TABLE OF CONTENTS

 

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PREAMBLE		1
DECLARATION OF TRUST:		1
SECTION 1. DEFINED TERMS		2
1.1	Definitions	2
SECTION 2. ENFORCEMENT OF SECURED OBLIGATIONS		15
2.1	Significant Event Notices	15
2.2	General Authority of the Collateral Trustee over the Collateral	16
2.3	Right to Initiate Judicial Proceedings	16
2.4	Exercise of Powers; Instructions of the Controlling Party	16
2.5	Remedies Not Exclusive	17
2.6	Waiver and Estoppel	18
2.7	Limitation on Collateral Trustee’s Duty in Respect of Collateral	18
2.8	Limitation by Law	18
2.9	Rights of Secured Parties under Secured Instruments	18
2.10	Collateral Use Prior to Foreclosure	19
2.11	Copies to Company	20
SECTION 3. COLLATERAL ACCOUNT; DISTRIBUTIONS		20
3.1	The Collateral Account	20
3.2	Control of Collateral Account	21
3.3	Investment of Funds Deposited in Collateral Account	21
3.4	Application of Moneys	21
3.5	Amounts Held for Contingent Secured Obligations	23
3.6	Collateral Trustee’s Calculations	24
3.7	Pro Rata Sharing	24
3.8	Collateral Account Information and Access	24
SECTION 4. AGREEMENTS WITH TRUSTEE		25
4.1	Delivery of Secured Instruments	25
4.2	Information as to Secured Parties and Holder Representatives	25
4.3	Compensation and Expenses	25
4.4	Stamp and Other Similar Taxes	25
4.5	Filing Fees, Excise Taxes, Etc.	26
4.6	Indemnification	26

 

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4.7	Trustee’s Lien	26
4.8	Further Assurances	26
4.9	Inspection of Properties and Books; Collateral Accountings	27
SECTION 5. THE COLLATERAL TRUSTEE		27
5.1	Acceptance of Trust	27
5.2	Exculpatory Provisions	27
5.3	Delegation of Duties	29
5.4	Reliance by Collateral Trustee	30
5.5	Limitations on Duties of Trustee	31
5.6	Moneys to be Held in Trust	32
5.7	Resignation and Removal of the Collateral Trustee	32
5.8	Status of Successor Collateral Trustee	34
5.9	Merger of the Collateral Trustee	34
5.10	Co-Collateral Trustee; Separate Collateral Trustee	34
5.11	Treatment of Payee or Indorsee by Collateral Trustee; Representatives of Secured Parties	35
SECTION 6. MISCELLANEOUS		36
6.1	Notices	36
6.2	No Waivers	36
6.3	Amendments, Supplements and Waivers	36
6.4	Headings	38
6.5	Severability	38
6.6	Successors and Assigns	38
6.7	Currency Conversions	38
6.8	Acknowledgements	38
6.9	Governing Law	39
6.10	Counterparts	39
6.11	Termination and Release	39
6.12	New Grantors	42
6.13	Inspection by Regulatory Agencies	42
6.14	Confidentiality	42
6.15	Submission to Jurisdiction; Waivers	43
6.16	WAIVERS OF JURY TRIAL	43
SECTION 7. DESIGNATION OF ADDITIONAL DEBT		43
7.1	Designations of Additional Debt	43
7.2	Termination of Designation	44
SECTION 8. INTERCREDITOR PROVISIONS		44
8.1	Second Priority Debt	44
8.2	Junior Priority Debt	49
8.3	First Priority Obligations Unconditional	55

 

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8.4	Second Priority Obligations Unconditional	56
8.5	Information Concerning Financial Condition of the Grantors	56

 

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ANNEXES
I	Trust Security Documents
EXHIBITS
A	Form of Notice of Event of Default
B	Form of Joinder Agreement
C	Form of Notice of Designation of Additional Debt
D	Form of Notice of Cancellation
E	Form of Notice of Acceleration
F	Form of Notice of Foreclosure

 

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SECTION 1.
DEFINED TERMS

 

1.1       Definitions .  (a)  Unless otherwise defined herein, terms defined in the First Priority Credit Agreement and used herein shall have the meanings given to them in the First Priority Credit Agreement (as defined below but without giving effect to clause (ii) of the definition thereof or any termination thereof).

 

(b)           The following terms shall have the respective meanings set forth below:

 

“ 2011 Second Priority Agent ” shall mean JPMorgan Chase Bank, N.A., in its capacity as administrative agent under the 2011 Second Priority Credit Agreement, and any successor 2011 Second Priority Agent appointed thereunder.

 

“ 2011 Second Priority Credit Agreement ” shall mean (i) the $1,700,000,000 Second Priority Credit Agreement, dated as of the Effective Date, among the Company, the banks from time to time parties thereto, and JPMorgan Chase Bank, N.A., as administrative agent, and the other agents named therein, and (ii) any other credit agreement, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any Indebtedness or other financial accommodation that has been incurred to Refinance (whether by the same or different banks) in whole or in part (under one or more agreements) the Indebtedness and other obligations outstanding under the 2011 Second Priority Credit Agreement referred to in clause (i) above or any other agreement or instrument referred to in this clause (ii) (including, without limitation, adding or removing any Person as a borrower, guarantor or other obligor thereunder) unless such agreement or instrument expressly provides that it is not a 2011 Second Priority Credit Agreement hereunder.

 

“ 2011 Second Priority Guarantee ” shall mean (i) the Guarantee Agreement, dated as of the Effective Date, delivered by, among others, the Grantors pursuant to the 2011 Second Priority Credit Agreement, and (ii) any guarantee or similar document entered into in connection with a Refinancing of the Indebtedness under the 2011 Second Priority Credit Agreement.

 

“ 2011 Second Priority Collateral Documents ” shall mean (i) the “Collateral Documents” as such term is defined in the 2011 Second Priority Credit Agreement, and (ii) any collateral documents or similar documents entered into in connection with a Refinancing of the Indebtedness under the 2011 Second Priority Credit Agreement.

 

“ 2011 Second Priority Loan Documents ” shall mean (i) the “Loan Documents” as such term is defined in the 2011 Second Priority Credit Agreement, and (ii) any loan documents or similar documents entered into in connection with a Refinancing of the Indebtedness under the 2011 Second Priority Credit Agreement.

 

“ 2011 Second Priority Secured Obligations ” shall mean, with respect to any Grantor, all obligations and liabilities of such Grantor which may arise under or in

 

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connection with the 2011 Second Priority Guarantee or any other 2011 Second Priority Collateral Documents, in each case whether on account of guarantee obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel that are required to be paid by such Grantor pursuant to the terms of the 2011 Second Priority Guarantee or any other 2011 Second Priority Collateral Documents); provided , however , that to the extent any payment with respect to the 2011 Second Priority Secured Obligations (whether by or on behalf of any Grantor, as proceeds of Collateral, enforcement of any right of set off or otherwise) is declared to be fraudulent or preferential in any respect, set aside or required to be paid to a debtor in possession, trustee, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.

 

“ 2012 Second Priority Agent ” shall mean JPMorgan Chase Bank, N.A., in its capacity as administrative agent under the 2012 Second Priority Credit Agreement, and any successor 2012 Second Priority Agent appointed thereunder.

 

“ 2012 Second Priority Credit Agreement ” shall mean (i) the $950,000,000 Second Priority Credit Agreement, dated as of the Effective Date, among the Company, the banks from time to time parties thereto, JPMorgan Chase Bank, N.A., as administrative agent, and the other agents named therein , and (ii) any other credit agreement, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any Indebtedness or other financial accommodation that has been incurred to Refinance (whether by the same or different banks) in whole or in part (under one or more agreements) the Indebtedness and other obligations outstanding under the 2012 Second Priority Credit Agreement referred to in clause (i) above or any other agreement or instrument referred to in this clause (ii) (including, without limitation, adding or removing any Person as a borrower, guarantor or other obligor thereunder) unless such agreement or instrument expressly provides that it is not a 2012 Second Priority Credit Agreement hereunder.

 

“ 2012 Second Priority Guarantee ” shall mean (i) the Guarantee Agreement, dated as of the Effective Date, delivered by, among others, the Grantors pursuant to the 2012 Second Priority Credit Agreement, and (ii) any guarantee or similar document entered into in connection with a Refinancing of the Indebtedness under the 2012 Second Priority Credit Agreement.

 

“ 2012 Second Priority Collateral Documents ” shall mean (i) the “Collateral Documents” as such term is defined in the 2012 Second Priority Credit Agreement, and (ii) any collateral documents or similar documents entered into in connection with a Refinancing of the Indebtedness under the 2012 Second Priority Credit Agreement.

 

“ 2012 Second Priority Loan Documents ” shall mean (i) the “Loan Documents” as such term is defined in the 2012 Second Priority Credit Agreement, and (ii) any loan documents or similar documents entered into in connection with a Refinancing of the Indebtedness under the 2012 Second Priority Credit Agreement.

 

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“ 2012 Second Priority Secured Obligations ” shall mean, with respect to any Grantor, all obligations and liabilities of such Grantor which may arise under or in connection with the 2012 Second Priority Guarantee or any other 2012 Second Priority Collateral Documents, in each case whether on account of guarantee obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel that are required to be paid by such Grantor pursuant to the terms of the 2012 Second Priority Guarantee or any other 2012 Second Priority Collateral Documents); provided , however , that to the extent any payment with respect to the 2012 Second Priority Secured Obligations (whether by or on behalf of any Grantor, as proceeds of Collateral, enforcement of any right of set off or otherwise) is declared to be fraudulent or preferential in any respect, set aside or required to be paid to a debtor in possession, trustee, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.

 

“ Acceleration Event ” shall mean, with respect to any of the Secured Obligations, (i) such Secured Obligations have not been paid in full at the stated final maturity thereof and any applicable grace period has expired or (ii) a default has occurred under the relevant Secured Instrument and, as a result thereof, all such Secured Obligations outstanding have become due and payable and have not been paid in full or, in the case of any reimbursement obligation in respect of an outstanding letter of credit or similar instrument, a requirement for cash collateralization has not been satisfied as of the time such requirement is to be satisfied pursuant to the relevant Secured Instrument.

 

“ Additional Debt ” shall mean, collectively at any time, any Second Priority Additional Debt and any Junior Priority Additional Debt then outstanding.

 

“ Additional Debt Documents ” shall mean, collectively at any time, any Second Priority Additional Debt Documents and any Junior Priority Additional Debt Documents then in effect.

 

“ Bankruptcy Code ” shall mean the United States Bankruptcy Code (11 U.S.C. §101 et seq.), as amended from time to time.

 

“ Bankruptcy Law ” shall mean each of the Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors.

 

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

 

“ Class ” shall mean, as the context may require, the First Priority Class, the Second Priority Class and the Junior Priority Class.

 

“ Collateral ” shall mean, collectively, all collateral in which the Collateral Trustee is granted a security interest pursuant to any Trust Security Document.

 

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“ Collateral Account ” shall have the meaning assigned in subsection 3.1.

 

“ Collateral Enforcement Action ” shall mean, with respect to any Secured Party, for such Secured Party, whether or not in consultation with any other Secured Party, to exercise, seek to exercise, join any Person in exercising or to institute or to maintain or to participate in any action or proceeding with respect to, any rights or remedies with respect to any Collateral, including (i) instituting or maintaining, or joining any Person in instituting or maintaining, any enforcement, contest, protest, attachment, collection, execution, levy or foreclosure action or proceeding with respect to any Collateral, whether under any Secured Instrument, Trust Security Document or otherwise, (ii) exercising any right of set-off with respect to any Grantor, or (iii) exercising any other right or remedy under the Uniform Commercial Code of any applicable jurisdiction or under any Bankruptcy Law or other applicable law.

 

“ Collateral Trust Agreement ” shall mean this Collateral Trust and Intercreditor Agreement.

 

“ Collateral Trustee ” shall have the meaning set forth in the preamble hereto.

 

“ Company ” shall have the meaning set forth in the recitals hereto.

 

“ Controlling Party ” shall mean (a) at any time when any First Priority Secured Obligations or commitments in respect thereof remain outstanding, the First Priority Agent, (b) at any time when the foregoing clause (a) is not applicable and any 2011 Second Priority Secured Obligations or 2012 Second Priority Secured Obligations or commitments in respect thereof remain outstanding, the Second Priority Credit Agents acting together, (c) at any time when the foregoing clauses (a) and (b) are not applicable and any Second Priority Additional Debt Obligations remain outstanding, the Second Priority Additional Debt Representative representing the holders having the greatest amount of Second Priority Additional Debt Obligations outstanding, and (d) at any time when the foregoing clauses (a), (b) and (c) are not applicable and any Junior Priority Additional Debt Obligations remain outstanding, the Junior Priority Additional Debt Representative representing the holders having the greatest amount of Junior Priority Additional Debt Obligations outstanding.

 

“ Deposit Account Control Agreement ” shall mean any deposit account control agreement among the Grantors, the Collateral Trustee and JPMorgan Chase Bank, N.A., as depositary.

 

“ DIP Financing ” shall mean any financing obtained by any Grantor during any Insolvency Proceeding or otherwise pursuant to any Bankruptcy Law, including any such financing obtained by any Grantor under Section 363 or 364 of the Bankruptcy Code or consisting of any arrangement for use of cash collateral held in respect of any Secured Obligation under Section 363 of the Bankruptcy Code or under any similar provision of any Bankruptcy Law.

 

“ Distribution Date ” shall mean each date fixed by the Controlling Party for a distribution to the Secured Parties of funds held in the Collateral Account, the first of

 

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which shall be within 30 days after the Collateral Trustee receives a Notice of Event of Default then in effect and the remainder of which shall be monthly thereafter (or more frequently if requested by the Controlling Party) on the day of the month corresponding to the first Distribution Date (or, if there be no such corresponding day, the last day of such month) provided that if any such day is not a Business Day, such Distribution Date shall be the next Business Day.

 

“ Dollars ” and “ $ ” shall mean the lawful money of the United States.

 

“ Effective Date ” shall mean March 13, 2009.

 

“ Enforcement Event ” shall mean (i) the receipt by the Collateral Trustee of a Significant Event Notice or (ii) the occurrence of any Event of Default pursuant to Section 6.1(f) or 6.1(g) of the First Priority Credit Agreement, Section 6.1(f) or 6.1(g) of either Second Priority Credit Agreement or any similar provision under any Additional Debt Document; provided , however , to the extent that such Significant Event Notice is no longer in effect, or such Event of Default is no longer continuing, the Enforcement Event shall no longer be continuing.

 

“ Event of Default ” shall mean an “Event of Default” or any equivalent term as such term is used in the First Priority Credit Agreement, Second Priority Credit Agreements or any Additional Debt Documents, respectively.

 

“ Extensions of Credit ” shall mean, with respect to any holder of First Priority Secured Obligations, Second Priority Secured Obligations or Junior Priority Additional Debt Obligations, the aggregate principal amount of all loans, notes or letters of credit under the First Priority Credit Agreement, the Second Priority Credit Agreements or any Additional Debt Documents, as the case may be, held by such holder then outstanding.

 

“ First Priority Agent ” shall mean JPMorgan Chase Bank, N.A., in its capacity as Administrative Agent under the First Priority Credit Agreement, and any successor First Priority Agent appointed thereunder.

 

“ First Priority Class ” shall mean, collectively, the Secured Parties which are holders of any First Priority Secured Obligations.

 

“ First Priority Collateral Documents ” shall mean the “Collateral Documents” as such term is defined in the First Priority Credit Agreement.

 

“ First Priority Credit Agreement ” shall mean (i) the First Priority Credit Agreement, dated as of the Effective Date, among the Company, the Banks from time to time parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and the other agents named therein, and (ii) any other credit agreement, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any Indebtedness or other financial accommodation that has been incurred to Refinance (whether by the same or different banks) in whole or in part (under one or more agreements) the Indebtedness and other obligations outstanding under the First Priority Credit Agreement referred to in clause (i) above or any other agreement or

 

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instrument referred to in this clause (ii) (including, without limitation, adding or removing any Person as a borrower, guarantor or other obligor thereunder) unless such agreement or instrument expressly provides that it is not a First Priority Credit Agreement hereunder.

 

“ First Priority Guarantee ” shall mean the Guarantee Agreement, dated as of the Effective Date, delivered by, among others, the Grantors pursuant to the First Priority Credit Agreement.

 

“ First Priority Loan Documents ” shall mean the “Loan Documents” as such term is defined in the First Priority Credit Agreement.

 

“ First Priority Secured Obligations ” shall mean, with respect to any Grantor, all obligations and liabilities of such Grantor which may arise under or in connection with the First Priority Guarantee or any other First Priority Collateral Documents, in each case whether on account of guarantee obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the First Priority Agent or the Banks that are required to be paid by such Grantor pursuant to the terms of the First Priority Guarantee or any other First Priority Collateral Documents); provided , however , that to the extent any payment with respect to the First Priority Secured Obligations (whether by or on behalf of any Grantor, as proceeds of Collateral, enforcement of any right of set off or otherwise) is declared to be fraudulent or preferential in any respect, set aside or required to be paid to a debtor in possession, trustee, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.

 

“ First Priority Secured Parties ” shall mean at any time the Collateral Trustee (in its capacity as the holder of the Lien on the Collateral securing the First Priority Secured Obligations), the First Priority Agent (for the benefit of the Banks under the First Priority Credit Agreement and itself as Administrative Agent thereunder), the other Agents and any other holder of First Priority Secured Obligations outstanding at such time.

 

“ Foreclosure ” shall mean, with respect to any Collateral and following a Notice of Foreclosure, any exercise of remedies under any of the Secured Instruments, applicable law or any other act or action taken in preparation for, anticipation of or in connection with any reasonably immediate taking physical possession of, realizing upon, exercising dominion and control over, or otherwise causing the assignment for its benefit of, such Collateral by the Collateral Trustee (acting at the written direction of the Controlling Party) pursuant to the Uniform Commercial Code or any other applicable law (or consensual arrangement in lieu thereof expressly agreed to by the Collateral Trustee (acting at the written direction of the Controlling Party) and the applicable Grantor) and otherwise in the manner and at the times permitted under the Trust Security Documents. The term “Foreclose” shall have a correlative meaning.

 

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“ Governmental Authority ” shall mean any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, or any federal, state or municipal court, in each case whether of the United States or foreign.

 

“ Grantors ” shall have the meaning assigned in the preamble hereto.

 

“ Holder Representative ” shall mean (i) in respect of the First Priority Secured Obligations, the First Priority Agent, (ii) in respect of any Second Priority Secured Obligations, the relevant Second Priority Agent and (iii) in respect of any Junior Priority Additional Debt Obligations, the relevant Junior Priority Additional Debt Representative.

 

“ Insolvency Proceeding ” shall mean each of the following, in each case with respect to the Company or any Grantor or any property or Indebtedness of the Company or any Grantor (a)(i) any voluntary or involuntary case or proceeding under any Bankruptcy Law or any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, (ii) any case or proceeding seeking receivership, liquidation, reorganization, winding up or other similar case or proceeding, (iii) any case or proceeding seeking arrangement, adjustment, protection, relief or composition of any debt and (iv) any case or proceeding seeking the entry of an order for relief or the appointment of a custodian, receiver, trustee or other similar official and (b) any general assignment for the benefit of creditors.

 

“ Junior Priority Additional Debt ” shall mean, collectively, any “Additional Debt” designated by the Company as “Junior Priority Additional Debt” pursuant to subsection 7.1.

 

“ Junior Priority Additional Debt Documents ” shall mean any agreements or other documents entered into in connection with any Junior Priority Additional Debt.

 

“ Junior Priority Additional Debt Obligations ” shall mean, collectively, the unpaid principal of, and interest on, any Junior Priority Additional Debt and all other obligations and liabilities of any Grantor (including, without limitation, interest accruing at the then applicable rate provided in the Junior Priority Additional Debt Documents after the maturity of the Indebtedness thereunder and all Post-Petition Interest) to the holders of such Indebtedness or other obligations, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter incurred, which may arise under, out of, or in connection with, the Junior Priority Additional Debt Documents or any other document made, delivered or given in connection with any of the foregoing, in each case whether on account of principal, interest, fees, prepayment premiums, indemnities, costs, expenses or otherwise (including without limitation all fees and disbursements of counsel to any Junior Priority Additional Debt Representative or to the holders of such Junior Priority Additional Debt that are required to be paid by the any of the Grantors pursuant to the terms of any of foregoing agreements).

 

“ Junior Priority Additional Debt Representative ” shall mean any Person designated by the Company pursuant to subsection 7.1 as a “Junior Priority Additional Debt Representative” for any Junior Priority Additional Debt, and any successor Junior

 

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Priority Additional Debt Representative appointed under the Junior Priority Additional Debt Documents for such Junior Priority Additional Debt.

 

“ Junior Priority Class ” shall mean, collectively, the Secured Parties which are holders of any Junior Priority Additional Debt Obligations in respect of any Junior Priority Additional Debt.

 

“ Junior Priority Secured Parties ” shall mean at any time the Collateral Trustee (in its capacity as the holder of the Lien on the Collateral securing the Junior Priority Additional Debt Obligations), any Junior Priority Additional Debt Representatives and any other holder of Junior Priority Additional Debt Obligations outstanding at such time.

 

“ Lien ” shall mean, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind, or any other type of preferential arrangement, in each case that has the effect of creating a security interest in respect of such asset.

 

“ Majority Class Holders ” shall mean, on any date, each of the following: (i) the Majority First Priority Secured Parties; (ii) the Majority Second Priority Secured Parties and (iii) the Majority Junior Priority Secured Parties.

 

“ Majority First Priority Secured Parties ” shall mean, on any date, those First Priority Class members eligible to vote on matters under the First Priority Loan Documents and holding (or representing) more than 50% of the aggregate unfunded commitments and Extensions of Credit under the First Priority Loan Documents (and, if no Notice of Acceleration is outstanding with respect thereto, unfunded commitments) that are outstanding on such date and held by such First Priority Class members so entitled to vote.  For the purpose of this definition, the First Priority Agent shall be deemed to hold or represent, and shall be entitled to vote and give notices and directions with respect to, all First Priority Secured Obligations.

 

“ Majority Junior Priority Secured Parties ” shall mean, on any date, those Junior Priority Class members eligible to vote on matters under the Junior Priority Additional Debt Documents and holding (or representing) more than 50% of the aggregate unfunded commitments and Extensions of Credit that are outstanding on such date and held by Junior Priority Class members so entitled to vote. For the purpose of this definition, any Junior Priority Additional Debt Representative shall be deemed to hold or represent, and shall be entitled to vote and give notices and directions with respect to, all of its respective Junior Priority Additional Debt Obligations.

 

“ Majority Second Priority Secured Parties ” shall mean, on any date, those Second Priority Class members eligible to vote on matters under the Second Priority Loan Documents and any Second Priority Additional Debt Documents and holding (or representing) more than 50% of the aggregate unfunded commitments and Extensions of Credit under the Second Priority Loan Documents and any Second Priority Additional Debt Documents (and, if no Notice of Acceleration is outstanding with respect thereto, unfunded commitments) that are outstanding on such date and held by such Second

 

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Priority Class members so entitled to vote. For the purpose of this definition, any Second Priority Agent shall be deemed to hold or represent, and shall be entitled to vote and give notices and directions with respect to, all of its respective Second Priority Secured Obligations.

 

“ Majority Secured Parties ” shall mean, on any date, Secured Parties eligible to vote on matters under the applicable Secured Instruments and holding (or representing) more than 50% of the sum of (i) the aggregate unfunded commitments and Extensions of Credit under the First Priority Loan Documents (and, if no Notice of Acceleration is outstanding with respect thereto, unfunded commitments) that are outstanding on such date and held by First Priority Class members so entitled to vote, (ii) the aggregate unfunded commitments and Extensions of Credit under the Second Priority Loan Documents and any Second Priority Additional Debt Documents (and, if no Notice of Acceleration is outstanding with respect thereto, unfunded commitments) that are outstanding on such date and held by Second Priority Class members so entitled to vote, and (iii) the aggregate unfunded commitments and Extensions of Credit that are outstanding on such date and held by Junior Priority Class members so entitled to vote.  For the purpose of this definition, (a) the First Priority Agent shall be deemed to hold or represent, and shall be entitled to vote and give notices and directions with respect to, all First Priority Secured Obligations, (b) any Second Priority Agent shall be deemed to hold or represent, and shall be entitled to vote and give notices and directions with respect to, all of its respective Second Priority Secured Obligations, and (c) any Junior Priority Additional Debt Representative shall be deemed to hold or represent, and shall be entitled to vote and give notices and directions with respect to, all of its respective Junior Priority Additional Debt Obligations.

 

“ Notice of Acceleration ” shall mean (i) a written notice delivered to the Collateral Trustee, while any First Priority Secured Obligations are outstanding, by the First Priority Agent, and thereafter while any Second Priority Secured Obligations are outstanding, by the relevant Holder Representative in respect of such Second Priority Secured Obligations, and thereafter while any Junior Priority Additional Debt Obligations are outstanding, by the relevant Holder Representative in respect of such Junior Priority Additional Debt Obligations, stating that an Acceleration Event has occurred and is continuing in respect of the relevant Secured Obligations or (ii) the occurrence of any Event of Default pursuant to Section 6.1(f) or 6.1(g) of the First Priority Credit Agreement, Section 6.1(f) or 6.1(g) of either Second Priority Credit Agreement or any similar provision under any Additional Debt Document.  Each Notice of Acceleration shall be in substantially the form of Exhibit E.

 

“ Notice of Cancellation ” shall have the meaning assigned in subsection 2.1(c).

 

“ Notice of Designation of Additional Debt ” shall have the meaning assigned in subsection 7.1.

 

“ Notice of Event of Default ” shall mean a written notice delivered to the Collateral Trustee, (i) while any First Priority Secured Obligations are outstanding, by the First Priority Agent, (ii) while any Second Priority Secured Obligations are outstanding,

 

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by any Second Priority Agent and (iii) while any Junior Priority Additional Debt Obligations are outstanding, by any Junior Priority Additional Debt Representative, stating that an Event of Default has occurred and is continuing under the First Priority Credit Agreement, the Second Priority Credit Agreements or any Additional Debt Document, as the case may be.  Each Notice of Event of Default shall be in substantially the form of Exhibit A.

 

“ Notice of Foreclosure ” shall mean, with respect to any Collateral, a written notice delivered to the Company, the applicable Grantor(s) and the Collateral Trustee (unless delivery of such notice would violate an automatic stay or similar prohibition arising from a bankruptcy filing) informing such parties that a written direction has been delivered to the Collateral Trustee instructing the Collateral Trustee to initiate Foreclosure upon the Collateral as identified and described in such written direction (an executed copy of which shall be attached to any such notice).  Each Notice of Foreclosure shall be in substantially the form of Exhibit F.

 

“ Opinion of Counsel ” shall mean an opinion in writing signed by legal counsel reasonably satisfactory to the Collateral Trustee, who may be counsel regularly or specially retained by the Collateral Trustee or counsel (including, if reasonably satisfactory to the Collateral Trustee, in-house counsel) to the Company.

 

“ paid in full ” or “ payment in full ” or “ pay such amounts in full ” shall mean, with respect to any Secured Obligations (other than contingent indemnification and expense reimbursement obligations for which no claim has been made), (i) with respect to the First Priority Secured Obligations, the payment in full (other than as part of a Refinancing) in cash (after giving effect to any agreed discount) of the principal of, accrued (but unpaid) interest (including Post-Petition Interest) and premium, if any on all such Secured Obligations, after or concurrently with termination of all commitments thereunder and payment in full of all fees payable at or prior to the time such principal and interest are paid (ii) with respect to the Second Priority Secured Obligations, the payment in full (other than as part of a Refinancing) in cash (after giving effect to any agreed discount) of the principal of, accrued (but unpaid) interest (including Post-Petition Interest) and premium, if any on all such Secured Obligations in compliance with the Second Priority Loan Documents or any Second Priority Additional Debt Documents, as the case may be, after or concurrently with termination of all commitments thereunder and payment in full of all fees payable at or prior to the time such principal and interest are paid, (iii) with respect to the Junior Priority Additional Debt Obligations, the payment in full (other than as part of a Refinancing) in cash (after giving effect to any agreed discount) of the principal of, accrued (but unpaid) interest (including Post-Petition Interest) and premium, if any on all such Secured Obligations, after or concurrently with the payment in full of all fees payable at or prior to the time such principal and interest are paid and (iv) with respect to any other Secured Obligations, the payment in full in cash (after giving effect to any agreed discount) of such other Secured Obligations in compliance with the applicable documentation.

 

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“ Responsible Officer ” shall mean, as to the Company or any Grantor, the president, any vice-president, the senior vice president, the executive vice president, the chief operating officer, the chief executive officer or the chief financial officer.

 

“ Second Priority Additional Debt ” shall mean, collectively, any “Additional Debt” designated by the Company as “Second Priority Additional Debt” pursuant to subsection 7.1.

 

“ Second Priority Additional Debt Documents ” shall mean any agreements or other documents entered into in connection with any Second Priority Additional Debt.

 

“ Second Priority Additional Debt Obligations ” shall mean, collectively, the unpaid principal of, and interest on, any Second Priority Additional Debt and all other obligations and liabilities of any Grantor (including, without limitation, interest accruing at the then applicable rate provided in any Second Priority Additional Debt Documents after the maturity of the Indebtedness thereunder and all Post-Petition Interest) to the holders of such Indebtedness or other obligations, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter incurred, which may arise under, out of, or in connection with, any Second Priority Additional Debt Documents or any other document made, delivered or given in connection with any of the foregoing, in each case whether on account of principal, interest, fees, prepayment premiums, indemnities, costs, expenses or otherwise (including without limitation all fees and disbursements of counsel to any Second Priority Additional Debt Representative or to the holders of such Second Priority Additional Debt that are required to be paid by the any of the Grantors pursuant to the terms of any of foregoing agreements).

 

“ Second Priority Additional Debt Representative ” shall mean any Person designated by the Company pursuant to subsection 7.1 as a “Second Priority Additional Debt Representative” for any Second Priority Additional Debt, and any successor Second Priority Additional Debt Representative appointed under any Second Priority Additional Debt Documents for such Second Priority Additional Debt.

 

“ Second Priority Agents ” shall mean, collectively, the Second Priority Credit Agents and all Second Priority Additional Debt Representatives, if any.

 

“ Second Priority Class ” shall mean, collectively, the Secured Parties which are holders of any Second Priority Secured Obligations.

 

“ Second Priority Credit Agents ” shall mean, collectively, the 2011 Second Priority Agent and the 2012 Second Priority Agent.

 

“ Second Priority Credit Agreements ” shall mean, collectively, the 2011 Second Priority Credit Agreement and the 2012 Second Priority Credit Agreement.

 

“ Second Priority Loan Documents ” shall mean, collectively, the 2011 Second Priority Loan Documents and the 2012 Second Priority Loan Documents.

 

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“ Second Priority Secured Obligations ” shall mean, collectively, the 2011 Second Priority Secured Obligations, the 2012 Second Priority Secured Obligations and the Second Priority Additional Debt Obligations.

 

“ Second Priority Secured Parties ” shall mean at any time the Collateral Trustee (in its capacity as the holder of the Lien on the Collateral securing the Second Priority Secured Obligations), each Second Priority Agent (for the benefit of the Banks under the applicable Second Priority Credit Agreement and itself as Administrative Agent thereunder), the other Agents (as such term is defined in each of the Second Priority Credit Agreements) and any other holder of Second Priority Secured Obligations outstanding at such time.

 

“ Secured Instruments ” shall mean at any time (i) the First Priority Loan Documents, (ii) the Second Priority Loan Documents and (iii) any Additional Debt Documents.

 

“ Secured Obligations ” shall mean, collectively, (i) all First Priority Secured Obligations, (ii) all Second Priority Secured Obligations and (iii) all Junior Priority Additional Debt Obligations, if any.

 

“ Secured Parties ” shall mean, collectively, (i) the Collateral Trustee, (ii) any First Priority Secured Parties, (iii) any Second Priority Secured Parties and (iv) any Junior Priority Secured Parties.

 

“ Securities Account Control Agreement ” shall mean any securities account control agreement among the Grantors and the Collateral Trustee, as securities intermediary and as secured party.

 

“ Security Agreement ” shall mean (i) the Security Agreement, dated as of the Effective Date, made by Tara Holdco, Tara and the other parties thereto, in favor of the Collateral Trustee and (ii) any other security agreement or similar document entered into in connection with a Refinancing of the Indebtedness secured thereby.

 

“ Senior Recovery ” shall have the meaning assigned in subsection 8.2(h).

 

“ Significant Event Notice ” means (i) any Notice of Acceleration, (ii) any Notice of Event of Default or (iii) any Notice of Foreclosure.

 

“ Tara ” shall have the meaning set forth in the preamble hereto.

 

“ Tara Holdco ” shall have the meaning set forth in the preamble hereto.

 

“ Third Party Sale ” shall have the meaning assigned in subsection 6.11(f).

 

“ Trust Estate ” shall have the meaning assigned in the Declaration of Trust at the beginning of this Collateral Trust Agreement.

 

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“ Trust Security Documents ” shall mean each of the instruments described in Annex I to this Collateral Trust Agreement and each agreement entered into pursuant to clause (ii) of subsection 6.3(b) of this Collateral Trust Agreement.

 

“ Trustee Fees ” shall mean all fees, costs and expenses of the Collateral Trustee incurred in connection with this Collateral Trust Agreement and the documents executed in connection therewith, including, but not limited to, the reasonable fees and expenses of its counsel.

 

(c)                                   The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Collateral Trust Agreement shall refer to this Collateral Trust Agreement as a whole and not to any particular provision of this Collateral Trust Agreement, and section, subsection, exhibit, schedule and annex references are to this Collateral Trust Agreement unless otherwise specified.  References to agreements defined in subsection 1.1(b) shall, unless otherwise specified, be deemed to refer to such agreements as amended, supplemented, restated or otherwise modified from time to time.

 

SECTION 2.

 

ENFORCEMENT OF SECURED OBLIGATIONS

 

2.1                       Significant Event Notices .  (a)  Upon receipt by the Collateral Trustee of a Significant Event Notice, the Collateral Trustee shall promptly notify the Company, the Grantors and the Holder Representatives of the receipt and contents thereof.  So long as such Significant Event Notice is in effect in accordance with subsection 2.1(b) hereof, the Collateral Trustee shall exercise the rights and remedies available during the continuance of the applicable Event(s) of Default or Acceleration Event, as the case may be, provided in this Collateral Trust Agreement and in the Trust Security Documents subject to the written direction of the Controlling Party, as provided herein.

 

(b)                                  A Significant Event Notice delivered by a Holder Representative shall become effective upon receipt thereof by the Collateral Trustee.  Notwithstanding anything in this Collateral Trust Agreement to the contrary, a Significant Event Notice shall be deemed to be in effect whenever an Event of Default under Section 6.1(f) or 6.1(g) of the First Priority Credit Agreement, Section 6.1(f) or 6.1(g) of the Second Priority Credit Agreements or any similar provision under any Additional Debt Document has occurred and is continuing.  A Significant Event Notice, once effective, shall remain in effect unless and until it is cancelled as provided in subsection 2.1(c).

 

(c)                                   Any Holder Representative shall be entitled to cancel its own Significant Event Notice (and each Holder Representative hereby agrees to promptly cancel its own Notice of Default if the relevant Event(s) of Default or Acceleration Event, as the case may be, are no longer continuing) by delivering a written notice of cancellation in the form attached hereto as Exhibit D (a “ Notice of Cancellation ”) to the Collateral Trustee (i) before the Collateral Trustee takes any action to exercise any remedy with respect to the Collateral or (ii) thereafter; provided , that (x) any actions taken by the Collateral Trustee prior to receipt of such Notice of Cancellation

 

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to exercise any remedy or remedies with respect to the Collateral which can, in a commercially reasonable manner, be reversed, cancelled or stopped, shall be so reversed, cancelled or stopped, and (y) any actions taken by the Collateral Trustee prior to receipt of such Notice of Cancellation to exercise any remedy or remedies with respect to the Collateral which cannot, in a commercially reasonable manner, be reversed, cancelled or stopped, may be completed.  The Collateral Trustee, notwithstanding such Notice of Cancellation, shall cooperate with the Grantors so that the actions referred to in clauses (x) and (y) in the proviso above are done at the written direction of the Grantors and otherwise in accordance with the terms of this Collateral Trust Agreement and the Trust Security Documents.  The Collateral Trustee shall promptly notify the Grantors as to the receipt and contents of any such Notice of Cancellation.  The Collateral Trustee shall not be liable to any Person for any losses, damages or expenses arising out of or related to actions taken at the direction of the Grantors after the issuance of a Notice of Cancellation.

 

2.2                       General Authority of the Collateral Trustee over the Collateral .  Each Grantor hereby irrevocably constitutes and appoints the Collateral Trustee and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full power and authority in its own name and at the times specified by and otherwise pursuant to the terms of the Trust Security Documents.

 

2.3                       Right to Initiate Judicial Proceedings .  If an Enforcement Event is in effect, the Collateral Trustee, subject to the provisions of subsection 2.4(b) and Section 5, (i) shall have the right and power to institute and maintain such suits and proceedings as it may deem necessary to protect and enforce the rights vested in it by this Collateral Trust Agreement and each Trust Security Document and (ii) may, either after entry, or without entry, proceed by suit or suits at law or in equity to enforce such rights (which, for the avoidance of doubt, shall not, in any event, include entry upon any Real Property Asset prior to Foreclosure) and to foreclose upon the Collateral and to sell all or, from time to time, any of the Collateral under the judgment or decree of a court of competent jurisdiction.

 

2.4                       Exercise of Powers; Instructions of the Controlling Party .  (a)  All of the powers, remedies and rights of the Collateral Trustee as set forth in this Collateral Trust Agreement may be exercised by the Collateral Trustee in respect of any Trust Security Document as though set forth in full therein and all of the powers, remedies and rights of the Collateral Trustee, each Holder Representative and the other Secured Parties as set forth in any Trust Security Document may be exercised from time to time as herein and therein provided.  In the event of any conflict between the provisions of any Trust Security Document and the provisions hereof, the provisions of this Collateral Trust Agreement shall govern.

 

(b)                                  The Controlling Party shall at all times have the right, by one or more notices in writing executed and delivered to the Collateral Trustee (or by telephonic notice promptly confirmed in writing), to direct the time, method and place of conducting any proceeding for any right or remedy available to the Collateral Trustee, or of exercising any trust or power conferred on the Collateral Trustee or to direct the taking or the refraining from taking of any action authorized by this Collateral Trust Agreement or any Trust Security Document; provided that (i) such direction shall not conflict with any Requirement of Law or this Collateral Trust Agreement or any Trust Security Document, (ii) the Collateral Trustee shall be adequately secured and indemnified as provided in subsection 5.4(d) and (iii) no Collateral Enforcement

 

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Action may be taken unless an Acceleration Event is in effect.  In the absence of such direction, the Collateral Trustee shall have no duty to take or refrain from taking any action unless explicitly required herein.

 

(c)                                   Whether or not any Insolvency Proceeding has been commenced by or against any Grantor, no Holder Representative or any other Secured Party shall do (and no such Holder Representative or Secured Party (other than the Controlling Party) shall direct the Collateral Trustee to do) any of the following without the consent of the Controlling Party: (i) take any Collateral Enforcement Action or commence, seek to commence or join any other Person in commencing any Insolvency Proceeding; or (ii) object to, contest or take any other action that is reasonably likely to hinder (1) any Collateral Enforcement Action initiated by the Collateral Trustee, (2) any release of Collateral permitted under subsection 6.11, whether or not done in consultation with or with notice to such Secured Party or (3) any decision by the Controlling Party to forbear or refrain from bringing or pursuing any such Collateral Enforcement Action or to effect any such release.

 

2.5                       Remedies Not Exclusive .  (a)  No remedy conferred upon or reserved to the Collateral Trustee herein or in the Trust Security Documents is intended to be exclusive of any other remedy or remedies, but every such remedy shall be cumulative and shall be in addition to every other remedy conferred herein or in any Trust Security Document or now or hereafter existing at law or in equity or by statute (but, in each case, only at the times such right, power or remedy shall be available to be exercised by the Collateral Trustee in accordance with the terms of this Collateral Trust Agreement or under any Trust Security Document).

 

(b)                                  No delay or omission by the Collateral Trustee to exercise any right, remedy or power hereunder or under any Trust Security Document shall impair any such right, remedy or power or shall be construed to be a waiver thereof, and every right, power and remedy given by this Collateral Trust Agreement or any Trust Security Document to the Collateral Trustee may be exercised from time to time and as often as may be deemed expedient by the Collateral Trustee (but, in each case, only at the times such right, power or remedy shall be available to be exercised by the Collateral Trustee in accordance with the terms of this Collateral Trust Agreement or under any Trust Security Document).

 

(c)                                   If the Collateral Trustee shall have proceeded to enforce any right, remedy or power under this Collateral Trust Agreement or any Trust Security Document and the proceeding for the enforcement thereof shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Collateral Trustee, then the Grantors, the Collateral Trustee and the Secured Parties shall, subject to any determination in such proceeding, severally and respectively be restored to their former positions and rights hereunder or thereunder with respect to the Trust Estate and in all other respects, and thereafter all rights, remedies and powers of the Collateral Trustee shall continue as though no such proceeding had been taken.

 

(d)                                  All rights of action and of asserting claims upon or under this Collateral Trust Agreement and the Trust Security Documents may be enforced by the Collateral Trustee without the possession of any Secured Instrument or instrument evidencing any Secured Obligation or the production thereof at any trial or other proceeding relative thereto, and any suit or proceeding instituted by the Collateral Trustee shall be, subject to subsections 5.5(c) and

 

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5.10(b)(ii), brought in its name as Collateral Trustee and any recovery of judgment shall be held as part of the Trust Estate.

 

2.6                       Waiver and Estoppel .  (a)  Each Grantor agrees, to the extent it may lawfully do so, that it will not at any time in any manner whatsoever claim, or take the benefit or advantage of, any appraisement, valuation, stay, extension, moratorium, turnover or redemption law, or any law permitting it to direct the order in which the Collateral shall be sold, now or at any time hereafter in force, which may delay, prevent or otherwise affect the performance or enforcement of this Collateral Trust Agreement, or any Trust Security Document, and hereby waives all benefit or advantage of all such laws and covenants that it will not hinder, delay or impede the execution of any power granted to the Collateral Trustee in this Collateral Trust Agreement or any Trust Security Document and will suffer and permit the execution of every such power as though no such law were in force.

 

(b)                                  Each Grantor, to the extent it may lawfully do so, on behalf of itself and all who may claim through or under it, including without limitation any and all subsequent creditors, vendees, assignees and lienors, waives and releases all rights to demand or to have any marshalling of the Collateral upon any sale, whether made under any power of sale granted herein or in any Trust Security Document or pursuant to judicial proceedings or upon any foreclosure or any enforcement of this Collateral Trust Agreement or any Trust Security Document and consents and agrees that all the Collateral may at any such sale be offered and sold as an entirety.

 

(c)                                   Each Grantor waives, to the extent permitted by applicable law, presentment, demand, protest and any notice of any kind (except notices explicitly required hereunder, under any Secured Instrument or under any other Trust Security Document) in connection with this Collateral Trust Agreement and the Trust Security Documents and any action taken by the Collateral Trustee with respect to the Collateral.

 

2.7                       Limitation on Collateral Trustee’s Duty in Respect of Collateral .  Beyond its duties expressly provided herein or in any Trust Security Document and to account to the Secured Parties and the Grantors for moneys and other property received by it hereunder or under any Trust Security Document, the Collateral Trustee shall not have any other duty to the Grantors or to the Secured Parties as to any Collateral in its possession or control or in the possession or control of any of its agents or nominees, or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto.

 

2.8                       Limitation by Law .  All rights, remedies and powers provided in this Collateral Trust Agreement or any Trust Security Document may be exercised only to the extent that the exercise thereof does not violate any applicable Requirement of Law, and all the provisions hereof are intended to be subject to all applicable mandatory Requirements of Law which may be controlling and to be limited to the extent necessary so that they will not render this Collateral Trust Agreement invalid, unenforceable in whole or in part or not entitled to be recorded, registered or filed under the provisions of any applicable law.

 

2.9                       Rights of Secured Parties under Secured Instruments .  Notwithstanding any other provision of this Collateral Trust Agreement or any Trust Security Document, the right of each Secured Party to receive payment of the Secured Obligations held by such Secured Party

 

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when due (whether at the stated maturity thereof, by acceleration or otherwise) as expressed in the related Secured Instrument or other instrument evidencing or agreement governing a Secured Obligation or to institute suit for the enforcement of such payment on or after such due date or to exercise any other remedy it may have as an unsecured creditor against the Grantors, and the obligation of the Grantors to pay such Secured Obligations when due, shall not be impaired or affected without the consent of such Secured Party given in the manner prescribed by the Secured Instrument under which such Secured Obligation is outstanding; provided , however , that in the event any Secured Party becomes a judgment lien creditor or otherwise obtains any Lien as a result of its enforcement of its rights as an unsecured creditor, such judgment lien and the Collateral subject thereto shall be subject to all of the terms and conditions of this Collateral Trust Agreement, and if such judgment lien is held by (i) a Second Priority Secured Party such Lien or Liens shall be junior and subordinate to the Liens securing the First Priority Secured Obligations hereunder on the same basis as any other Lien securing the Second Priority Secured Obligations and (ii) a Junior Priority Secured Party such Lien or Liens shall be junior and subordinate to the Liens securing the First Priority Secured Obligations and the Second Priority Secured Obligations hereunder on the same basis as any other Lien securing any Junior Priority Additional Debt Obligations.

 

2.10                 Collateral Use Prior to Foreclosure .  (a)  Prior to a Foreclosure on all or any portion of the Collateral, the Grantors shall have the right: (i) to remain in possession and retain exclusive control of such Collateral (except for such property which the Grantors are required to give possession of or control over to the Collateral Trustee pursuant to the terms of any Trust Security Document) with power freely and without let or hindrance on the part of the Secured Parties to operate, manage, develop, use and enjoy such Collateral, to receive the issues, profits, revenues and other income thereof, and (ii) to sell or otherwise dispose of, free and clear of all Liens created by the Trust Security Documents and this Collateral Trust Agreement, any Collateral, in the case of either clause (i) or (ii), to the extent the same is not prohibited by the First Priority Loan Documents, the Second Priority Loan Documents or any Additional Debt Documents (in each case subject to the terms hereof) or has been expressly approved in accordance with the terms of the First Priority Loan Documents, the Second Priority Loan Documents and any Additional Debt Documents or, in the case of any disposition, if any Person is legally empowered to take any Collateral under the power of condemnation or eminent domain.  The Collateral Trustee shall have no duty to monitor the exercise by the Grantors of their rights under this subsection 2.10(a).

 

(b)                                  When an Enforcement Event is in effect, or following receipt by the Collateral Trustee of written notice from the Controlling Party that a Material Default (as defined in any applicable Secured Instrument) has occurred and is continuing, cash Proceeds received in the Accounts (as defined in the Security Agreement), or otherwise directly received by the Collateral Trustee, in connection with any sale or other disposition of Collateral or otherwise in respect of the Collateral (net of any portion beneficially owned by third parties) and any cash, cash equivalents and checks on deposit in the Accounts or otherwise included in the Collateral, shall be transferred to and deposited in the Collateral Account (to the extent not otherwise used to prepay loans in accordance with the terms of any Secured Instrument).  Any such Proceeds actually received by any Grantor shall be held by such Grantor for the benefit of the Collateral Trustee, shall be segregated from other funds of such Grantor and shall, forthwith upon receipt by such Grantor, be turned over to the Collateral Trustee, in the same form as received by such

 

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Grantor (duly indorsed to the Collateral Trustee, if required) for deposit in the Collateral Account.  Notwithstanding anything to the contrary in this Collateral Trust Agreement, unless an Enforcement Event is in effect or the Collateral Trustee has received written notice from the Controlling Party that a Material Default (as defined in any applicable Secured Instrument) has occurred and is continuing, each Grantor may upon written or oral request (confirmed in writing to the Collateral Trustee, with a copy to the Controlling Party) obtain the prompt release to it or its order of any funds in the Collateral Account, provided that the failure to confirm an oral request in writing shall not affect the validity of such request and the Collateral Trustee’s obligations to promptly release such funds.  Any written or oral request or instruction by any Grantor pursuant to the preceding sentence shall be full authority for and direction to the Collateral Trustee to make the requested release, and the Collateral Trustee shall promptly do so.  The Collateral Trustee in so doing shall have no liability to any Person.

 

2.11                 Copies to Company .  Notwithstanding any other provision of this Collateral Trust Agreement or any Trust Security Document, each Holder Representative (or, in the case any other Secured Party sends any such notice, such Secured Party) shall send to the Company, simultaneously with transmittal of the same to the Collateral Trustee, a copy of each Significant Event Notice, Notice of Cancellation, release direction pursuant to Section 6.11 and any other notice or other written communication sent by such Holder Representative or other Secured Party to the Collateral Trustee, except, in each case, to the extent delivery of such copy would violate an automatic stay or similar prohibition arising from a bankruptcy filing.

 

SECTION 3.

 

COLLATERAL ACCOUNT; DISTRIBUTIONS

 

3.1                       The Collateral Account .  On the Effective Date there shall be established and, at all times thereafter until the trusts created by this Collateral Trust Agreement shall have terminated, there shall be maintained in the name of the Collateral Trustee at the office of the Collateral Trustee’s corporate trust division (or at such other office selected by the Collateral Trustee) an account which is entitled the “Tara Collateral Account” (the “ Collateral Account ”).  All moneys which are required by this Collateral Trust Agreement or any Trust Security Document to be delivered to the Collateral Trustee while an Enforcement Event is in effect or which are received by the Collateral Trustee or any agent or nominee of the Collateral Trustee in respect of the Collateral, whether in connection with the exercise of the remedies provided in this Collateral Trust Agreement or any Trust Security Document or otherwise, while an Enforcement Event is in effect shall be deposited in the Collateral Account, to be held by the Collateral Trustee as part of the Trust Estate and applied in accordance with the terms of this Collateral Trust Agreement.  Upon the cancellation of all Significant Event Notices pursuant to subsection 2.1(c) or the receipt by the Collateral Trustee of any moneys at any time when no Enforcement Event is in effect and no Material Default (as defined in any applicable Secured Instrument) has occurred and is continuing (as confirmed to the Collateral Trustee by the Controlling Party in writing), the Collateral Trustee shall (subject to subsection 3.4(a)) cause all funds on deposit in the Collateral Account or otherwise received by the Collateral Trustee to be paid over as promptly as possible to the Grantors in accordance with their respective interests.

 

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such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Trustee Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date;

 

Second :  to any Secured Party which has theretofore advanced or paid any Trustee Fees other than such administrative expenses, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Trustee Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date;

 

Third : to the First Priority Agent for any unpaid expenses payable to it pursuant to the First Priority Loan Documents to the extent the same constitute First Priority Secured Obligations;

 

Fourth : to the holders of First Priority Secured Obligations in an amount equal to the unpaid First Priority Secured Obligations (other than with respect to the expenses paid pursuant to clause Third ), to the extent the same are due and payable, as of such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably to such holders in proportion to the unpaid amounts thereof on such Distribution Date;

 

Fifth :  to the Second Priority Agents for any unpaid expenses payable to them pursuant to the Second Priority Loan Documents and any Second Priority Additional Debt Documents to the extent the same constitute Second Priority Secured Obligations to be shared ratably among the Second Priority Agents, based on the amount of such unpaid expenses payable on such Distribution Date;

 

Sixth : to the holders of Second Priority Secured Obligations in an amount equal to the unpaid Second Priority Secured Obligations (other than with respect to the expenses paid pursuant to clause Fifth ), to the extent the same are due and payable, as of such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably to such holders in proportion to the unpaid amounts thereof on such Distribution Date;

 

Seventh :  to the Junior Priority Additional Debt Representatives for any unpaid expenses payable to them pursuant to any Junior Priority Additional Debt Documents to the extent the same constitute Junior Priority Additional Debt Obligations to be shared ratably among the Junior Priority Agents, based on the amount of such unpaid expenses payable on such Distribution Date;

 

Eighth : to the holders of Junior Priority Additional Debt Obligations in an amount equal to the unpaid Junior Priority Additional Debt Obligations (other than with respect to the expenses paid pursuant to clause Seventh ), to the extent the same are due and payable, as of such Distribution Date, and, if such moneys shall be insufficient to pay

 

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such amounts in full, then ratably to such holders in proportion to the unpaid amounts thereof on such Distribution Date; and

 

Ninth :  any surplus then remaining shall be paid to the Grantors or their successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.

 

(c)                                   The term “unpaid” as used in clauses Fourth , Sixth and Eighth of subsection 3.4(b) with respect to the relevant Grantor(s), refers to all amounts of First Priority Secured Obligations, Second Priority Secured Obligations or Junior Priority Additional Debt Obligations, as the case may be, outstanding as of a Distribution Date, whether or not such amounts are fixed or contingent, and, in the case of an Insolvency Proceeding, with respect to any Grantor, whether or not such amounts are allowed in such Insolvency Proceeding, to the extent that prior distributions (whether actually distributed or set aside pursuant to subsection 3.5) have not been made in respect thereof.

 

(d)                                  The Collateral Trustee shall make all payments and distributions under this subsection 3.4: (i) on account of First Priority Secured Obligations to the First Priority Agent, pursuant to written directions of the First Priority Agent, for re-distribution in accordance with the provisions of the First Priority Loan Documents; (ii) on account of Second Priority Secured Obligations, to the relevant Second Priority Credit Agent, pursuant to written directions of such Second Priority Agent, for re-distribution in accordance with the provisions of the relevant Second Priority Loan Documents, (iii) on account of Second Priority Additional Debt Obligations, ratably to the relevant Second Priority Additional Debt Representatives, pursuant to written directions of such Second Priority Additional Debt Representatives, for re-distribution in accordance with the provisions of the relevant Second Priority Additional Debt Documents and (iv) on account of Junior Priority Additional Debt Obligations, ratably to the relevant Junior Priority Additional Debt Representatives, pursuant to written directions of such Junior Priority Additional Debt Representatives, for re-distribution in accordance with the provisions of the relevant Junior Priority Additional Debt Documents. The Collateral Trustee shall provide written notice to the Company of any such payment or distribution under this subsection 3.4(d).

 

3.5                       Amounts Held for Contingent Secured Obligations .  In the event any Secured Party shall be entitled to receive distributions from the Collateral Account of any moneys in respect of any unliquidated, unmatured or contingent portion of the outstanding Secured Obligations, then the Collateral Trustee shall, at the written direction of the Controlling Party, separate such moneys into a separate account to be opened by the Controlling Party for the benefit of the Secured Parties and shall, at the written direction of such Secured Party, invest such moneys in obligations of the kinds referred to in subsection 3.3 maturing within three months after they are acquired by the Collateral Trustee and shall hold all such amounts so distributable, and all such investments and the net proceeds thereof, in trust solely for such Secured Party and for no other purpose until (i) such Secured Party shall have notified the Collateral Trustee that all or part of such unliquidated, unmatured or contingent claim shall have become matured or fixed, in which case the Collateral Trustee shall distribute from such investments and the proceeds thereof an amount equal to such matured or fixed claim to such Secured Party for application to the payment of such matured or fixed claim, and shall promptly give notice thereof to the Grantors or (ii) all or part of such unliquidated, unmatured or

 

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contingent claim shall have been extinguished, whether as the result of an expiration without drawing of any letter of credit, payment of amounts secured or covered by any letter of credit other than by drawing thereunder, payment of amounts covered by any guarantee or otherwise, in which case (x) such Secured Party shall, as soon as practicable thereafter, notify the Grantors and the Collateral Trustee in writing and (y) such investments, and the proceeds thereof, shall be held in the Collateral Account in trust for all Secured Parties pending application in accordance with the provisions of subsection 3.4.

 

3.6                       Collateral Trustee’s Calculations .  In making the determinations and allocations required by subsection 3.4, the Collateral Trustee may conclusively rely upon information supplied by the First Priority Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the First Priority Secured Obligations, information supplied by the relevant Second Priority Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to its respective Second Priority Secured Obligations, information supplied by the relevant Junior Priority Additional Debt Representative as to the amounts of unpaid principal and interest and other amounts outstanding with respect to its respective Junior Priority Additional Debt Obligations and the Collateral Trustee shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Grantor from contesting any amounts claimed by any Secured Party in any information so supplied but in the event of any such contest, the information delivered by any Holder Representative shall be conclusive, for purposes of the Collateral Trustee’s reliance, absent manifest error.  Upon the reasonable request of the Collateral Trustee, the First Priority Agent, the Second Priority Agents, any Junior Priority Additional Debt Representatives or any other Secured Party, as the case may be, shall deliver to the Collateral Trustee a certificate setting forth the information specified in this subsection 3.6.  All distributions made by the Collateral Trustee pursuant to subsection 3.4 shall be (subject to subsection 3.7 and to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Trustee shall have no duty to inquire as to the application by any Holder Representative in respect of any amounts distributed to such Holder Representative.

 

3.7                       Pro Rata Sharing .  If, through the operation of any Bankruptcy Law or otherwise, the Collateral Trustee’s security interest hereunder and under the Trust Security Documents is enforced with respect to some, but not all, of the Secured Obligations then outstanding, such Secured Obligations for which the security interest is not enforced shall not be considered Secured Obligations hereunder for the purposes of subsection 3.4; provided , however , that such Secured Obligations shall be considered Secured Obligations hereunder for the purposes of subsection 8.1(p) and subsection 8.2(p); provided further , however , that nothing in this subsection 3.7 shall be deemed to require the Collateral Trustee to disregard or violate any court order binding upon it.

 

3.8                       Collateral Account Information and Access .  At such times as the Company or Controlling Party may reasonably request in writing, but not more than once per year per party (unless otherwise agreed to by the Collateral Trustee), the Collateral Trustee shall provide a full accounting of all funds then standing to the credit of the Collateral Account.  The Collateral Trustee also shall provide the necessary information and passwords to enable the Company to electronically access account statements and data for the Collateral Account.

 

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SECTION 4.

 

AGREEMENTS WITH TRUSTEE

 

4.1                       Delivery of Secured Instruments .  On the Effective Date, the Grantors shall deliver to the Collateral Trustee copies of each Secured Instrument and each Trust Security Document then in effect.  The Grantors shall deliver to the Collateral Trustee, promptly upon the execution thereof, a copy of all amendments, modifications or supplements to any Secured Instrument entered into after the Effective Date. Within 60 days after the issuance of any Additional Debt, the Grantors shall deliver to the Collateral Trustee copies of the related Additional Debt Documents and Trust Security Documents with respect to such Additional Debt.

 

4.2                       Information as to Secured Parties and Holder Representatives .  The Holder Representatives and the Grantors shall deliver, at the request of the Collateral Trustee, any information necessary to make the distributions contemplated by subsection 3.4 or any other information as the Collateral Trustee reasonably requires in order to perform its duties under this Collateral Trust Agreement.

 

4.3                       Compensation and Expenses .  The Grantors, jointly and severally, agree to pay to the Collateral Trustee, from time to time upon demand, (i) reasonable compensation (which shall not be limited by any Requirement of Law in regard to compensation of fiduciaries or of a trustee of an express trust) for its services hereunder and under the Trust Security Documents and for administering the Trust Estate as shall have been agreed to in a separate agreement between the Grantors and the Collateral Trustee and (ii) all of the reasonable fees, costs and expenses of the Collateral Trustee (including, without limitation, the reasonable fees and disbursements of its counsel, advisors and agents) (A) arising in connection with the preparation, negotiation, execution, delivery, modification, and termination of this Collateral Trust Agreement and each Trust Security Document or the enforcement of any of the provisions hereof or thereof, (B) incurred or required to be advanced in connection with the a