LIEN SUBORDINATION AND INTERCREDITOR AGREEMENT

 

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                                                                    EXHIBIT 4.15

 

 

                 LIEN SUBORDINATION AND INTERCREDITOR AGREEMENT

 

                                   dated as of

 

                                 March 12, 2004,

 

                                       among

 

                              JPMORGAN CHASE BANK,

 

                     as Credit Facilities Collateral Agent,

 

                            WILMINGTON TRUST COMPANY,

 

                 as Initial Junior Indebtedness Collateral Agent

 

                                       and

 

                       THE GOODYEAR TIRE & RUBBER COMPANY

 

                        and the Subsidiaries named herein

 

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                                    LIEN SUBORDINATION AND INTERCREDITOR

                           AGREEMENT dated as of March 12, 2004, among JPMORGAN

                           CHASE BANK, as collateral agent for the Credit

                            Facility Secured Parties referred to herein;

                           WILMINGTON TRUST COMPANY, as collateral agent for the

                           Initial Junior Indebtedness 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 (a) 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, and (b) the Initial Junior Indebtedness Governing Document, under

which the Company proposes to issue the Initial Junior Indebtedness. In

consideration of the amendment of the Credit Agreements to permit the issuance

of the Initial Junior Indebtedness, the purchase of the Initial Junior

Indebtedness by the purchasers thereof, the mutual agreements herein contained

and other good and valuable consideration, the receipt of which is hereby

acknowledged, the Credit Facilities Collateral Agent (for itself and on behalf

of the Credit Facilities Secured Parties), the Initial Junior Indebtedness

Collateral Agent (for itself and on behalf of the Initial Junior Indebtedness

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.

 

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            (b) As used in this Agreement, the following terms have the meanings

specified below:

 

            "ABL Facilities Agreement" means the Term Loan and Revolving Credit

Agreement dated as of March 31, 2003, among the Company, certain lenders,

JPMorgan Chase Bank, as administrative agent, Citicorp USA Inc., as syndication

agent, and Bank of America, N.A. and The CIT Group/Business Credit, Inc., as

documentation agents, as amended, extended, renewed, restated, supplemented or

otherwise modified from time to time.

 

            "Accession Agreement" means an accession agreement in substantially

the form of Annex I hereto under which a collateral agent or similar

Representative of Designated Senior Obligations or Designated Junior Obligations

shall become a party hereto and the Designated Senior Obligations Collateral

Agent for such Designated Senior Obligations or the Designated Junior

Obligations Collateral Agent for such Designated Junior Obligations hereunder,

as the case may be.

 

            "Bankruptcy Code" means Title 11 of the U.S. Code.

 

            "Collateral" means the US Facilities Collateral, the Designated

Senior Obligations Collateral, the Initial Junior Indebtedness Collateral and

the Designated Junior Obligations Collateral.

 

            "Collateral Agent" means any of the Credit Facilities Collateral

Agent, any Designated Senior Obligations Collateral Agent, the Initial Junior

Indebtedness Collateral Agent and any Designated Junior Obligations Collateral

Agent.

 

            "Company" means The Goodyear Tire & Rubber Company, an Ohio

corporation.

 

            "Credit Agreements" means the US Facilities Credit Agreements and

the European Facilities Credit Agreement.

 

            "Credit Facilities Collateral Agent" means JPMorgan Chase Bank, in

its capacity as Collateral Agent under the Credit Agreements and the Credit

Facilities Security Documents, and its successors in such capacity.

 

            "Credit Facilities Obligations" means the US Facilities Obligations

and the European Facilities Obligations.

 

            "Credit Facilities Secured Parties" means the US Facilities Secured

Parties and the European Facilities Secured Parties.

 

            "Credit Facilities Security Documents" means the Master 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 Credit Facilities Obligations.

 

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            "Designated Junior Obligations" means all obligations of the Company

or any of its subsidiaries that shall have been designated as such in accordance

with Article IV, including any Guarantee of any such obligations by the Company

or any of its subsidiaries.

 

            "Designated Junior Obligations Collateral" means any assets or

properties of the Company or any of its subsidiaries now or at any time

hereafter subject to Liens securing any Designated Junior Obligations.

 

            "Designated Junior Obligations Collateral Agent" means, with respect

to any Designated Junior Obligations, any collateral agent or similar

Representative appointed to act on behalf of the applicable Designated Junior

Obligations Secured Parties with respect to the Designated Junior Obligations

Collateral securing such Designated Junior Obligations; provided, that if no

such collateral agent or other Representative shall have been so appointed by

the applicable Designated Junior Obligations Secured Parties, then the

Designated Junior Obligations Collateral Agent with respect to such Designated

Junior Obligations will be deemed to be such Designated Junior Obligations

Secured Parties.

 

            "Designated Junior Obligations Governing Documents" means, as to any

Designated Junior Obligations, the credit agreement, note agreement, indenture

or other instrument or document under which such Designated Junior Obligations

shall have been issued or incurred.

 

            "Designated Junior Obligations Secured Parties" means, at any time,

each holder of, or obligee in respect of, any Designated Junior Obligations

outstanding at such time.

 

            "Designated Junior Obligations Security Documents" means any

documents that create Liens on any assets or properties of the Company or any of

its subsidiaries to secure any Designated Junior Obligations.

 

            "Designated Lenders" means, at any time, the Majority Lenders under

and as defined in the Credit Agreement that accounts for the greatest principal

amount of the aggregate outstanding loans and letter of credit exposures under

all the Credit Agreements at such time.

 

            "Designated Senior Obligations" means all obligations of the Company

or any of its subsidiaries that shall have been designated as such in accordance

with Article IV.

 

            "Designated Senior Obligations Collateral" means any assets or

properties of the Company or any of its subsidiaries now or at any time

hereafter subject to Liens securing any Designated Senior Obligations.

 

             "Designated Senior Obligations Collateral Agent" means, with respect

to any Designated Senior Obligations, any collateral agent or similar

Representative appointed to act on behalf of the applicable Designated Senior

Obligations Secured

 

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Parties with respect to the Designated Senior Obligations Collateral securing

such Designated Senior Obligations; provided, that if no such collateral agent

or other Representative shall have been so appointed by the applicable

Designated Senior Obligations Secured Parties, then the Designated Senior

Obligations Collateral Agent with respect to such Designated Senior Obligations

will be deemed to be such Designated Senior Obligations Secured Parties.

 

            "Designated Senior Obligations Governing Documents" means, as to any

Designated Senior Obligations, the credit agreement, note agreement, indenture

or other instrument or document under which such Designated Senior Obligations

shall have been issued or incurred.

 

            "Designated Senior Obligations Secured Parties" means, at any time,

each holder of, or obligee in respect of, any Designated Senior Obligations

outstanding at such time.

 

            "Designated Senior Obligations Security Documents" means any

documents 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 Designated

Senior Obligations.

 

            "European Facilities Credit Agreement" means the $650,000,000 Term

Loan and Revolving Credit Agreement dated as of March 31, 2003, among Goodyear

Dunlop Tires Europe B.V., the other borrowers thereunder, certain lenders,

JPMorgan Chase Bank, as administrative agent, and Deutsche Bank AG, as

syndication agent, as amended, extended, renewed, restated, supplemented or

otherwise modified from time to time.

 

            "European Facilities Guarantees" means the guarantees by the Company

and the US Subsidiary Guarantors, under Article II of the Master Guarantee and

Collateral Agreement, of the European Facilities Obligations.

 

            "European Facilities Obligations" means all "Revolving Obligations"

as such term is defined in the European Facilities Credit Agreement and, if the

Credit Facilities Security Documents shall at any time be amended to provide

collateral for the guarantees thereof by the Company and any of the US

Subsidiary Guarantors, all "Term Obligations" as such term is defined in the

European Facilities Credit Agreement.

 

            "European Facilities Secured Parties" means, at any time, each

person that is a "Secured Party" under and as defined in the European Facilities

Credit Agreement and each other holder of, or obligee in respect of, any

European Facilities Obligations outstanding at such time.

 

            "European Facilities US Collateral" means all Collateral subject to

European Facilities US Liens.

 

            "European Facilities US Liens" means Liens on assets and properties

of the Company and the US Subsidiary Guarantors (other than the Luxembourg

Finance

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Pledged Collateral) created under Credit Facilities Security Documents to secure

the European Facilities Guarantees.

 

            "Grantor" means the Company and each subsidiary of the Company that

shall have created any Senior Lien or Junior Lien on its assets or properties to

secure any Senior Obligations or Junior Obligations.

 

            "Initial Junior Indebtedness" means the $450,000,000 aggregate

principal amount of 11% Senior Secured Notes due 2011 and $200,000,000 aggregate

principal amount of Senior Secured Floating Rate Notes due 2011 issued on or

about the date of this Agreement pursuant to the Initial Junior Indebtedness

Governing Document.

 

            "Initial Junior Indebtedness Collateral" means the "Collateral", as

defined in the Initial Junior Indebtedness Collateral Agreement, 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 Initial Junior Indebtedness

Obligations.

 

            "Initial Junior Indebtedness Collateral Agent" means Wilmington

Trust Company, in its capacity as Collateral Agent under the Initial Junior

Indebtedness Governing Document and the Initial Junior Indebtedness Security

Documents, and its successors in such capacity.

 

            "Initial Junior Indebtedness Collateral Agreement" means the

Collateral Agreement dated as of March 12, 2004, among the Company, certain

subsidiaries of the Company and the Initial Junior Indebtedness Collateral

Agent, as amended, extended, renewed, restated, supplemented or otherwise

modified from time to time.

 

            "Initial Junior Indebtedness Governing Document" means the Indenture

dated as of March 12, 2004, among the Company, as Issuer, certain subsidiaries

of the Company, as Guarantors, and Wells Fargo Bank, N.A., as Trustee, as

amended, extended, renewed, restated, supplemented or otherwise modified from

time to time.

 

            "Initial Junior Indebtedness Obligations" means (a) the due and

punctual payment of (i) the principal of and interest (including interest

accruing during the pendency of any bankruptcy, insolvency, receivership or

other similar proceeding, regardless of whether allowed or allowable in such

proceeding) on the Initial Junior Indebtedness, when and as due, whether at

maturity, by acceleration, upon one or more dates set for prepayment or

otherwise, (ii) all other monetary obligations of the Company or any of its

subsidiaries to any of the Initial Junior Indebtedness Secured Parties under the

Initial Junior Indebtedness Governing Document or any Initial Junior

Indebtedness Security Document, including fees, costs, expenses and indemnities,

whether primary, secondary, direct, contingent, fixed or otherwise (including

monetary obligations incurred during the pendency of any bankruptcy, insolvency,

receivership or other similar proceeding, regardless of whether allowed or

allowable in such proceeding) and (iv) all amounts due under any guarantee of

any of the foregoing, including any guarantee contained in the Initial Junior

Indebtedness Governing Document, and (b) the due and punctual performance of all

other obligations of the Company or any of its subsidiaries to

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any of the Initial Junior Indebtedness Secured Parties under the Initial Junior

Indebtedness Governing Document or any Initial Junior Indebtedness Security

Document.

 

            "Initial Junior Indebtedness Representative" means Wells Fargo bank,

N.A., in its capacity as Trustee under the Initial Junior Indebtedness Governing

Document.

 

            "Initial Junior Indebtedness Secured Parties" means, at any time,

the Initial Junior Indebtedness Collateral Agent, the Initial Junior Obligations

Representative and each other holder of, or obligee in respect of, any Initial

Junior Indebtedness Obligations outstanding at such time.

 

             "Initial Junior Indebtedness Security Documents" means the Initial

Junior Indebtedness Collateral Agreement and the "Other Security Documents", as

defined therein, and any other documents 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 Initial Junior Indebtedness Obligations.

 

            "Junior Collateral Agent" means the Initial Junior Indebtedness

Collateral Agent and each Designated Junior Obligations Collateral Agent.

 

            "Junior Liens" means Liens created under Junior Obligations Security

Documents securing Junior Obligations and any other Liens securing the Junior

Obligations, however arising (including Liens arising out of judgments obtained

by or on behalf of holders of Junior Obligations).

 

            "Junior Obligations" means the Initial Junior Indebtedness

Obligations and the Designated Junior Obligations.

 

            "Junior Obligations Collateral" means the Initial Junior

Indebtedness Collateral and the Designated Junior Obligations Collateral.

 

            "Junior Obligations Secured Parties" means the Initial Junior

Indebtedness Secured Parties and the Designated Junior Obligations Secured

Parties.

 

            "Junior Obligations Security Documents" means the Initial Junior

Indebtedness Security Documents and the Designated Junior Obligations Security

Documents.

 

            "Lien" means any pledge, security interest, mortgage or other lien

or encumbrance created to secure any indebtedness or other obligation.

 

            "Master Guarantee and Collateral Agreement" means the Master

Guarantee and Collateral Agreement dated as of March 31, 2003, among the

Company, certain of its subsidiaries, the Lenders under and as defined in the

Credit Agreements and the Credit Facilities Collateral Agent, as amended,

extended, renewed, restated, supplemented or otherwise modified from time to

time.

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            "Representative" means (a) in the case of any Credit Facility

Obligations, the Administrative Agent under the applicable Credit Agreement or

the Credit Facilities Collateral Agent, (b) in the case of the Initial Junior

Indebtedness Obligations, the Initial Junior Indebtedness Representative and the

Initial Junior Indebtedness Collateral Agent, and (c) in the case of any

Designated Senior Obligations or Designated Junior Obligations, any

administrative agent, trustee or similar representative designated pursuant to

Article IV or the applicable Designated Senior Obligations Collateral Agent or

Designated Junior Obligations Collateral Agent.

 

            "Secured Parties" means the Credit Facilities Secured Parties, the

Designated Senior Obligations Secured Parties, the Initial Junior Indebtedness

Secured Parties and the Designated Junior Obligations Secured Parties.

 

            "Senior Collateral Agent" means the Credit Facilities Collateral

Agent and each Designated Senior Obligations Collateral Agent.

 

            "Senior Obligations" means the US Facilities Obligations and the

Designated Senior Obligations.

 

            "Senior Obligations Collateral" means the US Facilities Collateral

and the Designated Senior Obligations Collateral.

 

            "Senior Obligations Secured Parties" means the US Facilities Secured

Parties and the Designated Senior Obligations Secured Parties.

 

            "Senior Obligations Security Documents" means the Credit Facilities

Security Documents and the Designated Senior Obligations Security Documents.

 

            "Senior Liens" means Liens created under Senior Obligations Security

Documents securing Senior Obligations, and Liens on the Luxembourg Finance

Pledged Collateral (as defined in the Master Guarantee and Collateral Agreement)

created under the Senior Obligations Security Documents to secure the European

Facilities Obligations.

 

            "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.

 

            "US Facilities Collateral" means all "Collateral", as defined in the

Master Guarantee and Collateral Agreement, securing any US Facilities

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 US

Facilities Obligations.

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            "US Facilities Credit Agreements" means the ABL Facilities

Agreement, the US Revolving Facility Agreement and the US Term Facility

Agreement.

 

            "US Facilities Obligations" means (a) all "Obligations", as such

term is defined in any of the US Revolving Facility Agreement, the US Term

Facility Agreement or the ABL Facilities Agreement, each as amended and in

effect through the date hereof, whether such Obligations are outstanding on the

date hereof or hereafter incurred under commitments in effect on the date hereof

(including Obligations consisting of the principal of and interest on the

"Tranche B Term Loans" provided for in the First Amendment dated as of February

17, 2004, to the ABL Facilities Agreement and Obligations related to such

Tranche B Term Loans), (b) additional Obligations consisting of loans, letter of

credit reimbursement obligations and related interest and fees incurred under

any of the US Revolving Facility Agreement, the US Term Facility Agreement or

the ABL Facilities Agreement pursuant to commitments first made available to the

Company or any of its subsidiaries after the date hereof (it being agreed that

an increase in the amount of letters of credit or other accommodations available

under, and limited to the amount of, a revolving credit or similar commitment in

effect on the date hereof shall not be deemed to be new commitment) and (c) all

"Collateral Agent Obligations" and "US Miscellaneous Obligations", as such terms

are defined in the Master Guarantee and Collateral Agreement; provided, that any

loans or letter of credit reimbursement obligations referred to in clause (b)

above shall (together with any related interest or fees) be excluded from the

"US Facilities Obligations" to the extent they are incurred in violation of the

Initial Junior Indebtedness Governing Document or any Designated Junior

Obligations Governing Document in effect at the earlier of (i) the time of such

incurrence or (ii) the time at which the commitments under which such

obligations are incurred were first made available.

 

            "US Facilities Secured Parties" means, at any time, each person that

is a "Secured Party" under and as defined in any of the US Facilities Credit

Agreements and each other holder of, or obligee in respect of, any US Facilities

Obligations outstanding at such time.

 

            "US Revolving Facility Agreement" means the $750,000,000 Amended and

Restated Revolving Credit Agreement dated as of March 31, 2003, among the

Company, certain lenders and JPMorgan Chase Bank, as administrative agent, as

amended, extended, renewed, restated, supplemented or otherwise modified from

time to time.

 

            "US Subsidiary Guarantors" has the meaning assigned to such term in

the Master Guarantee and Collateral Agreement.

 

            "US Term Facility Agreement" means the $645,454,545 Term Loan

Agreement dated as of March 31, 2003, among the Company, certain lenders,

JPMorgan Chase Bank, as administrative agent, and BNP Paribas, as syndication

agent, as amended, extended, renewed, restated, supplemented or otherwise

modified from time to time.

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                                   ARTICLE II

 

                          Subordination of Junior Liens

 

            SECTION 2.01. Subordination of Junior Liens. (a) All Junior Liens in

respect of any Collateral are expressly subordinated and made junior in right,

priority, operation and effect to any and all Senior Liens in respect of such

Collateral, notwithstanding anything contained in this Agreement, the Initial

Junior Indebtedness Governing Document, any Designated Junior Obligations

Governing Document, any Junior Obligations 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 Junior Liens and Senior

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 Senior

Obligations may be increased as provided in Article III or through increases in

the amounts of the facilities established by the US Facilities Credit Agreements

or the Designated Senior Obligations Governing Documents (subject to the

limitations set forth in the Initial Junior Indebtedness Governing Document and

the Designated Junior Obligations Governing Documents), (ii) a portion of the

Senior 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

Senior Obligations may be extended, renewed or otherwise amended or modified, or

secured with additional Collateral (the Liens on which, to the extent they

secure Senior Obligations, shall become Senior Liens), from time to time, all

without affecting the subordination of the Junior Liens hereunder or the

provisions of this Agreement defining the relative rights of the Senior

Obligations Secured Parties and the Junior Obligations Secured Parties. The lien

priorities provided for herein shall not be altered or otherwise affected by any

amendment, modification, supplement, extension, increase, replacement, renewal,

restatement or refinancing of either the Junior Obligations or the Senior

Obligations, by the securing of any Senior Obligations with any additional

Collateral or guarantees (the Liens on which, to the extent they secure Senior

Obligations, shall become Senior Liens), by the release of any Collateral or

Guarantees securing any Senior Obligations, by the failure of any person to

comply with any provision of this Agreement or any agreement evidencing,

governing or securing any Senior Obligation or Junior 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

Senior Obligations of any class may be secured by Collateral subject to Junior

Liens, and the Liens on such Collateral securing such Senior Obligations will

constitute Senior Liens entitled to the benefit of this Agreement.

 

            (c) It is further acknowledged (i) that the Master Guarantee and

Collateral Agreement contains provisions subordinating certain of the Senior

Liens to other Senior Liens and (ii) that the holders of Senior Obligations of

one or more classes may from time to time hereafter enter into agreements

establishing the relative priorities of such classes of Senior Obligations or of

the Senior Liens securing the same. It is agreed that the relative priorities of

classes of Senior Obligations shall be governed by the foregoing

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agreements or, to the extent not determined by such agreements, by applicable

law, and that nothing in this Agreement shall affect such relative priorities of

classes of Senior Obligations or the related Senior Liens. It is further agreed

that no agreements establishing the relative priorities of Senior Obligations of

one or more classes or of the Senior Liens securing such Senior Obligations

shall in any way limit or affect the subordination of the Junior Liens provided

for in this Agreement or the provisions of this Agreement defining the relative

rights of the Senior Obligations Secured Parties and the Junior Obligations

Secured Parties.

 

            (d) It is further acknowledged that the Senior Obligations are or

may in the future be secured by Liens on Collateral other than the Collateral

subject to the Junior Liens, including Liens on certain real properties of the

Company and its subsidiaries. It is agreed that no Senior Collateral Agent will

have any obligation to proceed against any such other Collateral securing the

Senior Obligations or to exercise any other remedies available to them as a

condition to obtaining the benefits of this Article II.

 

            (e) The Initial Junior Indebtedness Collateral Agent acknowledges

receipt of copies of the Credit Agreements and the Credit Facilities Security

Documents as in effect on the date hereof. The Company hereby represents,

warrants and confirms that the Initial Junior Indebtedness Governing Document

and the principal Initial Junior Indebtedness Security Documents (other than any

account control or "lock-box" agreements) contain the provisions set forth in

Annex II hereto under which the Initial Junior Indebtedness 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 Junior Obligations

Collateral Subject to Senior Liens. No Junior Collateral Agent or other Junior

Obligations Secured Party shall commence or instruct any Junior 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

Junior Obligations Collateral under any Junior Obligations Security Document,

applicable law or otherwise, at any time when such Junior Obligations Collateral

shall be subject to any Senior Lien and any Senior Obligations secured by such

Senior Lien shall remain outstanding or any commitment to extend credit that

would constitute Senior Obligations secured by such Senior Lien shall remain in

effect, it being agreed that only the applicable Senior Collateral Agent, acting

in accordance with the applicable Senior Obligations Security Documents, shall

be entitled to take any such actions or exercise any such remedies.

Notwithstanding the foregoing, any Junior Collateral Agent may, subject to

Section 2.05, take all such actions as it shall deem necessary to continue the

perfection of the Junior Liens on any Junior Obligations Collateral.

 

            SECTION 2.03. No Duties of Senior Collateral Agents. Each Junior

Obligations Secured Party acknowledges and agrees that no Senior Collateral

Agent or other Senior Obligations Secured Party shall have any duties or other

obligations to such Junior Obligations Secured Party with respect to any Senior

Obligations Collateral, other

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than to transfer to the Junior Collateral Agents any proceeds of any such

Collateral that constitutes Junior Obligations Collateral remaining in its

possession following any sale, transfer or other disposition of such Collateral,

the payment and satisfaction in full of the Senior Obligations secured thereby

and the termination of any commitment to extend credit that would constitute

Senior Obligations secured thereby, or, if any Senior 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 such

Senior Collateral Agent or any Senior Obligations Secured Party (it being

understood that nothing herein shall prohibit any Senior Collateral Agent from

transferring Collateral or proceeds of Collateral to the holders of other Senior

Obligations secured by such Collateral or to another Senior Collateral Agent

acting on their behalf to the extent it is required to do so under the terms of

any agreement). In furtherance of the foregoing, each Junior Obligations Secured

Party acknowledges and agrees that until the Senior Obligations secured by any

Collateral shall have been paid and satisfied in full and any commitment to

extend credit that would constitute Senior Obligations secured thereby shall

have been terminated, the applicable Senior Collateral Agents shall be entitled,

for the benefit of the holders of such Senior Obligations, to sell, transfer or

otherwise dispose of or deal with such Collateral as provided herein and in the

Credit Facilities Security Documents or the Designated Senior Obligations

Security Documents, as the case may be, without regard to any Junior Lien or any

rights to which the holders of the Junior Obligations would otherwise be

entitled as a result of such Junior Lien. Without limiting the foregoing, each

Junior Obligations Secured Party agrees that no Senior Collateral Agent or other

Senior Obligations Secured Party shall have any duty or obligation first to

marshall or realize upon any type of Collateral (or any other collateral

securing the Senior Obligations), or to sell, dispose of or otherwise liquidate

all or any portion of the Collateral (or any other collateral securing the

Senior Obligations), in any manner that would maximize the return to the Junior

Obligations Secured Parties, notwithstanding that the order and timing of any

such realization, sale, disposition or liquidation may affect the amount of

proceeds actually received by the Junior Obligations Secured Parties from such

realization, sale, disposition or liquidation. Each of the Junior Obligations

Secured Parties waives any claim such Junior Obligations Secured Party may now

or hereafter have against any Senior Collateral Agent or other Senior

Obligations Secured Party (or their representatives) arising out of (i) any

actions which any Senior Collateral Agent or the Senior Obligations Secured

Parties take or omit to take (including, without limitation, actions with

respect to the creation, perfection or continuation of Liens on any Collateral,

actions with respect to the foreclosure upon, sale, release or depreciation of,

or failure to realize upon, any of the Collateral and actions with respect to

the collection of any claim for all or any part of the Senior Obligations from

any account debtor, guarantor or any other party) in accordance with the

respective Senior Obligations Security Documents or any other agreement related

thereto or to the collection of the Senior Obligations or the valuation, use,

protection or release of any security for the Senior Obligations, (ii) any

election by any Senior Collateral Agent or Senior Obligations Secured Parties,

in any proceeding instituted under the Bankruptcy Code, of the application of

Section 1111(b) of the Bankruptcy Code and/or (iii) any borrowing of any

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                                                                              12

 

Grantor as debtor-in-possession, or any related grant of a security interest or

administrative expense priority under Secti