\nARTICLE IX MISCELLANEOUS……………………………………………………………………………..28<\/p>\n Section 9.1. Amendment…………………………………………………………………..28
\n Section 9.2. Further Assurances…………………………………………………………..28
\n Section 9.3. Governing Law……………………………………………………………….28
\n Section 9.4. Notices…………………………………………………………………….28
\n Section 9.5. No Waiver; Remedies………………………………………………………….29
\n Section 9.6. Binding Effect………………………………………………………………29
\n Section 9.7. Costs, Expenses and Taxes…………………………………………………….29
\n Section 9.8. Merger and Integration……………………………………………………….29
\n Section 9.9. Headings……………………………………………………………………29
\n Section 9.10. Execution in Counterparts…………………………………………………….29
\n Section 9.11. No Bankruptcy Petition……………………………………………………….29
\n Section 9.12. Acknowledgment of Assignments…………………………………………………30
\n Section 9.13. Termination…………………………………………………………………30<\/p>\n
EXHIBITS<\/p>\n
Exhibit A Form of UCC Certificate
\n Exhibit B Form of Contract
\n Exhibit C Form of Subordinated Note<\/p>\n
SCHEDULES<\/p>\n
Schedule I Calculation of Discounted Percentage
\n Schedule II Seller Locations
\n Schedule III Trade Names
\n Schedule IV Litigation
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
-ii-<\/p>\n
4<\/p>\n
RECEIVABLES PURCHASE AGREEMENT, dated as of April 27, 2001, between
\nTHE GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation (“GOODYEAR”), as seller
\n(the “SELLER”), and WINGFOOT A\/R LLC, a Delaware limited liability company (the
\n“ISSUER”).<\/p>\n
W I T N E S S E T H:
\n – – – – – – – – – –<\/p>\n
WHEREAS, the Seller intends to sell all of its right, title and
\ninterest in, to and under the Designated Receivables now existing or hereafter
\ncreated and the Receivables Property to the Issuer on the terms and subject to
\nthe conditions set forth in this Agreement;<\/p>\n
WHEREAS, the Issuer desires to purchase all of the Seller’s right,
\ntitle and interest in, to and under the Designated Receivables now existing or
\nhereafter created and the Receivables Property from the Seller on the terms and
\nsubject to the conditions set forth in this Agreement;<\/p>\n
WHEREAS, the Seller and the Issuer desire the transfer of the
\nDesignated Receivables and the Receivables Property from the Seller to the
\nIssuer to be a true sale providing the Issuer with the full benefits of
\nownership of the Designated Receivables; and<\/p>\n
WHEREAS, to obtain the necessary funds to purchase the Designated
\nReceivables, the Issuer has entered into a Base Indenture, dated as of the date
\nhereof (as amended, supplemented or otherwise modified from time to time, the
\n“BASE INDENTURE”), between the Issuer and The Chase Manhattan Bank, as indenture
\ntrustee, pursuant to which it will issue one or more Series of Investor Notes;<\/p>\n
NOW, THEREFORE, in consideration of the premises and of the mutual
\ncovenants and agreements contained herein, the parties hereto agree as follows:<\/p>\n
ARTICLE I
\n DEFINITIONS<\/p>\n
SECTION 1.1. DEFINITIONS. Unless otherwise defined herein, capitalized
\nterms which are used herein shall have the meanings assigned to such terms in
\nthe Definitions List attached to the Base Indenture as Schedule 1. The following
\nterms shall have the following meanings:<\/p>\n
“ACTUAL CLOSING DATE PURCHASE PRICE” is defined in SECTION 2.2.<\/p>\n
“CHARGED OFF RECEIVABLE” means a Receivable that has been written off
\n as uncollectible in accordance with the Credit and Collection Policy.<\/p>\n
“CUT-OFF DATE” means March 31, 2001.<\/p>\n
“DESIGNATED RECEIVABLE” means each Receivable other than:<\/p>\n
(i) Receivables payable by Penske Auto Centers Inc. and its
\n successors;<\/p>\n
5<\/p>\n
(ii) Receivables payable by the United States federal government or
\n any agency, department or instrumentality thereof;<\/p>\n
(iii) Receivables payable by the Seller or any Affiliate of the
\n Seller;<\/p>\n
(iv) Receivables arising from sales to retail outlets owned by the
\n Seller or any Affiliate of the Seller;<\/p>\n
(v) Receivables arising from sales made outside of the United States;
\n and<\/p>\n
(vi) Receivables evidenced by promissory notes or “instruments,” as
\n defined in Section 9-105 of the UCC as in effect in the State of
\n New York.<\/p>\n
“DISCOUNTED PERCENTAGE” is defined in SCHEDULE I hereto.<\/p>\n
“DOCUMENTS” is defined in SECTION 2.1.<\/p>\n
“INITIAL CLOSING DATE PURCHASE PRICE” is defined in SECTION 2.2.<\/p>\n
“INITIAL SETTLEMENT DATE” is defined in SECTION 2.2.<\/p>\n
“KNOWLEDGE” means the actual knowledge of (i) any Authorized Officer
\n of the Seller or (ii) any other person employed in the Seller’s Treasury
\n Department or Legal Department and responsible for the oversight or
\n administration of the transactions contemplated by the Transaction
\n Documents.<\/p>\n
“MULTIEMPLOYER PLAN” means a “multiemployer plan” (within the meaning
\n of Section 4001(a)(3) of ERISA) and to which the Seller or any ERISA
\n Affiliate of the Seller (other than one considered an ERISA Affiliate only
\n pursuant to subsection (m) or (o) of Section 414 of the Code) is making or
\n accruing an obligation to make contributions, or has within any of the
\n preceding five years made or accrued an obligation to make contributions.<\/p>\n
“PAYMENT DATE” is defined in SECTION 2.3(a).<\/p>\n
“PLAN” means, with respect to any Person, any pension plan (other than
\n a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
\n Section 412 of the Code which is maintained for employees of such Person or
\n any ERISA Affiliate of such Person.<\/p>\n
“PRIME RATE” means the rate of interest per annum publicly announced
\n from time to time by The Chase Manhattan Bank as its prime rate in effect
\n at its principal office in New York, New York; each change in the Prime
\n Rate shall be effective from and including the date such change is publicly
\n announced as being effective.<\/p>\n
“PURCHASED RECEIVABLE” means, at any time, any Designated Receivable
\n sold to the Issuer by the Seller pursuant to, and in accordance with the
\n terms of, this Agreement and not theretofore resold to the Seller pursuant
\n to SECTION 2.6 or SECTION 2.11.<\/p>\n
-2-
\n 6<\/p>\n
“PURCHASE PRICE” is defined in SECTION 2.2.<\/p>\n
“PURCHASE TERMINATION DATE” means the date on which the Issuer’s
\n obligation to purchase Receivables from the Seller shall terminate in
\n accordance with SECTION 6.1.<\/p>\n
“PURCHASE TERMINATION EVENT” is defined in SECTION 6.1.<\/p>\n
“RECEIVABLE” means the indebtedness and payment obligations of any
\n Person to the Seller or Dunlop under a Contract (including, without
\n limitation, payment obligations constituting an account or general
\n intangible or evidenced by a note, instrument, contract, security
\n agreement, chattel paper or other evidence of indebtedness or security)
\n arising from a sale of chemical products, engineered products and tire
\n products or the provision of related services by the Seller or Dunlop, as
\n the case may be, including, without limitation, any usage or mileage fees
\n payable in connection therewith, and including the right to payment of any
\n interest, sales taxes, Finance Charges, returned check or late charges and
\n other payment obligations of such Person with respect thereto.<\/p>\n
“RECEIVABLES LIST” is defined in SECTION 2.1.<\/p>\n
“RECEIVABLES PROPERTY” is defined in SECTION 2.1.<\/p>\n
“REPORTABLE EVENT” means any reportable event as defined in Section
\n 4043(b) of ERISA or the regulations issued thereunder with respect to a
\n Plan (other than a Plan maintained by an ERISA Affiliate which is
\n considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
\n Section 414 of the Code).<\/p>\n
“REPURCHASE EVENT” is defined in SECTION 2.11.<\/p>\n
“SELLER ADJUSTMENT PAYMENT” is defined in SECTION 2.5.<\/p>\n
“SELLER REPURCHASE PAYMENT” is defined in SECTION 2.6.<\/p>\n
“SUBORDINATED NOTE” is defined in SECTION 8.1.<\/p>\n
“WITHDRAWAL LIABILITIES” shall mean liability to a Multiemployer Plan
\n as a result of a complete or partial withdrawal from such Multiemployer
\n Plan, as such terms are defined in Part I of Subtitle E of Title IV of
\n ERISA.<\/p>\n
SECTION 1.2. OTHER DEFINITIONAL PROVISIONS. (a) The words “hereof”,
\n“herein” and “hereunder” and words of similar import when used in this Agreement
\nshall refer to this Agreement as a whole and not to any particular provision of
\nthis Agreement, and Section, subsection, Schedule and Exhibit references
\ncontained in this agreement are references to Sections, subsections, Schedules
\nand Exhibits in or to this Agreement unless otherwise specified.<\/p>\n
(b) The definitions contained in Section 1.1 of this Agreement are
\napplicable to the singular as well as the plural forms of such terms and to the
\nmasculine, the feminine and the neuter genders of such terms.<\/p>\n
(c) Any reference herein or in any other Transaction Document to a
\nprovision of the Code or ERISA shall be deemed a reference to any successor
\nprovision thereto.<\/p>\n
-3-
\n 7<\/p>\n
(d) All references herein to any agreement or instrument shall be
\ndeemed references to such agreement or instrument as amended, supplemented or
\notherwise modified from time to time unless there are any restrictions herein on
\nthe amendment, supplementation or modification of such agreement or instrument.<\/p>\n
ARTICLE II
\n PURCHASE AND SALE OF RECEIVABLES<\/p>\n
SECTION 2.1. PURCHASE AND SALE OF RECEIVABLES. (a) Upon the terms set
\nforth herein, the Seller hereby sells, assigns transfers and conveys to the
\nIssuer, without recourse (except to the limited extent provided herein), all of
\nits right, title and interest in, to and under:<\/p>\n
(i) all Designated Receivables existing on the Initial Closing
\n Date and thereafter arising from time to time until the Purchase
\n Termination Date;<\/p>\n
(ii) all Related Property with respect thereto;<\/p>\n
(iii) all Collections;<\/p>\n
(iv) all payment, enforcement and other rights (including
\n rescission, replevin or reclamation), but none of the obligations,
\n relating to any Designated Receivable or arising therefrom;<\/p>\n
(v) the right, title and interest of the Seller in the Dunlop
\n Receivables Purchase Agreement, including, without limitation, all of
\n the Seller’s rights, remedies, powers, interests and privileges under
\n the Dunlop Receivables Purchase Agreement (whether arising pursuant to
\n the terms thereof or otherwise available to the Seller), including,
\n without limitation, the right to enforce the Dunlop Receivables
\n Purchase Agreement, to give or withhold any and all consents,
\n requests, notices, directions, approvals or waivers thereunder and all
\n amounts due and to become due thereunder, whether payable as
\n indemnities or damages for breach thereof; and<\/p>\n
(vi) all monies due or to become due and all amounts received
\n with respect to the items listed in clauses (i), (ii), (iii), (iv)
\n and(v) and all proceeds (including, without limitation, whatever is
\n received upon the sale, exchange, collection or other disposition of
\n the foregoing and all “proceeds” as defined in Section 9-306 of the
\n UCC as in effect in the State of New York) (the property described in
\n the foregoing clauses (ii) through (vi) are hereinafter collectively
\n referred to as the “RECEIVABLES PROPERTY”).<\/p>\n
Subject to the terms and conditions set forth herein, the Issuer
\nhereby agrees to purchase the Designated Receivables and the Receivables
\nProperty from time to time (until the Purchase Termination Date).<\/p>\n
(b) On the Initial Closing Date and on the date of creation of each
\nnewly created Designated Receivable until the Purchase Termination Date, all of
\nthe Seller’s right, title and interest in, to and under (i) in the case of the
\nInitial Closing Date, all then existing Designated <\/p>\n
-4-
\n 8<\/p>\n
Receivables and all Receivables Property in respect of such Designated
\nReceivables and (ii) in the case of each such date of creation, all such newly
\ncreated Designated Receivables and all Receivables Property in respect of such
\nDesignated Receivables, shall be immediately and automatically sold, assigned,
\ntransferred and conveyed to the Issuer pursuant to paragraph (a) above without
\nany further action by the Seller or any other Person.<\/p>\n
(c) The parties to this Agreement intend that the transactions
\ncontemplated by SECTIONS 2.1(a) and (b) shall be, and shall be treated as, a
\npurchase by the Issuer and a sale by the Seller of the Purchased Receivables and
\nthe Receivables Property in respect thereof and not a lending transaction. All
\ntransfers of Designated Receivables and Receivables Property by the Seller
\nhereunder shall be without recourse to, or representation or warranty of any
\nkind (express or implied) by, the Seller, except as otherwise specifically
\nprovided herein. The foregoing sale, assignment, transfer and conveyance does
\nnot constitute and is not intended to result in a creation or assumption by the
\nIssuer of any obligation of the Seller or any other Person in connection with
\nthe Designated Receivables, the Receivables Property or any agreement or
\ninstrument relating thereto, including any obligation to any Obligor. If this
\nAgreement does not constitute a valid sale, assignment, transfer and conveyance
\nof all right, title and interest of the Seller in, to and under the Purchased
\nReceivables and the Receivables Property in respect thereof despite the intent
\nof the parties hereto, the Seller hereby grants a “security interest” (as
\ndefined in the UCC as in effect in the State of New York) in the Purchased
\nReceivables, the Receivables Property in respect thereof and all proceeds
\nthereof to the Issuer and the parties agree that this Agreement shall constitute
\na security agreement under the UCC in effect in New York.<\/p>\n
(d) In connection with the foregoing conveyances, the Seller agrees to
\nrecord and file, at its own expense, any financing statements (and continuation
\nstatements with respect to such financing statements when applicable) or, where
\napplicable, registrations in the appropriate records, with respect to the
\nDesignated Receivables and Receivables Property now existing and hereafter
\ncreated meeting the requirements of applicable law in such manner and in such
\njurisdictions as are necessary or desirable to perfect the sale of the
\nDesignated Receivables and the Receivables Property by the Seller to the Issuer,
\nand to deliver a file-stamped copy or certified statement of such financing
\nstatement or registration or other evidence of such filing or registration to
\nthe Issuer on or prior to the Initial Closing Date. The Seller hereby
\nirrevocably authorizes the Issuer and the Indenture Trustee to file one or more
\nfinancing or continuation statements, and amendments thereto, relative to all or
\nany part of the Receivables and the Receivables Property, without the signature
\nof the Seller where permitted by law.<\/p>\n
(e) In connection with the foregoing conveyances, the Seller agrees at
\nits own expense, on or prior to the Initial Closing Date, (i) to maintain its
\ncomputer systems and files containing its master database of Receivables so as
\nto enable a third party inspecting such files to readily conclude or ascertain
\nthat all Designated Receivables included in such files and all Receivables
\nProperty have been sold to the Issuer in accordance with this Agreement and (ii)
\nto deliver to the Issuer computer tapes or disks containing a true and complete
\nlist of all Designated Receivables conveyed to the Issuer specifying for each
\nsuch Designated Receivable, as of the Cut-Off Date, (i) the identification or
\nreference number assigned to such Designated Receivable by the Seller and (ii)
\nthe Outstanding Amount of such Receivable (the “RECEIVABLES LIST”).<\/p>\n
(f) As further confirmation of the sale of the Designated Receivables,
\nbut subject to SECTION 6.2(b), it is understood and agreed that the Issuer shall
\nhave the following rights:<\/p>\n
-5-
\n 9<\/p>\n
(i) the Issuer (and the Indenture Trustee, as its assignee) shall
\n have the right at any time to (A) notify, or require that the Seller
\n at its own expense notify, the respective Obligors of the Issuer’s
\n ownership of the Purchased Receivables and Receivables Property, (B)
\n direct that payment of all amounts due or to become due under the
\n Purchased Receivables be made directly to the Issuer or its designee,
\n (C) sue for collection on any Purchased Receivable or (D) sell any
\n Purchased Receivables to any Person for a price that is acceptable to
\n the Issuer (or the Indenture Trustee, as its assignee);<\/p>\n
(ii) the Seller shall, upon written request of the Issuer, and at
\n the Seller’s expense (A) deliver to the Issuer or a party designated
\n by the Issuer all documents, instruments and other records (including
\n credit files) that evidence or record the Designated Receivables and
\n all licenses, rights, copies of all relevant computer programs and any
\n necessary licenses for the use thereof (subject to the restrictions
\n contained in any license with respect thereto), related material,
\n computer tapes, disks, cassettes and data necessary or desirable to
\n the immediate collection of the Purchased Receivables by the Issuer,
\n with or without the participation of the Seller (collectively, the
\n “DOCUMENTS”) and (B) make such arrangements with respect to
\n the collection of the Purchased Receivables as may be reasonably
\n required by the Issuer. In recognition of the Seller’s need to have
\n access to any Documents which may be transferred to the Issuer
\n hereunder, whether as a result of its continuing business relationship
\n with any Obligor for Designated Receivables purchased hereunder or as
\n a result of its responsibilities as collection agent of accounts
\n receivable which are not sold to the Issuer or otherwise, the Issuer
\n shall provide to the Seller reasonable access to the Documents in
\n connection with any activity arising in the ordinary course of the
\n Seller’s business, PROVIDED, however, that the Seller shall
\n not disrupt or otherwise interfere with the Issuer’s use of and access
\n to the Documents; and<\/p>\n
(iii) the Seller hereby grants to the Issuer an irrevocable power
\n of attorney (coupled with an interest) to take any and all
\n steps in the Seller’s name necessary or desirable, in the reasonable
\n opinion of the Issuer, to collect all amounts due under the
\n Purchased Receivables, including, without limitation, enforcing the
\n Purchased Receivables, exercising all rights and remedies in respect
\n thereof and, without regard to the limitation set forth in SECTION
\n 6.2(b), endorsing the Seller’s name on checks and other instruments
\n representing Collections.<\/p>\n
SECTION 2.2. PURCHASE PRICE. The amount payable by the Issuer to the
\nSeller (the “PURCHASE PRICE”) for Designated Receivables and the Receivables
\nProperty on any Payment Date under this Agreement shall be equal to the product
\nof (a) the aggregate Outstanding Balance of the Designated Receivables sold to
\nthe Issuer hereunder since the immediately preceding Payment Date TIMES (b) the
\nDiscounted Percentage; PROVIDED that for purposes of the Payment Date occurring
\non the Initial Closing Date, the Purchase Price for the Designated Receivables
\nand the Receivables Property existing on the Initial Closing Date shall be based
\non the Designated Receivables existing as of the Cut-Off Date (the “INITIAL
\nCLOSING DATE PURCHASE <\/p>\n
-6-
\n 10<\/p>\n
PRICE”). On the first Settlement Date occurring after the Initial Closing Date
\n(the “INITIAL SETTLEMENT DATE”), the Seller shall determine the Purchase Price
\nfor the Designated Receivables and Receivables Property existing on the Initial
\nClosing Date based on the Designated Receivables existing on the Initial Closing
\nDate (the “ACTUAL CLOSING DATE PURCHASE PRICE”). If the Initial Closing Date
\nPurchase Price paid by the Issuer on the Initial Closing Date is greater than
\nthe Actual Closing Date Purchase Price, the Seller shall apply that excess to
\nreduce the outstanding principal amount of the Subordinated Note on the Initial
\nSettlement Date. If the Initial Closing Date Purchase Price paid by the Issuer
\non the Initial Closing Date is less than the Actual Closing Date Purchase Price,
\nthe Issuer shall pay that difference to the Seller on the Initial Settlement
\nDate by increasing the outstanding principal amount of the Subordinated Note in
\nthe amount of the difference.<\/p>\n
SECTION 2.3. PAYMENT OF PURCHASE PRICE. (a) Upon the fulfillment of
\nthe conditions set forth in Article III, the Purchase Price for Designated
\nReceivables and the Receivables Property shall be paid or provided for by the
\nIssuer in the manner provided below on each Business Day (each such day, a
\n“PAYMENT DATE”).<\/p>\n
(b) The Purchase Price for Designated Receivables and Receivables
\nProperty shall be paid by the Issuer on each Payment Date as follows:<\/p>\n
(i) by netting the amount of any Seller Adjustment Payments or
\n Seller Repurchase Payments pursuant to SECTION 2.5 or 2.6 against such
\n Purchase Price;<\/p>\n
(ii) to the extent available for such purpose, in cash from
\n Collections released to the Issuer pursuant to the Indenture;<\/p>\n
(iii) to the extent available for such purpose, in cash from the
\n net proceeds of the issuance of a Series of Investor Notes or an
\n increase in the Invested Amount thereof;<\/p>\n
(iv) in cash from the proceeds of capital contributed by Goodyear
\n to the Issuer, if any, in respect of its equity interest in the
\n Issuer; and<\/p>\n
(v) by means of an addition to the principal amount of the
\n Subordinated Note in an aggregate amount equal to the remaining
\n portion of the Purchase Price; PROVIDED HOWEVER that the Issuer may
\n pay the Purchase Price by means of additions to the principal amount
\n of the Subordinated Note only if, at the time of such payment and
\n after giving effect thereto, (A) the Issuer shall be in compliance
\n with Section 8.19 of the Base Indenture and (B) the aggregate
\n principal amount outstanding of the Subordinated Note would not exceed
\n 30% of the outstanding principal amount of the Purchased Receivables
\n on such Payment Date. On each Settlement Date, the Seller shall
\n determine the net increase or the net reduction in the outstanding
\n principal amount of the Subordinated Note occurring during the
\n immediately preceding Settlement Period and shall note that increase
\n or reduction on the grid attached to the Subordinated Note; PROVIDED
\n that the failure to make any such recordation or any error in such
\n grid shall not adversely affect the Seller’s rights.<\/p>\n
-7-
\n 11<\/p>\n
The Issuer hereby acknowledges that the Seller shall have no obligation to make
\nfurther capital contributions to the Issuer in respect of the Seller’s equity
\ninterest in the Issuer in order to provide funds to pay the Purchase Price to
\nthe Seller hereunder or otherwise.<\/p>\n
(c) The Issuer shall pay all amounts in respect of the Purchase Price
\nof Purchased Receivables and Receivables Property to an account of the Seller
\ndesignated by the Seller in writing to the Issuer. All payments under this
\nAgreement shall be made not later than 2:00 p.m. (New York City time) on the
\ndate specified therefor in Dollars in same day funds.<\/p>\n
(d) Whenever any payment to be made under this Agreement shall be
\nstated to be due on a day other than a Business Day, such payment shall be made
\non the next succeeding Business Day. Amounts not paid when due in accordance
\nwith the terms of this Agreement shall bear interest at a rate equal at all
\ntimes to the Prime Rate PLUS 2%, payable on demand.<\/p>\n
SECTION 2.4. NO REPURCHASE. Except to the extent expressly set forth
\nherein, the Seller shall not have any right or obligation under this Agreement,
\nby implication or otherwise, to repurchase from the Issuer any Purchased
\nReceivables or Receivables Property or to rescind or otherwise retroactively
\naffect any purchase of any Purchased Receivables or Receivables Property after
\nthe Payment Date relating thereto.<\/p>\n
SECTION 2.5. REBATES, ADJUSTMENTS, RETURNS AND REDUCTIONS;
\nMODIFICATIONS. From time to time, the Seller or Dunlop may make Dilution
\nAdjustments to Receivables in accordance with this SECTION 2.5 or Section 2.5 of
\nthe Dunlop Receivables Purchase Agreement, as the case may be. The Seller agrees
\nto pay to the Issuer, on the first Reporting Date immediately succeeding the
\ndate of the grant of any Dilution Adjustment, the amount of any such Dilution
\nAdjustment (a “SELLER ADJUSTMENT PAYMENT”) by depositing such amount into the
\nCollection Account; PROVIDED that, prior to the Purchase Termination Date, any
\nsuch Seller Adjustment Payment due to the Issuer shall be netted against the
\nPurchase Price of newly created Designated Receivables in accordance with
\nSECTION 2.3(c)(i) on the first Payment Date after the grant of such Dilution
\nAdjustment to the extent of such Purchase Price and the remaining amount of such
\nSeller Adjustment Payment due to the Issuer after such netting, if any, shall be
\npaid to the Issuer on such date in cash by depositing such amount into the
\nCollection Account. The amount of any Dilution Adjustment made on any Business
\nDay shall be set forth on the first Monthly Settlement Statement prepared after
\nthe date of the grant of such Dilution Adjustment.<\/p>\n
SECTION 2.6. LIMITED REPURCHASE OBLIGATION(a) . In the event that (i)
\nany representation or warranty contained in SECTION 4.2(c), (i), (l) or (m) in
\nrespect of any Purchased Receivable transferred to the Issuer is not true and
\ncorrect in any material respect on the date of such transfer, or (ii) there is a
\nbreach of any covenant contained in SECTION 5.1(c) or (f) or SECTION 5.3(a), (b)
\nor (c) with respect to any Purchased Receivable in any material respect or (iii)
\nthe Issuer’s interest in any Purchased Receivable is not a first priority
\nperfected ownership or security interest at any time as a result of any action
\ntaken by, or any failure to take action by, the Seller, then the Seller agrees
\nto pay to the Issuer an amount equal to the Purchase Price paid by the Issuer in
\nrespect of such Purchased Receivable (whether the Issuer paid such Purchase
\nPrice in cash or otherwise) less Collections received by the Issuer in respect
\nof such Purchased Receivable as of the date of repurchase by depositing such
\namount into the Collection Account, such payment to occur no later than the
\nSettlement Date occurring on the 30th day (or, if such 30th day is not a
\nSettlement Date, on the Settlement Date immediately succeeding such 30th day)
\nafter the day such breach or incorrectness becomes known to the Seller (unless
\nsuch breach or incorrectness shall have been cured on or before such day, in
\nwhich case the Seller shall have no <\/p>\n
-8-
\n 12<\/p>\n
obligation to repurchase such Purchased Receivable under this Section 2.6);
\nPROVIDED that, prior to the Purchase Termination Date, any such payment due and
\nowing to the Issuer shall be netted against the Purchase Price of newly created
\nDesignated Receivables in accordance with SECTION 2.3(c)(i) on the first Payment
\nDate to occur after such 30th day to the extent of such Purchase Price and the
\nremaining amount of such payment due to the Issuer after such netting, if any,
\nshall be paid to the Issuer in cash to the extent still unpaid on such Payment
\nDate by depositing such amount into the Collection Account. Any payment by the
\nSeller pursuant to this SECTION 2.6 is referred to as a “SELLER REPURCHASE
\nPAYMENT”. The obligation to reacquire any Purchased Receivable pursuant to this
\nSection 2.6 shall, upon satisfaction thereof, constitute the sole remedy
\nrespecting the event giving rise to such obligation of the Seller and is
\nexpressly limited to the Purchased Receivable affected by such event.
\nSimultaneously with any Seller Repurchase Payment with respect to any Purchased
\nReceivable, such Purchased Receivable and the Receivables Property with respect
\nthereto shall immediately and automatically be sold, assigned, transferred and
\nreconveyed by the Issuer to the Seller without any further action by the Issuer
\nor any other Person.<\/p>\n
SECTION 2.7. OBLIGATIONS UNAFFECTED. The obligations of the Seller to
\nthe Issuer under this Agreement shall not be affected by reason of any
\ninvalidity, illegality or irregularity of any Designated Receivable or any sale
\nof a Designated Receivable.<\/p>\n
SECTION 2.8. CERTAIN CHARGES. The Seller and the Issuer agree that
\nlate charge revenue, reversals of discounts, other fees and charges and other
\nsimilar items, whenever created, accrued in respect of Purchased Receivables
\nshall be the property of the Issuer notwithstanding the occurrence of a Purchase
\nTermination Event and all Collections with respect thereto shall continue to be
\nallocated and treated as Collections in respect of Purchased Receivables.<\/p>\n
SECTION 2.9. CERTAIN ALLOCATIONS. The Seller hereby agrees all
\nCollections and other proceeds received from an Obligor in respect of
\nReceivables shall be applied to Receivables owed by such Obligor (including
\nPurchased Receivables) in the order in which such Receivables were created;
\nPROVIDED, HOWEVER, that notwithstanding the foregoing, if an Obligor indicates
\nthat a particular Collection is to be applied to a specific Receivable of such
\nObligor, then such Collection shall be applied to pay such Receivable.<\/p>\n
SECTION 2.10. FURTHER ASSURANCES. From time to time at the request of
\nthe Seller, the Issuer shall deliver to the Seller such documents, assignments,
\nreleases and instruments of termination as the Seller may reasonably request to
\nevidence the reconveyance by the Issuer to the Seller of a Receivable pursuant
\nto the terms of SECTION 2.6 or 2.11(b); PROVIDED that the Issuer shall have been
\npaid all amounts due thereunder; and the Issuer and the Collection Agent shall
\ntake such action as the Seller may reasonably request, at the expense of the
\nSeller, to assure that any such Receivable, the Related Property and Collections
\nwith respect thereto do not remain commingled with other Collections hereunder.<\/p>\n
SECTION 2.11. PURCHASE OF SELLER’S INTEREST IN DESIGNATED RECEIVABLES
\nAND RECEIVABLES PROPERTY. (a) In the event of any breach of any of the
\nrepresentations and warranties set forth in SECTION 4.2(a), (b), (d) or (e), as
\nof the date made, which breach has a material adverse effect on the interests of
\nthe Issuer in the Purchased Receivables and the Receivables Property (taken as a
\nwhole) (a “REPURCHASE EVENT”), then the Issuer, by notice then given in writing
\nto the Seller, may direct the Seller to purchase all Purchased Receivables and
\nReceivables Property and the Seller shall be obligated to make such purchase on
\nthe next Settlement Date occurring at least ten Business Days after receipt of
\nsuch notice on the terms and <\/p>\n
-9-
\n 13<\/p>\n
conditions set forth in SECTION 2.11(b) below; PROVIDED, HOWEVER, that no such
\npurchase shall be required to made if, by such Settlement Date, such material
\nadverse effect shall have been cured and no other Repurchase Event shall be in
\nexistence.<\/p>\n
(b) The Seller agrees to pay to the Issuer an amount equal to the
\nPurchase Price of the Purchased Receivables being repurchased pursuant to this
\nSection 2.11 paid by the Issuer in respect of such Purchased Receivables
\n(whether the Issuer paid such Purchase Price in cash or otherwise) less
\nCollections received by the Issuer in respect of such Purchased Receivables as
\nof the date of repurchase, by depositing such amount into the Collection Account
\non the Settlement Date specified in Section 2.11(a). The obligation to reacquire
\nPurchased Receivables pursuant to this Section 2.11 shall, upon satisfaction
\nthereof, constitute the sole remedy respecting the event giving rise to such
\nobligation of the Seller. Simultaneously with the payment of such amount, all
\nPurchased Receivables and Receivables Property shall immediately and
\nautomatically be sold, assigned, transferred and conveyed by the Issuer to the
\nSeller without any further action by the Issuer or any other Person.<\/p>\n
ARTICLE III
\n CONDITIONS PRECEDENT<\/p>\n
SECTION 3.1. CONDITIONS PRECEDENT TO ISSUER’S INITIAL PURCHASE. The
\nobligation of the Issuer to purchase Designated Receivables and Receivables
\nProperty hereunder on the Initial Closing Date from the Seller is subject to the
\nconditions precedent that the Issuer shall have received on or before the date
\nof such purchase the following, each (unless otherwise indicated) dated the day
\nof such sale and in form and substance satisfactory to the Issuer:<\/p>\n
(a) SECRETARY’S CERTIFICATE. A certificate of the Secretary or an
\n Assistant Secretary of the Seller, dated the Initial Closing Date, and
\n certifying (i) that attached thereto is a true and complete copy of
\n the by-laws of the Seller, as in effect on the Initial Closing Date
\n and at all times since a date prior to the date of the resolutions
\n described in clause (ii) below, (ii) that attached thereto is a true
\n and complete copy of the resolutions, in form and substance reasonably
\n satisfactory to the Issuer, of the Board of Directors of the Seller or
\n committees thereof authorizing the execution, delivery and performance
\n of this Agreement and the other Transaction Documents to which it is a
\n party and the transactions contemplated hereby and thereby, and that
\n such resolutions have not been amended, modified, revoked or rescinded
\n and are in full force and effect, (iii) that the articles of
\n incorporation of the Seller have not been amended since the date of
\n the last amendment thereto shown on the certificate of good standing
\n (or its equivalent) furnished pursuant to clause (b) below and (iv) as
\n to the incumbency and specimen signature of each officer executing
\n this Agreement and any other Transaction Documents or any other
\n document delivered in connection herewith or therewith on behalf of
\n the Seller (on which certificates the Issuer may conclusively rely
\n until such time as the Issuer shall receive from the Seller a revised
\n certificate with respect to the Seller meeting the requirements of
\n this subsection (a));<\/p>\n
(b) CORPORATE DOCUMENTS. A short form good standing certificate
\n describing the articles of incorporation, including all amendments
\n thereto, of the Seller, certified as of a recent date by the Secretary
\n of State or other appropriate authority of the state of incorporation,
\n and a certificate of compliance, of status or of good standing, as and
\n to the extent applicable, of the Seller as of a recent date, from the
\n Secretary of State or other appropriate authority of such
\n jurisdiction;<\/p>\n
-10-
\n 14<\/p>\n
(c) GOOD STANDING CERTIFICATES. Certificates of compliance, of
\n status or of good standing, dated as of a recent date, from the
\n Secretary of State or other appropriate authority of Alabama,
\n Illinois, North Carolina, Oklahoma, Tennessee and Texas, with respect
\n to the Seller;<\/p>\n
(d) CONSENTS, LICENSES, APPROVALS, ETC. A Certificate dated the
\n Initial Closing Date of an Authorized Officer of the Seller stating
\n either (i) that all material consents, licenses and approvals required
\n in connection with the execution, delivery and performance by the
\n Seller of this Agreement and the validity and enforceability of this
\n Agreement against the Seller are in full force and effect or (ii) that
\n no such consents, licenses or approvals are so required;<\/p>\n
(e) NO LITIGATION. Confirmation that, except as set forth in
\n Schedule IV, there is no pending or, to its knowledge after due
\n inquiry, threatened action or proceeding affecting the Seller or any
\n of its Subsidiaries before any Governmental Authority that could
\n reasonably be expected to have a Seller Material Adverse Effect;<\/p>\n
(f) UCC CERTIFICATE; UCC FINANCING STATEMENTS. (i) A UCC
\n Certificate, substantially in the form of Exhibit A, duly executed by
\n an Authorized Officer of the Seller and dated the Initial Closing Date
\n and (ii) executed copies of such proper financing statements, filed
\n prior to the Initial Closing Date, naming the Seller as the seller and
\n the Issuer as the purchaser of the Designated Receivables and the
\n Receivables Property, in proper form for filing in each jurisdiction
\n in which the Issuer (or any of its assignees) deems it necessary or
\n desirable to perfect the Issuer’s ownership interest in all Designated
\n Receivables and Receivables Property (to the extent that the
\n Receivables Property constitutes property an ownership interest in
\n which may be perfected by filing a financing statement under the UCC
\n in the Applicable Jurisdictions) under the UCC or any comparable law
\n of such jurisdiction;<\/p>\n
(g) LIEN SEARCHES. A written search report listing all effective
\n financing statements that name the Seller as debtor or assignor and
\n that are filed in the jurisdictions in which filings were made
\n pursuant to subsection (f) above and in any other jurisdictions that
\n the Issuer determines are necessary or appropriate, together with
\n copies of such financing statements (none of which, except for those
\n described in subsection (f) above, shall cover any Designated
\n Receivables or Receivables Property, after giving effect to the
\n termination statements described in subsection (h) below), and tax and
\n judgment lien searches showing no such liens that are not permitted by
\n the Transaction Documents;<\/p>\n
(h) TERMINATION STATEMENTS. Executed copies of proper termination
\n statements (Form UCC-3), if any, necessary to release all security
\n interests and other rights of any Person in the Designated Receivables
\n and the Receivables Property previously granted by the Seller;<\/p>\n
(i) OTHER TRANSACTION DOCUMENTS. Original copies, executed by
\n each of the parties thereto, of each of the other Transaction
\n Documents to be executed and delivered in connection herewith,
\n including each of the Lock-Box Agreements;<\/p>\n
(j) LEGAL OPINIONS. (i) An opinion of Covington & Burling
\n (containing customary assumptions, limitations and qualifications) to
\n the effect that:<\/p>\n
-11-
\n 15<\/p>\n
(A) the sales of Purchased Receivables by the Seller to the
\n Issuer pursuant to this Agreement are true sales under New York law
\n and that such Purchased Receivables would not be property of the
\n Seller’s bankruptcy estate; and<\/p>\n
(B) a bankruptcy court would not order the substantive
\n consolidation of the assets and liabilities of the Issuer with those
\n of the Seller;<\/p>\n
(ii) One or more legal opinions from outside counsel to the
\n Seller and counsel to the Issuer (containing customary assumptions,
\n limitations and qualifications):<\/p>\n
(A) to the effect that the Seller and the Issuer, as applicable,
\n has all approvals, judicial, regulatory, legal or otherwise, needed to
\n execute, deliver and perform each Transaction Document to which it is
\n a party and that no conflict or default shall occur as a result of the
\n execution, delivery and performance thereof;<\/p>\n
(B) to the effect that the Issuer has a perfected, first
\n priority, security interest in the Purchased Receivables and the
\n proceeds thereof; and<\/p>\n
(C) addressing other customary matters;<\/p>\n
(k) RECEIVABLES LIST. A copy of the Receivables List; and<\/p>\n
(l) SYSTEMS. Evidence reasonably satisfactory to the Issuer that
\n the Seller’s systems, procedures and record keeping relating to the
\n Purchased Receivables are in all material respects sufficient and
\n satisfactory in order to permit the purchase and administration of the
\n Purchased Receivables in accordance with the terms and intent of this
\n Agreement.<\/p>\n
SECTION 3.2. CONDITIONS PRECEDENT TO ALL THE ISSUER’S PURCHASES OF
\nDESIGNATED RECEIVABLES. The obligation of the Issuer to pay for any Designated
\nReceivable and the Receivables Property with respect thereto on each Payment
\nDate (including the Initial Closing Date) shall be subject to the further
\nconditions precedent that, on and as of such Payment Date:<\/p>\n
(a) the following statements shall be true (and the acceptance by the
\nSeller of the Purchase Price for such Designated Receivable on such Payment Date
\nshall constitute a representation and warranty by the Seller that on such
\nPayment Date such statements are true):<\/p>\n
(i) the representation and warranties of the Seller contained in
\n SECTION 4.2 shall be true and correct in all material respects on and
\n as of such Payment Date as though made on and as of such date except
\n to the extent any such representation or warranty is expressly made
\n only as of another date (in which case it shall be true and correct in
\n all material respects on and as of such other date); and<\/p>\n
(ii) no Potential Purchase Termination Event arising from the
\n occurrence of an Insolvency Event with respect to the Seller described<\/p>\n
-12-
\n 16<\/p>\n
in paragraph (a)(ii) of the definition thereof shall have occurred and
\n be continuing;<\/p>\n
(b) the Issuer shall have received payment in full of all amounts for
\nwhich payment is due from the Seller pursuant to SECTIONS 2.5, 2.6 or
\n7.1; and<\/p>\n
(c) the Seller shall have complied with all of its covenants in all
\nmaterial respects and satisfied all of its obligations in all material respects
\nunder this Agreement required to be complied with or satisfied as of such date;<\/p>\n
PROVIDED, HOWEVER, that the failure of the Seller to satisfy any of the
\nforegoing conditions shall not prevent the Seller from subsequently selling
\nDesignated Receivables upon satisfaction of all such conditions or exercising
\nits rights under SECTION 2.1(b).<\/p>\n
SECTION 3.3. CONDITION PRECEDENT TO THE SELLER’S OBLIGATIONS. The
\nobligation of the Seller to sell any Designated Receivable generated by it on
\nany date (including on the Initial Closing Date) shall be subject to the
\ncondition precedent that, on the related Payment Date, the following statement
\nshall be true (and the payment by the Issuer of the Purchase Price for such
\nDesignated Receivable on such date shall constitute a representation and
\nwarranty by the Issuer that on such Payment Date such statement is true): no
\nPurchase Termination Event or Termination Event or Potential Termination Event
\nof a type set forth in SECTION 6.1(h) shall have occurred and be continuing.<\/p>\n
ARTICLE IV
\n REPRESENTATIONS AND WARRANTIES<\/p>\n
SECTION 4.1. REPRESENTATIONS AND WARRANTIES OF THE ISSUER. The Issuer
\nrepresents and warrants as to itself for the benefit of the Seller as follows:<\/p>\n
(a) It is a special purpose limited liability company duly
\n formed, validly existing and in good standing under the laws of the
\n State of Delaware, (b) is duly qualified to do business as a foreign
\n limited liability company and in good standing under the laws of each
\n jurisdiction where the character of its property, the nature of its
\n business or the performance of its obligations make such qualification
\n necessary or which shall be necessary to protect the validity and
\n enforceability of this Agreement, and (c) has all powers and all
\n governmental licenses, authorizations, consents and approvals required
\n to carry on its business as now conducted and for purposes of the
\n transactions contemplated by this Agreement.<\/p>\n
(b) The execution, delivery and performance by the Issuer of this
\n Agreement (i) is within the Issuer’s power, has been duly authorized
\n by all necessary action, (ii) requires no consent or action by or in
\n respect of, or filing with, any governmental body, agency or official
\n which has not been obtained and (iii) does not contravene, or
\n constitute a default under, any Requirement of Law or any agreement or
\n instrument binding on it or result in the creation or imposition of
\n any Adverse Claim on any of its assets, other than Permitted Liens.
\n This Agreement has been executed and delivered by a duly authorized
\n officer of the Issuer.<\/p>\n
(c) This Agreement is a legal, valid and binding obligation of
\n the Issuer enforceable against the Issuer in accordance with its terms
\n (except as such enforceability <\/p>\n
-13-
\n 17<\/p>\n
may be limited by bankruptcy, insolvency, fraudulent conveyance,
\n reorganization, moratorium and other similar laws affecting creditors’
\n rights generally or by general equitable principles, whether
\n considered in a proceeding at law or in equity and by an implied
\n covenant of good faith and fair dealing).<\/p>\n
SECTION 4.2. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
\nhereby represents and warrants for the benefit of the Issuer and its assigns
\n(including the Indenture Trustee):<\/p>\n
(a) CORPORATE EXISTENCE. The Seller (i) is a corporation duly
\n incorporated, validly existing and in good standing under the laws of
\n the jurisdiction of its organization, (ii) has all requisite corporate
\n power and authority, and all legal right, to own and operate its
\n properties, to lease the properties it operates as lessee and to
\n conduct its business as now conducted, (iii) is duly qualified as a
\n foreign corporation to do business and in good standing (or is exempt
\n from such requirements) under the laws of each jurisdiction in which
\n the ownership or lease of property or the conduct of its business
\n requires such qualification and (iv) is in compliance with all
\n Requirements of Law, except, in the case of clauses (ii), (iii) and
\n (iv), to the extent that a failure to have such power, authority or
\n right or to qualify and be in good standing or to comply, as the case
\n may be, could not reasonably be expected to have a Seller Material
\n Adverse Effect.<\/p>\n
(b) CORPORATE POWER; AUTHORIZATION; CONSENTS. The Seller has the
\n corporate power and authority, and the legal right, to execute,
\n deliver and perform this Agreement and the other Transaction Documents
\n to which it is a party and has taken all necessary corporate action to
\n authorize the execution, delivery and performance of this Agreement
\n and the other Transaction Documents to which it is a party. No consent
\n or authorization of, filing with, notice to or other act by or in
\n respect of, any Governmental Authority or any other Person is required
\n in connection with the execution, delivery, performance, validity or
\n enforceability of this Agreement and the other Transaction Documents
\n to which it is a party by or against the Seller other than (i) those
\n consents which have duly been obtained or made and are in full force
\n and effect on the Initial Closing Date or the relevant Payment Date,
\n as the case may be, (ii) any filings of UCC-1 financing statements
\n necessary to perfect the Issuer’s or the Indenture Trustee’s interest
\n in the Purchased Receivables and the Receivables Property and (iii)
\n any such consent, authorization, filing, notice or other act, the
\n absence of which could not reasonably be expected to have a Seller
\n Material Adverse Effect. This Agreement and each other Transaction
\n Document to which it is a party have been duly executed and delivered
\n on behalf of the Seller.<\/p>\n
(c) VALID SALE; BINDING OBLIGATIONS. Each transfer of Designated
\n Receivables and related Receivables Property made pursuant to this
\n Agreement shall constitute a valid sale, transfer and assignment of
\n such Designated Receivables and the related Receivables Property to
\n the Issuer, enforceable against creditors of, and purchasers from, the
\n Seller; and this Agreement and each other Transaction Document to
\n which it is a party constitute the legal, valid and binding obligation
\n of the Seller enforceable against it in accordance with its terms,
\n except as such enforceability may be limited by applicable bankruptcy,
\n insolvency, reorganization, moratorium or other similar laws now or
\n hereafter in effect affecting the enforcement of creditors’ rights
\n generally and except as such enforceability may be limited by general
\n principles of equity (whether considered in a proceeding at law or in
\n equity).<\/p>\n
-14-
\n 18<\/p>\n
(d) NO LEGAL BAR. The execution, delivery and performance of,
\n this Agreement and the other Transaction Documents and the fulfillment
\n of the terms hereof and thereof shall not violate any Requirement of
\n Law applicable to the Seller or its property or Contractual Obligation
\n of the Seller (other than any violation which could not reasonably be
\n expected to have a Seller Material Adverse Effect), and shall not
\n result in, or require, the creation or imposition of any Adverse Claim
\n (other than Permitted Liens) on any of its properties pursuant to any
\n such Requirement of Law or Contractual Obligation.<\/p>\n
(e) NO PROCEEDINGS. Except as set forth on Schedule IV, there are
\n no actions, suits, investigations or proceedings at law or in equity
\n or by or before any arbitrator, court or Governmental Authority now
\n pending or, to the knowledge of the Seller, threatened against or
\n affecting it or any of its properties, revenues or rights which (i)
\n involve this Agreement, any of the other Transaction Documents to
\n which the Seller is a party or any of the transactions contemplated
\n hereby or thereby or (ii) could individually or in the aggregate
\n reasonably be expected to have a Seller Material Adverse Effect.<\/p>\n
(f) NO DEFAULT. No Potential Purchase Termination Event arising
\n from the occurrence of an Insolvency Event with respect to the Seller
\n described in paragraph (a)(ii) of the definition thereof shall have
\n occurred and be continuing.<\/p>\n
(g) REQUIREMENTS OF LAW. The Seller is not in default under or
\n with respect to any Requirement of Law applicable to the Seller or its
\n property where such default could reasonably be expected to have a
\n Seller Material Adverse Effect.<\/p>\n
(h) BULK SALES ACT. No transaction contemplated by this Agreement
\n or any other Transaction Document with respect to the Seller requires
\n compliance with, or shall be subject to avoidance under, any bulk
\n sales act or similar law.<\/p>\n
(i) ELIGIBLE RECEIVABLES. Each Purchased Receivable conveyed by
\n it hereunder and included in the Aggregate Outstanding Balance was on
\n the date transferred to the Issuer hereunder an Eligible Receivable.<\/p>\n
(j) LOCATION OF RECORDS; CHIEF EXECUTIVE OFFICE. The chief
\n executive office of the Seller is as indicated on SCHEDULE II hereto
\n and is the place where the Seller is “located” for the purposes of
\n Section 9-103(3)(d) of the UCC as in effect in the State of New York.
\n The state and county where the chief executive office of the Seller is
\n “located” for the purposes of Section 9-103(3)(d) of the UCC as in
\n effect in the State of New York has not changed in the past four
\n months. The offices where the Seller keeps its records concerning the
\n Receivables and related Contracts and all other agreements related to
\n the Receivables are as indicated for the Seller on SCHEDULE II hereto
\n (or at such other locations, notified to the Issuer and the Indenture
\n Trustee in accordance with SECTION 5.1(g), in jurisdictions where all
\n action required by SECTION 9.2 has been taken and completed).<\/p>\n
(k) MARGIN REGULATIONS. No proceeds of the sale of the Designated
\n Receivables hereunder shall be used by the Seller to purchase or carry
\n any margin stock (as defined in Regulation U of the Board of Governors
\n of the Federal Reserve System, as in effect from time to time).<\/p>\n
-15-
\n 19<\/p>\n
(l) QUALITY OF TITLE. Each Designated Receivable and all
\n Receivables Property which is to be transferred to the Issuer by the
\n Seller shall be transferred by the Seller free and clear of any
\n Adverse Claim (other than any Permitted Lien); prior to such transfer
\n the Seller shall have made all filings under applicable law in each
\n relevant jurisdiction that can be made to protect and perfect the
\n Issuer’s ownership interest in all Purchased Receivables and
\n Receivables Property (to the extent that the Receivables Property
\n constitutes property an ownership interest in which may be perfected
\n by filing a financing statement under the UCC in the Applicable
\n Jurisdictions) against all creditors of, and purchasers from, the
\n Seller and all filing fees and taxes, if any, payable in connection
\n with such filings shall have been paid in full; and the Issuer shall
\n have acquired and shall continue to have maintained a valid and
\n perfected first priority ownership interest in each Purchased
\n Receivable and the Receivables Property (to the extent that the
\n Receivables Property constitutes property an ownership interest in
\n which may be perfected by filing a financing statement under the UCC
\n in the Applicable Jurisdictions) free and clear of any Adverse Claim
\n (other than any Permitted Lien); and no effective financing statement
\n or other instrument similar in effect covering any Purchased
\n Receivable, any interest therein or any Receivables Property with
\n respect thereto is on file in any recording office except such as may
\n be filed (i) in favor of the Issuer pursuant to this Agreement or (ii)
\n in favor of the Indenture Trustee.<\/p>\n
(m) VALID TRANSFERS. No transfer of any Designated Receivables or
\n any Receivables Property to the Issuer by the Seller constitutes a
\n fraudulent transfer or fraudulent conveyance or is otherwise void or
\n voidable under similar laws or principles, the doctrine of equitable
\n subordination or for any other reason. The transfers of the Designated
\n Receivables and the Receivables Property by the Seller to the Issuer
\n pursuant to this Agreement, and all other transactions between the
\n Seller and the Issuer, have been and shall be made in good faith and
\n without intent to hinder, delay or defraud creditors of the Seller,
\n and the Seller acknowledges that it has received and shall receive
\n fair consideration and reasonably equivalent value for the purchases
\n by the Issuer of the Designated Receivables and the Receivables
\n Property hereunder. The purchase of the Designated Receivables and the
\n Receivables Property by the Issuer from the Seller constitutes a true
\n sale of the Designated Receivables and the Receivables Property under
\n applicable state law.<\/p>\n
(n) TRADE NAMES. The Seller uses no trade name in the furnishing
\n of its products or services which generate Receivables other than its
\n actual corporate name and the trade names set forth in SCHEDULE III.
\n During the five years preceding the date hereof, except as set forth
\n in SCHEDULE III, (i) the Seller has not been known by any legal name
\n or trade name other than its corporate name nor (ii) has the Seller
\n been the subject of any merger or other corporate reorganization
\n within the last five years.<\/p>\n
(o) TAXES. The Seller has filed or caused to be filed all U.S.
\n federal income tax returns which are required to have been filed by it
\n and has paid or caused to be paid (or made adequate provision for the
\n payment of) all U.S. federal income taxes shown thereon to be due and
\n payable. No tax lien has been filed in respect of unpaid U.S. federal
\n income taxes on any property of the Seller. The Seller has filed or
\n caused to be filed all tax returns, other than U.S. federal income tax
\n returns, which are required to have been filed by it unless the
\n failure to file any such other tax return, individually or in the
\n aggregate, could not reasonably be expected to have a Seller Material
\n Adverse Effect <\/p>\n
-16-
\n 20<\/p>\n
and has paid or caused to be paid (or made adequate provision for the
\n payment of) all such other taxes shown thereon to be due and payable,
\n and any assessments made against it or any of its property unless the
\n failure to pay such other taxes or assessments, individually or in the
\n aggregate, could not reasonably be expected to have a Seller Material
\n Adverse Effect or is contesting any such tax, assessment or other
\n governmental charge in good faith through appropriate proceedings. For
\n purposes of this paragraph, “taxes” shall mean any present or future
\n tax, levy, impost, duty, charge, assessment or fee of any nature
\n (including interest, penalties and additions thereto) that is imposed
\n by any Governmental Authority.<\/p>\n
(p) ERISA MATTERS.<\/p>\n
(i) The Seller and each of its ERISA Affiliates is in
\n compliance in all material respects with the applicable
\n provisions of ERISA and the regulations and published
\n interpretations thereunder with respect to each Plan of the
\n Seller or any of its ERISA Affiliates, except for such
\n noncompliance which could not reasonably be expected to result in
\n a Seller Material Adverse Effect;<\/p>\n
(ii) No Reportable Event has occurred or is reasonably
\n expected to occur that, when taken together with all other such
\n Reportable Events, could reasonably be expected to result in a
\n Seller Material Adverse Effect;<\/p>\n
(iii) The present value of all benefit liabilities under
\n each Plan of the Seller or any of its ERISA Affiliates (on an
\n ongoing basis and based on those assumptions used to fund such
\n Plan) did not, as of the last valuation report applicable
\n thereto, exceed the value of the assets of such Plan;<\/p>\n
(iv) Neither the Seller nor any of its ERISA Affiliates has
\n incurred any Withdrawal Liability that could reasonably be
\n expected to result in a Seller Material Adverse Effect; and<\/p>\n
(v) Neither the Seller nor any of its ERISA Affiliates has
\n received any notification that any Multiemployer Plan is in
\n reorganization or has been terminated within the meaning of Title
\n IV of ERISA, or that a reorganization or termination has resulted
\n or could reasonably be expected to result, through increases in
\n the contributions required to be made to such Plan or otherwise,
\n in a Seller Material Adverse Effect.<\/p>\n
(q) CONTRACTS; CREDIT AND COLLECTION POLICY. The forms of
\n Contracts used by the Seller or Dunlop to originate Designated
\n Receivables are attached as EXHIBIT B.<\/p>\n
(r) INVESTMENT COMPANY ACT. The Seller is not (i) an “investment
\n company” registered or required to be registered under the 1940 Act,
\n or (ii) a “holding company”, or a “subsidiary company” or an
\n “affiliate” of a “holding company” within the meaning of the Public
\n Utility Holding Company Act of 1935, as amended.<\/p>\n
-17-
\n 21<\/p>\n
(s) INDEBTEDNESS TO ISSUER. Immediately prior to consummation of
\n the transactions contemplated hereby on the Initial Closing Date, the
\n Seller had no outstanding Indebtedness to the Issuer.<\/p>\n
(t) RECEIVABLES LIST. The Receivables List sets forth in all
\n material respects an accurate and complete listing as of the Cut-Off
\n Date of all Designated Receivables to be transferred to the Issuer on
\n the Initial Closing Date and the information contained therein with
\n respect to the identity and Outstanding Balance of each such
\n Designated Receivable is true and correct in all material respects as
\n of the Cut-Off Date.<\/p>\n
(u) LOCK-BOX ACCOUNTS. The names and addresses of the Lock-Box
\n Banks, together with the account numbers of the Lock-Box Accounts at
\n such Lock-Box Banks, are specified in Exhibit B to the Collection
\n Agency Agreement. All Obligors of Designated Receivables have been
\n instructed to make payments to a Lock-Box Account.<\/p>\n
The representations and warranties set forth in this SECTION 4.2
\nshall survive the transfer and assignment of Designated Receivables to the
\nIssuer pursuant to this Agreement. The Seller hereby represents and warrants to
\nthe Issuer, as of the Initial Closing Date and each Payment Date, that the
\nrepresentations and warranties of the Seller set forth in SECTION 4.2 are true
\nand correct as of such date. Upon discovery by the Seller or the Issuer of a
\nbreach of any of the foregoing representations and warranties, the party
\ndiscovering such breach shall give prompt written notice to the other.<\/p>\n
ARTICLE V
\n GENERAL COVENANTS<\/p>\n
SECTION 5.1. AFFIRMATIVE COVENANTS OF THE SELLER. The Seller
\nhereby covenants that, until the Purchase Termination Date shall have occurred
\nand there are no amounts outstanding with respect to the Purchased Receivables
\n(other than Charged Off Receivables), the Seller shall:<\/p>\n
(a) PRESERVATION OF CORPORATE EXISTENCE AND NAME. Preserve and
\n maintain its corporate existence, rights, franchises and privileges in the
\n jurisdiction of its incorporation, and qualify and remain qualified in good
\n standing as a foreign corporation in each jurisdiction where the failure to
\n preserve and maintain such existence, rights, franchises, privileges and
\n qualification could reasonably be expected to have a Seller Material
\n Adverse Effect.<\/p>\n
(b) MAINTENANCE OF PROPERTY. Keep all material tangible property
\n useful and necessary in its business in good working order and condition
\n (normal wear and tear excepted), except to the extent that the failure to
\n do any of the foregoing with respect to any such property could not
\n reasonably be expected to have a Seller Material Adverse Effect.<\/p>\n
(c) COMPLIANCE WITH LAWS, ETC. Comply in all material respects
\n with all laws, rules, regulations and orders applicable to the Designated
\n Receivables and the Receivables Property, including, without limitation,
\n rules and regulations relating to truth in lending, fair credit billing,
\n fair credit reporting, equal credit opportunity, fair debt collection
\n practices and privacy.<\/p>\n
-18-
\n 22<\/p>\n
(d) VISITATION RIGHTS. At any reasonable time during normal
\n business hours on any Business Day and from time to time, upon reasonable
\n prior notice (and upon one Business Day’s prior notice if a Purchase
\n Termination Event has occurred)), permit (i) the Issuer, or any of its
\n agents or representatives, (A) to examine and make copies of and abstracts
\n from the records, books of account and documents (including, without
\n limitation, computer tapes and disks) of the Seller relating to the
\n Receivables and (B) following the termination of the appointment of
\n Goodyear as the Collection Agent with respect to the Designated
\n Receivables, to be present at the offices and properties of the Seller to
\n administer and control the collection of amounts owing on the Purchased
\n Receivables and (ii) the Issuer, or any of its agents or representatives,
\n to visit the properties of the Seller to discuss the business, operations,
\n properties and financial and other condition of the Seller with any of its
\n officers or directors and, with reasonable prior notice to the Seller,
\n together with the Seller, with its independent certified public
\n accountants.<\/p>\n
(e) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Maintain and
\n implement administrative and operating procedures (including, without
\n limitation, an ability to recreate records evidencing the Purchased
\n Receivables and the Receivables Property in the event of the destruction of
\n the originals thereof), and keep and maintain all documents, books, records
\n and other information which are reasonably necessary for the collection of
\n all Purchased Receivables and the Receivables Property (including, without
\n limitation, records adequate to permit the daily identification of each new
\n Designated Receivable and all Collections of and adjustments to each
\n existing Purchased Receivable). Upon the request of the Issuer, the Seller
\n shall deliver copies of all books and records maintained pursuant to this
\n SECTION 5.1(e) to the Indenture Trustee or its representatives.<\/p>\n
(f) DELIVERY, PERFORMANCE AND COMPLIANCE WITH CREDIT AND
\n COLLECTION POLICY, RECEIVABLES AND CONTRACTS. (i) Deliver a copy of the
\n Credit and Collection Policy relating to the Contracts and the Designated
\n Receivables, as in effect on the Initial Closing Date, to the Issuer and
\n the Indenture Trustee within two weeks of the Initial Closing Date, (ii)
\n perform its obligations in all material respects in accordance with and
\n comply in all material respects with the Credit and Collection Policy, as
\n amended from time to time in accordance with the Transaction Documents,
\n and, (iii) at its expense, comply in all material respects with all
\n material provisions, covenants and other promises required to be observed
\n by it under the Purchased Receivables and the Contracts related to the
\n Purchased Receivables and any other agreements related to the Purchased
\n Receivables.<\/p>\n
(g) LOCATION OF RECORDS. Keep its principal place of business and
\n chief executive office, and the offices where it keeps its records
\n concerning the Purchased Receivables, all Receivables Property, all
\n Contracts and other agreements related to the Purchased Receivables (and
\n all original documents relating thereto), at the address(es) of the Seller
\n referred to in SCHEDULE II or, upon 30 days’ prior written notice to the
\n Issuer and the Indenture Trustee, at such other locations in jurisdictions
\n where all action required by SECTION 9.2 shall have been taken and
\n completed.<\/p>\n
(h) OBLIGATION TO RECORD AND REPORT. To the fullest extent
\n permitted by GAAP and by applicable law, treat each conveyance of the
\n Designated Receivables as a sale on its books and records and financial
\n statements.<\/p>\n
-19-
\n 23<\/p>\n
(i) COLLECTIONS. Cause each invoice issued to an Obligor to
\n indicate that payments in respect of its Designated Receivables shall be
\n made by such Obligor to a Lock-Box Account and otherwise direct the
\n Obligors to pay all such payments directly to a Lock-Box Account. In the
\n event that any payments in respect of any Designated Receivables are made
\n directly to the Seller, the Seller shall, within two Business Days of
\n receipt thereof, forward such amounts to a Lock-Box Account and, prior to
\n forwarding such amounts, the Seller shall hold such payments in trust as
\n custodian for the Issuer and the Indenture Trustee. The Seller shall use
\n commercially reasonable efforts to prevent the deposit of any funds other
\n than Collections into any of the Lock-Box Accounts or the Collection
\n Account and, to the extent that the Seller determines that any such funds
\n are nevertheless deposited into any Lock-Box Account or the Collection
\n Account, promptly (and in any event within two Business Days of such
\n determination) identify any such funds to the Collection Agent for
\n segregation and remittance to the owner thereof.<\/p>\n
(j) SEPARATE CORPORATE EXISTENCE OF THE ISSUER. The Seller hereby
\n acknowledges that the Issuer and the other parties to the Transaction
\n Documents are entering into the transactions contemplated by the
\n Transaction Documents in reliance upon the Issuer’s identity as a legal
\n entity separate from the Seller and its Affiliates. Therefore, from and
\n after the date hereof, the Seller shall take (or refrain from taking, as
\n the case may be) such actions and shall cause each of its Affiliates to
\n take (or refrain from taking, as the case may be) such actions, as shall be
\n required in order that the Issuer shall at all times:<\/p>\n
(i) practice and adhere to organizational formalities, such as
\n maintaining appropriate books, records and accounts separate from
\n those of any other Person;<\/p>\n
(ii) observe all organizational formalities in connection with
\n all dealings between itself and any of its members and any Affiliate
\n of any thereof or any unaffiliated entity;<\/p>\n
(iii) observe all procedures required by its certificate of
\n formation and its operating agreement and the Delaware Limited
\n Liability Company Act;<\/p>\n
(iv) act solely in its name and through its duly authorized
\n officers or agents in the conduct of its businesses;<\/p>\n
(v) manage its business and affairs by or under the direction of
\n its Board of Managers;<\/p>\n
(vi) ensure that its Board of Managers duly authorizes all of its
\n actions;<\/p>\n
(vii) own or lease (including through shared arrangements with
\n its Affiliates) all office furniture and equipment necessary to
\n operate its business;<\/p>\n
(viii) maintain at least one member of its Board of Managers who
\n is an Independent Manager;<\/p>\n
-20-
\n 24<\/p>\n
(ix) not (A) have or incur any indebtedness to any of its members
\n or any Affiliate of any of its members (other than the Subordinated
\n Note); (B) guarantee or otherwise become liable for any obligations of
\n any of its members or any Affiliate of any thereof; (C) have
\n obligations guaranteed by any of its members or any Affiliate of any
\n thereof; (D) hold itself out as responsible for debts of any of its
\n members or any Affiliates of any thereof or for decisions or actions
\n with respect to the affairs of any of its members or any Affiliate of
\n any thereof; (E) operate or purport to operate as an integrated,
\n single economic unit with respect to any of its members or any
\n Affiliate of any thereof or any unaffiliated entity; (F) seek to
\n obtain credit or incur any obligation to any third party based upon
\n the assets of any of its members or any Affiliate of any thereof or
\n any unaffiliated entity; (G) induce any such third party to reasonably
\n rely on the creditworthiness of any of its members or any Affiliate of
\n any thereof or any unaffiliated entity or (H) be directly or
\n indirectly named as a direct or contingent beneficiary or loss payee
\n on any insurance policy of any of its members or any Affiliate of any
\n thereof;<\/p>\n
(x) other than as provided in the Transaction Documents, maintain
\n its deposit and other bank accounts and all of its assets separate
\n from those of any other Person;<\/p>\n
(xi) maintain its financial records separate and apart from those
\n of any other Person;<\/p>\n
(xii) not suggest in any way, within its financial statements,
\n that its assets are available to pay the claims of creditors of any of
\n its members or any Affiliate of any thereof or any unaffiliated
\n entity;<\/p>\n
(xiii) compensate all its employees, officers, consultants and
\n agents for services provided to it by such Persons out of its own
\n funds or reimbursing any of its Affiliate in respect of amounts paid
\n by such Affiliates for such services;<\/p>\n
(xiv) maintain office space separate and apart from that of any
\n of its members or any Affiliate of any thereof (even if such office
\n space is subleased from or is on or near premises occupied by any of
\n its members or an Affiliate of any thereof) and a telephone number
\n separate and apart from that of any of its members or any Affiliate of
\n any thereof;<\/p>\n
(xv) conduct all oral and written communications, including,
\n without limitation, letters, invoices, purchase orders, contracts,
\n statements, and applications solely in its own name;<\/p>\n
(xvi) have separate stationery, invoices and checks from any of
\n its members, any Affiliate of any thereof or any unaffiliated entity;<\/p>\n
(xvii) account for and manage all of its liabilities separately
\n from those of any of its members or any Affiliate of any thereof and
\n pay its own liabilities out of its own funds;<\/p>\n
-21-
\n 25<\/p>\n
(xviii) allocate, on an arm’s length basis, all shared corporate
\n operating services, leases and expenses, including, without
\n limitation, those associated with the services of shared consultants
\n and agents and shared computer and other office equipment and
\n software; and otherwise maintain an arm’s length relationship with any
\n of its members, any Affiliate of any thereof and any unaffiliated
\n entity;<\/p>\n
(xix) refrain from filing or otherwise initiating or supporting
\n the filing of a motion in any bankruptcy or other insolvency
\n proceeding involving any of its members or any Affiliate of any
\n thereof to substantively consolidate any of its members or any
\n Affiliate of any thereof with the Issuer;<\/p>\n
(xx) remain solvent;<\/p>\n
(xxi) not commingle its property with the property of any of its
\n members or any other Person;<\/p>\n
(xxii) prepare separate financial statements, prepared in
\n accordance with GAAP and susceptible to audit, or in the event the
\n Issuer’s financial statements are consolidated with those of another
\n entity, note on such financial statements the separate existence and
\n obligations of the Issuer;<\/p>\n
(xxiii) maintain a sufficient number of employees in light of its
\n contemplated business operations;<\/p>\n
(xxiv) not acquire obligations or securities of any of its
\n members;<\/p>\n
(xxv) hold itself out as a separate entity and correct any known
\n misunderstanding regarding its separate identity;<\/p>\n
(xxvi) maintain adequate capital in light of its contemplated
\n business operations; and<\/p>\n
(xxvii) conduct no other business other than in connection with
\n the transactions contemplated by the Transaction Documents and enter
\n into no other agreements other than as contemplated by the Transaction
\n Documents.<\/p>\n
SECTION 5.2. REPORTING REQUIREMENTS. The Seller shall furnish to the
\nIssuer and the Indenture Trustee from the date hereof until the Purchase
\nTermination Date shall have occurred and until there are no amounts outstanding
\nwith respect to Purchased Receivables (other than Charged Off Receivables):<\/p>\n
(a) GOODYEAR FINANCIALS. (i) As soon as available, but in any
\n event not later than 120 days after the end of each fiscal year of the
\n Seller, a copy of the annual report of the Seller on Form 10-K filed with
\n the U.S. Securities and Exchange Commission; and<\/p>\n
-22-
\n 26<\/p>\n
(ii) as soon as practicable, but in any event not later than 60
\n days after the end of each fiscal quarter of the Seller, a copy of
\n each quarterly report of the Seller on Form 10-Q filed with the U.S.
\n Securities and Exchange Commission.<\/p>\n
(b) COMPLIANCE CERTIFICATE. Not later than 90 days after the end
\n of each fiscal year and not later than 45 days after the end of each of the
\n first three fiscal quarters of each fiscal year, a certificate of an
\n Authorized Officer of the Seller stating that, to the best of such
\n Authorized Officer’s knowledge, the Seller during such period, has observed
\n or performed all of its covenants and other agreements, and satisfied every
\n condition, contained in this Agreement to be observed, performed or
\n satisfied by it, and that such Authorized Officer has obtained no knowledge
\n of any Purchase Termination Event or Potential Purchase Termination Event
\n except as specified in such certificate;<\/p>\n
(c) ERISA. If and when the Seller or any ERISA Affiliate (i)
\n gives or is required to give notice to the PBGC of any Reportable Event
\n with respect to any Plan which might constitute grounds for a termination
\n of such Plan under Title IV of ERISA, or knows that the plan administrator
\n of any Plan has given or is required to give notice of any such Reportable
\n Event, a copy of the notice of such reportable event given or required to
\n be given to the PBGC; (ii) receives notice of any accrued and payable
\n Withdrawal Liabilities or notice that any Multiemployer Plan is in
\n reorganization, is insolvent or has been terminated, a copy of such notice;
\n or (iii) receives notice from the PBGC under the Title IV of ERISA of an
\n intent to terminate, impose liability (other than for premiums under
\n Section 4007 of ERISA) in respect of or appoint a trustee to administer any
\n Plan, a copy of such notice;<\/p>\n
(d) TERMINATION EVENTS; OTHER MATERIAL EVENTS. As soon as
\n possible and in any event within two Business Days after the Seller obtains
\n Knowledge of each Purchase Termination Event, Potential Purchase
\n Termination Event, Collection Agent Termination Event, Potential Collection
\n Agent Termination Event, Termination Event or Potential Termination Event
\n or any other event that has a material likelihood of having a Seller
\n Material Adverse Effect (including, without limitation, any pending or
\n threatened action or proceeding affecting the Seller or its Subsidiaries
\n before any court, governmental agency or arbitrator that has a material
\n likelihood of having a Seller Material Adverse Effect), a written statement
\n of the treasurer, any assistant treasurer or chief financial officer of the
\n Seller setting forth details of such event and the action that the Seller
\n proposes to take with respect thereto; and<\/p>\n
(e) OTHER. Promptly, from time to time, such other information,
\n documents, records or reports respecting the Designated Receivables or the
\n condition or operations, financial or otherwise, of the Seller as the
\n Issuer or the Indenture Trustee may from time to time reasonably request.<\/p>\n
SECTION 5.3. NEGATIVE COVENANTS. The Seller hereby covenants
\nthat, until the Purchase Termination Date shall have occurred and there are no
\namounts outstanding with respect to Purchased Receivables (other than Charged
\nOff Receivables), the Seller shall not:<\/p>\n
(a) SECURITY INTERESTS. Except for the conveyances hereunder and
\n as provided below, sell, pledge, assign or transfer to any other Person, or
\n grant, create, incur, assume or suffer to exist any other Adverse Claim on
\n any Purchased Receivable, <\/p>\n
-23-
\n 27<\/p>\n
whether now existing or hereafter created, or the Receivables Property or
\n any Lock-Box Account; the Seller shall promptly notify the Issuer of the
\n existence of any Adverse Claim (other than a Permitted Lien) on any
\n Purchased Receivable or Receivables Property; and the Seller shall defend
\n the right, title and interest of the Issuer in, to and under the Purchased
\n Receivables and the Receivables Property, whether now existing or hereafter
\n created, against all claims of third parties claiming through or under the
\n Seller; PROVIDED, HOWEVER, that nothing in this SECTION 5.3(a) shall
\n prevent or be deemed to prohibit the Seller from suffering to exist upon
\n any of the Designated Receivables any Permitted Lien.<\/p>\n
(b) CHANGE IN CREDIT AND COLLECTION POLICY. Make or permit to be
\n made any material change or modification to the Credit and Collection
\n Policy without the prior written consent of the Issuer and the Indenture
\n Trustee (acting at the direction of the Holders of a Majority in Interest
\n of each Series of Outstanding Investor Notes).<\/p>\n
(c) CHANGE IN FORM OF CONTRACTS. Make or permit to be made any
\n material change or modification to the Contracts without the prior written
\n consent of the Issuer and the Indenture Trustee (acting at the direction of
\n the Holders of a Majority in Interest of each Series of Outstanding
\n Investor Notes).<\/p>\n
(d) CHANGE IN NAME. Change its name, identity or corporate
\n structure in any manner which would or might make any financing statement
\n or continuation statement (or other similar instrument) relating to this
\n Agreement seriously misleading within the meaning of Section 9-402(7) of
\n the UCC, or impair the perfection of the Issuer’s interest in any
\n Designated Receivable under any other similar law, without having (i)
\n delivered 30 days’ prior written notice to the Issuer, the Collection Agent
\n and the Indenture Trustee and (ii) taken all action required by SECTION
\n 9.2.<\/p>\n
(e) CHANGES IN PAYMENT INSTRUCTIONS. Add, terminate or make any
\n change to any Lock-Box Account, except in accordance with the Collection
\n Agency Agreement, or instruct Obligors to make payments of the Designated
\n Receivables other than to a Lock-Box Account.<\/p>\n
(f) ACCOUNTING CHANGES. Prepare any financial statements (other
\n than consolidated financial statements) which shall account for the
\n transactions contemplated hereby in any manner other than as a sale of the
\n Purchased Receivables by the Seller to the Issuer nor in any other respect
\n account for or treat the transactions contemplated hereby (including for
\n financial accounting purposes) in any manner other than as sales of the
\n Purchased Receivables to the Issuer.<\/p>\n
ARTICLE VI
\n PURCHASE TERMINATION EVENTS<\/p>\n
SECTION 6.1. PURCHASE TERMINATION EVENTS. If any of the following
\nevents (each, a “PURCHASE TERMINATION EVENT”) shall have occurred and be
\ncontinuing:<\/p>\n
(a) failure by the Seller to pay any amount or make any deposit
\nrequired to be paid by it hereunder on or before the date occurring two Business
\nDays after the date such payment or deposit is due;<\/p>\n
-24-
\n 28<\/p>\n
(b) failure on the part of the Seller duly to observe or perform in
\nany material respect any other covenants or agreements of the Seller set forth
\nherein which failure continues unremedied for 30 days after the earlier to occur
\nof (i) the date upon which the Seller obtains knowledge of such failure or (ii)
\nthe date on which written notice of such failure, requiring the same to be
\nremedied, shall have been given to the Seller by the Issuer or the Indenture
\nTrustee, or to the Seller, the Issuer and the Indenture Trustee by any Investor
\nNoteholder;<\/p>\n
(c) any representation, warranty or certification made by the Seller
\nherein or in any report or certificate delivered pursuant hereto shall prove to
\nhave been incorrect in any material respect when made or deemed made which
\nfailure, if capable of being remedied, continues unremedied for 30 days after
\nthe earlier to occur of (i) the date upon which the Seller obtains knowledge
\nthereof and (ii) the date on which written notice of such failure, requiring the
\nsame to be remedied, shall have been given to the Seller by the Issuer or the
\nIndenture Trustee or to the Seller, the Issuer and the Indenture Trustee by any
\nInvestor Noteholder;<\/p>\n
(d) the Seller shall fail to pay any principal of Funded Debt of the
\nSeller which is then outstanding in a principal amount in excess of $25,000,000
\nat the scheduled maturity thereof, such failure shall continue after the
\napplicable grace period, if any, specified in the agreement or instrument
\nrelating to such Funded Debt, and such Funded Debt is not paid within ten
\nBusiness Days after the earlier of (i) the day on which an Authorized Officer
\nfirst obtains actual knowledge of such failure or (ii) written notice of such
\nfailure shall have been given to the Seller by the holder or holders of such
\nFunded Debt; or Funded Debt of the Seller which is then outstanding in a
\nprincipal amount in excess of $25,000,000 shall become due and payable prior to
\nthe scheduled maturity thereof as a result of the lawful acceleration thereof
\ndue to the occurrence of an event of default thereunder and such Funded Debt is
\nnot paid, or such acceleration thereof is not rescinded or annulled, within ten
\nBusiness Days following such lawful acceleration thereof;<\/p>\n
(e) any material provision of this Agreement shall cease, for any
\nreason, to be in full force and effect or the Seller shall so assert in writing;<\/p>\n
(f) the long-term unsecured senior debt of the Seller shall be rated
\nbelow BB by S&P or below Ba2 by Moody’s;<\/p>\n
(g) there shall have been filed against the Seller or Dunlop (i) a
\nnotice of federal tax lien from the Internal Revenue Service or (ii) a notice of
\nlien from the PBGC under Section 412(n) of the Code or Section 302(f) of ERISA
\nfor a failure to make a required installment or other payment to a plan to which
\neither of such sections applies;<\/p>\n
(h) an Insolvency Event shall occur with respect to the Seller;<\/p>\n
(i) a Termination Event with respect to each Series of Outstanding
\nInvestor Notes shall have deemed to have occurred or shall have been declared to
\nhave occurred in accordance with the terms of the applicable Indenture
\nSupplement; or<\/p>\n
(j) the Issuer shall for any reason cease to have a valid and
\nperfected first priority ownership interest in the Purchased Receivables and the
\nReceivables Property (to the extent that the Related Property constitutes
\nproperty an ownership interest in which may be perfected by filing a financing
\nstatement under the UCC in the Applicable Jurisdictions), free and clear of any
\nAdverse Claims, other than Permitted Liens, or any of the Seller or any
\nAffiliate thereof shall so <\/p>\n
-25-
\n 29<\/p>\n
assert in writing; PROVIDED, HOWEVER that a Purchase Termination Event shall not
\nbe deemed to have occurred under this paragraph (j) if there shall be a lien on
\none or more Purchased Receivables and (x) the Seller shall repurchase such
\nPurchased Receivables in accordance with SECTION 2.6 or (y) the Collection Agent
\nshall make payment of a Collection Agent Indemnification Amount in respect of
\nsuch Purchased Receivables in accordance with Section 5.2 of the Collection
\nAgency Agreement;<\/p>\n
then, (x) in the case of any Purchase Termination Event described in paragraph
\n(h) or (i) above, the obligation of the Issuer to purchase Designated
\nReceivables shall thereupon automatically terminate without further notice of
\nany kind, which is hereby waived by the Seller and (y) in the case of any other
\nPurchase Termination Event, so long as such Purchase Termination Event shall be
\ncontinuing, the Issuer may terminate its obligation to purchase Designated
\nReceivables from the Seller by written notice to the Seller.<\/p>\n
SECTION 6.2. ADDITIONAL REMEDIES. (a) Upon the occurrence of any
\nPurchase Termination Event, the Issuer shall have, in addition to all other
\nrights and remedies under this Agreement or otherwise, all other rights and
\nremedies provided under the UCC of each applicable jurisdiction and other
\napplicable laws, which rights shall be cumulative. Without limiting the
\nforegoing, the occurrence of a Purchase Termination Event shall not deny to the
\nIssuer any remedy (in addition to termination of the Issuer’s obligation to
\npurchase Designated Receivables from the Seller) to which the Issuer may be
\notherwise appropriately entitled, whether by statute or other applicable law, at
\nlaw or in equity.<\/p>\n
(b) Unless a Purchase Termination Event has occurred and is
\ncontinuing, the Issuer shall not exercise the rights granted to it pursuant to
\nSECTION 2.1(F).<\/p>\n
ARTICLE VII
\n INDEMNIFICATION<\/p>\n
SECTION 7.1. INDEMNITIES BY THE SELLER. Without limiting any other
\nrights that the Issuer may have hereunder or under applicable law, the Seller
\nhereby agrees to indemnify the Issuer from and against any and all claims,
\nlosses and liabilities (including reasonable attorneys’ fees) (all the foregoing
\nbeing collectively referred to as “INDEMNIFIED AMOUNTS”) arising out of or
\nresulting from any of the following, excluding, however, Indemnified Amounts (a)
\nto the extent resulting from the gross negligence or willful misconduct on the
\npart of the Issuer (or any assignee thereof, including without limitation the
\nIndenture Trustee or any Investor Noteholder), (b) constituting recourse for
\nDesignated Receivables which are not collected, not paid or uncollectible on
\naccount of the insolvency, bankruptcy, inability to pay or lack of
\ncreditworthiness of the applicable Obligor or (c) attributable to any Excluded
\nTaxes:<\/p>\n
(a) the transfer by the Seller of any interest in any Purchased
\n Receivable or Receivables Property or proceeds thereof to a Person other
\n than the Issuer;<\/p>\n
(b) reliance on any representation or warranty or statement made or
\n deemed made by or on behalf of the Seller under or in connection with this
\n Agreement or in any certificate or report delivered pursuant hereto that,
\n in either case, shall have been false or incorrect when made or deemed
\n made;<\/p>\n
(c) the failure by the Seller to comply with any applicable law, rule
\n or regulation of any governmental authority with respect to any Purchased
\n Receivable or <\/p>\n
-26-
\n 30<\/p>\n
related Receivables Property, or the nonconformity of any Purchased
\n Receivable or related Receivables Property with any such applicable law,
\n rule or regulation;<\/p>\n
(d) the failure to vest and maintain vested in the Issuer an ownership
\n interest in any Purchased Receivable or related Receivables Property, free
\n and clear of any Adverse Claim, other than Permitted Liens, whether
\n existing at the time of the purchase of such Purchased Receivable or
\n related Receivables Property or at any time thereafter;<\/p>\n
(e) the failure to file, or any delay in filing, financing statements
\n or other similar instruments or documents under the UCC of any applicable
\n jurisdiction or other applicable laws with respect to any Purchased
\n Receivables or related Receivables Property of the Seller;<\/p>\n
(f) any dispute, claim, offset or defense of the Obligor to the
\n payment of any Purchased Receivable (including, without limitation, a
\n defense based on such Purchased Receivable or the related Contract not
\n being fully enforceable against the Obligor in accordance with its terms),
\n or any other claim resulting from the sale of the goods or services related
\n to any such Purchased Receivable or the furnishing or failure to furnish
\n such goods or services;<\/p>\n
(g) any failure of the Seller to perform its duties or obligations
\n under this Agreement or the other Transaction Documents;<\/p>\n
(h) any products liability claim or claim involving environmental
\n liability arising out of or in connection with goods or services that are
\n the subject of any Purchased Receivable or Receivables Property;<\/p>\n
(i) the commingling of Collections at any time with other funds of the
\n Seller;<\/p>\n
(j) any tax or governmental fee or charge (but not including any
\n Excluded Taxes), all interest and penalties thereon or with respect
\n thereto, and all out-of-pocket costs and expenses, including the reasonable
\n fees and expenses of counsel in defending against the same, which may arise
\n by reason of the purchase or ownership of any Purchased Receivable or
\n related Receivables Property, or any interest therein or in any merchandise
\n which secure any such Purchased Receivables, such related Receivables
\n Property or any other rights or assets transferred hereunder; or<\/p>\n
(k) any governmental investigation, litigation or proceeding related
\n to this Agreement or in respect of any Purchased Receivable or related
\n Receivables Property of the Seller.<\/p>\n
The Seller shall pay on demand to the Issuer any and all amounts
\nnecessary to indemnify the Issuer from and against any and all Indemnified
\nAmounts. Notwithstanding the foregoing, the Seller shall not be required to
\nindemnify the Issuer for any Indemnified Amount that results from any delay in
\nthe collection of any Purchased Receivables or any default by an Obligor with
\nrespect to any Purchased Receivables.<\/p>\n
-27-
\n 31<\/p>\n
ARTICLE VIII
\n SUBORDINATED NOTE<\/p>\n
SECTION 8.1. SUBORDINATED NOTE. (a) On the Initial Closing Date, the
\nIssuer shall issue to the Seller a subordinated note substantially in the form
\nof EXHIBIT D (as amended, supplemented or otherwise modified from time to time,
\nthe “SUBORDINATED NOTE”). The aggregate principal amount of the Subordinated
\nNote at any time shall be equal to the excess, if any, of (i) the aggregate
\nprincipal amount thereof upon original issuance and each addition to the
\nprincipal amount of such Subordinated Note pursuant to the terms of SECTION 2.3
\nas of such time, over (ii) the aggregate amount of all payments made in respect
\nof the principal of such Subordinated Note as of such time. Interest on the
\noutstanding principal amount of the Subordinated Note shall accrue at a rate per
\nannum equal to the Prime Rate in effect from time to time and shall be paid (x)
\non each Settlement Date with respect to the principal amount of the Subordinated
\nNote outstanding from time to time during the Settlement Period immediately
\npreceding such Settlement Date and\/or (y) on the maturity date thereof.
\nPrincipal thereunder not paid or prepaid pursuant to the terms thereof shall be
\npayable on the maturity date of the Subordinated Note. Notwithstanding any
\ncontrary provision of any Transaction Document, default in the payment of
\nprincipal or interest under the Subordinated Note shall not constitute an Event
\nof Default, a Purchase Termination Event, a Collection Agent Termination Event
\nor Termination Event.<\/p>\n
SECTION 8.2. RESTRICTIONS ON TRANSFER OF SUBORDINATED NOTE. The Seller
\nshall not assign, transfer, exchange, pledge, hypothecate, participate or convey
\nthe Subordinated Note or any right of the Seller to receive payments thereunder
\nother than to an Affiliate of the Seller.<\/p>\n
ARTICLE IX
\n MISCELLANEOUS<\/p>\n
SECTION 9.1. AMENDMENT. This Agreement may only be amended in writing
\nby the Seller and the Issuer with the prior written consent of the Holders of a
\nMajority in Interest of each Series of Outstanding Investor Notes.<\/p>\n
SECTION 9.2. FURTHER ASSURANCES. From time to time, at its own
\nexpense, the Seller shall promptly execute and deliver all further instruments
\nand documents, and take all further action, that may be necessary or desirable
\nor that the Issuer may reasonably request, to protect or more fully evidence the
\nIssuer’s ownership, right, title and interest in the Purchased Receivables and
\nthe Receivables Property and its rights under the Contracts with respect
\nthereto, or to enable the Issuer to exercise or enforce any of its rights
\nhereunder or under any other Transaction Document. Without limiting the
\ngenerality of the foregoing, the Seller shall upon the request of the Issuer
\nexecute and file such financing or continuation statements, or amendments
\nthereto, and such other instruments or notices, as may be necessary or, in the
\nreasonable opinion of the Issuer or the Indenture Trustee, desirable.<\/p>\n
SECTION 9.3. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
\nCONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.<\/p>\n
SECTION 9.4. NOTICES. All notices, requests and demands to or upon the
\nrespective parties hereto to be effective shall be in writing (including by
\nfacsimile), and, unless otherwise expressly provided herein, shall be deemed to
\nhave been duly given or made when <\/p>\n
-28-
\n 32<\/p>\n
delivered by hand, or five days after being sent by first class mail, postage
\nprepaid, or, in the case of facsimile notice, when delivered addressed as set
\nforth in Section 13.4 of the Base Indenture.<\/p>\n
SECTION 9.5. NO WAIVER; REMEDIES. No failure on the part of the Issuer
\nor the Indenture Trustee, as assignee, to exercise, and no delay in exercising,
\nany right under this Agreement shall operate as a waiver thereof, nor shall any
\nsingle or partial exercise of any such right preclude any other or further
\nexercise thereof or the exercise of any other right. The remedies herein
\nprovided are cumulative and not exclusive of any remedies provided by law.<\/p>\n
SECTION 9.6. BINDING EFFECT. This Agreement shall be binding upon and
\ninure to the benefit of the Seller and the Issuer and their respective
\nsuccessors and assigns.<\/p>\n
SECTION 9.7. COSTS, EXPENSES AND TAXES. In addition to, and without
\nduplication of, the limited rights of indemnification granted to the Issuer
\nunder Article VII hereof, the Seller agrees to pay on demand all reasonable
\nout-of-pocket costs and expenses of the Issuer in connection with the
\npreparation, execution and delivery of this Agreement and the documents to be
\ndelivered hereunder, including, without limitation, the reasonable fees and
\nout-of-pocket expenses of counsel for the Issuer with respect thereto and with
\nrespect to advising the Issuer as to its rights and remedies under this
\nAgreement, and all costs and expenses (including, without limitation, reasonable
\ncounsel fees and expenses), in connection with the enforcement (whether through
\nnegotiations, legal proceedings or otherwise) of this Agreement and the other
\nTransaction Documents to be delivered hereunder. In addition, the Seller agrees
\nto pay any and all stamp and other taxes and governmental fees payable or
\ndetermined to be payable in connection with the execution, delivery, filing and
\nrecording of this Agreement or the other Transaction Documents to be delivered
\nhereunder, and agrees to hold the Issuer harmless from and against any and all
\nliabilities with respect to or resulting from any delay in paying or omitting to
\npay such taxes and fees.<\/p>\n
SECTION 9.8. MERGER AND INTEGRATION. This Agreement and the other
\nTransaction Documents set forth the entire understanding of the parties relating
\nto the subject matter hereof, and all prior understandings, written or oral, are
\nsuperseded by this Agreement and the other Transaction Documents.<\/p>\n
SECTION 9.9. HEADINGS. The headings herein are for purposes of
\nreference only and shall not otherwise affect the meaning or interpretation of
\nany provision hereof.<\/p>\n
SECTION 9.10. EXECUTION IN COUNTERPARTS. This Agreement may be
\nexecuted in any number of counterparts and by different parties hereto in
\nseparate counterparts, each of which when so executed shall be deemed to be an
\noriginal and all of which when taken together shall constitute one and the same
\nagreement. Delivery of an executed counterpart of a signature page to this
\nAgreement by facsimile transmission shall be effective as delivery of a manually
\nexecuted counterpart of this Agreement.<\/p>\n
SECTION 9.11. NO BANKRUPTCY PETITION. The Seller hereby covenants and
\nagrees that, prior to the date which is one year and one day after the payment
\nin full of all Investor Notes, it will not institute against, or join any other
\nPerson in instituting against, the Issuer any bankruptcy, reorganization,
\narrangement, insolvency or liquidation proceedings, or other proceedings under
\nany federal or state bankruptcy or similar law.<\/p>\n
-29-
\n 33<\/p>\n
SECTION 9.12. ACKNOWLEDGMENT OF ASSIGNMENTS. The Seller hereby
\nacknowledges and consents to the assignment by the Issuer of the Purchased
\nReceivables and the Receivables Property and the rights of the Issuer under this
\nAgreement pursuant to the Indenture. The Seller acknowledges that the Issuer
\nshall grant a security interest in the Collection Account and the Lock-Box
\nAccounts to the Indenture Trustee for the benefit of the Investor Noteholders.
\nThe Seller agrees to take any action that the Indenture Trustee may reasonably
\nrequest in connection with such assignment or security interest.<\/p>\n
SECTION 9.13. TERMINATION. This Agreement shall terminate at such time
\nas (a) a Purchase Termination Event shall have occurred and the Issuer’s
\nobligations to purchase Receivables hereunder shall have been terminated in
\naccordance with Section 6.1 and (b) all Purchased Receivables purchased
\nhereunder have been collected, and the proceeds thereof turned over to the
\nIssuer and all other amounts owing to the Issuer hereunder shall have been paid
\nin full or, if Purchased Receivables sold hereunder have not been collected,
\nsuch Receivables have become Charged Off Receivables and the Issuer shall have
\ncompleted its collection efforts with respect thereto; PROVIDED, HOWEVER, that
\nthe indemnities of the Seller to the Issuer set forth in this Agreement shall
\nsurvive such termination and PROVIDED further that the Issuer shall remain
\nentitled to receive any collections on Receivables sold hereunder which have
\nbecome Defaulted Receivables.<\/p>\n
-30-
\n 34<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
\nbe executed by their respective officers thereunto duly authorized, as of the
\ndate first above written.<\/p>\n
THE GOODYEAR TIRE & RUBBER COMPANY<\/p>\n
By: \/s\/ Stephanie W. Bergeron
\n —————————————–
\n Name: Stephanie W. Bergeron
\n Title: Vice President and Treasurer<\/p>\n
Address: 1144 East Market Street
\n Akron, Ohio 44316-0001<\/p>\n
WINGFOOT A\/R LLC<\/p>\n
By: \/s\/ Stephanie W. Bergeron
\n —————————————–
\n Name: Stephanie W. Bergeron
\n Title: Vice President and Treasurer<\/p>\n
Address: 1201 East Market Street
\n Akron, Ohio 44305-4017<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7662],"corporate_contracts_industries":[9459],"corporate_contracts_types":[9564,9560],"class_list":["post-41252","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-goodyear-tire---rubber-co","corporate_contracts_industries-manufacturing__rubber","corporate_contracts_types-finance__factor","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41252","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41252"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41252"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41252"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41252"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}