EXHIBIT 4.2
GOODYEAR
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AMENDMENT NO.2 TO THE
MASTER SUBORDINATED DEPOSIT AGREEMENT
DATED DECEMBER 10, 2004
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DATED 23 MAY 2005 AND 26 AUGUST, 2005
BETWEEN
EUROFACTOR
as Agent
CALYON
as Calculation Agent
ESTER FINANCE TITRISATION
as Purchaser
AND
GOODYEAR DUNLOP TIRES FINANCE EUROPE B.V.
as Subordinated Depositor and Centralising Unit
En accord entre les parties, les
presentes reliees par le procede
[GIDE LOGRETTE NOUEL LOGO] ASSEMBLACT R.C. empechant toute
substitution ou addition sont
seulement signees a la derniere page.
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26, COURS ALBERT 1ST 75008 PARIS TEL. +33 (0)1 40 75 60 00
FAX +33 (0)1 43 59 37 79
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2
THIS SECOND AMENDMENT IS ENTERED INTO BETWEEN:
1. ESTER FINANCE TITRISATION, 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 414 886 226, whose representative is duly
authorised for the purpose of this Second Amendment (hereafter referred to
as the "PURCHASER");
2. EUROFACTOR, a company incorporated under French law and authorised as a
credit institution (etablissement de credit), 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 Second Amendment (hereafter referred to as the "AGENT");
3. 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 Second Amendment (hereafter referred to as the
"CALCULATION AGENT");
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 Companies Registry of
Amsterdam under the number 34197964, whose representative is duly
authorised for the purpose of this Second Amendment (hereafter referred to
as the "SUBORDINATED DEPOSITOR" or the "CENTRALISING UNIT");
All individually referred hereinafter to as an "AMENDMENT PARTY" and
collectively referred to as the "AMENDMENT PARTIES".
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WHEREAS;
1. The Purchaser, the Agent, the Subordinated Depositor and the Calculation
Agent entered into on December 10, 2004 a master subordinated deposit
agreement (the "MASTER SUBORDINATED DEPOSIT AGREEMENT").
2. The Purchaser will finance the acquisition of Purchasable Receivables (a)
partly out of the Senior Deposit effected by the Depositor with the
Purchaser in accordance with the Master Senior Deposit Agreement and (b)
partly by way of set-off against any amount due and payable by the
Centralising Unit to the Purchaser in connection with (i) the Subordinated
Deposit and (ii) the Complementary Deposit.
3. As of the 23 May 2005, the Purchaser, the Agent, the Subordinated
Depositor and the Calculation Agent agreed to modify schedule 1 of the
Master Subordinated Deposit Agreement in order to include the Discount
Reserve in the calculation of the Overcollateralisation Rate set forth
therein.
4. As of the date hereof, the Purchaser, the Agent, the Subordinated
Depositor and the Calculation Agent agree to modify schedule 1 of the
Master Subordinated Deposit Agreement in order to include the Exchange
Rate Reserve in the calculation of the Overcollateralisation Rate set
forth therein.
5. The Amendment Parties have agreed to enter into this amendment to the
Master Subordinated Deposit Agreement (the "SECOND AMENDMENT") in order to
amend the provisions of the Master Subordinated Deposit Agreement in
accordance with the terms and conditions provided for under this
amendment, subject to the provisions of article 19 of the Master
Subordinated Deposit Agreement.
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IT IS HEREBY AGREED AS FOLLOWS:
ARTICLE 1. DEFINITIONS
Except as otherwise defined herein, capitalised terms and expressions used in
the Second Amendment (including their recitals) shall have the same meaning as
ascribed to them in the General Master Purchase Agreement, as amended and
restated on the date hereof. The Schedules hereto shall form an integral part of
this Second Amendment.
ARTICLE 2. INTERPRETATION
In this Second Amendment, unless the context calls for another interpretation:
(a) reference to Articles and Schedules shall be construed as references to
the articles and schedules of this Second Amendment. Any reference to this
Second Amendment includes a reference to its recitals and schedules;
(b) headings are for convenience only and shall not affect the interpretation
of the Second Amendment;
(c) words in the singular shall cover the plural and vice versa;
(d) references to the time of the day shall refer to Paris time, unless
otherwise stipulated;
(e) reference to any person shall include its permitted assignee, transferee,
successors or any person deriving title under or through it;
(f) words appearing in this Second Amendment in a language other than English
shall have the meaning ascribed to them under the law of the corresponding
jurisdiction and such meaning shall prevail over their translation into
English, if any;
(g) a reference to a document shall be construed as a reference to such
document as may be amended, supplemented or replaced by novation;
(h) references to any Securitisation Document shall be construed to mean such
securitisation document, as amended and restated on the date hereof or as
may be amended and supplemented from time to time.
ARTICLE 3. PURPOSE
3.1 The purpose of this Second Amendment is to set out the conditions according
to which the Amendment Parties have agreed to amend and restate the Master
Subordinated Deposit Agreement to insert the Exchange Rate Reserve in the
calculation of the Overcollateralisation Rate appended to schedule 1 of this
Master Subordinated Deposit Agreement.
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3.2 Therefore, as from the date of this Second Amendment and on the basis of the
amendments agreed upon by the Amendment Parties, the terms and conditions of the
Master Subordinated Deposit Agreement, as such terms and conditions are set out
in Schedule 1 to this Second Amendment, shall apply to the Amendment Parties.
ARTICLE 4. TERM
This Second Amendment shall take effect on the date hereof, provided that all
conditions precedent set out in schedule 2 of Amendment No.2 to the General
Master Purchase Agreement have been fulfilled.
ARTICLE 5. CONDITIONS PRECEDENT TO THE EXECUTION OF THIS SECOND AMENDMENT
Prior to the execution of this Second Amendment, the following conditions must
have been complied with:
(a) the Rating Agencies have:
(i) been informed of the contemplated amendment, and
(ii) have confirmed that the amendments contemplated therein will not
entail a downgrading or withdrawal of the current ratings of the
Notes issued by the Issuer in accordance with the provisions of
article 19 of the Master Subordinated Deposit Agreement;
(b) each Issuer and each Liquidity Bank has given its prior written consent to
such Second Amendment.
ARTICLE 6. REPRESENTATIONS AND WARRANTIES
The Subordinated Depositor hereby represents and warrants to the Purchaser, as
follows:
(a) it is a liability company duly incorporated and validly existing under
Dutch law and has the capacity:
(i) 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
(ii) to enter into and perform its obligations under this Second
Amendment;
(b) the execution of this Second Amendment does not require any authorisation
with respect to the Subordinated Depositor that has not already been
obtained and communicated to the Purchaser, unless, in the case of any
Governmental Authorisation, the failure to
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obtain such authorisation would not be reasonably likely to result in a
Material Adverse Effect;
(c) the execution of this Second Amendment and the performance of the
obligations under this Second Amendment do not contravene any of the
provisions of the Subordinated 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;
(d) the obligations arising out of this Second Amendment are binding on the
Subordinated Depositor and enforceable in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, moratorium and other
laws affecting creditors' rights generally;
(e) in the event that, in accordance with the provisions of this Second
Amendment and the General Master Purchase Agreement as amended and
restated on the date hereof, the Subordinated Depositor is not repaid in
full on the Program Expiry Date, the Subordinated 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 as
amended and restated on the date hereof); and
(f) the constitution of the Subordinated Deposit as cash collateral
(affectation a titre de gage-especes) in favour of the Purchaser, as set
forth in article 10 of the Master Subordinated Deposit Agreement, complies
with the Subordinated Depositor's corporate interest and does not exceed
its financial capabilities; the Subordinated Depositor has entered into
Intercompany Arrangements with the Sellers and GOODYEAR DUNLOP TIRES
EUROPE B.V., pursuant to which the Subordinated Depositor shall receive
from each Seller any necessary consideration for making the Subordinated
Deposit and shall be indemnified as is appropriate by each Seller and
GOODYEAR DUNLOP TIRES EUROPE B.V. in respect of the losses incurred by the
Subordinated Depositor as a result of the Subordinated Deposit made under
this Master Subordinated Deposit Agreement.
ARTICLE 7. NO NOVATION
7.1 The Second Amendment does not create any novation of the Master Subordinated
Deposit Agreement. The Amendment Parties agree that the provisions of the Master
Subordinated Deposit Agreement, as amended and restated by this Second
Amendment, shall remain in full force and effect.
7.2 The Amendment Parties accept that any reference to the Master Subordinated
Deposit Agreement in another contract entered by one Amendment Party is
interpreted as a reference to the Master Subordinated Deposit Agreement as
modified by the Second Amendment.
7.3 The Amendment Parties hereby acknowledge and, if necessary, accept all
amendments made to the Transaction Documents on the date hereof.
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ARTICLE 8. GOVERNING LAW - JURISDICTION
8.1 This Second Amendment shall be governed by, and construed in accordance
with, French law.
8.2 Any dispute as to the validity, interpretation, performance or any other
matter arising out of this Second Amendment shall be subject to the jurisdiction
of the competent courts of 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.
Made in Paris,
on 26 August, 2005, in 4 (four) originals.
GOODYEAR DUNLOP TIRES FINANCE EUROPE B.V.
represented by /s/ Dominique Golsong
---------------------
duly authorised for the purpose of executing this Second Amendment
EUROFACTOR
represented by /s/ Nathalie Mosser
-------------------
duly authorised for the purpose of executing this Second Amendment
ESTER FINANCE TITRISATION
represented by /s/ Richard Sinclair
--------------------
duly authorised for the purpose of executing this Second Amendment
CALYON
represented by /s/ Richard Sinclair and by E. CAMPAGNE-SIMON
--------------------
duly authorised for the purpose of executing this second Amendment
8
SCHEDULE 1.
AMENDED AND RESTATED MASTER SUBORDINATED DEPOSIT
AGREEMENT
GOODYEAR
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AMENDED AND RESTATED MASTER
SUBORDINATED DEPOSIT AGREEMENT
DATED 10 DECEMBER, 2004
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AS AMENDED AND RESTATED ON DATED 23 MAY, 2005 AND ON 26 AUGUST,
2005
Between
EUROFACTOR
as Agent
CALYON
as Calculation Agent
ESTER FINANCE TITRISATION
as Purchaser
AND
GOODYEAR DUNLOP TIRES FINANCE EUROPE
B.V.
as Subordinated Depositor or Centralising Unit
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E-MAIL INFO@GUIDE.COM WWW.GIDE.COM
2
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 Subordinated Deposit ........................................................... 7
ARTICLE 6. No interest- no unavailability fee ........................................................... 8
ARTICLE 7. Repayment .................................................................................... 9
ARTICLE 8. Payments ..................................................................................... 10
ARTICLE 9. Representations and warranties ............................................................... 10
ARTICLE 10. Application of the Subordinated 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 .............................................................................. 12
ARTICLE 14. Transferability of this Agreement ............................................................ 13
ARTICLE 15. Notices ...................................................................................... 13
ARTICLE 16. Exercise of rights ........................................................................... 13
ARTICLE 17. Indivisibility ............................................................................... 14
ARTICLE 18. Partial invalidity ........................................................................... 14
ARTICLE 19. Amendments ................................................................................... 14
ARTICLE 20. Limited recourse - Non petition .............................................................. 15
ARTICLE 21. Governing law - jurisdiction ................................................................. 15
SCHEDULE 1. CALCULATION OF THE OVERCOLLATERALISATION RATE .............................................. 17
SCHEDULE 2. CALCULATION OF THE SUBORDINATED DEPOSIT .................................................... 21
3
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 hoard (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 9 quai du President
Paul Doumer, 92920 Paris La Defense Cedex, France, registered with the Trade and
Companies Registry of Nanterre 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 (the "CENTRALISING UNIT" or the "SUBORDINATED
DEPOSITOR").
4
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 OE GmbH, 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 Belgium,
England, 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
the receivables purchase agreements (the" RECEIVABLES PURCHASE AGREEMENTS")
governed by French, German, Italian and Spanish law. Notwithstanding the
foregoing, GOODYEAR DUNLOP TIRES OE GmbH will assign domestic receivables
governed by German law and cross border receivables governed by French law,
English law, Belgian law, German law, Italian law and Spanish law under the
Receivables Purchase Agreement to which it is a party, in each case in
accordance with the provisions of the law applicable to such receivable.
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
the present 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 a master
complementary deposit agreement (the "MASTER COMPLEMENTARY DEPOSIT
AGREEMENT").
The Purchaser and the Subordinated Depositor are willing to define the terms and
conditions according to which the Subordinated Deposit shall be made by the
Subordinated Depositor with the Purchaser and shall be pledged as cash
collateral (affecte a titre de gage-especes) in favour of the Purchaser and have
agreed to enter into this agreement under the terms and subject to the
conditions set forth hereunder.
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NOW IT IS HEREBY AGREED AS FOLLOWS:
CHAPTER I - INTERPRETATION
ARTICLE 1. DEFINITIONS
Capitalised terms and expressions used in this Master Subordinated Deposit
Agreement shall have the same meaning as ascribed to such terms and expressions
in the Master Definitions Schedule attached as 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 Subordinated
Deposit Agreement.
(ii) In this Master Subordinated 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 Subordinated Deposit Agreement and references to this
Master Subordinated Deposit Agreement include its recitals and
schedules;
(b) headings are for convenience only and shall not affect the
interpretation of the this Master Subordinated Deposit Agreement;
(c) words in the plural shall cover the singular and vice versa;
(d) references to the time of the day shall refer to Paris time, unless
otherwise stipulated;
(e) reference to any person shall include its permitted assignee,
transferee, successors or any person deriving title under or through
it;
(f) references to a document shall mean this document, as amended,
replaced by novation or varied from time to time;
(g) words appearing in this Master Subordinated Deposit Agreement in a
language other than English shall have the meaning ascribed to them
under the law of the corresponding jurisdiction and such meaning
shall prevail over their translation into English, if any;
6
(h) 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; and
(i) references to any Securitisation Document shall be construed to mean
such securitisation document, as amended and restated on the date
hereof and as may be amended and supplemented from time to time
thereafter.
CHAPTER II - PURPOSE - DURATION
ARTICLE 3. PURPOSE OF THIS AGREEMENT
3.1 The Subordinated Depositor shall make a Subordinated Deposit with the
Purchaser in accordance with the terms of this Master Subordinated Deposit
Agreement.
3.2 The Subordinated Deposit made by the Subordinated Depositor under this
Master Subordinated Deposit Agreement shall be applied and pledged as cash
collateral (affects a titre de gage-especes) in favour of the Purchaser in
accordance with and subject to the provisions of Article 10 below.
All repayments of principal to be made by the Purchaser to the Subordinated
Depositor in respect of the Subordinated 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 under Article 7 below. During the
Amortisation Period, such repayments under the Subordinated Deposit shall be
subject to the order of priority of payments provided for under article 16 of
the General Master Purchase Agreement and shall, in particular, occur after the
full and definitive repayment of any sum due under the Senior Deposit.
The Subordinated Depositor agrees that, for the purposes of the repayment of
sums due to it under the Subordinated Deposit or otherwise under this Master
Subordinated Deposit Agreement prior to the Program Expiry Date, it will look
solely to the amount of the sums received by the Purchaser under the General
Master Purchase Agreement until the Program Expiry Date in respect of the Sold
Receivables and that the Subordinated Depositor shall not, in such capacity,
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 Subordinated Deposit Agreement shall enter into force on the
Closing Date and shall terminate on the Program Expiry Date.
4.2 The Subordinated Deposit shall be repaid in the manner described in Article
7 below.
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CHAPTER III - AMOUNT OF THE SUBORDINATED
DEPOSIT
ARTICLE 5. AMOUNT OF THE SUBORDINATED DEPOSIT
5.1 Amount of the Subordinated Deposit
On each Calculation Date preceding a Settlement Date during the Replenishment
Period, the amount of the Subordinated Deposit shall be calculated in accordance
with the provisions of Schedule 1 and Schedule 2.
On each Calculation Date, during the Replenishment Period, the Agent shall
calculate the difference between (i) the amount of the Subordinated Deposit on
the following Settlement Date, and (ii) the amount of the Subordinated Deposit
on the preceding Settlement Date.
During the Amortisation Period until the Program Expiry Date, the amount of the
Subordinated Deposit shall be equal to the amount of the Subordinated Deposit as
at the last Funded Settlement Date, and shall be repaid, after full repayment of
the Senior Deposit, in accordance with the provisions of Article 7.
The amount of the Subordinated Deposit shall be calculated by the Agent on each
Calculation Date.
5.2 Calculation and setting up of the Subordinated 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
Subordinated Depositor the amount of the Subordinated 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 each Calculation Date thereafter during the Replenishment Period, the
Agent shall calculate and notify forthwith the Purchaser and the Subordinated
Depositor of the difference between (i) the amount of the Subordinated Deposit
on the related Settlement Date, and (ii) the amount of the Subordinated Deposit
on the preceding Settlement Date, together with the details of such calculation.
If the new amount of the Subordinated Deposit is higher than the amount of the
Subordinated Deposit on the preceding Settlement Date, the Subordinated Deposit
shall be increased by the Euro amount of the difference (the "INCREASE IN THE
SUBORDINATED DEPOSIT").
If the new amount of the Subordinated Deposit is lower than the amount of the
Subordinated Deposit on the preceding Settlement Date, the Subordinated Deposit
shall be reduced by the Euro amount of the difference (the "REDUCTION OF THE
SUBORDINATED DEPOSIT").
8
For the avoidance of doubt, any reference to the Subordinated Deposit in the
Transaction Documents shall be to the Subordinated Deposit as it may be
increased or reduced in accordance with this Article 5.2.1.
5.2.2 Setting up of the Subordinated Deposit
(i) On the Initial Settlement Date, before 9.00 a.m. (Paris time), the
Subordinated Depositor shall make a Subordinated Deposit in Euro with the
Purchaser. Such Subordinated Deposit shall be made by crediting the Current
Account, for the amount calculated in accordance with Article 5.2.1 (i) above,
in accordance with and subject to the provisions of article 6.4 of the General
Master Purchase Agreement.
(ii) On each Settlement Date after the Initial Settlement Date, during the
Replenishment Period, before 9.00 am. (Paris time):
(a) the Subordinated Depositor shall make a deposit in respect of the
Subordinated Deposit in Euro with the Purchaser, for an amount
corresponding to any Increase in the Subordinated Deposit, as
calculated in accordance with Article 5.2.1 (ii) above; or
(b) the Purchaser shall repay a portion of the Subordinated Deposit to
the Subordinated Depositor, for an amount corresponding to any
Reduction of the Subordinated Deposit, as calculated in accordance
with Article 5.2.1 (ii) above, subject to the provisions of Article
7 below.
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 - NO UNAVAILABILITY FEE
The Purchaser and the Subordinated Depositor hereby expressly agree that the
Subordinated Deposit shall not bear interest and that no unavailability fee
shall be paid to the Subordinated Depositor in relation to the making of the
Subordinated Deposit.
The Subordinated Depositor acknowledges that it has entered into intercompany
arrangements with the Sellers (the "INTERCOMPANY ARRANGEMENTS") pursuant to
which the Subordinated Depositor will receive from each Seller any necessary
consideration for the making of the Subordinated 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
Subordinated Deposit made under this Master Subordinated Deposit Agreement.
9
CHAPTER IV - REPAYMENT - PAYMENTS
ARTICLE 7. REPAYMENT
7.1 Principle
The repayment of the Subordinated 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 Article 7.2 below, and in
particular shall be subject to the full repayment of any amount due under the
Senior Deposit.
7.2 Repayment of the Subordinated Deposit
7.2.1 On each Settlement Date during the Replenishment Period, the Purchaser
shall repay, if applicable, the Subordinated Deposit to the Subordinated
Depositor, for an amount equal to any Reduction of the Subordinated Deposit in
the manner 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 to the Subordinated Depositor the
Subordinated Deposit, to the extent of the amount resulting from the allocations
set out in article 16 of the General Master Purchase Agreement.
The Parties agree that, for the avoidance of doubt, and in accordance with the
order of priority set forth under article 16 of the General Master Purchase
Agreement which the Centralising Unit expressly acknowledges and accepts, the
Subordinated Deposit shall not be repaid during the Amortisation Period, inter
alia, until full repayment of the Senior Deposit.
7.2.3 Such repayment shall be 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.
7.2.4 In the event that, on the Program Expiry Date, the Subordinated Deposit
has not been repaid in full in accordance with the provisions of this Master
Subordinated Deposit Agreement, the Purchaser shall be irrevocably released from
any repayment obligations hereunder.
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 Subordinated Deposit
in the order specified in article 16 of the General Master Purchase Agreement.
10
ARTICLE 8. PAYMENTS
8.1 All payments to be made in accordance with this Master Subordinated 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 Subordinated Depositor in
respect of the Subordinated Deposit and (ii) any amount due and payable by the
Subordinated Depositor to the Purchaser under this Agreement or any of the
Transaction Documents.
CHAPTER V - GENERAL PROVISIONS
ARTICLE 9. REPRESENTATIONS AND WARRANTIES
The Subordinated 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 Subordinated Deposit Agreement;
(ii) the execution of this Master Subordinated Deposit Agreement does not
require any authorisation with respect to the Subordinated Depositor that
has not already been obtained and communicated to the Purchaser, unless,
in the case of any Governmental 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 Subordinated Deposit Agreement and the
performance of the obligations under this Master Subordinated Deposit
Agreement do not contravene any of the provisions of the Subordinated
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 Subordinated Deposit Agreement
are binding on the Subordinated Depositor and enforceable in accordance
with their respective terms, subject to applicable bankruptcy, insolvency,
moratorium and other laws affecting creditors' rights generally;
11
(v) in the event that, in accordance with the provisions of this Master
Subordinated Deposit Agreement and the General Master Purchase Agreement,
the Subordinated Depositor is not repaid in full on the Program Expiry
Date, the Subordinated 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 Subordinated 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 Subordinated Depositor's
corporate interest and does not exceed its financial capabilities; the
Subordinated Depositor has entered into Intercompany Arrangements with the
Sellers and GOODYEAR DUNLOP TIRES EUROPE B.V., pursuant to which the
Subordinated Depositor shall receive from each Seller any necessary
consideration for making the Subordinated Deposit and shall be indemnified
as is appropriate by each Seller and GOODYEAR DUNLOP TIRES EUROPE B.V. in
respect of the losses incurred by the Subordinated Depositor as a result
of the Subordinated Deposit made under this Master Subordinated Deposit
Agreement.
CHAPTER VI - CASH COLLATERAL
ARTICLE 10. APPLICATION OF THE SUBORDINATED DEPOSIT AS CASH COLLATERAL FOR THE
BENEFIT OF THE PURCHASER
10.1 The Subordinated Depositor hereby irrevocably agrees that the Subordinated
Deposit made under this Master Subordinated Deposit Agreement shall, by virtue
of this Article, be pledged and consequently applied as cash collateral (affects
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 by the
Debtors 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.
The Subordinated Depositor hereby irrevocably agrees that the pledge and
application of the Subordinated Deposit as cash collateral (affectation du depot
subordonne a titre de gage-especes) in favour of the Purchaser shall transfer to
the Purchaser the ownership of those sums received under the Subordinated
Deposit.
10.2 The cash collateral (gage-especes) shall be deemed created and effective as
of the date on which the Subordinated Deposit is made with the Purchaser.
10.3 The obligation of the Purchaser to transfer back to the Subordinated
Depositor the Subordinated Deposit (creance en restitution) shall automatically
be reduced by any principal amount paid by the Purchaser to the Subordinated
Depositor on account of the Subordinated Deposit in accordance with Article 7
above.
10.4 The outstanding amount of the Subordinated Deposit, as of the Program
Expiry Date shall be applied by the Purchaser against the aggregate of (a) any
remaining sums due to the
12
Purchaser in respect of the Sold Receivables, and (b) any remaining sums due to
the Purchaser by the Sellers or the Centralising Unit pursuant to the
Transaction Documents, remaining due as of the Program Expiry Date.
The amount so applied shall automatically reduce the obligation of the
Purchaser, to transfer back the outstanding amount of the Subordinated Deposit
to the Subordinated Depositor (creance en restitution).
CHAPTER VII - MISCELLANEOUS
ARTICLE 11. FEES AND EXPENSES
The Subordinated 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 the
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 that 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 Subordinated 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 Subordinated Depositor in respect of the making of the
Subordinated Deposit.
ARTICLE 13. CONFIDENTIALITY
For the purposes to this Master Subordinated Deposit Agreement, the Parties
agree to be bound by the provisions relating to confidentiality as provided for
by article 31 of the General Master Purchase Agreement.
13
ARTICLE 14. TRANSFERABILITY OF THIS AGREEMENT
Subject to article 12 above, this Master Subordinated Deposit Agreement is
concluded on the intuitu personal of the Parties to this Master Subordinated
Deposit Agreement. Therefore, none of the Parties may transfer this Master
Subordinated 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
Subordinated 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 Subordinated
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 Subordinated 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 Subordinated 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.
ARTICLE 16. EXERCISE OF RIGHTS
16.1 All rights conferred on the Purchaser under this Master Subordinated
Deposit Agreement or by any other document delivered pursuant to or incidental
to this Master Subordinated 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 Subordinated 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 shall not prevent the
Purchaser or the Subordinated Depositor from exercising such a right again in
the future, or from exercising any other right.
14
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 Complementary Deposit Agreement
becomes void or ceases to be effective and enforceable for any reason
whatsoever, this Master Subordinated 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 Subordinated Deposit Agreement,
the General Master Purchase Agreement, the Receivables Purchase Agreements, the
Master Subordinated Deposit Agreement and the Master Complementary 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 Subordinated 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
fullest 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 comes as close as reasonably
possible to 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 Subordinated Depositor.
ARTICLE 19. AMENDMENTS
No amendment to this Master Subordinated Deposit Agreement may be made without
the written consent of each other Party thereto 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 any Notes issued by the Issuers, or that
the contemplated amendment will reduce a downgrading or withdrawal which would
otherwise occur, but for such amendment being made, 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).
15
ARTICLE 20. LIMITED RECOURSE - NON PETITION
20.1. Limited recourse
Each of the Parties agrees to limit their respective 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 Subordinated 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 Subordinated 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 Subordinated Deposit Agreement shall be
subject to the jurisdiction of the competent courts of Paris (Covr 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.
16
Executed in four (4) originals in Paris on 10 December, 2004.
ESTER FINANCE
___________________________
Name:
Title:
GOODYEAR DUNLOP TIRES FINANCE EUROPE B.V.
___________________________
Name:
Title:
EUROFACTOR
___________________________
Name:
Title:
CALYON
___________________________ ___________________________
Name: Name:
Title: Title:
17
SCHEDULE 1. CALCULATION OF THE OVERCOLLATERALISATION RATE
EUROFACTOR calculates the Overcollateralisation Rate for each Funded Settlement
Date applied for such Funded Settlement Date and the next Intermediary
Settlement Date during the Replenishment Period as follows:
Criteria such as theoretical DSO, loss horizon and dilution horizon could
be updated during the life time of the program, according to any change in
the collecting and management procedures of the Sellers as noticed during
the follow-up audits.
OVERCOLLATERALISATION RATE (m) (*) = MAXIMUM [30% - discount reserve rate;
Maximum [Loss Reserve (m) + Dilution Reserve (m); Floor Reserve (m)] + YER
Reserve (m) + Customer/Supplier Reserve (m)] + Exchange Rate Reserve
(*) As used herein, "m" means, with respect to any Funded Settlement Date, as
the case may be, the Assessment Date related to the preceding Intermediary
Settlement Date or the calendar month ending on such Assessment Date and "m-X"
means the Xth calendar month preceding such calendar month.
1. LOSS RESERVE
- Theoretical days of sales outstanding(DSO) : 81 days(**)
- Defaulted Receivables period : beyond 90 days past due
- Stress factor : 2,25
- Loss horizon : 5 months and 26 days (***)
X months and Y days
LOSS RESERVE (m) = Stress factor * Loss horizon ratio (m) * maximum within
the last 12 months of the Loss ratio (m)
Loss horizon ratio (m) = [Y/30 * Turnover (m-X) + Turnover (m-[X-1])
+ Turnover (m-[X-2]) + ... + Turnover (m)] /
[Outstanding Amount of Sold Receivables as
of the end of month m - Outstanding Amount
of Defaulted Receivables as of the end of
month m - Outstanding Amount of Net
Miscellaneous Receivables as of the end of
month m]
Turnover (m) = Gross Sold Receivables sold during the
relevant period VAT included
Loss ratio (m) = average within the 3 last calendar months
of the Defaulted ratio
Defaulted Receivables (m) = Sold Receivables that became Defaulted
Receivables during the relevant month
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Defaulted ratio (m) = Defaulted Receivables (m) / Turnover (m-
[X+1])
(**) Theoretical DSO corresponds to the average theoretical condition of payment
of invoicing as provided by the Seller at each follow up audit
(***) Loss horizon is equal to theoretical DSO plus the Defaulted Receivables
period plus 5 days.
2. DILUTION RESERVE
- - Dilution horizon : 1 month (****)
- - Stress factor (SF) : 2,25
DILUTION RESERVE (m) = [{SF * ED} + {DS - ED} * {DS/ED}] * DHR (m)
Expected Dilution (ED) = average Dilution ratio within the last 12
months
Dilution ratio (m) = Net Credit Notes (m) / Turnover (m-1)
Net credit notes (m) = new Credit Notes issued during the
relevant month, based on the reporting
template filled monthly by each seller,
excluding any Miscellaneous Accounting
Credit Entries
Dilution Spike (DS) = Maximum Dilution ratio within the last 12
months
Dilution horizon ratio (DHR) = Turnover (m) / [Outstanding Amount of Sold
Receivables as of the end of month m -
Outstanding Amount of Defaulted Receivables
as of the end of month m - Outstanding
Amount of Net Miscellaneous Receivables as
of the end of month m]
(****) Dilution horizon is equal to the estimated average amount of time elapsed
from the creation of an Eligible Receivable to the issuance of a Credit Note
pertaining thereto.
3. FLOOR RESERVE
FLOOR RESERVE (m) = [Concentration factor (m) + Dilution component (m)]
Concentration factor (m) = {Maximum [sum of the SRO on the 5 debtors
groups with the largest SRO who are non rated or non investment grade; sum
of the SRO of the 3 debtors groups with the largest SRO who are rated A-3;
sum of the SRO of the 2 debtors groups with the largest SRO rated A-2; SRO
for debtor group with the largest SRO rated A-l]} / Outstanding Amount of
Eligible Receivables as of "m"
19
SRO = Outstanding Amount of Eligible Receivables, on the
relevant Assessment Date
Debtors Group = means a group of debtors for which a parent company
owns 50% + 1 of voting rights.
Dilution component (m) = Expected Dilution (m) * Dilution horizon ratio
(m)
4. YER RESERVE
YER RESERVE (m) = Maximum Consolidated YER(1) (m) / [Outstanding Amount of
Sold Receivables as of the end of month m - Outstanding Amount of
Defaulted Receivables as of the end of month m - Outstanding Amount of Net
Miscellaneous Receivables as of the end of month m]
(1) Consolidated YER declared in the Assessment Report
5. CUSTOMER / SUPPLIER RESERVE
CUSTOMER / SUPPLIER RESERVE (m) = Customer - Suppliers outstanding(2) (m)
/ [Outstanding Amount of Sold Receivables as of the end of month m -
Outstanding Amount of Defaulted Receivables as of the end of month m -
Outstanding Amount of Net Miscellaneous Receivables as of the end of month
m]
(2) Customer- Suppliers outstanding such as declared in the Assessment Report
6. DISCOUNT RESERVE RATE
Discount reserve rate = Discount Reserve (1) / [Outstanding Amount of Sold
Receivables on such Settlement Date (2) - Outstanding Amount of Defaulted
Receivables on such Settlement Date(3) - Outstanding Amount of Net
Miscellaneous Receivables on such Settlement Date
With:
(1) The Discount Reserve is defined in Schedule 1 of the GMPA.
(2) Taking into account Purchasable Receivables to be purchased on such
Settlement Date
(3) Excluding any such receivables that, after becoming Doubtful Receivables,
have been repurchased.
By exception, the Overcollateralisation Rate for the Initial Settlement Date
will be fixed at 30%.
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7. EXCHANGE RATE RESERVE
Exchange Rate Reserve = Exchange Rate Probability * [Outstanding Amount of Sold
Receivables in GBP on such Settlement Date / Outstanding Amount of Sold
Receivables on such Settlement Date]
Exchange Rate Probability = mean + 2 * standard deviation
The mean and the standard deviation are calculated on the historical 15-day % of
change over the last 5 years of the GBP vs Euro currency rate, following a
lognormal statistic rule.
The Exchange Rate Probability shall be updated semi annually by the Agent, based
on the information received from the Calculation Agent.
21
SCHEDULE 2. CALCULATION OF THE SUBORDINATED DEPOSIT
ON EACH SETTLEMENT DATE DURING THE REPLENISHMENT PERIOD:
SUBORDINATED DEPOSIT = Overcollateralisation Rate, * [Outstanding
Amount of Sold Receivables on such
Settlement Date (1) - Outstanding Amount of
Defaulted Receivables on such Settlement
Date (2) - Outstanding Amount of Net
Miscellaneous Receivables on such Settlement
Date];
+ Outstanding Amount of Defaulted Receivables
on such Settlement Date(2)
+ Outstanding Amount of Net Miscellaneous
Receivables (3) on such Settlement Date.
(1) Taking into account Purchasable Receivables to be purchased on such
Settlement Date.
(2) Excluding any such receivables that, after becoming Doubtful Receivables,
have been repurchased.
(3) As long as the Outstanding Amount of Net Miscellaneous Receivables is
positive.
En accord entre les parties, les
presentes reliees par le procede
ASSEMBLACT R.C. empechant toute
substitution ou addition sont
seulement signees a la derniere page.