exv4w5






Exhibit 4.5




EXECUTION VERSION




COLLATERAL TRUST AGREEMENT




Dated as of January 7, 2011




by and among




HARBINGER GROUP INC.,




THE OTHER TRUSTORS PARTY HERETO




WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Trustee under the Indenture,




and




WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Collateral Agent









 









 









TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1	 
	Definitions And Other Matters	 
	 
	 	 	 	 
	Section 1.01. Rules of Interpretation
	 	 	2	 
	Section 1.02. Defined Terms
	 	 	2	 
	 
	 	 	 	 
	ARTICLE 2	 
	The Trust Estate	 
	 
	 	 	 	 
	Section 2.01. Declaration of Trust
	 	 	8	 
	Section 2.02. New Facilities
	 	 	9	 
	Section 2.03. Acknowledgment of Security Interests
	 	 	10	 
	 
	 	 	 	 
	ARTICLE 3	 
	Actionable Default; Remedies; Administration of Trust Property	 
	 
	 	 	 	 
	Section 3.01. Notice of Default; Written Instructions
	 	 	11	 
	Section 3.02. Remedies
	 	 	11	 
	Section 3.03. Administration of Trust Property
	 	 	11	 
	Section 3.04. Power of Attorney
	 	 	12	 
	Section 3.05. Right to Initiate Judicial Proceedings, Etc.
	 	 	13	 
	Section 3.06. Appointment of a Receiver
	 	 	13	 
	Section 3.07. Exercise of Powers
	 	 	13	 
	Section 3.08. Control by the Majority Holders
	 	 	14	 
	Section 3.09. Remedies Not Exclusive
	 	 	14	 
	Section 3.10. Waiver of Certain Rights
	 	 	15	 
	Section 3.11. Limitation on Collateral Agent’s Duties in
Respect of Collateral
	 	 	15	 
	Section 3.12. Limitation by Law
	 	 	15	 
	Section 3.13. Absolute Rights of Secured Parties
	 	 	16	 
	 
	 	 	 	 
	ARTICLE 4	 
	Trust Account, Application of Moneys	 
	 
	 	 	 	 
	Section 4.01. The Trust Account
	 	 	16	 
	Section 4.02. Control of Trust Account
	 	 	16	 
	Section 4.03. Investment of Funds Deposited in Trust Account
	 	 	16	 
	Section 4.04. Application of Moneys in Trust Account
	 	 	17	 
	Section 4.05. Application of Moneys Distributable to Secured Parties
	 	 	18	 






 









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE 5	 
	Agreements with the Collateral Agent	 
	Section 5.01. Delivery of Documents
	 	 	18	 
	Section 5.02. Information as to Secured Parties
	 	 	18	 
	Section 5.03. Compensation and Expenses
	 	 	19	 
	Section 5.04. Stamp and Other Similar Taxes
	 	 	19	 
	Section 5.05. Filing Fees, Excise Taxes, Etc.
	 	 	20	 
	Section 5.06. Indemnification
	 	 	20	 
	Section 5.07. Further Assurances; Notation on Financial Statements
	 	 	20	 
	 
	 	 	 	 
	ARTICLE 6	 
	The Collateral Agent	 
	 
	 	 	 	 
	Section 6.01. Acceptance of Trust, Powers of the Collateral Agent
	 	 	20	 
	Section 6.02. Exculpatory Provisions
	 	 	21	 
	Section 6.03. Delegation of Duties
	 	 	22	 
	Section 6.04. Reliance by Collateral Agent
	 	 	22	 
	Section 6.05. Limitations on Duties of Collateral Agent
	 	 	23	 
	Section 6.06. Moneys to Be Held in Trust
	 	 	23	 
	Section 6.07. Resignation and Removal of the Collateral Agent
	 	 	24	 
	Section 6.08. Status of Successors to the Collateral Agent
	 	 	25	 
	Section 6.09. Merger of the Collateral Agent
	 	 	25	 
	Section 6.10. Co-Trustee, Separate Trustee
	 	 	25	 
	 
	 	 	 	 
	ARTICLE 7	 
	Release of Collateral	 
	 
	 	 	 	 
	Section 7.01. Conditions to Release; Release Procedure
	 	 	27	 
	 
	 	 	 	 
	ARTICLE 8	 
	Miscellaneous	 
	 
	 	 	 	 
	Section 8.01. Amendments, Supplements and Waivers
	 	 	29	 
	Section 8.02. Voting
	 	 	31	 
	Section 8.03. Notices
	 	 	32	 
	Section 8.04. Headings
	 	 	33	 
	Section 8.05. Severability
	 	 	33	 
	Section 8.06. Treatment of Payee or Indorsee by Collateral Agent
	 	 	33	 
	Section 8.07. Dealings with the Trustors
	 	 	33	 
	Section 8.08. Claims Against the Collateral Agent
	 	 	33	 
	Section 8.09. Binding Effect; Successors and Assigns
	 	 	33	 
	Section 8.10. Governing Law
	 	 	34	 
	Section 8.11. Consent to Jurisdiction
	 	 	34	 
	Section 8.12. Waiver of Jury Trial
	 	 	34	 






ii 









 






	 	 	 	 	 
	 	 	Page	 
	Section 8.13. Force Majeure
	 	 	35	 
	Section 8.14. Consequential Damages
	 	 	35	 
	Section 8.15. Counterparts
	 	 	35	 
	Section 8.16. Incorporation by Reference
	 	 	35	 
	Section 8.17. USA PATRIOT Act
	 	 	35	 
	Section 8.18. Rights Of Holders
	 	 	36	 






	 	 	 	 	 

	Exhibit A   —

	 	
	 	Form of Supplement to Collateral Trust Agreement
	Exhibit B   —

	 	
	 	Form of Joinder to Collateral Trust Agreement






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     This COLLATERAL TRUST AGREEMENT, dated as of January 7, 2011 (as amended, amended and
restated, supplemented or otherwise modified from time to time, this “Agreement”) among Harbinger
Group Inc., a Delaware corporation (together with its successors, the “Company”), the Additional
Trustors (as defined in Section 5.07(b)) (and together with the Company, the “Trustors”), Wells
Fargo Bank, National Association, as trustee under the Indenture referred to below (in such
capacity, together with its successors and assigns from time to time, the “Indenture Trustee”),
Wells Fargo Bank, National Association, as collateral agent (in such capacity, together with its
successors and assigns from time to time, the “Collateral Agent”) for the Secured Parties, and each
New Representative party hereto from time to time.



PRELIMINARY STATEMENTS:




     WHEREAS, pursuant to an Indenture, dated as of November 15, 2010 (as amended, amended and
restated, supplemented, replaced, refinanced or otherwise modified from time to time, the
“Indenture”), among the Company, the Guarantors, the other Trustors party thereto from time to
time, the Indenture Trustee and the Collateral Agent, the Company intends to issue an aggregate
original principal amount of $350,000,000 of its 10.625% senior secured notes due 2015 (together
with any Additional Notes (as defined in the Indenture) issued pursuant to and in compliance with
the Indenture, the “Notes”);



     WHEREAS, the Company and the Guarantors may, from time to time, incur additional indebtedness
permitted to be secured on an equal and ratable basis with the obligations under the Note Documents
(as defined below), which indebtedness the Company shall designate as having a first priority
security interest in the Collateral and shall be incurred under a credit facility, indenture or
similar debt facility (each, a “New Facility”), in each case in accordance with this Agreement and
the then-extant Documents. For the avoidance of doubt, only additional indebtedness for which each
of the requirements specified in Section 2.02 hereof have been satisfied shall constitute a New
Facility for any purpose of this Agreement;



     WHEREAS, the Liens securing the obligations of the applicable Trustors in respect of any New
Facility shall be granted pursuant to the Collateral Documents (as defined below);



     WHEREAS, the Collateral Agent has agreed to act on behalf of all Secured Parties with respect
to the Collateral; and



     WHEREAS, it is a condition precedent to the issuance of the Notes that the Company and the
Collateral Agent enter into this Agreement and the Collateral Documents in order to secure the
payment and performance of the Obligations (as defined below).



     NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth,
the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby
agree as follows:



 









 





ARTICLE 1

Definitions And Other Matters




     Section 1.01. Rules of Interpretation. (a) The words “hereof”, “herein” and “hereunder” and
words of similar import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement.



     (b) The use in this Agreement or any of the Collateral Documents of the word “include” or
“including,” when following any general statement, term or matter, will not be construed to limit
such statement, term or matter to the specific items or matters set forth immediately following
such word or to similar items or matters, whether or not nonlimiting language (such as “without
limitation” or “but not limited to” or words of similar import) is used with reference thereto, but
will be deemed to refer to all other items or matters that fall within the broadest possible scope
of such general statement, term or matter. The word “will” shall be construed to have the same
meaning and effect as the word “shall.”



     (c) References to “Sections,” “clauses,” “recitals” and the “preamble” will be to
Sections, clauses, recitals and the preamble, respectively, of this Agreement unless otherwise
specifically provided. References to “Articles” will be to Articles of this Agreement unless
otherwise specifically provided. References to “Exhibits” and “Schedules” will be to Exhibits and
Schedules, respectively, to this Agreement unless otherwise specifically provided.



     (d) This Agreement and the Collateral Documents will be construed without regard to the
identity of the party who drafted it and as though the parties participated equally in drafting it.
Consequently, each of the parties acknowledges and agrees that any rule of construction that a
document is to be construed against the drafting party will not be applicable either to this
Agreement or the other Collateral Documents.



     Section 1.02. Defined Terms. As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular and the plural
forms of the terms defined):



     “Actionable Default” means the occurrence of any of the following:



     (a) an “Event of Default” under and as defined in the Indenture; or



     (b) any event or condition which, under the terms of any New Facility, causes, or permits
holders of the New Obligations with respect to such New Facility to cause, such New Obligations to
become immediately due and payable;


provided that, upon delivery of a Notice of Actionable Default, the Collateral Agent may assume
that an Actionable Default shall be continuing unless the Notice of Actionable Default delivered
with respect thereto shall have been withdrawn in a writing delivered to the Collateral Agent by
the requisite holders of the Series of Obligations to which such Notice of Actionable Default
relates (determined under the Documents governing such Series), or by the Representative with
respect to such Series of Obligations, prior to the







2









 







first date on which the Collateral Agent
commences the exercise of any remedy with respect to the Collateral following the receipt of such
Notice of Actionable Default.




     “Additional Trustor” has the meaning ascribed to such term in Section 5.07(b).



     “Agreement” has the meaning set forth in the recital of parties to this Agreement.



     “Bankruptcy Code” means the United States Bankruptcy Code (11 U.S.C. §101 et seq.), as amended
from time to time, and any successor statute.



     “Bankruptcy Proceeding” means that the Company or any Additional Trustor, if any, shall
generally not pay its debts as such debts become due, or shall admit in writing its inability to
pay its debts generally, or there shall be an assignment for the benefit of creditors relating to
the Company or any Additional Trustor, if any, whether or not voluntary; or any case shall be
commenced by or against the Company, any Additional Trustor, if any under the Bankruptcy Code or
any similar federal or state law for the relief of debtors, whether or not voluntary; or any
proceeding shall be instituted by or against the Company or any Additional Trustor, if any, seeking
to adjudicate it bankrupt or insolvent, or seeking liquidation, dissolution, marshalling of assets
or liabilities, winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts, in each case whether or not voluntary and whether or not involving
bankruptcy or insolvency, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, administrator or other similar official for it or for any substantial part of
its property and assets, whether or not voluntary; or any event or action analogous to or having a
substantially similar effect to any of the events or actions set forth above in this definition
(other than a solvent reorganization) shall occur under the law of any jurisdiction applicable to
the Company or any Additional Trustor, if any; or the Company or any Additional Trustor, if any,
shall take any corporate, partnership, limited liability company or other similar action to
authorize any of the actions set forth above in this definition.



     “Business Day” means any day except a Saturday, Sunday or other day on which commercial banks
in the City of New York are authorized by law to close.



     “Capital Stock” means, with respect to any Person, any and all shares of stock of a
corporation, partnership interests or other equivalent interests (however designated, whether
voting or non-voting) in such Person’s equity, entitling the holder to receive a share of the
profits and losses, and a distribution of assets, after liabilities, of such Person.



     “Collateral” means all of the assets or property of the Company or any Additional Trustor,
whether real, personal or mixed, with respect to which a Lien is granted or purported to be granted
as security for any Obligations.



     “Collateral Agent” has the meaning set forth in the recital of parties to this Agreement.



     “Collateral Agent’s Fees” means all fees, costs and expenses of the Collateral Agent (or any
co-trustee or agent thereof) of the type described in Sections 5.03, 5.04, 5.05 and 5.06 of
this Agreement.



3









 





     “Collateral Documents” means, collectively, the Security Agreement, each Security Agreement
Supplement (as defined in the Security Agreement) and any other agreement, document or instrument
pursuant to which a Lien is granted securing any
Obligations or under which rights or remedies with respect to such Liens are governed, as each
may be amended, restated, supplemented or otherwise modified from time to time.



     “Collateral Trust Joinder” means a joinder agreement substantially in the form of Exhibit B.



     “Company” has the meaning set forth in the recital of parties to this Agreement.



     “Distribution Dates” means the dates fixed by the Collateral Agent (the first of which shall
occur within 90 days after receipt of a Notice of Actionable Default that has not theretofore been
withdrawn and the balance of which shall be monthly thereafter) for the distribution of all moneys
held by the Collateral Agent in the Trust Account.



     “Documents” means, collectively, the Note Documents and the New Documents.



     “Equity Interests” means (i) in the case of a corporation, any shares of its capital stock,
(ii) in the case of a limited liability company, any membership interest therein, (iii) in the case
of a partnership, any partnership interest (whether general or limited) therein, (iv) in the case
of any other business entity, any participation or other interest in the equity or profits thereof,
(v) any warrant, option or other right to acquire any Equity Interest described in this definition
or (vi) any Security Entitlement in respect of any Equity Interest described in this definition.



     “Guarantor” means each “Guarantor” as defined in the Indenture.



     “Indenture” has the meaning set forth in the preliminary statements to this Agreement.



     “Indenture Trustee” has the meaning set forth in the recital of parties to this Agreement.



     “Lien” has the meaning set forth in the Indenture.



     “Majority Holders” means, as of any date, (a) at any time when no New Facility is outstanding,
Secured Parties owed or holding more than 50% of the aggregate principal amount of indebtedness
constituting Note Obligations, or such other requisite percentage or number of holders of Note
Obligations (or the Indenture Trustee, on behalf of the holders of Note Obligations) as is
permitted by, and in accordance with, the Indenture; or (b) otherwise, Secured Parties owed or
holding more than 50% of the aggregate of the sum of, without duplication: (i) the aggregate
principal amount of indebtedness constituting Note Obligations, (ii) the aggregate principal amount
of the loans and other advances outstanding under each New Facility and (iii) other than in
connection with the exercise of remedies, the aggregate amount of all outstanding unexpired or
uncanceled commitments to extend credit (if any) under each New Facility outstanding at such time
that, when funded, would constitute New Obligations; provided, however, that, in the case of
clauses (ii) and (iii) above, if any New Secured Party shall be a “defaulting



4









 




lender” (howsoever
defined in the relevant New Document at such time), there shall be excluded from the determination
of Majority Holders: (A) the aggregate principal amount of loans and other advances owing to such
New Secured Party under such New Document at such time, and (B) such New Secured Party’s pro rata
share of the outstanding commitments to extend credit (if any) under such New Document at such
time unless another lender has or is obligated to assume the defaulting lender’s rights and
obligations under the applicable New Documents. For purposes of this definition, (x) votes will be
determined in accordance with the provisions of Section 8.02 and (y) any Obligations registered in
the name of, or owned or held by the Company, any Guarantor or any Additional Trustor or any of
their respective affiliates shall be disregarded.




     “Moody’s” means Moody’s Investors Service, Inc. and its successors.



     “New Documents” means, collectively, with respect to any New Facility, the agreements,
documents and instruments providing for or evidencing any related New Obligations, including the
definitive documentation in respect of such New Facility, the Collateral Documents, to the extent
such are effective at the relevant time, as each may be amended, restated, supplemented, modified,
renewed or extended from time to time in accordance with the provisions of this Agreement.



     “New Facility” has the meaning set forth in the preliminary statements to this Agreement.



     “New Obligations” means all obligations of any of the Trustors from time to time arising under
or in respect of the due and punctual payment of (i) the principal of and premium, if any, and
interest (including any Post-Petition Interest) on the indebtedness for borrowed money outstanding
under each New Facility, when and as due, whether at maturity, by acceleration, upon one or more
dates set for prepayment or otherwise, and (ii) all other monetary obligations, including fees,
costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any Bankruptcy Proceeding with
respect to any Trustor, regardless of whether allowed or allowable in such proceeding), of the
Trustors under the New Documents owing to the New Secured Parties (in their capacity as such). For
the avoidance of doubt, as of the date hereof, there are no New Obligations outstanding.



     “New Representative” means (a) any agent or trustee for or other representative of the lenders
or holders of obligations, as applicable, under a New Facility, together with its successors and
permitted assigns, or (b) any New Secured Party, solely to the extent that such New Secured Party
(i) is the sole lender or other holder of obligations under a particular New Facility and (ii) is
not represented by an agent, trustee or other representative.



     “New Secured Parties” means, at any relevant time, subject to Section 2.02, the holders of
any New Obligations at that time, including each applicable New Representative.



5









 





     “Note Documents” means, collectively, the Indenture, the Notes, each Note Guaranty, the
Collateral Documents and each of the other agreements, documents and instruments providing for or
evidencing any Note Obligation, any other document or instrument executed or delivered at any time
in connection with any Note Obligation, including pursuant to the Collateral Documents, to the
extent such are effective at the relevant time, as each may be amended, restated, supplemented,
modified, renewed or extended from time to time in accordance with this Agreement.



     “Note Guaranty” means each “Note Guaranty” as defined in the Indenture.



     “Note Obligations” means all “Obligations” (as defined in the Indenture) in respect of
indebtedness incurred under the Indenture and all other obligations of the Company, the Guarantors
and the other Additional Trustors, if any, from time to time arising under or in respect of the due
and punctual payment of (a) the principal of and premium, if any, and interest (including any
Post-Petition Interest) on the Notes, when and as due, whether at maturity, by acceleration, upon
one or more dates set for prepayment or otherwise, and (b) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent,
fixed or otherwise (including monetary obligations incurred during the pendency of any Bankruptcy
Proceeding with respect to the Company, any Guarantor or any Additional Trustor, regardless of
whether allowed or allowable in such proceeding), of the Company, the Guarantors and the Additional
Trustors, if any, under the Indenture and the other Note Documents owing to the Note Secured
Parties (in their capacity as such).



     “Note Secured Parties” means, at any relevant time, the holders of Note Obligations at that
time, including, without limitation, the Collateral Agent, the Indenture Trustee and the holders of
Notes.



     “Notes” has the meaning set forth in the preliminary statements to this Agreement.



     “Notice of Actionable Default” means a written notice delivered to the Collateral Agent by the
requisite holders of a Series of Obligations in accordance with the Documents governing such Series
(or by the Representative with respect to such Series with the written consent of the requisite
holders of a Series of Obligations in accordance with the Documents governing such Series) stating
that an Actionable Default with respect to such Series has occurred.



     “Obligations” means (a) the Note Obligations and (b) subject to Section 2.02, the New
Obligations.



     “Officer’s Certificate” means a certificate with respect to compliance with a condition or
covenant provided for in this Agreement, signed on behalf of the Company by the Company’s principal
executive officer, principal financial officer, chief operating officer or treasurer, including:



     (a) a statement that the Person making such certificate has read such covenant or
condition;



6









 





     (b) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate are based;



     (c) a statement that, in the opinion of such Person, he or she has made such examination
or investigation as is reasonably necessary to enable him or her to express an informed opinion as
to whether or not such covenant or condition has been satisfied; and



     (d) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.



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



     “Post-Petition Interest” means any interest or entitlement to fees or expenses that accrues
after the commencement of any Bankruptcy Proceeding with respect to any Trustor, whether or not
allowed or allowable in any such Bankruptcy Proceeding.



     “Representative” means (a) with respect to the Note Obligations, the Indenture Trustee and (b)
with respect to each Series of New Obligations, the New Representative with respect thereto.



     “S&P” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc. and its
successors.



     “Secured Parties” means, collectively, the Note Secured Parties and any New Secured Parties.



     “Securities” means any stock, shares, partnership interests, voting trust certificates,
certificates of interests or participation in any profit-sharing agreement or arrangement, options,
warrants, bonds, debentures, notes, or other evidences or indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly known as
“securities” or any certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing.



     “Security Agreement” means the Security and Pledge Agreement, dated as of January 7, 2011, and
any successor or replacement thereof, among the Company, the Collateral Agent (or any successor or
replacement agent) and the other grantors from time to time party thereto.



     “Series”, when used with respect to any Obligations, refers to whether such Obligations are
Note Obligations or New Obligations (and, if such Obligations are New Obligations, “Series” refers
to the New Facility pursuant to which such New Obligations have been incurred).



7









 





     “Spectrum Registration Rights Agreement” means that certain Registration Rights Agreement,
dated as of February 9, 2010, by and among Harbinger Capital Partners Master Fund I, Ltd.,
Harbinger Capital Partners Special Situations Fund, L.P., Global Opportunities Breakaway Ltd.,
Spectrum Brands Holdings, Inc., Avenue International Master, L.P., Avenue Investments, L.P., Avenue
Special Situations Fund IV, L.P., Avenue Special Situations Fund V, L.P. and Avenue-CDP Global
Opportunities Fund, L.P.



     “Spectrum Stockholder Agreement” means that certain Stockholder Agreement, dated as of
February 9, 2010, by and among Harbinger Capital Partners Master Fund I, Ltd., Harbinger Capital
Partners Special Situations Fund, L.P., Global Opportunities Breakaway Ltd. and Spectrum Brands
Holdings, Inc.



     “Subsidiary” means with respect to any Person, any corporation, association or other business
entity of which more than 50% of the outstanding Voting Stock is owned, directly or indirectly, by,
or, in the case of a partnership, the sole general partner or the managing partner or the only
general partners of which are, such Person and one or more Subsidiaries of such Person (or a
combination thereof).



     “Trust Estate” has the meaning ascribed to such term in Section 2.01(a).



     “Trustors” has the meaning set forth in the recital of parties to this Agreement.



     “U.S. Government Obligations” means obligations issued or directly and fully guaranteed or
insured by the United States of America or by any agent or instrumentality thereof, provided that
the full faith and credit of the United States of America is pledged in support thereof.



     “Voting Stock” means, with respect to any Person, Capital Stock of any class or kind
ordinarily having the power to vote for the election of directors, managers or other voting members
of the governing body of such Person.



ARTICLE 2

The Trust Estate




     Section 2.01. Declaration of Trust. (a) To secure the payment and performance of the
Obligations and in consideration of the premises and the mutual agreements set forth herein, each
of the Trustors hereby grants to the Collateral Agent, and the Collateral Agent hereby accepts and
agrees to hold, in trust under this Agreement for the benefit of all present and future Secured
Parties, all of such Trustor’s right, title and interest in, to and under the Collateral for the
benefit of all present and future Secured Parties, together with all of the Collateral Agent’s
right, title and interest in, to and under the Collateral Documents, and all interests, rights,
powers and remedies of the Collateral Agent thereunder or in respect thereof and all cash and
non-cash proceeds thereof constituting Collateral (collectively, the “Trust Estate”).



8









 





     (b) The Collateral Agent and its successors and assigns under this Agreement will hold the
Trust Estate in trust for the benefit solely and exclusively of all present and future Secured
Parties as security for the payment of all present and future Obligations; provided, however, that
if at any time the Company, the Guarantors and the Additional Trustors, if any, and their
successors or assigns, shall satisfy all of the conditions set forth in Section 7.01 in connection
with the release of all Collateral, then this Agreement, and the estates and rights assigned in the
Collateral Documents, shall cease, terminate and be void; otherwise they shall remain and be in
full force and effect in accordance with their respective terms; provided, further, that
notwithstanding the foregoing, all provisions set forth in Sections 5.03, 5.04, 5.05 and 5.06
that are enforceable by the Collateral Agent or any of its co-trustees or agents (whether in an
individual or representative capacity) will remain enforceable in accordance with their terms.



     (c) The parties to this Agreement further covenant and declare that the Trust Estate will
be held and distributed by the Collateral Agent, subject to the further covenants, conditions and
agreements hereinafter set forth.



     Section 2.02. New Facilities. (a) The Collateral Agent will act as agent hereunder for, and
perform its duties set forth in this Agreement on behalf of, each holder of Obligations in respect
of indebtedness that is issued or incurred after the date hereof that:




     (i) holds New Obligations that are identified as such in accordance with the
procedures set forth in clause (b) of this Section 2.02; and




     (ii) signs, through its designated New Representative identified pursuant to
clause (b) of this Section 2.02, a Collateral Trust Joinder and delivers the same to the
Collateral Agent.



     (b) The Company or any other Trustor will be permitted to incur indebtedness in respect of
a New Facility and to designate as an additional holder of Obligations hereunder the lenders,
agents and each New Representative, as applicable, under such New Facility, in each case only to
the extent such indebtedness is designated by the Company in accordance with this Section 2.02(b)
and only to the extent such incurrence is permitted under the terms of the Documents. The Company
may only effect such designation by delivering to the Collateral Agent (with copies to the
Indenture Trustee and to each previously identified New Representative), each of the following:




     (i) on or prior to the date on which such New Facility is incurred, an Officer’s
Certificate stating that each applicable Trustor intends to incur additional indebtedness
under such New Facility, and certifying that (A) such incurrence is permitted and does not
violate or result in any default under the Note Documents or any then existing New
Documents (other than any incurrence of Obligations that would simultaneously repay all
Obligations under the applicable Documents, under which such default would arise), (B) the
definitive documentation associated with such New Facility contains a written agreement of
the holders of such indebtedness, for the enforceable benefit of all holders of existing
and future Obligations, each existing and future Indenture Trustee and each existing and
future New Representative substantially as follows: (x) that all



9









 






Obligations will be and
are secured equally and ratably by all Liens at any time granted by any Trustor to the
Collateral Agent, for the benefit of the Secured Parties, to secure any Obligations,
whether or not upon property otherwise constituting collateral to such Obligations and
that all Liens granted pursuant to the Collateral Documents will be enforceable by the
Collateral Agent for the benefit of all holders of Obligations equally and ratably as
contemplated by this Agreement (provided, that if provided by the terms thereof or with
the consent of the holders thereof, a Series of New Obligations may be secured by Liens
(which shall be equal and ratable with the Liens securing the Note Obligations) on assets
and properties comprising less (but not more) than all of the assets and properties upon
which Liens have been granted to secure the Note Obligations), and (y) consenting to and
directing the Collateral Agent to perform its obligations under this Agreement and the
Collateral Documents and (C) the Company and each other Trustor has duly authorized,
executed (if applicable) and recorded (or caused to be recorded), or intends to authorize,
execute and record (if applicable), in each appropriate governmental office all relevant
filings and recordations, if any, reasonably necessary to ensure that the New Obligations
in respect of such New Facility are secured by the Collateral to the extent set forth in
and required
by the New Documents and in accordance with this Agreement and the Collateral
Documents;




     (ii) a written notice specifying the name and address of the New Representative
in respect of such New Facility for purposes of Section 8.03; and




     (iii) a copy of the executed Collateral Trust Joinder referred to in clause (a)
above, executed by the applicable New Representative (on behalf of each New Secured Party
represented by it).



     (c) Although the Grantors shall be required to deliver a copy of each of the foregoing
documents described in clauses (i) through (iii) of Section 2.02(b) to the Indenture Trustee and
each then existing New Representative, the failure to so deliver a copy of any such document to the
Indenture Trustee and any such New Representative (other than the certification described in clause
(i) of Section 2.02(b) and the Collateral Trust Joinder referred to in clause (iii) of Section
2.02(b), which shall in all cases be required and which shall be delivered to each of the
Indenture Trustee and each then existing New Representative on or prior to the incurrence of
indebtedness under the applicable New Facility) shall not affect the status of such New Facility as
New Obligations or Obligations entitled to the benefits of this Agreement and the Collateral
Documents if the other requirements of this Section 2.02 are satisfied.



     Section 2.03. Acknowledgment of Security Interests. (a) Each of the Indenture Trustee (for
itself and on behalf of each Note Secured Party), each New Representative (for itself and on behalf
of each New Secured Party represented by it), each Trustor and the Collateral Agent acknowledges
and agrees that, pursuant to the Collateral Documents, each of the Trustors has granted to the
Collateral Agent, for the benefit of the Secured Parties, a security interest in all such Trustor’s
rights, title and interest in, to and under the Collateral to secure the payment and performance of
all present and future Obligations. Each of the Indenture Trustee (for itself and on behalf of
each Note Secured Party), each New Representative (for itself and on behalf of each New Secured
Party



10









 




represented by it), each Trustor and the Collateral Agent acknowledges and agrees that,
pursuant to the Collateral Documents, the aforementioned security interest granted to the
Collateral Agent, for the benefit of the Secured Parties, shall (subject to Section 7.01) for all
purposes and at all times secure the Note Obligations and the New Obligations (if any) on an equal
and ratable basis, except as is otherwise contemplated in the first proviso contained in Section
2.02(b)(i).




     (b) The Collateral Agent and its successors and assigns under this Agreement will act for
the benefit solely and exclusively of all present and future Secured Parties and will hold the
Collateral and the Liens thereon as security for the payment and performance of all present and
future Obligations, in each case, under terms and conditions of this Agreement and the Collateral
Documents.



ARTICLE 3

Actionable Default; Remedies; Administration of Trust Property




     Section 3.01. Notice of Default; Written Instructions. (a) Upon receipt of a Notice of
Actionable Default, the Collateral Agent shall, within five days thereafter,
notify the Indenture Trustee and each New Representative that an Actionable Default exists.



     (b) Upon receipt of any written directions pursuant to Section 3.08(a), the Collateral
Agent shall, within five days thereafter, send a copy thereof to the Indenture Trustee and each New
Representative.



     Section 3.02. Remedies. (a) Upon the receipt of a Notice of Actionable Default and so long
as such Notice of Actionable Default shall not have been withdrawn in a writing delivered to the
Collateral Agent by the requisite holders of the Series of Obligations to which such Notice of
Actionable Default relates (determined under the Documents governing such Series), or by the
Representative with respect to such Series, the Collateral Agent may exercise the rights and
remedies provided in this Agreement and in the Collateral Documents.



     (b) To the extent permitted by applicable law, the Trustors hereby waive presentment,
demand, protest or any notice of any kind in connection with this Agreement, any Collateral or any
Collateral Document.



     Section 3.03. Administration of Trust Property. (a) Each Secured Party (acting through the
Indenture Trustee or its New Representative, as applicable) hereby appoints the Collateral Agent to
serve as collateral trustee and agent hereunder on the terms and conditions set forth herein.
Subject to, and in accordance with, this Agreement, the Collateral Agent will serve as collateral
trustee and agent hereunder, for the benefit solely and exclusively of the present and future
Secured Parties, and will:




     (i) accept, enter into, hold, maintain, administer and enforce all Collateral
Documents, including all Collateral subject thereto, and all Liens created thereunder,
perform its obligations under the Collateral Documents and



11









 







protect, exercise and enforce
the interests, rights, powers and remedies granted or available to it under, pursuant to
or in connection with the Collateral Documents;




     (ii) take all lawful and commercially reasonable actions permitted under the
Collateral Documents that it may deem necessary or advisable to protect or preserve its
interest in the Collateral subject thereto and such interests, rights, powers and
remedies;




     (iii) deliver and receive notices pursuant to the Collateral Documents;




     (iv) sell, assign, collect, assemble, foreclose on, institute legal proceedings
with respect to, or otherwise exercise or enforce the rights and remedies of a secured
party (including a mortgagee, trust deed beneficiary and insurance beneficiary or loss
payee) with respect to the Collateral under the Collateral Documents and its other
interests, rights, powers and remedies;




     (v) remit as provided in Section 4.04 all cash proceeds received by the
Collateral Agent from the collection, foreclosure or enforcement of its interest in the
Collateral under the Collateral Documents or any of its other interests, rights, powers or
remedies;




     (vi) execute and deliver amendments to this Agreement and the Collateral
Documents as from time to time authorized pursuant to Section 8.01 accompanied by an
Officer’s Certificate to the effect that the amendment was permitted under Section 8.01;
and




     (vii) release or subordinate any Lien granted to it by any Collateral Document
upon any Collateral if and as required by Section 7.01.



     (b) Each party to this Agreement acknowledges and consents to the undertaking of the
Collateral Agent set forth in Section 3.03(a) and agrees to each of the other provisions of this
Agreement applicable to the Collateral Agent.



     Section 3.04. Power of Attorney. Each Trustor hereby irrevocably constitutes and appoints
the Collateral Agent and any officer or agent thereof, with full power of substitution, as their
true and lawful attorney-in-fact with full power and authority in the name of such Trustor, or in
its own name, from time to time acting at the written direction of the Trustors upon the occurrence
and during the continuance of an Actionable Default, for the purpose of carrying out the terms of
this Agreement and the Collateral Documents, to take any and all appropriate action and to execute
any and all documents and instruments that may be necessary or desirable to accomplish the purposes
hereof and thereof and, without limiting the generality of the foregoing, hereby gives the
Collateral Agent the power and right on behalf of such Trustor, without notice to or assent by any
Trustor to do the following:



     (a) to ask for, demand, sue for, collect, receive, recover, compromise and give
acquittance and receipts for any and all moneys due or to become due upon or by virtue hereof and
thereof;



12









 





     (b) to receive, take, endorse, assign and deliver any and all checks, notes, drafts,
acceptances, documents and other negotiable and non-negotiable instruments and chattel paper taken
or received by the Collateral Agent in connection herewith and therewith;



     (c) to commence, file, institute, prosecute, defend, settle, compromise or adjust any
claim, suit, action or proceeding with respect hereto and thereto or in connection herewith and
therewith;



     (d) to sell, transfer, assign or otherwise deal in or with the Collateral or any part
thereof as fully and effectually as if the Collateral Agent were the absolute owner thereof; and



     (e) to do, at its option and at the expense and for the account of such Trustor, at any
time or from time to time, all acts and things that the Collateral Agent deems necessary to protect
or preserve the Collateral or the Trust Estate and to realize upon the Collateral.



     Section 3.05. Right to Initiate Judicial Proceedings, Etc. Upon the receipt of a Notice of
Actionable Default and so long as such Notice of Actionable Default shall not have been withdrawn
in a writing delivered to the Collateral Agent by the requisite holders of the Series of
Obligations to which such Notice of Actionable Default relates
(determined under the Documents governing such Series) or by the Representative with respect
to such Series:



     (a) the Collateral Agent shall have the right and power to institute and maintain such
suits and proceedings as it may deem appropriate to protect and enforce the rights vested in it by
this Agreement and each Collateral Document to the fullest extent permitted by applicable law; and



     (b) the Collateral Agent may, either after entry or without entry, proceed by suit or
suits at law or in equity to enforce such rights and to foreclose upon the Collateral and to sell
all or, from time to time, any of the Trust Estate under the judgment or decree of a court of
competent jurisdiction to the fullest extent permitted by applicable law.



     Section 3.06. Appointment of a Receiver. If a receiver of the Trust Estate shall be
appointed in judicial proceedings, the Collateral Agent may be appointed as such receiver.
Notwithstanding the appointment of a receiver, the Collateral Agent shall be entitled to retain
possession and control of all cash held by or deposited with it or its agents pursuant to any
provision of this Agreement or any Collateral Document.



     Section 3.07. Exercise of Powers. All of the powers, remedies and rights of the Collateral
Agent as set forth in this Agreement may be exercised by the Collateral Agent in respect of any
Collateral Document as though set forth at length therein and all the powers, remedies and rights
of the Collateral Agent and the Secured Parties as set forth in any Collateral Document may be
exercised from time to time as herein and therein provided.



13









 





     Section 3.08. Control by the Majority Holders. (a) Subject to Section 3.08(b), if an
Actionable Default shall have occurred and be continuing and if the Collateral Agent shall have
received a Notice of Actionable Default with respect thereto, the Majority Holders shall have the
right, by an instrument in writing executed and delivered to the Collateral Agent, to direct the
time, method and place of conducting any proceeding for any right or remedy available to the
Collateral Agent, or of exercising any trust or power conferred on the Collateral Agent, or for the
appointment of a receiver, or for the taking of any action authorized by Article 3 of this
Agreement.



     (b) The Collateral Agent shall not follow any written directions received pursuant to
Section 3.08(a) to the extent such written directions are known by the Collateral Agent to be in
conflict with any provisions of law or if the Collateral Agent shall have received from independent
counsel an unqualified opinion to the effect that following such written directions would result in
a breach of a provision or covenant contained in the Indenture or impose individual liability on
the Collateral Agent.



     (c) Nothing in this Section 3.08 shall impair the right of the Collateral Agent in its
discretion to take or omit to take any action deemed proper by the Collateral Agent and which
action or omission is not inconsistent with the direction of the Secured Parties entitled to direct
the Collateral Agent with respect to such action as provided for in this Agreement; provided,
however, that the Collateral Agent shall not be under any obligation to take any action that is
discretionary with the Collateral Agent under the provisions of this Agreement or under any
Collateral Document.



     (d) For the avoidance of doubt, the Majority Holders when taking, or in directing the
Collateral Agent to take, any action with respect of the Collateral, the Majority Holders may elect
to take such action (or to direct the Collateral Agent to take such action) with respect to all or
any part of the Collateral, except as limited by mandatory provisions of applicable law.



     Section 3.09. Remedies Not Exclusive. (a) No remedy conferred upon or reserved to the
Collateral Agent in this Agreement or in any Collateral Document 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 in this Agreement or in any Collateral Document or now or hereafter
existing at law or in equity or by statute.



     (b) No delay or omission of the Collateral Agent to exercise any right, remedy or power
accruing upon any Actionable Default shall impair any such right, remedy or power or shall be
construed to be a waiver of any such Actionable Default or an acquiescence therein; and every
right, power and remedy given by this Agreement or any Collateral Document to the Collateral Agent
may be exercised from time to time and as often as may be deemed expedient by the Collateral Agent.



     (c) In case the Collateral Agent shall have proceeded to enforce any right, remedy or
power under this Agreement or any Collateral 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 Agent, then and in every such case the Trustors, the Collateral Agent
and the Secured Parties shall, subject to any determination in such proceeding, severally and
respectively be restored to their former



14









 




positions and rights, under this Agreement and under such
Collateral Document with respect to the Trust Estate and in all other respects, and thereafter all
rights, remedies and powers of the Collateral Agent shall continue as though no such proceeding had
been taken.




     (d) All rights of action and rights to assert claims upon or under this Agreement and the
Collateral Documents may be enforced by the Collateral Agent without the possession of any Document
or the production thereof in any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Collateral Agent shall be brought in its name as Collateral Agent and
any recovery of judgment shall be held as part of the Trust Estate.



     Section 3.10. Waiver of Certain Rights. The Trustors, to the extent they may lawfully do so,
on behalf of themselves and all who may claim through or under them, including, without limitation,
any and all subsequent creditors, vendees, assignees and lienors, expressly waive and release any,
every and all rights to demand or to have any marshaling of the Trust Estate upon any sale, whether
made under any power of sale herein granted or pursuant to judicial proceedings or upon any
foreclosure or any enforcement of this Agreement and consents and agrees that all the Trust Estate
may at any such sale be offered and sold as an entirety.



     Section 3.11. Limitation on Collateral Agent’s Duties in Respect of Collateral. Beyond its
duties set forth in this Agreement as to the custody thereof and the accounting to the Trustors and
the Secured Parties for moneys received by it hereunder, the Collateral Agent shall not have any
duty to the Trustors and the Secured Parties as to any Collateral in its possession or control or
in the possession or control of any agent or
nominee of it or any income thereon or as to the preservation of rights against prior parties
or any other rights pertaining thereto. To the extent, however, that the Collateral Agent or any
agent or nominee thereof maintains possession or control of any of the Collateral, the Collateral
Agent shall, and shall instruct such agent or nominee to, grant the Trustors access to and use of
such Collateral that the Trustors require for the normal conduct of their business; provided that
such rights may be limited as provided in this Agreement and the other Collateral Documents after
the Collateral Agent shall have received a Notice of Actionable Default.



     Section 3.12. Limitation by Law. All rights, remedies and powers provided by this Article 3
may be exercised only to the extent that the exercise thereof does not violate any applicable
provision of law in the premises, and all the provisions of this Article 3 are intended to be
subject to all applicable mandatory provisions of law that may be controlling in the premises and
to be limited to the extent necessary so that they will not render this Agreement invalid,
unenforceable in whole or in part or not entitled to be recorded, registered, or filed under the
provisions of any applicable law.



     Section 3.13. Absolute Rights of Secured Parties. Notwithstanding any other provision of
this Agreement (other than Section 3.02) or any provision of any Collateral Document, the right of
each Secured Party, which is absolute and unconditional, to receive payments of the Obligations
held by such Secured Party on or after the due date thereof as therein expressed, to seek adequate
protection in respect of its interest in this Agreement and the Collateral, to institute suit for
the enforcement of such payment on or



15









 




after such due date, or to assert its position and views as a
secured creditor in a Bankruptcy Proceeding, or the obligation of the Trustors, which is also
absolute and unconditional, to pay in full and otherwise perform all Obligations at the time and
place expressed therein shall not be impaired or affected without the consent of such Secured
Party.




ARTICLE 4

Trust Account, Application of Moneys




     Section 4.01. The Trust Account. On the date hereof there shall be established and, at
all times thereafter until the trusts created by this Agreement shall have terminated, there shall
be maintained with the Collateral Agent an account that shall be entitled the “Trust Account”. The
Trust Account shall be established and maintained by the Collateral Agent at its designated
corporate trust offices. All moneys that are received by the Collateral Agent after the occurrence
of an Actionable Default in connection with any collection, sale, foreclosure or other realization
upon any Collateral shall be deposited in the Trust Account and thereafter shall be held and
applied by the Collateral Agent in accordance with the terms of this Agreement. To the extent
necessary, appropriate or desirable, the Collateral Agent from time to time may establish
sub-accounts as part of the Trust Account for the purpose of better identifying and maintaining
proceeds of Collateral, all of which sub-accounts shall be treated as and be deemed equivalent to,
the Trust Account for all purposes hereof.



     Section 4.02. Control of Trust Account. All right, title and interest in and to the Trust
Account shall vest in the Collateral Agent, and funds on deposit in the Trust
Account shall constitute part of the Trust Estate. The Trust Account shall be subject to the
exclusive dominion and control of the Collateral Agent.



     Section 4.03. Investment of Funds Deposited in Trust Account. At the written direction of
the Majority Holders, the Collateral Agent shall invest and reinvest moneys on deposit in the Trust
Account at any time in:



     (a) U.S. Government Obligations or certificates representing an ownership interest in U.S.
Government;



     (b) (i) demand deposits, (ii) time deposits and certificates of deposit with maturities of
one year or less from the date of acquisition, (iii) bankers’ acceptances with maturities not
exceeding one year from the date of acquisition, and (iv) overnight bank deposits, in each case
with any bank or trust company organized or licensed under the laws of the United States or any
state thereof having capital, surplus and undivided profits in excess of $500 million whose
short-term debt is rated “A-2” or higher by S&P or “P-2” or higher by Moody’s;



     (c) repurchase obligations with a term of not more than seven days for underlying
securities of the type described in clauses (a) and (b) above entered into with any financial
institution meeting the qualifications specified in clause (b) above;



16









 





     (d) commercial paper rated at least P-1 by Moody’s or A-1 by S&P and maturing within six
months after the date of acquisition; and



     (e) money market funds at least 95% of the assets of which consist of investments of the
type described in clauses (a) through (d) above;


provided that the Majority Holders shall not be entitled to direct the making of any such
investment or reinvestment to the extent that the Trustors would not be permitted to hold such
investment under the terms of any Documents. All such investments and the interest and income
received thereon and therefrom and the net proceeds realized on the sale thereof shall be held in
the Trust Account, as applicable, as part of the Trust Estate.




     Section 4.04. Application of Moneys in Trust Account. All moneys held by the Collateral
Agent in the Trust Account shall, to the extent available for distribution, be distributed (or
deposited in a separate account for the benefit of the Indenture Trustee and each New
Representative pursuant to  Section 4.05) by the Collateral Agent as follows:



     First: To the Collateral Agent in an amount equal to the Collateral Agent’s Fees
that are unpaid as of the relevant Distribution Date and to any Secured Party that has theretofore
advanced or paid any Collateral Agent’s Fees in an amount equal to the amount thereof so advanced
or paid by such Secured Party prior to such Distribution Date;



     Second: to the Indenture Trustee and each New Representative (if any) equally and
ratably (in the same proportion that the unpaid Obligations of the Indenture Trustee or such New
Representative, as applicable, bear to all unpaid Obligations on the relevant Distribution Date)
for application to the payment in full of all outstanding Obligations (other than Obligations paid
pursuant to clause first above) that are then due and payable to the Secured Parties (which shall
then be applied or held by the Indenture Trustee and each such New Representative in such order as
may be provided in the applicable
Documents); provided that any moneys held in the Trust Account that were received in
connection with any collection, sale, foreclosure or other realization upon any assets or
properties that do not constitute Collateral with respect to one or more Series of New Obligations
shall be distributed pursuant to this clause Second to the Indenture Trustee and each New
Representative with respect to each Series of New Obligations that is secured by such assets or
properties, equally and ratably (in the same proportion that the unpaid Obligations of the
Indenture Trustee or such New Representative, as applicable, bear to all unpaid Obligations secured
by such assets or properties on the relevant Distribution Date); and



     Third: Any surplus then remaining shall be paid to the respective Trustor, its
successors or assigns, or as a court of competent jurisdiction may direct.



     In connection with the application of proceeds pursuant to this  Section 4.04, except as
otherwise directed in writing by the Majority Holders, the Collateral Agent may sell any non-cash
proceeds for cash prior to the application of the proceeds thereof.



     Section 4.05. Application of Moneys Distributable to Secured Parties. If at any time any
moneys collected or received by the Collateral Agent pursuant to this Agreement or any Collateral
Document are distributable pursuant to  Section 4.04 to the



17









 




Indenture Trustee or any New
Representative, and if the Indenture Trustee or such New Representative shall notify the Collateral
Agent that no provision is made under the Note Documents or New Documents, as applicable, (a) for
the application by the Indenture Trustee or such New Representative, as applicable, of such amounts
so distributable (whether by virtue of the Note Obligations or the applicable New Obligations not
having become due and payable or otherwise) or (b) for the receipt and the holding by the Indenture
Trustee or such New Representative, as applicable, of such amounts pending the application thereof,
then the Collateral Agent shall invest, at the written direction of the Majority Holders, all such
amounts applicable to the Note Obligations or the New Obligations in obligations of the kinds
referred to in Section 4.03, with the specific investment specified in writing and shall hold all
such amounts so distributable, and all such investments and the proceeds thereof, in trust solely
for the Indenture Trustee and/or such New Representative and for no other purpose until such time
as the Indenture Trustee or such New Representative shall request the delivery thereof by the
Collateral Agent to the Indenture Trustee or such New Representative, as applicable, for
application by it pursuant to the Note Documents or the New Documents, as applicable.




     This Article 4 is intended for the benefit of, and will be enforceable as a third party
beneficiary by, each present and future holder of Obligations, each present and future Indenture
Trustee, each present and future New Representative and the Collateral Agent as a Secured Party.



ARTICLE 5

Agreements with the Collateral Agent




     Section 5.01. Delivery of Documents. Concurrently with the execution of this Agreement
on the date hereof, the Company will deliver to the Collateral Agent a true and complete copy of
each of the Documents then in effect. The Company agrees that, promptly upon the execution
thereof, Company will, or cause the applicable Trustor to,
deliver to the Collateral Agent a true and complete copy of (a) any and all amendments,
modifications or supplements to any Document, and (b) any Documents, entered into subsequent to the
date hereof. Unless and until the Collateral Agent actually receives such copies it shall not be
deemed to have knowledge of them.



     Section 5.02. Information as to Secured Parties. The Company agrees that it shall deliver to
the Collateral Agent from time to time upon the reasonable request of the Collateral Agent, a list
setting forth, by each Document then in effect:




     (i) the aggregate amount outstanding thereunder;




     (ii) the interest rates then in effect thereunder;




     (iii) to the extent known to the Company, the names of the holders of the Notes
outstanding thereunder and the unpaid principal amount owing to each such holder of Notes;
and



18









 







     (iv) the names of such other Secured Parties under any other Series of
Obligations and the unpaid aggregate amounts owing to each such Secured Party.



     The Company will furnish to the Collateral Agent within 30 days after the date hereof, and
periodically if notice addresses and/or addresses change, a list setting forth the name and address
of each party to whom notices must be sent under the Documents. At all times the Collateral Agent
may assume without inquiry that the most recent list it has received remains current.



     Section 5.03. Compensation and Expenses. The Trustors, jointly and severally, agree to pay
to the Collateral Agent from time to time following receipt of an invoice therefrom:




     (i) compensation (which shall not be limited by any provision of law in regard to
compensation of a trustee of an express trust), as agreed by the Trustors and the
Collateral Agent, for Collateral Agent’s services hereunder and under the Collateral
Documents and for administering the Trust Estate; and




     (ii) all of the fees, reasonable costs and expenses of the Collateral Agent
(including, without limitation, the reasonable fees, expenses and disbursements of their
counsel and such special counsel, auditors, accountants, consultants or appraisers or
other professional advisors and agents as the Collateral Agent elect to retain) (A)
arising in connection with the negotiation, preparation, execution, delivery, modification
and termination of, or consent or waiver to, this Agreement and each Collateral Document
or the enforcement of any of the provisions hereof or thereof, or (B) incurred or required
to be advanced in connection with the administration of the Trust Estate, the sale or
other disposition of Collateral pursuant to any Collateral Document and the preservation,
protection or defense of the Collateral Agent’s rights under this Agreement and in and to
the Collateral and the Trust Estate, and all reasonable costs and expenses incurred by the
Collateral Agent and its agents in creating, perfecting, preserving, releasing or
enforcing the Collateral Agent’s Liens on the Collateral.



     The obligations of the Trustors under this  Section 5.03 shall survive the termination of the
other provisions of this Agreement.



     Section 5.04. Stamp and Other Similar Taxes. The Trustors, jointly and severally, agree to
indemnify and hold harmless the Collateral Agent and each Secured Party (and their respective
agents) from any present or future claim for liability for any stamp or other similar tax and any
penalties or interest with respect thereto that may be assessed, levied or collected by any
jurisdiction in connection with this Agreement, any Collateral Document, the Trust Estate or any
Collateral. The obligations of the Trustors under this  Section 5.04 shall survive the termination
of the other provisions of this Agreement.



     Section 5.05. Filing Fees, Excise Taxes, Etc.. The Trustors, jointly and severally, agree to
pay or to reimburse the Collateral Agent and its agents for any and all amounts



19









 




in respect of all
search, filing, recording and registration fees, taxes, excise taxes and other similar imposts that
may be payable or determined to be payable in respect of the execution, delivery, performance and
enforcement of this Agreement and each Collateral Document. The obligations of the Trustors under
this  Section 5.05 shall survive the termination of the other provisions of this Agreement.




     Section 5.06. Indemnification. The Trustors, jointly and severally, agree to pay, indemnify,
and hold the Collateral Agent, the Indenture Trustee and each of its officers, directors, employees
and agents harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and administration of
this Agreement and the Collateral Documents (including, but not limited to, actions by the
Collateral Agent to enforce its rights with respect to the Collateral), unless arising from the
gross negligence or willful misconduct (in either case, as determined by a final judgment of a
court of competent jurisdiction) of the Collateral Agent or such of the agents as are seeking
indemnification. The foregoing indemnities in this  Section 5.06 shall survive the resignation or
removal of the Collateral Agent or the termination of this Agreement.



     Section 5.07. Further Assurances; Notation on Financial Statements. (a) At any time and
from time to time, upon the written request of the Collateral Agent, and, at the sole expense of
the Trustors, the Trustors will promptly execute and deliver any and all such further instruments
and documents and take such further action as the Collateral Agent reasonably deems necessary or
desirable in obtaining the full benefits of this Agreement, the Collateral Documents and the other
Documents and of the rights and powers herein and therein granted. To the extent required by law,
the Trustors shall, in all of their financial statements, indicate by footnote or otherwise that
the Obligations are secured pursuant to this Agreement and the Collateral Documents.



     (b) Pursuant to the Indenture and the Security Agreement, from time to time, additional
direct or indirect subsidiaries of the Company are required to become parties to the Security
Agreement. In connection with any such subsidiary becoming party to the Security Agreement, such
subsidiary (an “Additional Trustor”) shall execute a Supplement to Collateral Trust Agreement in
the form of Exhibit A hereto and upon such execution shall become a Trustor hereunder with all
applicable rights and responsibilities.



ARTICLE 6

The Collateral Agent




     Section 6.01. Acceptance of Trust, Powers of the Collateral Agent. (a) The Collateral
Agent, for itself and its successors, hereby accepts the trusts created by this Agreement upon the
terms and conditions hereof, including those contained in this  Article 6.



     (b) The Collateral Agent is authorized and empowered to enter into and perform its
obligations and protect, perfect, exercise and enforce its interests, rights, powers and remedies
under this Agreement and the Collateral Documents and applicable



20









 




law and in equity and to act as
set forth in this Agreement or as requested in any lawful directions given to it from time to time
in respect of any matter by a written notice of the Majority Holders.




     (c) Neither the Indenture Trustee nor any New Representative or any other holder of
Obligations will have any liability whatsoever for any act or omission of the Collateral Agent.



     (d) The Collateral Agent will accept, hold, administer and enforce all Liens on the
Collateral at any time transferred or delivered to it and all other interests, rights, powers and
remedies at any time granted to or enforceable by the Collateral Agent and all other property of
the Trust Estates solely and exclusively for the benefit of all present and future holders of
Obligations, and will distribute all proceeds received by it in realization thereon or from
enforcement thereof solely and exclusively pursuant to the provisions of  Section 4.04.



     (e) Except as expressly provided herein, no provision of this Agreement shall require the
Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its rights or powers.



     Section 6.02. Exculpatory Provisions. (a) The Collateral Agent shall not be responsible in
any manner whatsoever for the correctness of any recitals, statements, representations or
warranties contained in this Agreement or in any Collateral Document, all of which are made solely
by the Trustors. The Collateral Agent makes no representations as to the value or condition of the
Trust Estate or any part thereof, or as to the title of the Trustors thereto or as to the security
afforded by any Collateral Document or this Agreement, or as to the validity, execution (except its
own execution), enforceability, legality or sufficiency of this Agreement, any Collateral Document
or the Obligations secured hereby and thereby, 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 Trust Estate or for the payment of taxes, charges, assessments or liens upon the Trust
Estate or otherwise as to the maintenance of the Trust Estate, except that in the event the
Collateral Agent enters into possession of a part or all of the Trust Estate, the Collateral Agent
shall preserve the part in its possession.



     (b) The Collateral Agent shall not be required to ascertain or inquire as to the
performance by the Trustors of any of the covenants or agreements contained in this Agreement, in
any Collateral Document or in any other Document. Whenever it is
necessary, or in the opinion of the Collateral Agent advisable, for the Collateral Agent to
ascertain the amount of Obligations then held by a Secured Party, the Collateral Agent may
conclusively rely on a certificate of such Secured Party or its representative (including the
Indenture Trustee or any applicable New Representative) as to such amount, and if any such Secured
Party or representative shall not give such information to the Collateral Agent, such Secured Party
shall not be entitled to receive distributions hereunder (in which case such distributions shall be
held in trust for such Secured Party) until it has given such information to the Collateral Agent.



21









 





     (c) The Collateral Agent shall not be personally liable for any action taken or omitted to
be taken by it in accordance with this Agreement or any Collateral Document except for its own
gross negligence or willful misconduct.



     (d) The Collateral Agent shall have no responsibility for the preparation, filing or
recording of any instrument, document or financing statement or for the maintenance of any security
interest intended to be perfected thereby.



     Section 6.03. Delegation of Duties. The Collateral Agent may execute any of the trusts or
powers hereof and perform any duty hereunder either directly or by or through agents or
attorneys-in-fact, which may include officers and employees of the Trustors. The Collateral Agent
shall be entitled to advice of counsel, at the expense of the Trustors, concerning all matters
pertaining to such trusts, powers and duties. The Collateral Agent shall not be responsible for
the negligence or misconduct of any agents or attorneys-in-fact selected by it without gross
negligence or willful misconduct.



     Section 6.04. Reliance by Collateral Agent. (a) Whenever in the administration of the
trusts of this Agreement the Collateral Agent shall deem it necessary or desirable that a matter be
proved or established in connection with the taking, suffering or omitting any action hereunder by
the Collateral Agent, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively provided or established by an Officer’s Certificate
delivered to the Collateral Agent, and such certificate shall be full warranty to the Collateral
Agent for any action taken, suffered or omitted in reliance thereon, subject, however, to the
provisions of  Section 6.05.



     (b) The Collateral Agent may consult with counsel of its selection, and any opinion of
such counsel who is not an employee of the Collateral Agent shall be full and complete
authorization and protection in respect of any action taken or suffered by it hereunder in
accordance therewith. The Collateral Agent shall have the right at any time to seek instructions
concerning the administration of the Trust Estate from any court of competent jurisdiction.



     (c) The Collateral Agent may conclusively rely, and shall be fully protected in acting,
upon any resolution, statement, certificate, instrument, opinion, report, notice, request, consent,
order, bond or other paper or document that it has no reason to believe to be other than genuine
and to have been signed or presented by the proper party or parties or, in the case of cables,
telecopies and telexes, to have been sent by the proper party or parties. In the absence of its
gross negligence or willful misconduct, the Collateral Agent may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Collateral Agent and conforming to the requirements of this Agreement or
any
Collateral Document. Without limitation to the foregoing, the Collateral Agent may rely as
provided in this  Section 6.04 on any Officer’s Certificate provided by the Company pursuant to
 Section 2.02 hereof, and may deem such information correct until such time as it receives any
written modification of any such certificate from Company in respect thereof.



22









 





     (d) The Collateral Agent shall not be under any obligation to exercise any of the rights
or powers vested in the Collateral Agent by this Agreement at the request or direction of the
Majority Holders pursuant to this Agreement or any Collateral Document, unless the Collateral Agent
shall have been provided adequate security and indemnity reasonably satisfactory to it against the
costs, expenses and liabilities that may be incurred by it in compliance with such request or
direction, including such reasonable advances as may be requested by the Collateral Agent.



     Section 6.05. Limitations on Duties of Collateral Agent. (a) The Collateral Agent shall be
obliged to perform such duties and only such duties as are specifically set forth in this Agreement
or in any Collateral Document, and no implied covenants or obligations shall be read into this
Agreement or any Collateral Document against the Collateral Agent and the Collateral Agent shall
not be liable with respect to any action taken or omitted by it in accordance with the direction of
the Majority Holders pursuant to  Section 3.08.



     (b) Except as herein otherwise expressly provided, the Collateral Agent shall not be under any
obligation to take any action that is discretionary with the Collateral Agent under the provisions
hereof or any Collateral Document except upon the written request of the Majority Holders pursuant
to  Section 3.08. The Collateral Agent shall make available for inspection and copying by the
Indenture Trustee and each New Representative, each certificate or other paper furnished to the
Collateral Agent by the Company under or in respect of this Agreement, any Collateral Document or
any of the Trust Estate.



     (c) Whenever reference is made in this Agreement to any action by, consent, designation,
specification, requirement of approval of, notice, request or other communication from, or other
direction given or action to be undertaken or to be (or not to be) suffered or omitted by the
Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of
satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by
the Collateral Agent, it is understood that in all cases the Collateral Agent shall, except as
otherwise expressly provided in this Agreement, be acting, giving, withholding, suffering,
omitting, taking or otherwise undertaking and exercising the same (or shall not be undertaking and
exercising the same) as directed by the Secured Parties. This provision is intended solely for the
benefit of the Collateral Agent and its successors and permitted assigns and is not intended to and
will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any
rights or benefits on any party hereto.



     Section 6.06. Moneys to Be Held in Trust. All moneys received by the Collateral Agent under
or pursuant to any provision of this Agreement or any Collateral Document shall be held in trust
for the purposes for which they were paid or are held.



     Section 6.07. Resignation and Removal of the Collateral Agent. (a) The Collateral Agent may
at any time, by giving 30 days’ prior written notice to the Company, the Indenture Trustee and each
New Representative (if any), resign and be discharged of the responsibilities hereby created, such
resignation to become effective upon the earlier of: (i) 30 days from the date of such notice and
(ii) the appointment of a successor trustee or trustees by the Company, the acceptance of such
appointment by such successor




23











 




trustee or trustees, and the approval of such
successor trustee or trustees by the Majority Holders; provided that no resignation shall become
effective unless and until a successor trustee has been appointed as provided herein. The
Collateral Agent may be removed at any time and a successor trustee or trustees appointed by the
affirmative vote of the Majority Holders; provided that the Collateral Agent shall be paid its fees
and reasonable expenses to the date of removal. If no successor trustee or trustees shall be
appointed and approved within 30 days from the date of the giving of the aforesaid notice of
resignation, the Collateral Agent shall, or the Indenture Trustee, any New Representative or any
other Secured Party may, apply to any court of competent jurisdiction to appoint a successor
trustee or trustees (which may be an individual or individuals) to act until such time, if any, as
a successor trustee or trustees shall have been appointed as above provided. Any successor trustee
or trustees so appointed by such court shall immediately and without further act be superseded by
any successor trustee or trustees approved by the Majority Holders as above provided.




     (b) If at any time the Collateral Agent shall resign or be removed or otherwise become
incapable of acting, or if at any time, a vacancy shall occur in the office of the Collateral Agent
for any other cause, a successor trustee or trustees may be appointed by the Majority Holders, and
the powers, duties, authority and title of the predecessor trustee or trustees terminated and
canceled without procuring the resignation of such predecessor trustee or trustees, and without any
other formality (except as may be required by applicable law) than appointment and designation of a
successor trustee or trustees in writing, duly acknowledged, delivered to the predecessor trustee
or trustees and Company, and filed for record in each public office, if any, in which this
Agreement is required to be filed.



     (c) The appointment and designation referred to in Section 6.07 (b) shall, after any required
filing, be full evidence of the right and authority to make the same and of all the facts therein
recited, and this Agreement shall vest in such successor trustee or trustees, without any further
act, deed or conveyance, all of the estate and title of its predecessor, and upon such filing for
record the successor trustee or trustees shall become fully vested with all the estates,
properties, rights, powers, trusts, duties, authority and title of its predecessor; but such
predecessor shall, nevertheless, on the written request of the Majority Holders, the Company or the
successor trustee or trustees, execute and deliver an instrument transferring to such successor or
successors all the estates, properties, rights, powers, trusts, duties, authority and title of such
predecessor or predecessors hereunder and shall deliver all Securities and moneys held by it to
such successor trustee or trustees. Should any deed, conveyance or other instrument in writing
from any Trustor be required by any successor trustee or trustees for more fully and certainly
vesting in such successor trustee or trustees the estates, properties, rights, powers, trusts,
duties, authority and title vested or intended to be vested in the predecessor trustee or trustees,
any and all such deeds, conveyances and other instruments in writing shall, on request of such
successor trustee or trustees, be executed, acknowledged and delivered by such Trustor.



     (d) Any required filing for record of the instrument appointing a successor trustee or
trustees as hereinabove provided shall be at the sole expense of the Trustors. The resignation of
any trustee or trustees and the instrument or instruments removing any trustee or trustees,
together with all other instruments, deeds and conveyances provided



24









 




for in this Article 6 shall,
if permitted by law, be forthwith recorded, registered and filed by and at the expense of the
Trustors, wherever this Agreement is recorded, registered and filed.




     Section 6.08. Status of Successors to the Collateral Agent. Except as permitted by Section
6.07, every successor to the Collateral Agent appointed pursuant to Section 6.07 shall be a bank
or trust company in good standing and having power so to act, incorporated under the laws of the
United States or any State thereof or the District of Columbia, and having its principal corporate
trust office within the 48 contiguous States, and shall also have (together with its corporate
affiliates) capital, surplus and undivided profits of not less than $100,000,000, if there be such
an institution with such capital, surplus and undivided profits willing, qualified and able to
accept the trust upon reasonable or customary terms.



     Section 6.09. Merger of the Collateral Agent. Any corporation into which the Collateral
Agent may be merged, or with which it may be consolidated, or any corporation resulting from any
merger or consolidation to which the Collateral Agent shall be a party, or any corporation to which
the Collateral Agent shall transfer all or substantially all of its corporate trust business
(including the administration of this trust) shall be Collateral Agent under this Agreement without
the execution or filing of any paper or any further act on the part of the parties hereto.



     Section 6.10. Co-Trustee, Separate Trustee. (a) If at any time or times it shall be
necessary or prudent in order to conform to any law of any jurisdiction in which any of the
Collateral shall be located, or the Collateral Agent shall be advised by counsel, satisfactory to
it, that it is so necessary or advisable in the interest of the Secured Parties, or the Majority
Holders shall in writing so request the Collateral Agent and the Trustors, or the Collateral Agent
shall deem it desirable for its own protection in the performance of its duties hereunder, the
Collateral Agent and the Trustors shall, at the reasonable request of the Collateral Agent, execute
and deliver all instruments and agreements necessary or proper to constitute another bank or trust
company, or one or more persons approved by the Collateral Agent and the Trustors, either to act as
co-trustee or co-trustees of all or any of the Collateral, jointly with the Collateral Agent
originally named herein or any successor or successors, or to act as separate trustee or trustees
of any such property. In the event the Trustors shall not have joined in the execution of such
instruments and agreements within 30 days after the receipt of a written request from the
Collateral Agent so to do, or in case an Actionable Default shall have occurred and be continuing,
the Collateral Agent may act under the foregoing provisions of this Section 6.10 without the
concurrence of the Trustors, and the Trustors hereby appoint the Collateral Agent as its agent and
attorney to act for it under the foregoing provisions of this Section 6.10 in either of such
contingencies.



     (b) Every separate trustee and every co-trustee, other than any trustee that may be appointed
as successor to the Collateral Agent, shall, to the extent permitted by law, be appointed and act
and be such, subject to the following provisions and conditions, namely:




     (i) all rights, powers, duties and obligations conferred upon the Collateral Agent in
respect of the custody, control and management of moneys,



25









 






papers or Securities shall be
exercised solely by the Collateral Agent, or its successors hereunder;




     (ii) all rights, powers, duties and obligations conferred or imposed upon the
Collateral Agent hereunder shall be conferred or imposed and exercised or performed by the
Collateral Agent and such separate trustee or separate trustees or co-trustee or
co-trustees, jointly, as shall be provided in the instrument appointing such separate
trustee or separate trustees or co-trustee or co-trustees, except to the extent that under
any law of any jurisdiction in which any particular act or acts are to be performed the
Collateral Agent shall be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations shall be exercised and performed by such
separate trustee or separate trustees or co-trustee or co-trustees;




     (iii) no power given hereby to, or that it is provided hereby may be exercised by,
any such co-trustee or co-trustees or separate trustee or separate trustees, shall be
exercised hereunder by such co-trustee or co-trustees or separate trustee or separate
trustees, except jointly with, or with the consent in writing of, the Collateral Agent,
anything herein contained to the contrary notwithstanding;




     (iv) no trustee hereunder shall be personally liable by reason of any act or omission
of any other trustee hereunder; and




     (v) the Trustors and the Collateral Agent, at any time by an instrument in writing,
executed by them, may accept the resignation of or remove any such separate trustee or
co-trustee, and in that case, by an instrument in writing executed by the Trustors and the
Collateral Agent jointly, may appoint a successor to such separate trustee or co-trustee,
as the case may be, anything herein contained to the contrary notwithstanding. In the
event that the Trustors shall not have joined in the execution of any such instrument
within ten days after the receipt of a written request from the Collateral Agent so to do,
or in case an Actionable Default shall have occurred and be continuing, the Collateral
Agent shall have the power to accept the resignation of or remove any such separate
trustee or co-trustee and to appoint a successor without the concurrence of the Trustors,
the Trustors hereby appointing the Collateral Agent its agent and attorney to act for it
in such connection in either of such contingencies. In the event that the Collateral
Agent shall have appointed a separate trustee or separate trustees or co-trustee or
co-trustees as above provided, it may at any time, by an instrument in writing, accept the
resignation of or remove any such separate trustee or co-trustee, the successor to any
such separate trustee or co-trustee to be appointed by the Trustors and the Collateral
Agent, or by the Collateral Agent alone, as provided in this Section 6.10.



26









 





ARTICLE 7

Release of Collateral




     Section 7.01. Conditions to Release; Release Procedure. (a) Subject to Section
7.01(c), the Collateral Agent’s Liens upon the Collateral will be released:




     (i) in whole, upon (A) payment in full and discharge of all outstanding Notes (or
upon a defeasance or discharge in accordance with the Indenture) and all outstanding
indebtedness in respect of each New Facility (if any) (or upon a defeasance or discharge
of each such New Facility in accordance with the applicable New Documents) and all other
Obligations (in each case other than any indemnification obligations for which no claim or
demand for payment, whether oral or written, has been made) and (B) termination or
expiration of all commitments to extend credit under all Documents; provided that the
Company shall have delivered an Officer’s Certificate to the Collateral Agent certifying
that the conditions described in this clause (i) have been met and that such release of
the Collateral is permitted under, and does not violate the terms of, any Document;




     (ii) as to any Collateral that is sold, transferred or otherwise disposed of by any
Trustor to a Person that is not (either before or after such sale, transfer or
disposition) the Company or any other Trustor in a transaction or other circumstance that
is permitted by all of the Documents, automatically at the time of such sale, transfer or
other disposition (but excluding any transaction subject to Article 5 of the Indenture
where the recipient is required to become the obligor on the Notes or a Guarantor or any
similar provision contained in any other Document) to the extent of the interest sold,
transferred or otherwise disposed of; provided that, to the extent provided in the
Collateral Documents, the Collateral Agent’s Liens will attach to the proceeds received in
respect of any such sale, transfer or other disposition, subject to the priorities set
forth in Section 4.04;




     (iii) as to a release of any portion of the Collateral (which may include all or
substantially all of the Collateral), with respect to such Collateral, if (A) consent to
the release of such Liens of the Collateral Agent on such Collateral has been given by (i)
the requisite holders of Notes (or the Indenture Trustee, on behalf of the requisite
holders of Notes) and (ii) the requisite holders of indebtedness in respect of each other
Series of Obligations, in each case as permitted by, and in accordance with, the
applicable Documents and (B) the Company shall have delivered an Officer’s Certificate to
the Collateral Agent certifying that the conditions described in this clause (iii) have
been met and that such release of the Collateral is permitted under, and does not violate
the terms of, any Document; provided that the Collateral Agent’s Liens on any such
Collateral solely securing a particular Series of New Obligations shall be released with
respect to such Series if (A) consent to the release of such Liens has been given by the
requisite holders of such Series of New Obligations (determined under the New Documents
governing such Series) and (B) the Company shall have delivered an Officer’s Certificate
to the Collateral Agent certifying that the conditions described in this proviso to clause
(iii) have been met and that such



27









 






release of the Collateral is permitted under, and does
not violate the terms of, any Document; and




     (iv) if any part of the Collateral is subject to any Permitted Lien (as defined in
the Security Agreement) that is senior to the Liens securing the Collateral as a matter of
law, the Collateral Agent will execute any document reasonably requested in writing by the
Company to evidence such subordination.



     (b) Subject to Section 7.01(c), the Collateral Agent’s Liens on the Collateral securing the
Note Obligations only (and not any other Obligations) will be released upon payment in full and
discharge of all outstanding Notes (or upon a defeasance or discharge in accordance with the
Indenture) and all other Note Obligations (other than any indemnification obligations for which no
claim or demand for payment, whether oral or written, has been made), and thereafter the rights of
the holders of the Notes and the Note Obligations to the benefit and proceeds of the Collateral
Agent’s Liens on the Collateral will terminate and be discharged; provided that the Company shall
have delivered an Officer’s Certificate to the Collateral Agent certifying that the conditions
described in this clause (b) have been met and that such release of the Collateral is permitted
under, and does not violate the terms of, any Document;



     (c) All of the Collateral shall not be released pursuant to Section 7.01(a)(i),
7.01(a)(iii) or 7.01(b) unless and until all Collateral Agent’s Fees (other than any
indemnification obligations for which no claim or demand for payment, whether oral or written, has
been made) shall have been paid in full.



     (d) The Collateral of a Guarantor shall be automatically released upon the release of such
Guarantor’s obligations under its Note Guaranty as provided in Section 10.09 of the Indenture and
the comparable provision of each other Document.



     (e) Upon the release of the Collateral, or any portion thereof, in each case in accordance
with the provisions hereof (other than any Collateral that is released with respect to less than
all of the Obligations), all right, title and interest of the Collateral Agent in, to and under the
Trust Estate in respect of the Collateral or portion thereof so released, and the Collateral
Documents in respect of such Collateral, shall terminate and shall revert to the respective
Trustors, their successors and assigns, and the estate, right, title and interest of the Collateral
Agent therein shall thereupon cease, determine and become void; and in such case (including a
release with respect to less than all of the Obligations), upon the written request of the
respective Trustors, their successors or assigns, and at the cost and expense of the Trustors,
their successors or assigns, the Collateral Agent shall execute in respect of the Collateral so
released, a satisfaction of the Collateral Documents with respect to such Collateral and such
instruments as are necessary or desirable to terminate and remove of record any documents
constituting public notice of the Collateral Documents and the security interests and assignments
granted thereunder, in each case with respect to such Collateral, and shall assign and transfer, or
cause to be assigned and transferred, and shall deliver or cause to be delivered to the Trustors,
in respect of the Collateral so released, all property, including all moneys, instruments and
Securities (if any), of the Trustors then held by the Collateral Agent. The cancellation and
satisfaction of the Collateral Documents shall be without prejudice



28









 




to the rights of the Collateral
Agent or any successor trustee to charge and be reimbursed for any expenditures that it may
thereafter incur in connection therewith.




ARTICLE 8

Miscellaneous




     Section 8.01. Amendments, Supplements and Waivers. (a) With the written consent of the
Indenture Trustee and each New Representative (if any) (in each case given in accordance with the
requirements (including the amendment provisions) of the Documents with respect to the applicable
Series of Obligations), the Collateral Agent and the Trustors may, from time to time, enter into
written supplements, amendments, restatements, waivers or other modifications to this Agreement or
any Collateral Document for the purpose of adding to, amending, waiving or otherwise modifying any
provision of this Agreement or any Collateral Document or changing the rights of the Collateral
Agent, the Secured Parties or the Trustors hereunder or thereunder; provided, however, that:




     (i) no such supplement, amendment, restatement, waiver or other modification shall,
without the written consent of the Collateral Agent, (x) amend, modify or waive any
provision of Article 6 or alter the duties or obligations of the Collateral Agent
hereunder or under any Collateral Document or (y) amend or modify the definition of
“Majority Holders” set forth in Section 1.02;




     (ii) any such supplement, amendment, restatement, waiver or other modification that
would only adversely affect the Obligations of a particular Series shall require only the
written consent of the Representative with respect to such Series (given in accordance
with the requirements (including the amendment provisions if applicable) of the Documents
with respect to such Series); and




     (iii) any such supplement, amendment, restatement, waiver or other modification that
has the effect of releasing Collateral from the Liens granted pursuant to the Collateral
Documents other than as provided for in Section 7.01 shall be effective only if made in
accordance with the requirements of, and the amendment provisions set forth in, each of
the Documents;


provided, however, that notwithstanding the foregoing, (x) no Trustor shall have any right to
consent to or approve any supplement, amendment, restatement, waiver or other modification of any
provision of this Agreement that is solely and exclusively an intercreditor matter that affects the
Secured Parties and does not adversely affect the rights or obligations of any Trustor (including,
without limitation, Sections 2.03 and 4.04), but the Collateral Agent shall promptly provide a
copy of any such executed amendment, restatement, supplement, modification or waiver to the
Trustors and (y) without the consent of any Secured Party, any Collateral Document may be
supplemented, amended, restated, waived or otherwise modified (A) to the extent (and only to the
extent) required to allow for any release of Collateral that is expressly permitted by Section
7.01 and (B) in the following circumstances:




29









 









     (1) to cure any ambiguity, defect or inconsistency in this
Agreement, the Security Agreement or any other agreement, document or
instrument pursuant to which a Lien is granted securing any
Obligations or under
which rights or remedies with respect to such Liens are governed;




     (2) to comply with (i) Article 5 of the Indenture or (ii) the
comparable provisions of any New Documents; provided, in the case of
clause (ii), that the applicable supplement, amendment, restatement,
waiver or other modification does not adversely affect the Note
Obligations;




     (3) to comply with the requirements of the Securities and
Exchange Commission in connection with the qualification under the
Trust Indenture Act of 1939 of (i) the Indenture or (ii) any New
Documents; provided, in the case of clause (ii), that the applicable
supplement, amendment, restatement, waiver or other modification does
not adversely affect the Note Obligations;




     (4) to evidence and provide for the acceptance of an appointment
by a successor Indenture Trustee or Collateral Agent;




     (5) to conform the text of this Agreement, the Security Agreement
or any other agreement, document or instrument pursuant to which a
Lien is granted securing any Obligations or under which rights or
remedies with respect to such Liens are governed to any provision of
the “Description of Notes” section of the offering memorandum dated
November 5, 2010 relating to the offering by the Company of the Notes,
as certified in an Officer’s Certificate; or




     (6) to make any other change that does not materially and
adversely affect the rights of any Secured Party.



     Any such supplement, amendment, restatement, waiver or other modification shall be binding
upon the Trustors, the Secured Parties and the Collateral Agent and their respective successors.
The Collateral Agent shall not enter into any such supplement, amendment, restatement, waiver or
other modification unless it shall have received (x) written authorization from the Indenture
Trustee and each New Representative to enter into same, which authorization shall include a
statement to the effect that the requisite holders of the applicable Series of Obligations
(determined under the Documents governing such Series) have authorized the entry into same and (y)
an Officer’s Certificate to the effect that such supplement, amendment, restatement, waiver or
other modification will not result in a breach of any provision or covenant contained in the
Indenture, any other Document or this Agreement.



30









 





     (b) Notwithstanding the foregoing, without the consent of any Secured Party, the Collateral
Agent and the Trustors, at any time and from time to time, may enter into additional pledge or
Collateral Documents or one or more agreements supplemental hereto or to any Collateral Document,
in form reasonably satisfactory to the Collateral Agent (it being understood that any supplement in
the form of Exhibits A and B shall be deemed to be satisfactory to the Collateral Agent):




     (i) to add to the covenants of the Trustors, for the benefit of the Secured Parties,
or to surrender any right or power herein conferred upon the Trustors;




     (ii) to pledge or grant a security interest in any property or assets that are
required to be pledged, or in which a security interest is required to be granted, to the
Collateral Agent pursuant to any Collateral Document or any other applicable Document;




     (iii) to cure any ambiguity or omission, to correct or to supplement any provision
herein or in any Collateral Document that may be defective or inconsistent with any other
provision herein or therein, or to make any other provisions with respect to matters or
questions arising hereunder or under any Collateral Document that shall not be
inconsistent with any provision hereof or of any Collateral Document;




     (iv) to add an Additional Trustor; and




     (v) to add New Representative.



     (c) In executing, or accepting the additional trusts created by, any amendment, supplement or
waiver hereto or to any other Collateral Document, permitted by this Agreement or such Collateral
Document, the Collateral Agent shall receive and shall be fully protected in conclusively relying
upon, an opinion of counsel or an Officer’s Certificate stating that the execution of such
amendment, supplement or waiver is authorized or permitted by this Agreement or such Collateral
Document. The Collateral Agent may, but shall not be obligated to, enter into any amendment,
supplement or waiver, which adversely affects the Collateral Agent’s own rights, duties or
immunities under this Agreement, such Collateral Document or otherwise.



     (d) Notwithstanding the foregoing, at the written instruction of the Trustee, the Collateral
Agent shall execute and deliver the Spectrum Registration Rights Agreement, the Spectrum
Stockholder Agreement and other agreements with respect to equityholders’ rights to which any
Trustor is a party or becomes a party from time to time after execution of this Agreement.



     Section 8.02. Voting. (a) In connection with any matter under this Agreement requiring a
vote of holders of Obligations at any time, each Series of Obligations will cast its votes in
accordance with the Note Documents or the New Documents, as applicable, governing such Series of
Obligations and as contemplated by the definition of Majority Holders hereunder.



31









 





     (b) For the avoidance of doubt, for purposes of determining at any time whether the “Majority
Holders” have given any instruction or taken any action hereunder (or consented to the taking of
any action hereunder), the following rules shall apply: (i) the Representative with respect to each
Series of Obligations shall be deemed to hold the principal amount of indebtedness constituting
Obligations then outstanding under such Series of Obligations, (ii) each Representative shall, with
respect to the principal amount of indebtedness constituting Obligations deemed held by such
Representative pursuant to the preceding clause (i), provide any such instruction to, or shall
instruct the Collateral Agent to take such action, in accordance with voting provisions set forth
in the Documents with respect to the applicable Series of Obligations and subject to the proviso at
the end of the definition of “Majority Holders” and to the last sentence of such definition and
(iii) based on the foregoing procedures, the Collateral Agent shall determine (which determination
shall be conclusive absent manifest error), whether the Secured Parties that have given such
instruction or taken such action (or consented to the taking of such action) constitute the
“Majority Holders” as defined in the definition thereof.



     (c) Any direction in writing delivered to the Collateral Agent by or with the written consent
of the Majority Holders (a) shall set forth the aggregate amount of Obligations owed by the
Trustors to the Secured Parties represented by the Indenture Trustee and by each New Representative
under the Note Documents or the applicable New Documents, as the case may be, calculated as of the
date of determination and in accordance with the definition of Majority Holders hereunder, and (b)
shall be binding upon all of the Secured Parties, unless the matter which is the subject of the
applicable vote requires pursuant to the terms hereof the consent of all Secured Parties.



     Section 8.03. Notices. All notices, requests, demands and other communications provided for
or permitted hereunder shall be in writing and shall be sent by mail, overnight courier or hand
delivery:



     (a) If to any Trustor, to it at the address of the Company at: Harbinger Group Inc., 450 Park
Avenue, 27th Floor, New York, NY 10022, Attention: Francis T. McCarron (facsimile: (212) 339-5801),
or at such other address as shall be designated by it in a written notice to the Collateral Agent.



     (b) If to the Collateral Agent, to it at its address at: Wells Fargo Bank, National
Association, 625 Marquette Avenue, 11th Floor, MACN 9311-110 Minneapolis, MN, 55479,
Attention: Corporate Trust Services (facsimile: (612) 667-9825), or at such other address as shall
be designated by it in a written notice to the Company.



     (c) If to the Indenture Trustee, to it at its address at: Wells Fargo Bank, National
Association, 625 Marquette Avenue, 11th Floor, MACN 9311-110 Minneapolis, MN, 55479,
Attention: Corporate Trust Services (facsimile: (612) 667-9825), or at such other address as shall
be designated by it in writing to the Collateral Agent.



     (d) If to any New Representative, to it at its address as designated in the Collateral Trust
Joinder to which it is a party, or at such other address as shall be designated by it in writing to
the Collateral Agent.



32









 





     All such notices, requests, demands and communications shall be deemed to have been duly given
or made, when delivered by hand, the Business Day following deposit with an overnight courier, or
five Business Days after being deposited in the mail, postage prepaid, or when telecopied or
electronically transmitted, receipt acknowledged; provided, however, that any notice, request,
demand or other communication to the Collateral Agent shall not be effective until received.



     Section 8.04. Headings. Article, Section, subsection and other headings used in this
Agreement are for convenience only and shall not affect the construction of this Agreement.



     Section 8.05. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



     Section 8.06. Treatment of Payee or Indorsee by Collateral Agent. (a) The Collateral Agent
may treat the registered holder of any registered note, and the payee or indorsee of any note or
debenture that is not registered, as the absolute owner thereof for all purposes hereunder and
shall not be affected by any notice to the contrary, whether such promissory note or debenture
shall be past due or not.



     (b) Any person, firm, corporation or other entity that shall be designated as the duly
authorized representative of one or more Secured Parties to act as such in connection with any
matters pertaining to this Agreement or any Collateral Document or the Collateral shall present to
the Collateral Agent such documents, including, without limitation, opinions of counsel, as the
Collateral Agent may reasonably require, in order to demonstrate to the Collateral Agent the
authority of such person, firm, corporation or other entity to act as the representative of such
Secured Parties.



     Section 8.07. Dealings with the Trustors. (a) Upon any application or demand by any Trustor
to the Collateral Agent to take or permit any action under any of the provisions of this Agreement,
such Trustor shall furnish to the Collateral Agent an Officer’s Certificate stating that all
conditions precedent, if any, provided for in this Agreement relating to the proposed action have
been complied with, except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this Agreement relating
to such particular application or demand, no additional certificate or opinion need be furnished.



     (b) Any opinion of counsel may be based, insofar as it relates to factual matters, upon an
Officer’s Certificate filed with the Collateral Agent.



     Section 8.08. Claims Against the Collateral Agent. Any claims or causes of action that the
holders of any Obligations, the Indenture Trustee, any New Representative or any Trustor shall have
against the Collateral Agent shall survive the termination of this Agreement and the release of the
Collateral hereunder.



     Section 8.09. Binding Effect; Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of each of the Secured Parties, and their respective



33









 




successors and
assigns, and nothing herein or in any Collateral Document is intended or shall be construed to give
any other person any right, remedy or claim under, to or in respect of this Agreement, any
Collateral Document, the Collateral or the Trust Estate. All obligations of the Trustors hereunder
will inure to the sole and exclusive benefit of, and be enforceable by, the Collateral Agent, the
Indenture Trustee, each New Representative and each present and future holder of Obligations, each
of whom will be entitled to enforce this Agreement as a third-party beneficiary hereof, and all of
their respective successors and assigns.




     Section 8.10. Governing Law. This Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York and any action alleging any
breach by the Collateral Agent of its duties hereunder, whether by act
or omission or anticipatory, shall be prosecuted only in the federal or state courts of
competent jurisdiction in the State, County and City of New York.



     Section 8.11. Consent to Jurisdiction. All judicial proceedings brought against any party
hereto arising out of or relating to this Agreement or any of the other Collateral Documents may be
brought in any state or federal court of competent jurisdiction in the State, County and City of
New York. By executing and delivering this Agreement, each Trustor, for itself and in connection
with its properties, irrevocably:



     (a) accepts generally and unconditionally the nonexclusive jurisdiction and venue of such
courts;



     (b) waives any defense of forum non conveniens;



     (c) agrees that service of all process in any such proceeding in any such court may be made by
registered or certified mail, return receipt requested, to such party at its address provided in
accordance with Section 8.03;



     (d) agrees that service as provided in clause (c) above is sufficient to confer personal
jurisdiction over such party in any such proceeding in any such court and otherwise constitutes
effective and binding service in every respect; and



     (e) agrees each party hereto retains the right to serve process in any other manner permitted
by law or to bring proceedings against any party in the courts of any other jurisdiction.



     Section 8.12. Waiver of Jury Trial. Each party to this Agreement waives its rights to a jury
trial of any claim or cause of action based upon or arising under this Agreement or any of the
Collateral Documents or any dealings between them relating to the subject matter of this Agreement
or the intents and purposes of the Collateral Documents. The scope of this waiver is intended to
be all-encompassing of any and all disputes that may be filed in any court and that relate to the
subject matter of this Agreement or the Collateral Documents, including contract claims, tort
claims, breach of duty claims and all other common law and statutory claims. Each party to this
Agreement acknowledges that this waiver is a material inducement to enter into a business
relationship, that each party hereto has already relied on this waiver in entering into this
Agreement, and that each party hereto will continue to rely on this waiver in its



34









 




related future
dealings. Each party hereto further warrants and represents that it has reviewed this waiver with
its legal counsel and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. This waiver is irrevocable, meaning that it may not be modified
either orally or in writing (other than by a mutual written waiver specifically referring to this
Section 8.12 and executed by each of the parties hereto), and this waiver will apply to any
subsequent amendments, renewals, supplements or modifications of or to this Agreement or any of the
Collateral Documents or to any other documents or agreements relating thereto. In the event of
litigation, this Agreement may be filed as a written consent to a trial by the court.




     Section 8.13. Force Majeure. In no event shall the Collateral Agent be responsible or liable
for any failure or delay in the performance of its obligations hereunder arising out of or caused
by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Collateral Agent shall use reasonable efforts
which are consistent with accepted practices in the banking industry to resume performance as soon
as practicable under the circumstances.



     Section 8.14. Consequential Damages. In no event shall the Collateral Agent be responsible
or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including,
but not limited to, loss of profit) irrespective of whether the Collateral Agent has been advised
of the likelihood of such loss or damage and regardless of the form of action.



     Section 8.15. Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an original but all of
which when taken together shall constitute a single contract. Delivery of an executed signature
page to this Agreement by facsimile or PDF transmission shall be as effective as delivery of a
manually signed counterpart of this Agreement. Signatures of the parties hereto transmitted by
facsimile or PDF shall be deemed to be their original signatures for all purposes.



     Section 8.16. Incorporation by Reference. In connection with its execution and acting as
agent or trustee (as applicable) hereunder, each of the Collateral Agent, the Indenture Trustee and
any New Representative are entitled to all rights, privileges, protections, immunities, benefits
and indemnities provided to them under the Collateral Documents and any other applicable Documents.



     Section 8.17. USA PATRIOT Act. The parties hereto acknowledge that in accordance with
Section 326 of the USA PATRIOT Act, the Collateral Agent is required to obtain, verify, and record
information that identifies each person or legal entity that establishes a relationship or opens an
account with the Collateral Agent. The parties to this Indenture agree that they will provide the
Collateral Agent with such information as it may request in order for the Collateral Agent to
satisfy the requirements of the USA PATRIOT Act.



35









 





     Section 8.18. Rights Of Holders. No holder of any Note Obligations or holder of any New
Obligations shall have any independent rights hereunder other than those rights granted to
individual holders of Note Obligations pursuant to Section 6.07 of the Indenture or comparable
provision for holders of New Obligations under any New Document; provided that nothing in this
subsection shall limit any rights granted to the Indenture Trustee under the Notes or the Indenture
or any New Representative under any New Document.



[Remainder of Page Intentionally Left Blank]




36









 





     IN WITNESS WHEREOF, the parties hereto have executed this Agreement or caused this Agreement
to be duly executed by their respective officers thereunto duly authorized as of the day and year
first above written.



	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Trustee under the Indenture

 	 
	 	By:  	/s/ Richard Prokosch
 	 
	 	 	Name:  	Richard Prokosch 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Collateral Agent

 	 
	 	By:  	/s/ Richard Prokosch
 	 
	 	 	Name:  	Richard Prokosch 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	HARBINGER GROUP INC.

 	 
	 	By:  	/s/ Francis T. McCarron
 	 
	 	 	Name:  	Francis T. McCarron 	 
	 	 	Title:  	Executive Vice President and

Chief Financial Officer

Collateral Trust Agreement 	 
	 




 









 





Exhibit A to




Collateral Trust Agreement




[FORM OF] SUPPLEMENT TO COLLATERAL TRUST AGREEMENT




     Reference is made to the Collateral Trust Agreement, dated as of January 7, 2011 (as amended,
restated, supplemented or otherwise modified from time to time, the “Collateral Trust Agreement”),
among Harbinger Group Inc., a Delaware corporation, (the “Company”), the Additional Trustors from
time to time party thereto, Wells Fargo Bank, National Association, as Indenture Trustee, Wells
Fargo Bank, National Association, as Collateral Agent, and each other Person party thereto from
time to time. Terms defined in the Collateral Trust Agreement and not otherwise defined herein are
as defined in the Collateral Trust Agreement.



     This Supplement to Collateral Trust Agreement, dated as of                     , 20__ (this “Supplement
to Trust Agreement”), is being delivered pursuant to Section 5.07 of the Collateral Trust
Agreement.



     The undersigned,                     , a                      (the “Additional Trustor”) hereby agrees to become a
party to the Collateral Trust Agreement as a Trustor thereunder, for all purposes thereof on the
terms set forth therein, and to be bound by all of the terms and provisions of the Collateral Trust
Agreement as fully as if the Additional Trustor had executed and delivered the Collateral Trust
Agreement as of the date thereof.



     This Supplement to Collateral Trust Agreement may be executed in two or more counterparts,
each of which shall constitute an original but all of which when taken together shall constitute
one contract.



     This Supplement to Collateral Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.



[Signature Pages Follow]




 









 





     IN WITNESS WHEREOF, the Additional Trustor has caused this Supplement to Collateral Trust
Agreement to be duly executed by its authorized representative as of the day and year first above
written.



	 	 	 	 	 
	 	[ADDITIONAL TRUSTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





     The Collateral Agent acknowledges receipt of this Supplement to Collateral Trust Agreement and
agrees to act as Collateral Agent with respect to the Collateral pledged by the Additional Trustor,
as of the day and year first above written.



	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





Exhibit B to




Collateral Trust Agreement




[FORM OF] JOINDER TO COLLATERAL TRUST AGREEMENT




     Reference is made to the Collateral Trust Agreement, dated as of January 7, 2011 (as amended,
restated, supplemented or otherwise modified from time to time, the “Collateral Trust Agreement”),
among Harbinger Group Inc., a New Jersey corporation (the “Company”), the Additional Trustors from
time to time party thereto, Wells Fargo Bank, National Association, as Indenture Trustee, Wells
Fargo Bank, National Association, as Collateral Agent, and each other Person party thereto from
time to time. Terms defined in the Collateral Trust Agreement and not otherwise defined herein are
as defined in the Collateral Trust Agreement.



     This Joinder to Collateral Trust Agreement, dated as of                     , 20__ (this “Collateral Trust
Joinder”), is being delivered pursuant to Section 2.02 of the Collateral Trust Agreement as a
condition precedent to the incurrence of the indebtedness for which the undersigned is acting as
agent being entitled to the benefits of being Obligations under the Collateral Trust Agreement.



     1. Joinder. The undersigned,                          , a                     , (the “New
Representative”) as [trustee, administrative agent] under that certain [describe New Facility] (the
“New Facility”) hereby agrees to become party as an New Representative and a Secured Party under
the Collateral Trust Agreement for all purposes thereof on the terms set forth therein, and to be
bound by the terms, conditions and provisions of the Collateral Trust Agreement as fully as if the
undersigned had executed and delivered the Collateral Trust Agreement as of the date thereof.



     2. Lien Sharing and Priority Confirmation. The undersigned New Representative, on
behalf of itself and each holder of obligations in respect of the New Facility (together with the
New Representative, the “New Secured Parties”), hereby agrees, for the enforceable benefit of all
existing and future New Representative, each existing and future Representative and each existing
and future Secured Party, and as a condition to being treated as Obligations under the Collateral
Trust Agreement that:



     (a) all Obligations will be and are secured equally and ratably by all Liens granted to the
Collateral Agent, for the benefit of the Secured Parties, which are at any time granted by any
Trustor to secure any Obligations whether or not upon property otherwise constituting collateral
for such New Facility, and that all Liens granted pursuant to the Collateral Documents will be
enforceable by the Collateral Agent for the benefit of all holders of Obligations equally and
ratably as contemplated by the Collateral Trust Agreement;



     (b) the New Representative and each other New Secured Party is bound by the terms, conditions
and provisions of the Collateral Trust Agreement and the Collateral Documents, including, without
limitation, the provisions relating to the ranking of Liens and the order of application of
proceeds from the enforcement of Liens; and



 









 






     (c) the New Representative shall perform its obligations under the Collateral Trust Agreement
and the Collateral Documents.



     3. Appointment of Collateral Agent. The New Representative, on behalf of itself and
the New Secured Parties, hereby (a) irrevocably appoints [Wells Fargo Bank, National
Association]1 as Collateral Agent for purposes of the Collateral Trust Agreement and the
Collateral Documents, (b) irrevocably authorizes the Collateral Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Collateral Agent in the Collateral Trust
Agreement and the Collateral Documents, together with such actions and powers as are reasonably
incidental thereto, and authorizes the Collateral Agent to execute any Collateral Documents on
behalf of all Secured Parties and to take such other actions to maintain and preserve the security
interests granted pursuant to any Collateral Documents, and (c) acknowledges that it has received
and reviewed the Collateral Trust Agreement and the Collateral Documents and agrees to be bound by
the terms thereof. The New Representative, on behalf of the New Secured Parties, and the
Collateral Agent, on behalf of the existing Secured Parties, each hereby acknowledges and agrees
that the Collateral Agent in its capacity as such shall be agent on behalf of the New
Representative and on behalf of all other Secured Parties.



     4. Consent. The New Representative, on behalf of itself and the New Secured Parties,
consents to and directs the Collateral Agent to perform its obligations under the Collateral Trust
Agreement and the Collateral Documents.



     5. Authority as Agent. The New Representative represents, warrants and acknowledges
that it has the authority to bind each of the New Secured Parties to the Collateral Trust Agreement
and such New Secured Parties are hereby bound by the terms, conditions and provisions of the
Collateral Trust Agreement, including, without limitation, the provisions relating to the ranking
of Liens and the order of application of proceeds from the enforcement of Liens.



     6. New Representative. The New Representative in respect of the New Facility is [NEW
REPRESENTATIVE]. The address of the New Representative in respect of the New Facility for purposes
of all notices and other communications hereunder and under the Collateral Trust Agreement is
                    ,                     , Attention of                     
(Facsimile No.                     , electronic mail address:
                    ).



     7. Officer’s Certificate. Each of the Trustors hereby certifies that the Trustors
have previously delivered the Officer’s Certificate contemplated by Section 2.02(b)(i)) of the
Collateral Trust Agreement and all other information, evidence and documentation required by
Section 2.02 of the Collateral Trust Agreement, in each case in accordance with the terms of the
Collateral Trust Agreement.





 




			
	1	 	If a successor Collateral Agent has been
appointed, the name of such successor should be filled in instead.




42









 










     8. Reaffirmation of Security Interest. By acknowledging and agreeing to this
Collateral Trust Joinder, each of the Trustors hereby (a) confirms and reaffirms the security
interests pledged and granted pursuant to the Collateral Documents and grants a security interest
in all of its right, title and interest in the Collateral (as defined in the applicable Collateral
Documents), whether now owned or hereafter acquired to secure the Obligations, and agrees that such
pledges and grants of security interests shall continue to
be in full force and effect, (b) confirms and reaffirms all of its obligations under its
guarantees pursuant to the applicable Note Documents and the New Documents and agrees that such
guarantees shall continue to be in full force and effect, and (c) authorizes the filing of any
financing statements describing the Collateral (as defined in the applicable Collateral Documents)
in the same manner as described in the applicable Collateral Documents or in any other manner as
the Collateral Agent may determine is necessary, advisable or prudent to ensure the perfection of
the security interests in the Collateral (as defined in the applicable Collateral Documents)
granted to the Collateral Agent hereunder or under the applicable Collateral Documents.



     9. Counterparts. This Collateral Trust Joinder may be executed in counterparts (and
by different parties hereto on different counterparts), each of which shall constitute an original
but all of which when taken together shall constitute a single contract. This Collateral Trust
Joinder may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original but all of which when taken together
shall constitute a single contract. Delivery of an executed signature page to this Collateral
Trust Joinder by facsimile or PDF transmission shall be as effective as delivery of a manually
signed counterpart of this Collateral Trust Joinder. Signatures of the parties hereto transmitted
by facsimile or PDF shall be deemed to be their original signatures for all purposes.



     10. Governing Law. THIS COLLATERAL TRUST JOINDER SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



     11. Miscellaneous. The provisions of Article 8 of the Collateral Trust Agreement
shall apply with like effect to this Collateral Trust Joinder.



[Signature Pages Follow]




43









 





     IN WITNESS WHEREOF, the New Representative has caused this Collateral Trust Joinder to be duly
executed by its authorized representative, and each Trustor party hereto have caused the same to be
accepted by their respective authorized representatives, as of the day and year first above
written.



	 	 	 	 	 
	 	[NEW REPRESENTATIVE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





	 	 	 	 	 
	 	Acknowledged and agreed:

HARBINGER GROUP INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	[OTHER TRUSTORS]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





     The Collateral Agent acknowledges receipt of this Collateral Trust Joinder and agrees to act
as Collateral Agent with respect to the New Facility in accordance with the terms of the Collateral
Trust Agreement and the Collateral Documents.



	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION

as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: