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EXHIBIT 4.1
EXECUTION COPY
THE GOODYEAR TIRE & RUBBER COMPANY
$400,000,000 Senior Notes due 2015
Purchase Agreement
June 20, 2005
Citigroup Global Markets Inc.
as representative of the several
Purchasers listed on Schedule I hereto
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
The
Goodyear Tire & Rubber Company, an Ohio corporation (the
"Company"),
proposes, subject to the terms and
conditions stated herein, to issue and sell
to the Purchasers named in Schedule I
hereto (the "Purchasers") an aggregate of
$400,000,000 principal amount of the 9.00%
Senior Notes due 2015 (the
"Securities"). The Securities will be
issued pursuant to an indenture (the
"Indenture") to be dated as of June 23,
2005, among the Company, the subsidiary
guarantors signatory hereto (the
"Subsidiary Guarantors") and Wells Fargo Bank,
N.A., as trustee (the "Trustee") and will
be guaranteed on an unsecured senior
basis by each of the Subsidiary Guarantors
(the "Guarantees"). Capitalized terms
used but not defined herein shall have the
meanings given to such terms in the
Offering Memorandum (as defined below).
The sale
of the Securities to the Purchasers will be made without
registration under the Securities Act of
1933, as amended (the "Securities
Act"), in reliance upon exemptions from the
registration requirements of the
Securities Act.
1. The
Company and each of the Subsidiary Guarantors jointly and
severally
represent and warrant to, and agree with,
each of the Purchasers that:
(a) A preliminary offering memorandum, dated June 20, 2005 (the
"Preliminary Offering Memorandum") and an offering memorandum,
dated June
20, 2005
(the "Offering Memorandum", in each case including the
Company's
Annual
Report on Form 10-K for the fiscal year ended December 31,
2004,
Quarterly
Report on Form 10-Q for the quarter ended March 31, 2005 and
the
Current
Reports on Form 8-K filed on January 3, January 14, February
23,
February
25, February 28, March 2, March 8, March 18, April 14, April
19,
April 27,
May 3 and June 20, 2005 each of which are incorporated by
reference
in and made a part of the Preliminary Offering Memorandum and
the
Offering Memorandum), have been prepared in connection with the
offering
of the Securities. Any reference to the Preliminary Offering
Memorandum
or the Offering Memorandum shall be deemed to refer to and
include
the Company's
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most
recent Annual Report on Form 10-K and all subsequent documents
filed
with the
United States Securities and Exchange Commission (the
"Commission") pursuant to Section 13(a), 13(c) or 15(d) of the
United
States
Securities Exchange Act of 1934, as amended (the "Exchange
Act")
(excluding
information furnished under Item 2.02 or Item 7.01 of any
current
report on Form 8-K filed on or after January 1, 2005) on or
prior
to the
date of the Preliminary Offering Memorandum or the Offering
Memorandum, as the case may
be, and any reference to the Preliminary
Offering
Memorandum or the Offering Memorandum, as the case may be, as
amended or
supplemented, as of any specified date, shall be deemed to
include
any documents filed with the Commission pursuant to Section
13(a),
13(c) or
15(d) of the Exchange Act after the date of the Preliminary
Offering
Memorandum or the Offering Memorandum, as the case may be,
prior
to such
specified date (excluding information furnished under Item 2.02
or
7.01 of
any current report on Form 8-K); and all documents filed under
the
Exchange
Act and so deemed to be included or incorporated by reference
in
the
Preliminary Offering Memorandum or the Offering Memorandum, as
the
case may
be, or any amendment or supplement thereto are hereinafter
called
the
"Exchange Act Reports". The Exchange Act Reports, when they were
or
are filed
with the Commission, conformed or will conform, as the case may
be, in all
material respects to the applicable requirements of the
Exchange
Act and the applicable rules and regulations of the Commission
thereunder. The Preliminary Offering Memorandum or the Offering
Memorandum
and any
amendments or supplements thereto insofar as such amendments or
supplements are incorporated into the Offering Memorandum and the
Exchange
Act
Reports did not and will not, as of their respective dates, contain
an
untrue
statement of a material fact or omit to state a material fact
necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided,
however,
that this representation and warranty shall not apply to, and
the
Company
makes no representation or warranty with respect to, any
statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by a Purchaser
through
Citigroup
Global Markets Inc. expressly for use therein;
(b) Neither the Company nor any of its subsidiaries has
sustained
since the
date of the latest audited financial statements included or
incorporated by reference in the Offering Memorandum any loss
or
interference with its business that is material to the Company and
its
subsidiaries taken as a whole from fire, explosion, flood or
other
calamity,
whether or not covered by insurance, or from any labor dispute
or court
or governmental action, order or decree, except as set forth or
contemplated in the Offering Memorandum; and, since the respective
dates
as of
which information is given in the Offering Memorandum, there has
not
been any
change in the capital stock (other than issuances pursuant to
equity
incentive plans) or increase in long-term debt of the Company
or
any of its
subsidiaries that is material to the Company and its
subsidiaries taken as a whole, or any material adverse change, or
any
development that would reasonably be expected to result in a
material
adverse
change, in or affecting the business, properties, financial
position
or results of operations of the Company and its subsidiaries
taken as a
whole, except as set forth or contemplated in the Offering
Memorandum. As used in this Agreement, a "subsidiary" of any person
means
any
corporation, association, partnership or other business entity
of
which more
than 50% of the total voting power of
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shares of
capital stock or other interests (including partnership
interests)
entitled (without regard to the occurrence of any contingency)
to vote in
the election of directors, managers or trustees thereof is at
the time
owned or controlled, directly or indirectly, by: (i) such
person,
(ii) such
person and one or more subsidiaries of such person or (iii) one
or more
subsidiaries of such person.
(c) The Company and its subsidiaries have good and marketable
title
in fee
simple to all real property and good and marketable title to
all
personal
property owned by them, in each case free and clear of all
liens,
encumbrances and defects except (i) such as are described in the
Offering
Memorandum
or (ii) such as do not materially affect the value of such
property
and do not interfere with the use made and proposed to be made
of
such
property by the Company and its subsidiaries or (iii) such as
could
not
reasonably be expected, individually or in the aggregate, to have
a
material
adverse effect on the business, properties, financial position
or
results of
operations of the Company and its subsidiaries taken as a whole
or on the
performance by the Company of its obligations under the
Securities
(a "Material Adverse Effect") or (iv) "Permitted Liens" as
defined in
the Indenture; and any real property and buildings held under
lease by
the Company and its subsidiaries are held by them under valid,
subsisting
and enforceable leases with such exceptions as are not material
and do not
interfere with the use made and proposed to be made of such
property
and buildings by the Company and its subsidiaries taken as a
whole in
any material respect;
(d) The Company and its subsidiaries own, license or otherwise
possess
adequate rights to use all material patents, patent
applications,
trademarks, service marks, trade names, trademark registrations,
service
mark
registrations, copyrights, licenses and know-how (including
trade
secrets
and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the
conduct
of their
respective businesses, except where the failure to own, license
or
otherwise possess such rights would not reasonably be expected to
have
a Material
Adverse Effect; and the conduct of their respective businesses
will not
conflict in any respect with any such rights of others, and the
Company
and, to the best of the Company's knowledge, its subsidiaries,
have not
received written notice of any claim of infringement of or
conflict
with any such rights of others, except in each case such
conflicts
or infringements that, if adversely determined against the
Company or
any of its subsidiaries, would not reasonably be expected to
have a
Material Adverse Effect.
(e) The financial statements and the related notes thereto
included
or
incorporated by reference in the Offering Memorandum present fairly
in
all
material respects the consolidated financial position of the
Company
and its
consolidated subsidiaries as of the dates indicated and the
results of
their operations and the changes in their cash flows for the
periods
specified, in each case, on a consolidated basis; such
financial
statements
have been prepared in conformity with United States generally
accepted
accounting principles applied on a consistent basis throughout
the
periods covered thereby; and the other financial information
included
or
incorporated by reference in the Offering Memorandum has been
derived
from the
accounting records of the Company and its subsidiaries and
presents
fairly in all material respects the information shown thereby.
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(f) Since the date of the latest audited financial statements of
the
Company
included or incorporated by reference in the Offering
Memorandum,
neither
the Company nor any of its subsidiaries has entered into any
transaction or agreement that is material to the Company and
its
subsidiaries taken as a whole or incurred any liability or
obligation,
direct or
contingent, that is material to the Company and its
subsidiaries
taken as a
whole, other than as set forth in the Company's filings with
the
Commission incorporated into the Offering Memorandum or the
Offering
Memorandum.
(g) Each of the Company and the Subsidiary Guarantors has been
duly
organized
and is validly existing and in good standing under the laws of
their
respective jurisdictions of organization, with all requisite
power
and
authority (corporate and other) necessary to own its properties
and
conduct
its business as described in the Offering Memorandum, and has
been
duly
qualified as a foreign corporation or limited liability company
for
the
transaction of business and is in good standing under the laws of
each
other
jurisdiction in which it owns or leases properties or conducts
any
business
so as to require such qualification, or is subject to no
liability
or disability that is material to the Company and its
subsidiaries taken as a whole by reason of the failure to be so
qualified
or in good
standing in any such jurisdiction;
(h) The Company has an authorized capitalization as set forth in
the
Offering
Memorandum, and all of the issued shares of capital stock of
the
Company
have been duly and validly authorized and issued and are fully
paid and
non-assessable; and all of the issued shares of capital stock
or
other
equity interests of each significant subsidiary (for purposes
of
this
Section, as defined in Rule 1.02 of Regulation S-X under the
Exchange
Act) of
the Company have been duly and validly authorized and issued,
are
fully paid
and non-assessable and (except for directors' qualifying shares
and except
as otherwise set forth in the Offering Memorandum) the capital
stock or
other equity interests of each Subsidiary Guarantor and each
significant subsidiary is owned directly or indirectly by the
Company,
free and
clear of any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third
party
other than
those which are "Permitted Liens" as defined in the Indenture.
Except as
described in the Offering Memorandum, there are no outstanding
subscriptions, rights, warrants, calls or options to acquire,
or
instruments convertible into or exchangeable for, or agreements
or
understandings with respect to the sale or issuance of, any shares
of
capital
stock of or other equity or other ownership interest in the
Company or
any of its significant subsidiaries;
(i) Each of the Company and the Subsidiary Guarantors has full
right,
corporate or limited liability company power, as applicable,
and
authority
to execute and deliver, as applicable, this Agreement, the
Securities, the Indenture (including each Guarantee set forth
therein),
the
Exchange Securities (as defined in the Indenture) (including
the
related
guarantees) and the Registration Rights Agreement dated as of
the
Closing
Date among the Company, the Subsidiary Guarantors and the
Purchasers
therein (the "Registration Rights Agreement" and together with
this
Agreement, the Securities, the Exchange Securities (including
the
related
guarantees) and the Indenture (including each Guarantee set
forth
therein),
the "Transaction Documents") and to perform their respective
obligations hereunder and thereunder; and all corporate or
limited
liability
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company
action, as applicable, required to be taken for the due and
proper
authorization, execution and delivery of each of the Transaction
Documents
and the
consummation of the transactions contemplated thereby has been
duly and
validly taken.
(j) The Indenture has been duly authorized by the Company and
each
of the
Subsidiary Guarantors and, when duly executed and delivered in
accordance
with its terms by each of the parties thereto, will constitute
a valid
and legally binding agreement of the Company and each of the
Subsidiary
Guarantors enforceable against the Company and each of the
Subsidiary
Guarantors in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general
applicability
relating
to or affecting creditors' rights and to general equity
principles
regardless of whether considered in a proceeding in equity or
at law
(collectively, the "Enforceability Exceptions"), and on the
Closing
Date, the
Indenture will conform in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the
"Trust
Indenture
Act") and the rules and regulations of the Commission
applicable
to an
indenture qualified thereunder;
(k) The Securities have been duly authorized by the Company
and,
when duly
executed, authenticated, issued and delivered as provided in
the
Indenture
and paid for as provided herein, will be duly and validly
issued
and
outstanding and will constitute valid and legally binding
obligations
of the
Company enforceable against the Company in accordance with
their
terms,
subject to the Enforceability Exceptions, and will be entitled
to
the
benefits of the Indenture; and the Guarantees have been duly
authorized
by each of the Subsidiary Guarantors and, when the Securities
have been
duly executed, authenticated, issued and delivered as provided
in the
Indenture and paid for as provided herein, will be valid and
legally
binding obligations of each of the Subsidiary Guarantors,
enforceable against each of the Subsidiary Guarantors in accordance
with
their
terms, subject to the Enforceability Exceptions, and will be
entitled to the
benefits of the Indenture.
(l) On the Closing Date, the Exchange Securities (including the
related
guarantees) will have been duly authorized by the Company and
each
of the
Subsidiary Guarantors and, when duly executed, authenticated,
issued and
delivered in accordance with the Indenture and the Registration
Rights
Agreement, will be duly and validly issued and outstanding and
will
constitute
valid and legally binding obligations of the Company, as
issuer,
and each of the Subsidiary Guarantors, as guarantor,
enforceable
against
the Company and each of the Subsidiary Guarantors in accordance
with their
terms, subject to the Enforceability Exceptions, and will be
entitled
to the benefits of the Indenture.
(m) This Agreement has been duly authorized, executed and
delivered
by the
Company and each of the Subsidiary Guarantors; and the
Registration
Rights
Agreement has been duly authorized by the Company and each of
the
Subsidiary
Guarantors and, when duly executed and delivered in accordance
with its
terms by each of the parties thereto, will constitute a valid
and
legally
binding agreement of the Company and each of the Subsidiary
Guarantors enforceable
against the Company and each of the Subsidiary
Guarantors
in accordance with its terms, subject to the Enforceability
Exceptions, and except that rights to indemnity and
contribution
thereunder
may be limited by applicable
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law and
public policy. There are no other persons with registration
rights
or similar
rights to have any securities of the Company or the Subsidiary
Guarantors
((i) other than the Securities, (ii) the Company's 11% Senior
Secured
Notes due 2011 and Senior Secured Floating Rate Notes due 2011
(collectively, the "Senior Secured Notes") and (iii) the Company's
4.00%
Convertible Senior Notes due 2034 (the "Convertible Notes") offered
and
sold in
reliance on Rule 144A under the Securities Act) registered under
a
registration statement filed under the Securities Act;
(n) Each Transaction Document conforms in all material respects
to
the
description thereof contained in the Preliminary Offering
Memorandum
and the
Offering Memorandum.
(o) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the
sale of
the Securities
as described in the Offering Memorandum) will violate or
result in
a violation of Section 7 of the Exchange Act, or any regulation
promulgated thereunder, including, without limitation, Regulations
T, U,
and X of
the Board of Governors of the Federal Reserve System;
(p) Prior to the date hereof, neither the Company nor any of
its
affiliates
(as defined in Rule 144 under the Securities Act) has taken any
action
which is designed to or which has constituted or which might
have
been
expected to cause or result in stabilization or manipulation of
the
price of
any security of the Company in connection with the offering of
the
Securities;
(q) The execution, delivery and performance by each of the
Company
and the
Subsidiary Guarantors of each of the Transaction Documents to
which it
is a party, the issuance and sale of the Securities (including
the
Guarantees) and the compliance by each of the Company and the
Subsidiary
Guarantors with all of the provisions of the Transaction
Documents,
and the consummation of the transactions herein and therein
contemplated will not (i) conflict with or result in a breach or
violation
of any of
the terms or provisions of, or constitute a default under, any
indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument
to which the Company or any of its subsidiaries is a party or
by which
the Company or any of its subsidiaries is bound or to which any
of the
property or assets of the Company or any of its subsidiaries is
subject,
(ii) result in any violation of the provisions of the
Certificate
of
Incorporation or By-laws of the Company or any of the
Subsidiary
Guarantors
or (iii) result in any violation of any law or statute or any
judgment,
order, rule or regulation of any court or governmental agency
or
body
having jurisdiction over the Company or any of its subsidiaries
or
any of their
properties or assets, except, in the case of clauses (i) and
(iii)
above, for any such conflict, breach or violation that would
not,
individually or in the aggregate, reasonably be expected to have
a
Material
Adverse Effect; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental
agency or
body is required for the issue and sale of the Securities or
the
consummation by the Company and the Subsidiary Guarantors of
the
transactions contemplated by the Transaction Documents, except for
(i)
such
consents, approvals, authorizations, registrations or
qualifications
as may be
required under state securities or Blue Sky laws in connection
with the
purchase and resale of the Securities by the Purchasers and
(ii)
the
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filing of
a registration statement pursuant to the Securities Act by the
Company
with the Commission pursuant to the Registration Rights
Agreement;
(r) Neither the Company nor any of its subsidiaries is (i) in
violation
of its Certificate of Incorporation or By-laws, (ii) in default
in the
performance or observance of any obligation, covenant or
condition
contained
in any indenture, mortgage, deed of trust, loan agreement,
lease
or other
agreement or instrument to which it is a party or by which it
or
any of its
properties may be bound or (iii) in violation of any statute,
law, rule,
regulation, judgment, order or decree applicable to the Company
or any of
its subsidiaries of any court, regulatory body, administrative
agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its
properties,
as
applicable, except, in the case of clauses (ii) and (iii), for
any
default or
violation that would not, individually or in the aggregate,
reasonably
be expected to have a Material Adverse Effect;
(s) The statements set forth in the Offering Memorandum under
the
caption
"Description of Notes", insofar as they purport to constitute a
summary of
the terms of the Securities and the Guarantees, and under the
caption
"Certain United States Federal Income Tax Considerations",
insofar
as they
purport to describe the provisions of the laws and documents
referred
to therein, are accurate, complete and fair in all material
respects;
(t) Other than as set forth in the Offering Memorandum, there are
no
legal or
governmental proceedings pending to which the Company or any of
its
subsidiaries is a party or to which any property of the Company or
any
of its
subsidiaries is the subject, which would be required to be
disclosed
in the Company's Annual Report on Form 10-K if such report were
filed on
the date hereof; and, to the best of the Company's knowledge,
no
such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(u) When the Securities are issued and delivered pursuant to
this
Agreement,
the Securities will not be of the same class (within the
meaning of
Rule 144A under the Securities Act) as securities which are
listed on
a national securities exchange registered under Section 6 of
the
Exchange
Act or quoted in a U.S. automated inter-dealer quotation
system;
(v) The Company is subject to Section 13 or 15(d) of the
Exchange
Act;
(w) Neither the Company nor any of its subsidiaries is, and
after
giving
effect to the offering and sale of the Securities, none of them
will be an
"investment company", as such term is defined in the United
States
Investment Company Act of 1940, as amended (the "Investment
Company
Act");
(x) Neither the Company, nor any person acting on its or their
behalf
(other than the Purchasers, or any persons acting on their
behalf,
as to
which no representation is made), has (i) offered or sold the
Securities
by means of any general solicitation or general advertising
within the
meaning of Rule 502(c) under the Securities Act or (ii)
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engaged in
any directed selling efforts within the meaning of Regulation S
under the
Securities Act ("Regulation S"), and all such persons have
complied
with the offering restrictions requirement of Regulation S;
(y) Within the preceding six months, neither the Company nor
any
other
person acting on behalf of the Company has offered or sold to
any
person any
Securities, or any securities of the same or a similar class as
the
Securities, other than Securities offered or sold to the
Purchasers
hereunder.
The Company will take reasonable precautions designed to insure
that any
offer or sale, direct or indirect, in the United States or to
any
U.S.
person (as defined in Rule 902 under the Securities Act) of any
Securities
or any substantially similar security issued by the Company,
within six
months subsequent to the date on which the distribution of the
Securities
has been completed (as notified to the Company by the
Purchasers), is made under restrictions and other circumstances
reasonably
designed
not to affect the status of the offer and sale of the
Securities
in the
United States and to U.S. persons contemplated by this Agreement
as
transactions exempt from the registration provisions of the
Securities
Act;
(z) PricewaterhouseCoopers LLP, who have certified certain
consolidated financial statements of the Company and its
consolidated
subsidiaries, are independent public accountants as required by
the
Securities
Act and the rules and regulations of the Commission thereunder
within the
meaning of Rule 101 of the Code of Professional Conduct of the
American
Institute of Certified Public Accountants and its
interpretations
and
rulings thereunder;
(aa) The Company and its subsidiaries have paid all federal,
state,
local and
foreign taxes (except for such taxes that are not yet
delinquent
or that
are being contested in good faith and by proper proceedings)
and
filed all
tax returns required to be paid or filed through the date
hereof,
except in each case where the failure to pay or file would not
reasonably
be expected to have a Material Adverse Effect; and except as
otherwise
disclosed in the Offering Memorandum or as would not reasonably
be
expected to have a Material Adverse Effect, there is no tax
deficiency
that has
been, or could reasonably be expected to be, asserted against
the
Company or
any of its subsidiaries or any of their respective properties
or
assets;
(bb) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have
made
all
declarations and filings with, the appropriate federal, state,
local
or foreign
governmental or regulatory authorities that are necessary for
the
ownership or lease of their respective properties or the conduct
of
their
respective businesses as described in the Offering Memorandum,
except
where the failure to possess or make the same would not,
individually or in the aggregate, reasonably be expected to have
a
Material
Adverse Effect; and except as described in the Offering
Memorandum
or as would not reasonably be expected to have a Material
Adverse
Effect, neither the Company nor any of its subsidiaries has
received
written notice of any revocation or modification of any such
license,
certificate, permit or authorization or has any reason to
believe
that any
such license, certificate, permit or authorization will not be
renewed in
the ordinary course;
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(cc) Except as described in the Offering Memorandum, no labor
disturbance by or dispute with employees of the Company or any of
its
subsidiaries exists or, to the best knowledge of the Company,
is
contemplated or threatened, in each case that would be reasonably
expected
to have a
Material Adverse Effect;
(dd) The Company and its subsidiaries (i) are in compliance with
any
and all
applicable federal, state, local and foreign laws, rules,
regulations, decisions and orders relating to the protection of
human
health and
safety, the environment or hazardous or toxic substances or
wastes,
pollutants or contaminants (collectively, "Environmental
Laws");
(ii) have
received and are in compliance with all permits, licenses or
other
approvals required of them under applicable Environmental Laws
to
conduct
their respective businesses; and (iii) have not received notice
of
any actual
or potential liability for the investigation or remediation of
any
disposal or release of hazardous or toxic substances or wastes,
pollutants
or contaminants, except in any such case for any such failure
to comply
with, or failure to receive required permits, licenses or
approvals,
or liability, as would not, individually or in the aggregate,
reasonably
be expected to have a Material Adverse Effect;
(ee) Except as would not reasonably be expected to have a
Material
Adverse
Effect, each employee benefit plan, within the meaning of
Section
3(3) of
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"),
that is maintained, administered or contributed to by the
Company or
any of its affiliates for employees or former employees of the
Company
and its affiliates is in compliance in all material respects
with
its terms
and the requirements of any applicable statutes, orders, rules
and
regulations, including but not limited to ERISA and the
Internal
Revenue
Code of 1986, as amended (the "Code"); no prohibited
transaction,
within the
meaning of Section 406 of ERISA or Section 4975 of the Code,
has
occurred with respect to any such plan excluding transactions
effected
pursuant
to a statutory or administrative exemption; and for each such
plan that
is subject to the funding rules of Section 412 of the Code or
Section
302 of ERISA, except as set forth in the Preliminary Offering
Memorandum
or the Offering Memorandum, the fair market value of the assets
of each
such plan (excluding for these purposes accrued but unpaid
contributions) exceeds the present value of all benefits accrued
under
such plan
determined using reasonable actuarial assumptions, and no
"accumulated funding deficiency" as defined in Section 412 of the
Code has
been
incurred, whether or not waived;
(ff) Except as would not reasonably be expected to have a
Material
Adverse
Effect, the Company and its subsidiaries maintain systems of
internal
accounting controls sufficient to provide reasonable assurance
that (i)
transactions are executed in accordance with management's
general
or
specific authorizations; (ii) transactions are recorded as
necessary to
permit preparation of financial
statements in conformity with generally
accepted
accounting principles and to maintain asset accountability;
(iii)
access to
assets is permitted only in accordance with management's
general
or
specific authorization; and (iv) the recorded accountability for
assets
is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
foregoing
is subject
to the disclosures set forth in Note 2 to the Financial
Statements
and Item 9A, in each case, of the Company's Annual Report on
Form 10-K
for the fiscal year
9
<PAGE>
ended
December 31, 2004, and Item 4 of the Company's Quarterly Report
on
Form 10-Q
for the quarter ended March 31, 2005;
(gg) Except as would not reasonably be expected to have a
Material
Adverse
Effect, the Company and its subsidiaries have insurance
covering
their
respective properties, operations, personnel and businesses,
including
business interruption insurance, which insurance is in amounts
and
insures against such losses and risks as are customary among
companies
of
established reputation engaged in the same or similar businesses
and
operating
in the same or similar locations; and neither the Company nor,
to the
best of the Company's knowledge, any of the Company's
subsidiaries,
has (i)
received written notice from any insurer or agent of such
insurer
that
capital improvements or other expenditures are required or
necessary
to be made
in order to continue such insurance or (ii) any reason to
believe
that it will not be able to renew its existing insurance
coverage
as and
when such coverage expires or to obtain similar coverage at
reasonable
cost from similar insurers as may be necessary to continue its
business;
(hh) Except as would not reasonably be expected to have a
Material
Adverse
Effect, neither the Company nor any of its subsidiaries nor, to
the best
knowledge of the Company, any director, officer, agent,
employee
or other
person associated with or acting on behalf of the Company or
any
of its
subsidiaries has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense
relating to
political
activity; (ii) made any direct or indirect unlawful payment to
any
foreign or domestic government official or employee from
corporate
funds;
(iii) violated or is in violation of any provision of the
Foreign
Corrupt
Practices Act of 1977; or (iv) made any bribe, rebate, payoff,
influence
payment, kickback or other unlawful payment;
(ii) On and immediately after the Closing Date, the Company
(after
giving
effect to the issuance of the Securities and the other
transactions
related
thereto as described in the Offering Memorandum) will be
Solvent.
As used in
this paragraph, the term "Solvent"
