The Goodyear Tire & Rubber
Company
10.500% Senior Notes due 2016
UNDERWRITING AGREEMENT
J.P. Morgan
Securities Inc.
As Representative of the
c/o J.P. Morgan
Securities Inc.
270 Park Avenue
New York, NY 10017
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 several
underwriters (the “Underwriters”) named in
Schedule I hereto for whom you are acting as Representative
(the “Representative”) $1,000,000,000 in aggregate
principal amount of 10.500% Senior Notes due 2016 (the
“Securities”). The respective principal amounts of the
Securities to be so purchased by the several Underwriters are set
forth opposite their names in Schedule I hereto. The
Securities will be issued pursuant to an indenture (the
“Indenture”) to be dated as of May 11, 2009, 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”). The term “Securities”, when
used herein, includes the Guarantees where applicable. Capitalized
terms used but not defined herein shall have the meanings given to
such terms in the Registration Statement (as defined below) and the
Prospectus (as defined below).
As the
Representative, you have advised the Company (a) that you are
authorized to enter into this Agreement on behalf of the several
Underwriters, and (b) that the several Underwriters are
willing, acting severally and not jointly, to purchase the
principal amount of Securities set forth opposite their respective
names in Schedule I.
In consideration
of the mutual agreements contained herein and of the interests of
the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
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1. Representations and Warranties of the
Company and the Subsidiary Guarantors.
The Company and
each of the Subsidiary Guarantors, jointly and severally, represent
and warrant to each of the Underwriters as follows:
(a) An
“automatic shelf registration statement” as defined in
Rule 405 under the Securities Act of 1933, as amended (the
“Act”), on Form S-3 (File No. 333-158992) in
respect of the Securities and the Guarantees, including a form of
prospectus (the “Base Prospectus”), has been prepared
and filed by the Company not earlier than three years prior to the
date hereof, in conformity with the requirements of the Act and the
rules and regulations (the “Rules and Regulations”) of
the Securities and Exchange Commission (the
“Commission”) thereunder and no notice of objection of
the Commission to the use of such registration statement or any
post-effective amendment thereto has been received by the Company.
The Company and the transactions contemplated by this Agreement
meet the requirements and comply with the conditions for the use of
Form S-3. “Preliminary Prospectus” means the Base
Prospectus, as supplemented by any preliminary prospectus
(including any preliminary prospectus supplement) relating to the
Securities and the Guarantees filed with the Commission pursuant to
Rule 424(b) under the Act and including the documents incorporated
in the Base Prospectus by reference. Copies of such registration
statement, including any amendments thereto, the Preliminary
Prospectus, and the exhibits, financial statements and schedules to
such registration statement, in each case as finally amended and
revised, have heretofore been delivered by the Company to you. Such
registration statement, together with any post-effective amendment
thereto filed by the Company and the Subsidiary Guarantors pursuant
to Rules 413(b) and 462(f) under the Act, is herein referred to as
the “Registration Statement,” which shall be deemed to
include all information omitted therefrom in reliance upon
Rule 430A, 430B or 430C under the Act and contained in the
Prospectus referred to below. The Registration Statement has become
effective under the Act and no post-effective amendment to the
Registration Statement has been filed as of the date of this
Agreement. “Prospectus” means the prospectus in the
form first used to confirm sales of Securities and filed with the
Commission after the Applicable Time (as defined below) pursuant to
and within the time limits described in Rule 424(b) under the Act
and in accordance with Section 3(a) hereof. Any reference herein to
the Registration Statement, any Preliminary Prospectus or to the
Prospectus or to any amendment or supplement to any of the
foregoing documents shall be deemed to refer to and include any
documents incorporated by reference therein as of each effective
date of such Registration Statement or the date of such Preliminary
Prospectus or the Prospectus, as applicable, and, in the case of
any reference herein to the Prospectus, also shall be deemed to
include any documents incorporated by reference therein, and any
supplements or amendments thereto, filed with the Commission after
the date of filing of the Prospectus under Rule 424(b) under the
Act, and prior to the termination of the offering of the Securities
by the Underwriters.
(b) As
of the Applicable Time and as of the Closing Date (as defined
below), neither (i) the General Use Free Writing
Prospectus(es) (as defined below) issued at or prior to the
Applicable Time, the Statutory Prospectus (as defined below) and
the information included on Schedule II hereto, all considered
together (collectively, the “General Disclosure
Package”), nor (ii) any individual Limited Use Free
Writing Prospectus (as defined below), when considered together
with the General Disclosure Package, included or will include any
untrue statement of
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a material fact
or omitted or will omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that
the Company makes no representations or warranties as to
information contained in or omitted from the Statutory Prospectus
or any Issuer Free Writing Prospectus, in reliance upon, and in
conformity with, written information furnished to the Company by or
on behalf of any Underwriter through the Representative,
specifically for use therein, it being understood and agreed that
the only such information is that described in Section 13
herein. As used in this subsection and elsewhere in this
Agreement:
“Applicable
Time” means 4:00 p.m. (New York time) on the date of this
Agreement or such other time as agreed to in writing by the Company
and the Representative.
“Statutory
Prospectus” means the Preliminary Prospectus, as amended and
supplemented by any document incorporated by reference therein and
any prospectus supplement that has not been superseded, in each
case, immediately prior to the Applicable Time.
“Issuer Free
Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 under the Act,
relating to the Securities and the Guarantees in the form filed or
required to be filed with the Commission or, if not required to be
filed, in the form retained in the Company’s records pursuant
to Rule 433(g) under the Act.
“General Use
Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is identified on Schedule III to this
Agreement.
“Limited Use
Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is not a General Use Free Writing
Prospectus.
(c) 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
Registration Statement, the General Disclosure Package and the
Prospectus, 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. 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 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.
(d) The
Company has an authorized capitalization as set forth in the
Registration Statement and the Prospectus (and any similar section
or information contained in the General Disclosure Package) and all
of the issued shares of capital stock of the Company have been
duly
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and validly
authorized and issued and are fully paid and non-assessable;
neither the filing of the Registration Statement nor the offering
or sale of the Securities and the Guarantees as contemplated by
this Agreement gives rise to any rights, other than those which
have been waived or satisfied for or relating to the registration
of any securities of the Company or the Subsidiary Guarantors; 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
Securities Exchange Act of 1934, as amended (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 Registration Statement, the General Disclosure Package
and the Prospectus) the capital stock or other equity interests of
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 Registration Statement, the General Disclosure Package and the
Prospectus, 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.
(e) The
Commission has not issued an order preventing or suspending the use
of any Preliminary Prospectus, any Issuer Free Writing Prospectus
or the Prospectus relating to the proposed offering of the
Securities, and no proceeding for that purpose or pursuant to
Section 8A of the Act has been instituted or, to the
Company’s knowledge, threatened by the Commission. The
Registration Statement, as of each effective date and at the date
hereof and the Closing Date, and the Prospectus, as of its date and
at the date hereof and the Closing Date, complied and will comply
in all material respects with the requirements of the Act and the
Rules and Regulations. The documents incorporated by reference in
the Prospectus, at the time filed with the Commission conformed in
all material respects to the requirements of the Exchange Act or
the Act, as applicable, and the rules and regulations of the
Commission thereunder. The Registration Statement and any amendment
thereto as of each effective date and at the date hereof and the
Closing Date, did not contain, and will not contain, any untrue
statement of a material fact and did not omit, and will not omit,
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and the Prospectus
and any amendments and supplements thereto as of its date and at
the date hereof and the Closing Date, did not contain, and will not
contain, any untrue statement of a material fact and did not omit,
and will not omit, to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that
the Company makes no representations or warranties as to
information contained in or omitted from the Registration Statement
or the Prospectus, or any such amendment or supplement, in reliance
upon, and in conformity with, written information furnished to the
Company by or on behalf of any Underwriter through the
Representative, specifically for use therein, it being understood
and agreed that the only such information is that described in
Section 13 herein.
(f) Each
Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and
sale of the Securities, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement or the
Prospectus, including any document incorporated
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by reference
and any prospectus supplement deemed to be a part thereof that has
not been superseded or modified; provided, however, that the
Company makes no representations or warranties as to information
contained in or omitted from any Issuer Free Writing Prospectus, or
any amendment or supplement thereto, in reliance upon, and in
conformity with, written information furnished to the Company by or
on behalf of any Underwriter through the Representative,
specifically for use therein, it being understood and agreed that
the only such information is that described in Section 13
herein.
(g) The
Company has not, directly or indirectly, distributed and will not
distribute any offering material in connection with the offering
and sale of the Securities other than any Preliminary Prospectus,
the Prospectus, any General Use Free Writing Prospectuses and other
materials, if any, permitted under the Act and consistent with
Section 3(b) below. The Company will file with the Commission all
Issuer Free Writing Prospectuses in the time and manner required
under Rules 163(b)(2) and 433(d) under the Act.
(h)
(i) At the time of filing the Registration Statement,
(ii) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c)
under the Act) made any offer relating to the Securities in
reliance on the exemption of Rule 163 under the Act and
(iii) at the date hereof, the Company is a “well-known
seasoned issuer” as defined in Rule 405 under the Act
. The Company has not received from the Commission any
notice pursuant to Rule 401(g)(2) under the Act objecting to the
use of the automatic shelf registration form.
(i)
(i) At the earliest time after the filing of the Registration
Statement that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2)
under the Act) of the Securities and (ii) as of the date
hereof (with such date being used as the determination date for
purposes of this clause(ii)), the Company and each Subsidiary
Guarantor was not and is not an “ineligible issuer” (as
defined in Rule 405 under the Act, without taking into account
any determination by the Commission pursuant to Rule 405 under
the Act that it is not necessary that the Company or any Subsidiary
Guarantor be considered an ineligible issuer), including, without
limitation, for purposes of Rules 164 and 433 under the Act
with respect to the offering of the Securities as contemplated by
the Registration Statement.
(j) The
financial statements and the related notes thereto included or
incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus 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
(“GAAP”) applied on a consistent basis (unless
otherwise disclosed therein) throughout the periods covered
thereby; and the other financial information included or
incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus 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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(k) PricewaterhouseCoopers
LLP, who have certified certain consolidated financial statements
of the Company and its consolidated subsidiaries incorporated by
reference in the Registration Statement, the General Disclosure
Package and the Prospectus, are an independent registered public
accounting firm with respect to the Company and its subsidiaries as
required by the Act and the Rules and Regulations and by the Public
Company Accounting Oversight Board (United States) (the
“PCAOB”).
(l) Other
than as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus, since the date of the latest
audited financial statements included or incorporated by reference
in the Registration Statement, the General Disclosure Package and
the Prospectus, there has been no change in the Company’s
internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the
Company’s internal control over financial
reporting.
(m) Except
as would not reasonably be expected 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
(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 GAAP 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.
(n) The
Company maintains disclosure controls and procedures (as such term
is defined in Rule 13a-15(e) of the Exchange Act) that comply with
the requirements of the Exchange Act; such disclosure controls and
procedures have been designed to ensure that material information
relating to the Company and its subsidiaries is made known to the
Company’s principal executive officer and principal financial
officer by others within those entities; and such disclosure
controls and procedures are effective.
(o) Except
as set forth in the Registration Statement, the General Disclosure
Package and the Prospectus, 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 pursuant to Item 103 of Regulation S-K under
the Exchange Act 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.
(p) 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 Registration Statement, the General Disclosure
Package and the Prospectus, (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, (iii) such as could not reasonably be
expected, individually or in the aggregate, to have a Material
Adverse
6
Effect or
(iv) Permitted Liens; 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.
(q) 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
Registration Statement, the General Disclosure Package and the
Prospectus 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.
(r) 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 Registration Statement, the
General Disclosure Package and the Prospectus 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 Registration Statement,
General Disclosure Package and the Prospectus; and, since the date
as of which information is given in the Registration Statement, the
General Disclosure Package and the Prospectus, 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 the 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 Registration Statement, the General
Disclosure Package and the Prospectus.
(s) Since
the date of the latest audited financial statements of the Company
included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus
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 Registration Statement, the General Disclosure Package and the
Prospectus.
(t) Neither
the Company nor any of its subsidiaries is (i) in violation of
its Articles of Incorporation or Code of Regulations or other
similar organizational documents, (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,
7
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.
(u) The
execution, delivery and performance by each of the Company and the
Subsidiary Guarantors of each of the Transaction Documents (as
defined below) 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 Articles of Incorporation
or Code of Regulations or other similar organizational documents of
the Company or any Subsidiary Guarantor 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
(including the Guarantees) or the consummation by the Company and
the Subsidiary Guarantors of the transactions contemplated by this
Agreement, except such as have been obtained or made by the Company
and the Subsidiary Guarantors and are in full force and effect
under the Act and for such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws or under the securities laws of Canada
or any province thereof or from the Financial Industry Regulatory
Authority (“FINRA”) in connection with the purchase and
resale of the Securities by the Underwriters.
(v) 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 and the Indenture (including each applicable
Guarantee set forth therein) (collectively, the “Transaction
Documents”) and to perform their respective obligations
hereunder and thereunder; and all corporate or limited liability
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.
(w) 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
8
of whether
considered in a proceeding in equity or at law (collectively, the
“Enforceability Exceptions”), and as of 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.
(x) 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.
(y) Each
Transaction Document conforms in all material respects to the
description thereof contained in the Registration Statement and the
Prospectus;
(z) This
Agreement has been duly authorized, executed and delivered by the
Company and each of the Subsidiary Guarantors.
(aa) 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.
(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
Registration Statement, the General Disclosure Package and the
Prospectus, 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
Registration Statement, the General Disclosure Package and the
Prospectus 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
9
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.
(cc) The
statements set forth in the Registration Statement, the General
Disclosure Package and the Prospectus under the caption
“Description of Notes”, insofar as they purport to
constitute a summary of the Securities and the Guarantees, and
under the caption “Certain material 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.
(dd) Prior
to the date hereof, neither the Company nor any of its affiliates
(as defined in Rule 144 under the 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.
(ee) Neither
the Company nor any subsidiary of the Company is, and after giving
effect to the offering and sale of the Securities and the issuance
of the Guarantees, none of them will be an “investment
company,” as such term is defined in the Investment Company
Act of 1940, as amended (the “1940 Act”).
(ff) 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,
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 its 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,
except, in the case of clause (ii), as would not reasonably be
expected to have a Material Adverse Effect.
(gg) Except
as would not reasonably be expected to have a Material Adverse
Effect, (a) 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”), and
(b) 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 the plans that are subject to the funding rules of
Section 412 of the Code or Section 302 of ERISA, except
as set forth in the Registration Statement, the General Disclosure
Package and the Prospectus, the present value of all benefit
liabilities under each such plan (based on the assumptions used for
purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the last date the plans were measured
for
10
year-end
disclosure purposes, exceed by more than $1,317 million the fair
market value of the assets of such plan, and the present value of
all benefit liabilities of all underfunded plans (based on the
assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the last date the plans were
measured for year-end disclosure purposes, exceed by more than
$2,050 million the fair market value of the assets of all such
underfunded plans, and no such plan has failed to satisfy the
minimum funding standard as defined in Section 412 of the Code
or Section 302 of ERISA.
(hh) 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.
(ii) None
of the information on (or hyperlinked from) the Company’s
website at www.goodyear.com, or any website of any subsidiary of
the Company maintained or supported by the Company, includes or
constitutes a “free writing prospectus” as defined in
Rule 405 under the Act (other than any information that has
been filed by the Company with the Commission in accordance with
Rule 433 under the Act).
(jj) 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 and its subsidiaries, no 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 Pract
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