EXHIBIT 4.1
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GUARANTEE AND COLLATERAL AGREEMENT
dated as of
August 17, 2004
among
THE GOODYEAR TIRE & RUBBER COMPANY,
as Borrower,
The SUBSIDIARIES OF THE COMPANY Identified Herein
and
JPMORGAN CHASE BANK,
as Collateral Agent
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Certain Defined Terms................................................................. 2
ARTICLE II
Guarantees
SECTION 2.01. Guarantees............................................................................ 12
SECTION 2.02. Guarantee of Payment.................................................................. 12
SECTION 2.03. No Limitations........................................................................ 12
SECTION 2.04. Reinstatement......................................................................... 13
SECTION 2.05. Agreement To Pay; Subrogation......................................................... 13
SECTION 2.06. Information........................................................................... 14
ARTICLE III
Pledge of Securities
SECTION 3.01. Pledge................................................................................ 14
SECTION 3.02. Voting Rights; Dividends and Interest................................................. 14
ARTICLE IV
Security Interests in Personal Property
SECTION 4.01. Creation of Security Interests........................................................ 16
SECTION 4.02. Certain Filings....................................................................... 17
SECTION 4.03. Representations and Warranties........................................................ 18
SECTION 4.04. Covenants............................................................................. 18
SECTION 4.05. Other Actions......................................................................... 20
SECTION 4.06. Covenants Regarding Patent, Trademark and Copyright Collateral........................ 20
SECTION 4.07. Lockbox System........................................................................ 21
SECTION 4.08. Insurance............................................................................. 22
ARTICLE V
Other Pledges, Mortgages and Security Interests
SECTION 5.01. Summary of Certain Other Security Documents........................................... 22
SECTION 5.02. Other Security Documents Subject to This Agreement.................................... 23
ARTICLE VI
Remedies
SECTION 6.01. Remedies Upon Default................................................................. 24
SECTION 6.02. Exercise of Remedies under Other Security Documents................................... 25
SECTION 6.03. Application of Proceeds............................................................... 26
SECTION 6.04. Grant of License to Use Intellectual Property......................................... 27
SECTION 6.05. Securities Act........................................................................ 27
SECTION 6.06. Registration.......................................................................... 28
ARTICLE VII
Indemnity, Subrogation and Subordination
SECTION 7.01. Indemnity and Subrogation............................................................. 29
SECTION 7.02. Contribution and Subrogation.......................................................... 29
SECTION 7.03. Subordination......................................................................... 30
ARTICLE VIII
Concerning the Collateral Agent
SECTION 8.01. Limitations on Responsibility of Collateral Agent..................................... 30
SECTION 8.02. Reliance by Collateral Agent; Indemnity Against Liabilities, etc...................... 31
SECTION 8.03. Resignation and Removal of the Collateral Agent....................................... 32
SECTION 8.04. Expenses and Indemnification.......................................................... 32
ARTICLE IX
Subordination of Certain Liens
SECTION 9.01. Perfection and Priority of Security Interests......................................... 33
SECTION 9.02. No Interference; No Right to Instruct Collateral Agent; Payment
Over; Reinstatement; Permitted Actions................................................ 34
SECTION 9.03. Consent to Priming of Junior Lien on ABL Facilities Collateral........................ 35
SECTION 9.04. Consent to Subordination of Junior Liens to Certain Refinancing Indebtedness.......... 36
SECTION 9.05. Applicability of Lien Subordination Provisions of Master
Guarantee and Collateral Agreement.................................................... 36
ii
ARTICLE X
Subordination of Intercompany Indebtedness
SECTION 10.01. Subordination......................................................................... 37
SECTION 10.02. Dissolution or Insolvency............................................................. 37
SECTION 10.03. Subrogation........................................................................... 37
SECTION 10.04. Other Creditors....................................................................... 38
SECTION 10.05. No Waiver............................................................................. 38
SECTION 10.06. Obligations Hereunder Not Affected.................................................... 38
ARTICLE XI
Miscellaneous
SECTION 11.01. Notices............................................................................... 39
SECTION 11.02. Waivers; Amendment.................................................................... 39
SECTION 11.03. Collateral Agent's Fees and Expenses; Indemnification................................. 40
SECTION 11.04. Successors and Assigns................................................................ 40
SECTION 11.05. Survival of Agreement................................................................. 40
SECTION 11.06. Counterparts; Effectiveness; Several Agreement........................................ 41
SECTION 11.07. Severability.......................................................................... 41
SECTION 11.08. Right of Set-Off...................................................................... 41
SECTION 11.09. Governing Law; Jurisdiction; Consent to Service of Process............................ 42
SECTION 11.10. WAIVER OF JURY TRIAL.................................................................. 42
SECTION 11.11. Headings.............................................................................. 43
SECTION 11.12. Security Interest Absolute............................................................ 43
SECTION 11.13. Termination or Release................................................................ 43
SECTION 11.14. Additional Grantors and Guarantors.................................................... 44
SECTION 11.15. Collateral Agent Appointed Attorney-in-Fact........................................... 45
SCHEDULES:
Schedule I -- Aircraft
Schedule II -- Foreign Pledge Agreements
Schedule III -- Mortgages
EXHIBITS:
Exhibit I -- Form of Perfection Certificate
GUARANTEE AND COLLATERAL AGREEMENT dated as of
August 17, 2004, among THE GOODYEAR TIRE & RUBBER
COMPANY (the "Company"), the Subsidiaries of the Company
identified herein and JPMORGAN CHASE BANK, as collateral
agent (the "Collateral Agent").
A. The Lenders have agreed to extend credit to the Company
on the terms and subject to the conditions set forth in the Deposit-Funded
Credit Agreement (such term and each other capitalized term used and not
otherwise defined herein having the meaning assigned to it in Article I). The
obligations of the Lenders to extend such credit are conditioned upon the
execution and delivery of this Agreement by the Company, the Subsidiary Grantors
and the Subsidiary Guarantors. The Subsidiary Grantors and Subsidiary Guarantors
are subsidiaries of the Company, will derive substantial benefits from the
extension of credit to the Company pursuant to the Deposit-Funded Credit
Agreement and are willing to execute and deliver this Agreement in order to
induce the Lenders to extend such credit.
B. The Deposit-Funded Credit Agreement will refinance the
US Revolving Facility Agreement. The US Revolving Facility Obligations, together
with the obligations of the Company and the Subsidiaries under the New
Facilities Credit Agreements and certain other obligations, are secured under
the Master Guarantee and Collateral Agreement and the "Other Security
Documents", as defined therein.
C. The Master Guarantee and Collateral Agreement sets forth
the relative priorities of the Liens securing the US Revolving Facility
Obligations and the other obligations secured thereby. Section 11.04 of the
Master Guarantee and Collateral Agreement provides, inter alia, that in the
event the US Revolving Facility Obligations are refinanced, all Liens that under
the terms of the Master Guarantee and Collateral Agreement are junior and
subordinate to the Liens securing the US Revolving Facility Obligations shall,
without any further action or consent by any secured party, be equally junior
and subordinated to the Liens securing the refinancing obligations.
D. Each of the New Facilities Credit Agreements requires
that in the event the US Revolving Facility Obligations are refinanced, the
holders of the refinancing obligations or an agent acting on their behalf
execute an agreement subordinating the liens securing such refinancing
obligations to certain Liens that under the terms of the Master Guarantee and
Collateral Agreement are senior to the Liens securing the US Revolving Facility
Obligations.
E. The parties hereto have agreed, in accordance with
Section 11.04 of the Master Guarantee and Collateral Agreement and the
requirements of the New Facilities Credit Agreements, that the Obligations will
be secured by Liens on the Collateral that secured the US Revolving Facility
Obligations, and that the Liens securing the Obligations will have the same
priorities relative to the other Liens created under or governed by the Master
Guarantee and Collateral Agreement as the Liens that secured the US Revolving
Facility Obligations.
F. The Obligations have been designated as "Designated
Senior Obligations" under the Lien Subordination and Intercreditor Agreement,
and the Liens securing the Obligations are accordingly senior to the Liens
securing the Junior Obligations (as defined in the Lien Subordination and
Intercreditor Agreement) on the terms set forth in the Lien Subordination and
Intercreditor Agreement.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Certain Defined Terms. (a) All terms defined in
the New York UCC (as defined herein) and not defined in this Agreement have the
meanings specified therein; the term "instrument" shall have the meaning
specified in Article 9 of the New York UCC.
(b) All terms defined in the Deposit-Funded Credit Agreement
and not defined in this Agreement have the meanings specified therein. The rules
of construction specified in Section 1.04 of the Deposit-Funded Credit Agreement
shall also apply to this Agreement; provided, that any reference herein to the
Master Guarantee and Collateral Agreement or to any "Other Security Document",
as defined therein shall not be deemed to include any amendment to or
modification of such agreement after the date hereof that would adversely affect
any rights or interests of the Secured Parties unless such amendment or
modification shall have been approved in writing by the Majority Lenders.
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,
JPMCB, 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 by the First Amendment thereto dated as of February 19, 2004,
and as further amended from time to time.
"ABL Facilities Collateral" means any and all of the following
assets and properties now owned or at any time hereafter acquired by any Grantor
or in which such Grantor now has or at any time in the future may acquire any
right, title or interest: (a) all Accounts; (b) all Chattel Paper; (c) all
Deposit Accounts (and all cash, checks and other negotiable instruments, funds
and other evidences of payment held therein); (d) all Inventory; (e) to the
extent evidencing, governing, securing or otherwise related to the items
referred to in the preceding clauses (a), (b), (c) and (d), all Documents,
General Intangibles (other than Intellectual Property and, in the case of any
Grantor that is organized under the laws of Canada or one or more provinces
thereof, indemnification claims, contract rights (including rights under leases,
whether entered into as lessor or lessee, Swap Agreements and other agreements),
goodwill, registrations
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and franchises), Instruments, Investment Property (other than (i) Pledged Equity
Interests, (ii) Equity Interests in Luxembourg Finance, (iii) the Equity
Interests described in clauses (b), (c) and (d) of the definition of Excluded
Equity Interests and (iv) Proceeds in respect of Equity Interests described in
clauses (i), (ii) and (iii)) and Letter of Credit Rights; (f) all books and
records related to the foregoing; and (g) all Proceeds of any and all of the
foregoing and all collateral security and guarantees given by any Person with
respect to any of the foregoing. Notwithstanding the foregoing, any cash
deposited to collateralize Letter of Credit reimbursement obligations pursuant
to the Deposit-Funded Credit Agreement will constitute US Facilities Article 9
Collateral and not ABL Facilities Collateral.
"ABL Facilities Junior Liens" means all Liens on the ABL
Facilities Collateral securing the Obligations.
"ABL Facilities Mortgages" means the "Mortgages" under and as
defined in the ABL Facilities Agreement.
"Acceptable Financing" means a credit facility extended to the
Company as a debtor-in-possession in a proceeding commenced by or against the
Company under the Bankruptcy Code that (a) replaces and results in the payment
of all amounts outstanding or owed to the lenders under the ABL Facilities
Agreement at the time of the first extension of credit under such credit
facility made following the entry of a final order approving such credit
facility, (b) is arranged by J.P. Morgan Securities Inc. (or, if J.P. Morgan
Securities Inc. shall elect not to arrange such credit facility, another
recognized provider of debtor-in-possession financings for substantial corporate
debtors that shall be a Lender under the Deposit-Funded Credit Agreement) and
(c) provides for extensions of credit in an aggregate amount not in excess of
the greater of (i) $1,950,000,000 and (ii) the amount available to be borrowed
from time to time under the Borrowing Base under and as defined in the ABL
Facilities Agreement as in effect at the commencement of such proceeding.
"Account Debtor" means any Person who is or who may become
obligated to any Grantor under, with respect to or on account of an Account.
"Additional Subsidiary Agreement" has the meaning assigned to
such term in Section 11.14.
"Agreement" means this Guarantee and Collateral Agreement.
"Aircraft" means all airships, airplanes, helicopters and
other aircraft owned on the date hereof or hereafter acquired by any Grantor,
including those listed on Schedule I hereto, as updated from time to time
pursuant to Section 4.04(c).
"Aircraft Collateral" means the Aircraft, Aircraft Parts and
Aircraft Log Books.
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"Aircraft Log Books" means any and all log books, maintenance
records, airworthiness certificates, registration documents and other records
and documents relating to the Aircraft or Aircraft Parts.
"Aircraft Parts" means all engines and propellers (whether or
not affixed to any Aircraft) owned by any US Facilities Grantor and used or
intended for use in connection with the Aircraft, and all avionics equipment,
radio equipment, navigation equipment, radar equipment and other equipment,
appliances, accessories and accessions used or intended for use in connection
with the Aircraft.
"Applicable Collateral Agent Obligations" has the meaning
assigned to such term in the Master Guarantee and Collateral Agreement.
"Applicable Senior Lien Collateral Agent" means, as to any
Applicable Senior Lien, any collateral agent for the holders of the obligations
secured by such Applicable Senior Lien.
"Applicable Senior Liens" means (a) as to the ABL Facilities
Junior Liens, the Liens on the ABL Facilities Collateral securing the ABL
Facilities Obligations and the Applicable Collateral Agent Obligations and (b)
as to the Luxembourg Finance Junior Liens, the Liens on the Luxembourg Finance
Pledged Collateral securing the European Facilities Obligations and the
Applicable Collateral Agent Obligations.
"Applicable Senior Obligations" means, as to any Obligations
secured by Junior Liens, the obligations secured by the Applicable Senior Liens.
"Article 9 Collateral" means the ABL Facilities Collateral and
the US Facilities Article 9 Collateral.
"Bankruptcy Code" means Title 11 of the U.S. Code.
"Canadian Intellectual Property Collateral" has the meaning
assigned to such term in the Master Guarantee and Collateral Agreement.
"Canadian Security Agreements" means the Canadian Guarantee
and Collateral Agreement dated as of the date hereof, between Goodyear Canada
Inc. and the Collateral Agent, and the Quebec Hypothec (as defined in the
Canadian Guarantee and Collateral Agreement.
"Claiming Party" has the meaning assigned to such term in
Section 7.02.
"Collateral" means the Pledged Collateral, the Luxembourg
Finance Pledged Collateral, the Article 9 Collateral and the Mortgaged
Collateral.
"Collateral Proceeds Account" means a deposit account
maintained at JPMorgan Chase Bank, as Collateral Agent, for the benefit of the
Secured Parties, and any successor account maintained with the Collateral Agent.
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"Consent Asset" means any asset or right of a Grantor the
creation of a security interest in which would be prohibited by or not be
effective under applicable law or would violate or result in a default under any
agreement or instrument in effect on the date hereof (or in the case of any
future Grantor on the date it becomes a Grantor) between such Grantor and any
Person other than (a) the Company, (b) any Wholly Owned Subsidiary or (c) any
Subsidiary that is not a Wholly Owned Subsidiary unless the waiver of such
default or violation would require the consent of any Person other than the
Company or another Subsidiary; provided that no asset or right shall be a
Consent Asset to the extent that Section 9-406, 9-407, 9-408 or 9-409 of the
Uniform Commercial Code as in effect in the applicable jurisdiction, or any
other law of the applicable jurisdiction, shall permit (and excuse any default
or violation resulting from) the creation of a security interest in such asset
or right notwithstanding the provision of such agreement or instrument
prohibiting the creation of a security interest therein or shall render such
provision unenforceable.
"Consent Subsidiary" has the meaning assigned to such term in
the Deposit-Funded Credit Agreement.
"Control Notice" has the meaning assigned to such term or the
term "Shifting Control Notice" in each Lockbox Agreement.
"Contributing Party" has the meaning assigned to such term in
Section 7.02.
"Copyright License" means any written agreement, now or
hereafter in effect, granting any right to any third party under any copyright
now or hereafter owned by any Grantor or that such Grantor otherwise has the
right to license, or granting any right to any Grantor under any copyright now
or hereafter owned by any third party, and all rights of such Grantor under any
such agreement.
"Copyrights" means all of the following now owned or hereafter
acquired by any Grantor: (a) all copyright rights in any work subject to the
copyright laws of the United States or any other country, whether as author,
assignee, transferee or otherwise, and (b) all registrations and applications
for registration of any such copyright in the United States or any other
country, including registrations, recordings, supplemental registrations and
pending applications for registration in the United States Copyright Office.
"Credit Document" means the "Credit Documents" under and as
defined in the Deposit-Funded Credit Agreement.
"Credit Parties" means the Company and each Grantor and
Guarantor.
"Deposit Account Institution" means each financial institution
at which a Deposit Account in the Lockbox System is maintained.
"Deposit-Funded Credit Agreement" means the Deposit-Funded
Credit Agreement dated as of August 17, 2004, among the Company, certain
lenders, JPMCB,
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as administrative agent, and BNP Paribas, as syndication agent, as amended from
time to time.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in limited liability companies, beneficial
interests in trusts or other equity ownership interests in any Persons, and any
warrants, options or other rights entitling the holders thereof to purchase or
acquire any such equity interests.
"European Facilities Agreement" means the $650,000,000 Term
Loan and Revolving Credit Agreement dated as of March 31, 2003, among the JV,
the other borrowers thereunder, certain lenders, JPMCB, as administrative agent,
and Deutsche Bank AG, as syndication agent, as amended by the First Amendment
thereto dated as of February 19, 2004, and as further amended from time to time.
"Excluded Equity Interests" means (a) Equity Interests in any
Subsidiary with consolidated assets not greater than $10,000,000 as of June 30,
2004, or as of the end of the most recent fiscal quarter for which financial
statements have been delivered pursuant to Section 5.01(a) or (b) of the
Deposit-Funded Credit Agreement, (b) Equity Interests in any Consent Subsidiary,
(c) Equity Interests in Goodyear Canada Inc. and Goodyear S.A. and (d) Equity
Interests in any Foreign Subsidiary with respect to which a Financial Officer
has delivered a certificate in accordance with clause (B) of the proviso in
Section 5.08(b) of the Deposit-Funded Credit Agreement.
"Excluded Operating Account" means payroll and other operating
accounts of the Company or any other Grantor that are not used to receive (a)
payments from any Account Debtor in respect of Accounts or (b) payments in
respect of Inventory, and containing only such amounts as are required in the
Company's or such other Grantor's good faith judgment for near-term operational
purposes.
"FAA" means the Federal Aviation Administration or the United
States Department of Transportation or both, as the context may require, or any
successors thereto.
"Federal Securities Laws" has the meaning assigned to such
term in Section 6.05.
"Foreign Pledge Agreements" has the meaning assigned to such
term in the Deposit-Funded Credit Agreement.
"Foreign Subsidiary" means any Subsidiary organized under the
laws of a jurisdiction other than the United States or any of its territories or
possessions or any political subdivision thereof.
"General Intangibles" means, as to any Grantor, all choses in
action and causes of action and all other intangible personal property of every
kind and nature (other than Accounts) now owned or hereafter acquired by such
Grantor, including to the extent relevant corporate or other business records,
indemnification claims, contract rights (including rights under leases, whether
entered into as lessor or lessee, Swap Agreements
6
and other agreements), Intellectual Property, goodwill, registrations,
franchises, tax refund claims and any letter of credit, guarantee, claim,
security interest or other security held by or granted to such Grantor to secure
payment by an Account Debtor of any Accounts.
"Goodyear Venezuela Transaction" means the sale of up to 14%
of the Equity Interests of C.A. Goodyear de Venezuela held by the Company to
Goodyear do Brasil Productos de Borraca Ltda. in a transaction permitted by the
Credit Agreements.
"Grantors" means the Company and the Subsidiary Grantors.
"Guarantors" means the Company and the Subsidiary Guarantors.
"Indemnified Party" has the meaning assigned to such term in
Section 8.04.
"Indenture Basket" means 15% of the Shareholders' Equity of
the Company (as defined in the Indentures), as at the last day of the most
recently ended fiscal quarter of the Company as of the date hereof, as reported
on the applicable consolidated balance sheet of the Company.
"Indenture Properties" means the "Restricted Property" (as
defined in the Indentures) of the Company and each "Restricted Subsidiary" (as
defined in the Indentures).
"Indentures" means (a) the Indenture dated as of March 15,
1996, between the Company and Chemical Bank, as trustee, (b) the Indenture dated
as of March 1, 1999, between the Company and The Chase Manhattan Bank, as
trustee, and (c) the Indenture dated as of June 1, 2002, between the Company and
JPMCB, as trustee.
"Intellectual Property" means, as to any Grantor, all
intellectual and similar property of every kind and nature now owned or
hereafter acquired by such Grantor, including inventions, designs, Patents,
Copyrights, Licenses, Trademarks, trade secrets, confidential or proprietary
technical and business information, know-how, show-how or other data or
information, software and databases and all embodiments or fixations thereof and
related documentation, registrations and franchises, and all additions,
improvements and accessions to, and books and records describing or used in
connection with, any of the foregoing.
"Intercompany Indebtedness" means any Indebtedness of the
Company or any Subsidiary to the Company or any other Subsidiary.
"Intercompany Obligor" means, with respect to any Intercompany
Indebtedness, the obligor in respect of such Intercompany Indebtedness.
"Junior Liens" means the ABL Facilities Junior Liens and the
Luxembourg Finance Junior Liens.
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"JPMCB" means JPMorgan Chase Bank and its successors.
"JV" means Goodyear Dunlop Tires Europe B.V., a Subsidiary
organized in the Netherlands and a joint venture of the Company and Sumitomo
Rubber Industries.
"Lenders" means, collectively, the "Lenders" under and as
defined in the Deposit-Funded Credit Agreement.
"License" means any Patent License, Trademark License,
Copyright License or other license or sublicense agreement to which any Grantor
is a party.
"Lien Subordination and Intercreditor Agreement" means the
Lien Subordination and Intercreditor Agreement dated as of March 12, 2004, among
JPMCB, as Collateral Agent under the New Facilities Credit Agreements and,
pursuant to an Accession Agreement being delivered under Section 4.01 thereof,
the Deposit-Funded Credit Agreement, Wilmington Trust Company, as collateral
agent for holders of the Initial Junior Indebtedness, as defined therein, the
Company and the subsidiaries of the Company named therein, as amended from time
to time.
"Local Collection Account" means a deposit account of a
Grantor not subject to the control of the Collateral Agent pursuant to the
Lockbox System; provided that (a) such account shall not receive any payments in
respect of Accounts or Inventory other than that generated or sold by Goodyear's
retail or Wingfoot divisions and (b) the applicable Grantor shall have
irrevocably instructed the Deposit Account Institution at which such deposit
account is maintained to remit all funds on deposit in such deposit account to a
Deposit Account in the Lockbox System periodically, and in no event less
frequently than weekly, such instructions to be given (i) in the case of a Local
Collection Account in existence on the Effective Date, no later than 45 days
after the Effective Date and (ii) in the case of a Local Collection Account
opened after the Effective Date, as promptly as practicable (and in no event
later than 10 Business Days) after the opening of such Local Collection Account.
"Lockbox Agreement" means a Lockbox Agreement in a form
approved by the Collateral Agent, among a Grantor, the Collateral Agent and a
Deposit Account Institution.
"Lockbox System" has the meaning assigned to such term in
Section 4.07.
"Luxembourg Finance" means Goodyear Finance Holding S.A.
"Luxembourg Finance Junior Liens" means all Liens on the
Luxembourg Finance Pledged Collateral securing the Obligations.
"Luxembourg Finance Pledge Agreement" means the pledge over
shares of Goodyear Finance Holding S.A. between the Company, Goodyear
International Corporation and the Collateral Agent to be entered into on or
around August 17, 2004, as amended from time to time.
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"Luxembourg Finance Pledged Collateral" means all the
Company's right, title and interest in, to and under (a) the Equity Interests in
Luxembourg Finance owned by it on the date hereof or obtained by it in the
future, (b) subject to the provisions of the Luxembourg Finance Pledge
Agreement, all payments of dividends, cash, instruments and other property from
time to time received, receivable or otherwise distributed in respect of, in
exchange for or upon the conversion of, and all other Proceeds received in
respect of, such Equity Interests; (c) subject to the provisions of the
Luxembourg Finance Pledge Agreement, all rights and privileges of the Company
with respect to the securities and other property referred to in clauses (a) and
(b) above; and (d) all Proceeds of any of the foregoing; provided that the
Luxembourg Finance Pledged Collateral shall not include more than 65% of the
issued and outstanding Equity Interests of Luxembourg Finance.
"Master Guarantee and Collateral Agreement" means the Master
Guarantee and Collateral Agreement dated as of March 31, 2003, as Amended and
Restated as of February 20, 2004, among the Company, the Subsidiary Guarantors,
the Grantors, certain other Subsidiaries and JPMCB, in its capacity as
Collateral Agent under the New Facilities Credit Agreements.
"Material Intellectual Property" means "Material Intellectual
Property" under and as defined in the Deposit-Funded Credit Agreement.
"Mortgaged Properties" means the properties subject to the
Mortgages.
"Mortgages" means the "Mortgages" under and as defined in the
Deposit-Funded Credit Agreement.
"New Facilities Credit Agreements" means the European
Facilities Agreement and the ABL Facilities Agreement.
"New York UCC" means the Uniform Commercial Code as from time
to time in effect in the State of New York.
"Obligations" means the "Obligations" under and as defined in
the Deposit-Funded Credit Agreement.
"Other Security Documents" means the Luxembourg Finance Pledge
Agreement, the Canadian Security Agreements, the Foreign Pledge Agreements and
the Mortgages.
"Patent License" means any written agreement, now or hereafter
in effect, granting to any third party any right to make, use or sell any
invention on which a patent, now or hereafter owned by any Grantor or that any
Grantor otherwise has the right to license, is in existence, or granting to any
Grantor any right to make, use or sell any invention on which a patent, now or
hereafter owned by any third party, is in existence, and all rights of any such
Grantor under any such agreement.
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"Patents" means all of the following now owned or hereafter
acquired by any Grantor: (a) all letters patent of the United States or the
equivalent thereof in any other country, all registrations and recordings
thereof, and all applications for letters patent of the United States or the
equivalent thereof in any other country, including registrations, recordings and
pending applications in the United States Patent and Trademark Office or any
similar offices in any other country, including those listed on Schedule II to
the Perfection Certificate, as updated from time to time pursuant to Section
4.04(c), and (b) all reissues, continuations, divisions, continuations-in-part,
renewals or extensions thereof, and the inventions disclosed or claimed therein,
including the right to make, use and/or sell the inventions disclosed or claimed
therein.
"Perfection Certificate" means a certificate substantially in
the form of Exhibit I.
"Pledged Collateral" means (a) the Pledged Equity Interests,
(b) the Pledged Debt Securities, (c) subject to Section 3.02, all payments of
principal or interest, dividends, cash, instruments and other property from time
to time received, receivable or otherwise distributed in respect of, in exchange
for or upon the conversion of, and all other Proceeds received in respect of,
the securities referred to in the preceding clauses (a) and (b); (d) subject to
Section 3.02, all rights and privileges of each Grantor with respect to the
securities and other property referred to in clauses (a), (b) and (c) above; and
(e) all Proceeds of any of the foregoing.
"Pledged Debt Securities" means all debt securities (as
defined in Article 8 of the New York UCC) owned by any Grantor on the date
hereof or obtained by it in the future, and any promissory notes or other
instruments evidencing any such debt securities.
"Pledged Equity Interests" means all Equity Interests in
Subsidiaries (other than Luxembourg Finance and Excluded Equity Interests) owned
by any Grantor on the date hereof or obtained or owned by it in the future, and
the certificates representing all the foregoing Equity Interests, including the
Equity Interests listed on Schedule 3A to the Perfection Certificate, as updated
from time to time pursuant to Section 4.04(c); provided that the Pledged Equity
Interests shall not include more than 65% of the issued and outstanding Equity
Interests of any Foreign Subsidiary.
"RBC Deposit Account" means the Deposit Account maintained
with The Royal Bank of Canada, with respect to which a Lockbox Agreement shall
have been executed by the applicable ABL Facilities Grantor and The Royal Bank
of Canada.
"Secured Parties" means the "Secured Parties" under and as
defined in the Deposit-Funded Credit Agreement.
"Security Documents" means this Agreement and the Other
Security Documents.
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"Subsidiary Grantors" means each Subsidiary that is listed
under the heading "Grantor" on the signature pages hereto or that becomes a
Grantor pursuant to Section 11.14.
"Subsidiary Guarantors" means each Subsidiary that is listed
under the heading "Guarantor" on the signature pages hereto or that becomes a
Guarantor pursuant to Section 11.14.
"Swiss Franc Bond Agreement" means the Bond Agreement dated as
of March 17, 1986, between the Company and Union Bank of Switzerland, Credit
Suisse, Morgan Stanley S.A. and Swiss Bank Corporation, as in effect on the date
hereof.
"Swiss Franc Obligations" means the "Bonds", as defined in the
Swiss Franc Bond Agreement.
"Trademark License" means any written agreement, now or
hereafter in effect, granting to any third party any right to use any trademark
now or hereafter owned by any Grantor or that any such Grantor otherwise has the
right to license, or granting to any Grantor any right to use any trademark now
or hereafter owned by any third party, and all rights of any such Grantor under
any such agreement.
"Trademarks" means all of the following now owned or hereafter
acquired by any Grantor: (a) all trademarks, service marks, trade names,
corporate names, company names, business names, fictitious business names, trade
styles, trade dress, logos, other source or business identifiers, designs and
general intangibles of like nature, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all registration and
recording applications filed in connection therewith, including registrations
and registration applications in the United States Patent and Trademark Office
or any similar offices in any State of the United States or any other country or
any political subdivision thereof, and all extensions or renewals thereof,
including those listed on Schedule II to the Perfection Certificate, as updated
from time to time pursuant to Section 4.04(c), (b) all goodwill associated
therewith or symbolized thereby and (c) all other assets, rights and interests
that uniquely reflect or embody such goodwill.
" US Facilities Article 9 Collateral" means any and all of the
following assets and properties now owned or at any time hereafter acquired by
any Grantor or in which such Grantor now has or at any time in the future may
acquire any right, title or interest: (a) all Documents; (b) all Equipment
(other than fixtures to real property not constituting Mortgaged Properties);
(c) all General Intangibles; (d) all Instruments; (e) all Investment Property
(other than (i) Pledged Equity Interests, (ii) Equity Interests in Luxembourg
Finance, (iii) the Equity Interests described in clauses (b), (c) and (d) of the
definition of Excluded Equity Interests and (iv) Proceeds in respect of Equity
Interests described in clauses (i), (ii) and (iii)); (f) all Letter-of-Credit
rights; (g) all books and records pertaining to any of the foregoing; (h) all
Aircraft Collateral; (i) all cash deposited to collateralize Letter of Credit
reimbursement obligations pursuant to the Deposit-Funded Credit Agreement and
(j) to the extent not otherwise included, all
11
Proceeds and products of any and all of the foregoing and all collateral
security and guarantees given by any Person with respect to any of the
foregoing; provided, however, that, notwithstanding any of the foregoing
provisions of this definition, the Article 9 Collateral shall not include (i)
any ABL Facilities Collateral, (ii) Consent Assets or (iii) more than 65% of the
issued and outstanding Equity Interests of Luxembourg Finance.
"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 JPMCB, as administrative agent, as
amended by the First Amendment thereto dated as of February 19, 2004.
"US Revolving Facility Obligations" means the "Obligations"
under and as defined in the US Revolving Facility Agreement.
ARTICLE II
Guarantees
SECTION 2.01. Guarantees. Each Guarantor irrevocably and
unconditionally guarantees, as a primary obligor and not merely as a surety, the
due and punctual payment and performance of the Obligations, jointly with the
other Guarantors and severally. Each of the Guarantors further agrees that the
Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Obligation. Each of the
Guarantors waives presentment to, demand of payment from and protest to the
Company or any other Credit Party of any of the Obligations, and also waives
notice of acceptance of its guarantee, notice of protest for nonpayment and all
similar formalities.
SECTION 2.02. Guarantee of Payment. Each of the Guarantors
further agrees that its guarantee hereunder constitutes a guarantee of payment
when due and not of collection, and waives any right to require that any resort
be had by the Collateral Agent or any other Secured Party to any security held
for the payment of the Obligations or to any balance of any deposit account or
credit on the books of the Collateral Agent or any other Secured Party in favor
of the Company or any other Person.
SECTION 2.03. No Limitations. (a) Except for termination of a
Guarantor's obligations hereunder as expressly provided in Section 11.13, the
obligations of each Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject
to any defense or set-off, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of
each Guarantor hereunder shall not be discharged or impaired or otherwise
affected by (i) the failure of the Collateral Agent or any other Secured Party
to assert any claim or demand or to enforce any right or remedy under the
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provisions of any Credit Document or otherwise; (ii) any rescission, waiver,
amendment or modification of, or any release from any of the terms or provisions
of, any Credit Document or any other agreement, including with respect to any
other Guarantor under this Agreement; (iii) the release of any security held by
the Collateral Agent or any other Secured Party for the Obligations; (iv) any
default, failure or delay, wilful or otherwise, in the performance of the
Obligations; or (v) any other act or omission that may or might in any manner or
to any extent vary the risk of such Guarantor or otherwise operate as a
discharge of such Guarantor as a matter of law or equity (other than the
indefeasible payment in full in cash of all the Obligations). Each Guarantor
expressly authorizes the Secured Parties to take and hold security for the
payment and performance of the Obligations, to exchange, waive or release any or
all such security (with or without consideration), to enforce or apply such
security and direct the order and manner of any sale thereof in their sole
discretion or to release or substitute any one or more other guarantors or
obligors upon or in respect of the Obligations, all without affecting the
obligations of such Guarantor hereunder.
(b) To the fullest extent permitted by applicable law, each
Guarantor waives any defense based on or arising out of any defense of the
Company or any other Credit Party or the unenforceability of the Obligations or
any part thereof from any cause, or the cessation from any cause of the
liability of the Company or any other Credit Party, other than the indefeasible
payment in full in cash of all the Obligations. The Collateral Agent and the
other Secured Parties may, at their election, foreclose on any security held by
one or more of them by one or more judicial or nonjudicial sales, accept an
assignment of any such security in lieu of foreclosure, compromise or adjust any
part of the Obligations, make any other accommodation with the Company or any
other Credit Party or exercise any other right or remedy available to them
against the Company or any other Credit Party, in each case without affecting or
impairing in any way the liability of any Guarantor hereunder except to the
extent the Obligations have been fully and indefeasibly paid in full in cash. To
the fullest extent permitted by applicable law, each Guarantor waives any
defense arising out of any such election even though such election operates,
pursuant to applicable law, to impair or to extinguish any right of
reimbursement or subrogation or other right or remedy of such Guarantor against
the Company or any other Credit Party, as the case may be, or any security.
SECTION 2.04. Reinstatement. Each of the Guarantors agrees
that its guarantee hereunder shall continue to be effective or be reinstated, as
the case may be, if at any time payment, or any part thereof, of any Obligation
is rescinded or must otherwise be restored by the Collateral Agent or any other
Secured Party upon the bankruptcy or reorganization of the Company, any other
Credit Party or otherwise.
SECTION 2.05. Agreement To Pay; Subrogation. In furtherance of
the foregoing and not in limitation of any other right that the Collateral Agent
or any other Secured Party has at law or in equity against any Guarantor by
virtue hereof, upon the failure of the Company or any other Credit Party to pay
any Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, such Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the Collateral Agent
for distribution to the applicable Secured Parties in cash the
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amount of such unpaid Obligation. Upon payment by any Guarantor of any sums to
the Collateral Agent as provided above, all rights of such Guarantor against the
Company or any other Credit Party arising as a result thereof by way of right of
subrogation, contribution, reimbursement, indemnity or otherwise shall in all
respects be subordinate to the Obligations of the Company or such Credit Party
on the terms set forth in Article X.
SECTION 2.06. Information. Each Guarantor assumes all
responsibility for being and keeping itself informed of the Company's and each
other Credit Party's financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Obligations and the
nature, scope and extent of the risks that such Guarantor assumes and incurs
hereunder, and agrees that none of the Collateral Agent or the other Secured
Parties will have any duty to advise such Guarantor of information known to it
or any of them regarding such circumstances or risks.
ARTICLE III
Pledge of Securities
SECTION 3.01. Pledge. As security for the payment or
performance, as the case may be, in full of the Obligations, each Grantor hereby
grants to the Collateral Agent, its successors and assigns a security interest
in all such Grantor's right, title and interest in, to and under the Pledged
Collateral, to have and to hold all such Pledged Collateral, together with all
right, title, interest, powers, privileges and preferences pertaining or
incidental thereto, for the benefit of the Secured Parties; subject, however, to
the terms, covenants and conditions hereinafter set forth.
SECTION 3.02. Voting Rights; Dividends and Interest. (a)
Unless and until an Event of Default shall have occurred and be continuing and
the Collateral Agent shall have notified the Grantors that their rights under
this Section 3.02 are being suspended:
(i) Each Grantor shall be entitled to exercise any and
all voting and/or other rights and powers inuring to an owner
of Pledged Collateral or any part thereof for any purpose
consistent with the terms of this Agreement and the Credit
Agreements, including the right to sell or otherwise transfer
such Pledged Collateral in accordance with the terms of the
Deposit-Funded Credit Agreement.
(ii) The Collateral Agent shall execute and deliver to
each Grantor, or cause to be executed and delivered to such
Grantor, all such proxies, powers of attorney, certificates
and other instruments as such Grantor may reasonably request
for the purpose of enabling such Grantor to exercise the
voting and/or rights and powers it is entitled to exercise
pursuant to subparagraph (i) above.
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(iii) Each Grantor shall be entitled to receive and
retain any and all dividends, interest, principal and other
distributions paid on or distributed in respect of the Pledged
Collateral to the extent and only to the extent that such
dividends, interest, principal and other distributions are
permitted by, and otherwise paid or distributed in accordance
with, the terms and conditions of the Deposit-Funded Credit
Agreement, the other Credit Documents and applicable laws;
provided that any noncash dividends, interest, principal or
other distributions that would constitute Pledged Equity
Interests or Pledged Debt Securities, whether resulting from a
subdivision, combination or reclassification of the
outstanding Equity Interests of the issuer of any Pledged
Collateral or received in exchange for Pledged Collateral or
any part thereof, or in redemption thereof, or as a result of
any merger, consolidation, acquisition or other exchange of
assets to which such issuer may be a party or otherwise, shall
be and become part of the Pledged Collateral.
(b) Upon the occurrence and during the continuance of an Event
of Default, after the Collateral Agent shall have notified the Grantors of the
suspension of their rights under paragraph (a)(iii) of this Section, then all
rights of any Grantor to dividends, interest, principal or other distributions
that such Grantor is authorized to receive pursuant to paragraph (a)(iii) of
this Section shall cease, and all such rights shall thereupon become vested in
the Collateral Agent, which shall have the sole and exclusive right and
authority to receive and retain such dividends, interest, principal or other
distributions. All dividends, interest, principal or other distributions
received by any Grantor contrary to the provisions of this Section shall be held
in trust for the benefit of the Collateral Agent, shall be segregated from other
property or funds of such Grantor and shall be forthwith delivered to the
Collateral Agent upon demand in the form in which so received (with any
necessary endorsement). Any and all money and other property paid over to or
received by the Collateral Agent pursuant to the provisions of this paragraph
(b) shall be retained by the Collateral Agent in an account to be established by
the Collateral Agent upon receipt of such money or other property and shall be
applied in accordance with the provisions of Section 6.03. After all Events of
Default have been cured or waived and the Company has delivered to the
Collateral Agent a certificate to that effect, the Collateral Agent shall
(subject to any applicable provisions of the Master Guarantee and Collateral
Agreement) promptly repay to each Grantor (without interest) all dividends,
interest, principal or other distributions that such Grantor would otherwise be
permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section
and that remain in such account.
(c) Upon the occurrence and during the continuance of an Event
of Default, after the Collateral Agent shall have notified the Grantors of the
suspension of their rights under paragraph (a)(i) of this Section, then all
rights of any Grantor to exercise the voting and consensual rights and powers it
is entitled to exercise pursuant to paragraph (a)(i) of this Section, and the
obligations of the Collateral Agent under paragraph (a)(ii) of this Section,
shall cease, and all such rights shall thereupon become vested in the Collateral
Agent, which shall have the sole and exclusive right and authority to exercise
such voting and consensual rights and powers; provided that, unless otherwise
15
directed by the Majority Lenders under the Deposit-Funded Credit Agreement, the
Collateral Agent shall have the right from time to time following and during the
continuance of an Event of Default to permit the Grantors to exercise such
rights.
(d) Any notice given by the Collateral Agent to the Grantors
suspending their rights under paragraph (a) of this Section (i) may be given by
telephone if promptly confirmed in writing, (ii) may be given to one or more of
the Grantors at the same or different times and (iii) may suspend the rights of
the Grantors under paragraph (a)(i) or paragraph (a)(iii) in part without
suspending all such rights (as specified by the Collateral Agent in its sole and
absolute discretion) and without waiving or otherwise affecting the Collateral
Agent's rights to give additional notices from time to time suspending other
rights so long as an Event of Default has occurred and is continuing.
ARTICLE IV
Security Interests in Personal Property
SECTION 4.01. Creation of Security Interests. (a) As security
for the payment or performance, as the case may be, in full of the Obligations,
each Grantor hereby grants to the Collateral Agent, its successors and assigns,
for the benefit of the Secured Parties, a security interest in all right, title
or interest in or to any and all the US Facilities Article 9 Collateral (other
than, in the case of the Company only, any such US Facilities Article 9
Collateral constituting a "manufacturing facility", as defined in the Swiss
Franc Bond Agreement) now owned or at any time hereafter acquired by such
Grantor or in which such Grantor now has or at any time in the future may
acquire any right, title or interest.
(b) As security for the payment or performance, as the case
may be, in full of the Obligations, the Company hereby grants to the Collateral
Agent, its successors and assigns, for the benefit of the Secured Parties, a
security interest in all right, title or interest in or to any and all the US
Facilities Article 9 Collateral constituting a "manufacturing facility", as
defined in the Swiss Franc Bond Agreement, now owned or at any time hereafter
acquired by it or in which it now has or at any time in the future may acquire
any right, title or interest. As provided in Section 11.04 of the Master
Guarantee and Collateral Agreement, the security interests and Liens created by
this paragraph and by the Mortgages shall have the same priorities (which may
differ as to different amounts of the Obligations secured thereby as provided in
the Master Guarantee and Collateral Agreement) as the security interests and
Liens that secured the US Revolving Facility Obligations relative to the other
security interests in and Liens on "manufacturing facilities" of the Company
(including the security interests securing Swiss Franc Obligations) created
under the Master Guarantee and Collateral Agreement and the "US Facilities
Mortgages" and "ABL Facilities Mortgages" (as such terms are defined in the
Master Guarantee and Collateral Agreement).
(c) As security for the payment or performance, as the case
may be, in full of the Obligations, each Grantor hereby grants to the Collateral
Agent, its successors and
16
assigns, for the benefit of the Secured Parties, a security interest in, all
right, title or interest in or to any and all the ABL Facilities Collateral now
owned or at any time hereafter acquired by such Grantor or in which such Grantor
now has or at any time in the future may acquire any right, title or interest;
the Secured Parties agree that the foregoing assignment, pledge and grant shall
be on a junior basis and shall be subordinated as described in, and subject to,
Article IX.
(d) Notwithstanding anything in this Section or in any Other
Security Document to the contrary, the aggregate amount of the Obligations and
of the "Obligations" (as such term is defined in the Master Guarantee and
Collateral Agreement) secured by (i) the security interests granted under this
Section, (ii) the security interests granted under Section 4.01 of the Master
Guarantee and Collateral Agreement and (iii) the Liens created under the
Mortgages or under the "US Facilities Mortgages" or "ABL Facilities Mortgages"
(as such terms are defined in the Master Guarantee and Collateral Agreement), in
each case in or on the Indenture Properties, shall not exceed the Indenture
Basket (it being agreed that the obligations excluded by this paragraph and
paragraph (m) of Section 4.01 of the Master Guarantee and Collateral Agreement
from the benefits of such security interests in and Liens on the Indenture
Properties will be determined based on the priority of the security interests
and Liens securing the applicable obligations as set forth herein and in the
Master Guarantee and Collateral Agreement (including Section 11.04 thereof),
with the obligations secured by the most junior security interests and Liens
being the first excluded).
(e) The security interests granted under this Section are
granted as security only and shall not subject the Collateral Agent or any other
Secured Party to, or in any way alter or modify, any obligation or liability of
any Grantor with respect to or arising out of the Article 9 Collateral.
SECTION 4.02. Certain Filings. (a) Each Grantor hereby
irrevocably authorizes the Collateral Agent at any time and from time to time to
file in any relevant jurisdiction any initial financing statements (including
fixture filings) with respect to the Article 9 Collateral of such Grantor or any
part thereof and amendments thereto that contain the information required by
Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the
filing of any financing statement or amendment, including (i) whether such
Grantor is an organization, the jurisdiction in which it is organized, the type
of organization and any organizational identification number issued to such
Grantor and (ii) in the case of a financing statement filed as a fixture filing,
a sufficient description of the real property to which such Article 9 Collateral
relates. Each Grantor agrees to provide such information to the Collateral Agent
promptly upon request. Each Grantor also ratifies its authorization for the
Collateral Agent to file in any relevant jurisdiction any initial financing
statements or amendments thereto if filed prior to the date hereof.
(b) The Collateral Agent is further authorized to file with
the United States Patent and Trademark Office or United States Copyright Office
(or any successor office or any similar office in any other country) such
documents as may be necessary or advisable for the purpose of perfecting,
confirming, continuing, enforcing or protecting
17
any security interest granted by any Grantor in any Material Intellectual
Property, without the signature of such Grantor, and naming such Grantor or the
Grantors as debtors and the Collateral Agent as secured party.
SECTION 4.03. Representations and Warranties. The Grantors
jointly and severally represent and warrant to the Collateral Agent and the
Secured Parties that each Grantor has good and valid rights (including ownership
rights) in the material Article 9 Collateral with respect to which it has
purported to grant a security interest hereunder.
SECTION 4.04. Covenants. (a) Each Grantor agrees promptly (and
in any event within 30 days) to notify the Collateral Agent in writing of any
change (i) in its corporate name, (ii) in the location of its chief executive
office, (iii) in its identity or type of organization or corporate structure,
(iv) in its Federal Taxpayer Identification Number or organizational
identification number or (v) in its jurisdiction of organization. Each Grantor
agrees promptly to provide the Collateral Agent with certified organizational
documents reflecting any of the changes described in the first sentence of this
paragraph.
(b) Each Grantor agrees to maintain, at its own cost and
expense, such complete and accurate records with respect to the Article 9
Collateral owned by it as shall be consistent with its current practices and in
accordance with such prudent and standard practices used in industries that are
the same as or similar to those in which such Grantor is engaged, but in any
event to include complete accounting records indicating all payments and
proceeds received with respect to any part of the Article 9 Collateral, and, at
such time or times as the Collateral Agent may reasonably request, promptly to
prepare and deliver to the Collateral Agent schedules in form and detail
reasonably satisfactory to the Collateral Agent showing the identity, amount and
location of any specified Article 9 Collateral.
(c) Each year, at the time of delivery of annual financial
statements of the Company with respect to the preceding fiscal year pursuant to
each Credit Agreement, the Company shall deliver to the Collateral Agent a
certificate executed on behalf of the Company by a Financial Officer and a legal
officer of the Company setting forth the information required pursuant to the
Perfection Certificate (including the Schedules thereto) or confirming that
there has been no change in such information since the date of such certificate
or the date of the most recent certificate delivered pursuant to this paragraph,
and setting forth for any Aircraft owned by any Grantor and not already listed
on Schedule I hereto information sufficient to permit the Collateral Agent to
file notices of its security interests in such Aircraft with the Federal
Aviation Administration, including the model number, the tail number, the name,
the serial number and the location of such Aircraft (and Schedule I shall be
automatically updated to list any Aircraft identified in any such certificate).
(d) The Collateral Agent and such Persons as the Collateral
Agent may reasonably designate shall have the right, at the Grantors' own cost
and expense, to inspect the Article 9 Collateral and the premises upon which any
of the Article 9 Collateral is located and to verify under reasonable
procedures, in accordance with the
18
provisions of the Deposit-Funded Credit Agreement, the validity, amount,
quality, quantity, value, condition and status of, or any other matter relating
to, the Article 9 Collateral, including, only after the occurrence and during
the continuance of an Event of Default, in the case of Accounts or Article 9
Collateral in the possession of any third person, by contacting Account Debtors
or the third person possessing such Article 9 Collateral for the purpose of
making such a verification. The Collateral Agent shall have the absolute right
to share any information it gains from such inspection or verification with any
Secured Party.
(e) At its option, the Collateral Agent may discharge past due
taxes, assessments, charges, fees, Liens, security interests or other
encumbrances at any time levied or placed on the Article 9 Collateral and not
permitted pursuant to the Deposit-Funded Credit Agreement, and may pay for the
maintenance and preservation of the Article 9 Collateral to the extent any
Grantor fails to do so as required by the Deposit-Funded Credit Agreement or
this Agreement, and each Grantor jointly and severally agrees to reimburse the
Collateral Agent on demand for any payment made or any expense incurred by the
Collateral Agent pursuant to the foregoing authorization; provided that nothing
in this paragraph shall be interpreted as excusing any Grantor from the
performance of, or imposing any obligation on the Collateral Agent or any
Secured Party to perform, any covenants or other promises of any Grantor with
respect to taxes, assessments, charges, fees, Liens, security interests or other
encumbrances and maintenance as set forth herein or in the other Credit
Documents.
(f) The Grantors, at their own expense, shall maintain or
cause to be maintained insurance covering physical loss or damage to the
Inventory and Equipment included in the Article 9 Collateral in accordance with
the requirements set forth in the Deposit-Funded Credit Agreement. Each Grantor
irrevocably makes, constitutes and appoints the Collateral Agent (and all
officers, employees or agents designated by the Collateral Agent) as such
Grantor's true and lawful agent (and attorney-in-fact) for the purpose, during
the continuance of an Event of Default, of making, settling and adjusting claims
in respect of Article 9 Collateral under policies of insurance, endorsing the
name of such Grantor on any check, draft, instrument or other item of payment
for the proceeds of such policies of insurance and for making all determinations
and decisions with respect thereto. In the event that any Grantor at any time or
times shall fail to obtain or maintain any of the policies of insurance required
hereby or to pay any premium in whole or part relating thereto, the Collateral
Agent may, without waiving or releasing any obligation or liability of the
Grantors hereunder or any Event of Default, in its sole discretion, obtain and
maintain such policies of insurance and pay such premiums and take any other
actions with respect thereto as the Collateral Agent deems advisable. All sums
disbursed by the Collateral Agent in connection with this paragraph, including
reasonable attorneys' fees, court costs, expenses and other charges relating
thereto, shall be payable, upon demand, by the Grantors to the Collateral Agent
and shall be additional Obligations secured hereby.
(g) Each Grantor shall maintain, in form and manner reasonably
satisfactory to the Collateral Agent, records of its Chattel Paper and its
books, records and documents evidencing or pertaining thereto.
19
SECTION 4.05. Other Actions. In order to further ensure the
attachment, perfection and priority of, and the ability of the Collateral Agent
to enforce, the security interests created hereby, each Grantor agrees, in each
case at such Grantor's own expense, to take the following actions with respect
to the following Article 9 Collateral: if any Grantor shall at any time hold or
acquire any Instrument representing Indebtedness in excess of $3,000,000, such
Grantor shall forthwith endorse, assign and deliver the same to the Collateral
Agent, accompanied by such instruments of transfer or assignment duly executed
in blank as the Collateral Agent may from time to time reasonably request.
SECTION 4.06. Covenants Regarding Patent, Trademark and
Copyright Collateral. (a) Each Grantor agrees that it will not do or omit to do
any act (and will exercise commercially reasonable efforts to prevent its
licensees from doing or omitting to do any act) whereby any Patent constituting
Material Intellectual Property may become invalidated or dedicated to the
public, and agrees that it shall continue to mark any products covered by such
Patent with the relevant patent number consistent with good business judgment to
establish and preserve its rights under applicable patent laws.
(b) Each Grantor (either itself or through its licensees or
its sublicensees) will, for each Trademark constituting Material Intellectual
Property, (i) maintain such Trademark in full force free from any claim of
abandonment or invalidity for non-use, (ii) maintain the quality of products and
services offered under such Trademark, (iii) display such Trademark with notice
of Federal or foreign registration consistent with good business judgment to
establish and preserve its rights under applicable law and (iv) not knowingly
use or knowingly permit the use of such Trademark in violation of any third
party rights.
(c) Each Grantor (either itself or through its licensees or
sublicensees) will, for each work covered by a Copyright constituting Material
Intellectual Property, continue to publish, reproduce, display, adopt and
distribute the work with appropriate copyright notice consistent with good
business judgment to establish and preserve its rights under applicable
copyright laws.
(d) Each Grantor shall notify the Collateral Agent promptly if
it knows or has reason to know that any Patent, Trademark or Copyright
constituting Material Intellectual Property may become abandoned, lost or
dedicated to the public, or of any materially adverse determination or
development (including the institution of, or any such determination or
development in, any proceeding in the United States Patent and Trademark Office,
United States Copyright Office or any court or similar office of any country)
regarding such Grantor's ownership of any Patent, Trademark or Copyright, its
right to register the same, or its right to keep and maintain the same; provided
that such notification need not be given if such impairment of such Intellectual
Property is not material viewed against the Material Intellectual Property as a
whole.
(e) Each Grantor will take all steps consistent with good
business judgment that are consistent with the practice in any proceeding before
the United States Patent and Trademark Office, United States Copyright Office or
any office or agency in
20
any political subdivision of the United States or in any other country or any
political subdivision thereof, to maintain and pursue each application relating
to the Patents, Trademarks and/or Copyrights constituting Material Intellectual
Property (and to obtain the relevant grant or registration) and to maintain each
issued Patent and each registration of the Trademarks and Copyrights
constituting Material Intellectual Property, including timely filings of
applications for renewal, affidavits of use, affidavits of incontestability and
payment of maintenance fees, and, if consistent with good business judgment, to
initiate opposition, interference and cancelation proceedings against third
parties.
(f) Upon and during the continuance of an Event of Default,
each Grantor shall endeavor in good faith to obtain all requisite consents or
approvals by the licensor of each Copyright License, Patent License or Trademark
License to effect the assignment of all such Grantor's right, title and interest
thereunder to the Collateral Agent or its designee.
SECTION 4.07. Lockbox System. (a) The Grantors agree, at all
times when the ABL Facilities Agreement shall remain in effect, to comply, for
the benefit of the Secured Parties, with the requirements of Section 4.07 of the
Master Guarantee and Collateral Agreement, and compliance with such requirements
shall, at all times when the ABL Facilities Agreement shall remain in effect, be
deemed to satisfy the requirements of paragraph (b) below, notwithstanding
anything in such paragraph (b) to the contrary.
(b) The Grantors shall maintain, subject to the control of the
Collateral Agent pursuant to the Lockbox Agreements, a system of lockboxes and
related Deposit Accounts (the "Lockbox System"). Each Grantor agrees that it
shall have no Deposit Accounts other than (a) Deposit Accounts in the Lockbox
System, (b) Excluded Operating Accounts and (c) Local Collection Accounts. Each
Grantor further agrees (i) to cause at all times to be in effect with respect to
each Deposit Account Institution at which any Deposit Account (other than an
Excluded Operating Account or a Local Collection Account) is maintained a
Lockbox Agreement with respect to each such Deposit Account, (ii) to notify and
direct promptly each Account Debtor and every other Person obligated to make
payments on Accounts or in respect of any Inventory to make all such payments
directly to one or more Deposit Accounts in the Lockbox System (or, in the case
of Accounts or Inventory of the Company's retail or Wingfoot divisions, Local
Collection Accounts) or related lockboxes, (iii) to use all reasonable efforts
to cause each such Account Debtor and other Person to make all payments with
respect to Accounts and Inventory directly to one or more Deposit Accounts in
the Lockbox System (or, in the case of Accounts or Inventory of the Company's
retail or Wingfoot divisions, Local Collection Accounts) or related lockboxes,
(iv) promptly to deposit all payments received by it on account of Accounts and
Inventory, whether in the form of cash, checks, notes, drafts, bills of
exchange, money orders or otherwise, in one or more Deposit Accounts in the
Lockbox System (or, in the case of Accounts or Inventory of the Company's retail
or Wingfoot divisions, Local Collection Accounts) or related lockboxes in the
form in which received (but with any endorsements of such Grantor necessary for
deposit or collection), (v) to maintain at all times a Collateral Proceeds
Account in the United States, a U.S. dollar and a Canadian dollar Collateral
Proceeds Account in Canada and the RBC Deposit Account, in each case on terms
reasonably satisfactory to the
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Collateral Agent and (vi) to maintain in effect agreements with the applicable
Deposit Account Institutions under which all amounts on deposit in each Deposit
Account (other than Excluded Operating Accounts and Local Collection Accounts)
located in the United States and in Canada will be paid to the Collateral Agent
for deposit in the Collateral Proceeds Account located in the United States or
in the RBC Account, respectively, at the end of each Business Day, and under
which all amounts in the RBC Account will be paid not less often than weekly
into the Collateral Proceeds Accounts in Canada in same day funds. So long as no
Event of Default has occurred and is continuing, the Collateral Agent shall
promptly (and no less frequently than each Business Day) remit any funds on
deposit in each Collateral Proceeds Account to one or more accounts of the
Company that have been designated by the Company. Effective upon notice to the
Company after the occurrence and during the continuance of an Event of Default,
each Collateral Proceeds Account, the RBC Deposit Account and each Deposit
Account (other than Excluded Operating Accounts and Local Collection Accounts)
will, without further action on the part of any Grantor or the Collateral Agent,
convert into a closed lockbox account under the sole dominion and control of the
Collateral Agent in which all funds are held subject to the rights of the
Collateral Agent hereunder. Without the prior written consent of the Collateral
Agent, no Grantor shall, in a manner adverse to the Secured Parties, change the
general instructions given to Account Debtors in respect of payments to be
deposited in the Lockbox System. Each Grantor irrevocably authorizes the
Collateral Agent, upon the occurrence of an Event of Default, to deliver a
Control Notice under each Lockbox Agreement. The Collateral Agent agrees with
each Grantor that the Collateral Agent shall not give any instructions pursuant
to any Lockbox Agreement terminating such Lockbox Agreement or the right of such
Grantor to make withdrawals from any Deposit Account in the Lockbox System
unless an Event of Default shall have occurred and be continuing or, after
giving effect to any withdrawal, would occur. The Company shall ensure that the
aggregate amount contained in all Local Collection Accounts taken together shall
not at any time exceed a maximum amount determined by the Administrative Agent
in its sole discretion (not to be exercised unreasonably).
SECTION 4.08. Insurance. Each Grantor shall cause the
Collateral Agent to be named as loss payee on all property insurance maintained
in respect of property subject to the Mortgages.
ARTICLE V
Other Pledges, Mortgages and Security Interests
SECTION 5.01. Summary of Certain Other Security Documents. In
addition to the security interests created under Articles III and IV, the
parties acknowledge that:
(a) The Company and the Collateral Agent will enter into the
Luxembourg Finance Pledge Agreement under which the Company will pledge the
Luxembourg Finance Pledged Collateral on a junior, second lien basis to secure
the Obligations.
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(b) The Grantors and the Collateral Agent are entering into
the Foreign Pledge Agreements listed in Schedule II, and may in the future enter
into additional Foreign Pledge Agreements, under which they are pledging Equity
Interests in Foreign Subsidiaries owned by them on a senior basis to secure the
Obligations.
(c) The Grantors and the Collateral Agent are amending and
restating Mortgages as listed in Schedule III with the result that the real
properties and interests in real properties subject to such Mortgages will
secure the Obligations on a senior basis (and will continue to secure the other
obligations secured thereby).
(d) Certain Grantors that are organized under the laws of
Canada or one or more provinces thereof are entering into the Canadian Security
Agreements, under which they are creating security interests (i) in the ABL
Facilities Collateral owned by them to secure the Obligations on a junior, third
lien basis, and (ii) in the Canadian Intellectual Property Collateral owned by
them to secure the Obligations on a senior basis.
SECTION 5.02. Other Security Documents Subject to This
Agreement. (a) The parties to the Other Security Documents shall observe the
following provisions: (i) to the extent applicable, the provisions of Section
4.01(b) and (d) (limiting the amount of the obligations secured by certain
Collateral of the Company); (ii) the provisions of Section 6.03 (governing the
distribution of the proceeds realized from the exercise of remedies under the
Security Documents); (iii) the provisions of Article VIII (relating to the
duties and responsibilities of the Collateral Agent); (iv) the provisions of
Article IX (providing for the subordination of the Junior Liens created hereby
and by certain of the Other Security Documents to the Applicable Senior Liens
and the priming of certain Junior Liens); and (v) the provisions of Section
11.13 (providing for releases of Guarantees of and Collateral securing the
Obligations).
(b) Each of the Mortgages (other than any Mortgage that sets
forth in full the provisions referred to in clauses (i) through (v) of paragraph
(a) above) shall contain a provision substantially to the effect set forth below
(in the language of such Other Security Document) and satisfactory to the
Collateral Agent and its counsel:
"THIS AGREEMENT AND THE PLEDGES, SECURITY INTERESTS AND OTHER LIENS AND CHARGES
CREATED HEREBY ARE SUBJECT IN ALL RESPECTS TO THE PROVISIONS OF THE GUARANTEE
AND COLLATERAL AGREEMENT DATED AS OF AUGUST 17, 2004, AS AMENDED, AMONG THE
GOODYEAR TIRE & RUBBER COMPANY, CERTAIN OF ITS SUBSIDIARIES AND JPMORGAN CHASE
BANK, AS COLLATERAL AGENT, AND ANY PROVISION OF THIS AGREEMENT THAT IS
INCONSISTENT WITH THE PROVISIONS OF SUCH GUARANTEE AND COLLATERAL AGREEMENT
SHALL BE DEEMED FOR ALL PURPOSES TO HAVE BEEN AMENDED TO CONFORM IN ALL RESPECTS
TO SUCH PROVISIONS."
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ARTICLE VI
Remedies
SECTION 6.01. Remedies Upon Default. Upon the occurrence and during
the continuance of an Event of Default under and as defined in the
Deposit-Funded Credit Agreement, to the extent permitted by law, and subject to
the provisions of Article IX hereof, (a) the Collateral Agent may demand that
each Grantor deliver each item of Collateral owned or held by it to the
Collateral Agent, and each Grantor agrees so to deliver all such Collateral, and
(b) the Collateral Agent shall have the right to take any of or all the
following actions at the same or different times with respect to any Collateral:
(i) with respect to any Collateral consisting of Intellectual Property, on
demand, to cause its security interest in such Collateral to become an
assignment, transfer and conveyance of any of or all such Collateral by the
applicable Grantors to the Collateral Agent, or to grant any license or
sublicense, whether general, special or otherwise, and whether on an exclusive
or nonexclusive basis, with respect to any such Collateral throughout the world
on such terms and conditions and in such manner as the Collateral Agent shall
determine (other than in violation of any then-existing licensing arrangements
to the extent that waivers cannot be obtained), and (ii) with or without legal
process and with or without prior notice or demand for performance, to take
possession of the Collateral and without liability for trespass to enter any
premises where the Collateral may be located for the purpose of taking
possession of or removing the Collateral and, generally, to exercise any and all
rights afforded to a secured party under the Uniform Commercial Code or other
applicable law. Without limiting the generality of the foregoing, each Grantor
agrees that the Collateral Agent shall have the right, subject to the mandatory
requirements of applicable law, to sell or otherwise dispose of all or any part
of the Collateral at a public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future delivery as the
Collateral Agent shall deem appropriate. The Collateral Agent shall be
authorized at any such sale of securities (if it deems it advisable to do so) to
restrict the prospective bidders or purchasers to Persons who will represent and
agree that they are purchasing the Collateral for their own account for
investment and not with a view to the distribution or sale thereof, and upon
consummation of any such sale the Collateral Agent shall have the right to
assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any sale of Collateral shall (to the
extent permitted by law) hold the property sold absolutely, free from any claim
or right on the part of any Grantor, and each Grantor hereby waives (to the
extent permitted by law) all rights of redemption, stay and appraisal which such
Grantor now has or may at any time in the future have under any rule of law or
statute now existing or hereafter enacted.
In the case of any Collateral that constitutes Article 9 Collateral,
the Collateral Agent shall give the applicable Grantors 10 days' written notice
(which each Grantor agrees is reasonable notice within the meaning of Section
9-611 of the New York UCC or its equivalent in other jurisdictions) of the
Collateral Agent's intention to make any sale of Collateral. Such notice, in the
case of a public sale, shall state the time and place for such sale and, in the
case of a sale at a broker's board or on a securities exchange, shall state the
board or exchange at which such sale is to be made and the day
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on which the Collateral, or portion thereof, will first be offered for sale at
such board or exchange. Any such public sale shall be held at such time or times
within ordinary business hours and at such place or places as the Collateral
Agent may fix and state in the notice (if any) of such sale. At any such sale,
the Collateral, or portion thereof, to be sold may be sold in one lot as an
entirety or in separate parcels, as the Collateral Agent may (in its sole and
absolute discretion) determine. The Collateral Agent shall not be obligated to
make any sale of any Collateral if it shall determine not to do so, regardless
of the fact that notice of sale of such Collateral shall have been given. The
Collateral Agent may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for sale, and such sale may, without further notice,
be made at the time and place to which the same was so adjourned. In case any
sale of all or any part of the Collateral is made on credit or for future
delivery, the Collateral so sold may be retained by the Collateral Agent until
the sale price is paid by the purchaser or purchasers thereof, but the
Collateral Agent shall not incur any liability in case any such purchaser or
purchasers shall fail to take up and pay for the Collateral so sold and, in case
of any such failure, such Collateral may be sold again upon like notice. At any
public (or, to the extent permitted by law, private) sale made pursuant to this
Agreement, any Secured Party may bid for or purchase, free (to the extent
permitted by law) from any right of redemption, stay, valuation or appraisal on
the part of any Grantor (all said rights being also hereby waived and released
to the extent permitted by law), the Collateral or any part thereof offered for
sale and may make payment on account thereof by using any claim then due and
payable to such Secured Party from any Grantor as a credit against the purchase
price, and such Secured Party may, upon compliance with the terms of sale, hold,
retain and dispose of such property without further accountability to any
Grantor therefor (to the extent permitted by law). For purposes hereof, a
written agreement to purchase any Collateral or portion thereof shall be treated
as a sale thereof; the Collateral Agent shall be free to carry out such sale
pursuant to such agreement and no Grantor shall be entitled to the return of the
Collateral or any portion thereof subject thereto, notwithstanding the fact that
after the Collateral Agent shall have entered into such an agreement all Events
of Default under the applicable Deposit-Funded Credit Agreement shall have been
remedied and the Obligations paid in full. As an alternative to exercising the
power of sale herein conferred upon it, the Collateral Agent may proceed by a
suit or suits at law or in equity to foreclose this Agreement and to sell the
Collateral or any portion thereof pursuant to a judgment or decree of a court or
courts having competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver. Any sale pursuant to the provisions of this Section
6.01 shall be deemed to conform to the commercially reasonable standards as
provided in Section 9-610(b) of the New York UCC or its equivalent in other
jurisdictions.
SECTION 6.02. Exercise of Remedies under Other Security Documents.
The Collateral Agent shall also have the right, subject to the provisions of
Article IX hereof, to exercise remedies provided for in each Other Security
Document upon the occurrence and during the continuance of an Event of Default
under and as defined in the Deposit-Funded Credit Agreement.
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SECTION 6.03. Application of Proceeds. (a) Unless otherwise required
by applicable law or by the provisions of Article IX hereof, the Collateral
Agent shall apply the proceeds of the collection or sale of any Collateral,
including any Collateral consisting of cash, as follows:
FIRST, to the payment of all costs and expenses incurred by the
Collateral Agent in connection with such collection or sale or otherwise
in connection with this Agreement or any other Credit Document, or
otherwise in connection with any of the Obligations, including all court
costs and the fees and expenses of its agents and legal counsel, the
repayment of all advances made by the Collateral Agent hereunder or under
any other Credit Document on behalf of any Grantor and any other costs or
expenses incurred in connection with the exercise of any right or remedy
hereunder or under any other Credit Document at the direction or for the
benefit of holders of the Obligations;
SECOND, to the payment of all such Obligations as shall be owed to
the Administrative Agent or any Issuing Bank under and as defined in the
Deposit-Funded Credit Agreement;
THIRD, to the payment in full of the other Obligations (and any US
Miscellaneous Obligations under and as defined in the Master Guarantee and
Collateral Agreement, as provided in the Master Guarantee and Collateral
Agreement), ratably in accordance with the amounts of such Obligations and
US Miscellaneous Obligations on the date of such application;
FOURTH, to the "Collateral Agent" under and as defined in the Master
Guarantee and Collateral Agreement for application as provided therein to
satisfy obligations secured by Liens on the Collateral created thereunder
or under the "Other Security Documents" (as defined therein) that are
junior to the Liens created hereunder and under the Other Security
Documents; and
FIFTH, if the Master Guarantee and Collateral Agreement shall no
longer be in effect or if the Collateral Agent shall be advised by the
"Collateral Agent" under and as defined in the Master Guarantee and
Collateral Agreement that there are no persons entitled under the Master
Guarantee and Collateral Agreement to receive such proceeds or cash, to
the applicable Grantors, their successors or assigns, or as a court of
competent jurisdiction may otherwise direct.
The Collateral Agent shall have absolute discretion as to the time
of application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the Collateral Agent or of the officer making the sale shall be a
sufficient discharge to the purchaser or purchasers of the Collateral so sold
and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Collateral Agent
or such officer or be answerable in any way for the misapplication thereof. For
purposes of clause THIRD above, the Lien of any Mortgage, insofar as it
26
secures the Swiss Franc Obligations, will, to the maximum extent permitted under
the Swiss Franc Bond Agreement, be deemed to be of lower priority than the Lien
of such Mortgage insofar as it secures the Obligations. Notwithstanding the
provisions of clause THIRD above, any Article 9 Collateral consisting of cash
deposited to collateralize Letter of Credit reimbursement obligations pursuant
to the Deposit-Funded Credit Agreement will be applied first against such
reimbursement obligations. It is understood that the Deposits held by the
Administrative Agent under Section 2.01 of the Credit Agreement do not
constitute assets of the Borrower or Collateral, and that nothing herein shall
prevent or delay payments required to be made from the Deposit Account to the
Issuing Banks as provided in the Credit Agreement.
SECTION 6.04. Grant of License to Use Intellectual Property. (a)
Each Grantor hereby grants to the Collateral Agent, to the extent necessary to
enable the Collateral Agent to exercise rights and remedies under this Agreement
and the Other Security Documents at such time as the Collateral Agent shall be
lawfully entitled to exercise such rights and remedies, an irrevocable,
nonexclusive license (exercisable without payment of royalty or other
compensation to the Grantors) to use, license or sublicense any Intellectual
Property now owned or hereafter acquired by such Grantor, and wherever the same
may be located, including in such license reasonable access to all media in
which any of the licensed items may be recorded or stored and to all computer
software and programs used for the compilation or printout thereof, to the
extent and only to the extent such license would not violate or result in a
default under any license or other agreement, whether express or implied,
between the Grantor and any Person other than a Wholly Owned Subsidiary. The
rights of the Collateral Agent under such license may be exercised, at the
option of the Collateral Agent, solely upon the occurrence and during the
continuation of an Event of Default; provided that any license, sublicense or
other transaction entered into by the Collateral Agent in accordance herewith
shall be binding upon the Grantors notwithstanding any subsequent cure of any
Event of Default.
(b) Notwithstanding any other provision contained in this Agreement,
any security interest granted hereunder in any Collateral consisting of
Intellectual Property to secure the Obligations shall be subject to the license
granted under Section 6.04(b) of the Master Guarantee and Collateral Agreement,
as such license may be exercised for the benefit of the holders of any
Obligations (as defined in the Master Guarantee and Collateral Agreement), and
any sale or transfer of Collateral consisting of Intellectual Property upon any
exercise of remedies under this Agreement shall be made expressly subject to
such license.
SECTION 6.05. Securities Act. In view of the position of the
Grantors in relation to the Pledged Collateral, or because of other current or
future circumstances, a question may arise under the Securities Act of 1933, as
now or hereafter in effect, or any similar statute hereafter enacted analogous
in purpose or effect (such Act and any such similar statute as from time to time
in effect being called the "Federal Securities Laws") with respect to any
disposition of the Pledged Collateral permitted hereunder. Each Grantor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Collateral Agent if the Collateral Agent were
to attempt to dispose of all or any part of the Pledged Collateral, and might
also limit the extent to
27
which or the manner in which any subsequent transferee of any Pledged Collateral
could dispose of the same. Similarly, there may be other legal restrictions or
limitations affecting the Collateral Agent in any attempt to dispose of all or
part of the Pledged Collateral under applicable Blue Sky or other state
securities laws or similar laws analogous in purpose or effect. Each Grantor
recognizes that in light of such restrictions and limitations the Collateral
Agent may, with respect to any sale of the Pledged Collateral, limit the
purchasers to those who will agree, among other things, to acquire such Pledged
Collateral for their own account, for investment, and not with a view to the
distribution or resale thereof. Each Grantor acknowledges and agrees that in
light of such restrictions and limitations, the Collateral Agent, in its sole
and absolute discretion (a) may proceed to make such a sale whether or not a
registration statement for the purpose of registering such Pledged Collateral or
part thereof shall have been filed under the Federal Securities Laws and (b) may
approach and negotiate with a single potential purchaser to effect such sale.
Each Grantor acknowledges and agrees that any such sale might result in prices
and other terms less favorable than if such sale were a public sale without such
restrictions. In the event of any such sale, the Collateral Agent shall incur no
responsibility or liability for selling all or any part of the Pledged
Collateral at a price that the Collateral Agent, in its sole and absolute
discretion, may in good faith deem reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid or
if more than a single purchaser were approached. The provisions of this Section
will apply notwithstanding the existence of a public or private market upon
which the quotations or sales prices may exceed substantially the price at which
the Collateral Agent sells.
SECTION 6.06. Registration. Each Grantor agrees that, upon the
occurrence and during the continuance of an Event of Default, if for any reason
the Collateral Agent desires to sell any of the Pledged Collateral at a public
sale, it will, at any time and from time to time, upon the written request of
the Collateral Agent, use its best efforts to take or to cause the issuer of
such Pledged Collateral to take such action and prepare, distribute and/or file
such documents, as are required or advisable in the reasonable opinion of
counsel for the Collateral Agent to permit the public sale of such Pledged
Collateral under applicable law. Each Grantor further agrees to indemnify,
defend and hold harmless the Collateral Agent, each other Secured Party, any
underwriter and their respective officers, directors, affiliates and controlling
persons from and against all loss, liability, expenses, costs of counsel
(including, without limitation, reasonable fees and expenses of the Collateral
Agent's legal counsel), and claims (including the costs of investigation) that
they may incur insofar as such loss, liability, expense or claim arises out of
or is based upon any alleged untrue statement of a material fact contained in
any prospectus (or any amendment or supplement thereto) or in any notification
or offering circular relating to the offering for sale of any Pledged
Collateral, or arises out of or is based upon any alleged omission to state a
material fact required to be stated therein or necessary to make the statements
in any thereof not misleading, except insofar as the same may have been caused
by any untrue statement or omission based upon information furnished in writing
to such Grantor or the issuer of such Pledged Collateral by the Collateral Agent
or any other Secured Party expressly for use therein. Each Grantor further
agrees, upon such written request referred to above, to use its best efforts to
28
qualify, file or register, or cause the issuer of such Pledged Collateral to
qualify, file or register, any of the Pledged Collateral under the Blue Sky or
other securities laws of such jurisdictions as may be requested by the
Collateral Agent and keep effective, or cause to be kept effective, all such
qualifications, filings or registrations. Each Grantor will bear all costs and
expenses of carrying out its obligations under this Section. Each Grantor
acknowledges that there is no adequate remedy at law for failure by it to comply
with the provisions of this Section and that such failure would not be
adequately compensable in damages, and therefore agrees that its agreements
contained in this Section may be specifically enforced.
ARTICLE VII
Indemnity, Subrogation and Subordination
SECTION 7.01. Indemnity and Subrogation. In addition to all such
rights of indemnity and subrogation as the Grantors and Guarantors may have
under applicable law (but subject to Section 7.03), the Company agrees that (a)
in the event a payment shall be made by any Guarantor under this Agreement in
respect of an Obligation of the Company, the Company shall indemnify such
Guarantor for the full amount of such payment and such Guarantor shall be
subrogated to the rights of the Person to whom such payment shall have been made
to the extent of such payment and (b) in the event any assets of any Grantor
shall be sold pursuant to this Agreement or any Other Security Document to
satisfy in whole or in part an Obligation of the Company, the Company shall
indemnify such Grantor in an amount equal to the greater of the book value or
the fair market value of the assets so sold.
SECTION 7.02. Contribution and Subrogation. Each Guarantor and
Grantor, other than the Company, that has guaranteed, or granted Liens to
secure, the Obligations (a "Contributing Party") agrees (subject to Section
7.03) that, in the event a payment shall be made by any other Guarantor (other
than the Company) hereunder in respect of any Obligations or assets of any other
Grantor (other than the Company) shall be sold pursuant to any Security Document
to satisfy any Obligations and such other Guarantor or Grantor (the "Claiming
Party") shall not have been fully indemnified by the Company as provided in
Section 7.01, the Contributing Party shall indemnify the Claiming Party in an
amount equal to the amount of such payment or the greater of the book value or
the fair market value of such assets, as the case may be, in each case
multiplied by a fraction of which the numerator shall be the net worth of the
Contributing Party and the denominator shall be the aggregate net worth of all
the Guarantors and Grantors, other than the Company. For the purposes of the
previous sentence, the net worth of each Guarantor and Grantor shall be
determined on the Effective Date (or, in the case of any Guarantor or Grantor
becoming a Guarantor or Grantor after the Effective Date, the date on which such
Guarantor or Grantor shall have become a Guarantor or Grantor). Any Contributing
Party making any payment to a Claiming Party pursuant to this Section shall be
subrogated to the rights of such Claiming Party under Section 7.01 to the extent
of such payment.
29
SECTION 7.03. Subordination. (a) Notwithstanding any provision of
this Agreement to the contrary, all rights of the Guarantors and Grantors under
Sections 7.01 and 7.02 and all other rights of indemnity, contribution or
subrogation under applicable law or otherwise shall be fully subordinated to the
indefeasible payment in full in cash of the Obligations, and no Guarantor or
Grantor shall seek to enforce any of such rights until the Obligations have been
paid in full. No failure on the part of the Company or any other Guarantor or
Grantor to make the payments required by Sections 7.01 and 7.02 (or any other
payments required under applicable law or otherwise) shall in any respect limit
the obligations and liabilities of any Guarantor or Grantor with respect to its
obligations hereunder, and each Guarantor and Grantor shall remain liable for
the full amount of the obligations of such Guarantor or Grantor hereunder.
(b) To the fullest extent permitted under law, each Guarantor and
Grantor hereby agrees that all Indebtedness and other monetary obligations owed
by it to any other Guarantor, Grantor or any other Subsidiary shall be fully
subordinated to the indefeasible payment in full in cash of the Obligations.
ARTICLE VIII
Concerning the Collateral Agent
SECTION 8.01. Limitations on Responsibility of Collateral Agent. The
Collateral Agent shall not be responsible in any manner whatsoever for the
correctness of any recitals, statements, representations or warranties contained
herein or in any Other Security Document. The Collateral Agent makes no
representation as to the value or condition of the Collateral or any part
thereof, as to the title of any Grantor to the Collateral, as to the security
afforded by this Agreement or any Other Security Document or as to the validity,
execution, enforceability, legality or sufficiency of this Agreement or any
Other Security Document, and the Collateral Agent shall incur no liability or
responsibility in respect of any such matters. The Collateral Agent shall not be
responsible for insuring the Collateral, for the payment of taxes, charges,
assessments or Liens upon the Collateral or otherwise for the maintenance of the
Collateral, except as provided in the immediately following sentence when the
Collateral Agent has possession or control of the Collateral. Except as
otherwise provided herein, the Collateral Agent shall have no duty to the
Grantors or to the holders of the Secured Obligations as to any Collateral in
its possession or control or in the possession or control of any agent or
nominee of the Collateral Agent or any income thereon or as to the preservation
of rights against prior parties or any other rights pertaining thereto, except
the duty to accord such Collateral the same care that it normally accords to its
own assets and the duty to account for moneys received by it. The Collateral
Agent shall not be required to ascertain or inquire as to the performance by any
Guarantor or Grantor of any of the covenants or agreements contained herein or
in any other agreement. Neither the Collateral Agent nor any officer, agent or
representative thereof shall be personally liable for any action taken or
omitted to be taken by any such person in connection with this Agreement or any
Other Security Document except for such person's own gross
30
negligence or wilful misconduct (it being understood that any action taken in
accordance with the terms of this Agreement or any Other Security Document by
the Collateral Agent or any such officer, agent or representative at the
direction or instruction of the Administrative Agent or the Majority Lenders
under the Deposit-Funded Credit Agreement (or not taken in the absence of any
such directions or instructions) shall not constitute gross negligence or wilful
misconduct). Neither the Collateral Agent nor any officer, agent or
representative thereof shall be personally liable for any action taken by any
such person in accordance with any notice given by the Administrative Agent or
the Majority Lenders under the Deposit-Funded Credit Agreement hereunder or
under any Other Security Document even if, at the time such action is taken by
any such Person, the Administrative Agent or the Lenders which gave the notice
to take such action shall no longer be the Administrative Agent or the Majority
Lenders under the Deposit-Funded Credit Agreement or the Secured Parties on
behalf of which such notice was given are no longer the Secured Parties. The
Collateral Agent may execute any of the powers granted under this Agreement and
perform any duty hereunder either directly or by or through agents or
attorneys-in-fact.
SECTION 8.02. Reliance by Collateral Agent; Indemnity Against
Liabilities, etc. (a) Whenever in the performance of its duties under this
Agreement or any Other Security Document the Collateral Agent shall deem it
necessary or desirable that a matter be proved or established with respect to
any Grantor or any other person in connection with the taking, suffering or
omitting of any action hereunder by the Collateral Agent, such matter may be
conclusively deemed to be proved or established by a certificate executed by an
officer of such Person which is believed by the Collateral Agent to be genuine
and to have been signed or sent by the proper Person, and the Collateral Agent
shall have no liability with respect to any action taken, suffered or omitted in
reliance thereon.
(b) The Collateral Agent may consult with counsel and shall not
incur any liability in taking any action hereunder or under any Other Security
Document in good faith in accordance with any advice of such counsel. The
Collateral Agent shall have the right but not the obligation at any time to seek
instructions concerning the administration of this Agreement or any Other
Security Document, the duties created hereunder or the Collateral from any court
of competent jurisdiction.
(c) The Collateral Agent shall not incur any liability in relying
upon any resolution, statement, certificate, instrument, opinion, report,
notice, request, consent, order or other paper or document which it in good
faith believes to be genuine and to have been signed or presented by the proper
party. The Collateral Agent may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificate or opinions that are believed by the Collateral Agent to be genuine
and signed or furnished by the proper Person furnished to the Collateral Agent
in connection with this Agreement or any Other Security Document.
(d) The Collateral Agent shall not be deemed to have actual,
constructive, direct or indirect notice or knowledge of the occurrence of any
Event of Default under the Deposit-Funded Credit Agreement unless and until the
Collateral Agent shall have
31
received written notice thereof from the Administrative Agent under such Credit
Agreement. The Collateral Agent shall have no obligation whatsoever either prior
to or after receiving such a notice which is believed by the Collateral Agent to
be genuine and to have been signed or sent by the proper Person to inquire
whether an Event of Default under the Deposit-Funded Credit Agreement has, in
fact, occurred and shall be entitled to rely conclusively, and shall be fully
protected in so relying, on any such notice so furnished to it.
(e) If the Collateral Agent has been requested to take any specific
action by the Administrative Agent pursuant to any provision of this Agreement
or any Other Security Document, the Collateral Agent shall not be under any
obligation to exercise any of the rights or powers vested in it by this
Agreement or such Other Security Document in the manner so requested unless it
shall have been provided indemnity by the Secured Parties on whose behalf such
request shall have been made reasonably satisfactory to it against the costs,
expenses and liabilities which may be incurred by it in compliance with such
request or direction.
SECTION 8.03. Resignation and Removal of the Collateral Agent. The
Collateral Agent may at any time, by giving 30 days' prior written notice to the
Company and the Administrative Agent under the Deposit-Funded Credit Agreement,
resign and be discharged from the responsibilities hereby created, such
resignation to become effective upon the appointment of a successor by the
Administrative Agents with, so long as no Event of Default has occurred and is
continuing, the consent of the Company (such consent not to be unreasonably
withheld) and the acceptance of such appointment by such successor. If no
successor shall be appointed and approved within 30 days after the date of any
such resignation, the Collateral Agent may apply to any court of competent
jurisdiction to appoint a successor to act until a successor shall have been
appointed as above provided or may, on behalf of the Secured Parties, appoint a
successor Collateral Agent which shall be a bank with an office in New York, New
York having a combined capital and surplus of at least $500,000,000.
SECTION 8.04. Expenses and Indemnification. By accepting the
benefits of this Agreement, each of the Lenders severally agrees (i) to
reimburse the Collateral Agent, on demand, in the amount of its pro rata share
from time to time (based on the Applicable Percentage of such Lender), of any
expenses referred to in this Agreement or in any Other Security Document
securing Obligations owed to such Lender and/or any other expenses incurred by
the Collateral Agent in connection with the enforcement and protection of the
rights of the Collateral Agent and the Secured Parties which shall not have been
paid or reimbursed by the Company or any other Grantor or Guarantor or paid from
the proceeds of Collateral as provided herein and (ii) to indemnify and hold
harmless the Collateral Agent and its Affiliates and its and their respective
directors, officers, employees, agents and attorneys (each, an "Indemnified
Party"), on demand, in the amount of such pro rata share, from and against any
and all liabilities, taxes, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements referred to in this Agreement
and/or incurred by the Collateral Agent in connection with this Agreement or the
Other Security Documents or the enforcement and protection of the rights of the
Secured Parties, to the extent the same shall not have been
32
reimbursed by the Company or any other Grantor or Guarantor or paid from the
proceeds of Collateral as provided herein; provided, in each case, that no
Secured Party shall be liable to any Indemnified Party for any portion of such
expenses, liabilities, taxes, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or wilful misconduct of such Person.
ARTICLE IX
Subordination of Certain Liens
SECTION 9.01. Perfection and Priority of Security Interests. (a) All
Junior Liens in respect of any Collateral are expressly subordinated and made
junior in priority, operation and effect to the Applicable Senior Liens in
respect of such Collateral, notwithstanding anything to the contrary contained
in this Agreement, any Other Security Document or any other agreement or filing
to the contrary, and irrespective of the time, order or method of attachment or
perfection of such Junior Liens and the Applicable Senior Liens or any defect or
deficiency or alleged defect or deficiency in any of the foregoing.
(b) Each Secured Party acknowledges that a portion of the Applicable
Senior Obligations consists of Indebtedness that is revolving in nature and that
the amount thereof that may be outstanding at any time or from time to time may
be increased or reduced and subsequently reborrowed, and that the terms of the
Applicable Senior Obligations may be modified, extended or amended from time to
time, and the aggregate amount of the Applicable Senior Obligations may be
increased, replaced or refinanced, all without notice to or consent by such
Secured Party and without affecting the provisions hereof. The lien priorities
provided for herein and in the Other Security Documents shall not be altered or
otherwise affected by any amendment, modification, supplement, extension,
increase, replacement, renewal, restatement or refinancing of either the
Obligations or the Applicable Senior Obligations, or by any action that the
Collateral Agent, the Secured Parties or the holders of any Applicable Senior
Obligations may take or fail to take in respect of any Collateral.
(c) Each Secured Party holding Obligations secured by a Junior Lien
acknowledges and agrees that the Applicable Senior Lien Collateral Agent and the
holders of the Applicable Senior Obligations shall have no duties or other
obligations to such Secured Party with respect to the Collateral subject to such
Junior Lien other than to transfer to the holders of the Obligations secured by
such Junior Lien the proceeds, if any, that remain following any sale, transfer
or other disposition of such Collateral and the payment and satisfaction in full
of all the Applicable Senior Obligations. In furtherance of the foregoing, each
Secured Party holding Obligations secured by a Junior Lien acknowledges and
agrees that until the Applicable Senior Obligations shall have been paid and
satisfied in full, the Applicable Senior Lien Collateral Agent shall be
entitled, for the benefit of the holders of the Applicable Senior Obligations,
to sell, transfer or otherwise dispose of or deal with the Collateral subject to
such Junior Lien as provided in the Master Guarantee and Collateral Agreement
and in the "Other Security
33
Documents", as defined therein, without regard to such Junior Lien or any rights
to which the holders of the Obligations secured thereby would otherwise be
entitled as a result of such Junior Lien, the only obligation of the Applicable
Senior Lien Collateral Agent and the holders of the Applicable Senior
Obligations to the holders of the Obligations secured by such Junior Lien being
to deliver any proceeds remaining from such sale, transfer or other disposition
of the applicable Collateral after the payment and satisfaction in full of all
the Applicable Senior Obligations. Each Secured Party holding Obligations
secured by a Junior Lien agrees that it will not, and will not attempt to,
exercise or instruct the Collateral Agent to exercise any rights that it may
have as a result of such Junior Lien until the payment and satisfaction in full
of all the Applicable Senior Obligations. Notwithstanding anything in this
paragraph to the contrary, any holder of Applicable Senior Obligations with
respect to any Junior Lien shall be entitled to transfer proceeds of Collateral
subject to such Junior Lien to any other holder of Applicable Senior Obligations
to the extent it is required to do so under the terms of the Master Guarantee
and Collateral Agreement, and shall, to the extent of such transfer, be deemed
to have satisfied its obligations to the holders of the Obligations secured by
such Junior Lien under this paragraph.
(d) In the event a proceeding under the Bankruptcy Code or any other
Federal, state or foreign bankruptcy, insolvency, receivership or similar law
shall be commenced by or against any Grantor that shall have granted a Junior
Lien, until the Applicable Senior Obligations shall have been paid and satisfied
in full, each Secured Party holding Obligations secured by such Junior Lien
hereby authorizes and empowers (without imposing an obligation on) the holders
of the Applicable Senior Obligations or any Applicable Senior Lien Collateral
Agent or administrative agent acting on their behalf to vote such Secured
Party's share of the Obligations secured by such Junior Lien, insofar as any
such voting right arises from or relates to such Junior Lien or to the
Collateral subject thereto, in connection with any resolution, arrangement, plan
of reorganization, compromise or settlement relating to such Collateral.
SECTION 9.02. No Interference; No Right to Instruct Collateral
Agent; Payment Over; Reinstatement; Permitted Actions. (a) Each Secured Party
holding Obligations secured by a Junior Lien agrees that (i) it will not take or
cause to be taken any action the purpose or effect of which is, or could be, to
make such Junior Lien pari passu with, or to give such Secured Party any
preference or priority relative to, any Applicable Senior Lien with respect to
the Collateral subject to such Junior Lien or any part thereof, (ii) it will not
interfere, hinder or delay, in any manner, whether by judicial proceedings or
otherwise, any sale, transfer or other disposition of the Collateral subject to
such Junior Lien by the Applicable Senior Lien Collateral Agent or any holder of
Applicable Senior Obligations, (iii) it shall have no right to (A) direct the
Applicable Senior Lien Collateral Agent or any holder of Applicable Senior
Obligations to exercise any right, remedy or power with respect to the
Collateral subject to such Junior Lien or (B) consent to the exercise by the
Applicable Senior Lien Collateral Agent or any holder of Applicable Senior
Obligations of any right, remedy or power with respect to the Collateral subject
to such Junior Lien, (iv) it will not institute any suit or assert in any suit
or in any bankruptcy, insolvency or other proceeding any claim against the
Applicable Senior Lien Collateral Agent or any holder of Applicable Senior
Obligations seeking
34
damages from or other relief by way of specific performance, instructions or
otherwise, with respect to, and neither the Applicable Senior Lien Collateral
Agent nor any holder of Applicable Senior Obligations shall be liable for, any
action taken or omitted to be taken by the Applicable Senior Lien Collateral
Agent or any holder of Applicable Senior Obligations with respect to the
Collateral subject to such Junior Lien, (v) it will not commence or instruct the
Collateral Agent to commence 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, the Collateral subject to
such Junior Lien (other than filing a proof of claim) until all the Applicable
Senior Obligations shall have been paid and satisfied in full, (vi) it will not
seek, and hereby waives any right, to have the Collateral subject to such Junior
Lien or any part thereof marshaled upon any foreclosure or other disposition of
such Collateral and (vii) it will not attempt, directly or indirectly, whether
by judicial proceedings or otherwise, to challenge the enforceability of any
provision of this Agreement.
(b) The Collateral Agent and each Secured Party holding Obligations
secured by a Junior Lien agree that, in the event of a sale, transfer or other
disposition of Collateral subject to such Junior Lien, such Junior Lien on such
Collateral shall terminate and be released automatically and without further
action if the Applicable Senior Lien on such Collateral is released.
(c) Each Secured Party holding Obligations secured by a Junior Lien
hereby agrees that if it shall obtain possession of any of the Collateral
subject to such Junior Lien, or shall realize any payment in respect of such
Collateral (including as a result of any transfer of any Collateral or payment
to such Secured Party by the holder of any obligation secured by a Lien that is
junior or subordinate to such Junior Lien), in either case prior to the time
when the Applicable Senior Obligations have been paid in full, then it shall
hold such Collateral or payment in trust for the holders of the Applicable
Senior Obligations and transfer such Collateral or payment, as the case may be,
to the Applicable Senior Lien Collateral Agent. Each Secured Party holding
Obligations secured by a Junior Lien agrees that if, at any time, all or part of
any payment with respect to the Applicable Senior Obligations previously made is
rescinded for any reason whatsoever, such Secured Party shall promptly pay over
to the Applicable Senior Lien Collateral Agent any payment received by it in
respect of the Collateral subject to such Junior Lien and shall promptly turn
any Collateral subject to such Junior Lien then held by it over to the
Applicable Senior Lien Collateral Agent, and the provisions set forth in this
Agreement shall be reinstated as if such payment had not been made, until the
payment and satisfaction in full of the Applicable Senior Obligations.
SECTION 9.03. Consent to Priming of Junior Lien on ABL Facilities
Collateral. In consideration of and as a condition to the creation under Section
4.01(c) and under the Canadian Security Documents of the Junior Liens on the ABL
Facilities Collateral to secure the Obligations, each Secured Party from time to
time secured by such Junior Liens will be deemed to have agreed, and the
Collateral Agent hereby agrees, on behalf of such Secured Party, that in the
event a proceeding under the Bankruptcy
35
Code shall be commenced by or against the Company and the Company shall enter
into an Acceptable Financing in such proceeding, such Junior Lien may, without
any further action or consent by such Secured Party, be made junior and
subordinated to Liens granted to secure such Acceptable Financing, subject to
the granting and approval by the applicable bankruptcy court of adequate
protection for the holders of the Obligations secured by such Junior Lien
consisting of (a) the current monthly payment of an amount equal to
post-petition interest, fees in respect of Letters of Credit (whether owed to
any Lender or to any Issuing Bank) and facility fees, in each case at
non-default rates, (b) the current payment of out-of-pocket expenses, including
fees and disbursements of counsel and other professional fees and disbursements,
of the Administrative Agent and the Collateral Agent and (c) a replacement lien
on substantially all assets of the Company and the Domestic Subsidiaries (other
than the assets of and Equity Interests in Goodyear Dunlop Tires North America,
Ltd., its Subsidiaries and any other Consent Subsidiaries), subject only to the
Liens securing such Acceptable Financing, Liens existing prior to the
commencement of such proceeding, Applicable Senior Liens and Liens, if any, that
are senior to the Liens securing such Acceptable Financing.
SECTION 9.04. Consent to Subordination of Junior Liens to Certain
Refinancing Indebtedness. In consideration of and as a condition to the creation
of each Junior Lien, each Secured Party from time to time secured by such Junior
Lien will be deemed to have agreed, and the Collateral Agent hereby agrees, on
behalf of such Secured Party, that in the event the obligations of any class
secured by the Applicable Senior Liens are refinanced, replaced, renewed or
extended, in whole or in part, in compliance with the covenants set forth in the
Deposit-Funded Credit Agreement, such Junior Lien shall, without any further
action or consent by such Secured Party, be junior and subordinated on the terms
set forth herein to the Liens on the Collateral subject to such Junior Lien that
are granted to secure such refinanced, replaced, renewed or extended
obligations; provided, that nothing in this Section or elsewhere in this
Agreement shall have the effect of subordinating any Junior Lien to any Lien
securing Senior Subordinated-Lien Indebtedness, it being agreed that the Liens
securing Senior Subordinated-Lien Indebtedness shall be junior and subordinate
to the Liens securing the Obligations as and to the extent provided in the Lien
Subordination and Intercreditor Agreement.
SECTION 9.05. Applicability of Lien Subordination Provisions of
Master Guarantee and Collateral Agreement. Under Section 11.04 of the Master
Guarantee and Collateral Agreement, in the event of the refinancing of the US
Revolving Facility Obligations, all Liens that under the terms of the Master
Guarantee and Collateral Agreement shall have been junior and subordinate to the
Liens securing the US Revolving Facility Obligations (the "Subordinate Liens")
are provided, without any further action or consent by any secured party, to be
equally junior and subordinated to the Liens securing the refinancing
obligations. It is the intent of the parties hereto that the Secured Parties
shall benefit from the provisions of Section 11.04 of the Master Guarantee and
Collateral Agreement to the full extent thereof, and that the Subordinate Liens
shall be junior and subordinate to the Liens created hereunder and under the
Other Security Documents as security for the Obligations on the terms set forth
in Sections 11.01, 11.02, 11.03 and 11.04 of the Master Guarantee and Collateral
Agreement. The
36
agreements set forth in Sections 9.01, 9.02, 9.03 and 9.04 of this Agreement are
made in reliance on, and conditioned on the effectiveness as against the holders
of obligations secured by the Subordinate Liens, and for the benefit of the
Secured Parties, of, the corresponding agreements in Sections 11.01, 11.02,
11.03 and 11.04 of the Master Guarantee and Collateral Agreement.
ARTICLE X
Subordination of Intercompany Indebtedness
SECTION 10.01. Subordination. To the fullest extent permitted under
law, the Company and each other Grantor and Guarantor hereby agrees that all
Intercompany Indebtedness owed to it by any Intercompany Obligor is hereby
expressly subordinated, to the extent and in the manner set forth in this
Article X, to the payment in full in cash of all Obligations of such
Intercompany Obligor.
SECTION 10.02. Dissolution or Insolvency. Upon any dissolution,
winding up, liquidation or reorganization of any Intercompany Obligor, whether
in bankruptcy, insolvency, reorganization, arrangement or receivership
proceedings or otherwise, or upon any assignment for the benefit of creditors or
any other marshalling of the assets and liabilities of any Intercompany Obligor,
or otherwise:
(a) the Secured Parties shall, as between such Secured Parties and
the Company or any other Grantor or Guarantor, first be entitled to
receive payment in full in cash of the Obligations of such Intercompany
Obligor in accordance with the terms of such Obligations before the
Company or such Grantor or Guarantor shall be entitled to receive any
payment on account of the Intercompany Indebtedness of such Intercompany
Obligor, whether as principal, interest or otherwise; and
(b) any payment by, or distribution of the assets of, such
Intercompany Obligor of any kind or character, whether in cash, property
or securities, to which the Company or any other Grantor or Guarantor
would be entitled except for the provisions of clause (a) above shall,
upon receipt by the Company or such Grantor or Guarantor, be held in trust
(or in a compte de sequestre, if applicable) for the applicable Secured
Parties and, subject to the provisions of Article IX hereof and of
Articles XI and XII of the Master Guarantee and Collateral Agreement,
promptly paid or delivered directly to the Collateral Agent for the
benefit of such Secured Parties to the extent necessary to make payment in
full in cash of all such Obligations remaining unpaid, after giving effect
to any concurrent payment or distribution to such Secured Parties in
respect of such Obligations.
SECTION 10.03. Subrogation. Subject to (and only upon) the prior
indefeasible payment in full in cash of all the Obligations of any Intercompany
Obligor and to the provisions of the Master Guarantee and Collateral Agreement,
the Company or any other Grantor or Guarantor holding Intercompany Indebtedness
of such
37
Intercompany Obligor shall be subrogated to the rights of the applicable Secured
Parties to receive payments or distributions in cash, property or securities
applicable to such Obligations until all amounts owing on the Intercompany
Indebtedness of such Intercompany Obligor shall be paid in full, and as between
and among such Intercompany Obligor, its creditors (other than its Secured
Parties) and the Company or any other Grantor or Guarantor holding Intercompany
Indebtedness of such Intercompany Obligor, no such payment or distribution made
to the Secured Parties by virtue of this Agreement that otherwise would have
been made to the Company or any other Grantor or Guarantor in respect of such
Intercompany Indebtedness shall be deemed to be a payment by such Intercompany
Obligor on account of such Intercompany Indebtedness.
SECTION 10.04. Other Creditors. Nothing contained in this Article is
intended to or shall impair, as between and among any Intercompany Obligor, its
creditors (other than the Secured Parties) and the Company or any other Grantor
or Guarantor holding Intercompany Indebtedness of such Intercompany Obligor, the
obligations of such Intercompany Obligor to pay its Intercompany Indebtedness as
and when the same shall become due and payable in accordance with the terms
thereof, or affect the relative rights of the Company or any other Grantor or
Guarantor holding Intercompany Indebtedness of such Intercompany Obligor and the
creditors of such Intercompany Guarantor (other than the Secured Parties).
SECTION 10.05. No Waiver. No right of any Secured Party to enforce
this Article shall at any time or in any way be prejudiced or impaired by any
act or failure to act on the part of any of the Collateral Agent, the other
Secured Parties, or any Intercompany Obligor, or by any noncompliance by any
Intercompany Obligor with the terms, provisions and covenants contained in this
Agreement, any Other Security Document or the Deposit-Funded Credit Agreement,
and the Secured Parties are hereby expressly authorized to extend, renew,
increase, decrease, modify or amend the terms of the Obligations or any security
therefor, and to release, sell or exchange any such security and otherwise deal
freely with any Intercompany Obligor, all without notice to or consent of the
Company or any other Grantor or Guarantor and without affecting the liabilities
and obligations of the parties hereto.
SECTION 10.06. Obligations Hereunder Not Affected. (a) All rights
and interests of the Secured Parties under this Article, and all agreements and
obligations of the Company and each other Grantor or Guarantor under this
Article, shall remain in full force and effect irrespective of:
(i) any lack of validity or enforceability of the Deposit-Funded
Credit Agreement;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other
amendment or waiver of or consent to departure from the Deposit-Funded
Credit Agreement;
38
(iii) any exchange, release or nonperfection of any security
interest in any Collateral, or any release or amendment or waiver of or
consent to departure from any Guarantee, in respect of all or any of
the Obligations; or
(iv) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, any Intercompany Obligor in
respect of Obligations or of the Company or any Grantor or Guarantor in
respect of the agreements contained in this Article.
(b) The agreements contained in this Article shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
the Obligations or any part thereof is rescinded or must otherwise be returned
by any Secured Party upon the insolvency, bankruptcy or reorganization of any
Intercompany Obligor or otherwise, all as though such payment had not been made.
(c) The Company and each Grantor and Guarantor hereby agree that the
Secured Parties may, without affecting or impairing any of the obligations of
the Company or such Grantor or Guarantor hereunder, from time to time to (i)
renew, compromise, extend, increase, accelerate or otherwise change the time for
payment of, or otherwise change the terms of, the Obligations or any part
thereof and (ii) exercise or refrain from exercising any rights against any
Intercompany Obligor or any other Person.
ARTICLE XI
Miscellaneous
SECTION 11.01. Notices. All communications and notices hereunder
shall (except as otherwise expressly permitted herein) be given as provided in
the Deposit-Funded Credit Agreement. All communications and notices hereunder to
any Grantor or Guarantor other than the Company shall be given to it in care of
the Company as provided in the Deposit-Funded Credit Agreement.
SECTION 11.02. Waivers; Amendment. (a) No failure or delay by the
Collateral Agent or any Secured Party in exercising any right or power hereunder
or under any other Credit Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Collateral Agent and the Secured Parties hereunder and under
the other Credit Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by any Credit Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, no extension of credit under the Deposit-Funded Credit Agreement
shall be construed as a waiver of any default hereunder, regardless of whether
the Collateral
39
Agent or any Secured Party may have had notice or knowledge of such default at
the time. No notice or demand on any Credit Party in any case shall entitle such
Credit Party to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Collateral Agent and the Credit Party or Credit Parties with
respect to which such waiver, amendment or modification is to apply, subject to
any consent required under the Deposit-Funded Credit Agreement.
SECTION 11.03. Collateral Agent's Fees and Expenses;
Indemnification. (a) The parties hereto agree that the Collateral Agent shall be
entitled to reimbursement of its expenses incurred hereunder as provided in the
Deposit-Funded Credit Agreement.
(b) Without limitation of its indemnification obligations under the
other Credit Documents, each Grantor and each Guarantor, to the fullest extent
permitted under law, jointly and severally agrees to indemnify the Collateral
Agent and the other Indemnitees (as defined in the Deposit-Funded Credit
Agreement) against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses, including reasonable fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of the execution, delivery or
performance of this Agreement or any agreement or instrument contemplated hereby
or any claim, litigation, investigation or proceeding relating to any of the
foregoing or to the Collateral, whether or not any Indemnitee is a party
thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses shall have resulted from the gross negligence or wilful
misconduct of such Indemnitee or from the breach of any of its obligations set
forth in any Credit Document.
(c) The provisions of this Section shall remain operative and in
full force and effect regardless of the termination of this Agreement or any
other Credit Document, the consummation of the transactions contemplated hereby,
the repayment of any of the Obligations, the invalidity or unenforceability of
any term or provision of this Agreement or any other Credit Document, or any
investigation made by or on behalf of the Collateral Agent or any other Secured
Party. All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 11.04. Successors and Assigns. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of any Guarantor or Grantor or the
Collateral Agent that are contained in this Agreement shall bind and inure to
the benefit of their respective successors and assigns.
SECTION 11.05. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Credit Parties in the Credit
Documents and in the certificates or other instruments prepared or delivered in
connection with or pursuant
40
to this Agreement or any other Credit Document shall be considered to have been
relied upon by the Lenders and shall survive the execution and delivery of the
Credit Documents and the making of any Loans and issuance of any Letters of
Credit, regardless of any investigation made by any Lender or on its behalf and
notwithstanding that the Collateral Agent, any Issuing Bank or any Lender may
have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended under the Deposit-Funded Credit
Agreement, and shall, subject to Section 11.13, continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under any Credit Document is outstanding and
unpaid or any Letter of Credit is outstanding and so long as the Commitments
under the Deposit-Funded Credit Agreement have not expired or terminated.
SECTION 11.06. Counterparts; Effectiveness; Several Agreement. This
Agreement may be executed in counterparts, each of which shall constitute an
original but all of which when taken together shall constitute a single
contract, and shall become effective as provided in this Section. Delivery of an
executed signature page to this Agreement by facsimile transmission shall be as
effective as delivery of a manually signed counterpart of this Agreement. This
Agreement shall become effective as to any Credit Party when a counterpart
hereof executed on behalf of such Credit Party shall have been delivered to the
Collateral Agent and a counterpart hereof shall have been executed on behalf of
the Collateral Agent, and thereafter shall be binding upon such Credit Party and
the Collateral Agent and their respective permitted successors and assigns, and
shall inure to the benefit of such Credit Party, the Collateral Agent and the
other Secured Parties and their respective successors and assigns, except that
no Credit Party shall have the right to assign or transfer its rights or
obligations hereunder (and any such assignment or transfer shall be void) except
as expressly contemplated by this Agreement. This Agreement shall be construed
as a separate agreement with respect to each Credit Party and may be amended,
modified, supplemented, waived or released with respect to any Credit Party
without the approval of any other Credit Party and without affecting the
obligations of any other Credit Party hereunder.
SECTION 11.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction. The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 11.08. Right of Set-Off. Without limitation to the
provisions of Section 4.07, if an Event of Default shall have occurred and be
continuing and the Loans shall have become due and payable pursuant to Article
VII of the Deposit-Funded Credit Agreement, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
41
other obligations at any time owing by such Lender or Affiliate to or for the
credit or the account of any Credit Party against any of and all the obligations
of such Credit Party now or hereafter existing under this Agreement or any other
Credit Document and owed to such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of set-off)
which such Lender may have.
SECTION 11.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each party hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any other Credit Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Credit Document shall
affect any right that any party hereto may otherwise have to bring any action or
proceeding relating to this Agreement or any other Credit Document in the courts
of any jurisdiction.
(c) Each party hereto hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Credit
Document in any court referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 11.01. Nothing in this
Agreement or any other Credit Document will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
SECTION 11.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO
42
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 11.11. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 11.12. Security Interest Absolute. The pledges and security
interests created hereby and by the Other Security Documents shall be absolute
and unconditional irrespective of (a) any lack of validity or enforceability of
the Deposit-Funded Credit Agreement, any other Credit Document, any agreement
with respect to any of the Obligations or any other agreement or instrument
relating to any of the foregoing, (b) any change in the time, manner or place of
payment of, or in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from the Deposit-Funded
Credit Agreement, any other Credit Document or any other agreement or
instrument, (c) any exchange, release or non-perfection of any Lien on other
collateral, or any release or amendment or waiver of or consent under or
departure from any guarantee, securing or guaranteeing all or any of the
Obligations, or (d) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, any Grantor or Guarantor in respect of
the Obligations or this Agreement.
SECTION 11.13. Termination or Release. (a) This Agreement and the
Other Security Documents shall terminate and all pledges and security interests
created hereunder and thereunder shall be automatically released when (i) the
principal of all Loans, all accrued interest and fees and all other Obligations
due and owing under the Deposit-Funded Credit Agreement have been paid in full,
(ii) the Lenders have no further commitment to lend under the Deposit-Funded
Credit Agreement, (iii) the LC Exposures under the Deposit-Funded Credit
Agreement have been reduced to zero and (iv) the Issuing Banks under the
Deposit-Funded Credit Agreement have no further obligation to issue Letters of
Credit thereunder.
(b) A Subsidiary shall automatically be released from its
obligations as a Grantor or Guarantor hereunder and under each Other Security
Document, and all pledges hereunder or under any Other Security Document of and
security interests created hereunder or under any Other Security Document in the
Collateral of such Subsidiary shall be automatically released, upon the
consummation of any transaction permitted by this Agreement and the
Deposit-Funded Credit Agreement as a result of which such Subsidiary ceases to
be a Subsidiary; provided that any consent to such transaction required by the
Deposit-Funded Credit Agreement shall have been obtained and the terms of such
consent shall not provide otherwise.
43
(c) Upon any sale or other transfer of any Collateral permitted
under this Agreement and the Deposit-Funded Credit Agreement by any Grantor to
any Person other than the Company or a Subsidiary, or upon the effectiveness of
any written consent to the release of any pledge or security interest created
hereby or by any Other Security Document in respect of any Collateral pursuant
to and in accordance with the requirements of the Deposit-Funded Credit
Agreement, all pledges hereunder or under any Other Security Document of and
security interests created hereunder or under any Other Security Document in
such Collateral shall be automatically released.
(d) At the time the Goodyear Venezuela Transaction is completed, all
pledges hereunder or under any Other Security Document of and security interests
created hereunder or under any Other Security Document in the Equity Interests
of C.A. Goodyear de Venezuela sold by the Company to Goodyear do Brasil
Productos de Borraca Ltda. in such transaction shall be automatically released.
(e) In connection with any termination or release pursuant to
paragraph (a), (b), (c) or (d) above, the Collateral Agent shall execute and
deliver to each applicable Grantor, at such Grantor's expense, all documents
that such Grantor shall reasonably request to evidence such termination or
release. Any execution and delivery of documents pursuant to this Section shall
be without recourse to or representation or warranty by the Collateral Agent.
Notwithstanding paragraph (b) or (c) above, in the case of any Lien on any
Equity Interests in an entity organized under the laws of a jurisdiction outside
the United States of America, such Lien shall not be released until the
Collateral Agent executes and delivers to the applicable Grantor a written
consent to such release. The Collateral Agent agrees to execute and deliver any
such written consent required by the immediately preceding sentence that is
requested by the applicable Grantor in connection with the consummation of any
transaction permitted by this Agreement and the Credit Agreements.
SECTION 11.14. Additional Grantors and Guarantors. (a) Upon
execution and delivery by the Collateral Agent and a Subsidiary of an instrument
in a form agreed to by the Collateral Agent and the Company (an "Additional
Subsidiary Agreement"), such Subsidiary shall become a party hereto and a
Grantor and a Guarantor hereunder to the extent set forth in such Additional
Subsidiary Agreement and shall, to the extent applicable, guarantee and create
pledges of and security interests in its assets to secure the Obligations with
the same force and effect as if originally named as a Grantor or Guarantor
herein. At the time any Subsidiary shall become a party to this Agreement as
provided in the preceding sentence, the Schedules hereto shall be supplemented
as appropriate to reflect the guarantees, pledges and security interests, as
applicable, given or created by such Subsidiary, and such supplemented Schedules
shall replace the Schedules that shall theretofore have been attached to this
Agreement. The execution and delivery of any Additional Subsidiary Agreement and
the amendment of the Schedules hereto as above provided shall not require the
consent of any other Credit Party. The rights and obligations of each Credit
Party shall remain in full force and effect notwithstanding the addition of any
new Credit Party as a party to this Agreement.
44
(b) Any Subsidiary that is a Guarantor may elect to become a Grantor
at any time by delivering a certificate in substantially the form agreed to by
the Collateral Agent and the Company or in such other form as may be reasonably
required by the Collateral Agent. Any such election shall be effective
immediately upon the delivery of such certificate. At the time any such election
is made, the Schedules hereto shall be supplemented as appropriate to reflect
the pledges and security interests given or created by such Subsidiary, and such
supplemented Schedules shall replace the Schedules that shall theretofore have
been attached to this Agreement. The execution and delivery of any certificate
hereunder and the amendment of the Schedules hereto as above provided shall not
require the consent of the Collateral Agent or any Credit Party. The rights and
obligations of each Credit Party shall remain in full force and effect
notwithstanding the addition of any new Grantor as a party to this Agreement.
SECTION 11.15. Collateral Agent Appointed Attorney-in-Fact. Each
Grantor hereby appoints the Collateral Agent the attorney-in-fact of such
Grantor for the purpose of carrying out the provisions of this Agreement and
taking any action and executing any instrument that the Collateral Agent may
deem necessary or advisable to accomplish the purposes hereof in each case upon
the occurrence and during the continuance of an Event of Default, which
appointment is irrevocable and coupled with an interest. Without limiting the
generality of the foregoing, the Collateral Agent shall have the right, upon the
occurrence and during the continuance of an Event of Default under the
Deposit-Funded Credit Agreement (but subject to any applicable provisions of
Article IX), with full power of substitution either in the Collateral Agent's
name or in the name of such Grantor (a) to receive, endorse, assign and/or
deliver any and all notes, acceptances, checks, drafts, money orders or other
evidences of payment relating to the Collateral of such Grantor or any part
thereof; (b) to demand, collect, receive payment of, give receipt for and give
discharges and releases of all or any of the Collateral; (c) to sign the name of
any Grantor on any invoice or bill of lading relating to any of the Collateral;
(d) to send verifications of Accounts Receivable to any Account Debtor; (e) to
commence and prosecute any and all suits, actions or proceedings at law or in
equity in any court of competent jurisdiction to collect or otherwise realize on
all or any of the Collateral or to enforce any rights in respect of any
Collateral; (f) to settle, compromise, compound, adjust or defend any actions,
suits or proceedings relating to all or any of the Collateral; (g) to notify, or
to require any Grantor to notify, Account Debtors to make payment directly to
the Collateral Agent relating to the Collateral; and (h) to use, sell, assign,
transfer, pledge, make any agreement with respect to or otherwise deal with all
or any of the Collateral, and to do all other acts and things necessary to carry
out the purposes of this Agreement, as fully and completely as though the
Collateral Agent were the absolute owner of the Collateral for all purposes;
provided that nothing herein contained shall be construed as requiring or
obligating the Collateral Agent to make any commitment or to make any inquiry as
to the nature or sufficiency of any payment received by the Collateral Agent, or
to present or file any claim or notice, or to take any action with respect to
the Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby. The Collateral Agent and the other
Secured Parties shall be accountable only for amounts actually received as a
result of the exercise of the powers granted to them herein, and neither they
nor their officers, directors, employees or agents shall be responsible to any
Grantor for any act or failure to
45
act hereunder, except for their own gross negligence or wilful misconduct or the
breach of such Person of its obligations set forth herein.
46
THE GOODYEAR TIRE & RUBBER
COMPANY
by
/s/ Darren R. Wells
---------------------------------------
Name: Darren R. Wells
Title: Vice President and Treasurer
JPMORGAN CHASE BANK, individually and as
Administrative Agent and Collateral Agent,
by
/s/ Gary L. Spevack
---------------------------------------
Name: Gary L. Spevack
Title: Vice President
ALLIED TIRE SALES, INC., as a
GUARANTOR and a GRANTOR
by
/s/ Darren R. Wells
---------------------------------------
Name: Darren R. Wells
Title: Vice President
BELT CONCEPTS OF AMERICA, INC.,
as a GUARANTOR and a GRANTOR
by
/s/ Darren R. Wells
---------------------------------------
Name: Darren R. Wells
Title: Vice President
CELERON CORPORATION, as a
GUARANTOR
by
/s/ Darren R. Wells
---------------------------------------
Name: Darren R. Wells
Title: Vice President
COSMOFLEX, INC., as a GUARANTOR
and a GRANTOR
by
/s/ Darren R. Wells
---------------------------------------
Name: Darren R. Wells
Title: Vice President
DAPPER TIRE CO., INC., as a
GUARANTOR and a GRANTOR
by
/s/ Darren R. Wells
---------------------------------------
Name: Darren R. Wells
Title: Vice President
DIVESTED COMPANIES HOLDING
COMPANY, as a GUARANTOR and a
GRANTOR
by
/s/ Ronald J. Carr
\ ---------------------------------------
Name: Ronald J. Carr
Title: Vice President
by
/s/ Randall M. Loyd
---------------------------------------
Name: Randall M. Loyd
Title: Vice President
DIVESTED LITCHFIELD PARK
PROPERTIES, INC., as a GUARANTOR
and a GRANTOR
by
/s/ Ronald J. Carr
---------------------------------------
Name: Ronald J. Carr
Title: Vice President
by
/s/ Randall M. Loyd
---------------------------------------
Name: Randall M. Loyd
Title: Vice President
GOODYEAR FARMS, INC., as a
GUARANTOR and a GRANTOR
by
/s/ Darren R. Wells
---------------------------------------
Name: Darren R. Wells
Title: Vice President
GOODYEAR INTERNATIONAL
CORPORATION, as a GUARANTOR and
a GRANTOR
by
/s/ Darren R. Wells
---------------------------------------
Name: Darren R. Wells
Title: Vice President
GOODYEAR WESTERN HEMISPHERE
CORPORATION, as a GUARANTOR
by
/s/ Darren R. Wells
---------------------------------------
Name: Darren R. Wells
Title: Vice President
THE KELLY-SPRINGFIELD TIRE
CORPORATION, as a GUARANTOR and
a GRANTOR
by
/s/ Darren R. Wells
---------------------------------------
Name: Darren R. Wells
Title: Vice President
WHEEL ASSEMBLIES INC., as a
GUARANTOR
by
/s/ Darren R. Wells
---------------------------------------
Name: Darren R. Wells
Title: Vice President
WINGFOOT COMMERCIAL TIRE
SYSTEMS, LLC, as a GUARANTOR and
a GRANTOR
by
/s/ Darren R. Wells
---------------------------------------
Name: Darren R. Wells
Title: Vice President
WINGFOOT VENTURES EIGHT INC.,
as a GUARANTOR and a GRANTOR
by
/s/ Ronald J. Carr
---------------------------------------
Name: Ronald J. Carr
Title: Vice President
GOODYEAR CANADA INC., as a
GUARANTOR and a GRANTOR
by
/s/ L. M. Alexander
---------------------------------------
Name: L. M. Alexander
Title: Vice President
by
/s/ R. M. Hunter
---------------------------------------
Name: R. M. Hunter
Title: Assistant Secretary