EXHIBIT 4.8
EXECUTION COPY
LENDERS LIEN SUBORDINATION AND INTERCREDITOR
AGREEMENT
dated as of
April 8, 2005,
among
JPMORGAN CHASE BANK, N.A.,
as First Lien Collateral Agent,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Second Lien Collateral Agent
and
THE GOODYEAR TIRE & RUBBER
COMPANY
and the Subsidiaries named herein
[CS&M 6701-315]
LENDERS LIEN
SUBORDINATION AND INTERCREDITOR AGREEMENT dated as of April 8,
2005, among JPMORGAN CHASE BANK, N.A., as collateral agent for the
*First Lien Secured Parties referred to herein; DEUTSCHE BANK TRUST
COMPANY AMERICAS, as collateral agent for the *Second Lien Secured
Parties referred to herein; THE GOODYEAR TIRE & RUBBER COMPANY;
and the subsidiaries of The Goodyear Tire & Rubber Company
named herein.
Reference
is made to the Credit Agreements (such term, and each other
capitalized term used and not otherwise defined herein, having the
meaning assigned to it in Article I), under which the Lenders
referred to therein have extended and agreed to extend credit to
the Company and certain of its subsidiaries. In consideration of
the mutual agreements herein contained and other good and valuable
consideration, the receipt of which is hereby acknowledged, the
First Lien Collateral Agent (for itself and on behalf of the First
Lien Secured Parties), the Second Lien Collateral Agent (for itself
and on behalf of the Second Lien Secured Parties), the Company and
the subsidiaries of the Company named herein agree as
follows:
ARTICLE I
Definitions
SECTION
1.01. Construction; Certain Defined Terms . (a) The
definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed
to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning
and effect as the word “shall”. Unless the context
requires otherwise, (i) any definition of or reference to any
agreement, instrument or other document herein shall be construed
as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified, (ii)
any reference herein to any person shall be construed to include
such person’s successors and assigns, but shall not be deemed
to include the subsidiaries of such person unless express reference
is made to such subsidiaries, (iii) the words
“herein”, “hereof” and
“hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (iv) all references herein to
Articles and Sections shall be construed to refer to Articles and
Sections of this Agreement and (v) the words
“asset” and “property” shall be construed
to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
(b) As
used in this Agreement, the following terms have the meanings
specified below:
“Bankruptcy Code” means Title 11 of the U.S.
Code.
“Collateral” means the First Lien Obligations
Collateral and the Second Lien Obligations Collateral.
“Collateral Agents” means the First Lien
Collateral Agent and the Second Lien Collateral Agent.
“Company” means The Goodyear Tire & Rubber
Company, an Ohio corporation.
“Credit Agreements” means the First Lien Credit
Agreement and the Second Lien Credit Agreement.
“First Lien Collateral Agent” means JPMorgan
Chase Bank, N.A., in its capacity as Collateral Agent under the
First Lien Credit Agreement and the First Lien Security Documents,
and its successors in such capacity.
“First Lien Credit Agreement” means the First
Lien Credit Agreement dated as of the date hereof among the
Company, certain lenders, certain issuing banks, Citicorp USA,
Inc., as syndication agent, and JPMCB, as administrative agent and
as collateral agent, as such agreement may be amended, restated,
waived, replaced (whether or not upon termination and whether with
the original lenders or otherwise), refinanced, restructured or
otherwise modified from time to time.
“First Lien Guarantee and Collateral Agreement”
means the First Lien Guarantee and Collateral Agreement dated as of
April 8, 2005, among the Company, certain of its subsidiaries
and the First Lien Collateral Agent, as amended, extended, renewed,
restated, supplemented or otherwise modified from time to time or
as replaced in connection with any refinancing or replacement of
the First Lien Credit Agreement.
“First Lien Obligations” means (a) all
“Obligations”, as such term is defined in the First
Lien Credit Agreement, in respect of the repayment or prepayment of
loans and the reimbursement of drawings under or cash
collateralization of letters of credit, in an aggregate principal
or stated amount not greater than the aggregate Commitments under
the First Lien Credit Agreement on the date hereof, and all related
interest and fees; (b) additional “Obligations”,
as such term is defined in the First Lien Credit Agreement, in
respect of the repayment or prepayment of loans and the
reimbursement of drawings under or cash collateralization of
letters of credit, and all related interest and fees, to the extent
the incurrence of the Obligations referred to in this clause (b)
shall have been permitted under the Second Lien Credit Agreement
and any prepayment required in connection with such incurrence
under Section 2.07(c) of the Second Lien Credit Agreement
shall have been made; (c) all “Obligations”, as
such term is defined in the First Lien Credit Agreement, other than
in respect of the repayment or prepayment of loans and the
reimbursement of drawings under or cash collateralization of
letters of credit and related interest and fees, including all
obligations in respect of fees not related to specific loans or
letters of credit, reimbursement of costs and expenses (including
expenses of enforcement), indemnities and yield maintenance
obligations; and
(d) all “Miscellaneous
Obligations”, as such term is defined in the First Lien
Guarantee and Collateral Agreement.
“First Lien Obligations Collateral” means all
“Collateral”, as defined in the First Lien Guarantee
and Collateral Agreement, securing any First Lien Obligations, and
any other assets or properties of the Company or any of its
subsidiaries now or at any time hereafter subject to Liens securing
any First Lien Obligations.
“First Lien Security Documents” means the First
Lien Guarantee and Collateral Agreement, the “Other Security
Documents”, as defined therein, and any other documents now
existing or entered into after the date hereof that create Liens on
any assets or properties of the Company or any of its subsidiaries
to secure any First Lien Obligations.
“First Lien Secured Parties” means, at any time,
each person that is a “Secured Party” under and as
defined in the First Lien Guarantee and Collateral
Agreement.
“First Liens” mean Liens created under First
Lien Security Documents securing First Lien Obligations.
“Grantor” means the Company and each subsidiary
of the Company that shall have created any First Lien or Second
Lien on its assets or properties to secure any First Lien
Obligations or Second Lien Obligations.
“Lien” means any pledge, security interest,
mortgage or other lien or encumbrance created to secure any
indebtedness or other obligation.
“Lien Subordination and Intercreditor Agreement”
means the Lien Subordination and Intercreditor Agreement dated as
of March 12, 2004, among (a) JPMCB, as collateral agent
for holders of the “US Facilities Obligations”, as
defined therein, (b) pursuant to an Accession Agreement
delivered under Section 4.01 thereof, JPMCB, as Collateral
Agent for the First Lien Secured Parties, (c) pursuant to an
Accession Agreement delivered under Section 4.01 thereof,
Deutsche Bank Trust Company Americas, as collateral agent for the
Second Lien Secured Parties, (d) Wilmington Trust Company, as
collateral agent for holders of the Initial Junior Indebtedness, as
defined therein, (e) pursuant to an Accession Agreement
delivered under Section 4.01 thereof, Wilmington Trust
Company, as collateral agent for holders of the
“Obligations” as defined in the Third Lien Agreement,
and (f) the Company and the subsidiaries of the Company party
thereto, as amended from time to time.
“Representative” means the Administrative Agent
or Collateral Agent under the applicable Credit
Agreement.
“Second Lien Collateral Agent” means Deutsche
Bank Trust Company Americas, in its capacity as Collateral Agent
under the Second Lien Credit Agreement and the Second Lien Security
Documents, and its successors in such capacity.
“Second Lien Credit Agreement” means the Second
Lien Credit Agreement dated as of the date hereof among the
Company, certain lenders, JPMCB, as administrative agent, and
Deutsche Bank Trust Company Americas, as collateral agent, as such
agreement may be amended, restated, waived, restructured or
otherwise modified from time to time.
“Second Lien Guarantee and Collateral Agreement”
means the Second Lien Guarantee and Collateral Agreement dated as
of April 8, 2005, among the Company, certain of its
subsidiaries and the Second Lien Collateral Agent, as amended,
extended, renewed, restated, supplemented or otherwise modified
from time to time.
“Second Lien Obligations” means all
“Obligations”, as such term is defined in the Second
Lien Credit Agreement.
“Second Lien Obligations Collateral” means all
“Collateral”, as defined in the Second Lien Guarantee
and Collateral Agreement, securing any Second Lien Obligations, and
any other assets or properties of the Company or any of its
subsidiaries now or at any time hereafter subject to Liens securing
any Second Lien Obligations.
“Second Lien Security Documents” means the
Second Lien Guarantee and Collateral Agreement, the “Other
Security Documents”, as defined therein, and any other
documents now existing or entered into after the date hereof that
create Liens on any assets or properties of the Company or any of
its subsidiaries to secure any Second Lien Obligations.
“Second Lien Secured Parties” means, at any
time, each person that is a “Secured Party” under and
as defined in the Second Lien Guarantee and Collateral
Agreement.
“Second Liens” means Liens created under any
Second Lien Security Documents securing Second Lien Obligations and
any other Liens securing the Second Lien Obligations, however
arising (including Liens arising out of judgments obtained by or on
behalf of holders of Second Lien Obligations).
“Secured Parties” means the First Lien Secured
Parties and the Second Lien Secured Parties.
“subsidiary” means, with respect to any Person
(the “ parent ”) at any date, any corporation,
limited liability company, partnership, association or other entity
the accounts of which are consolidated with those of the parent in
the parent’s consolidated financial statements in accordance
with GAAP as of such date, as well as any other corporation,
limited liability company, partnership, association or other entity
of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned,
controlled or held by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the
parent.
ARTICLE II
Subordination of Second Liens
SECTION
2.01. Subordination of Second Liens. (a) All Second
Liens in respect of any Collateral are expressly subordinated and
made junior in right, priority, operation and effect to any and all
First Liens in respect of such Collateral, notwithstanding anything
contained in this Agreement, the Second Lien Credit Agreement, any
Second Lien Security Document or any other agreement or instrument
to the contrary, and irrespective of the time, order or method of
creation, attachment or perfection of such Second Liens and First
Liens or any defect or deficiency or alleged defect or deficiency
in any of the foregoing.
(b) It
is acknowledged that (i) the aggregate amount of the First
Lien Obligations may be increased as contemplated in the definition
of such term, (ii) a portion of the First Lien Obligations
consists or may consist of Indebtedness that is revolving in
nature, and the amount thereof that may be outstanding at any time
or from time to time may be increased or reduced and subsequently
reborrowed and (iii) the First Lien Obligations may be
extended, renewed or otherwise amended or modified, or secured with
additional Collateral (the Liens on which, to the extent they
secure First Lien Obligations, shall become First Liens), from time
to time, all without affecting the subordination of the Second
Liens hereunder or the provisions of this Agreement defining the
relative rights of the First Lien Secured Parties and the Second
Lien Secured Parties. The lien priorities provided for herein shall
not be altered or otherwise affected by any amendment,
modification, supplement, extension, increase, renewal or
restatement of either the Second Lien Obligations or the First Lien
Obligations, by the securing of any First Lien Obligations with any
additional Collateral or guarantees (the Liens on which, to the
extent they secure First Lien Obligations, shall become First
Liens), by the release of any Collateral or Guarantees securing any
First Lien Obligations, by the failure of any person to comply with
any provision of this Agreement or any agreement evidencing,
governing or securing any First Lien Obligation or Second Lien
Obligation, or by any action that any Collateral Agent or Secured
Party may take or fail to take in respect of any Collateral.
Without limiting the foregoing, existing or future First Lien
Obligations of any class may be secured by Collateral subject to
Second Liens, and the Liens on such Collateral securing such First
Lien Obligations will constitute First Liens entitled to the
benefit of this Agreement.
(c) It
is further acknowledged that the First Lien Obligations are or may
in the future be secured by Liens on Collateral other than the
Collateral subject to the Second Liens, including Liens on certain
real properties of the Company and its subsidiaries. It is agreed
that the First Lien Collateral Agent will have no obligations to
proceed against any such other Collateral securing the First Lien
Obligations or to exercise any other remedies available to it as a
condition to obtaining the benefits of this
Article II.
(d) The
Second Lien Collateral Agent acknowledges receipt of copies of the
First Lien Credit Agreement and the First Lien Guarantee and
Collateral Agreement as in effect on the date hereof. The Company
hereby represents, warrants and confirms that the Second Lien
Credit Agreement and the principal Second Lien Security Documents
(other than any account control or “lock-box”
agreements) contain the provisions set forth in Annex I hereto
under which the Second Lien Secured Parties agree to, and subject
their rights to the provisions of, this Agreement as set forth
therein.
SECTION
2.02. No Action With Respect to Second Lien Obligations
Collateral Subject to First Liens. Neither the Second Lien
Collateral Agent nor any other Second Lien Secured Party shall
commence or instruct the Second Lien Collateral Agent to commence
any judicial or nonjudicial foreclosure proceedings with respect
to, seek to have a trustee, receiver, liquidator or similar
official appointed for or over, attempt any action to take
possession of, exercise any right, remedy or power with respect to,
or otherwise take any action to enforce its interest in or realize
upon, or take any other action available to it in respect of, any
Second Lien Obligations Collateral under any Second Lien Security
Document, applicable law or otherwise, at any time when such Second
Lien Obligations Collateral shall be subject to any First Lien and
any First Lien Obligations secured by such First Lien shall remain
outstanding or any commitment to extend credit that would
constitute First Lien Obligations secured by such First Lien shall
remain in effect, it being agreed that only the First Lien
Collateral Agent, acting in accordance with the First Lien Security
Documents, shall be entitled to take any such actions or exercise
any such remedies. Notwithstanding the foregoing, any Second Lien
Collateral Agent may, subject to Section 2.05, take all such
actions as it shall deem necessary to continue the perfection of
the Second Liens on any Second Lien Obligations
Collateral.
SECTION
2.03. No Duties of First Lien Collateral Agent. Each Second
Lien Secured Party acknowledges and agrees that neither the First
Lien Collateral Agent nor any other First Lien Secured Party shall
have any duties or other obligations to such Second Lien Secured
Party with respect to any First Lien Obligations Collateral, other
than to transfer to the Second Lien Collateral Agent any proceeds
of any such Collateral that constitutes Second Lien Obligations
Collateral remaining in its possession following any sale, transfer
or other disposition of such Collateral, the payment and
satisfaction in full of the First Lien Obligations secured thereby
and the termination of any commitment to extend credit that would
constitute First Lien Obligations secured thereby, or, if the First
Lien Collateral Agent shall be in possession of all or any part of
such Collateral after such payment and satisfaction in full and
termination, such Collateral or any part thereof remaining, in each
case without representation or warranty on the part of the First
Lien Collateral Agent or any other First Lien Secured Party. In
furtherance of the foregoing, each Second Lien Secured Party
acknowledges and agrees that until the First Lien Obligations
secured by any Collateral shall have been paid and satisfied in
full and any commitment to extend credit that would constitute
First Lien Obligations secured thereby shall have been terminated,
the First Lien Collateral Agent shall be entitled, for the benefit
of the holders of the First Lien Obligations, to sell, transfer or
otherwise dispose of or deal with such Collateral as provided
herein and in the First Lien Security Documents, without regard to
any Second Lien or any rights to which the holders of
the
Second Lien Obligations would
otherwise be entitled as a result of such Second Lien. Without
limiting the foregoing, each Second Lien Secured Party agrees that
neither the First Lien Collateral Agent nor any other First Lien
Secured Party shall have any duty or obligation first to marshall
or realize upon any type of Collateral (or any other collateral
securing the First Lien Obligations), or to sell,
dispose
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