EXHIBIT 4.3
GOODYEAR
- --------------------------------------------------------------------------------
MASTER COMPLEMENTARY DEPOSIT
AGREEMENT
- --------------------------------------------------------------------------------
DATED 10 DECEMBER, 2004
Between
EUROFACTOR
as Agent
CALYON
as Calculation Agent
ESTER FINANCE TITRISATION
as Purchaser
AND
GOODYEAR DUNLOP TIRES FINANCE
EUROPE B.V.
as Complementary Depositor or Centralising Unit
[GIDE LOYRETTE NOUEL LOGO]
- --------------------------------------------------------------------------------
ASSOCIATION D'AVOCATS A LA COUR DE PARIS
26, COURS ALBERT 1ER 75008 PARIS TEL. +33 (0)1 40 75 60 00
FAX +33 (0)1 43 59 37 79
E-MAIL INFO@GIDE.COM WWW.GIDE.COM
TABLE OF CONTENTS
ARTICLE 1. Definitions........................................................................ 5
ARTICLE 2. Interpretation..................................................................... 5
ARTICLE 3. Purpose of this Agreement.......................................................... 6
ARTICLE 4. Duration of the Agreement.......................................................... 6
ARTICLE 5. Amount of the Complementary Deposit................................................ 7
ARTICLE 6. No interest - Unavailability fee................................................... 8
ARTICLE 7. Repayment.......................................................................... 9
ARTICLE 8. Payments........................................................................... 10
ARTICLE 9. Representations and warranties - undertakings...................................... 10
ARTICLE 10. Application of the Complementary Deposit as cash collateral for the benefit
of the Purchaser................................................................... 11
ARTICLE 11. Fees and expenses.................................................................. 12
ARTICLE 12. Substitution and agency............................................................ 12
ARTICLE 13. Confidentiality.................................................................... 13
ARTICLE 14. Transferability of this Agreement.................................................. 13
ARTICLE 15. Notices............................................................................ 13
ARTICLE 16. Exercise of rights................................................................. 14
ARTICLE 17. Indivisibility..................................................................... 14
ARTICLE 18. Partial invalidity................................................................. 14
ARTICLE 19. Amendments......................................................................... 15
ARTICLE 20. Limited recourse - non petition.................................................... 15
ARTICLE 21. Governing law - jurisdiction....................................................... 15
Schedule 1. Calculation of the Amount of the Complementary Deposit............................. 17
- 2 -
BETWEEN
1. EUROFACTOR, a company incorporated under French law, authorised as a credit
institution (etablissement de credit) and having its registered office at Tour
d'Asnieres, 4, avenue Laurent Cely, 92608 Asnieres, France, registered with the
Trade and Companies Registry of Nanterre under the number 642 041 560, whose
representative is duly authorised for the purpose of this agreement (the
"AGENT");
2. CALYON, a company incorporated under French law and authorised as a credit
institution (etablissement de credit), having its registered office at 9 quai du
President Paul Doumer, 92920 Paris La Defense Cedex, France, registered with the
Trade and Companies Registry of Nanterre under the number 304 187 701, whose
representatives are duly authorised for the purpose of this agreement (the
"CALCULATION AGENT");
3. ESTER FINANCE TITRISATION, a limited company with a management and
supervisory board (societe anonyme a directoire et conseil de surveillance)
incorporated under French law and authorised as a credit institution
(etablissement de credit), having its registered office at 19 Boulevard des
Italiens, 75002 Paris, France, registered with the Trade and Companies Registry
of Paris under the number 414 886 226, whose representative is duly authorised
for the purpose of this agreement ("ESTER FINANCE" or the "PURCHASER");
4. GOODYEAR DUNLOP TIRES FINANCE EUROPE B.V., a company incorporated under Dutch
law, having its registered office at Deboelelaan 7, 1083 HJ, Amsterdam, The
Netherlands, registered with the Trade and Companies Registry of Amsterdam,
under the number 34197964, whose representative is duly authorised for the
purpose of this agreement (hereafter referred to as the "CENTRALISING UNIT" or
the "COMPLEMENTARY DEPOSITOR").
- 3 -
WHEREAS
GOODYEAR DUNLOP TIRES France S.A., FULDA REIFEN GmbH & Co KG, M-PLUS
MULTIMARKENMANAGEMENT GmbH & Co KG, GOODYEAR GmbH & Co KG, DUNLOP GmbH & Co KG,
GOODYEAR DUNLOP TIRES Italia SpA and GOODYEAR DUNLOP TIRES Espana SA (the
"SELLERS") are in the business of manufacturing and/or supplying tyres and
activities relating thereto, and hold receivables over their respective debtors.
In order to provide financing to the Sellers, CALYON as arranger has proposed to
set up a securitisation transaction by way of the sale, on an ongoing basis, of
trade receivables resulting from the usual business of the Sellers in France,
Germany, Italy and Spain.
For such purposes, ESTER FINANCE has undertaken to purchase certain trade
receivables held by the Sellers (the "PURCHASABLE RECEIVABLES") by way of a
transfer of receivables pursuant to the provisions of the French law governed
General Master Purchase Agreement (the "GENERAL MASTER PURCHASE AGREEMENT") and
receivables purchase agreements (the "RECEIVABLES PURCHASE AGREEMENTS") governed
by French, German, Italian and Spanish law depending of the laws of the
incorporation of the relevant Seller.
ESTER FINANCE shall fund the acquisition of Purchasable Receivables:
(i) partly out of a senior deposit (the "SENIOR DEPOSIT") effected by the
Depositor with the Purchaser in accordance with a master senior deposit
agreement (the "MASTER SENIOR DEPOSIT AGREEMENT"); and
(ii) partly by way of set-off against any amount due and payable by the
Centralising Unit to the Purchaser in connection with (a) a subordinated
deposit (the "SUBORDINATED DEPOSIT") to be effected by the Centralising
Unit with the Purchaser in accordance with the terms and conditions of a
master subordinated deposit agreement (the "MASTER SUBORDINATED DEPOSIT
AGREEMENT") and (b) a complementary deposit (the "COMPLEMENTARY DEPOSIT")
to be effected by the Centralising Unit with the Purchaser in accordance
with the terms and conditions of the present master complementary deposit
agreement (the "MASTER COMPLEMENTARY DEPOSIT AGREEMENT").
The Purchaser and the Complementary Depositor are willing to define the terms
and conditions according to which the Complementary Deposit shall be made by the
Complementary Depositor with the Purchaser and shall be pledged as cash
collateral in favour of the Purchaser and have agreed to enter into this
agreement under the terms and subject to the conditions set forth hereunder.
- 4 -
NOW IT IS HEREBY AGREED AS FOLLOWS:
CHAPTER I - INTERPRETATION
ARTICLE 1. DEFINITIONS
Capitalised terms and expressions used in this Master Complementary Deposit
Agreement shall have the same meaning as ascribed to such terms and expressions
in the glossary set out in schedule 1 to the General Master Purchase Agreement.
ARTICLE 2. INTERPRETATION
(i) The titles of the Chapters, the Schedules and the Articles (including
their paragraphs) used herein and the table of contents are for convenience of
reference only, and shall not be used to interpret this Master Complementary
Deposit Agreement.
(ii) In this Master Complementary Deposit Agreement, except if the context
calls for another interpretation:
(a) references to "CHAPTERS", "ARTICLES" and "SCHEDULES" shall be
construed as references to the chapters, articles and schedules of
this Master Complementary Deposit Agreement and references to this
Master Complementary Deposit Agreement include its schedules;
(b) words in the plural shall cover the singular and vice versa;
(c) references to the time of the day shall refer to Paris time, unless
otherwise stipulated;
(d) references to a person shall include its permitted assignees,
transferees and successors;
(e) references to a document shall mean this document, as amended,
replaced by novation or varied from time to time;
(f) references to "PARTIES" must be interpreted as references to the
parties to the present agreement, and to a "PARTY" shall refer to
any of the Parties.
- 5 -
CHAPTER II - AMOUNT - PURPOSE - DURATION
ARTICLE 3. PURPOSE OF THIS AGREEMENT
3.1 The Complementary Depositor shall make a Complementary Deposit with the
Purchaser in accordance with the terms of this Master Complementary Deposit
Agreement.
3.2 The Complementary Deposit made by the Complementary Depositor under this
Master Complementary Deposit Agreement shall be applied and pledged as cash
collateral (affecte a titre de gage-especes) in favour of the Purchaser in
accordance with and subject to the provisions of Article 10.
All repayments of principal to be made by the Purchaser to the Complementary
Depositor in respect of the Complementary Deposit shall be made up to the amount
and to the extent of the sums received by the Purchaser in respect of the Sold
Receivables in the manner described in Article 7. During the Amortisation
Period, such repayments under the Complementary Deposit shall be subject to the
order of priority of payments provided for under article 16 of the General
Master Purchase Agreement.
The Complementary Depositor agrees that, for the purposes of repayment of the
Complementary Deposit, it will look solely to the amount of the sums received by
the Purchaser under the General Master Purchase Agreement in respect of the Sold
Receivables until the Program Expiry Date and that the Complementary Depositor
shall not, in such capacity, otherwise take or pursue any judicial or other
proceedings, or exercise any right or remedy that it might otherwise have,
against the Purchaser or the Purchaser's assets save to the extent required for
the recovery of such sums.
ARTICLE 4. DURATION OF THE AGREEMENT
4.1 This Master Complementary Deposit Agreement shall enter into force on the
date hereof and shall terminate on the Program Expiry Date.
4.2 The Complementary Deposit shall be repaid in the manner described in Article
7.
- 6 -
CHAPTER III - AMOUNT OF THE COMPLEMENTARY DEPOSIT
ARTICLE 5. AMOUNT OF THE COMPLEMENTARY DEPOSIT
5.1 Amount of the Complementary Deposit
The Complementary Depositor shall make a Complementary Deposit with the
Purchaser in accordance with the terms and conditions of this Master
Complementary Deposit Agreement.
The amount of the Complementary Deposit shall, at all times during the
Replenishment Period, be calculated in accordance with the provisions of
Schedule 1.
During the Amortisation Period, the Complementary Deposit, as calculated as of
the last Funded Settlement Date of the Replenisment Period, shall be repaid
until the Program Expiry Date, after full repayment of the Senior Deposit,
subject to the order of priority set forth in Article 7.
The amount of the Complementary Deposit shall be calculated by the Agent on each
Calculation Date.
5.2 Calculation and setting up of the Complementary Deposit
5.2.1 Calculation
(i) At the latest on the Calculation Date preceding the Initial Settlement Date,
the Agent shall calculate and notify forthwith the Purchaser and the
Complementary Depositor the amount of the Complementary Deposit to be made in
accordance with Article 5.1 above on the Initial Settlement Date, together with
the details of such calculation.
(ii) On any subsequent Calculation Date during the Replenishment Period, the
Agent shall calculate and notify forthwith the Purchaser and the Complementary
Depositor (i) the amount of the Complementary Deposit in accordance with Article
5.1 above on the related Settlement Date, and (ii) the amount of the
Complementary Deposit on the preceding Settlement Date, together with the
details of such calculation.
If the new amount of the Complementary Deposit is higher than the amount of the
Complementary Deposit on the preceding Settlement Date, the Complementary
Deposit shall be increased by the Euro amount of the difference (the "INCREASE
IN THE COMPLEMENTARY DEPOSIT").
If the new amount of the Complementary Deposit is lower than the amount of the
Complementary Deposit on the preceding Settlement Date, the Complementary
Deposit shall be reduced by the Euro amount of the difference (the "REDUCTION OF
THE COMPLEMENTARY DEPOSIT").
- 7 -
For the avoidance of doubt, any reference to the Complementary Deposit in the
Transaction Documents shall be to the Complementary Deposit as it may be
increased or reduced in accordance with this Article 5.2.1.
5.2.2 Setting up of the Complementary Deposit
(i) On the Initial Settlement Date, before 9.00 am (Paris time), the
Complementary Deposit shall be made in Euro with the Purchaser by crediting the
Current Account, for the amount calculated in accordance with Article 5.2.1.
(ii) On each Settlement Date after the Initial Settlement Date, during the
Replenishment Period, before 9.00 am (Paris time):
(a) the Complementary Depositor shall make a deposit in respect of the
Complementary Deposit in Euro with the Purchaser for an amount
corresponding to any Increase in the Complementary Deposit, as
calculated in accordance with Article 5.2.1 (ii); or
(b) the Purchaser shall repay a portion of the Complementary Deposit to
the Complementary Depositor for an amount corresponding to any
Reduction of the Complementary Deposit, as calculated in accordance
with Article 5.2.1 (ii), subject to the provisions of Article 7.
The payments to be made pursuant to (i) and (ii) above shall be effected in
accordance with and subject to the provisions of article 6.4 of the General
Master Purchase Agreement.
ARTICLE 6. NO INTEREST - UNAVAILABILITY FEE
The Purchaser and the Complementary Depositor hereby expressly agree that the
Complementary Deposit shall not bear interest and that no unavailability fee
shall be paid to the Complementary Depositor in relation to the making of the
Complementary Deposit.
The Complementary Depositor acknowledges that it has entered into intercompany
arrangements with the Sellers (the "INTERCOMPANY ARRANGEMENTS") pursuant to
which the Complementary Depositor will receive from each Seller any necessary
consideration for the making of the Complementary Deposit and will be
indemnified in an appropriate manner by each Seller in accordance with its
corporate interest and in respect of the losses incurred by it as a result of
the Complementary Deposit made under this Master Complementary Deposit
Agreement.
- 8 -
CHAPTER IV - REPAYMENT - PAYMENTS
ARTICLE 7. REPAYMENT
7.1 Principle
The repayment of the Complementary Deposit, which shall be carried out until the
Program Expiry Date, shall always be subject to (i) the provisions of Article
3.2 above and (ii) the order of priority of payments set forth under article 16
of the General Master Purchase Agreement and under Article 7.2.
7.2 Repayment of the Complementary Deposit
7.2.1 On each Intermediary Purchase Date or Funded Settlement Date during the
Replenishment Period, the Purchaser shall repay, if applicable, the
Complementary Deposit to the Complementary Depositor, for an amount equal to any
Reduction of the Complementary Deposit as calculated under Article 5.2.1 above.
7.2.2 On each Settlement Date during the Amortisation Period, and until the
Program Expiry Date, the Purchaser shall repay the Complementary Deposit to the
Complementary Depositor, for an amount resulting from the allocations set out in
article 16 of the General Master Purchase Agreement.
Such repayment shall be principally effected by means of the Distributed Amounts
received by the Purchaser under the Sold Receivables until the Program Expiry
Date and in accordance with the order of priority of payments as described in
article 16 of the General Master Purchase Agreement.
In the event that, on the Program Expiry Date, the Distributed Amounts do not
permit the repayment in full of any outstanding amount remaining unpaid under
the Senior Deposit and under the Complementary Deposit, then, any outstanding
amount remaining unpaid under the Complementary Deposit shall reduce the right
to repayment to the Complementary Depositor of the Complementary Deposit.
7.3. In the event that during the Amortisation Period, the Centralising Unit,
acting in the name and on behalf of the Sellers, repurchases all outstanding
Sold Receivables from the Purchaser in accordance with article 4.3. of the
General Master Purchase Agreement, the purchase price of such Sold Receivables
shall be applied by the Purchaser to the repayment of the Complementary Deposit
in accordance with the order provided for under article 16 of the General Master
Purchase Agreement.
- 9 -
ARTICLE 8. PAYMENTS
8.1 All payments to be made in accordance with this Master Complementary Deposit
Agreement shall be made in Euro.
8.2 All repayments of principal and all payments falling due on a day which is
not a Business Day shall instead fall due on the following Business Day.
8.3 At any time, until the Program Expiry Date, subject to article 6 of the
General Master Purchase Agreement, the Purchaser shall be entitled to set-off
(i) any amount due and payable by the Purchaser to the Complementary Depositor
in respect of the Complementary Deposit and (ii) any amount due and payable by
the Complementary Depositor to the Purchaser under this Agreement or any of the
Transaction Documents.
CHAPTER V - GENERAL PROVISIONS
ARTICLE 9. REPRESENTATIONS AND WARRANTIES - UNDERTAKINGS
The Complementary Depositor hereby represents and warrants to the Purchaser, as
follows:
(i) it is a liability company duly incorporated and validly existing under
Dutch law and has the capacity (a) to carry on its business, as currently
conducted, and to own all of the assets appearing on its balance sheet,
except where not having such capacity would not be reasonably likely to
result in a Material Adverse Effect, and (b) to enter into and perform its
obligations under this Master Complementary Deposit Agreement;
(ii) the execution of this Master Complementary Deposit Agreement does not
require any authorisation with respect to the Complementary Depositor that
has not already been obtained and communicated to the Purchaser, unless in
the case of any Governemental Authorisation, the failure to obtain such
authorisation would not be reasonably likely to result in a Material
Adverse Effect ;
(iii) the execution of this Master Complementary Deposit Agreement and the
performance of the obligations under this Master Complementary Deposit
Agreement do not contravene any of the provisions of the Complementary
Depositor's articles and memorandum of association, agreements or
undertakings to which it is a party or by which it is bound, and do not in
any manner contravene the statutes and regulations applicable to it,
except in each case, to the extent that no Material Adverse Effect would
result from such breach;
(iv) the obligations arising out of this Master Complementary Deposit Agreement
are binding on the Complementary Depositor and enforceable in accordance
with their respective terms, subject to applicable bankruptcy, insolvency,
moratorium and other laws affecting creditors' rights generally;
- 10 -
(v) in the event that, in accordance with the provisions of this Master
Complementary Deposit Agreement and the General Master Purchase Agreement,
the Complementary Deposit is not repaid in full on the Program Expiry
Date, the Complementary Depositor shall incur any losses out of its own
business, and the Purchaser shall not be liable, in any manner whatsoever,
in this respect (except, as the case may be, as provided in article 4.2
(b) of the General Master Purchase Agreement); and
(vi) the constitution of the Complementary Deposit as cash collateral
(affectation a titre de gage especes) in favour of the Purchaser, as set
forth in Article 10 below, complies with the Complementary Depositor's
corporate interest and does not exceed its financial capabilities ; the
Complementary Depositor has entered into Intercompany Arrangements with
the Sellers and GOODYEAR DUNLOP TIRES EUROPE B.V., pursuant to which the
Complementary Depositor shall receive from each Seller any necessary
consideration for making the Complementary Deposit and shall be
indemnified as is appropriate by each Seller and GOODYEAR DUNLOP TIRES
EUROPE B.V. in respect of any losses incurred by the Complementary
Depositor as a result of the Complementary Deposit made under this Master
Complementary Deposit Agreement.
CHAPTER VI - CASH COLLATERAL
ARTICLE 10. APPLICATION OF THE COMPLEMENTARY DEPOSIT AS CASH COLLATERAL FOR THE
BENEFIT OF THE PURCHASER
10.1 The Complementary Depositor hereby irrevocably agrees that the
Complementary Deposit made under this Agreement shall, by virtue of this
Article, be pledged as cash collateral (affecte a titre de gage-especes) by the
Centralising Unit in favour of the Purchaser until the Program Expiry Date, to
secure the payment of (i) any sum due to the Purchaser in respect of the Sold
Receivables, and (ii) any sum due to the Purchaser by any Seller or the
Centralising Unit pursuant to the Transaction Documents; provided that no party
shall be entitled to receive, as a result of such pledge, any amounts in
addition to those that they are entitled to receive pursuant to Article 16 of
the General Master Purchase Agreement.
The Complementary Depositor hereby irrevocably agrees that the pledging of the
Complementary Deposit as cash collateral (affectation du depot complementaire a
titre de gage-especes) in favour of the Purchaser shall transfer to the
Purchaser the ownership of the sums received under the Complementary Deposit.
10.2 The cash collateral (gage-especes) shall be deemed created and effective as
of the date on which the Complementary Deposit is made with the Purchaser.
- 11 -
10.3 The obligation of the Purchaser to transfer back to the Complementary
Depositor the Complementary Deposit (creance en restitution) shall automatically
be reduced by any principal amount paid by the Purchaser to the Complementary
Depositor in relation to the Complementary Deposit in accordance with Article 7
above.
10.4 The Complementary Depositor acknowledges that in accordance with the
security referred to above, during the Amortisation Period, it may not in any
case nor at any moment claim repayment of the Complementary Deposit other than
within the limit of the Distributed Amounts received by the Purchaser, which are
available for the application to the Complementary Depositor, in accordance with
Article 7.
CHAPTER VII - MISCELLANEOUS
ARTICLE 11. FEES AND EXPENSES
The Complementary Depositor, in the name and on behalf of the Sellers, shall
bear, in particular, any costs and expenses incurred by CALYON as arranger,
EUROFACTOR as Agent, and ESTER FINANCE, in accordance with article 29 of General
Master Purchase Agreement.
ARTICLE 12. SUBSTITUTION AND AGENCY
Each Party shall have the right to be assisted by, to appoint or to substitute
for itself one or more third parties in the performance of certain tasks
provided that:
(i) such Party has given prior written notice of the exercise of that right to
the other Parties;
(ii) such Party remains liable to the other Parties for the proper performance
of those tasks and the relevant third party/parties has or have expressly
renounced any right to any contractual claim against the other Parties;
(iii) the relevant third party/parties undertake(s) to comply with all
obligations binding upon such Party under this Master Complementary
Deposit Agreement; and
(iv) the substitution, assistance or agency shall not entail an increase in the
costs incurred by the other Parties.
The Parties acknowledge however that, in order to avoid doubt, this Article
shall not apply to the Complementary Depositor in respect of the making of the
Complementary Deposit.
- 12 -
ARTICLE 13. CONFIDENTIALITY
For the purposes to this Master Complementary Deposit Agreement, the Parties
agree to be bound by the provisions relating to confidentiality as provided for
under article 31 (Confidentiality) of the General Master Purchase Agreement.
ARTICLE 14. TRANSFERABILITY OF THIS AGREEMENT
Subject to Article 12, this Master Complementary Deposit Agreement is concluded
on the intuitu personae of the Parties to this Master Complementary Deposit
Agreement. Therefore, none of the Parties may transfer this Master Complementary
Deposit Agreement, or its rights and/or obligations hereunder, to any third
party whatsoever, without the prior written consent of the other Parties.
ARTICLE 15. NOTICES
15.1. Except as otherwise set forth in the Transaction Documents, all notices,
requests or communications which must or may be made pursuant to this Master
Complementary Deposit Agreement shall be by way of writing, mail or fax.
15.2. All notices, requests or communications to be made and all documents to be
delivered from one Party to the other Party under the Master Complementary
Deposit Agreement shall be made and delivered to the addressees referred to in
schedule 7 to the General Master Purchase Agreement.
15.3. All notices, requests or communications made and all documents delivered
under the Master Complementary Deposit Agreement shall only take effect upon the
date of their receipt by its addressee.
15.4. Each of the Parties may at any time modify the addressee of the notices,
requests or communications to be made and the documents to be delivered to it
under the Master Complementary Deposit Agreement by sending to that effect a
letter or fax to the other Party indicating the name of the new addressee.
15.5. The Parties agree that the Centralising Unit shall be responsible for
receiving written notice on behalf of the Sellers, and that any notice given by
the Purchaser to the Sellers and delivered to the Centralising Unit shall be
deemed validly received by all of the Sellers upon receipt by the Centralising
Unit.
- 13 -
ARTICLE 16. EXERCISE OF RIGHTS
16.1 All rights conferred on the Purchaser under this Master Complementary
Deposit Agreement or by any other document delivered pursuant to or incidental
to this Master Complementary Deposit Agreement or any Transaction Document,
including rights conferred by law, shall be cumulative and may be exercised at
any time.
16.2 The fact that the Purchaser or the Complementary Depositor does not
exercise a right or delays in doing so shall in no way be construed as a waiver
of that right. The exercise of any right or a partial exercise of such a right
shall not prevent the Purchaser or the Complementary Depositor from exercising
such a right again in the future, or from exercising any other right.
ARTICLE 17. INDIVISIBILITY
Each Party acknowledges that the General Master Purchase Agreement, the Master
Subordinated Deposit Agreement and the Master Complementary Deposit Agreement
shall form a single set of contractual rights and obligations and that, if the
General Master Purchase Agreement, or the Master Subordinated Deposit Agreement
becomes void or ceases to be effective and enforceable for any reason
whatsoever, this Master Complementary Deposit Agreement shall also become void
or cease to be effective and enforceable accordingly. Any payment already made
by the Centralising Unit acting in the name and on behalf of the Sellers or on
its own behalf to the Purchaser under this Master Complementary Deposit
Agreement, the General Master Purchase Agreement, the Receivables Purchase
Agreements and the Master Subordinated Deposit Agreement shall not be affected
by such a nullity, ineffectiveness or unenforceability.
ARTICLE 18. PARTIAL INVALIDITY
If one or more provisions of this Master Complementary Deposit Agreement is or
becomes invalid, illegal or unenforceable in any respect in any jurisdiction or
with respect to any Party, such invalidity, illegality or unenforceability in
such jurisdiction or with respect to such Party or Parties shall not, to the
extent permitted by applicable law, render invalid, illegal or unenforceable
such provision or provisions in any other jurisdiction or with respect to any
other Party or Parties hereto.
Such invalid, illegal or unenforceable provision shall be replaced by the
Parties to such contract with a provision which reflects in so far as is
reasonably possible the intentions of the invalid, illegal or unenforceable
provision. Any fees, costs and expenses incurred by the Parties in connection
with any amendment necessary or advisable pursuant to this Article shall be
borne exclusively by the Complementary Depositor.
- 14 -
ARTICLE 19. AMENDMENTS
No amendment to this Master Complementary Deposit Agreement may be made without
the written consent of each other party hereto and (a) unless the Rating
Agencies (i) have been informed and provided by the Arranger with all necessary
details they may require in respect of such contemplated amendment and (ii) have
confirmed that the contemplated amendment will not entail a downgrading or
withdrawal of the current ratings of the Notes issued by the Issuers, or that
the contemplated amendment will reduce such downgrading or prevent such
withdrawal, and (b) each Issuer and each Liquidity Bank has given its prior
written consent to such amendment (such consent not being unreasonably withheld
or delayed).
ARTICLE 20. LIMITED RECOURSE - NON PETITION
20.1. Limited Recourse
Each of the Parties agrees to limit its claims and recourse against ESTER
FINANCE (including in the event of a breach by ESTER FINANCE of any of its
representations and warranties, or any of its obligations hereunder) to the
amount of the Available Funds on the relevant date.
20.2. Non Petition
Each of the Parties irrevocably and unconditionally undertakes and agrees:
(a) not to exercise any rights of contractual or other recourse which it may
have against ESTER FINANCE in the event of a breach by ESTER FINANCE of
any of its representations and warranties, or any of its obligations under
this Master Complementary Deposit Agreement, except in the event of the
gross negligence (faute lourde) or wilful misconduct (dol) on the part of
ESTER FINANCE; and
(b) not to institute any legal proceedings, take other steps or institute
other proceedings against ESTER FINANCE, the purpose or effect of which is
the appointment of a conciliator or an ad hoc agent, or the opening of
receivership proceedings or insolvency proceedings (redressement
judiciaire or liquidation judiciaire) or any other similar proceedings.
ARTICLE 21. GOVERNING LAW - JURISDICTION
21.1 This Master Complementary Deposit Agreement shall be governed by French
law.
21.2 Any dispute as to the validity, interpretation, performance or any other
matter arising out of this Master Complementary Deposit Agreement shall be
subject to the jurisdiction of the competent courts of Paris (Cour d'appel de
Paris). The choice of this jurisdiction is entirely for the benefit of the
Purchaser which shall retain the right to bring proceedings in any other
competent court.
- 15 -
Made in Paris,
On 10 December, 2004, in four (4) originals.
ESTER FINANCE
/s/ Richard Sinclair
---------------------------------
Name : Richard Sinclair
Title : Director General
GOODYEAR DUNLOP TIRES FINANCE EUROPE B.V.
/s/ Ronald M. Archer
---------------------------------
Name : Ronald M. Archer
Title : Vice President-Finance and Chief
Financial Officer
EUROFACTOR
/s/ Nathalie Rossen
---------------------------------
Name : Nathalie Rossen
Title :
CALYON
/s/ Richard Sinclair /s/ G. Campagne-Simon
- ------------------------------ --------------------------
Name : Richard Sinclair Name :
Title : Executive Director Title :
- 16 -
SCHEDULE 1. CALCULATION OF THE AMOUNT OF THE COMPLEMENTARY DEPOSIT
1. DURING THE REPLENISHMENT PERIOD, UNLESS AN EARLY AMORTISATION EVENT DESCRIBED
IN ARTICLE 13.3. OF THE GENERAL MASTER PURCHASE AGREEMENT HAS OCCURRED AND A
PROCEDURE OF SEPARATION OF FLOWS UNDER THE COLLECTION ACCOUNT AGREEMENTS HAS
BEEN IMPLEMENTED
1.1. AMOUNT OF THE COMPLEMENTARY DEPOSIT ON THE INITIAL SETTLEMENT DATE
COMPLEMENTARY DEPOSIT = Initial Purchase Price of Purchasable
Receivables;
- Subordinated Deposit;
- Senior Deposit;
- Adjusted Collections calculated as
of such date.
1.2. AMOUNT OF THE COMPLEMENTARY DEPOSIT ON EACH FUNDED SETTLEMENT DATE
COMPLEMENTARY DEPOSIT = Complementary Deposit as of the preceding
Settlement Date
+ Initial Purchase Price of Purchasable
Receivables to be purchased on such
Settlement Date;
- Adjusted Collections calculated as
of such Settlement Date;
- Amount of the Subordinated Deposit on
such Settlement Date minus the amount
of the Subordinated Deposit on the
preceding Settlement Date;
- Amount of the Senior Deposit on such
Settlement Date minus the amount of
the Senior Deposit on the preceding
Settlement Date;
+ Deferred Purchase Price calculated as
of such Settlement Date.
- 17 -
1.3. AMOUNT OF THE COMPLEMENTARY DEPOSIT ON EACH INTERMEDIARY SETTLEMENT DATE
COMPLEMENTARY DEPOSIT = Complementary Deposit as of the preceding
Settlement Date
+ Initial Purchase Price of Purchasable
Receivables to be purchased on such
Settlement Date;
- Adjusted Collections calculated as of
such Settlement Date;
- Amount of the Subordinated Deposit on
such Settlement Date minus the amount
of the Subordinated Deposit on the
preceding Settlement Date;
+ Excess Foreseen Collections to be
received in cash on the Purchaser's
Account for such Settlement Date.
2. DURING THE REPLENISHMENT PERIOD, IF AN EARLY AMORTISATION EVENT DESCRIBED IN
ARTICLE 13.3. OF THE GENERAL MASTER PURCHASE AGREEMENT HAS OCCURRED AND A
PROCEDURE OF SEPARATION OF FLOWS UNDER THE COLLECTION ACCOUNT AGREEMENTS HAS
BEEN IMPLEMENTED
2.1. AMOUNT OF THE COMPLEMENTARY DEPOSIT ON A FUNDED SETTLEMENT DATE
COMPLEMENTARY DEPOSIT = Complementary Deposit as of the preceding
Settlement Date
+ Initial Purchase Price of Purchasable
Receivables to be purchased on such
Settlement Date;
- Adjusted Collections calculated as of
such Settlement Date;
- amount of the Subordinated Deposit on
such Settlement Date minus the amount
of the Subordinated Deposit on the
preceding Settlement Date;
- amount of the Senior Deposit on such
Settlement Date minus the amount of
the Senior Deposit on the preceding
Settlement Date;
- 18 -
- any amount received on the Purchaser's
Collection Accounts within the period
between the Assessment Date preceding
such Settlement Date and the preceding
Assessment Date;
+ Deferred Purchase Price calculated as
of such Settlement Date.
2.2. AMOUNT OF THE COMPLEMENTARY DEPOSIT ON AN INTERMEDIARY SETTLEMENT DATE
COMPLEMENTARY DEPOSIT = Complementary Deposit as of the preceding
Settlement Date
+ Initial Purchase Price of Purchasable
Receivables to be purchased on such
Settlement Date;
- Adjusted Collections calculated as of
such Settlement Date;
- amount of the Subordinated Deposit on
such Settlement Date minus the amount
of the Subordinated Deposit on the
preceding Settlement Date;
- any amount received on the Purchaser's
Collection Accounts within the period
between the Assessment Date preceding
such Settlement Date and the preceding
Assessment Date.
- 19 -