EXHIBIT 10.4
EXECUTION COPY
SUPPLEMENTAL INDENTURE No. 1, dated as of December 10, 2002
("Supplemental Indenture"), to BASE INDENTURE, dated as of April 27, 2001,
between WINGFOOT A/R LLC, a special purpose limited liability company
established under the laws of Delaware, as issuer (the "Issuer"), and JPMORGAN
CHASE BANK (formerly known as The Chase Manhattan Bank), a New York banking
corporation ("JPMorgan Chase"), as trustee (in such capacity, the "Indenture
Trustee").
WITNESSETH:
WHEREAS, the Issuer and the Indenture Trustee are parties to a Base
Indenture, dated as of April 27, 2001 (the "Base Indenture");
WHEREAS, the Issuer desires to amend the Definitions List attached as
Schedule 1 to the Base Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Supplemental Indenture;
WHEREAS, the Indenture Trustee, is willing to enter into this
Supplemental Indenture;
NOW, THEREFORE, for and in consideration of the premises, and other good
and valuable consideration the receipt and sufficiency of which are
acknowledged, it is mutually covenanted and agreed, that the Base Indenture be
amended and supplemented as follows:
1. Amendment to Definitions List. The Definitions List is amended
by:
(a) inserting the following new definition in alphabetical order:
"Disputed Receivable" means a Receivable that the Collection
Agent has determined is the subject of an ordinary course of business
dispute.
(b) inserting ", other than Disputed Receivables," after the words
"of its Receivables" in clause (f) of the definition of "Eligible
Obligor"; and
(c) deleting the proviso to the definition of "Outstanding Balance"
and inserting the following new proviso in lieu thereof:
; provided, however, that, the Outstanding Balance of a Defaulted
Receivable, a Delinquent Receivable or a Disputed Receivable shall
be zero.
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2. Representations and Warranties. In order to induce the Indenture
Trustee to agree to this Supplemental Indenture, the Issuer hereby represents
and warrants, as follows, for the benefit of the Indenture Trustee and the
Investor Noteholders, as of the date hereof:
(a) After giving effect to the Consent and Waiver (as defined
in the Second Amendment (as defined below)), each representation and
warranty of the Issuer set forth in the Base Indenture and in each other
Transaction Document to which it is a party, is true and correct as of the
date of this Supplemental Indenture as though such representation or
warranty were being made on and as of the date hereof and is hereby deemed
repeated as though fully set forth herein.
(b) The execution, delivery and performance by the Issuer of
this Supplemental Indenture (i) is within the Issuer's power and has been
duly authorized by all necessary action, (ii) requires no action by or in
respect of, or filing with, any governmental body, agency or official which
has not been obtained and (iii) does not contravene, or constitute a
default under, any Requirement of Law or any agreement or other instrument
binding upon it or result in the creation or imposition of any Adverse
Claim on any of the Collateral. This Supplemental Indenture has been
executed and delivered by a duly authorized officer of the Issuer.
(c) This Supplemental Indenture is a legal, valid and binding
obligation of the Issuer enforceable against the Issuer in accordance with
its terms (except as such enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally or by general equitable
principles, whether considered in a proceeding at law or in equity and by
an implied covenant of good faith and fair dealing).
3. Conditions Precedent. This Supplemental Indenture shall become
effective and shall be binding on each of the parties hereto upon the
satisfaction of each of the following conditions precedent:
(a) The consent of the Holders of a Majority in Interest of
each Series of Outstanding Investor Notes shall have been given in respect
of this Supplemental Indenture and a copy thereof provided to the Indenture
Trustee;
(b) The Indenture Trustee shall have received a counterpart of
this Supplemental Indenture duly executed by the Issuer; and
(c) The conditions to the effectiveness of the Second
Amendment, dated as of the date hereof (the "Second Amendment"), to the
Series 2001-1 Supplement, dated as of April 27, 2001, among the Issuer, the
Collection Agent, the several commercial paper conduits listed on Schedule
I thereto (the "CP Conduit Purchasers"), the banks party thereto with
respect to each CP Conduit Purchaser (the "APA Banks"), the agent banks
party thereto with respect to each CP Conduit Purchaser (the "Funding
Agents"), JPMorgan Chase, in its capacity as administrative agent for the
CP Conduit Purchasers, the APA Banks and the Funding Agents (the
"Administrative Agent"), and the Indenture Trustee shall have been
satisfied.
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4. Miscellaneous.
(a) The parties may sign any number of copies of this
Supplemental Indenture. One signed copy is enough to prove this
Supplemental Indenture.
(b) This Supplemental Indenture may be executed in two or more
counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one
and the same instrument.
(c) The Base Indenture, as amended and supplemented by this
Supplemental Indenture No. 1, is in all respects ratified and confirmed,
shall continue to be in full force and effect, and shall be read, taken and
construed as one and the same instrument.
(d) THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
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IN WITNESS WHEREOF, the Indenture Trustee and the Issuer have
caused this Supplemental Indenture No. 1 to be duly executed by their respective
duly authorized officers as of the day and year first written above.
WINGFOOT A/R LLC,
as Issuer
By: /s/ DARREN R. WELLS
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Name: DARREN R. WELLS
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Title: VICE PRESIDENT AND TREASURER
JPMORGAN CHASE BANK,
as Indenture Trustee
By: /s/ KEVIN CROMBIE
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Name: KEVIN CROMBIE
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Title: ASSISTANT VICE PRESIDENT