EXHIBIT 10.32
NOTE PURCHASE AGREEMENT
This Note Purchase Agreement ("Purchase Agreement"), made this 29th day
of February, 1996, by and between THE GOODYEAR TIRE & RUBBER COMPANY, an Ohio
corporation (the "Company"); and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a
national banking association having its principal offices at 2200 Ross
Avenue, PO Box 660197, Dallas, Texas 75266-0197 (the "Bank");
WITNESSETH
WHEREAS, the Bank has agreed to make a loan to WASTE RECOVERY, INC. (the
"Borrower") in the principal amount of ONE MILLION ONE HUNDRED NINETEEN
THOUSAND THREE HUNDRED NINE DOLLARS AND ONE CENT ($1,119,309.01) (the
"Loan"); and
WHEREAS, the Loan shall be evidenced by a Term Promissory Note with
Agreement, dated February 29, 1996 (the "Note"), a copy of which is attached
hereto as Exhibit A; and
WHEREAS, the Bank has agreed to make the loan only upon the condition
that the Company execute and deliver this Purchase Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
l. Agreement to Purchase Note.
(a) In order to induce the Bank to make the Loan to the Borrower,
the Company, on and subject to the terms and conditions hereinafter set
forth, agrees to purchase the Note from the Bank without recourse at the
Bank's sole option exercised by written notice to the Company given at any
time prior to April 29, 2000.
(b) Any purchase of the Note by the Company pursuant to this
Purchase Agreement shall occur no later than 30 days from the date written
notice is given to the Company by the Bank and shall be for a cash purchase
price equal to the sum of (1) 100% of the then outstanding principal balance
of the Note, up to a maximum amount of $ 1,119,309.O1, and (2) all accrued
but unpaid interest thereon to the date of purchase, up to a maximum amount
of $60,000. On the date of purchase, the Bank shall duly endorse the Note to
the order of the Company and shall deliver the Note to the Company. The
Company's obligation to purchase the Note as aforesaid is subject to the Bank
warranting and representing to the Company on the date of purchase that (i)
the principal amount of the Note was advanced to the Borrower on the date
thereof, (ii) the Bank owns all right and title to the Note free and clear of
any lien arising through the Bank, and (iii) the purchase price requested by
the Bank as aforesaid does not exceed the amount of principal and interest
due and payable on the Note at the date of purchase.
(c) The Company's obligations under this Purchase Agreement shall
be enforceable in all respects and continue regardless of the bank's efforts
to collect the Note (or lack thereof from the
1
Borrower and notwithstanding that (i) the, Note may then be in default or
(ii) the Borrower may be or become insolvent or may make an assignment for
the benefit of creditors or may file or may have filed against it a petition
in bankruptcy or other insolvency or reorganization proceedings. The purchase
of the Note is not a purchase of a security, but a form of suretyship.
Borrower and Bank may from time to time modify, alter, secure, rearrange,
extend for any period or renew (but not increase) the Note without notice to
Company, and in such event Company will remain fully bound hereunder;
provided, however, that no modification shall impair the enforceability of
the Note by Goodyear if the Note is purchased by Goodyear hereunder. This
Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time any payment on the Note is rescinded or must otherwise be
returned by Bank upon the insolvency, bankruptcy or reorganization of
Borrower or otherwise, all as though such payment has not been made.
2. Representations and Warranties.
(a) The Company represents and warrants to the Bank that (i) the
Company is duly, validly existing and in good standing under the laws of the
State of Ohio, (ii) the Company is duly authorized and empowered to execute,
deliver and perform this Purchase Agreement and has taken all requisite
corporate action to authorize the execution, delivery and performance by it
of this Purchase Agreement, (iii) the execution, delivery and performance of
this Purchase Agreement by the Company does not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
its Articles of Incorporation or Code of Regulations or any indenture,
mortgage, loan agreement or similar instrument to which the Company is a
party or by which it, or any of its properties, is bound, and (iv) this
Purchase Agreement constitutes a legal, valid and binding agreement
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and similar
laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(b) The Bank represents and warrants to the Company that the Loan
has been made to the Borrower in accordance with the terms and conditions of
the Note.
3. General Provisions.
(a) All notices and other communications hereunder shall be in
writing and shall be deemed to have been given when received in person at the
address of the party to receive such notice specified below, or when sent by
courier service or registered mail, postage prepaid, addressed to the
respective parties at the following address:
To the Company: The Goodyear Tire & Rubber Company
1144 East Market Street
Akron, Ohio 44316-0001
Attention: Office of the Treasurer
To the Bank: Texas Commerce Bank National Association
2200 Ross Avenue
Dallas, Texas 75266-0197
Attention: Rob Holmes, Vice President
(b) This Purchase Agreement shall be binding upon, shall inure to
the benefit of, and
2
shall be enforceable by the parties hereto and their respective successors
and permitted assigns. The obligation of the Company to purchase the Note
shall be enforceable only by the Bank, an affiliate of the Bank or any
successor to the Bank by merger of operation of law.
(c) This Purchase Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof. No amendment,
change, modification, alteration or termination of this Purchase Agreement
shall be made except upon the written consent of the Bank and the Company.
(d) This Purchase Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
(e) This Purchase Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall be an original,
but all such counterparts shall constitute one and the same instruments.
(f) In the event that any one or more of the provisions contained
in this Purchase Agreement shall, for any reason, be held invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof.
IN WITNESS WHEREOF, the Company and the Bank have caused this Purchase
Agreement to be executed by their respective officers, thereunto duly
authorized, this day and year first above written.
THE GOODYEAR TIRE & RUBBER COMPANY
By: /s/ RICHARD W. HAUMAN
--------------------------------
Richard W. Hauman,
Vice President and Treasurer
Attest:
----------------------------
Assistant Secretary
[CORPORATE SEAL]
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By: /s/ ROB HOLMES
--------------------------------
Rob Holmes
Vice President
3