AMENDMENT NO.1 TO THE MASTER SUBORDINATED DEPOSIT AGREEMENT

 

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                                                                     EXHIBIT 4.2

 

GOODYEAR

 

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                              AMENDMENT NO.1 TO THE

 

                       MASTER SUBORDINATED DEPOSIT AGREEMENT

 

                            DATED DECEMBER 10, 2004

 

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                                DATED 23 MAY 2005

                                     BETWEEN

 

                                   EUROFACTOR

                                    as Agent

 

                                     CALYON

                              as Calculation Agent

 

                            ESTER FINANCE TITRISATION

                                   as Purchaser

 

                                       AND

 

                    GOODYEAR DUNLOP TIRES FINANCE EUROPE B.V.

                 as Subordinated Depositor and Centralising Unit

 

                                                En accord entre les parties, les

                                               presentes ont ete reliees par le

                                               procede ASSEMBLACT R.C. empechant

                                               toute substitution ou addition

                                               et sont seulement signees a la

                                               derniere page.

 

                           [GIDE LOYRETTE NOUEL LOGO]

 

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           26, COURS ALBERT 1ER 75008 PARIS TEL. +33 (0)1 40 75 60 00

           FAX +33 (0)1 43 59 37 79 E-MAIL INFO@GIDE.COM WWW.GIDE.COM

 

 

 

 

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THIS FIRST AMENDMENT IS ENTERED INTO BETWEEN:

 

1.     ESTER FINANCE TITRISATION, a company incorporated under French law and

      authorised as a credit institution (etablissement de credit), having its

      registered office at 19 Boulevard des Italiens, 75 002 Paris, France,

      registered with the Trade and Companies Registry of Paris under the number

      414 886 226, whose representative is duly authorised for the purpose of

      this Agreement (hereafter referred to as the "PURCHASER");

 

2.     EUROFACTOR, a company incorporated under French law and authorised as a

      credit institution (etablissement de credit), having its registered office

      at Tour d'Asnieres, 4, avenue Laurent Cely, 92608 Asnieres, France,

      registered with the Trade and Companies Registry of Nanterre under the

      number 642 041 560, whose representative is duly authorised for the

      purpose of this Agreement (hereafter referred to as the "AGENT");

 

3.     CALYON, a company incorporated under French law and authorised as a credit

      institution (etablissement de credit), having its registered office at 9

      quai du President Paul Doumer, 92920 Paris La Defense Cedex, France,

      registered with the Trade and Companies Registry of Nanterre under the

      number 304 187 701, whose representatives are duly authorised for the

      purpose of this Agreement (hereafter referred to as the "CALCULATION

      AGENT");

 

4.     GOODYEAR DUNLOP TIRES FINANCE EUROPE B.V., a company incorporated under

      Dutch law, having its registered office at Deboelelaan 7, 1083 HJ,

      Amsterdam, The Netherlands, registered with the Companies Registry of

      Amsterdam under the number 34197964, whose representative is duly

      authorised for the purpose of this Agreement (hereafter referred to as the

      "SUBORDINATED DEPOSITOR" or the "CENTRALISING UNIT");

 

All individually referred hereinafter to as an "AMENDMENT PARTY" and

collectively referred to as the "AMENDMENT PARTIES".

 

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                                                                                3

 

WHEREAS:

 

1.     The Purchaser, the Agent, the Subordinated Depositor and the Calculation

      Agent entered into on December 10, 2004 a master subordinated deposit

      agreement (the "MASTER SUBORDINATED DEPOSIT AGREEMENT").

 

2.     The Purchaser will finance the acquisition of Purchasable Receivables (a)

      partly out of the Senior Deposit effected by the Depositor with the

      Purchaser in accordance with the Master Senior Deposit Agreement and (b)

      partly by way of set-off against any amount due and payable by the

      Centralising Unit to the Purchaser in connection with (i) the Subordinated

      Deposit and (ii) the Complementary Deposit.

 

3.     As of the date hereof, the Purchaser, the Agent, the Subordinated

      Depositor and the Calculation Agent agree to modify schedule 1 of the

      Master Subordinated Deposit Agreement in order to include the Discount

      Reserve in the calculation of the Overcollateralisation Rate therein.

 

4.     The Amendment Parties have agreed to enter into this amendment to the

      Master Subordinated Deposit Agreement (the "FIRST AMENDMENT") in order to

      amend the provisions of the Master Subordinated Deposit Agreement in

      accordance with the terms and conditions provided for under this amendment

      subject to the provisions of article 19 of the Master Subordinated Deposit

      Agreement.

 

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                                                                                4

 

IT IS HEREBY AGREED AS FOLLOWS:

 

ARTICLE 1. DEFINITIONS

 

Except as otherwise defined herein, capitalised terms and expressions used in

the First Amendment (including their recitals) shall have the same meaning as

ascribed to them in the General Master Purchase Agreement, as amended and

restated on the date hereof. The Schedules hereto shall form an integral part of

this First Amendment.

 

ARTICLE 2. INTERPRETATION

 

In this First Amendment, unless the context calls for another interpretation:

 

(a)    reference to Articles and Schedules shall be construed as references to

      the articles and schedules of this First Amendment. Any reference to this

      First Amendment includes a reference to its recitals and schedules;

 

(b)    headings are for convenience only and shall not affect the interpretation

      of the First Amendment;

 

(c)    words in the singular shall cover the plural and vice versa;

 

(d)    references to the time of the day shall refer to Paris time, unless

      otherwise stipulated;

 

(e)    reference to any person shall include its permitted assignee, transferee,

      successors or any person deriving title under or through it;

 

(f)    words appearing in this First Amendment in a language other than English

      shall have the meaning ascribed to them under the law of the corresponding

      jurisdiction and such meaning shall prevail over their translation into

      English, if any;

 

(g)    a reference to a document shall be construed as a reference to such

      document as may be amended, supplemented or replaced by novation;

 

(h)    references to any Securitisation Document shall be construed to mean such

      securitisation document, as amended and restated on the date hereof or as

      may be amended and supplemented from time to time.

 

ARTICLE 3. PURPOSE

 

3.1 The purpose of this First Amendment is to set out the conditions according

to which the Amendment Parties have agreed to amend and restate the Master

Subordinated Deposit Agreement including, but not limited to, the insertion of

the Discount Reserve in the

 

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                                                                               5

 

calculation of the Overcollateralisation Rate appended to schedule 1 of this

Master Subordinated Deposit Agreement.

 

3.2 Therefore, as from the date of this First Amendment and on the basis of the

amendments agreed upon by the Amendment Parties, the terms and conditions of the

Master Subordinated Deposit Agreement, as such terms and conditions are set out

in Schedule 1 to this First Amendment, shall apply to the Amendment Parties.

 

ARTICLE 4. TERM

 

This First Amendment shall take effect on the date hereof, provided that all

conditions precedent set out in schedule 2 of the General Master Purchase

Agreement have been fulfilled.

 

ARTICLE 5. CONDITIONS PRECEDENT TO THE EXECUTION OF THIS FIRST AMENDMENT

 

Prior to the execution of this First Amendment, the following conditions must

have been complied with:

 

(a)    the Rating Agencies have:

 

      (i)    been informed of the contemplated amendment, and

 

      (ii)   have confirmed that the amendments contemplated therein will not

            entail a downgrading or withdrawal of the current ratings of the

            Notes issued by the Issuer in accordance with the provisions of

            article 19 of the Master Subordinated Deposit Agreement;

 

(b)    each Issuer and each Liquidity Bank has given its prior written consent to

      such First Amendment.

 

ARTICLE 6. REPRESENTATIONS AND WARRANTIES

 

The Subordinated Depositor hereby represents and warrants to the Purchaser, as

follows:

 

(a)    it is a liability company duly incorporated and validly existing under

      Dutch law and has the capacity:

 

      (i)    to carry on its business, as currently conducted, and to own all of

            the assets appearing on its balance sheet, except where not having

            such capacity would not be reasonably likely to result in a Material

            Adverse Effect, and

 

      (ii)   to enter into and perform its obligations under this First

            Amendment;

 

(b)    the execution of this First Amendment does not require any authorisation

      with respect to the Subordinated Depositor that has not already been

      obtained and communicated to the

 

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                                                                                6

 

      Purchaser, unless, in the case of any Governmental Authorisation, the

      failure to obtain such authorisation would not be reasonably likely to

      result in a Material Adverse Effect;

 

(c)    the execution of this First Amendment and the performance of the

      obligations under this First Amendment do not contravene any of the

      provisions of the Subordinated Depositor's articles and memorandum of

      association, agreements or undertakings to which it is a party or by which

      it is bound, and do not in any manner contravene the statutes and

      regulations applicable to it, except, in each case, to the extent that no

      Material Adverse Effect would result from such breach;

 

(d)    the obligations arising out of this First Amendment are binding on the

      Subordinated Depositor and enforceable in accordance with their respective

      terms, subject to applicable bankruptcy, insolvency, moratorium and other

      laws affecting creditors' rights generally;

 

(e)    in the event that, in accordance with the provisions of this First

      Amendment and the General Master Purchase Agreement as amended and

      restated on the date hereof, the Subordinated Depositor is not repaid in

      full on the Program Expiry Date, the Subordinated Depositor shall incur

      any losses out of its own business, and the Purchaser, shall not be

      liable, in any manner whatsoever, in this respect (except, as the case may

      be, as provided in article 4.2 (b) of the General Master Purchase

      Agreement as amended and restated on the date hereof); and

 

(f)    the constitution of the Subordinated Deposit as cash collateral

      (affectation a titre de gage-especes) in favour of the Purchaser, as set

      forth in article 10 of the Master Subordinated Deposit Agreement, complies

      with the Subordinated Depositor's corporate interest and does not exceed

      its financial capabilities; the Subordinated Depositor has entered into

      Intercompany Arrangements with the Sellers and GOODYEAR DUNLOP TIRES

      EUROPE B.V., pursuant to which the Subordinated Depositor shall receive

      from each Seller any necessary consideration for making the Subordinated

      Deposit and shall be indemnified as is appropriate, by each Seller and

      GOODYEAR DUNLOP TIRES EUROPE B.V. in respect of the losses incurred by the

      Subordinated Depositor as a result of the Subordinated Deposit made under

      this Master Subordinated Deposit Agreement.

 

ARTICLE 7. NO NOVATION

 

7.1 The First Amendment does not create any novation of the Master Subordinated

Deposit Agreement. The Amendment Parties agree that the provisions of the Master

Subordinated Deposit Agreement, as amended and restated by this First Amendment,

shall remain in full force and effect.

 

7.2 The Amendment Parties accept that any reference to the Master Subordinated

Deposit Agreement in another contract entered by one Amendment Party is

interpreted as a reference to the Master Subordinated Deposit Agreement as

modified by the First Amendment.

 

7.3 The Amendment Parties hereby acknowledge and, if necessary, accept all

amendments made to the Transaction Documents on the date hereof.

 

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ARTICLE 8. GOVERNING LAW - JURISDICTION

 

8.1 This First Amendment shall be governed by, and construed in accordance with,

French law.

 

8.2 Any dispute as to the validity, interpretation, performance or any other

matter arising out of this First Amendment shall be subject to the jurisdiction

of the competent courts of Paris. The choice of this jurisdiction is entirely

for the benefit of the Purchaser which shall retain the right to bring

proceedings in any other competent court.

 

Made in Paris,

 

on 23 May 2005, in 4 (four) originals.

 

GOODYEAR DUNLOP TIRES FINANCE EUROPE B.V.

 

represented by /s/ Ronn Archer

               ---------------------

duly authorised for the purpose of executing this First Amendment

 

EUROFACTOR

 

represented by /s/ Olga de Carvallis

               ---------------------

duly authorised for the purpose of executing this First Amendment

 

ESTER FINANCE TITRISATION

 

                                                       RICHARD SINCLAIR

                                                  Directeur General du Directoire

                                                   d'ESTER FINANCE TITRISATION

 

represented by /s/ Richard Sinclair

               --------------------

duly authorised for the purpose of executing this First Amendment

 

CALYON

 

represented by /s/ Francois Cavale and by /s/ Richard Sinclair

               -------------------         --------------------

duly authorised for the purpose of executing this First Amendment

 

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                    SCHEDULE 1. AMENDED AND RESTATED MASTER

                         SUBORDINATED DEPOSIT AGREEMENT

 

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GOODYEAR

 

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                            AMENDED AND RESTATED MASTER

                         SUBORDINATED DEPOSIT AGREEMENT

                            DATED 10 DECEMBER, 2004

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                  AS AMENDED AND RESTATED ON DATED 23 MAY, 2005

 

                                     Between

 

                                   EUROFACTOR

                                    as Agent

 

                                     CALYON

                               as Calculation Agent

 

                            ESTER FINANCE TITRISATION

                                  as Purchaser

 

                                       AND

 

                      GOODYEAR DUNLOP TIRES FINANCE EUROPE

                                       B.V.

                 as Subordinated Depositor or Centralising Unit

 

                           [GIDE LOYRETTE NOUEL LOGO]

 

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           26, COURS ALBERT 1ER 75008 PARIS TEL. +33 (0)1 40 75 60 00

           FAX +33 (0)1 43 59 37 79 E-MAIL INFO@GIDE.COM WWW.GIDE.COM

 

 

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                                TABLE OF CONTENTS

 

<TABLE>

<S>                                                                                                                    <C>

ARTICLE 1.   Definitions..............................................................................................   5

 

ARTICLE 2.   Interpretation...........................................................................................   5

 

ARTICLE 3.   Purpose of this Agreement................................................................................   6

 

ARTICLE 4.   Duration of the Agreement................................................................................   6

 

ARTICLE 5.   Amount of the Subordinated Deposit.......................................................................   7

 

ARTICLE 6.   No interest - no unavailability fee......................................................................   8

 

ARTICLE 7.   Repayment................................................................................................   9

 

ARTICLE 8.   Payments................................................................................................. 10

 

ARTICLE 9.   Representations and warranties........................................................................... 10

 

ARTICLE 10. Application of the Subordinated Deposit as cash collateral for the benefit of the Purchaser.............. 11

 

ARTICLE 11. Fees and expenses........................................................................................ 12

 

ARTICLE 12. Substitution and agency.................................................................................. 12

 

ARTICLE 13. Confidentiality.......................................................................................... 12

 

ARTICLE 14. Transferability of this Agreement........................................................................ 13

 

ARTICLE 15. Notices.................................................................................................. 13

 

ARTICLE 16. Exercise of rights....................................................................................... 13

 

ARTICLE 17. Indivisibility....................................................................,...................... 14

 

ARTICLE 18. Partial invalidity....................................................................................... 14

 

ARTICLE 19. Amendments............................................................................................... 14

 

ARTICLE 20. Limited recourse - Non petition.......................................................................... 15

 

ARTICLE 21. Governing law - jurisdiction............................................................................. 15

 

SCHEDULE 1.   CALCULATION OF THE OVERCOLLATERALISATION RATE........................................................... 17

 

SCHEDULE 2.   CALCULATION OF THE SUBORDINATED DEPOSIT................................................................. 20

</TABLE>

 

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                                                                               3

 

BETWEEN

 

1. EUROFACTOR, a company incorporated under French law, authorised as a credit

institution (etablissement de credit) and having its registered office at Tour

d'Asnieres, 4, avenue Laurent Cely, 92608 Asnieres, France, registered with the

Trade and Companies Registry of Nanterre under the number 642 041 560, whose

representative is duly authorised for the purpose of this agreement (the

"AGENT");

 

2. CALYON, a company incorporated under French law and authorised as a credit

institution (etablissement de credit), having its registered office at 9 quai du

President Paul Doumer, 92920 Paris La Defense Cedex, France, registered with the

Trade and Companies Registry of Nanterre under the number 304 187 701, whose

representatives are duly authorised for the purpose of this agreement (the

"CALCULATION AGENT");

 

3. ESTER FINANCE TITRISATION, a limited company with a management and

supervisory board (societe anonyme a directoire et conseil de surveillance)

incorporated under French law and authorised as a credit institution

(etablissement de credit), having its registered office at 19 Boulevard des

Italiens, 75002 Paris, France, registered with the Trade and Companies Registry

of Paris under the number 414 886 226, whose representative is duly authorised

for the purpose of this agreement ("ESTER FINANCE" or the "PURCHASER");

 

4. GOODYEAR DUNLOP TIRES FINANCE EUROPE B.V., a company incorporated under Dutch

law, having its registered office at Deboelelaan 7, 1083 HJ, Amsterdam, The

Netherlands, registered with the Trade and Companies Registry of Amsterdam under

the number 34197964, whose representative is duly authorised for the purpose of

this agreement (the "CENTRALISING UNIT" or the "SUBORDINATED DEPOSITOR").

 

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                                                                               4

 

WHEREAS

 

GOODYEAR DUNLOP TIRES France S.A., FULDA REIFEN GmbH & Co KG, M-PLUS

MULTIMARKENMANAGEMENT GmbH & Co KG, GOODYEAR GmbH & Co KG, DUNLOP GmbH & Co KG,

GOODYEAR DUNLOP TIRES OE GmbH, GOODYEAR DUNLOP TIRES Italia SpA and GOODYEAR

DUNLOP TIRES Espana SA (the "SELLERS") are in the business of manufacturing

and/or supplying tyres and activities relating thereto, and hold receivables

over their respective debtors.

 

In order to provide financing to the Sellers, CALYON as arranger has proposed to

set up a securitisation transaction by way of the sale, on an ongoing basis, of

trade receivables resulting from the usual business of the Sellers in France,

Germany, Italy and Spain.

 

For such purposes, ESTER FINANCE has undertaken to purchase certain trade

receivables held by the Sellers (the "PURCHASABLE RECEIVABLES") by way of a

transfer of receivables pursuant to the provisions of the French law governed

general master purchase agreement (the "GENERAL MASTER PURCHASE AGREEMENT") and

the receivables purchase agreements (the "RECEIVABLES PURCHASE AGREEMENTS")

governed by French, German, Italian and Spanish law depending of the laws of the

incorporation of the relevant Seller.

 

ESTER FINANCE shall fund the acquisition of Purchasable Receivables:

 

(i)    partly out of a senior deposit (the "SENIOR DEPOSIT") effected by the

      Depositor with the Purchaser in accordance with a master senior deposit

      agreement (the "MASTER SENIOR DEPOSIT AGREEMENT") and

 

(ii)   partly by way of set-off against any amount due and payable by the

      Centralising Unit to the Purchaser in connection with (a) a subordinated

      deposit (the "SUBORDINATED DEPOSIT") to be effected by the Centralising

      Unit with the Purchaser in accordance with the terms and conditions of the

      present master subordinated deposit agreement (the "MASTER SUBORDINATED

      DEPOSIT AGREEMENT") and (b) a complementary deposit (the "COMPLEMENTARY

      DEPOSIT") to be effected by the Centralising Unit with the Purchaser in

      accordance with the terms and conditions of a master complementary

      deposit agreement (the "MASTER COMPLEMENTARY DEPOSIT AGREEMENT").

 

The Purchaser and the Subordinated Depositor are willing to define the terms and

conditions according to which the Subordinated Deposit shall be made by the

Subordinated Depositor with the Purchaser and shall be pledged as cash

collateral (affecte a litre de gage-especes) in favour of the Purchaser and have

agreed to enter into this agreement under the terms and subject to the

conditions set forth hereunder.

 

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                                                                               5

 

NOW IT IS HEREBY AGREED AS FOLLOWS:

 

                           CHAPTER I - INTERPRETATION

 

ARTICLE 1. DEFINITIONS

 

Capitalised terms and expressions used in this Master Subordinated Deposit

Agreement shall have the same meaning as ascribed to such terms and expressions

in the Master Definitions Schedule attached as schedule 1 to the General Master

Purchase Agreement.

 

ARTICLE 2. INTERPRETATION

 

(i) The titles of the Chapters, the Schedules and the Articles (including their

paragraphs) used herein and the table of contents are for convenience of

reference only, and shall not be used to interpret this Master Subordinated

Deposit Agreement.

 

(ii) In this Master Subordinated Deposit Agreement, except if the context calls

for another interpretation:

 

      (a)    references to "CHAPTERS", "ARTICLES" and "SCHEDULES" shall be

            construed as references to the chapters, articles and schedules of

            this Master Subordinated Deposit Agreement and references to this

            Master Subordinated Deposit Agreement include its recitals

            and schedules;

 

      (b)