1
Exhibit 10.3
EXECUTION COPY
WINGFOOT A/R LLC,
as Issuer
THE GOODYEAR TIRE & RUBBER COMPANY,
as Collection Agent
THE CHASE MANHATTAN BANK,
as Administrative Agent,
CERTAIN CP CONDUIT PURCHASERS,
CERTAIN APA BANKS,
CERTAIN FUNDING AGENTS
and
THE CHASE MANHATTAN BANK,
as Indenture Trustee
SERIES 2001-1 INDENTURE SUPPLEMENT
dated as of April 27, 2001
to
BASE INDENTURE
dated as of April 27, 2001
2
TABLE OF CONTENTS
Page
----
ARTICLE 1 DEFINITIONS.............................................................................................1
ARTICLE 2 PURCHASE AND SALE OF SERIES 2001-1 INVESTOR NOTES; INCREASES AND DECREASES OF SERIES 2001-1
INVESTED AMOUNT....................................................................................19
SECTION 2.1. Purchases of the Series 2001-1 Investor Notes..............................................19
SECTION 2.2. Delivery...................................................................................20
SECTION 2.3. Procedure for Initial Issuance and for Increasing the Series 2001-1 Invested Amount........20
SECTION 2.4. Sales by CP Conduit Purchasers of Series 2001-1 Investor Notes to APA Banks................22
SECTION 2.5. Procedure for Decreasing the Series 2001-1 Invested Amount; Optional Termination...........22
SECTION 2.6. Increases and Reductions of the Commitments; Extensions of the Commitments.................23
SECTION 2.7. Interest; Fees.............................................................................25
SECTION 2.8. Indemnification by the Issuer and the Collection Agent.....................................26
SECTION 2.9. Funding Agents.............................................................................27
ARTICLE 3 ARTICLE V OF THE BASE INDENTURE........................................................................28
Section 5A.1 Establishment of Series 2001-1 Subaccounts................................................28
Section 5A.2 Allocations with Respect to the Series 2001-1 Investor Notes..............................29
Section 5A.3. Determination of Interest................................................................33
Section 5A.4. Monthly Application of Collections.......................................................33
Section 5A.5 Payment of Monthly Interest Payment, Fees and Expenses....................................34
Section 5A.6. Determination of Principal Payment.......................................................35
ARTICLE 4 TERMINATION EVENTS.....................................................................................36
ARTICLE 5 OPTIONAL PREPAYMENT....................................................................................39
ARTICLE 6 COLLECTION AGENT FEE...................................................................................39
SECTION 6.1. Collection Agent Fee.......................................................................39
ARTICLE 7 CHANGE IN CIRCUMSTANCES................................................................................39
SECTION 7.1. Illegality.................................................................................39
SECTION 7.2. Increased Costs............................................................................40
SECTION 7.3. Taxes......................................................................................41
SECTION 7.4. Break Funding Payments.....................................................................43
SECTION 7.5. Alternate Rate of Interest.................................................................43
SECTION 7.6. Mitigation Obligations.....................................................................44
ARTICLE 8 REPRESENTATIONS AND WARRANTIES, COVENANTS..............................................................44
SECTION 8.1. Representations and Warranties of the Issuer and Goodyear..................................44
SECTION 8.2. Covenants of the Issuer and Goodyear.......................................................45
-i-
3
SECTION 8.3. Covenants of the Collection Agent..........................................................45
SECTION 8.4. Obligations Unaffected.....................................................................46
SECTION 8.5. Designation of Eligible Special Obligors and Additional Eligibility Criteria...............46
ARTICLE 9 CONDITIONS PRECEDENT...................................................................................47
SECTION 9.1. Conditions Precedent to Effectiveness of Indenture Supplement..............................47
ARTICLE 10 THE ADMINISTRATIVE AGENT..............................................................................51
SECTION 10.1. Appointment...............................................................................51
SECTION 10.2. Delegation of Duties......................................................................51
SECTION 10.3. Exculpatory Provisions....................................................................51
SECTION 10.4. Reliance by Administrative Agent..........................................................52
SECTION 10.5. Notice of Collection Agent Termination Event or Termination Event
or Potential Termination Event........................................................... 52
SECTION 10.6. Non-Reliance on the Administrative Agent and Other Purchasers.............................53
SECTION 10.7. Indemnification...........................................................................53
SECTION 10.8. The Administrative Agent in Its Individual Capacity.......................................54
SECTION 10.9. Resignation of Administrative Agent; Successor Administrative Agent.......................54
ARTICLE 11 MISCELLANEOUS.........................................................................................55
SECTION 11.1. Ratification of Indenture.................................................................55
SECTION 11.2. Governing Law.............................................................................55
SECTION 11.3. Further Assurances........................................................................55
SECTION 11.4. Payments..................................................................................55
SECTION 11.5. Costs and Expenses........................................................................55
SECTION 11.6. No Waiver; Cumulative Remedies............................................................55
SECTION 11.7. Amendments................................................................................56
SECTION 11.8. Severability..............................................................................57
SECTION 11.9. Notices...................................................................................57
SECTION 11.10. Successors and Assigns...................................................................57
SECTION 11.11. Securities Laws..........................................................................59
SECTION 11.12. Adjustments; Set-off.....................................................................60
SECTION 11.13. Counterparts.............................................................................60
SECTION 11.14. No Bankruptcy Petition...................................................................60
SECTION 11.15. Termination of this Indenture Supplement.................................................61
SECTION 11.16. Limited Recourse.........................................................................61
SECTION 11.17. Waiver of Setoff.........................................................................62
SECTION 11.18. Conflict of Instructions.................................................................62
SECTION 11.19. Chase Conflict Waiver....................................................................62
SECTION 11.20. Submission to Jurisdiction; Waiver of Jury Trial.........................................62
-ii-
4
SCHEDULES
Schedule I: List of CP Conduit Purchasers
Schedule II: Litigation
EXHIBITS
Exhibit A Form of Series 2001-1 Variable Funding Investor Note
Exhibit B: Increase Notice
Exhibit C: Monthly Settlement Statement
Exhibit D: Weekly Report
Exhibit E: UCC Certificate
Exhibit F: Form of Transfer Supplement
Exhibit G: Form of Purchaser Supplement
-iii-
5
SERIES 2001-1 SUPPLEMENT, dated as of April 27, 2001 (as amended,
supplemented, restated or otherwise modified from time to time, this "INDENTURE
SUPPLEMENT") among WINGFOOT A/R LLC, a special purpose limited liability company
established under the laws of Delaware (the "ISSUER"), THE GOODYEAR TIRE &
RUBBER COMPANY, as collection agent (in such capacity, the "COLLECTION AGENT"),
the several commercial paper conduits listed on Schedule I and their respective
permitted successors and assigns (the "CP CONDUIT PURCHASERS"; each,
individually, a "CP CONDUIT PURCHASER"), the several banks set forth opposite
the name of each CP Conduit Purchaser on Schedule I and the other banks parties
hereto pursuant to SECTION 11.10(C) (each an "APA BANK" with respect to such CP
Conduit Purchaser), the agent bank set forth opposite the name of each CP
Conduit Purchaser on Schedule I and its permitted successor and assign (the
"FUNDING AGENT" with respect to such CP Conduit Purchaser), Chase, in its
capacity as administrative agent for the CP Conduit Purchasers, the APA Banks
and the Funding Agents (the "ADMINISTRATIVE AGENT"), and The Chase Manhattan
Bank, in its capacity as Indenture Trustee (together with its successors in
trust thereunder as provided in the Base Indenture referred to below, the
"INDENTURE TRUSTEE"), to the Base Indenture, dated as of April 27, 2001, between
the Issuer and the Indenture Trustee (as amended, modified, restated or
supplemented from time to time, exclusive of Indenture Supplements creating new
Series of Investor Notes, the "BASE INDENTURE").
PRELIMINARY STATEMENT
---------------------
WHEREAS, SECTIONS 2.2 and 12.1 of the Base Indenture provide,
among other things, that the Issuer and the Indenture Trustee may at any time
and from time to time enter into an Indenture Supplement to the Base Indenture
for the purpose of authorizing the issuance of one or more Series of Investor
Notes.
NOW, THEREFORE, the parties hereto agree as follows:
DESIGNATION
-----------
There is hereby created a Series of Investor Notes to be
issued pursuant to the Base Indenture and this Indenture Supplement and such
Series of Investor Notes shall be designated generally as Floating Rate Asset
Backed Variable Funding Investor Notes, Series 2001-1.
The proceeds from the sale of the Series 2001-1 Investor Notes
(as defined herein) and the proceeds from any Increase (as defined herein) shall
be deposited in the Series 2001-1 Collection Subaccount and shall be used by the
Issuer to purchase Receivables from the Seller pursuant to the Receivables
Purchase Agreement.
ARTICLE 1
DEFINITIONS
-----------
(a) All capitalized terms not otherwise defined herein are
defined in the Definitions List attached to the Base Indenture as SCHEDULE 1
thereto. All Article, Section or Subsection references herein shall refer to
Articles, Sections or Subsections of this Indenture
6
2
Supplement, except as otherwise provided herein. Unless otherwise stated herein,
as the context otherwise requires or if such term is otherwise defined in the
Base Indenture, each capitalized term used or defined herein shall relate only
to the Series 2001-1 Investor Notes and not to any other Series of Investor
Notes issued by the Issuer.
(b) The following words and phrases shall have the following
meanings with respect to the Series 2001-1 Investor Notes and the definitions of
such terms are applicable to the singular as well as the plural form of such
terms and to the masculine as well as the feminine and neuter genders of such
terms:
"ACCRUED EXPENSE AMOUNT" means, for each Business Day, the sum
of (i) the Daily Interest Amount for such Business Day, (ii) the Daily
Unused Fee Amount for such Business Day, (iii) the Daily Collection
Agent Fee Amount for such Business Day and (vi) all Article 7 Costs
which have accrued since the preceding Business Day.
"ACQUIRING APA BANK" is defined in SECTION 11.10(c).
"ACQUIRING PURCHASER" is defined in SECTION 11.10(e).
"ADDITIONAL CP CONDUIT PURCHASER" is defined in SECTION
2.6(e).
"ADDITIONAL FUNDING AGENT" is defined in SECTION 2.6(e).
"ADDITIONAL INTEREST" is defined in SECTION 5A.3(b).
"ADJUSTED LIBO RATE" means, with respect to each day during
each Eurodollar Period pertaining to a portion of the Purchaser
Invested Amount with respect to any Purchaser allocated to a Eurodollar
Tranche, an interest rate per annum (rounded upwards, if necessary, to
the nearest 1/16th of 1%) equal to the LIBO Rate for such Eurodollar
Period multiplied by the Statutory Reserve Rate.
"AFFECTED PARTY" means any CP Conduit Purchaser and any
Program Support Provider with respect to such CP Conduit Purchaser.
"AGGREGATE COMMITMENT AMOUNT" means, on any date of
determination, the sum of the Commitment Amounts with respect to the
APA Banks included in each Purchaser on such date.
"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 1.5%.
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 day of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"AMORTIZATION PERIOD" means the period commencing on the
Business Day following the earliest to occur of (i) the date on which
the Expiry Date with respect to each Purchaser shall have occurred,
(ii) the Optional Termination Date and (iii) the
7
3
Prepayment Date and ending on the date when the Series 2001-1 Invested
Amount shall have been reduced to zero and all accrued interest and
other amounts owing on the Series 2001-1 Investor Notes and to the
Administrative Agent, the CP Conduit Purchasers, the Funding Agents and
the APA Banks shall have been paid in full.
"APA BANK" is defined in the recitals hereto.
"APA BANK FUNDED AMOUNT" means, with respect to any Purchaser
for any day, the excess, if any, of the Purchaser Invested Amount with
respect to such Purchaser over the CP Conduit Funded Amount for such
day.
"APA BANK PERCENTAGE" means, with respect to any APA Bank, the
percentage set forth opposite the name of such APA Bank on Schedule I.
"APPLICABLE MARGIN" means on any date of determination, (i)
with respect to the Floating Tranche, (x) 0% per annum prior to the
deemed or declared occurrence of a Termination Event or the occurrence
and continuance of a Potential Termination Event and (y) 2% per annum
after the deemed or declared occurrence of a Termination Event or after
the occurrence and during the continuance of a Potential Termination
Event and (ii) with respect to any Eurodollar Tranche, (x) the sum of
0.125% per annum plus the Applicable Used Fee on such date of
determination prior to the deemed or declared occurrence of a
Termination Event or the occurrence and continuance of a Potential
Termination Event and (y) 4.00% per annum after the deemed or declared
occurrence of a Termination Event or after the occurrence and during
the continuance of a Potential Termination Event.
"APPLICABLE USED FEE" means on any date of determination, (a)
during any period when the unsecured long-term debt of Goodyear is
rated at least A by S&P and at least A2 by Moody's, 0.250% per annum;
(b) during any period when the unsecured long-term debt of Goodyear
does not satisfy the ratings required by clause (a) hereof and it is
rated at least BBB+ by S&P and at least Baa1 by Moody's, 0.325%; (c)
during any period when the unsecured long-term debt of Goodyear does
not satisfy the ratings required by clause (a) or (b) hereof and it is
rated at least BBB- by S&P and at least Baa3 by Moody's, 0.400%; (d)
during any period when the unsecured long-term debt of Goodyear does
not satisfy the ratings required by clause (a), (b) or (c) hereof and
it is rated at least BB by S&P and at least Ba2 by Moody's; 0.500% and
(e) during any period when the unsecured long-term debt of Goodyear
does not satisfy the ratings required by clause (a), (b), (c) or (d),
4.00%; PROVIDED, HOWEVER, that on any date of determination after the
deemed or declared occurrence of a Termination Event or after the
occurrence and during the continuance of a Potential Termination Event,
the Applicable Used Fee shall be 4.00%.
"ARTICLE 7 COSTS" means any amounts due pursuant to Article 7.
"ASSET PURCHASE AGREEMENT" means, with respect to any CP
Conduit Purchaser, the asset purchase agreement, liquidity agreement or
other agreement among such CP Conduit Purchaser, the Funding Agent with
respect to such CP Conduit Purchaser and the
8
4
APA Banks with respect to such CP Conduit Purchaser, as amended,
modified or supplemented from time to time.
"AVAILABLE APA BANK FUNDING AMOUNT" means, with respect to any
Purchaser for any Business Day, the sum of (i) the portion of such
Purchaser's Commitment Percentage of the Series 2001-1 Initial Invested
Amount not to be funded by such Purchaser by issuing Commercial Paper
if such Business Day is the Series 2001-1 Initial Funding Date, (ii)
the portion of the APA Bank Funded Amount with respect to such
Purchaser not allocated to a Eurodollar Tranche on such Business Day,
(iii) the portion of the APA Bank Funded Amount with respect to such
Purchaser allocated to any Eurodollar Tranche the Eurodollar Period in
respect of which expires on such Business Day and (iv) the portion of
such Purchaser's Purchaser Increase Amount for such Business Day not to
be funded by such Purchaser by issuing Commercial Paper.
"AVAILABLE CP FUNDING AMOUNT" means, with respect to any
Purchaser for any Business Day, the sum of (i) the portion of such
Purchaser's Commitment Percentage of the Series 2001-1 Initial Invested
Amount to be funded by such Purchaser by issuing Commercial Paper if
such Business Day is the Series 2001-1 Initial Funding Date, (ii) the
portion of the CP Conduit Funded Amount with respect to such Purchaser
allocated to any CP Tranche, the CP Rate Period in respect of which
expires on such Business Day and (iii) the portion of such Purchaser's
Purchaser Increase Amount for such Business Day to be funded by such
Purchaser by issuing Commercial Paper.
"BOARD" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"CARRYING COST RESERVE" means, on any date of determination
during a Reporting Period, the percentage equivalent of a fraction, the
numerator of which is equal to the product of (i) two times DSO as of
the last day of the Settlement Period immediately preceding the first
day of such Reporting Period and (ii) the Alternate Base Rate in effect
as of such date plus 2% and the denominator of which is 365.
"CHANGE IN LAW" means (a) any law, rule or regulation or any
change therein or in the interpretation or application thereof (whether
or not having the force of law), in each case, adopted, issued or
occurring after the Series 2001-1 Closing Date or (b) any request,
guideline or directive (whether or not having the force of law) from
any government or political subdivision or agency, authority, bureau,
central bank, commission, department or instrumentality thereof, or any
court, tribunal, grand jury or arbitrator, in each case, whether
foreign or domestic (each an "OFFICIAL BODY") charged with the
administration, interpretation or application thereof, or the
compliance with any request or directive of any Official Body (whether
or not having the force of law) made, issued or occurring after the
Series 2001-1 Closing Date.
"COLLECTION AGENT" is defined in the recitals hereto.
"COLLECTION AGENT FEE RESERVE" means , on any date of
determination during a Reporting Period, the percentage equivalent of a
fraction, the numerator of which is equal
9
5
to the product of (i) two times DSO as of the last day of the
Settlement Period immediately preceding the first day of such Reporting
Period and (ii) the Collection Agent Fee Rate and the denominator of
which is 360.
"COMMERCIAL PAPER" means, with respect to any CP Conduit
Purchaser, the promissory notes issued by, or for the benefit of, such
CP Conduit Purchaser in the commercial paper market.
"COMMITMENT" means, with respect to the APA Banks included in
a Purchaser, the obligation of such APA Banks to purchase a Series
2001-1 Investor Note on the Series 2001-1 Initial Funding Date and,
thereafter, to maintain and, subject to certain conditions, increase
the Purchaser Invested Amount with respect to such Purchaser, in each
case, in an amount up to the Maximum Purchaser Invested Amount with
respect to such Purchaser.
"COMMITMENT AMOUNt" means, with respect to the APA Banks
included in a Purchaser, an amount equal to 102% of the Maximum
Purchaser Invested Amount with respect to such Purchaser.
"COMMITMENT PERCENTAGE" means, on any date of determination,
with respect to any Purchaser, the ratio, expressed as a percentage,
which such Purchaser's Maximum Purchaser Invested Amount bears to the
Series 2001-1 Maximum Invested Amount on such date.
"CONDUIT ASSIGNEE" means, with respect to any CP Conduit
Purchaser, any commercial paper conduit administered by the Funding
Agent with respect to such CP Conduit Purchaser and designated by such
Funding Agent to accept an assignment from such CP Conduit Purchaser of
the Purchaser Invested Amount with respect to such CP Conduit Purchaser
pursuant to SECTION 11.10(b).
"CP CONDUIT FUNDED AMOUNT" means, with respect to any
Purchaser for any day, the portion of the Purchaser Invested Amount
with respect to such Purchaser funded by such Purchaser through the
issuance of Commercial Paper outstanding on such day.
"CP CONDUIT PURCHASER" is defined in the recitals hereto.
"CP RATE PERIOD" means, with respect to any CP Tranche, a
period of days not to exceed 270 days commencing on a Business Day
selected in accordance with SECTION 2.7(b); provided that (x) if a CP
Rate Period would end on a day that is not a Business Day, such CP Rate
Period shall end on the next succeeding Business Day and (y) during the
Amortization Period, each CP Rate Period shall end on or prior to the
next succeeding Payment Date.
"CP TRANCHE" means, with respect to a Match Funding CP Conduit
Purchaser, a portion of the CP Conduit Funded Amount with respect to
such Match Funding CP Conduit Purchaser for which the Monthly Funding
Costs with respect to such Match Funding CP Conduit Purchaser is
calculated by reference to a particular Discount and a particular CP
Rate Period.
10
6
"DAILY COLLECTION AGENT FEE AMOUNT" means, for any Business
Day during a Settlement Period, an amount equal to (i) the amount of
Daily Collection Agent Fee Expense for each day during such Settlement
Period since the preceding Business Day plus (ii) for each Business Day
after the occurrence and during the continuance of a Downgrade Event if
Goodyear is not the Collection Agent, the aggregate amount of all
previously accrued Daily Collection Agent Fee Expense for such
Settlement Period that has not yet been deposited in the Collection
Account for allocation to the Series 2001-1 Expense Subaccount pursuant
to SECTION 5A.2(b) or, if Goodyear is the Collection Agent, not yet
paid to the Collection Agent pursuant to SECTION 5A.2(b)(i).
"DAILY COLLECTION AGENT FEE EXPENSE" means, for any day, the
Series 2001-1 Invested Percentage of the Collection Agent Fee accruing
for such day.
"DAILY INTEREST AMOUNT" means, for any Business Day during a
Settlement Period, an amount equal to (i) the amount of Daily Interest
Expense for each day during such Settlement Period since the preceding
Business Day plus (ii) for each Business Day after the occurrence and
during the continuance of a Downgrade Event, the aggregate amount of
all previously accrued Daily Interest Expense for such Settlement
Period that has not yet been deposited in the Collection Account for
allocation to the Series 2001-1 Expense Subaccount pursuant to SECTION
5A.2(b).
"DAILY INTEREST EXPENSE" means, for each day during a
Settlement Period, the sum of (i) the product of (A) the Series 2001-1
Invested Amount on such day divided by 360 and (B) the sum of the
Applicable Used Fee and the rate appearing on Page 3750 of the Dow
▇▇▇▇▇ market screen (or on any successor or substitute page of 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 in accordance with its customary
practices 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) on the second Business Day prior
to the commencement of such Settlement Period, as the rate for dollar
deposits with a thirty-day maturity and (ii) plus the amount of
Additional Interest for such day.
"DAILY UNUSED FEE EXPENSE" means, (i) for each day during the
Revolving Period, the product of (A) the excess of the Aggregate
Commitment Amount over the Series 2001-1 Invested Amount on such day
multiplied by (B) the Unused Fee Rate divided by 360 and (ii) for each
day during the Amortization Period, zero.
"DAILY UNUSED FEE AMOUNT" means for any Business Day during a
Settlement Period, an amount equal to (i) the amount of Daily Unused
Fee Expense for each day during such Settlement Period since the
preceding Business Day plus (ii) for each Business Day after the
occurrence and during the continuance of a Downgrade Event, the
aggregate amount of all previously accrued Daily Unused Fee Expense for
such Settlement Period that has not yet been deposited in the
Collection Account for allocation to the Series 2001-1 Expense
Subaccount pursuant to SECTION 5A.2(b).
"DECREASE" is defined in SECTION 2.5(a).
11
7
"DEFAULT RATIO" means for any Settlement Period, the
percentage equivalent of a fraction, the numerator of which is the sum
of (a) the aggregate principal amount of all Receivables which were
91-120 days past their original due date as of the last day of such
Settlement Period plus (b) the aggregate principal amount of all
Receivables which were written off as uncollectible by the Collection
Agent in accordance with the Credit and Collection Policy during such
Settlement Period prior to 91 days after their original due dates, and
the denominator of which is the aggregate principal amount of all
Receivables originated by the Seller and Dunlop during the Settlement
Period four Settlement Periods prior to such Settlement Period.
"DELINQUENCY RATIO" means for any Settlement Period, the
percentage equivalent of a fraction, the numerator of which is the
outstanding principal amount of all Receivables which were Delinquent
Receivables as of the last day of such Settlement Period and the
denominator of which is the sum of (i) the Aggregate Outstanding
Balance and (ii) the outstanding principal amount of all Delinquent
Receivables.
"DILUTION PERIOD" means, on any date of determination during a
Reporting Period, an amount equal to the quotient of
(i) the quotient of (A) the product of (1) the aggregate
principal amount of all Receivables originated by the Seller and Dunlop
during the Settlement Period immediately preceding the first day of
such Reporting Period and (2) DSO as of the last day of such Settlement
Period divided by (B) 30
divided by
(ii) the Net Receivables Balance as of the last day of such
Settlement Period.
"DILUTION RATIO" means, for any Settlement Period, the
percentage equivalent of a fraction, the numerator of which is the
aggregate amount of Dilution Adjustments made during such Settlement
Period, and the denominator of which is the aggregate principal amount
of all Receivables originated by the Seller and Dunlop during the
immediately preceding Settlement Period.
"DILUTION RESERVE" means, on any date of determination during
a Reporting Period, an amount (expressed as a percentage) that is
calculated as follows:
DR = [(C*D)+[(E-D)*(E/D)]]*F
Where:
DR = Dilution Reserve;
C = 2.0;
D = the rolling average of the Dilution Ratios for the twelve
consecutive Settlement Periods ending immediately prior to the first
day of such Reporting Period;
12
8
E = the highest Dilution Ratio for any Settlement Period
during the period of twelve consecutive Settlement Periods ending
immediately prior to the first day of such Reporting Period; and
F = the Dilution Period on such date.
"DISCOUNT" means, (a) with respect to any Match Funding CP
Conduit Purchaser, the interest or discount component of the Commercial
Paper issued by such Match Funding CP Conduit Purchaser, including the
portion thereof constituting dealer or placement agent commissions, to
fund the CP Conduit Funded Amount with respect to such Match Funding CP
Conduit Purchaser and (b) with respect to any Pooled Funding CP Conduit
Purchaser, the amount of interest or discount to accrue on or in
respect of the Commercial Paper issued by such Pooled Funding CP
Conduit Purchaser allocated, in whole or in part, by the Funding Agent
with respect to such Pooled Funding CP Conduit Purchaser, to fund the
purchase or maintenance of the CP Conduit Funded Amount with respect to
such Pooled Funding CP Conduit Purchaser (including, without
limitation, any interest attributable to the commissions of placement
agents and dealers in respect of such Commercial Paper and any costs
associated with funding small or odd-lot amounts, to the extent that
such commissions or costs are allocated, in whole or in part, to such
Commercial Paper by such Funding Agent).
"DSO" means, as of the last day of any Settlement Period, the
number of calendar days equal to the product of (a) 91 and (b) the
amount obtained by dividing (i) the Net Receivables Balance as of such
date by (ii) the aggregate Outstanding Balance of all Receivables
originated by the Seller and Dunlop during that Settlement Period and
the two Settlement Periods preceding such Settlement Period.
"EFFECTIVE DATE" is defined in SECTION 9.1.
"ELIGIBLE ASSIGNEE" means a financial institution having
short-term debt ratings of at least A-1 from S&P and P-1 from Moody's.
"EURODOLLAR PERIOD" means, with respect to any Eurodollar
Tranche and any Purchaser:
(i) initially, the period commencing on the Series
2001-1 Initial Funding Date, the Increase Date or a conversion
date, as the case may be, with respect to such Eurodollar
Tranche and ending one month thereafter (or such other period
which is acceptable to the Funding Agent with respect to such
Purchaser and which in no event will be less than 7 days); and
(ii) thereafter, each period commencing on the last
day of the immediately preceding Eurodollar Period applicable
to such Eurodollar Tranche and ending one month thereafter (or
such other period which is acceptable to the Funding Agent
with respect to such Purchaser and which in no event will be
less than 7 days);
13
9
provided that each Eurodollar Period must end on the next succeeding
Payment Date and all of the foregoing provisions relating to Eurodollar
Periods are subject to the following:
(i) if any Eurodollar Period would otherwise end on a
day that is not a Business Day, such Eurodollar Period shall
be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Eurodollar
Period into another calendar month, in which event such
Eurodollar Period shall end on the immediately preceding
Business Day; and
(ii) any Eurodollar Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Eurodollar Period) shall end on the last
Business Day of the calendar month at the end of such
Eurodollar Period.
"EURODOLLAR TRANCHE" means, with respect to any Purchaser, a
portion of the APA Bank Funded Amount with respect to such Purchaser
allocated to a particular Eurodollar Period and an Adjusted LIBO Rate
determined by reference thereto.
"EXPIRY DATE" means, with respect to any Purchaser, the
earlier of (a) the Scheduled Expiry Date with respect to such Purchaser
and (b) the date on which a Termination Event shall have been deemed to
have occurred or shall have been declared to have occurred.
"EXTENDING PURCHASER" shall mean a Purchaser other than a
Non-Extending Purchaser.
"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 of such transactions
received by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it.
"FINAL MATURITY DATE" means the Payment Date that occurs in
the 12th month after the month in which the Amortization Period shall
have commenced.
"FLOATING TRANCHE" means, with respect to any Purchaser, the
portion of the APA Bank Funded Amount with respect to such Purchaser
not allocated to a Eurodollar Tranche.
"FUNDING AGENT" is defined in the recitals hereto.
"INCREASE AMOUNT" means, with respect to any Increase Date,
the amount set forth in the Increase Notice with respect to such
Increase Date
14
10
"INCREASE DATE" is defined in SECTION 2.3(a).
"INCREASE NOTICE" is defined in SECTION 2.3(a).
"INCREASED COSTS" means, for each Payment Date, the sum of (1)
any Article 7 Costs due and payable on such Payment Date and (2) any
amounts due and payable pursuant to SECTIONS 2.8 or 11.5 on such
Payment Date.
"INCREASES" is defined in SECTION 2.3(a).
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDENTURE SUPPLEMENT" has the meaning set forth in the
preamble.
"INTEREST SHORTFALL" is defined in SECTION 5A.3(b).
"LIBO RATE" means, with respect to each day during each
Eurodollar Period pertaining to a Eurodollar Tranche, the rate
appearing on Page 3750 of the Dow ▇▇▇▇▇ market screen (or on any
successor or substitute page of 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 in accordance
with its customary practices 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) on the second
Business Day prior to the commencement of such Eurodollar Period, as
the rate for dollar deposits with a maturity comparable to the
Eurodollar Period applicable to such Eurodollar Tranche.
"LOSS AND DILUTION RESERVE" means, on any date of
determination during a Reporting Period, the greater of (a) the sum of
(i) 12% plus (ii) 2% for each Special Obligor for such Reporting Period
plus (iii) the product of (A) the rolling average of the Dilution
Ratios for the twelve consecutive Settlement Periods ending immediately
prior to the first day of such Reporting Period and (B) the Dilution
Period on such date and (b) the sum of the Loss Reserve plus the
Dilution Reserve on such date.
"LOSS RESERVE" means, on any date of determination during a
Reporting Period, an amount (expressed as a percentage) that is
calculated as follows:
LR = (A*B)/C * D * E
Where:
LR = Loss Reserve;
A = the aggregate principal amount of all Receivables
generated by the Seller and Dunlop during the three Settlement Periods
ending immediately prior to the first day of such Reporting Period;
15
11
B = the highest three month rolling average of the Default
Ratios during the period of the twelve consecutive Settlement Periods
ending immediately prior to the first day of such Reporting Period;
C = the Net Receivables Balance as of the last day of the
Settlement Period ending immediately prior to the first day of such
Reporting Period;
D = 2.00; and
E = Payment Terms Factor on such date.
"MATCH FUNDING CP CONDUIT PURCHASER" means each CP Conduit
Purchaser that is identified on Schedule I as a Match Funding CP
Conduit Purchaser and each CP Conduit Purchaser that, after the Series
2001-1 Closing Date, notifies the Issuer and the Administrative Agent
in accordance with SECTION 2.7(d) in writing that it is funding its CP
Conduit Funded Amount with Commercial Paper issued by it, or for its
benefit, in specified CP Tranches selected in accordance with Sections
2.7(b) and (c) and that, in each case, has not subsequently notified
the Issuer and the Administrative Agent in writing that the Issuer will
no longer be permitted to select CP Tranches in accordance with
SECTIONS 2.7(b) and (c) in respect of the CP Conduit Funded Amount with
respect to such CP Conduit Purchaser.
"MAXIMUM PURCHASER INVESTED AMOUNT" means, with respect to any
Purchaser, the amount set forth opposite the name of the CP Conduit
Purchaser included in such Purchaser on Schedule I, as such amount may
be increased or reduced from time to time as provided in SECTION 2.6.
The Maximum Purchaser Invested Amount with respect to each
Non-Extending Purchaser shall be reduced to zero on the Scheduled
Expiry Date with respect to such Purchaser.
"MONTHLY FUNDING COSTS" means, with respect to each Settlement
Period and any Purchaser, the sum of:
(i) for each day during such Settlement Period, (A)
with respect to a Match Funding CP Conduit Purchaser, the
aggregate amount of Discount accruing on all outstanding
Commercial Paper issued by, or for the benefit of, such Match
Funding CP Conduit Purchaser to fund the CP Conduit Funded
Amount with respect to such Match Funding CP Conduit Purchaser
on such day or (B) with respect to a Pooled Funding CP Conduit
Purchaser, the aggregate amount of Discount accruing on or
otherwise in respect of the Commercial Paper issued by, or for
the benefit of, such Pooled Funding CP Conduit Purchaser
allocated, in whole or in part, by the Funding Agent with
respect to such Pooled Funding CP Conduit Purchaser, to fund
the purchase or maintenance of the CP Conduit Funded Amount
with respect to such Pooled Funding CP Conduit Purchaser on
such day; plus
(ii) for each day during such Settlement Period, the
sum of:
16
12
(A) the product of (x) the portion of the APA
Bank Funded Amount with respect to such
Purchaser allocated to the Floating Tranche
with respect to such Purchaser on such day
times (y) the Alternate Base Rate plus the
Applicable Margin on such day in effect with
respect thereto, divided by (z) 365 (or 366,
as the case may be) plus
(B) the product of (x) the portion of the APA
Bank Funded Amount with respect to such
Purchaser allocated to Eurodollar Tranches
with respect to such Purchaser on such day
times (y) the weighted average Adjusted LIBO
Rate with respect to such Eurodollar
Tranches plus the Applicable Margin on such
day in effect with respect thereto divided
by (z) 360; plus
(iii) for each day during such Settlement Period, the
product of (A) the CP Conduit Funded Amount with respect to
such Purchaser on such day times (B) the Applicable Used Fee,
divided by (C) 360.
"MONTHLY INTEREST PAYMENT" is defined in SECTION 5A.4(a).
"MONTHLY PRINCIPAL PAYMENT" is defined in SECTION 5A.6.
"NON-EXTENDING PURCHASER" means any Purchaser who shall not
have agreed to an extension of its Scheduled Expiry Date pursuant to
SECTION 2.6(b) on such Scheduled Expiry Date and thereafter until the
Purchaser Invested Amount with respect to such Purchaser shall have
been reduced to zero.
"OPTIONAL TERMINATION DATE" is defined in SECTION 2.5(b).
"OPTIONAL TERMINATION NOTICE" is defined in SECTION 2.5(b).
"OTHER TAXES" means any and all current or future stamp or
documentary taxes or other excise or property taxes, charges or similar
levies arising from any payment made under the Transaction Documents or
from the execution, delivery or enforcement of, or otherwise with
respect to, any Transaction Document.
"OUTSTANDING" means, with respect to the Series 2001-1
Investor Notes, the Series 2001-1 Invested Amount shall not have been
reduced to zero and all accrued interest and other amounts owing on the
Series 2001-1 Investor Notes and to the Administrative Agent, the
Funding Agents, the CP Conduit Purchasers and the APA Banks hereunder
shall not have been paid in full.
"PARTICIPANTS" is defined in SECTION 11.10(d).
"PAYDOWN PERIOD" means any period from but excluding the
Scheduled Expiry Date with respect to any Non-Extending Purchaser to
but excluding the earlier of (a) the date on which the Purchaser
Invested Amounts with respect to all Non-Extending
17
13
Purchasers shall have been reduced to zero and (b) the commencement of
the Amortization Period.
"PAYDOWN PERCENTAGE" means, with respect to any Paydown
Period, the percentage equivalent of a fraction, the numerator of which
is the aggregate Purchaser Invested Amounts with respect to all
Non-Extending Purchasers and the denominator of which is the Series
2001-1 Invested Amount, in each case, as of the first day of such
Paydown Period; provided, however that if a Purchaser becomes a
Non-Extending Purchaser after the first day of a Paydown Period, the
Paydown Percentage shall be recalculated to equal the percentage
equivalent of a fraction, the numerator of which is the aggregate
Purchaser Invested Amounts with respect to all Non-Extending Purchasers
and the denominator of which is the Series 2001-1 Invested Amount, in
each case, as of the date such Purchaser becomes a Non-Extending
Purchaser.
"PAYMENT DATE" means the 17th day of each month, or if such
date is not a Business Day, the next succeeding Business Day,
commencing May 17, 2001.
"PAYMENT TERMS FACTOR" means (i) during the period from the
Series 2001-1 Closing Date until the third Settlement Date thereafter,
1.365 and (ii) during each three Reporting Periods to occur thereafter,
the percentage equivalent of a fraction, the numerator of which is the
sum of (A) the weighted average payment terms (weighted on the basis of
the Outstanding Balances of the Receivables originated during such
period and expressed as a number of days) for the Receivables generated
by the Seller and Dunlop during such period plus (B) 60, and the
denominator of which is 90; provided, however, that if the Payment
Terms Factor for any period is less than the Payment Terms Factor for
the immediately preceding period, then the actual Payment Terms Factor
for such current period shall be recalculated to equal the percentage
equivalent of a fraction, the numerator of which is equal to the
average of the numerators used to calculate the Payment Terms Factor
for such current period and the three immediately preceding periods
(without giving effect to this proviso) and the denominator of which is
90.
"POOLED FUNDING CP CONDUIT PURCHASER" means each CP Conduit
Purchaser that is not a Match Funding CP Conduit Purchaser.
"PREPAYMENT DATE" is defined in ARTICLE 5.
"PRIME RATE" means the rate of interest per annum publicly
announced from time to time by Chase 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.
"PROGRAM SUPPORT PROVIDER" means, with respect to any CP
Conduit Purchaser, the APA Banks with respect to such CP Conduit
Purchaser and any other or additional Person now or hereafter extending
credit, or having a commitment to extend credit to or for the account
of, or to make purchases from, such CP Conduit Purchaser or issuing a
letter of credit, surety bond or other instrument to support any
obligations arising under or in connection with such CP Conduit
Purchaser's securitization program.
18
14
"PRO RATA SHARE" means, with respect to any Purchaser, on any
date, the ratio, expressed as a percentage, which the Purchaser
Invested Amount with respect to such Purchaser bears to the Series
2001-1 Invested Amount on such date.
"PURCHASER" means a CP Conduit Purchaser and the APA Banks
with respect to such CP Conduit Purchaser.
"PURCHASER ADDITION DATE" is defined in SECTION 2.6(e).
"PURCHASER INCREASE AMOUNT" means, with respect to any
Purchaser, for any Business Day, such Purchaser's Commitment Percentage
of the Increase Amount, if any, on such Business Day.
"PURCHASER INVESTED AMOUNT" means, with respect to any
Purchaser, (a) when used with respect to the Series 2001-1 Initial
Funding Date, such Purchaser's Commitment Percentage of the Series
2001-1 Initial Invested Amount and (b) when used with respect to any
other date, an amount equal to (i) the Purchaser Invested Amount with
respect to such Purchaser on the immediately preceding Business Day
plus (ii) the Purchaser Increase Amount with respect to such Purchaser
on such Business Day minus (iii) the amount of principal payments made
to such Purchaser pursuant to SECTION 5A.6 on such date.
"PURCHASER SUPPLEMENT" is defined in SECTION 11.10(e).
"RATING AGENCIES" means, with respect to the Series 2001-1
Investor Notes, S&P and ▇▇▇▇▇'▇.
"RATING AGENCY CONDITION" means, with respect to any action
specified herein or in the Base Indenture as requiring satisfaction of
the Rating Agency Condition with respect to the Series 2001-1 Investor
Notes, the Administrative Agent shall have received written
confirmation, to the extent required, from the Rating Agencies that
such action will not result in a reduction or withdrawal of the then
current rating of the Commercial Paper issued by each of the CP Conduit
Purchasers.
"RECORD DATE" means, with respect to each Payment Date, the
immediately preceding Business Day.
"RELATED ADDITIONAL APA BANKS" is defined in SECTION 2.6(e).
"REVOLVING PERIOD" means the period from and including the
Effective Date to but excluding the commencement of the Amortization
Period.
"SCHEDULED EXPIRY DATE" shall mean, with respect to any
Purchaser, the later of (a) April 26, 2002 and (b) the last day of any
extension of such Purchaser's Commitment made in accordance with
SECTION 2.6(b).
"SERIES 2001-1" means Series 2001-1 of Investor Notes, the
Principal Terms of which are set forth in this Indenture Supplement.
19
15
"SERIES 2001-1 ADJUSTED INVESTED AMOUNT" means, on any date of
determination, the excess of the Series 2001-1 Invested Amount over the
aggregate amount on deposit in the Collection Account and allocated to
the Series 2001-1 Principal Collection Subaccount on such date.
"SERIES 2001-1 ALLOCATED NET RECEIVABLES BALANCE" means, as of
any date of determination, the lesser of (a) the Series 2001-1 Required
Net Receivables Balance as of such date and (b) the product of (i) the
Net Receivables Balance and (ii) the percentage equivalent of a
fraction the numerator of which is the Series 2001-1 Required Net
Receivables Balance as of such date and the denominator of which is the
sum of (x) the Series 2001-1 Required Net Receivables Balance and (y)
the aggregate Required Net Receivables Balances with respect to each
other Series of Outstanding Investor Notes as of such date.
"SERIES 2001-1 ALLOCATED RECEIVABLES DEFICIENCY" means, as of
any date of determination, the amount, if any, by which the Series
2001-1 Allocated Net Receivables Balance is less than the Series 2001-1
Required Net Receivables Balance as of such date.
"SERIES 2001-1 COLLECTION AGENT FEE" is defined in SECTION
6.1.
"SERIES 2001-1 CLOSING DATE" means May 1, 2001.
"SERIES 2001-1 COLLECTION SUBACCOUNT" is defined in SECTION
5A.1(a).
"SERIES 2001-1 DEPOSIT DATE" is defined in SECTION 5A.2(a).
"SERIES 2001-1 EXPENSE SUBACCOUNT" is defined in SECTION
5A.1(a).
"SERIES 2001-1 INITIAL FUNDING DATE" is defined in SECTION
2.1(a).
"SERIES 2001-1 INITIAL INVESTED AMOUNT" is defined in SECTION
2.3(a).
"SERIES 2001-1 INVESTED AMOUNT" means, on any date of
determination, the sum of the Purchaser Invested Amounts with respect
to each of the Purchasers on such date.
"SERIES 2001-1 INVESTED PERCENTAGE" means, with respect to any
Business Day (i) during the Revolving Period, the percentage equivalent
(which percentage shall never exceed 100%) of a fraction the numerator
of which shall be equal to the Series 2001-1 Allocated Net Receivables
Balance as of the end of the immediately preceding Business Day and the
denominator of which is the Net Receivables Balance as of the end of
such immediately preceding Business Day or (ii) during the Amortization
Period prior to the deemed or declared occurrence of a Termination
Event, the percentage equivalent (which percentage shall never exceed
100%) of a fraction the numerator of which shall be equal to the Series
2001-1 Allocated Net Receivables Balance as of the end of the Revolving
Period, and the denominator of which is the lesser of (A) the Net
Receivables Balance as of the end of the immediately preceding Business
Day or (B) the sum of the numerators used to determine invested
percentages for allocations for all Series of Investor Notes (and all
classes of such Series of Investor Notes) as of the end of the
immediately
20
16
preceding Business Day or (iii) during the Amortization Period after
the deemed or declared occurrence of a Termination Event, the
percentage equivalent (which percentage shall never exceed 100%) of a
fraction the numerator of which shall be equal to the Series 2001-1
Allocated Net Receivables Balance as of the end of the Revolving
Period, and the denominator of which is the sum of the numerators used
to determine invested percentages for allocations for all Series of
Investor Notes (and all classes of such Series of Investor Notes) as
of the end of the immediately preceding Business Day.
"SERIES 2001-1 INVESTOR NOTEHOLDER" means the Person in whose
name a Series 2001-1 Investor Note is registered in the Note Register.
"SERIES 2001-1 INVESTOR NOTE" means any one of the Series
2001-1 Floating Rate Asset Backed Variable Funding Investor Notes,
executed by the Issuer and authenticated and delivered by the Indenture
Trustee, substantially in the form of EXHIBIT A.
"SERIES 2001-1 MAXIMUM INVESTED AMOUNT" means, on any date of
determination, the sum of the Maximum Purchaser Invested Amounts with
respect to each of the Purchasers on such date. The Series 2001-1
Maximum Invested Amount shall be reduced by the Maximum Purchaser
Invested Amount of each Non-Extending Purchaser on the Scheduled Expiry
Date with respect to such Purchaser.
"SERIES 2001-1 MONTHLY INTEREST" is defined in SECTION
5A.3(a).
"SERIES 2001-1 NOTE RATE" means for any Settlement Period, the
interest rate equal to the product of (a) the percentage equivalent of
a fraction, the numerator of which is equal to the sum of the Monthly
Funding Costs with respect to each Purchaser for such Settlement Period
and the denominator of which is equal to the average daily Series
2001-1 Invested Amount during such Settlement Period and (b) a
fraction, the numerator of which is 360 and the denominator of which is
the number of days in such Settlement Period; provided, however, that
the Series 2001-1 Note Rate will in no event be higher than the maximum
rate permitted by applicable law.
"SERIES 2001-1 NOTE TERMINATION DATE" means the date on which
the Series 2001-1 Invested Amount shall have been reduced to zero and
all accrued and unpaid interest on the Series 2001-1 Notes shall have
been paid in full.
"SERIES 2001-1 PREPAYMENT AMOUNT" means, the sum of the
following amounts with respect to each Purchaser:
(i) the Purchaser Invested Amount with respect to such
Purchaser, plus
(ii) (A) if such Purchaser is a Match Funding CP Conduit
Purchaser, the sum of (x) all accrued and unpaid Discount on all
outstanding Commercial Paper issued by, or for the benefit of, such
Match Funding CP Conduit Purchaser to fund the CP Funded Amount with
respect to such Match Funding CP Conduit Purchaser from the issuance
date(s) thereof to but excluding the Prepayment Date and (y) the
aggregate Discount to accrue on all outstanding Commercial Paper issued
by, or for the benefit of, such Match Funding CP Conduit Purchaser to
fund the CP Funded Amount with respect to such
21
17
Match Funding CP Conduit Purchaser from and including the Prepayment
Date to and excluding the maturity date of each CP Tranche with respect
to such Match Funding CP Conduit Purchaser or (B) if such Purchaser is
a Pooled Funding CP Conduit Purchaser, the sum of (x) the aggregate
amount of Discount on or in respect of the Commercial Paper issued by,
or for the benefit of, such Pooled Funding CP Conduit Purchaser
allocated, in whole or in part, by the Funding Agent with respect to
such Pooled Funding CP Conduit Purchaser, to fund the purchase or
maintenance of the CP Funded Amount with respect to such Pooled Funding
CP Conduit Purchaser as of the Prepayment Date and (y) the aggregate
amount of Discount to accrue on or in respect of the Commercial Paper
issued by, or for the benefit of, such Pooled Funding CP Conduit
Purchaser allocated, in whole or in part, by the Funding Agent with
respect to such Pooled Funding CP Conduit Purchaser, to fund the
purchase or maintenance of the CP Funded Amount with respect to such
Pooled Funding CP Conduit Purchaser from and including the Prepayment
Date to and excluding the maturity dates of such Commercial Paper; plus
(iii) all accrued and unpaid interest on the APA Bank Funded
Amount with respect to such Purchaser, calculated at the Alternate Base
Rate or the applicable Adjusted LIBO Rate plus the Applicable Margin as
of the Prepayment Date, plus
(iv) the sum of (A) for each day from but excluding the last
day of the Settlement Period immediately preceding the Prepayment Date,
the product of (x) the CP Funded Amount with respect to such Purchaser
on such day times (y) the Applicable Used Fee divided by (z) 360 plus
(B) if the Prepayment Date is on or before the Settlement Date for such
immediately preceding Settlement Period, for each day during such
Settlement Period, the product of (x) the CP Funded Amount with respect
to such Purchaser on such day times (y) the Applicable Used Fee divided
by (z) 360; plus
(v) the sum of (A) for each day from but excluding the last
day of the Settlement Period immediately preceding the Prepayment Date,
the product of (x) the excess, if any, of the Commitment Amount with
respect to such Purchaser over the Purchaser Invested Amount with
respect to such Purchaser on such day times (y) the Unused Fee Rate
divided by (z) 360 plus (B) if the Prepayment Date is on or before the
Settlement Date for such immediately preceding Settlement Period, the
Unused Fee payable to such Purchaser for such Settlement Period
pursuant to Section 2.7(e);
(vi) all Article 7 Costs then due and payable to such
Purchaser, plus
(vii) without duplication, any other amounts then due and
payable to such Purchaser pursuant to SECTION 2.8 and 11.5.
"SERIES 2001-1 PRINCIPAL COLLECTION SUBACCOUNT" is defined in
SECTION 5A.1(a).
"SERIES 2001-1 REQUIRED NET RECEIVABLES BALANCE" means, as of
any date of determination, the sum of (i) the Series 2001-1 Adjusted
Invested Amount and (ii) the Series 2001-1 Required Reserves as of such
date.
"SERIES 2001-1 REQUIRED RESERVES" means, on any date of
determination, an amount equal to the sum of:
22
18
(i) an amount equal to the product of (A) the Series
2001-1 Adjusted Invested Amount on such date and (B) the
percentage equivalent of a fraction, the numerator of which is
the Loss and Dilution Reserve on such date and the denominator
of which is one minus the Loss and Dilution Reserve on such
date;
(ii) an amount equal to the product of (A) the Series
2001-1 Invested Amount on such date and (B) the percentage
equivalent of a fraction, the numerator of which is the
Carrying Cost Reserve on such date and the denominator of
which is one minus the Loss and Dilution Reserve on such date;
and
(iii) an amount equal to the product of (A) the
Aggregate Outstanding Balance on such date, (B) the quotient
of (x) the Series 2001-1 Invested Amount on such date divided
by (y) the Aggregate Invested Amount on such date, and (C) the
percentage equivalent of a fraction, the numerator of which is
the Collection Agent Fee Reserve on such date and the
denominator of which is one minus the Loss and Dilution
Reserve on such date.
"SERIES 2001-1 REQUIRED INVESTOR NOTEHOLDERS" means Purchasers
having Commitment Percentages aggregating 66 2/3% or more.
"SERIES 2001-1 SUBACCOUNTS" is defined in SECTION 5A.1(a).
"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 (rounded up to the nearest 1/100th of
1%) established by the Board 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 Regulation D. Eurodollar
Tranches 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 under such Regulation D or comparable regulation. The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective
date of any change in the reserve percentage.
"TAXES" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings now or hereafter
imposed by any Governmental Authority.
"TERMINATION EVENT" is defined in ARTICLE 4.
"TRANSFEREE" is defined in SECTION 11.10(f).
"TRANSFEREE SUPPLEMENT" is defined in SECTION 11.10(c).
"UNUSED FEE" is defined in SECTION 2.7(e).
23
19
"UNUSED FEE PAYMENT" is defined in SECTION 5A.4(a).
"UNUSED FEE RATE" means 0.20% per annum.
ARTICLE 2
PURCHASE AND SALE OF SERIES 2001-1 INVESTOR NOTES;
--------------------------------------------------
INCREASES AND DECREASES OF SERIES 2001-1 INVESTED AMOUNT
--------------------------------------------------------
SECTION 2.1. PURCHASES OF THE SERIES 2001-1 INVESTOR NOTES
(a) INITIAL PURCHASES. Subject to the terms and conditions of this
Indenture Supplement, including delivery of notice in accordance with SECTION
2.3, (i) each CP Conduit Purchaser may, in its sole discretion, purchase a
Series 2001-1 Investor Note in an amount equal to all or a portion of its
Commitment Percentage of the Series 2001-1 Initial Invested Amount on any
Business Day during the period from the Effective Date to and including the
Expiry Date with respect to such CP Conduit Purchaser (the "SERIES 2001-1
INITIAL FUNDING DATE"), and if such CP Conduit Purchaser shall have notified the
Administrative Agent and the Funding Agent with respect to such CP Conduit
Purchaser that it has elected not to fund a Series 2001-1 Investor Note in an
amount equal to its Commitment Percentage of the Series 2001-1 Initial Invested
Amount on the Series 2001-1 Initial Funding Date, each APA Bank with respect to
such CP Conduit Purchaser shall fund on the Series 2001-1 Initial Funding Date
its APA Bank Percentage of that portion of such Series 2001-1 Investor Note not
to be funded by such CP Conduit Purchaser and (ii) thereafter, (A) if a CP
Conduit Purchaser shall have purchased a Series 2001-1 Investor Note on the
Series 2001-1 Initial Funding Date, such CP Conduit Purchaser may, in its sole
discretion, maintain its Series 2001-1 Investor Note, subject to increase or
decrease during the period from the Effective Date to and including the Expiry
Date with respect to such CP Conduit Purchaser, in accordance with the
provisions of this Indenture Supplement and (B) the APA Banks with respect to
such CP Conduit Purchaser shall maintain their respective APA Bank Percentages
of the Series 2001-1 Investor Note with respect to such Purchaser, subject to
increase or decrease during the period from the Effective Date to and including
the Expiry Date with respect to such CP Conduit Purchaser, in accordance with
the provisions of this Indenture Supplement. Payments by each CP Conduit
Purchaser and/or the APA Banks with respect to such CP Conduit Purchaser shall
be made in immediately available funds on the Series 2001-1 Initial Funding Date
to the Funding Agent with respect to such CP Conduit Purchaser for remittance to
the Indenture Trustee for deposit into the Series 2001-1 Collection Subaccount.
(b) MAXIMUM PURCHASER INVESTED AMOUNTS. Notwithstanding anything to the
contrary contained in this Indenture Supplement, at no time shall the Purchaser
Invested Amount with respect to any Purchaser exceed the Maximum Purchaser
Invested Amount with respect to such Purchaser at such time.
(c) FORM OF SERIES 2001-1 INVESTOR NOTES. The Series 2001-1 Investor
Notes shall be issued in fully registered form without interest coupons,
substantially in the form set forth in EXHIBIT A hereto.
24
20
SECTION 2.2. DELIVERY.
(a) On the Series 2001-1 Initial Funding Date, the Issuer shall sign
and shall direct the Indenture Trustee in writing pursuant to SECTION 2.4 of the
Base Indenture to duly authenticate, and the Indenture Trustee, upon receiving
such direction, shall so authenticate a Series 2001-1 Investor Note in the name
of the Funding Agent with respect to each Purchaser in an amount equal to the
Maximum Purchaser Invested Amount with respect to such Purchaser and deliver
such Series 2001-1 Investor Note to such Funding Agent in accordance with such
written directions.
(b) The Administrative Agent shall maintain a record of the actual
Purchaser Invested Amount outstanding with respect to each Purchaser and the
actual Series 2001-1 Invested Amount outstanding on any date of determination,
which, absent manifest error, shall constitute PRIMA FACIE evidence of the
outstanding Purchaser Invested Amounts and outstanding Series 2001-1 Invested
Amount from time to time.
SECTION 2.3. PROCEDURE FOR INITIAL ISSUANCE AND FOR INCREASING THE
SERIES 2001-1 INVESTED AMOUNT.
(a) Subject to SECTION 2.3(c), (i) on the Series 2001-1 Initial Funding
Date, each CP Conduit Purchaser may agree, in its sole discretion, to purchase,
and the APA Banks with respect to such CP Conduit Purchaser shall purchase, a
Series 2001-1 Investor Note in accordance with SECTION 2.1 and (ii) on any
Settlement Date or on the second Business Day following any Weekly Reporting
Date (other than a Weekly Reporting Date occurring during the first 60 days
following the first occurrence of a Downgrade Event) during the period from the
Effective Date to and including the Expiry Date with respect to a CP Conduit
Purchaser, such CP Conduit Purchaser may agree, in its sole discretion, and each
APA Bank with respect to such CP Conduit Purchaser hereby agrees, that the
Purchaser Invested Amount with respect to such Purchaser may be increased (an
"INCREASE") by an amount equal to its APA Bank Percentage of the Commitment
Percentage with respect to such Purchaser of the Increase Amount, upon the
request of the Issuer (each date on which an Increase occurs hereunder being
herein referred to as the "INCREASE DATE" applicable to such Increase);
provided, however, that the Issuer shall have given the Administrative Agent
(with a copy to the Indenture Trustee) irrevocable written notice (effective
upon receipt), by telecopy (receipt confirmed), substantially in the form of
EXHIBIT B (an "INCREASE NOTICE"), of such request no later than 1:00 P.M., New
York City time, on the second Business Day prior to such Increase Date. Such
notice shall state (x) the Increase Date and (y) the proposed Increase Amount.
The Issuer shall give the Administrative Agent (with a copy to the Indenture
Trustee) irrevocable written notice (effective upon receipt), by telecopy
(receipt confirmed), of the Series 2001-1 Initial Funding Date and the proposed
initial invested amount of the Series 2001-1 Notes (the "SERIES 2001-1 INITIAL
INVESTED AMOUNT") no later 1:00 P.M., New York City time, on the second Business
Day prior to the Series 2001-1 Initial Funding Date.
(b) If a CP Conduit Purchaser elects not to fund the full amount of its
Commitment Percentage of the Series 2001-1 Initial Invested Amount or a
requested Increase Amount, such CP Conduit Purchaser shall notify the
Administrative Agent and the Funding Agent with respect to such CP Conduit
Purchaser, and each APA Bank with respect to such CP
25
21
Conduit Purchaser shall fund its APA Bank Percentage of the portion of the
Commitment Percentage with respect to such Purchaser of the Series 2001-1
Initial Invested Amount or such Increase Amount, as the case may be, not funded
by such CP Conduit Purchaser.
(c) No Purchaser shall be required to make the initial purchase of a
Series 2001-1 Investor Note on the Series 2001-1 Initial Funding Date or to
increase its Purchaser Invested Amount on any Increase Date hereunder unless:
(i) in the case of the Series 2001-1 Initial Funding Date, the
Series 2001-1 Initial Invested Amount is at least $1,000,000 for each
Purchaser;
(ii) in the case of any Increase Date, the Increase Amount is
equal to $1,000,000 or an integral multiple of $100,000 in excess
thereof;
(iii) after giving effect to the initial purchase amount or
Increase Amount, the Purchaser Invested Amount with respect to such
Purchaser would not exceed the Maximum Purchaser Invested Amount with
respect to such Purchaser;
(iv) after giving effect to the initial purchase amount or
Increase Amount, no Series 2001-1 Allocated Receivables Deficiency
would have occurred and be continuing;
(v) no Termination Event or Potential Termination Event shall
have been deemed to have occurred or shall have been declared to have
occurred and be continuing; and
(vi) all of the representations and warranties made by each of
the Issuer, the Seller, the Collection Agent and Dunlop in each
Transaction Document to which it is a party are true and correct in all
material respects on and as of the Series 2001-1 Initial Funding Date
or such Increase Date, as the case may be, as if made on and as of such
date (except to the extent such representations and warranties are
expressly made as of another date).
The Issuer's acceptance of funds in connection with (x) the initial purchase of
Series 2001-1 Investor Notes on the Series 2001-1 Initial Funding Date and (y)
each Increase occurring on any Increase Date shall constitute a representation
and warranty by the Issuer to the applicable Purchasers as of the Series 2001-1
Initial Funding Date or such Increase Date, as the case may be, that all of the
conditions contained in this SECTION 2.3(c) have been satisfied.
(d) Upon receipt of any notice required by SECTION 2.3(a) from the
Issuer, the Administrative Agent shall forward (by telecopy or electronic
messaging system) a copy of such notice to the Funding Agent with respect to
each Purchaser, no later than 1:00 P.M., New York City time, on the day
received. After receipt by any Funding Agent with respect to a Purchaser of such
notice from the Administrative Agent, such Funding Agent shall, so long as the
conditions set forth in SECTIONS 2.3(a) and (c) are satisfied, promptly provide
telephonic notice to the related CP Conduit Purchaser and the related APA Banks,
of the Increase Date and of such Purchaser's Commitment Percentage of the
Increase Amount. If such CP Conduit Purchaser
26
22
elects to fund all or a portion of its Commitment Percentage of the Increase
Amount, such CP Conduit Purchaser shall pay in immediately available funds its
Commitment Percentage (or any portion thereof) of the amount of such Increase on
the related Increase Date to the Funding Agent with respect to such Purchaser
for deposit into the Series 2001-1 Collection Subaccount. If such CP Conduit
Purchaser does not fund the full amount of its Commitment Percentage of the
Increase Amount and the related APA Banks are required to fund the portion
thereof not funded by the CP Conduit Purchaser, each such APA Bank shall pay in
immediately available funds its APA Bank Percentage of such portion on the
related Increase Date to the Funding Agent with respect to such Purchaser for
deposit in the Series 2001-1 Collection Subaccount. Each Funding Agent shall
remit the amounts received by it from its CP Conduit Purchaser or the related
APA Banks pursuant to this SECTION 2.3(d) to the Indenture Trustee for deposit
into the Collection Account and allocation to the Series 2001-1 Principal
Collection Subaccount.
SECTION 2.4. SALES BY CP CONDUIT PURCHASERS OF SERIES 2001-1 INVESTOR
NOTES TO APA BANKS.
Notwithstanding any limitation to the contrary contained
herein, each CP Conduit Purchaser may, in its own discretion, at any time, sell
or assign all or any portion of its interest in its Series 2001-1 Investor Note
to any Conduit Assignee or to the APA Banks with respect to such CP Conduit
Purchaser pursuant to, and subject to the terms and conditions of, the Asset
Purchase Agreement with respect to such CP Conduit Purchaser.
SECTION 2.5. PROCEDURE FOR DECREASING THE SERIES 2001-1 INVESTED
AMOUNT; OPTIONAL TERMINATION.
(a) Upon the written request of the Issuer or the Collection Agent on
behalf of the Issuer, the Series 2001-1 Invested Amount may be reduced (a
"DECREASE") on any Reporting Date during the Revolving Period, in the case of
any Decrease in an amount less than $50,000,000 or, on the second Business Day
following any Reporting Date during the Revolving Period, in the case of any
Decrease in an amount of $50,000,000 or more, by the Indenture Trustee's
withdrawing from the Series 2001-1 Principal Collection Subaccount and
distributing to the Administrative Agent funds on deposit in the Series 2001-1
Principal Collection Subaccount on such day in accordance with SECTION 5A.6(d)
in an amount not to exceed the amount of such funds available on such day in the
Series 2001-1 Principal Collection Subaccount; provided that the Collection
Agent shall have given the Administrative Agent (with a copy to the Indenture
Trustee) irrevocable written notice (effective upon receipt) of the amount of
such Decrease prior to 9:30 A.M., New York City time, on the second Business Day
prior to such Reporting Date, in the case of any such Decrease in an amount less
than $50,000,000, and prior to 9:30 A.M., New York City time, on a Business Day
that is at least five Business Days prior to such Reporting Date, in the case of
any such Decrease in an amount of $50,000,000 or more; provided, further, that
any such Decrease shall be in an amount equal to $1,000,000 and integral
multiples of $100,000 in excess thereof. Upon each Decrease, the Administrative
Agent shall indicate in its records such Decrease and the Purchaser Invested
Amount outstanding with respect to each Purchaser, after giving effect to such
Decrease. Upon receipt of any notice required by SECTION 2.5(a) from the Issuer,
the Administrative Agent shall forward (by telecopy or electronic messaging
system) a copy of such notice to the Funding Agent with respect to each
Purchaser, no later than 1:00 P.M., New York City time, on the day received.
27
23
(b) On any Business Day, the Issuer shall have the right to deliver an
irrevocable written notice (an "OPTIONAL TERMINATION NOTICE") to the
Administrative Agent, the Indenture Trustee and the Collection Agent in which
the Issuer declares that the Commitments shall terminate on the date (the
"OPTIONAL TERMINATION DATE") set forth in such notice (which date, in any event,
shall be a Payment Date not less than twenty Business Days from the date on
which such notice is delivered). Upon receipt of any Optional Termination Notice
from the Issuer, the Administrative Agent shall promptly notify the Funding
Agent with respect to each Purchaser thereof. From and after the Optional
Termination Date, the Amortization Period shall commence for all purposes under
this Indenture Supplement and the other Transaction Documents.
SECTION 2.6. INCREASES AND REDUCTIONS OF THE COMMITMENTS; EXTENSIONS OF
THE COMMITMENTS.
(a) The Issuer may from time to time request that any Purchaser agree
to increase its Maximum Purchaser Invested Amount. An increase in any Maximum
Purchaser Invested Amount shall be effective hereunder if such Purchaser shall
have agreed to such increase in its Maximum Purchaser Invested Amount.
(b) If the Issuer desires to extend the Scheduled Expiry Date with
respect to the Purchasers, the Issuer shall notify the Administrative Agent no
more than four months prior to such Scheduled Expiry Date of its desire to
extend the Scheduled Expiry Date with respect to the Purchasers, whereupon the
Administrative Agent shall notify the Funding Agent with respect to each
Purchaser of the Issuer's desire to so extend the Scheduled Expiry Date. Each
Funding Agent, on behalf of its Purchaser, shall notify the Administrative Agent
and the Issuer in writing of whether such Purchaser agrees to an extension of
the Scheduled Expiry Date with respect to such Purchaser within thirty days of
the receipt of the request for extension; provided that failure by a Funding
Agent to respond to such request shall not be construed as a consent by such
Purchaser to such extension. The decision to extend or not extend shall be made
by each Purchaser in its sole discretion. In the event that any Purchaser
desires to extend its Scheduled Expiry Date for an amount that is less than its
Maximum Purchaser Invested Amount prior to the Issuer's request for an
extension, the Issuer, in its sole discretion, may accept such extension;
provided, however, that such Purchaser (x) shall be deemed to be a Non-Extending
Purchaser for purposes of SECTION 5A.6(d) having a Purchaser Invested Amount
equal to the excess of (A) its Purchaser Invested Amount over (B) a percentage
of its Maximum Purchaser Invested Amount that will be available after the
extension of its Scheduled Expiry Date equal to the percentage equivalent of a
fraction, the numerator of which is the sum of the Purchaser Invested Amounts
with respect to all Extending Purchasers, other than such Purchaser and any
other Purchaser reducing its Maximum Purchaser Invested Amount, and the
denominator of which is the sum of the Maximum Purchaser Invested Amounts of all
Extending Purchasers, other than such Purchaser and any other Purchaser reducing
its Maximum Purchaser Invested Amount, and (y) shall be deemed to be an
Extending Purchaser with a Maximum Purchaser Invested Amount equal to the
portion of its Maximum Purchaser Invested Amount that will be available after
the extension of its Scheduled Expiry Date.
(c) On any Business Day during the Revolving Period, the Issuer may,
upon two (2) Business Days' prior written notice to the Administrative Agent
(effective upon receipt)
28
24
(with copies to the Collection Agent and the Indenture Trustee) reduce the
Series 2001-1 Maximum Invested Amount in an amount equal to $10,000,000 or a
whole multiple of $1,000,000 in excess thereof; PROVIDED that no such
termination or reduction shall be permitted if, after giving effect thereto and
to any reduction in the Series 2001-1 Invested Amount on such date, the
Purchaser Invested Amount with respect to any Purchaser would exceed the Maximum
Purchaser Invested Amount with respect to such Purchaser then in effect. Any
reduction in the Series 2001-1 Maximum Invested Amount shall be made on a pro
rata basis to the Maximum Purchaser Invested Amounts with respect to the
Purchasers, based on the Maximum Purchaser Invested Amount with respect to each
Purchaser. Once reduced, the Maximum Purchaser Invested Amounts may not be
subsequently reinstated.
(d) If, after receiving a request for extension of its Scheduled Expiry
Date from the Issuer pursuant to SECTION 2.6(b), the Funding Agent with respect
to a CP Conduit Purchaser notifies the Issuer in writing of its decision not to
extend its Scheduled Expiry Date as requested or fails to respond to the
Issuer's request within 30 days of its receipt of such request, at the request
of the Issuer, such CP Conduit Purchaser and the APA Banks with respect to such
CP Conduit Purchaser shall assign all or any portion of their respective rights
and obligations under this Indenture Supplement and the Series 2001-1 Notes
pursuant to SECTION 11.10(e) to a replacement CP Conduit Purchaser and the APA
Banks with respect to such replacement CP Conduit Purchaser selected by the
Issuer upon payment by the replacement CP Conduit Purchaser and the APA Banks
with respect to such replacement CP Conduit Purchaser of the Purchaser Invested
Amount with respect such Non-Extending Purchaser (or the applicable portion
thereof) plus any accrued interest and fees thereon and any other amounts owed
to such Non-Extending Purchaser hereunder (the "PURCHASE PRICE"). The Purchase
Price with respect to any Non-Extending Purchaser shall be equivalent to the
Series 2001-1 Prepayment Amount with respect to such Purchaser (or the
applicable portion thereof), calculated as if the date of the assignment to the
replacement CP Conduit Purchaser and the APA Banks with respect to such CP
Conduit Purchaser were the Prepayment Date.
(e) The Issuer may at any time add a multi-seller commercial paper
conduit as an additional CP Conduit Purchaser (an "ADDITIONAL CP CONDUIT
PURCHASER") and one or more banks providing support to the Additional CP Conduit
Purchaser as APA Banks with respect to the Additional CP Conduit Purchaser (the
"RELATED ADDITIONAL APA BANKS"), with the prior written consent of the
Administrative Agent (which consent shall not be unreasonably withheld), by
providing at least ten Business Days written notice of (i) the names of the
Additional CP Conduit Purchaser, the Related Additional APA Banks and the
funding agent with respect to the Additional CP Conduit Purchaser and the
Related Additional APA Banks (the "ADDITIONAL FUNDING AGENT"), (ii) the date on
which the Issuer desires to effect such addition (the "PURCHASER ADDITION
DATE"), (iii) the proposed Maximum Purchaser Invested Amount with respect to the
Additional CP Conduit Purchaser and the Related Additional APA Banks and (iv)
the Commitment Percentage of each Purchaser, on the Purchaser Addition Date
after giving effect to the addition of the Additional CP Conduit Purchaser and
the Related Additional APA Banks. On the Purchaser Addition Date, each CP
Conduit Purchaser, the APA Banks with respect to such CP Conduit Purchaser and
the Funding Agent with respect to such CP Conduit Purchaser shall make an
assignment to the Additional CP Conduit Purchaser, the Related Additional APA
Banks and the Additional Funding Agent pursuant to SECTION 11.10(e), as directed
by the Administrative Agent, with the result that after giving effect thereto,
the Purchaser Invested
29
25
Amount with respect to each such Purchaser shall equal the product of (x) the
Series 2001-1 Invested Amount on the Purchaser Addition Date and (y) the
Commitment Percentage of such Purchaser on the Purchaser Addition Date after
giving effect to the addition of the Additional CP Conduit Purchaser and the
Related Additional APA Banks.
SECTION 2.7. INTEREST; FEES.
(a) Interest shall be payable on the Series 2001-1 Investor Notes on
each Payment Date pursuant to SECTION 5A.4.
(b) On any Business Day, the Issuer may, subject to SECTION 2.7(c),
elect to allocate all or any portion of the Available CP Funding Amount with
respect to any Match Funding CP Conduit Purchaser, to one or more CP Tranches
with CP Rate Periods commencing on such Business Day by giving the
Administrative Agent and the Funding Agent with respect to such Match Funding CP
Conduit Purchaser irrevocable written or telephonic (confirmed in writing)
notice thereof, which notice must be received by such Funding Agent prior to
11:00 A.M., New York City time, one Business Day prior to such Business Day.
Such notice shall specify (i) the applicable Business Day, (ii) the CP Rate
Period for each CP Tranche to which a portion of the Available CP Funding Amount
with respect to such Purchaser is to be allocated and (iii) the portion of such
Available CP Funding Amount being allocated to each such CP Tranche. On any
Business Day, the Issuer may, subject to SECTION 2.7(c), elect to allocate all
or any portion of the Available APA Bank Funding Amount with respect to any
Purchaser to one or more Eurodollar Tranches with Eurodollar Periods commencing
on such Business Day by giving the Administrative Agent and the Funding Agent
with respect to such Purchaser irrevocable written or telephonic (confirmed in
writing) notice thereof, which notice must be received by such Funding Agent
prior to 1:00 P.M., New York City time, three Business Days prior to such
Business Day. Such notice shall specify (i) the applicable Business Day, (ii)
the Eurodollar Period for each Eurodollar Tranche to which a portion of the
Available APA Bank Funding Amount with respect to such Purchaser is to be
allocated and (iii) the portion of such Available APA Bank Funding Amount being
allocated to each such Eurodollar Tranche. The Funding Agent with respect to a
Purchaser shall notify the CP Conduit Purchaser and the APA Banks with respect
to such Purchaser of the contents of such notice promptly upon receipt thereof.
(c) Notwithstanding anything to the contrary contained in this SECTION
2.7, (i) (A) each Match Funding CP Conduit Purchaser shall approve the length of
each CP Rate Period and the portion of the Available CP Funding Amount with
respect to such Match Funding CP Conduit Purchaser allocated to such CP Rate
Period, (B) such Match Funding CP Conduit Purchaser may select, in its sole
discretion, any new CP Rate Period if (x) the Issuer does not provide notice of
a new CP Rate Period on a timely basis or (y) the Funding Agent with respect to
such Match Funding CP Conduit Purchaser, on behalf of such Match Funding CP
Conduit Purchaser, determines, in its sole discretion, that the CP Rate Period
requested by the Issuer is unavailable or for any reason commercially
undesirable and (C) the portion of the Available CP Funding Amount with respect
to such Match Funding CP Conduit Purchaser allocable to each CP Tranche must be
in an amount equal to $1,000,000 or an integral multiple of $100,000 in excess
thereof and (ii) (A) the portion of the Available APA Bank Funding Amount
with respect to any Purchaser allocable to each Eurodollar Tranche must be in an
amount equal to $100,000 or an integral multiple of $100,000 in excess thereof,
(B) no more than 10 Eurodollar Tranches
30
26
with respect to such Purchaser shall be outstanding at any one time, (C) after
the deemed or declared occurrence and during the continuance of any Termination
Event or Potential Termination Event, the Issuer may not elect to allocate any
portion of the Available APA Bank Funding Amount with respect to any Purchaser
to a Eurodollar Tranche and (D) during the Amortization Period, the Issuer may
not select any Eurodollar Period that does not end on or prior to the next
succeeding Payment Date.
(d) On any Business Day, a Match Funding CP Conduit Purchaser may elect
that the Issuer no longer be permitted to select CP Tranches in accordance with
SECTIONS 2.7(b) and (c) in respect of the CP Conduit Funded Amount with respect
to such CP Conduit Purchaser by giving the Issuer and the Administrative Agent
irrevocable written notice thereof, which notice must be received by the Issuer
and the Administrative Agent at least one Business Day prior to such Business
Day. On any Business Day, a Pooled Funding CP Conduit Purchaser may elect
thereafter to allow the Issuer to select CP Tranches in accordance with SECTIONS
2.7(b) and (c) in respect of the CP Conduit Funded Amount with respect to such
CP Conduit Purchaser by giving the Issuer and the Administrative Agent
irrevocable written notice thereof, which notice must be received by the Issuer
and the Administrative Agent at least one Business Day prior to such Business
Day. Any CP Conduit Purchaser making an election to change the manner in which
its funding costs in respect of its Series 2001-1 Investor Note are allocated in
accordance with this SECTION 2.7(d) will be both a Match Funding CP Conduit
Purchaser and a Pooled Funding CP Conduit Purchaser during the period that its
Series 2001-1 Investor Note is funded on both a "pooled" and "match funded"
basis and its Monthly Funding Costs during that period will be calculated
accordingly.
(e) The Issuer shall pay pursuant to SECTION 5A.4 to the Administrative
Agent, for the account of each Purchaser, on each Payment Date, an unused fee
with respect to the most recent Settlement Period (the "UNUSED FEE") for each
Settlement Period (or portion thereof) during the period from the Effective Date
to and including the Expiry Date with respect to such Purchaser at the Unused
Fee Rate times (i) the average daily Commitment Amount with respect to such
Purchaser during such Settlement Period minus (ii) the average daily Purchaser
Invested Amount with respect to such Purchaser during such Settlement Period.
The Unused Fee shall be payable monthly in arrears on each Payment Date.
(f) Calculations of per annum rates under this Indenture Supplement
shall be made on the basis of a 360- (or 365-/366-, in the case of interest on
the Floating Tranche based on the Prime Rate) day year. Calculations of Unused
Fees shall be made on the basis of a 360-day year. Each determination of the
Adjusted LIBO Rate by the Administrative Agent shall be conclusive and binding
upon each of the parties hereto in the absence of manifest error.
SECTION 2.8. INDEMNIFICATION BY THE ISSUER AND THE COLLECTION AGENT.
(a) The Issuer agrees to indemnify and hold harmless the Indenture
Trustee, the Administrative Agent, each Funding Agent, each Purchaser and each
of their respective officers, directors, agents and employees (each, a "COMPANY
INDEMNIFIED PERSON") from and against any loss, liability, expense, damage or
injury suffered or sustained by (a "CLAIM") such Company indemnified person by
reason of (i) any acts, omissions or alleged acts or omissions arising out of,
or relating to, activities of the Issuer pursuant to the Indenture or the other
31
27
Transaction Documents to which it is a party, (ii) a breach of any
representation or warranty made or deemed made by or on behalf of the Issuer in
the Indenture or other Transaction Document or (iii) a failure by the Issuer (A)
to comply with any applicable law or regulation (B) or to perform its covenants,
agreements, duties or obligations required to be performed or observed by it in
accordance with the provisions of the Indenture or the other Transaction
Documents, including, but not limited to, any judgment, award, settlement,
reasonable attorneys' fees and other reasonable costs or expenses incurred in
connection with the defense of any actual or threatened action, proceeding or
claim, except, in each case, to the extent such loss, liability, expense, damage
or injury (A) resulted from the gross negligence, bad faith or wilful misconduct
of such Company indemnified person, (B) constitutes recourse for Receivables
which are not collected, not paid or uncollectible on account of the insolvency,
bankruptcy, inability to pay or lack of creditworthiness of the applicable
Obligor or (C) includes any Excluded Taxes; provided that any payments made by
the Issuer pursuant to this SECTION 2.8 shall be made solely from funds
available therefor pursuant to SECTION 5A.4 and from any other funds otherwise
payable to the Issuer pursuant to the Base Indenture or any Indenture
Supplement, shall be non-recourse other than with respect to such funds, and
shall not constitute a claim against the Issuer or the Seller or any of their
respective Affiliates to the extent that such funds are insufficient to make
such payment.
(b) The Collection Agent agrees to indemnify and hold harmless the
Indenture Trustee, the Administrative Agent, each Funding Agent, each Purchaser
and each of their respective officers, directors, agents and employees (each, a
"COLLECTION AGENT INDEMNIFIED PERSON") from and against any Claim by reason of
(i) any acts, omissions or alleged acts or omissions arising out of, or relating
to, activities of the Collection Agent pursuant to the Indenture or the other
Transaction Documents to which it is a party, (ii) a breach of any
representation or warranty made by or on behalf of the Collection Agent in the
Indenture or other Transaction Document or (iii) a failure by the Collection
Agent (A) to comply with any applicable law or regulation or (B) to perform its
covenants, agreements, duties or obligations required to be performed or
observed by it in accordance with the provisions of the Indenture or the other
Transaction Documents, including, but not limited to, any judgment, award,
settlement, reasonable attorneys' fees and other reasonable costs or expenses
incurred in connection with the defense of any actual or threatened action,
proceeding or claim, except, in each case, to the extent such loss, liability,
expense, damage or injury (A) resulted from the gross negligence, bad faith or
wilful misconduct of such Collection Agent indemnified person, (B) constitutes
recourse for Receivables which are not collected, not paid or uncollectible on
account of the insolvency, bankruptcy, inability to pay or lack of
creditworthiness of the applicable Obligor or (C) includes Excluded Taxes.
SECTION 2.9. FUNDING AGENTS.
(a) The Funding Agent with respect to each Purchaser is hereby
authorized to record on each Business Day the CP Funded Amount with respect to
such Purchaser and the aggregate amount of Discount accruing with respect
thereto on such Business Day and the APA Bank Funded Amount with respect to such
Purchaser and the amount of interest accruing with respect thereto on such
Business Day and, based on such recordations, to determine the Monthly Funding
Costs with respect to each Settlement Period and such Purchaser. Any such
recordation by a Funding Agent, absent manifest error, shall constitute PRIMA
FACIE evidence of the accuracy
32
28
of the information so recorded. Furthermore, the Funding Agent with respect to
each Purchaser will maintain records sufficient to identify the percentage
interest of the related CP Conduit Purchaser and each APA Bank with respect to
such Purchaser holding an interest in the Series 2001-1 Investor Note registered
in the name of such Funding Agent and any amounts owing thereunder.
(b) Upon receipt of funds from the Administrative Agent on each Payment
Date, each Funding Agent shall pay such funds to the related CP Conduit
Purchaser and/or the related APA Bank owed such funds in accordance with the
recordations maintained by it in accordance with SECTION 2.9(a) and the Asset
Purchase Agreement with respect to such CP Conduit Purchaser. If a Funding Agent
shall have paid to any CP Conduit Purchaser or APA Bank any funds that (i) must
be returned for any reason (including bankruptcy) or (ii) exceeds that which
such CP Conduit Purchaser or APA Bank was entitled to receive, such amount shall
be promptly repaid to such Funding Agent by such CP Conduit Purchaser or APA
Bank.
ARTICLE 3
ARTICLE V OF THE BASE INDENTURE
-------------------------------
SECTIONS 5.1 through 5.3 of the Base Indenture and each other Section
of Article V of the Indenture relating to another Series shall read in their
entirety as provided in the Base Indenture or any applicable Indenture
Supplement. ARTICLE V of the Base Indenture (except for SECTIONS 5.1 through 5.3
thereof and any portion thereof relating to another Series) shall read in its
entirety as follows and shall be exclusively applicable to the Series 2001-1
Investor Notes:
SECTION 5A.1. ESTABLISHMENT OF SERIES 2001-1 COLLECTION SUBACCOUNTS.
(a) The Indenture Trustee shall establish and maintain in the name of
the Indenture Trustee for the benefit of the Series 2001-1 Investor Noteholders
(i) a subaccount of the Collection Account (the "SERIES 2001-1 COLLECTION
SUBACCOUNT") and (ii) two subaccounts of the Series 2001-1 Collection
Subaccount: (1) the Series 2001-1 Expense Subaccount and (2) the Series 2001-1
Principal Collection Subaccount (respectively, the "SERIES 2001-1 EXPENSE
SUBACCOUNT" and the "SERIES 2001-1 PRINCIPAL COLLECTION SUBACCOUNT"; the
accounts established pursuant to this Section 5A.1, collectively, the "SERIES
2001-1 SUBACCOUNTS"); each Series 2001-1 Subaccount shall bear a designation
indicating that the funds deposited therein are held for the benefit of the
Series 2001-1 Investor Noteholders. The Indenture Trustee shall possess all
right, title and interest in all moneys, instruments, securities and other
property on deposit from time to time in the Series 2001-1 Subaccounts and the
proceeds thereof as security for the benefit of the Series 2001-1 Investor
Noteholders. The Series 2001-1 Subaccounts shall be under the sole dominion and
control of the Indenture Trustee for the benefit of the Series 2001-1 Investor
Noteholders.
(b) So long as no Termination Event shall have been deemed to have
occurred or shall have been declared to have occurred, the Issuer shall instruct
the institution maintaining the Collection Account in writing to invest funds on
deposit in the Series 2001-1 Subaccounts at all times in Permitted Investments
selected by the Issuer (by standing instructions or otherwise); PROVIDED,
HOWEVER, that funds on deposit in a Series 2001-1 Subaccount may be invested
33
29
together with funds held in other subaccounts of the Collection Account. Amounts
on deposit and available for investment in the Series 2001-1 Principal
Collection Subaccount shall be invested by the Indenture Trustee, at the written
direction of the Issuer during the Revolving Period in Permitted Investments
that mature, or that are payable or redeemable upon demand of the holder
thereof, on or prior to the next Business Day and during the Amortization Period
in Permitted Investments that mature, or that are payable or redeemable upon
demand of the holder thereof, on or prior to the Business Day immediately
preceding the next Payment Date. Amounts on deposit and available for investment
in the Series 2001-1 Expense Subaccount shall be invested by the Indenture
Trustee; at the written direction of the Issuer, so long as no Termination Event
shall have been deemed to have occurred or shall have been declared to have
occurred, in Permitted Investments that mature, or that are payable or
redeemable upon demand of the holder thereof, on or prior to the Business Day
immediately preceding the next Payment Date. Amounts on deposit and available
for investment in the Series 2001-1 Collection Subaccount shall be invested by
the Indenture Trustee; at the written direction of the Issuer, so long as no
Termination Event shall have been deemed to have occurred or shall have been
declared to have occurred, in Permitted Investments that mature, or that are
payable or redeemable upon demand of the holder thereof, on or prior to the
Business Day immediately preceding the next Payment Date. On each Settlement
Date, all interest and other investment earnings (net of losses and investment
expenses) on funds deposited in the Series 2001-1 Collection Subaccount, the
Series 2001-1 Principal Collection Subaccount and the Series 2001-1 Expense
Subaccount shall be deposited in the Series 2001-1 Collection Subaccount. The
Issuer shall not direct the Indenture Trustee to dispose of (or permit the
disposal of) any Permitted Investments prior to the maturity thereof to the
extent such disposal would result in a loss of principal of such Permitted
Investment. In the absence of written direction as provided hereunder, all funds
on deposit in the Collection Account shall remain uninvested.
(c) After the deemed or declared occurrence of a Termination Event, the
Administrative Agent shall instruct the institution maintaining the Collection
Account in writing to invest funds on deposit in the Series 2001-1 Subaccounts
from time to time in Permitted Investments selected by the Administrative Agent
(by standing instructions or otherwise). Amounts on deposit and available for
investment in the Series 2001-1 Subaccounts shall be invested by the Indenture
Trustee at the written direction of the Administrative Agent in Permitted
Investments that mature, or that are payable or redeemable upon demand of the
holder thereof, on or prior to the Business Day immediately preceding the next
Payment Date. On each Settlement Date, all interest and other investment
earnings (net of losses and investment expenses) on funds deposited in the
Series 2001-1 Subaccounts shall be deposited in the Series 2001-1 Collection
Subaccount. The Administrative Agent shall not direct the Indenture Trustee to
dispose of (or permit the disposal of) any Permitted Investments prior to the
maturity thereof to the extent such disposal would result in a loss of principal
of such Permitted Investment. In the absence of written direction as provided
hereunder, all funds on deposit shall remain uninvested.
SECTION 5A.2. ALLOCATIONS WITH RESPECT TO THE SERIES 2001-1 INVESTOR
NOTES.
(a) PRIOR TO A DOWNGRADE EVENT. For so long as no Downgrade Event shall
have occurred and be continuing, on each Business Day during the Revolving
Period on which the Collection Agent receives Collections in the form of
available funds in the Lock-Box
34
30
Accounts prior to 12:00, New York City time (each a "SERIES 2001-1 DEPOSIT
DATE"), the Collection Agent shall allocate to the Series 2001-1 Investor Notes
an amount equal to the product of the Series 2001-1 Invested Percentage on such
Business Day and the aggregate amount of Collections so received on such
Business Day and shall, at the election of the Collection Agent on behalf of the
Issuer:
(i) apply such funds pursuant to Section 2.3 of the
Receivables Purchase Agreement or to reduce the outstanding principal
amount of the Subordinated Note;
(ii) deposit such funds to the Collection Account for
allocation to the Series 2001-1 Principal Collection Subaccount; or
(iii) deposit such funds to the Collection Account for
allocation to the Series 2001-1 Accrued Expense Account;
provided, however that
(A) during each Reporting Period, the Collection
Agent shall retain from such funds an aggregate amount equal
to the Accrued Expense Amount for every Business Day during
the Settlement Period ending during such Reporting Period and
hold such funds on behalf of the Issuer or deposit such funds
into the Collection Account for allocation to the Series
2001-1 Accrued Expense Account;
(B) if there is a Series 2001-1 Allocated Receivables
Deficiency, the Collection Agent shall deposit into the
Collection Account for allocation to the Series 2001-1
Principal Collection Subaccount the lesser of (x) the amount
of such funds less any amounts retained by the Collection
Agent pursuant to clause (A) above and (y) the amount of such
funds sufficient to cure such Series 2001-1 Allocated
Receivables Deficiency; and
(C) during any Paydown Period, the Collection Agent
shall deposit into the Collection Account for allocation to
the Series 2001-1 Principal Collection Subaccount an amount
from such funds equal to the Paydown Percentage with respect
to such Paydown Period of the amount of such funds less any
amounts retained by the Collection Agent pursuant to clause
(A) above.
Not later than 1:00 p.m., New York City time, on each Transfer Date, the
Collection Agent shall deposit into the Collection Account the portion of the
funds retained by the Collection Agent during the Reporting Period then ending
pursuant to clause (A) of the proviso to SECTION 5A.2(a) and not previously
deposited into the Collection Account and direct the Indenture Trustee to
allocate such funds to the Series 2001-1 Expense Subaccount. Pending the deposit
of funds retained by the Collection Agent pursuant to clause (A) of the proviso
to SECTION 5A.2(a) into the Collection Account, the Collection Agent shall hold
such funds on behalf of the Issuer but shall not be required to segregate such
funds from the funds of Goodyear.
35
31
(b) AFTER A DOWNGRADE EVENT. On each Series 2001-1 Deposit Date during
the Revolving Period after a Downgrade Event shall have occurred and is
continuing, the Collection Agent shall deposit or cause to be deposited into the
Collection Account prior to 12:00, New York City time on such Series 2001-1
Deposit Date an amount equal to the product of the Series 2001-1 Invested
Percentage and the aggregate amount of Collections so received on such Series
2001-1 Deposit Date and direct the Indenture Trustee in writing to allocate such
funds to the Series 2001-1 Collection Subaccount and to further allocate such
funds as follows:
(i) to the Series 2001-1 Expense Subaccount, an amount equal
to the Accrued Expense Amount for each Business Day since the
immediately preceding Series 2001-1 Deposit Date; PROVIDED, HOWEVER
that if Goodyear is the Collection Agent the Collection Agent may
direct the Indenture Trustee in writing to withhold from such
allocation, and pay to the Collection Agent, an amount equal to the
Daily Collection Agent Fee Amount for each Business Day since the
immediately preceding Series 2001-1 Deposit Date; and
(ii) following the transfer pursuant to clause (i) above, to
the Series 2001-1 Principal Collection Subaccount, any remaining funds
on deposit in the Series 2001-1 Collection Subaccount.
The Collection Agent shall deposit into the Collection Account an amount equal
to the funds paid to the Collection Agent on account of the Daily Collection
Agent Fee Amount for each Business Day during any Settlement Period pursuant to
clause (i) above and direct the Indenture Trustee to allocate such funds to the
Series 2001-1 Expense Subaccount not later than 1:00 p.m., New York City time,
on the Transfer Date preceding the Payment Date on which such amounts are
payable to the Collection Agent hereunder. Pending deposit of those funds, those
funds shall represent a deposit on behalf of the Issuer of the Series 2001-1
Collection Agent Fee payable to the Collection Agent and the Collection Agent
shall not be required to segregate such funds from the funds of Goodyear and may
use such funds for the general corporate purposes of Goodyear..
(c) SERIES 2001-1 PRINCIPAL COLLECTION SUBACCOUNT. On any Business Day
during the Revolving Period (whether or not a Downgrade Event shall have
occurred and be continuing), the Collection Agent may direct the Indenture
Trustee in writing to:
(i) distribute to the Collection Agent on behalf of the Issuer
for application pursuant to Section 2.3 of the Receivables Purchase
Agreement or to reduce the outstanding principal amount of the
Subordinated Note, the proceeds of any Increase deposited in the Series
2001-1 Principal Collection Subaccount pursuant to SECTION 2.3(d) on
such Business Day; or
(ii) distribute to the Collection Agent all amounts on deposit
in the Collection Account and allocated to the Series 2001-1 Principal
Collection Subaccount for application on behalf of the Issuer pursuant
to Section 2.3 of the Receivables Purchase Agreement or to reduce the
outstanding principal amount of the Subordinated Note; provided, that
36
32
(A) no distribution to the Collection Agent shall be made
pursuant to this SECTION 5A.2(c)(ii) to the extent that, after giving
effect to such distribution, there would be a Series 2001-1 Allocated
Receivables Deficiency; and
(B) during any Paydown Period, (x) amounts deposited into the
Collection Account and allocated to the Series 2001-1 Principal
Collection Subaccount pursuant to Clause (C) of the proviso to SECTION
5A.2(a) and (y) the Paydown Percentage with respect to such Paydown
Period of all amounts deposited in the Collection Account and allocated
to the Series 2001-1 Principal Collection Subaccount pursuant to
SECTION 5A.2(b)(ii) shall be retained in the Series 2001-1 Principal
Collection Subaccount and applied to effect a Decrease in accordance
with SECTION 2.5(a).
(d) TERMINATION EVENT. No later than one Business Day after the deemed
or declared occurrence of a Termination Event, the Collection Agent shall (x)
deposit into the Collection Account and direct the Indenture Trustee to allocate
to the Series 2001-1 Collection Subaccount any Collections allocated to the
Series 2001-1 Investor Noteholders that have not been applied pursuant to
Section 2.3 of the Receivables Purchase Agreement or to reduce the outstanding
principal amount of the Subordinated Note or otherwise deposited into the
Collection Account hereunder and (y) direct the Indenture Trustee in writing to
allocate to the Series 2001-1 Collection Subaccount all funds then allocated to
the Series 2001-1 Principal Collection Subaccount.
(e) AMORTIZATION PERIOD. On each Business Day during the Amortization
Period on which the Collection Agent receives Collections in the form of
available funds in the Lock-Box Accounts prior to 12:00, New York City time, the
Collection Agent shall deposit into the Collection Account an amount equal to
the product of the Series 2001-1 Invested Percentage on such Business Day and
the aggregate amount of Collections received on such Business Day and direct the
Indenture Trustee in writing to allocate such funds to the Series 2001-1
Investor Noteholders and the Series 2001-1 Collection Subaccount.
(f) SERIES 2001-1 INITIAL FUNDING DATE. The Issuer hereby directs the
Indenture Trustee to pay to the Seller the proceeds from the initial sale of the
Series 2001-1 Investor Notes for application in accordance with Section 2.3 of
the Receivables Purchase Agreement.
(g) COLLECTIONS ALLOCATED TO OTHER SERIES OF INVESTOR NOTES. The
Collection Agent shall direct the Indenture Trustee in writing to allocate to
the Series 2001-1 Investor Noteholders and the Series 2001-1 Principal
Collection Subaccount any amounts allocated to another Series of Investor Notes
that the Issuer or the Collection Agent, on behalf of the Issuer, has elected to
apply to reduce the Series 2001-1 Invested Amount.
(h) DECREASE. If the Collection Agent shall have given the
Administrative Agent written notice of a Decrease in accordance with SECTION
2.5(a), the Collection Agent may direct the Indenture Trustee in writing by
10:00 a.m., New York City time, on the date of such Decrease, to withdraw
amounts on deposit in the Series 2001-1 Principal Collection Subaccount
37
33
and reduce the Series 2001-1 Invested Amount on the date of such Decrease in
accordance with SECTIONS 2.5 and 5A.6(d).
SECTION 5A.3. DETERMINATION OF INTEREST
(a) On the third Business Day prior to each Payment Date, the
Collection Agent shall determine the Series 2001-1 Note Rate for the most recent
Settlement Period, based on the information provided by the Funding Agents
pursuant to this SECTION 5A.3(a), and the amount of interest payable on such
Payment Date on the Series 2001-1 Investor Notes ("SERIES 2001-1 MONTHLY
INTEREST"). Series 2001-1 Monthly Interest for each Series 2001-1 Interest
Period will equal the product of (i) the Series 2001-1 Note Rate for such
Settlement Period, (ii) the average daily Series 2001-1 Invested Amount during
such Settlement Period and (iii) the actual number of days elapsed in such
Settlement Period divided by 360. On the fifth Business Day prior to each
Payment Date, the Funding Agent with respect to each Purchaser shall provide
written notice to the Collection Agent of the Monthly Funding Costs with respect
to such Purchaser with respect to the most recent Settlement Period.
(b) On the third Business Day prior to each Payment Date, the
Collection Agent shall determine the excess, if any (the "INTEREST SHORTFALL"),
of (i) the sum of (x) the Series 2001-1 Monthly Interest for the most recent
Settlement Period and (y) the amount of any unpaid Interest Shortfall, as of the
preceding Payment Date (together with any Additional Interest on such Interest
Shortfall) OVER (ii) the amount which will be available to be distributed to the
Purchasers on such Payment Date in respect thereof pursuant to this Indenture
Supplement. If the Interest Shortfall with respect to any Payment Date is
greater than zero, an additional amount ("ADDITIONAL INTEREST") equal to the
product of (A) the number of days until such Interest Shortfall shall be repaid
divided BY 365 (or 366, as the case may be), (B) the Alternate Base Rate plus
2.0% and (C) such Interest Shortfall (or the portion thereof which has not been
paid to the Series 2001-1 Investor Noteholders) shall be payable as provided
herein on each Payment Date following such Payment Date, to but excluding the
Payment Date on which such Interest Shortfall is paid to the Series 2001-1
Investor Noteholders.
SECTION 5A.4. MONTHLY APPLICATION OF COLLECTIONS.
(a) On each Payment Date during the Revolving Period, based solely on
the information contained in the Monthly Settlement Statement with respect to
Series 2001-1 Investor Notes, the Indenture Trustee shall apply the following
amounts allocated to the Series 2001-1 Expense Subaccount on such Payment Date
in the following order of priority:
(i) if Goodyear is not the Collection Agent, to the Collection
Agent, an amount equal to the Series 2001-1 Collection Agent Fee for
the most recent Settlement Period;
(ii) to the Administrative Agent, for the account of the
Series 2001-1 Investor Noteholders, an amount equal to the Series
2001-1 Monthly Interest payable on such Payment Date plus the amount of
any unpaid Interest Shortfall, as of the preceding Payment Date,
together with any Additional Interest on such Interest Shortfall (such
amount, the "MONTHLY INTEREST PAYMENT");
38
34
(iii) to the Administrative Agent, for the account of the
Series 2001-1 Investor Noteholders, an amount equal to the Unused Fee
for the most recent Settlement Period plus the amount of any unpaid
Unused Fee for any prior Settlement Period (such amount, the "UNUSED
FEE PAYMENT");
(iv) if Goodyear is the Collection Agent, to the Collection
Agent, an amount equal to the Series 2001-1 Collection Agent Fee for
the most recent Settlement Period;
(v) to the Administrative Agent, for the account of the
applicable Series 2001-1 Investor Noteholders, an amount equal to any
Increased Costs payable on such Payment Date; and
(vi) to the Issuer, any amounts remaining on deposit in the
Series 2001-1 Expense Subaccount.
(b) On each Payment Date during the Amortization Period, based solely
on the information contained in the Monthly Settlement Statement with respect to
Series 2001-1 Investor Notes, the Indenture Trustee shall apply the following
amounts allocated to the Series 2001-1 Collection Subaccount on such Payment
Date in the following order of priority:
(i) if Goodyear is not the Collection Agent, to the Collection
Agent, an amount equal to the Series 2001-1 Collection Agent Fee for
the most recent Settlement Period;
(ii) to the Administrative Agent , for the account of the
Series 2001-1 Investor Noteholders, an amount equal to the Series
2001-1 Monthly Interest Payment;
(iii) if Goodyear is the Collection Agent, to the Collection
Agent, an amount equal to the Series 2001-1 Collection Agent Fee for
the most recent Settlement Period;
(iv) to the Administrative Agent, for the account of the
Series 2001-1 Investor Noteholders, an amount up to the Series 2001-1
Invested Amount on such Payment Date;
(v) to the Administrative Agent, for the account of the
applicable Series 2001-1 Investor Noteholders, an amount equal to any
Increased Costs payable on such Payment Date; and
(vi) to the Issuer, any amounts remaining on deposit in the
Series 2001-Collection Subaccount.
SECTION 5A.5. PAYMENT OF MONTHLY INTEREST PAYMENT, FEES AND EXPENSES.
(a) Upon the receipt of funds from the Indenture Trustee on each
Payment Date on account of the Monthly Interest Payment, the Administrative
Agent shall pay to each
39
35
Funding Agent with respect to a Purchaser an amount equal to the Monthly Funding
Costs with respect to such Purchaser with respect to the most recent Settlement
Period plus the amount of any unpaid Interest Shortfall payable to such
Purchaser as of the preceding Payment Date, together with any Additional
Interest thereon. If the amount paid to the Administrative Agent on any Payment
Date pursuant to SECTION 5A.4 is less than the Monthly Interest Payment on such
Payment Date, the Administrative Agent shall pay the amount available to the
Funding Agents, on behalf of the Purchasers, on a pro rata basis, based on the
Monthly Funding Costs with respect to each Purchaser with respect to the most
recent Settlement Period.
(b) Upon the receipt of funds from the Indenture Trustee on each
Payment Date on account of the Unused Fee Payment, the Administrative Agent
shall pay to each Funding Agent with respect to a Purchaser an amount equal to
the Unused Fee payable to such Purchaser with respect to the most recent
Settlement Period plus the amount of any unpaid Unused Fee for any prior
Settlement Period payable to such Purchaser. If the amount paid to the
Administrative Agent on any Payment Date pursuant to SECTION 5A.4 is less than
the Unused Fee Payment on such Payment Date, the Administrative Agent shall pay
the amount available to the Funding Agents, on behalf of the Purchasers, on a
pro rata basis, based on the Unused Fee payable to each Purchaser with respect
to the most recent Settlement Period.
(c) Upon the receipt of funds from the Indenture Trustee on any Payment
Date on account of Increased Costs, the Administrative Agent shall pay such
amounts to the Funding Agent with respect to the CP Conduit Purchaser or the APA
Bank owed such amounts. If the amounts paid to the Administrative Agent on any
Payment Date pursuant to SECTION 5A.4 are less than the Increased Costs due and
payable on such Payment Date, the Administrative Agent shall pay the amounts
available to the Funding Agents with respect to the CP Conduit Purchasers and
APA Banks owed such amounts, on a pro rata basis, based on the amounts owing to
such CP Conduit Purchasers and APA Banks.
SECTION 5A.6. DETERMINATION AND PAYMENT OF PRINCIPAL.
(a) The principal amount of the Series 2001-1 Investor Notes shall be
due and payable on the Final Maturity Date.
(b) The amount of principal distributable to the Series 2001-1 Investor
Noteholders on any Payment Date during the Amortization Period (the "MONTHLY
PRINCIPAL PAYMENT") shall be equal to the amount available on such Payment Date
to be distributed to the Administrative Agent pursuant to SECTION 5A.4(b)(iv).
(c) Upon the receipt of funds from the Indenture Trustee on any Payment
Date on account of the Monthly Principal Payment, the Administrative Agent shall
pay to each Funding Agent with respect to a Purchaser, such Purchaser's Pro Rata
Share of the Monthly Principal Payment.
(d) On the date of any Decrease, the Indenture Trustee shall pay to the
Administrative Agent, for the account of the Series 2001-1 Investor Noteholders,
from the Series 2001-1 Principal Collection Subaccount the amount of the
Decrease indicated in the request
40
36
received by the Indenture Trustee pursuant to SECTION 2.5(a). Upon the receipt
of funds on account of a Decrease from the Indenture Trustee, the Administrative
Agent shall pay
(i) during a Paydown Period, to each Funding Agent with
respect to a Non-Extending Purchaser, a pro rata amount of such
Decrease, based on the Purchaser Invested Amount with respect to such
Non-Extending Purchaser relative to the Purchaser Invested Amounts with
respect to all Non-Extending Purchasers on the date of such Decrease;
and
(ii) other than during any Paydown Period, to each Funding
Agent with respect to a Purchaser, such Purchaser's Pro Rata Share of
the amount of such Decrease (or, in the case of a Decrease occurring on
a date when the aggregate Purchaser Invested Amounts of all
Non-Extending Purchasers shall have been reduced to zero, such
Purchaser's Pro Rata Share of the amount of such Decrease remaining
after the application of such Decrease pursuant to SECTION 5A.6(d)(i)).
Each Purchaser's share of the amount of any Decrease on any Business Day shall
be allocated by such Purchaser first to reduce the Available CP Funding Amount
with respect to such Purchaser and the Available APA Bank Funding Amount with
respect to such Purchaser on such Business Day and then to reduce the portion of
the Purchaser Invested Amount with respect to such Purchaser allocated to CP
Tranches and Eurodollar Tranches in such order as such Purchaser may select in
order to minimize costs payable pursuant to SECTION 7.4.
ARTICLE 4
TERMINATION EVENTS
------------------
If any one of the following events shall occur with respect to the
Series 2001-1 Investor Notes:
(a) a Series 2001-1 Allocated Receivables Deficiency shall occur and
continue for two Business Days after the earlier to occur of (i) the date upon
which the Issuer or the Collection Agent obtains knowledge of such Series 2001-1
Allocated Receivables Deficiency and (ii) the date on which written notice of
such Series 2001-1 Allocated Receivables Deficiency shall have been given to the
Issuer or the Collection Agent by the Administrative Agent or any Funding Agent;
(b) a Purchase Termination Event shall have occurred and the Issuer's
obligation to purchase Receivables under the Receivables Purchase Agreement
shall have terminated in accordance with Section 6.1 of the Receivables Purchase
Agreement;
(c) an Event of Default with respect to the Series 2001-1 Investor
Notes shall have occurred and the maturity of the Series 2001-1 Investor Notes
shall have been accelerated in accordance with Section 9.2 of the Base
Indenture;
(d) an Insolvency Event shall occur with respect to Goodyear or the
Issuer;
41
37
(e) the Indenture Trustee shall for any reason cease to have a valid
and perfected first priority security interest in the Collateral, free and clear
of any Adverse Claims, other than Permitted Liens, or any of Goodyear, the
Issuer or any Affiliate of either thereof shall so assert in writing; PROVIDED,
HOWEVER that a Termination Event may not be declared under this paragraph (e) if
there shall be a lien on one or more Purchased Receivables and (x) the Seller
shall repurchase such Purchased Receivables in accordance with Section 2.6 of
the Receivables Purchase Agreement or (y) the Collection Agent shall make
payment of a Collection Agent Indemnification Amount in respect of such
Purchased Receivables in accordance with Section 5.2 of the Collection Agency
Agreement;
(f) there shall have been filed against Goodyear, Dunlop or the Issuer
(i) a notice of federal tax lien from the Internal Revenue Service or (ii) a
notice of lien from the PBGC under Section 412(n) of the Code or Section 302(f)
of ERISA for a failure to make a required installment or other payment to a plan
to which either of such sections applies;
(g) the Seller shall fail to maintain 100% ownership of the Issuer;
(h) the long-term unsecured senior debt of the Seller shall be rated
below BB by S&P or below Ba2 by ▇▇▇▇▇'▇;
(i) any Collection Agent Termination Event shall have been declared in
accordance with the Collection Agency Agreement;
(j) the average Dilution Ratio for the three preceding Settlement
Periods exceeds 4.75%;
(k) the average Default Ratio for the three preceding Settlement
Periods exceeds 1.75%;
(l) the average Delinquency Ratio for the three preceding Settlement
Periods exceeds 7.25%;
(m) the failure on the part of the Issuer to make any payment or
deposit required by the terms of the Base Indenture, this Indenture Supplement
or any other Transaction Document and such failure continues unremedied for two
Business Days;
(n) any material provision of the Base Indenture, this Indenture
Supplement, the Collection Agency Agreement or the Receivables Purchase
Agreement shall cease, for any reason, to be in full force and effect or any of
the Seller, the Collection Agent or the Issuer shall so assert in writing;
(o) the failure on the part of the Issuer to duly to observe or perform
in any material respect any covenants or agreements of the Issuer set forth in
the Base Indenture, this Indenture Supplement or any other Transaction Document
(other than those covered by clause (m) above) and such failure continues for
thirty days after the earlier to occur of (i) the date upon which the Issuer
obtains knowledge of such failure or (ii) the date on which written notice of
such failure, requiring the same to be remedied, shall have been given to the
Issuer by the
42
38
Indenture Trustee, or to the Issuer and the Indenture Trustee by the
Administrative Agent or any Purchaser;
(p) any representation or warranty made by the Issuer in the Base
Indenture or this Indenture Supplement or any information required to be
delivered by the Issuer to the Indenture Trustee shall prove to have been
incorrect in any material respect when made or when delivered which failure, if
capable of being remedied, continues unremedied for 30 days after the earlier to
occur of (i) the date upon which the Issuer obtains knowledge thereof and (ii)
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Issuer by the Indenture Trustee or to the
Issuer and the Indenture Trustee by the Administrative Agent or any Purchaser;
(q) the Seller shall enter into any corporate transaction or merger
whereby it is not the surviving entity and the unsecured senior long-term debt
of the surviving entity is rated less than BBB- by S&P or less than Baa3 by
▇▇▇▇▇'▇ on the effective date of such transaction or merger;
(r) the Seller shall fail to pay any principal of Funded Debt of the
Seller which is then outstanding in a principal amount in excess of $25,000,000
at the scheduled maturity hereof, such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Funded Debt, and such Funded Debt is not paid within ten
Business Days after the earlier of (i) the day on which an Authorized Officer of
the Seller first obtains actual knowledge of such failure or (ii) written notice
of such failure shall have been given to the Seller by the holder or holders of
such Funded Debt; or Funded Debt of the Seller which is then outstanding in a
principal amount in excess of $25,000,000 shall become due and payable prior to
the scheduled maturity thereof as a result of the lawful acceleration thereof
due to the occurrence of an event of default thereunder and such Funded Debt is
not paid, or such acceleration thereof is not rescinded or annulled, within ten
Business Days following such lawful acceleration thereof;
(s) one or more judgments or decrees shall be entered against the
Issuer involving in the aggregate a liability (not paid or fully covered by
insurance) of $25,000 or more and such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 30 days from the
entry thereof; or
(t) any Termination Event with respect to any other Series of
Outstanding Investor Notes shall have been deemed to have occurred or shall have
been declared to have occurred in accordance with the terms of the applicable
Indenture Supplement;
then, in the case of any event described in clause (e) or (f) or clauses (i)
through (t) above, after the applicable grace period, if any, the Indenture
Trustee shall, acting at the direction of the Series 2001-1 Required Investor
Noteholders, declare that a Termination Event has occurred with respect to the
Series 2001-1 Investor Notes. In the case of any event described in clause (h)
above, a Termination Event with respect to the Series 2001-1 Investor Notes will
be deemed to have occurred without notice or other action on the part of the
Indenture Trustee or the Series 2001-1 Investor Noteholders on the thirtieth day
after the occurrence of such event if the Series 2001-1 Required Investor
Noteholders shall not have waived the occurrence of such event prior
43
39
to such day. In the case of any event described in clauses (a) through (d) and
clause (g) above, a Termination Event with respect to the Series 2001-1 Investor
Notes will be deemed to have occurred without notice or other action on the part
of the Indenture Trustee or the Series 2001-1 Investor Noteholders.
ARTICLE 5
OPTIONAL PREPAYMENT
-------------------
The Issuer shall have the option to prepay all outstanding Series
2001-1 Investor Notes at any time by paying an amount equal to the Series 2001-1
Prepayment Amount. The Issuer shall give the Indenture Trustee and the
Administrative Agent at least ten Business Days' prior written notice of the
date on which the Issuer intends to exercise such option to prepay (the
"PREPAYMENT DATE"). Upon receipt of any notice of a Prepayment Date from the
Issuer, the Administrative Agent shall promptly notify the Funding Agent with
respect to each Purchaser thereof. Not later than 11:00 A.M., New York City
time, on such Prepayment Date, the Issuer shall deposit in the Collection
Account for allocation to the Series 2001-1 Collection Subaccount an amount
equal to the Series 2001-1 Prepayment Amount in immediately available funds. The
funds deposited into the Series 2001-1 Collection Subaccount will be paid by the
Indenture Trustee to the Administrative Agent, for the account of the Series
2001-1 Investor Noteholders, on such Prepayment Date. Upon the receipt of funds
from the Indenture Trustee on any Prepayment Date, the Administrative Agent
shall pay to each Funding Agent with respect to a Purchaser, the portion of the
Series 2001-1 Prepayment Amount owing to such Purchaser.
ARTICLE 6
COLLECTION AGENT FEE
--------------------
SECTION 6.1. COLLECTION AGENT FEE. A periodic collection agent fee (the
"Series 2001-1 Collection Agent Fee") shall be payable to the Collection Agent
on each Payment Date for the preceding Settlement Period in an amount equal to
the product of (a) the Collection Agent Fee Rate times (b) the daily average
Series 2001-1 Allocated Net Receivables Balance for such Settlement Period times
(c) the number of days in such Settlement Period divided by 365 (or 366, as
applicable) days. The Series 2001-1 Collection Agent Fee shall be payable to the
Collection Agent on each Payment Date pursuant to Section 5A.4.
ARTICLE 7
CHANGE IN CIRCUMSTANCES
SECTION 7.1. ILLEGALITY. Notwithstanding any other provision herein, if
any Change in Law shall make it unlawful for any Purchaser to make or maintain
any portion of the Purchaser Invested Amount with respect to such Purchaser
allocated to a Eurodollar Tranche and such Purchaser shall notify in writing the
Administrative Agent, the Funding Agent with respect to such Purchaser, the
Indenture Trustee and the Issuer, then the portion of such Purchaser Invested
Amount allocated to Eurodollar Tranches shall thereafter be calculated by
reference to the Alternate Base Rate. If any such change in the method of
calculating interest occurs on a day
44
40
which is not the last day of the Eurodollar Period with respect to any
Eurodollar Tranche, the Issuer shall pay to such Purchaser the amounts, if any,
as may be required pursuant to SECTION 7.4.
SECTION 7.2. INCREASED COSTS.
(a) If any Change in Law (except with respect to Taxes which shall be
governed by SECTION 7.3) shall:
(i) 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 Affected Party (except any
such reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Affected Party or the London interbank
market any other condition affecting the Transaction Documents or the
funding of Eurodollar Tranches by such Affected Party;
and the result of any of the foregoing shall be to increase the cost to such
Affected Party of making, converting into, continuing or maintaining Eurodollar
Tranches (or maintaining its obligation to do so) or to reduce any amount
received or receivable by such Affected Party hereunder or in connection
herewith (whether principal, interest or otherwise), then the Issuer will pay to
such Affected Party such additional amount or amounts as will compensate such
Affected Party for such additional costs incurred or reduction suffered.
(b) If any Affected Party reasonably determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Affected Party's capital or the capital of any corporation
controlling such Affected Party as a consequence of its obligations hereunder to
a level below that which such Affected Party or such corporation could have
achieved but for such Change in Law (taking into consideration such Affected
Party's or such corporation's policies with respect to capital adequacy), then
from time to time, the Issuer shall pay to such Affected Party such additional
amount or amounts as will compensate such Affected Party for any such reduction
suffered.
(c) A certificate of an Affected Party setting forth the amount or
amounts necessary to compensate such Affected Party as specified in subsections
(a) and (b) of this SECTION 7.2 shall be delivered to the Issuer (with a copy to
the Administrative Agent and the Funding Agent with respect to such Affected
Party) and shall be conclusive absent manifest error. The agreements in this
Section shall survive the termination of this Indenture Supplement and the Base
Indenture and the payment of all amounts payable hereunder and thereunder.
(d) Failure or delay on the part of an Affected Party to demand
compensation pursuant to this SECTION 7.2 shall not constitute a waiver of such
Affected Party's right to demand such compensation; PROVIDED that the Issuer
shall not be required to compensate any Affected Party pursuant to this Section
7.2 for any increased costs or reductions incurred more than 30 days prior to
the date that such Affected Party notifies the Issuer of the Change in Law
giving rise to such increased costs or reductions and of such Affected Party's
intention to claim compensation therefor.
45
41
SECTION 7.3. TAXES.
(a) Any and all payments by or on account of any obligation of the
Issuer hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; PROVIDED that if the Issuer shall be required
to deduct any Indemnified Taxes or Other Taxes from such payments, then (i)
subject to SECTION 7.3(c) below, the sum payable shall be increased as necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this SECTION 7.3) the recipient receives an amount
equal to the sum that it would have received had no such deductions been made,
(ii) the Issuer shall make such deductions and (iii) the Issuer shall pay the
full amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Issuer shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Issuer shall indemnify the Administrative Agent, each Funding
Agent, each Program Support Provider and each Purchaser within the later of 10
days after written demand therefor and the Payment Date next following such
demand for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Funding Agent, such Program Support Provider or such
Purchaser on or with respect to any payment by or on account of any obligation
of the Issuer hereunder or under any other Transaction Document (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this SECTION 7.3) and any penalties, interest and
reasonable 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; PROVIDED that no Person shall
be indemnified pursuant to this SECTION 7.3(c) or required to pay additional
amounts under the proviso of SECTION 7.3(a) to the extent that the reason for
such indemnification results from the failure by such Person to comply with the
provisions of SECTION 7.3(e) (g) or (h). A certificate as to the amount of such
payment or liability delivered to the Issuer by the Administrative Agent, any
Funding Agent, any Program Support Provider or any Purchaser shall be conclusive
absent manifest error. Any payments made by the Issuer pursuant to this SECTION
7.3 shall be made solely from funds available therefor pursuant to SECTION 5A.4
and from any other funds otherwise payable to the Issuer pursuant to the Base
Indenture or any Indenture Supplement, shall be non-recourse other than with
respect to such funds, and shall not constitute a claim against the Issuer to
the extent that insufficient funds exist to make such payment. The agreements in
this Section shall survive the termination of this Indenture Supplement and the
Base Indenture and the payment of all amounts payable hereunder and thereunder.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Issuer to a Governmental Authority, the Issuer 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.
(e) The Administrative Agent, each Funding Agent, each Purchaser and
each Program Support Provider, if entitled to an exemption from or reduction of
an Indemnified Tax or Other Tax with respect to payments made under this
Indenture Supplement and the Base
46
42
Indenture shall (to the extent legally able to do so) deliver to the Issuer
(with a copy to the Administrative Agent) such properly completed and executed
documentation prescribed by applicable law and reasonably requested by the
Issuer on the later of (i) 20 Business Days after such request is made and the
applicable forms are provided to the Administrative Agent, such Funding Agent,
such Purchaser or such Program Support Provider or (ii) 20 Business Days before
prescribed by applicable law as will permit such payments to be made without
withholding or with an exemption from or reduction of Indemnified Taxes or Other
Taxes.
(f) If the Administrative Agent, any Funding Agent, any Program Support
Provider or any Purchaser receives a refund solely in respect of Indemnified
Taxes or Other Taxes, it shall pay over such refund to the Issuer to the extent
that it has already received indemnity payments or additional amounts pursuant
to this SECTION 7.3 with respect to such Indemnified Taxes or Other Taxes giving
rise to the refund, net of all out-of-pocket expenses and without interest
(other than interest paid by the relevant Governmental Authority with respect to
such refund); PROVIDED, HOWEVER, that the Issuer shall, upon request of the
Administrative Agent, such Funding Agent, such Program Support Provider or such
Purchaser, repay such refund (plus interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent, such Funding
Agent, such Program Support Provider or such Purchaser if the Administrative
Agent, such Funding Agent, such Program Support Provider or such Purchaser is
required to repay such refund to such Governmental Authority. Nothing contained
herein shall require the Administrative Agent, any Funding Agent, any Program
Support Provider or any Purchaser to make its tax returns (or any other
information relating to its taxes which it deems confidential) available to the
Issuer or any other Person.
(g) If any Purchaser is an entity that is not incorporated or organized
under the laws of the United States of America or a state thereof or the
District of Columbia, such Purchaser shall:
(i) upon or prior to becoming a party to any Transaction
Document, deliver to the Issuer and the Administrative Agent two duly
completed copies of IRS Form W-8BEN or Form W-8ECI, or successor
applicable forms, as the case may be;
(ii) deliver to the Issuer and the Administrative Agent two
(2) further copies of any such form or certification on or before the
date that any such form or certification expires or becomes obsolete
and after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Issuer; and
(iii) obtain such extensions of time for filing and completing
such forms or certifications as may be reasonably be requested by the
Issuer and the Administrative Agent;
unless, in any such case, any change in treaty, law or regulation has occurred
after the Series 2001-1 Closing Date (or, if later, the date such Purchaser
becomes a party to any Transaction Document) and prior to the date on which any
such delivery would otherwise be required which renders the relevant form
inapplicable or which would prevent such Purchaser from duly
47
43
completing and delivering the relevant form with respect to it, and such
Purchaser so advises the Issuer and the Administrative Agent.
(h) If a beneficial or equity owner of a Purchaser (instead of the
Purchaser itself) is required under United States federal income tax law or the
terms of a relevant treaty to provide IRS Form W-8BEN or IRS Form W-8ECI or any
successor applicable forms, as the case may be, in order to claim an exemption
from withholding of United Stated federal income taxes or backup withholding
taxes, then each such beneficial owner or equity owner shall be considered to be
a Purchaser for purposes of SECTION 7.3 (g).
SECTION 7.4. BREAK FUNDING PAYMENTS. The Issuer agrees to indemnify
each Purchaser and to hold each Purchaser harmless from any loss or expense
which such Purchaser may sustain or incur as a consequence of (a) default by the
Issuer in making a borrowing of, conversion into or continuation of a CP Tranche
or a Eurodollar Tranche after the Issuer has given irrevocable notice requesting
the same in accordance with the provisions of this Indenture Supplement, or (b)
default by the Issuer in making any prepayment in connection with a Decrease
after the Issuer has given irrevocable notice thereof in accordance with the
provisions of SECTION 2.5 or (c) the making of a prepayment of a CP Tranche or a
Eurodollar Tranche (including, without limitation, any Decrease) prior to the
termination of the CP Rate Period for such CP Tranche or the Eurodollar Period
for such Eurodollar Tranche, as the case may be. Such indemnification shall
include an amount determined by the Funding Agent with respect to such Purchaser
and shall equal either (x) the excess, if any, of (i) such Purchaser's cost of
funding the amount so prepaid or not so borrowed, converted or continued, for
the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of the CP Rate Period or the Eurodollar
Period (or in the case of a failure to borrow, convert or continue, the CP Rate
Period or the Eurodollar Period that would have commenced on the date of such
prepayment or of such failure), as the case may be, over (ii) the amount of
interest earned by such Purchaser upon redeployment of an amount of funds equal
to the amount prepaid or not borrowed, converted or continued for a comparable
period or (y) if such Purchaser is able to terminate the funding source before
its scheduled maturity, any costs associated with such termination; provided
that any payments made by the Issuer pursuant to this subsection shall be made
solely from funds available therefor pursuant to SECTION 5A.4 and from any other
funds otherwise payable to the Issuer pursuant to the Base Indenture or any
Indenture Supplement, shall be non-recourse other than with respect to such
funds, and shall not constitute a claim against the Issuer to the extent that
such funds are insufficient to make such payment. This covenant shall survive
the termination of this Indenture Supplement and the Base Indenture and the
payment of all amounts payable hereunder and thereunder. A certificate as to any
additional amounts payable pursuant to the foregoing sentence submitted by any
Funding Agent on behalf of a Purchaser to the Issuer shall be conclusive absent
manifest error.
SECTION 7.5. ALTERNATE RATE OF INTEREST. If prior to the commencement
of any Eurodollar Period:
(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 Eurodollar Period, or
48
44
(b) the Administrative Agent is advised by any Purchaser that the
Adjusted LIBO Rate for such Eurodollar Period will not adequately and fairly
reflect the cost to such Purchaser of making or maintaining the Eurodollar
Tranches during such Eurodollar Period,
then the Administrative Agent shall promptly give telecopy or telephonic notice
thereof to the Issuer and the Indenture Trustee, whereupon until the
Administrative Agent notifies the Issuer and the Indenture Trustee that the
circumstances giving rise to such notice no longer exist, the Available APA Bank
Funding Amount with respect to any Purchaser (in the case of clause (a) above)
or with respect to such Purchaser (in the case of clause (b) above) shall not be
allocated to any Eurodollar Tranche.
SECTION 7.6. MITIGATION OBLIGATIONS. If an Affected Party requests
compensation under SECTION 7.2, or if the Issuer is required to pay any
additional amount to any Purchaser or any Governmental Authority for the account
of any Purchaser pursuant to SECTION 7.3, then, upon written notice from the
Issuer, such Affected Party or Purchaser, as the case may be, shall use
commercially reasonable efforts to designate a different lending office for
funding or booking its obligations hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, which
pays a price for such assignment which is acceptable to such Purchaser and its
assignee, in the judgment of such Affected Party or Purchaser, if such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to SECTION 7.2 or 7.3, as the case may be, in the future and (ii) would not
subject such Affected Party or Purchaser to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Affected Party or Purchaser. The
Issuer hereby agrees to pay all reasonable costs and expenses incurred by such
Affected Party or Purchaser in connection with any such designation or
assignment.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES, COVENANTS
-----------------------------------------
SECTION 8.1. REPRESENTATIONS AND WARRANTIES OF THE ISSUER AND GOODYEAR.
The Issuer and Goodyear each hereby represents and warrants to the Indenture
Trustee, the Administrative Agent, each Funding Agent and each Purchaser that:
(a) each and every of their respective representations and warranties
contained in the Transaction Documents is true and correct as of the Series
2001-1 Closing Date and true and correct in all material respects as of the
Series 2001-1 Initial Funding Date and as of the date of each Increase;
(b) each of the Series 2001-1 Investor Notes has been duly authorized
and executed by the Issuer and when duly authenticated by the Indenture Trustee
and delivered to the Series 2001-1 Investor Noteholders in accordance with the
terms of this Indenture Supplement will constitute legal, valid and binding
obligations of the Issuer enforceable in accordance with their terms, except as
enforceability thereof may be limited by bankruptcy, insolvency, or other
similar laws relating to or affecting generally the enforcement of creditors'
rights or by general equitable principles; and
49
45
(c) as of the Series 2001-1 Closing Date, they have not engaged, in
connection with the offering of the Series 2001-1 Investor Notes, in any form of
general solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act.
SECTION 8.2. COVENANTS OF THE ISSUER AND GOODYEAR. The Issuer and
Goodyear hereby agree, in addition to their obligations hereunder, that:
(a) they shall observe in all material respects each and every of their
respective covenants (both affirmative and negative) contained in the Base
Indenture and all other Transaction Documents to which each is a party;
(b) they shall afford each Funding Agent with respect to a Purchaser,
the Indenture Trustee or any representatives of any such Funding Agent or the
Indenture Trustee access to all records relating to the Receivables at any
reasonable time during regular business hours, upon reasonable prior notice (and
with one Business Day's prior notice if a Termination Event shall have been
deemed to have occurred or shall have been declared to have occurred), for
purposes of inspection and shall permit such Funding Agent, the Indenture
Trustee or any representative of such Funding Agent or the Indenture Trustee to
visit any of the Issuer's or Goodyear's, as the case may be, offices or
properties during regular business hours and as often as may reasonably be
desired to discuss the business, operations, properties, financial and other
conditions of the Issuer or Goodyear with their respective officers and
employees and, with reasonable prior notice to Goodyear, together with Goodyear,
with their independent certified public accountants;
(c) they shall promptly provide such additional financial and other
information with respect to the Transaction Documents, the Issuer, Goodyear,
Dunlop or the Receivables as the Administrative Agent or any Funding Agent may
from time to time reasonably request; and
(d) they shall not take any action, nor permit Dunlop to take any
action, requiring the satisfaction of the Rating Agency Condition pursuant to
any Transaction Document, other than the issuance of any series of Investor
Notes, without the prior written consent of the Series 2001-1 Required Investor
Noteholders.
SECTION 8.3. COVENANTS OF THE COLLECTION AGENT. The Collection Agent
hereby agrees that:
(a) it shall provide to the Indenture Trustee, the Administrative Agent
and each Funding Agent, on the second Business Day prior to each Payment Date, a
Monthly Settlement Statement, substantially in the form of EXHIBIT C, setting
forth as of the last day of the most recent Settlement Period and for such
Settlement Period the information set forth therein;
(b) it shall provide to the Indenture Trustee, the Administrative Agent
and each Funding Agent, on each Weekly Reporting Date after the occurrence and
during the continuance of a Downgrade Event, a Weekly Report, substantially in
the form of EXHIBIT D, setting forth as of the last day of the most recent
calendar week and for such calendar week the information set forth therein;
PROVIDED, HOWEVER that the Weekly Reports delivered during the first 60 days
following the occurrence of the first Downgrade Event may contain a calculation
of
50
46
the Net Receivables Balance that uses the amounts contained in clause (ii) of
the definition thereof as of the last day of the most recent calendar month and
that recognizes Receivables as Delinquent Receivables or Defaulted Receivables
only if they were Delinquent Receivables or Defaulted Receivables, as the case
may be, as of the last day of the most recent calendar month; and
(c) it shall provide to the Administrative Agent simultaneously with
delivery to the Indenture Trustee, all reports, notices, certificates,
statements and other documents required to be delivered to the Indenture Trustee
pursuant to the Base Indenture and the other Transaction Documents, and furnish
to the Administrative Agent promptly after receipt thereof a copy of each
notice, demand or other material communication (excluding routine
communications) received by or on behalf of the Issuer or the Collection Agent
with respect to the Transaction Documents. The Administrative Agent shall
distribute to the Funding Agents copies of all reports, notices, certificates,
statements and other documents delivered to it pursuant to this SECTION 8.3(b).
SECTION 8.4. OBLIGATIONS UNAFFECTED. The obligations of the Issuer and
the Collection Agent to the Funding Agent and the Purchasers under this
Indenture Supplement shall not be affected by reason of any invalidity,
illegality or irregularity of any of the Receivables.
SECTION 8.5. DESIGNATION OF ELIGIBLE SPECIAL OBLIGORS AND ADDITIONAL
ELIGIBILITY CRITERIA. The Issuer, the Collection Agent, the Indenture Trustee,
each of the CP Conduit Purchasers, each of the APA Banks, each of the Funding
Agents and the Administrative Agent hereby agree that:
(a) TBC Corporation and ▇▇▇▇▇▇▇ Tire Group are hereby designated as
Eligible Special Obligors each with a Concentration Factor of 5%;
(b) the Issuer, with the prior written consent of each Funding Agent,
may designate any other Obligor as an Eligible Special Obligor hereunder by
giving written notice of such designation and the applicable Concentration
Factor, together with evidence of the prior written consent of the Funding
Agents to such designation, to the Indenture Trustee and the Collection Agent;
(c) TBC Corporation, ▇▇▇▇▇▇▇ Tire Group and any Obligor designated as
an Eligible Special Obligor in accordance with clause (b) of this Section 8.5
shall remain designated as an Eligible Special Obligor hereunder only until the
date no less than 30 days after the date of any written notice given by a
Funding Agent to the Issuer, the Collection Agent and the Indenture Trustee to
the effect that, based on such Funding Agent's reasonable credit judgment, such
Obligor shall no longer be designated as an Eligible Special Obligor hereunder;
and
(d) any Funding Agent may request the Indenture Trustee in writing to
give the Issuer and the Collection Agent written notice of additional criteria
and requirements mandated by either of the Rating Agencies with respect to trade
receivable securitizations funded by multi-seller commercial paper conduits that
each Receivable will be required to satisfy to be considered an "Eligible
Receivable" after a date no less than 60 days after the date of such notice set
forth in such notice.
51
47
ARTICLE 9
CONDITIONS PRECEDENT
--------------------
SECTION 9.1. CONDITIONS PRECEDENT TO EFFECTIVENESS OF INDENTURE
SUPPLEMENT. This Indenture Supplement shall become effective on the date (the
"Effective Date") on which the following conditions precedent have been
satisfied:
(a) DOCUMENTS. The Administrative Agent shall have received an original
copy for each CP Conduit Purchaser and the Funding Agent and the APA Bank with
respect to such CP Conduit Purchaser, each executed and delivered in form and
substance satisfactory to it of (i) the Base Indenture, executed by a duly
authorized officer of each of the Issuer and the Indenture Trustee, (ii) the
Dunlop Receivables Purchase Agreement, executed by a duly authorized officer of
each of Dunlop and the Seller, (iii) the Receivables Purchase Agreement,
executed by a duly authorized officer of each of the Seller and the Issuer, (iv)
this Indenture Supplement, executed by a duly authorized officer of each of the
Issuer, the Collection Agent, the Indenture Trustee, the Administrative Agent,
the Funding Agents, the CP Conduit Purchasers and the APA Banks and (v) the
Collection Agency Agreement, executed by a duly authorized officer of each of
the Issuer, the Collection Agent and the Indenture Trustee.
(b) CORPORATE DOCUMENTS; PROCEEDINGS OF THE ISSUER, DUNLOP AND
GOODYEAR. The Administrative Agent shall have received, with a copy for each CP
Conduit Purchaser and the Funding Agent and the APA Bank with respect to such CP
Conduit Purchaser, from the Issuer, Goodyear and Dunlop true and complete copies
of:
(i) to the extent applicable, the articles of incorporation or
certificate of formation, including all amendments thereto, of such
Person, certified as of a recent date by the Secretary of State or
other appropriate authority of the state of incorporation or
organization, as the case may be, and a certificate of compliance, of
status or of good standing, as and to the extent applicable, of each
such Person as of a recent date, from the Secretary of State or other
appropriate authority of such jurisdiction;
(ii) a certificate of the Secretary or an Assistant Secretary
of each of the Issuer, Goodyear and Dunlop, dated the Effective Date
and certifying (A) in the case of Dunlop, that attached thereto is a
true and complete copy of the limited liability company agreement of
Dunlop, as in effect on the Effective Date and at all times since a
date prior to the date of the resolutions described in clause (B)
below, (B) that attached thereto is a true and complete copy of the
resolutions, in form and substance reasonably satisfactory to the
Funding Agent, of the Board of Directors of such Person or committees
thereof authorizing the execution, delivery and performance of the
Transaction Documents to which it is a party and the transactions
contemplated thereby, and that such resolutions have not been amended,
modified, revoked or rescinded and are in full force and effect, (C)
that the certificate of incorporation or certificate of formation of
such Person has not been amended since the date of the last amendment
thereto shown on the certificate of good standing (or its equivalent)
furnished pursuant to clause (i)
52
48
above and (D) as to the incumbency and specimen signature of each
officer or authorized signatory executing any Transaction Documents or
any other document delivered in connection herewith or therewith on
behalf of such Person;
(iii) a certificate of another officer as to the incumbency
and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to clause (ii) above.
(c) GOOD STANDING CERTIFICATES. The Administrative Agent shall have
received copies of certificates of compliance, of status or of good standing,
dated as of a recent date, from the Secretary of State or other appropriate
authority of such jurisdiction, with respect to the Issuer, Goodyear and Dunlop
in each State where the ownership, lease or operation of property or the conduct
of business requires it to qualify as a foreign corporation, except where the
failure to so qualify would not have a material adverse effect on the business,
operations, properties or condition (financial or otherwise) of the Issuer,
Goodyear or Dunlop, as the case may be.
(d) CONSENTS, LICENSES, APPROVALS, ETC. The Administrative Agent shall
have received, with a counterpart for each CP Conduit Purchaser and the Funding
Agent and the APA Bank with respect to such CP Conduit Purchaser, certificates
dated the date hereof of an Authorized Officer of the Issuer, Goodyear and
Dunlop stating either (i) that all material consents, licenses and approvals
required in connection with the execution, delivery and performance by the
Issuer, Goodyear and Dunlop of the Transaction Documents to which it is a party
and the validity and enforceability of the Transaction Documents to which it is
a party against the Issuer, Goodyear and Dunlop, respectively are in full force
and effect or (ii) that no such consents, licenses or approvals are so required.
(e) NO LITIGATION. The Administrative Agent shall have received
confirmation that, except as set forth on Schedule II, as to which no
representation or warranty is made, there is no pending or, to their knowledge
after due inquiry, threatened action or proceeding affecting the Issuer,
Goodyear or Dunlop or any Subsidiaries of Goodyear before any Governmental
Authority that could reasonably be expected to have a Material Adverse Effect.
(f) LIEN SEARCHES. The Administrative Agent shall have received a
written search report listing all effective financing statements that name the
Issuer, Goodyear or Dunlop as debtor or assignor and that are filed in the
jurisdictions in which filings were made pursuant to paragraph (h) below and in
any other jurisdictions that the Administrative Agent determines are necessary
or appropriate, together with copies of such financing statements (none of
which, except for those described in paragraph (h) below shall cover any portion
of the Collateral), and tax and judgment lien searches showing no such liens
that are not permitted by the Transaction Documents.
(g) UCC CERTIFICATE. The Administrative Agent shall have received from
each of the Issuer, Goodyear and Dunlop a certificate, substantially in the form
of EXHIBIT E completed in a manner satisfactory to the Administrative Agent,
duly executed by an Authorized Officer of each of the Issuer, Goodyear and
Dunlop and dated the Series 2001-1 Closing Date.
53
49
(h) FILINGS, REGISTRATIONS AND RECORDINGS. Any documents (including,
without limitation, financing statements) required to be filed in order (i) to
create, in favor of the Indenture Trustee, a perfected security interest in the
Collateral with respect to which a security interest may be perfected by a
filing under the UCC or other comparable statute, (ii) to create in favor of the
Issuer a perfected ownership/security interest in the Receivables and the
Related Property with respect thereto and the Seller's rights under the Dunlop
Receivables Purchase Agreement under the Receivables Purchase Agreement with
respect to which an ownership/security interest may be perfected by filing under
the UCC or other comparable statute and (iii) to create in favor of the Seller a
perfected ownership/security interest in the Dunlop Receivables and the Related
Property with respect thereto under the Dunlop Receivables Purchase Agreement
with respect to which a ownership/security interest may be perfected by filing
under the UCC or other comparable statute, shall, in each case, have been
properly prepared and executed for immediate filing in each office in each
jurisdiction listed in the UCC Certificate referred to in paragraph (g) above,
and such filings are the only filings required in order to perfect the security
interest of the Indenture Trustee in the Collateral, the transfer of the
Receivables and the Related Property with respect thereto to the Issuer pursuant
to the Receivables Purchase Agreement and the transfer of the Dunlop Receivables
and the Related Property with respect thereto to the Seller pursuant to the
Dunlop Receivables Purchase Agreement, as the case may be. The Administrative
Agent shall have received evidence reasonably satisfactory to it of each such
filing, registration or recordation and reasonably satisfactory evidence of the
payment of any necessary fee, tax or expense relating thereto.
(i) TERMINATION STATEMENTS. The Administrative Agent shall have
received executed copies of proper termination statements (Form UCC-3), if any,
necessary to release all security interests and other rights of any Person in
the Receivables and the Related Property previously granted by Goodyear or
Dunlop.
(j) LOCK-BOX AGREEMENTS. The Administrative Agent shall have received
executed copies of the Lock-Box Agreements relating to each of the Lock-Box
Banks and the Lock-Box Accounts.
(k) LEGAL OPINIONS. The Administrative Agent shall have received, with
a counterpart addressed to each CP Conduit Purchaser and the Funding Agent, the
Program Support Provider and the APA Bank with respect to such CP Conduit
Purchaser and the Indenture Trustee, opinions of counsel to the Issuer, Goodyear
and Dunlop, dated the Series 2001-1 Closing Date addressing due organization of
the Issuer, Goodyear and Dunlop, the due authorization, execution and delivery
of the Transaction Documents, the enforceability of the Transaction Documents,
the "true sale" of the Dunlop Receivables and the Related Property with respect
thereto by Dunlop to the Seller, the "true sale" of the Receivables and the
Related Property with respect thereto by the Seller to the Issuer, the
"non-substantive consolidation" of the Issuer with Goodyear or any Affiliate of
Goodyear, the creation, perfection and priority of security interests in the
Collateral, the creation, perfection and priority of the ownership/security
interests in the Seller's interests in the Receivables and the Related Property
with respect thereto under the Receivables Purchase Agreement, creation,
perfection and priority of the ownership/security interests in Dunlop's
interests in the Dunlop Receivables and the Related Property with respect
thereto under the Dunlop Receivables Purchase Agreement and other
54
50
matters, in each case, in form and substance reasonably acceptable to the
addressees thereof and their counsel.
(l) INDENTURE TRUSTEE'S COUNSEL OPINION. The Administrative Agent shall
have received an opinion of counsel to the Indenture Trustee , with a
counterpart addressed to each CP Conduit Purchaser and the Funding Agent, the
Program Support Provider and the APA Bank with respect to such CP Conduit
Purchaser, as to the due authorization, execution and delivery by the Indenture
Trustee of the Base Indenture and this Indenture Supplement and the due
authentication and delivery by the Indenture Trustee of the Series 2001-1
Investor Notes.
(m) FEES AND EXPENSES. Each Funding Agent with respect to a CP Conduit
Purchaser shall have received payment of all fees, out-of-pocket expenses and
other amounts due and payable to such CP Conduit Purchaser or the APA Bank with
respect to such CP Conduit Purchaser on or before the Effective Date.
(n) ESTABLISHMENT OF ACCOUNTS. The Administrative Agent shall have
received evidence reasonably satisfactory to it that the Collection Account
(including the Series 2001-1 Subaccounts) shall have been established in
accordance with the terms and provisions of the Indenture.
(o) MATERIAL ADVERSE CHANGE. No material adverse change shall have
occurred with respect to the business, operations, property or condition
(financial or otherwise) of Goodyear and its Subsidiaries taken as a whole since
December 31, 2000.
(p) NO POTENTIAL TERMINATION EVENT OR TERMINATION EVENT. The
Administrative Agent shall have received a certificate of an Authorized Officer
of the Collection Agent dated the Effective Date to the effect that no Potential
Termination Event or Termination Event has occurred and is continuing.
(q) RATINGS CONFIRMATIONS. The Funding Agent with respect to each CP
Conduit Purchaser shall have received written confirmation, to the extent
required, from each of S&P and Moody's that the execution, delivery and
performance by such CP Conduit Purchaser of its obligations hereunder will not
result in a downgrade or withdrawal of such rating agency's current rating on
the Commercial Paper issued by or on behalf of such CP Conduit Purchaser.
(r) CONSENT TO SERVICE OF PROCESS. The Administrative Agent shall have
received an instrument confirming acceptance of the appointment by the Issuer of
CT Corporation located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as the
authorized agent upon whom process may be served in any action arising out of or
based upon this Indenture Supplement or any other Transaction Document to which
the Issuer is a party that may be instituted in the United States District Court
for the Southern District of New York.
(s) PROCEEDINGS. All corporate and other proceedings and all other
documents and legal matters in connection with the transactions contemplated by
the Transaction Documents shall be satisfactory in form and substance to the
Administrative Agent and its counsel.
55
51
(t) SPARC MEMBERSHIP. The Issuer shall have executed and delivered to
Canadian Imperial Bank of Commerce, as Funding Agent, a membership agreement
for, and become a member of, Special Purpose Accounts Receivables Cooperative
Corporation.
ARTICLE 10
THE ADMINISTRATIVE AGENT
------------------------
SECTION 10.1. APPOINTMENT. Each of the CP Conduit Purchasers, the APA
Banks and the Funding Agents hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Person under this Indenture Supplement
and irrevocably authorizes the Administrative Agent, in such capacity, to take
such action on its behalf under the provisions of this Indenture Supplement and
to exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Indenture Supplement, together
with such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Indenture Supplement, the
Administrative Agent shall not have any duties or responsibilities except those
expressly set forth herein, or any fiduciary relationship with any CP Conduit
Purchaser, any APA Bank or any Funding Agent, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Indenture Supplement or otherwise exist against the Administrative
Agent. In performing its functions and duties hereunder, the Administrative
Agent shall act solely as the agent of the CP Conduit Purchasers, the APA Banks
and the Funding Agents, and the Administrative Agent does not assume, nor shall
be deemed to have assumed, any obligation or relationship of trust or agency
with or for any such Person.
SECTION 10.2. DELEGATION OF DUTIES. The Administrative Agent may
execute any of its duties under this Indenture Supplement by or through agents
or attorneys-in-fact and shall be entitled to advice of counsel (who may be
counsel for the Issuer or the Collection Agent), independent public accountants
and other experts selected by it concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
SECTION 10.3. EXCULPATORY PROVISIONS. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with the Base Indenture or
this Indenture Supplement (x) with the consent or at the request of the
Purchasers or (y) in the absence of its own gross negligence or willful
misconduct or (ii) responsible in any manner to any of the CP Conduit
Purchasers, the APA Banks or the Funding Agents for any recitals, statements,
representations or warranties made by the Issuer, the Collection Agent or any
officer thereof contained in this Indenture Supplement or any other Transaction
Document or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Indenture Supplement or any other Transaction Document or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Indenture Supplement, any other Transaction Document or the
Receivables or for any failure of any of the Issuer, the Collection Agent, the
Seller or Dunlop to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any CP Conduit
Purchaser, any APA
56
52
Bank or any Funding Agent to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Indenture Supplement, any other Transaction Document or the Receivables or to
inspect the properties, books or records of the Issuer, the Collection Agent,
the Seller or Dunlop.
SECTION 10.4. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Issuer or the
Collection Agent), independent accountants and other experts selected by the
Administrative Agent and shall not be liable for any action taken or omitted to
be taken by it in good faith in accordance with the advice of such counsel,
accountants or experts. The Administrative Agent may deem and treat the
registered holder of any Series 2001-1 Investor Note as the owner thereof for
all purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the Administrative Agent. The Administrative
Agent shall be fully justified in failing or refusing to take any action under
this Indenture Supplement or any other Transaction Document unless it shall
first receive such advice or concurrence of the Funding Agents, on behalf of the
Purchasers, as it deems appropriate or it shall first be indemnified to its
satisfaction by the Funding Agents against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Indenture Supplement and the
other Transaction Documents in accordance with a request of the Series 2001-1
Required Investor Noteholders (unless, in the case of any action relating to the
giving of consent hereunder, the giving of such consent requires the consent of
all Series 2001-1 Investor Noteholders), and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the CP Conduit
Purchasers, the APA Banks and the Funding Agents.
SECTION 10.5. NOTICE OF COLLECTION AGENT TERMINATION EVENT OR
TERMINATION EVENT OR POTENTIAL TERMINATION EVENT. The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of any Termination
Event or Potential Termination Event, any Event of Default or Default, any
Purchase Termination Event, any Potential Purchase Termination Event, any
Collection Agent Termination Event or any Potential Collection Agent Termination
Event unless the Administrative Agent has received notice from a CP Conduit
Purchaser, an APA Bank, a Funding Agent, the Issuer, the Collection Agent, the
Seller or Dunlop referring to this Indenture Supplement, describing such
Termination Event or Potential Termination Event, Event of Default or Default,
Purchase Termination Event or Potential Purchase Termination Event or Collection
Agent Termination Event or Potential Collection Agent Termination Event and
stating that such notice is a "notice of a Termination Event or Potential
Termination Event," "notice of an Event of Default or Default," "notice of a
Purchase Termination Event or Potential Purchase Termination Event" or "notice
of a Collection Agent Termination Event or Potential Collection Agent
Termination Event", as the case may be. In the event that the Administrative
Agent receives such a notice, the Administrative Agent shall give notice thereof
to the Funding Agents, the Indenture Trustee, the Issuer and the Collection
Agent. The Administrative Agent shall take such action with respect to such
event as shall be reasonably directed by the Series 2001-1 Required Investor
Noteholders, PROVIDED that unless and until the
57
53
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such event as it shall deem advisable in the
best interests of the Purchasers.
SECTION 10.6. NON-RELIANCE ON THE ADMINISTRATIVE AGENT AND OTHER
PURCHASERS. Each of the CP Conduit Purchasers, the APA Banks and the Funding
Agents expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Issuer, shall be deemed to constitute any representation or warranty by the
Administrative Agent to any such Person. Each of the CP Conduit Purchasers, the
APA Banks and the Funding Agents represents to the Administrative Agent that it
has, independently and without reliance upon the Administrative Agent or any
other CP Conduit Purchaser, APA Bank or Funding Agent and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, financial and
other condition and creditworthiness of the Issuer, the Collection Agent, the
Seller and Dunlop and made its own decision to enter into this Indenture
Supplement. Each of the CP Conduit Purchasers, the APA Banks and the Funding
Agents also represents that it will, independently and without reliance upon the
Administrative Agent or any other CP Conduit Purchaser, APA Bank or Funding
Agent, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Indenture Supplement and the other
Transaction Documents, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Issuer, the Collection Agent, the Seller
and Dunlop. Except for notices, reports and other documents expressly required
to be furnished to the Funding Agents by the Administrative Agent hereunder, the
Administrative Agent shall have no duty or responsibility to provide any CP
Conduit Purchaser, any APA Bank or any Funding Agent with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Issuer, the Collection
Agent, the Seller or Dunlop which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
SECTION 10.7. INDEMNIFICATION. Each of the APA Banks and the Funding
Agents agrees to indemnify the Administrative Agent in its capacity as such (to
the extent not reimbursed by the Issuer and the Collection Agent and without
limiting the obligation of the Issuer and the Collection Agent to do so), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time be imposed on, incurred by or asserted against
the Administrative Agent in any way relating to or arising out of this Indenture
Supplement, any of the other Transaction Documents or any documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; PROVIDED that no APA Bank or Funding Agent
shall be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the Administrative Agent's gross negligence
or willful
58
54
misconduct. The agreements in this Section shall survive the payment of all
amounts payable hereunder.
SECTION 10.8. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Issuer, the Collection
Agent or any of their Affiliates as though the Administrative Agent were not the
Administrative Agent hereunder. With respect to any Series 2001-1 Investor Note
held by the Administrative Agent, the Administrative Agent shall have the same
rights and powers under this Indenture Supplement and the other Transaction
Documents as any Purchaser and may exercise the same as though it were not the
Administrative Agent, and the terms "APA Bank," and "Purchaser" shall include
the Administrative Agent in its individual capacity.
SECTION 10.9. RESIGNATION OF ADMINISTRATIVE AGENT; SUCCESSOR
ADMINISTRATIVE AGENT. The Administrative Agent may resign as Administrative
Agent at any time by giving 30 days' notice to the Funding Agents, the Indenture
Trustee, the Issuer and the Collection Agent. The Administrative Agent may be
removed at any time by a resolution of the Series 2001-1 Required Investor
Noteholders, removing the Administrative Agent and appointing from among the
Funding Agents a successor administrative agent, which successor administrative
agent shall be approved by the Issuer and the Collection Agent (which approval
shall not be unreasonably withheld), delivered to the Administrative Agent, the
Indenture Trustee and the Collection Agent. If Chase shall resign as
Administrative Agent under this Indenture Supplement, then the Series 2001-1
Required Investor Noteholders shall promptly appoint a successor administrative
agent from among the Funding Agents, which successor administrative agent shall
be approved by the Issuer and the Collection Agent (which approval shall not be
unreasonably withheld). If no successor administrative agent is appointed prior
to the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Funding Agents, the
Issuer and the Collection Agent, a successor agent from among the Funding
Agents. If no successor administrative agent has accepted appointment as
Administrative Agent by the date which is 30 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Collection Agent shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Series 2001-1
Required Investor Noteholders appoint a successor agent as provided for above.
Effective upon the appointment of a successor administrative agent, such
successor administrative agent shall succeed to the rights, powers and duties of
the Administrative Agent, and the term "Administrative Agent" shall mean such
successor administrative agent effective upon such appointment and approval, and
the former Administrative Agent's rights, powers and duties as Administrative
Agent shall be terminated, without any other or further act or deed on the part
of such former Administrative Agent or any of the parties to this Indenture
Supplement. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Article 10 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Indenture Supplement.
59
55
ARTICLE 11
MISCELLANEOUS
-------------
SECTION 11.1. RATIFICATION OF INDENTURE. As Indenture Supplemented by
this Indenture Supplement, the Indenture is in all respects ratified and
confirmed and the Indenture as so Indenture Supplemented by this Indenture
Supplement shall be read, taken and construed as one and the same instrument.
SECTION 11.2. GOVERNING LAW. THIS INDENTURE SUPPLEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.3. FURTHER ASSURANCES. Each of the Issuer, the Collection
Agent and the Indenture Trustee agrees, from time to time, to do and perform any
and all acts and to execute any and all further instruments required or
reasonably requested by the Administrative Agent more fully to effect the
purposes of this Indenture Supplement and the sale of the Series 2001-1 Investor
Notes hereunder, including, without limitation, in the case of the Issuer and
the Collection Agent, the execution of any financing or registration statements
or similar documents or notices or continuation statements relating to the
Collateral for filing or registration under the provisions of the UCC or similar
legislation of any applicable jurisdiction.
SECTION 11.4. PAYMENTS. Each payment to be made hereunder shall be made
on the required payment date in lawful money of the United States and in
immediately available funds, if to a Purchaser, at the office of the Funding
Agent with respect to such Purchaser set forth in SECTION 11.9.
SECTION 11.5. COSTS AND EXPENSES. The Collection Agent agrees to pay on
demand all reasonable out-of-pocket costs and expenses of the Administrative
Agent (including, without limitation, reasonable fees and disbursements of
counsel to the Administrative Agent) and of each Purchaser (including in
connection with the preparation, execution and delivery of this Indenture
Supplement the reasonable fees and disbursements of one counsel for all such
Purchasers) in connection with (i) the preparation, execution, delivery and
administration (including periodic auditing and any requested amendments,
waivers or consents) of this Indenture Supplement, the Indenture and the other
Transaction Documents and amendments or waivers of any such documents and (ii)
the enforcement by the Administrative Agent or any Funding Agent of the
obligations and liabilities of the Issuer, the Collection Agent, the Seller and
Dunlop under the Indenture, this Indenture Supplement, the other Transaction
Documents or any related document and all costs and expenses, if any (including
reasonable counsel fees and expenses), in connection with the enforcement of
this Agreement and the other Transaction Documents.
SECTION 11.6. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Indenture Trustee, the
Administrative Agent, any Funding Agent, any CP Conduit Purchaser or any APA
Bank, any right, remedy, power or
60
56
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
SECTION 11.7. AMENDMENTS. (a) This Indenture Supplement may be amended
in writing from time to time by the Collection Agent, the Issuer and the
Indenture Trustee, with the consent of the Series 2001-1 Required Investor
Noteholders; provided that, notwithstanding the foregoing, without the consent
of each CP Conduit Purchaser and each APA Bank, no such amendment shall:
(i) reduce the percentage of Series 2001-1 Investor
Noteholders whose consent is required to take any particular action
hereunder;
(ii) (A) extend the due date for, or reduce the amount of any
scheduled repayment or prepayment of principal of or interest on any
Series 2001-1 Investor Note (or reduce the principal amount of or rate
of interest on any Series 2001-1 Investor Note); (B) extend the due
date for, or reduce the amount of ,any fees or other amounts payable
hereunder; (C) change the calculation of any Increased Costs or other
amounts payable by the Issuer to the CP Conduit Purchasers or APA Banks
hereunder; (D) modify SECTION 5A.4; (E) approve the assignment or
transfer by the Issuer of any of its rights or obligations hereunder or
under any other Transaction Document to which it is a party except
pursuant to the express terms hereof or thereof; (F) release any
obligor under any Transaction Document to which it is a party except
pursuant to the express terms of such Transaction Document; (G) amend
or otherwise modify any Termination Event or any defined term referred
to therein; (H) amend or otherwise modify the Series 2001-1 Required
Receivables Balance, the Series 2001-1 Required Reserves or any defined
term referred to therein or (I) permit the creation of any lien ranking
prior to or on a parity with the Indenture Trustee's lien on the
Collateral, release such lien except pursuant to the express terms
hereof or deprive any Series 2001-1 Investor Noteholder of the security
afforded by such lien;
(iii) modify SECTION 11.7(a); and
(iv) modify the allocations and priorities of payments set
forth in Article 3 of this Indenture Supplement.
(b) Any amendment hereof can be effected without the Administrative
Agent's being party thereto; PROVIDED, HOWEVER, that no such amendment,
modification or waiver of this Indenture Supplement that affects rights or
duties of the Administrative Agent shall be effective unless the Administrative
Agent shall have given its prior written consent thereto.
(c) Promptly after the execution of any amendment of this Indenture
Supplement or any other Transaction Document, the Collection Agent shall mail to
each of the Funding Agents and each Rating Agency a copy thereof.
61
57
SECTION 11.8. SEVERABILITY. If any provision hereof is void or
unenforceable in any jurisdiction, such voidness or unenforceability shall not
affect the validity or enforceability of (i) such provision in any other
jurisdiction or (ii) any other provision hereof in such or any other
jurisdiction.
SECTION 11.9. NOTICES. All notices, requests, instructions and demands
to or upon any party hereto to be effective shall be given (i) in the case of
the Issuer, the Collection Agent and the Indenture Trustee, in the manner set
forth in SECTION 13.4 of the Base Indenture and (ii) in the case of the
Administrative Agent, the CP Conduit Purchasers, the APA Banks and the Funding
Agents, in writing, and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when delivered by hand or three days
after being deposited in the mail, postage prepaid, in the case of facsimile
notice, when received, or in the case of overnight air courier, one Business Day
after the date such notice is delivered to such overnight courier, addressed as
follows in the case of the Administrative Agent and to the addresses therefor
set forth in Schedule I, in the case of the CP Conduit Purchasers, the APA Banks
and the Funding Agents; or to such other address as may be hereafter notified by
the respective parties hereto:
Administrative
Agent: The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Fax: ▇▇▇-▇▇▇-▇▇▇▇
SECTION 11.10. SUCCESSORS AND ASSIGNS. (a) This Indenture Supplement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Issuer may not assign or
transfer any of its rights under this Indenture Supplement without the prior
written consent of all of the Series 2001-1 Investor Noteholders, no CP Conduit
Purchaser may assign or transfer any of its rights under this Indenture
Supplement other than in accordance with the Asset Purchase Agreement with
respect to such CP Conduit Purchaser or otherwise to the APA Banks with respect
to such CP Conduit Purchaser or a Program Support Provider with respect to such
CP Conduit Purchaser or pursuant to clause (b) or (e) below of this SECTION
11.10 and no APA Bank may assign or transfer any of its rights or obligations
under this Indenture Supplement except to a Program Support Provider or pursuant
to clause (c), (d) or (e) below of this SECTION 11.10.
(b) Without limiting the foregoing, each CP Conduit Purchaser may, from
time to time with prior or concurrent notice to the Issuer and the
Administrative Agent assign the Purchaser Invested Amount with respect to such
CP Conduit Purchaser and its rights and obligations under this Indenture
Supplement and any other Transaction Documents to which it is a party to a
Conduit Assignee with respect to such CP Conduit Purchaser. Upon such assignment
by a CP Conduit Purchaser to a Conduit Assignee, (A) such Conduit Assignee shall
be the owner of the Purchaser Invested Amount with respect to such CP Conduit
Purchaser, (B) the related administrative or managing agent for such Conduit
Assignee will act as the administrative agent for such Conduit Assignee
hereunder, with all corresponding rights and powers, express or implied, granted
to the Funding Agent hereunder or under the other
62
58
Transaction Documents, (C) such Conduit Assignee and its liquidity support
provider(s) and credit support provider(s) and other related parties shall have
the benefit of all the rights and protections provided to such CP Conduit
Purchaser herein and in the other Transaction Documents (including, without
limitation, any limitation on recourse against such Conduit Assignee as provided
in this paragraph), (D) such Conduit Assignee shall assume all of such CP
Conduit Purchaser's obligations, if any, hereunder or under any other
Transaction Document and such CP Conduit Purchaser shall be released from all
such obligations, (E) all distributions in respect of the Purchaser Invested
Amount with respect to such CP Conduit Purchaser shall be made to the applicable
agent or administrative agent, as applicable, on behalf of such Conduit
Assignee, (F) the definitions of the terms "Monthly Funding Costs" and
"Discount" shall be determined in the manner set forth in the definition of
"Monthly Funding Costs" and "Discount" applicable to such CP Conduit Purchaser
on the basis of the interest rate or discount applicable to commercial paper
issued by such Conduit Assignee (rather than such CP Conduit Purchaser), (G) the
defined terms and other terms and provisions of this Indenture Supplement and
the other Transaction Documents shall be interpreted in accordance with the
foregoing, and (H) if requested by the Administrative Agent or the agent or
administrative agent with respect to the Conduit Assignee, the parties will
execute and deliver such further agreements and documents and take such other
actions as the Administrative Agent or such agent or administrative agent may
reasonably request to evidence and give effect to the foregoing. No assignment
by any CP Conduit Purchaser to a Conduit Assignee of the Purchaser Invested
Amount with respect to such CP Conduit Purchaser shall in any way diminish the
obligations of the APA Bank with respect to such CP Conduit Purchaser under
SECTION 2.3 to fund any Increase. Notwithstanding any contrary provision in this
Indenture Supplement, a Conduit Assignee shall not be entitled to receive with
respect to the rights and obligations under this Indenture Supplement assigned
to it pursuant to this Section 11.10(b) any greater Increased Costs than the
assignor CP Conduit Purchaser would have been entitled to receive with respect
to those rights and obligations unless such assignment shall have been made with
the prior written consent of the Issuer.
(c) Any APA Bank may, in the ordinary course of its business and in
accordance with applicable law, at any time sell all or any part of its rights
and obligations under this Indenture Supplement and the Series 2001-1 Investor
Notes, with the prior written consent of the Administrative Agent, the Issuer
and the Collection Agent (in each case, which consent shall not be unreasonably
withheld), to one or more banks (an "ACQUIRING APA BANK") pursuant to a transfer
supplement, substantially in the form of EXHIBIT F (the "TRANSFER SUPPLEMENT"),
executed by such Acquiring APA Bank, such assigning APA Bank, the Funding Agent
with respect to such APA Bank, the Administrative Agent, the Issuer and the
Collection Agent and delivered to the Administrative Agent. Notwithstanding the
foregoing, no APA Bank shall so sell its rights hereunder if such Acquiring APA
Bank is not an Eligible Assignee.
(d) Any APA Bank may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more financial
institutions or other entities ("PARTICIPANTS") participations in its APA Bank
Percentage of the Commitment Amount with respect to it and the other APA Banks
included in the related Purchaser, its Series 2001-1 Investor Note and its
rights hereunder pursuant to documentation in form and substance satisfactory to
such APA Bank and the Participant; PROVIDED, HOWEVER, that (i) in the event of
any such sale by an APA Bank to a Participant, (A) such APA Bank's obligations
under this Indenture Supplement shall remain unchanged, (B) such APA Bank shall
remain solely
63
59
responsible for the performance thereof and (C) the Issuer and the
Administrative Agent shall continue to deal solely and directly with such APA
Bank in connection with its rights and obligations under this Indenture
Supplement and (ii) no APA Bank shall sell any participating interest under
which the Participant shall have rights to approve any amendment to, or any
consent or waiver with respect to, this Indenture Supplement or any Transaction
Document, except to the extent that the approval of such amendment, consent or
waiver otherwise would require the unanimous consent of all APA Banks hereunder.
A Participant shall have the right to receive Increased Costs but only to the
extent that the related selling APA Bank would have had such right absent the
sale of the related participation.
(e) Any CP Conduit Purchaser and the APA Banks with respect to such CP
Conduit Purchaser may at any time sell all or any part of their respective
rights and obligations under this Indenture Supplement and the Series 2001-1
Investor Notes, with the prior written consent of the Administrative Agent, the
Issuer and the Collection Agent (in each case, which consent shall not be
unreasonably withheld), to a multi-seller commercial paper conduit and one or
more banks providing support to such multi-seller commercial paper conduit (an
"ACQUIRING PURCHASER") pursuant to a transfer supplement, substantially in the
form of EXHIBIT G(the "PURCHASER SUPPLEMENT"), executed by such Acquiring
Purchaser, the Funding Agent with respect to such Acquiring Purchaser (including
the CP Conduit Purchaser and the APA Banks with respect to such Purchaser), such
assigning CP Conduit Purchaser and the APA Banks with respect to such CP Conduit
Purchaser, the Funding Agent with respect to such assigning CP Conduit Purchaser
and APA Banks, the Administrative Agent, the Issuer and the Collection Agent and
delivered to the Administrative Agent.
(f) The Issuer authorizes each APA Bank to disclose to any Participant
or Acquiring APA Bank (each, a "TRANSFEREE") and any prospective Transferee any
and all financial information in such APA Bank's possession concerning the
Issuer, the Collateral, the Collection Agent and the Transaction Documents which
has been delivered to such APA Bank by the Issuer or the Collection Agent in
connection with such APA Bank's credit evaluation of the Issuer, the Collateral
and the Collection Agent.
SECTION 11.11. SECURITIES LAWS. Each Purchaser hereby represents and
warrants to the Issuer and the Collection Agent that it is an "accredited
investor" as such term is defined in paragraphs (1), (2), (3) and (7) of Rule
501(a) of Regulation D under the Securities Act and has sufficient assets to
bear the economic risk of, and sufficient knowledge and experience in financial
and business matters to evaluate the merits and risks of, its investment in a
Series 2001-1 Investor Note. Each Purchaser agrees that its Series 2001-1
Investor Note will be acquired for investment only and not with a view to any
public distribution thereof, and that such Purchaser will not offer to sell or
otherwise dispose of its Series 2001-1 Investor Note (or any interest therein)
in violation of any of the registration requirements of the Securities Act, or
any applicable state or other securities laws. Each Purchaser acknowledges that
it has no right to require the Issuer to register its Series 2001-1 Investor
Note under the Securities Act or any other securities law. Each Purchaser hereby
confirms and agrees that in connection with any transfer by it of an interest in
the Series 2001-1 Investor Note, such Purchaser has not engaged and will not
engage in a general solicitation or general advertising including
advertisements, articles, notices or other communications published in any
newspaper, magazine or similar media or
64
60
broadcast over radio or television, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising.
SECTION 11.12. ADJUSTMENTS; SET-OFF. (a) If any Purchaser (a
"BENEFITTED PURCHASER") shall at any time receive in respect of its Purchaser
Invested Amount any distribution of principal, interest, Unused Fees or any
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off or otherwise) in a greater proportion
than any such distribution received by any other Purchaser, if any, in respect
of such other Purchaser's Purchaser Invested Amount, or interest thereon, such
Benefitted Purchaser shall purchase for cash from the other Purchaser such
portion of such other Purchaser's interest in the Series 2001-1 Investor Notes,
or shall provide such other Purchaser with the benefits of any such collateral,
or the proceeds thereof, as shall be necessary to cause such Benefitted
Purchaser to share the excess payment or benefits of such collateral or proceeds
ratably with the other Purchaser; PROVIDED, HOWEVER, that if all or any portion
of such excess payment or benefits is thereafter recovered from such Benefitted
Purchaser, such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest. The Issuer
agrees that any Purchaser so purchasing a portion of another Purchaser's
Purchaser Invested Amount may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
Purchaser were the direct holder of such portion.
(b) In addition to any rights and remedies of the Purchasers provided
by law, each Purchaser shall have the right, without prior notice to the Issuer,
any such notice being expressly waived by the Issuer to the extent permitted by
applicable law, upon any amount becoming due and payable by the Issuer hereunder
or under the Series 2001-1 Investor Notes to set-off and appropriate and apply
against any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Purchaser to or for the
credit or the account of the Issuer. Each Purchaser agrees promptly to notify
the Issuer and the Administrative Agent after any such set-off and application
made by such Purchaser; PROVIDED that the failure to give such notice shall not
affect the validity of such set-off and application.
SECTION 11.13. COUNTERPARTS. This Indenture Supplement may be executed
in any number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original,
and all of which taken together shall constitute one and the same agreement.
SECTION 11.14. NO BANKRUPTCY PETITION. (a) Each of the Administrative
Agent, the CP Conduit Purchasers, the APA Banks and the Funding Agents hereby
covenants and agrees that, prior to the date which is one year and one day after
the later of (i) the last day of the Amortization Period and (ii) the last day
of the amortization period of any other Series of Outstanding Investor Notes ,
it will not institute against, or join any other Person in instituting against,
the Issuer any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other similar proceedings under any federal or state
bankruptcy or similar law.
65
61
(b) The Issuer, the Collection Agent, the Indenture Trustee,
the Administrative Agent, each Funding Agent and each APA Bank hereby covenants
and agrees that, prior to the date which is one year and one day after the
payment in full of all outstanding Commercial Paper issued by, or for the
benefit of, a CP Conduit Purchaser, it will not institute against, or join any
other Person in instituting against, such CP Conduit Purchaser (or the Person
issuing Commercial Paper for the benefit of such CP Conduit Purchaser) any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other similar proceedings under any federal or state bankruptcy or similar
law.
This covenant shall survive the termination of this Indenture
Supplement and the Base Indenture and the payment of all amounts payable
hereunder and thereunder.
SECTION 11.15. TERMINATION OF THIS INDENTURE SUPPLEMENT. This Indenture
Supplement shall terminate upon the termination of the Amortization Period.
SECTION 11.16. LIMITED RECOURSE. (a) Notwithstanding anything to the
contrary contained herein, any obligations of each CP Conduit Purchaser
hereunder to any party hereto are solely the corporate obligations of such CP
Conduit Purchaser and shall be payable at such time as funds are received by or
are available to such CP Conduit Purchaser in excess of funds necessary to pay
in full all of its outstanding Commercial Paper and, to the extent funds are not
available to pay such obligations, the claims relating thereto shall not
constitute a claim against such CP Conduit Purchaser but shall continue to
accrue. Each party hereto agrees that the payment of any claim (as defined in
Section 101 of Title 11 of the Bankruptcy Code) of any such party against a CP
Conduit Purchaser shall be subordinated to the payment in full of all of its
Commercial Paper.
(b) No recourse under any obligation, covenant or agreement of any CP
Conduit Purchaser contained herein shall be had against any incorporator,
stockholder, officer, director, employee or agent of such CP Conduit Purchaser,
its administrative agent, the Funding Agent with respect to such CP Conduit
Purchaser or any of their Affiliates by the enforcement of any assessment or by
any legal or equitable proceeding, by virtue of any statute or otherwise; it
being expressly agreed and understood that this Indenture Supplement is solely a
corporate obligation of such CP Conduit Purchaser individually, and that no
personal liability whatever shall attach to or be incurred by any incorporator,
stockholder, officer, director, employee or agent of such CP Conduit Purchaser,
its administrative agent, the Funding Agent with respect to such CP Conduit
Purchaser or any of its Affiliates (solely by virtue of such capacity) or any of
them under or by reason of any of the obligations, covenants or agreements of
such CP Conduit Purchaser contained in this Agreement, or implied therefrom, and
that any and all personal liability for breaches by such CP Conduit Purchaser of
any of such obligations, covenants or agreements, either at common law or at
equity, or by statute, rule or regulation, of every such incorporator,
stockholder, officer, director, employee or agent is hereby expressly waived as
a condition of and in consideration for the execution of this Indenture
Supplement; PROVIDED that the foregoing shall not relieve any such Person from
any liability it might otherwise have as a result of fraudulent actions taken or
omissions made by them. The provisions of this Section 11.18 shall survive
termination of this Indenture Supplement.
66
62
SECTION 11.17. WAIVER OF SETOFF. Notwithstanding any other provision of
this Indenture Supplement or any other agreement to the contrary, all payments
to the Purchasers hereunder shall be made without set-off or counterclaim.
SECTION 11.18. CONFLICT OF INSTRUCTIONS. In the event the Issuer and
the Collection Agent shall have delivered conflicting instructions to the
Indenture Trustee or the Administrative Agent to take or refrain from taking
action hereunder, the Indenture Trustee or the Administrative Agent, as the case
may be, shall follow the instructions of the Issuer.
SECTION 11.19. CHASE CONFLICT WAIVER. Chase acts as Indenture Trustee,
the Funding Agent with respect to Park Avenue Receivables Corporation ("PARCO")
and as administrative agent for PARCO, as issuing and paying agent for PARCO's
Commercial Paper, as provider of other backup facilities for PARCO, and may
provide other services or facilities from time to time (the "CHASE ROLES"). Each
of the parties hereto hereby acknowledges and consents to any and all Chase
Roles, waives any objections it may have to any actual or potential conflict of
interest caused by Chase's acting as the Indenture Trustee, the Funding Agent
with respect to PARCO or as the APA Bank with respect to PARCO and acting as or
maintaining any of the Chase Roles, and agrees that in connection with any Chase
Role, Chase may take, or refrain from taking, any action which it in its
discretion deems appropriate.
SECTION 11.20. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) Each of the parties hereto irrevocably and unconditionally submits
to the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York state court sitting in the
City of New York for purposes of all legal proceedings arising out of or
relating to this Indenture Supplement, the Transaction Documents or the
transactions contemplated hereby or thereby. Each of the parties hereto hereby
irrevocably waives, to the fullest extent it may effectively do so, any
objection which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum. Each of the
parties hereto agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail,
postage prepaid, in the case of the Issuer, to the Issuer's agent for service of
process identified pursuant to SECTION 9.1(r) and, in the case of Goodyear, to
Goodyear at its address set forth in the Receivables Purchase Agreement and
agrees that nothing herein shall affect the right to effect service of process
in any other manner permitted by law. In addition, nothing in this Section 11.20
shall affect the right of any party hereto to bring any action or proceeding
against any other party hereto or its respective property in the courts of other
jurisdictions.
(b) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
INDENTURE SUPPLEMENT OR ANY OTHER OF THE TRANSACTION DOCUMENTS AND FOR ANY
COUNTERCLAIM THEREIN.
67
IN WITNESS WHEREOF, the Issuer, the Collection Agent, the
Administrative Agent, the CP Conduit Purchasers, the APA Banks, the Funding
Agents and the Indenture Trustee have caused this Indenture Supplement to be
duly executed by their respective officers hereunto duly authorized as of the
day and year first above written.
WINGFOOT A/R LLC
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
THE GOODYEAR TIRE & RUBBER COMPANY
AS COLLECTION AGENT
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
PARK AVENUE RECEIVABLES
CORPORATION, as a CP Conduit Purchaser
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
68
THE CHASE MANHATTAN BANK, as an APA Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
THE CHASE MANHATTAN BANK,
as a Funding Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
SPECIAL PURPOSE ACCOUNTS RECEIVABLES COOPERATIVE
CORPORATION, as a CP Conduit Purchaser
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE,
as an APA Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Funding Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director