exv10w1






Exhibit 10.1




EXECUTION COPY




THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT




Dated as of March 26, 2010



among



TENNECO AUTOMOTIVE RSA COMPANY,

as Seller,




TENNECO AUTOMOTIVE OPERATING COMPANY INC.,

as Servicer,



FALCON ASSET SECURITIZATION COMPANY LLC AND

LIBERTY STREET FUNDING LLC,

as Conduits,



THE COMMITTED PURCHASERS FROM TIME TO TIME PARTY HERETO,




JPMORGAN CHASE BANK, N.A., THE BANK OF NOVA SCOTIA

AND WELLS FARGO BANK, N.A.,

as Co-Agents



and



JPMORGAN CHASE BANK, N.A.,

as Administrative Agent



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I. PURCHASE ARRANGEMENTS
	 	 	2	 
	 
	 	 	 	 
	Section 1.1 Purchase Facility
	 	 	2	 
	Section 1.2 Increases
	 	 	3	 
	Section 1.3 Decreases
	 	 	4	 
	Section 1.4 Payment Requirements
	 	 	5	 
	 
	 	 	 	 
	ARTICLE II. PAYMENTS AND COLLECTIONS
	 	 	5	 
	 
	 	 	 	 
	Section 2.1 Payments
	 	 	5	 
	Section 2.2 Collections Prior to Amortization
	 	 	6	 
	Section 2.3 Collections Following Amortization
	 	 	7	 
	Section 2.4 Application of Collections
	 	 	7	 
	Section 2.5 Payment Rescission
	 	 	8	 
	Section 2.6 Maximum Purchaser Interests
	 	 	8	 
	Section 2.7 Clean Up Call
	 	 	8	 
	 
	 	 	 	 
	ARTICLE III. CONDUIT FUNDING
	 	 	9	 
	 
	 	 	 	 
	Section 3.1 CP Costs
	 	 	9	 
	Section 3.2 CP Costs Payments
	 	 	9	 
	Section 3.3 Calculation of CP Costs
	 	 	9	 
	 
	 	 	 	 
	ARTICLE IV. COMMITTED PURCHASER FUNDING
	 	 	9	 
	 
	 	 	 	 
	Section 4.1 Committed Purchaser Funding
	 	 	9	 
	Section 4.2 Yield Payments
	 	 	9	 
	Section 4.3 Selection and Continuation of Tranche Periods
	 	 	10	 
	Section 4.4 Committed Purchaser Discount Rates
	 	 	10	 
	Section 4.5 Suspension of the LIBO Rate
	 	 	10	 
	Section 4.6 Liquidity Agreement Fundings
	 	 	11	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	11	 
	 
	 	 	 	 
	Section 5.1 Representations and Warranties of the Seller Parties
	 	 	11	 
	Section 5.2 Committed Purchaser Representations and Warranties
	 	 	15	 
	 
	 	 	 	 
	ARTICLE VI. CONDITIONS OF PURCHASES
	 	 	16	 
	 
	 	 	 	 
	Section 6.1 Conditions Precedent to Amendment and Restatement
	 	 	16	 
	Section 6.2 Conditions Precedent to All Purchases and Reinvestments
	 	 	16	 






i









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE VII. COVENANTS
	 	 	17	 
	 
	 	 	 	 
	Section 7.1 Affirmative Covenants of the Seller Parties
	 	 	17	 
	Section 7.2 Negative Covenants of the Seller Parties
	 	 	25	 
	 
	 	 	 	 
	ARTICLE VIII. ADMINISTRATION AND COLLECTION
	 	 	26	 
	 
	 	 	 	 
	Section 8.1 Designation of Servicer
	 	 	26	 
	Section 8.2 Duties of Servicer
	 	 	27	 
	Section 8.3 Collection Notices
	 	 	28	 
	Section 8.4 Responsibilities of Seller
	 	 	28	 
	Section 8.5 Portfolio Reports
	 	 	28	 
	Section 8.6 Servicing Fees
	 	 	29	 
	 
	 	 	 	 
	ARTICLE IX. AMORTIZATION EVENTS
	 	 	29	 
	 
	 	 	 	 
	Section 9.1 Amortization Events
	 	 	29	 
	Section 9.2 Remedies
	 	 	32	 
	 
	 	 	 	 
	ARTICLE X. INDEMNIFICATION
	 	 	33	 
	 
	 	 	 	 
	Section 10.1 Indemnities by the Seller Parties
	 	 	33	 
	Section 10.2 Increased Cost and Reduced Return
	 	 	35	 
	Section 10.3 Other Costs and Expenses
	 	 	37	 
	Section 10.4 Accounting Based Consolidation Event
	 	 	37	 
	 
	 	 	 	 
	ARTICLE XI. THE AGENTS
	 	 	38	 
	 
	 	 	 	 
	Section 11.1 Appointment
	 	 	38	 
	Section 11.2 Delegation of Duties
	 	 	39	 
	Section 11.3 Exculpatory Provisions
	 	 	39	 
	Section 11.4 Reliance by Agents
	 	 	40	 
	Section 11.5 Notice of Seller Defaults
	 	 	40	 
	Section 11.6 Non-Reliance on Other Agents and Purchasers
	 	 	40	 
	Section 11.7 Indemnification of Agents
	 	 	41	 
	Section 11.8 Agents in their Individual Capacities
	 	 	41	 
	Section 11.9 UCC Filings
	 	 	42	 
	Section 11.10 Successor Agents
	 	 	42	 
	Section 11.11 Intercreditor Agreement
	 	 	42	 
	 
	 	 	 	 
	ARTICLE XII. ASSIGNMENTS; PARTICIPATIONS
	 	 	42	 
	 
	 	 	 	 
	Section 12.1 Assignments
	 	 	42	 
	Section 12.2 Participations
	 	 	43	 
	 
	 	 	 	 
	ARTICLE XIII. TERMINATING COMMITTED PURCHASERS
	 	 	44	 
	 
	 	 	 	 
	Section 13.1 Terminating Committed Purchasers
	 	 	44	 






ii 









 






	 	 	 	 	 
	 	 	Page	 
	Section 13.2 Replacement of Purchasers, Affected Entities and Agents
	 	 	45	 
	 
	 	 	 	 
	ARTICLE XIV. MISCELLANEOUS
	 	 	45	 
	 
	 	 	 	 
	Section 14.1 Waivers and Amendments
	 	 	45	 
	Section 14.2 Notices
	 	 	46	 
	Section 14.3 Ratable Payments
	 	 	47	 
	Section 14.4 Protection of Ownership Interests of the Purchasers
	 	 	47	 
	Section 14.5 Confidentiality
	 	 	48	 
	Section 14.6 Bankruptcy Petition
	 	 	48	 
	Section 14.7 Limitation of Liability
	 	 	49	 
	Section 14.8 CHOICE OF LAW
	 	 	49	 
	Section 14.9 CONSENT TO JURISDICTION
	 	 	49	 
	Section 14.10 WAIVER OF JURY TRIAL
	 	 	49	 
	Section 14.11 Integration; Binding Effect; Survival of Terms
	 	 	50	 
	Section 14.12 Counterparts; Severability; Section References
	 	 	50	 
	Section 14.13 Co-Agent Roles
	 	 	50	 
	Section 14.14 Characterization
	 	 	51	 
	Section 14.15 Federal Reserve
	 	 	52	 






iii 









 






EXHIBITS AND SCHEDULES




	 	 	 
	Exhibit I

	 	Definitions
	 
	 	 
	Exhibit II

	 	Form of Purchase Notice
	 
	 	 
	Exhibit III

	 	Places of Business of the Seller Parties; Locations of
Records; Federal Employer Identification Number(s)
	 
	 	 
	Exhibit IV

	 	Names of Collection Banks; Collection Accounts
	 
	 	 
	Exhibit V

	 	Form of Compliance Certificate
	 
	 	 
	Exhibit VI

	 	[Intentionally Omitted]
	 
	 	 
	Exhibit VII

	 	[Intentionally Omitted]
	 
	 	 
	Exhibit VIII

	 	Credit and Collection Policy
	 
	 	 
	Exhibit IX

	 	Form of Daily Report
	 
	 	 
	Exhibit X

	 	Form of Monthly Report
	 
	 	 
	Exhibit XI

	 	Form of Performance Undertaking
	 
	 	 
	Exhibit XII

	 	Form of Intercreditor Agreement
	 
	 	 
	Schedule A

	 	Commitments
	 
	 	 
	Schedule B

	 	Conditions Precedent Documents






iv 









 






THIRD AMENDED AND RESTATED

RECEIVABLES PURCHASE AGREEMENT



          THIS THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT dated as of March 26, 2010 is
among:




     (a) Tenneco Automotive RSA Company, a Delaware corporation (“Seller”),




     (b) Tenneco Automotive Operating Company Inc., a Delaware corporation (“Tenneco
Operating”), as initial Servicer (the Servicer, and together with Seller, the “Seller
Parties”),




     (c) Falcon Asset Securitization Company LLC, a Delaware limited liability company
(“Falcon” or a “Conduit”), and Liberty Street Funding LLC, a Delaware limited liability
company (“Liberty Street” or a “Conduit”),




     (d) JPMorgan Chase Bank, N.A., a national banking association (“JPMorgan Chase”), and
its assigns hereunder (collectively, the “Falcon Committed Purchasers” and, together with
Falcon, the “Falcon Group”), The Bank of Nova Scotia, a Canadian chartered bank acting
through its New York Agency (“Scotiabank”), and its assigns hereunder (collectively, the
“Liberty Street Committed Purchasers” and, together with Liberty Street, the “Liberty Street
Group”) and Wells Fargo Bank, N.A., a national banking association (“Wells Fargo”), and its
assigns hereunder (collectively, the “Wells Fargo Committed Purchasers” or the “Wells Fargo
Group”),




     (e) JPMorgan Chase, in its capacity as agent for the Falcon Group (the “Falcon Agent”
or a “Co-Agent”), Scotiabank, in its capacity as agent for the Liberty Street Group (the
“Liberty Street Agent” or a “Co-Agent”) and Wells Fargo, in its capacity as agent for the
Wells Fargo Group (the “Wells Fargo Agent” or a “Co-Agent”), and




     (f) JPMorgan Chase, in its capacity as administrative agent for the Falcon Group, the
Liberty Street Group, the Wells Fargo Group and each Co-Agent (in such capacity, together
with its successors and assigns hereunder, the “Administrative Agent” and, together with the
Co-Agents, the “Agents”),



and amends and restates in its entirety that certain Second Amended and Restated Receivables
Purchase Agreement, dated as of May 4, 2005, among the parties hereto other than Wells Fargo, as
heretofore amended from time to time (the “Existing Agreement”). Unless defined elsewhere herein,
capitalized terms used in this Agreement shall have the meanings assigned to such terms in
Exhibit I.




PRELIMINARY STATEMENTS





     Seller desires to add Wells Fargo as a Purchaser under the facility evidenced
by the Existing Agreement, and thereafter, to continue to transfer and assign
Purchaser Interests for the benefit of the Purchasers from time to time.



 









 






     Each of the Conduits may, in its absolute and sole discretion, direct its
applicable Co-Agent to purchase Purchaser Interests from Seller from time to time
for the benefit of such Conduit.




     In the event that a Conduit declines to make any purchase through its Conduit
Agent, the Committed Purchasers in its Group shall, at the request of Seller, direct
the applicable Conduit Agent to purchase Purchaser Interests on their behalf from
time to time.




     The Wells Fargo Committed Purchasers shall at the request of the Seller direct
the Wells Fargo Agent to purchase Purchaser Interests on their behalf from time to
time.




     JPMorgan Chase has been requested and is willing to act as Falcon Agent on
behalf of the Falcon Group in accordance with the terms hereof.




     Scotiabank has been requested and is willing to act as Liberty Street Agent on
behalf of the Liberty Street Group in accordance with the terms hereof.




     Wells Fargo has been requested and is willing to act as Wells Fargo Agent on
behalf of the Wells Fargo Group in accordance with the terms hereof.




     JPMorgan Chase has also been requested and is willing to act as Administrative
Agent on behalf of the Groups in accordance with the terms hereof.




     The parties desire to amend and restate in its entirety the Existing Agreement
on the terms and subject to the conditions hereinafter set forth.



ARTICLE I.




PURCHASE ARRANGEMENTS



     Section 1.1 Purchase Facility.


          (a) Upon the terms and subject to the conditions hereof, Seller may from time to time prior to
the Facility Termination Date request that the Groups purchase their respective Percentages of
Purchaser Interests offered for sale from time to time by delivering a Purchase Notice to the
Co-Agents in accordance with Section 1.2. Upon receipt of a copy of each Purchase Notice from
Seller, each of the Conduit Agents shall determine whether its Conduit will purchase, its Group’s
Percentage of the Purchaser Interest specified in such Purchase Notice, and



               (i) in the event that Falcon elects not to make its Percentage of such Purchase, the Falcon
Agent shall promptly notify the Seller and, unless the Seller cancels the Purchase Notice, each of
the Falcon Committed Purchasers severally agrees to make its Pro Rata Share of the Falcon Group’s
Percentage of such Purchase on the terms and subject to the conditions hereof, provided that at no
time may the aggregate Capital of the Falcon Group at any



2









 





one time outstanding exceed the lesser of (A) the aggregate amount of the Falcon Committed
Purchasers’ Commitments divided by 102%, and (B) the Falcon Group’s Percentage of the Purchase
Limit;




               (ii) in the event that Liberty Street elects not to make its Percentage of such Purchase, the
Liberty Street Agent shall promptly notify the Seller and, unless the Seller cancels its Purchase
Notice, each of the Liberty Street Committed Purchasers severally agrees to make its Pro Rata Share
of the Liberty Street Group’s Percentage of such Purchase, on the terms and subject to the
conditions hereof, provided that at no time may the aggregate Capital of the Liberty Street Group
at any one time outstanding exceed the lesser of (A) the aggregate amount of the Liberty Street
Committed Purchasers’ Commitments divided by 102%, and (B) the Liberty Street Group’s Percentage of
the Purchase Limit; and



               (iii) each of the Wells Fargo Committed Purchasers severally agrees to make its Pro Rata Share
of the Wells Fargo Group’s Percentage of such Purchase, on the terms and subject to the conditions
hereof, provided that at no time may the aggregate Capital of the Wells Fargo Group at any one time
outstanding exceed the Wells Fargo Group’s Percentage of the Purchase Limit.


          (b) Seller may, upon at least thirty (30) Business Days’ notice to the Agents, terminate in
whole or reduce in part, ratably between the Groups (and within each Group, ratably amongst the
Committed Purchasers therein), the unused portion of the Purchase Limit; provided that each partial
reduction of the Purchase Limit shall be in an amount equal to $5,000,000 or a larger integral
multiple of $500,000.



     Section 1.2 Increases. Not later than 10:00 a.m. (Chicago time) on the Business Day
prior to each Incremental Purchase, Seller shall provide the Co-Agents with notice in the form set
forth as Exhibit II hereto of each Incremental Purchase (a “Purchase Notice”). Each
Purchase Notice shall be subject to Section 6.2 hereof and, except as set forth below,
shall be irrevocable and shall specify the requested Purchase Price and each Group’s Percentage
thereof (which shall not be less than $1,000,000 in the aggregate), the proposed date of purchase
(which shall be a Business Day) and, in the case of an Incremental Purchase to be funded by a
Group’s Committed Purchasers, the requested Discount Rate and Tranche Period; provided, however,
that in no event shall the aggregate number of Incremental Purchases pursuant to this Section 1.2
exceed two (2) in any calendar week. Following receipt of a Purchase Notice, each of the Conduit
Agents will determine whether its Conduit agrees to make its Group’s Percentage of such Purchase.
If a Conduit declines to make its Percentage of the proposed Purchase (such Conduit being a
“Declining Conduit”), the applicable Conduit Agent shall promptly advise the Seller and the
Servicer of such fact, and the Seller may thereupon cancel the Purchase Notice as to all Groups or,
in the absence of such a cancellation, the Incremental Purchase of that Group’s Percentage of the
applicable Purchaser Interest will be made by the Committed Purchasers in such Group. In addition,
Seller may replace the Declining Conduit and its Group by first offering the Declining Conduit’s
Group’s rights under, interest in, title to and obligations under this Agreement to the Wells Fargo
Group or the other Conduit’s Group and if the Wells Fargo Group or the other Conduit’s Group
accepts such offer, the Declining Conduit’s Group shall assign all of its rights under, interest
in, title to and obligations under this Agreement to the Wells Fargo Group or the other Conduit’s
Group, as applicable. If the Wells Fargo Group or



3









 





such other Conduit’s Group declines such an offer, Seller shall have until the 30th day after
the Wells Fargo Group or the other Conduit’s Group has declined such offer to find another special
purpose asset-backed commercial paper conduit having a short-term debt rating of A-1 or better by
Standard & Poor’s and P-1 by Moody’s Investors Service, Inc. (and committed purchasers) to accept
an assignment of the Declining Conduit’s Group rights under, interest in, title to and obligations
under this Agreement and if Seller finds such a conduit (and committed purchasers), the Declining
Conduit’s Group shall assign all of its rights under, interest in, title to and obligations under
this Agreement to such other conduit and committed purchasers. If such replacement cannot be found
within such period, at Seller’s request, the Declining Conduit Group’s Capital shall amortize in
accordance with Section 2.2 as if such Group was a Terminating Committed Purchaser’s Group
hereunder until such Capital shall be paid in full.



          On the date of each Incremental Purchase, upon satisfaction of the applicable conditions
precedent set forth in Article VI, each Conduit or Committed Purchaser, as applicable,
shall deposit to an account specified by its Co-Agent, for transfer to an account designated by
Seller (or by Servicer on Seller’s behalf), in immediately available funds, no later than
12:00 noon (Chicago time), an amount equal to (i) in the case of a Conduit, its Group’s Percentage
of the aggregate Purchase Price of the Purchaser Interests described in such Purchase Notice or
(ii) in the case of a Committed Purchaser, such Committed Purchaser’s Pro Rata Share of its Group’s
Percentage of the aggregate Purchase Price of such Purchaser Interests. Upon such transfer by a
Co-Agent to Seller’s designated account, Seller hereby, without the necessity of further action by
any Person, assigns, transfers, sets over and otherwise conveys to the Administrative Agent, for
the benefit of the Purchasers providing such funds, the applicable Purchaser Interest.


          Notwithstanding the foregoing, the Wells Fargo Agent shall pay, on March 26, 2010,
$3,389,469.24 (the “JPM Equalization Payment”) to the Falcon Agent at its account referenced in
Section 1.4 hereof and $2,663,154.40 (the “BNS Equalization Payment” and together with the JPM
Equalization Payment, the “Equalization Payments”) to the Liberty Street Agent at its account
referenced in Section 1.4 hereof, so that (after giving effect to the Equalization Payments and any
funding by each Group of any Incremental Purchase to be made on March 26, 2010, each Group’s
Percentage of the Aggregate Capital, after giving effect to any funding of such Incremental
Purchase and the addition of the Wells Fargo Group provided for herein, equals the amount which
would be such Group’s Percentage of the Aggregate Capital if all Groups (including the Wells Fargo
Group) funded their respective Group’s Percentage of all Incremental Purchases on or prior to March
26, 2010 (after giving effect to all payments in respect of the Aggregate Capital on or prior to
March 26, 2010).



     Section 1.3 Decreases. Unless Broken Funding Costs are paid for such reduction, not
later than 12:00 noon (Chicago time) on the Business Day prior to a proposed reduction in Aggregate
Capital outstanding, Seller shall provide the Co-Agents with written notice of any reduction
requested by the Seller of the Aggregate Capital outstanding (a “Reduction Notice”). Such
Reduction Notice shall designate (i) the date (the “Proposed Reduction Date”) upon which any such
reduction of Aggregate Capital shall occur (which date shall be not earlier than one (1) Business
Day after the Reduction Notice is given unless Broken Funding Costs are paid for such reduction),
and (ii) the amount of Aggregate Capital to be reduced (the “Aggregate Reduction”), which shall be
applied ratably to the Purchaser Interests of each Group in accordance with the



4









 





amount of Capital owing to each and within each Group, ratably in accordance with the amount
of Capital, if any, owing to each member of such Group.




     Section 1.4 Payment Requirements. All amounts to be paid or deposited by a Seller
Party pursuant to any provision of this Agreement shall be paid or deposited in accordance with the
terms hereof no later than 11:00 a.m. (Chicago time) on the day when due in immediately available
funds. If such amounts are payable to the Falcon Agent, the Administrative Agent or a member of
the Falcon Group, they shall be paid for its account to the Falcon Agent, at 10 South Dearborn
Street, Chicago, Illinois 60603 until otherwise notified by the Falcon Agent or the Administrative
Agent (the “Falcon Group Account”). If such amounts are payable to the Liberty Street Agent, the
Administrative Agent or to a member of the Liberty Street Group, they shall be paid to Liberty
Street Funding LLC’s account no. 2158-13 at The Bank of Nova Scotia — New York Agency, in New York,
New York, ABA No. 026-002532, until otherwise notified by the Liberty Street Agent or the
Administrative Agent (the “Liberty Street Group Account”). If such amounts are payable to the
Wells Fargo Agent, the Administrative Agent or to a member of the Wells Fargo Group, they shall be
paid to account no. 2070482789126, account name: Leverage Finance NC, Wachovia Bank, National
Association, Charlotte, NC, ABA No. 053 000 219, Attn: RSG – 7TE, Reference: Tenneco, until
otherwise notified by the Wells Fargo Agent or the Administrative Agent (the “Wells Fargo Group
Account”). Upon notice to Seller, the Administrative Agent may debit any account of Seller
maintained at JPMorgan Chase for all amounts due and payable hereunder. Except for computations of
Yield based on the Prime Rate, all computations of Yield, per annum fees calculated as part of any
CP Costs, per annum fees hereunder and per annum fees under the Fee Letter shall be made on the
basis of a year of 360 days for the actual number of days elapsed. All computations of Yield or
Default Fee based on the Prime Rate shall be computed for actual days elapsed on the basis of a
year consisting of 365 (or, when appropriate, 366) days. If any amount hereunder shall be payable
on a day which is not a Business Day, such amount shall be payable on the next succeeding Business
Day.



ARTICLE II.




PAYMENTS AND COLLECTIONS



     Section 2.1 Payments. Notwithstanding any limitation on recourse contained in this
Agreement, Seller shall immediately pay to each of the Co-Agents when due, for the account of the
relevant Purchaser or Purchasers in its Group, on a full recourse basis: (i) such fees as are set
forth in the applicable Fee Letter (which fees shall be sufficient to pay all fees owing to the
Committed Purchasers in such Co-Agent’s Group), (ii) all CP Costs owing to any Conduit Agent’s
Conduit (which shall be due and payable in arrears on Monthly Payment Dates for the Accrual Period
then most recently ended), (iii) all amounts payable as Yield to the Committed Purchasers in such
Co-Agent’s Group (which, in the case of the Falcon Group and Liberty Street Group, shall be due and
payable on the last day of the applicable Tranche Period and in the case of the Wells Fargo Group,
shall be due and payable on each Monthly Payment Date), (iv) such Co-Agent’s Group’s Percentage of
all amounts payable as Deemed Collections (which shall be immediately due and payable by Seller and
applied to reduce outstanding Aggregate Capital hereunder in accordance with Sections 2.2 and 2.3
hereof), (v) such Co-Agent’s Group’s Percentage of all amounts payable to reduce the aggregate
Capital of the Purchaser Interests, if required, pursuant to Section 2.6, (vi) such Co-Agent’s
Group’s share of all amounts payable



5









 





pursuant to Article X, if any, (vii) such Co-Agent’s Group’s share of all Broken Funding Costs
and (viii) such Co-Agent’s Group’s Percentage of all Default Fees (all of the foregoing in
clauses (i)-(viii), collectively, the “Recourse Obligations”). If Seller fails to pay any of the
Recourse Obligations when due: (a) a Settlement Date shall occur, and (b) Seller agrees to pay, on
demand, the Default Fee on the unpaid portion of such Recourse Obligation until paid in full.
Notwithstanding the foregoing, no provision of this Agreement or the Fee Letter shall require the
payment or permit the collection of any amounts hereunder in excess of the maximum permitted by
applicable law. If at any time Seller receives any Collections or is deemed to receive any
Collections, subject to the terms of the Intercreditor Agreement, Seller shall immediately pay such
Collections or Deemed Collections to the Servicer for application in accordance with the terms and
conditions hereof and of the Second Lien Receivables Purchase Agreement and, at all times prior to
such payment, such Collections or Deemed Collections shall be held in trust by Seller for the
exclusive benefit of the Purchasers, the Agents, the Second Lien Agent and the “Purchasers” under
(and as defined in) the Second Lien Receivables Purchase Agreement..




     Section 2.2 Collections Prior to Amortization. Prior to the Amortization Date, any
Collections and/or Deemed Collections received by the Servicer shall be set aside and held in trust
by the Servicer for the payment of any accrued and unpaid Aggregate Unpaids hereunder and
“Aggregate SLOT Unpaids” under (and as defined in) the Second Lien Receivables Purchase Agreement,
for a Reinvestment as provided in this Section 2.2 and under the Second Lien Receivables Purchase
Agreement or to reduce the Aggregate Capital outstanding in accordance with Section 1.3 hereunder
and under the Second Lien Receivables Purchase Agreement. If at any time any Collections are
received by the Servicer prior to the Amortization Date: (i) the Servicer shall set aside (x) the
Termination Percentage (hereinafter defined) of Collections allocable to each Terminating Committed
Purchaser’s Group (which amount shall be payable on the next Settlement Date to reduce the Capital
then held by each Terminating Committed Purchaser) and (y) the amount of Collections, if any,
required to be set aside pursuant to the terms of the Second Lien Receivables Purchase Agreement
and (ii) Seller hereby requests, and the Purchasers (other than any Terminating Committed
Purchasers) in each Group are hereby deemed to make, simultaneously with such receipt, a
reinvestment (each a “Reinvestment”) with each Group’s Percentage of each and every Collection
received by the Servicer that is part of any Purchaser Interest (other than the Termination
Percentage of any Collections allocable to each Terminating Committed Purchaser’s Group and
Collections set aside to reduce the Aggregate Capital outstanding in accordance with Section 1.3),
such that after giving effect to such Reinvestment, the amount of Capital of such Purchaser
Interest immediately after such receipt and corresponding Reinvestment shall be equal to the amount
of Capital immediately prior to such receipt. On each Settlement Date prior to the occurrence of
the Amortization Date, the Servicer shall remit to the applicable Co-Agent’s account specified in
Section 1.4 such Co-Agent’s Group’s Percentage of the amounts set aside during the period since the
prior Settlement Date that have not been subject to a Reinvestment or used for an Aggregate
Reduction pursuant to Section 1.3 and apply such amounts (if not previously paid in accordance with
Section 2.1) in the following order of priority (or, on any Settlement Date on or prior to the
Second Lien Termination Date, in the order of priority set forth in Section 4.1 of the
Intercreditor Agreement): first, to reduce unpaid CP Costs, Yield and other Recourse Obligations,
if any, that are then due and owing to the members of such Group, and second, to reduce the Capital
of all Purchaser Interests of Terminating Committed Purchasers in such Group, applied ratably to
each such Terminating Committed Purchaser according to its respective Termination Percentage. If



6









 





any Group’s Capital, CP Costs, Yield and other Recourse Obligations shall be reduced to zero,
such Group’s Percentage of any additional Collections received by the Servicer (i) if applicable,
shall be remitted to the Agent’s account no later than 11:00 a.m. (Chicago time) to the extent
required to fund such Group’s Percentage of any Aggregate Reduction on such Settlement Date and
(ii) any balance remaining thereafter shall be remitted from the Servicer to Seller on such
Settlement Date. Each Terminating Committed Purchaser shall be allocated a ratable portion of
Collections from the date of any assignment by Conduit pursuant to Section 13.6 (the “Termination
Date”) until such Terminating Committed Purchaser’s Capital shall be paid in full. This ratable
portion shall be calculated on the Termination Date of each Terminating Committed Purchaser as a
percentage equal to (i) Capital of such Terminating Committed Purchaser outstanding on its
Termination Date, divided by (ii) the Aggregate Capital outstanding on such Termination Date (the
“Termination Percentage”). Each Terminating Committed Purchaser’s Termination Percentage shall
remain constant prior to the Amortization Date. On and after the Amortization Date, each
Termination Percentage shall be disregarded, and each Terminating Committed Purchaser’s Capital
thereafter shall be reduced ratably with all Committed Purchasers in accordance with Section 2.3.




     Section 2.3 Collections Following Amortization. On the Amortization Date and on each
day thereafter, the Servicer shall set aside and hold in trust, for the applicable Purchasers in
each Group, the applicable Group’s Percentage of all Collections received on each such day and, to
the extent of available funds of the Seller, an additional amount for the payment of any accrued
and unpaid Recourse Obligations owed by Seller and not previously paid by Seller in accordance with
Section 2.1. On and after the Amortization Date, if the Second Lien Termination Date shall have
occurred, the Servicer shall, upon the request from time to time by (or pursuant to standing
instructions from) the Administrative Agent or pursuant to Section 1.3 apply such set aside amounts
to reduce such Group’s Capital associated with each such Purchaser Interest and any other Aggregate
Unpaids owing to each Group, pro rata in accordance with its Percentage.



     Section 2.4 Application of Collections. Prior to the Second Lien Termination Date,
Collections set aside in accordance with Section 2.3 shall be applied on each Settlement Date as
set forth in Section 4.1 of the Intercreditor Agreement. On and after the Second Lien Termination
Date, if there shall be insufficient funds on deposit for the Servicer to distribute funds in
payment in full of the aforementioned amounts pursuant to Section 2.2 or 2.3 (as applicable), the
Servicer shall distribute funds in the following order of priority:




     first, to the Servicer, in payment of the Servicer’s reasonable out of pocket
costs and expenses in connection with servicing, administering and collecting the
Receivables, including the Servicing Fee, if Seller or one of its Affiliates is not
then acting as the Servicer,




     second, (i) to the Administrative Agent in reimbursement of its reasonable
costs of collection and enforcement of this Agreement on behalf of the Purchasers
and (ii) to the Agents, in reimbursement of reasonable fees and expenses of a common
legal counsel, or if such common legal counsel determines that it cannot continue
representation due to a business or ethical conflict, separate legal counsel,
representing Agents in connection with such collection and enforcement,



7









 






     third, to each of the Co-Agents, ratably in accordance with its Group’s
respective Percentage, in payment of all accrued and unpaid fees under the Fee
Letter, CP Costs and Yield when and as due (to be shared ratably amongst the
Purchasers in each Group in accordance with their respective shares thereof),




     fourth, to each of the Co-Agents, ratably in accordance with its Group’s
respective Percentage, in reduction (if applicable) of its Group’s Capital (to be
shared ratably amongst the Purchasers in each Group in accordance with their
respective shares thereof),




     fifth, to each of the Co-Agents, ratably in accordance with its Group’s
respective Percentage, in ratable payment of all other unpaid Recourse Obligations
owing to such Group,




     sixth, in payment of the Servicer’s costs and expenses in connection with
servicing, administering and collecting the Receivables, including the Servicing
Fee, if Seller or one of its Affiliates is then acting as Servicer, and




     seventh, after the Aggregate Unpaids have been indefeasibly reduced to zero, to
Seller.



     Section 2.5 Payment Rescission. No payment of any of the Aggregate Unpaids shall be
considered paid or applied hereunder to the extent that, at any time, all or any portion of such
payment or application is rescinded by application of law or judicial authority, or must otherwise
be returned or refunded for any reason. Seller shall remain obligated for the amount of any
payment or application so rescinded, returned or refunded, and shall promptly pay to each
applicable Co-Agent (for application to the Person or Persons who suffered such rescission, return
or refund) the full amount thereof, plus the Default Fee from the date of any such rescission,
return or refunding.



     Section 2.6 Maximum Purchaser Interests. Seller shall ensure that the Purchaser
Interests of the Purchasers do not exceed in the aggregate 100%. If the aggregate of the Purchaser
Interests of the Purchasers exceeds 100%, Seller shall determine the amount that must be applied to
the reduction of Capital of the Purchaser Interests to eliminate such excess (the “Mandatory
Reduction Amount”), and Seller shall pay, from funds available to Seller under Sections 2.2 and
2.3, to each of the Co-Agents, not later than the next Business Day, its Group’s respective
Percentage of the Mandatory Reduction Amount for distribution to the Purchasers in such Group
ratably in accordance with their respective amounts of Capital outstanding.



     Section 2.7 Clean Up Call. Servicer shall have the right (after providing Agents with
not less than two (2) Business Days’ prior written notice), at any time following the reduction of
the Aggregate Capital to a level that is less than 10.0% of the original Purchase Limit, to
purchase from the Purchasers to the extent of available Collections for this purpose, all, but not
less than all, of the then outstanding Purchaser Interests. The aggregate purchase price in
respect thereof shall be an amount equal to the Aggregate Unpaids through the date of such
repurchase, payable in immediately available funds. Such repurchase shall be without
representation, warranty or recourse of any kind by, on the part of, or against any Purchaser or
any Agent.



8









 





ARTICLE III.




CONDUIT FUNDING



     Section 3.1 CP Costs. Seller shall pay CP Costs with respect to the Capital funded by
any Conduit for each day that any Capital in respect of such Purchaser Interest is outstanding.
Capital funded by a Conduit substantially with Pooled Commercial Paper will accrue CP Costs each
day on a pro rata basis, based upon the percentage share such Capital represents in relation to all
assets held by such Conduit and funded substantially with related Pooled Commercial Paper.



     Section 3.2 CP Costs Payments. On each Monthly Payment Date, Seller shall pay to each
Conduit Agent (for the benefit of its Conduit) an aggregate amount equal to all accrued and unpaid
CP Costs in respect of all Capital of such Conduit for the immediately preceding Accrual Period in
accordance with Article II.



     Section 3.3 Calculation of CP Costs. Not later than the 5th Business Day of each
month hereafter, each Conduit shall calculate the aggregate amount of CP Costs of such Conduit
owing to it for the applicable Accrual Period and shall notify Seller of such aggregate amount.



ARTICLE IV.




COMMITTED PURCHASER FUNDING



     Section 4.1 Committed Purchaser Funding. Capital funded by the Committed Purchasers
in a Group shall accrue Yield for each day during each Tranche Period at either the LIBO Rate, the
Transaction Rate or the Prime Rate in accordance with the terms and conditions hereof. Until
Seller gives notice to the applicable Co-Agent of another Discount Rate in accordance with
Section 4.4, the initial Discount Rate for any interest in a Purchaser Interest transferred to the
Committed Purchasers in a Group by the applicable Conduit pursuant to the terms and conditions of
any Liquidity Agreement shall be the Prime Rate. If the Committed Purchasers in a Group acquire by
assignment from the applicable Conduit any interest in a Purchaser Interest pursuant to a Liquidity
Agreement, Capital allocable to each interest so assigned shall each be deemed to have a new
Tranche Period commencing on the date of any such assignment.



     Section 4.2 Yield Payments.


          (a) On the last day of each Tranche Period for each portion of Capital funded by the Committed
Purchasers in the Falcon Group or Liberty Street Group, Seller shall pay to the applicable Co-Agent
(for the benefit of the Committed Purchasers in its Group) an aggregate amount equal to the accrued
and unpaid Yield for the entire Tranche Period of each such portion of Capital in accordance with
Article II.


          (b) On each Monthly Payment Date, Seller shall pay to the Wells Fargo Agent (for the benefit
of the Wells Fargo Committed Purchasers) an aggregate amount equal to the




9











 




accrued and unpaid Yield for the most recently ended Tranche Period in respect of the
portion of Capital held by the Wells Fargo Group during such Tranche Period.




     Section 4.3 Selection and Continuation of Tranche Periods.



          (a) With consultation from (and approval by) the applicable Co-Agent, Seller shall from time
to time request Tranche Periods for Capital funded by the Committed Purchasers in the Falcon Group
and the Liberty Street Group.



          (b) Seller or the applicable Co-Agent of the Falcon Group or the Liberty Street Group, upon
notice to and consent by the other received at least three (3) Business Days prior to the end of a
Tranche Period (the “Terminating Tranche”) for any portion of Capital, may, effective on the last
day of the Terminating Tranche: (i) divide any such portion of Capital into multiple portions,
(ii) combine any such portion of Capital with one or more other portions that have a Terminating
Tranche ending on the same day as such Terminating Tranche or (iii) combine any such portion of
Capital with a new interest in the Purchaser Interests to be purchased on the day such Terminating
Tranche ends, provided that in no event may any portion of Capital of a Conduit be combined with
any portion of Capital of its Committed Purchasers.



     Section 4.4 Committed Purchaser Discount Rates. Seller may select the LIBO Rate, the
Transaction Rate or the Prime Rate for each portion of Capital of the Committed Purchasers in each
Group. Seller shall by 11:00 a.m. (Chicago time): (i) at least three (3) Business Days prior to
the expiration of any Terminating Tranche with respect to which the LIBO Rate is being requested as
a new Discount Rate and (ii) at least one (1) Business Day prior to the expiration of any
Terminating Tranche with respect to which the Prime Rate or the Transaction Rate is being requested
as a new Discount Rate, give the applicable Co-Agent irrevocable notice of the new Discount Rate
for the portion of Capital of its Group associated with such Terminating Tranche. Until Seller
gives notice to the applicable Co-Agent of another Discount Rate, the initial Discount Rate for any
Purchaser Interest transferred to the Committed Purchasers pursuant to the terms and conditions of
any Liquidity Agreement shall be the Prime Rate.



     Section 4.5 Suspension of the LIBO Rate.



          (a) If prior to the first day of any Tranche Period:



               (i) the applicable Co-Agent shall have determined (which determination shall be conclusive and
binding on Seller) that, by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the LIBO Rate for such Tranche Period, or



               (ii) the applicable Co-Agent shall have received notice from Committed Purchasers holding
Commitments in excess of 50% of the aggregate of all Commitments in such Co-Agent’s Group that the
LIBO Rate determined for such Tranche Period will not adequately and fairly reflect the cost of
acquiring or maintaining a Purchaser Interest at such LIBO Rate,


such Co-gent shall give fax or telephonic notice thereto to Seller and the relevant Committed
Purchasers as soon as practicable thereafter. If such notice is given (A) any Capital funded by





10









 







the Committed Purchasers in such Group requested to accrue Yield at a LIBO Rate as of the first day
of such Tranche Period shall instead accrue Yield at the Prime Rate, (B) any Capital funded by the
Committed Purchasers in such Group that is already accruing Yield at a LIBO Rate shall, after the
last day of such Tranche Period, accrue Yield at the Prime Rate, and (C) until such notice is
withdrawn, Seller shall not request that Yield accrue at a LIBO Rate on any further Purchaser
Interests of such Group.




          (b) If less than all of the Committed Purchasers in a Group give a notice to the applicable
Co-Agent pursuant to Section 4.5(a)(ii), each Committed Purchaser in such Group which gave such a
notice shall be obliged, at the request of Seller, Conduit or such Co-Agent, to assign all of its
rights and obligations hereunder to (i) another Committed Purchaser or (ii) another funding entity
nominated by Seller or the applicable Co-Agent that is acceptable to such Conduit and willing to
participate in this Agreement through the Liquidity Termination Date in the place of such notifying
Committed Purchaser; provided that (i) the notifying Committed Purchaser receives payment in full,
pursuant to an Assignment Agreement, of an amount equal to such notifying Committed Purchaser’s Pro
Rata Share of the Capital and Yield owing to all of the Committed Purchasers in such Group and all
accrued but unpaid fees and other costs and expenses payable in respect of its Pro Rata Share of
the Purchaser Interests of the Committed Purchasers in such Group, and (ii) the replacement
Committed Purchaser otherwise satisfies the requirements of Section 12.1(b).



     Section 4.6 Liquidity Agreement Fundings. The parties hereto acknowledge that each
Conduit may assign all or any portion of its Purchaser Interests to the Committed Purchasers in its
Group at any time pursuant to its Liquidity Agreement to finance or refinance the necessary portion
of its Purchaser Interests through a funding under such Liquidity Agreement to the extent
available. The fundings under each Liquidity Agreement will accrue Yield in accordance with this
Article IV. Regardless of whether a funding of Purchaser Interests by Committed Purchasers
constitutes the direct purchase of an interest in Purchaser Interests hereunder, an assignment
under the applicable Liquidity Agreement of an interest in Purchaser Interests originally funded by
a Conduit or the sale of one or more participations or other interests under such Liquidity
Agreement of an interest in a Purchaser Interest originally funded by a Conduit, each Committed
Purchaser participating in a funding of an interest in Purchaser Interests shall have the rights
and obligations of a “Purchaser” hereunder with the same force and effect as if it had directly
purchased such interest from Seller hereunder.



ARTICLE V.




REPRESENTATIONS AND WARRANTIES




     Section 5.1 Representations and Warranties of the Seller Parties. Each Seller Party
hereby represents and warrants to the Agents and the Purchasers, as to itself, as of the date
hereof and as of the date of each Incremental Purchase and the date of each Reinvestment that:



          (a) Corporate Existence and Power. Such Seller Party is a corporation duly organized,
validly existing and in good standing under the laws of Delaware and no other state or
jurisdiction, and such jurisdiction must maintain a public record showing the organization to have
been organized. Such Seller Party is duly qualified to do business and is in good standing



11









 




as a foreign corporation, and has and holds all corporate power and all governmental licenses,
authorizations, consents and approvals required to carry on its business in each jurisdiction in
which its business is conducted except where the failure to so qualify or so hold could not
reasonably be expected to have a Material Adverse Effect.




          (b) Power and Authority; Due Authorization, Execution and Delivery. The execution and
delivery by such Seller Party of this Agreement and each other Transaction Document to which it is
a party, and the performance of its obligations hereunder and thereunder and, in the case of
Seller, Seller’s use of the proceeds of purchases made hereunder, are within its corporate powers
and authority and have been duly authorized by all necessary corporate action on its part. This
Agreement and each other Transaction Document to which such Seller Party is a party has been duly
executed and delivered by such Seller Party.



          (c) No Conflict. The execution and delivery by such Seller Party of this Agreement
and each other Transaction Document to which it is a party, and the performance of its obligations
hereunder and thereunder do not contravene or violate (i) its certificate or articles of
incorporation or by-laws, (ii) any law, rule or regulation applicable to it, (iii) any restrictions
under any agreement, contract or instrument to which it is a party or by which it or any of its
property is bound, or (iv) any order, writ, judgment, award, injunction or decree binding on or
affecting it or its property, and do not result in the creation or imposition of any Adverse Claim
on assets of such Seller Party or its Subsidiaries (except as created hereunder) except, in any
case, where such contravention or violation could not reasonably be expected to have a Material
Adverse Effect; and no transaction contemplated hereby requires compliance with any bulk sales act
or similar law.



          (d) Governmental Authorization. Other than the filing of the financing statements
required hereunder, no authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required for the due execution and delivery
by such Seller Party of this Agreement and each other Transaction Document to which it is a party
and the performance of its obligations hereunder and thereunder.



          (e) Actions, Suits. There are no actions, suits or proceedings pending, or to the
best of such Seller Party’s knowledge, threatened, against or affecting such Seller Party, or any
of its properties, in or before any court, arbitrator or other body, that could reasonably be
expected to have a Material Adverse Effect.



          (f) Binding Effect. This Agreement and each other Transaction Document to which such
Seller Party is a party constitute the legal, valid and binding obligations of such Seller Party
enforceable against such Seller Party in accordance with their respective terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors’ rights generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at law).



          (g) Accuracy of Information. All information heretofore furnished by such Seller
Party or any of its Affiliates to the Agents or the Purchasers for purposes of or in connection
with this Agreement, any of the other Transaction Documents or any transaction contemplated hereby
or thereby is, and all such information hereafter furnished by such Seller



12









 




Party or any of its Affiliates to the Agents or the Purchasers will be, true and accurate in
every material respect on the date such information is stated or certified and does not and will
not contain any material misstatement of fact or omit to state a material fact or any fact
necessary to make the statements contained therein, taken as a whole, not misleading.




          (h) Use of Proceeds. No proceeds of any purchase hereunder will be used (i) for a
purpose that violates, or would be inconsistent with, Regulation T, U or X promulgated by the Board
of Governors of the Federal Reserve System from time to time or (ii) to acquire any security in any
transaction which is subject to Section 12, 13 or 14 of the Exchange Act.



          (i) Good Title. Immediately prior to each purchase hereunder, Seller shall be the
legal and beneficial owner of the Receivables and Related Security with respect thereto, free and
clear of any Adverse Claim, except for Adverse Claims created by the Transaction Documents and the
Second Lien Adverse Claims. There have been duly filed all financing statements or other similar
instruments or documents necessary under the UCC (or any comparable law) of all appropriate
jurisdictions to perfect Seller’s ownership interest in each Receivable, its Collections and the
Related Security.



          (j) Perfection. This Agreement, together with the filing of the financing statements
contemplated hereby, is effective to, and shall, upon each purchase hereunder, transfer to the
Administrative Agent for the benefit of the relevant Purchaser or Purchasers (and the
Administrative Agent for the benefit of such Purchaser or Purchasers shall acquire from Seller) a
valid and perfected first priority undivided percentage ownership or security interest in each
Receivable existing or hereafter arising and in the Related Security and Collections with respect
thereto, free and clear of any Adverse Claim, except for Adverse Claims created by the Transaction
Documents and the Second Lien Adverse Claims. There have been duly filed all financing statements
or other similar instruments or documents necessary under the UCC (or any comparable law) of all
appropriate jurisdictions to perfect the Administrative Agent’s (on behalf of the Purchasers)
ownership or security interest in the Receivables, the Related Security and the Collections. Such
Seller Party’s jurisdiction of organization is a jurisdiction whose law generally requires
information concerning the existence of a nonpossessory security interest to be made generally
available in a filing, record or registration system as a condition or result of such a security
interest’s obtaining priority over the rights of a lien creditor which respect to collateral.



          (k) Places of Business and Locations of Records. The principal places of business and
chief executive office of such Seller Party and the offices where it keeps all of its Records are
located at the address(es) listed on Exhibit III or such other locations of which the
Administrative Agent has been notified in accordance with Section 7.2(a) in jurisdictions where all
action required by Section 14.4(a) has been taken and completed. Seller’s Federal Employer
Identification Number is correctly set forth on Exhibit III.



          (l) Collections. The conditions and requirements set forth in Section 7.1(j) and
Section 8.2 have at all times been satisfied and duly performed. The names and addresses of all
Collection Banks, together with the account numbers of the Collection Accounts of Seller at each
Collection Bank and the post office box number of each Lock-Box, are listed on Exhibit IV. Seller
has not granted any Person, other than the Administrative Agent as contemplated by this Agreement
and the Intercreditor Agreement, dominion and control of any Lock-Box or



13









 




Collection Account, or the right to take dominion and control of any such Lock-Box or
Collection Account at a future time or upon the occurrence of a future event.




          (m) Material Adverse Effect. (i) The initial Servicer represents and warrants that
since December 31, 2009, no event has occurred that would have a material adverse effect on the
financial condition or operations of the initial Servicer and its Subsidiaries or the ability of
the initial Servicer to perform its obligations under this Agreement, and (ii) Seller represents
and warrants that since the date of this Agreement, no event has occurred that would have a
material adverse effect on (A) the financial condition or operations of Seller, (B) the ability of
Seller to perform its obligations under the Transaction Documents, or (C) the collectibility of the
Receivables generally or any material portion of the Receivables.



          (n) Names. The name in which Seller has executed this Agreement is identical to the
name of Seller as indicated on the public record of its state of organization which shows Seller to
have been organized. In the past five (5) years, Seller has not used any corporate names, trade
names or assumed names other than the name in which it has executed this Agreement and the names
set forth on Exhibit VI hereto.



          (o) Ownership of Seller. Tenneco Operating owns, directly or indirectly, 100% of the
issued and outstanding capital stock of Seller. Such capital stock is validly issued, fully paid
and nonassessable, and there are no options, warrants or other rights to acquire securities of
Seller.



          (p) Not an Investment Company. Such Seller Party is not an “investment company”
within the meaning of the Investment Company Act of 1940, as amended, or any successor statute.



          (q) Compliance with Law. Such Seller Party has complied in all respects with all
applicable laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to
which it may be subject, except where the failure to so comply could not reasonably be expected to
have a Material Adverse Effect. Each Receivable, together with the Contract related thereto, does
not contravene any laws, rules or regulations applicable thereto (including, without limitation,
laws, rules and regulations relating to truth in lending, fair credit billing, fair credit
reporting, equal credit opportunity, fair debt collection practices and privacy), and no part of
such Contract is in violation of any such law, rule or regulation, except where such contravention
or violation could not reasonably be expected to have a Material Adverse Effect.



          (r) Compliance with Credit and Collection Policy. Such Seller Party has complied with
the Credit and Collection Policy with regard to each Receivable and in all material respects with
the related Contract, and has not made any change to such Credit and Collection Policy, except such
change as to which the Administrative Agent has been notified in accordance with
Section 7.1(a)(vii).



          (s) Payments to the Applicable Originator. With respect to each Receivable
transferred to Seller under a Receivables Sale Agreement by the applicable Originator, Seller has
given reasonably equivalent value to such Originator in consideration therefor and such transfer
was not made for or on account of an antecedent debt. No transfer by any Originator of any



14









 




Receivable under its Receivables Sale Agreement is or may be voidable under any section of the
Bankruptcy Reform Act of 1978 (11 U.S.C. §§ 101 et seq.), as amended.




          (t) Enforceability of Contracts. Each Contract with respect to each Receivable is
effective to create, and has created, a legal, valid and binding obligation of the related Obligor
to pay the Outstanding Balance of the Receivable created thereunder and any accrued interest
thereon, enforceable against the Obligor in accordance with its terms, except as such enforcement
may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating
to or limiting creditors’ rights generally and by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).



          (u) Eligible Receivables. Each Receivable included in the Net Receivables Balance as
an Eligible Receivable on the date of its purchase under the applicable Receivables Sale Agreement
was an Eligible Receivable on such purchase date.



          (v) Net Receivables Balance. Seller has determined that, immediately after giving
effect to each purchase hereunder, the Net Receivables Balance is at least equal to the sum of
(i) the Aggregate Capital, plus (ii) the Aggregate Reserves.



          (w) Accounting. The manner in which such Seller Party accounts for the transactions
contemplated by this Agreement and the applicable Receivables Sale Agreement does not jeopardize
the true sale analysis.



          (x) Solvency. After giving effect to (i) the purchase by the Seller of Receivables
under the Receivables Sale Agreements, (ii) the sale of Purchaser Interests hereunder to occur on
such date and to the application of the proceeds therefrom and (iii) the sale of “Purchaser
Interests” under (and as defined in) the Second Lien Receivables Purchase Agreement to occur on
such date and application of the proceeds therefrom, the Seller is and will be Solvent.



     Section 5.2 Committed Purchaser Representations and Warranties. Each Committed
Purchaser hereby represents and warrants to its applicable Co-Agent, its Conduit, if any, the
Administrative Agent and the Seller Parties that:



          (a) Existence and Power. Such Committed Purchaser is a corporation or a banking
association duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization, and has all corporate power to perform its
obligations hereunder.



          (b) No Conflict. The execution and delivery by such Committed Purchaser of this
Agreement and the performance of its obligations hereunder are within its corporate powers, have
been duly authorized by all necessary corporate action, do not contravene or violate (i) its
certificate or articles of incorporation or association or by-laws, (ii) any law, rule or
regulation applicable to it, (iii) any restrictions under any agreement, contract or instrument to
which it is a party or any of its property is bound, or (iv) any order, writ, judgment, award,
injunction or decree binding on or affecting it or its property, and do not result in the creation
or imposition of any Adverse Claim on its assets. This Agreement has been duly authorized,
executed and delivered by such Committed Purchaser.



15









 





          (c) Governmental Authorization. No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body is required for the due
execution and delivery by such Committed Purchaser of this Agreement and the performance of its
obligations hereunder.



          (d) Binding Effect. This Agreement constitutes the legal, valid and binding
obligation of such Committed Purchaser enforceable against such Committed Purchaser in accordance
with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws relating to or limiting creditors’ rights generally and by
general principles of equity (regardless of whether such enforcement is sought in a proceeding in
equity or at law).



ARTICLE VI.




CONDITIONS OF PURCHASES




     Section 6.1 Conditions Precedent to Amendment and Restatement. The effectiveness of
the amendment and restatement evidenced hereby is subject to the conditions precedent that (a) the
Administrative Agent shall have received on or before the date of such purchase those documents
listed on Schedule B and (b) each of the Agents shall have received all fees and expenses required
to be paid on such date pursuant to the terms of this Agreement and the Fee Letter.



     Section 6.2 Conditions Precedent to All Purchases and Reinvestments. Each purchase of
a Purchaser Interest and each Reinvestment shall be subject to the further conditions precedent
that (a) the Servicer shall have delivered to the Administrative Agent on or prior to the date of
such purchase or Reinvestment, in form and substance satisfactory to the Agents, all Settlement
Reports as and when due under Section 8.5; (b) the Facility Termination Date shall not have
occurred; (c) each of the Agents shall have received such other approvals, opinions or documents as
it may reasonably request, provided, however, that no Co-Agent shall request additional approvals,
opinions or documents pursuant to this Section unless mandated by Standard & Poor’s or Moody’s
Investors Service, Inc. or unless there has been a change in applicable law; and (d) on the date of
each such Incremental Purchase or Reinvestment, the following statements shall be true (and
acceptance of the proceeds of such Incremental Purchase or Reinvestment shall be deemed a
representation and warranty by Seller that such statements are then true):



               (i) the representations and warranties set forth in Section 5.1 excluding, in the case of any
Reinvestment, Section 5.1(e) (except as it relates to a Material Adverse Effect of the of the type
described in clause (iii) of the definition of such term ) or Section 5.1(m), are true and correct
on and as of the date of such Incremental Purchase or Reinvestment as though made on and as of such
date;



               (ii) no event has occurred and is continuing, or would result from such Incremental Purchase
or Reinvestment, that will constitute (A) in the case of an Incremental Purchase, an Amortization
Event or a Potential Amortization Event and (B) in the case of a Reinvestment, an Amortization
Event;



16









 





               (iii) (x) the Aggregate Capital does not exceed the Purchase Limit and (y) the “Aggregate SLOT
Capital” under (and as defined in) the Second Lien Receivables Purchase Agreement does not exceed
the “SLOT Purchase Limit” under (and as defined in) the Second Lien Receivables Purchase; and



               (iv) (x) the aggregate Purchaser Interests do not exceed 100% and (y) the aggregate “SLOT
Interests” under (and as defined in) the Second Lien Receivables Purchase do not exceed 100%.


It is expressly understood that each Reinvestment shall, unless otherwise directed by the
applicable Co-Agent or Purchaser, occur automatically on each day that the Servicer shall receive
any Collections without the requirement that any further action be taken on the part of any Person
and notwithstanding the failure of Seller to satisfy any of the foregoing conditions precedent in
respect of such Reinvestment. The failure of Seller to satisfy any of the foregoing conditions
precedent in respect of any Reinvestment shall give rise to a right of the Co-Agents, which right
may be exercised at any time on demand of the Co-Agents, acting together, to rescind the related
purchase and direct Seller to pay to each Co-Agent for the benefit of the Purchasers in its Group
an amount equal to such Group’s Percentage of the Collections prior to the Amortization Date that
shall have been applied to the affected Reinvestment.




ARTICLE VII.




COVENANTS




     Section 7.1 Affirmative Covenants of the Seller Parties. Until the date on which the
Aggregate Unpaids have been indefeasibly paid in full and this Agreement terminates in accordance
with its terms, each Seller Party hereby covenants, as to itself, as set forth below:



          (a) Financial Reporting. Such Seller Party will maintain, for itself and each of its
Subsidiaries, a system of accounting established and administered in accordance with GAAP, and
furnish or cause to be furnished to the Co-Agents:



               (i) Annual Reporting. (A) As soon as available, but in any event within 90 days after
the end of each fiscal year of Performance Guarantor, a copy of the audited consolidated balance
sheet of Performance Guarantor and its consolidated Subsidiaries as at the end of such year and the
related audited consolidated statements of income and of cash flows (or such other similar or
additional statement then requested by the SEC for annual reports filed pursuant to the Exchange
Act) for the such year, setting forth in each case in comparative form the figures for the previous
year, reported on without a “going concern” or like qualification or exception, or qualification
arising out of the scope of the audit, or other material qualification of exception, by
independent public accountants of nationally recognized standing, and (B) as soon as available, but
in any event within 105 days after the end of each fiscal year of Seller, a copy of the unaudited
balance sheet of Seller as at the end of such year and the related unaudited statements of income
and of cash flows for the such year, setting forth, in each case, in comparative form the figures
for the previous year, if applicable, certified by an Authorized Officer of Seller.



17









 





               (ii) Quarterly Reporting. (A) As soon as available, but in any event not later than
45 days after the end of each of the first three quarterly periods of each fiscal year of
Performance Guarantor, the unaudited consolidated balance sheet of Performance Guarantor and its
consolidated Subsidiaries as at the end of such quarter and the related unaudited consolidated
statements of income and of cash flows (or such other or similar or additional statement then
required by the SEC for quarterly reports filed pursuant to the Exchange Act) for such quarter and
the portion of the fiscal year through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by Performance Guarantor’s chief
executive officer, president or chief financial officer, and (B) as soon as available, but in any
event not later than 60 days after the end of each of the first three quarterly periods of each
fiscal year of Seller, analogous unconsolidated unaudited statements for Seller, certified by an
Authorized Officer of Seller.



               (iii) Compliance Certificate. Together with the financial statements required
hereunder, a compliance certificate in substantially the form of Exhibit V signed by an Authorized
Officer of Performance Guarantor or Seller, as applicable, and dated the date of such annual
financial statement or such quarterly financial statement, as the case may be.



               (iv) Shareholders Statements and Reports. Promptly upon the furnishing thereof to the
shareholders of such Seller Party copies of all financial statements, reports and proxy statements
so furnished.



               (v) S.E.C. Filings. Within 60 days after the end of each of the first three (3)
fiscal quarters of Performance Guarantor, a narrative discussion and analysis of the financial
condition and results of operations of Performance Guarantor and its Subsidiaries for such fiscal
quarter and for the period from the beginning of the then current fiscal year to the end of such
fiscal quarter, as compared to the comparable periods of the previous year (or such other or
similar additional statement then required by the SEC for quarterly reports filed pursuant to the
Exchange Act); and within five days after the same are filed, copies of all financial statements
and reports that Performance Guarantor may make to, or file with, the SEC.



               (vi) Copies of Notices. Promptly upon its receipt of any notice, request for consent,
financial statements, certification, report or other communication under or in connection with any
Transaction Document from any Person other than one of the Agents or Purchasers, copies of the
same.



               (vii) Change in Credit and Collection Policy. At least thirty (30) days prior to the
effectiveness of any material change in or material amendment to the Credit and Collection Policy,
a copy of the Credit and Collection Policy then in effect and a notice (A) indicating such change
or amendment, and (B) if such proposed change or amendment would be reasonably likely to adversely
affect the collectibility of the Receivables or decrease the credit quality of any newly created
Receivables, requesting the Agents’ consent thereto.



               (viii) Other Information. Promptly, from time to time, such other information,
documents, records or reports relating to the Receivables or the condition or operations, financial
or otherwise, of such Seller Party as any Agent may from time to time



18









 




reasonably request in order to protect the interests of the Agents and the Purchasers under or
as contemplated by this Agreement.




          (b) Notices. Such Seller Party will notify the Agents in writing of any of the
following promptly upon learning of the occurrence thereof (or at such other specified time),
describing the same and, if applicable, the steps being taken with respect thereto:



               (i) Amortization Events or Potential Amortization Events. The occurrence of each
Amortization Event and each Potential Amortization Event, accompanied by a statement of an
Authorized Officer of such Seller Party.



               (ii) Judgment and Proceedings. (A) (1) The entry against the Performance Guarantor or
any of its Subsidiaries (other than Seller) of one or more judgments or decrees involving in the
aggregate for the Performance Guarantor and such Subsidiaries a liability (not paid or fully
covered by insurance as to which the relevant insurance company has acknowledged coverage) of
$75,000,000 or more, and (2) the institution of any litigation, arbitration proceeding or
governmental proceeding against the Performance Guarantor or any of its Subsidiaries (other than
Seller) which, if adversely determined, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect; and (B) the entry of any judgment or decree or the
institution of any litigation, arbitration proceeding or governmental proceeding against Seller.



               (iii) Material Adverse Effect. The occurrence of any event or condition that has had,
or could reasonably be expected to have, a Material Adverse Effect.



               (iv) Purchase Termination Date. The occurrence of the “Purchase Termination Date”
under and as defined in any Receivables Sale Agreement.



               (v) Defaults Under Other Agreements. The occurrence of a default or an event of
default under any other financing arrangement pursuant to which such Seller Party is a debtor or an
obligor.



               (vi) Downgrade of Tenneco Automotive. Any downgrade in the rating of any Indebtedness
of Tenneco Automotive by Standard & Poor’s Ratings Service, a division of the McGraw-Hill
Companies, or by Moody’s Investors Service, Inc., setting forth the Indebtedness affected and the
nature of such change.



               (vii) Appointment of Independent Director. The decision to appoint a new director of
the Seller as the “Independent Director” for purposes of this Agreement, such notice to be issued
not less than ten (10) days prior to the effective date of such appointment and to contain a
certification by an Authorized Officer of the Seller that the designated Person satisfies the
criteria set forth in the definition of “Independent Director” contained herein.



               (viii) Second Lien Receivables Purchase Agreement.



                    (A) The occurrence of each “Amortization Event” and each “Potential Amortization Event” under
(and as defined in) the Second Lien Receivables Purchase Agreement, accompanied by a statement of
an Authorized Officer of such Seller Party.



19









 





                    (B) Written notice of any assignment entered into by any “Purchaser” under (and as defined in)
the Second Lien Receivables Purchase Agreement consented to by the Seller, together with a copy of
the documentation evidencing such assignment.



                    (C) Written notice and a copy of any request to increase or reduce the “Purchase Limit” or any
“Commitment” under (and as defined in) the Second Lien Receivables Purchase Agreement, concurrently
with delivery of such request to the Second Lien Agent.



          (c) Compliance with Laws and Preservation of Corporate Existence. Such Seller Party
will comply in all respects with all applicable laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject, except where the failure to so comply
could not reasonably be expected to have a Material Adverse Effect. Such Seller Party will
preserve and maintain its corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation, and qualify and remain qualified in good standing as a foreign
corporation in each jurisdiction where its business is conducted.



          (d) Audits. Such Seller Party will furnish to the Agents from time to time such
information with respect to it and the Receivables as any Agent may reasonably request. Such
Seller Party will, from time to time during regular business hours as requested by the Agents,
acting together, upon reasonable notice and at the sole cost of such Seller Party, permit a single
firm acting for the Co-Agents and the Second Lien Agent: (i) to examine and make copies of and
abstracts from all Records in the possession or under the control of such Person relating to the
Receivables and the Related Security, including, without limitation, the related Contracts, and
(ii) to visit the offices and properties of such Person for the purpose of examining such materials
described in clause (i) above, and to discuss matters relating to such Person’s financial condition
or the Receivables and the Related Security or any Person’s performance under any of the
Transaction Documents or any Person’s performance under the Contracts and, in each case, with any
of the officers or employees of Seller or the Servicer having knowledge of such matters (the
procedures described in the foregoing clauses (i) and (ii) are referred to herein as an “Audit”);
provided, however, that Audits shall be limited to not more than two per calendar year in the
aggregate pursuant to this Agreement and the Second Lien Receivables Purchase Agreement,
collectively, so long as (i) no Amortization Event has occurred and is continuing and (ii) the
immediately preceding Audit was satisfactory to the Agents in all material respects.



          (e) Keeping and Marking of Records and Books.



               (i) The Servicer will maintain and implement administrative and operating procedures
(including, without limitation, an ability to recreate records evidencing Receivables in the event
of the destruction of the originals thereof), and keep and maintain all documents, books, records
and other information reasonably necessary or advisable for the collection of all Receivables
(including, without limitation, records adequate to permit the immediate identification of each new
Receivable and all Collections of and adjustments to each existing Receivable). The Servicer will
give the Agents notice of any material change in the administrative and operating procedures
referred to in the previous sentence.



20









 





               (ii) Such Seller Party will: (A) on or prior to the date hereof, mark its master data
processing records and other books and records relating to the Purchaser Interests with a legend,
acceptable to the Administrative Agent, describing the Purchaser Interests and (B) upon the request
of the Administrative Agent following the occurrence and during the continuance of any Amortization
Event: (x) mark each Contract constituting an instrument or chattel paper with a legend describing
the Purchaser Interests and (y) deliver to the Administrative Agent all Contracts (including,
without limitation, all multiple originals of any such Contract) relating to the Receivables.



          (f) Compliance with Contracts and Credit and Collection Policy. Such Seller Party
will timely and fully (i) perform and comply with all material provisions, covenants and other
promises required to be observed by it under the Contracts related to the Receivables, and
(ii) comply in all respects with the Credit and Collection Policy in regard to each Receivable and
the related Contract.



          (g) Performance and Enforcement of Receivables Sale Agreement. Seller will, and will
require the applicable Originator to, perform each of their respective obligations and undertakings
under and pursuant to the applicable Receivables Sale Agreement, will purchase Receivables
thereunder in strict compliance with the terms thereof and will vigorously enforce the rights and
remedies accorded to Seller under such Receivables Sale Agreement. Seller will take all actions to
perfect and enforce its rights and interests (and the rights and interests of the Agents and the
Purchasers as assignees of Seller) under the Receivables Sale Agreements as the Administrative
Agent may from time to time reasonably request, including, without limitation, making claims to
which it may be entitled under any indemnity, reimbursement or similar provision contained in the
Receivables Sale Agreements.



          (h) Ownership. Seller will, and will require the Originators to, take all necessary
action to (i) vest legal and equitable title to the Receivables, the Related Security and the
Collections purchased under the Receivables Sale Agreements irrevocably in Seller, free and clear
of any Adverse Claims other than Adverse Claims in favor of the Agents and the Purchasers and the
Second Lien Adverse Claims (including, without limitation, the filing of all financing statements
or other similar instruments or documents necessary under the UCC (or any comparable law) of all
appropriate jurisdictions to perfect Seller’s interest in such Receivables, Related Security and
Collections and such other action to perfect, protect or more fully evidence the interest of Seller
therein as any Agent may reasonably request), and (ii) establish and maintain, in favor of the
Administrative Agent, for the benefit of the Purchasers, a valid and perfected first priority
undivided percentage ownership interest (and/or a valid and perfected first priority security
interest) in all Receivables, Related Security and Collections to the full extent contemplated
herein, free and clear of any Adverse Claims other than the Second Lien Adverse Claims or Adverse
Claims in favor of the Administrative Agent for the benefit of the Purchasers (including, without
limitation, the filing of all financing statements or other similar instruments or documents
necessary under the UCC (or any comparable law) of all appropriate jurisdictions to perfect the
Administrative Agent’s (for the benefit of the Purchasers) interest in such Receivables, Related
Security and Collections and such other action to perfect, protect or more fully evidence the
interest of the Administrative Agent for the benefit of the Purchasers as the Administrative Agent
may reasonably request).



21









 





               (i) Purchasers’ Reliance. Seller acknowledges that the Purchasers are entering into
the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal
entity that is separate from each of the Tenneco Automotive Entities. Therefore, from and after
the date of execution and delivery of this Agreement, Seller shall take all reasonable steps,
including, without limitation, all steps that any Agent or Purchaser may from time to time
reasonably request, to maintain Seller’s identity as a separate legal entity and to make it
manifest to third parties that Seller is an entity with assets and liabilities distinct from those
of each of the Tenneco Automotive Entities and not just a division of any of the Tenneco Automotive
Entities. Without limiting the generality of the foregoing and in addition to the other covenants
set forth herein:



                    (A) Seller will at all times have a board of directors consisting of at least two members, at
least one member of which is an Independent Director, and shall compensate the Independent Director
from its own funds;



                    (B) Seller will maintain its own telephone number, stationery, and other business forms
separate from those of any other Person (including each Tenneco Automotive Entity) and will conduct
business in its own name except that, as a general matter, Obligors will not be informed in the
first instance that Tenneco Operating is acting on behalf of Seller as servicer;



                    (C) Seller will conduct its business at an office separate from the offices of the Originators
(which however, may be within the premises of and leased (at a fair market rent) from a Tenneco
Automotive Entity in which case such office will be clearly identified (by signage or otherwise));



                    (D) Seller will require that any consolidated financial statements of the Tenneco Automotive
Entities that include Seller will contain a footnote to the effect that the Originators have sold
the Receivable Assets to Seller, which is a separate legal entity and which has then entered into
this Agreement. Separate unaudited balance sheets and statements of income and cash flows (with no
footnote disclosures) will also be prepared for Seller. In addition to the aforementioned footnote
to any consolidated financial statement, Seller will take (or require the Originators to take)
certain actions to disclose publicly Seller’s separate existence and the transactions, including,
without limitation, through the filing of UCC financing statements. Seller will not conceal or
permit the Originators to conceal from any interested party any transfers contemplated by the
Transaction Documents, although Obligors will not be affirmatively informed in the first instance
of the transfer of their obligations;



                    (E) Seller will ensure that any allocations of direct, indirect or overhead expenses for items
shared between Seller and any Tenneco Automotive Entity that are not included as part of the
Servicing Fee will be made among such entities to the extent practical on the basis of actual use
or value of services rendered and otherwise on a basis reasonably related to actual use or the
value of services rendered;



                    (F) Except as provided in paragraph (E) above regarding the allocation of certain shared
overhead items, Seller will pay its own operating expenses and liabilities from its own funds;



22









 





                    (G) Seller will ensure that each of the Tenneco Automotive Entities, on the one hand, and
Seller, on the other hand, maintain its assets and liabilities in such a manner that it is not
costly or difficult to segregate, ascertain or otherwise identify Seller’s individual assets and
liabilities from those of the other or from those of any other person or entity. Except as set
forth below, Seller will maintain its own books of account and corporate records separate from the
Tenneco Automotive Entities. Seller will not commingle or pool its funds (or other assets) or
liabilities with those of any except as specifically provided in this Agreement with respect to the
temporary commingling of collections of the Receivable Assets and except with respect to Servicer’s
retention of Records pertaining to the Receivable Assets. Seller will not maintain joint bank
accounts or other depository accounts to which any Tenneco Automotive Entity (other than solely in
their capacity as Servicer or, as applicable, a permitted designee of Servicer) has independent
access;



                    (H) Seller will strictly observe, and will require each of the Tenneco Automotive Entities to
strictly observe, corporate formalities, including with respect to its dealings with each other,
and will do all things reasonably necessary to ensure that no transfer of assets between any
Originator, on the one hand, and Seller, on the other hand, is made without adherence to corporate
formalities;



                    (I) All distributions made by Seller to Tenneco Operating as its sole shareholder shall be
made in accordance with applicable law;



                    (J) Seller will not enter into any transaction with any of the Tenneco Automotive Entities,
even if permitted (although not expressly provided for in) the Transaction Documents, unless such
transaction is fair and equitable to Seller, on the one hand, and such Tenneco Automotive Entity on
the other hand, and is of the type of transaction that would be entered into by a prudent Person in
the position of Seller vis à vis such Tenneco Automotive Entity and that is on terms that are at
least favorable as may be obtained from a Person who is not Tenneco Automotive Entity;



                    (K) Seller will (1) comply in all material respects with its certificate of incorporation and
by-laws, (2) operate its business and activities such that: (A) it does not engage in any business
or activity of any kind, or enter into any transaction or indenture, mortgage, instrument,
agreement, contract, lease or other undertaking, other than the transactions authorized by this
Agreement and the Receivables Sale Agreement; and (B) it does not create, incur, guarantee, assume
or suffer to exist any indebtedness or other liabilities, whether direct or contingent, other than
(i) as a result of the endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business, (ii) the incurrence of obligations under this
Agreement, (iii) the incurrence of obligations, as expressly contemplated in the Receivables Sale
Agreement, to make payment to the related Originator thereunder for the purchase of Receivables
under the Receivables Sale Agreement, (iv) the incurrence of obligations under the Second Lien
Receivables Purchase Agreement in an aggregate principal amount not to exceed $40,000,000 at any
time outstanding, and (v) the incurrence of operating expenses in the ordinary course of business
of the type otherwise contemplated by this Agreement; and



23









 





                    (L) Seller will maintain its corporate charter in conformity with this Agreement, such that
(1) it does not amend, restate, supplement or otherwise modify its certificate or articles of
incorporation or by-laws in any respect that would impair its ability to comply with the terms or
provisions of any of the Transaction Documents, including, without limitation, Section
7.1(i) of this Agreement; and (2) for so long as this Agreement is in effect, its certificate
or articles of incorporation, (x) contains a definition of “Independent Director” identical to the
definition of such term contained herein, (y) provides for not less than ten (10) days’ prior
written notice to the secured creditors of the Seller (which notice requirement, for purposes of
all the Transaction Documents, shall be satisfied if such prior written notice is delivered to the
Agents) of the replacement or appointment of any director that is to serve or is then serving as an
Independent Director for purposes of this Agreement, which notice shall contain a certification by
an Authorized Officer of the Seller that the designated Person satisfies the criteria set forth in
the definition of “Independent Director” contained herein and (z) requires as a condition precedent
to giving effect to such replacement or appointment that the Seller shall have received written
acknowledgement from such creditors that in their reasonable judgment the designated Person
satisfies the criteria set forth in the definition of “Independent Director” contained herein
(which acknowledgement shall not be unreasonably withheld and shall be promptly provided after
receipt of notice by the Agents from the Seller and, for purposes of all the Transaction Documents,
shall be satisfied if such acknowledgement is received by the Seller from the Agents).



          (j) Collections. Such Seller Party will cause (1) all proceeds from all Lock-Boxes to
be directly deposited by a Collection Bank into a Collection Account and (2) each Lock-Box and
Collection Account to be subject at all times to a Collection Account Agreement that is in full
force and effect. In the event any payments relating to Receivables are remitted directly to
Seller or any Affiliate of Seller, Seller will remit (or will cause all such payments to be
remitted) directly to a Collection Bank and deposited into a Collection Account within two (2)
Business Days following receipt thereof, and, at all times prior to such remittance, Seller will
itself hold or, if applicable, will cause such payments to be held in trust for the exclusive
benefit of the Agents, the Purchasers, the Second Lien Agent and the “Purchasers” under (and as
defined in) the Second Lien Receivables Purchase Agreement. Seller will maintain exclusive
ownership, dominion and control (subject to the terms of this Agreement) of each Lock-Box and
Collection Account and shall not grant the right to take dominion and control of any Lock-Box or
Collection Account at a future time or upon the occurrence of a future event to any Person, except,
subject to the Intercreditor Agreement, the Second Lien Agent as contemplated by the Second Lien
Receivables Purchase Agreement or to the Administrative Agent as contemplated by this Agreement.



          (k) Taxes. Such Seller Party will file all tax returns and reports required by law to
be filed by it and will promptly pay all taxes and governmental charges at any time owing, except
any such taxes which are not yet delinquent or are being diligently contested in good faith by
appropriate proceedings and, in each case, for which adequate reserves in accordance with GAAP
shall have been set aside on its books. Seller will pay when due any taxes payable in connection
with the Receivables, exclusive of taxes on or measured by income or gross receipts of any Agent or
any Purchaser.



24









 





          (l) Payment to the Applicable Originator. With respect to any Receivable purchased by
Seller from an Originator, such sale shall be effected under, and in strict compliance with the
terms of, the applicable Receivables Sale Agreement, including, without limitation, the terms
relating to the amount and timing of payments to be made to such Originator in respect of the
purchase price for such Receivable.



     Section 7.2 Negative Covenants of the Seller Parties. Until the date on which the
Aggregate Unpaids have been indefeasibly paid in full and this Agreement terminates in accordance
with its terms, each Seller Party hereby covenants, as to itself, that:



          (a) Name Change, Offices and Records. Such Seller Party will not (i) change its name,
identity or corporate structure (within the meaning of Article 9 of any applicable enactment of the
UCC) or at any time while the location of its chief executive office is relevant to perfection of
any interest in the Receivables, relocate its chief executive office or (ii) change any office
where Records are kept, unless it shall have: (A) given the Administrative Agent at least
forty-five (45) days’ prior written notice thereof and (B) delivered to the Administrative Agent
all financing statements, instruments and other documents requested by the Administrative Agent in
connection with such change or relocation.



          (b) Change in Payment Instructions to Obligors. Except as may be required by the
Administrative Agent pursuant to Section 8.2(b), such Seller Party will not add or terminate any
bank as a Collection Bank, or make any change in the instructions to Obligors regarding payments to
be made to any Lock-Box or Collection Account, unless the Administrative Agent shall have received,
at least ten (10) days before the proposed effective date therefor, (i) written notice of such
addition, termination or change and (ii) with respect to the addition of a Collection Bank or a
Collection Account or Lock-Box, an executed Collection Account Agreement with respect to the new
Collection Account or Lock-Box; provided, however, that the Servicer may make changes in
instructions to Obligors regarding payments if such new instructions require such Obligor to make
payments to another existing Collection Account.



          (c) Modifications to Contracts and Credit and Collection Policy. Such Seller Party
will not, without the Required Agents’ consent, make any change to the Credit and Collection Policy
that could reasonably be expected to adversely affect the collectibility of the Receivables or
decrease the credit quality of any newly created Receivables. Except as provided in
Section 8.2(d), the Servicer will not extend, amend or otherwise modify the terms of any Receivable
or any Contract related thereto other than in accordance with the Credit and Collection Policy.



          (d) Sales, Liens. Seller will not sell, assign (by operation of law or otherwise) or
otherwise dispose of, or grant any option with respect to, or create or suffer to exist any Adverse
Claim upon (including, without limitation, the filing of any financing statement) or with respect
to, any Receivable, Related Security or Collections, or upon or with respect to any Contract under
which any Receivable arises, or any Lock-Box or Collection Account, or assign any right to receive
income with respect thereto (other than, in each case, the creation of the interests therein in
favor of the Agents and the Purchasers provided for herein and the Second Lien Adverse Claims), and
Seller will defend the right, title and interest of the Agents and the



25









 




Purchasers in, to and under any of the foregoing property, against all claims of third parties
claiming through or under Seller or any Originator. Seller will not create or suffer to exist any
mortgage, pledge, security interest, encumbrance, lien, charge or other similar arrangement on any
of its inventory.




          (e) Net Receivables Balance. At no time prior to the Amortization Date shall Seller
permit the Net Receivables Balance to be less than an amount equal to the sum of (i) the Aggregate
Capital plus (ii) the Aggregate Reserves.



          (f) Termination Date Determination. Seller will not designate the “Termination Date”
(as such term is defined in any Receivables Sale Agreement), or send any written notice to the
Originators in respect thereof, without the prior written consent of the Agents, except with
respect to the occurrence of such Termination Date arising pursuant to Section 5.1(d) of any
Receivables Sale Agreement.



          (g) Restricted Junior Payments. From and after the occurrence of any Amortization
Event, Seller will not make any Restricted Junior Payment if, after giving effect thereto, Seller
would fail to maintain the Required Capital Amount.



          (h) Amendments to Second Lien Transaction Documents. Seller will not amend, modify or
otherwise change (or permit the amendment, modification or other change in any manner of) any of
the provisions of the Second Lien Transaction Documents except for amendments, modifications and
other changes expressly permitted by the Intercreditor Agreement.



          (i) Changes in Commitments under Second Lien Receivables Purchase Agreement.
Notwithstanding anything in the Second Lien Transaction Documents to the contrary, the Seller will
not, without the prior written consent of the Required Agents, agree to any change, in whole or in
part, of the “SLOT Purchase Limit” or any “Commitment” under (and as defined in) the Second Lien
Receivables Purchase Agreement.



          (j) Payment of Second Lien Obligations. Notwithstanding anything in the Second Lien
Transaction Documents to the contrary, the Seller will not, without the prior written consent of
the Required Agents, (i) make any repayment of “SLOT Capital” in respect of the “SLOT Interests”
under (and as defined in) the Second Lien Receivables Purchase Agreement except as otherwise
permitted under the Intercreditor Agreement or (ii) from the Facility Termination Date until the
Discharge of First Lien Obligations, make, directly or indirectly, any payment in respect of the
“Second Lien Obligations” (as defined in the Intercreditor Agreement) except as otherwise permitted
under the Intercreditor Agreement.



ARTICLE VIII.




ADMINISTRATION AND COLLECTION




     Section 8.1 Designation of Servicer. The servicing, administration and collection of
the Receivables shall be conducted by such Person (the “Servicer”) so designated from time to time
in accordance with this Section 8.1. Tenneco Operating is hereby designated as, and hereby



26









 




agrees to perform the duties and obligations of, the Servicer pursuant to the terms of this
Agreement. The Required Agents, acting together, may at any time when an Amortization Event has
occurred and is continuing designate as Servicer any Person to succeed Tenneco Operating or any
successor Servicer.




     Section 8.2 Duties of Servicer.



          (a) The Servicer shall take or cause to be taken all such actions as may be necessary or
advisable to collect each Receivable from time to time, all in accordance with applicable laws,
rules and regulations, with reasonable care and diligence, and in accordance with the Credit and
Collection Policy.



          (b) The Servicer will instruct Seller or Obligors to pay all Collections directly to a
Lock-Box or Collection Account. The Servicer shall effect a Collection Account Agreement
substantially in the form of Exhibit VI with each bank party to a Collection Account at any time.
In the case of any remittances received in any Lock-Box or Collection Account that shall have been
identified, to the satisfaction of the Servicer, to not constitute Collections or other proceeds of
the Receivables or the Related Security, the Servicer shall promptly remit such items to the Person
identified to it as being the owner of such remittances.



          (c) The Servicer shall administer the Collections in accordance with the procedures described
herein and in Article II. The Servicer shall set aside and hold in trust for the account of Seller
and the Purchasers their respective shares of the Collections in accordance with Article II. The
Servicer shall, upon the request of the Administrative Agent (acting at the direction of at least
two (2) Co-Agents) after the occurrence and during the continuance of an Amortization Event,
segregate, in a manner acceptable to the Administrative Agent, all cash, checks and other
instruments received by it from time to time constituting Collections from the general funds of the
Servicer or Seller prior to the remittance thereof in accordance with Article II. If the Servicer
shall be required to segregate Collections pursuant to the preceding sentence, the Servicer shall
segregate and deposit with a bank designated by the Administrative Agent such allocable share of
Collections of Receivables set aside for the Purchasers as soon as possible, but no later than two
(2) Business Days following receipt by the Servicer of such Collections, duly endorsed or with duly
executed instruments of transfer.



          (d) The Servicer may, in accordance with the Credit and Collection Policy, extend the maturity
of any Receivable or adjust the Outstanding Balance of any Receivable as the Servicer determines to
be appropriate to maximize Collections thereof; provided, however, that such extension or
adjustment shall not alter the status of such Receivable as a Delinquent Receivable or Charged-Off
Receivable or limit the rights of the Agents or the Purchasers under this Agreement.
Notwithstanding anything to the contrary contained herein at any time that an Amortization Event
has occurred and is continuing, the Administrative Agent shall have the absolute and unlimited
right to direct the Servicer to commence or settle any legal action with respect to any Receivable
or to foreclose upon or repossess any Related Security.



          (e) The Servicer shall hold in trust for Seller and the Purchasers all Records that
(i) evidence or relate to the Receivables, the related Contracts and Related Security or (ii) are
otherwise necessary or desirable to collect the Receivables and shall, as soon as



27









 




practicable upon demand of the Administrative Agent, deliver or make available to the
Administrative Agent all such Records, at a place selected by the Administrative Agent. The
Servicer shall, as soon as practicable following receipt thereof turn over to Seller any cash
collections or other cash proceeds received with respect to Indebtedness not constituting
Receivables. The Servicer shall, from time to time at the request of any Purchaser, furnish to the
Purchasers (promptly after any such request) a calculation of the amounts set aside for the
Purchasers pursuant to Article II.




          (f) Any payment by an Obligor in respect of any indebtedness owed by it to any Originator or
Seller shall, except as otherwise specified by such Obligor or otherwise required by contract or
law and unless otherwise instructed by the Administrative Agent, be applied as a Collection of any
Receivable of such Obligor (starting with the oldest such Receivable) to the extent of any amounts
then due and payable thereunder before being applied to any other receivable or other obligation of
such Obligor.



     Section 8.3 Collection Notices. The Administrative Agent (acting at the direction of
at least two (2) Co-Agents) is authorized at any time to date and to deliver to the Collection
Banks the Collection Notices. Seller hereby transfers to the Administrative Agent for the benefit
of the Purchasers, effective when the Administrative Agent delivers such notice, the exclusive
ownership and control of each Lock-Box and the Collection Accounts. In case any authorized
signatory of Seller whose signature appears on a Collection Account Agreement shall cease to have
such authority before the delivery of such notice, such Collection Notice shall nevertheless be
valid as if such authority had remained in force. Seller hereby authorizes the Administrative
Agent, and agrees that the Administrative Agent (acting at the direction of at least two (2)
Co-Agents) shall be entitled after the occurrence and during the continuance of an Amortization
Event to (i) endorse Seller’s and the applicable Originator’s name on checks and other instruments
representing Collections, (ii) enforce the Receivables, the related Contracts and the Related
Security and (iii) take such action as shall be necessary or desirable to cause all cash, checks
and other instruments constituting Collections of Receivables to come into the possession of the
Administrative Agent rather than Seller. If an Originator identifies, to the satisfaction of the
Administrative Agent, any remittances received in any Lock-Box or Collection Account as not
constituting Collections or other proceeds of the Receivables and Related Security, the
Administrative Agent shall promptly remit (or instruct the applicable Collection Bank to remit)
such remittances to such Originator.



     Section 8.4 Responsibilities of Seller. Anything herein to the contrary
notwithstanding, the exercise by the Agents and the Purchasers of their rights hereunder shall not
release the Servicer, any Originator or Seller from any of their duties or obligations with respect
to any Receivables or under the related Contracts. The Purchasers shall have no obligation or
liability with respect to any Receivables or related Contracts, nor shall any of them be obligated
to perform the obligations of Seller.



     Section 8.5 Portfolio Reports. The Servicer shall prepare and forward to the Agents
(i) on or before each Monthly Reporting Date, a Monthly Report for the month then most recently
ended, (ii) during each (A) Level Two Ratings Period and (B) Level Three Ratings Period, unless at
any time during any such Level Three Ratings Period, any Agent shall have requested that Daily
Reports be delivered pursuant to the immediately succeeding clause (iii) of



28









 




this paragraph, on Monday of each week with respect to and as of the end of the immediately
preceding calendar week, a Weekly Report, (iii) during each Level Three Ratings Period with respect
to which any Agent shall have requested that Daily Reports be delivered pursuant to this clause
(iii) of this paragraph, on each Daily Reporting Date with respect to and as of the preceding
Business Day, a Daily Report and (iv) at such times as any Agent shall request, a listing by
Obligor of all Receivables together with an aging of such Receivables. For purposes of this Section
8.5, if at any time, Tenneco Automotive’s long-term senior unsecured debt ratings fall within
different categories and as a result thereof more than one Ratings Period then applies, the Ratings
Period corresponding to the lower long-term senior unsecured debt rating shall control.




     Section 8.6 Servicing Fees. In consideration of Tenneco Operating’s agreement to act
as Servicer hereunder, the Purchasers hereby agree that, so long as Tenneco Operating shall
continue to perform as Servicer hereunder, Seller shall pay over to Tenneco Operating a fee (the
“Servicing Fee”) on the first calendar day of each month, in arrears for the immediately preceding
month, equal to 1.00% per annum of the aggregate Outstanding Balance of the Receivables on the last
day of such preceding month as compensation for its servicing activities.



ARTICLE IX.




AMORTIZATION EVENTS




     Section 9.1 Amortization Events. The occurrence of any one or more of the following
events shall constitute an Amortization Event:



          (a) Any Seller Party shall fail (i) to make any payment or deposit required hereunder when
due, and, except in the case of a payment of Capital, such failure shall continue for five (5)
consecutive days after the date when due, or (ii) to perform or observe any term, covenant or
agreement hereunder (other than as referred to in clause (i) of this paragraph (a) and
paragraph 9.1(e)) and such failure shall continue for ten (10) consecutive Business Days after
notice from Buyer or any of its assigns.



          (b) Any representation, warranty, certification or statement made by any Seller Party in this
Agreement, any other Transaction Document or in any other document delivered pursuant hereto or
thereto shall prove to have been incorrect in any material respect when made or deemed made;
provided that the materiality threshold in the preceding clause shall not be applicable with
respect to any representation or warranty which itself contains a materiality threshold.



          (c) The Performance Guarantor, any Seller Party or any of their respective Subsidiaries shall
(i) default in making any payment of principal of any Indebtedness (including any Contingent
Obligation) on the scheduled or original due date with respect thereto; or (ii) default in making
any payment of any interest on any such Indebtedness beyond the period of grace, if any, provided
in the instrument or agreement under which such Indebtedness was created; or (iii) default in the
observance or performance of any other agreement or condition related to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which



29









 




default or other event or condition is to cause, or to permit the holder or beneficiary of
such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with
the giving of notice if required, such Indebtedness to become due prior to its stated maturity or
(in the case of any such Indebtedness constituting a Contingent Obligation) to become payable;
provided that a default, event or condition described in clause (i), (ii) or (iii) of this
paragraph (c) shall not at any time constitute an Amortization Event unless, at such time, one or
more defaults, events or conditions of the type described in clauses (i), (ii) or (iii) of this
paragraph (c) shall have occurred and be continuing with respect to Indebtedness the aggregate
outstanding principal amount of which exceeds in the aggregate $50,000,000 for the Performance
Guarantor and its Subsidiaries, taken as a whole.




          (d) (i) The Performance Guarantor, any Seller Party or any of their respective Subsidiaries
shall commence any case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a receiver, trustee or other similar
official for it or any substantial part of its assets, or the Performance Guarantor, any Seller
Party or any of their respective Subsidiaries shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the Performance Guarantor, any Seller Party
or any of their respective Subsidiaries any case, proceeding or other action of a nature referred
to in clause (i) above that (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60
days; or (iii) there shall be commenced against the Performance Guarantor, any Seller Party or any
of their respective Subsidiaries any case, proceeding or other action seeking issuance of a warrant
of attachment, execution, distraint or similar process against all or any substantial part of its
assets that results in the entry of an order for any such relief that shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the
Performance Guarantor, any Seller Party or any of their respective Subsidiaries shall take any
action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii) or (iii) above; or (v) the Performance Guarantor, any Seller
Party or any of their respective Subsidiaries shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they become due.



          (e) (x) Seller shall fail to comply with the terms of Section 2.6 hereof or (y) the aggregate
“SLOT Interests” under (and as defined in) the Second Lien Receivables Purchase Agreement shall
exceed 100% and such excess shall not have been eliminated as of the close of business on the
immediately succeeding Business Day.



          (f) As at the end of any month:



               (i) the average of the Delinquency Ratio for each of the three (3) months then most recently
ended shall exceed 3.00%,



               (ii) the average of the Loss-to-Liquidation Ratio for each of the three (3) months then most
recently ended shall exceed 2.00%, or



30









 





               (iii) the average of the Dilution Ratio for each of the three (3) months then most recently
ended shall exceed 4.00% for any three-month period.



          (g) A Change of Control shall occur.



          (h) (i) Seller or any Originator shall fail to observe any provision of such Originator’s
Receivables Sale Agreement, or (ii) Seller or any Originator shall give up its rights under such
Receivables Sale Agreement with regard to any failure of the type described in clause (i) hereof.



          (i) (x) The Consolidated Net Leverage Ratio (as defined in the Tenneco Credit Agreement) as at
the last day of any period of four consecutive fiscal quarters of Tenneco Automotive ending with
any fiscal quarter during any period set forth below shall exceed the ratio set forth below
opposite use period:



	 	 	 
	Period	 	Consolidated Net Leverage Ratio
	First Quarter 2010

	 	5.50 to 1.00
	Second Quarter 2010

	 	5.00 to 1.00
	Third Quarter 2010

	 	4.75 to 1.00
	Fourth Quarter 2010

	 	4.50 to 1.00
	First Quarter 2011

	 	4.00 to 1.00
	Second Quarter 2011

	 	3.75 to 1.00
	Third and Fourth Quarters 2011

	 	3.50 to 1.00
	Fiscal Year 2012 and thereafter

	 	3.50 to 1.00






          or



          (y) The Consolidated Interest Coverage Ratio (as defined in the Tenneco Credit Agreement) for
any period of four consecutive fiscal quarters of Tenneco Automotive ending with any fiscal quarter
during any period set forth below to be less than the ratio set forth below opposite such period:



	 	 	 
	Period	 	Consolidated Interest Coverage Ratio
	First Quarter 2010

	 	2.00 to 1.00
	Second Quarter 2010

	 	2.25 to 1.00
	Third Quarter 2010

	 	2.30 to 1.00
	Fourth Quarter 2010

	 	2.35 to 1.00
	First Quarter 2011

	 	2.55 to 1.00
	Second Quarter 2011

	 	2.55 to 1.00
	Third and Fourth Quarters 2011

	 	2.55 to 1.00
	Fiscal Year 2012 and thereafter

	 	2.75 to 1.00






          (j) [Reserved].



          (k) One or more judgments or decrees shall be entered against any Seller Party or any of its
Subsidiaries involving in the aggregate for the Seller Parties and their Subsidiaries a liability
(not paid or fully covered by insurance as to which the relevant insurance company has acknowledged
coverage) of $75,000,000 or more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 30 days from the entry thereof.



31









 





          (l) The “Purchase Termination Date” under and as defined in any Receivables Sale Agreement
shall occur or any Originator shall for any reason cease to transfer, or cease to have the legal
capacity to transfer, or otherwise be incapable of transferring Receivables to Seller under its
Receivables Sale Agreement.



          (m) An “Amortization Event” shall have occurred under (and as defined in) the Second Lien
Receivables Purchase Agreement.



          (n) This Agreement shall terminate in whole or in part (except in accordance with its terms),
or shall cease to be effective or to be the legally valid, binding and enforceable obligation of
Seller, or the Administrative Agent for the benefit of the Purchasers shall cease to have a valid
and perfected first priority security interest in the Receivables, the Related Security and the
Collections with respect thereto and the Collection Accounts.



          (o) Performance Guarantor shall fail to perform or observe any term, covenant or agreement
required to be performed by it under the Performance Undertaking, or the Performance Undertaking
shall cease to be effective or to be the legally valid, binding and enforceable obligation of
Performance Guarantor, or Performance Guarantor shall directly or indirectly contest in any manner
such effectiveness, validity, binding nature or enforceability.



          (p) Any Seller Party shall fail to perform or observe any term, covenant or agreement required
to be performed by it under the Intercreditor Agreement, or the Intercreditor Agreement shall cease
to be effective or to be the legally valid, binding and enforceable obligation of the parties
thereto, or the Seller shall directly or indirectly contest in any manner the effectiveness,
validity, binding nature or enforceability of the Intercreditor Agreement.



          (q) Any Person shall be appointed as an Independent Director of the Seller without prior
notice thereof having been given to the Agents in accordance with Section 7.1(b)(vii) of
this Agreement or without the written acknowledgement by the Agents that in their reasonable
judgment such Person satisfies the criteria set forth in the definition of “Independent Director”
contained herein.



     Section 9.2 Remedies. Upon the occurrence and during the continuation of an
Amortization Event, the Administrative Agent may, and upon the direction of at least two (2)
Co-Agents shall, take any of the following actions: (i) replace the Person then acting as Servicer,
(ii) declare the Amortization Date to have occurred, whereupon the Amortization Date shall
forthwith occur, without demand, protest or further notice of any kind, all of which are hereby
expressly waived by each Seller Party; provided, however, that upon the occurrence of an
Amortization Event described in Section 9.1(d)(ii), or of an actual or deemed entry of an order for
relief with respect to any Seller Party under the Federal Bankruptcy Code, the Amortization Date
shall automatically occur, without demand, protest or any notice of any kind, all of which are
hereby expressly waived by each Seller Party, (iii) to the fullest extent permitted by applicable
law, if requested by any Co-Agent, declare that the Default Fee shall accrue with respect to any of
the Aggregate Unpaids outstanding at such time that are owing to the Purchasers in such Co-Agent’s
Group in lieu of any CP Costs or Yield that would otherwise be accruing on such Aggregate Unpaids,
(iv) if it has not already done so, deliver the Collection Notices to the Collection Banks, and
(v) notify Obligors of the Purchasers’ interest in the



32









 




Receivables. The aforementioned rights and remedies shall be without limitation, and shall be
in addition to all other rights and remedies of the Administrative Agent, on behalf of the
Co-Agents and the Purchasers, otherwise available under any other provision of this Agreement, by
operation of law, at equity or otherwise, all of which are hereby expressly preserved, including,
without limitation, all rights and remedies provided under the UCC, all of which rights shall be
cumulative.




ARTICLE X.




INDEMNIFICATION




     Section 10.1 Indemnities by the Seller Parties. Without limiting any other rights
that any Agent or Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to
indemnify (and pay upon demand to) each of the Agents and Purchasers and their respective assigns,
officers, directors, agents and employees (each an “Indemnified Party”) from and against any and
all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable,
including reasonable attorneys’ fees (which attorneys may be employees of such Agent or such
Purchaser) and disbursements (all of the foregoing being collectively referred to as “Indemnified
Amounts”) awarded against or incurred by any of them arising out of or as a result of this
Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the
Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each
Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out of
the Servicer’s activities as Servicer hereunder, excluding, however, in all of the foregoing
instances under the preceding clauses (A) and (B):



          (a) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction
holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the
part of the Indemnified Party seeking indemnification;



          (b) Indemnified Amounts to the extent the same includes losses in respect of Receivables that
are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the
related Obligor; or



          (c) taxes imposed by the jurisdiction in which such Indemnified Party’s principal executive
office is located, on or measured by the overall net income of such Indemnified Party to the extent
that the computation of such taxes is consistent with the characterization for income tax purposes
of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to
Seller secured by the Receivables, the Related Security, the Collection Accounts and the
Collections;


provided, however, that nothing contained in this sentence shall limit the liability of any Seller
Party or limit the recourse of the Purchasers to any Seller Party for amounts otherwise
specifically provided to be paid by such Seller Party under the terms of this Agreement. Without
limiting the generality of the foregoing indemnification, Seller shall indemnify the Agents and the
Purchasers for Indemnified Amounts relating to or resulting from:






33









 








               (i) any representation or warranty made by any Seller Party, any Originator (or any officers
of any such Person) or the Performance Guarantor under or in connection with this Agreement, any
other Transaction Document or any other information or report delivered by any such Person pursuant
hereto or thereto, which shall have been false or incorrect in any respect when made or deemed
made;



               (ii) the failure by Seller, the Servicer, any Originator or the Performance Guarantor to
comply with any applicable law, rule or regulation with respect to any Receivable or Contract
related thereto, or the nonconformity of any Receivable or Contract included therein with any such
applicable law, rule or regulation or any failure of any Originator to keep or perform any of its
obligations, express or implied, with respect to any Contract;



               (iii) any failure of Seller, the Servicer, any Originator or the Performance Guarantor to
perform its duties, covenants or other obligations in accordance with the provisions of this
Agreement or any other Transaction Document;



               (iv) any products liability, personal injury or damage suit, or other similar claim arising
out of or in connection with merchandise, insurance or services that are the subject of any
Contract or any Receivable;



               (v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor)
of the Obligor to the payment of any Receivable (including, without limitation, a defense based on
such Receivable or the related Contract not being a legal, valid and binding obligation of such
Obligor enforceable against it in accordance with its terms), or any other claim resulting from the
sale of the merchandise or service related to such Receivable or the furnishing or failure to
furnish such merchandise or services;



               (vi) the commingling of Collections of Receivables at any time with other funds;



               (vii) the Transaction Documents, the transactions contemplated thereby, the use of the
proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or
any other investigation, litigation or proceeding relating to Seller, the Servicer or any
Originator in which any Indemnified Party becomes involved as a result of any of the transactions
contemplated hereby;



               (viii) any inability to litigate any claim against any Obligor in respect of any Receivable as
a result of such Obligor being immune from civil and commercial law and suit on the grounds of
sovereignty or otherwise from any legal action, suit or proceeding;



               (ix) any Amortization Event described in Section 9.1(d);



               (x) any failure of Seller to acquire and maintain legal and equitable title to, and ownership
of any Receivable and the Related Security and Collections with respect thereto from the applicable
Originator, free and clear of any Adverse Claim (other Adverse Claims created under the Transaction
Documents and the Second Lien Adverse Claims); or any failure of Seller to give reasonably
equivalent value to such Originator under the applicable Receivables Sale Agreement in
consideration of the transfer by such Originator of any



34









 




Receivable, or any attempt by any Person to void such transfer under statutory provisions or
common law or equitable action;




               (xi) any failure to vest and maintain vested in the Administrative Agent for the benefit of
the Purchasers, or to transfer to the Administrative Agent for the benefit of the Purchasers, legal
and equitable title to, and ownership of, a first priority perfected undivided percentage ownership
interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in
the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim
(except for Adverse Claims created by the Transaction Documents and Second Lien Adverse Claims);



               (xii) the failure to have filed, or any delay in filing, financing statements or other similar
instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with
respect to any Receivable, the Related Security and Collections with respect thereto, and the
proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any
subsequent time;



               (xiii) any action or omission by any Seller Party which reduces or impairs the rights of the
Agents or the Purchasers with respect to any Receivable or the value of any such Receivable;



               (xiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder
under statutory provisions or common law or equitable action; and



               (xv) the failure of any Receivable included in the calculation of the Net Receivables Balance
as an Eligible Receivable to be an Eligible Receivable at the time so included.



     Section 10.2 Increased Cost and Reduced Return(a) . (a) If any Regulatory Change,
except for changes in the rate of tax on the overall net income of a Purchaser or Affected Entity
or taxes excluded by Section 10.1, (i) subjects any Purchaser or any Affected Entity to any charge
or withholding on or with respect to this Agreement or any other Funding Agreement or a Purchaser’s
or Affected Entity’s obligations under this Agreement or any other Funding Agreement, or on or with
respect to the Receivables, or changes the basis of taxation of payments to any Purchaser or any
Affected Entity of any amounts payable under this Agreement or any other Funding Agreement or (ii)
imposes, modifies or deems applicable any reserve, assessment, fee, tax, insurance charge, special
deposit or similar requirement against assets of, deposits with or for the account of, or
liabilities of an Affected Entity or a Purchaser, or credit extended by an Affected Entity or a
Purchaser pursuant to this Agreement or any other Funding Agreement (except the reserve requirement
reflected in the LIBO Rate) or (iii) imposes any other condition affecting this Agreement or any
Funding Agreement and the result of any of the foregoing is to increase the cost to an Affected
Entity or a Purchaser of performing its obligations under this Agreement or any other Funding
Agreement, or to reduce the rate of return on an Affected Entity’s or Purchaser’s capital as a
consequence of its obligations under this Agreement or any other Funding Agreement, or to reduce
the amount of any sum received or receivable by an Affected
Entity or a Purchaser under this Agreement or any other Funding Agreement, or to require any
payment calculated by reference to the amount of interests or loans



35









 




held or interest received by it
then, on the forty-fifth (45th) day after demand by the related Co-Agent, Seller shall
pay (without duplication of any amounts payable as described in Section 10.4 below) to such
Co-Agent, for the benefit of the relevant Affected Entity or Purchaser, such amounts charged to
such Affected Entity or Purchaser or such amounts to otherwise compensate such Affected Entity or
such Purchaser for such increased cost or such reduction; provided, that solely in the case of a
Regulatory Change of the type described in clause (iii) of the definition thereof, Seller shall
only be liable for amounts in respect of increased costs or reduced returns for the period of up to
ninety (90) days prior to the date on which such demand was made. To the extent that any Funding
Agreement described in this Section covers facilities in addition to the facility evidenced by this
Agreement, each Conduit shall allocate the liability for any applicable increased costs or
reductions among Seller and other Persons with whom such Conduit has entered into agreements to
purchase interests in or finance receivables and other financial assets (“Other Customers”). If any
increased costs or reductions payable pursuant to this paragraph (a) are attributable to Seller and
not attributable to any Other Customer, Seller shall be solely liable for such increased costs or
reductions. However, if any such increased costs or reductions are attributable to Other Customers
and not attributable to Seller, such Other Customer shall be solely liable for such increased costs
or reductions. All allocations to be made pursuant to the foregoing provisions of this Section
shall be made by such Conduit in its sole discretion and shall be binding on Seller and the
Servicer. The term “Regulatory Change” shall mean (i) the adoption after the date hereof of any
applicable law, rule or regulation (including any applicable law, rule or regulation regarding
capital adequacy) or any change therein after the date hereof, (ii) any change after the date
hereof in the interpretation or administration thereof by any governmental authority, central bank
or comparable agency charged with the interpretation or administration thereof, or compliance with
any request or directive (whether or not having the force of law) of any such authority, central
bank or comparable agency, or (iii) the compliance, whether commenced prior to or after the date
hereof, by any Affected Entity or Purchaser with the final rule titled Risk-Based Capital
Guidelines; Capital Adequacy Guidelines; Capital Maintenance: Regulatory Capital; Impact of
Modifications to Generally Accepted Accounting Principles; Consolidation of Asset-Backed Commercial
Paper Programs; and Other Related Issues, adopted by the United States bank regulatory agencies on
December 15, 2009, or any rules or regulations promulgated in connection therewith by any such
agency.




          (b) A certificate of the applicable Purchaser or Affected Entity setting forth in reasonable
detail the amount or amounts payable to such Purchaser or Affected Entity pursuant to paragraph (a)
of this Section 10.2 and explaining the manner in which such amount was determined shall be
delivered to the Seller and shall be conclusive absent manifest error. The Seller shall pay such
Purchaser or Affected Entity the amount as due on any such certificate on the next Settlement Date
following receipt of such notice.



          (c) If any Purchaser or any Affected Entity (A) has or anticipates having any claim for
compensation from the Seller pursuant to clause (iii) of the definition of Regulatory Change
appearing in paragraph (a) of this Section 10.2, and (B) such Purchaser or Affected Entity
believes that having the facility evidenced by this Agreement publicly rated by two credit rating
agencies (or, if the applicable Purchaser or Affected Entity determines that the rating of a single
credit rating agency is sufficient to achieve the same effect, by one credit rating agency)
would reduce the amount of such compensation by an amount deemed by such Purchaser or Affected
Entity to be material, then such Purchaser or Affected Entity shall provide written



36









 




notice to the
Seller and the Servicer that such Purchaser or Affected Entity intends to request such public
rating(s) of this facility from two credit rating agencies (or one credit rating agency, as
applicable) selected by such Purchaser or Affected Entity and reasonably acceptable to the Seller,
which rating(s) shall be at least “A” from S&P and “A2” from Moody’s, or the equivalent thereof
from any other such credit rating agency (the “Required Rating(s)”). The Seller and the Servicer
agree that they shall cooperate with such Purchaser’s or Affected Entity’s efforts to obtain the
Required Rating(s), and shall use commercially reasonable efforts to provide the applicable credit
rating agencies (or credit rating agency, as applicable), either directly or through distribution
to the Administrative Agent, Purchaser or Affected Entity, any information (subject to the
agreement of each applicable credit rating agency to maintain the confidentiality of any
information so provided which relates to any Obligor) requested by such credit rating agencies (or
credit rating agency, as applicable) for purposes of providing and monitoring the Required
Rating(s). The Seller shall pay the initial fees payable to the credit rating agencies (or credit
rating agency, as applicable) for providing the rating(s) and all ongoing fees payable to the
credit rating agencies (or credit rating agency, as applicable) for their continued monitoring of
the rating(s). Nothing in this Section 10.2(c) shall preclude any Purchaser or Affected
Entity from demanding compensation from the Seller pursuant to Section 10.2(a) hereof at
any time and without regard to whether the Required Rating(s) shall have been obtained, or shall
require any Purchaser or Affected Entity to obtain any ratings on the facility evidenced by this
Agreement prior to demanding any such compensation from the Seller; provided,
however, in demanding such compensation the applicable Purchaser or Affected Entity shall
take into account and give effect to any reduction in amounts payable under Section 10.2(a)
due to the Required Rating(s) having been obtained.




     Section 10.3 Other Costs and Expenses. Subject to any limitation on the Liberty
Street Group’s reimburseable costs separately agreed to by the Liberty Street Agent and the Seller
Parties, Seller shall pay to each of the Agents on demand all reasonable costs and out-of-pocket
expenses in connection with the preparation, execution, amendment, delivery and administration of
this Agreement, the transactions contemplated hereby and the other documents to be delivered
hereunder, including without limitation, the cost of the applicable Conduit’s auditors auditing the
books, records and procedures of Seller, reasonable fees and out-of-pocket expenses of a legal
counsel for the Agents (which such counsel may be employees of a Purchaser or an Agent) with
respect thereto and with respect to advising such Agent as to its Group’s respective rights and
remedies under this Agreement. Seller shall pay to the Administrative Agent on demand any and all
reasonable costs and expenses of the Administrative Agent and the Purchasers, if any, including
reasonable counsel fees and expenses of a common legal counsel, or if such common legal counsel
determines that it cannot continue representation due to a business or ethical conflict, separate
legal counsel for the Agents, in connection with the enforcement of this Agreement and the other
documents delivered hereunder and in connection with any restructuring or workout of this Agreement
or such documents, or the administration of this Agreement following an Amortization Event.



     Section 10.4 Accounting Based Consolidation Event. Upon demand by the related Conduit
Agent, Seller shall pay to such Conduit Agent, for the benefit of the relevant Affected Entity,
such amounts (without duplication of any amounts payable as described in Section 10.2
above) as such Affected Entity reasonably determines will compensate or reimburse such Affected
Entity for any (i) fee, expense or increased cost charged to, incurred or otherwise



37









 




suffered by
such Affected Entity, (ii) reduction in the rate of return on such Affected Entity’s capital or
reduction in the amount of any sum received or receivable by such Affected Entity or (iii) internal
capital charge or other imputed cost, in each case, as determined by such Affected Entity to be
allocable to Seller or the transactions contemplated in this Agreement, in each case resulting from
or in connection with the consolidation, for financial and/or regulatory accounting purposes, of
all or any portion of the assets and liabilities of any Conduit that are subject to this Agreement
or any other Transaction Document with all or any portion of the assets and liabilities of an
Affected Entity; provided, however, that in no event may any Affected Entity (or the applicable
Conduit Agent on its behalf) with respect to any Conduit claim or receive reimbursement or
compensation for amounts under this Section 10.4 (x) that would result in the total
compensation payable to it and all other Affected Entities with respect to such Conduit (inclusive
of Yield and fees) exceeding the total compensation that would have been payable to all such
Affected Entities immediately prior to such consolidation if purchases of Purchaser Interests had
been made by the related Committed Purchaser pursuant to Article IV of this Agreement or
(y) which were charged to, incurred or otherwise suffered by such Affected Entity on or before
February 19, 2010. Amounts under this Section 10.4 may be demanded at any time without
regard to the timing of issuance of any financial statement by the Conduit or by any Affected
Entity. A certificate of the Affected Entity setting forth in reasonable detail the amount or
amounts payable to such Affected Entity pursuant to this Section 10.4 and explaining the
manner in which such amount was determined shall be delivered to the Seller and shall be conclusive
absent manifest error. The Seller shall pay such Affected Entity the amount as due on any such
certificate on the next Settlement Date following receipt of such notice.




ARTICLE XI.




THE AGENTS




     Section 11.1 Appointment.



          (a) Each member of the Liberty Street Group hereby irrevocably designates and appoints
Scotiabank as Liberty Street Agent hereunder and under the other Transaction Documents to which the
Liberty Agent is a party, and authorizes the Liberty Street Agent to take such action on its behalf
under the provisions of the Transaction Documents and to exercise such powers and perform such
duties as are expressly delegated to the Liberty Street Agent by the terms of the Transaction
Documents, together with such other powers as are reasonably incidental thereto. Each member of the
Falcon Group hereby irrevocably designates and appoints JPMorgan Chase as Falcon Agent hereunder
and under the other Transaction Documents to which the Falcon Agent is a party , and authorizes the
Falcon Agent to take such action on its behalf under the provisions of the Transaction Documents
and to exercise such powers and perform such duties as are expressly delegated to the Falcon Agent
by the terms of the Transaction Documents, together with such other powers as are reasonably
incidental thereto. Each member of the Wells Fargo Group hereby irrevocably designates and
appoints Wells Fargo as Wells Fargo Agent hereunder and under the other Transaction Documents to
which the Wells Fargo Agent is a party, and authorizes the Wells Fargo Agent to take such action on
its behalf under the provisions of the Transaction Documents and to exercise such powers and
perform
such duties as are expressly delegated to the Wells Fargo Agent by the terms of the
Transaction Documents, together with such other powers as are reasonably incidental thereto. Each
of the



38









 




Purchasers and the Co-Agents hereby irrevocably designates and appoints JPMorgan Chase as
Administrative Agent hereunder and under the Transaction Documents to which the Administrative
Agent is a party, and authorizes the Administrative Agent to take such action on its behalf under
the provisions of the Transaction Documents and to exercise such powers and perform such duties as
are expressly delegated to the Administrative Agent by the terms of the Transaction Documents,
together with such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, none of the Agents shall have any duties or
responsibilities, except those expressly set forth in the Transaction Documents to which it is a
party, or any fiduciary relationship with any Purchaser, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities on the part of such Agent shall be read into
any Transaction Document or otherwise exist against such Agent.




          (b) The provisions of this Article XI are solely for the benefit of the Agents and the
Purchasers, and neither the Seller nor the Servicer shall have any rights as a third-party
beneficiary or otherwise under any of the provisions of this Article XI, except that this
Article XI shall not affect any obligations which any of the Agents or Purchasers may have to
either the Seller or the Servicer under the other provisions of this Agreement. This Article XI is
intended solely to govern the relationship between the Agents, on the one hand, and the Purchasers,
on the other



          (c) In performing its functions and duties hereunder, (i) the Liberty Street Agent shall act
solely as the agent of the members of the Liberty Street Group and does not assume and shall not be
deemed to have assumed any obligation or relationship of trust or agency with or for the Seller or
the Servicer or any of their respective successors and assigns, (ii) the Falcon Agent shall act
solely as the agent of the members of the Falcon Group and does not assume and shall not be deemed
to have assumed any obligation or relationship of trust or agency with or for either the Seller or
the Servicer or any of their respective successors and assigns, (iii) the Wells Fargo Agent shall
act solely as the agent of the members of the Wells Fargo Group and does not assume and shall not
be deemed to have assumed any obligation or relationship of trust or agency with or for either the
Seller or the Servicer or any of their respective successors and assigns, and (iv) the
Administrative Agent shall act solely as the agent of the Co-Agents and the Purchasers and does not
assume and shall not be deemed to have assumed any obligation or relationship of trust or agency
with or for the Seller or the Servicer or any of their respective successors and assigns.



     Section 11.2 Delegation of Duties. Each Agent may execute any of its duties under the
applicable Transaction Documents by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. No Agent shall be responsible
for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.



     Section 11.3 Exculpatory Provisions. None of the Agents nor any of its directors,
officers, agents or employees shall be (i) liable for any action lawfully taken or omitted to be
taken by it or them or any Person described in Section 11.2 under or in connection with this
Agreement (except for its, their or such Person’s own bad faith, gross negligence or willful
misconduct), or (ii) responsible in any manner to any of the Purchasers or other Agents for
any recitals, statements, representations or warranties made by the Seller contained in this
Agreement



39









 




or in any certificate, report, statement or other document referred to or provided for
in, or received under or in connection with, this Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other document
furnished in connection herewith, or for any failure of either the Seller or the Servicer to
perform its respective obligations hereunder, or for the satisfaction of any condition specified in
Article VI, except receipt of items required to be delivered to such Agent. None of the Agents
shall be under any obligation to any other Agent or any Purchaser to ascertain or to inquire as to
the observance or performance of any of the agreements or covenants contained in, or conditions of,
this Agreement, or to inspect the properties, books or records of the Seller or the Servicer.




     Section 11.4 Reliance by Agents. As between the Agents and the Purchasers:



          (a) Each of the Agents shall in all cases be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter,
telegram, telecopy or telex message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including, without limitation, counsel to the
Seller or the Servicer), independent accountants and other experts selected by such Agent. Each of
the Agents shall in all cases be fully justified in failing or refusing to take any action under
this Agreement or any other document furnished in connection herewith unless it shall first receive
such advice or concurrence of such of the members of its Group, as it shall determine to be
appropriate under the relevant circumstances, or it shall first be indemnified to its satisfaction
by the Committed Purchasers in its Group against any and all liability, cost and expense which may
be incurred by it by reason of taking or continuing to take any such action.



          (b) Any action taken by any of the Agents in accordance with Section 11.4(a) shall be binding
upon all of the Agents and the Purchasers.



     Section 11.5 Notice of Seller Defaults. None of the Agents shall be deemed to have
knowledge or notice of the occurrence of any Amortization Event or Potential Amortization Event
unless such Agent has received notice from another Agent, a Purchaser, the Seller or the Servicer
referring to this Agreement, stating that a Amortization Event or Potential Amortization Event has
occurred hereunder and describing such Amortization Event or Potential Amortization Event. In the
event that any of the Agents receives such a notice, it shall promptly give notice thereof to the
Purchasers and the other Agents. The Administrative Agent may exercise any rights and remedies
provided to the Administrative Agent under the Transaction Documents or at law or equity (and at
the written request of the Co-Agents acting together, shall exercise any such rights and remedies
and take such action as the Co-Agents shall direct) with respect to such Amortization Event or
Potential Amortization Event, provided that the Administrative Agent is indemnified to its
satisfaction by the Co-Agents and the Committed Purchasers against any and all liability, cost and
expense which may be incurred by it by reason of such exercise of rights and remedies and/or taking
any such action.



     Section 11.6 Non-Reliance on Other Agents and Purchasers. Each of the Purchasers
expressly acknowledges that none of the Agents, nor any of the Agents’ respective officers,
directors, employees, agents, attorneys-in-fact or affiliates has made any representations or



40









 




warranties to it and that no act by any of the Agents hereafter taken, including, without
limitation, any review of the affairs of the Seller, the Servicer or the Originators, shall be
deemed to constitute any representation or warranty by such Agent. Each of the Purchasers also
represents and warrants to the Agents and the other Purchasers that it has, independently and
without reliance upon any such Person (or any of their Affiliates) and based on such documents and
information as it has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, prospects, financial and other conditions and creditworthiness of
the Seller, the Servicer and the Originators and made its own decision to enter into this
Agreement. Each of the Purchasers also represents that it will, independently and without reliance
upon the Agents or any other Purchaser, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, prospects, financial and other
condition and creditworthiness of the Seller, the Servicer and the Originators. The Agents, the
Purchasers and their respective Affiliates, shall have no duty or responsibility to provide any
party to this Agreement with any credit or other information concerning the business, operations,
property, prospects, financial and other condition or creditworthiness of the Seller, the Servicer
and the Originators which may come into the possession of such Person or any of its respective
officers, directors, employees, agents, attorneys-in-fact or affiliates, except that each of the
Agents shall promptly distribute to the other Agents and the Purchasers, copies of financial and
other information expressly provided to it by either of the Seller or the Servicer pursuant to this
Agreement.




     Section 11.7 Indemnification of Agents. Each of the Committed Purchasers hereby
agrees to indemnify (a) its applicable Co-Agent, (b) the Administrative Agent, and (c) the
officers, directors, employees, representatives and agents of each of the foregoing (to the extent
not reimbursed by the Seller or the Servicer and without limiting the obligation of the Seller or
the Servicer to do so), ratably in accordance with their respective Commitments, from and against
any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever (including, without limitation, the
reasonable fees and disbursements of counsel for such Co-Agent, the Administrative Agent or such
Person in connection with any investigative, administrative or judicial proceeding commenced or
threatened, whether or not such Co-Agent or the Administrative Agent or such Person shall be
designated a party thereto) that may at any time be imposed on, incurred by or asserted against
such Co-Agent, the Administrative Agent or such Person as a result of, or arising out of, or in any
way related to or by reason of, any of the transactions contemplated hereunder or the execution,
delivery or performance of this Agreement or any other document furnished in connection herewith
(but excluding any such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from the bad faith, gross negligence or
willful misconduct of such Co-Agent, the Administrative Agent or such Person as finally determined
by a court of competent jurisdiction).



     Section 11.8 Agents in their Individual Capacities. Each of the Agents in its
individual capacity and its Affiliates may make loans to, accept deposits from and generally engage
in any
kind of business with the Seller, the Servicer, the Originators and their Affiliates as though
such Agent were not an Agent hereunder. With respect to its Purchaser Interests, if any, pursuant
to this Agreement, each of the Agents shall have the same rights and powers under this Agreement



41









 




as
any Purchaser and may exercise the same as though it were not an Agent, and the terms “Committed
Purchaser,” “Committed Purchasers,” “Purchaser” and “Purchasers” shall include each of the Agents
in their individual capacities.




     Section 11.9 UCC Filings. Each of the Co-Agents and the Purchasers hereby expressly
recognizes and agrees that the Administrative Agent may be listed as the assignee or secured party
of record on the various UCC filings required to be made under the Transaction Documents in order
to perfect their respective interests in the Receivables, the Collections, each Collection Account
and all Related Security, that such listing shall be for administrative convenience only in
creating a record or nominee holder to take certain actions hereunder on behalf of the Groups and
that such listing will not affect in any way the status of the Purchasers as the true parties in
interest with respect to the collateral covered thereby. In addition, such listing shall impose no
duties on the Administrative Agent other than those expressly and specifically undertaken in
accordance with this Article XI.



     Section 11.10 Successor Agents. If any Agent or its holding company is merged with or
into any other Person, such Agent may, upon five days’ notice to the Seller and the other Agents,
assign its rights and obligations hereunder to the survivor of such merger or any of its bank
Affiliates, in each case, provided that both Standard & Poor’s and Moody’s Investors Service, Inc.
have approved the proposed assignee as the successor administrator of such Agent’s Conduit. After
the effectiveness of any assigning Agent’s assignment hereunder, the assigning Agent shall be
discharged from its duties and obligations hereunder and under the other Transaction Documents and
the provisions of this Article XI and Article X shall continue in effect for its benefit with
respect to any actions taken or omitted to be taken by it while it was an Agent under this
Agreement and under the other Transaction Documents.



     Section 11.11 Intercreditor Agreement. The Purchasers and the Co-Agents hereby acknowledge
and consent to the terms and conditions set forth in the Intercreditor Agreement and instruct and
direct the Administrative Agent to execute the Intercreditor Agreement.



ARTICLE XII.




ASSIGNMENTS; PARTICIPATIONS




     Section 12.1 Assignments.



          (a) Each of the parties hereby agrees and consents to the complete or partial assignment by
each Conduit of all or any portion of its rights under, interest in, title to and obligations under
this Agreement to (i) its Committed Purchasers pursuant to its Liquidity Agreement, and
(ii) another special purpose asset-backed commercial paper issuer administered by a Co-Agent or one
of its Affiliates having a short-term debt rating of A-1 or better by Standard & Poor’s and P-1 by
Moody’s Investors Service, Inc. Upon each such assignment pursuant to this
Section 12.1(a), such Conduit shall be released from its obligations so assigned. Further,
each of the other parties hereby agrees that any assignee of a Conduit of this Agreement
or all or any of its Purchaser Interests shall have all of the rights and benefits under this
Agreement as if references to such Conduit or to a “Purchaser” explicitly referred to such
assignee, and no such assignment shall in any way impair the rights and benefits of such Conduit
hereunder. Neither of the Seller Parties nor (except as set forth in Section 11.10) any
Agent shall have the right to assign its rights or obligations under this Agreement.



42









 





          (b) Any Committed Purchaser may at any time and from time to time assign to one or more
Persons (“Purchasing Committed Purchasers”) all or any part of its rights and obligations under
this Agreement pursuant to an assignment agreement, in a form and substance satisfactory to the
applicable Co-Agent (the “Assignment Agreement”), executed by such Purchasing Committed Purchaser
and such selling Committed Purchaser. The consent of (i) the applicable Conduit, if any, and
(ii) provided no Amortization Event or Potential Amortization Event exists and is continuing, the
Seller (which consent of the Seller shall not be unreasonably withheld or delayed but may be
conditioned upon a change in the voting rights of the Co-Agents under this Agreement), shall be
required prior to the effectiveness of any such assignment. Each assignee of a Committed Purchaser
must have a short-term debt rating of A-1 or better by Standard & Poor’s and P-1 by Moody’s
Investors Service, Inc. and must agree to deliver to the applicable Co-Agent, promptly following
any request therefor by such Co-Agent or its Conduit, if any, an enforceability opinion in form and
substance satisfactory to such Co-Agent and such Conduit. Upon delivery of the executed Assignment
Agreement to the applicable Co-Agent, such selling Committed Purchaser shall be released from its
obligations hereunder to the extent of such assignment. Thereafter the Purchasing Committed
Purchaser shall for all purposes be a Committed Purchaser party to this Agreement and shall have
all the rights and obligations of a Committed Purchaser under this Agreement to the same extent as
if it were an original party hereto and no further consent or action by the Seller, the Purchasers
or the Agents shall be required.



          (c) Each of the Committed Purchasers agrees that in the event that it shall cease to have a
short-term debt rating of A-1 or better by Standard & Poor’s and P-1 by Moody’s Investors Service,
Inc. (an “Affected Committed Purchaser”), such Affected Committed Purchaser shall be obliged, at
the request of the applicable Conduit, if any, or its Co-Agent, to assign all of its rights and
obligations hereunder to (x) another Committed Purchaser or (y) another funding entity nominated by
the Agent and acceptable to Seller (which approval shall not be unreasonably withheld or delayed)
and to Conduit, if any, and willing to participate in this Agreement through the Liquidity
Termination Date in the place of such Affected Committed Purchaser; provided that the Affected
Committed Purchaser receives payment in full, pursuant to an Assignment Agreement, of an amount
equal to such Committed Purchaser’s Pro Rata Share of its Group’s Percentage of the Aggregate
Capital and Yield owing to the Committed Purchasers and all accrued but unpaid fees and other costs
and expenses payable in respect of such Pro Rata Share.



     Section 12.2 Participations. Any Committed Purchaser may, in the ordinary course of
its business at any time sell to one or more Persons (each a “Participant”) participating interests
in its Pro Rata Share of the Purchaser Interests of the Committed Purchasers in its Group or any
other interest of such Committed Purchaser hereunder. Notwithstanding any such sale by a Committed
Purchaser of a participating interest to a Participant, such Committed Purchaser’s rights and
obligations under this Agreement shall remain unchanged, such Committed Purchaser
shall remain solely responsible for the performance of its obligations hereunder, and Seller,
the Purchasers and the Agents shall continue to deal solely and directly with such Committed
Purchaser in connection with such Committed Purchaser’s rights and obligations under this
Agreement. Each Committed Purchaser agrees that any agreement between such Committed Purchaser and
any such Participant in respect of such participating interest shall not restrict such Committed
Purchaser’s right to agree to any amendment, supplement, waiver or modification to



43









 




this Agreement,
except for any amendment, supplement, waiver or modification described in Section 14.1(b)(i).




ARTICLE XIII.




TERMINATING COMMITTED PURCHASERS




     Section 13.1 Terminating Committed Purchasers.



          (a) a. Each Committed Purchaser hereby agrees to deliver written notice to the applicable
Co-Agent and the Administrative Agent not more than thirty (30) Business Days and not less than
five (5) Business Days prior to the Liquidity Termination Date indicating whether such Committed
Purchaser intends to renew its Commitment hereunder. If any Committed Purchaser fails to deliver
such notice on or prior to the date that is five (5) Business Days prior to the Liquidity
Termination Date, such Committed Purchaser will be deemed to have declined to renew its Commitment
(each Committed Purchaser which has declined or has been deemed to have declined to renew its
Commitment hereunder, a “Non-Renewing Committed Purchaser”). The applicable Co-Agent shall
promptly notify its Conduit, if any, of each Non-Renewing Committed Purchaser and such Conduit, in
its sole discretion, may upon one (1) Business Day’s notice to such Non-Renewing Committed
Purchaser assign to such Non-Renewing Committed Purchaser on a date specified by such Conduit its
Pro Rata Share of the aggregate Purchaser Interests then held by such Conduit, subject to, and in
accordance with, the applicable Liquidity Agreement.



               (i) In addition, unless an acceptable assignee can be found in accordance with
Section 12.1(c), each Conduit may, in its sole discretion, at any time (x) to the extent of
Commitment Availability, declare that any Affected Committed Purchaser’s Commitment shall
automatically terminate on a date specified by such Conduit or (y) assign to any Affected Committed
Purchaser on a date specified by such Conduit its Pro Rata Share of the aggregate Purchaser
Interests then held by such Conduit, subject to, and in accordance with, the applicable Liquidity
Agreement (each Affected Committed Purchaser or each Non-Renewing Committed Purchaser is
hereinafter referred to as a “Terminating Committed Purchaser”). The parties hereto expressly
acknowledge that any declaration of the termination of any Commitment, any assignment pursuant to
this Section 13.1 and the order of priority of any such termination or assignment among Terminating
Committed Purchasers shall be made by the applicable Conduit in its sole and absolute discretion.



          (b) Upon any assignment to a Terminating Committed Purchaser as provided in this Section 13.1,
any remaining Commitment of such Terminating Committed Purchaser shall automatically terminate.
Upon reduction to zero of the Capital of all interests in the Purchaser Interests of a Terminating
Committed Purchaser (after application of Collections thereto
pursuant to Sections 2.2 and 2.3) all rights and obligations of such Terminating Committed
Purchaser hereunder shall be terminated and such Terminating Committed Purchaser shall no longer be
a “Committed Purchaser” hereunder; provided, however, that the provisions of Article X shall
continue in effect for its benefit with respect to Purchaser Interests held by such Terminating
Committed Purchaser prior to its termination as a Committed Purchaser.



44









 





     Section 13.2 Replacement of Purchasers, Affected Entities and Agents



          (a) If (i) any Purchaser or Affected Entity requests compensation under Section 10.2 or
Conduit Agent requests compensation under Section 10.4, or (ii) any Purchaser fails to consent to
any proposed amendment, modification, termination, waiver or consent with respect to any provision
hereof or of any other Transaction Document that requires the approval such Purchaser in accordance
with the terms of Section 14.1, but the consent of the Required Agents shall have been obtained
with respect to such amendment, modification, termination, waiver or consent; the Seller may
arrange for an assignment of, and such requesting or non-consenting Purchaser or Affected Entity,
as applicable, shall agree to assign, to one or more financial institutions acceptable to the
applicable Co-Agent and the Seller all the rights and obligations hereunder of each such requesting
or non-consenting Purchaser or Affected Entity, as applicable, in accordance with Section 12.1.
Each Purchaser or Affected Entity, as applicable, which requests such payment or does not so
consent to any such amendment, modification, termination, waiver or consent shall cooperate fully
with the Seller in effectuating any such assignment.



          (b) If none or less than all of the Commitment of a requesting or non-consenting Purchaser or
Affected Entity, as applicable, in any Group is so assigned as provided in Section 13.2(a) above,
then (i) the unassigned Commitment of such requesting or non-consenting Purchaser shall be reduced
to zero, (ii) the Purchase Limit shall be automatically reduced by the amount of such non-assigned
Commitment, and (iii) this Agreement and the Commitments of all other Purchasers shall remain in
effect in accordance with their terms. Prior to the Amortization Date, all amounts which are to be
applied in reduction of the Aggregate Capital, up to the aggregate Capital of such requesting or
non-consenting Purchaser as described above in this subsection, shall be distributed to such
requesting or non-consenting Purchaser in reduction of its Capital until such Capital is reduced to
zero. When the aggregate Capital of such requesting or non-consenting Purchaser shall have been
reduced to zero and all accrued Yield allocable thereto and all other Aggregate Unpaids owing to
such Purchaser shall have been paid to such Purchaser in full, then such Purchaser shall cease to
be a party to this Agreement for any purpose, and if applicable, any amendment, modification,
termination, waiver or consent previously consented to by the other Purchaser, but not such
Purchaser, shall automatically become effective.



ARTICLE XIV.




MISCELLANEOUS




     Section 14.1 Waivers and Amendments.



          (a) No failure or delay on the part of any Agent or any Purchaser in exercising any power,
right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right or remedy preclude any other further exercise thereof or
the exercise of any other power, right or remedy. The rights and remedies herein provided shall be
cumulative and nonexclusive of any rights or remedies provided by law. Any waiver of this
Agreement shall be effective only in the specific instance and for the specific purpose for which
given.




45











 





          (b) No provision of this Agreement may be amended, supplemented, modified or waived
except in writing in accordance with the provisions of this Section 14.1(b). Seller and the
Required Agents may enter into written modifications or waivers of any provisions of this
Agreement, provided, however, that no such modification or waiver shall:




               (i) without the consent of each affected Purchaser, (A) extend the applicable Liquidity
Termination Date or the date of any payment or deposit of Collections by Seller or the Servicer,
(B) reduce the rate or extend the time of payment of Yield or any CP Costs (or any component of
Yield or CP Costs), (C) reduce any fee payable to as Co-Agent for the benefit of any Purchaser, (D)
except pursuant to Article XII hereof, change the amount of the Capital of any Purchaser, any
Committed Purchaser’s Pro Rata Share or any Committed Purchaser’s Commitment, (E) amend, modify or
waive any provision of this Section 14.1(b), (F) consent to or permit the assignment or transfer by
Seller of any of its rights and obligations under this Agreement, (G) change the definition of “Net
Receivables Balance” or “Aggregate Reserves,” or any component of either of the foregoing or (H)
amend or modify any defined term (or any defined term used directly or indirectly in such defined
term) used in clauses (A) through (G) above in a manner that would circumvent the intention of the
restrictions set forth in such clauses; or



               (ii) without the written consent of the then applicable Agent, amend, modify or waive any
provision of this Agreement if the effect thereof is to affect the rights or duties of such Agent.


Notwithstanding the foregoing, (i) without the consent of the Committed Purchasers, but with the
consent of Seller prior to the occurrence of an Amortization Event (which consent shall not be
unreasonably withheld or delayed but may be conditioned upon a change in the voting rights of the
Co-Agents under this Agreement), the Agents may amend this Agreement solely to add additional
Persons as Committed Purchasers hereunder and (ii) the Agents and the Purchasers may enter into
amendments to modify any of the terms or provisions of Article XI, Article XII, Section 14.13 or
any other provision of this Agreement without the consent of Seller, provided that such amendment
has no negative impact upon Seller. Any modification or waiver made in accordance with this
Section 14.1 shall apply to each of the Purchasers equally and shall be binding upon Seller, the
Purchasers and the Agents.




     Section 14.2 Notices. Except as provided in this Section 14.2, all communications and
notices provided for hereunder shall be in writing (including bank wire, telecopy or electronic
facsimile transmission or similar writing) and shall be given to the other parties hereto at their
respective addresses or telecopy numbers set forth on the signature pages hereof or at such other
address or telecopy number as such Person may hereafter specify for the purpose of notice to each
of the other parties hereto. Each such notice or other communication shall be effective (i) if
given by telecopy, upon the receipt thereof, (ii) if given by mail, three (3) Business Days after
the time such communication is deposited in the mail with first class postage prepaid or (iii) if
given by any other means, when received at the address specified in this Section 14.2. Seller
hereby authorizes each of the Co-Agents to effect purchases and Tranche Period and Discount Rate
selections based on telephonic notices made by any Person whom such Co-Agent in good faith believes
to be acting on behalf of Seller. Seller agrees to deliver promptly to each Co-Agent a written
confirmation of each telephonic notice signed by an authorized officer of Seller;



46









 





provided, however, the absence of such confirmation shall not affect the validity of such
notice. If the written confirmation differs from the action taken by such Co-Agent, the records of
such Co-Agent shall govern absent manifest error.




     Section 14.3 Ratable Payments. If any Purchaser, whether by setoff or otherwise, has
payment made to it with respect to any portion of the Aggregate Unpaids owing to such Purchaser
(other than payments received pursuant to Section 10.2 or 10.3) in a greater proportion than that
received by any other Purchaser entitled to receive a ratable share of such Aggregate Unpaids, such
Purchaser agrees, promptly upon demand, to purchase for cash without recourse or warranty a portion
of such Aggregate Unpaids held by the other Purchasers so that after such purchase each Purchaser
will hold its ratable proportion of such Aggregate Unpaids; provided that if all or any portion of
such excess amount is thereafter recovered from such Purchaser, such purchase shall be rescinded
and the purchase price restored to the extent of such recovery, but without interest.



     Section 14.4 Protection of Ownership Interests of the Purchasers.



          (a) Seller agrees that from time to time, at its expense, it will promptly execute and deliver
all instruments and documents, and take all actions, that may be necessary or desirable, or that
any Agent may request, to perfect, protect or more fully evidence the Purchaser Interests, or to
enable the Agents or the Purchasers to exercise and enforce their rights and remedies hereunder.
At any time when an Amortization Event has occurred and is continuing, the Administrative Agent
may, or the Administrative Agent may direct Seller or the Servicer to, notify the Obligors of
Receivables, at Seller’s expense, of the ownership or security interests of the Purchasers under
this Agreement and may also direct that payments of all amounts due or that become due under any or
all Receivables be made directly to the Administrative Agent or its designee. Seller or the
Servicer (as applicable) shall, at any Purchaser’s request, withhold the identity of such Purchaser
in any such notification.




          (b) If any Seller Party fails to perform any of its obligations hereunder, any Agent or any
Purchaser may (but shall not be required to) perform, or cause performance of, such obligations,
and such Agent’s or such Purchaser’s costs and expenses incurred in connection therewith shall be
payable by Seller as provided in Section 10.3. Each Seller Party irrevocably authorizes the
Administrative Agent at any time and from time to time in the sole discretion of the Administrative
Agent, and appoints the Administrative Agent as its attorney-in-fact, to act on behalf of such
Seller Party (i) to execute on behalf of Seller as debtor (if required) and to file financing
statements necessary or desirable in the Administrative Agent’s sole discretion to perfect and to
maintain the perfection and priority of the interest of the Purchasers in the Receivables and (ii)
to file a carbon, photographic or other reproduction of this Agreement or any financing statement
with respect to the Receivables as a financing statement in such offices as the Administrative
Agent in its sole discretion deems necessary or desirable to perfect and to maintain the perfection
and priority of the interests of the Purchasers in the Receivables. This appointment is coupled
with an interest and is irrevocable. Each of the Seller Parties hereby (A) authorizes the
Administrative Agent to file financing statements and other filing or recording documents with
respect to the Receivables and Related Security (including any amendments thereto, or continuation
or termination statements thereof), without the signature or other authorization of such Seller
Party, in such form and in such offices as the Administrative Agent





47









 







reasonably determines appropriate to perfect or maintain the perfection of the security
interest of the Agent hereunder, (B) acknowledges and agrees that it is not authorized to, and will
not, file financing statements or other filing or recording documents with respect to the
Receivables or Related Security (including any amendments thereto, or continuation or termination
statements thereof), without the express prior written approval by the Agent, consenting to the
form and substance of such filing or recording document, and (C) approves, authorizes and ratifies
any filings or recordings made by or on behalf of the Administrative Agent in connection with the
perfection of the security interest in favor of Seller or the Administrative Agent.




     Section 14.5 Confidentiality.



          (a) Each Seller Party and each Purchaser shall maintain and shall cause each of its employees
and officers to maintain the confidentiality of this Agreement and the other confidential or
proprietary information with respect to the Agents and Conduits and their respective businesses
obtained by it or them in connection with the structuring, negotiating and execution of the
transactions contemplated herein, except that such Seller Party and such Purchaser and its officers
and employees may disclose such information to such Seller Party’s and such Purchaser’s external
accountants and attorneys and as required by any applicable law or order of any judicial or
administrative proceeding.




          (b) Each of the Agents and Purchasers agrees to keep confidential all non-public information
provided to it by either Seller Party pursuant to this Agreement that is designated by such Seller
Party as confidential.




          (c) Each of the Seller Parties, the Agents and the Purchasers hereby consents to the
disclosure of any nonpublic information with respect to it (i) to Performance Guarantor, the Agents
and the Purchasers, (ii) by a Seller Party, the Agents or the Purchasers to any prospective or
actual assignee or participant of any of them; provided that such assignee or participant agrees to
be bound by the terms of this Section 14.5 and (iii) by the Agents or Conduits, to any rating
agency, Commercial Paper dealer or provider of a surety, guaranty or credit or liquidity
enhancement to a Conduit or any entity organized for the purpose of purchasing, or making loans
secured by, financial assets for which either of the Co-Agents or one of its Affiliates acts as the
administrative agent and to any officers, directors, employees, outside accountants and attorneys
of any of the foregoing; provided that each such Person is informed of the confidential nature of
such information. In addition, the Purchasers and the Agents may disclose any such nonpublic
information pursuant to any law, rule, regulation, direction, request or order of any judicial,
administrative or regulatory authority or proceedings (whether or not having the force or effect of
law).




     Section 14.6 Bankruptcy Petition. Each of the Seller Parties, the Agents and the
Purchasers hereby covenants and agrees that, prior to the date that is one year and one day after
the payment in full of all outstanding senior indebtedness of each Conduit, it will not institute
against, or join any other Person in instituting against, such Conduit any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States.



48









 





     Section 14.7 Limitation of Liability. Except with respect to any claim arising out of
the willful misconduct or gross negligence of any Agent or Purchaser, no claim may be made by any
Seller Party or any other Person against any Agent or Purchaser or their respective Affiliates,
directors, officers, employees, attorneys or agents for any special, indirect, consequential or
punitive damages in respect of any claim for breach of contract or any other theory of liability
arising out of or related to the transactions contemplated by this Agreement, or any act, omission
or event occurring in connection therewith; and each Seller Party hereby waives, releases, and
agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not
known or suspected to exist in its favor. Notwithstanding anything in this Agreement to the
contrary, no Conduit shall have any obligation to pay any amount required to be paid by it
hereunder in excess of any amount available to it after paying or making provision for the payment
in full of its Commercial Paper. All payment obligations of each Conduit hereunder are contingent
on the availability of funds in excess of the amounts necessary to pay in full its Commercial
Paper; and each of the other parties hereto agrees that it will not have a claim under Section
101(5) of the Bankruptcy Code if and to the extent that any such payment obligation owed to it by
such Conduit exceeds the amount available to such Conduit to pay such amount after paying or making
provision for the payment in full of its Commercial Paper. The provisions of this Section
14.7 will survive termination of this Agreement and payment in full of each Conduit’s
Commercial Paper.



     Section 14.8 CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS.



     Section 14.9 CONSENT TO JURISDICTION. EACH SELLER PARTY HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN
CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
DOCUMENT EXECUTED BY SUCH PERSON PURSUANT TO THIS AGREEMENT AND EACH SELLER PARTY HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS
TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS
AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF ANY AGENT OR PURCHASER TO BRING
PROCEEDINGS AGAINST ANY SELLER PARTY IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL
PROCEEDING BY ANY SELLER PARTY AGAINST ANY AGENT OR PURCHASER OR ANY AFFILIATE OF ANY AGENT OR ANY
PURCHASER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH SELLER PARTY PURSUANT TO THIS
AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.



     Section 14.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN
ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR



49









 




OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY
DOCUMENT EXECUTED BY ANY SELLER PARTY PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED
HEREUNDER OR THEREUNDER.




     Section 14.11 Integration; Binding Effect; Survival of Terms.



          (a) This Agreement and each other Transaction Document contain the final and complete
integration of all prior expressions by the parties hereto with respect to the subject matter
hereof and shall constitute the entire agreement among the parties hereto with respect to the
subject matter hereof superseding all prior oral or written understandings.




          (b) This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns (including any trustee in bankruptcy). This
Agreement shall create and constitute the continuing obligations of the parties hereto in
accordance with its terms and shall remain in full force and effect until terminated in accordance
with its terms; provided, however, that the rights and remedies with respect to (i) any breach of
any representation and warranty made by any Seller Party pursuant to Article V, (ii) the
indemnification and payment provisions of Article X, and Sections 14.5 and 14.6 shall be continuing
and shall survive any termination of this Agreement.




     Section 14.12 Counterparts; Severability; Section References. This Agreement may be
executed in any number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same Agreement. Any provisions of this Agreement which are
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Unless otherwise expressly
indicated, all references herein to “Article,” “Section,” “Schedule” or “Exhibit” shall mean
articles and sections of, and schedules and exhibits to, this Agreement.



     Section 14.13 Co-Agent Roles.



          (a) Each of the Committed Purchasers in the Falcon Group acknowledges that JPMorgan Chase or
one of its Affiliates acts, or may in the future act, (i) as administrative agent for Falcon or any
Committed Purchaser in the Falcon Group, (ii) as issuing and paying agent for the Commercial Paper
of Falcon, (iii) to provide credit or liquidity enhancement for the timely payment for the
Commercial Paper of Falcon, and (iv) to provide other services from time to time for the various
members of the Falcon Group (collectively, the “JPMorgan Chase Roles“). Without limiting the
generality of this Section 14.13(a), each Committed Purchaser in the Falcon Group hereby
acknowledges and consents to any and all JPMorgan Chase Roles and agrees that in connection with
any JPMorgan Chase Role, JPMorgan Chase may take, or refrain from taking, any action that it, in
its discretion, deems appropriate, including, without limitation, in its role as administrative
agent for Falcon, and the giving of notice to the Falcon Agent of a mandatory purchase pursuant to
one of Falcon’s Liquidity Agreements.






50









 








          (b) Each of the Committed Purchasers in the Liberty Street Group acknowledges that Scotiabank
or one of its Affiliates acts, or may in the future act, (i) as administrative agent for Liberty
Street or any Committed Purchaser in the Liberty Street Group, (ii) as issuing and paying agent for
the Commercial Paper of Liberty Street, (iii) to provide credit or liquidity enhancement for the
timely payment for the Commercial Paper of Liberty Street and (iv) to provide other services from
time to time for the members of the Liberty Street Group (collectively, the “Scotiabank Roles“).
Without limiting the generality of this Section 14.13(b), each Committed Purchaser in the Liberty
Street Group hereby acknowledges and consents to any and all Scotiabank Roles and agrees that in
connection with any Scotiabank Role, Scotiabank may take, or refrain from taking, any action that
it, in its discretion, deems appropriate, including, without limitation, in its role as
administrative agent for Liberty Street, and the giving of notice to the Liberty Street Agent of a
mandatory purchase pursuant to one of Liberty Street’s Liquidity Agreements.



          (c) Each of the Committed Purchasers in the Wells Fargo Group acknowledges that Wells Fargo or
one of its Affiliates acts, or may in the future act, (i) as agent for any Committed Purchaser in
the Wells Fargo Group and (ii) to provide other services from time to time for the members of the
Wells Fargo Group (collectively, the “Wells Fargo Roles”). Without limiting the generality of this
Section 14.13(b), each Committed Purchaser in the Wells Fargo Group hereby acknowledges and
consents to any and all Wells Fargo Roles and agrees that in connection with any Wells Fargo Role,
Wells Fargo may take, or refrain from taking, any action that it, in its discretion, deems
appropriate.




     Section 14.14 Characterization.



          (a) It is the intention of the parties hereto that each purchase hereunder shall constitute
and be treated as an absolute and irrevocable sale, which purchase shall provide the applicable
Purchaser with the full benefits of ownership of an interest in the applicable Purchaser Interest.
Except as specifically provided in this Agreement, each sale of a Purchaser Interest hereunder is
made without recourse to Seller; provided, however, that (i) Seller shall be liable to each
Purchaser and Agent for all representations, warranties, covenants and indemnities made by Seller
pursuant to the terms of this Agreement, and (ii) such sale does not constitute and is not intended
to result in an assumption by any Purchaser or Agent or any assignee thereof of any obligation of
Seller or any Originator or any other Person arising in connection with the Receivables, the
Related Security, or the related Contracts, or any other obligations of Seller or any Originator.




          (b) In addition to any ownership interest which the Administrative Agent may from time to time
acquire pursuant hereto, Seller hereby grants to the Administrative Agent for the ratable benefit
of the Purchasers, a valid and perfected security interest in all of Seller’s right, title and
interest in, to and under all Receivables now existing or hereafter arising, the Collections, each
Lock-Box, each Collection Account, all Related Security, all other rights and payments relating to
such Receivables, and all proceeds of any thereof prior to all other liens on and security
interests therein to secure the prompt and complete payment of the Aggregate Unpaids. The Agents
and the Purchasers shall have, in addition to the rights and remedies that they may have under this
Agreement, all other rights and remedies provided to a secured creditor under the UCC and other
applicable law, which rights and remedies shall be cumulative.






51









 








          (c) If, notwithstanding the intention of the parties expressed above, any sale or transfer by
Seller hereunder shall be characterized as a secured loan and not a sale or such sale shall for any
reason be ineffective or unenforceable (any of the foregoing being a ”Recharacterization”), then
this Agreement shall be deemed to constitute a security agreement under the UCC and other
applicable law. In the case of any Recharacterization, the Seller represents and warrants that each
remittance of Collections to the Agent or the Purchasers hereunder will have been (i) in payment of
a debt incurred in the ordinary course of business or financial affairs and (ii) made in the
ordinary course of business or financial affairs.



     Section 14.15 Federal Reserve. Notwithstanding any other provision of this Agreement to the
contrary, any Purchaser may at any time pledge or grant a security interest in all or any portion
of its rights (including, without limitation, any Purchaser Interest and any rights to payment of
Capital and Yield) under this Agreement to secure obligations of such Purchaser to a Federal
Reserve Bank, without notice to or consent of the Seller, any other Purchaser or the Agent;
provided that no such pledge or grant of a security interest shall release a Purchaser from any of
its obligations hereunder, or substitute any such pledgee or grantee for such Purchaser as a party
hereto.




[SIGNATURE PAGES FOLLOW]





52









 








          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered
by their duly authorized officers or signatories as of the date hereof.



TENNECO AUTOMOTIVE RSA COMPANY,

a Delaware corporation




	 	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	Name:	 	 	 	 	 	 	 	 
	Title:	 	 	 	 	 	 	 	 
	Address:	 	500 North Field Drive	 	 	 	 
	 	 	 	 	Lake Forest, IL 60045	 	 	 	 
	 
	 

	 	 	 	Attention:
	 	John E. Kunz	 	 	 	 
	 

	 	 	 	Phone:
	 	(847) 482-5163
	 	 	 	 
	 

	 	 	 	Fax:
	 	(847) 482-5125	 	 	 	 






TENNECO AUTOMOTIVE OPERATING COMPANY INC.,




a Delaware corporation




	 	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	Name:	 	 	 	 	 	 	 	 
	Title:	 	 	 	 	 	 	 	 
	Address:	 	500 North Field Drive	 	 	 	 
	 	 	 	 	Lake Forest, IL 60045	 	 	 	 
	 
	 

	 	 	 	Attention:
	 	John E. Kunz	 	 	 	 
	 

	 	 	 	Phone:
	 	(847) 482-5163
	 	 	 	 
	 

	 	 	 	Fax:
	 	(847) 482-5125	 	 	 	 






53









 






FALCON ASSET SECURITIZATION COMPANY LLC




	 	 	 	 	 
	 	 
	By:  	          JPMorgan Chase Bank, N.A., 	 
	 	its Attorney-in-Fact 	 



	 	 	 	 	 
	By:  	    	 
	 	Name:  	John M. Kuhns 	 
	 	Title:  	Executive Director 	 
	 



	 	 	 
	Address:
	 	c/o JPMorgan Chase Bank, N.A., as Agent
	 
	 	Asset Backed Securities
	 
	 	Suite IL1-1729
	 
	 	10 South Dearborn Street
	 
	 	Chicago, Illinois  60603
	 
	 	Fax:  (312) 732-1844






JPMORGAN CHASE BANK, N.A.,


as a Committed Purchaser, as Falcon Agent


and as Administrative Agent




	 	 	 	 	 
	 	 
	By:  	
 	 
	 	Name:  	John M. Kuhns 	 
	 	Title:  	Executive Director 	 
	 



	 	 	 
	Address:

	 	JPMorgan Chase Bank, N.A.
	 

	 	Asset Backed Securities
	 

	 	Suite IL1-1729
	 

	 	10 South Dearborn Street
	 

	 	Chicago, Illinois 60603
	 

	 	Fax: (312) 732-4487






54









 






LIBERTY STREET FUNDING LLC




	 	 	 	 	 
	 	 
	By:  	
 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



	 	 	 
	Address:

	 	Liberty Street Funding LLC
	 

	 	c/o Global Securitization Services, LLC
	 

	 	114 West 47th Street, Suite 2310
	 

	 	New York, NY 10036
	 

	 	Attention: Jill Russo
	 

	 	Telephone: (212) 295-2745
	 

	 	Telecopy: (212) 302-8767
	 
	 	 
	 

	 	With a copy to:
	 
	 	 
	 

	 	The Bank of Nova Scotia
	 

	 	One Liberty Plaza, 26th Floor
	 

	 	New York, NY 10006
	 

	 	Attention: Darren Ward, Director
	 

	 	Telephone: (212) 225-5264
	 

	 	Telecopy: (212) 225-5290






THE BANK OF NOVA SCOTIA,

as a Committed Purchaser and as Liberty Street Agent




	 	 	 	 	 
	 	 
	By:  	
 	 
	 	Name:  	Darren Ward 	 
	 	Title:  	Director 	 
	 



	 	 	 
	Address:

	 	The Bank of Nova Scotia
	 

	 	One Liberty Plaza, 24th Floor
	 

	 	New York, NY 10006
	 

	 	Attention: Vilma Pindling [For Purchase Notices]
	 

	 	Tel: (212) 225-5410
	 

	 	Fax: (212) 225-6465






55









 






WELLS FARGO BANK, N.A.,


as a Committed Purchaser and as Wells Fargo Agent




	 	 	 	 	 
	 	 
	By:  	
 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



	 	 	 
	Address:

	 	Wells Fargo Bank, N.A.
	 

	 	6 Concourse Parkway, Suite 1450
	 

	 	Atlanta, Georgia 30328
	 

	 	Attention: Eero Maki
	 

	 	Fax: (404) 732-0801






56









 






EXHIBIT I

DEFINITIONS




          As used in this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the terms defined):




          “Accrual Period” means each calendar month.




          “Administrative Agent” has the meaning set forth in the preamble to this Agreement.




          “Advance Ineligibles” means, at any time, the lesser of (a) the aggregate Outstanding Balance
of all Receivables with terms permitting payment to be made within 71-120 days of the original
billing date therefor in excess of 20.0% of the aggregate Outstanding Balance of all Receivables or
(b) the aggregate Outstanding Balance of all Eligible Receivables owing by Advance Stores Company,
Inc. after subtracting the Pass-Through Reserve, the Warranty Reserve and the Price Give-Back
Accrual, in each case, allocated to the Receivables of such Obligator and its Affiliates, if any.




          “Adverse Claim” means a lien, security interest, charge or encumbrance, or other right or
claim in, of or on any Person’s assets or properties in favor of any other Person.




          “Affected Committed Purchaser” has the meaning specified in Section 12.1(c).




          ”Affected Entity” means (i) any Funding Source, (ii) any agent, administrator or manager of a
Conduit or (iii) any bank holding company in respect of any of the foregoing.




          “Affiliate” means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with, such Person or any
Subsidiary of such Person. A Person shall be deemed to control another Person if the controlling
Person owns 10% or more of any class of voting securities of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the management or policies of
the controlled Person, whether through ownership of stock, by contract or otherwise.




          “Agents” has the meaning set forth in the preamble to this Agreement.




          “Aggregate Capital” means, on any date of determination, the aggregate amount of Capital of
all Purchaser Interests outstanding on such date.




          “Aggregate Reduction” has the meaning specified in Section 1.3.




          “Aggregate Reserves” means, on any date of determination, the sum of the Loss Reserve, the
Dilution Reserve and the Servicer Reserve.







 









 








          “Aggregate Unpaids” means, at any time, an amount equal to the sum of all Aggregate Capital
plus all accrued and unpaid Recourse Obligations (whether due or accrued) at such time.




          “Agreement” means this Third Amended and Restated Receivables Purchase Agreement, as it may be
amended, restated, supplemented or otherwise modified and in effect from time to time.




          “Amortization Date” means the earliest to occur of (i) the day on which any of the conditions
precedent set forth in Section 6.2 are not satisfied, (ii) the Business Day immediately prior to
the occurrence of an Amortization Event set forth in Section 9.1(d)(ii), (iii) the Business Day
specified in a written notice from the Administrative Agent following the occurrence of any other
Amortization Event, and (iv) the date which is thirty (30) Business Days after the Agents’ receipt
of written notice from Seller that it wishes to terminate the facility evidenced by this Agreement.




          “Amortization Event” has the meaning specified in Article IX.




          “Assignment Agreement” has the meaning set forth in Section 12.1(b).




          “Authorized Officer” means, with respect to any Person, its chief executive officer,
president, corporate controller, treasurer, assistant treasurer or chief financial officer.




          “Broken Funding Costs” means for any Purchaser Interest which: (i) has its Capital reduced
without compliance by Seller with the notice requirements hereunder or (ii) does not become subject
to an Aggregate Reduction following the delivery of any Reduction Notice or (iii) is assigned under
a Liquidity Agreement or terminated prior to the date on which it was originally scheduled to end;
an amount equal to the excess, if any, of (A) the CP Costs or Yield (as applicable) that would have
accrued during the remainder of the Tranche Periods or the tranche periods for Commercial Paper of
the applicable Conduit determined by the applicable Conduit Agent to relate to such Purchaser
Interest (as applicable) subsequent to the date of such reduction, assignment or termination (or in
respect of clause (ii) above, the date such Aggregate Reduction was designated to occur pursuant to
the Reduction Notice) of the Capital of such Purchaser Interest if such reduction, assignment or
termination had not occurred or such Reduction Notice had not been delivered, over (B) the sum of
(x) to the extent all or a portion of such Capital is allocated to another Purchaser Interest, the
amount of CP Costs or Yield actually accrued during the remainder of such period on such Capital
for the new Purchaser Interest, and (y) to the extent such Capital is not allocated to another
Purchaser Interest, the income, if any, actually received during the remainder of such period by
the holder of such Purchaser Interest from investing the portion of such Capital not so allocated.
In the event that the amount referred to in clause (B) exceeds the amount referred to in clause
(A), the relevant Purchaser or Purchasers agree to pay to Seller the amount of such excess. All
Broken Funding Costs shall be due and payable hereunder upon demand.




          “Business Day” means any day on which banks are not authorized or required to close in New
York, New York or Chicago, Illinois and The Depository Trust Company of New York is open for
business, and, if the applicable Business Day relates to any computation or





2









 







payment to be made with respect to the LIBO Rate, any day on which dealings in dollar deposits
are carried on in the London interbank market.




          “Capital” of any Purchaser Interest means, at any time, (A) the Purchase Price of such
Purchaser Interest, minus (B) the sum of the aggregate amount of Collections and other payments
received by the applicable Co-Agent which in each case are applied to reduce such Capital in
accordance with the terms and conditions of this Agreement; provided that such Capital shall be
restored (in accordance with Section 2.5) in the amount of any Collections or other payments so
received and applied if at any time the distribution of such Collections or payments are rescinded,
returned or refunded for any reason.




          “Capital Stock” means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation) and any and all warrants, rights or options to purchase any
of the foregoing.




          “Change of Control” means that (i) any “person” or “group” (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act) shall become, or obtain rights (whether by means of warrants,
options or otherwise) to become, the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5
under the Exchange Act), directly or indirectly, of more than 25% of the outstanding common stock
of Tenneco Automotive, (ii) the board of directors of Tenneco Automotive shall cease to consist of
a majority of Continuing Directors, (iii) a Specified Change of Control shall occur, or (iv)
Tenneco Automotive shall cease to be the beneficial owner (as defined above), directly or
indirectly, of 100% of the outstanding common stock of either of the Seller Parties.




          “Charged-Off Receivable” means a Receivable: (i) as to which the Obligor thereof has taken any
action, or suffered any event to occur, of the type described in Section 9.1(d) (as if references
to Seller Party therein refer to such Obligor); (ii) as to which the Obligor thereof, if a natural
person, is deceased, (iii) which, consistent with the Credit and Collection Policy, would be
written off Seller’s books as uncollectible, or (iv) which has been identified by Seller as
uncollectible.




          “Co-Agent” has the meaning set forth in the preamble to this Agreement.




          “Collection Account” means each concentration account, depositary account, lock-box account or
similar account in which any Collections are collected or deposited and which is listed on Exhibit
IV.




          “Collection Account Agreement” means an agreement substantially in the form of Exhibit VI
among an Originator, Seller, the Administrative Agent and a Collection Bank.




          “Collection Bank” means, at any time, any of the banks holding one or more Collection
Accounts.




          “Collection Notice” means a notice, in substantially the form of Annex A to Exhibit VI, from
the Administrative Agent to a Collection Bank.






3









 








          “Collections” means, with respect to any Receivable, all cash collections and other cash
proceeds in respect of such Receivable, including, without limitation, all yield, Finance Charges
or other related amounts accruing in respect thereof and all cash proceeds of Related Security with
respect to such Receivable; provided, however, that Collections will not include any cash collected
by means of electronic fund transfer until such cash is actually received by the Servicer.




          “Commercial Paper” means promissory notes of a Conduit issued by such Conduit in the
commercial paper market.




          “Commitment” means, for each Committed Purchaser, the commitment of such Committed Purchaser
to purchase interest in Purchaser Interests from Seller in an amount not to exceed (i) in the
aggregate, the amount set forth opposite such Committed Purchaser’s name on Schedule A to this
Agreement, as such amount may be modified in accordance with the terms hereof and (ii) with respect
to any individual purchase hereunder, its Pro Rata Share of its Group’s Percentage of the Purchase
Price therefor.




          “Commitment Availability” means, for each Group, the excess (if any) of (i) the aggregate
amount of the Commitments of the Committed Purchasers in such Group divided by 1.02, over (ii) the
outstanding aggregate Capital of all Purchasers in such Group.




          “Committed Purchasers” means the Liberty Street Committed Purchasers, the Falcon Committed
Purchasers or the Wells Fargo Committed Purchasers.




          “Concentration Limit” means, at any time, for any Obligor, 3.6% of the aggregate Outstanding
Balance of all Eligible Receivables after subtracting the Pass Through Reserve, the Warranty
Reserve, the Sales-Promotion Reserve and the Price Give Back Accrual, or such other higher amount
(a “Special Concentration Limit”) for such Obligor designated by the Administrative Agent;
provided, that in the case of an Obligor and any Affiliate of such Obligor, the Concentration Limit
shall be calculated as if such Obligor and such Affiliate are one Obligor; provided, further, that
any Agent may, upon not less than ten (10) Business Days’ notice to Seller, cancel any Special
Concentration Limit. As of February 19, 2010, and subject to cancellation as described above, (i)
any Obligor and its Affiliates shall have a Special Concentration Limit equal to 6% of aggregate
Outstanding Balance of all Eligible Receivables after subtracting the Pass Through Reserve, the
Warranty Reserve, the Sales-Promotion Reserve and the Price Give Back Accrual, so long as such
Obligor’s long term debt ratings equal or exceed “BBB-” from Standard & Poor’s, a division of the
McGraw-Hill Companies (“S&P”) and “Baa3” from Moody’s Investors Service, Inc. (“Moody’s”); and if
the Obligor is Genuine Auto Parts (NAPA), so long as an S&P long term debt shadow rating equal to
or in excess of “BBB+” is obtained; and (ii) the Special Concentration Limits of (a) Ford Motor
Company and its Affiliates shall be equal to the lesser of 4.5% of Eligible Receivables or 50% of
the Loss Reserve Floor, (b) General Motors Company and its Affiliates shall be equal to the lesser
of 4.5% of Eligible Receivables or 50% of the Loss Reserve Floor and (c) each of Advance Stores
Company, Inc., O’Reilly Automotive, Inc. and Uni-Select Inc., in each case together with its
Affiliates, shall be equal to 4.5% of the aggregate Outstanding Balance of all Eligible Receivables
after subtracting the Pass Through Reserve, the Warranty Reserve, the Sales-Promotion Reserve and
the Price Give Back Accrual.






4









 








          “Conduit” has the meaning set forth in the preamble to this Agreement.




          “Conduit Agent” means the Liberty Street Agent or the Falcon Agent.




          “Contingent Obligation” of a Person means any agreement, undertaking or arrangement by which
such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the
payment of, or otherwise becomes or is contingently liable upon, the obligation or liability of any
other Person, or agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person against loss,
including, without limitation, any comfort letter, operating agreement, take-or-pay contract or
application for a letter of credit.




          “Continuing Directors” means the directors of Tenneco Automotive on the date of the initial
Purchase hereunder and each other director, in each case, such other director’s nomination for
election of the board of directors of Tenneco Automotive is recommended by at least a majority of
the then Continuing Directors.




          “Contract” means, with respect to any Receivable, any and all instruments, agreements,
invoices or other writings pursuant to which such Receivable arises or which evidences such
Receivable.




          “CP Costs” means, for each day for each Conduit, the sum of (i) discount or yield accrued on
Pooled Commercial Paper of such Conduit on such day, plus (ii) any and all accrued commissions in
respect of such Conduit’s placement agents and Commercial Paper dealers, and issuing and paying
agent fees incurred, in respect of such Pooled Commercial Paper for such day, plus (iii) other
costs associated with funding small or odd-lot amounts with respect to all receivable purchase
facilities which are funded by Pooled Commercial Paper of such Conduit for such day, minus (iv) any
accrual of income net of expenses received on such day from investment of collections received
under all receivable purchase facilities funded substantially with Pooled Commercial Paper of such
Conduit, minus (v) any payment received on such day net of expenses in respect of Broken Funding
Costs related to the prepayment of any Purchaser Interest of such Conduit pursuant to the terms of
any receivable purchase or financing facilities funded substantially with Pooled Commercial Paper
of such Conduit. In addition to the foregoing costs, if Seller shall request any Incremental
Purchase during any period of time determined by the applicable Conduit Agent in its sole
discretion to result in incrementally higher CP Costs applicable to such Incremental Purchase, the
Capital associated with any such Incremental Purchase shall, during such period, be deemed to be
funded by such Conduit in a special pool (which may include capital associated with other
receivable purchase facilities) for purposes of determining such additional CP Costs applicable
only to such special pool and charged each day during such period against such Capital. All CP
Costs shall be allocated to the Capital of each Conduit under this Agreement in accordance with the
provisions of Section 3.1.




          “Credit and Collection Policy” means Seller’s credit and collection policies and practices
relating to Contracts and Receivables existing on the date hereof and summarized in Exhibit VIII
hereto, as modified from time to time in accordance with this Agreement.






5









 








          “Daily Report” means a report, in substantially the form of Exhibit XI hereto (appropriately
completed), furnished by the Servicer to the Agents pursuant to Section 8.5.




          “Daily Reporting Date” means (i) each Business Day on which Aggregate Capital is greater than
zero as of the end of such Business Day or (ii) each of the two (2) Business Days immediately prior
to the date upon which there is an Incremental Purchase, regardless of whether Aggregate Capital is
greater than zero.




          “Deduction” means any Receivable that the applicable Originator books as a new asset on its
general ledger which represents an amount withheld by an Obligor from its payment on another
Receivable.




          “Deemed Collections” means the aggregate of all amounts Seller shall have been deemed to have
received as a Collection of a Receivable. Seller shall be deemed to have received a Collection in
full of a Receivable if at any time (i) the Outstanding Balance of any such Receivable is either
(x) reduced as a result of any defective or rejected goods or services, any discount or any
adjustment or otherwise by Seller (other than as a result of such Receivable becoming a Charged-Off
Receivable or such Receivable having any credit issued with respect to it on account of a
repurchase pursuant to any Stock-Lift Agreement, on account of any Pass-Through Credit, Price
Give-Back Accrual or Warranty Accrual, or to reflect cash Collections on account of the
Receivables) or (y) reduced or canceled as a result of a setoff in respect of any claim by any
Person (whether such claim arises out of the same or a related transaction or an unrelated
transaction), or (ii) any of the representations or warranties in Article V are no longer true with
respect to any Receivable; provided, however, that solely prior to April 15, 2006, the Outstanding
Balance of all Receivables arising from the production and shipment of prototypes shall be netted
against the amount of Collections Seller is otherwise deemed to have received pursuant to clause
(i) above.




          “Default Fee” means with respect to any amount due and payable by Seller in respect of any
Aggregate Unpaids, an amount equal to the greater of (i) $1,000 and (ii) interest on any such
unpaid Aggregate Unpaids at a rate per annum equal to 2% above the Prime Rate.




          “Default Ratio” means, on any date of determination, the highest three-month rolling average
during the twelve-month period then most recently ended of the percentage equal to (i) the sum of
(a) the Outstanding Balance of Receivables which were 91-120 days past due on the last day of the
month then most recently ended, plus (b) the aggregate Outstanding Balance of all Receivables that
became Charged-Off Receivables in the prior month at a time when such Receivables were less than
121 days past due, divided by (ii) the aggregate sales of the Originators during the fifth month
prior to such date of determination.




          “Delinquency Ratio” means, at any time, a percentage equal to (i) the aggregate Outstanding
Balance of all Receivables that were Delinquent Receivables at such time divided by (ii) the
aggregate Outstanding Balance of all Receivables at such time.




          “Delinquent Receivable” means a Receivable as to which any payment, or part thereof, remains
unpaid for 61 days or more after the original due date for such payment.






6









 








          “Designated Obligor” means an Obligor indicated by the Administrative Agent to Seller in
writing.




          “Dilution Horizon Ratio” means the ratio of (x) cumulative sales of the Originators during the
two (2) months most recently ended divided by (y) the aggregate Outstanding Balance of all Eligible
Receivables after subtracting the Pass Through Reserve, the Warranty Reserve, the Sales-Promotion
Reserve and the Price Give Back Accrual, in each case, calculated as of the last day of the month
most recently ended.




          “Dilution Ratio” means, at any time, a percentage equal to (i) the aggregate amount of
Dilutions which occurred during the month then most recently ended, divided by (ii) the aggregate
sales of the Originators during the month immediately preceding the month then most recently ended.




          “Dilution Reserve” means, on any date of determination, an amount equal to the greater of (a)
10% of the Net Receivables Balance, and (b) the amount determined pursuant to the following
formula:




{ (SF x ED) + [ (DS — ED) x (DS/ED) ] } x DHR x NRB




	 	 	 	 	 
	 

	 	where:	 	 
	 
	 	 	 	 
	 

	 	SF
	 	= 2.50;
	 
	 	 	 	 
	 

	 	ED
	 	= Expected Dilution;
	 
	 	 	 	 
	 

	 	DS
	 	= Dilution Spike;
	 
	 	 	 	 
	 

	 	DHR
	 	= Dilution Horizon Ratio; and
	 
	 	 	 	 
	 

	 	NRB
	 	= Net Receivables Balance.






          “Dilution Spike” means, at any time, the highest two-month rolling average Dilution Ratio
during the twelve months then most recently ended.




          “Dilutions” means, at any time, the aggregate amount of reductions or cancellations described
in clause (i) of the definition of “Deemed Collections”.




          “Discharge of First Lien Obligations” has the meaning set forth in the Intercreditor
Agreement.




          “Discount Rate” means, the LIBO Rate, the Transaction Rate or the Prime Rate, as applicable,
with respect to each portion of Capital funded by the Committed Purchasers.




          “Eligible Receivable” means, at any time, a Receivable:




               (i) the Obligor of which (a) if a natural person, is a resident of the United States or, if a
corporation or other business organization, is organized under the laws of the United States or any
political subdivision thereof and has its chief executive office in the



7









 




United States; (b) is not an Affiliate of any of the parties hereto; (c) is not a Designated
Obligor; (d) is not a government or a governmental subdivision or agency; and (e) has not contested
the validity of any Receivables Sale Agreement or this Agreement,




               (ii) the Obligor of which is not the Obligor of (A) any Charged-Off Receivable or (B)
Receivables more than 25% of the aggregate Outstanding balance of which are Delinquent Receivables,



               (iii) as to which no payment (or part thereof) is more than 60 days past the original due date
therefor,



               (iv) which is not a Charged-Off Receivable or a Deduction,



               (v) which by its terms is due and payable within 70 days of the original billing date therefor
and has not had its payment terms extended, provided, however, that not more than 20.0% of the
aggregate Outstanding Balance of all Receivables may have terms permitting payment to be made
within 71-120 days of the original billing date therefor and still be “Eligible Receivables” so
long as their payment terms have not been extended,



               (vi) which is an “account” within the meaning of Article 9 of the UCC of all applicable
jurisdictions,



               (vii) which is denominated and payable only in United States dollars in the United States,



               (viii) which arises under a Contract which, together with such Receivable, is in full force
and effect and constitutes the legal, valid and binding obligation of the related Obligor
enforceable against such Obligor in accordance with its terms subject to no offset, counterclaim or
other defense,



               (ix) which arises under a Contract which (A) does not require the Obligor under such Contract
to consent to the transfer, sale or assignment of the rights and duties of the applicable
Originator or any of its assignees under such Contract and (B) does not contain a confidentiality
provision that purports to restrict the ability of any Purchaser to exercise its rights under this
Agreement, including, without limitation, its right to review the Contract,



               (x) which represents an obligation to pay a specified sum of money, contingent only upon the
sale of goods or the provision of services by the applicable Originator,



               (xi) which, together with the Contract related thereto, does not contravene any law, rule or
regulation applicable thereto (including, without limitation, any law, rule and regulation relating
to truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair
debt collection practices and privacy) and with respect to which no part of the Contract related
thereto is in violation of any such law, rule or regulation,



               (xii) which satisfies all applicable requirements of the Credit and Collection Policy,




8











 





               (xiii) which was generated in the ordinary course of the applicable Originator’s business,



               (xiv) which arises solely from the sale of goods or the provision of services to the related
Obligor by the applicable Originator, and not by any other Person (in whole or in part),



               (xv) as to which the Administrative Agent (at the direction of the Co-Agents) has not notified
Seller that the Agents have determined that such Receivable or class of Receivables is not
acceptable as an Eligible Receivable, including, without limitation, because such Receivable arises
under a Contract that is not acceptable to the Agents,



               (xvi) which is not subject to any right of rescission, set-off, counterclaim, any other
defense (including defenses arising out of violations of usury laws) of the applicable Obligor
against the applicable Originator or any other Adverse Claim, and the Obligor thereon holds no
right as against such Originator to cause such Originator to repurchase the goods or merchandise
the sale of which shall have given rise to such Receivable (except with respect to sale discounts
effected pursuant to the Contract, or defective goods returned in accordance with the terms of the
Contract); provided, however, that Receivables of any Obligor which has any accounts payable owing
to such Obligor from such Originator (thus giving rise to a potential offset against such
Receivables) may be treated as Eligible Receivables if they meet the other criteria set forth in
this definition but only to the extent that the aggregate Outstanding Balance of such Receivables
exceeds the aggregate outstanding amount of all such payables,



               (xvii) as to which the applicable Originator has satisfied and fully performed all obligations
on its part with respect to such Receivable required to be fulfilled by it, and no further action
is required to be performed by any Person with respect thereto other than payment thereon by the
applicable Obligor,



               (xviii) as to which the applicable Obligor has not been the subject of any proceeding of the
type described in Section 9.1(d) (as if references therein to any Seller Party were a reference to
such Obligor) in the 12 months prior to any date of determination,



               (xix) all right, title and interest to and in which has been validly transferred by the
applicable Originator directly to Seller under and in accordance with the applicable Receivables
Sale Agreement, and Seller has good and marketable title thereto free and clear of any Adverse
Claim except as created hereunder, and



               (xx) which is not subject to a Stock Lift Agreement, provided, however, that Receivables
subject to a Stock Lift Agreement may be treated as Eligible Receivables if they meet the other
criteria set forth in this definition but only to the extent that the aggregate Outstanding Balance
of such Receivables exceeds the aggregate amount of accruals recorded by the Originator, as
estimated by Servicer’s sales group, to reflect a potential credit to be provided pursuant to a
Stock Lift Agreement.



          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time.






9









 








          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the regulations
promulgated pursuant thereto.




          “Expected Dilution” means the rolling twelve-month average of the Dilution Ratio.




          “Facility Termination Date” means the earlier to occur of (i) the Liquidity Termination Date
and (ii) the Amortization Date.




          “Falcon” has the meaning set forth in the preamble to this Agreement.




          “Falcon Co-Agent” has the meaning set forth in the preamble to this Agreement.




          “Falcon Committed Purchasers” has the meaning set forth in the preamble to this Agreement.




          “Falcon Group” means Falcon and the Falcon Committed Purchasers.




          “Falcon Liquidity Agreement” means that certain Asset Purchase Agreement dated as of May 4,
2005 by and among Falcon, the Falcon Co-Agent and JPMorgan Chase, as the same may be amended,
restated or otherwise modified from time to time.




          “Federal Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as
amended and any successor statute thereto.




          “Federal Funds Effective Rate” means, for any period, a fluctuating interest rate per annum
for each day during such period equal to (a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the preceding Business Day) by
the Federal Reserve Bank of New York in the Composite Closing Quotations for U.S. Government
Securities; or (b) if such rate is not so published for any day which is a Business Day, the
average of the quotations at approximately 10:30 a.m. (Chicago time) for such day on such
transactions received by the applicable Co-Agent from three federal funds brokers of recognized
standing selected by it.




          “Fee Letter” means the Tenth Amended and Restated Fee Letter dated as of March 26, 2010 by and
among Seller and the Agents, as the same may be amended, restated or otherwise modified from time
to time.




          “Finance Charges” means, with respect to a Contract, any finance, interest, late payment
charges or similar charges owing by an Obligor pursuant to such Contract.




          “Funding Agreement” means this Agreement and any agreement or instrument executed by any
Funding Source with or for the benefit of any Conduit, including, without limitation, any Liquidity
Agreement.






10









 








          “Funding Source” means (i) any Committed Purchaser or (ii) any insurance company, bank or
other funding entity providing liquidity, credit enhancement or back-up purchase support or
facilities to a Conduit.




          “GAAP” means generally accepted accounting principles in effect in the United States of
America as of the date of this Agreement.




          “Group” means the Falcon Group, the Liberty Street Group or the Wells Fargo Group.




          “Incremental Purchase” means a purchase of one or more Purchaser Interests which increases the
total outstanding Aggregate Capital hereunder.




          “Indebtedness” of a Person means such Person’s (i) obligations for borrowed money,
(ii) obligations representing the deferred purchase price of property or services (other than
accounts payable arising in the ordinary course of such Person’s business payable on terms
customary in the trade), (iii) obligations, whether or not assumed, secured by liens or payable out
of the proceeds or production from property now or hereafter owned or acquired by such Person,
(iv) obligations which are evidenced by notes, acceptances, or other instruments, (v) capitalized
lease obligations, (vi) net liabilities under interest rate swap, exchange or cap agreements,
(vii) Contingent Obligations and (viii) liabilities in respect of unfunded vested benefits under
plans covered by Title IV of ERISA.




          “Independent Director” shall mean a member of the Board of Directors of Seller who (a)(i)
shall not have been at the time of such Person’s appointment or at any time during the preceding
five (5) years, and shall not be as long as such Person is a director of the Seller, (A) a
director, officer, employee, partner, shareholder, member, manager or Affiliate of any of the
following Persons (collectively, the “Independent Parties”): any Originator, or any of their
respective Subsidiaries or Affiliates (other than Seller), (B) a supplier to any of the Independent
Parties, (C) a Person controlling or under common control with any partner, shareholder, member,
manager, Affiliate (other than Seller) or supplier of any of the Independent Parties, or (D) a
member of the immediate family of any director, officer, employee, partner, shareholder, member,
manager, Affiliate or supplier of any of the Independent Parties; (ii) has prior experience as an
independent director for a corporation or limited liability company whose charter documents
required the unanimous consent of all independent directors thereof before such corporation or
limited liability company could consent to the institution of bankruptcy or insolvency proceedings
against it or could file a petition seeking relief under any applicable federal or state law
relating to bankruptcy and (iii) has at least three (3) years of employment experience with one or
more entities that provide, in the ordinary course of their respective businesses, advisory,
management or placement services to issuers of securitization or structured finance instruments,
agreements or securities or (b) does not satisfy the requirements set forth in clause (a) above,
but whose appointment as an Independent Director has been consented to in writing by the secured
creditors of the Seller.




          “Intercreditor Agreement” means that certain Intercreditor Agreement dated as of March 26,
2010, by and among Tenneco Automotive RSA Company, JPMorgan Chase, as First





11









 







Lien Agent, and Wells Fargo, as Second Lien Agent, as amended, restated, supplemented or
otherwise modified from time to time.




          “JPMorgan Chase” means JPMorgan Chase Bank, N.A. in its individual capacity and its
successors.




          “Level One Ratings Period” means any period during which Tenneco Automotive’s long-term senior
unsecured debt is rated “BBB-” or higher by S&P and “Baa3” or higher by Moody’s.




          “Level Two Ratings Period” means any period, other than a Level One Ratings Period, during
which Tenneco Automotive’s long-term senior unsecured debt is rated “BB-” or higher by S&P and
“Ba3” or higher by Moody’s.




          “Level Three Ratings Period” means any period during which Tenneco Automotive’s long-term
senior unsecured debt is rated “B+” or lower by S&P or “B1” or lower by Moody’s.




          “Liberty Street” has the meaning set forth in the preamble to this Agreement.




          “Liberty Street Agent” has the meaning set forth in the preamble to this Agreement.




          “Liberty Street Committed Purchasers” has the meaning set forth in the preamble to this
Agreement.




          “Liberty Street Group” means Liberty Street and the Liberty Street Committed Purchasers.




          “Liberty Street Liquidity Agreement” means that certain Amended and Restated Liquidity Asset
Purchase Agreement dated as of January 26, 2009 by and among Liberty Street, the Liberty Street
Agent and Scotiabank, as the same may be amended, restated or otherwise modified from time to time.




          “LIBO Rate” means:





     (A) with respect to the Falcon Group and the Liberty Street Group, the rate per annum
equal to the sum of (i) (a) the applicable British Bankers’ Association Interest Settlement
Rate for deposits in U.S. dollars appearing on Reuters Screen FRBD as of 11:00 a.m. (London
time) two (2) Business Days prior to the first day of the relevant Tranche Period, and
having a maturity equal to such Tranche Period, provided that, (I) if Reuters Screen FRBD is
not available to a Co-Agent for any reason, the applicable LIBO Rate for the relevant
Tranche Period shall instead be the applicable British Bankers’ Association Interest
Settlement Rate for deposits in U.S. dollars as reported by any other generally recognized
financial information service as of 11:00 a.m. (London time) two (2) Business Days prior to
the first day of such Tranche Period, and having a maturity equal to such Tranche Period,
and (II) if no such British Bankers’ Association Interest Settlement Rate is available to a
Co-Agent, the applicable LIBO Rate for the relevant



12









 






Tranche Period shall instead be the rate determined by such Co-Agent to be the rate at
which such Co-Agent offers to place deposits in U.S. dollars with first-class banks in the
London interbank market at approximately 11:00 a.m. (London time) two (2) Business Days
prior to the first day of such Tranche Period, in the approximate amount to be funded at the
LIBO Rate and having a maturity equal to such Tranche Period, divided by (b) one minus the
maximum aggregate reserve requirement (including all basic, supplemental, marginal or other
reserves) which is imposed against such Co-Agent in respect of Eurocurrency liabilities, as
defined in Regulation D of the Board of Governors of the Federal Reserve System as in effect
from time to time (expressed as a decimal), applicable to such Tranche Period plus (ii)
4.50% per annum; or




     (B) with respect to the Wells Fargo Group, the rate per annum equal to the sum of (i)
LMIR as of 11:00 a.m. (London time) two (2) Business Days prior to the first day of the
relevant Tranche Period and having a maturity equal to such Tranche Period plus (ii) the
Wells Fargo Margin.




     The LIBO Rate shall be rounded, if necessary, to the next higher 1/16 of 1%.



          “Liquidity Agreement” means the Falcon Liquidity Agreement or the Liberty Street Liquidity
Agreement.




          “Liquidity Termination Date” means March 25, 2011.




          “LMIR” means, for any day, the sum of the three-month “Eurodollar Rate” for U.S. Dollar
deposits as reported on the Reuters Screen LIBOR01 Page (or such page as may replace Reuters Screen
LIBOR01 Page).




          “Lock-Box” means each locked postal box with respect to which a bank who has executed a
Collection Account Agreement has been granted exclusive access for the purpose of retrieving and
processing payments made on the Receivables and which is listed on Exhibit IV.




          “Loss Horizon Ratio” means, on any date of determination, a percentage equal to the quotient
of (i) aggregate cumulative sales of the Originator during the three months then most recently
ended, divided by (ii) the Net Receivables Balance as of the last day of the month then most
recently ended.




          “Loss Reserve” means, on any date, an amount equal to the greater of (A) the Loss Reserve
Floor and (B) an amount equal to the product of the Loss Reserve Percentage and the Net Receivables
Balance as of such date.




          “Loss Reserve Floor” means (a) at any time while the long-term senior secured debt of Tenneco
Automotive is rated at least “B” by S&P and at least “B2” by Moody’s, 18% of the Net Receivables
Balance, and (b) at all other times, 21% of the Net Receivables Balance.




          “Loss Reserve Percentage” means a percentage equal to 2.50 times the product of the Default
Ratio times the Loss Horizon Ratio.






13









 








          “Loss-to-Liquidation Ratio” means, as at the last day of any calendar month, a percentage
equal to (a) the sum of (i) Receivables that are 61-90 days past due as of such date, plus
(ii) without duplication of amounts included in clause (i), the amount of Charged-Off Receivables
which became Charged-Off Receivables during such month, divided by (b) the aggregate amount of
Collections during such month.




          “Material Adverse Effect” means a material adverse effect on (i) the business, property,
operations or condition (financial or otherwise) of Performance Guarantor and its Subsidiaries,
taken as a whole, or of either Seller Party, (ii) the ability of either Seller Party to perform its
obligations under this Agreement or the Performance Guarantor to perform its obligations under the
Performance Undertaking, (iii) the legality, validity or enforceability of this Agreement or any
other Transaction Document, (iv) any Purchaser’s interest in the Receivables generally or in any
significant portion of the Receivables, the Related Security or the Collections with respect
thereto, or (v) the collectibility of the Receivables generally or of any material portion of the
Receivables.




          “Monthly Payment Date” means two (2) Business Days after the Monthly Reporting Date.




          “Monthly Report” means a report, in substantially the form of Exhibit X hereto (appropriately
completed), furnished by the Servicer to the Agents pursuant to Section 8.5.




          “Monthly Reporting Date” means the 7th day of each month hereafter (or, if any such day is not
a Business Day, the next succeeding Business Day thereafter.




          “Net Receivables Balance” means, at any time, the result of (a) the aggregate Outstanding
Balance of all Eligible Receivables, minus (b) the Overconcentration Amount, minus (c) the
Pass-Through Reserve at such time, minus (d) the Warranty Reserve at such time, minus (e) Price
Give-Back Accrual at such time minus (f) the Sales-Promotion Reserve; provided, however, that the
sum of the Pass-Through Reserve, the Price Give-Back Accrual, the Warranty Reserve, the
Sales-Promotion Reserve and the Overconcentration Amount attributable to any Obligor shall not
exceed the aggregate Outstanding Balance of all Eligible Receivables for such Obligor included in
the calculation of Net Receivables Balance.




          “New Pass-Through Credits” means, at any time for any Obligor, the balance of Pass-Through
Credits that became Pass-Through Credits during the calendar month most recently ended.




          “Obligor” means a Person obligated to make payments pursuant to a Contract.




          “Originator” means (a) Tenneco Operating, and (b) The Pullman Company, a Delaware corporation,
each in its capacity as seller under the applicable Receivables Sale Agreement.




          “Outstanding Balance” of any Receivable at any time means the then outstanding principal
balance thereof.






14









 








          “Overconcentration Amount” means, at any time, the aggregate for all Obligors of the sum, with
respect to each Obligor, of the excess, if any, of (a) the aggregate Outstanding Balance of all
Eligible Receivables of such Obligor and its Affiliates, after subtracting (i) the Pass-Through
Reserve, the Warranty Reserve and the Price Give-Back Accrual, in each case, allocated to the
Receivables of such Obligor and its Affiliates, if any and (ii) in the case of Advance Stores
Company, Inc., the Advance Ineligibles, over (b) the Concentration Limit for such Obligor and its
Affiliates.




          “Participant” has the meaning set forth in Section 12.2.




          “Pass-Through Credit” means, at any time for any Obligor, the aggregate credit due to such
Obligor resulting from the overpayment to any Seller Party of such Obligor’s Receivables because a
portion of any such Receivable was payable to a Person other than the Originator of such
Receivable.




          “Pass-Through Reserve” means, at any time, the aggregate for all Obligors of the sum, with
respect to each Obligor, of the sum of (1) the aggregate of the Pass-Through Credits as of the last
day of the month most recently ended and (2) the product of (a) 1.5 and (b) the average of the New
Pass-Through Credits for each of the three (3) months then most recently ended.




          “Percentage” means (i) 50.90909% for the Falcon Group, (ii) 40.00000% for the Liberty Street
Group and (iii) 9.09091% for the Wells Fargo Group, which percentages shall be adjusted to give
effect to the terms and provisions of Section 2.2.




          “Performance Guarantor” means Tenneco Automotive.




          “Performance Undertaking” means that certain Fourth Amended and Restated Performance
Undertaking, dated as of March 26, 2010, made by the Performance Guarantor in favor of Seller,
substantially in the form of Exhibit XI, as the same may be amended, restated or otherwise modified
from time to time.




          “Person” means an individual, partnership, corporation (including a business trust), limited
liability company, joint stock company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.




          “Pooled Commercial Paper” means Commercial Paper notes of a Conduit subject to any particular
pooling arrangement by such Conduit, but excluding Commercial Paper issued by such Conduit for a
tenor and in an amount specifically requested by any Person in connection with any agreement
effected by such Conduit.




          “Potential Amortization Event” means an event which, with the passage of time or the giving of
notice, or both, would constitute an Amortization Event.




          “Price Give-Back Accrual” means, at any time, the aggregate for all Obligors of the sum, with
respect to each Obligor, of all accounting reserve or “contra” entries established on any
Originator’s books and records in respect of such Originator’s liability in connection with any
discount owed to such Obligor under a sales contract.






15









 








          “Prime Rate” means a rate per annum equal to the greatest of (a) the prime rate of interest
announced from time to time by the applicable Co-Agent or its parent (which is not necessarily the
lowest rate charged to any customer), changing when and as said prime rate changes, (b) the Federal
Funds Effective Rate plus 0.50% and (c) the LIBO Rate.




          “Pro Rata Share” means, for each Committed Purchaser, a percentage equal to (i) the Commitment
of such Committed Purchaser, divided by (ii) the aggregate amount of the Commitments of all
Committed Purchasers in its Group.




          “Proposed Reduction Date” has the meaning set forth in Section 1.3.




          “Purchase Limit” means $110,000,000.




          “Purchase Notice” has the meaning set forth in Section 1.2.




          “Purchase Price” means, with respect to any Incremental Purchase of a Purchaser Interest, the
amount paid to Seller for such Purchaser Interest which shall not exceed the least of (i) the
amount requested by Seller in the applicable Purchase Notice, (ii) the unused portion of the
Purchase Limit on the applicable purchase date and (iii) the excess, if any, of the Net Receivables
Balance (less the Aggregate Reserves) on the applicable purchase date over the aggregate
outstanding amount of Aggregate Capital determined as of the date of the most recent Daily Report
or, in the case of the Aggregate Reserves, the most recent Monthly Report, taking into account such
proposed Incremental Purchase.




          “Purchaser” means each of the Conduits and Committed Purchasers.




          “Purchaser Interest” means, at any time, an undivided percentage ownership interest (computed
as set forth below) associated with a designated amount of Capital, selected pursuant to the terms
and conditions hereof in (i) each Receivable arising prior to the time of the most recent
computation or recomputation of such undivided interest, (ii) all Related Security with respect to
each such Receivable, and (iii) all Collections with respect to, and other proceeds of, each such
Receivable. Each such undivided percentage interest shall equal:




	 	 	 	 	 
	 

	 	C

 

NRB – AR
	 	  





where:

C = the Capital of such Purchaser Interest.

AR = the Aggregate Reserves.

NRB = the Net Receivables Balance.



Such undivided percentage ownership interest shall be initially computed on its date of purchase.
Thereafter, until the Amortization Date, each Purchaser Interest shall be automatically recomputed
(or deemed to be recomputed) on each day prior to the Amortization Date. The variable percentage
represented by any Purchaser Interest as computed (or deemed recomputed)





16









 







as of the close of the Business Day immediately preceding the Amortization Date shall remain
constant at all times thereafter.




          “Purchasing Committed Purchaser” has the meaning set forth in Section 12.1(b).




          “Receivable” means all indebtedness and other obligations owed to Seller or an Originator (at
the time it arises, and before giving effect to any transfer or conveyance under a Receivables Sale
Agreement or hereunder) or in which Seller or an Originator has a security interest or other
interest, including, without limitation, any indebtedness, obligation or interest constituting an
account, chattel paper, instrument or general intangible, arising in connection with the sale of
goods or the rendering of services by such Originator and the obligation to pay any Finance Charges
with respect thereto; provided, however, in no event shall the term “Receivable” include any such
indebtedness or obligations (i) owed by any Subsidiary of Tenneco Automotive at any time, (ii) owed
by Delphi Corporation or any of its Subsidiaries if originated on or prior to October 9, 2005; or
(iii) owed by General Motors Corporation, Chrysler LLC or any of their respective Subsidiaries.
Indebtedness and other rights and obligations arising from any one transaction, including, without
limitation, indebtedness and other rights and obligations represented by an individual invoice,
shall constitute a Receivable separate from a Receivable consisting of the indebtedness and other
rights and obligations arising from any other transaction; provided further, that any indebtedness,
rights or obligations referred to in the immediately preceding sentence shall be a Receivable
regardless of whether the account debtor or Seller treats such indebtedness, rights or obligations
as a separate payment obligation. For the avoidance of doubt “Receivable” (i) shall not include
any indebtedness and other obligations owed to Seller or an Originator from Chrysler LLC that was
subsequently assumed by Chrysler Group LLC, but it shall include any indebtedness and other
obligations owed to Seller or an Originator from Chrysler Group LLC or any of its Subsidiaries
arising from the sale of good or provision of servicers directly to Chrysler Group LLC or any of
its Subsidiaries from and after June 10, 2009, and (ii) shall not include any indebtedness and
other obligations owed to Seller or an Originator from General Motors Corporation that was
subsequently assumed by General Motors Company, but it shall include any indebtedness and other
obligations owed to Seller or an Originator from General Motors Company or any of its Subsidiaries
arising from the sale of goods or provision of servicers directly to General Motors Company or any
of its Subsidiaries from and after July 17, 2009.




          “Receivables Sale Agreement” means either (a) that certain Receivables Sale Agreement, dated
as of October 31, 2000, between Tenneco Operating, as seller, and Seller or (b) that certain
Receivables Sale Agreement, dated as of December 27, 20000, between The Pullman Company, as seller,
and Seller, as purchaser, as each of the foregoing may be amended, restated or otherwise modified
from time to time.




          “Records” means, with respect to any Receivable, all Contracts and other documents, books,
records and other information (including, without limitation, computer programs, tapes, disks,
punch cards, data processing software and related property and rights) relating to such Receivable,
any Related Security therefor and the related Obligor.




          “Recourse Obligations” shall have the meaning set forth in Section 2.1.






17









 








          “Reduction Notice” has the meaning set forth in Section 1.3.




          “Regulatory Change” has the meaning set forth in Section 10.2(a).




          “Reinvestment” has the meaning set forth in Section 2.2.




          “Related Security” means, with respect to any Receivable:




               (i) all security interests or liens and property subject thereto from time to time, if any,
purporting to secure payment of such Receivable, whether pursuant to the Contract related to such
Receivable or otherwise, together with all financing statements and security agreements describing
any collateral securing such Receivable, but excluding any UCC Article 2 security interest in the
goods, the sale of which gave rise to such Receivable,



               (ii) all guaranties, letters of credit, insurance and other agreements or arrangements of
whatever character from time to time supporting or securing payment of such Receivable whether
pursuant to the Contract related to such Receivable or otherwise,



               (iii) all service contracts and other contracts and agreements associated with such
Receivable,



               (iv) all Records related to such Receivable,



               (v) all of Seller’s right, title and interest in, to and under the applicable Receivables Sale
Agreement in respect of such Receivable and all of Seller’s right, title and interest in, to and
under the Performance Undertaking, and



               (vi) all proceeds of any of the foregoing.



          “Required Agents” means (i) at any time prior to the Facility Termination Date, Agents whose
related Committed Purchasers have Commitments at such time which, in the aggregate, exceed
sixty-six and two thirds percent (66 2⁄3%) of the sum of the Commitments of all Committed Purchasers
hereunder at such time or (ii) from and after the Facility Termination Date, Agents whose related
Purchasers hold Capital at such time which, in the aggregate, exceeds sixty-six and two thirds
percent (66 2⁄3%) of the Aggregate Capital hereunder at such time.




          “Required Capital Amount” means $30,000,000.




          “Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect,
on account of any shares of any class of capital stock of Seller now or hereafter outstanding,
except a dividend payable solely in shares of that class of stock or in any junior class of stock
of Seller, (ii) any redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of capital stock of Seller
now or hereafter outstanding, (iii) any payment or prepayment of principal of, premium, if any, or
interest, fees or other charges on or with respect to, and any redemption, purchase, retirement,
defeasance, sinking fund or similar payment and any claim for rescission with respect to the
“Subordinated Loans” (as such term is defined in the Receivables Sale





18









 







Agreements), (iv) any payment made to redeem, purchase, repurchase or retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire shares of any class of
capital stock of Seller now or hereafter outstanding, and (v) any payment of management fees by
Seller (except for reasonable management fees to any Originator or its Affiliates in reimbursement
of actual management services performed).




          “Sales Promotion Reserve” means $5,000,000.




          “Second Lien Adverse Claims” means any Adverse Claims granted in favor of the Second Lien
Agent pursuant to the Second Lien Receivables Purchase Agreement that are subject to the terms of
the Intercreditor Agreement.




          “Second Lien Agent” shall mean Wells Fargo, in its capacity as “SLOT Agent” under the Second
Lien Receivables Purchase Agreement, and any successor “SLOT Agent” thereunder.




          “Second Lien Receivables Purchase Agreement” shall mean that certain SLOT Receivables Purchase
Agreement, dated as of March 26, 2010, by and among Tenneco Automotive RSA Company, the
“Purchasers” party thereto, and the Second Lien Agent, as amended, restated, supplemented or
otherwise modified as expressly permitted under the Intercreditor Agreement.




          “Second Lien Termination Date” shall mean the date following the termination of the
“Commitments” of the “SLOT Purchasers” under and as defined in the Second Lien Receivables Purchase
Agreement have terminated pursuant to the terms thereof and all “Aggregate SLOT Unpaids” under and
as defined in the Second Lien Receivables Purchase Agreement have been paid in full in cash.




          “Second Lien Transaction Documents” shall mean the Second Lien Receivables Purchase Agreement
and all other “Transaction Documents” (as defined in the Second Lien Receivables Purchase
Agreement).




          “Seller” has the meaning set forth in the preamble to this Agreement.




          “Seller Parties” has the meaning set forth in the preamble to this Agreement.




          “Servicer” means at any time the Person (which may be the Agent) then authorized pursuant to
Article VIII to service, administer and collect Receivables.




          “Servicer Reserve” means, on any date, an amount equal to 2% multiplied by the Net Receivables
Balance as of the close of business of the Servicer on such date.




          “Servicing Fee” has the meaning set forth in Section 8.6.




          “Settlement Date” means (A) the Business Day following receipt of each Daily Report or Weekly
Report (as applicable), (B) each Monthly Payment Date, and (C) the Business Day on which any
Recourse Obligation is not paid when due.






19









 








          “Settlement Report” means each Daily Report, Weekly Report or Monthly Report.




          “Solvent” shall mean, with respect to any Person on a particular date, that on such date (a)
the fair value of the property of such Person is greater than the total amount of liabilities,
including contingent liabilities, of such Person; (b) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the probable liability of
such Person on its Indebtedness as they become absolute and matured; (c) such Person does not
intend to, and does not believe that it will, incur Indebtedness or liabilities beyond such
Person’s ability to pay as such Indebtedness and liabilities mature; and (d) such Person is not
engaged in a business or transaction, and is not about to engage in a business or transaction, for
which such Person’s property would constitute unreasonably small capital.




          “Specified Change of Control” means the occurrence of one or more of the following events:





     (1) any sale, lease, exchange or other transfer (in one transaction or a series
of related transactions) of all or substantially all of the assets of Tenneco
Automotive to any Person or group of related Persons for purposes of Section 13(d)
of the Exchange Act (a “Group“), together with any Affiliates thereof;




     (2) the approval by the holders of Capital Stock of Tenneco Automotive of any
plan or proposal for the liquidation or dissolution of Tenneco Automotive;




     (3) any Person or Group shall become the beneficial owner, directly or
indirectly, of shares representing more than 35% of the aggregate ordinary voting
power represented by the issued and outstanding Capital Stock of Tenneco Automotive;
or




     (4) during any period of two consecutive years, individuals who at the
beginning of such period constituted the board of directors (together with any new
directors whose election by such board of directors or whose nomination for election
by the stockholders of Tenneco Automotive was approved pursuant to a vote of a
majority of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election was previously
so approved) cease for any reason to constitute a majority of the board of directors
then in office.



          “Stock Lift Agreement” means a Contract that requires the Originator to repurchase existing
shelf stock from the applicable Obligor.




          “Subsidiary” of a Person means (i) any corporation more than 50% of the outstanding securities
having ordinary voting power of which shall at the time be owned or controlled, directly or
indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more
of its Subsidiaries, or (ii) any partnership, association, limited liability company, joint venture
or similar business organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled.





20









 







Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a
Subsidiary of Seller.




          “Tenneco Automotive” means Tenneco Inc., a Delaware corporation.




          “Tenneco Automotive Entities” means Tenneco Automotive and each of its Subsidiaries and
Affiliates other than Seller.




          “Tenneco Credit Agreement” means that certain Second Amended and Restated Credit Agreement
dated as of March 16, 2007 (amending and restating the credit agreement dated as of December 12,
2003 (amending and restating the credit agreement dated as of September 30, 1999)) (as amended,
restated, supplemented or otherwise modified from time to time) by and among Tenneco Automotive,
the several lenders from time to time parties thereto, JPMorgan Chase Bank as Administrative Agent
for the lenders, and the other financial institutions named therein as agents for the lenders.




          “Tenneco Operating” has the meaning set forth in the preamble.




          “Terminating Committed Purchaser” has the meaning set forth in Section 13.6(a).




          “Terminating Tranche” has the meaning set forth in Section 4.3(b).




          “Termination Date” has the meaning set forth in Section 2.2.




          “Termination Percentage” has the meaning set forth in Section 2.2.




          “Tranche Period” means, with respect to any portion of a Purchaser Interest held by a
Committed Purchaser:





     (a) if (i) such Committed Purchaser is a Falcon Committed Purchaser or a
Liberty Street Committed Purchaser, and Yield for such Purchaser Interest is
calculated on the basis of the LIBO Rate, a period of one, two, three or six months
(or such other period – including but not limited to one or two week(s) — as may be
mutually agreeable to the applicable Co-Agent and Seller), commencing on a Business
Day selected by Seller or the applicable Agent pursuant to this Agreement and ending
on the day in the applicable succeeding calendar month which corresponds numerically
to the beginning day of such Tranche Period, provided, however, that if there is no
such numerically corresponding day in such succeeding month, such Tranche Period
shall end on the last Business Day of such succeeding month or (ii) such Committed
Purchaser is a Wells Fargo Committed Purchaser, and Yield for such Purchaser
Interest is calculated on the basis of the LIBO Rate, each Accrual Period; or




     (b) if Yield for such Purchaser Interest is calculated on the basis of a
Transaction Rate, a period of up to 30 days commencing and ending on a Business Day
selected by the Seller and agreed to by the Agent pursuant to this Agreement; or



21









 






     (c) if Yield for such Purchaser Interest is calculated on the basis of the
Prime Rate, a period commencing on a Business Day selected by Seller and agreed to
by the Agent, provided no such period shall exceed one month.


If any Tranche Period would end on a day which is not a Business Day, such Tranche Period shall end
on the next succeeding Business Day, provided, however, that in the case of Tranche Periods
corresponding to the LIBO Rate, if such next succeeding Business Day falls in a new month, such
Tranche Period shall end on the immediately preceding Business Day. In the case of any Tranche
Period for any Purchaser Interest which commences before the Amortization Date and would otherwise
end on a date occurring after the Amortization Date, such Tranche Period shall end on the
Amortization Date. The duration of each Tranche Period which commences after the Amortization Date
shall be of such duration as selected by the Agent.




          “Transaction Documents” means, collectively, this Agreement, each Purchase Notice, each
Receivables Sale Agreement, each Collection Account Agreement, the Performance Undertaking, the Fee
Letter, the “Subordinated Notes” (as such term is defined in the Receivables Sale Agreements), the
Intercreditor Agreement and all other instruments, documents and agreements executed and delivered
in connection herewith.




          “Transaction Rate” means a short-term fixed rate per annum quoted from time to time by a
Co-Agent upon request of the Seller for Tranche Periods of up to 30 days, which rate shall include
a spread over such Co-Agent’s cost of funds of 325 basis points.




          “UCC” means the Uniform Commercial Code as from time to time in effect in the specified
jurisdiction.




          “Warranty Accrual” means, at any time, the aggregate amount of the accounting reserve or
“contra” entries established with respect to the Receivables on any Originator’s books and records
in respect of such Originator’s liability in connection with its Warranty Plans.




          “Warranty Plans” means, collectively, the Originators’ various warranty programs.




          “Warranty Reserve” means, at any time, the greater of (i) the product of (a) 1.5 and (b) a
fraction, the numerator of which is the average of the Warranty Accruals during each of the three
(3) months then most recently ended, and the denominator of which is the average of the cumulative
sales of the Originators during each of the three (3) months then most recently ended and (c) the
cumulative sales of the Originators during the month most recently ended and (ii) the amount of
Warranty Accruals during the month then most recently ended.




          “Weekly Report” means a report in form reasonably acceptable to the Administrative Agent
(appropriately completed), furnished by the Servicer to the Agents pursuant to Section 8.5.




          “Weekly Update Date” means the second Business Day following the last day of each week.




          “Wells Fargo” has the meaning set forth in the preamble to this Agreement.






22









 








          “Wells Fargo Co-Agent” has the meaning set forth in the preamble to this Agreement.




          “Wells Fargo Committed Purchasers” has the meaning set forth in the preamble to this
Agreement.




          “Wells Fargo Group” means Wells Fargo and the Wells Fargo Committed Purchasers.




          “Wells Fargo Margin” has the meaning set forth in the Fee Letter.




          “Yield” means for each respective Tranche Period relating to any portion of a Purchaser
Interest that is held on behalf of the Committed Purchasers, an amount equal to the product of the
applicable Discount Rate for each Purchaser Interest multiplied by the Capital of such Purchaser
Interest for each day elapsed during such Tranche Period, annualized on a 360 day basis in the case
of the LIBO Rate or the Transaction Rate and on a 365 (or, when appropriate, 366) day basis in the
case of the Prime Rate.




          All accounting terms not specifically defined herein shall be construed in accordance with
GAAP. All terms used in Article 9 of the UCC in the State of Illinois, and not specifically
defined herein, are used herein as defined in such Article 9.






23









 








EXHIBIT II




FORM OF PURCHASE NOTICE




[Date]




JPMorgan Chase Bank, N.A., as Falcon Agent

10 South Dearborn, IL1-1729

Asset-Backed Securities

Chicago, Illinois 60603

Attention: Asset-Backed Securities,

Falcon Conduit Administrator




The Bank of Nova Scotia, as Liberty Street Agent

One Liberty Plaza, 24th Floor

New York, NY 10006

Attention: Vilma Pindling




Wells Fargo Bank, N.A.,

as Wells Fargo Agent

6 Concourse Parkway, Suite 1450

Atlanta, GA 30328

Attention: Eero Maki




	 	 	 	 	 
	 

	 	Re:
	 	PURCHASE NOTICE





Ladies and Gentlemen:




          Reference is hereby made to the Third Amended and Restated Receivables Purchase Agreement,
dated as of March 26, 2010, by and among Tenneco Automotive RSA Company, a Delaware corporation
(the “Seller“), Tenneco Automotive Operating Company, as Servicer, the Committed Purchasers, Falcon
Asset Securitization Company LLC, Liberty Street Funding LLC, The Bank of Nova Scotia, New York
Agency, individually and as Liberty Street Agent, Wells Fargo Bank, N.A., individually and as Wells
Fargo Agent and JPMorgan Chase Bank, N.A., individually as Falcon Agent and as Administrative Agent
(the “Receivables Purchase Agreement“). Capitalized terms used herein shall have the meanings
assigned to such terms in the Receivables Purchase Agreement.




          The Agent is hereby notified of the following Incremental Purchase:




	 	 	 
	Purchase Price (Total):
	 	$                                        
	 
	 	 
	Falcon Group’s Percentage of Purchase Price:
	 	$                                        
	 
	 	 
	Liberty Street Group’s Percentage of Purchase
Price:
	 	$                                        






24









 






	 	 	 
	Wells Fargo Group’s Percentage of Purchase
Price:
	 	$                                        
	 
	 	 
	Date of Purchase:
	 	                                        
	 
	 	 
	Requested Discount Rate:
	 	[LIBO Rate][Prime Rate][Transaction Rate][Pooled Commercial Paper rate]






          Please credit the Purchase Price in immediately available funds to:




          [Account Name]




          [Account No.]




          [Bank Name & Address]




          [ABA #]




          Reference:




          Telephone advice to: [Name] @ tel. no. (                    )




          Please advise [Name] at telephone no. (                    )                           
               if Conduit will not be making
this Purchase.




          In connection with the Incremental Purchase to be made on the above listed “Date of Purchase”
(the “Purchase Date“), the Seller hereby certifies that the following statements are true on the
date hereof, and will be true on the Purchase Date (before and after giving effect to the proposed
Incremental Purchase):




               (i) the representations and warranties of the Seller set forth in Section 5.1 of the
Receivables Purchase Agreement are true and correct on and as of the Purchase Date as though made
on and as of such date;



               (ii) no event has occurred and is continuing, or would result from the proposed Incremental
Purchase, that will constitute an Amortization Event or a Potential Amortization Event;



               (iii) the Facility Termination Date has not occurred, the Aggregate Capital does not exceed
the Purchase Limit and the aggregate Purchaser Interests do not exceed 100%; and



               (iv) the amount of Aggregate Capital is $                     after giving effect to the Incremental
Purchase to be made on the Purchase Date.



	 	 	 	 	 
	 	Very truly yours,



TENNECO AUTOMOTIVE RSA COMPANY, 

a Delaware
corporation
 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




25











 





EXHIBIT III




PLACES OF BUSINESS OF THE SELLER PARTIES; LOCATIONS OF RECORDS; FEDERAL EMPLOYER IDENTIFICATION

NUMBER(S)




Places of Business and Locations of Records:





	 	A.	 	Tenneco Operating:






	 	 	 	Chief Executive Office 

500 North Field Drive 

Lake Forest, IL 60045
	 
	 	 	 	Other Place of Business 

1 International Drive 

Monroe, Michigan 48161






	 	B.	 	Seller:






	 	 	 	Chief Executive Office 

500 North Field Drive 

Lake Forest, IL 60045




Federal Employer Identification Number:




	 	 	 	 	 	 	 
	 

	 	A.
	 	Tenneco Operating:
	 	74-1933558
	 

	 	B.
	 	Seller:
	 	76-0589054





Prior Legal Names (in past 5 years):




	 	 	 	 	 	 	 
	 

	 	A.
	 	Tenneco Operating:
	 	n/a
	 

	 	B.
	 	Seller:
	 	n/a





Trade and Assumed Names:




	 	 	 	 	 	 	 
	 

	 	A.
	 	Tenneco Operating:
	 	EZ Ride or any variation thereof
	 

	 	 	 	 	 	MAECO or any variation thereof
	 

	 	 	 	 	 	Monroe or any variation thereof
	 

	 	 	 	 	 	Walker or any variation thereof
	 

	 	 	 	 	 	Precision Modular Assembly
	 

	 	 	 	 	 	Rancho Ind or any variation thereof
	 

	 	 	 	 	 	Regal Ride or any variation thereof
	 

	 	 	 	 	 	Tenneco or any variation thereof
	 

	 	 	 	 	 	NAPA Shocks
	 

	 	 	 	 	 	DeKoven any variation thereof
	 

	 	 	 	 	 	Tennessee Gas Pipeline
	 

	 	 	 	 	 	Dyno Max
	 

	 	 	 	 	 	NAPA Mufflers






26









 






	 	 	 	 	 	 	 
	 

	 	 	 	 	 	NAS-Walker Manufacturing
	 

	 	 	 	 	 	National Account Sales
	 

	 	 	 	 	 	Performance Industries Inc.
	 

	 	 	 	 	 	Perfection and any variation thereof
	 

	 	 	 	 	 	Thrush and any variation thereof
	 

	 	B.
	 	Seller:
	 	n/a






27









 






EXHIBIT IV




NAMES OF COLLECTION BANKS; COLLECTION ACCOUNTS




[Intentionally Omitted]



28









 






EXHIBIT V




FORM OF COMPLIANCE CERTIFICATE



JPMorgan Chase Bank, N.A., as Falcon Agent

The Bank of Nova Scotia, as Liberty Street Agent

Wells Fargo Bank, N.A., as Wells Fargo Agent




          Reference is hereby made to the Third Amended and Restated Receivables Purchase Agreement,
dated as of March 26, 2010, by and among Tenneco Automotive RSA Company, a Delaware corporation
(the “Seller"), Tenneco Automotive Operating Company, as Servicer, the Committed Purchasers, Falcon
Asset Securitization Company LLC, Liberty Street Funding LLC, The Bank of Nova Scotia, New York
Agency, individually and as Liberty Street Agent, Wells Fargo Bank, N.A., individually and as Wells
Fargo Agent and JPMorgan Chase Bank, N.A., individually as Falcon Agent and as Administrative Agent
(the “Agreement"). Capitalized terms used herein shall have the meanings assigned to such terms in
the Agreement.




          THE UNDERSIGNED HEREBY CERTIFIES THAT:




          1. I am the duly elected                                of Seller.




          1. I have reviewed the terms of the Agreement and I have made, or have caused to be made under
my supervision, a detailed review of the transactions and conditions of Seller and its Subsidiaries
during the accounting period covered by the attached financial statements.




          2. The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the
existence of any condition or event which constitutes an Amortization Event or Potential
Amortization Event, as each such term is defined under the Agreement, during or at the end of the
accounting period covered by the attached financial statements or as of the date of this
Certificate[, except as set forth in paragraph 5 below.]




          3. Schedule I attached hereto sets forth financial data and computations evidencing the
compliance with certain covenants of the Agreement, all of which data and computations are true,
complete and correct.




          [5. Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the
nature of the condition or event, the period during which it has existed and the action which
Seller has taken, is taking, or proposes to take with respect to each such condition or event:]



The foregoing certifications, together with the computations set forth in Schedule I hereto and
the financial statements delivered with this Certificate in support hereof, are made and delivered
this                 day of                     , 20     . 




	 	 	 	 	 
	 	 	 
	          By:
	 	 
	 	 	
 
	 	 	 
	 	 	 



29









 






	 	 	 	 	 



SCHEDULE I TO COMPLIANCE CERTIFICATE




          A. Schedule of Compliance as of                     ,            with Section 9.1(f) of the Agreement. Unless
otherwise defined herein, the terms used in this Compliance Certificate have the meanings ascribed
thereto in the Agreement.




          This schedule relates to the month ended:                                         





30









 








EXHIBIT VI




FORM OF COLLECTION ACCOUNT AGREEMENT



[Intentionally Omitted]



31









 





EXHIBIT VII




FORM OF ASSIGNMENT AGREEMENT



[Intentionally Omitted]



32









 





EXHIBIT VIII




CREDIT AND COLLECTION POLICY



[Intentionally Omitted]

33









 





EXHIBIT IX




FORM OF DAILY REPORT



[Intentionally Omitted]

34









 





EXHIBIT IX




FORM OF MONTHLY REPORT



[Intentionally Omitted]
 35









 





EXHIBIT XI




FORM OF PERFORMANCE UNDERTAKING



FOURTH AMENDED AND RESTATED PERFORMANCE UNDERTAKING



          THIS FOURTH AMENDED AND RESTATED PERFORMANCE UNDERTAKING (this “Undertaking"), dated as of
March 26, 2010, is executed by Tenneco Inc., a Delaware corporation (the “Performance Guarantor")
in favor of Tenneco Automotive RSA Company, a Delaware corporation (together with its successors
and assigns, “Recipient"), and amends and restates in its entirety that certain Third Amended and
Restated Performance Undertaking dated as of May 4, 2005 by the Performance Guarantor in favor of
the Recipient.




RECITALS





	1	 	Tenneco Automotive Operating Company, a Delaware corporation (“Tenneco Operating"), and
Recipient have entered into a Receivables Sale Agreement, dated as of October 31, 2000, and
The Pullman Company, a Delaware corporation (“Pullman"), and Recipient have entered into a
Receivables Sale Agreement, dated as of December 27, 2000 (each of the foregoing, as amended,
restated or otherwise modified from time to time, a “Sale Agreement” and collectively, the
“Sale Agreements"), pursuant to which Tenneco Operating or Pullman, as the case may be, is
selling and/or contributing its right, title and interest in its accounts receivable to
Recipient subject to the terms and conditions contained therein.
	 
	2	 	Performance Guarantor owns, directly or indirectly, one hundred percent (100%) of the capital
stock of Tenneco Operating, Pullman and Recipient, and each of Tenneco Operating and Pullman
(and, accordingly, Performance Guarantor) is expected to receive substantial direct and
indirect benefits from their sale or contribution of receivables to Recipient pursuant to the
Sale Agreements (which benefits are hereby acknowledged).
	 
	3	 	As an inducement for Recipient to acquire Pullman’s accounts receivable, and to continue to
acquire Tenneco Operating’s accounts receivable, pursuant to the Sale Agreements, Performance
Guarantor has agreed to guaranty the due and punctual performance by each of Tenneco Operating
and Pullman of its obligations under the applicable Sale Agreement, as well as Tenneco
Operating’s Servicing Related Obligations (as hereinafter defined).
	 
	4	 	Performance Guarantor wishes to guaranty the due and punctual performance by (a) Tenneco
Operating of its obligations to Recipient under or in respect of the Sale Agreement to which
Tenneco Operating is a party and its Servicing Related Obligations (as hereinafter defined),
as provided herein, and (b) Pullman of its obligations to Recipient under or in respect of the
Sale Agreement to which Pullman is a party.




36









 











AGREEMENT




          NOW, THEREFORE, Performance Guarantor hereby agrees as follows:




          Section 1. Definitions. Capitalized terms used herein and not defined herein shall
have the respective meanings assigned thereto in the Sale Agreements or the Purchase Agreement (as
hereinafter defined). In addition:




          “Guaranteed Obligations” means, collectively: (a) all covenants, agreements, terms,
conditions and indemnities to be performed and observed by Tenneco Operating or Pullman under and
pursuant to the Sale Agreement to which it is a party and each other document executed and
delivered by Tenneco Operating or Pullman pursuant to the Sale Agreement to which it is a party,
including, without limitation, the due and punctual payment of all sums which are or may become due
and owing by Tenneco Operating or Pullman under the Sale Agreement to which it is a party, whether
for fees, expenses (including counsel fees), indemnified amounts or otherwise, whether upon any
termination or for any other reason and (b) all obligations of Tenneco Operating (i) as Servicer
under (x) the Third Amended and Restated Receivables Purchase Agreement, dated as of March 26, 2010
by and among Recipient, Tenneco Operating, as Servicer, Falcon Asset Securitization Company LLC,
Liberty Street Funding LLC, the Committed Purchasers, the Bank of Nova Scotia, New York Agency, as
Liberty Street Agent, Wells Fargo Bank, N.A., as Wells Fargo Agent, and JPMorgan Chase Bank, N.A.,
as Falcon Agent and Administrative Agent (as amended, restated or otherwise modified, the “First
Lien Purchase Agreement") and (y) the SLOT Receivables Purchase Agreement, dated as of March 26,
2010 by and among Recipient, Tenneco Operating, as Servicer, Wells Fargo Bank, N.A., as Wells
Fargo Agent and Second Lien Agent (as amended, restated or otherwise modified, the “Second Lien
Purchase Agreement” and, together with the First Lien Purchase Agreement, the “Purchase
Agreements”; the Purchase Agreements and the Sale Agreements, collectively, the “Agreements") or
(ii) which arise pursuant to Sections 8.2, 8.3 or 14.4(a) of either Purchase Agreement as a result
of its termination as Servicer (all such obligations under this clause (b), collectively, the
“Servicing Related Obligations").




          Section 2. Guaranty of Performance of Guaranteed Obligations. Performance Guarantor
hereby guarantees to Recipient, the full and punctual payment and performance by each of Tenneco
Operating and Pullman of its Guaranteed Obligations. This Undertaking is an absolute,
unconditional and continuing guaranty of the full and punctual performance of all Guaranteed
Obligations of each of Tenneco Operating and Pullman under the Agreements to which it is a party
and each other document executed and delivered by Tenneco Operating or Pullman pursuant to such
Agreements and is in no way conditioned upon any requirement that Recipient first attempt to
collect any amounts owing by Tenneco Operating or Pullman to Recipient, the Agents, the Second Lien
Agent, the Purchasers or the Second Lien Purchasers from any other Person or resort to any
collateral security, any balance of any deposit account or credit on the books of Recipient, any
Agent, the Second Lien Agent, any Purchaser or any Second Lien Purchaser in favor of Tenneco
Operating or Pullman or any other Person or other means of obtaining payment. Should Tenneco
Operating or Pullman default in the payment or performance of any of its Guaranteed Obligations,
Recipient (or its assigns) may cause the immediate performance by Performance Guarantor of such
Guaranteed Obligations and cause any payment Guaranteed Obligations to become forthwith due and
payable to Recipient (or its





37









 







assigns), without demand or notice of any nature (other than as expressly provided herein),
all of which are hereby expressly waived by Performance Guarantor. Notwithstanding the foregoing,
this Undertaking is not a guarantee of the collection of any of the Receivables and Performance
Guarantor shall not be responsible for any Guaranteed Obligations to the extent the failure to
perform such Guaranteed Obligations by Tenneco Operating or Pullman results from Receivables being
uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related
Obligor; provided that nothing herein shall relieve Tenneco Operating or Pullman from performing in
full its Guaranteed Obligations under the Agreements to which it is a party or Performance
Guarantor of its undertaking hereunder with respect to the full performance of such duties.




          Section 3. Performance Guarantor’s Further Agreements to Pay. Performance Guarantor
further agrees, as the principal obligor and not as a guarantor only, to pay to Recipient (and its
assigns), forthwith upon demand in funds immediately available to Recipient, all reasonable costs
and expenses (including court costs and reasonable legal expenses) incurred or expended by
Recipient in connection with the Guaranteed Obligations, this Undertaking and the enforcement
thereof, together with interest on amounts recoverable under this Undertaking from the time when
such amounts become due until payment, at a rate of interest (computed for the actual number of
days elapsed based on a 365-, or when appropriate, 366-day year) equal to the Prime Rate plus 2%
per annum, such rate of interest changing when and as the Prime Rate changes.




          Section 4. Waivers by Performance Guarantor. Performance Guarantor waives notice of
acceptance of this Undertaking, notice of any action taken or omitted by Recipient (or its assigns)
in reliance on this Undertaking, and any requirement that Recipient (or its assigns) be diligent or
prompt in making demands under this Undertaking, giving notice of any Termination Event,
Amortization Event, other default or omission by Tenneco Operating or Pullman or asserting any
other rights of Recipient under this Undertaking. Performance Guarantor warrants that it has
adequate means to obtain from Tenneco Operating or Pullman, as the case may be, on a continuing
basis, information concerning the financial condition of Tenneco Operating or Pullman, as
applicable, and that it is not relying on Recipient to provide such information, now or in the
future. Performance Guarantor also irrevocably waives all defenses (i) that at any time may be
available in respect of the Guaranteed Obligations by virtue of any statute of limitations,
valuation, stay, moratorium law or other similar law now or hereafter in effect or (ii) that arise
under the law of suretyship, including impairment of collateral. Recipient (and its assigns) shall
be at liberty, without giving notice to or obtaining the assent of Performance Guarantor and
without relieving Performance Guarantor of any liability under this Undertaking, to deal with
Tenneco Operating and Pullman and with each other party who now is or after the date hereof becomes
liable in any manner for any of the Guaranteed Obligations, in such manner as Recipient in its sole
discretion deems fit, and to this end Performance Guarantor agrees that the validity and
enforceability of this Undertaking, including without limitation, the provisions of Section 7
hereof, shall not be impaired or affected by any of the following: (a) any extension, modification
or renewal of, or indulgence with respect to, or substitutions for, the Guaranteed Obligations or
any part thereof or any agreement relating thereto at any time; (b) any failure or omission to
enforce any right, power or remedy with respect to the Guaranteed Obligations or any part thereof
or any agreement relating thereto, or any collateral securing the Guaranteed Obligations or any
part thereof; (c) any waiver of any right, power or remedy or of any





38









 







Termination Event, Amortization Event, or default with respect to the Guaranteed Obligations
or any part thereof or any agreement relating thereto; (d) any release, surrender, compromise,
settlement, waiver, subordination or modification, with or without consideration, of any other
obligation of any person or entity with respect to the Guaranteed Obligations or any part thereof;
(e) the enforceability or validity of the Guaranteed Obligations or any part thereof or the
genuineness, enforceability or validity of any agreement relating thereto or with respect to the
Guaranteed Obligations or any part thereof; (f) the application of payments received from any
source to the payment of any payment obligations of Tenneco Operating or Pullman or any part
thereof or amounts which are not covered by this Undertaking even though Recipient (or its assigns)
might lawfully have elected to apply such payments to any part or all of the payment obligations of
Tenneco Operating or Pullman or to amounts which are not covered by this Undertaking; (g) the
existence of any claim, setoff or other rights which Performance Guarantor may have at any time
against Tenneco Operating or Pullman in connection herewith or any unrelated transaction; (h) any
assignment or transfer of the Guaranteed Obligations or any part thereof; or (i) any failure on the
part of Tenneco Operating or Pullman to perform or comply with any term of the Agreements or any
other document executed in connection therewith or delivered thereunder, all whether or not
Performance Guarantor shall have had notice or knowledge of any act or omission referred to in the
foregoing clauses (a) through (i) of this Section 4.




          Section 5. Unenforceability of Guaranteed Obligations Against Tenneco Operating or
Pullman. Notwithstanding (a) any change of ownership of Tenneco Operating or Pullman or the
insolvency, bankruptcy or any other change in the legal status of Tenneco Operating or Pullman; (b)
the change in or the imposition of any law, decree, regulation or other governmental act which does
or might impair, delay or in any way affect the validity, enforceability or the payment when due of
the Guaranteed Obligations; (c) the failure of Tenneco Operating or Pullman or Performance
Guarantor to maintain in full force, validity or effect or to obtain or renew when required all
governmental and other approvals, licenses or consents required in connection with the Guaranteed
Obligations or this Undertaking, or to take any other action required in connection with the
performance of all obligations pursuant to the Guaranteed Obligations or this Undertaking; or (d)
if any of the moneys included in the Guaranteed Obligations have become irrecoverable from Tenneco
Operating or Pullman for any other reason other than final payment in full of the payment
Guaranteed Obligations in accordance with their terms, this Undertaking shall nevertheless be
binding on Performance Guarantor. This Undertaking shall be in addition to any other guaranty or
other security for the Guaranteed Obligations, and it shall not be rendered unenforceable by the
invalidity of any such other guaranty or security. In the event that acceleration of the time for
payment of any of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or
reorganization of Tenneco Operating or Pullman or for any other reason with respect to Tenneco
Operating or Pullman, all such amounts then due and owing with respect to the Guaranteed
Obligations under the terms of the Agreements, or any other agreement evidencing, securing or
otherwise executed in connection with the Guaranteed Obligations, shall be immediately due and
payable by Performance Guarantor.




          Section 6. Representations and Warranties. Performance Guarantor hereby represents
and warrants to Recipient that:






39









 








          (a) Existence and Standing. Performance Guarantor is a corporation duly organized,
validly existing and in good standing under the laws of its state of incorporation. Performance
Guarantor is duly qualified to do business and is in good standing as a foreign corporation, and
has and holds all corporate power and all governmental licenses, authorizations, consents and
approvals required to carry on its business in each jurisdiction in which its business is conducted
except where the failure to so qualify or so hold could not reasonably be expected to have a
Material Adverse Effect.




          (b) Authorization, Execution and Delivery; Binding Effect. The execution and delivery
by Performance Guarantor of this Undertaking, and the performance of its obligations hereunder, are
within its corporate powers and authority and have been duly authorized by all necessary corporate
action on its part. This Undertaking has been duly executed and delivered by Performance
Guarantor. This Undertaking constitutes the legal, valid and binding obligation of Performance
Guarantor enforceable against Performance Guarantor in accordance with their respective terms,
except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws relating to or limiting creditors’ rights generally and by general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or at law).




          (c) No Conflict; Government Consent. The execution and delivery by Performance
Guarantor of this Undertaking, and the performance of its obligations hereunder do not contravene
or violate (i) its certificate or articles of incorporation or by-laws, (ii) any law, rule or
regulation applicable to it, (iii) any restrictions under any agreement, contract or instrument to
which it is a party or by which it or any of its property is bound, or (iv) any order, writ,
judgment, award, injunction or decree binding on or affecting it or its property, and do not result
in the creation or imposition of any Adverse Claim on assets of Performance Guarantor or its
Subsidiaries (except as created hereunder) except, in any case, where such contravention or
violation could not reasonably be expected to have a Material Adverse Effect.




          (d) Financial Statements. The consolidated financial statements of Performance
Guarantor and its consolidated Subsidiaries dated as of December 31, 2009 heretofore delivered to
Recipient have been prepared in accordance with generally accepted accounting principles
consistently applied and fairly present in all material respects the consolidated financial
condition and results of operations of Performance Guarantor and its consolidated Subsidiaries as
of such dates and for the periods ended on such dates. Since the later of (i) December 31, 2009
and (ii) the last time this representation was made or deemed made, no event has occurred which
would or could reasonably be expected to have a Material Adverse Effect.




          (e) Taxes. Performance Guarantor has filed all United States federal tax returns and
all other tax returns which are required to be filed and have paid all taxes due pursuant to said
returns or pursuant to any assessment received by Performance Guarantor or any of its Subsidiaries,
except such taxes, if any, as are being contested in good faith and as to which adequate reserves
have been provided. No federal or state tax liens have been filed and no claims are being asserted
with respect to any such taxes. The charges, accruals and reserves on the books of Performance
Guarantor in respect of any taxes or other governmental charges are adequate.




40









 








          (f) Litigation and Contingent Obligations. Except as disclosed in the filings made by
Performance Guarantor with the Securities and Exchange Commission, there are no actions, suits or
proceedings pending or, to the best of Performance Guarantor’s knowledge threatened against or
affecting Performance Guarantor or any of its properties, in or before any court, arbitrator or
other body, that could reasonably be expected to have a material adverse effect on (i) the
business, properties, condition (financial or otherwise) or results of operations of Performance
Guarantor and its Subsidiaries taken as a whole, (ii) the ability of Performance Guarantor to
perform its obligations under this Undertaking, or (iii) the validity or enforceability of any of
this Undertaking or the rights or remedies of Recipient hereunder. Performance Guarantor does not
have any material Contingent Obligations not provided for or disclosed in the financial statements
referred to in Section 6(d).




          Section 7. Subrogation; Subordination. Notwithstanding anything to the contrary
contained herein, until the Guaranteed Obligations are paid in full Performance Guarantor: (a)
will not enforce or otherwise exercise any right of subrogation to any of the rights of Recipient,
any Agent, the Second Lien Agent, any Purchaser or any Second Lien Purchaser against Tenneco
Operating or Pullman, (b) hereby waives all rights of subrogation (whether contractual, under
Section 509 of the United States Bankruptcy Code, at law or in equity or otherwise) to the claims
of Recipient, the Agents, the Second Lien Agent, the Purchasers and the Second Lien Purchasers
against Tenneco Operating or Pullman and all contractual, statutory or legal or equitable rights of
contribution, reimbursement, indemnification and similar rights and “claims” (as that term is
defined in the United States Bankruptcy Code) which Performance Guarantor might now have or
hereafter acquire against Tenneco Operating or Pullman that arise from the existence or performance
of Performance Guarantor’s obligations hereunder, (c) will not claim any setoff, recoupment or
counterclaim against Tenneco Operating or Pullman in respect of any liability of Performance
Guarantor to Tenneco Operating or Pullman and (d) waives any benefit of and any right to
participate in any collateral security which may be held by Recipient, the Agents, the Second Lien
Agent, the Purchasers or the Second Lien Purchasers. The payment of any amounts due with respect to
any indebtedness of Tenneco Operating or Pullman now or hereafter owed to Performance Guarantor is
hereby subordinated to the prior payment in full of all of the Guaranteed Obligations. Performance
Guarantor agrees that, after the occurrence of any default in the payment or performance of any of
the Guaranteed Obligations, Performance Guarantor will not demand, sue for or otherwise attempt to
collect any such indebtedness of Tenneco Operating or Pullman to Performance Guarantor until all of
the Guaranteed Obligations shall have been paid and performed in full. If, notwithstanding the
foregoing sentence, Performance Guarantor shall collect, enforce or receive any amounts in respect
of such indebtedness while any Guaranteed Obligations are still unperformed or outstanding, such
amounts shall be collected, enforced and received by Performance Guarantor as trustee for Recipient
(and its assigns) and be paid over to Recipient (or its assigns) on account of the Guaranteed
Obligations without affecting in any manner the liability of Performance Guarantor under the other
provisions of this Undertaking. The provisions of this Section 7 shall be supplemental to and not
in derogation of any rights and remedies of Recipient under any separate subordination agreement
which Recipient may at any time and from time to time enter into with Performance Guarantor.




          Section 8. Termination of Performance Undertaking. Performance Guarantor’s
obligations hereunder shall continue in full force and effect until all Aggregate Unpaids are





41









 







finally paid and satisfied in full and the Purchase Agreement is terminated, provided that
this Undertaking shall continue to be effective or shall be reinstated, as the case may be, if at
any time payment or other satisfaction of any of the Guaranteed Obligations is rescinded or must
otherwise be restored or returned upon the bankruptcy, insolvency, or reorganization of Tenneco
Operating or Pullman or otherwise, as though such payment had not been made or other satisfaction
occurred, whether or not Recipient (or its assigns) is in possession of this Undertaking. No
invalidity, irregularity or unenforceability by reason of the federal bankruptcy code or any
insolvency or other similar law, or any law or order of any government or agency thereof purporting
to reduce, amend or otherwise affect the Guaranteed Obligations shall impair, affect, be a defense
to or claim against the obligations of Performance Guarantor under this Undertaking.




          Section 9. Effect of Bankruptcy. This Performance Undertaking shall survive the
insolvency of Tenneco Operating or Pullman and the commencement of any case or proceeding by or
against Tenneco Operating or Pullman under the federal bankruptcy code or other federal, state or
other applicable bankruptcy, insolvency or reorganization statutes. No automatic stay under the
federal bankruptcy code with respect to Tenneco Operating or Pullman or other federal, state or
other applicable bankruptcy, insolvency or reorganization statutes to which Tenneco Operating or
Pullman is subject shall postpone the obligations of Performance Guarantor under this Undertaking.




          Section 10. Setoff. Regardless of the other means of obtaining payment of any of the
Guaranteed Obligations, Recipient (and its assigns) is hereby authorized at any time and from time
to time, without notice to Performance Guarantor (any such notice being expressly waived by
Performance Guarantor) and to the fullest extent permitted by law, to set off and apply any
deposits and other sums against the obligations of Performance Guarantor under this Undertaking,
whether or not Recipient (or any such assign) shall have made any demand under this Undertaking and
although such obligations may be contingent or unmatured.




          Section 11. Taxes. All payments to be made by Performance Guarantor hereunder shall
be made free and clear of any deduction or withholding. If Performance Guarantor is required by
law to make any deduction or withholding on account of tax or otherwise from any such payment, the
sum due from it in respect of such payment shall be increased to the extent necessary to ensure
that, after the making of such deduction or withholding, Recipient receive a net sum equal to the
sum which they would have received had no deduction or withholding been made.




          Section 12. Further Assurances. Performance Guarantor agrees that it will from time
to time, at the request of Recipient (or its assigns), provide information relating to the business
and affairs of Performance Guarantor as Recipient may reasonably request. Performance Guarantor
also agrees to do all such things and execute all such documents as Recipient (or its assigns) may
reasonably consider necessary or desirable to give full effect to this Undertaking and to perfect
and preserve the rights and powers of Recipient hereunder.




          Section 13. Successors and Assigns. This Performance Undertaking shall be binding
upon Performance Guarantor, its successors and permitted assigns, and shall inure to the benefit of
and be enforceable by Recipient and its successors and assigns. Performance





42









 







Guarantor may not assign or transfer any of its obligations hereunder without the prior
written consent of each of Recipient and the Agents. Without limiting the generality of the
foregoing sentence, Recipient may assign or otherwise transfer the Agreements, any other documents
executed in connection therewith or delivered thereunder or any other agreement or note held by
them evidencing, securing or otherwise executed in connection with the Guaranteed Obligations, or
sell participations in any interest therein, to any other entity or other person, and such other
entity or other person shall thereupon become vested, to the extent set forth in the agreement
evidencing such assignment, transfer or participation, with all the rights in respect thereof
granted to the Beneficiaries herein.




          Section 14. Amendments and Waivers. No amendment or waiver of any provision of this
Undertaking nor consent to any departure by Performance Guarantor therefrom shall be effective
unless the same shall be in writing and signed by Recipient, the Agents and Performance Guarantor.
No failure on the part of Recipient to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other right.




          Section 15. Notices. All notices and other communications provided for hereunder
shall be made in writing and shall be addressed as follows: if to Performance Guarantor, at the
address set forth beneath its signature hereto, and if to Recipient, at the addresses set forth
beneath its signature hereto, or at such other addresses as each of Performance Guarantor or any
Recipient may designate in writing to the other. Each such notice or other communication shall be
effective (1) if given by telecopy, upon the receipt thereof, (2) if given by mail, three (3)
Business Days after the time such communication is deposited in the mail with first class postage
prepaid or (3) if given by any other means, when received at the address specified in this Section
15.




          Section 16. GOVERNING LAW. THIS UNDERTAKING SHALL BE CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS.




          Section 17. CONSENT TO JURISDICTION. EACH OF PROVIDER AND RECIPIENT HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS
STATE COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
UNDERTAKING, THE AGREEMENTS OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION THEREWITH OR DELIVERED
THEREUNDER AND EACH OF PROVIDER AND RECIPIENT HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY
WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.




          Section 18. Bankruptcy Petition. Performance Guarantor hereby covenants and agrees
that, prior to the date that is one year and one day after the payment in full of all





43









 







outstanding senior Indebtedness of each Conduit, it will not institute against, or join any
other Person in instituting against, such Conduit any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceeding under the laws of the United
States or any state of the United States.




          Section 19. Miscellaneous. This Undertaking constitutes the entire agreement of
Performance Guarantor with respect to the matters set forth herein. The rights and remedies herein
provided are cumulative and not exclusive of any remedies provided by law or any other agreement,
and this Undertaking shall be in addition to any other guaranty of or collateral security for any
of the Guaranteed Obligations. The provisions of this Undertaking are severable, and in any action
or proceeding involving any state corporate law, or any state or federal bankruptcy, insolvency,
reorganization or other law affecting the rights of creditors generally, if the obligations of
Performance Guarantor hereunder would otherwise be held or determined to be avoidable, invalid or
unenforceable on account of the amount of Performance Guarantor’s liability under this Undertaking,
then, notwithstanding any other provision of this Undertaking to the contrary, the amount of such
liability shall, without any further action by Performance Guarantor or Recipient, be automatically
limited and reduced to the highest amount that is valid and enforceable as determined in such
action or proceeding. Any provisions of this Undertaking which are prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction. Unless otherwise specified, references herein to “Section” shall mean a
reference to sections of this Undertaking.




<signature page follows>





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          IN WITNESS WHEREOF, Performance Guarantor has caused this Undertaking to be executed and
delivered as of the date first above written.




	 	 	 	 	 
	 	TENNECO INC.,

a Delaware corporation

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	Address for Notices:	 



	 	 	 	 	 
	 	 	500 North Field Drive
	 	 	Lake Forest, IL 60045
	 
	 

	 	Attention:
	 	John E. Kunz
	 

	 	Phone:
	 	(847) 482-5163
	 

	 	Fax:
	 	(847) 482-5125






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EXHIBIT XII




FORM OF INTERCREDITOR AGREEMENT


[Intentionally Omitted]





46









 








SCHEDULE A




COMMITMENTS OF COMMITTED PURCHASERS



	 	 	 	 	 	 
	Group 	 	Committed Purchaser 	 	Commitment
	Falcon Group

	 	JPMorgan Chase Bank, N.A.
	 	$	57,120,000	 
	Liberty Street
Group

	 	The Bank of Nova Scotia, New
York Agency
	 	$	44,880,000	 
	Wells Fargo Group

	 	Wells Fargo Bank, N.A.
	 	$	10,000,000	 






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SCHEDULE B




DOCUMENTS TO BE DELIVERED TO THE ADMINISTRATIVE AGENT

ON OR PRIOR TO THE EFFECTIVENESS OF THE THIRD AMENDED AND


RESTATED PURCHASE AGREEMENT




	1.	 	Omnibus Amendment No. 4 to Receivables Sale Agreements, dated as of March 26, 2010 among
Tenneco Automotive Operating Company Inc. (“Tenneco Operating”), The Pullman Company
(“Pullman”) and Tenneco Automotive RSA Company, as seller (“TARC”).
	 
	2.	 	Third Amended and Restated Receivables Purchase Agreement, dated as of March 26, 2010 (the
“Purchase Agreement”), TARC, Tenneco Operating, as servicer, Falcon Asset Securitization
Company LLC, Liberty Street Funding LLC, the Committed Purchasers party thereto, The Bank of
Nova Scotia, New York Agency, as Liberty Street Agent, Wells Fargo Bank, N.A., as Wells Fargo
Agent and JPMorgan Chase Bank, N.A., as Falcon Agent and Administrative Agent.
	 
	3.	 	Tenth Amended and Restated Fee Letter, dated as of March 26, 2010, among the Agents and TARC.
	 
	4.	 	Fourth Amended and Restated Performance Undertaking by Tenneco Inc. in favor of the Seller,
dated as of March 26, 2010.
	 
	5.	 	SLOT Receivables Purchase Agreement, dated as of March 26, 2010 among TARC, as seller,
Tenneco Operating, as servicer and Wells Fargo Bank, N.A., individually and as SLOT Agent.
	 
	6.	 	Intercreditor Agreement, dated as of March 26, 2010 among TARC, Tenneco Operating, JPMorgan
Chase Bank, N.A. and Wells Fargo Bank, N.A.
	 
	7.	 	Certificate of a Secretary or Assistant Secretary of TARC certifying as to (i) an attached
copy of resolutions adopted by the board of directors of TARC approving the delivery and
performance of the documents described in items 1-4, 5 and 6 above, (ii) an attached copy of
TARC’s Articles of Incorporation, (iii) an attached copy of TARC’s By-Laws, (iv) attached
recent certificates of good standing from the Secretaries of State of the States of Illinois
and Delaware regarding TARC and (v) the names, title and specimen signatures of TARC’s
officers authorized to execute and deliver the documents described in items 1-4, 5 and 6
above.
	 
	8.	 	Certificate of a Secretary or Assistant Secretary of Tenneco Operating certifying as to (i)
an attached copy of resolutions adopted by the board of directors of Tenneco Operating
approving the delivery and performance of documents described in items 1, 2, 5 and 6 above,
(ii) an attached copy of Tenneco Operating’s Articles of Incorporation, (iii) an attached copy
of Tenneco Operating’s By-Laws, (iv) attached recent certificates of good standing from the
Secretaries of State of the States of Illinois and Delaware regarding





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	 	 	Tenneco Operating and (v) the names, title and specimen signatures of Tenneco Operating’s
officers authorized to execute and deliver the documents described in items 1, 2, 5 and 6
above.
	 
	9.	 	Certificate of a Secretary or Assistant Secretary of Pullman certifying as to (i) an attached
copy of resolutions adopted by the board of directors of Pullman approving the delivery and
performance of the document described in item 1 above, (ii) an attached copy of Pullman’s
Articles of Incorporation, (iii) an attached copy of Pullman’s By-Laws, (iv) attached recent
certificates of good standing from the Secretaries of State of the States of Illinois and
Delaware regarding Pullman and (v) the names, title and specimen signatures of Pullman’s
officers authorized to execute and deliver the document described in item 1 above.
	 
	10.	 	Certificate of a Secretary or Assistant Secretary of Tenneco Automotive certifying as to (i)
an attached copy of resolutions adopted by the board of directors of Tenneco Automotive
approving the delivery and performance of the Fourth Amended and Restated Performance
Undertaking, (ii) an attached copy of Tenneco Automotive’s Articles of Incorporation, (iii) an
attached copy of Tenneco Automotive’s By-Laws, (iv) attached recent certificates of good
standing from the Secretary of State of the State of Delaware regarding Tenneco Automotive and
(v) the names, title and specimen signatures of Tenneco Automotive’s officers authorized to
execute and deliver the Fourth Amended and Restated Performance Undertaking.
	 
	11.	 	Certificate of TARC certifying as of March 26, 2010 (i) that no Amortization Event or
Potential Amortization Event has occurred and is continuing under the Purchase Agreement and
(ii) the accuracy of all representations and warranties made by TARC under the Purchase
Agreement.
	 
	12.	 	UCC, federal and state tax lien, and pending suit and judgment searches against TARC.
	 
	13.	 	Opinion of Mayer Brown regarding enforceability with respect to the documents described in
items 1-6 above.
	 
	14.	 	Opinion of in-house counsel regarding certain corporate matters.
	 
	15.	 	Monthly Report as of February 28, 2010.






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