 20040315 1525 2073 2057 Equipment, Other Yes 10
of Jim Pattison Industries Ltd.
Pattison Sign Group, A Division 603782748 20040315 1530 2073 2058 Equipment, Other Yes 10
of Jim Pattison Industries Ltd.
Pattison Sign Group, A Division 603782811 20040315 1535 2073 2059 Equipment, Other Yes 10
of Jim Pattison Industries Ltd,
Pattison Sign Group, A Division of 603783108 20040315 1603 2073 2060 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Pattison Sign Group, A Division of 603783216 20040315 1616 2073 2061 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Pattison Sign Group, A Division of 603783288 20040315 1621 2073 2062 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Pattison Sign Group, A Division of 603783378 20040315 1625 2073 2063 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Pattison Sign Group, A Division of 603783468 20040315 1630 2073 2064 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Pattison Sign Group, A Division of 603783504 20040315 1634 2073 2065 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Pattison Sign Group, A Division 603783558 20040315 1638 2073 2066 Equipment, Other Yes 10
of Jim Pattison Industries Ltd.
CSI Leasing Canada Ltd. 603695691 20040311 1052 1529 8293 Equipment Yes 5
31
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ------------------------ ------------------ -------------------- ---------------
Wilmington Trust Company 603645984 20040309 1610 1590 9235 Inventory, Yes 10
20061211 0848 1590 6753 Accounts, Other
A PARTIAL TRANSFER
WAS REGISTERED
DECEMBER 11, 2006 TO
TRANSFER THE DEBTOR
TO GOODYEAR
ENGINEERED PRODUCTS
CANADA INC. PRODUITS
D'INGENIERIE
GOODYEAR CANADA
INC., GOODYEAR
ENGINEERED PRODUCTS
CANADA INC. AND
PRODUITS
D'INGENIERIE
GOODYEAR CANADA INC.
Pattison Sign Group, A Division 603463869 20040302 1636 2073 2040 Equipment, Other Yes 10
of Jim Pattison Industries Ltd. (10 years)
Pattison Sign Group, A Division 603463905 20040302 1640 2073 2041 Equipment, Other Yes 10
of Jim Pattison Industries Ltd.
Pattison Sign Group, A Division 603463932 20040302 1643 2073 2042 Equipment, Other Yes 10
of Jim Pattison Industries Ltd.
Pattison Sign Group, A Division of 603463959 20040302 1647 2073 2043 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Pattison Sign Group, A Division of 603464013 20040302 1652 2073 2044 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Pattison Sign Group, A Division of 603464049 20040302 1655 2073 2045 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
National Leasing Group Inc. L# 603312804 20040225 1010 6005 8788 Equipment Yes 6
2248482
Pattison Sign Group, A Division 602707563 20040127 1404 2073 2024 Equipment, Other Yes 10
of Jim Pattison Industries Ltd.
Pattison Sign Group, A Division 602707608 20040127 1408 2073 2025 Equipment, Other Yes 10
of Jim Pattison Industries Ltd.
32
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
Pattison Sign Group, A Division of 602707653 20040127 1418 2073 2026 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
PattisoaSign Group, A Division of 602707725 20040127 1422 2073 2027 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Pattison Sign Group, A Division of 602707752 20040127 1422 2073 2028 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Pattison Sign Group, A Division of 602707779 20040127 1428 2073 2029 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Pattison Sign Group, A Division of 602707797 20040127 1431 2073 2030 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Pattison Sign Group, A Division of 602707815 20040127 1434 2073 2031 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Pattison Sign Group, A Division of 602707842 20040127 1437 2073 2032 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Pattison Sign Group, A Division of 602707887 20040127 1440 2073 2033 Equipment, Other Yes 10
Jim Pattison Industries Ltd,
Pattison Sign Group, A Division of 602690535 20040126 1645 2073 2023 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Tandet Nationalease Ltd. 602499438 20040115 1950 1531 5584 Equipment, Yes 8
Motor Vehicles
Pattison Sign Group, A Division of 602450109 20040114 1023 2073 1996 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Pattison Sign Group, A Division 602434602 20040113 1651 2073 1995 Equipment, Other Yes 10
of Jim Pattison Industries Ltd.
Citicorp Vendor Finance, Ltd. 600925842 20031112 1030 7029 4045 Equipment, Other, Yes 6
20040930 1531 7029 9617 Motor Vehicles
An amendment was
registered
September 30, 2004
to add motor
vehicles.
National Leasing Group Inc. L# 600547023 20031028 1020 6005 7243 Equipment Yes 6
2230656
National Leasing Group Inc. L# 600547131 20031028 1033 6005 7244 Equipment Yes 6
2230656
33
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
National Leasing Group Inc. 600071787 20031008 1201 6005 7010 Equipment Yes 6
L# 2230656
National Leasing Group Inc. L# 898732629 20031001 1223 6005 6907 Equipment Yes 7
2227114
Pattison Sign Group, A Division of 897617376 20030826 1326 2073 1972 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Caterpillar Financial Services 897475878 20030821 1038 8077 7660 Equipment, Other, Yes 4
Limited Motor Vehicles
Caterpillar Financial Services 897222708 20030811 1714 8077 7377 Equipment, Other, Yes 4
Limited Motor Vehicles
Caterpillar Financial Services 897080544 20030806 1437 8077 7252 Equipment, Other Yes 5
Limited
Caterpillar Financial Services 897080562 20030806 1437 8077 7254 Equipment, Other Yes 5
Limited
Caterpillar Financial Services 896773644 20030725 1658 8077 6882 Equipment, Other, Yes 4
Limited Motor Vehicles
Caterpillar Financial Services 896773653 20030725 1658 8077 6883 Equipment, Other, Yes 4
Limited Motor Vehicles
Pattison Sign Group, A Division of 896568642 20030721 1606 2073 1954 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Pattison Sign Group, A Division 896568669 20030721 1609 2073 1955 Equipment, Other Yes 10
of Jim Pattison Industries Ltd.
Caterpillar Financial Services 896381127 20030715 1037 8077 6361 Equipment, Other, Yes 4
Limited Motor Vehicles
Caterpillar Financial Services 896374899 20030714 17223 8077 6326 Equipment, Other, Yes 4
Limited Motor Vehicles
Caterpillar Financial Services 896374908 20030714 1723 8077 6327 Equipment, Other, Yes 4
Limited Motor Vehicles
Caterpillar Financial Services 896374917 20030714 1723 8077 6328 Equipment, Other, Yes 4
Limited Motor Vehicles
Caterpillar Financial Services 895236237 20030609 1809 8077 5009 Equipment, Other, Yes 4
Limited Motor Vehicles
Caterpillar Financial Services 895087332 20030605 0955 8077 4849 Equipment, Other, Yes 4
Limited Motor Vehicles
Caterpillar Financial Services 895087341 20030605 0955 8077 4850 Equipment, Other, Yes 4
Limited Motor Vehicles
34
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
JP Morgan Chase Bank, N.A. 892612728 20030320 1222 1590 3509 Inventory, Yes 5
20030402 1428 1590 4137 Accounts, Other
20050331 0922 1590 6331 An amendment was
20061211 0847 1590 6752 registered April
2, 2003 to amend
the collateral
classification.
An amendment was
registered March
31, 2005 to amend
the secured party
name and address.
A PARTIAL TRANSFER
WAS REGISTERED
DECEMBER 11, 2006
TO TRANSFER THE
DEBTOR TO GOODYEAR
ENGINEERED
PRODUCTS CANADA
INC. PRODUITS
D'INGENIERIE
GOODYEAR CANADA
INC., GOODYEAR
ENGINEERED
PRODUCTS CANADA
INC. AND PRODUITS
D'INGENIERIE
GOODYEAR CANADA
INC.
Pattison Sign Group, a Division of 891758952 20030218 1427 2073 1905 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
IBM Canada Limited 890215668 20021218 1818 1531 0189 Equipment, Accounts, Yes 3
20051129 1947 1531 0087 Other
3-year renewal Expiry:
was registered December 18,
November 29, 2005. 2008
35
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
CIT Financial Ltd. 886580793 20020821 1630 1616 7293 Inventory, No 5
Equipment,
Accounts, Other,
Motor Vehicle
included
Neon Products, a Division of 884247588 20020611 1412 2073 1820 Equipment, Other, Yes 10
Jim Pattison Industries Ltd.
Neon Products, a Division of 883471203 20020522 1635 2073 1797 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Neon Products, a Division of 883471212 20020522 1635 2073 1798 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Neon Products, a Division of 883471221 20020522 1635 2073 1799 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Neon Products, a Division of 883471239 20020522 1635 2073 1800 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Neon Products, a Division of 880390107 20020206 1432 2073 1764 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Neon Products, a Division of 880390116 20020206 1432 2073 1765 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Neon Products, a Division of 879980175 20020123 1341 2073 1739 Equipment, Other Yes 10
Jim Pattison Industries Ltd.
Nexcap Finance Corporation 878225571 20011123 1812 1531 5952 Equipment, Accounts, Yes 2
20020510 1914 1530 8141 Other
20041027 1452 1530 3429 An amendment was Expiry:
20061102 1456 1530 8509 registered May 10, November 23,
2002 to add 2007
"Accounts" to the
collateral
classification.
2-year renewal was
registered October
27, 2004.
1-year renewal was
registered
November 2, 2006.
36
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
Neon Products, a Division of Jim 877801041 20011108 1125 2073 1715 Equipment, Other Yes 10
Pattison Industries Ltd.
Neon Products, a Division of Jim 877801059 20011108 1125 2073 1716 Equipment, Other Yes 10
Pattison Industries Ltd.
Neon Products, a Division of Jim 877132791 20011017 1028 2073 1697 Equipment, Other Yes 10
Pattison Industries Ltd.
Neon Products, a Division of Jim 876260124 2001091416342073 1679 Equipment, Other Yes 10
Pattison Industries Ltd.
865331 Ontario Limited carrying on 085972905 20010816 1023 0043 1025 Equipment, Other Yes 10
business as Signage Systems
865331 Ontario Limited carrying on 085972914 20010816 1023 0043 1026 Equipment, Other Yes 10
business as Signage Systems
Neon Products, a Division of Jim 874584081 20010719 1028 2073 1635 Equipment, Other Yes 10
Pattison Industries Ltd.
Neon Products, a Division of Jim 874584099 20010719 1028 2073 1636 Equipment, Other Yes 10
Pattison Industries Ltd.
Neon Products, a Division of Jim 874584108 20010719 1028 2073 1637 Equipment, Other Yes 10
Pattison Industries Ltd.
IBM Canada Limited 874472616 20010716 1750 1531 7302 Equipment, Yes 3
AS 20040622 1943 1531 Other Accounts,
6179
3-year renewal was
was registered
June 22, 2004
Neon Products 871517079 20010417 1023 2073 1398 Equipment, Other Yes 10
865331 Ontario Limited carrying on 085972878 20010402 1020 0043 4016 Equipment, Other Yes 10
business as Signage Systems
865331 Ontario Limited carrying on 085972887 20010402 1020 0043 4015 Equipment, Other Yes 10
business as Signage Systems
Associates Capital Limited 871120548 20010402 1750 1531 3226 Equipment, Other No 8
Neon Products 870470388 20010308 1449 2073 1379 Equipment, Other Yes 10
Neon Products 870470397 20010308 1449 2073 1380 Equipment, Other Yes 10
37
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
Neon Products 869925537 20010214 1431 2073 1368 Equipment, Other Yes 10
Neon Products 868913334 20010108 1640 2073 1340 Equipment, Other Yes 10
Neon Products 868066578 20001204 1440 2073 1311 Equipment, Other Yes 10
Neon Products 866628576 20001016 1035 2073 1292 Equipment, Other Yes 10
Neon Products 866086398 20000926 1642 2073 1279 Equipment, Other Yes 10
Neon Products 865660734 20000913 0938 2073 1266 Equipment, Other Yes 10
National Leasing Group Inc. 863982207 20000720 1050 6005 0982 Equipment No 5
L#2085590
IBM Canada Ltd. 862970499 20000619 1501 1530 5589 Equipment, No 4
20040526 1056 1529 9611 Accounts, Other
4-year renewal
was registered
May 26, 2004.
Neon. Products 861778332 20000512 1343 2073 1218 Equipment, Other Yes 10
Neon Products 860842872 20000412 1021 2073 1202 Equipment, Other Yes 10
Neon Products 860409639 20000329 1137 2073 1178 Equipment, Other Yes 10
Neon Products 859041864 20000207 1429 2073 1161 Equipment, Other Yes 10
Neon Products 859041873 20000207 1429 2073 1162 Equipment, Other Yes 10
IBM Canada Ltd. 857158722 19991129 1819 1531 4326 Equipment, No 4
20020513 1842 1531 3171 Accounts, Other
20041029 1942 1531 8694 2-year renewal
was registered
May 13, 2002.
3-year renewal was
registered October
29, 2004.
Neon Products 856968399 19991122 1535 2073 1022 Equipment, Other Yes 10
Neon Products 855752139 19991013 1140 2073 1011 Equipment, Other Yes 10
Neon Products Ltd. 854788653 19990910 1213 2073 0976 Equipment, Other Yes 10
38
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
Dell Financial Services Canada 853437726 19990727 1434 1530 1387 Equipment, No 5
Limited 20030723 1443 8077 6760 Accounts, Other
20070206 1044 8077 8022 4-year renewal Expiry: July
was registered 27, 2008
July 23, 2003.
AN AMENDMENT WAS
REGISTERED
FEBRUARY 6, 2007
TO ADD DEBTORS:
GOODYEAR
ENGINEERED
PRODUCTS CANADA
INC., PRODUITS
D'INGENIERIE
GOODYEAR CANADA
INC. AND GOODYEAR
ENGINEERED
PRODUCTS CANADA
INC. PRODUITS
D'INGENIERIE
GOODYEAR CANADA
INC.
Neon Products 850265694 19990421 1409 2073 0923 Equipment, Other Yes 10
Neon Products 850265703 19990421 1409 2073 0924 Equipment, Other Yes 10
Neon Products 850265712 19990421 1409 2073 0925 Equipment, Other Yes 10
Neon Products 850265721 19990421 1409 2073 0926 Equipment, Other Yes 10
Neon Products 850265739 19990421 1409 2073 0927 Equipment, Other Yes 10
Neon Products 850265748 19990421 1409 2073 0928 Equipment, Other Yes 10
Neon Products 850265757 19900421 1409 2073 0929 Equipment, Other Yes 10
Neon Products 850265766 19990421 1409 2073 0930 Equipment, Other Yes 10
Neon Products 848602755 19990222 1046 2073 0863 Equipment, Other Yes 10
Neon Products 848602764 19990222 1046 2073 0864 Equipment, Other Yes 10
Neon Products 844634106 19980923 1016 2073 0788 Equipment, Other Yes 10
39
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
Neon Products 844634115 19980923 1016 2073 0789 Equipment, Other Yes 10
Neon Products 844634124 19980923 1016 2073 0790 Equipment, Other Yes 10
Neon Products Ltd. 841887693 19980618 1118 2073 0736 Equipment, Other Yes 10
Neon Products Ltd. 841887738 19980618 1118 2073 0740 Equipment, Other Yes 10
Neon Products Ltd. 838850202 19980310 1433 2073 0691 Equipment, Other Yes 10
Neon Products Ltd. 838850211 19980310 1433 2073 0692 Equipment, Other Yes 10
Neon Products Ltd. 834583734 19970923 1132 2073 0615 Equipment, Other Yes 10
Neon Products Ltd. 834583743 19970923 1132 2073 0616 Equipment, Other Yes 10
Neon Products Ltd. 831509127 19970606 0913 2073 0546 Equipment, Other Yes 10
PHH Vehicle Management Services 802487079 19921001 2147 1513 2926 Equipment, Other, Yes 4
Inc. 19960905 1855 1529 9938 Motor Vehicle
included
19990910 1043 1529 1546 3-year renewal was Expiry:
19990910 1043 1529 1547 registered October 1,
20030210 1830 1531 5482 September 5, 1996. 2009
20030721 1055 1529 5431
20040805 1947 1531 3275 5-year renewal was
20040902 1952 1531 1770 registered
20040920 1947 1531 2518 September 10,
1999.
20050218 1940 1531 9469
20050311 1945 1531 7428 An amendment was
20050719 1458 1530 1142 registered
20050831 1953 1531 0751 September 10, 1999
to add a general
20060616 1455 1530 8587 collateral
20070124 1940 1531 7353 description: All
present and future
motor vehicles
(including,
without
limitation,
passenger
automobiles,
trucks, truck
tractors, truck
trailers, truck
chassis, or
truck bodies),
40
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
automotive
equipment
(including,
without
limitation,
trailers, boxes,
and refrigeration
units), and
materials-handling
equipment leased
from time to time
by the secured
party to the
debtor, together
with all present
and future
attachments,
accessions,
appurtenances,
accessories and
replacement parts,
and all proceeds
of or relating to
any of the
foregoing.
An amendment was
registered
February 10, 2003
to add motor
vehicle
description. Refer
to search.
An amendment was
registered to
amend the secured
party name.
A partial
discharge was
registered August
5, 2004.
5-year renewal
was registered
September 2, 2004.
41
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
A partial
discharge was
registered
September 20,
2004.
A partial
discharge was
registered
February 18,
2005.
A partial
discharge was
registered March
11, 2005.
A partial
discharge was
registered July
19, 2005.
A partial
discharge was
registered August
31, 2005.
An amendment was
registered June
16, 2006 to add
motor vehicles.
Refer to search.
A partial
discharge was
registered January
24, 2007.
Triathlon Leasing Inc. 428212368 19920910 0833 0043 6594 Equipment, Other, No 3
19941026 2142 1254 1577 Motor Vehicle
42
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
General Electric Capital Canada 20020603 1547 1254 9047 An amendment was Expiry:
Leasing Inc. 20020903 1053 1254 9177 registered October September 10,
20020903 1559 1254 9190 26, 1994 to add a 2011
secured party.
6-year renewal was
registered June 3,
2002.
3-year renewal was
registered
September 3, 2002.
AN AMENDMENT WAS
REGISTERED
SEPTEMBER 3, 2002
TO CHANGE THE
DEBTOR NAME TO
FOUNTAIN TIRE
CORPORATION.
PHH Vehicle Management Services 802346094 19920824 2159 1513 1626 Equipment, Other, Yes 5
Inc. 19921202 2154 1513 6022 Motor Vehicle
19970820 1439 1530 4684 included
19990910 1043 1529 1550 A PARTIAL TRANSFER Expiry:
20020709 1448 1530 4418 WAS REGISTERED August 24,
20030721 1055 1529 5175 DECEMBER 2, 1992 2007
TO TRANSFER
COLLATERAL TO
HUNTSMAN FILM
PRODUCTS OF CANADA
LTD.
5-year renewal was
registered August
20, 1997.
43
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
An amendment was
registered
September 10, 1999
to add a general
collateral
description:
All present and
future motor
vehicles
(including,
without
limitation,
passenger
automobiles,
trucks, truck
tractors, truck
trailers, truck
chassis, or truck
bodies),
automotive
equipment
(including,
without
limitation,
trailers, boxes,
and refrigeration
units), and
materials-handling
equipment leased
from time to time
by the secured
party to the
debtor, together
with all present
and future
attachments,
accessions,
appurtenances,
accessories and
replacement parts,
and all proceeds
of or relating to
any of the
foregoing.
5-year renewal was
registered July 9,
2002.
44
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
An amendment was
registered July
21, 2003 to amend
the secured party
name and address.
Manufacturier Finance Programs Ltd. 015569082 19900328 1459 0043 7975 Equipment, Other Yes 25
19920813 1403 0043 5521
Equipment as
described in
master equipment
lease no. G2250
dated December 18,
1985 and schedules
referenced
thereto.
An assignment was
registered August
13, 1992 to assign
the secured party
from Triathlon
Computer Leasing
Inc. to
Manufacturier
Finance Programs
Ltd.
45
GOODYEAR ENGINEERED PRODUCTS CANADA INC. PRODUITS D'INGENIERIE
GOODYEAR CANADA INC.
GOODYEAR ENGINEERED PRODUCTS CANADA INC.
-LIST OF PPSA (ONTARIO) REGISTRATIONS
FILE CURRENCY DATE: APRIL 16, 2007
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
Goodyear Canada Inc. 631622754 20061221 1238 1590 7531 Inventory, No 1 year
Equipment,
Accounts, Other, Expiry:
Motor Vehicle December 21,
Included 2007
PHH Vehicle Management Services 630611118 20061115 1440 1530 0963 Equipment, Other, All present and 5 years
Inc. Motor Vehicle future motor
20070416 1048 1529 2954 Included vehicles
(amendment) (including, Expiry:
without November 15,
limitation, 2011
passenger
automobiles, vans,
trucks,
truck-tractors,
truck-trailers,
truck-chassis,
and truck bodies),
automotive
equipment
(including,
without
limitation,
trailers, boxes
and refrigeration
units),
materials-handling
equipment and
other goods
(whether similar
or dissimilar to
the foregoing)
leased from time
to time by the
secured party to
the debtor,
together with, in
each case, all
present
46
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
and future parts,
attachments,
accessories and
accessions
attached thereto
or installed
therein, and all
proceeds of or
relating to any
of the foregoing.
An amendment was
registered on
April 16, 2007 to
add the following
motor vehicle
descriptions:
2007 Ford Explorer
VIN:
1FMEU73E87UA60665
2007 Ford Escape
VIN:
1FMYU93177KA58004
2001 Ford Taurus
VIN:
1FAFP53U21G159974
2004 Ford Taurus
VIN:
1FAFP53U44G153498
2004 Ford Taurus
VIN:
1FAFP53U24G156691
47
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
2004 Ford Freestar
VIN:
2FMZA55284BA70776
2004 Ford Explorer
V1N:
1FMZU72K74ZA79778
2005 Ford Escape
VIN:
1FMYU93165KD37618
2005 Ford Taurus
VIN:
1FAFP56U95A180051
2005 Ford Taurus
VIN:
1FAFP56U55A115679
2005 Ford Explorer
VIN:
1FMZU72K45UB41040
2006 Ford Escape
VIN:
1FMYU93196KA26315
48
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
2006 Ford Escape
VIN:
1FMYU93146KB05875
2006 Ford Escape
VIN:
1FMEU73E06UA18652
2006 Ford Taurus
VIN:
1FAFP56U16A185049
2006 Ford Escape
VIN:
1FMYU93116KC96672
1998 Ford Windstar
VIN:
2FMZA51U4WBD42671
JPMorgan Chase Bank, N.A. 630497736 20061109 1716 1590 5054 Inventory, No 5 years
Accounts, Other
Expiry:
November 9,
2011
Deutsche Bank Trust Company 630497754 20061109 1718 1590 5055 Inventory, No 5 years
Americas Accounts, Other
Expiry:
November 9,
2011
Wilmington Trust Company 630497772 20061109 1720 1590 5056 Inventory, No 5 years
Accounts, Other
Expiry:
November 9,
2011
49
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
National Leasing Group Inc. 628516053 20060831 1619 6005 0050 Equipment All floor sweeper 4 years
L#2342720 of every nature or
20070215 1414 6005 2110 kind described in Expiry:
(transfer) lease number August 31,
2342720 between 2010
the secured party,
as lessor and the
debtor as lessee,
as amended from
time to time,
together with all
attachments,
accessories and
substitutions.
A transfer from
Goodyear Canada
Ltd. to Goodyear
Engineered
Products Canada
Inc. was
registered on
February 15, 2007.
Deutsche Bank Trust Company 613947726 20050406 0953 1590 6619 Inventory, An amendment was 5 years
Americas Accounts, Other registered on
April 7, 2005 to
20050407 1041 1590 6690 amend the secured Expiry:
(amendment) party's address. April 6, 2010
20061211 0851 1590 6756
(partial transfer) A partial transfer
to Goodyear
Engineered
Products Canada
Inc. was
registered on
December 11, 2006.
50
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
Wilmington Trust Company 613947906 20050406 1012 1590 6620 Inventory, A partial transfer 5 years
Accounts, Other to Goodyear
20061211 0852 1590 6757 Engineered Expiry:
(partial transfer) Products Canada April 6, 2010
Inc. was
registered on
December 11, 2006.
JPMorgan Chase Bank, N.A. 613760868 20050331 0922 1590 6330 Inventory, A partial transfer 5 years
Accounts, Other to Goodyear
20061211 0850 1590 6755 Engineered Expiry:
(partial transfer) Products Canada March 31,
Inc. was 2010
registered on
December 11, 2006.
JPMorgan Chase Bank, N.A. 608054499 20040811 1043 1590 5932 Inventory, An amendment was 5 years
Accounts, Other registered on
20050331 0923 1590 6332 March 31, 2005 to Expiry:
(amendment) amend the secured August 11,
party's name and 2009
address.
20061211 0849 1590 6754
(partial transfer) A partial transfer
to Goodyear
Engineered
Products Canada
Inc. was
registered on
December 11, 2006.
Wilmington Trust Company 603645984 20040309 1610 1590 9235 Inventory, A partial transfer 10 years
Accounts, Other to Goodyear
20061211 0848 1590 6753 Engineered Expiry:
(partial transfer) Products Canada March 9, 2014
Inc. was
registered on
December 11, 2006.
JPMorgan Chase Bank, N.A. 892612728 20030320 1222 1590 3509 Inventory, An amendment was 5 years
Accounts, Other registered on
April 2, 2003 to
20030402 1428 1590 4137 amend the Expiry:
(amendment) collateral March 20,
classification. 2008
20050331 0922 1590 6331 An amendment was
(amendment) registered on
March
51
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------------------- ----------- ----------------------- ------------------ ------------------ -------------
31, 2005 to amend
20061211 0847 1590 6752 the secured
(partial transfer) party's name and
address.
A partial transfer
to Goodyear
Engineered
Products Canada
Inc. was
registered on
December 11, 2006.
Dell Financial Services Canada 853437726 19990727 1434 1530 1387 Equipment, A four-year 5 years plus
Limited Accounts, Other renewal was 4 year renewal
registered on July
20030723 1443 8077 6760 23, 2003.
(renewal) Expiry: July
An amendment was 27, 2008
registered on
20070206 1044 8077 8022 February 6, 2007
(amendment) to add Goodyear
Engineered
Products Canada
Inc. as a debtor.
52
PRODUITS D'INGENIERIE GOODYEAR CANADA INC.
PRODUITS D'INGENIERIE GOODYEAR CANADA INC.
GOODYEAR ENGINEERED PRODUCTS CANADA INC.
- LIST OF PPSA (ONTARIO) REGISTRATIONS
FILE CURRENCY DATE: APRIL 16, 2007
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------- ----------- ------------------------ ---------------- ----------------------------- -------------------
Goodyear Canada Inc. 631622754 20061221 1238 1590 7531 Inventory, No 1 year
Equipment,
Accounts, Other, Expiry:
Motor Vehicle December 21, 2007
Included
PHH Vehicle Management 630611118 20061115 1440 1530 0963 Equipment, Other, All present and 5 years
Services Inc. Motor Vehicle future motor
20070416 1048 1529 2954 Included vehicles (including, Expiry:
(amendment) without limitation, November 15, 2011
passenger automobiles,
vans, trucks, truck-tractors,
truck-trailers, truck-
chassis, and truck bodies),
automotive equipment
(including, without
limitation, trailers, boxes
and refrigeration units),
materials-handling equipment
and other goods (whether
similar or dissimilar to the
foregoing) leased from time
to time by the secured party
to the debtor, together with,
in each case, all present
53
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------- ----------- ------------------------ ---------------- ----------------------------- -------------------
and future parts,
attachments, accessories and
accessions attached thereto
or installed therein, and all
proceeds of or relating to
any of the foregoing.
An amendment was registered
on April 16, 2007 to add the
following motor vehicle
descriptions:
2007 Ford Explorer
VIN: 1FMEU73E87UA60665
2007 Ford Escape
VIN: 1FMYU93177KA58004
2001 Ford Taurus
VIN: 1FAFP53U21G159974
2004 Ford Taurus
VIN: 1FAFP53U44G153498
2004 Ford Taurus
VIN: 1FAFP53U24G156691
54
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------- ----------- ------------------------ ---------------- ----------------------------- -------------------
2004 Ford Freestar
VIN: 2FMZA55284BA70776
2004 Ford Explorer
VIN: 1FMZU72K74ZA79778
2005 Ford Escape
VIN: 1FMYU93165KD37618
2005 Ford Taurus
VIN: 1FAFP56U95A180051
2005 Ford Taurus
VIN: 1FAFP56U55A115679
2005 Ford Explorer
VIN: 1FMZU72K45UB41040
2006 Ford Escape
VIN: 1FMYU93196KA26315
55
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------- ----------- ------------------------ ---------------- ----------------------------- -------------------
2006 Ford Escape
VIN: 1FMYU93146KB05875
2006 Ford Escape
VIN: 1FMEU73E06UA18652
2006 Ford Taurus
VIN: 1FAFP56U16A185049
2006 Ford Escape
VIN: 1FMYU93116KC96672
1998 Ford Windstar
VIN: 2FMZA51U4WBD42671
JPMorgan Chase Bank, 630497736 20061109 1716 1590 5054 Inventory, No 5 years
N.A. Accounts, Other
Expiry:
November 9, 2011
Deutsche Bank Trust 630497754 20061109 1718 1590 5055 Inventory, No 5 years
Company Americas Accounts, Other
Expiry:
November 9, 2011
56
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ---------------------- ----------- ------------------------ ---------------- ----------------------------- -------------------
Wilmington Trust 630497772 20061109 1720 1590 5056 Inventory, No 5 years
Company Accounts, Other
Expiry:
November 9, 2011
Deutsche Bank Trust 613947726 20050406 0953 1590 6619 Inventory, An amendment was registered 5 years
Company Americas Accounts, Other on April 7, 2005 to amend the
20050407 1041 1590 6690 secured party's address. Expiry:
(amendment) April 6, 2010
20061211 0851 1590 6756
(partial transfer) A partial transfer to
Goodyear Engineered Products
Canada Inc. was registered on
December 11, 2006.
Wilmington Trust 613947906 20050406 1012 1590 6620 Inventory, A partial transfer to 5 years
Company Accounts, Other Goodyear Engineered Products
20061211 0852 1590 6757 Canada Inc. was registered on Expiry:
(partial transfer) December 11, 2006. April 6, 2010
JPMorgan Chase Bank, 613760868 20050331 0922 1590 6330 Inventory, A partial transfer to 5 years
N.A. Accounts, Other Goodyear Engineered Products
20061211 0850 1590 6755 Canada Inc. was registered on Expiry:
(partial transfer) December 11, 2006. March 31, 2010
JPMorgan Chase Bank, 608054499 20040811 1043 1590 5932 Inventory, An amendment was registered 5 years
N.A. Accounts, Other on March 31, 2005 to amend the
20050331 0923 1590 6332 secured party's name Expiry:
(amendment) and address. August 11, 2009
20061211 0849 1590 6754 A partial transfer to
(partial transfer) Goodyear Engineered
57
COLLATERAL
CLASSIFICATION/ REGISTRATION
FINANCING CHANGE GENERAL COLLATERAL PERIOD
SECURED PARTY FILE NUMBER REGISTRATION NUMBER STATEMENT DESCRIPTION (YEARS)
- ------------------------ ----------- ----------------------- ---------------------- -------------------------- ----------------
Products Canada Inc. was
registered on December 11,
2006.
Wilmington Trust Company 603645984 20040309 1610 1590 9235 Inventory, Accounts, A partial transfer to 10 years
Other Goodyear Engineered
Products Canada Inc. was Expiry:
20061211 0848 1590 6753 registered on December 11, March 9, 2014
(partial transfer) 2006.
JPMorgan Chase Bank, N.A. 892612728 20030320 1222 1590 3509 Inventory, Accounts, An amendment was 5 years
Other registered on April 2,
2003 to amend the Expiry:
20030402 1428 1590 4137 collateral classification. March 20, 2008
(amendment)
20050331 0922 1590 6331 An amendment was
(amendment) registered on March 31,
2005 to amend the secured
20061211 0847 1590 6752 party's name and address.
(partial transfer)
A partial transfer to
Goodyear Engineered
Products Canada Inc. was
registered on December 11,
2006.
Dell Financial Services 853437726 19990727 1434 1530 1387 Equipment, Accounts, A four-year renewal was 5 years plus 4
Canada Limited Other registered on July 23, year renewal
2003.
20030723 1443 8077 6760 Expiry: July 27,
(renewal) 2008
20070206 1044 8077 8022 An amendment was registered
(amendment) on February 6, 2007 to add
Goodyear Engineered
Products Canada Inc. as a
debtor.
58
GOODYEAR CANADA INC. - LIST OF PPSA (PRINCE EDWARD ISLAND) REGISTRATIONS
DATE SEARCHED: APRIL 18, 2007
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- ------------------- ------------------- --------------------- -------------------------------------------- ----------------
Goodyear Canada Inc. PHH Vehicle 3301 All present and future motor vehicles April 27, 2008
Management Services 901389 (renewal) (including, without limitation, passenger
Inc. 1118445 (amendment) automobiles, trucks, truck tractors, truck
trailers, truck chassis or truck bodies),
automotive equipment (including, without
limitation, trailers, boxes and
refrigeration units) and materials-handling
equipment leased from time to time by the
secured party to the debtor, together with
all present and future attachments,
accessions, appurtenances, accessories and
replacement parts, and all proceeds of or
relating to any of the foregoing.
59
GOODYEAR ENGINEERED PRODUCTS CANADA INC. PRODUITS D'INGENIERIE
GOODYEAR CANADA INC.
GOODYEAR ENGINEERED PRODUCTS CANADA INC.
PRODUITS D'INGENIERIE GOODYEAR CANADA INC.
PRODUITS D'INGENIERIE GOODYEAR CANADA INC. GOODYEAR ENGINEERED PRODUCTS
CANADA INC.
- LIST OF PPSA (PRINCE EDWARD ISLAND) REGISTRATIONS
DATE SEARCHED: APRIL 18, 2007
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- ------------------- ------------------- --------------------- --------------------------------------------- ----------------
Goodyear Engineered PHH Vehicle 1707157 All present and future motor vehicles November 15, 2011
Products Canada Inc. Management Services (including, without limitation,
Inc. passenger automobiles, vans, trucks,
truck-tractors, truck-trailers,
Produits D'Ingenierie truck-chassis and truck bodies),
Goodyear Canada Inc. automotive equipment (including,
without limitation, trailers, boxes
Goodyear Engineered and refrigeration units), materials-
Products Canada Inc./ handling equipment and other goods
Produits D'Ingenierie (whether similar or dissimilar to the
Goodyear Canada Inc. foregoing) leased from time to time by
the Secured Party to the Debtor, together
Produits D'Ingenierie with in each case, all present and future
Goodyear Canada Inc./ parts, attachments, accessories and
Goodyear Engineered accessions attached thereto or installed
Products Canada Inc. therein, all proceeds (as defined below)
of or relating to any of the foregoing.
Proceeds: All proceeds of any of the above
collateral in any form (including, without
limitation, goods, documents of title,
chattel paper, securities, instruments,
money and intangibles (as each such term
is defined in the Personal Property
Security Act)) derived directly of
indirectly from any dealing with any of the
above collateral or any proceeds therof.
60
GOODYEAR CANADA INC. - LIST OF PPSA (SASKATCHEWAN) REGISTRATIONS
DATE SEARCHED: APRIL 18, 2007
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- -------------------- ----------------------- ----------------- ------------------------------------------- -----------------
Goodyear Canada Inc. Dell Financial Services 113939502 See search for description. July 27, 2008
Canada Limited
Goodyear Canada Inc. Neon Products 117366646 One (1) 25'x5' double face display, and one May 19, 2013
(1) 12'x3' double face display.
Goodyear Canada Inc. Neon Products 117367189 One (1) 18'x5' double face display June 18, 2013
Goodyear Canada Inc. Neon Products 117367448 One (1) 25'x5' double face display, and one June 18, 2013
(1) 12'x3' face display.
Goodyear Canada Inc. Pattison Sign Group 118557868 One (1) 24'x4" single face display. June 30, 2012
Goodyear Canada Inc. Pattison Sign Group 119034588 Signage as per contract LGY 101810 located January 29, 2013
at 11101 - 110th Street, North Battleford,
SK S9A 3S8
Goodyear Canada Inc. Pattison Sign Group, A 119614388 Signage as per contract LGY 101850 located June 16, 2013
Division of Jim Pattison at Shaunavon Tire and Alignment, 486 Third
Industries Ltd. Avenue W. Shaunavon, SK
Goodyear Canada Inc. PHH Vehicle 112273416 Motor vehicles (including, without June 1, 2008
Management Services limitation, trucktractors, truck trailers,
Inc. truck chassis or truck bodies),automotive
equipment (including, without limitation,
trailers, boxes and refridgeration units)
and materials handling equipment leased by
the Debtor from the Secured Party together
with all attachments appurtenances,
accessories or replacement parts. Proceeds
"all of the debtors present and after
acquired personal property including
without limitation, goods, securities,
instruments, documents of title, chattel
paper, intangibles and money."
Goodyear Canada Inc. Pattison Sign Group 117786838 One (1) 12'x3' single faced pylon display. December 31, 2010
61
GOODYEAR ENGINEERED PRODUCTS CANADA INC. PRODUITS D'INGENIERIE
GOODYEAR CANADA INC.
GOODYEAR ENGINEERED PRODUCTS CANADA INC.
PRODUITS D'INGENIERIE GOODYEAR CANADA INC.
PRODUITS D'INGENIERIE GOODYEAR CANADA INC. GOODYEAR ENGINEERED
PRODUCTS CANADA INC.
- LIST OF PPSA (SASKATCHEWAN) REGISTRATIONS
DATE SEARCHED: APRIL 18, 2007
REGISTRATION
DEBTOR SECURED PARTY NUMBER COLLATERAL DESCRIPTION EXPIRY
- -------------------- ----------------------- ----------------- ------------------------------------------- -----------------
Goodyear Engineered PHH Vehicle 300104354 All present and future motor vehicles November 15, 2011
Products Canada Inc. Management Services (including, without limitation, passenger
Inc. automobiles, vans, trucks, truck-tractors,
truck-trailers, truck-chassis and truck
Produits D'Ingenierie bodies), automotive equipment (including,
Goodyear Canada Inc. without limitation, trailers, boxes and
refrigeration units), materials-handling
Goodyear Engineered equipment and other goods (whether similar
Products Canada Inc./ or dissimilar to the foregoing) leased
Produits D'Ingenierie from time to time by the Secured Party to
Goodyear Canada Inc. the Debtor, together with in each case, all
present and future parts, attachments,
Produits D'Ingenierie accessories and accessions attached thereto
Goodyear Canada Inc./ or installed therein, all proceeds (as defined
Goodyear Engineered below) of or relating to any of the
Products Canada Inc. foregoing. Proceeds: All proceeds of any of
the above collateral in any form (including,
without limitation, goods, documents of title,
chattel paper, securities, instruments,
money and intangibles (as each such term
is defined in the Personal Property
Security Act)) derived directly of
indirectly from any dealing with any of
the above collateral or any proceeds
thereof.
- 62 -
QUEBEC SECURITY
PART 1 - LIST OF MOVABLE HYPOTHECS & ASSIGNMENT OF CLAIMS
LEGEND:
NATURE OF SECURITY CHARGED ASSETS
MH = Movable Hypothec without delivery G = General Movable Property A1, A2 - Assignment
MHwt = Movable Hypothec with delivery AR = Accounts Receivable AS1.AS2 - Assumption of Hypothec
FH = Floating Hypothec I = Inventory C1, C2 - Cession of rank
LHL = Legal Hypothec of Landlord (renewal of E = Equipment ChN1,ChN2 - Change of name
Landlord Privilege)
LHJ = Legal Hypothec resulting from a Judgment IP = Intellectual Property M1, M2 - Modification of a published right
LHS = Legal Hypothec of State or of a legal S = Securities P1, P2 - Prior Notice of Intention to exercise a
person established in the public interest Right
THE "REF. NO. " BELOW ARE FOR REFERENCE PURPOSES ONLY AND ARE NOT INTENDED TO
INDICATE RANTING OF THE SECURITY.
DATE OF EXPIRY DATE OF
REF. REGISTRATION REGISTRATION NATURE OF AMOUNT REGISTRATION
NO. SECURED CREDITOR (Y-M-D) (Y-M-D) SECURITY CHARGED ASSETS & COMMENTS (CDN.$) NUMBER
- ----- ------------------- ------------ -------------- --------- ---------------------------- ------------- ---------------
1. JPMorgan Chase Bank 2004-08-27 2014-08-27 MH All intellectual and similar 1,200,000,000 04-0503625-0002
property of every kind and
nature now owned or
hereafter acquired by the
Grantor, including
inventions, industrial
designs, patents,
copyrights, licenses,
"Trademarks" (as defined in
the registration) along with
all additions, improvements
and accessions related
thereto, books and records
related therewith and all
proceeds related therefrom
The hypothec is granted to
secure payment of bonds or
other titles of indebtedness
(C.c.Q. art. 2692)
2. JPMorgan Chase Bank 2004-08-17 2014-08-17 MH The 25% collateral bond 1,200,000,000 04-0482390-0003
bearing certificate number
1, dated August 17, 2004 in
the principal amount of
$1,000,000,000.00 registered
in the name of JPMorgan
Chase Bank in its capacity
as custodian and agent,
together
- 63 -
DATE OF EXPIRY DATE OF
REF. REGISTRATION REGISTRATION NATURE OF AMOUNT REGISTRATION
NO. SECURED CREDITOR (Y-M-D) (Y-M-D) SECURITY CHARGED ASSETS & COMMENTS (CDN.$) NUMBER
- ----- ------------------- ------------ -------------- --------- ---------------------------- ------------- ---------------
with all renewals thereof,
substitutions therefor,
accretions thereto and all
income and fruits therefrom.
3. JPMorgan Chase Bank 2004-08-17 2014-08-17 MHwt The 25% collateral bond 1,200,000,000 04-0482390-0002
bearing certificate number
1, dated August 17, 2004 in
the principal amount of
$1,000,000,000.00 registered
in the name of JPMorgan
Chase Bank in its capacity
as custodian and agent,
together with all renewals
thereof; substitutions
therefor, accretions thereto
and all income and fruits
therefrom.
4. JPMorgan Chase Bank 2004-08-17 2014-08-17 MH Claims, deposit accounts, 1,200,000,000 04-0482390-0001
inventory, records,
proceeds, insurance and all
Canadian Intellectual
Property Collateral
consisting of Trademarks (as
such capitalized terms are
defined in the registration)
Modification of a published
right registered on
2004-08-27 under #04-
0503625-0001 to add the
"Canadian Intellectual
Property Collateral"
The hypothec is granted to
secure payment bonds or
other titles of indebtedness
(C.c.Q. art. 2692)
5. Wilmington Trust 2004-03-12 2014-03-12 MHwt The 25% collateral bond 2,400,000,000 04-0136239-0004
Company bearing certificate number
1, dated March 12, 2004 in
the principal amount of
$2,000,000,000
registeredin the name
of Wilmington Trust
Company in its
capacity as custodian
and agent, together
with all renewals
therefor, accretions
thereto and all income
and thereof,
substitutions fruits
therefrom
6. Wilmington Trust 2004-03-12 2004-03-12 MH Claims, deposits accounts, 2,400,000,000 04-0136239-0003
Company inventory, records,
proceeds, insurance
and intellectual
property, wherever
situate, and all
renewals, accretions,
substtitutions and
accession. The
hypothec is granted to
secure payment bonds
or other titles of
indebtedness (C.c.Q. art.
2692)
- 64 -
DATE OF EXPIRY DATE OF
REF. REGISTRATION REGISTRATION NATURE OF AMOUNT REGISTRATION
NO. SECURED CREDITOR (Y-M-D) (Y-M-D) SECURITY CHARGED ASSETS & COMMENTS (CDN.$) NUMBER
- ----- ------------------- ------------ -------------- ------------- ---------------------------- ------------- ---------------
7. Wilmington Trust 2004-03-12 2014-03-12 MH The 25% collateral bond 2,400,000,000 04-0136239-002
Company bearing certificate
number 1, dated March
12, 2004 in the
principal amount of
$2,000,000,000
registered in the name
of Wilmington Trust
Company in its
capacity as custodian
and agent, together
with all renewals
thereof, substitutions
therefor, accretions
thereto and all income
and fruits therefrom.
8. JPMorgan Chase Bank 2003-04-01 2013-04-01 MH Claims, deposit accounts, 3,000,000,000 03-0146791-0003
inventory, records,
proceeds, insurance
and intellectual
propertywherever
situate, and all
renewals, accretions,
substitutions and
accession.
The hypothec Is granted
to secure payment of
bonds or other titles
of indebtedness
(C.c.Q.) art. 2692)
9. JPMorgan Chase Bank 2003-04-01 2013-04-01 MH The 25% collateral bond 2,500,000,000 03-0146791-0002
bearing certificate number
1, dated March 31, 2003 in
the principal amount of
$2,500,000,000 registered in
the name of JPMorgan Chase
Bank in its capacity as
custodian and agent,
together with all renewals
thereof, substitutions
therefor, accretions thereto
and all income and fiuits
therefrom.
10. JPMorgan Chase Bank 2003-04-01 2013-04-01 MHwt The 25% collateral bond 2,500,000,000 03-0146791-0001
bearing certificate number
1, dated March 31, 2003 in
me principal amount of
$2,500,000,000 registered in
the name of JPMorgan Chase
Bank in its capacity as
custodian and agent,
together withall renewals
thereof, substitutions
therefor, accretions thereto
and all income and fiuits
therefrom.
11. Assignee: Bay Street 2001-08-16 Assignment The universality of all right, 01-0295871-0001
Funding Trust of a title and interest in, to and
Trustee: Montreal universality under (i) all Eligible
Trust Company of of claims Receivables now existing and
Canada 9see 2 all Eligible Receivables
Re-Assignments created hereafter
in (collectively, the "Purchased
- 65 -
DATE OF EXPIRY DATE OF
REF. REGISTRATION REGISTRATION NATURE OF AMOUNT REGISTRATION
NO. SECURED CREDITOR (Y-M-D) (Y-M-D) SECURITY CHARGED ASSETS & COMMENTS (CDN.$) NUMBER
- ----- ------------------- ------------ -------------- --------- ---------------------------- ------------- ---------------
comments) Receivables"), (ii) all
Related Security with
respect to such Purchased
Receivables, and (iii) all
Collections with respect to,
and other proceeds of, such
Purchased Receivables and
Related Security.
Rectification registered on
2002-08-19 under
#02-0363908-002 changing the
name of the Assignee from
Montreal Trust Company to
Bay Street Funding Trust
represented by Montreal
Trust Company as Trustee.
Modification of a published
right registered on
2002-08-21 under #02-036908
1-0004 changing the Trustee
from Montreal Trust Company
to Montreal Trust Company of
Canada. Re-Assignment of
claims registered on
2003-03-31
under #03-0143807-0001 -
Assignor: Bay Street Funding
Trust, Assignee: Goodyear
Canada Inc. (see following
Re- Assignment).
Re-Assignment of claims
registered on 2003-03-31
under #03-0144491-0001 -
Assignor. Bay Street Funding
Trust, Assignee: Goodyear
Canada Inc. - This
registration is intended to
replace registration
#03-0143807-0001 which had
an erroneous description of
the property.
12. Assignor: 1994-06-29 Re- All of the right, title and 94-0073963-0001
Canadian assignment interest which the
Imperial Bank of a Re-Assignor has or may
of Commerce universa- have as and from June 14,
lity 1994 in, to and under a
of claims General Assignment of Book
Debts made by the Re-
Assignee on March 6, 1986
and registered at the
Registry Office for the
registration division of
Quebec on March 10, 1986
under #1177852. This
registration is made under
Dunlop Tires (Canada) Ltd.
66
QUEBEC SECURITY
PART II- LIST OF OTHER RIGHTS
LEGEND:
InstSale = Reservation of ownership (Instalment Sale)
RL = Rights under a Lease
RD = Rights of redemption
RO = Rights of ownership of the Lessor in a Leasing Contract
THE "REF. NO. " BELOW ARE FOR REFERENCE PURPOSES ONLY AND ARE NOT INTENDED TO
INDICATE RANKING OF THE SECURITY.
DATE OF EXPIRY DATE OF NATURE OF
SECURITY REGISTRATION REGISTRATION RIGHT & DATE AMOUNT REGISTRATION
REF. HOLDER (Y-M-D) (Y-M-D) OF DEED PROPERTY & COMMENTS (CDN.$) NUMBER
- ---- ------------------ ------------ -------------- --------------- ---------------------------------- --------- ---------------
A. Lessor 2004-12-21 2008-12-20 RO (2004-12-20) Specific equipment with all 36
(Cridit- attachments, accessories and payments 04-0729644-0002
bailleur): proceeds thereof including of
De insurance proceeds and $674.22/
Lage Laden indemnities 36mths
Financial term
Services
Canada Inc.
B. Lessor: CSI 2004-12-20 2009-12-31 RL (2004-12-16) Various computer equipment and N/A 04-0726060-0001
Leasing peripherals, which includes but is
Canada Ltd. not limited to hardware and
software, together with all
attachments, accessories,
accessions, repairs, replacements,
substitutions, additions and
improvements thereto leased to
lessee pursuant to Equipment
Schedule Six to Master Lease no.
190760, and all proceeds thereof
and rights of insurance payments
related thereto
- 67 -
DATE OF EXPIRY DATE OF NATURE OF
SECURITY REGISTRATION REGISTRATION RIGHT & DATE AMOUNT REGISTRATION
REF. HOLDER (Y-M-D) (Y-M-D) OF DEED PROPERTY & COMMENTS (CDN.$) NUMBER
- ---- --------------- ------------ -------------- --------------- ---------------------------- ---------------- -----------------
C. Lesson CSI 2004-12-06 2010-11-30 RL (2004-12-03) Various computer equipment N/A 04-0701263-0003
Leasing and peripherals, which
Canada Ltd. includes but is not
limited to hardware and
software, together with
all attachments,
accessories, accessions,
repairs, replacements,
substitutions, additions
and improvements thereto
leased to lessee pursuant
to Equipment Schedule Five
to Master Lease no.
190760, and all proceeds
thereof and rights of
insurance payments related
thereto
D. Lessor: CSI 2004-11-15 2009-10-31 RL (2004-11-10) Various computer equipment N/A 04-0659568-0001
Leasing and peripherals, which
Canada Ltd, includes but is not limited
to hardware and software,
together with all
attachments, accessories,
accessions, repairs,
replacements,substitutions,
additions and improvements
thereto leased to lessee
pursuant to Equipment
Schedule Four to Master
Lease no. 190760, and all
proceeds thereof and
rights of insurance
payments related thereto
E. Lessor. 2004-10-05 2007-10-05 RL (2004-10-05) Specific equipment with 12 payments of 04-0580525-0006
Danka all attachments, $I230/36mthsterm
Financial accessories and proceeds
Services thereof including
Inc. insurance proceeds and
indemnities
F. Lessor (Cridit- 2004-09-28 2009-09-28 RO (no date) Specific vehicle N/A 04-0564879-0002
baiOeur):GE including all
Vehicle and attachments, accessories,
Equipment additions, alterations
Leasing and replacement parts
together with all cash
and non-cash proceeds
G. Lessor 2004-08-30 2009-08-30 RO (no date) Specific vehicle N/A 04-0506226-0002
(Credit- including all
bailleur): GE attachments,
Vehicle accessories, additions,
and alterations and
Equipment replacement parts
Leasing together with all cash
and non-cash proceeds
- 68 -
DATE OF EXPIRY DATE OF NATURE OF
SECURITY REGISTRATION REGISTRATION RIGHT & DATE AMOUNT REGISTRATION
REF. HOLDER (Y-M-D) (Y-M-D) OF DEED PROPERTY & COMMENTS (CDN.$) NUMBER
- ---- --------------- ------------ -------------- --------------- -------------------------------------- --------- ---------------
H. Lessor: CSI 2004-08-23 2009-05-31 RL(2004-06-24) Specific equipment (including all N/A 04-0492645-0001
Leasing repairs, accessories and replacements)
Canada Ltd. at the following respective locations:
9091 Hemi Bourassa Boulevard Quest, St
Laurent, Quebec H4S 1H9 (sic) and 2600
Boul Monseigneur Langlois,
Valleyfield, PQ J6S 506
L Lessor: Les 2004-07-21 2006-04-01 RL (2003-04-01) Specific equipment N/A 04-0429945-0005
Chariots
Elevateurs
du Quebec
Inc.
J. Lesson Les 2004-07-21 2006-10-01 RL (2003-10-01) Specific equipment N/A 04-0429945-0002
Chariots
Elevateurs
du Quebec
Inc.
K. Lessor 2004-04-21 2009-04-21 Ro (no date) Specific vehicle and all attachments, N/A 04-0224191-0003
(Credit- accessories, additions, alterations
bailleur): and replacement parts together with
GE Vehicle all cash and non-cash proceeds of the
and vehicle
Equipment
Leasing
L. Lessor: CSI 2004-03-17 2009-04-30 RL (2004-03-10) Various computer equipment and N/A 04-0142990-0001
Leasing Canada peripherals including without
Ltd. limitation, hardware and software with
all attachments, accessories,
accessions, repairs, replacements,
substitutions, additions and
improvements thereto pursuant to
Master Lease No. 190760 and all
proceeds, accounts receivable, chattel
paper, intangibles, documents of
title, securities, rights of insurance
payment relating thereto or resulting
therefrom
M. Lessor (Credit- 2003-11-25 2008-11-21 RO (1992-11-20) Specific vehicle and all attachments, N/A 03-0630394-0004
bailleur):GE accessories, additions, alterations
Capital and replacement parts together with
Vehicle and all cash and non-cash proceeds of the
Equipment vehicle pursuant to the Lease Agreement
Leasing dated Nov. 20 1992
Inc.
N. Lessor: 2003-10-01 2009-03-29 RL (2003-09-29) All items as defined and listed under Leased 03-0522279-0001
Pitney contract #371677 based
Bowes on
Leasing 25,589.70
O. Lesson 2003-08-22 2013-04-08 RL (2003-08-04) Specific equipment N/A 03-0441069-0001
Prodair
Canada Ltce
-69-
DATE OF EXPIRY DATE OF NATURE OF
SECURITY REGISTRATION REGISTRATION RIGHT & DATE AMOUNT REGISTRATION
REF. HOLDER (Y-M-D) (Y-M-D) OF DEED PROPERTY & COMMENTS (CDN.$) NUMBER
- ---- ------------------ ------------ ----------------- ------------ ----------------------------------- ------- ---------------
P. Lessor (Credit- 2003-07-28 2008-07-28 RO (no date) Specific vehicle and all N/A 03-0388939-0005
bailleur):GE attachments, accessories, (Rl)
Capital Vehicle additions, alterations and
and Equipment replacement parts together with all
Leasing Inc. cash and non-cash proceeds of the
vehicle
Q. Lessor (Credit- 2003-07-21 2008-07-18 RO (no date) Specific vehicle and all N/A 03-0372186-0001
bailleur):GE attachments, accessories,
Capital Vehicle additions, alterations and
and Equipment replacement parts together with all
Leasing Inc. cash and non-cash proceeds of the
vehicle
R. Lessor 2008-06-03 Vehicle and RO (no date) Specific vehicle and all N/A 03-0279478-0002
(Credit-ballleur): Equipment Leasing attachments, accessories, (Rl)
GE Capital Inc. additions, alterations and
2003-06-03 replacement parts together with all
cash and non-cash proceeds of the
vehicle
S. Lessor: Xerox 2003-05-27 2008-05-26 RL (no date) All present and future office N/A 03-0263031-0002
Canada Limited (Global reg. equipment leased on a conditional
C.c.Q. art. sale or similar basis, or otherwise
2961.1) financed by the secured party,
whether or not manufactured by the
secured parry or any affiliate
thereof
T. Lessor (Credit- 2003-05-14 2008-05-13 RO (no date) Specific vehicle and all N/A 03-0238209-0005
baUkur): GE Capital attachments, accessories, (Rl)
Vehicle and additions, alterations and
Equipment Leasing replacement parts together with all
Inc. cash and non-cash proceeds of the
vehicle
U. Lessor (Crtdit- 2003-05-06 2008-05-05 RO (no date) Specific vehicle and all N/A 03-0216182-0005
baUleur): GE attachments, accessories, (Rl)
Capital Vehicle additions, alterations and
and Equipment replacement parts together with all
Leasing Inc. cash and non-cash proceeds of the
vehicle
V. Lessor: Les 2003-04-09 2005-11-25 RL (2002-11 Specific equipment N/A 03-0163266-0012
Chariots EWvateurs -25)
du Quebec Inc.
w. Lessor. Les 2003-0449 2006-04-01 RL Specific equipment N/A 03-0163266-0011
Chariots (2003-04-)1)
E16valeurs du
Qutbec Inc.
X. Lessor (Crtdit- 2003-03-27 2008-03-26 RO Specific vehicle with all N/A 03-0137020-0005
baitleur):GE (1992-11-20) attachment, accessories, (Rl)
Capital Vehicle replacement parts and proceeds
and Equipment
Leasing Inc.
- 70 -
DATE OF EXPIRY DATE OF NATURE OF
SECURITY REGISTRATION REGISTRATION RIGHT & DATE AMOUNT REGISTRATION
REF. HOLDER (Y-M-D) (Y-M-D) OF DEED PROPERTY & COMMENTS (CDN.S) NUMBER
- ---- ------------------ ------------ -------------- --------------- ---------------------------------- ------- ---------------
Y. Lessor 2003-03-12 2006-03-11 RO (no date Specific equipment The N/A 03-0108919-0001
(Credit-bailleur): indicated) registration is made under
Maxium Financial "Granford Manufacturing"
Services Inc.
Z. Lessor 2003-01-13 2013-01-10 RO (2002-11-14) Specific equipment N/A 03-0011726-0005
(Credit-bailleur):
IBM Canada Limitee
AA. Lessor (Credit- 2002-11-22 2012-11-23 RO (2002-11-08) Specific equipment with all N/A 02-0529320-0001
bailleur): Hewlett renewals, additions, service and
-Packard (Canada) accessories. Paragraph stating
Cie that any exchanged equipment
replaces the equipment stated in
the description. Modification of a
published right registered on
2003-01-31 under#03-004558 1-0009
stating that the list of equipment
was modified.
BB. Lessor (Credit- 2002-10-11 2012-10-11 RO (2002-08-13) Specific equipment N/A 02-0457221-0002
bailleur): IBM
Canada Limitfe
CC. Lessor (Credit- 2002-09-10 2006-08-26 RO (2002-08-26) Specific equipment N/A 02-0399598-0001
bailleur):
Services
Financiers CU Lt&
DD. Lessor (Cridit- 2002-08-13 2012-08-12 RO (2001-07-03) Specific equipment N/A 02-0355212-0009
bailleur): IBM
Canada Limitee
EE. Lessor (Credit- 2002-07-12 2007-07-11 RO (1992-11-20) Specific vehicle with all N/A 02-0301 548-0002
bailleur): GE attachment, accessories, (Rl)
Capital Vehicle replacement parts and proceeds
and Equipment
Leasing Inc.
FF. Lessor (Credit- 2002-06-06 2007-06-06 RO (1992-11-20) Specific vehicle with all N/A 02-0243150-0004
bailleur):GE attachment, accessories, (Rl)
Capital replacement parts and proceeds
Vehicle and
Equipment Leasing
Inc.
GG. Lessor (Credit- 2002-05-29 2007-05-29 RO (1992-11-20) Specific vehicle with all N/A 02-0227742-0001
bailleur): GE attachment, accessories, (Rl)
Capital Vehicle replacement parts and proceeds
and Equipment
Leasing Inc.
-71-
DATE OF EXPIRY DATE OF NATURE OF
SECURITY REGISTRATION REGISTRATION RIGHT & DATE AMOUNT REGISTRATION
REF. HOLDER (Y-M-D) (Y-M-D) OF DEED PROPERTY & COMMENTS (CDN.S) NUMBER
- ---- -------------------- ------------ ---------------- --------------- --------------------------------- ------- ---------------
HH. Lessor 2002-01-25 2007-01-24 RO (1992-11-20) Specific vehicles with all N/A 02-0031762-0004
(CrSdit-bailleur): attachment, accessories, (Rl)
GE Capital Vehicle replacement parts and proceeds
and Equipment
Leasing Inc.
II. Lessor 2001-11-28 2006-11-27 RO (1992-11-20) Specific vehicle with all N/A 01-0442189-0002
(Credit-bailleur): attachment, accessories, (Rl)
GE Capital Vehicle replacement parts and proceeds
and Equipment
Leasing Inc.
JJ. Lessor 2001-11-26 2006-ll-23(ren'd RO (2001-02-15) "Lease Agreement (operating)" N/A 01-0436573-0002
(Credit-bailleur): from) 2004-11-23 Renewal registered on 2004-10-28
Nexcap Finance under #04-0623334-0004 to extend
Corpopration the expiry date to 2006-1 1-23
KK. Lessor: IBM Canada 2001-11-08 2011-10-30 RL (2000-12-20) Specific equipment and accessories N/A 01-0412056-0011
Limited
LL. Lesson IBM Canada 2001-11-08 2011-10-29 RL (2000-12-28) Specific equipment N/A 01-0412056-0010
Limitee
MM. Lessor 2001-10-11 2006-10-10 RO (1992-11-20) Specific vehicle with all N/A 01-0372875-0006
(Cridit-bailleur): attachment, accessories, (Rl)
GE Capital Vehicle replacement parts and proceeds
and Equipment
Leasing Inc.
NN. Lessor 2001-09-05 2006-09-04 RO (1992-11-20) Specific vehicle with all N/A 01-0320203-0001
(Cr&lit-bailleur):GE attachment, accessories, (Rl)
Capital Vehicle and replacement parts and proceeds
Equipment Leasing
Inc.
OO. Lessor 2001-06-27 2006-06-26- RO (1992-11-20) Specific vehicle with all W/A 01-0225560-0001
(Credit-bailleur): attachment, accessories, (Rl)
GE Capital Vehicle replacement parts and proceeds
and Equipment
Leasing Inc.
PP. Lessor 2001-05-22 2006-05-22 RO (1992-11-20) Specific vehicle with all N/A 01-0173751-0005
(Credit-bailleur): attachment, accessories, (Rl)
GE Capital Vehicle replacement parts and proceeds
and Equipment Addn'l Lessee: PH & H Canada
Leasing Inc.
- 72 -
DATE OF EXPIRY DATE OF NATURE OF
SECURITY REGISTRATION REGISTRATION RIGHT & DATE AMOUNT REGISTRATION
REF. HOLDER (Y-M-D) (Y-M-D) OF DEED PROPERTY & COMMENTS (CDN.$) NUMBER
- ---- ------------------ ------------ -------------- --------------- -------------------------------------- ------- -----------------
QQ. Lessor 2001-05-17 2006-05-17 RO (2001-04-24) Right, title and interest in and N/A 01-0167004-0003
(Crtdit-bailleur): to all computer and related
MFP Financial equipment and general intangibles
Services Ltd. under Master Equipment Lease
between Lessor and Lessee
including specifically described
equipment with all parts,
software, documentation,
accessories, substitutions,
replacements and
RR. Lessor 2001-03-27 2005-06-22 RO (2001-03-23) All movable property related to N/A 01-0094419-0001
(Credit-bailleur): the phone system supplied by Bell
Corporation Canada.
FinanciereTeletech
SS. Lessor 2000-09-29 2005-09-29 RO (1992-11-20) Specific equipment Addn'l Lessee: N/A 00-0294592-0001
(Credit-bailleur): PH & H Canada
General Electric
Capital Vehicle
and Equipment
Leasing Inc.
TT. Lessee: 2000-09-18 2006-07-30 RL (1996-07-30) Specific equipment N/A 00-0278318-0073
Prodair
Canada Lt(pound)e
UU. Lessor 2000-06-05 2005-07-17 RO (1999-02-16) All movable property related to N/A 00-0148851-0001
(Credit-bailleur): the phone system supplied by
Corporation Bell Canada.
FinanciereTeletech
W. Lesson Dell 2000-03-01 2008-07-28 RL (1999-07-23) All Dell or Non-Dell Computer N/A 00-0049309-0003
Financial ren'd from equipment and peripherals together
Services 2005-02-28 with all additions, accessions
Canada and replacements and proceeds
Limited Renewal of the publication
registered on 2003-07-24 under
#03-0380954-0001 extending
the expiry date from 2005-02-28
to 2009-02-28
- 73 -
DATE OF EXPIRY DATE OF NATURE OF
SECURITY REGISTRATION REGISTRATION RIGHT & DATE AMOUNT REGISTRATION
REF. HOLDER (Y-M-D) (Y-M-D) OF DEED PROPERTY & COMMENTS (CDN.$) NUMBER
- ---- ------------------ ------------ -------------- --------------- -------------------------------------- ------- -----------------
ww. Lessor 2000-01-05 2010-01-04 RO (1987-04-03) All present and future motor N/A 00-0000526-0001
(Credit-bailleur): vehicles, automotive equipment, and
PHH Vehicle materials-handling equipment
Management leased fiom the Lessor to the
Services Inc. Lessee, together with all present
and future attachments, accessions,
accessories, replacement parts
and proceeds.
"Inscription globale"
(CCQ art 2961.1)
Assignment of rights registered
on 2000-09-14 under #00-0274576-0001
-Assignor: PHH Vehicle Management
Services Inc., Assignee: Leaf
Trust, c/o Canadian Imperial
Bank of Commerce, Trustee: TD
Trust Company
Assignment of rights registered on
2000-09-14 under #00-0274576- 0004
-Assignor PHH Vehicle Management
Services Inc., Assignee: Leaf Trust,
c/o Canadian Imperial Bank of
Commerce, Trustee: TD Trust Company
Assignment of rights registered on
2000-09-14 under #00-0274576- 0002
-- Assignor: PHH Vehicle Management
Services Inc., Assignee: Leaf Trust,
c/o Canadian Imperial Bank of
Commerce, Trustee: TD Trust Company
- 74 -
DATE OF EXPIRY DATE OF NATURE OF
SECURITY REGISTRATION REGISTRATION RIGHT & DATE AMOUNT REGISTRATION
REF. HOLDER (Y-M-D) (Y-M-D) OF DEED PROPERTY & COMMENTS (CDN.$) NUMBER
- ---- ------------------ ------------ -------------- --------------- -------------------------------------- ------- -----------------
Assignment of rights registered on
2000-09-14 under #00-0274576- 0003
-Assignor: PHH Vehicle Management
Services Inc., Assignee: Leaf Trust,
c/o Canadian Imperial Bank of
Commerce, Trustee: TD Trust Company
Assignment of rights registered on
2002-09-11 under #02-0400420- 0001
-Assignor. PHH Vehicle Management
Services Inc., Assignee: Leaf Trust,
c/o Canadian Imperial Bank of
Commerce, Trustee: The Canada Trust
Company -- Assignment of specifically
described vehicle
Assignment of rights registered on
2003-02-14 under #03-0069129- 0001
-Assignor: PHH Vehicle Management
Services Inc., Assignee: Leaf Trust,
c/o Canadian Imperial Bank of Commerce,
Trustee: The Canada Trust Company --
Assignment of specifically described
vehicles
- 75 -
DATE OF EXPIRY DATE OF NATURE OF
SECURITY REGISTRATION REGISTRATION RIGHT & DATE AMOUNT REGISTRATION
REF. HOLDER (Y-M-D) (Y-M-D) OF DEED PROPERTY & COMMENTS (CDN.$) NUMBER
- ---- ------------------ ------------ -------------- --------------- -------------------------------------- ------- -----------------
Assignment of rights registered on
2003-02-14 under #03-0069266- 0001
-Assignor. PHH Vehicle Management
Services Inc., Assignee: Leaf
Trust, c/o Canadian Imperial Bank
of Commerce, Trustee: The Canada
Trust Company -- Assignment of
specifically described vehicles
Assignment of rights registered on
2003-04-09 under #03-0165239- 0001
-Assignor: PHH Vehicle Management
Services Inc., Assignee: Leaf Trust,
c/o Canadian Imperial Bank of
Commerce, Trustee: The Canada Trust
Company -- Assignment of specifically
described vehicles
Assignment of rights registered on
2003-05-06 under #03-0218201- 0001
-Assignor: PHH Vehicle Management
Services Inc., Assignee: Leaf Trust,
c/o Canadian Imperial Bank of
Commerce, Trustee: The Canada Trust
Company -- Assignment of specifically
described vehicles
- 76 -
DATE OF EXPIRY DATE OF NATURE OF
SECURITY REGISTRATION REGISTRATION RIGHT & DATE AMOUNT REGISTRATION
REF. HOLDER (Y-M-D) (Y-M-D) OF DEED PROPERTY & COMMENTS (CDN.$) NUMBER
- ---- ------------------ ------------ -------------- --------------- -------------------------------------- ------- -----------------
Assignment of rights registered on
2003-08-26 under #03-0443915- 0001
-Assignor: PHH Vehicle Management
Services Inc., Assignee: Leaf Trust,
c/o Canadian Imperial Bank of
Commerce, Trustee: The Canada Trust
Company -- Assignment of specifically
described vehicles
Modification to a published right
registered on 2003-09-05 under
#03-0465017-0009 the change the
Lessor's address Assignment of rights
registered on 2003-10-07 under
#03-0534159-0001 -Assignor: PHH
Vehicle- Management Services Inc.,
Assignee: Leaf Trust, c/o Canadian
Imperial Bank of Commerce, Trustee:
The Canada Trust Company -- Assignment
of specifically described vehicles
Assignment of rights registered on
2004-01-09 under #04-0010213-
0001-Assignor: PHH Vehicle Management
Services Inc., Assignee: Leaf Trust,
c/o Canadian Imperial Bank of
Commerce, Trustee: The Canada Trust
Company -- Assignment of specifically
described vehicles
- 77 -
DATE OF EXPIRY DATE OF NATURE OF
SECURITY REGISTRATION REGISTRATION RIGHT & DATE AMOUNT REGISTRATION
REF. HOLDER (Y-M-D) (Y-M-D) OF DEED PROPERTY & COMMENTS (CDN.$) NUMBER
- ---- ------------------ ------------ -------------- --------------- -------------------------------------- ------- -----------------
Assignment of rights registered on
2004-04-21 under#04-0224516- 0001
-Assignor: PHH Vehicle Management
Services Inc., Assignee: Leaf Trust,
c/o Canadian Imperial Bank of
Commerce, Trustee: The Canada Trust
Company -- Assignment of specifically
described vehicles
Rectification to the aforementioned
assignment (04-0224516-0001) to
rectify the addresses in the
registration
Assignment of rights registered on
2004-07-13 under #04-041 1245- 0001
-Assignor: PHH Vehicle Management
Services Inc., Assignee: Leaf Trust,
c/o Canadian Imperial Bank of
Commerce. Trustee: The Canada Trust
Company -- Assignment of specifically
described vehicles
Assignment of rights registered on
2004-07-14 under #04-0414378- 0001
-Assignor: PHH Vehicle Management
Services Inc., Assignee.: Leaf Trust,
do Canadian Imperial Bank of Commerce,
Trustee: The Canada Trust Company --
Assignment of specifically described
vehicles
- 78 -
DATE OF EXPIRY DATE OF NATURE OF
SECURITY REGISTRATION REGISTRATION RIGHT & DATE AMOUNT REGISTRATION
REF. HOLDER (Y-M-D) (Y-M-D) OF DEED PROPERTY & COMMENTS (CDN.$) NUMBER
- ---- ------------------ ------------ -------------- --------------- -------------------------------------- ------- -----------------
Assignment of rights registered on
2004-1 1-30 under #04-0687775- 0001
-Assignor. PHH Vehicle Management
Services Inc. c/o PHH Corporation;
Assignee: Leaf Trust c/o Canadian
Imperial Bank of Commerce; Trustee:
The Canada. Trust Company -Assignment
of specifically described vehicles
Assignment of rights registered on
2005-01-05 under #05-000 1345- 0001
-Assignor PHH Vehicle Management
Services Inc. do PHH Corporation;
Assignee: Leaf Tiustc/o Canadian
Imperial Bank of Commerce; Trustee:
The Canada Trust Company - Assignment
of specifically described vehicles
Rectification (to registration
#04-0411245-0001 above) registered
on 2005-01-07 under #05-0006555- 0001
to correct a registration number which
should have read #00-0110610-0001
instead of #03- 0374759-0006
- 79 -
DATE OF EXPIRY DATE OF NATURE OF
SECURITY REGISTRATION REGISTRATION RIGHT & DATE AMOUNT REGISTRATION
REF. HOLDER (Y-M-D) (Y-M-D) OF DEED PROPERTY & COMMENTS (CDN.$) NUMBER
- ---- ------------------ ------------ -------------- --------------- -------------------------------------- ------- -----------------
Rectification (to registration
#05-0006555-0001 above) registered on
2005-02-16 under #05-0081 700- 0001
to correct an address
XX. Lessor 1999-12-16 2004-09-16 RO (1992-11-20) Specific vehicles N/A 99-0223781-0001
(CrMt-bailleur); (Rl)
General Electric Reduction registered on 2001-10-02
Capital Vehicle under #01 -0360010-0002 affecting
and Equipment 6 vehicles.
Leasing Inc.
Reduction registered on 2002-01-29
under #02-0035293-0001 affecting 3
vehicles
YY. Lessor (Credit 1999-12-13 2005-09-16 RO (1992-11-20) Specific vehicles and accessory N/A 99-0218990-0008
Bailleur): (ren'd from) (Rl)
General Electric 2004-09-16 Renewal of a registration registered
Capital Vehicle on 2004-08-24 under #04-0495692-004
and Equipment to extend the expiry dated on
Leasing Inc. 2005-09-16
- 80 -
DATE OF EXPIRY DATE OF NATURE OF
SECURITY REGISTRATION REGISTRATION RIGHT & DATE AMOUNT REGISTRATION
REF. HOLDER (Y-M-D) (Y-M-D) OF DEED PROPERTY & COMMENTS (CDN.$) NUMBER
- ---- ------------------ ------------ -------------- --------------- -------------------------------------- ------- -----------------
zz. Lessor 1999-11-23 2005-11-10 RO (1999-11-10) Specific equipment N/A 99-0201774-0010
(Credit-bailleur):
Newcourt
Financial Ltd.
AAA. Lessor 1999-11-11 2005-11-09 RO (1990-11-10) All movable property related N/A 90-0191178-0012
(CrtdU-bailleur): to the phone system supplied by Bell
Corporation Canada.
Financifere
Teletech
EXHIBIT A
FORM OF BORROWING REQUEST
JPMorgan Chase Bank, N.A.,
as Administrative Agent
for the Lenders referred to below
c/o Loan & Agency Services Group
1111 Fannin St., 10th Floor
Houston, Texas 77002
Attention: Alice Telles
[Date]
Ladies and Gentlemen:
Reference is made to the Amended and Restated First Lien Credit Agreement
dated as of April 20, 2007 (as amended, restated or otherwise modified and in
effect on the date hereof, the "Credit Agreement"), among the undersigned, as
Borrower, the Lenders party thereto, the Issuing Banks party thereto, Citicorp
USA, Inc., as Syndication Agent, and JPMorgan Chase Bank, N.A., as
Administrative Agent and Collateral Agent. Terms defined in the Credit Agreement
are used herein with the same meanings. This notice constitutes a Borrowing
Request and the Borrower hereby requests a Borrowing under the Credit Agreement,
and in that connection the Borrower specifies the following information with
respect to the Borrowing requested hereby:
(A) Aggregate amount of the requested Borrowing(1):___________________
(B) Date of Borrowing (which is a Business Day):___________________
(C) Interest rate basis (2):_____________________
(D) Interest Period (3):_________________________
- ----------
(1) Not less than $5,000,000 and an integral multiple of $1,000,000 (provided
that an ABR Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the Total Commitment, or that is required to
finance the reimbursement of an LC Disbursement).
(2) Eurodollar Borrowing or ABR Borrowing.
(3) If the Borrowing is a Eurodollar Borrowing. Must comply with the
definition of "Interest Period" and end not later than the Commitment
Termination Date.
2
(E) Location and number of Borrower's account to which proceeds of
Borrowing are to be disbursed:______________________
The Borrower hereby represents and warrants that the conditions specified
in [paragraphs (1), (2) and (3) of Section 4.02(a)](4) [Section 4.02(b)](5) of
the Credit Agreement are satisfied.
Very truly yours,
THE GOODYEAR TIRE & RUBBER COMPANY,
by
__________________________________
Name:
Title:
- ----------
(4) For any Borrowing (other than a conversion or continuation of an
outstanding Borrowing and other than a Borrowing to reimburse an LC
Disbursement made pursuant to Section 2.03(e)).
(5) For any Borrowing to reimburse an LC Disbursement made pursuant to Section
2.03(e).
EXHIBIT B
FORM OF INTEREST ELECTION REQUEST
JPMorgan Chase Bank, N.A.,
as Administrative Agent
for the Lenders referred to below
Loan & Agency Services Group
1111 Fannin, 10th Floor
Houston, Texas 77002
Attention: Alice Telles
[Date]
Ladies and Gentlemen:
Reference is made to the Amended and Restated First Lien Credit Agreement
dated as of April 20, 2007 (as amended, restated or otherwise modified and in
effect on the date hereof, the "Credit Agreement"), among the undersigned, as
Borrower, the Lenders party thereto, the Issuing Banks party thereto, Citicorp
USA, Inc., as Syndication Agent, and JPMorgan Chase Bank, N.A., as
Administrative Agent and Collateral Agent. Terms defined in the Credit Agreement
are used herein with the same meanings. This notice constitutes an Interest
Election Request and the Borrower hereby requests the conversion or continuation
of a Borrowing under the Credit Agreement, and in that connection the Borrower
specifies the following information with respect to the Borrowing to be
converted or continued as requested hereby:
(A) Borrowing to which this request applies(1):
_______________________________________________
(B) Principal amount of Borrowing to be converted/continued(2):
______________________________________________
(C) Effective date of election (which is a Business Day):
______________________________________________
(D) Interest rate basis of resulting Borrowing(s)(3):
______________________________________________
- ----------
(1) Specify existing Type and last day of current Interest Period.
(2) If different options are being elected with respect to different portions
of the Borrowing, indicate the portions thereof to be allocated to each
resulting Borrowing. Each resulting Borrowing must be not less than
$5,000,000 and an integral multiple of $1,000,000, except that an ABR
Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the Total Commitment, or that is required to finance the
reimbursement of an LC Disbursement.
2
(E) Interest Period of resulting Borrowing(s)(4):
______________________________________________
Very truly yours,
THE GOODYEAR TIRE & RUBBER COMPANY,
by
_______________________________
Name:
Title:
- ----------
(3) Eurodollar Borrowing or ABR Borrowing.
(4) If the Borrowing is to be a Eurodollar Borrowing. Must comply with the
definition of "Interest Period" and end not later than the Commitment
Termination Date.
EXHIBIT C
[FORM OF]
Promissory NOTE
$[ ] New York, New York
April 20, 2007
FOR VALUE RECEIVED, the undersigned, THE GOODYEAR TIRE & RUBBER COMPANY,
an Ohio corporation (the "Company"), hereby promises to pay to the order of
[ ] (the "Lender") or its registered assigns, at the office of
JPMorgan Chase Bank, N.A. (the "Administrative Agent") at 270 Park Avenue, New
York, New York 10017, on the Commitment Termination Date (as defined in the
Amended and Restated First Lien Credit Agreement dated as of April 20, 2007 (as
the same may be amended, supplemented or otherwise modified from time to time,
the "Credit Agreement") among the Company, the Lenders party thereto, the
Issuing Banks party thereto, Citicorp USA, Inc., as Syndication Agent, and
JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent), the
lesser of (i) the principal sum of [ ] ($[ ]) or (ii)
the aggregate unpaid principal amount of all Loans (as defined in the Credit
Agreement) made to the Company by the Lender pursuant to the Credit Agreement in
lawful money of the United States of America in immediately available funds, and
to pay interest from the date hereof on the principal amount hereof from time to
time outstanding, in like funds, at said office, at the rate or rates per annum
and payable on the dates provided in the Credit Agreement.
The Company promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates at
the rate or rates provided in the Credit Agreement.
The nonexercise by the holder hereof of any of its rights hereunder in any
particular instance shall not constitute a waiver thereof in that or any
subsequent instance.
All borrowings evidenced by this Note and all payments and prepayments of
the principal hereof and interest hereon and the respective dates thereof shall
be endorsed by the holder hereof on the schedule attached hereto and made a part
hereof or on a continuation thereof that shall be attached hereto and made a
part hereof, or otherwise recorded by such holder in its internal records;
provided, however, that the failure of the holder hereof to make such a notation
or any error in such a notation shall not affect the obligations of the Company
under this Note.
2
This Note is given subject to the provisions of the Credit Agreement,
which, among other things, contains provisions for the acceleration of the
maturity hereof upon the happening of certain events, for optional prepayment of
the principal hereof prior to the maturity hereof and for the amendment or
waiver of certain provisions of the Credit Agreement, all upon the terms and
conditions therein specified. This Note is entitled to the benefit of the Credit
Agreement and is guaranteed and secured as provided therein and in the other
Credit Documents (as defined in the Credit Agreement). This Note shall be
governed by and construed in accordance with the laws of the State of New York.
THE GOODYEAR TIRE & RUBBER COMPANY,
by
_________________________________
Name:
Title:
3
LOANS AND PAYMENTS
Amount Unpaid
and Type of Maturity Principal Name of Person
Date Loan Date Principal Interest Balance of Note Making Notation
EXHIBIT D
[FORM OF]
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption") is dated
as of the effective date set forth below (the "Effective Date") and is entered
into by and between the assignor identified below (the "Assignor") and the
assignee identified below (the "Assignee"). Capitalized terms used but not
defined herein shall have the meanings given to them in the Amended and Restated
First Lien Credit Agreement dated as of April 20, 2007, among The Goodyear Tire
& Rubber Company, the Lenders party thereto, the Issuing Banks party thereto,
Citicorp USA, Inc., as Syndication Agent, and JPMorgan Chase Bank, N.A., as
Administrative Agent and Collateral Agent (as amended, restated or otherwise
modified from time to time, the "Credit Agreement"), receipt of a copy of which
is hereby acknowledged by the Assignee. The Standard Terms and Conditions set
forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth
herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below, (i) all of the Assignor's rights
and obligations in its capacity as a Lender under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor (including any Letters of
Credit and guarantees included therein) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other
right of the Assignor (in its capacity as a Lender) against any Person, whether
known or unknown, arising under or in connection with the Credit Agreement, any
other documents or instruments delivered pursuant thereto or the loan
transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory
claims and all other claims at law or in equity related to the rights and
obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as the "Assigned Interest"). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided
in this Assignment and Assumption, without representation or warranty by the
Assignor.
2
Assignor: _____________________________________
Assignee: _____________________________________
and is an [Affiliate]/[Approved Fund] of [Identify Lender](1)
Borrower(s): The Goodyear Tire & Rubber Company
Administrative Agent: JPMorgan Chase Bank, N.A., as the Administrative
Agent under the Credit Agreement
Assigned Interest:
Aggregate Amount of Amount of Percentage Assigned of
Commitment/Loans for Commitment/Loans Aggregate Amount of
all Lenders Assigned Commitment/Loans
-------------------- ---------------- ----------------------
Commitment/Loans $ $ %
Effective Date: _________ __, 20_ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND
WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR].
The Assignee (in the case an Assignee is not a Lender) agrees to deliver
to the Administrative Agent a completed Administrative Questionnaire in which
the Assignee designates one or more credit contacts to whom all syndicate-level
information (which may contain material non-public information about the Credit
Parties and their Related Parties or their respective securities) will be made
available and who may receive such information in accordance with the Assignee's
compliance procedures and applicable laws, including Federal and state
securities laws.
- ----------
(1) Select as applicable.
3
The terms set forth in this Assignment and Assumption are hereby agreed
to:
[NAME OF ASSIGNOR], as Assignor,
by
__________________________________
Name:
Title:
[NAME OF ASSIGNEE], as Assignee,
by
__________________________________
Name:
Title:
4
SIGNATURE PAGE TO
THE GOODYEAR TIRE & RUBBER COMPANY
ASSIGNMENT AND ASSUMPTION
[Consented to and](2) Accepted:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and a Principal Issuing Bank(3),
by
__________________________________
Name:
Title:
Consented to:(4)
THE GOODYEAR TIRE & RUBBER COMPANY,
by
__________________________________
Name:
Title:
- ----------
(2) If the consent of the Administrative Agent is required by the terms of the
Credit Agreement.
(3) Add or replace to reflect the Principal Issuing Banks under the Credit
Agreement.
(4) If the consent of the Borrower is required by the terms of the Credit
Agreement.
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance, or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Credit Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Documents or any collateral thereunder, (iii) the financial condition of the
Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Credit Document or (iv) the performance or observance by the
Borrower, any of its Subsidiaries or Affiliates or any other Person of any of
their respective obligations under any Credit Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
satisfies the requirements, if any, specified in the Credit Agreement that are
required to be satisfied by it in order to acquire the Assigned Interest and
become a Lender, (iii) from and after the Effective Date, it shall be bound by
the provisions of the Credit Agreement as a Lender thereunder and, to the extent
of the Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant to Section 5.01 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Agents, the Assignor or any other Lender, and (v) attached to this
Assignment and Assumption is any documentation required to be delivered by it
pursuant to the terms of Section 2.14 of the Credit Agreement, duly completed
and executed by the Assignee; (b) agrees that (i) it will, independently and
without reliance on the Agents, the Assignor or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Documents, (ii) it will perform in accordance with their terms all of
the obligations which by the terms of the Credit Documents are required to be
performed by it as a Lender and (iii) it will not book any Loan or hold any
participation in any Letter of Credit or LC Disbursement at an Austrian branch
or through an Austrian Affiliate and will comply with Section 9.18 of the Credit
Agreement; and (c) appoints and authorizes the Agents to take such action as
agents on its behalf and to exercise such powers under the Credit
2
Documents as are delegated to them by the terms thereof, together with such
powers as are reasonably incidental thereto.
2. Guarantee and Collateral Agreement. The Assignee, by executing and
delivering this Assignment and Assumption, acknowledges receipt of a copy of the
Guarantee and Collateral Agreement and approves and agrees to be bound by and to
act in accordance with the terms and conditions of the Guarantee and Collateral
Agreement and each other Security Document, specifically including (i) the
provisions of Article VII of the Guarantee and Collateral Agreement (governing
the exercise of remedies under the Security Documents and the distribution of
proceeds realized from such exercise), (ii) the provisions of Articles IX and X
of the Guarantee and Collateral Agreement (relating to the duties and
responsibilities of the Collateral Agent thereunder and providing for the
indemnification and the reimbursement of expenses of the Collateral Agent
thereunder by the Lenders) and (iii) the provisions of Section 12.13 of the
Guarantee and Collateral Agreement (providing for releases of Guarantees of and
Collateral securing the Obligations).
3. Payments. From and after the Effective Date, the Administrative Agent
shall make all payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignor for amounts
which have accrued to but excluding the Effective Date and to the Assignee for
amounts which have accrued from and after the Effective Date.
4. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by facsimile or other electronic image scan transmission shall be effective as
delivery of a manually executed counterpart of this Assignment and Assumption.
This Assignment and Assumption shall be governed by and construed in accordance
with the law of the State of New York.
EXHIBIT E-1
FORM OF OPINION OF BORROWER'S OUTSIDE COUNSEL
April 20, 2007
The Lenders party to the Credit Agreement
referred to below and
JPMorgan Chase Bank, N.A.,
as Administrative Agent
One Chase Manhattan Plaza
8th Floor
New York, New York 10081
Goodyear First Lien Credit Agreement
Ladies and Gentlemen:
We have acted as counsel to The Goodyear Tire & Rubber Company, an Ohio
corporation (the "Company"), and each of the entities listed on Exhibit A hereto
(collectively, the "Subsidiary Guarantors") in connection with the Amended and
Restated First Lien Credit Agreement, dated as of April 20, 2007 (the "Credit
Agreement"), among the Company, certain lenders party thereto (the "Lenders"),
JPMorgan Chase Bank, N.A., as administrative agent and collateral agent (the
"Collateral Agent"), and Citicorp USA, Inc., as syndication agent. This opinion
is delivered to you pursuant to Section 4.01(a)(i) of the Credit Agreement.
Unless otherwise defined herein, capitalized terms used herein have the meanings
provided in the Credit Agreement.
We have reviewed (i) the Credit Agreement, (ii) the First Lien Guarantee
and Collateral Agreement, dated as of April 8, 2005, among the Company, the
Subsidiary Guarantors, the Grantors party thereto and identified on Exhibit B
hereto (the "Grantors"), certain other Subsidiaries and the Collateral Agent, as
reaffirmed and amended by the Reaffirmation Agreement, dated as of April 20,
2007, among the Company, the subsidiaries of the Company identified therein and
the Collateral Agent (as so amended, the "Guarantee and Collateral Agreement"),
(iii) the Lenders Lien Subordination and Intercreditor Agreement (the "Lenders
LSIA"), dated as of April 8, 2005, among JPMorgan Chase Bank, N.A., as
collateral agent for the First Lien Secured Parties referred to therein,
Deutsche Bank Trust Company Americas, as collateral agent for the Second Lien
Secured Parties referred to therein, the Company and the subsidiaries of the
Company named therein, (iv) the Lien Subordination and Intercreditor Agreement
(the "LSIA"), dated as of March 12, 2004, among JPMorgan Chase Bank, N.A., as
Credit Facilities Collateral Agent (as defined in the LSIA), Wilmington Trust
Company, as Initial Junior Indebtedness Collateral Agent (as defined in the
LSIA), the Company and the subsidiaries of the Company named therein, (v) the
Notice of Designation in respect of the Obligations, dated as of April 20, 2007
(the "Notice of Designation"), from the Company to JPMorgan Chase Bank, N.A., as
Credit Facilities Collateral Agent, and
Wilmington Trust Company, as Initial Junior Indebtedness Collateral Agent,
pursuant to the LSIA, (vi) the perfection certificate, dated April 20, 2007,
delivered by the Company pursuant to Section 4.01(i)(i) of the Credit Agreement,
(vii) the financing statements filed in the State of Delaware, the State of
Arizona, the State of Ohio and the State of California pursuant to the Guarantee
and Collateral Agreement describing certain property of certain Grantors and
naming such Grantors, respectively, as debtors, and the Collateral Agent, as
secured party (the "Financing Statements"), (viii) the deposit account control
agreements listed on Exhibit C hereto (the "Deposit Account Agreements") and
(ix) such corporate records, certificates and other documents, and such
questions of law, as we have deemed necessary or appropriate for the purposes of
this opinion. The agreements referred to in clauses (i), (ii), (iii) and (iv)
are referred to in this opinion each as a "Document" and collectively as the
"Documents."
We have assumed that the Company, the Grantors and the Subsidiary
Guarantors (each a "Credit Party" and collectively, the "Credit Parties"), other
than the entities listed on Exhibit D hereto (each, a "Delaware Company" and
collectively, the "Delaware Companies"), are each duly organized, validly
existing and in good standing under the laws of their respective jurisdictions
of organization and that each Credit Party, other than the Delaware Companies,
has the power and authority to execute and deliver the Documents to which it is
a party and to perform its obligations under such Documents. We have assumed
further that each of the Credit Parties, other than the Delaware Companies, has
duly authorized, executed and delivered the Documents to which it is a party. We
have assumed further that the execution and delivery by each Credit Party, other
than the Delaware Companies, of each Document to which such Credit Party is a
party and the consummation of the transactions contemplated thereby do not
breach or conflict with the provisions of such Credit Party's certificate of
incorporation, certificate of formation, by-laws, limited liability company
agreement or other organizational documents, as applicable. We have relied as to
certain matters on information obtained from public officials, officers of the
Company and its Subsidiaries and other sources that we believe to be
responsible.
We have assumed that the execution and delivery of the Documents by the
Credit Parties and the performance by the Credit Parties of their obligations
thereunder do not and will not (x) violate or contravene any judgment, order,
decree or permit issued by any court, arbitrator or governmental or regulatory
authority, (y) conflict with or result in the breach of, constitute a default
under, or cause or permit any termination or any mandatory prepayment or
acceleration under, any contract or other instrument binding on or affecting the
Company or any subsidiary thereof or any of their respective properties or
assets other than the agreements listed on Exhibit E hereto (such agreements
listed on Exhibit E, the "Material Agreements"), or (z) result in the creation
or imposition of any lien, charge or encumbrance (other than those created or
imposed under the Documents) upon or with respect to any property or assets of
the Company or any Subsidiary.
We have assumed that all signatures are genuine, that all documents
submitted to us as originals are authentic and that all copies of documents
submitted to us conform to the originals. We have assumed further that each of
the Secured Parties has duly authorized, executed and delivered the Documents to
which it is a party and that
2
each such Document is the valid and binding obligation of such Secured Party,
enforceable against such Secured Party in accordance with its terms.
Based upon the foregoing and subject to the qualifications and assumptions
set forth below, we are of the opinion that:
1. Each Delaware Company is a corporation validly existing and in good
standing under the laws of the State of Delaware and has the corporate power and
authority to execute and deliver the Documents to which it is a party, to
consummate the transactions contemplated thereby and to perform its respective
obligations thereunder. Each Delaware Company has duly authorized, executed and
delivered the Documents to which it is a party.
2. Each Document constitutes the valid and binding obligation of the
Credit Parties party thereto, enforceable against each such Credit Party in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
3. No consent, approval, authorization or other action by or filing with
any governmental agency or instrumentality of the State of New York or the
United States of America or under the Delaware General Corporation Law (the
"DGCL") is required on the part of any Credit Party for the execution and
delivery of any Document to which such Credit Party is a party or the
consummation of the transactions contemplated thereby, except (i) those already
obtained or made and (ii) such filings and other actions as are required to
perfect the security interests and liens granted under the Documents and the
other Credit Documents.
4. The execution and delivery by each Credit Party of each Document to
which such Credit Party is a party and the consummation of the transactions
contemplated thereby do not (i) violate the DGCL or any New York State or
Federal statute, law, rule or regulation to which such Credit Party is subject,
(ii) breach the provisions of, or cause a default under, any Material Agreement
or (iii) in the case of each Delaware Company, breach the provisions of such
Delaware Company's certificate of incorporation, certificate of formation,
by-laws, limited liability company agreement or other organizational documents,
as applicable.
5. The Guarantee and Collateral Agreement creates in favor of the
Collateral Agent for the benefit of the Collateral Agent and the Secured Parties
party to the Credit Agreement a valid security interest in the Article 9
Collateral (as such term is defined in the Guarantee and Collateral Agreement),
as security for the Obligations, to the extent that security interests in the
Article 9 Collateral can be created under Article 9 of the Uniform Commercial
Code of the State of New York (the "NYUCC").
6. The Guarantee and Collateral Agreement, together with the delivery to
the Collateral Agent, in the State of New York, of the certificates evidencing
pledged equity interests identified on Exhibit F (the "Pledged Securities"),
create in favor
3
of the Collateral Agent, as security for the Obligations, a perfected security
interest under the NYUCC in each Grantor's rights in the Pledged Securities.
Assuming that the Collateral Agent and each Secured Party acquired their
respective interests in the Pledged Securities without notice of any adverse
claim and that each Pledged Security is either in bearer form or in registered
form, issued or endorsed by an effective endorsement in the name of the
Collateral Agent or in blank, the Collateral Agent acquired its security
interest in the Pledged Securities free of any adverse claim.
7. The Guarantee and Collateral Agreement, together with the delivery to
the Collateral Agent, in the State of New York, of the promissory notes
evidencing Pledged Debt Securities (as defined in the Guarantee and Collateral
Agreement) identified on Exhibit G hereto (the "Pledged Notes"), create in favor
of the Collateral Agent, as security for the Obligations, a perfected security
interest under the NYUCC in each Grantor's rights in the Pledged Notes. Assuming
that the Collateral Agent took possession of the Pledged Notes in good faith and
that none of the Collateral Agent or any Secured Party has knowledge that the
security interest in favor of the Collateral Agent in the Pledged Notes violates
the rights of any secured party, the security interest of the Collateral Agent
in the Pledged Notes will be prior to any other security interest in the Pledged
Notes created under Article 9 of the NYUCC.
8. The Financing Statements filed in the office of the Secretary of State
of Delaware, the office of the Secretary of State of Arizona, the office of the
Secretary of State of Ohio and the office of the Secretary of State of
California (the "Filing Offices") were in proper form for filing in such
respective offices on the respective dates they were filed. The filing of each
such Financing Statement in the applicable Filing Office was, on the respective
dates they were filed, sufficient to perfect the security interest created in
favor of the Collateral Agent for the benefit of the Secured Parties by the
Guarantee and Collateral Agreement in the collateral described in such Financing
Statement to the extent a security interest can be perfected in such collateral
under Article 9 of the Uniform Commercial Code of the State of Delaware, Chapter
9 of the Uniform Commercial Code of the States of Arizona and Ohio and Division
9 of the Uniform Commercial Code of the State of California by filing a
financing statement in the applicable Filing Office.
9. The execution and delivery of the Deposit Account Agreements was
sufficient to perfect the security interest of the Collateral Agent in each
deposit account (as defined in Section 9-102 of the NYUCC) set forth in Exhibit
A to each of the Deposit Account Agreements.
10. The use of the proceeds from the Loans as described in the Credit
Agreement will not violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System.
11. The Company is not an "investment company" as defined in the
Investment Company Act of 1940.
12. Upon delivery of the Notice of Designation to the Collateral
4
Agents (as defined in the Notice of Designation), the Obligations shall be
considered "Designated Senior Obligations" for the purposes of the LSIA.
The foregoing opinion is subject to the following qualifications:
(a) The enforceability of certain rights and remedies purported to be
granted to the Lenders under the Documents may be limited by applicable law, but
those limitations (exclusive of the matters referred to in the other
qualifications set forth herein) do not make the rights and remedies afforded
under the Documents inadequate for the practical realization of the principal
benefits intended to be provided by the Documents.
(b) We express no opinion as to (i) the ownership of or title to any
property, or as to the adequacy of any description of any property, (ii) zoning,
subdivision or other matters affecting the use, occupancy or operation of the
Collateral, (iii) any security interest or lien, other than as specifically set
forth in paragraphs 5 through 9 or (iv) the priority of any security interest or
lien, other than as specifically set forth in paragraph 7.
(c) We express no opinion as to the existence or adequacy of consideration
received by any Subsidiary Guarantor in connection with such parties'
obligations under the Guarantee and Collateral Agreement.
(d) We express no opinion as to:
(i) waivers of defenses, subrogation and related rights, rights to
trial by jury, rights to object to venue, or other rights or benefits
bestowed by operation of law;
(ii) releases or waivers of unmatured claims or rights;
(iii) indemnification, contribution, exculpation or provisions for
the non-survival of representations, to the extent they purport to
indemnify any party against, or release or limit any party's liability
for, its own breach or failure to comply with statutory obligations, or to
the extent such provisions are contrary to public policy;
(iv) grants of powers of attorney or proxies;
(v) provisions purporting to require a prevailing party in a dispute
to pay attorneys' fees and expenses, or other costs, to a non-prevailing
party;
(vi) provisions for liquidated damages and penalties, penalty
interest and interest on interest;
(vii) provisions purporting to make a party's determination
conclusive or permitting a party to act in its sole or
5
absolute discretion;
(viii) exclusive jurisdiction or venue provisions; and
(ix) provisions purporting to supersede equitable principles,
including, without limitation, provisions requiring amendments and waivers
to be in writing and provisions making notices effective even if not
actually received.
(e) We express no opinion as to any right of setoff, netting, bankers lien
or counterclaim or right to the application of property in the possession or
control of any Secured Party.
(f) Except as set forth in paragraph 11, we express no opinion as to any
Federal or state securities or Blue Sky laws or as to any anti-fraud laws.
(g) We express no opinion as to any tax laws, the Employee Retirement
Income Security Act of 1974 or any rules or regulations thereunder.
(h) We express no opinion as to the Federal Aviation Act of 1958, as
amended from time to time and as re-codified in Title 49 of the United States
Code.
(i) We express no opinion as to any legal requirements applicable to any
Secured Party.
(j) Our opinions in paragraphs 3 and 4(i) above are limited to laws and
regulations normally applicable to transactions of the type contemplated by the
Documents and do not extend to laws or regulations relating to, or to licenses,
permits, approvals and filings necessary for, the conduct of the business of the
Company or any Subsidiary, or to any environmental laws or regulations.
(k) We express no opinion as to the creation, legality, validity, binding
effect or perfection of (i) any security interest to the extent limited by
Section 552 of the Federal Bankruptcy Code or (ii) any security interest in any
right the assignment of which requires the consent of another person that has
not been duly obtained.
We are members of the bar of the State of New York. We do not purport to
be experts in and do not express any opinion on any laws other than the law of
the State of New York, the DGCL and the Federal law of the United States of
America. Our opinion in paragraph 8 above is based solely on our review of
Article 9 of the Uniform Commercial Code of the State of Delaware, Chapter 9 of
the Uniform Commercial Code of the States of Arizona and Ohio and Division 9 of
the Uniform Commercial Code of the State of California, as reported by The
LexisNexis Group pursuant to an online search performed on April 19, 2007.
6
This opinion is given solely for your benefit and the benefit of each
Person who becomes a Lender before May 11, 2007, as the result of an assignment
by JPMorgan Chase Bank, N.A. or Citibank N.A. pursuant to the Credit Agreement
of any of their respective Loans or Commitments, and may not be relied upon by
any other Person without our written consent.
Very truly yours,
7
EXHIBIT A
Subsidiary Guarantors
1. Belt Concepts of America, Inc. (Delaware)
2. Celeron Corporation (Delaware)
3. Cosmoflex, Inc. (Delaware)
4. Dapper Tire Co., Inc. (California)
5. Divested Companies Holding Company (Delaware)
6. Divested Litchfield Park Properties, Inc. (Arizona)
7. Goodyear Engineered Products International Inc. (Delaware)
8. Goodyear Engineered Products Thailand Inc. (Delaware)
9. Goodyear Farms, Inc. (Arizona)
10. Goodyear International Corporation (Delaware)
11. Goodyear Western Hemisphere Corporation (Delaware)
12. The Kelly-Springfield Tire Corporation (Delaware)
13. Wheel Assemblies Inc. (Delaware)
14. Wingfoot Commercial Tire Systems, LLC (Ohio)
15. Wingfoot Ventures Eight Inc. (Delaware)
EXHIBIT B
Grantors
1. Belt Concepts of America, Inc. (Delaware)
2. Cosmoflex, Inc. (Delaware)
3. Dapper Tire Co., Inc. (California)
4. Divested Companies Holding Company (Delaware)
5. Divested Litchfield Park Properties, Inc. (Arizona)
6. Goodyear Farms, Inc. (Arizona)
7. Goodyear International Corporation (Delaware)
8. The Goodyear Tire & Rubber Company (Ohio)
9. The Kelly-Springfield Tire Corporation (Delaware)
10. Wingfoot Commercial Tire Systems, LLC (Ohio)
11. Wingfoot Ventures Eight Inc. (Delaware)
EXHIBIT C
Deposit Account Agreements
1. Amended and Restated Blocked Account Control Agreement ("Shifting
Control"), dated as of April 8, 2005, among the Company, JPMorgan Chase
Bank, N.A., as Agent, Deutsche Bank Trust Company Americas, as Second Lien
Agent, Wilmington Trust Company, as Junior Lien Agent, and JPMorgan Chase
Bank, N.A., as Depositary.
2. Amended and Restated Lock-Box and Depository Agreement (with Activation),
dated as of April 8, 2005, among the Company, JPMorgan Chase Bank, N.A.,
as Agent, Deutsche Bank Trust Company Americas, as Second Lien Agent,
Wilmington Trust Company, as Junior Lien Agent, and Bank of America, N.A.,
as Bank.
3. Amended and Restated Lock-Box and Depository Agreement, dated as of April
8, 2005, among the Company, JPMorgan Chase Bank, N.A., as Agent, Deutsche
Bank Trust Company Americas, as Second Lien Agent, Wilmington Trust
Company, as Junior Lien Agent, and National City Bank, as Bank.
4. Amended and Restated Lock-Box and Depository Agreement, dated as of April
8, 2005, among Goodyear International Corporation, JPMorgan Chase Bank,
N.A., as Agent, Deutsche Bank Trust Company Americas, as Second Lien
Agent, Wilmington Trust Company, as Junior Lien Agent, and National City
Bank, as Bank.
5. Amended and Restated Depository Agreement, dated as of April 8, 2005,
among the Company, JPMorgan Chase Bank, N.A., as Agent, Deutsche Bank
Trust Company Americas, as Second Lien Agent, Wilmington Trust Company, as
Junior Lien Agent, and Citibank, N.A., as Depository Bank.
6. Amended and Restated Depository Agreement, dated as of April 8, 2005,
among Goodyear International Corporation, JPMorgan Chase Bank, N.A., as
Agent, Deutsche Bank Trust Company Americas, as Second Lien Agent,
Wilmington Trust Company, as Junior Lien Agent, and Citibank, N.A., as
Depository Bank.
7. Amended and Restated Multi-Party Lockbox Agreement, dated as of April 8,
2005, among the Company, JPMorgan Chase Bank, N.A., as Agent, Deutsche
Bank Trust Company Americas, as Second Lien Agent, Wilmington Trust
Company, as Junior Lien Agent, and The Northern Trust Company, as Bank.
8. Amended and Restated Deposit Account Control Agreement (with Future
Notification), dated as of April 8, 2005, among Wachovia Bank, National
Association, as Depository Bank, the Company, JPMorgan Chase Bank, N.A.,
as Agent, Deutsche Bank Trust Company Americas, as Second Lien Agent, and
Wilmington Trust Company, as Junior Lien Agent.
EXHIBIT D
Delaware Companies
1. Belt Concepts of America, Inc. (Delaware)
2. Celeron Corporation (Delaware)
3. Cosmoflex, Inc. (Delaware)
4. Divested Companies Holding Company (Delaware)
5. Goodyear Engineered Products International Inc. (Delaware)
6. Goodyear Engineered Products Thailand Inc. (Delaware)
7. Goodyear International Corporation (Delaware)
8. Goodyear Western Hemisphere Corporation (Delaware)
9. The Kelly-Springfield Tire Corporation (Delaware)
10. Wheel Assemblies Inc. (Delaware)
11. Wingfoot Ventures Eight Inc. (Delaware)
EXHIBIT E
Material Agreements
1. Indenture, dated as of March 15,1996, between the Company and JPMorgan
Chase Bank, as Trustee, as supplemented on December 3, 1996 in respect of
$250,000,000 principal amount of the Company's 6 5/8% Notes due 2006,
March 11, 1998 in respect of $150,000,000 principal amount of the
Company's 7% Notes due 2028, and March 17, 1998 in respect of $100,000,000
principal amount of the Company 6 3/8% Notes due 2008.
2. Indenture, dated March 1, 1999, between the Company and JPMorgan Chase
Bank, as Trustee, as supplemented on March 14, 2000 in respect of
$300,000,000 principal amount of the Company's 8 1/8% Notes due 2003 and
$300,000,000 principal amount of the Company's 8 1/2% Notes due 2007 and
on August 15, 2001, in respect of $650,000,000 principal amount of the
Company's 7 6/7% Notes due 2011.
3. Umbrella Agreement, dated as of June 14, 1999 (and Amendment No. 1 dated
as of January 1, 2003, Amendment No. 2 dated as of April 7, 2003, and
Amendment No. 3 dated as of July 15, 2004), between the Company and
Sumitomo Rubber Industries, Ltd.
4. Joint Venture Agreement for Europe, dated as of June 14, 1999 (and
Amendment No. 1 dated as of September 1, 1999), among the Company,
Goodyear S.A., a French corporation, Goodyear S.A., a Luxembourg
corporation, Goodyear Canada Inc., Sumitomo Rubber Industries, Ltd., and
Sumitomo Rubber Europe B.V.
5. Shareholders Agreement for the Europe JVC, dated as of June 14, 1999 (and
Amendment No. 1 dated as of April 21, 2000, Amendment No. 2, dated as of
July 15, 2004, and Amendment No. 3, dated as of August 30, 2005), among
the Company, Goodyear S.A., a French corporation, Goodyear S.A., a
Luxembourg corporation, Goodyear Canada Inc., and Sumitomo Rubber
Industries, Ltd.
6. Indenture dated as of March 12, 2004, among the Company, the subsidiary
guarantors thereunder and Wells Fargo Bank, N.A., as trustee, in respect
of $400,000,000 principal amount of the Company's 11% Senior Secured Notes
due 2011, and $250,000,000 principal amount of the Company's Senior
Secured Floating Rate Notes due 2011.
7. Indenture dated as of July 2, 2004, among the Company and Wells Fargo
Bank, N.A., as trustee, in respect of $350,000,000 principal amount of the
Company's 4.00% Convertible Senior Notes due 2034.
8. Third Lien Credit Agreement, dated as of April 8, 2005, among the Company,
the subsidiary guarantors party thereto, the Lenders party thereto and JP
Morgan
Chase Bank, N.A., as collateral agent.
9. Indenture, dated as of June 23, 2005 among Goodyear, the subsidiary
guarantors party thereto and Wells Fargo Bank, N.A., as trustee, in
respect of $400,000,000 principal amount of the Company's 9% Senior Notes
due 2015.
10 Indenture, dated as of November 21, 2006, among Goodyear, the subsidiary
guarantors party thereto and Wells Fargo Bank, N.A., as trustee, in
respect of $500,000,000 principal amount of the Company's Senior Floating
Rate Notes due 2009, and $500,000,000 principal amount of the Company's
8.625% Senior Notes due 2011.
D-2
EXHIBIT F
Pledged Securities
1. Certificate number 8, dated March 28, 2003, evidencing ownership by The
Goodyear Tire & Rubber Company of 25 shares of common stock of Dapper Tire
Co., Inc.
2. Certificate number 9, dated March 28, 2003, evidencing ownership by The
Goodyear Tire & Rubber Company of 50 shares of common stock of Dapper Tire
Co., Inc.
3. Certificate number 1, dated December 16, 1987, evidencing ownership by The
Goodyear Tire & Rubber Company of 100 shares of common stock of Divested
Companies Holding Company.
4. Certificate number 69, dated March 28, 2003, evidencing ownership by The
Goodyear Tire & Rubber Company of 1,000 shares of common stock of Goodyear
Farms, Inc.
5. Certificate number 1, dated April 18, 1972, evidencing ownership by The
Goodyear Tire & Rubber Company of 50 shares of common stock of Goodyear
International Corporation.
6. Certificate number 2, dated July 11, 1929, evidencing ownership by The
Goodyear Tire & Rubber Company of 100 shares of common stock of Goodyear
International Corporation.
7. Certificate number 3, dated March 28, 2003, evidencing ownership by The
Goodyear Tire & Rubber Company of 11 shares of common stock of Wingfoot
Ventures Eight Inc.
8. Certificate number 2, dated March 28, 2003, evidencing ownership by The
Goodyear Tire & Rubber Company of 100 shares of common stock of Belt
Concepts of America, Inc.
9. Certificate number 4, dated March 28, 2003, evidencing ownership by
Divested Companies Holding Company of 1,620 shares of common stock of
Divested Litchfield Park Properties, Inc.
EXHIBIT G
Pledged Notes
1. Subordinated Promissory Note, dated December 21, 2001, in the principal
amount of $8,100,000, from Eliokem, Inc. to the Company.
2. Second Amended and Restated Note, dated March 11, 2003, in the principal
amount of $23,000,000, from T&WA, Inc. to the Company.
3. Second Amended Promissory Note, dated March 11, 2003, in the principal
amount of $25,000,000, from T&WA, Inc. to the Company.
EXHIBIT E-2
FORM OF OPINION OF THE GENERAL COUNSEL,
THE ASSOCIATE GENERAL COUNSEL OR AN
ASSISTANT GENERAL COUNSEL OF GOODYEAR
SEE ATTACHED
April 20, 2007
The Lenders party to the Credit Agreements
referred to below and JPMorgan
Chase Bank N.A., as Administrative Agent
One Chase Manhattan Plaza
8th Floor
New York, New York 10081
Ladies and Gentlemen:
I am the Senior Vice President, General Counsel and Secretary of The
Goodyear Tire & Rubber Company, an Ohio corporation (the "Company"), and am
rendering the opinions set forth below in connection with (i) the Amended and
Restated First Lien Credit Agreement, dated as of April 20, 2007 (the "First
Lien Credit Agreement"), among the Company, certain lenders party thereto,
certain issuing banks party thereto, JPMorgan Chase Bank, N.A., as
administrative agent and collateral agent ("JPMCB"). and Citicorp USA, Inc., as
syndication agent, (ii) the Amended and Restated Second Lien Credit Agreement,
dated as of April 20, 2007 (the "Second Lien Credit Agreement"), among the
Company, certain lenders party thereto, Deutsche Bank Trust Company Americas, as
collateral agent, and JPMCB, as administrative agent, (iii) the Amended and
Restated Revolving Credit Agreement, dated as of April 20, 2007 (the "European
Facilities Credit Agreement"), among the Company, Goodyear Dunlop Tires Europe
B.V. (the "European J.V."), Goodyear Dunlop Tires Germany GmbH ("GTDG").
Goodyear GmbH & Co. KG ("'Goodyear KG"). Dunlop GmbH & Co. KG ("Dunlop KG") and
Goodyear Luxembourg Tires SA ("Lux Tires" and, collectively together with the
Company, Dunlop KG, Goodyear KG, GTDG and the European J.V., the "European
Facilities Borrowers"), certain lenders party thereto, J.P. Morgan Europe
Limited, as administrative agent, and JPMCB, as collateral agent. The First Lien
Credit Agreement, the Second Lien Credit Agreement, and the European Facilities
Credit Agreement are collectively referred to as the "Credit Agreements." This
opinion is delivered to you pursuant to Section 4.01(a)(ii) of each of the First
Lien Credit Agreement and the Second Lien Credit Agreement, and pursuant to
Section 4.01(b)(ii) of the European Facilities Credit Agreement.
I have reviewed or caused to be reviewed (i) the Credit Agreements, (ii)
the First Lien Guarantee and Collateral Agreement, dated as of April 8, 2005,
among the
Company, the subsidiaries of the Company identified therein and JPMCB, as
collateral agent, as reaffirmed and amended by the Reaffirmation Agreement,
dated as of April 20, 2007, among the Company, the subsidiaries of the Company
identified therein and JPMCB, as collateral agent, (iii) the Second Lien
Guarantee and Collateral Agreement, dated as of April 8, 2005, among the
Company, the subsidiaries of the Company identified therein and Deutsche Bank
Trust Company Americas, as collateral agent ("DBTCA"). as reaffirmed and amended
by the Reaffirmation Agreement, dated as of April 20, 2007, among the Company,
the subsidiaries of the Company identified therein and DBTCA, as collateral
agent (iv) the Collateral Agreement, dated as of March 12, 2004, among the
Company, the subsidiaries of the Company identified therein and Wilmington Trust
Company, as collateral agent, (v) the Accession Agreements, each of which is
dated as of April 8, 2005, in respect of the Obligations (as defined under each
Credit Agreement), (vi) the Master Guarantee and Collateral Agreement, dated as
of March 31, 2003, as amended and restated as of February 20, 2004, as further
amended and restated as of April 8, 2005 and as further amended and restated as
of April 20, 2007 (the "MGCA"), (vii) the perfection certificates, dated April
20, 2007, delivered by the Company pursuant to Section 4.01(i)(i) of each of the
First Lien Credit Agreement and the Second Lien Credit Agreement, (viii) the
mortgages identified on Exhibit C, (ix) the Lenders Lien Subordination and
Intercreditor Agreement, dated as of April 8, 2005, among JPMCB, as collateral
agent for the First Lien Secured Parties referred to therein, Deutsche Bank
Trust Company Americas, as collateral agent for the Second Lien Secured Parties
referred to therein, the Company and the subsidiaries of the Company named
therein, (x) the Lien Subordination and Intercreditor Agreement, dated as of
March 12, 2004 (the "LSIA"), among JPMCB, as Credit Facilities Collateral Agent
(as defined therein), Wilmington Trust Company, as Initial Junior Indebtedness
Collateral Agent (as defined therein), the Company and the subsidiaries of the
Company named therein, (xi) the Notices of Designation in respect of the
Obligations (as defined under each Credit Agreement) incurred under each Credit
Agreement, from the Company to JPMCB, as Credit Facilities Collateral Agent (as
defined in the LSIA), and Wilmington Trust Company, as Initial Junior
Indebtedness Collateral Agent (as defined in the LSIA), (xii) the Amendment and
Restatement Agreement, dated as of April 20, 2007 (the "Amendment Agreement"),
in respect of the European Facilities Credit Agreement and the MGCA, (xiii) the
Master Assignment and Acceptance, effective as of April 20, 2007, among the
parties identified as assignors therein, JPMCB, as assignee, the Company and the
European Facilities Borrowers, (xiv) the European Facilities Credit Agreement as
in effect immediately prior to the effectiveness of the amendment and
restatement thereof contemplated by the Amendment Agreement, and (xv) such
corporate records, certificates and other documents, and such questions of law,
as I have deemed necessary or appropriate for the purposes of this opinion. The
agreements, documents and instruments referred to in clauses (i) through (xiv)
are referred to in this opinion each as a "Document" and collectively as the
"Documents." The Documents referred to in clauses (ii), (iii), (iv) and (vi) are
referred to in this opinion collectively as the "Guarantee and Collateral
Agreements".
I have assumed that all signatures are genuine, that all documents
submitted to me as originals are authentic and that all copies of documents
submitted to me conform to the originals. I have assumed further that each of
the Secured Parties (as defined under each of the Guarantee and Collateral
Agreements) has duly authorized, executed and
-2-
delivered the Documents to which it is a party and that each such Document is
the valid and binding obligation of such Secured Party, enforceable against such
Secured Party in accordance with its terms.
Based upon the foregoing and subject to the qualifications and assumptions
set forth below, I am of the opinion that:
1. The Company, the Grantors identified on Exhibit A hereto and the
Subsidiary Guarantors identified on Exhibit B hereto (each a "Credit Party" and
together the "Credit Parties") are duly organized, validly existing and in good
standing under the laws of their respective jurisdictions of organization and
that each Credit Party has the power and authority to execute and deliver the
Documents to which it is a party and to consummate the transactions contemplated
thereby.
2. Each of the Credit Parties has duly authorized, executed and delivered
the Documents to which it is a party.
3. No consent, approval, authorization or other action by or filing with
any governmental agency or instrumentality of the State of Ohio is required on
the part of any Credit Party for the execution and delivery of any Document to
which such Credit Party is a party or the consummation of the transactions
contemplated thereby, except (i) those already obtained or made and (ii) such
filings and other actions as are required to perfect the security interests and
liens granted under the Documents and the other Credit Documents (as defined
under each Credit Agreement).
4. The execution and delivery by each Credit Party of each Document to
which such Credit Party is a party and the consummation of the transactions
contemplated thereby do not (i) violate any Ohio statute, law, rule or
regulation to which such Credit Party is subject or (ii) breach the provisions
of such Credit Party's certificate of incorporation, certificate of formation,
by-laws, limited liability company agreement or other organizational documents,
as applicable.
The foregoing opinion is subject to the following qualifications.
(a) I express no opinion as to any Federal or state securities or Blue Sky
laws or as to any anti-fraud laws. I express no opinion as to compliance with
Federal or state securities or Blue Sky laws upon a default or realization upon
the Collateral (as defined under each of the Guarantee and Collateral
Agreements) under any of the Guarantee and Collateral Agreements.
(b) I express no opinion as to any tax laws or the Employee Retirement
Income Security Act of 1974.
(c) I express no opinion as to the Federal Aviation Act of 1958, as
amended from time to time and as re-codified in Title 49 of the United States
Code.
-3-
In rendering the foregoing opinions, the examination of law referred to
above has been limited to, and I express no opinions as to matters under or
involving any laws other than, the laws of the State of Ohio.
This opinion is given solely for your benefit and may not be relied upon
by any other person without my written consent.
Very truly yours,
-4-
Exhibit A
Grantors
1. Belt Concepts of America, Inc. (Delaware)
2. Cosmoflex, Inc. (Delaware)
3. Dapper Tire Co., Inc. (California)
4. Divested Companies Holding Company (Delaware)
5. Divested Litchfield Park Properties, Inc. (Arizona)
6. Goodyear Farms, Inc. (Arizona)
7. Goodyear International Corporation (Delaware)
8. The Goodyear Tire & Rubber Company (Ohio)
9. The Kelly-Springfield Tire Corporation (Delaware)
10. Wingfoot Commercial Tire Systems, LLC (Ohio)
11. Wingfoot Ventures Eight Inc. (Delaware)
Exhibit B
Subsidiary Guarantors
1. Belt Concepts of America, Inc. (Delaware)
2. Celeron Corporation (Delaware)
3. Cosmoflex, Inc. (Delaware)
4. Dapper Tire Co., Inc. (California)
5. Divested Companies Holding Company (Delaware)
6. Divested Litchfield Park Properties, Inc. (Arizona)
7. Goodyear Engineered Products International Inc. (Delaware)
8. Goodyear Engineered Products Thailand Inc. (Delaware)
9. Goodyear Farms, Inc. (Arizona)
10. Goodyear International Corporation (Delaware)
11. Goodyear Western Hemisphere Corporation (Delaware)
12. The Kelly-Springfield Tire Corporation (Delaware)
13. Wheel Assemblies Inc. (Delaware)
14. Wingfoot Commercial Tire Systems, LLC (Ohio)
15. Wingfoot Ventures Eight Inc. (Delaware)
Exhibit C
Mortgages
1. Amended and Restated First Priority Mortgage (With Power of Sale),
Assignment of Leases and Rents, Security Agreement and Financing
Statement, dated as of April 20, 2007 from The Goodyear Tire & Rubber
Company to JPMorgan Chase Bank, N.A. regarding premises in Lawton,
Oklahoma.
2. Amended and Restated First Priority Open-End Mortgage, Assignment of
Leases and Rents, Security Agreement and Financing Statement, dated as of
April 20, 2007 from The Goodyear Tire & Rubber Company to JPMorgan Chase
Bank, N.A. regarding premises in Akron, Ohio.
3. Amended and Restated First Priority Mortgage, Assignment of Leases and
Rents, Security Agreement and Financing Statement, dated as of April 20,
2007 from The Goodyear Tire & Rubber Company to JPMorgan Chase Bank, N.A.
regarding premises in Topeka, Kansas.
4. Amended and Restated First Priority Fee and Leasehold Mortgage, Assignment
of Leases and Rents, Security Agreement and Financing Statement, dated as
of April 20, 2007 from The Goodyear Tire & Rubber Company to JPMorgan
Chase Bank, N.A. regarding premises in Gadsden, Alabama.
5. Amended and Restated First Priority Deed of Trust, Assignment of Leases
and Rents, Security Agreement and Financing Statement, dated as of April
20, 2007 from The Goodyear Tire & Rubber Company to Mark A. Rosser, as
Trustee for the benefit of JPMorgan Chase Bank, N.A. regarding premises in
Union City, Tennessee.
6. Amended and Restated First Priority Deed of Trust, Assignment of Leases
and Rents, Security Agreement and Financing Statement, dated as of April
20, 2007 from The Goodyear Tire & Rubber Company to James DeBoer, as
Trustee for the benefit JPMorgan Chase BanK, N.A. regarding premises in
Danville, Virginia.
7. Amended and Restated First Priority Deed of Trust, Assignment of Leases
and Rents, Security Agreement and Financing Statement, dated as of April
20, 2007 from The Kelly-Springfield Tire Corporation to First American
Title Insurance Company, as Trustee for the benefit of JPMorgan Chase
Bank, N.A. regarding premises in Fayetteville, North Carolina.
8. Amended and Restated First Priority Deed of Trust, Assignment of Leases
and Rents, Security Agreement and Financing Statement, dated as of April
20, 2007 from The Goodyear Tire & Rubber Company to First American Title
Insurance Company, as Trustee for the benefit of JPMorgan Chase Bank, N.A.
regarding premises in Caswell County, North Carolina.
9. Amended and Restated Second Priority Mortgage (With Power of Sale),
Assignment of Leases and Rents, Security Agreement and Financing
Statement, dated as of April 20, 2007 from The Goodyear Tire & Rubber
Company to Deutsche Bank Trust Company Americas regarding premises in,
Lawton, Oklahoma.
10. Amended and Restated Second Priority Open-End Mortgage, Assignment of
Leases and Rents, Security Agreement and Financing Statement, dated as of
20, 2007 from The Goodyear Tire & Rubber Company to Deutsche Bank Trust
Company Americas regarding premises in Akron, Ohio.
11. Amended and Restated Second Priority Mortgage, Assignment of Leases and
Rents, Security Agreement and Financing Statement, dated as of 20, 2007
from The Goodyear Tire & Rubber Company to Deutsche Bank Trust Company
Americas regarding premises in Topeka, Kansas.
12. Amended and Restated Second Priority Fee and Leasehold Mortgage,
Assignment of Leases and Rents, Security Agreement and Financing
Statement, dated as of 20, 2007 from The Goodyear Tire & Rubber Company to
Deutsche Bank Trust Company Americas regarding premises in Gadsden,
Alabama.
13. Amended and Restated Second Priority Deed of Trust, Assignment of Leases
and Rents, Security Agreement and Financing Statement, dated as of April
20, 2007 from The Goodyear Tire & Rubber Company to Mark A. Rosser, as
Trustee for the benefit of Deutsche Bank Trust Company Americas regarding
premises in Union City, Tennessee.
14. Amended and Restated Second Priority Deed of Trust, Assignment of Leases
and Rents, Security Agreement and Financing Statement, dated as of April
20, 2007 from The Goodyear Tire & Rubber Company to James DeBoer, as
Trustee for the benefit of Deutsche Bank Trust Company Americas regarding
premises in Danville, Virginia.
15. Amended and Restated Second Priority Deed of Trust, Assignment of Leases
and Rents, Security Agreement and Financing Statement, dated as of April
20, 2007 from The Kelly-Springfield Tire Corporation to First American
Title Insurance Company, as Trustee for the benefit of Deutsche Bank Trust
Company Americas regarding premises in Fayetteville, North Carolina.
16. Amended and Restated Second Priority Deed of Trust, Assignment of Leases
and Rents, Security Agreement and Financing Statement, dated as of April
20, 2007 from The Goodyear Tire & Rubber Company to First American Title
Insurance Company, as Trustee for the benefit of Deutsche Bank Trust
Company Americas regarding premises Caswell County, North Carolina.
EXHIBIT F
Page 1 of 4
GOODYEAR TIRE & RUBBER COMPANY
FORM OF BORROWING BASE CERTIFICATE
FOR THE PERIOD ENDED _______________________
($ IN 000'S)
A. Available accounts receivable (from page 2 of 4) $
=========
B. Total Inventory (from page 3 of 4) $
==========
C. Lower of:
Effective Advance Rate (from page 4 of 4) %
==========
Recovery Rate x 85% (based on most recent appraisal) % %
========== =========
D. Available inventory (B*C) $
=========
E. Borrowing Base (lines A + D) $
=========
F. Lower of::
Borrowing Base (line E) $
==========
Revolving Credit Commitment $1,500,000 $
========== =========
G. Aggregate Revolving Credit loans outstanding $
==========
H. Deposit Funded Facility Outstanding $
==========
I. Aggregate outstanding credit (lines G +H) $
=========
J. Excess availability /(overadvance) (line F minus line I) $
=========
* The Borrowing Base Certificate is to be accompanied by documentation
outlined in Schedule 1 to Exhibit F
OFFICER'S CERTIFICATION:
Pursuant to the [Credit Agreement] dated as of [ENTER DATE], the undersigned
certifies on behalf of the Borrower that the information provided in this
Borrowing Base Certificate is accurate and complete in all material respects.
__________________________________________ __________________________
Signature & Title Date
Page 2 of 4
GOODYEAR TIRE & RUBBER COMPANY
FORM OF BORROWING BASE CERTIFICATE
FOR THE PERIOD ENDED _______________________
($ IN 000'S)
Calculation of available accounts receivable
NAT GP CANADA (US$) WINGFOOT TOTAL
------- ------- ------------ -------- -------
TOTAL A/R PER AGING $ - $ - $ - $ - $ -
------- ------- ------------ -------- -------
Less ineligibles:
Unapplied cash - - - - -
No title - - - - -
>60 days past due - - - - -
Cross age @ 50% - - - - -
Bankruptcy - - - - -
Foreign - - - - -
Government - - - - -
Security deposits / progress payment - - - - -
No first lien - - - - -
Cash in advance - - - - -
Notes receivable - - - - -
Non trade - - - - -
Rent invoices - - - - -
Bill and hold - - - - -
Consignment invoices - - - - -
Progress billing - - - - -
Affiliated / Intercompany - - - - -
Disputes/Chargebacks - - - - -
Contra accounts - - - - -
Extended terms - - - - -
Cash on delivery - - - - -
Concentration cap - - - - -
Credit reclass - - - - -
Other (per terms of the Credit Agreement) - - - - -
------- ------- ------------ -------- -------
Total A/R ineligibles - - - - -
Eligible Accounts Receivables
Less Accounts Receivable Reserves:
Volume rebate reserves - - - - -
Cash discount reserves - - - - -
Federal excise taxes reserve - - - - -
Warranty Reserve - - - - -
------- ------- ------------ -------- -------
Eligible Accounts Receivables after reserves - - - - -
Dilution Ratio (in excess of 5%) % % % % %
------- ------- ------------ -------- -------
Less: Dilution Reserve - - - - -
Adjusted Eligible Accounts Receivables - - - - -
------- ------- ------------ -------- -------
Advance rate 85% 85% 85% 85% 85%
------- ------- ------------ -------- -------
AVAILABLE A/R $ - $ - $ - $ - $ -
======= ======= ============ ======== =======
Page 3 of 4
GOODYEAR TIRE & RUBBER COMPANY
FORM OF BORROWING BASE CERTIFICATE
FOR THE PERIOD ENDED _______________________
($ IN 000'S)
Calculation of available Inventory
N.A.T. RETAIL EPD WINGFOOT TOTAL
--------- ------ ----- -------- -------
Total Inventory $ - $ - $ - $ - $ -
--------- ------ ----- -------- -------
Total Finished Goods $ - $ - $ - $ - $ -
--------- ------ ----- -------- -------
Less Ineligibles:
Not solely owned by Borrower or Grantor - - - - -
Located outside the US & Canada - - - - -
Not at / intransit between Permitted Inventory Locations - - - - -
In transit / in transit on the water - - - - -
Not saleable/sold in ordinary course (engineering stores,
supplies, packaging, etc) - - - - -
No first lien - - - - -
Consigned inventory at customer location - - - - -
At or intransit to/from third party processor - - - - -
Obsolete, unmerchantable, off spec w/out a ready market - - - - -
Return to vendor - - - - -
Does not meet governmental standards - - - - -
Casings (held for retreading of truck tires) - - - - -
Shipped not billed - - - - -
Other (per terms of the Credit Agreement) - - - - -
--------- ------ ----- -------- -------
Total ineligibles - - - - -
Inventory Reserves
Reserve for damaged inventory - - - - -
Favorable variance reserve - - - - -
Intracompany/Intercompany profit reserve - - - - -
--------- ------ ----- -------- -------
Lower of cost or market reserve - - - - -
Total Inventory Reserves
Additional Inventory Reserves
Slow moving inventory reserve - - - - -
Private label inventory reserve - - - - -
Freight, duties, insurance reserve - - - - -
Shrink reserve - - - - -
Other reserves (per terms of Credit Agreement) - - - - -
--------- ------ ----- -------- -------
Total Additional Inventory Reserves - - - - -
Adjusted Eligible Finished Goods - - - - -
--------- ------ ----- -------- -------
Advance rate 70% 70% 70% 70% 70%
--------- ------ ----- -------- -------
Available finished goods $ - $ - $ - $ - $ -
========= ====== ===== ======== =======
Page 4 of 4
GOODYEAR TIRE & RUBBER COMPANY
FORM OF BORROWING BASE CERTIFICATE
FOR THE PERIOD ENDED _______________________
($ IN 000'S)
Calculation of available Inventory (continued)
N.A.T. RETAIL EPD WINGFOOT TOTAL
--------- ------ ----- -------- -------
Total Raw Materials & Work In Process $ - $ - $ - $ - $ -
--------- ------ ----- -------- -------
Less Ineligibles:
Not solely owned by Borrower or Grantor - - - - -
Located outside the US & Canada - - - - -
Not at / intransit between Permitted Inventory Locations - - - - -
In transit / in transit on the water - - - - -
Not saleable/sold in ordinary course (engineering stores,
supplies, packaging, etc) - - - - -
No first lien - - - - -
Work in process to be converted to Raw Material - - - - -
Consigned inventory at customer location - - - - -
At or intransit to/from third party processor - - - - -
Obsolete, unmerchantable, off spec w/out a ready market - - - - -
Return to vendor - - - - -
Does not meet governmental standards - - - - -
Casings (held for retreading of truck tires) - - - - -
Shipped not billed - - - - -
Reserve for freight, duties, and insurance -held at dock - - - - -
Other (per terms of the Credit Agreement) - - - - -
--------- ------ ----- -------- -------
Total Ineligibles - - - - -
Eligible Raw Materials & Work In Process - - - - -
Advance Rate 40% 40% 40% 40% 40%
--------- ------ ----- -------- -------
Available raw materials & work in process - - - - -
--------- ------ ----- -------- -------
Available inventory - - - - -
--------- ------ ----- -------- -------
Less: Rent Reserve (3 MOS.) - - - - -
Priority Payables Reserve - - - - -
--------- ------ ----- -------- -------
Inventory Advance Amount $ - $ - $ - $ - $ -
========= ====== ===== ======== =======
Effective Advance Rate ( Inventory Advance Amount / Total
Inventory) %
-------
SCHEDULE 1
TO EXHIBIT F
GOODYEAR TIRE AND RUBBER COMPANY
COLLATERAL MONITORING REPORTING REQUIREMENTS
DOCUMENTS TO BE SUBMITTED TO THE BANK
The BBC (as outlined in Exhibit F is to be submitted on a monthly basis by the
15th calendar day subsequent to month end (for Accounts Receivable, Inventory
and Other as noted below), with all information and documents under "Accounts
Receivable" below due within two days thereafter. The Accounts Receivable
information shall be provided for the following divisions: Tire, General
Products, Canada, and Wingfoot unless otherwise noted or requested by the Agent.
The Inventory information shall be provided for the following divisions unless
otherwise noted or requested by the Agent: North American Tire Division, Retail
Division, Engineered Products Divsion, Chemical Product Division and Wingfoot
Division. All other information shall be provided on a consolidated basis for
Goodyear North America and Canada.
- - BBC AS OUTLINED IN EXHIBIT F
- - ACCOUNTS RECEIVABLE:
1) A monthly rollforward of the A/R aging. The monthly rollforward should
separately identify beginning of the month A/R aging balance, gross
billings, cash receipts, credit memos and other adjustments issued
(recorded directly to the aging), write-offs, other debit and credit
adjustments (if significant, please provide explanation), end of month A/R
aging balance and should be supported by the following system generated
information:
- Summary totals of A/R aging.
- Total amount of invoices/sales.
- Total amount of cash receipts.
- Total amount of credits and adjustments (should include
credit memos issued, write-offs, returns, discounts and
other credit adjustments).
2) Terms, addresses, credit ratings and aging of top 10 customer accounts
receivable balances per the most recent aging.
3) Accounts receivable aging, consolidated and for each subsidiary.
4) Reconciliations of A/R aging report to the general ledger and financial
statements
5) Supporting documentation (system generated extract report where
applicable) for the A/R ineligibles as per the Credit Agreement and
Borrowing Base Certificate as follows:
Unapplied cash Consignment invoices
No title Progress billing
> 60 days past due Affiliated / Intercompany
Cross age @ 35% Disputes/Chargebacks
Bankruptcy Contra accounts
Foreign Extended terms
Government Cash on delivery
Security deposits / progress payment Concentration cap
No first lien Credit reclass
Cash in advance Volume rebate reserves
Notes receivable Cash discount reserves
Non trade Federal excise taxes reserve
Rent invoices Warranty Reserve
Bill and hold Dilution Reserve
2
GOODYEAR TIRE AND RUBBER COMPANY
COLLATERAL MONITORING REPORTING REQUIREMENTS
DOCUMENTS TO BE SUBMITTED TO THE BANK
- - INVENTORY:
1) Summary of inventory by component (i.e., raw materials, finished
goods), product group and location.
2) Summarized inventory perpetual reports.
3) Gross margin and turnover by product group and location.
4) Supporting documentation (system generated extract report where
applicable) for all Inventory ineligibles as per the Credit
Agreement and Borrowing Base Certificate as follows:
Not solely owned by Borrower or Grantor Casings (held for retreading of truck tires)
Located outside the US & Canada Shipped not billed
Not at / intransit between Permitted Inventory Reserve for damaged inventory
Locations
In transit / in transit on the water Favorable variance reserve
Not saleable/sold in ordinary course Intracompany/Intercompany profit reserve
(engineering stores, supplies, packaging, etc)
No first lien Lower of cost or market reserve
Work in process to be converted to raw materials Slow moving inventory reserve
Consigned inventory at customer location private label inventory reserve
At or intransit to/from third party processor Freight, duties,insurance reserve
Obsolete, unmerchantable, off spec w/out a Shrink reserve
ready market
Return to vendor Rent Reserve (3 MOS.)
Does not meet governmental standards Priority Payables Reserve
5) Reconciliation of perpetual inventory reports to general ledger and
financial statements.
- - OTHER:
1) Consolidated accounts payable balance.
2) Top five aged vendor payable balances.
3) Cash, Cash Equivalents, and Facility Liquidity Schedule
SUBMIT TO: Lisa Dee
JPMorgan Chase
IB ABL Portfolio Management Group
270 Park Avenue, 5th floor
New York, NY 10017
tel: 212-270-6265
ANNEX I
CERTIFICATE OF FINANCIAL OFFICER
TO THE BORROWING BASE CERTIFICATE
Reference is made to the Amended and Restated First Lien Credit Agreement
dated as of April 20, 2007 (as amended, restated or modified and in effect on
the date hereof, the "Credit Agreement"), among The Goodyear Tire & Rubber
Company (the "Borrower"), the Lenders party thereto, the Issuing Banks party
thereto, Citicorp USA, Inc., as Syndication Agent, and JPMorgan Chase Bank,
N.A., as Administrative Agent and Collateral Agent. Terms defined in the Credit
Agreement are used herein with the same meanings. This notice constitutes the
certificate of Financial Officer required to be delivered pursuant to Section
5.09(b) of the Credit Agreement at the time of delivery of a Borrowing Base
Certificate.
The undersigned, a Financial Officer of the Borrower, hereby certifies to
the Administrative Agent and each other Secured Party that as of the date
hereof, to the best of such officer's knowledge:
(i) the aggregate cash and cash equivalents of the Borrower and its
Subsidiaries held in the United States is:
____________________,
(ii) the aggreagate cash and cash equivalents of the Borrower and its
Subsidiaries held other than in the United States is:
____________________,
(iii) for each of the Credit Agreement and the European Facilities
Agreement, the undrawn amount available to be drawn thereunder is:
___________________ and ___________________, respectively,
(iv) the aggregate accounts payable position of the Borrower and the
Domestic Subsidiaries is:
_____________________, and
(v) Available Cash is:
_________________________
2
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Financial Officer's Certificate on this __ day of _________, 20__.
______________________________
Name:
Title:
EXHIBIT G
FORM OF RESTATEMENT DATE
PERFECTION CERTIFICATE
Reference is made to (i) the Amended and Restated First Lien Credit
Agreement, dated as of April 20, 2007 (the "Credit Agreement"), among The
Goodyear Tire & Rubber Company (the "Borrower"), the Lenders party thereto, the
Issuing Banks party thereto, Citicorp USA, Inc., as Syndication Agent, and
JPMorgan Chase Bank, N.A., as Administrative Agent, and (ii) the Reaffirmation
Agreement, dated as of April 20, 2007 (the "Reaffirmation Agreement"), among the
Borrower, the Subsidiaries of the Borrower named therein and JPMorgan Chase
Bank, N.A., as collateral agent (in such capacity, the "Collateral Agent").
Capitalized terms used but not defined herein have the meanings assigned in the
Credit Agreement.
The undersigned, a Financial Officer and a legal officer, respectively, of
the Borrower, hereby certifies to the Administrative Agent and each other
Secured Party, as follows:
1. Names. (a) Set forth below is the exact legal name of (i) each Domestic
Subsidiary and each other North American Subsidiary, in each case other than any
Subsidiary that (A) is an Excluded Subsidiary, (B) is a Consent Subsidiary, or
(C) has consolidated assets not greater than $10,000,000 as of December 31,
2006, or, if later, as of the end of the most recent fiscal quarter for which
financial statements have been delivered pursuant to Section 5.01(a) or (b) of
the Credit Agreement, and (ii) any other Grantor:
(b) Set forth below is the exact legal name of each Domestic Subsidiary
and each other North American Subsidiary, in each case that (a) has consolidated
assets not greater than $10,000,000, as of December 31, 2006, or, if later, as
of the end of the most recent fiscal quarter for which financial statements have
been delivered pursuant to Section 5.01(a) or (b) of the Credit Agreement, and
(c) is not a Consent Subsidiary or an Excluded Subsidiary:
(c) Schedule 1 hereto sets forth the legal name of each Consent
Subsidiary.
(d) Set forth below is each legal name (other than the one provided in
Section 1) that each Grantor has had in the five years preceding the Restatement
Date, together with the date of the relevant change:
(e) The following is a list of all other names (including trade names or
similar appellations) used by each Grantor in connection with the conduct of its
business or the ownership of its properties at any time during the five years
preceding the Restatement Date:
2
Grantor Other Names
- ------------------------------ -----------------------------
(f) Set forth below is the organizational identification number, if any,
as of the date hereof, issued by the jurisdiction of formation of each Grantor
that is a registered organization:
Organizational
Grantor Jurisdiction Identification Number
- ------------------ ------------------ ------------------------------
(g) Set forth below is the US Federal Taxpayer Identification Number of
each Grantor as of the date hereof:
3
Federal Taxpayer
Grantor Identification Number
- -------------------- ----------------------------------
2. Current Locations. (a) The chief executive office of each Grantor as of
the date hereof is located at the address set forth opposite its name below:
Grantor Mailing Address County
- ---------------- ------------------------------ -----------------
3. Stock Ownership and other Equity Interests. Schedule 3A hereto is a
true and correct list of all the Equity Interests in Subsidiaries (other than
Equity Interests in Luxembourg Finance and Excluded Equity Interests) owned by
any Grantor as of the date hereof and required to be pledged under the Guarantee
and Collateral Agreement and the record and beneficial owners of such Equity
Interests. Schedule 3B hereto is a true and correct list of all Excluded Equity
Interests owned by any Grantor as of the date hereof.
4
4. Debt Instruments. Schedule 4 hereto is a true and correct list of all
Instruments constituting Article 9 Collateral as of the date hereof and
representing Indebtedness in excess of $3,000,000.
5. US Intellectual Property. Schedule 5(A) hereto sets forth information
sufficient for filing in proper form with the United States Patent and Trademark
Office with respect to all of the Material Intellectual Property of each Grantor
(other than Goodyear Canada, Inc.) consisting of US Patents and US Trademarks,
including the name of the registered or beneficial owner, the registration or
patent number, and the registration date or date granted for each such Patent
and Trademark owned by any such Grantor. Schedule 5(B) hereto sets forth
information sufficient for filing in proper form with the United States
Copyright Office with respect to all of each Grantor's Material Intellectual
Property consisting of Copyrights, including the name of the registered owner,
the registration number and the registration date of each Copyright owned by any
such Grantor.
6. Canadian Intellectual Property. Schedule 6 hereto sets forth
information sufficient for filing in proper form with the Canadian Intellectual
Property Office with respect to all of the Material Intellectual Property of
each Grantor consisting of Canadian Trademarks, including the name of the
registered or beneficial owner, the registration number and the registration
date or date granted for each such owned by any such Grantor.
7. Deposit Accounts. Schedule 7 hereto is a true and correct list of all
Deposit Accounts that constitute Collateral as of the date hereof and are
maintained by each Grantor, including the name of the depositary institution,
the type of account and the account number (with each Deposit Account which is
not part of the Lockbox System indicated by an "N").
5
IN WITNESS WHEREOF, the undersigned have duly executed this perfection
certificate on this ____ day of April, 2007.
THE GOODYEAR TIRE & RUBBER COMPANY,
by
------------------------------
Name:
Title:
by
------------------------------
Name: C. Thomas Harvie
Title: Senior Vice President,
General Counsel & Secretary
SCHEDULE 1
Consent Subsidiaries
SCHEDULE 3A
Pledged Equity Interests
SCHEDULE 3B
Excluded Equity Interests
SCHEDULE 4
Debt Instruments
SCHEDULE 5A
Material US Patents and Trademarks
SCHEDULE 5B
Material US Copyrights
SCHEDULE 6
Material Canadian Trademarks
SCHEDULE 7
Deposit Accounts
EXHIBIT H
FORM OF
REAFFIRMATION AGREEMENT dated as of April 20, 2007 (this
"Agreement"), among THE GOODYEAR TIRE & RUBBER COMPANY
("Goodyear"), the other Subsidiaries of THE GOODYEAR TIRE &
RUBBER COMPANY identified as Grantors and Guarantors under the
Security Documents referred to below (collectively with
Goodyear, the "Reaffirming Parties") and JPMORGAN CHASE BANK,
N.A. as Administrative Agent and Collateral Agent under the
Restated Credit Agreement referred to below.
Goodyear has requested that the First Lien Credit Agreement dated as
of April 8, 2005, among Goodyear, the Lenders party thereto, the Issuing Banks
party thereto, the Documentation Agents party thereto, Citicorp USA, Inc., as
Syndication Agent, and JPMorgan Chase Bank, N.A., as Administrative Agent and
Collateral Agent (the "Credit Agreement"), be amended and restated in the form
of the Amended and Restated First Lien Credit Agreement dated as of the date
hereof among Goodyear, the Lenders party thereto, the Issuing Banks party
thereto, the Documentation Agents party thereto, Citicorp USA, Inc., as
Syndication Agent, and JPMorgan Chase Bank, N.A., as Administrative Agent and
Collateral Agent (the "Restated Credit Agreement"), and that the Guarantee and
Collateral Agreement (as defined in the Credit Agreement) be amended as set
forth in Section 1(b) below. Capitalized terms used but not defined herein have
the meaning given them by the Restated Credit Agreement.
Each of the Reaffirming Parties is party to one or more of the
Security Documents referred to in the Credit Agreement, and each Reaffirming
Party expects to realize, or has realized, substantial direct and indirect
benefits as a result of the Restated Credit Agreement becoming effective and the
consummation of the transactions contemplated thereby. The execution and
delivery of this Agreement is a condition precedent to the effectiveness of the
Restated Credit Agreement and the consummation of the transactions contemplated
thereby.
In consideration of the premises and the agreements, provisions and
covenants herein contained, the parties hereto hereby agree, on the terms and
subject to the conditions set forth herein, as follows:
SECTION 1. Reaffirmation. (a) Each of the Reaffirming Parties
confirms that (i) the security interests granted by it under the Security
Documents and in existence immediately prior to the Restatement Date shall
continue in full force and effect on the terms of the respective Security
Documents and (ii) on the Restatement Date the Obligations under the Restated
Credit Agreement shall constitute "Obligations" under the Guarantee and
Collateral Agreement as amended by paragraph (b) below (as so amended, the
"Amended GCA") and "secured obligations" (however defined) under the other
Security Documents (subject to any limitations set forth in the Amended GCA or
such other Security Documents). Each party hereto confirms that the intention of
the parties is
2
that each of the Guarantee and Collateral Agreement and each other Security
Document shall not terminate on the Restatement Date and shall continue in full
force and effect as amended or amended and restated by the Restated Credit
Agreement, this Agreement or otherwise.
(b) The references to Section "6.06(e)" of the Credit Agreement in
Section 12.13(d) of the Guarantee and Collateral Agreement are hereby replaced
with references to Section "6.04(c)".
(c) On the Restatement Date, (i) the term "Credit Agreement", as
used in the Security Documents, shall mean the Restated Credit Agreement and
(ii) the terms "Agreement", "this Agreement", "herein", "hereinafter", "hereto",
"hereof" and words of similar import, as used in the Amended GCA, shall, unless
the context otherwise requires, refer to the Guarantee and Collateral Agreement
as amended hereby.
SECTION 2. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 3. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
SECTION 4. Expenses. Goodyear agrees to reimburse the Administrative
Agent and the Collateral Agent for all reasonable out-of-pocket expenses
incurred by it in connection with this Agreement, including the reasonable fees,
charges and disbursements of Cravath, Swaine & Moore LLP and other counsel for
the Administrative Agent and the Collateral Agent.
SECTION 5. Headings. The headings of this Agreement are for purposes
of reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 6. No Novation. Neither this Agreement nor the execution,
delivery or effectiveness of the Restated Credit Agreement shall extinguish the
obligations for the payment of money outstanding under the Restated Credit
Agreement or the Credit Agreement or discharge or release the Lien or priority
of any Security Document or any other security therefor. Nothing herein
contained shall be construed as a substitution or novation of the obligations
outstanding under the Restated Credit Agreement or the Credit Agreement or
instruments securing the same, which shall remain in full force and effect,
except to any extent modified hereby or by instruments executed concurrently
herewith. Nothing implied in this Agreement, the Restated Credit Agreement or in
any other document contemplated hereby or thereby shall be construed as a
release or other discharge of the Borrower or any Guarantor or any Grantor under
3
any Security Document from any of its obligations and liabilities under the
Restated Credit Agreement or the Security Documents. Each of the Restated
Credit Agreement and the Security Documents shall remain in full force and
effect, until (as applicable) and except to any extent modified hereby or by the
Amendment Agreement or in connection herewith and therewith.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
THE GOODYEAR TIRE & RUBBER COMPANY,
by
--------------------------------
Name:
Title:
THE GOODYEAR TIRE & RUBBER COMPANY
FIRST LIEN REAFFIRMATION AGREEMENT
5
JPMORGAN CHASE BANK, N.A., as
Administrative Agent and Collateral
Agent,
by
--------------------------------
Name:
Title:
THE GOODYEAR TIRE & RUBBER COMPANY
FIRST LIEN REAFFIRMATION AGREEMENT
6
GRANTORS AND GUARANTORS
BELT CONCEPTS OF AMERICA, INC.,
by
--------------------------------
Name:
Title:
CELERON CORPORATION,
by
--------------------------------
Name:
Title:
COSMOFLEX, INC.,
by
--------------------------------
Name:
Title:
DAPPER TIRE CO, INC.,
by
--------------------------------
Name:
Title:
THE GOODYEAR TIRE & RUBBER COMPANY
FIRST LIEN REAFFIRMATION AGREEMENT
7
DIVESTED COMPANIES HOLDING COMPANY,
by
--------------------------------
Name:
Title:
by
--------------------------------
Name:
Title:
DIVESTED LITCHFIELD PARK
PROPERTIES, INC.,
by
--------------------------------
Name:
Title:
by
--------------------------------
Name:
Title:
GOODYEAR ENGINEERED PRODUCTS
CANADA, INC.,
by
--------------------------------
Name:
Title:
GOODYEAR ENGINEERED PRODUCTS
INTERNATIONAL, INC.,
by
--------------------------------
Name:
Title:
THE GOODYEAR TIRE & RUBBER COMPANY
FIRST LIEN REAFFIRMATION AGREEMENT
8
GOODYEAR ENGINEERED PRODUCTS
THAILAND, INC.,
by
--------------------------------
Name:
Title:
GOODYEAR FARMS, INC.,
by
--------------------------------
Name:
Title:
GOODYEAR INTERNATIONAL CORPORATION,
by
--------------------------------
Name:
Title:
GOODYEAR WESTERN HEMISPHERE
CORPORATION,
by
--------------------------------
Name:
Title:
THE KELLY-SPRINGFIELD TIRE
CORPORATION,
by
--------------------------------
Name:
Title:
THE GOODYEAR TIRE & RUBBER COMPANY
FIRST LIEN REAFFIRMATION AGREEMENT
9
WHEEL ASSEMBLIES INC.,
by
--------------------------------
Name:
Title:
WINGFOOT COMMERCIAL TIRE
SYSTEMS, LLC,
by
--------------------------------
Name:
Title:
WINGFOOT VENTURES EIGHT INC.,
by
--------------------------------
Name:
Title:
GOODYEAR CANADA INC.,
by
--------------------------------
Name:
Title:
by
--------------------------------
Name:
Title:
THE GOODYEAR TIRE & RUBBER COMPANY
FIRST LIEN REAFFIRMATION AGREEMENT